Giddings & Lewis, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1979

240 N.L.R.B. 441 (N.L.R.B. 1979)

GIDINGS &t I.L-WIS. INC.` 441 (;iddings & LeIwis, Inc. and I)istrict No. 10 and lodge No. 1402, of International Association of M.achin- ists and Aerospace Workers, AFL-CIO and The Permanent Replacements at G;iddings & Lewis.' Party in Interest Giddings & Lewis, Inc. and District No. 10 and lAdge No. 1402, of International Association of Machin- ists and Aerospace Workers, AFI-CIO Giddings & Lewis Machine Tool Co. and Paul E. Er- hard, Petitioner and The International Association of Machinists and Aerospace Workers, Lodge 1402 of District 10, AFL-CIO Giddings & Lewis, Inc., Employer-Petitioner and Lodge 1402, International Association of Machin- ists and Aerospace Workers, AFL-CIO. Cases 30 CA-3950. 30-CA-4214, 30-CA-4306, 30-CA- 4367, 30-RD-388, and 3(0RM-367 January 30, 1979 DECISION AND ORDER BY CHIAIRMAN FANNING; AND MEMBERS JENKINS AND PENELI.O On August 2, 1978, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, District No. 10. and Lodge No. 1402, of the International Association of Ma- chinists and Aerospace Workers, AFL-CIO (herein- after called the Union) filed exceptions. The Respon- dent thereafter filed exceptions and a supporting brief and a motion to reject the Union's exceptions. Subsequently, the General Counsel, Respondent. and the Union entered into a joint stipulation in settle- ment of those portions of the above-captioned cases with respect to the eight named employees who were found by the Administrative Law Judge to have been discriminatorily discharged, inc:uding the find- ings and conclusions with respect to the four employ- ees 4 which were the sole basis for Respondent's ex- ceptions. The name of the part) in Interest appeirs i amended at the hearing he Respondent has moed that the Board reject the L n,.ln'. exceptions because. nter ala, he 5 fail to set forlh speclftcall Ithe qllest.in of proce- dure. fact. law., r polics t[o hich exreptiolns iar tdken., ind ffl Ito nltif tile Board f the grounds for it, ex.ceptionl r the rportlon ollf the recold reelld on in uppoit of Its psltlon Sec 1t12 46(h of the Board's Rules o.rl RcLu- latitols, Serie"s it s ealllilded. siiies thlt ;in exception whi.h dloe, ll compls wiih the rcquireltennts . Ih.itt sect.r n l . is he tlcd.I rll d.l " ,] thiugh the nmon' exceptions do niot fullx cO.npl\ lthl IIhe requlicnmcllens f the rule, we ha.e decided nt to. disregard thenl it Ilhc sufllicientls deig- nate the porlions of the [)ecis ln ,e I ht nl i claml ed werec cr',TleItl Hi,, (;e,cris 4t iltl.l tn t In ( illrtla, 224 NI RB R tH ,- I )7,ti Robert Rock. l;lain Jelks. Io, [Deer. Joe flIdiuf. I).lc Pelhlc, Rger Jbher. Arnold Rirff, .. , ind )a sd HBel Jim Dleer Je Baldauf [).ac I'eccblcs. alnd Rgcr .1,Ibr 240 NlRB No. 64 Pursuant to the provisions of Section 3(h) of the National Labor Relations Act. as amended, the Na- tional Iabor Relations Board has delegated its au- thority in this proceeding to a three-nliember panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findingss and conclusions of the Administrative l.aw Judge as modified herein. In the joint stipulation, the General Counsel Re- spondent and the Union stipulated that, upon ap- proval by the Board, the eight named employees who were found by the Administrative Law Judge to have been discriminatorily discharged would be accorded the mutually agreed-upon remedy specified below. ° The Board, having considered the matter, is of the view that the parties' joint stipulation will avoid fur- ther litigation and effectuate the purposes of the Act. Therefore, the joint motion regarding the named dis- criminatees is hereby granted. Accordingly. as Re- spondent has agreed to withdraw its exceptions upon the Board's approval of the stipulation and as the Union's exceptions are without merit except as other- wise noted in the remedy section below, the Adminis- trative Law Judge's Decision and recommendations are hereby revised to reflect the same. REMI-.DN Having found that the Respondent committed cer- tain unfair labor practices, it shall be ordered to cease and desist therefrom, and, because of the na- ture of the violations found, to cease and desist from. in any other manner, interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. The Respon- dent shall also take certain affirmative action de- The tInion hs excepted Io certain credihilit findings made b the Adminstralle l.aw Judge It s the Board's established pohlc not ti oer- rule ian i Adnlinstranise La Jidge's resolutions ith respect Io credlblhts unle-s the lear preponderance f all of the reles.ant eidence cn\l nces ls that the resolulions are incorrect. Slandard Dr Ht1/! ProIhl. /1o1 91 NIRB 544 (1950). enld 188 .2d 362 3d (r. 19 5 i). We ha,e carefull exn.lmlned the record Ind find n basis for reversing hs finding., In the first sentence of sec 111i(().(I) of his Decistln. the Administr.at e La, Judre fund that the srike coimmenced n or about October I, 97t) Ihe rec rd ndicates tha.t the strike began n r aibout ()October . 175' In his dscussion of Intcidelnt Ill.Ing (ierrs Wonser. he Xdnnillltrittse I ., Judge refers to an ffice Il~erllooking the exectutse prking lot I he rc rd re eals thati the ffice sIt referred n s c aped bhs tritest & Krrel l Iot V. llter \V hilwe c ree' Ith the \di tinsllriltlrtc I l Jd111 I h.t Nlk -\lI1CI Ct] ., ld In mllsco ndlulct it JIul 30t. 1976 ,fr l4lih ;I cer nitllrt th.lt hli flschlrg.c as v. arrliied Respllndent. wc do tlot rcl o his finidiltS \Iitl Ire t the alleged asilillt lIi . p1ce officer ait the picket hincl II \liLt s 176 Ihe n edence offered in supprt if this allIllllhn .1 s'tit elll If fllni. whlch Is 1 I ohslure ilt reeal whelher hie, intenlntl;lls sirtltk tlte ifl( Cll 1 Is pillsted flI t, ell it n AHbler ., II t .tre, ed Li a resil t li Ie ill d] ilt. "i 1d tlc , p ltc ffl tcr i II t t tIfs .it (he h ct I ll S1ix f fle C' lil cTnpl.es ntt i dicl ill t l.' w r [ f ir;11tll i. lx .. d I IVNlli I1 cillMltellcielll t Rplclcnl- GiDDINCS & LEWIS. N. 41 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed to effectuate the policies of the Act. Having found that the Respondent violated Sec- tion 8(a)(1) and (3) of the Act by terminating Robert Rock, Elaine Jenks, Tom Deer, Joe Baldauf, Dave Peebles, Roger Jaber, Arnold Roloff, Jr., and David Bell, and having found that the stipulation of the parties concerning the above-named employees ef- fectuates the purposes of the Act, we will order Re- spondent, pursuant to the terms of said stipulation, to offer to Elaine Jenks and Arnold Roloff, Jr., im- mediate and full reinstatement to the jobs to which they would have been recalled if it had not been for the discrimination against them or, if those jobs no longer exist, to substantially equivalent jobs; and to make the following named employees whole for any loss of pay, benefits or other rights or privileges they may have suffered as a result of the discrimination against them, by paying them the amounts set forth opposite their respective names, and, except for Ar- nold Roloff, Jr., and Elaine Jenks, by paying them pension benefits as if they had terminated their em- ployment as of October 22, 1978; and regarding Ar- nold Roloff, Jr., and Elaile Jenks, by paying them whatever pension benefits similarly situated employ- ees may be entitled to, with interest: and privileges they may have suffered as a result of the discrimination against them, together with inter- est. Backpay shall be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corpora- tion, 231 NLRB 651 (1977). 7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Giddings & Lewis, Inc., Fond du Lac, Wisconsin, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in or activities on behalf of District No. 10 and Lodge No. 1402, of International Association of Machinists and Aero- space Workers, AFL-CIO, or any other labor organi- zation, by terminating employees because they en- gaged in an economic strike. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Elaine Jenks and Arnold Roloff, Jr., immediate and full reinstatement to the jobs to which they would have been recalled if it had not been for the discrimination against them or, if those jobs no longer exist, to substantially equivalent jobs. (b) Make the following named employees whole for any loss of pay, benefits, or other rights and privi- leges they may have suffered as a result of the dis- crimination against them by paying them the amounts set forth opposite their respective names, with interest; and, except for Arnold Roloff, Jr., and Elaine Jenks, by paying them pension benefits as if they had terminated their employment as of October 22, 1978; and by paying Arnold Roloff, Jr., and Elaine Jenks whatever pension benefits similarly situ- ated employees may be entitled to: Robert Rock Elaine Jenks Tom Deer Joe Baldauf Dave Peebles Roger Jaber Arnold Roloff, Jr., David Bell $10,000.00 $10,352.95 $11,000.00 $13,000.00 $10,000.00 $10,000.00 $10,856.53 $ 3,673.36 The Administrative Law Judge found in his con- clusions that Respondent failed to present any evi- dence to justify the January 4, 1977, discharge of strikers Harry Kuenzi, Larry Schibline, and Paul Ziegelbaur. However, he failed to provide for them in his remedy on the grounds that they had already been reinstated on the preferential hiring list, as of June 22, 1977. However, these employees would have been placed on the preferential hiring list on January 4, 1977, but for Respondent's unlawful discharge of them. As the record does not conclusively show that these three individuals would not have been rein- stated prior to June 22, 1977, there remains the possi- bility that these three employees might have been re- called had it not been for their discharges. Accordingly, we shall order that Respondent offer them immediate and full reinstatement to the jobs to which they would have been recalled, if they would have been recalled prior to their actual reinstate- ments on the preferential rehire list, and make them whole for any loss of pay, benefits, or other rights Robert Rock Elaine Jenks Tom Deer Joe Baldauf $10,000.00 $10,352.95 $11,000.00 $13,000.00 7See, generally. Isis Plumbing & Heaiing Co. 138 NLRB 716 (1962). This additional modification to the Administrative Law Judge's recom- mended remedy is not in contravention of any terms of the joint stipulation regarding the other named discriminatees. The stipulation expressly states that it is "in settlement of only those portions of the ahove-captioned cases dealing with the discharges or' the eight named employees. GIDDINGS LEWIS, INC. 443 Dave Peebles $10,000.00 Roger Jaber $10,000.00 Arnold Roloff, Jr., $10,856.53 David Bell $ 3,673.36 (c) If Harry Kuenzi, Larry Schibline, and Paul Ziegelbauer would have been recalled prior to June 22, 1977, but for the discrimination against them, of- fer them immediate and full reinstatement to the jobs to which they would have been recalled or, if those jobs no longer exist, to substantially equivalent jobs: and make them whole for any loss of pay, benefits, or other rights and privileges they may have suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this Deci- sion, with interest. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll, social security, personnel records, and re- ports, timecards, recall procedure records and re- ports, and all records necessary to analyze the amounts of backpay due under the terms of this Or- der, or analyze who ought to be reinstated pursuant to this Order. (e) Post at its plants in Fond du Lac, Wisconsin, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Re- gional Director for Region 30. after being duly signed by an authorized representative of the Re- spondent, shall be posted by the Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other ma- terial. (f) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that Cases 30-RD-388 and 30-RM-367, be remanded to the Regional Director. In the event that this Order is enforced h\ .I judgmenl iof a tnitcd State Court of Appeals. the words in the notlice realdiln Posted h, Order of [tie National labor Relations Board" shall read "Polted Pursulnl Io a .Judg- ment of the niled States (Court of Appe:ll I nforcilf ian ()rder f the National Iashir Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or ac- tivities on behalf of District No. 10 and Lodge No. 1402, of International Association of Ma- chinists and Aerospace Workers, AFL-CIO, or any other labor organization, by terminating employees because they engage in an economic strike. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL offer to Elaine Jenks and Arnold Ro- loff, Jr., immediate and full reinstatement to the jobs to which they would have been recalled if it had not been for discrimination against them or, if those jobs no longer exist, to substantially equivalent jobs. WE WILL make the following named employ- ees whole for any loss of pay, benefits, or other rights and privileges they may have suffered as a result of the discrimination against them, with interest. The following named employees, with the exception of Elaine Jenks and Arnold Ro- loff, Jr., are entitled to but have waived their rights to reinstatement: Robert Rock Dave Peebles Elaine Jenks Roger Jaber Tom Deer Arnold Roloff, Jr. Joe Baldauf Dave Bell WE WILL offer to Harry Kuenzi, Larry Schib- line, and Paul Ziegelbauer immediate and full reinstatement to the jobs to which they would have been recalled prior to June 22, 1977, if any, if it had not been for the discrimination against them, or, if those jobs no longer exist, to sub- stantially equivalent jobs, and we will make them whole for any loss of pay, benefits, or other rights and privileges they may have suf- fered as a result of the discrimination against them, with interest. GIDDIN(;S & LEWIs, INC. DECISION STATEMENT OF THE CASE THOMAS R. WILKS. Administrative Law Judge: This case was heard at Fond du Lac, Wisconsin, on various dates between August 29, 1977, and January 12. 1978. GDDINGS & LEWIS, INC. 43 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The original charge was filed on January 7, 1977, and first, second, and third amended charges were filed on Jan- uary 14, January 20, and February 22, 1977, respectively, by District No. 10 and Lodge No. 1402. of International Association of Machinists and Aerospace Workers, AFL ('IO thereinafter referred to as Union), and the Regional Director for Region 30 of the National Labor Relations Board issued a complaint and notice of hearing on June 30, 1977, in Case 30-CA-3950, alleging violations of Section 8(a)(2), (3), (5) and derivative 8(a)(1) violations of the Na- tional Labor Relations Act, as amended. A charge was filed on June 23, 1977, by the Union, and the Regional Director issued a complaint and notice of hearing on July 29, 1977, in Case 30-CA-4214, alleging violations of Sec- tion 8(aX3) and (1) of the Act. These cases were consoli- dated for hearing by the Regional Director on August 2, 1977. A charge was filed on September 27, 1977, by the Union, and the Regional Director issued a complaint on November 1, 1977, in Case 30-CA-4367, alleging viola- tions of Section 8(a)(3) and (1) of the Act. Case 30-CA 4367 was consolidated for hearing with Cases 30-CA-3950 and 30-CA-4214 at hearing on November 5, 1977. A charge was filed on August 19. 1977, by the Union, and the Regional Director issued a complaint on Septem- ber 26, 1977, in Case 30-CA 4306, alleging violations of Section 8(a)(3) and (I) of the Act. This case was consoli- dated on September 27, 1977, at the above hearing, with Cases 30-CA 3950, 30-CA-4214, and 30-CA-4367, but was heard after the completion of all the evidence in the other cases. Pursuant to a petition filed on September 23, 1976, and a Stipulation for Certification Upon Consent Election execu- ted by the parties on October 13, 1976, an election was conducted in Case 30-RD--388, on October 27, 1976. Chal- lenges were sufficient to affect the results of the election. On November 18, 1976, the Regional Director issued a no- tice of hearing to resolve the issues raised by the challenged ballots. A hearing in Case 30-RD 388 was convened on November 29, 1976, before a hearing officer designated by the Regional Director. That hearing was postponed indefi- nitely on January 10, 1977. pending the resolution of the charges filed in Case 30-CA 3950. The processing of the Employer's petition for an election in Case 30-RM 367, filed on February 24, 1977. was also blocked as a result of the aforesaid charges. On July I. 1977, the Regional Director concluded that inasmuch as the complaint in Case 30-CA---3950. alleged, inter alia, unlawful interference and assistance by the Em- ployer in the processing of the decertification petition thereby engaging in conduct inconsistent with its obliga- tion to bargain in good faith, and inasmuch as the Region- al Director further concluded that the allegations con- tained in the complaint are related to a determination as to whether a legitimate question concerning representation had been raised in Cases 30 RD--388 and 30 RM 367, the Regional Director therefore issued an Order consolidating these cases for hearing, ruling, and a decision b an admin- istrative law judge.' Ihe only issue to bhe litigated before me, therefore, with respect to the representation case, is whether a question of representation could have been raised. The issue is neces- sarily resolved by the disposition of the 8(a)(2), (5), and derivative 8(a)(l) allegations in Case 30-CA-3950. With respect to the 8(a)(2) and 8(a)(5) allegations, the issues raised are whether the Respondent engaged in con- duct whereby it caused and assisted the decertification ef- fort of employees who had previously been hired as strike replacements and conduct "which utilized the illegally in- spired and assisted petition as a means to avoid bargain- ing." With respect to the balance of the allegations in the com- plaint, the issues are: 1. Whether Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging the following employees because of their activities on behalf of the Union (Cases 30-CA 3950 and 30-CA-4214): Nick Abler Harvey Ackerman Joe Baldauf Ed Ballwanz Herb Berghandler Len Burton Tom Deer Bob McGrath Al Green John Huttar Roger Jaber Elaine Jenks Harry Kuenzi Jerry Meisner Dennis Mertens Pete Meyer Corrine Nielson Dave Peebles Robert Perron Robert Rock Arnold Rolloff, Jr. Larry Schibline Maurice Schmuhl Gerry Wonser Paul Ziegelbauer 2. Whether Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily suspending and discrimina- torily discharging its employee David Bell because of his activities on behalf of the Union. (Case 30-CA-4367.) 3. Whether Respondent violated Section 8(a)(3) and (1) of the Act by refusing to place employees Glen Dille, Nor- man MacArthur, and Fay Christ on the post-strike prefer- ential rehire list and by failing to recall employees Eugene Becker and Ed Smith because of their engagement in union activities. (Case 30-CA-4306.) All parties were given full opportunity to participate, to produce competent, material, and relevant evidence, to ex- amine and cross-examine witnesses, to argue orally, and to file briefs. On March 24, 1978, counsel for the General Counsel moved to withdraw that portion of the allegations in Case 30 CA 3950, consisting of the alleged conduct violative of Section 8(a)( ), (2), and (5) of the Act. The Charging Party filed a motion in opposition thereto with supporting briefs. The Respondent submitted a brief in support of General Counsel's motion. On April 26, 1978, the Respondent moved to reopen the record for the receipt of certain documentary evidence. Ihese post-trial motions will he discussed infra. riefs were filed with respect to the 8(a)(3) issues on April 26, 1978. RcKlpondent's appeal of the Regilona; l i)lrecitor's dclSloll 11 on,olidate Ihc,c l.asts a denied h the Board prior toi the opening of the hearing At he hillllg Rcpiondenl iloi cd t I e cl tile represecnlatlon Lascs I hlt nIII- I,1 '.l d lletnied GIDDINGS & IWIS, INC. 445 IUpon the entire record and my observation of the wit- nesses. I make the following: FINOINS OF FAC( AND CN('I IISIONS OF I.AsI I JRISSDI('I ION Giddings & Lewis, Inc.. herein Respondent, is a Wiscon- sin corporation engaged in the manufacture of machine tools at its main plant and headquarters located in Fond du lac, Wisconsin, at various other manufacturing facilities located in Fond du Lac, and in other cities in Wisconsin. During a representative period, Respondent shipped and sold goods and services valued in excess of $50,000 from its Fond du Lac, Wisconsin, facilities directly to points locat- ed outside the State of Wisconsin. Respondent is, and has been at all material times, an employer engaged in commerce within the meaning of Sec- tion 2(2). (6), and (7) of the Act. II THE I.ABOR OR(iANIZAIION At times material herein, the Union has been, and is, a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTI('ES A. Background The Respondent and the Union have maintained a col- lective-bargaining relationship for 40 years. during which time a succession of collective-bargaining agreements were negotiated and implemented, and the terms of which cov- ered Respondent's production and maintenance employees in Fond du Lac, Wisconsin. The most recent negotiations for a new contract com- menced in 1975. A prime issue in those negotiations proved to be Respondent's desire for a modification of the incen- tive pay plan. An economic strike commenced on October 1, 1975. that endured until November 20, 1976. The Respondent main- tained limited operations until April 26, 1976, when strike replacements were hired and commenced employment. Thereafter, violence erupted at the picket line in Fond du Lac, particularly in late April and early August 1976. B. The 8(a)(1), (2). and (5) Alegations The General Counsel originally contended that the strike was converted into an unfair labor practice strike in Au- gust 1976, in that the strike was prolonged by the conduct of Respondent in unlawfully initiating and assisting the efforts of certain strikers who had handed together and were identified as the replacement employees commitIce (herein committee). That unlawful conduct was not first alleged until well after the Regional Director had proceed- ed with the decertification petition that had been iled hb those replacement workers, well after an election had been conducted, and after a challenged ballot proceeding had convened. The cause for the Regional Director's issuance of com- plaint and the subsequent lengthy litigation endured in this case can be attributed to one individual. Paul Erhard. It seems that Mr. Erhard. who had been hired in May 1976 as a strike replacement, played the single, most effective role as the leader on behalf of the committee with respect to its formation, organization, the solicitation of funds from fel- low nonstrikers. and the preparation and filing of the de- certification petition: in December 1976, he decided to give evidence that his efforts were instigated by and aided by the Respondent. As conceded by all parties, the General Counsel's entire case with respect to the 8(a)(2), (5), and derivative 8(a)(1) allegations is premised on the testimony of Mr. Erhard. Many weeks of tortuous litigation revolved about the c.ed- ibility of Erhard. However, subsequent to the close of the hearing, the General Counsel, in his own words. "has un- dertaken a total review of the entire record." and has con- cluded that his primary witness, Erhard, is not credible.2 Therefore, the General Counsel moved to withdraw all allegations of the complaint relative to the 8(a)(2), (5). and derivative 8(a)(1) issues. Respondent joined that motion. The Charging Partv opposed the motion arguing that r- hard is, indeed, a credible witness. Its entire argument. hovever, was premised upon an exhibit that I had refused to accept into evidence, i.e., the results of a very limited. selective polygraph test administered to Erhard subsequent to the commencement of these proceedings. That test cen- tered about a few selected questions that were placed to Erhard by a polygraph expert. The Charging Party cited no precedent in its brief nor did it raise an) arguments not presented at the hearing.' The case cited by the Charging Party and argued by the Charging Party at the hearing was rejected by me then as not in point with respect to the admissibility of polygraph tests for the purpose of credibili- ty resolutions. I remain unpersuaded as to the arguments of the reliability of such tests in the judicial process. Fur- thermore, the polygraph test was too selective, in part in- conclusive, and of little probative value. Therefore, I find no reason to reverse my ruling nor to revise my rationale as explicated at the hearing.4 Accordingly, I pass upon the General Counsel's motion in light of the record as adduced with due regard to the Board's stricture that such motions are not to be granted peremptorily, on the mere behest of the General Counsel, but rather, only upon the application of judicial discretion) Erhard testified in great depth and detail as to the pro- cess in which he initiated and participated in the deccrtifi- I II (n-ld. (' Ol llnC ,l l- .alIuded Ito ci,i.rn. d.1 ,¢1,t ,',,, t ,,, I ,, R - I,, ', ( ,, ' i, A , i R,:W 'I , I. N, I , il [ RB | It i (. ,, ,, 9'; I,. 142 I1 R 'B 't< Ill, Up n teenie rcrd a d m bsrain ofte wt (IDDINS & LEWiS, INC. 45 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cation effort. He testified with respect to numerous inci- dents wherein he was encouraged, aided, and abetted by supervisors, and managers of the Respondent. Virtually all evidence of Respondent conduct vis-a-vis the decertifica- tion effort rested upon his testimony. That is to say, every step involved a head to head credibility conflict with the testimony of Respondent's agents. His testimony was also contradicted by the testimony of fellow replacement em- ployees, by nonunit employees, and others with respect to the central issue, and it was also contradicted with respect to subsidiary issues by the testimony of third parties, by expert testimony, and by documentary evidence. Upon a review of the testimony of all witnesses, I find the testimony of those witnesses who contradicted Erhard to have been infinitely more convincing, not only in de- meanor, but with respect to internal and external consis- tency and inherent probability as well. I find no need to recite herein a prolonged, exhaustive analysis of that testi- mony. Some comment, however, is warranted with respect to Erhard. a witness that the General Counsel originally proffered as one who deserved credence. By his own testi- mony, Erhard was revealed to be a highly biased witness and an inherently improbable witness, who, on past occa- sions, in collateral matters has engaged in misrepresenta- tions. In December 1976, Erhard had become "fed up" and decided to quit his employment. His relationship with fel- low committee members had turned sour as he was ac- cused by them of misappropriating funds collected by the committee and entrusted to him. However, he conceded that the prime reason for his quitting his employment was Respondent's refusal to pay him the amount he requested in compensation for damages suffered to his automobile in crossing the picket line. He quit his employment at a time when he had no prospect for future employment, when he was in financial distress and hounded by several creditors, and at a time when he was pressed for support payments to his second and current wife in a divorce proceeding.' He nevertheless quit his job, with alacrity contacted represen- tatives of the Union, and suggested to them that he could be the vehicle by which the Union could continue to main- tain their representation status by giving evidence against the Respondent. In the course of several meetings with agents of the Union, payment of money to him was ex- plicitly discussed. No firm commitment was made until, accompanied by union agents, he appeared at the Board Regional Office, and with union agents coming and going during the interview, he gave an affidavit adverse to the Respondent. Up to that point, the Union paid only for his motel room in Milwaukee and for his car rental from Fond du Lac to Milwaukee. Immediately after testifying, the Union committed itself to the payment to him of the sum of $4,000 and a promise of $225 per week. He testified that the $4,000 was to be given for the pur- pose of allowing him to relocate himself and his family from Fond du Lac, Wisconsin, to Washington, D.C. His weekly salary at Respondent's plant had been $225. He ' rhard adrnittedls Iold a fellow conilliitee member Aho accused hI1I11 f being invlsed in the decertification efforts for selfish reasoins. that l thi s right I'mr going t get -what I can oul of it" was paid $225 by the Union each week until a job was found for him by the Union at another employer. After giving his affidavit on January 7, 1977, he was accompa- nied by a union agent on a flight to Washington, D.C. His fare was paid for by the Union. He stayed at the Embassy Square Apartment Hotel for I week at the expense of the Union which also paid his telephone charges. He was pro- vided a rental car, gratis. A check for $4,000 was delivered to him at a meeting with a union agent in a cafeteria on Connecticut Avenue, in downtown Washington, D.C., on January 11 or 12, 1977. The benevolence of the Union continued thereafter. In March 1977, he was arrested upon a criminal charge filed by committee members. A union agent loaned him the money to pay $200 for the bond required of him by the court. No promissory note was executed for this loan. The same union agent loaned him $420 in April 1977 to pay his overdue rent bill. Erhard did give the agent a noninterest bearing note in return. The same union agent appeared with Erhard in court and later assisted him in obtaining an attorney. Erhard was questioned many times on direct and cross- examination as to the purpose of these gratuities. At one point, he testified that he "forgot" the purpose. Later, he could only respond that the $4,000 was an estimate of what his family relocation expenses might be. That Erhard had intended to relocate his wife and child in Washington, D.C., is patently improbable. At that time, a divorce pro- ceeding was pending and Erhard was subject to a tempo- rary order for support. Moreover, he had been living in motels under an assumed name and he had admittedly told one of the motel managers that he did so because he was involved in a divorce action. Following I week of residence at the Embassy Square Apartment Hotel, he rented basement space in a private home in Washington, D.C., for $150 a month which he explained was to be used for temporary "living" quarters. However, he admitted that he contacted his first wife in Washington, D.C., made no reference to her of his second wife and child, and told his first wife when he gave her money that there was a "lot more" money where that came from. Despite the fact that he had a family car in Wiscon- sin, he bought a second vehicle in Washington, D.C. In February 1977, Erhard decided to abandon his pur- ported plan to move to Washington, D.C., inasmuch as his second wife, about whom he testified that he loves "very On April 26. 1978. Respondent moved to reopen the record for receipt of a certified copy of the original judgment of conviction in State of Wiscon- von .P'ld Edward rhard. Circuit Court. Fond du Lac County. Wisconsin, Case 20894 Ifiled April 10. 1978). which disclosed that on February 2. 1978. Erhard was convicted of crimes of theft committed on February 15. 1977, within the meaning of Wisconsin statutes Sec 943.20(1)(a). and that his punishment includes imprisonment (stlaed by probation) for a term of up to 2 ears. he General Counsel's response stated that he has no objection to the receipt of the aforesaid exhibit. Rule 609 a) of the Federal Rules of Ev-iience provides for the admissibility of such evidence during cross-exam- inatul Ifiower. such evidence was not available at the time of cross- ex;mination. he (h.argiing Part has requested deferral of any ruling on his eldence "pending te outcome of an appeal." Rule 609(e). however, specifica;li pro ides that an ppeal does not render evidence of a conviction inadmissible Inasmuch as the credihility of Erhard is paramount. the evi- dence of cinviction is admissihle. undue delas would result upon deferral to Ihe a:lpeal process, .id vidence of an appeal is it;elf admissible under Rule t09(c)i I hereb girrnt Respondent's motion. GIDDING & LEWIS, INC. 447 much," had no desire to abandon her native Wisconsin where her family resides. However, when he moved back to Wisconsin he did not rejoin his second wife until sometime later. Although he also testified on further examination that he decided to move to Washington, D.C., for fear of his personal safety as a prounion witness, he gave no expla- nation as to why that was no longer a consideration. Al- though he testified that he told his second wife that he came to Washington, D.C., to obtain a private investigator's license, he failed to testify to any actual at- tempts to seek employment in the Washington, D.C., area. He therefore returned to Wisconsin, where the Union as- sisted him in finding employment. There was no evidence that he was ever asked by the Union to account for the $4,000 that was ostensibly tendered for his relocation ex- penses. The conduct of Erhard, according to his testimony, thus discloses that he was strongly in debt to the Union for its financial assistance which was rendered on a continuing basis. Assuming that such aid was rendered for the purpose of enabling him to relocate his family, Erhard's own testi- mony of an intent to actually relocate is unbelievable. In any event, assuming the most innocent intentions, such fi- nancial reliance by Erhard placed him in such a position of dependency as to remove him completely from the status of a dispassionate, objective witness. Rather, it cast him in the role of one possessed of a rather extreme bias. More- over, I found his demeanor to be totally unconvincing. He gave every impression of being stridently partisan, calculat- ing, and openly hostile to the Respondent. Al'hough at other times, he effected a nonchalance, he was pointedly evasive, obscure, hesistant, and confused when questioned as to the details of this financial arrangement with the Union. Although Erhard displayed great imagination in his de- tailed testimony of Respondent's alleged complicity in the decertification effort, I found him to be a venal, improba- ble, and discreditable witness. Moreover, in every critical area of his testimony, he was contradicted by witnesses who testified coherently, spontaneously, responsively, con- vincingly, and credibly. Accordingly, it is my conclusion that the General Counsel's representation that Erhard is not a credible wit- ness is supported by the record and concurs with my own evaluation. Therefore, the General Counsel's motion to withdraw allegations of Section 8(a)(l), (2), and (5) of the Act as alleged in Case 30-CA-3950 is hereby granted. C. The 8(a)(3) Allegations 1. Employees discharged for strike misconduct The parties stipulated that the employees set forth in the complaints in Cases 30-CA-3950, 30-CA-4214, and 30- CA-4367, participated in a strike against Respondent which had commenced on or about October 1,. 1976, and which had terminated on or about November 19, 1976: and that on November 19, 1976, an unconditional offer to return to work was made by them or by the Union on their behalf. 8 It was further stipulated that all of the aforesaid employees, with the exception of employee David Bell, were denied reinstatement and were discharged on or about January 4, 1977, on the alleged grounds that the' engaged in misconduct during the course of the strike. 9 There is no question as to the fact that violence erupted on the picket line at Respondent's Fond du Lac facilities particularly in late April and mid-August 1976. Serious and extensive incidents of mass picketing, assaults, batteries, threats, vandalism, and an all out harassment of strike re- placements occurred. Police reinforcements were com- pelled to make extraordinary efforts to control the crowds of strikers and strike sympathizers at plant entrances. The scene was described by Respondent's and General Counsel's witnesses alike as that of a near riot. Arrests were made and numerous persons were taken into police custo- dy. The Regional Director was constrained to file a 10() injunction petition with the Federal District Court and a temporary restraining order issued by that court against the Union in late August. The underlying unfair labor practice case filed against the Union was, however, settled. In Rubin Bros. Footwear, Inc., et al., 99 NLRB 610, 611 (1952), the Board held that: .. . the honest belief of an employer that striking em- ployees have engaged in misconduct provides an ade- quate defense to a charge of discrimination in refusing to reinstate such employees, unless it affirmatively ap- pears that such misconduct did not in fact occur.... [O]nce such an honest belief is established, the Gener- al 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 un- lawful conduct actually did occur. The Board has reiterated the holding of the Rubin Bros. case in numerous cases thereafter.' 0 The employer may premise his belief of striker miscon- duct upon reports of its guards and other written reports."'' However. the employer cannot rely upon a mere showing of general violence and destructive activity, but must in- stead rely on specific misconduct of the strikers whom it discharged.' 2 A passive participant in a joint act of miscon- duct. such as assault and battery. must assume some re- In e. of the .ithdraal of the 8(aH2) and (5) allegaiions. I conclude that the strike was an economic strike. E mployees Kuenzi. Schibline. and Ziegelbauer wee. according to stipu- laion of the parties. reinstated on June 22. 1977. and placed on the post- strike preferentiall rehire list. The Respondent offered no evidence of their mlsconduct. No facts were adduced concerning the circumstance o(If their reinsatement. Accordingly. I draw no inference from the fact of their rein- statlenenl However. hey were. according to the stpulaton. discharged on grounds that their strike ac(lsisv consisted of misconduct. In .a recent case. -D) lnip Dii)i,m ('t, ord ( inirt. In . 228 N R B 1484. In 3 (1977) the Board refused i) consider the Adminlstrail Ilw Judge's suggsted ilodificatllon of the Ruinl r. case. re. Ihat the Bo.lrd oru.t It impose upon Ihe cmploier "the bhurden o shiine gCuilt,. If tih emploscer flls lo aidsise the emploeec. ihin a reasonablce inic .ftcr hli employer learns of the alleged micondus t anid r of the acquilttall. thatll the incident m.a) Imperil the enploee's job" (228 NRB al 1492 ) | f ,.r, i. , ,i rmm - ,ro. In. 224 N R 91 , 97 ( 1976). enifd iin i, 574 2d 835 ilh ( r 19?X) f, A, Idiiitri. Ir, . 184 NI R 472 1970) ( ...io.r t . , Io ,. 1/. 2'1 \ R b14. los (1973): i ee ;ll-O ils f / ... u.... I .. riuu 1,- 1/ ,I 390. ft .11I( 'r 11Io i em ployNeS &it tEheS ex e t o N Cf e y47av d B e l 44X I).('ISIO()NS OlF NATIONAL L.,ABOR RLLAIO()NS BOARI) sponsibilit for the misconduct if that person fails to disas- sociate himself from it." An employer's failure to interview the strikers prior to discharge or to attempt to obtain their versions of misconduct is not unreasonable when the em- ployer, as in this case, has relied upon the accounts of per- sons who witnessed the misconduct. 14 Harold Maury, manager of industrial relations for the Respondent, conducted an investigation of the strike re- lated misconduct. He relied upon oral and written reports of supervisors and upon enumerable affidavits. He also re- viewed public records, which include arrest reports in cases of conviction, at police headquarters and at the office of the clerk of the court. He interviewed witnesses to various incidents and also interviewed superior officers in the po- lice department.'5 A professional photographer made a motion picture record of the misconduct at the picket line. The strike ended on November 20, 1976. On January 4, 1977, after the Respondent evaluated the alleged miscon- duct of 120 strikers, 50 strikers were discharged for strike misconduct. Other strikers were placed on a preferential recall list. On September 13, 1977, after Respondent ac- quired additional information, another employee, Bell, who had been recalled, was discharged for strike related misconduct. Twenty-six of those discharged for strike mis- conduct are alleged in the complaint to have been violative of the Act, and, according to the General Counsel, are enti- tled to be placed on the post-strike preferential rehire list.'6 a. The rock-throwing incidents On April 26 and 27, the first strike replacements entered the plant and the violence erupted. The replacements en- tered and left the plant as surging masses of pickets; sym- pathizers were restrained by the police as a barrage of stones, nails, and other missiles was unleashed. Fourteen of the 26 strikers that were terminated were allegedly involved in rock throwing incidents and were discharged in whole or in part for that conduct. John Huttar, Jerry Meisner, Dennis Mertens, Harvey Ackerman, and Bob McGrath A motion picture film record of picket line incidents was maintained by the Respondent. Subsequenitly. Respon- dent's supervisors reviewed those films and identified indi- viduals who had engaged in rock throwing incidents. Huttar, Meisner, Mertens. Ackerman, and McGrath were identified by four supervisors who had reviewed the film and still photographs as strikers who had thrown rocks at cars exiting from the main plant on the afternoon of April 26. explanation of this issue by Admintistllise l.aV Judge Michael () Miller. whose l)ecision was adopted hb the Board 1,.41an ( able West a I)tvi.swn of .Ah'an .tlunin.oi (fprtailtll 214 Nl.RB 236 (1974). 14 ,4ssoiatd (ro(er, ii) N/ England. Inc . 227 NL RB 12(1). 1(207 (1977L enfd in part, remanded it part, 562 1 .2d 1333 (st (ir. 1977) " Police (Chief eller testified that SM urs talked toi him seseril tilols : week during the elltire strike inld inquired ililt ionls of rilikel inIcollllhdii butl slo or replacement orke mlllconduct I he crilmilnal proseedil v ir- volsvig striker ieplicei ents ere all dismissed ho the coe lrt I htree were reinLstated t 1 piefeiciiir il [ hire list . hiillC 22 1977 Ihe film and still photographs reveal that the identified individuals were picketing along a 10-foot-high chain linked fence which paralleled the roadway which was filled with exiting automobiles. Rocks and stones were seen strewn in the paths of the cars. These strikers were seen at different moments to have engaged in the hurling of ob- jects. apparently rocks, over the fence and onto the existing cars. The General Counsel argues that the motions of the strikers depicted on the film show nothing more than the strikers waiving their arms. However, in the context of the situation, i.e., the presence of rocks in the paths of the cars; the fact that rocks were thrown by someone; and the pitch- ing motion of the arms of the strikers with objects in hand, as well as other objects seen flying through the air, fully justified the Respondent's conclusions that they were throwing rocks and not merely waiving their arms as the General Counsel suggests. None of the aforementioned strikers testified. I therefore conclude that Respondent had substantial reason to believe that they did, in fact, throw rocks at cars driven by replacement strikers as they exited the plant on the tumultuous day of April 26. The General Counsel argues that such conduct, in any event, is isolated: that there was no demonstrated damage to the automo- biles: that the rocks were not thrown with great force; that the conduct occurred during a time of great anxiety; and that in view of the long tenure of the strikers, discharge is not warranted.'7 The Board has held in certain cases that compulsive, isolated, and trivial conduct such as egg throwing does not warrant discharge.' As noted by the Board in MP Industries, Inc., supra at 1710: The Board and courts have consistently held that "not every impropriety committed in the course of a strike deprives an employee of the protective mantle of the Act." Although an employee may actually have engaged in misconduct, he or she may not be denied reinstatement absent a showing that "the misconduct is so violent or of such serious character as to render the employee unfit for future service." An argument can therefore be made that throwing a rock over a fence does not justify the extreme measure of discharge, especially when that conduct occurred on one occasion of a lengthy period of time. In Alcan Cable West, supra, the Board reviewed the full context of the situation, i.e., the length of the strike, the general extent of picket line violence, and the severity of and frequency of the miscon- duct of the strike.'9 In that case the Board found that a simple impulsive act of knocking off a side view automo- bile mirror was so minor as not to justify a discharge. In the same case it found other conduct whereby a striker who was not the prime actor in serious misconduct of others. but who voluntarily accompanied the malfactors I I he (;eneral Counsel cited no case, and I am awa ire of nonc, wherein the Ba ll has considered the tenure of the striker as a lustiflcatioin or excul- patI)oi for aci of lliiCollidClt 1/i' ndutiricL In ./ Ial 22' NlRB 171'1. 171 ( 11977): VtSlor Biomis w,r. Iv, l. i ()t,' i A ( l, 11d i hI, l/ l f'i t l In , 217 Nl RB 4(08 i1 tie Board iitde ri, reference thereill or esT ,-herc to [he srikers' tel LJ[C OIDDINOS &I LEWIS IC 44) and took no steps to dislssc(iale h lllsClf from the malefa c- tors, was obhliged to bear the reponSibhilits for their mis- conduct. If further adopted the finding that a striker ai, disqualified for reemplo menr t for throwing a rock a;t a car In the Instant case, the llsconduct occurred on I da o a \,er prolonged strike. However. that da had witnessed some of the most violent acts of picket line misconduct. including a barrage of stones and missiles. It ma ver well be true that a single. impulsive, isolaled act does not ustif\ discharge. 2" However, I cannot include that the hurling of rocks in the manner herein is either impulsive or isolated. It was done within the context of numerous other persons' actions of unprovoked throwing of missiles, with sufficient velocity to traverse a high arch over a I-foot fence which. in turn, necessitated a dissent of sufficient speed to ha c made the occupants of cars aaae that the were beinll showered with stones, rocks, or other hard ohjects. I he fact that each striker threw a rock not at the same moment butl at different intervals, apparenltl well space. as the striker, traversed the parallel lane in a deliherate gait, tcnds to destroy any notion that the barrage of stones WIa s the csul of a sudden flash of temper' Rather, it appeared to con- sist of a calculated. concerted, well timed effort to maintainl a steady bombardment of the exiting vehicles. The strikers, at the er least. could not have failed to recognize that the were oining in the conduct of others which, in its cumulative form, compounded the effect of each specific act and contributed to the oerall co rclon and intimidation of a nonstriker who had the legal rithlt to cross the picket line. I find it of little weight tlit no one testified that any specific damage was done to any inli id- ual car. It is nvi conclusion that the se eritS of the miscodclti ,of John Iluttar. Jerr Meltsner, D)ennis MCltC e l. 111 \ck- ernlian, and Bob McG(irall, consistin of ock ihit ll\in it existing cars and strike rcplaceienls. is sufficleint o al , rant their discharge hb Rcspondcnlt ManI ice Schnrlihl F:ond du Lac Police I)eparlnmilt Sergeant I rank Klotz- baitch testified crediblv and wtl hout contradiclin or rebut- tal to the events of April 26, at 4 p.. at which time re- placemlent workers were exiting from the plant parking lot. Klotzbach was in olved in directing traffic and restrinilln the crowd while stones bombarded the cars. As raffi thin- ned, he observed from distance of Is feet one striker carrying a picket sign in one hand and thro inta stones at the cars with the other hand, I or 20 feet fromn the cars. Klotzbach went after hii as a stont left his hanld. I lhi i flr itlrd has ckl cwshcc fOUIld rk IhItIi L 1 ll 11lltltt u11 1iltl'lil illoSll uoiltl to dilst lf. efnl C oiil cc', lt.lil rCCnIl-dX IIIC1 A/i ,,,ll ",A I lil, ( ,I mr1l-,;,n 1t I RB 1(7. 175 11711 1,,tn ( ,:/I/ if l. , i t,;, 2 f } itlls re;¢l no ,s,1 i. m ,illl ic e k t srtrkt, lr i t el. , , lcr IUrl l oI 1 [1 1 'nml-o nclt that.ltlltltil "o Iu ld I l ht\ tir . CI' 0\t' ILO1SL' I 111l/ cll let)in R nther. tihe l .1i'nic ll Iilc I ,il/ .1I[ cl d d'h ,rll r I ( f /Ar n, .,dIA L.l,l i ( . 1/-1 . I/,lq1 thOll l I %11(i,. 1h Au. ,I Crlll"lcdhl h [,it'ltl'rl r t", Ix 't\ l11 { 1111 .1 .1I IIIlIdl i iJ u.l1 kltk :in I[I I 1Hllll Ill1 1 lc .1 llc Ji ll .l 11 11 1 I i Il11d h1. lhc fill I . .o, sflirC Ih.l t .iol rla e /Il t lel aiii u1"po I [l IT ,llJ (\ill the al. ltn if llc rnh 't( i.i.,ili . ,t J i ll , 1 I , 11" I" TO l 1 n TCl , 1- 12tlk ,i l ' fr h t.abrge officer did not observe where the stone landed. lie arrested the striker who identified himself als Maurice Schmuhl: Schniuhl gave his lddress. n arrest report as subse- quentl? prepared h Klotzbach alltl theraflter Schmuhl i pleaded gult to a disorderly ctonduct charge, i.e.. throwing a rock at i vehicle. Schmuhl did not testlif. Re- spondent was full, Justified In its cnclusion that Shmuhl engaged in the act of throwing rocks aind stones \lith nu mncrus other persons on April 26. I reject counsel for General ('ounsel's contention that this incident costituted a mere irritant to nonstrikers be- ausci of the throwing positions of Schnilil. hich ciGeneral ('ounsel con tends were awkwWardl. nid rio dira (i e ;a detonlrstrated. Schniluhl's contduct as participatll i tilte generll ;Issault with rocks and sttolles colnstilttued sufficient misconduct to watrrant his discharge rcg;irdless of his pitch- cim technique or cllcs c;lctIr;c. \ ccrlrln. I c( ,nclllue ithalI his discharge was warrltel. d Robett Pcl Ioll Klotzhbach ils testified Witlltut contradlcticti n ( rebuil- tal to similar incident at ihbout the sillne tlllle: he arllcsted Robert Perron for disorderl conduct after hie siw Perr, n eitgag iIg in a pitchinlg tmotion ;:iltd heard rocks litting car- aifter hle s; at least Olle rock leat Ierro's hands . Pe'l ii theleeiflter Ipleadeid no110 onest to i disorderls tcoldut11 chare for i i lchlt hI ;as arrested. i.e.. ". . thre niiles, to Lit: a rock at ehicle"'' ie did not iestifs in thlis c ise I therefore coinclude that Respondcitt llit reislabIl cause to believe tIlhit Perron eigaed ll n sufficient ltiscon- dtl t , airrant his discharge. IFdth:rd Ballwan Police ()tlctr lihnke tified ccdibl\ aid lthlll Lon ttli. tillt 1io li arrest o'f I't \\ ;ir l II;i;ls i/ iri Lit '1 1 i1. OTI Aplil 2. fol Clllel it rock thiotil t ih t Ch l it ;1l itcrIllllig ilsontrikle i lie plail Blllikc s I.\ BAlil/ iT) the iillst of t Clowrtdl f pickets. igorousls tlhro ig rock. Behike turned rould aiftr hearing thud andl oshcr.cdl that ; windshield f an incoming iutonm obile uais mn ishcd BalluitR later pleaded no coitcst and ;was clonlt ictCd of realtinit ;i disturh;ance hb "rowine missiles at e-thiles'' oin \pril 27 \lthouth argitmernl is m;ade hb the (;eneral ('ounse l hi Ie windshieldc ma ;ilread have been bro- ken. since Betihnkc l i] 1lot ;Ictuall, (observe its prior condi- 1lll itlld] Io) ote reported a hroken illtdshield I Coliclude tIlht stifficient roulndl s e\ist for Responident to hac clon- cluded,C hbased upoll the coinvltionl for "throing! missiles at vehicles'' and the rrest report that Ballwain d1id indeed throu a rock at the indshield. if not break it. Accrordil'l. I conclude tha;t his subseqLuenit discharge sas warr allted. ('orrine Nielson Police ()fficerl llnls Steffetl is ,i member of the Iond du I.,c Police I ictll Sqll;id hli i 11ir;illd T 11 l(t1 ontrotl. Stiffcl testilcd IMll otl Xpril 27 hie \\Is dlcp!oN.l it the 11111al plant \est gate t11 .JohIlsoIi .\Ctllllc fil the pllposc of controllin!g the cro,Id hetween thIe fenced area a;nd the (iIt)t)INGS & IEWIS. INC i) 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sidewalk. At 7 a.m., as cars with replacement workers en- tered the plant, he observed at a distance of 15 feet Corrine Nielson throwing a baseball-sized rock at one of the cars as it entered. He did not observe the rock actually strike the car, but he heard a striking sound. As Steffen was preoccu- pied with attempts to control the crowd, he instructed an- other nontactical unit police officer to make the arrest. The arrest report was later composed by Steffen. Nielson later pleaded "no contest" to a criminal complaint. Nielson testified that she was indeed present at the pick- et line on Johnson Avenue at the time in question and served as a strike lieutenant. She testified that she was pres- ent in a crowd in excess of 100 persons, many of whom she did not recognize and that "well it was just different than what it [the picket linel had been on normal days. And it was because of the replacement workers." She admitted that she was accused by a police officer of throwing a rock, that she was arrested, but she denied actually throwing the rock. She testified that she did not recall seeing officer Stef- fen, but that she was not wearing her glasses and could not recognize anyone more than a few feet away. She admitted that she carried a rock with her to the picket line from her home, but that she threw it to the ground to get rid of it when she arrived at the picket line. She explained that she carried a rock for protection and she testified "I grew up in Indianapolis, and I learned at a young age that you carry some kind of protection when you go anywhere." She also testified that she usually carries a rock in her car and that "I always had a baseball bat in my car which I didn't think was appropriate to bring on the line. But a rock makes a hard fist if you need one." She said she threw away the rock because she assumed she was "among friends." On cross-examination, she admitted that she did not normally carry a rock to the picket line because she usually arrived in the day light, whereas, on the 26th, it was early morning. She admitted seeing some rocks in the air but could not see who threw the rocks. She could not say be- cause of the fact that she was not wearing her glasses and could only see a few feet distance. Therefore, she saw no cars being kicked nor any nails being spread despite exten- sive testimony to such by others. She testified, however. that the purpose for which she was present was to try and locate persons whose names were on the list that she had. How she could do this with her alleged deficiency was not explained by her. Nor did she explain how it was possible to testify as to the large number of strangers on the picket line. Having observed the demeanor of Steffen and Nielson, I found Steffen more convincing. Nielson was not only less persuasive in demeanor, but her testimony, I find, is inher- ently improbable. She inadvertently admitted a rock is more appropriate to use on a picket line than a baseball bat. I am convinced that she engaged in rock throwing as testified to by Police Officer Steffen. I conclude that Re- spondent, therefore, justifiably discharged her for rock throwing on April 26. Herb Berghandler The uncontradicted and unrebutted testimony of Police Detective Robert Venne and his partner, Detective Bord, reveals that on April 26, at 4:15 p.m., as replacement work- ers' cars were leaving the parking lot at the plant, crowds of pickets engaged in shoving and stone throwing; at one point, one of the pickets stepped out of the crowd of pick- ets and forcefully threw a jagged rock which hit one of the exiting cars and bounced into the parking lot. The rock thrower, Herb Berghandler, was arrested and subsequently pleaded no contest to a charge of disorderly conduct, i.e., throwing a missile at a vehicle, and was fined. Although the arrest report did not indicate that the car was actually hit, the Respondent, I find, had sufficient grounds upon which to conclude that Berghandler engaged in the bom- bardment of replacement workers' automobiles on April 26, and therefore, I find that his discharge is warranted. Although there is other uncontradicted evidence that Ber- ghandler engaged in an egg throwing incident on July 9, 1 find that conduct too trivial to warrant consideration as a basis for his discharge. 4 Furthermore, I find it of no significance that Respon- dent did not refer to the egg throwing incident in position statements submitted by the Respondent to the Regional Director during the investigation of this case. A Respon- dent's statement of the position may evidence a shifting of reasons for discharge and therefore may, in certain cir- cumstances. be indicative of a pretextual motivation. 25 However, I do not find that failure of Respondent to ad- vance all its evidence of a strike misconduct at one point in time to constitute a "shifting" of reasons for the discharge, where its position is not inconsistent, and particularly where the General Counsel chooses not to submit rebuttal evidence. I.en Burton Respondent's supervisors Draeger and Wehner rode in the same car as they exited from the plant on April 26, at 4 p.m. They were temporarily halted by a crowd of pickets, but the police cleared their paths. The car exited and start- ed to drive up Seymour Street. Draeger, the driver, who was driving at a speed of 15 to 20 miles per hour, testified that he saw Len Burton vigorously throw a stone in a side arm pitching motion, and that the stone hit the side of a car immediately in front of him at a distance of 10 feet. Wehner testified that he saw Burton throw a rock or stone in an overhand pitching motion at a car which was two or three cars ahead of him. The stone missed the tar- get. Draeger was 15 yards from the incident that he viewed. Wehner testified that he was 15 to 20 feet from the incident that he viewed. The General Counsel argued that these two apparently separate incidents could not have occurred be- cause Burton could not have had sufficient time in which to pick up a second stone and throw it, if, indeed, the car was proceeding at a rate of 20 miles per hour. However, Draeger's speed estimate was uncertain and roughly esti- mated, as he so testified. Hie was proceeding slowly, having just made the turn with his automobile around the corner. f1' Il.i-lt . Iw-. 227 Nl RB 1709. I ti,ttcn I. R o ( tglltt. /,n, d h , & ' (ilrlings. 231 NLRB 912 1977) GIDDINGS & LEWIS, INC. 451 Burton did not rebut this testimony. Lester Gruenwald tes- tified that he was present with Burton but that he failed to see Burton throw any rocks. However, Gruenwald, who admitted that he and Burton were there for the purpose of preventing cars from exiting the plant, also conceded that there were times when he had his back to Burton and that Burton was not always next to him. I conclude that Gruenwald's testimony does not constitute an effective re- buttal of the testimony of Draeger and Wehner who im- pressed me as truthful and crcdible witnesses. I do not find it inherently improbable that Burton could have had more than one rock in his hands and could have thrown them in rapid succession. Accordingly, I conclude that Respondent had sufficient cause to believe that Burton participated in the rock throwing of April 26 and was warranted in dis- charging him for that conduct, in the absence of any effec- tive rebuttal by the General Counsel.26 Al Green The uncontradicted, unrebutted, credible testimony of Vice President William Nyberg and William Ritter, reveals that at 7:30 a.m. on April 26, as they were engaged in a discussion in Myberg's street level office, they peered out the window to observe a group of pickets passing by on Johnson Street; at that moment, one of the pickets, later identified to them as Al Green, threw a rock at the win- dow. The rock hit either the window or the window frame. Nyberg was 7 feet from the window and 15 to 17 feet from Green. Green's activity was not isolated to April 26, according to uncontradicted, unrebutted, credible testimony of Vice President Charles Zwerg. On June 16, at 7:10 a.m., as Zwerg attempted to exit the main plant in his automobile, his path was blocked by an accumulation of roofing nails in the driveway. He stopped, got out of his car, and picked up the nails. While some pickets heckled him, Green and another picket retrieved some nails from the driveway. As Zwerg got in his car and drove out he saw Green scattering the nails he had just picked up back into the driveway into his direct path. Although the other picket, Schneider, testi- fied that he was present I day (date unknown) at about 9:45 a.m., shortly after his commencement of picket duty at 9 a.m., he helped clear a path with Zwerg and did not see Green, who also retrieved nails, replace the nails into Zwerg's path. Schneider conceded that Green was on the other side of Zwerg's car and that his view of Green was blocked so that he could not see Green's hands. Thus, Schneider's testimony does not effectively contradict nor rebut Zwerg's testimony which I credit, and which I find provided Respondent with reasonable grounds to conclude that Green engaged in picket line misconduct. The scattering of nails at places of egress and ingress on the picket line at a strike bound plant has long been held 26 Respondent also submitted uncontradicted. unrebutted testimon con- cerning Burton's use of obscenities and spitting through the open windo of an exiting automobile of a replacement worker on August 6. 1 consider that incident too tinvial and impulsive to conclude that such conduct swarrlits punishment of discharge alone or in part Cf A.isrociaud (roier ,, 4 ,i England, Inc. 227 NL RB 1200 by the Board to constitute misconduct sufficient in itself to warrant discharge.? I conclude that the conduct of Green in scattering nails on the driveway on June 16, coupled with his conduct of April 26, i.e., throwing a rock, in the presence of striking employees, at the window of Respon- dent's plant as two managerial persons peered out, consti- tuted sufficiently egregious conduct such as to warrant his discharge. Robert Rock Robert Rock was discharged as a consequence of a rock throwing incident that occurred on June 14, 1976. Police Officer Behnke testified that he was sitting in an unmarked police car on Brook Street, south of Johnson Street. Brook Street borders the west end of the Respondent's parking lot. No cars had yet exited from the lot at 3 p.m., when Behnke observed Robert Rock "lob" a couple of "hand" sized rocks over a fence which landed on the replacement worker's car. Rock was arrested. Another officer prepared the police report. There is no evidence that Behnke or the owner of the automobile who testified at the instant hear- ing were interviewed by Respondent prior to the discharge. The police report reveals that the rocks were about 2 inches in diameter and that "there was no damage that we could see that resulted from the rocks being tossed." The report also revealed that Rock was "very intoxicated at the time of his arrest." Subsequently, Rock was convicted and the court records reveal that he "did make an countenance or assist in making an improper noise or disturbance in the public streets of said city." Rock did not testify in rebuttal. I conclude that although Respondent had sufficient grounds to believe that Rock had engaged in some miscon- duct, it was conduct of a purely impulsive and trivial na- ture. Rock engaged in no other misconduct during the en- tire duration of the strike. He was apparently "very intoxicated." His conduct did not occur as part of a mas- sive effort to harass strike replacements as had occurred during the peak periods of concerted violence. Although the car owner testified that his already battered car had been damaged while parked there that day, it is not certain that the damage was caused by Rock. His conviction rec- ord is silent as to rock throwing. Accordingly, I conclude that his discharge is unwarranted and violative of the Act.29 Gerry Wonser Ernest A. Korrell, customer service manager, testified credibly. without contradiction or rebuttal, to an incident involving Gerry Wonser that occurred on May 21. lore Business Formns. Inc. 224 NLRB at 398: Ostego Ski Club -HIdden Va/let. Inc. 217 NLRB 408. I2 With respect to a rock throwing incident of August II. alhnough a cril.lnal complaint issued, the case was dismissed pursuant to the failure of the sole witness to testify Inasmuch as Respondent did not act against replacement strikers who had been charged with criminal complaints that were subsequentl, dismissed. I do not consider reliance upon the August I I incident as justifiable. ' See Af/ihtr Steel Co('npan, 226 NLRB li63. 1168 (1976), where the Board a.dopied the finding of an administratise law judge that an mpulsive. isolated rock hrowin illcidenti was not uch erl>Us misconduct as to lutl- s diS,,t l rec GIDDINGS & LEWIS, INC. 452 DECISIONS OF NATIONAI I.ABOR RELATIONS BOARD Wonser's office overlooks and is adjacent to the executive parking lot. At 11:15 a.m., he looked out of his office win- dow to observe the following scene. A large size, cream colored automobile had driven into the parking lot. Four occupants had gone into the personnel department. There- after, they came out and reentered the automobile and at- tempted to drive out but were impeded by a group of six pickets who walked slowly into the driveway in the direct path of the car. The automobile then proceeded to another exit but was followed by the pickets. As the bumper of the automobile slowly approached the sidewalk, one of the pickets jumped on the hood of the car and sat on it. The driver then rapidly backed up 15 to 20 feet. When the car stopped, Wonser, one of the pickets, picked up a baseball sized rock and hurled it at the windshield, thereby causing it to shatter. Wonser was not placed in any danger by the motion of the car. No police were present and no subse- quent police report was made. A few days later, Korrell submitted an affidavit recounting this event to Maury or to one of his assistants. Korrell was well acquainted with Wonser from past dealings. Wonser was involved in a second incident which Re- spondent contends also justifies his discharge. On Febru- ary 13, Wonser was arrested for refusing to comply with a police officer's request that he remove himself from the path of an exiting automobile. He was subsequently con- victed of disorderly conduct and fined. The circumstances of the incident reveal that the car had been halted because of the presence of a group of pickets in its path. The driver got out of the car to inspect it because he thought it had been touched and possibly scratched by a picket. Wonser objected to the police officer's request that he leave the driveway on the grounds that the driver was not even in the car at the moment of the officer's request. Since that was the case, Wonser thought he and other pickets could walk in the driveway. Thus, he protested the opinion to the offi- cer. His disagreement with the officer over his picketing rights led to his arrest and conviction. There is no evidence that Wonser blocked the car as it proceeded or at any time when it was able to proceed. Under such circumstances, although not condoning Wonser's refusal to comply with a police officer's judgment on traffic control, I do not con- clude that this incident alone justifies discharge. However, I do conclude that Wonser's conduct with re- spect to the rock throwing incident, in concert with an at- tempt of other strikers to harass persons crossing or at- tempting to cross the picket line, was sufficiently deliberate and so egregious as to warrant his discharge. For the same reasons previously stated, I do not find that Respondent's failure to allude to the rock throwing incident in its posi- tion statement to the Regional Director to constitute such reason as pretextuous. The incident was reported to Re- spondent in an affidavit, and Maury conducted a review of all affidavits and reports made by his supervisors and others. The failure to include all misconduct in an investi- gative statement of position does not necessarily raise an inference of bad faith, particularly where Respondent's po- sition statement is not inconsistent and its evidence is not rebutted. I therefore conclude that Respondent justifiably relied in part on Wonser's misconduct related to the rock throwing incident, and that its termination of Wonser was not violative of the Act. b. Nail scatlering Elaine Jenks On April 19, about 6:45 a.m., after his tour of duty as a county traffic police officer ended, Allen Jaber was return- ing his squad car to headquarters as he drove past Respon- dent's plant on Seymour Street. He noticed Elaine Jenks bent over in the driveway. He testified that because he was uncertain as to whether she was placing or removing nails, he lifted his foot from the accelerator and coasted by, and that at a distance of 25 feet he observed her place two nails, each of I to 1-1/2-inch length, point up in the driveway. He could recall seeing no other nails, but he was not cer- tain. He accelerated again and proceeded to radio a mes- sage to police headquarters to send someone to check the driveway. He conceded that he had no idea of the speed of his squad car but testified, "but I believe it was under 25 miles an hour." Jenks testified that she reported for strike duty about 6 a.m., and that she noticed some strikers picking up nails that had been strewn in the driveway, apparently before she arrived. She went over and picked up some nails. She testified that some city police officers also cleared the driveway, but a few nails were left along the side of the roadway. Officer Mullinex testified that after Jaber had returned, he and Jaber drove to the plant. Jaber identified Jenks, and she was advised that an arrest report would be made and thereafter she would be notified of a court trial date. She was not taken into custody. Mullinex executed the arrest report. However, prior to the arrival of Mullinex and Jaber, Officer Klotzbach had received a call from the police dis- patcher and he arrived within a few minutes. Officer Klotz- bach testified that he observed several neatly arranged rows of roofing nails, each set point upward, solidly across the entire driveway, and that he observed no one picking up nails. A few moments later, Mullinex arrived after Klotzbach called for a transport car. Klotzbach testified that he made the arrest. Klotzbach testified that he did not pick up the nails and that he "had Officer Mullinex pick those nails up." Mullinex, however, testified that when he arrived he actually saw no nails in the driveway. Jenks' testimony that city police officers were parked nearby was not contradicted. Those officers made no arrests. Although Jenks' memory was suspiciously vague when asked to recollect instances of rock throwing and the events of April 26 and 27, 1 was impressed with her overall demeanor, and I am convinced that she was truthful with respect to the nail placing incident. Furthermore, I place more confidence in the accuracy of her testimony than that of Jaber who, after completing his tour of duty, observed a woman handling -inch roofing nails from a 25-foot dis- tance while seated in a moving vehicle. Jaber may have sincerely believed that Jenks was placing nails, but his un- certainty over her conduct upon his initial observation, his uncertainty as to whether other nails were already in the driveway, and his uncertainty over his speed and general lack of assured demeanor cause me to place more reliance GIDDINGSS& L.EWIS, INC.. 453 on Jenks' testimony. Furthermore, Mullinex' admission that no nails were present upon his arrival, a short time later, lends credence to Jenks' testimony that she and other strikers removed the nails from the main portion of the driveway. I therefore credit Jenks and conclude that she engaged in no strike misconduct, and therefore that her discharge was unwarranted and violative of the Act. c. Spilling Tom Deer At the time of the strike, Tom Deer served in the capaci- ty of the local union president and picketed along with other employees. The Respondent contends that Deer en- gaged in picket line misconduct sufficient to warrant his discharge; i.e., spitting at persons crossing the picket line on two occasions. The first occasion allegedly occurred in late March 1976. David Schmitz, senior program engineer, and James Bech. a fellow employee, testified that when they were exiting the plant gate at 3 p.m., Deer. after an unsuccessful attempt to spit at their car, managed to spit through the opened side window of their car and hit Schmitz with some spittle. Replacement employees Randall Roy and Joyce Theyer- al also testified that on June 18, as they drove out of the plant at shifts' end, Deer spit into Roy's face. I credit testi- mony that Deer spit at and struck the above persons with spittle. His testimony denying such conduct was un- convincing. He admitted that he engaged in the conduct of spitting at automobiles crossing the picket line and that the events at the picket line were such as to put him in a state of a loss of control. As to the June incident, I credit his testimony that the incident occurred following the aggres- sive driving of Roy. Although inconsistent in details, the testimony of corroborating witness Urban, who admitted to his own aggressive conduct, impressed me as essentially truthful. The testimony of Roy and Theyeral, in addition to being mutually noncorroborative in some details, both were conveyed in a most uncertain, hesitant and absent minded manner. Furthermore, Theyeral's testimony em- bellished her previously submitted affidavit as well as the testimony of Roy, e.g., Roy made no reference to Deer's attempt to open the door of the car. Roy testified that the windows of the car were steamed up because of snow that had accumulated on the ground that day/. Theyeral denied that the car windows were fogged up.3 Neither rebutted testimony of Deer that Roy drove out in a reckless man- ner; whereas, Roy testified on direct examination that they were in a hurry to leave the plant because of an urgent appointment. Overall, Deer impressed me as being the more spontaneous and open witness as well as a more self- possessed witness. I therefore conclude that Deer spat at Roy's face, but it occurred in the context of Roy's aggres- sive attempt to get past the picket line and was unaccom- panied by any overt or implied threats. Finally. I conclude that both spitting incidents were too isolated and impul- sively trivial so as to warrant dischargei.' D [Deer estiled thai it hald heen a hot humid June da~ d. Overturning vehicle and assaul Nick Abler At or about 3:45 p.m. on July 30. a group of pickets surrounded a vehicle in the Respondent's parking lot and then proceeded to overturn it so that it rested on its side. As police officers approached the group of pickets, pickets dispersed and fled. Two police officers testified that they observed Abler as one of the group who had pushed over the car. Officer Lempke had known Abler for 5 years prior to that incident, having been his former coworker. He ob- served Abler in the group overturning the car: Abler had his hand on the vehicle as the car was overturned. At that moment Lempke and Officer Raven. who had left their parked squad car, viewed the scene from the middle of the street at a distance of about 60 yards. Officer Raven viewed a police video tape the following day and pointed out to empke the fact of an individual whom he identified as one of the group who overturned the car. Lempke iden- tified that person as Abler. Subsequently. Abler was arrest- ed, charged with disorderly conduct, and convicted. Abler. however, did not testify at the criminal proceeding. At the instant hearing, he did testify and denied partici- pating in the assault upon the automobile. According to Abler, he did not appear on the picket line until after that incident. Abler's memory as to the events of that day, the events of this trial, and the events of April 26, was evasive, obscure, and highly selective. I find his failure to recall anyone throwing a single rock incredible in light of the evidence in the record as a whole. His testimony was ac- companied by an equally unconvincing demeanor. The tes- timonies of police officers were responsive, dispassionate, certain, and untainted by any evidence of bias or hostility. I do not find it extraordinary that two police officers were able to identify at least one of the assailants under the circumstances herein, particularly since Abler was well known to one of them. Accordingly. I conclude that Abler participated in the act of overturning an automobile on July 30. On August 5. Abler allegedly engaged in assault upon a police officer. Respondent's supervisors identified Abler from a motion picture film as the individual who, when being pushed back by a line of tactical unit police officers from the plant driveway to permit the exiting of automo- biles, thrust his fist into the jaw of a police officer with sufficient force to propel the officer backward a few steps out of the police line. Abler grudgingly identified himself as the individual in the film account. He testified to a "vague" recollection of the incident. However, he denied "intentionally" striking the officer. In a most uncertain manner, he speculated that he may have been shoved so that his clinched fist at the end of his rigid arm landed on the jaw of the officer. Abler admitted that just prior to the incident, union representa- tive David attempted to calm him down because he. Abler. was "a little high strung" that day and "upset." I 4. o.aId ( rrn a \,I l. tighin.L 227 Nl.RB 12(): l IP Indulitriel. Inr 227 NRB 1711911 iatin gs tl hrmving): 4d.iramc lnduir l .. l)litn (lJcrhl'-d l)o, ( rnrwIton. 220 N RBI 431 1975)>: Ithro'nig gr.ivcl i cr ;i ld mitlldlll .o r GIDDINGS & LEWiS, tNC. _ . . . 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find Abler's obscure denials to be most unconvincing and conclude that the film record accurately reflects him in the act of landing a straight arm punch on the jaw of a police officer who was attempting to help replacements safely exit the plant. I conclude that on July 30 and August 5 Abler engaged in misconduct of such a severe nature that his discharge was warranted by Respondent.32 e. Interference with police officers Joe Baldauf, Dave Peebles, Roger Jaber, and Arnold Rolloff, Jr. On April 26 and on one occasion in early August, several strikers became involved in confrontations with police offi- cers which developed into scuffles that amounted to push- ing and shoving contests for which the strikers were subse- quently arrested." Joe Baldauf charged past officers to get to his brother Richard, who was being arrested. David Peebles attempted to interfere with a police officer who had placed Peebles' daughter under arrest and who was taking her into custody by means of placing her in a bear hug. Jaber overreacted to a police officer's attempt to lear him out of a driveway. The officer had physically grabbed Jaber who in return tussled the officer to the ground. Police Detective Boyd was in the process of arresting nine strikers when Arnold Rolloff, Jr. fell upon him from behind and caused him to fall to the ground. Boyd got up and reasserted custody over the first striker. Rolloff testi- fied, in my opinion convincingly and credibly, that in the general fracas he was pushed from behind and accidentally fell upon Boyd. Boyd obviously was in no position to ob- serve Rolloff before he felt RollofFs weight upon him. There is no evidence that Rolloff continued to pursue Boyd. I credit Rolloff that the incident was accidental. With respect to all of the above incidents, I find that although the conduct in each instance is not to be con- doned, it did constitute exuberant behavior which occurred within the context of an emotionally charged crown situa- tion and constituted mere isolated scuffling which does not warrant discharge from employment. Consequently, I con- clude that Respondent unlawfully discharged Joe Baldauf, Dave Peebles, Roger Jaber, and Arnold Rolloff, Jr.34 32 For the reasons set forth above. I find no significance in the Respon- dent's failure to allude to the July 30 incident in its statement of position submitted to the Regional Director 33 Most of the evidence is uncontradicted, but where a conflict existed, except for the incident involving striker Rolloff. I credit the testimony of police officers as more convincing, candid, and unbiased. 34 Respondent's further reliance upon Baldauf's alleged car kicking mci- dent on April 26, is unsupported by the film account which I found to be extremely obscure. Furthermore. even if it did happen, there is no evidence that any damage occurred or that any contact was actually made with the car, and I find it too trifling to warrant consideration as a basis for dis- charge. f. Pursuit and threat David Bell Gregory Mumm, an apprentice draftsman and nonstrik- er, left the plant at shift's end on April 27 and proceeded to ride home in a Volkswagon with several other nonstrikers. After dropping off two of the passengers, the car drove to an apartment complex. David Bell, striking employee and union picket line lieutenant, admitted following the Volk- swagon for the purpose of ascertaining the residence of suspected replacement workers and for the purpose of dis- couraging them from crossing the picket line. He followed in a pickup truck fitted with a camper from a location on Main Street, away from the plant where he had been parked and where he had noticed the Volkswagon as it passed. Another car with several persons inside had been parked with Bell and also joined him in following the Volk- swagon to the apartment complex which was only a few hundred yards down on Main Street. Mumm dropped off his final passenger at the apartment complex parking lot. He proceeded through the lot and out of the lot and was followed for about 8 or 10 blocks at no further than the distance of three car lengths but usually the distance of one. At the first stop sign, Bell unsuccessful- ly attempted to pull in front of Mumm. At the next stop sign, at a main intersection, Bell forced Mumm onto the shoulder of the road and parked at an angle in front of him. The second car pulled up right behind the Volkswag- on so that it could not proceed in any direction. Bell's testimony essentially tracks that of Mumm up to this point. According to Mumm, Bell, whom he did not know by name at that time, got out and ran to the Volkswagon with a length of pipe in his hand, hit the lock on the car door on the driver's side, and tried to open both doors which Mumm quickly locked. After that, Mumm testified that Bell came to his window and shouted questions to him, i.e., his identify, where he worked, and the identity of his com- panion, as well as screaming obscenities and simulta- neously rapping the pipe on his window and on the body of the car. Mumm identified himself and the passenger he had discharged at the apartment complex as long-time employ- ees of Respondent. According to Mumm, Bell told him that he should not return to work the next day, otherwise he would be "in trouble." Two individuals from the second car appeared with Bell and also told him that if he returned to work he would be in trouble. Mumm testified that his car was "such an old piece of junk that it was. . . virtually impossible to tell if there was any damage to it." Mumm's attention was fixed on Bell and not the other individual. Mumm testified that Bell told him that he would check him out, then he and the other pursuer fled to their vehicles and sped away, ending a 2- or 3-minute conversation. Shortly thereafter, Mumm recounted his experience to a Board agent at the plant who was assigned to the investiga- tion of picket line violence. However, he did not know Bell's identity. In September, Mumm recognized Bell in the plant and asked foreman Reitz to identify him. Subse- quently. Mumm reported to Maury the identity of Bell as his pursuer of April 27. Bell was subsequently interviewed on September 12 by a managerial employee, and although GIDDINGS & LEWIS, INC. 455 he admitted the pursuit in conversation with Mumm, he denied that he or any other person carried a pipe at the time. Bell was discharged thereafter. In his testimony Bell admitted pursuing but denied that anyone carried a pipe. He had some obscure recollection of hitting the side of the Volkswagon with his hands. He ad- mitted that he "may have" attempted to open the car door. He had only a vague recollection of the conversation, but admitted that he questioned Mumm as to his identity and that Mumm told him that he was an apprentice and not a replacement worker. Bell testified that he asked Mumm if he was related to Mark Mumm whom he knew as a re- placement worker, and that Mark Mumm was identified by Mumm as his brother. As to the balance of the conver- sation, Bell testified that there was nothing further "that I can remember." Bell testified that he had had a conversation with the occupants of the other pursuit vehicle while parked prior to the pursuit. He could not recall the substance of the con- versation on cross-examination. although on direct exami- nation he had testified that it related to the replacement workers. He could not identify the occupants of the other car except that he recognized one person as someone he saw at the plant "-during the melee that had taken place in the previous few days." Hle was unable to testify as to whether that person was even a union member or a striker. Ron Braun, the personnel manager who interviewed Bell in September, testified that during the interview although Bell denied carrying a pipe, he did tell Braun that one of the other individuals may have carried a pipe. At the hear- ing, Bell denied this. Based upon my observation of the witnesses, I found Mumm and Braun to be more certain in the recollections and much more convincing overall than Bell whom I found to be uncertain, evasive, vague, and highly selective with respect to what he was able to recall. Accordingly. I credit Mumm and Braun. The Board has consistently held that a single isolated threat, unaccompanied by any violence, s not such egre- gious conduct as to remove from an employee the "protec- tive mantle of the act." 5 Bell's conduct of April 27 was his only alleged misconduct. It occurred at a main intersec- tion, not on some dark isolated deserted place. Although Mumm may have been fearful up to the point of his con- frontation with Bell, he was permitted to go his way after a brief conversation. When asked by counsel "what did he [Bell] do on the car with the pipe?." Mumm responded "just basically raps on the car," which he volunteered was "an old piece of junk." The threat itself of some "trouble" was vague in nature and not pursued. I conclude that rap- ping the window and sides of an old piece of junk, accom- panied by vague predictions of trouble, constitutes harass- ment and intimidating conduct: but under all the circumstances, and in light of Board precedent. I do not l MP Induirieh. Inc, 227 Nl RB 17(9: .4-,o, acd (4,olcr ,n ,( \ , t gland. 227 Nl.RB 1200: (;oronet (CuallA. In, . 207 NI.RB 30(4: tlorc His, nest fimrms. 224 NlRB 393. [)espite he clence of cnrar declilon, of courts of appeals. I am hbound to folloy Board precedent Sec commenl of Administrative Law Judge Almira Stevenson in A.v4 tltid (;r rs r, fsi England, supra at 1207. citing IwaRa Beef Pai,. Inc. 144 NlRB 615 t 1963) conclude that it is of such a serious nature as to justify Bell's discharge from employment. g. Assault and hatter.) Pete Meyer Michael Clemens and Mark Smith, nonstriking employ- ees, left work together on August 12 in Smith's car. As they waited at the traffic signal on the street in front of the plant, a group of pickets verbally harassed them. The pick- ets were not identified. Thereafter Clemens and Smith pro- ceeded to a supermarket where Smith remained parked in his automobile in the parking lot, facing away from the store entrance. Clemens went into the store and purchased a soft drink and a newspaper. As he left the store with these items, he proceeded towards Smith's car. Prior to that moment, a blue Gremlin with three passengers drove onto the lot and parked. Two or three of the occupants walked up to Clemens and without provocation and in silence pro- ceeded to batter him. The first assailant punched Clemens above the eye with such force that he was nearly knocked senseless. Clemens bent over and covered his face for pro- tection and also to stop the flow of blood. He was so stun- ned that he could not recollect whether he was hit again or not. He returned to Smith's car and was driven to a hospi- tal. Clemens suffered facial lacerations and contusions. A police report was made. Both Clemens and Smith gave statements to Maury. From police photographs Smith rec- ognized Pete Meyer, a striking employee, as the driver of the Gremlin and, according to him, the second of the three assailants who struck and kicked Clemens. Smith subse- quently gave Maury a second affidavit identifying Meyer as one of the assailants. Meyer's companions were later identified as nonemployees. Meyer did not testify. Two employees of the supermar- ket, Maurice Plummer and Rem Brandt, testified to rebut the testimony of Smith to the effect that Meyer actually struck Clemens. Despite some inconsistencies in their testi- mony, I am convinced that their testimony is more accu- rate than Smith's testimony. Smith viewed most of the inci- dent while seated in his vehicle which faced angularly away from the scene, by looking in his rear view mirror from a distance of 50 to 100 feet. Although statements given to police by Plummer and Brandt seem to place Meyer closer to the scene than their testimony which placed him near the parked Gremlin, with its door open, both consistently stated to the police at the time and in their testimony that the driver, i.e., Meyer, did not land a blow. However, Brandt, a carryout boy, who was out in the lot, admon- ished all three for picking on one person. According to him, when he made his admonishment, the driver was out of the Gremlin and had started walking toward the other two who had commenced beating Clemens and had come within 15 feet of Clemens. Brandt shouted "does it take all three!" The first assailant retorted "you're f g right." Brandt's comments seemed to distract the assailants and Clemens escaped to Smith's car. All three returned to the Gremlin and sped off. Plummer and Brandt reported the license number of the Gremlin to the police. A criminal complaint and a warrant were issued against Meyer for GIDDINGS & LEWIS, INC. 55 , . 45(6 I) (CISIONS ()1: NA FIONAI. I.ABOR RELATIONS BOARD aiding and abetting a battery. lie pleaded no contest and was conv icted and fined on November 3. The evidence establishes that Meyer was present with the assailants in close proximity at the time of the battery. and that he served in the capacity of their willing assistant by driving them to and from the scene of the attack in his vehicle. 'Ihere is no indication that Meyer made any effort to disassociate himself from the assailants and their mnis- conduct. Therefore I conclude that Respondent had rea- sonable cause to believe that Meyer had engaged in a joint venture of serious misconduct.3 6 In view of the failure of the General Counsel to effectively rebut this evidence, I find that Mever's discharge was warranted and not viola- tie of the Act. 2. Failure to recall strikers Case 40 ('A 4306 a. Refluxl/ to iclth' rctircc i ile post-W.riAc prelltrcntil rehire list The complaint alleges that the Respondent refused to place the names of Glen l)ille, Norman MacArthur, and lay Christ on the post-strike list of former strikers entitled to return to work. thereby denying them preferential hiring rights under the Act. I)ille Christ, and MacArthur retired during the strike. These retirees received pension checks during the strike. After the termination of the strike, the retirees requested reinstatemrien to active duty. T'heir requests were denied. and their names were excluded from the preferential hiring list. T'he retirement plan does not set forth an obligation whereby the Respondent must honor a retiree's request for reinstatleieint. It does. howexcr, provide for the possibility of reemploiyment by making a reference to certain consc- quences in the event that a retired employee is reemployed. Such reinstatelenlt appears to have had had no actual precedenl. I was Respondent's prestrike practice to re- move a retiree's name from the seniority list upon his re- tirement. It followed that practice during the strike. I lie Illnon was kept up to date b being provided with current scnlorll rosters. MacArthur testified that min lale Apllril or earls MaN 1970, he had a telephone conversation with Paul Ilolland, super- visor of personnel services. Holland's duties relate to the Respondent's administration of fringe benefits, pensions. insurance, etc. Ils credible testimony that his duties do not relate to hiring, layoff, or recall of individuals was uncon- tradicted. MacArthur testified that this telephone conversation with lolland was prompted by a letter that MacArthur had received similar to other letters that the Respondent had sent to employees who would soon be eligible to retire by virtue of their age. MacArthur telephoned lolland and made an appointment to meet with him at the plant. Subse- quently, the): met at Holland's office and discussed Mac- Arthur's eligibility for retirement. MacArthur testified that he asked lolland whether he could return to work after the 'I' an.'n (.'l ,,1 ut. 214 NI R B 256 Respondent started to recall workers and that Holland re- sponded "I don't see why not." MacArthur thereupon was given retirement papers. MacArthur signed his retirement application on September 28, 1976. In March 1977, after the strike, after MacArthur heard that some strikers were being recalled, and after he dis- cussed the matter of his reemployment with a union repre- sentative, he telephoned Ron Braun, a personnel depart- ment manager, and asked "when I was going to get called back." According to MacArthur, Braun professed igno- rance and promised to respond later. MacArthur testified that he received no further communication from Braun and therefore, pursuant to the prompting of a union repre- sentative, he wrote a letter dated July 1, to Respondent stating: I)ear Sir: I was advised, you are to put me back on parental [sicl hiring list do [sic] to financial Difficulties. By International Association of Machinist and Aerospace Workers, Grand odge District 10. of Mil- waukee, Wisc. By letter dated July 5, signed by Maury, MacArthur was advised that reinstatement from layoff status was unprece- dented and that all retirees must be treated the same, and that it considered retirement a permanent situation. lHolland testified that he indeed had had a conversation with MacArthur about early retirement, and that MacAr- thur. like many others, asked if he could retire for the dura- tion of the strike with an option to resume active duty after the strike terminated. Holland testified that his response was, as in other similar situations, that although nothing in the retirement plan explicitly prohibited reinstatement of retired employees, that he could not provide an answer because "no company decision had been made, there are legal questions, negotiations will continue and will possibly have some impact on the question." Braun testified that MacArthur called him and wanted to know what his "chances were of returning to work," and that he was told that all retired employees were being treat- ed as permanently retired but that MacArthur protested "that's not the was Mr. lolland related it to me." Braun told him that he would check with Holland and recontact him. Braun testified that he checked with Holland and contacted MacArthur and told him that Holland had de- nied making any commitment but that when he talked to Holland "things were] still up in the air." I)ille testified that in March he engaged in a conversa- tion with his son-in-law, Richard Warden, a nonsuperviso- ry sales employee, in Dille's home concerning possible re- tirement. Warden advised him to telephone Vice President Zwerg. Dille called Zwerg and asked him about possible retirement," and in Dille's words: Although he did sa' as far as he knew, no one had ever done this. But he could not see any reason wh a man could not retire. So he gave me definitely gave me the impression that I could. l)ille's testimony consisted of conclusionary generalities to the effect that he discussed "temporary" retirement. tie was totally uncertain of the dates and time sequences. GIDDINGS &; LEWIS, NC. 457 I:rom his demeanor ad tone of testimony, I cannot con- clude that he was at all certain as to what was stated ex- plicitly by either himself or Zwerg. Warden was not called to testify. About 2 weeks to I month after his conversation with Zwerg. Dille met with olland at the plant. According to l)ille, he asked Holland "whether this was going to prevent me from ever returning to and ." Holland allegedi! responded that "he didn't think there was anything that would prevent it." Therefore. Dille executed his applica- tion for retirement during that visit. The application is dat- ed August 27. 1976. to be effective September I. [)ille further testified that in mid-Fehruary 1977. he visited the plant to discuss a particular pension check. Af- ter he finished his business, he testified that he encountered Braun and shop superintendent Tom Freeze in the hallway and asked them whether he could expect to be recalled soon. Braun purportedly told him to submit his request for reemployment in writing. Dille submitted to Respondent a letter dated February 26. 1977 wherein he alluded to an earlier assurance by Zwerg that he could "return to work." Braun responded to Dille b letter dated March 8. 1977. wherein Braun asserted that there must have been some misunderstanding; that Zwerg "researched the subject." and informed Warden that athough nothing in the retire- ment plans prohibits reemployment of a retired employee, no retiree had ever been retired and thereafter been reem- ployed, and therefore, the Respondent would have to eval- uate the issue in light of "manl considerations which could have an impact on this matter." Braun also asse'ted in the letter that Zwerg took the same position with Dille as he had with Warden and that Holland "echoed the same in- formation and concerns" in his conversation with Dille. the letter concluded that the Respondent believes it must treat all retired employees the sarne. It further stated: (Consequently, we feel we have no choice but to con- sider everyone who retired and who has received ie- tirement benefits as permancntl terminated. Zwerg testified in detail as to telephone conversation with Dille, wherein I)ille inquired as to how long Zwerg thought the strike would last, stated that he was aware of other strikers who had returned to work but that he himself was reluctant to cross the picket line, and finally asked whether he would be reemployed at some later date. Zwerg testified that he told Dille the same thing that he had told Warden. 7 i.e., that: . . .there is nothing in the retirement plan that could prevent you from returning back to active emplo - ment. However, at this point in time there are mn other considerations that would have to be taken into consideration, such as whether or not your seniorit, would apply, would there be a job opening. would we allow you to hump someone. We really do not know whether we will open the avenue to retirees returning back to active employment. To my knowledge we have never had a case in the past that I am aware f. According to Zwerg. )ille responded that he would give the matter further thought. Holland testified that at the time Dille executed his re- tirement application, lie responded to I)ille's question con- cerning post-strike reemployment as follows: I don't know, no decision has been made. The thing is still up in the air. However. the new plan does not prohibit anyone from coming back. With respect to Fay Christ. there is no issue of fact. lie retired during the strike on October I, 1976. Thereafter, he received his pension benefits. On JuIN I. 1977, he requested by letter that his name be placed on the preferential hiring list with other strikers. On July 5, by letter, he was given substantially the same response as the other retirees. 'There is no evidence that he requested and was granted a prere- tirement commitment of post-strike reemployment. At the hearing the Cieneral C(ounsel argued that all three retirees were discriminated against hb the refusal to place their names on the preferential rehire list because of their strike activity inasmuch as the Respondent was motivated by a desire to rehire as few as the strikers as possible. he General C(ounsel argued that the retirement plan placed no obstacle upon the Employer to the reemployment of a reti- ree. Second. the General Counsel argued at the hearing and in its brief. which is silent as to Christ. that Respon- dent committed itself to their reemployment and thereafter breached the resulting obligation to rehire them. At the hearing the Gieneral Counsel argued that the obligation was breached pursuant to an antiunion motivation ei- denced by the subsequent Section 81a)(3) conduct of Re- spondent, i.e., the discharge of other strikers on the pretext of strike misconduct. In his brief, the General Counsel merely argued that Dille and MacArthur were entitled to a special status among retirees because of that commitment and that such special status was obliged to be honored b the Respondent. With respect to the contention that Respondent was pos- sessed of anll antiinlon moti, ation in its dealings with the retirees, who were not high profile strikers, I calnnot con- elude that such motivation is evidenced b Respondent's conduct toward other strikers. In those situations where I have found that the Respondent unlawfully discharged strikers. the Respondent was moti ated h a good-faith be- lihf that the, had engaged in serious misconduct. In those situations. I have disagreed with the Respondent's judg- ment as to the gravlt. of that misconduct. However, I can- not conclude that its misjudgment was the result of an an- tiunion motivation. A large number of strikers were justifiably discharged, thus obviating the argument that Respondent had concocted a pretextual basis for their dis- charges. As to the alternative theory. D)ille's own testimonv falls somewhat short of establishing a firm commitment of his reemploy ment. Moreover, I have no confidence in his un- certain. hesitant. and conclusionarv testimony. As to Mac- Arthur. who also failed to impress me because of his uncer- tain demeanor, I find it unlikely that Holland. whose duties did not run to questions of hire and recall, would have made a definitive commitment so quickls. I found the de- meanor of Holland. Braun, and Zwerg to have been much more convincing, spontaneous, and straightforward. I also WalrdJen .i not lle d I rebuil ere', IeulnlOll, GIDDINGS & LEWIS. IN. , 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find it more probable that Respondent would not have made such an immediate decision on such an unprecedent- ed issue as reemployment of retirees, particularly when the result would have committed Respondent, albeit in a small way, to financing the strike against itself by permitting some strikers to subsist upon retirement benefits during their strike activities. Furthermore, a great length of time elapsed before the alleged commitment and the retirees' assertion to the Respondent that such commitment existed. MacArthur's letter to Respondent does not allude to a commitment by Respondent but reflects that his motiva- tion wa, the advice of the Union because of his "financial Difficulties." I conclude that Respondent, while not making a com- mitment, did indicate to Dille and MacArthur that the pos- sibility of reinstatement was not prohibited by the written terms of the retirement policy and that it remain an open question. I conclude that Dille and MacArthur, whether through a misinterpretation of the responses to their ques- tions or otherwise, assumed the risk of a subsequent nega- tive decision when they chose to retire during the strike. Having retired, they were removed from the seniority ros- ter, and the Union was so advised. I conclude that upon entering the status of a retired employee, Dille, Christ, and MacArthur removed themsel"es from the status of striking employees, i.e., employees engaged in the concerted with- holding of services to an employer. As a retired employee, they each owed no services to the Respondent. As a retired employee they each received pension benefits. I further conclude that when they sought reemployment, they were doing so not as strikers, but as former employees with no seniority standing and as employees who had engaged in known union activities. The question therefore is whether Respondent refused to reinstate these former employees for discriminatory reasons. The evidence does not demon- strate an antiunion animus. Their own strike activities were minimal. There is no past practice of employing retired employees. Under these circumstances, I cannot conclude that Respondent's decision not to place retired employees on the preferential rehire list to have been discriminatorily motivated or otherwise violative of the Act. b. Failure to recall former strikers to subsequent vacancies Eugene L. Becker, an employee of long tenure, occupied the position of steward from 1951 to 1960: from 1961 to 1973, he served on the union bargaining committee. He also served as vice president during the latter period. In 1974, he served as a union trustee. During the first 10 months of the strike he served as a strike captain. He re- signed that position. In August 1976. he resigned from the Union and also quit his employment for a job in Oshkosh, Wisconsin. Subsequently, he requested that the Respon- dent "wash out" his resignation and reinstate him. His re- quest was granted and he was placed on the preferential hiring list. There is no evidence of any Respondent ani- mosity toward him because of his prestrike or strike activi- ties. There is no evidence that Respondent was aware of his duties as a strike captain. Although there is evidence that Respondent's agents maintained observation of picket line activities, there is no evidence that Becker's duties were of such a high profile that Respondent's knowledge of them can be inferred. Edwin Smith's union activities prior to the strike were minimal. He characterized himself as a "shirker" with re- spect to union activities. During the strike he acted as a replacement strike lieutenant, i.e., he would substitute on occasion for the strike lieutenant and take the rollcall or provide coffee. There is no evidence upon which I can infer that these duties were known to the Respondent. Smith was placed on the preferential rehire list. Neither Becker nor Smith was recalled to employment after the strike. At the hearing, the General Counsel con- tended that Becker and Smith were discriminated against because of their strike activities. 38 There is no evidence that Respondent was under the impression that they had en- gaged in any strike activities that would have characterized the role of either as that of a leadership role. In any event, the evidence failed to establish that either Becker or Smith were discriminated against. The job classification opening that the General Counsel apparently contends should have gone to Becker, i.e., milling machine operator, was given not to a new employee or to a strike replacement but to a fellow striker, Donald Fentje. Respondent recalled Fentje pursuant to the established recall procedures. Fentje was the most senior employee in a group of employees eligible to fill the job. Becker was not considered because he was not within the eligible group, i.e., he was in the "Davis Division" and not the machine tool division wherein the opening occurred. With respect to Smith, there were three other strikers ahead of him who were entitled to be recalled for the al- leged job opening. The Respondent did not recall Smith but neither did it recall those other three strikers. However, Respondent did not fill that newly opened position with a new employee, nor with a replacement employee. What occurred at that point was that no one was hired or rehired because there was no need to add to the total work force. Instead, the Respondent filled the opening from within its work force by transferring a former striker, Friess, who had been previously recalled to his old job, to the newly opened position: there was a diminished need for Friess in his old job. In any event, had Respondent laid off Friess or some other employee in order to rehire an eligible former striker, Smith was still four levels removed from being recalled. Under these circumstances, I conclude that Smith was not discriminated against. Accordingly, I conclude that the allegations with respect to the failure to recall Smith and Becker are without merit. D. Conclusions I. Cases 30-CA--3950, 30-CA-4214, and 30-CA-4367 With respect to the 8(a)(3) and derivative 8(a)( ) allega- tions of the consolidated complaint, in view of the fore- going findings of fact, I conclude that Respondent has dis- charged the following employees because of their union activities (strike activities) and thereby violated Section (,Genera;l C (ounsel's brief is silent as toi the issue of their nnrecall. GIDDINGS & LEWIS, INC. 459 8(a)(1) and (3) of the Act inasmuch as the Respondent has failed to sustain its burden of proving that they engaged in sufficiently serious misconduct: Robert Rock Arnold Rolloff, Jr. Elaine Jenks David Bell Tom Deer Harry Kuenzi Joe Baldauf Larry Schibline Dave Peebles Paul Ziegelbauer 9 Roger Jaber Inasmuch as I have found that Respondent has either proven or has adduced sufficient unrebutted evidence to establish a good-faith belief that the remaining 15 alleged discriminatees had engaged in strike misconduct so serious as to warrant their discharge, I conclude that it did not violate the Act by discharging them. 2. Case 30-CA-4306 In light of my finding set forth above, I conclude that Respondent has not violated the Act by refusing to reem- ploy retired employees Glen Dille, Fay Christ, and Nor- man MacArthur; nor has Respondent violated the Act by failing to recall to active duty from the preferential rehire list employees Eugene Becker and Ed Smith. Iv. THE REMEDY Having found that the Respondent committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom, and because of the nature of the violations found, to cease and desist from in any other '9 Kuenzi. Schibline. and Ziegelbauer were discharged because of alleged strike misconduct of which no evidence was proffered. manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. I shall also recommend that the Respondent take certain af- firmative action designed to effectuate the policies of the Act. Having found that the Respondent violated Section 8(aX)() and (3) of the Act by terminating Robert Rock, Elaine Jenks, Tom Deer, Joe Baldauf, Dave Peebles, Roger Jaber, Arnold Rolloff, Jr., and David Bell, I recommend that these employees, with the exception of David Bell, be placed on the preferential rehire list, or if they would have been recalled if it had not been for the discrimination against them, then to offer them immediate and full rein- statement to the job to which they would have been re- called, or if that job no longer exists, to a substantially equivalent job; and make them whole for any loss of pay, benefits, or other rights and privileges they may have suf- fered as a result of the discrimination against them, togeth- er with interest in the manner prescribed in F W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977); 40 and that David Bell be offered immediate and full reinstatement to his former job or, if his former job no longer exists, to a substantially equivalent job; and that he be made whole for any loss of pay, benefits, or other rights and privileges he may have suffered as a result of the discrimination against him, to- gether with interest in the manner prescribed in F. W. Woolworth Company, supra, and Florida Steel Corporation, supra. Inasmuch as Harry Kuenzi, Larry Schibline, and Paul Ziegelbauer, have already been reinstated to the preferen- tial rehire list, no provision for them in the remedial order is necessary. [Recommended Order omitted from publication.] 0 See. generally, Isis Plumbing & Heating Co. 138 NLRB 716 (1962). GDDINGS & LEWIS, INC.