Gold Kist, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1095 (N.L.R.B. 1979)

GOLD KIST, INC.
Gold Kist, Inc. and United Food and Commercial
Workers International Union, AFL-CIO, Local
525.' Case I 1-CA-7901
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On July 19, 1979, Administrative Law Judge Rob-
ert W. Leiner issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and Respondent filed
exceptions, a supporting brief, and an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions3 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, .as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Gold
Kist, Inc., Durham, North Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph I(b):
"(b) In any like or related manner interfering with,
I The name of the Union, formerly Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, CLC, Local 525, is hereby
amended to reflect the merger between Retail Clerks International Union,
AFL-CIO, and the Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, effective June 7, 1979.
2 The General Counsel and Respondent have excepted to certain credibil-
ity findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an administrative law judge's resolutions with
respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his find-
inp.
9 Member Murphy, in accordance with her dissenting opinion in Abilities
and Goodwill, Inc., 241 NLRB 27 (1979), would find that Respondent's back-
pay obligation commences upon the striker's unconditional offer to return to
work.
4 Pursuant to Hickmoti Foods, Inc., 242 NLRB 1357 (1979), we find that a
narrow cease-and-desist order, rather than a broad order, is appropnate to
remedy the violations found herein.
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge striking employees
who do not engage in disqualifying misconduct.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Joann Martin, Thelma Brock-
ington, Percy Hester, Annie Herring, and Doris
Thorpe immediate and full reinstatement to their
former jobs or, if their jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges, discharging if necessary any replacements,
and WE WILL make them whole for any earnings
lost as a result of our unlawful conduct against
them, plus interest.
GOLD KIST, INC.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: The
original and amended charges in this matter were filed by
Amalgamated Meat Cutters and Butcher Workmen of
North America. AFL-CIO, CLC, Local 525, herein called
the Union, on October 3 and November 15, 1978, on Gold
Kist, Inc., herein called the respondent. The complaint, al-
leging violations of Section 8(a)(l) and (3) of the National
Labor Relations Act, as amended, herein called the Act,
together with a notice of hearing, was issued on December
6, 1978. Thereafter, Respondent filed a timely answer in
which it admitted certain allegations of the complaint but
denied others, including its commission of unfair labor
practices. The hearing was held on six dates between March
13 and April 4, 1979, in Roxboro and Durham, North
Carolina. Subsequent to the close of the hearing, all parties
waived oral argument and General Counsel and Respon-
dent submitted briefs which have been carefully considered.
The principal issue raised by the pleadings and proof re-
lates to Respondent's alleged violations of Section 8(a)(1)
and (3) of the Act in discharging 15 of its employees who,
having engaged in an otherwise lawful economic strike, al-
legedly committed acts of picket line misconduct against
coemployees, supervisors, and property of Respondent
which were sufficiently serious as to strip the perpetrators of
245 NLRB No. 142
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the protection of the Act and justify their being discharged
by Respondent.
Upon the entire record, together with my observation of
the witnesses and their demeanor, and with due consider-
ation of the briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and I find,
that Respondent, a Georgia corporation with a facility in
Durham, North Carolina, is engaged in the business of pro-
cessing poultry; and that during the 12-month period prior
to the issuance of the complaint, a period representative of
its annual business operations, it purchased goods and ma-
terials valued in excess of $50,000 from points outside the
State of North Carolina and received them within the State.
Respondent admits and I find that it is an employer en-
gaged in commerce and in an industry effecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find,
that the above-captioned Amalgamated Meat Cutters, Lo-
cal 525, herein called the Union, has been and is a labor
organization within the meaning of Section 2(5) of the Act.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At all material times, Respondent has operated a factory
in Durham, North Carolina, where it processes and sells to
retailers chickens and chicken parts. The factor is bounded
by the following streets: on the north by Mallard Street, on
the south by Gilbert Street, on the east by Alston Avenue,
and on the west by Latta Street. The main entrance and a
loading dock for refrigerated chickens are on Latta Street;
and two auxiliary entrances-the "roll" gate and the
"lower" gate-are at the corner of Alston Avenue and Mal-
lard Street.
The Union has been the statutory collective-bargaining
representative of, and has executed collective-bargaining
agreements covering, Respondent's approximately 287 pro-
duction and maintenance employees since 1965. This unit
does not include Respondent's truckdrivers who convey live
chickens into Respondent's plant through the "roll" gate
and exit through the nearby "lower" gate.
On or about July 25, 1978, with the expiration of the
collective-bargaining agreement between the parties, Re-
spondent's production and maintenance employees in the
Durham plant commenced an economic strike which con-
tinued through August 18, 1978. A collective-bargaining
was ratified by the unit employees on August 19, 1978, and
they returned to work on August 24.
' Respondent admitted in the pleadings and at the hearing that all persons
appearing herein as "supervisors" or "foremen" of Respondent are supervi-
son within the meaning of Sec. 2(11) of the Act, and agents of Respondent.
Respondent concedes that all 15 of the alleged discrimi-
natees in the complaint were strikers, that they were known
to the Respondent as strikers at the time Respondent termi-
nated them, and that they were discharged on or about the
dates set forth in the complaint and in any case prior to
August 24, 1978, except that one of the discriminatees,
Mary Leak, was discharged by it on October 16, 1978. It
was stipulated that Mary Leak was intermediately reinstat-
ed on August 24, 1978, with the other strikers, and that she
was discharged on October 16 for conduct which Respon-
dent alleges she engaged in during the economic strike.
Thus, on August 24, 1978. Respondent reinstated approxi-
mately 250 striking unit employees who returned to work at
Respondent's Durham plant.2
Respondent's Durham factory is situated on land owned
by Central Carolina Farms, Inc. (herein called CCF). In
fact, Respondent and CCF are joint venturers in the poul-
try operation in Durham in which Respondent, however, is
the sole operating party. CCF maintains a large warehouse
on Rigsbee Avenue in Durham, about 3 or 4 miles from
Respondent's plant.
For the first several days after the July 25 start of the
strike, the 2 to I I Respondent's employees (fewer at the
beginning) who crossed the picket line would park their
cars inside the distant CCF warehouse and then would be
transported to and from the plant in a rented van by Re-
spondent through the union picket lines surrounding the
plant.
On August 1, 1978, Respondent purchased a used yellow
school bus and commenced transporting nonstriking em-
ployees in this bus to and from the CCF warehouse. By
August 8, 1978, however, Respondent ceased using the
CCF warehouse as a drop point; rather, it transported non-
striking employees to and from another Durham dropoff
point, 4 to 5 miles away, at the Northgate Shopping Center.
The school bus was first used for the transportation of non-
striking employees on August 3, 1978. By that afternoon,
Respondent had mounted a CB radio in the school bus,
and, about the same time, lined the inside surfaces of the
windows with canvas. Further, on August 8, 1978, the
windshields and side windows immediately surrounding the
driver were covered by half-inch "chicken wire," which de-
vice, commencing August 9, was extended outside the re-
maining windows. The canvas lining and grill wire outside
the windows were added because the windows had been
broken by bricks, rocks, and other missiles thrown by per-
sons on or near the picket line.
The pickets, composed principally of members of the
production and maintenance unit, picketed from time to
time at all entrances of Respondent's plant but particularly
at the main entrance on Latta Street and the lower gate
entrance at the corner of Mallard Street and Alston Ave-
nue. It is uncontradicted that persons other than Respon-
dent's striking employees and union agents were sometimes
on the picket line.
On August 1, 1978, at the Respondent's request, a tempo-
rary restraining order was issued against mass and violent
picketing by the Durham County Superior Court. Police of
2 Respondent discharged other employees for alleged strike misconduct
who are not alleged as discriminatees herein.
1096
GOLD KIST, INC.
the city of Durham were present during the strike at Re-
spondent's plant. On the first day there were two police cars
and by August 9 there were as many as 70 police at Re-
spondent's premises. As many as 8 to 12 police at one time
were at Respondent's main gate on August 9.
On August 24, 1978, when the economic strikers returned
to employment in Respondent's plant, Respondent reinstat-
ed the union shop stewards and strike captain (Lori Green)
as well as other strike leaders and members of the Union's
contract negotiating team.
The General Counsel rested after he proved, through the
testimony of Wilson Still, Respondent's chief of personnel
in the Durham plant, that Respondent had discharged the
15 alleged discriminatees knowing that they were economic
strikers. Still thereafter testified, when called by Respon-
dent, in order to prove Respondent's honest belief that each
of the alleged discriminatees had engaged in serious picket
line misconduct which justified their being discharged, that
each of the 15 discriminatees was discharged by him and
notified by Respondent that they were discharged because
of picket line misconduct. Although Still himself observed
some activities on the picket line which were the basis for
discharging several of the strikers, by far the greater part of
his knowledge of picket line misconduct came from reports
of other supervisors and Respondent's employees. General
Counsel having submitted no substantial evidence to the
contrary, such as the existence of "pretext" in the dis-
charges, it is clear, and I find with two exceptions,' that
Respondent, in good faith, believed that the 15 alleged dis-
criminatees had engaged in picket line misconduct and dis-
charged them for that reason.'
B. Applicable Legal Principles
In order to prove a prima facie case of unlawful dis-
charge, the General Counsel must establish that a violation
of Section 8(a)() occurred because (a) the employees, to
Respondent's knowledge, were engaged in the protected
concerted activity of a lawful economic strike; and (b) Re-
spondent discharged the strikers (or failed to reinstate the
strikers upon their unconditional offer to return), N.L.R.B.
v. Burnup and Sims, Inc., 379 U.S. 21, 22-23 (1964). In the
instant case, there is no question, and Respondent does not
suggest otherwise, that the employees were strikers, were
known as such to Respondent at the time that it discharged
them, and were engaged in an otherwise lawful economic
strike, and that Respondent discharged the employees for
alleged misconduct associated with their picketing activity.
Under such circumstances, the General Counsel has made
out a prima facie case and I so find.
3 See the discussions regarding Percy Hester and Doris Thorpe, infra.
4At the conclusion of Still's testimony supporting Respondent's honest
belief of misconduct in discharging the 15 discriminatees, the General Coun-
el moved for summary judgment on the ground that Respondent had failed
to prove its defense showing its "honest belief." NationalAluminum, Division
of National Steel Corporation, 242 NLRB 294 (1979). 1 denied the motion
and, except in the cases of Percy Hester and Doris Thorpe, infra, continue in
that ruling. In his post-trial brief, the General Counsel inadvertently framed
the ultimate issue as to all the alleged discriminatees in this case as the
existence of Respondents good-faith belief in the occurrence of the alleged
misconduct rather than General Counsel's burden of proving that the dis-
charged employees did not actually commit the acts for which they were
discharged.
The parties further appear to agree that, in this type of
case, pursuant to the rule of Rubin Brothers Footwear, Inc.,
90 NLRB 610-611, and its qualifications on the burden of
proof and the burden of going forward, N.L. R.B. v. Burnup
& Sims, supra at 23, fn. 2, the burden of going forward with
the evidence to rebut this prima facie case then shifts to
Respondent to establish that it held an "honest belief' that
the discharged striking employees engaged in misconduct of
such a serious character as to lose the protection of Section
7 of the Act and to justify Respondent in denying them
their jobs. Rubin Brothers Footwear, Inc., supra at 61 1; Huss
& Schlieper Company, 194 NLRB 572, 577 (1971). As above
noted, I ruled at the hearing, and continue to rule that, in
the absence of any contrary evidence (and in the presence
of evidence, for instance, that Respondent reinstated the
known strikers leaders and union negotiators), the testi-
mony of Wilson Still, except in the two above instances,
establishes such an honest belief on the basis of his own
observations of picket line misconduct and of the reports of
supervisors.
Once having established such an "honest belief," Re-
spondent is absolved from liability, National Aluminum Di-
vision, 242 NLRB 294 except where General Counsel there-
after successfully shoulders the further burden of
affirmatively proving that the discharged employees did
not, in fact, engage in the conduct for which were dis-
charged, or proves, in the alternative, that the conduct was
not sufficiently grave as to warrant the discharges. Rubin
Brothers Footwear, Inc., supra, at page I l; Moore Business
Forms, Inc., 224 NLRB 393 (1976). The burden of rebutting
the General Counsel's denials then shifts to Respondent. As
noted in American Cyanamid Company, 239 NLRB 440
(1978), the mere fact that some strikers engaged in substan-
tial misconduct when the alleged discriminatees were
nearby, does not impute culpability to any particular strik-
ers unless they were identified, in some way, as responsible
parties in the misconduct. Coronet Casuals, Inc., 207 NLRB
304, 305 (1973); Moore Business Forms, Inc., 224 NLRB
393, 395 (1976); enforced in this regard, 574 F.2d 835 (5th
Cir. 1978).
Thus, except in the cases where Respondent proved no
honest belief of striker misconduct, what remains is to de-
termine whether (a) the particular alleged discriminatee en-
gaged in the asserted misconduct; and (b) if so, whether the
act was sufficiently serious as to deny the employee the
continued protection of the Act or whether it should be
characterized as merely a "trival rough incident or a mo-
ment of animal exuberance." W. C. McQuaide, Inc., 220
NLRB 593, 594 (1975), citing Milk Wagon Drivers Union v.
Meadowmoor Dairies, Inc., 312 U.S. 287, 293 (1941). Thus
not all picket line misconduct removes the protection of the
Act from the striker.
C. The Individual Discharges
I. The August 3 discharge of Joann Martin
Joann Martin, employed by Respondent since September
1971, was discharged pursuant to a letter from Wilson Still
dated August 3, 1978. Martin had picketed for about a
week commencing with the beginning of the strike on July
1097
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
25, principally at Respondent's main gate on Latta Street.
The main gate is a double gate hinged at posts at the ex-
tremes. On July 27, there were about 20 pickets there with
Martin.
At about 2 p.m. on July 27, Respondent's manager of
labor relations, James Perdue, was driving a blue Chevrolet
van (used to transport nonstrikers) from Gilbert Street to
the Latta Street entrance. Passengers in the van were a su-
pervisor, Carl Lowery, and an applicant for employment,
Maye Bradley. Perdue saw Joann Martin, the last in a line
of about 20 pickets, walk right to left, across the gate open-
ing, while observing the approaching van. From this point
on, the evidence is conflicting, although Wilson Still testi-
fied that he saw the event and his observations corroborate
Perdue and contradict Martin. The testimony of Lowery,
given in another forum, tends, in part, to support Respon-
dent's version and, in part, Martin's version insofar as the
speed of the vehicle goes (Resp. Exh. 14, page 8 et seq.).
Bradley, the other passenger, did not testify and apparently
did not see the occurrences in the transaction hereafter de-
scribed.
According to Martin, the van turned from Latta Street to
the open entrance but did so with great acceleration. Low-
ery's testimony, given at Martin's subsequent unemploy-
ment compensation hearing, tends to support that testi-
mony, contradicting Perdue. Martin testified that as the van
approached her, she tried to get out of the way and lost her
balance, and her hand hit the van as it went by. She testi-
fied that she could not remember whether she hit the van
with her open hand, but she recalled that when the van
went past her, it was accelerating at a great rate. On cross-
examination, she denied hitting the van with her fist but
remembered that the window was rolled up on the driver's
side when she hit it.
James Perdue and Wilson Still testified, in substance, that
Martin stood in the open mouth of the gate entrance, on the
sidewalk, as the 10-passenger van approached. By the time
the van was almost in front of her, she was immediately to
the left of the approaching van, thus on the side of the
driver. According to Still and Perdue, the van did not speed
up but came resolutely toward Martin at a speed of 5 to 7
miles per hour. In any event, as the van approached her,
Perdue and Still testified, she got out of the way at the last
second and, turning, hit the left window with a clenched fist
of her right hand at the point next to driver's (Perdue's)
head. Perdue then continued to drive through the entrance
and into the plant.
Respondent asserts it did not discharge Martin solely for
this misconduct. Rather, it discharged her on August 3 for
conduct in which she allegedly engaged on that date in
conjunction with the July 27 conduct. In particular, Still
testified that he discharged her on the basis of reports from
Annie Mae McLeod, a nonstriking, nonunion employee;
and from Guy Matthews and Thomas Roberts, Respon-
dent's supervisors, all of whom reported that Joann Martin
participated, with other pickets, in certain misconduct at
the CCF warehouse.
Still heard from McLeod, Roberts, and Matthews that on
August 3, 1978, among other pickets, Joann Martin made
threats and used abusive language to nonstrikers and re-
placement employees.
On the other hand, although Martin testified that she was
at the Rigsbee Avenue warehouse in August, and that she
was there with five or six other pickets with picket signs, she
was not there on August 3 and indeed saw a van (rather
than the yellow schoolbus) used by Respondent to carry
pickets across the picket line. She said that she was present
there with shop steward and strike captain Lori Green, and
pickets Doris Thorpe, Barbara Green, and two men. She
admitted that Thelma Brockington was there with her, but
denied that Annie Herring and Geneva Poole were there.
She testified that Supervisor Guy Matthews was driving the
van. She denied saying anything to any employee at that
time. The evidence shows that Respondent used the van
until August 3 but, commencing on or about August 3, used
a yellow schoolbus for transporting nonstriking employees
and strike replacements. Thus, if Martin's testimony is
credited, she was not there on August 3 because she would
have seen Respondent use the schoolbus; instead, she saw
Respondent use only the blue van to transport the nonstrik-
ers. In addition, although Annie Mae McLeod, contrary to
Martin's denial, identified Joann Martin as being present
on August 3, neither Supervisor Roberts nor Supervisor
Matthews, who gave detailed, extensive testimony on this
August 3 incident, asserted that Joann Martin was there
although they named others as being there. On the other
hand, in cross-examination, striker Thelma Brockington
testified that Joann Martin, among others, was present on
August 3 at the warehouse.
On the basis of the conflicting testimony as to whether
Joann Martin was present at the warehouse on August 3, 1
conclude, contrary to her denial and in spite of the failure
of Roberts and Matthews to identify her as being present,
relying instead on Brockington's testimony, that Martin
was indeed present. In view of Brockington's testimony, it is
unnecessary to reach the question of whether Annie Mae
McLeod's identification of Joann Martin as being present is
additional corroboration.
Whether viewed singly or in combination, I conclude
that Martin's conduct on July 27 and August 3 was insuffi-
ciently grave to justify her being discharged by Respondent.
As to the July 27 incident,5 that, clearly, according to
Still, was not sufficient for or the reason of her discharge I
conclude that Respondent, as Still testified, waited a week
and then discharged her because of the sum of the two
incidents. Yet the most detailed evidence of the August 3
"threats, abuse and intimidation" that the strikers engaged
5 Resolving the conflicting testimony regarding the July 27 incident, I con-
clude that Martin, already in the entrance mouth, was blocking the newly
opened entrance; Perdue, turning into the entrance, kept his course; Martin
refused to give way fast enough until, as Perdue accelerated to intimidate
Martin, Martin jumped out of the way and, in frustration, punched at the car
as it went by. The "chicken game," commencing with Martin already in the
entrance way, thereafter escalated, neither side seeking to avoid the increas-
ingly dangerous game. Another less benign instance of this type of conduct
appears, infra, in the Walter Burroughs incident.
It is clear to me that it is useless to attempt to assign to Martin or Perdue
the first significant provocation or escalation or to blame either for the suc-
cessive escalations. I discredit Martin's excuse that her loss of balance caused
her to strike the van window and I equally discredit the Perdue-Still testi-
mony that Perdue did not speed up in going into the entrance way. In any
event, the resolution of this issue is unnecessary in view of my disposition
infra and Repondent's concession regarding its view of the gravity of the
event.
1098
GOLD KIST. INC.
in against the nonstrikers at the CCF warehouse was Annie
Mae McLeod's testimony. McLeod, a witness called by and
most favorable to Respondent, testified that Martin (and
Thorpe, Poole, Brockington, Herring) and several other
strikers were chanting "[we are] going to get [you] tonight,"
directing this chant to the exiting automobiles of the non-
strikers. Supervisor Matthews testified that he and Roberts,
who also reported on this event, made sure that the employ-
ees' cars, leaving the warehouse, had their doors locked and
their windows rolled up.
I observed these strikers as witnesses. I have found that
Martin was among them that August 3 afternoon; and, al-
though there is admittedly no evidence that Martin
"chanted," it is enough that she, without disassociating her-
self, stood with the other chanters as the nonstrikers' cars
emerged from the warehouse and drove off. Alcan Cable
West., a Division of Alcan Aluminum Corporation, 214
NLRB 236 (1974). While it is true that such words are
themselves ordinarily threatening, I do not construe the
words used by these strikers, under these circumstances,
and in the context of the chant, to constitute a genuine
threat of physical violence. Rather, it appears to me that
the chant "we will get you tonight" was more of a picket
line incantation, not uttered seriously and not received seri-
ously. Certain facts in particular support my conclusion
that Respondent did not regard this chant as particularly
threatening or malignant: (a) when General Counsel sought
to obtain Still's admission that the August 3 chanting was
the basis of Martin's (and the other striking pickets') dis-
charge, Respondent objected, asserting that no employee
was discharged for these "threats" alone; and (b) just as
Still did not regard Martin's July 27 conduct to be sufficient
reason for discharging her, as the testimony developed, it
was also reasonably clear that Still did not believe that the
pickets' August 3 verbal conduct at the CCF warehouse,
alone, justified discharge of any of the pickets involved.
In short, therefore, although the words on their face are
threatening, I conclude: (I) the chanted words were not
uttered in a threatening manner; (2) there was a single inci-
dent of this conduct; (3) the words were not directed at
particular employees; (4) it is extremely doubtful whether
the employees in the exiting cars, the objects of the chanted
remarks, heard the "threat" since their windows were rolled
up and, in any event, no such employees testified to hearing
the chant; and (5) Respondent itself did not construe this
conduct, alone, to constitute sufficiently grave misconduct
to justify discharge of any of the participating strikers. In
addition, the Board has held (see Moore Business Forms,
Inc., 224 NLRB 393, 397) that apparently more violent lan-
guage relating to physical retaliation, actually directed to
particular nonstrikers, was not a bar to reinstatement. Bur-
lington Roadbuilders, Inc., 149 NLRB 791, 805 (1964);
Steward Hog Ring Company, Inc., 131 NLRB 310, 313
(1961) ("Don't go in there or I will get you."); Schott Metal
Products Company, 128 NLRB 415, 416 (1960) ("I am going
to get you one of these days."). If a subjective standard is
used to measure the coercive effect of the language, there is
no evidence of nonstrikers believing themselves threatened;
but cf. Associated Grocers of New England, Inc., 238 NLRB
871 (1978); N.LR.B. v. W. C. McQuaide, Inc., 552 F.2d
519, 528. If the "objective" standard (whether, under the
circumstances, the conduct "may reasonably tend to coerce
or intimidate employees" in the exercise of Sec. 7 rights) is
used, then, where, as here, there is no act of violence, the
words, in context, did not tend to coerce those employees,
like Annie Mae McLeod, who heard them.,
Finally, Respondent's citation of W. C. McQuaide, Inc.,
220 NLRB 593, 594 (ostensibly the Lesnak incident) is un-
persuasive with regard to Martin's striking the window of
the van near Perdue's head with her hand or fist since, in
McQuaide, Lesnak physically assaulted the replacement.
Here, Martin vented her frustration b striking the van with
her hand. Perdue was not touched. Moreover, in McQuaide,
Lesnak threatened to beat the driver's head in. There was
no such threat here.'7
In addition, here, unlike McQuaide, Respondent ex-
pressly did not discharge Martin for punching the van. It
did nothing for a week and then discharged her for the
combination of hitting the van and chanting the "threat."
I agree with Supervisor Still's apparent estimation,
above, that neither incident was grave enough to justify
discharging Martin. I further conclude that the combina-
tion of Martin's conduct on July 27 and August 3 was insuf-
ficient to justify her being discharged. I therefore conclude
that Respondent's August 3, 1978, discharge of Joann Mar-
tin violated Section 8(aXI) of the Act.
2. The August 4 discharge of Thelma Brockington
Wilson Still testified that Brockington was discharged be-
cause of two incidents occurring on the afternoon of August
3 at the CCF warehouse on Rigsbee Avenue. This was the
series of incidents and locations at which Joann Martin,
above, was present.
Still testified that Thelma Brockington was discharged
because it was reported to him that she attempted to open
the passenger-side door of a car driven by a nonstriker,
Betty Tabron, and thereafter kicked the door of the car and
shouted various threats and verbal abuse at Tabron in the
presence of other nonstrikers and strikers.
The evidence shows that Brockington went to the ware-
house at about 2:30 p.m. on August 3 in the company of
Geneva Poole. On the basis of the testimony of Doris
Thorpe, who was there at the time, it is clear that the more
than a dozen striking pickets at the warehouse that after-
noon held sticks in their hands. These "sticks" were the
supporting elements for picket signs and it is unclear what
the lengths and thickness were. Earlier, Supervisors Guy
Matthews and Thomas Roberts had driven more than half
a dozen nonstrikers, including Annie Mae McLeod, into the
6 Noting that dispute between the Board, 224 NLRB 393, and the Court of
Appeals, N.LR.B. v. Moore Business Forms. Inc., 574 F.2d 835. (5th Cir.
1978) with regard to the seriousness of the misconduct and the eligibility of
stnkers for reinstatement, I am of course bound by the Board's rule.
7 McQuaide, pages 594 and 607. indeed points the other way with regard
to the seriousness of the August 3 threat "to get" the nonstrikers In
McQuaide, the Board stated "we'll fix you" is merely extravagant language
and the conduct of the threatening parties should be analyzed to inquire if
such conduct gave "a sense of immediacy and credence" to the threat, such
as past or accompanying violence. In the instant case, the "threat" consisted
of a group of a dozen. predominantly female, employees chanting "We will
get you tonight; we know who you are." Unlike McQuaide, neither Martin
nor the other women assaulted anyone, although Brockington, inl/r. kicked
an automobile.
1099
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rigsbee Avenue CCF warehouse in the yellow schoolbus.
As above noted (see Joann Martin, supra), Matthews told
employees to lock the doors and roll up the windows of
their cars before driving out of the warehouse, single file.
Brockington and the other pickets were outside the ware-
house on the sidewalk immediately adjacent to the ware-
house and purportedly had gone there to see who had actu-
ally crossed the picket line.
Brockington testified that she saw the bus and saw the
employees get off the bus and go to their cars in the ware-
house. Whereas Brockington denies touching anyone or
any car and asserts merely that she called out the names of
the employees as they drove by her on their way out of the
warehouse, Respondent's witnesses Wilson Still, (who saw
her on the picket line on August 3), Thomas Roberts, Annie
Mae McLeod, and particularly Guy Matthews, told a dif-
ferent story. McLeod remembered pickets outside chanting
"[Y]ou have to come out the warehouse; we're going to get
you tonight" and particularly remembers Brockington com-
ing into the warehouse before the cars left. Roberts recalls
Brockington grabbing the door handle of Betty Tabron's
car and at the same time threatening her with: "We know
who you are, we'll get you tonight." I do not credit Roberts'
testimony in this regard. I nevertheless credit McLeod,
who heard the above threat chanted by other employees. I
do not credit Roberts, who placed the threat in Brocking-
ton's mouth as she kicked the door. While I agree that
Thomas Roberts saw Thelma Brockington kick the right
front door of Betty Tabron's car, I reject his testimony that
this act was accompanied by a threat which all other wit-
nesses described as generalized.
I do not credit Brockington's testimony that she had a
broken toe and wore some sort of a slipper that day; that
she had a painful condition in her foot and an abscess in
her groin which prevented her from raising her leg; and
that she limped at that time. In view of her testimony that
she picketed during that day for 30 minutes at a time, not-
withstanding that she also testified that she rested for 2
hours between picketing, I credit Roberts' testimony that he
had known her for a year and never knew of any defect in
her legs or feet, and that she had shoes on that day. I partic-
ularly credit Betty Tabron's testimony that as she was driv-
ing out, Brockington, whom she had known for 3 years,
grabbed the right front passenger door and, finding it
locked, kicked the door. Tabron admitted that there was no
damage to the car door from the kick. Particularly signifi-
cant, regarding Roberts' testimony of Brockington directly
threatening Tabron, Tabron did not testify that she heard
Thelma Brockington say anything in the way of a threat or
that she saw Brockington's mouth or face move in the pat-
tern of speech. In any event, she didn't hear anything that
Brockington may have said not only because it wasn't ut-
tered, but because Tabron's windows were rolled up.
In view of the fact that there was neither damage to the
door nor an accompanying threat, I do not regard this type
of misconduct by Brockington as sufficient to justify the
discharge. As cited in Moore Business Forms, Inc., 224
NLRB 393, 397, in Alcan Cable West, supra, an employee
(the Baldwin incident) was not denied reinstatement even
I credit Roberts' testimony only where it is otherwise corroborated.
though he ripped a mirrow off the automobile of the em-
ployer's chief negotiator as the car went through the picket
line.
In short, I find that, crediting Respondent's witnesses in
substance, Brockington's conduct in kicking Tabron's car
door on August 3, absent a background at that time of any
violence, including Martin's slapping or punching the van
on July 27, was a single, isolated act and was not of suffi-
cient gravity to prevent her usefulness in the future as an
employee. Coronet Casuals, Inc., supra. I thus conclude that
Respondent's discharge of Brockington on August 4, be-
cause of the August 3 incident at the CCF warehouse in
which she grabbed the door handle of, and kicked, non-
striker Tabron's car, to be an act of minor misconduct dur-
ing a moment of animal exuberance, W. C. McQuaide, Inc.,
220 NLRB 593, 594 citing Milk Wagon Drivers Union v.
Meadowmoor Dairies, Inc., supra, and insufficient as a rea-
son for her discharge. I therefore find the Brockington dis-
charge to be in violation of Section 8(a)( ) of the Act.
3. The discharges of August 8, 1978
a. The discharge of Jarvis Little
At about 10:50 a.m. on August 8, Anna Marie Miller
came to the Gold Kist plant mistakenly believing that it
was the main office of the neighboring CCF plant where she
was seeking an office job. She parked her car across the
street from the Gold Kist main entrance on Latta Street
and attempted to enter the main gate of Respondent's
plant. At approximately the property line separating the
sidewalk from Respondent's property at the main gate, she
was confronted by two men, striking employees Jarvis Little
and Walter Griggs. As she entered Respondent's property
they asked her where she was going, and she told them she
was going to the personnel office. They then asked her if she
knew that they were on strike, and she told them that she
was not seeking a factory job and that they had no reason
not to let her pass. Although Griggs and Jarvis first asked
her "please" not to cross the picket line, when she neverthe-
less turned, trying to first go between them and then around
them, in order to get into the office, they came together and
blocked her further ingress into Respondent's property.
When she thereafter tried to go around them, Griggs told
her that she was not going to cross the picket line and he
put his hands on her arms, holding her back. To prevent
Miller from going around him, Little put his elbows out and
elbowed her back as she was going to the gate opening. At
this point, I credit the testimony of Miller, as corroborated
by Still's secretary, Zanar (who saw the event and took
pictures of it), that Jarvis Little then pushed Miller up
against the gate fence. At this point, a respondent security
guard pushed Little away from Miller, and the police came,
took Griggs away, and put him in a patrol car. Neither
Griggs nor Little was arrested and a police offer to Miller,
whether she desired to press charges against either of them,
was declined. Miller testified that she was pushed about 2
feet to the fence.
Jarvis Little contradicted Miller's testimony only insofar
as he testified that they pushed each other. I do not find
that they pushed each other. Rather, I find that Miller
I100
GOLD KIST, INC.
merely put her hands out to counter Little's hands. Griggs
denied ever being on company property and denied having
pushed her into the fence. I credit Little's testimony that
Lori Green, a shop steward and a strike captain for the
Charging Party, told him to let Miller go through. I do not
credit Little's denial that he did not push Miller into the
fence.
Wilson Still testified that he discharged Little for physi-
cally preventing Miller, an apparent applicant for employ-
ment, from entering Respondent's property.
In context, in view of the man-woman physical confron-
tation and Miller's innocence, I view this differently than a
mere rough incident. Although no force was used here
which injured Miller, Griggs and Little reasonably put her
in fear of further bodily harm when they pushed her up
against the fence and demonstrated to all pickets and non-
pickets that, notwithstanding the request of their own strike
captain, absent the immediate interposition of the police,
they were prepared to use further force to prevent Miller
from entering the premises. That she was actually not ap-
plying for a job with Respondent is of course irrelevant.
There seems to me to be no excuse for two men to intimi-
date a female person from crossing the picket line, and then
actually shove her to the fence. This show of physical force,
in the circumstances, was demonstrably unwarranted and
excessive, and was a preliminary to an escalated confronta-
tion. In my opinion, it justified Respondent in discharging
Jarvis Little. I therefore recommend that the complaint
with regard to Respondent's unlawful discharge of Jarvis
Little be dismissed.
b. The discharge of Geneva T. Poole
Still testified that Geneva T. Poole was discharged for a
number of reasons. He testified that he personally observed
Poole and five or six other pickets, carrying sticks, stand in
front of a van, thereby preventing it from making deliveries.
After Poole finished talking to the driver, the driver and van
left. Secondly, Still testified that Supervisor Thomas Rob-
erts told him that Poole, at the August 3 incident at the
CCF warehouse, threw rocks at nonstrikers' cars9 as they
were emerging from the warehouse, in addition to which
the strikers, including Poole, chanted that they knew where
the nonstrikers lived and that they were going to get them
that night. Thirdly, on August 8, near Respondent's plant,
Poole pulled her car in front of Respondent's yellow bus in
the early morning (some time after 7:15 a.m.) as the bus
was coming towards the plant. Poole, traveling at 5 miles
per hour, pulled her car across the path of the bus, which
was then traveling at about 15 miles an hour, immediately
requiring the deceleration of the bus. With the bus moving
slowly, groups of employees threw rocks at the bus as it was
approaching the plant. The bus's front windows were bro-
ken by the rocks and its metal sides were dented. It was
immediately after this August 8 incident that Respondent
placed thick wire screening around the windshield and side
windows.
'Such conduct. if true, would itself justify immediate discipline by Re-
spondent.
As a fourth reason for Poole's discharge, Respondent al-
luded to her throwing rocks at the bus on August 9. It
would seem, however, that Poole had already been dis-
charged on August 8 and that this August 9 rock throwing.
which Poole admits, played no part in the discharge. Poole
testified only that she threw two rocks at the yellow bus on
the morning of August 9, the rocks being larger than a half
dollar in size. She was not sure whether she hit the bus and
denied any other rock throwing. This denial would appar-
ently include throwing rocks at cars of emerging nonstrikers
from the CCF warehouse on August 3.
Putting the August 9 incident aside for the moment, the
credited evidence shows that Poole's action of using her car
to slow down the bus on the morning of August 8 permitted
various unknown persons to effectively stone the bus to
such an extent as to break all the glass windows including
the windshields. This is no trival matter or insignificant
rough incident. The lives of nonstrikers and strangers to the
dispute were placed in jeopardy not only by the stoning but
by the clear possibility of a resulting traffic accident. There-
fore, I find that Respondent's discharge of Poole for wan-
tonly reckless conduct on August 8, including her slowing
down the bus. was justified. Moreover, although the August
9 conduct occurred after the discharge, I conclude that Re-
spondent, not engaged in a game a legal charades, would
have lawfully discharged Poole, in any event, for her con-
duct on August 9. the admitted rock throwing. It dis-
charged others for the same reason."
c. The discharge of Dreama Glover
Thomas Craven, a respondent truckdriver and nonunion
employee, hauls live chickens from Pittsboro, North Caro-
lina, to Respondent's plant. At about 8 a.m. on the morning
of August 8. 1978, driving to. and about 100 yards from, the
Durham plant, he saw 8 to 10 shouting persons at the curb.
Glancing out of his right side mirror he saw Dreama Glover
with these persons at a distance of 12 to 15 feet from the
right side of the truck, and, as he passed her, he saw
Dreama Glover throw a half brick or rock at the truck. He
heard the missile strike the truck body. Craven reported the
matter to Still a few moments later and rocks were found on
the truck.
Dreama Glover testified that she was present at the area
where the "rocking" of the yellow bus took place on August
8 and was also present shortly thereafter while other per-
sons threw rocks at Craven's truck. She denied that an em-
ployee, Percy Hester, also discharged on that date, was
standing with her at the time." She saw Lori Green throw a
rock at Craven's truck. I do not credit her testimony and I
conclude that she threw a rock at the truck, as Craven tes-
tified, and that it was on this basis that she was discharged
as Respondent alleges. Craven's fleeting identification of
Glover as a rock thrower was unshaken. I conclude that
throwing a rock at the truck, under these circumstances, is a
sufficiently serious act to warrant immediate discharge. I
0 Such a discharge therefore would not be entirely speculative. In the case
of Annie Hernng. infra. Respondent discharged her for one reason alone.
and I concluded that since that reason was not supported. one could not
speculate whether Respondent could have discharged her for other reasons.
" Earlier. apparently, Hester was with Dreama Gloser on August 8 mme-
diately before the yellows bus was stoned.
1101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude that Respondent's August 8 discharge of Dreama
Glover was not in violation of Section 8(a)(1) of the Act.
d. The discharge of Percy Hester
Wilson Still testified that employee Annie Mae McLeod
and Supervisor Guy Matthews told him, within minutes of
the event, that on the morning of August 8, Hester threw a
brick at Respondent's yellow bus as it was approaching the
plant and that he was discharged therefor. McLeod testified
that she saw Percy Hester, whom she had known for 15
years, throw the brick and hit a window on the right side of
the bus.
Supervisor Still was clearly mistaken in his "best recollec-
tion" that Guy Matthews confirmed Annie Mae McLeod in
reporting that Hester had thrown a brick at the bus. Mat-
thews made no such statement. Thus the identification of
Hester as a rock thrower and Still's "honest belief' thereof
rests only on the testimony of Annie Mae McLeod. That
Hester may have been standing among the rock throwers at
the time the bus went by does not necessarily support the
conclusion that he himself was a rock thrower.
Annie Mae McLeod testified that on July 25, the first day
of the strike, she did not go to work; that on the next day,
she did go to work; that on the evening of that day, July 26,
Hester came over to her house (Hester lives on the same
street as McLeod) and told her, according to the report she
made to Still, not to go back to work ("Don't bring your
black ass back in that plant again"). Hester denied making
the threat. My observation of Hester would lead me to be-
lieve that it was unlikely that he would make a threat. I
nevertheless credit McLeod that the threat, as Still recalled
it, was made at that time, July 26. In making this determi-
nation adverse to Hester's credibility, I am mindful of Hes-
ter's prior sworn statement to the Board in which he re-
counted that he did not see any employee throw rocks,
whereas, in his testimony at the hearing, he testified that he
was present when 25 to 30 pickets were near the bus and
some of them rocks at the bus.
On the other hand, McLeod testified, contrary to Still's
original testimony (before he was led by counsel to different
answer) that it was not on August 8 that Hester came to her
house, but rather it was on July 26, and that Hester at that
time made the threat to her conditioned on her return to
work at Respondent's plant.'
Needless to remark, the inducement for McLeod to ob-
serve Hester, 10 days after the alleged threat was made, and
standing among the rock throwers, to be a rock thrower, is
very great. On the other hand, Hester's credibility as a wit-
ness, while not undermined by his presence among the rock
throwers, was tarnished by the conflict between her testi-
mony and his prior statement. Nevertheless, in view of the
lapse of time between Hester's threat and McLeod's identi-
fication of him on August 8, and my observation of the
'2 Wilson Still took no action on this apparent threat aside from directing
McLeod to record it. She allegedly did so and apparently gave it to Still. As
General Counsel notes, McLeod's recollection of the threat ("if I went back
to work... he was going to kick my black ass, fuck up my car and blow up
my house,") at the hearing expanded considerably on the threat Wilson Still
recalled she reported, supra. The memorialized threat was never produced,
nor was its date established.
witnesses, including Hester's demeanor, I credit Hester's
denial of being a rock thrower over Annie Mae McLeod's
particular identification of him. While the matter is obvi-
ously not free from doubt, I conclude that the inducement
based on personal animus on McLeod's part to identify him
after his threat of July 26 was more significant than her
positive identification of him, which I do not credit. Eyewit-
ness identification of striker misconduct is not necessarily
conclusive. National Aluminum, Division of National Steel
Corporation, 242 NLRB 294 (1979). I credit Hester's denial
of rock throwing. I therefore conclude both that Respon-
dent failed to prove that it had an "honest belief' and that
General Counsel sustained its burden of proof that Percy
Hester did not throw rocks at the bus on the morning of
August 8. Respondent's discharge of Hester was not justi-
fied. I therefore find that the discharge of Percy Hester for
allegedly throwing a brick or rock on August 8 violated
Section 8(a)(l) of the Act."
e. The discharge of Annie Herring
Still testified that Herring was discharged on August 8 on
the basis of the report by Annie Mae McLeod to him that
Herring, like Hester, had thrown a rock at the bus as it
approached Respondent's plant on the morning of August
8. Still testified that he fired Annie Herring for this incident
although he knew that Herring had been present with the
economic strikers on August 3 at the CCF warehouse and
had been among the strikers who had chanted to the non-
strikers: "We know who you are; we will get you tonight."
Still, however, testified that this August 3 conduct was not
the cause of Herring's discharge.
Herring, a striker-picketer, denied that she ever threw a
rock or brick at the bus. Herring, whom I observed to be a
rather elderly lady, admitted that she was on the picket line
early in the morning when the bus came to Respondent's
plant. She testified, however, that she came near the bus
only after the police got there and left when she saw all the
police come. She testified that she went to the area to see
the police rather than to see the bus. She admitted seeing
the bus enter the particular gate (the lower gate) and said
that she was 85 feet from the bus. I regard as crucial () her
testimony that she was unfriendly with Annie Mae
McLeod, the sole identifying witness on behalf of Respon-
dent, because McLeod had gone out with her husband in
1963; and (2) McLeod's failure' to identify Herring among
the August 8 rock throwers. I conclude that there is no
evidence to establish that Herring threw a rock. Since that
i Wilson Still's testimony showed that Hester was apparently discharged
for throwing the brick at the bus as reported to him. To the extent, however,
that Still testified that he discharged Hester in part because of Hester's threat
to McLeod, Still's testimony shows that he could not even remember the
existence of the alleged threat until counsel's leading question and even then
could not remember the date of the threat without further improper leading
questions. In view of the lapse between the July 26 "threat" and the August
8 discharge, I conclude that Hester's threat was not a substantial reason for
his being discharged on August 8 and that Still relied solely on the alleged,
but ultimately unfounded McLeod report, of the Hester's throwing rocks.
The failure to produce McLeod's written account of the threat adversely
affects both the nature and seriousness of the threat.
a4 Respondent concedes that McLeod's failure to testify on this matter
permits the conclusion that General Counsel met his burden on this element:
i.e., that Hemng did not throw a rock on August 8.
1102
GOLD KIST. INC.
act was the sole reason that Still discharged her, Herring's
participation in the August 3 "chanting," supra, fails to
form a lawful predicate for justifying the discharge. I con-
clude that the Herring discharge violated Section 8(a)(1) of
the Act.
4. The discharges of August 9, 1978
a. The discharge of Laverne Bullock
Wilson Still testified that he discharged Laverne Bullock
on August 9 because of her throwing a rock on the after-
noon of August 8 at Respondent's bus as it was leaving
Respondent's plant. In fact, Bullock admitted being present
at the picket line at that time (2:45 p.m.) and when the bus
was emerging from Respondent's gate on Mallard Street.
She testified that she threw one rock and could not recog-
nize the other rock throwers among the pickets, all of whom
threw rocks that afternoon. The rock she threw was about
the size of a 50-cent piece, and she was about 2 feet from
the bus when she threw it. I credit her that she threw a rock
and discredit her testimony that she did not recognize any-
one on the crowd of strikers who also threw rocks. She
admits she threw the rock and hit the bus on its side. On
this afternoon, when Bullock threw the rock, there were
employees on the bus. By this time, canvas materials lined
the inside of the windows and there was wire mesh over at
least the outside of the front, and some of the side, win-
dows.
I conclude that the discharge of Laverne Bullock was
warranted and that the discharge did not violate Section
8(a)(1) of the Act. It goes without saying that such conduct,
with employees on the bus, endangered the lives not only of
passengers on the bus but of other persons using the high-
ways.
b. The discharge of Annie Smith
As above noted, on the morning of August 9, Geneva
Poole threw a rock at Respondent's yellow bus as it was
arriving with nonstrikers. Annie Mae McLeod and Respon-
dent's chief of labor relations, Perdue, saw Poole and Annie
Smith throw rocks at the bus. In fact, Smith and Poole were
arrested on the scene by Durham police without prior inter-
vention by Respondent.
Smith, an employee of 12 years with the Company, ad-
mitted being on the picket line on the morning of August 9
and throwing a rock about the size of a half dollar at the
bus. She missed.
Wilson Still testified that he discharged her for this rock
throwing incident and also for an incident on July 26 when
she prevented a truck from entering Respondent's premises.
I regard the Respondent's failure to discharge her for this
prior conduct as a demonstration that it was not regarded
as a serious matter. On the other hand, since Respondent
immediately discharged Smith on August 9 for throwing a
~ It is therefore unnecessary to resolve the factual issue regarding Her-
ring's participation in any August 3 rock or pebble throwing and Supervisor
Robert's troubled memory regarding the August 3 events. To the extent that
Respondent argues that the August 3 events played a part in the Herring
discharge. such a position contradicts Still's explicit testimcny.
rock at the bus on August 8. I conclude that her discharge
was justified and did not violate Section 8(a)( I) of the Act.
c. The discharge of Walter Burroughs, Anza Burroughs.
and Anthony Nesmith
On the afternoon of August 8. 1978. as above noted, Re-
spondent's yellow bus with 16 nonstriking employees
aboard left Respondent's plant in order to deposit the non-
strikers at a place they had parked their cars. Respondent
no longer used the CCF warehouse on Rigsbee Avenue. 3
to 4 miles away', as a pick-up and drop-off point for the
nonstrikers. Rather, it used the Northgate Shopping ('enter
which, according to the map in evidence, (Resp. Exh. 12)
appears to be about 5 miles away. It was at the beginning of
that afternoon trip to the Northgate Shopping Center that
Laverne Bullock, supra, and other persons threw rocks at
the bus as it left the plant.
Driving the bus was Supervisor Guy Matthews. and
seated behind him. operating a CB radio. was Annie Mae
McLeod. After the barrage of rocks hit the bus immediately
after it left the plant (the bus was now protected with wire
mesh on the front and some of the side windows and canvas
on the inside of the windows), Matthews looked in the side-
view mirror and saw an orange colored car following him.
The car followed the bus for a mile and continued to follow
even after it had traversed a cloverleaf intersection and pro-
ceded for another 2 miles until it reached the Northgate
Shopping Center which contained a Sears Roebuck store.
At the time that it reached the above cloverleaf (which in
turn led to an interstate highway and thence to the shop-
ping center). Annie Mae McLeod told Matthews that there
was a car following them and that the car was owned by
Walter Burroughs. Matthews told McLeod that he knew
that the car was following the bus. McLeod recognized the
particular orange four-door Buick with a white top because
she had seen it over a long period. She contacted the plant
by CB radio but was unable to transmit clearly.
The bus thereafter reached the Northgate Shopping Cen-
ter and discharged its 16 employees. The car followed the
bus to the parking lot and stopped about 100 feet away. As
the employees left, McLeod told nonstriker Mae Bradley to
call the police. The evidence shows that a telephone call
was made to the police from the shopping center at this
time, but neither the caller nor the subject matter of the call
appears in evidence. In any event, at this time, McLeod was
able to identify the four occupants of the car: Walter Bur-
roughs, Anza Burroughs, Anthony Nesmith, and Lawrence
Fulton. The driver was Walter Burroughs and seated at his
right was his wife Anza Burroughs. Fulton and Nesmith
were in the back seat of the four-door sedan.
When all the employees were discharged from the bus,
Matthews was alone and was preparing to return the bus to
the CCF warehouse where it was regularly parked over-
night. In order to exist from the Northgate Shopping Center
parking lot, Matthews was required to follow a circular
route. Burroughs' car did not follow him, but rather moved
directly to the exit point and parked perpendicularly across
Matthews' exit path. Matthews then drove around the
blocking car and continued out of the parking lot. McLeod.
who had left the bus with the other nonstrikers. viewed
these events, and entered the Sears store and telephoned the
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
police, notifying them that there was a car following the
departing Gold Kist bus. Within a few moments, five police
cars came to the Sears store and McLeod described to the
police the car following the yellow bus, giving them the
route the bus would follow in returning to the the CCF
warehouse. The police then left.
With the car trailing him, Matthews eventually reached a
two-lane thoroughfare, both lanes going one way (Gregson
Street). Traveling south on Gregson Street, Matthews was
in the left lane and Burroughs in the right lane. At one
point, midway on Gregson Street, roughly a mile or so
away from the Northgate Shopping Center, the Burroughs'
car attempted to draw abreast of the bus, but Matthews
admits that he cut over into the right lane and prevented
Burroughs from passing him.
Within a few moments, however, the Burroughs car, trav-
eling at the right of the bus, succeeded in drawing abreast;
a glass bottle was thrown through the right-hand side door
of the bus, breaking and shattering one of the four glass
door panels. At a stop light about a half mile beyond (at the
corner of Duke and Trinity Avenues), Burroughs' car
pulled along side of the bus (which was now in the right
hand lane), and Burroughs, the car driver, on the left of the
bus, leaned across his wife and said through the opened
window at Matthews left: "I'm going to get your white
mother-fucking ass."
Thereafter, the Burroughs' car got in front of the bus as
the two vehicles traveled along, and, at the next stop light,
Nesmith and Fulton got out of the car and approached the
bus, which was some 25 feet behind the car. With the stop
light still read, Matthews speeded through the red light and
continued along, leaving the orange car behind. Within a
half mile of the CCF warehouse, on North Street, Bur-
roughs succeeded in getting ahead of the bus at a stop sign
at the intersection of Corporation and North Streets. At
that point, Nesmith and Fulton again got out of Burroughs'
car and approached the bus. As they did so, Matthews
drove to the left around the car, and Nesmith and Fulton
jumped back into the car. In the next block of North, be-
tween Broadway and Corporation Streets, Burroughs suc-
ceeded in getting ahead of the bus, and the car slowed
down. As the Burroughs' car slowed to a stop, Matthews
testified that he intentionally ran into the back of the car,
pushing it to the right. He then slowed down and disen-
gaged from the car and tried to pass to the left, but he states
that he car drove into his right side. Nevertheless, the bus
kept going with the car sliding along the right side of the
bus. It took about a half block before the bus was free of
the car. The bus then took a right turn on Broadway and
drove ultimately into the CCF warehouse at about 4:40
p.m.
Matthews got out of the bus, told Supervisor Thomas
Roberts of the accident, and then called the police, telling
them of the accident and of his presence at the CCF ware-
house. After speaking to Still, he made a report to the po-
lice about an hour later and did not go to work the next
day, August 9, because of fear of reprisal. He testified that
he hit the back of Burroughs' car intentionally and was
afraid for himself and his property.
Burroughs testified that he and his three passengers never
trailed the bus and first saw it near the CCF warehouse,
some time immediately after 4 p.m., after he looked up in
his rearview mirror and saw the bus stop at a light. He then
passed through a stop light (while it was green), and the bus
stopped at the stop light. Thereafter, he testified, he pro-
ceeded slowly. and as the light changed. the bus came
through the intersection at which it had stopped and struck
him in the rear. The impact and the subsequent dragging of
his car by the bus caused his power brakes and power steer-
ing to fail, and he then discovered that his wife had been
injured. The police came up almost immediately. and when
they told him that they had heard he had weapons, he
asked them to search the car. The search revealed no weap-
ons, bottles, or bricks of any kind. Nevertheless, the police
arrested him and charged him with disorderly conduct. At a
subsequent court hearing, on appeal, a judge apparently
dismissed the case after the jury retired.
Although Anza Burroughs did not testify, Nesmith cor-
roborated Walter Burroughs and said that they, had not
followed the yellow bus and merely met the bus near Re-
spondent's premises and were in the car in order to help
Burroughs wash his car.
Lawrence Fulton corroborated Nesmith and said that he
and Nesmith were walking on Mallard Street near Respon-
dent's plant and then went with Burroughs to have a bite to
eat, preparing to help Burroughs wash his car. Fulton had
previously been fired for strike misconduct and was not a
discriminatee in this hearing. His credibility is suspect.
In any case, I reject the testimony of Nesmith, Fulton,
and Burroughs in its entirety because of their adamant tes-
timony that they did not follow the bus. Since it appears to
me that the police were summoned sometime before the
accident, having been told that the car contained weapons,
and since it was undisputed that the police arrived on the
scene of the accident shortly after its occurrence, (1) I con-
clude that the appearance of the police was due to the prior
telephone call from Annie Mae McLeod describing the
route which the bus would follow: and (2) 1 am unable to
credit the testimony of Fulton, Nesmith, and Burroughs
which, in substance, had them first discover the bus within
a few seconds of the accident when Burroughs glanced up
in the rear mirror and saw the bus. In view of my rejection
of their testimony, there is no explanation, other than Guy
Matthews' explanation, as to the Burroughs' threat to Mat-
thews, the glass bottle being thrown through the bus win-
dow, and the sequence of events leading to the accident. In
addition, on my observation of Matthews, alone, I credit his
testimony on these events.
Matthews', intentionally crashing the bus into Bur-
roughs' car was the culmination of this game of "chicken"
which led to the injury of Anza Burroughs, a very serious
consequence indeed. While I am willing, arguendo, to credit
Burroughs' testimony that the reason he was interested in
the bus in the first place was to discover the identity of the
nonstriking employees on the bus, the entire confrontation
and escalation must be predicated on Burroughs' first act
which, in my judgment, reasonably put Matthews in fear of
physical injury. I mean by this the fact that Matthews, hav-
ing discharged all of the passengers, was alone on the bus in
the Northgate Shopping Center parking lot and was cut off
from egress by Burroughs. The car held four strikers, one of
whom had already been discharged for misconduct. The
1104
GOLD KIST. INC.
next escalation of this confrontation was that Matthews cut
off Burroughs in order to prevent Burroughs from passing
him on Gregson Street. Matthews was reasonable in trying
to prevent this action. In turn, one of the occupants of the
Burroughs' car threw a glass bottle through the side door
glass panel of the bus. The escalation continued shortly
thereafter at a stop light when Burroughs leaned across his
wife and, quite unambiguously, threatened Matthews ("I
am going to get your white mother-fucking ass"). Mat-
thews, I conclude, could reasonably believe that Fulton,
who then got out of the car and approached the bus, did
not approach for any benign purpose. This caused Mat-
thews to speed through a red light and get ahead of the car.
When the car then succeeded in getting ahead of the bus,
Matthews could reasonably fear that he was going to be cut
off. A cutoff at this juncture was not the relatively innocent
gesture that it might have been back at the Northgate Shop-
ping Center; for, by this time, a threat had been made and
a glass bottle thrown through the bus door directed, one
supposes, at Matthews. 6 Matthews then took it upon him-
self to ram the blocking car and attempt to gain the safety
of the CCF warehouse, Matthews' ultimate destination.
I conclude that this entire series of events was initiated
by Burroughs' conduct; and that having set in motion a
series of confrontations by his unlawful act of blocking in
the Northgate Shopping Center, Burroughs cannot be
heard to complain (a plea not made) that Matthews mis-
judged the seriousness of his intention. The bottle thrown
through the bus window and Burroughs' threat to Mat-
thews clearly exclude that. In short, I conclude that the
Respondent could lawfully discharge Burroughs, Nesmith,
and Anza Burroughs for their conduct of the afternoon of
August 8 in trailing and cutting off the bus, threatening
Matthews, and throwing the glass bottle through the door.
The fact that in a subsequent criminal proceeding the
charge against Burroughs apparently was dismissed by a
judge while the jury was retired does not affect my finding
herein. Not only is the criminal burden of proof more se-
vere than in the Board's proceedings, and not only is the
reason for the dismissal not disclosed, but the Board does
not abdicate its statutory responsibility to adjudicate al-
leged unfair labor practices to other tribunals whose deci-
sions may be predicated on considerations different from
those pertinent to the Board's inquiry, W. C. McQuaide,
Inc., supra. The evidence of record indicates that Respon-
dent's discharge of these three employees did not violate
Section 8(a)(l) of the Act. Bolsa Drainage, Inc., 242 NLRB
728 (1979).
5. The discharges of August 14, 1978
a. The discharge of Malinda Caldwell
Wilson Still testified that he discharged Malinda Cald-
well on August 14 because on the morning of August 8,
"Such conduct satisfied the test in W C McQuaide, Inc., supra, of a
threat of being accompanied by conduct which gives the threat "a sense of
immediacy and credence." While such conduct is conceptually little different
from Brockington kicking Tabron's car door at or near the time her fellow
picketers were chanting "[Wle will get you tonight," the generalized nature
of the threat and the type of contemporaneous physical act are qualitatively
dissimilar.
1978. she threw a brick, or part of a brick, at the car of
replacement employee Larry Joyner.
Joyner., a striker replacement, testified that between 7
and 7:30 a.m. on August 8, 1978, he drove his car toward
the main gate on Latta Street. The gate was closed and
there were two women in front of the closed gate. As the
security guard opened the gate, he first backed up his car
and then, as he raced through the entrance, one of the
women threw a brick and his the car's left door. At the
same time, a man came down Latta Street, also from the
left hand side, and threw a brick which hit the left side of
his car. Joyner, having driven through the gate. then pro-
ceeded to the Respondent's upstairs cafeteria where all new
employees were assembled prior to being assigned to work.
He asked the names of the two brick throwers (whom he
pointed out to a person in the cafeteria located right over
the main gate). That person was Annie Mae McLeod.
McLeod identified Malinda Caldwell, pointed to by Joyner,
as being the person in blue jeans. a grey sweater, and a
straw hat. Joyner reported the incident to Wilson Still and
worked until about 3 p.m. that day. Joyner testified that the
rock Malinda Caldwell threw, perhaps the size of a silver
dollar, caused a dent in his car. which had previously been
undented. McLeod confirmed that she identified Malinda
Caldwell to Larry Joyner on the morning of August 8 and
that Malinda Caldwell was pointed out as the lady in the
straw hat and grey sweatshirt (i.e.. sweater).
Caldwell, an employee of 11 years, admitted picketing at
the main gate on August 8 at about 8 a.m. with another
female employee. She confirmed Joyner's testimony that
the car drove up, stopped. and then backed up from the
main gate as if leaving. JoN ner testified that he was thinking
of entering the plant at another gate when he saw the secu-
rity guard come up and open the main gate. Caldwell testi-
fied, nevertheless. that as the car approached, speeding up
as it started to enter the main gate, she stood her ground
until the last moment, then jumped out of the way. With
the gate opened, Joyner drove his car into the parking lot.
Caldwell testified that a fellow employee (Alvis Lyons)
threw a brick at the car inside the gate but did not hit the
car. She also testified that after Joyner parked his car, she
ran away to the corner, towards Mallard Street. She denied
throwing a rock at the car but admits that 10 minutes later
she was contacted by the police.
I credit Larry Joyner's testimony, as corroborated by An-
nie Mae McLeod. and discredit Malinda Caldwell's denial.
I believe that although there is a dispute as to where Cald-
well was standing when Joyner drove through the gate, she
was adequately identified by her dress, and Joyner actually
saw her throw a brick at his car. He was seated in the left
hand driver's seat and, contrary to General Counsel's con-
tention. the brick was thrown from the left side." If any
motive were required, it would seem that Caldwell resented
Joyner almost running her down and forcing her to jump
7 Caldwell testified that after Jo) ner went through the gate. "I just turned
and started running [to Mallard Streeti" If. indeed, she had been on the right
side of Joyner's car when it went through the open gate on I.atta Street. as
General Counsel contends, and if she turned and ran, as she testified. she
would have run toward Gilbert Street, rather than toward Mallard Street
Since she said that she turned and ran toward Mallard Street. she was neces-
sarily facing the left (driver's) side (ot the car as Jo ner's car went through the
main gate. This is also Joyner's testimonS
1105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out of the way. She testified she thought Joyner was "bluff-
ing". It is apparent to me that Caldwell, temporarily block-
ing the entrance, started the incident in motion and, resent-
ing her own "bluff'" being called, so far resented Joyner's
conduct as to throw the brick at his car. I conclude that the
discharge was justified and does not violate Section 8(a)(I)
of the Act.
b. The discharge of Doris Thorpe
Wilson Still offered several reasons for the discharge of
Doris Thorpe. On August 8, at about 2 p.m., Still saw
Thorpe and a crowd of strikers run behind a Gold Kist
truck driven by Supervisor Anderson. Anderson was back-
ing a refrigerator trailer up to the shipping dock on Latta
Street. Thorpe and 35 other strikers ran to the rear of the
truck and Anderson had to stop the truck in order to avoid
crushing them or running over them at the loading dock.
About 24 employees, including Thorpe, were behind the
truck. In view of the fact that Respondent's brief does not
allude to this incident in support of the Respondent's dis-
charge of Thorpe, I conclude that Respondent did not re-
gard the incident in which Thorpe participated in blocking
Anderson's refrigerator trailer from approaching the ship-
ping dock as a significant act on which it based the dis-
charge. Rather, as will be seen hereafter, Respondent as-
serted that she was discharged for her activity on August 3
on the picket line at the CCF warehouse.
Thus, Supervisor Roberts reported to Still by phone on
August 3 that Thorpe had been at the CCF warehouse with
an iron pipe in her hand, later identified as a tire jack iron.
Still testified that Roberts told him that he heard a loud
bang as nonstrikers' cars were leaving the warehouse and
that a police officer told Thorpe to put the pipe down. Rob-
erts did not testify on the Thorpe incident at the hearing.
His pre-trial statements (G.C. Exh. 6 and 7), however, do
not support Still's recollection of Roberts' reports to him.
Roberts, in an August 3 statement given to Respondent
(G.C. Exh. 7), said only that he saw a policeman approach
Thorpe while she held the tire iron, and nothing of putting
the pipe down. It was Matthews who testified that he orally
reported seeing the policeman take the tire iron from
Thorpe. Where Still testified that either or both Roberts or
Matthews told him that Thorpe struck a vehicle, his testi-
mony is contrary to and totally unsupported by the testi-
mony and statements of both supervisors, Roberts and
Matthews. Both of them carefully avoided the assertion
that they saw Thorpe strike any vehicle. Moreover, I do not
credit Matthews' testimony that he saw a policeman take
the jack handle from Thorpe. On the contrary, I credit
Thorpe's testimony that, although a policeman spoke to her
while she possessed the jack handle, she placed it against
the warehouse wall and then retrieved it, without a police-
man touching it. I regard Matthews' contrary testimony to
be inaccurate especially because Roberts does not support
Matthews, although, to judge from his pre-trial statement,
he apparently saw the same incident Matthews saw. Re-
spondent in its brief fails to mention Roberts' observation
of his matter, which does not support Still's testimony and
is not necessarily consistent with Matthews'.
In any event, since Still discharged Thorpe for striking a
nonstriker's car and since Still's "honest belief' in the oc-
currence of this act, as in the Percy Hester discharge, was
actually not supported by his supervisors' reports to him,
the Respondent failed to support its burden of proving an
honest belief regarding the cause of its discharge of Thorpe.
National Aluminum Division, supra. It is noteworthy that
Respondent's brief, contrary to Still's testimony, fails to as-
sert that Thorpe struck the nonstriker's car with anything.
In fact, Respondent fails to advert to Still's testimony on
this point and, instead, relies solely on Thorpe's carrying the
jack handle. This August 3 telephone report by Supervisor
Roberts, reduced to writing on August II1, led to her dis-
charge on August 14 (Monday). As I understood Wilson
Still's testimony, Thorpe was discharged solely for what oc-
curred on August 3 at the CCF warehouse.
In her testimony, Thorpe, a witness whose testimony I
credit, testified that at about 3:30 p.m. on August 3, she and
six other strikers went to the CCF warehouse. There,
Thorpe was in the company of 30 or 40 strikers who took a
position outside the warehouse on both sides of the street
opposite its entrance. Thorpe admitted that she had taken
an iron jack handle, 18 inches long, out of the back of Lori
Green's car, in which she had traveled to the warehouse.
Later, she saw various sticks which other pickets had car-
ried placed along the side of the wall of the warehouse. One
of two policemen who were at the warehouse entrance told
her that she could get into trouble with the jack handle, and
she placed it up against the warehouse wall and ultimately
returned the jack handle to the back of Lori Green's car.
Thorpe openly admitted that she went to the warehouse to
scare the employees who were crossing the picket line and
to intimidate them not to go through the picket line. Thorpe
denied touching any employee or any car. I credit her testi-
mony denying that any police officer took the jack handle
from her hand and, discrediting Still, credit her uncontra-
dicted testimony that she did not strike any car.
Not only do I not credit Guy Matthews' observation re-
garding a police officer having taken the jack iron from
Thorpe-although it is quite possible that, like Supervisor
Roberts, he saw the conversation between a police officer
and Thorpe in which the police officer may have pointed to
or touched the iron jack handle-but it should be noted
that nonstriking employee Medlin told Wilson Still that she
did not see Thorpe do anything to her car notwithstanding
that a hub cap was allegedly knocked off.
Wilson Still testified that he discharged Thorpe on Au-
gust 14 after having received supervisor Thomas Roberts'
report on August II (Friday). In substance, Roberts had
told Wilson Still only that he had seen Thorpe with an iron
pipe at the picket line where striking employees were chant-
ing "We know where you live; we are going to get you
tonight," and that he heard a bang. As above noted, neither
Roberts nor Matthews said that Thorpe struck anything
and Still's testimony to the contrary is unsupportable.
Viewing the evidence most favorable to Respondent, I do
not perceive that Thorpe's conduct on August 3 constituted
an act outside the protection of Section 8(a)( ). Other em-
ployees present at the CCF warehouse that afternoon were
armed with sticks. Contrary to Respondent's argument, I
do not see that Thorpe, armed with a jack handle, perhaps
a more potent weapon, is subject to a legally significant
difference. The fact is that she did not use the jack handle
on anyone or threaten anyone with the jack handle, nor did
1106
GOLD KIST, INC.
the other pickets threaten anyone with their wooden sticks.
I conclude that Thorpe's discharge because of her activity
at the warehouse on August 3 was not justified and was a
violation of Section 8(a)(1) of the Act.
6. The October 16 discharge of Mary' Leak
Wilson Still testified that on or about September 18. at a
trial in Durham, North Carolina, he heard two policemen
testify that on August 8, 1978, at about 2 p.m., they arrested
Mary Leak for having thrown a brick at Larry Joyner's car.
Still testified that he had no idea of any such conduct prior
to hearing such testimony. Further, Still testified that on
October 16, Mary Leak was found guilty of having thrown
the brick and that on that date he determined to discharge
her and did so.
In fact, at all times, Mary Leak has denied throwing any-
thing at Joyner's car. She appealed the determination of her
guilt, and thereafter a mistrial was declared. At the original
trial two policemen and Larry Joyner testified against her.
Mary Leak testified that she was present at the picket line
on Latta Street on August 8, 1978 at about 3 p.m.: that she
stood with other strikers across the street from the main
entrance and saw three police cars come into the area; that
she saw a man in car being escorted by police cars out of
the main gate and that the car stopped in the street; that
she ran to the car and the man got out of the car and
approached Dreama Glover; that the man accused Dreama
Glover of having thrown a rock at the car and Glover de-
nied it; and that the police told the man (Larry Joyner) to
get back in the car or the police would not be responsible
for him. Thereafter, Joyner drove to the corner of Latta and
Gilbert Streets and stopped again. The first thing she knew,
she says, was that a policeman asked her to come with him
and she asked what had she done. She was taken in a police
car to the police station and there charged with disorderly
conduct. Thereafter Larry Joyner caused to be served on
her a warrant for malicious damage to his vehicle. This
warrant and her subsequent trial led to the conviction
which was thereafter appealed and the case subject to mis-
trial, as above noted. Again, as above noted, Mary Leak
denied throwing anything at Joyner's car.
Joyner had testified that in the morning, Malinda Cald-
well, above, had thrown a rock at his car. In the afternoon,
after he had gotten out of his car and the police told him to
keep driving, he turned on Latta Street toward Gilbert
Street. As he was making a right turn on Gilbert, he saw a
woman throw a rock at the car. The another woman threw
a rock at the car and hit the right door. He identified this
second woman as Mary Leak and said that she was arrested
on the spot. He thereafter identified her in the magistrate's
office.
Larry Joyner admitted at the hearing that he had pleaded
guilty to, and was on probation for, a crime of "misde-
meanor larceny." This evidence was received (Federal
Rules of Evidence, Rule 609(a)) on the ground that it in-
volved the "dishonesty" of the witness. I have taken the
plea into account in evaluating his credibility.
Patrolman Elisha Webb, a Durham, North Carolina, po-
liceman for 14 years, testified that on August 8, 1978, at the
Gold Kist plant, he arrested Mary Leak between 3:30 and 4
p.m. At that time. Larry Joyner was attempting to leave
Respondent's premises in a car and a guard opened the
gate. A picket yelled "here he comes" and pickets con-
verged on the car from both directions on Latta Street. As
Joyner's car turned toward the corner of Latta and Gilbert
Streets, he stopped and Webb saw police go to the rear of
Joyner's car and move the crowd away. Webb testified, and
I credit him, that he then saw Mary Leak throw a rock into
the side of Joyner's car, at which point he immediately ar-
rested her. He said the rock was the size of a baseball and
was a portion of a cement block. He was at the right rear of
the car when he saw Leak throw the piece of cinderblock.
side arm, into the fender area at the passenger door. He saw
no damage to the car. He testified that Leak's denial of
hitting Joyner's car was made inside the police car 3 min-
utes after the arrest. He testified that he then told her he
had seen her hit the car and that she said nothing in reply to
this.
Sergeant O.G. Mannon. of the Durham police, supervi-
sor over Officer Webb, testified that he saw Leak throw the
rock at the car and asked Webb if he had seen the event.
Webb said that he had seen her throw the piece of cinder-
block. Mannon said that he was 20 to 30 feet from Mary
Leak when she threw the cinderblock and that Leak was 8
to 10 feet from Joyner's car when she threw it.
Notwithstanding any inconclusive result of the criminal
proceedings involving the testimony of these same witnesses
against Mary Leak, I credit Webb and Mannon and con-
clude that a preponderance of the credible evidence dis-
closes, contrary to General Counsel's assertion, that Mary
Leak, on the afternoon of August 8, threw a piece of cinder-
block at Larry Joyner's car and was discharged therefor.
As above noted, the Board does not abdicate its statutory
responsibility to weigh and interpret conflicting evidence to
another tribunal whose decision may be predicated on dif-
ferent considerations from those pertinent to the Board's
inquiry. W. C. McQuaide, Inc., supra. In making my find-
ings and conclusions that Mary Leak was untruthful in de-
nying throwing the piece of cinderblock at Larry Joyner's
car, I do not rely on Joyner's testimony since the arresting
officers were close-in eyewitnesses to the event and arrested
her immediately upon her throwing the cinderblock. No
evidence of police malice was adduced, and I observed
none. I conclude that the preponderance of credible evi-
dence shows that the discharge of Mary' Leak was caused
by her throwing the piece of cinderblock at Larry Joyner's
car, and act that, though perhaps concerted, does not enjoy
the protection of Section 7 of the Act. I therefore conclude
that the discharge of Mary Leak was not in violation of
Section 8(a)(l) of the Act as alleged.
Upon the foregoing findings of fact and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LA\W
1. Respondent, Gold Kist, Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6). and
(7) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local 525, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discharging Joann Martin on August 3, 1978;
Thelma Brockington on August 4, 1978; Percy Hester on
August 8, 1978; Annie Herring on August 8, 1978; and
Doris Thorpe on August 14, 1978, all of whom were Re-
spondent's lawfully striking employees engaged in picket-
ing, without proof of their engaging in picket line miscon-
duct, Respondent violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)(1) of the Act,'l I
shall recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act.
Having found that the Respondent unlawfully dis-
charged Joann Martin (August 3), Thelma Brockington
(August 4), Percy Hester (August 8), Annie Herring (Au-
gust 8), and Doris Thorpe (August 14), all in 1978, 1 shall
recommend that the Respondent offer to each of these em-
ployees immediate reinstatement to his or her former posi-
tion, or, if such job no longer exists, to a substantially
equivalent position, without loss of seniority or other rights
or privileges, discharging if necessary any replacements
hired, and make each of these employees whole for any loss
of earnings each of them may have suffered by virtue of the
unlawful acts against them by paying to each an amount
equal to what each would have earned from the date of
discharge to the date that they are offered reinstatement by
Respondent. Abilities and Goodwill, Inc., 241 NLRB 27
(1979). Such backpay shall be computed in accordance with
the Board's formula set forth in F. W. Woolworth, Company,
90 NLRB 289 (1950), with interest thereon to be computed
as prescribed in Florida Steel Corporation, 231 NLRB 651
(1977).19
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 19(c) of the
Act, I issue the following recommended:
ORDER 20
The Respondent, Gold Kist, Inc., Durham, North Caro-
lina, its officers, agents, successors, and assigns, shall:
1s It is unnecessary, as in Burnup & Sims, supra, to reach or decide whether
Respondent's conduct in discharging its striking employees was also violative
of Sec. 8(aX3) of the Act.
J See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
20 In the event no exceptions are filed as provided by Sec. 102.46 of the
I. Cease and desist from:
(a) Discharging striking employees who do not engage in
disqualifying strike misconduct.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the purposes of the Act:
(a) Offer Joann Martin, Thelma Brockington, Percy Hes-
ter, Annie Herring, and Doris Thorpe immediate reinstate-
ment to their former positions or, if those jobs are no longer
available, to substantially equivalent positions, without loss
of seniority or other rights or privileges, discharging if nec-
essary any replacements for those employees, and make
them whole for any loss of earnings they may have suffered
by reason of the unlawful acts against them, in accordance
with the provisions of the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its plant in Durham. North Carolina, copies
of the attached notice marked "Appendix."2 Copies of said
notice on forms to be provided by the Regional Director for
Region II, after being duly signed by Respondent's autho-
rized representative, shall be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by Respondent
to make sure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director of Region I , in writ-
ing, within 20 days from the date of this Order what steps
Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations not specifically found herein.
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
21 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
1108