International Harvester Co.

National Labor Relations Board - Board Decisions

Sep 28, 1976

226 N.L.R.B. 166 (N.L.R.B. 1976)

166 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
International Harvester Company, Solar Division and
International Association of Machinists and Aero-
space Workers, Silvergate District Lodge 50 and
Aeronautical Mechanics Lodge 685. Case 21-CA-
13931
September 28, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On June 17, 1976, Administrative Law- Judge Jer-
rold H., Shapiro issued the attached Decision in this
proceeding. Thereafter, the Charging Party- filed ex-
ceptions and a supporting brief, and the Respondent
filed a brief in support of the Administrative- Law
Judge's Decision.
Pursuant to the provisions of Section, 3(b) of the
National Labor Relations Act, as amended, the 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, -and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case held April 13 through April 15, 1976, is
based upon an unfair labor practice charge filed by Inter-
national Association of Machinists and Aerospace Work-
ers, Silvergate District Lodge 50 and Aeronautical Me-
chamcs Lodge 685, herein called the Union, on August 25,
1975, and a complaint issued October 23, 1975, as amend-
ed January 21, 1976, on behalf of the General Counsel of
the National Labor Relations Board, herein called the
Board, by the Regional Director for Region 21, alleging
that International Harvester Company, Solar Division,
herein called Respondent, has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the National Labor Relations Act, herein called the Act.
Respondent filed an answer denying the commission of the
alleged unfair labor practices.
Upon the entire record,'-from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
In Harvester Company, Solar Division manu-
factures gas turbine engines in San Diego, California. Re-
spondent annually sells- and- ships goods valued in excess of
$50,000 directly to customers located outside the State of
California. Respondent admits, and I find, it is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the -Act.
- II. THE -LABOR ORGANIZATION INVOLVED
International Association of Machinists and Aerospace
Workers, Silvergate' District Lodge_ 5.0and Aeronautical
Mechanics Lodge 685, is admittedly a labor, organization
within the meaning of Section 2(5) of the Act.
III. THE QUESTIONS PRESENTED
The essential questions presented for decision are wheth-
er Respondent discharged employees James Beltz, Steve
Atanasoff, and Willie Clark' for strike' misconduct -suffi-
ciently serious ^as to deprive them of the Act's protection.
IV. THE ALLEGED UNFAIR-LABOR PRACTICES
A. Background and the Applicable Legal Principles
Respondent at its three principal facilities in San Diego,
California, employs approximately 3,600 persons of whom
approximately 1,600 are represented by the Union. On July
14, 1975,3 the Union struck Respondent's San Diego facili-
ties in what was admittedly a lawful-economic strike over
negotiations for a new collective-bargaining agreement.
The strike lasted until November 15 when a new contract
was signed and the strikers returned to work. On August 20
Respondent had notified the three named discriminatees
they were discharged for engaging in strike-related miscon-
duct.
The law is settled that the Act is violated if ah employee
i General Counsel's motion to correct transcript is granted.
2 Counsel for the General Counsel at the start of the hearing stated, in
substance, that the participation of the three discriminatees in the Union's
strike constituted the union and concerted activities alleged in the com-
plaint The Charging Party's attorney agreed that the discnminatees "were
fired for alleged picket line misconduct which constituted their union activi-
ties" but added that the Union "feels that the background of their prior
activities may be significant to determine if this was really the true motiva-
tion for the discharge" In view of this contention, I have carefully consid-
ered the entire record, including the Charging Party's offers of proof, and
find that the evidence does not preponderate in favor of a finding that when
Respondent notified the disciminatees they were discharged for engaging in
certain strike related misconduct this was a pretext used by Respondent to
cloak a desire to discharge them for engaging in union activities other than
the strike-related misconduct.
3 All dates herein, unless otherwise specified, refer to 1975.
226 NLRB No. 32
INTERNATIONAL HARVESTER COMPANY 167
who is engaged in an economic •strike, is discharged for
misconduct arising out of the strike, despite the employer's
honest belief, when it is shown that the misconduct never
occurred. However, if the- employer establishes that it held
an honest belief that the, misconduct occurred, the General
Counsel must go forward with evidence to prove that the
employee did not, in fact, engage in such misconduct. See
Rubin Bros. Footwear Inc., 99 NLRB 610, 611 (1952), cited
with approval in_N.L.R.B. v. Burnup & Sims, Inc., 379 U.S.
21, 22-23 (1964). The General Counsel and the Charging
Party in their posthearing briefs do not urge that Respon-
dent lacked an honest belief that the discriminatees had
engaged in strike misconduct. Nevertheless I have carefully,
considered this matter and conclude that the record estab-
lishes such an honest belief. Respondent, hard on the heels
of the named discriminatees alleged strike-related miscon-
duct, notified them that they were discharged for engaging
in such misconduct. And, before it discharged them, Re-
spondent had conducted a thorough investigation-Respon-
dent's representatives interviewed and took written decla-
rations from witnesses and took photographs of the events
which they showed to witnesses, All of the evidence -was
carefully evaluated before Respondent reached its decision
to discharge the alleged discriminatees:a
Since there is sufficient evidence in the record to estab-
lish Respondent's honest-belief that each of the named dis-
criminatees engaged in misconduct, it was the General
Counsel's burden to prove they were not guilty. The Gen-
eral Counsel presented several witnesses to demonstrate
their innocence and the Respondent countered by calling
additional witnesses to demonstrate their guilt. I shall first
set out my ultimate findings on the question of what type
of conduct the alleged discriminatees engaged in and, then,
determine whether their conduct was of a kind sufficiently
serious to remove the protection of the Act.
B. The Material Facts
1. Steve Atanasoff
On Friday, August 15, Respondent for the first time em-
ployed strike replacements at its Glen Canyon facility. The
replacements were bused to the plant. At approximately 7
a.m., when the first two buses approached the main gate,
the lead bus was stopped momentarily by pickets and ob-
jects were thrown at the bus. Leroy Judkins, employed by
the Company's industrial relations department, was sta-
tioned at the gate to observe the picket line. Judkins credi-
bly testified that he observed Atanasoff, whom he knew by
name, among the strikers at the main gate.5 Judkins took a
A review of the evidence considered by Respondent reveals that when
the decision was reached to discharge the named discriminatees Respondent
had reason to believe that each one had engaged in substantially all of the
strike-related misconduct for which they were discharged I recognize that
Respondent erroneously attributed certain misconduct to discriminatee
Beltz . This does not, however, detract from Respondent's good-faith belief
that Beltz committed the other misconduct described in the discharge letter
5 Judkms' testimony that he personally observed Atanasoff is corroborat-
ed by the photographs of the scene, infra, and by the testimony of Ron
Martin who knew Atanasoff by "face" and observed him at the main gate
during the time material herein
dozen photographs of the scene. Several of the pho-
tographs show that Atanasoff was present.6
Based on the foregoing I find that Atanasoff was present
on August 15 at the main gate of the Company's Glen
Canyon plant at about 7 a.m. when the buses entered. In so
concluding I have carefully considered the testimony of
Atanasoff and his wife to the effect that he was home in
bed on August 15 at 7 a.m., not at the main gate of the
Glen Canyon plant. However, the evidence presented by
Respondent on this issue, considered in its entirety, im-
presses me as more reliable than the Atanasoffs' denials.
Atanasoff did not impress me as a particularly convincing
witness.? In addition, his testimony about significant mat-
ters such as his whereabouts on the morning of August 15,
and the dates he performed picket line duty was im-
peached. The alibi Atanasoff submitted to the Board in his
prehearing affidavit of August 29 differs from his testimo-
ny. Likewise, his testimony concerning the days he was on
picket duty is not consistent with what he stated- in his
affidavit and both his affidavit and testimony are not con-
sistent with the Union's picket log signed by Atanasoff
whenever he picketed.
When the first bus transporting employees into the Glen
Canyon facility was stopped by pickets on August 15, it is
undisputed that at least one hard object and one egg were
thrown at the bus and at least one window was shattered.
Respondent conducted an investigation to determine the
identity of the person or persons who threw the objects.
Several of the employees who were riding on this bus were
questioned and two-George Brakeall- and Eric Magnu-
son-informed Respondent's representatives they observed
a person throw a hard object at the bus which shattered a
window.- Brakeall and Magnuson were shown the,pho-
tographs taken by Judkins and asked if the person they
observed was in the pictures. They both identified Atana-
soff's picture. Brakeall and Magnuson testified at the hear-
mg and once again identified Atanasoff as the person who
threw the hard object which shattered a window of the bus.
Additionally, Magnuson, as he had previously told Re-
spondent, testified that he observed Atanasoff also throw
an egg at the bus.8
Based on the foregoing, I find that on August 15 Atana-
6 The conclusion that the person in the picture identified as Atanasoff is
in reality Atanasoff is based upon (1) Judkins' testimony that he personally
observed Atanasoff, (2) Atanasoffs admission that the person pictured
"looks like me", (3) my personal observation which convinces me that Ata-
nasoff and the person pictured are one and the same, (4) the failure of the
General Counsel to call a single person who was picketing on August 15,
during the time material , to testify that the person shown in the photographs
was not Atanasoff
7 He was especially unconvincing when he testified that the picture of the
person who looked like him was in reality another person Atanasoff testi-
fied he had observed this person "working on the line in packaging" but
later testified that he had never observed him doing any work but just
walking around the plant
8 Magnuson, no longer employed by Respondent, is a twice convicted
felon who lied about his criminal record on his employment application I
have , nevertheless, credited his testimony. He impressed me in manner and
demeanor as a reliable witness Moreover , his testimony in its most signifi-
cant respects was corroborated by Brakeall 's and there is nothing in the
record which indicates that he had any ulterior motive for identifying Ata-
nasoff The fact that he mistakenly thought Atanasoff was wearing "green
coveralls" does not detract from his identification inasmuch as he credibly
testified that in the few seconds involved in the throwing incident his eyes
were primarily focused on Atanasoff's face rather than his clothing
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
soff threw a hard object and an egg at a bus as it transport-
ed employees into the Company's Glen Canyon plant and
that the hard object shattered a window.
2. Willie Clark
On August 19 at the end of the first shift, about 3:30
p.m., as strike replacement Bates left the Glen Canyon
plant his auto was struck by a stone thrown by striker
Sporl. Bates got into an argument over this with Sporl. One
of the Company's industrial relations personnel, Martin,
stationed as a picket line observer, witnessed the stone
throwing incident: He went to where Bates and Sporl were
arguing and told Bates to report the incident the next day
when he came to work and,,if he desired to file a complaint
against Sporl with the-police department, a police officer
was directing traffic around the corner on Morena Boule-
vard across from the plant's main gate. Bates drove around
the corner to the main gate and parked across from the
gate in front of the patrol car of Police Officer' Testa who
was directing traffic. Sporl followed on foot .9
When Sporl, who had followed Bates, arrived at the area
of the main gate-he pointed out Bates to striker King. King
went over and told Bates to "move on." Bates refused,
instead, he walked toward the back of his auto in the direc-
tion of Police Officer Testa and indicated he wanted to
speak to Testa. Testa told him to wait until he was done
directing traffic. Bates returned to his auto and leaned
against the trunk compartment to wait for Testa. King,
who had remained, criticized Bates for being a strikebreak-
er and they argued about this. King and Bates were joined
immediately by strikers Clark and Deacon. The three strik-
ers virtually surrounded Bates who had his back to the
trunk compartment of his auto.10
The tempo of the argument between King and Bates
increased. King lost his temper and pushed Bates back into
the rear of the auto whereupon, Police Officer Testa, hear-
ing the commotion, came over and calmed things down.
However, as soon as he left, King again pushed Bates.
Bates was not able to retain his balance and was pushed
back and forth like a volleyball by King and Clark. Bates
eventually fell to the ground at which time he opened the
trunk compartment and lunged at King with a hammer he
had gotten out of the trunk but was hit over the head with
a baseball bat by Sporl and collapsed. tt
9 The facts set out in this paragraph are based upon a synthesis of the
credible testimony of Ray Bates , Ron Martin, and Ray Matthews.
10 The facts set out in this paragraph are based upon a synthesis of the
credible testimony of Ray Matthews, Ray Bates, and Robbie Elkins.
11
The facts set out in this paragraph are based upon a synthesis of the
credible testimony of Ray Bates, Keith Hawk, Ray Matthews, and William
Burns. In crediting Matthews I considered that his August 20 written decla-
ration submitted to the superior court falls to mention that Clark pushed
Bates, rather it only declares that Matthews observed King push Bates
Nevertheless, Matthews impressed me as an honest witness and since his
testimony was essentially corroborated by Bates and Hawk, I have credited
him Regarding Burns , I have only relied on that part of his testimony which
is corroborated by other witnesses, that Bates grabbed a hammer from the
trunk of his auto. Finally in evaluating the evidence I rejected the testimony
of striker Trujillo that Bates triggered the above-described melee by striking
King. Trujillo, in general, did not impress me as a reliable witness and this
testimony was not corroborated by one other witness. I do find, however,
Police Officer Testa returned to the- scene,and grabbed
Sporl and dragged him toward the -front of Bates' auto. A
number of the strikers in the vicinity converged upon Testa
and Sporl and some of them attempted to free Sporl from
Testa's arms. -Trujillo grabbed- Testa and Clark grabbed
Sporl. The result was that Testa lost his balance and in
trying to regain it released Sporl. Testa then used his porta-
ble radio transmitter to call for help.12
- Based on the foregoing, I find that on August 19r while
waiting at the Glen Canyon facility's- main gate to file a
complaint with ,a police officer about striker Sporl's mis-
conduct, Bates was pushed by striker Clark, that Bates was
thereafter assaulted by Sporl,13 and that Clark interfered
with the police officer's effort to take Sporl into custody-
Clark helped Sporl get free from the officer' s arms.
3.-James Beltz
On August 19 about 3:30 p.m. Judkins, Martin,' Hawk,
and Matthews, employed-by-Respondent's industrial rela-
tions department, witnessed the commotion described su-
pra, which took place across from the main gate at the
Glen-Canyon plant on Morena Boulevard and, when they
observed Police Officer Testa lose his footing, started
across the street to assist Testa. The Union's picket captain
at the main gate, James ' Beltz, intercepted them. Beltz
blocked their way. He placed his hand on Martin's chest
and told them to remain on their side of the "white line." 14
Martin stated they intended to `cross the street to assist the
police officer: Beltz continued to block their way. The
three-Martin, Hawk, and Matthews- 15 went around
Beltz who, in the process of trying to stop them, struck
Martin in the face with his fist which bruised Martin's
mouth severely.16
that after the pushing of Bates commenced that Bates, as Elkins testified,
quite naturally hit King in self-defense
12 The description of the events in this paragraph is based on a synthesis
of the credible testimony of Leroy Judkins, Keith Hawk, Ray Matthews,
and Robbie Elkins plus photographs of the incident I have not relied on
William Bums' testimony because I am convinced his recollection of Clark's
participation in the above episode is faulty. His testimony that he observed
Clark grab and scuffle with Police Officer Testa is uncorroborated and
contradicted by witnesses who identified striker Trujillo as the one who
grabbed and then scuffled with Testa. In relying on Elkins' and Judkins'
testimony I recognize they testified they did not observe Clark physically
touch Sporl but I am convinced that Judkins did not observe this because he
was busy at the time taking photographs of the incident and that Elkins'
recollection is not reliable on this point inasmuch as the credible testimony
of Hawk and the photographs of the incident establish that Clark was much
more than a passive bystander in the strikers' efforts to free Sporl.
13 Sporl assaulted Bates only after Bates lunged at striker King with a
hammer, however, King, aided by Clark, provoked Bates' conduct
i'0. The "white line" is a line between Morena Boulevard and the
Company's parking lot. Beltz took the position that all of the territory be-
hind the line in the direction of the parking lot was company territory and
the territory on the other side, toward the street, was the pickets' territory
from which management was barred The record does not establish that this
was the purpose of this line or that the parties had an agreement which
reasonably led Beltz to believe that this line separated the Company's terri-
tor1y from the strikers'
5 Judkins was slightly to the rear
16 In making the findings set forth in this paragraph I have carefully
considered and rejected the testimony of General Counsel's witnesses James
Beltz, Lee Thomas, and Gerald Dice. The findings are based upon a synthe-
sis of the testimony of Respondent's witnesses William Burns, Ray Mat-
thews, Ron Martin, Keith Hawk, and Dennis Ashley, who impressed me as
the more reliable witnesses In crediting Bums' account I recognize that his
INTERNATIONAL HARVESTER COMPANY
Shortly after Beltz assaulted Martin additional police
units arrived at the scene and Martin told a police sergeant
that he wanted to press charges against Beltz, explaining,
"he hit me." Beltz, who observed this exchange, walked
toward Martin with a clinched fist at his side and, using his
chest and stomach, pushed Martin back a distance of
about 8 to 10 feet all the while daring Martin to hit him.17
Martin in order to restrain Beltz placed both of his hands
on Beltz' chest and in the ensuing scuffle ended up with a
part of the picket sign Beltz had been holding which Mar-
tin broke and threw to the ground.18
Based on the foregoing, I find that on August 19 Beltz
physically attempted to prevent three of the Company's
industrial relations personnel from coming to the assis-
tance of a police officer and in the process struck one of
them, Martin, in the face with his fist severely bruising
Martin's mouth, and shortly thereafter bumped Martin
with his body and attempted to provoke a fight with Mar-
tin.
C. Conclusions
Respondent, as found supra, discharged Beltz, Clark,
and Atanasoff because it honestly believed they had en-
gaged in strike-related misconduct. Likewise, the record, as
found supra, establishes that they had in fact engaged in
such misconduct. However, my finding that Respondent's
discharge action was prompted by the strikers excesses
does not necessarily operate to relieve Respondent of un-
fair labor practice liability. The applicable legal principle
which governs this aspect of the case was recently succinct-
ly stated by the Board in W. C. McQuaide Inc., 220 NLRB
593, 594 (1975):
Sections 7 and 13 of the Act grant employees the right
to strike, picket, and engage in other concerted activi-
ty for their mutual aid or protection. It is well estab-
lished, however, that not all conduct which occurs in
the course of a labor dispute is within the purview of
Sections 7 and 13. A striking employee who engages in
serious acts of misconduct may lose the protection of
the Act and subject himself to discharge. But, as has
long been recognized by Board and court decisions,
August 21 superior court declaration makes no mention of Beltz striking
Martin and that Burns' time sequence of the incident is incorrect Nonethe-
less, I have credited his testimony since he impressed me as a sincere witness
on this point and his testimony on the significant question of whether Beltz
assaulted Martin was corroborated by Martin , Hawk, Matthews , and Ash-
ley. I have not , however, credited the testimony of Leroy Judkms that when
Beltz initially blocked Martin , and the others, he struck Martin with a picket
sign. This testimony was uncorroborated . I am convinced that Judkms' rec-
ollection on this point is not reliable inasmuch as the record indicates that
he was concentrating a substantial amount of his attention on the events
across the street . This is apparently why Judkms failed to observe Beltz
strike Martin with his fist.
17 Robbie Elkins , a witness called by the General Counsel , testified Beltz
taunted Martin, "so I hit ' you ... well come on hit me "
is In making the findings set out in this paragraph I have carefully consid-
ered and rejected the testimony of General Counsel's witnesses James Beltz,
Gerald Dice , Ronald Trujillo,' and Lee Thomas. The findings are based
upon a synthesis of the credible testimony of Respondent 's witnesses Leroy
Judkins, Ron Martin , Ray Matthews, Dennis Ashley , Keith Hawk, and
General Counsel 's witness Robbie Elkins , who impressed use as the more
reliable witnesses.
169
undue strictures on the exercise of Sections 7 and 13
rights could be imposed if every act of impropriety
committed by a striking employee is deemed sufficient
to place that employee outside the protection of the
Act. In a situation such as that here involved, the
Board has therefore evaluated the character of the im-
proper acts committed by striking employees and has
drawn certain distinctions. Thus, the Board has differ-
entiated between those cases in which employees have
arguably exceeded the bounds of lawful conduct dur-
ing a strike in a "moment of animal exuberance" [case
cited] from those cases in which the misconduct is so
flagrant or egregious so as to require subordination of
the employee's protected rights in order to vindicate
the broader interests of society as a whole.
With this principle in mind, I have evaluated the conduct
engaged in by the three persons involved and agree with
Respondent that it was sufficiently grave to warrant their
discharge.
Atanasoff threw a hard object at a bus as it transported
employees into the Company's plant. The hard object was
thrown with sufficient force to shatter a window. There is
no evidence that Atanasoff threw the object impulsively,
rather I can only infer that the object was aimed at the
window of the bus and was reasonably intended to cause
personal injury as well as property damage and to intimi-
date the strike replacements riding in the bus from continu-
ing to work for Respondent.
Clark and striker King physically pushed striker replace-
ment Bates back and forth between them like a volley-
ball ,19 and shortly thereafter Clark helped striker Sporl get
free from the arms of a police officer who was attempting
to take him into custody for assaulting Bates 20
Beltz physically attempted to prevent three representa-
tives of management from coming to the aid of Police Offi-
cer Testa and in the process deliberately hit one of them,
Martin, in the face with his fist which severely bruised
Martin's mouth and, shortly thereafter, bumped Martin
with his body and attempted to provoke a fight with Mar-
tin.
Based on the foregoing I find that the conduct of ' Beltz,
Atanasoff, and Clark went beyond the normal give and
take of a labor dispute and extended into the area of un-
protected conduct and for this reason I find that Respon-
dent was justified in discharging them.
Upon the foregoing findings, of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER21
The complaint is dismissed in its entirety.
19 Clark's conduct was deliberate-it was unprovoked
20 Although Clark may have been concerned that Sporl was being choked
by the police officer, this did not give him a license to interfere with the
police officer
2' In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes