Eller Media Co.

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1287 (N.L.R.B. 1998)

ELLER MEDIA CO. 1287
Patrick Media Group d/b/a Eller Media Company
and Laborers’ International Union of North
America, AFL–CIO. Case 31–CA–22422
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On June 2, 1998, Administrative Law Judge Burton
Litvack issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Acting Gen-
eral Counsel filed an answering brief, and the Respon-
dent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Patrick Media Group d/b/a
Eller Media Company, Los Angeles, California, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order.

Ann L. Weinman, Esq., for the General Counsel.
Martha Haren McCampbell, Esq. and David Prather, Esq.
(Zinser & Patterson), of Nashville, Tennessee, for the Re-
spondent.
Earle E. Brendlinger, Business Representative, of Hollywood,
California, for the Union.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The unfair labor
practice charge, in the above-captioned matter, was filed by La-
borers’ International Union of North America, AFL–CIO (the
Union) on December 4, 1996. Upon investigating the unfair labor
practice charge, on May 16, 1997, the Regional Director for Re-
gion 31 of the National Labor Relations Board (the Board), issued
a complaint, alleging that Patrick Media Group, d/b/a Eller Media
Company (Respondent) had engaged in acts and conduct, viola-
tive of Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act). Respondent timely filed an answer, essentially denying
the commission of the alleged unfair labor practices, and, pursuant
to the notice of hearing, which accompanied the instant complaint,
the matter was tried before me on September 2, 3, and 4, 1997, in
Los Angeles, California. At the trial, all parties were afforded the
opportunity to examine and to cross-examine all witnesses, to
offer into the record any relevant oral and documentary evidence,
to argue their legal positions orally, and to file posthearing briefs.
The latter documents were filed by counsel for the General Coun-
sel and by counsel for Respondent, and each has been carefully
considered. Accordingly, based upon the entire record herein,
including the posthearing briefs and my observation of the testi-
monial demeanor of each of the several witnesses, I make the
following

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 find that the Respondent’s discharge of striking employee Mi-
chael Tucker violated Sec. 8(a)(1). Accordingly, we find it unneces-
sary to decide whether it also violated Sec. 8(a)(3) as the judge found.
See Burnup & Sims, 379 U.S. 21 at 22 (1964). A finding of an 8(a)(3)
violation would not materially affect the remedy.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, maintains an office and place of
business in Los Angeles, California, and is engaged in the busi-
ness of constructing and maintaining outdoor billboards. In the
course and conduct of its above-described business operations,
Respondent annually derives gross revenues in excess of $500,000
and purchases and receives, at its Los Angeles, California facility,
goods and services, valued in excess of $50,000, directly from
suppliers located outside the State of California. Respondent
admits that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ISSUES
The complaint alleges that Respondent engaged in acts and
conduct violative of Section 8(a)(1) and (3) of the Act by termi-
nating its employee, Michael Tucker, on November 30, 1996,1
and, thereafter, failing and refusing to reinstate him because he
engaged in activities in support of the Union. Respondent denies
the commission of the alleged unfair labor practices, arguing that
it had a good-faith belief that Tucker engaged in serious picket
line misconduct during an economic strike and terminated him for
that reason. Counsel for the General Counsel argues that Tucker
did not, in fact, engage in the alleged misconduct and that, assum-
ing any misconduct, such was not serious enough to warrant dis-
missal of Tucker.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent is engaged in the outdoor advertising business on a
nationwide basis, including the State of California, soliciting and
selling advertising space on outdoor billboards, which it erects and
maintains. Specifically, Respondent’s employees are involved in
the construction, painting, erection, and maintenance of the out-
door billboards. In Los Angeles, California, Respondent main-
tains a two-building office and construction facility, located at the
intersection of Washington Boulevard and 23rd Street, at which
approximately 100 employees work or are based, and, at least
through mid-December 1996, Studio Utility Employees Local
724, an affiliated local of the Union (Local 724), represented ap-
proximately 37 of the employees, including the construction jour-
neymen, who are engaged in the erection of the outdoor advertis-
1 Unless otherwise specified, all events herein occurred within cal-
endar year 1996.
326 NLRB No. 129
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1288
ing signs. Fred Garcia is Respondent’s operations manager and
his operations assistant is Christina Delgadillo. The record estab-
lishes that, during the fall of 1996, Respondent and the Union
were engaged in negotiations for a successor collective-bargaining
agreement; that, without an agreement, on November 12, the 37
bargaining unit employees, who were represented by the Union,
commenced a concerted work stoppage and economic strike
against Respondent; that said employees engaged in picketing at
the main entrance to the facility, which is located on 23rd Street,
and at a walkway entrance on Washington Boulevard.; that Re-
spondent hired replacement workers for the striking employees;
and that, after several bargaining unit employees had crossed the
picket line and returned to work, the work stoppage and strike
ended on December 2.
There is no dispute that, in the early morning hours of Novem-
ber 14, while reporting for work, some of the replacement em-
ployees experienced severe tire damage as they maneuvered their
vehicles past picketing strikers on 23rd Street and into Respon-
dent’s driveway; that a security guard, Pedro Haro, who had been
assigned to the driveway entrance,2 was instructed to remove from
the driveway whatever objects had caused the tire damage; that,
while Haro, who carried a broom, was outside the entrance gate in
the area of the public sidewalk and street and in the midst of the
strikers, a brief altercation between the security guard and a pick-
eting striker, Michael Tucker, ensued; that immediately after the
incident, Haro reported his version of what had occurred to Re-
spondent’s supervisors, who telephoned the Los Angeles police
department; and that police officers arrived at the scene of the
picketing and questioned Haro and others regarding the confronta-
tion.3 Haro informed the investigating officers that the picket,
whom he recognized as a striking employee but whose name he
did not know, had “hit” him on the left side of his face with a 3
foot, wood stick. Either before or after the arrival of the police
officers, Haro and another security guard, James Williams, who
assertedly witnessed the incident, drafted incident reports for their
employer, Tandem Security, and Christina Delgadillo requested
that the security guard service transmit these to Respondent. Sub-
sequently, on the morning of November 14, after reading the two
incident reports,4 Fred Garcia instructed Christina Delgadillo and
other supervisors to continue investigating the incident for Re-
spondent, specifically to identify the striking employee, who al-
legedly had struck security guard Haro. Thereafter, Delgadillo
obtained sworn statements, regarding the confrontation, from
Haro and Williams and the police report of the incident and gave
these documents to Garcia, and, 1 day during the next week,
James Williams telephoned her and said the employee, who had
struck Haro, was on the picket line. According to Delgadillo, she
walked out to the main gate, and Williams pointed to Michael
Tucker and identified him as the striker, who had confronted and
hit Haro with his picket sign. Garcia testified that, based upon

2 Respondent does not employ its own security guards. Rather, it
contracts with a security guard service, Tandem Security, for security
guards, and the latter company assigns guards to Respondent’s facility.
3 As will be discussed infra, while the police were questioning po-
tential witnesses, Tucker avoided them, hiding inside his truck.
4 Haro wrote that he had been instructed to sweep the entrance to
Respondent’s driveway and, in doing so, he noticed a nail on the
ground; that, as he reached down for the nail, a striker stood in front of
and shoved him; that they then exchanged words; and that the picket
suddenly assumed a fighting stance and threw his picket sign at Haro,
“hitting me in the chin (left side).” James Williams’ written account
corroborated that of Haro.
what Delgadillo gave him (the guards’ incident reports, their
sworn statements, the police report, and Williams’ identification
of Tucker), he concluded that the alleged discriminatee had en-
gaged in a physical confrontation, a “fight,” with Haro, during
which the employee shoved and intentionally hit Haro with his
picket sign and that, believing he was under no obligation to listen
to Tucker’s version of his confrontation with Haro or those of any
of other strikers who were present as he had no reason to doubt the
veracity of the security guards, during the weekend after Thanks-
giving, he reached the decision to terminate Tucker—”I wasn’t
going to allow [any fighting]. . . . I had to take care of it.”5 Ac-
cordingly, on November 30, Garcia sent a letter to Tucker, advis-
ing him that “effective immediately you are discharged from em-
ployment at Eller Media Company. Since November 12, 1996,
you have engaged in one or more instances of misconduct, any
one of which would independently constitute cause for your dis-
charge.” Notwithstanding the wording of his letter, Garcia testi-
fied that the precipitous reason for Tucker’s discharge was, in fact,
the November 14 altercation between Haro and him.6
With regard to what occurred during the November 14 alterca-
tion between Tucker and Haro, there is no dispute that, as they had
done on the first 2 days of the concerted work stoppage, the strik-
ing employees, including alleged discriminatee Tucker, com-
menced picketing in front of the driveway entrance to Respon-
dent’s facility on 23rd Street at approximately 4 a.m. and that, at
the time the strikers arrived that morning, security guards Haro
and Williams were nearing the end of their work shift at their
assigned station, the guard shack near the driveway entrance gate.
Michael Tucker, who appears to be a middle-aged individual with
a not particularly muscular physique and who was carrying a
picket sign, a cardboard placard attached to a wood stick, that
morning, first noticed security guard Haro some time prior to 5:30
a.m. “having an argument with one of the picketers,” Dennis
Schoeny. The latter had been tapping his picket sign against the
fence, which sets off Respondent’s property along 23rd Street,
near the security guard shack. Haro “came out . . . and was telling
Shoeny to get away from the gate and don’t touch it.” Not quite
5 Garcia viewed the incident as one entire entity, and “it was the en-
tire incident from beginning to end,” which, he believed, was serious
enough to warrant Tucker’s discharge because “he was fighting. . . . I
seen it as the physical . . . the physical confrontation.” Garcia conceded
that Tucker may have become justifiably offended at some of the lan-
guage used by the security guard but not to the point of becoming
“physical.” Also, while maintaining that Tucker threw the picket sign
deliberately, Garcia admitted that he would have viewed the matter
differently if the sign had accidentally struck the guard—”of course.”
As to whether the incident was, in fact, a fight, an asserted eye witness,
James Williams, testified, “[I]t wasn’t really a fight,” but “it could have
turned out to be a fight.” Finally, according to Garcia, while he viewed
the tire damage, caused by the nails, as “serious” and while he had “lots
of names,” no striker was discharged or disciplined for throwing nails.
Further, the record reveals that another employee, who Respondent
believed had threatened nonstriking employees with death to them and
to their families, was suspended but not terminated from his job. Ac-
cording to Garcia, unlike fighting, “I felt that he did not go above and
beyond. . . .”
6 Under questioning by counsel for the General Counsel, Fred Garcia
testified that he decided to terminate Tucker because of the “fight”
between Haro and him–”that’s why he was terminated.” While, later
during questioning by the undersigned, he opined that Tucker’s sus-
pected involvement in another incident away from the picket line also
was a factor in his decision, Garcia was clear that he would have termi-
nated Tucker for the Haro incident itself— “the fight . . . to me was
above and beyond.”
ELLER MEDIA CO. 1289
an hour later, according to Tucker, Haro walked off company
property into the picket line, carrying a broom. “There was my-
self and three or four people talking together and there was people
going back and forth across the line because we had to . . . to keep
in constant movement and I felt somebody nudge me and leaned
down and I turned around and saw it was the guard and I asked
him in no unkind words what . . . the fuck are you doing across the
line. . . . And he raised up and he had something in his hand. It
was still fairly dark. And he shoved it up to my face. . . . And he
said it two or three times, I got you. I asked him what do you
mean you have me, and then we exchanged a few more words.”7
Tucker continued, testifying that “[w]e were cussing each other. .
. . I said get your ass back across the line where you belong, we’re
on our side, you get back on your side; and he said something
about kicking my ass; he turned around and walked off; and I told
him to get his ass back; and then he said I’m going to kick your
ass, old man; and he went back across the line and he said some-
thing about old man again; I threw the sign down and I said come
back out here and I’ll show you what an old man can do to you.”
At this point, according to Tucker, he and Haro were standing
“square” to and facing each other, and Tucker threw his picket
sign “just to the left front. Just tossed it down like that and it,
basically, hit the fence and then just fell down.” Tucker specifi-
cally denied throwing the sign in Haro’s direction or hitting the
guard with the sign as “he was on the other side of the fence.”
The confrontation ended at this point with Tucker saying some-
thing else to Haro and the latter walking back toward the company
office and laughing at Tucker. Even after Haro left the area, the
alleged discriminatee claimed, he remained in an agitated state,
and he was “advised” by Earl Brendlinger, the business manager
of Local 724, and some other strikers to “go sit in my truck.”
Heeding this advice, Tucker walked to where his truck was parked
and ate his lunch. Within half an hour, he observed police officers
arrive, go inside company property, then come outside, and speak
to some of the strikers. As he was “pretty sure” that the police
were investigating the guard incident, the alleged discriminatee
remained sitting inside his truck until the police officers departed.
Thereafter, some strikers approached his car informed Tucker that
he was being accused of striking the guard with his picket sign
and that the police were looking to arrest him. Also, Thomas
Skaggs, the Local 724 shop steward walked over to Tucker’s truck
and advised him to leave and “take the rest of the day off.”8
Tucker left but did return to the picket line a few days later.
Counsel for the General Counsel presented four witnesses, who
offered ostensible corroboration for Tucker’s denial of having
struck security guard Haro with his picket sign during their admit-
ted altercation. Earl Brendlinger, the Local 724 business manager,
testified that there were between 20 and 25 striking employees
picketing outside the driveway entrance to Respondent’s facility
by 5 in the morning on November 14 and that he “was talking to
the shop steward at the time off to the side of the driveway” when
“I heard an argument.” Brendlinger “turned around and saw Mi-
chael Tucker very close to the security guard who at that time was
standing in the street with a broom. . . . At that time, the guard
turned and started walking back to the guard shack with Michael

7 Tucker believes that the object, which Haro held up to his face, was
a nail. Tucker also denied impeding Haro as the latter bent to pick up
the nail.
8 During cross-examination, Tucker conceded stating, under oath at
an earlier unemployment compensation hearing, that had no idea why
the police came to the facility on November 14 and that no one told him
why they were there.
Tucker following close behind and, as soon as I saw that, I im-
mediately went to them to try to get in between them and stop
anything from happening.” Continuing, the union official said
there was “absolutely” no physical contact between the employee
and the guard; rather, “they were both yelling very loud at each
other and both . . . were using a lot of expletives.” Asked if the
observed Tucker throw his picket sign down to the ground, Brend-
linger answered, “Yes” but that the sign “did not” hit the guard.
The witness added, “I was right behind Michael at the time they
squared off. Michael had thrown his sign off to the side and had
physically challenged the guard. I would say they were maybe
five or six feet apart and I moved around in front of Michael to get
in between them to stop anything from happening. . . . The guard
turned around and walked back to the guard shack and entered
[it].”9 Describing the incident again, Brendlinger stated that the
first thing he observed when he turned from speaking to the shop
steward was “the guard turning around and heading back to the
company’s property” and Tucker following him, carrying a picket
sign in his hand. “As I walked up behind Michael, the guard . . .
walked just inside the company property and then he turned
around and they were still arguing. . . . And then Michael threw
his sign . . . off to the side. . . . I was coming up right behind him,
so I don’t know exactly how far he threw it off to the side because
then he clenched his fists and challenged the guard to a fight. . . .
The guard laughed at him and said . . . that him being an old man
and then turned around and walked away” toward the guard shack.
Asked whether, when he first observed what was occurring, the
guard was already walking back toward the entrance gate, Brend-
linger answered, “No. He was standing in the street and Michael
was actually in between him and the company property,” standing
in the driveway. Again, as to whether Tucker threw his picket
sign at the guard, Brendlinger was adamant—” He did not. He
threw it off to the side.” After Haro walked away, according to
Brendlinger, Tucker remained “very hot,” and he told Tucker “to
go and cool off.” Tucker did so before the police arrived on the
scene. During cross-examination, Brendlinger stated that the
guard walked right past Tucker toward the company property and
that it was Tucker and not the guard who turned around.
Union Steward Thomas Skaggs testified on behalf of the Gen-
eral Counsel, presumably in order to corroborate the respective
testimony of Brendlinger and Tucker. According to Skaggs, early
on November 14, “I was standing . . . 10 to 15 feet . . . south-
east . . . of the . . . entrance of the gate. . . . I was in the street, but
still in the driveway. In front of the driveway. And I saw the guard
walking out with a push broom in his hands and the broom was
being held like in an aggressive manner. It was being held not like
you’re going to sweep. . . . He was holding it in the air coming out
. . . And he confronted Mike. He came up in front of Mike. And,
apparently, he was coming out to sweep the street and there was
some nails in the street and I . . . heard the argument begin be-
tween them.”10 Skaggs continued, saying that the guard “just got
within about six inches of [Tucker’s] face. Got right in his
face. . . . And then the first words I heard . . . was you want a
piece of me, old man. It was the guard yelling that at Mike and I
9 Brendlinger described Haro as being possibly 18 to 20 years of age
and Tucker as being in his late 30s or early 40s.
10 Asked what he was doing at the time, Skaggs replied that he was
just “standing. . . . I was really doing nothing.” As to where Earl
Brendlinger was standing, Skaggs did not even recall him being on the
picket line that morning—” I don’t know.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1290
was on my way over there.”11 Then, “there was a lot of cussing
back and forth and I don’t know the exact words that were being
used. . . . Like 5 seconds worth of screaming. . . . And Mike had
this picket sign in his hand. . . . And Mike threw the picket sign it
would be like sideways to his left down and the guard was right in
front of him and he threw the sign down and then the guard was
yelling . . . you want a piece of me, old man, and Mike was re-
sponding . . . go ahead . . . if you think you can handle it. . . .”
Skaggs was certain that the confrontation took place on “public
property. They were on the sidewalk and part of the driveway
where it meets the street.” Further, the two men remained face to
face, with the entire incident lasting no more than 5 to 10 seconds.
Hearing Tucker’s response to the guard, Skaggs ran over to where
the two men were standing, “but by the time I got to them, they
were already walking away from each other . . . and the guard was
walking back in.” As to the throwing of the picket sign, Skaggs
was certain that Tucker threw it “downward and to his left. . . . I
believe he had it in his left hand or may have had it in both hands.
I don’t know, but he threw it to his left. It went to . . . his left side”
straight to the ground, and “from where I was, I don’t believe the
sign hit [the guard] at all.” On this latter point, asked if the secu-
rity guard acted as if he had been injured, Skaggs answered, “Not
one bit at all.” Also, according to Skaggs, Tucker remained on the
picket line for a while but then left, and, 15 minutes after the con-
clusion of the incident, the police arrived. They spoke to the
guard, and one officer approached Skaggs, telling him that, if
Tucker showed up again, he would be arrested because the guard
claimed he had been assaulted by Tucker and hit in the eye by
Tucker’s picket sign. In this regard, Skaggs noticed that the secu-
rity guard held his right hand over his right eye while questioned
by the police. Finally, asked if he advised Tucker to leave, Skaggs
said, “No, I sure didn’t tell him.”
Two other construction journeymen employees, who were
picketing early in the morning on November 14, testified with
regard to what they observed. Richard Lavarda, who is a social
friend of Tucker, testified that, at approximately 4:30 a.m., “I was
walking the picket line . . . and I saw this guard Haro come up to
. . . Schoeny and just start giving him some hell because his picket
sign was rubbing the fence. And this guard went off and just
started swearing and hollering.” Then, “probably a half hour af-
terwards,” Lavarda observed Haro “walk out of the guard shack.
He had a broom in his hand . . . [with] his hand at the bottom of
the broom where the sweep part was. Like a club. . . . And then he
just walked straight out and he . . . shoved Michael Tucker with
one hand, and, as he was shoving him, he said get out of the way,
old man, and he bent down and picked something up . . . and he
says I got you and then . . . the guard backed up a little bit and
Mike said fuck you punk, and the guard says . . . well, this punk is
going to kick your ass and then Mike threw his picket sign down
. . . and said . . . come on and kick this old man’s ass and then . . .
the guard backed up and went back onto the company property”
and turned around and walked back to an office in which the con-
struction workers receive their daily work assignments. During
the confrontation, according to Lavarda, he was no more than
three feet from Tucker and to his left, and Tucker and Haro were
within four feet of and facing each other. As to the throwing of
the picket sign, denying that Tucker threw it at the guard, Lavarda
said, “Tucker threw the picket sign in a downward motion, under-

11 Asked if the guard bent over to pick something up from the street,
Skaggs replied, “No, I didn’t see him bend over to pick up [anything].”
Further, he did not see the guard put his fist into Tucker’s face.
handed forward and to the left of the guard, In other words, he
threw it out of the way.” During cross-examination, Lavarda
further recalled that, after the guard had knelt down in order to
pick up an object from the street, he arose and “held [the object]
up to Mike Tucker’s face” with his left hand “and he says I got
you” and that, when Tucker tossed his picket sign, he did so with
his left hand and the sign landed on the driveway “probably ten
feet” from the fence. Dennis Schoeny testified that he had a con-
frontation with Haro that morning prior to what occurred between
the guard and Tucker. “I was tapping my picket sign on the fence.
[Haro] apparently took offense to that, told me that I had to stop
doing that” or “he would make me stop.” Then, approximately 20
minutes later, Haro “walked out from the company property . . .
onto the sidewalk, where we were picketing, with a broom in his
hand and . . . pushed . . . Mike with his body as he . . . was at-
tempting to walk past.”12 Then, according to Schoeny, an “argu-
ment started and Mr. Tucker took offense to being pushed. And he
threw his picket sign down to the ground and they argued and then
the guard walked back on company property. Schoeny added that,
while he could not recall the guard bending down in order to pick
up anything, the guard and Tucker stood within three feet of each
other, that Tucker threw the picket sign straight down to his left
side with his left hand, and that neither did the picket sign touch
the guard nor did the latter act as if he had been hit.’’
Security guard, Pedro Haro, who is a young and obviously
well-built individual,13 testified that he was stationed at the drive-
way entrance gate on November 14 and that, having started his
work shift at 11 p.m. the previous night, he was quite “sleepy”
early the next morning.14 According to Haro, at approximately
5:30 a.m., he received a telephone call from an employee, report-
ing that, after driving onto company property through the en-
trance, he discovered nails in his truck’s tires and asking Haro to
sweep the area clean. At the conclusion of the telephone call, “got
a kitchen broom and I started from the shack, making my way up
to the fence,” sweeping the pavement toward the street.”15 Haro
was plainly visible to the picketing strikers, and “it took me about
five minutes or less. . . . I paused at the fence . . . because . . .
[some of the strikers] are in the way and I didn’t want to be in
their way, so I’m sweeping, avoiding some of them.” Eventually,
he reached the sidewalk, “working my way to the street. Up until
then, Haro testified, he and the pickets had managed to avoid
bumping into each other, and there was “no problem until Michael
Tucker stood in front of me, trying to deter my sweep” in the area
of the public sidewalk. The witness continued, “I couldn’t believe
12 Schoeny testified that he was “standing directly behind” Tucker
and that he did not recall Brendlinger being present that morning.
13 Haro stated that he has trained in the use of karate for 12 years.
14 Haro’s work shift was due to conclude at 7 a.m.
Haro did recall an incident during which he was inside the guard
shack and was being bothered by a picket, who was making noise by
rubbing his picket sign against the company fence. Haro stepped out of
the guard shack and asked the picket to stop it. The picket replied that
he had a right to be on that side of the fence and to make the noise.
Haro replied that he was trying to work and that the noise was bother-
ing him. “And . . . he said you think you’re a tough guy and . . . . I told
him, you think I’m a tough guy, okay, fine . . . and I told him, I said I
rather just punch your lights out and give you that satisfaction and we
laughed.” While placing the incident early in the morning, he believed
it occurred “before the 14th.”
According to Haro, his previous relationship with the picketing
strikers had been “great” as he and the strikers had greeted each other
with “hi” and he had occasionally given water to the pickets.
15 The guard shack is 15 feet in back of the entrance gate.
ELLER MEDIA CO. 1291
that [Tucker] was in my way as I was sweeping, and I tried to
sweep around him and he would get in front of me. . . . I was still
. . . sweeping for the nails. Out of nowhere, I saw . . . this nail right
by Michael Tucker’s right foot. . . . I bent over to grab the nail
with my right hand and the broom was in my left hand. As I was
bending over . . . Tucker shoved my with his hip and with his two
hands he lightly pushed me . . . when he did that, I instantly
grabbed the nail . . . and I stood up and . . . Tucker said . . . you put
that nail down, mother fucker, and go back to where you belong to
the shack.”16 Haro responded, “I’m sorry, I’m here to sweep,
these nails can’t be here. . . . [Tucker] said . . . put that down, fuck
face.” To this, Haro replied, “you’re an old man and I can knock
the fuck out of you, and I laughed, and he said you think I’m an
old man, how about this as an old man, and he goes come try me.
So he had his picket stick in his left hand and he tossed it at me.
He threw it at me. [It] hit me in the chin and it went out.” Then,
changing his testimony, Haro stated that the picket stick “was in
[Tucker’s] right hand . . . because the stick hit me and it went to
the right” and that it struck him on the right cheek. Moments
later, again changing his testimony, Haro averred that Tucker held
the picket stick “in his left hand” and that “he threw the picket . . .
sign at me.” According to Haro, he and Tucker were no more
than an “arm distance” away, and the latter had his left leg ex-
tended and threw the picket sign “with his left hand.” He added,
“He threw it at me, but not as hard to injure me. . . . The little
picketing stick hit me and went to the right.” As to what part of
the picket sign hit him, Haro said, “Not the cardboard. The stick.
. . . The bottom part of the stick. The reason I can remember this is
because . . . . he threw it at me to the right with the right hand
. . . .”17 Haro further testified that Tucker “didn’t throw [the picket
sign] off to the side or the ground. He threw it at me and said
come on, mother fucker.”18 At this point, according to the secu-
rity guard, “I got a little bit distance, I backed away, I laughed, we
cussed, and we cursed at each other. . . .” Then, Haro turned and
“started walking away.”19
During cross-examination, Haro reiterated that he had been
struck by “the handle end” of the picket sign on the “right” side of
his chin.20 However, when confronted with his incident report,

16 At the time, according to Haro, he did not know Tucker’s name.
Haro recalled that Tucker carried a picket sign in his left hand, that they
were no more than 18 inches apart at this point in the incident, and that
he (Haro) was holding the broom in his left hand and the nail in his
right hand. Finally, Haro specifically denies holding the nail up to
Tucker’s face (“I wouldn’t do that”) or saying “I got you” (“I don’t use
those words”).
17 As to where on his body, he was hit by the stick part of the picket
sign, Haro stated that it hit him on “the bottom part of my right
cheek”—below the mouth on the right side of the chin—and that it
neither hurt him nor left any mark or abrasion.
18 According to Haro, Tucker assumed a fighting stance after throw-
ing the picket sign.
19 With regard to where security guard, James Williams, was stand-
ing during the incident, Haro said, “Mr. Williams was to my left. . . . I
felt him” but “I don’t remember seeing him.” Haro explained, “When I
. . . saw him as I was backing away, he was behind the gate.” Asked if
Williams was ever in the street with him, Haro said, “I didn’t see that.”
Under cross-examination, Haro testified that “I didn’t see Mr. Williams
when I was arguing with Mr. Tucker. . . . The only time I got to see . . .
he was there was when I was backing away from the scene” and al-
ready on company property.
20 He denied holding his hand to the part of his face where he was hit
when the police questioned him. However, Christina Delgadillo con-
tradicted him on this point, stating that, while the guard had no cut or
Respondent’s Exhibit No. 1, in which he wrote that he was hit on
the “left side” of the chin, Haro averred, “That was a long time
ago, but I remember getting hit in the chin. Perhaps at that point
left and right was not coming clear. . . .” Further, he could not
recall whether he told the police the injury was to the left or right
side of his chin and conceded that, at the present time, “I don’t
remember” on what side of the chin he was struck by Tucker’s
picket sign. But, when asked by counsel for the General Counsel
to touch the spot on his chin, Haro placed his hand on the left side
of his chin. With regard to the throwing of the picket sign, Haro
stated that Tucker “did not aim at me. He threw it at me. He wa
not aiming.” Given the short distance between them, asked how
the cardboard part of the sign could have missed him, Haro stated,
“I didn’t feel the cardboard, I only felt the little stick hit me flying
down. . . . to the right side of me.”21 He added that Tucker didn’t
just drop the stick and say, okay, lets go. Rather, according to
Haro, Tucker physically lifted his arm and threw the sign in a
forward thrusting motion such as a basketball pass—“If he wanted
to hit me with the stick, he probably would have got the stick and
smacked me with it. . . . But he didn’t do that. What he did was
toss the stick [in] my direction to get into a fighting stance.”
Security guard, James Williams, testified presumably in order
to corroborate the testimony of Haro. According to Williams,
early on November 14, after the striking employees began picket-
ing on the public sidewalk outside of the driveway entrance into
Respondent’s facility, Haro received a telephone call and reported
that “it was to let him know that people was throwing nails on the
ground to try to put the trucks flat. So he picked a broom to go
outside and sweep the driveway.” Then carrying “a big sweep
broom,” Haro “walked out to the driveway and he started sweep-
ing back and forth to try to get any type of debris that was in front
of the driveway. . . . I walked right down with him and stood on
the sidewalk” as Haro was “working his way towards the
street . . . in front of the driveway area.” At this point, Haro was
in the path of the picketing, and, as he approached the street, he
noticed a three and a half inch nail on the ground. Haro reached
down to “pick up the object and one of the . . . picketers . . .
nudged him with his knee to try to avoid [Haro] from picking it
up” and, at the same time, told Haro “to get his fuckin’ ass back in
the guard shack where he belonged.”22 Haro then stood up “and
acknowledged the gentleman that he was much younger and that
the gentleman was kind of old and he would kick his ass. And the
gentleman then told [Haro] . . . well, I am going to show you how
old I am and . . . threw [his picket sign] at him. . . . Haro turned
around and walked to the guard shack. . . .” Williams recalled that
the picket threw his picket sign with two hands with what he de-
scribed as an “ax-type movement”23 and that “the top edge part”
of the placard part of the picket sign struck Haro “on the left-side”
of his chin. Williams added that he did not follow Haro back to
the guard shack; rather, “I stood out in the driveway.” Williams

abrasion from his injury, Haro did have his hand “over his cheek” while
the police were present, and “he said his cheek hurt him . . . .”
21 Nevertheless, the thrown picket sign did not hurt Haro. Thus, he
averred that “it was nothing” and it was “no big deal. It didn’t give me
a bruise, a scratch.”
22 By this time, Williams testified, he was standing “right next to the
. . . picketer on his right hand side” within “a couple of feet” of Haro
and the picket.
23 Williams was sure that the picket sign “left” the hands of the
striker before hitting Haro and that the striker “threw the sign straight in
front of him” and could not have missed Haro, who was standing
straight in front of the picket and 3 or 4 feet away.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1292
further recalled that, after the striker said he could kick ass, Haro
said he was out there to sweep nails and that, after throwing his
picket sign, the striker, who acted “just a little bit irate,” set him-
self in a stance “like Haro was going to come at him, like he was
ready to defend himself.” During cross-examination, Williams
reversed himself, stating that the picket sign struck Haro on the
lower right side of his chin. He also told counsel for the General
Counsel that, after the picket sign hit the ground, Haro “pointed”
at the picket and said “you’re in trouble . . . I got you, you’re in
trouble, and then he turned and he went to the guard shack.”
B. Legal Analysis and Conclusions
“Section 7 of the Act gives employees the right to peacefully
strike, picket, and engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection.”
Clear Pine Moldings, Inc., 268 NLRB 1044, 1045 (1984). How-
ever, “striking employees may disqualify themselves from rein-
statement by engaging in serious misconduct.” Matlock Truck
Body & Trailer Corp., 248 NLRB 461, 472 (1980). In all cases
involving either the discharge of or the refusal to reinstate strikers
for having engaged in such alleged acts of misconduct while pick-
eting, “the burden of proving discrimination is that of the General
Counsel.” Rubin Bros. Footwear, Inc., 99 NLRB 610, 611
(1952). In this regard, the General Counsel must initially establish
that the alleged discriminatee was, in fact, a striker and that his
employer took some action him for conduct while said employee
engaged in the concerted work stoppage. At this point, the burden
shifts to the respondent which must prove that it entertained an
honest belief that the striking individual has engaged in miscon-
duct based upon record evidence linking specific persons to spe-
cific acts of misconduct. General Telephone Co. of Michigan,
251 NLRB 737, 739 (1980). Such constitutes an adequate defense
to a charge that the alleged discriminatee’s discharge or the refusal
to reinstate said individual was violative of the Act except where
the General Counsel next affirmatively establishes that the em-
ployee did not, in fact, engage in the asserted misconduct or that it
was not so flagrant or egregious so as to warrant discharge or
denial of reinstatement. National Gypsum Co., 302 NLRB 534,
539–540 (1991); Ornamental Iron Work Co., 295 NLRB 473, 478
(1989). Desert Inn Country Club & Spa, 275 NLRB 790, 795
(1985); Newport News Shipbuilding & Drydock, 265 NLRB 716
(1982). Once the General Counsel has established that the mis-
conduct did not occur, the burden shifts to the respondent to rebut
the denials. Laredo Coca-Cola Bottling Co., 258 NLRB 491, 496
(1981). Finally, in determining whether a striking employee’s
picket line misconduct is sufficiently serious to justify an em-
ployer’s refusal to reinstate him, the Board applies an objective
test: “whether the misconduct is such that, under the circum-
stances existing, it may reasonably tend to coerce or intimidate
employees in the exercise of rights protected under the Act.’”
Clear Pine Moldings, Inc., supra at 1046.
There is no dispute herein that construction journeyman, Mi-
chael Tucker, participated in the concerted work stoppage and
economic strike against Respondent, which commenced on No-
vember 12. Further, there is no dispute that Respondent termi-
nated Tucker on November 30 assertedly for engaging in strike-
related picket line misconduct in the early morning of November
14. The burden, I believe, thereby shifted to Respondent to estab-
lish that it honestly believed that Tucker engaged in the miscon-
duct for which he was terminated–provoking and engaging in a
fight with security guard, Pedro Haro, including shoving Haro as
the latter attempted to pick up a nail, which Haro noticed on the
ground in the street in front of the driveway entrance into Respon-
dent’s facility, and then throwing a picket sign at Haro, hitting the
latter on his face. In this regard, Fred Garcia, Respondent’s opera-
tions manager, was uncontroverted that it was his decision to dis-
charge Tucker and that such was based upon the incident reports
of security guards Haro and James Williams, the Los Angeles
police department report on the incident, Haro’s and Williams’
sworn statements, which were taken by an attorney for Respon-
dent, and security guard Williams’ eye witness identification of
Tucker as the striker, who engaged in the asserted misconduct.
Counsel for the General Counsel argues that Respondent could not
have entertained an honest belief that Tucker engaged in the al-
leged misconduct inasmuch as it failed to obtain Tucker’s or any
other striker’s versions of what occurred that morning. Contrary
to counsel, the Board has long held that an employer may premise
his belief of striker misconduct on the reports of its security guards
and other statements. National Gypsum Co., supra at 540; New-
port News Shipbuilding & Drydock, supra; Laredo Coca-Cola
Bottling Co., supra at 497. Further, while it is true that Respon-
dent failed to obtain the strikers’ versions of the incident, it was
not unreasonable to rely upon other eye-witness accounts, those of
the security guards who were present during the incident, without
speaking to strikers, especially when said accounts were not with-
out foundation and were promptly reported and the witnesses were
presumably worthy of belief. Laredo Coca-Cola Bottling Co.,
supra at 497; Associated Grocers of New England, 227 NLRB
1200 (1972). Accordingly, based upon the foregoing, I believe
that Respondent has established that its termination of Tucker was
based upon an honestly held belief that the alleged discriminatee
engaged in misconduct sufficiently serious to warrant termination.
As recognized by the parties, the crux of the instant matter is
whether Tucker engaged in the attributed misconduct. Thus, do I
rely upon the accounts of Tucker, union official Brendlinger, and
three former striking employees that the alleged discriminatee
neither shoved security guard Haro nor threw his picket sign at the
guard, hitting him on the face, and that, in fact, security guard
Haro was the instigator of the November 14 incident, or do I credit
security guards Haro and Williams that Tucker instigated the No-
vember 14 incident by shoving Haro and that the striker deliber-
ately threw his picket sign at Haro, striking him on his face? In
order to resolve this quandary, assessments of the comparative
credibility of the several witnesses must be undertaken, and, in
this regard, my perception was, at the close of the hearing after
observing each witness, and remains, after consideration of the
record as a whole, that several of the witness, including the par-
ticipants in the altercation, dissembled as to all or significant as-
pects of their respective testimony either in their own self-interest
or in order to enhance the legal position of the party on whose
behalf the witnesses testified. Specifically, as I viewed his testi-
mony, Michael Tucker failed to exhibit the demeanor of an en-
tirely candid and trustworthy witness. Further, aspects of his ac-
count of his altercation with Haro and its aftermath–in particular,
where it occurred, where he threw his picket sign, and who told
him to leave the area of the picketing–were contradicted by other
witnesses, who testified on behalf of the General Counsel, and,
during cross-examination, Tucker admitted that an aspect of his
trial testimonial was at variance with his own sworn testimony at
his unemployment compensation hearing. However, two signifi-
cant facets of Tucker’s testimony–who instigated the altercation
and Haro’s actions upon picking up the nail–were respectively
corroborated by former striking employees, Dennis Schoeny and
Richard Lavarda, and the latter two witnesses impressed me with
ELLER MEDIA CO. 1293
their candor while testifying. Therefore, as he did not appear to be
an inherently dishonest witness, I am confident in relying upon
Tucker’s own version of events to the extent that his was corrobo-
rated by more reliable accounts. Earl Brendlinger’s testimonial
demeanor appeared to be that of a mendacious witness and, given
the inability of either former union steward, Thomas Skaggs, the
individual to whom Brendlinger was assertedly speaking at the
time of the altercation, or Schoeny to place the union official at the
scene of the picketing at the time of the incident, one may rea-
sonably question whether he truly witnessed what occurred and
whether he was even at the site of the picketing when the alterca-
tion occurred. In these circumstances, I place no reliance upon
Brendlinger’s putative corroboration of Michael Tucker’s version
of events.
Pedro Haro failed to impress me as testifying in a candid man-
ner, and not only was his testimony blatantly internally inconsis-
tent, particularly concerning with which hand Tucker assertedly
deliberately threw his picket sign at him and what side of his face
was hit by the passing picket sign, but also Christina Delgadillo
contradicted Haro as to whether he held a hand to his face while
speaking to the police and significant aspects of his version of
events were utterly contradicted by James Williams, who earlier
had offered ostensible corroboration for Haro in his incident report
and sworn statement, documents obtained by Respondent during
its investigation of the altercation and relied upon by Respondent
for its decision to terminate Michael Tucker. With regard to the
credibility of Williams, whose testimonial demeanor likewise was
that of a disingenuous witness, I note that, while he professed to
have been standing “next” to Tucker, no more than three or four
feet to his right, Haro averred that he never saw Williams during
his confrontation with Tucker. Moreover, while Haro maintained
that Tucker instigated the incident by shoving him with a hip and
pushing him with both hands, that Tucker threw his picket sign at
him with one hand (he was inconsistent as to which), and that he
was struck on the face by the bottom end of the stick part of the
picket sign, Williams, who presumably had a clear view of what
occurred from his position next to Tucker, contradicted Haro,
testifying that Tucker merely “nudged [Haro] with his knee,”
Tucker used both hands to throw the picket sign an “ax-type
movement,” and Haro was struck by “the top edge” of the placard
part of the picket sign. Given the less than honest testimonial
demeanor of each and their utterly conflicting testimony, I am
unable to, and do not, place any reliance upon the testimony of
either security guard as to what occurred during the altercation
between Haro and Tucker.
Finally, in my view, the most candid and straightforward ac-
counts of the confrontation were those of the three former striking
employees—Skaggs, Schoeny, and Lavarda. Each impressed me
as testifying honestly as to his recollection of what occurred on
November 14, and, while not entirely consistent, their respective
testimony was, for the most part, mutually corroborative.
Accordingly, I shall rely upon their versions and, wherever cor-
roborated by either Skaggs, Schoeny, or Lavarda, Tucker’s ac-
count in making findings regarding what occurred during the con-
frontation between the alleged discriminatee24 and Haro.
Based upon the foregoing, I find that, early in the morning on
November 14 in order to sweep nails, which were on the ground

24 I recognize that the respective accounts of Skaggs, Schoeny, and
Lavarda contradict aspects of Tucker’s version of events but attribute
this to the honesty of Skaggs, Schoeny, and Lavarda and to Tucker’s
less than entirely candid testimony and not to any dishonesty, while
testifying, by the three current employees.
and which had caused damage to the tires of workers, who had
crossed the striking employees’ picket line, security guard Haro
walked through the entrance gate and out to the area of 23rd Street
and the intersection of the public sidewalk and Respondent’s
driveway, menacingly carrying a broom like a club as he maneu-
vered through the picketing strikers. I further find that, evidently
finding a nail on the ground next to where Michael Tucker was
standing, either with his hands or body, Haro pushed or shoved25
Tucker from the spot on which he stood, told Tucker to “get out of
the way,” knelt, and picked up a large nail; that, upset by the
guard’s perceived insolence, Tucker asked, “[w]hat . . . the fuck
are you doing across the line;” that Haro arose and held the nail
close to Tucker’s face with his left hand and said, “I got you;”26
that, face to face and only a few feet apart, Tucker and Haro then
began an angry exchange of curse words; and that, in response to
being called a “punk” by Tucker, Haro responded that “this punk
is going to kick your ass . . . .” At this point in their confrontation,
I find that Tucker, who had been holding his picket sign in his left
hand, threw his placard down and to his left side, with the sign
landing on the driveway,27 prepared himself for a fight, and said,
“[C]ome on and kick this old man’s ass;” that Haro replied,
“[Y]ou want a piece of me, old man;” and that, after Tucker re-
sponded, “[G]o ahead . . . if you think you can handle it,” the se-
curity guard abruptly ended the altercation by backing away and
onto Respondent’s property.
In short, based upon my above-discussed credibility resolu-
tions, I am convinced that Michael Tucker did not provoke his
altercation with security guard Haro. Moreover, I believe that,
while he surely cursed and assumed a truculent attitude after Haro
shoved him, Tucker’s reactions were understandable given the
tense and antagonistic atmosphere, which normally pervades a
picket line. I further believe that the alleged discriminatee threw
his picket sign down and to his left side only in response to what
he apparently reasonably construed as a challenge to fight from
Haro28 and that he did not deliberately throw his placard at the
latter—in the circumstances, a nonsensical act. One question
remains—was Haro somehow struck in the face by Tucker’s
thrown picket sign? In this regard, two immediate conclusions are
warranted. First, if, indeed, the picket sign did strike Haro, inas-
much as I believe Tucker clearly intended to throw the picket sign
down and to his left side, in other words–away from Haro, such
25 Whether Haro intentionally shoved Tucker in order to establish his
control over the situation or merely did so in an effort to pick up the
nail is a matter I need not resolve.
26 While Haro, of course, denied that he used such language, James
Williams contradicted Haro, stating that, at one point, during the con-
frontation, Haro did say the words, “You’re in trouble . . . I got
you. . . .”
27 Given the corroborating testimony of Skaggs, Schoeny, and
Lavarda on this point, I credit Tucker that he did not throw his picket
sign at Haro. In this regard, given the short distance between them and
the size of the picket sign, I agree with counsel for the General Counsel
that had Tucker thrown the picket sign straight ahead and at Haro, he
could not have avoided hitting Haro flush in the face with the placard.
Haro and Williams are specifically discredited as to the direction in
which Tucker threw his picket sign.
28 Such an inference is well supported in the record. Thus, I credit
Schoeny’s testimony that, only 20 minutes before the Tucker-Haro
confrontation, the latter had warned him that, if he did not stop tapping
the company fence with his picket sign, “he would make me stop. . . .”
Moreover, my impression of Haro, while he testified, was that of a
belligerent individual, one who would not shy from a physical confron-
tation. Perhaps his own good sense or the fact that he in the midst of a
group of hostile strikers caused him to back off on this occasion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1294
would have obviously been an inadvertent result–an accident.29
Also, if the thrown picket sign did strike Haro in his face, it must
have barely grazed his chin, and he was not hurt. Thus, the record
evidence is that Haro gave no indication of having been hit by the
picket sign, and Haro himself conceded that it was “nothing” and
“no big deal.” In any event, I do not believe that the picket sign
did, in fact, hit Haro in the face. Neither Pedro Haro nor James
Williams was a reliable witness; hence, the only credible record
evidence herein is that the thrown picket sign did not strike the
former in his face. Indeed, the only support for a contrary finding
is that, immediately after police officers arrived at the Respon-
dent’s facility, Haro informed them he had been struck on the face
by the picket sign. In such circumstances, an argument may be
made that Haro would not have fabricated such a story for the
police, and, therefore, it must be true. In my view, however, based
on the record as a whole, including the credited testimony that
Tucker flung his picket sign to the ground and away from Haro
and that the security guard manifested no sign of being struck by
the picket sign, to find that the picket sign struck Tucker on the
cheek or chin would be to engage in undue speculation, and I shall
not engage in such an exercise. Put another way, as I believe Haro
prevaricated before me after being given the oath, I see no reason
why he would not have done likewise during the police investiga-
tion—at a time when he was not sworn to tell the truth—in order
to further Respondent’s interests herein.
Based upon the foregoing and the record as a whole, I conclude
that Michael Tucker did not engage in the picket line misconduct–
provoking and engaging in a fight and physical confrontation with
security guard, Pedro Haro, including shoving Haro and deliber-
ately throwing a picket sign at him, striking the security guard in
his face, which acts formed the asserted basis for his termination,
and that, at most, what occurred was a heated, verbal altercation
between Tucker and Haro, which the latter had the good sense to
end.30 Accordingly, I find that Respondent violated Section
8(a)(1) and (3) of the Act by discharging employee Michael
Tucker on November 3031 and, thereafter, failing and refusing to
reinstate him to his former position because he participated in an
economic strike against Respondent.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.

29 This is not an insignificant matter as Fred Garcia conceded that he
would have reached a different result if, in fact, the thrown picket sign
had accidentally struck Haro.
30 I need not determine whether the verbal altercation would have
constituted sufficient cause for termination. Thus, Fred Garcia, who
made the decision to terminate Tucker, was clear that “there was a fight
and that’s why [Tucker] was terminated.” In such circumstances, it
would be improper for me to substitute my judgement for that of Re-
spondent, and, evidently, Respondent did not consider a mere verbal
confrontation as sufficiently serious enough to warrant termination.
Cornell Iron Works, 296 NLRB 614, 615 (1989); Ornamental Iron
Work Co., 295 NLRB 473 at fn. 1 (1989).
31 I have considered that Michael Tucker left the picket line shortly
after his verbal altercation with Haro and that, later, he drove away
after being informed that the police were about to arrest him for alleg-
edly striking Haro with his picket sign, and, while I recognize that a
reasonable argument can be made that Tucker’s behavior was indica-
tive of an admission of having engaged in the alleged misconduct, in
light of my belief that what occurred herein was not a physical fight or
confrontation and that such was provoked by the conduct of security
guard Haro, I shall not draw such an inference from Tucker’s question-
able behavior.
2. The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By terminating employee, Michael Tucker, on November
30, 1996, and, thereafter, failing and refusing to reinstate him
because he participated in a concerted work stoppage and eco-
nomic strike against it, Respondent engaged in acts and conduct
violative of Section 8(a)(1) and (3) of the Act.
4. Respondent’s unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in serious unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the Act,
I shall recommend that Respondent be ordered to cease and desist
from engaging in such conduct and that it be ordered to take af-
firmative actions designed to effectuate the policies of the Act. I
have found that Respondent unlawfully terminated employee
Michael Tucker on November 30, 1996, and, since said date, has
failed and refused to reinstate him to his former position of em-
ployment. Accordingly, I shall recommend that Respondent be
ordered to offer to Tucker full reinstatement, within 14 days of the
Order herein, to his former position, discharging, if necessary, any
replacement hired or assigned to perform his work since his ter-
mination, and, if said position no longer exists, to a substantially
equivalent position without prejudice to his seniority or other
rights and privileges. I shall further recommend that Respondent
be ordered to make Tucker whole for any loss of earnings or other
benefits32 by reason of the discrimination against him in accor-
dance with the Board’s decision in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest computed as in New Horizons for
the Retarded, 283 NLRB 1173 (1987).33 Finally, I shall recom-
mend that Respondent be ordered to post an appropriate notice to
its employees.
On these findings of fact and conclusions of law and the entire
record I issue the following34
ORDER
The Respondent, Patrick Media Group, d/b/a Eller Media
Company, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging its employees and failing and refusing to rein-
state them because they participated in a concerted work stoppage
and economic strike against it.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative actions necessary to effectu-
ate the policies of the Act.
32 Counsel for the General Counsel requests that I order Respondent
to make Tucker whole for his expenses in paying health insurance
premiums, which he would not have had to pay but for his unlawful
discharge. The cases, which counsel relies upon for support, are com-
pliance cases, and I shall leave it to the compliance stage herein for a
determination whether Tucker is entitled to the requested reimburse-
ment.
33 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
ELLER MEDIA CO. 1295
(a) Within 14 days of this Order, offer Michael Tucker full
reinstatement to his former position, discharging any replace-
ment employees hired or assigned to perform his work or, if the
position no longer exists, to a substantially equivalent position
without prejudice to his seniority or any other rights and privi-
leges previously enjoyed.
(b) Make Michael Tucker whole, with interest, for any loss of
earnings and benefits suffered as a result of its discrimination
against him in the manner set forth in the remedy section of this
decision.
(c) Within 14 days from the date of this Order, remove from its
files any reference to the unlawful termination of Michael Tucker
and, within 3 days thereafter, notify him, in writing, that this has
been done and that the termination will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under terms of this Order.
(e) Within 14 days after service by the Region, post at its facil-
ity in Los Angeles, California, copies of the attached notice
marked “Appendix.”35 Copies of the notice, on forms provided by
the Regional Director for Region 31, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained by for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Respon-
dent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and

35 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
former employees employed by the Respondent at any time since
December 2, 1996.
(f) Within 21 days after service by Region 31, file with the Re-
gional Director a sworn certification of a responsible official, on a
form provided by the Region, attesting to the steps that the Re-
spondent has taken to comply.
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.

WE WILL NOT discharge and fail and refuse to reinstate our em-
ployees because they participated in a concerted work stoppage
and economic strike against us.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer to Michael Tucker full reinstatement to his former job, dis-
charging any replacements hired or assigned to perform his work
or, if the position no longer exists, to a substantially equivalent
position without prejudice to his seniority or other rights or privi-
leges previously enjoyed.
WE WILL make Michael Tucker whole, with interest, for any
earnings and benefits lost as a result of our discrimination against
him.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful termination of Mi-
chael Tucker and, WE WILL within 3 days thereafter, notify him, in
writing, that this has been done and that the terminations will not
be used against him in any way.

PATRICK MEDIA GROUP D/B/A ELLER MEDIA
COMPANY