Jai Lai Cafe, Inc.

National Labor Relations Board - Board Decisions

Jan 2, 1973

200 N.L.R.B. 1167 (N.L.R.B. 1973)

JAI LAI CAFE, INC 1167
Jai Lai Cafe, Inc and Local Umon No 505, Hotel,
Motel and Restaurant Employees and Bartenders
International Umon, AFL-CIO Case 9-CA-6834
January 2, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On September 27, 1972, Administrative Law Judge
Harry H Kuskin issued the attached Decision in this
proceeding Thereafter, the Charging Party filed
exceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its,
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decisions in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety
i The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge It is the Boards established policy not to
overrule an Administrative Law Judge s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
2 We agree with the Administrative Law Judge s conclusion that the
discharges of DeStazio and Shubert were not in violation of Sec 8(a)(3) and
(1) of the Act, because they engaged in serious misconduct on the picket
line, e g , scattering and placing nails in the entranceways to the Employer s
premises We therefore find it unnecessary to decide whether or not
addressing obscenities to customers crossing the picket line was sufficiently
serious misconduct to warrant their discharges Accordingly, we do not pass
on the Administrative Law Judge s conclusion on that issue
DECISION
STATEMENT OF THE CASE
HARRY H KussiN, Administrative Law Judge This case
was heard at Columbus , Ohio, on July 11, 1972 A
complaint issued herein on April 18, 1972, based on a
charge filed on February 23, 1972, by Local Union No
505, Hotel, Motel and Restaurant Employees and Barten-
ders International Union, AFL-CIO, herein called the
Union It alleges that Jai Lai Cafe, Inc, herein called
Respondent, violated Section 8(a)(3) and (1) of the Act by
discharging, and failing and refusing to reinstate, employ-
ees Mary De Stazio and Elizabeth Shubert because of their
sympathy for, and activities on behalf of, the Union, and in
order to discourage membership in the Union In its
answer, Respondent denies that it has violated the Act as
alleged herein
Upon the entire record, including my observation of the
witnesses, including their demeanor while on the witness
stand, and after due consideration of the briefs of the
General Counsel and of Respondent, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent admits, that it is
an Ohio corporation engaged in the restaurant and
banquet business at its location in Columbus, Ohio, that
during the past year, which is a representative period, it
purchased goods and materials valued in excess of $50,000
from suppliers in Ohio, over each of whom the Board
would assert jurisdiction based upon the Board's direct
inflow or direct outflow standards, and that, during the
same period, its gross volume of business exceeded
$500,000 I find, upon all the foregoing, as Respondent also
admits, that Respondent is an employer as defined in
Section 2(2) of the Act and is engaged in commerce and in
operations affecting commerce as defined in Section 2(6)
and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent further admits, and I
find that Local Umon No 505, Hotel, Motel and
Restaurant Employees and Bartenders International Un-
ion, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
Some Background Facts
This proceeding had its genesis in an economic strike
called on October 2, 1971,' by the Union herein, the
exclusive bargaining agent of Respondent's employees,
when Respondent and it failed to agree upon the terms of a
new contract The strike was still current at the time of the
instant hearing The alleged discrmminatees, De Stazio and
Shubert, a banquet waitress and a waitress in the dining
room, respectively, were in the bargaining unit of about
i All dates hereinafter are in 1971 unless otherwise indicated
200 NLRB No 164
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
150 employees at the time the strike began, and joined in
the strike from its inception
By letter from Respondent, dated January 31, 1972, and
under the signature of David T Girves, its general
manager, Respondent discharged De Stazio and Shubert
for "misconduct on the picket line "2 Girves testified that
he made the decision to sever them According to De
Stazio, she was handed her letter of discharge by one
Smith, Respondent's accountant, while she was in Respon-
dent's office where she had gone from the picketing area in
order to get her W-2 form for income tax purposes And,
according to Shubert, she was handed her letter of
discharge by Girves while on the picket line It is her
undenied testimony that she asked Girves at the time,
"What have I done9", and he replied, in turn, "that he
didn't know, that he has got it on the record inside the
office at the Jai Lai Cafe " The text of Respondent's letter
in each case was identical and read as follows
You are hereby notified of your discharge from
employment at the Jai Lai Cafe, Inc The reason for
this action, which I reluctantly take, is your misconduct
on the picket line
Respondent's facility, consisting in the main of a
restaurant, bar, and banquet rooms, is located on Olentan-
gy River Road Those approaching the premises by
traveling south along this road use the nearest entrance to
them, which is referred to in the record as "Entrance A,"
and those approaching by traveling north likewise use the
entrance nearest to them, which is referred to in the record
as "Entrance B "3 As the facility is located on the west side
of Olentangy River Road, those traveling north are obliged
to cross over the road in order to make their entry So far
as appears, there are, alongside the entrances, grassy plots
approximating the shape of a half circle and about 8 to 10
feet at their deepest points, i e , there is a grassy plot north
of Entrance A, another one between Entrance A and
Entrance B, and a third one to the south of Entrance B At
the far side of this third grassy plot is the exit from the
premises for automobiles The restaurant is set back about
35 feet from the curb and is nearer to Entrance B than
Entrance A Parking is available alongside the restaurant
and on the north side of the tract
Respondent's restaurant is open 7 days a week for food
service, starting at 11 am It stays open until 12 30 am,
except on Sunday, when it closes at 9 p in Respondent's
bar opens daily at 9 30 am , its closing hours do not
appear in the record Customers begin to arrive for lunch
in significant numbers between 11 30 a in and noon and
for dinner between 5 and 5 30 p m 4 The picketing during
November and December 1971 and January 1972 began at
about 8 a in and lasted until about 11 p in, except that on
extremely cold nights the picketing would end about 8 p in
More recently pickets have been picketing from 10 30 a in
2 The charge herein alleged that Respondent discharged five employees
including De Stazio and Shubert on January 31 1972, for misconduct on
the picket line However no complaint has issued as to the other three
employees
3 A rough sketch of Respondents layout is in evidence as Resp Exh 1
4 Upward of 200 automobiles arrive on the average day for lunch and
about 100 to 120 automobiles are on Respondent s premises at any one time
in the evening
5 There is testimony that the maximum number of pickets at any one
to 1 p in, and from 4 30 to 6 30 p in The total number of
pickets would vary from 6 to 8 to 10 employees, the larger
numbers being present either at noon or about 6 30 or 7
p in 5 Some of the pickets carried picket signs with the
legend "Jai Lai on strike, Local No 505", others did not
carry any signs As already noted, De Stazio and Shubert,
the two alleged discriminatees, picketed since the strike
began Each of them testified that she picketed about five
times a week from 9 or 10 a in to about 1 or 2 p in , and
that she did no evening picketing However, there is
countervailing testimony as to the latter by Leiter, by
Roger Harvey, a Pinkerton employee who was on a
security assignment to Respondent from October 7 or 8,
1971, until January 5, 1972, and had, among his duties, the
one of observing picketers for any illegal activities, and by
James Taylor, a food checker employed by Respondent
Thus, Harvey placed De Stazio at the picket line 4 or 5
nights a week, and Leiter and Taylor placed her there at
night about twice a week And as to Shubert, Harvey made
no mention of her picketing at night, while Leiter and
Taylor placed her there in the evening in the neighborhood
of three times a week I am persuaded, and find, despite the
denials by De Stazio and Shubert of any picketing by them
in the evening during the strike, that they were involved in
such activity on some evenings until they were discharged
I find it unnecessary, however, for purposes of this
proceeding, to determine the frequency with which this
occurred It suffices here to find, as I do, in the case of De
Stazio, that she picketed on Sunday evening, November
14,6 during an incident involving a customer who was
driving a Mercury automobile through an entrance way
As will appear hereinafter, Respondent attributes to both
De Stazio and Shubert four types of picket-line misconduct
which it describes in its brief as follows (1) "blocking
ingress to and egress from the restaurant by customers and
employees", (2) "cussing and using vile language toward
employees and toward customers entering and leaving the
restaurant", (3) "placing or throwing nails in the entrance
ways to Respondent's restaurant so that vehicles entering
the facility would have their tires punctured by the nails
, and (4) "mass picketing " In addition, in its beef, it
attributes to Shubert two other items of picket-line
misconduct, viz, "throwing rocks at employees" and
"jumping on and otherwise obstructing a delivery vehicle "
I shall treat with these attributions in more detail
hereinafter
1 Guiding principles in dealing with the evidence
as to claimed picket-line misconduct by employees
who are disciplined therefor
The law is clear that where an employer discharges
employees for picket-line misconduct, as here, the burden
of proving innocence of strike misconduct shifts to the
time positioned in the grassy plot areas was 16 or 17 However , it does not
appear that they all picketed at the same time
6 I find unconvincing De Stazio s denial that she ever picketed on a
Sunday and was not there that evening and the further testimony of Ed
Warner the president and business agent of the Union to the same effect I
note in this connection, that Warner added that De Stazio came out to the
picket line on two Sundays at closing time and did so on one of these nights
in order to invite the pickets to her home after the picketing was finished
that evening
JAI LAI CAFE, INC 1169
General Counsel upon proof of a good-faith belief by the
employer that such misconduct had occurred 7 On the
matter of Respondent's good-faith belief, the record shows
that Respondent utilized the services of the Pinkerton
Detective Agency during the strike for the purpose of
"maintaining the security of (Respondent] as well as
observing [the picketers out on the sidewalk] for any illegal
activities," and, in that connection, Harvey spent on an
average of 62 to 70 hours a week in the performance of
such services over the period from October 7 or 8, 1971,
until January 5, 1972 In addition, the record shows further
that employee Leiter, upon instructions of Girves, the
general manager, was present near Entrance A and
Entrance B on a daily basis during the noon and dinner
hours (i e, from 11 30 a in to 1 p in, and from about 5 30
to 7 00 p m) over a 6-week period beginning on November
1, 1971, he would park his car north of Entrance A along
the grassy area so that the front of his car was "right even
with the curb," and would apparently sit in the car most of
the time, getting out to walk along the driveways when he
felt that the situation required it Further, as appears
hereinafter, Girves observed, in person, some of the alleged
misconduct by De Stazio and Shubert It follows therefore,
and I conclude and find, on the basis of the entire record,
that Respondent, in effecting the discharges of De Stazio
and Shubert based on these channels of information as to
their picket-line misconduct,8 had a good-faith belief that
both of them were engaged in such picket-line misconduct
as blocking entrances, using obscenities, and throwing or
putting down nails, and that Shubert also engaged in the
misconduct of jumping on and otherwise obstructing a
delivery truck 9 And it follows further that the General
Counsel therefore had the burden of proving the innocence
of each of them of such attributed misconduct Failing
such proof of innocence, the question would, of course, still
remain as to whether such attributed acts of misconduct
would be sufficient to justify discharge by Respondent
2 The alleged picket-line misconduct by De
Stazio
a Blocking of ingress to the restaurant by
customers and employees
b Cursing and using vile language
Harvey, Leiter, Taylor, and Girves testified in behalf of
Respondent in regard to its contention that De Stazio
engaged in the types of misconduct set forth in this
caption According to Harvey, during the first week of
November, the following occurred A man, driving a white
Cadillac, was "pulling into the northern driveway (En-
trance A)," and encountered De Stazio in the driveway As
the driver proceeded, he sounded his horn At this De
Stazio stopped abruptly in the middle of the driveway and
said, "Listen, you goddamn son of a bitch, you better have
7 NLRB v Burnup & Sims Inc 379 US 21, 23 fn 3 NLRB v
Plastic Applicators Inc 369 F 2d 495 (C A 5), Dallas General Drivers etc v
NLRB 389F2d553 554(CADC)
8 In this connection Girves testified credibly that the reasons [for their
discharges ] were well mass picketing for one They were blocking the
entrance for cars coming in and the exits We had reports of them cussing
customers and other employees that were working Putting nails in the
insurance on that car or else I will end up with it"
Whereupon, the driver pulled around De Stazio, who did
not move, and came through the driveway Harvey also
testified as follows with respect to another such incident
involving De Stazio on Sunday, November 14, at about
6 45 p in An elderly lady driving a Mercury automobile
was pulling into the same driveway, and again De Stazio
was standing in this driveway The elderly lady, too,
sounded her horn for De Stazio to move from the middle
of the driveway, and here, too, De Stazio responded with
obscenities, saying, "Son of a bitch, don't hit me with that
car," and also calling her a "c-k-r" 10 several times The
automobile and De Stazio were at a standstill for 5 to 10
seconds Thereafter, the driver started to move forward De
Stazio, in turn, moved away sufficiently so that the driver
was able to come around her with her automobile and
come through the driveway Additionally, Harvey testified
that the conduct of De Stazio during those two incidents
was not unusual, that she would repeat it 10 or 12 times
during the day or evening, that he had seen her, several
times during the picketing, start to walk across the
driveway as soon as the approaching automobile had its
turn signal on for entering the driveway, then proceed
slowly, stopping for about 5 seconds when she had
something to say to the occupants of the automobile, and,
after that, walking to the other side of the automobile
However, he did not remember the remarks made on other
occasions by De Stazio to people trying to drive their
automobiles into the parking area
Leiter's testimony paralleled that of Harvey in some
respects Thus, according to him, De Stazio (1) would
either alone or together with other pickets step off the curb
in front of the cars around noon as they were coming into
Entrance A or Entrance B, causing the drivers to "jam
their brakes," and causing the other cars that were behind
and also seeking to enter to "come to a screeching halt",
and (2) would remain in front of the car in the driveway for
about 15 seconds and then continue slowly across Leiter
testified further that every day that De Stazio was on the
picket line, which would be 4 or 5 days a week, he heard
her call customers, who were seeking to enter the driveway,
"sons of bitches and scabs, and scabs and bastards to use
the exact terminology", that, while he was sitting in his car
near the picketing with the window open, she called him a
"c-k-r so many times that [he] can't remember or
couldn't possibly "
Taylor's testimony was also along similar lines He
testified that during the last part of October and almost all
of November, when he was standing in the vicinity of the
picketing observing developments, he saw De Stazio
everyday or every other day during the lunch hour walk
very slowly across the path of an automobile seeking to
enter a driveway, sometimes stopping for about 15 seconds,
whereupon the automobile would have to stop very quickly
and the automobiles behind "would pile up", that, at
driveway And on Elizabeth Shubert herself we also had reports of throwing
rocks at James Taylor-and also the report of the truck incident where she
jumped on the truck the Excello truck
9 However for the reasons indicated hereinafter I find no such good
faith belief that De Stazio and Shubert engaged in mass picketing and that
Shubert in addition engaged in rock throwing
10 A vile obscenity
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times, she would shout obscenities at the customers in the
automobiles, namely, "scab, bastard, and son of a bitchin
scab", and that, on November 11, at noon, he went to see
Leiter who was in his automobile at its customary place
near the picketing, and as he entered the automobile from
which pictures were to be taken, both De Stazio and
Shubert were calling Leiter, as well as Taylor, a "c-k-r",
and both of them said to Leiter, "I see he (Leiter) has
found himself a new boy friend "
Girves' testimony was consistent with that of Harvey,
Leiter, and Taylor on the matter of blocking of ingress by
De Stazio According to him, he had personally observed
on several occasions both De Stazio and Shubert engaging
in mass picketing and in blocking cars from entering
Respondent's premises He described this conduct, as
follows "Well, they would be standing on the edge of the
driveways and when they saw a car was about to turn in,
they would start their steps into the drive and time it so
that they got there dust as the car got there, and purposely
walk slow enough to hinder the car's progress and tie up
traffic a little bit " "Sometimes they would stop, most of
the time they would continue walking " They would stop
"right in front of the car between 5 and 10 seconds",
and "the automobiles were just sitting halfway into the
street and halfway into the drive waiting for a clear path "
With respect to all the foregoing testimony which was
introduced by Respondent during its case in chief, De
Stazio testified, in rebuttal, as follows (1) that she did not
remember an incident involving a white Cadillac and does
not remember telling anyone, "You better have insurance
on that car"," (2) that she did not recall an incident
involving a Mercury car on November 14, about 6 45 p in,
and, when apprised of the fact that November 14 was a
Sunday, denied that she was ever on the picket line on a
Sunday,12 (3) that she did not ever say the obscenities to
employees which were attributed to her adding, "I have
never in my life used that language Now, I will say this,
that I have used damn, damn it, maybe a small cuss word,
but never that word [c k-r]", and (4) that she remem-
bered using the word "scabby" to a customer As to the
latter, she quickly changed her answer to say that she did
not think she said it to a customer, that she "might have
said it to an employee going in 1113 It is noteworthy that at
no time, during her rebuttal testimony, did De Stazio deny
that she had crossed in front of customers' and employees'
cars as they entered, stopping in front of them at times for
5, 10, or 15 seconds, and causing the cars, in turn, to stop,
and further that, although she denied she ever said any of
the obscenities attributed to her by Respondent's witness-
es, she did acknowledge that "in [her] life" she has used
"maybe a small cuss word", that she gave ambivalent
testimony as to whether she had, while picketing, called a
customer "scabby," and that she did not specifically deny
that, while on the picket line, she (1) called a customer in a
Cadillac automobile seeking to enter the premises "a
goddamn son of a bitch", (2) called a customer in a
Mercury automobile, who was also seeking to enter the
premises, a "son of a bitch" and also a "c-k-r," several
times, 14 (3) called other customers, who are not identified
either by name or make of car they were driving, a
"bastard" or a "son of a bitchin scab" or "son of a bitch",
(4) called nonstriking employee Leiter a "c-k-r" count-
less times, and (5) called nonstriking employee Taylor by
the same name when he was in the presence of Leiter near
the picketing on November 11
I find, in view of the above, that the General Counsel
failed to meet his burden of proving De Stazio innocent of
the foregoing Thus, De Stazio did not deny that she had
engaged in momentary blocking of customers and employ-
ees from entering the premises in their automobiles many
times on many of the days she picketed during the strike,
as credibly testified to by Harvey, Leiter, Taylor, and
Girves And, as to the claimed use of obscenities by De
Stazio, I find unconvincing and unworthy of credence her
testimony that she never used the word "c-k-r," her
retraction of her earlier admission that she had called a
customer "scabby," and her dismissal of the other
obscenities attributed to her by Harvey, Leiter, and Taylor
by granting that all she has ever used "in [her] life" in the
form of obscenities were "damn, damn it, maybe a small
cuss word "
c The throwing of nails in the entrance ways
It is apparent from the record, and I find, that nails were
frequently found lying across Respondent's entrance ways
during the strike Thus, De Stazio testified that she recalls
that on one day during November, while she was picketing,
Harvey was going along and picking up nails, that she then
said to Harvey, "Now, look, I just walked by there, don't
you accuse me of putting a nail down there," and that
Harvey opened his hands in which he had some nails and
"more or less laughed at [her] " In addition, Leiter testified
that, during the period beginning on November 1 and
ending about the middle of December, he would, on the
daily watches that he kept near the picketing area, pick up
nails and other things that were thrown, that it was "a very
rare thing when we did not pick up nails during the lunch
or dinner hour," and that the nails that he observed were
collected by him and saved, and, with everything that was
collected, there were approximately three gallon jars of
nails I note, in this connection, that Shubert testified, in
rebuttal, that she had never seen any nails at the picket
line, whereas De Stazio testified, in rebuttal, that she had
11 De Stazio was not interrogated as to whether she ever called a man in
a white Cadillac a goddamn son of a bitch
12 I have heretofore found contrary to De Stazio s denial, that she was
picketing during the evening on November 14
13 Her testimony in this regard was as follows
Q (by Mr Horner) Do you recall using any obscene language
toward an elderly woman on the picket-line?
A No sir I remember using the word scabby
Q Toward who?
A Well probably a customer-no I don t think a customer I
don t think I ever said it to a customer I might have said it to an
employee going in
14 In this connection it is apparent from Warner s testimony that an
incident involving a customer in a Mercury automobile did occur on
Sunday evening November 14, as Harvey testified Although Warner in
agreement with De Stazio testified that she was not present on the picket
line on Sunday November 14 and although his version of the incident
differed materially from that of Harvey in that according to him (1) a
brother-in-law of one of the pickets and he were walking across the entrance
at the time the Mercury automobile was about to enter (2) no attempt was
made to block the Mercury and (3) the language used was quite civil he
did not impress me as a reliable witness and I do not credit him
JAI LAI CAFE, INC 1171
never seen a nail in the entrance ways other than the one
time that she observed Harvey picking them up, and also
acknowledged that she saw Leiter "looking over the
driveway" many times and that she assumed he was
looking for nails In all these circumstances, and as the
testimony of Leiter impressed me as more accurately
reflecting the prevailing situation as to the presence of nails
on the driveways of Respondent from November 1 until
the middle of December, I credit his testimony in this
regard
There is detailed testimony by Leiter that he picked up
nails from the entrance way on November 4 and 9, at
lunchtime, directly after he had seen an individual, who
proved to be De Stazio, throw them On each occasion,
according to Leiter, he saw a picketer at the point where
she had lust entered Entrance B, and, while her back was
toward him, he saw nails leaving her body and coming
from her right side, making it appear that she had let them
loose from her left hand He testified further that, upon
noticing the nails land in the driveway, he got out of his car
which was stationed in its usual place on the north side of
Entrance A against the grassy area, and picked up the
nails Although Leiter admitted that he did not see the face
of the picketer as the nails were thrown, he insisted that he
knew that it was De Stazio as "she was the only one
standing-or walking across there [on each occasion], it
would of had to be her " Significantly, although De Stazio
testified, in rebuttal, that she never threw nails in the
presence of anyone, including Leiter, she did not specifical-
ly deny that she engaged on November 4 and November 9
in the aforesaid conduct attributed to her by Leiter and, as
found above, she admitted that Leiter, in her presence,
looked for nails along the driveway many times And I
note, too, that although Leiter placed Shubert and several
other pickets, whom he identified in the record, on the
picket line on November 4, the latter were not called as
witnesses by the General Counsel, and Shubert, who did
testify in rebuttal for the General Counsel, was not
questioned by him concerning this claimed incident In all
these circumstances, I conclude and find here, too, that the
General Counsel has failed to meet his burden of proving
De Stazio's innocence of the conduct of throwing nails
across the entrances on November 4 and 9
d Mass picketing
Respondent appears to be relying here on the same
episodes discussed heretofore in connection with the
claimed blocking by De Stazio of ingress to the restaurant
by customers and employees However, as the evidence
with respect thereto by Respondent's witnesses failed to
establish anything like the formation of a solid unyielding
mass of employees in and around the area of picketing at
any time, and further failed to show any forceful
interference of any cognizable character with nonstrikers
or customers in automobiles by De Stazio acting in concert
with other strikers, I conclude, and find, that Respondent
did not have reasonable cause to believe that De Stazio
engaged in mass picketing 15
3 The alleged picket-line misconduct by Shubert
a Blocking of ingress to the restaurant by
customers and employees
b Cursing and using vile language
As in the case of De Stazio , Harvey, Leiter , Taylor, and
Girves testified in behalf of Respondent in regard to its
contention that Shubert engaged in the types of miscon-
duct set forth in this caption According to Harvey,
Shubert would walk across the driveways very slowly from
one side to the other in order to stop the individuals from
coming into the driveway He testified further that he did
not hear Shubert make any comments to any customers as
they were driving into the restaurant Leiter testified, in
this connection, that the above -described slow walking
across the entrances by Shubert occurred during the lunch
and/or dinner hours on a daily basis over the 6-week
period that he kept watch near the picketing In addition,
he swore that "on numerous occasions" she would stop,
causing the oncoming automobile and the automobiles
behind it to stop suddenly, with the automobile in front
being "as close as an inch from her" when it stopped And,
unlike Harvey, he indicated that, during the lunch hour
picketing periods, he heard Shubert use such expressions as
"sons of bitches," "scabs," and "bastardly scabs" in
conversations that she had with customers who were in
these automobiles Also, as in the case of De Stazio, he
testified that Shubert "has called [him] a c-k-r so many
times [he] can't possibly remember" Taylor testified that
he observed Shubert from a point near the picketing as she
went through the above routine of walking across the
entrances , that, from the last of October through almost all
of November, he saw this happen usually during the lunch
hour and once in a great while in the evening, that
sometimes she would come to a stop for "approximately 15
seconds or so", that about every day or every other day an
automobile "had to stop very quickly and cars would pile
up behind", and that she would "holler" to the customers
in the automobile such expressions as "scab , bastard, son
of a bitchin scab " In addition , Taylor also testified, as I
have noted heretofore, that on November 11, at noon, the
following occurred Just as he joined Leiter in Leiter's
automobile, which was in its customary place near the
picketing, both Shubert and De Stazio called each of them
a "c-k-r," and Shubert and De Stazio , referring to Leiter
and him said , "I see he [Leiter ] has found himself a new
boy friend " Finally, Girves testified that he had personally
observed Shubert on several occasions during the period of
a month, dating from the second week of the strike,
blocking automobiles of customers as they sought to enter
the parking area, his description thereof 16 being quite the
same as Leiter gave in his testimony
With respect to the foregoing testimony, all of which was
introduced by Respondent during its case in chief, the only
countervailing evidence was by Shubert , in rebuttal, and it
was confined to the above attributions of obscenities to
her According to Shubert, (1) she does not use the words
attributed to her by Respondent's witnesses "not even
15 See The Firestone Tire & Rubber Company 187 NLRB 54
16 See the quoted testimony of Curves supra in connection with the
claimed similar conduct of De Stazio
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anywhere Not even at home Not on a picket line
either Nowhere", and (2) she never talked to any
customer while engaged in picketing activity Here, as in
the case of De Stazio, I find that the General Counsel
failed to meet his burden of proving Shubert innocent of
the aforesaid attributions to her Thus, like De Stazio,
Shubert did not deny that she had engaged in the
momentary blocking on many occasions of customers and
employees from entering Respondent's premises in their
automobiles, as testified to by Harvey, Leiter, Taylor, and
Girves And while, unlike De Stazio, Shubert denied ever
talking to a customer while that person was seeking to
enter the driveway, her testimony in this regard did not
ring true and I do not credit it And I find similarly as to
her denial that she did not use any of the obscenities
attributed to her by Respondent' s witnesses
c The placing of nails in the entrance ways
According to Respondent, there were four such incidents
involving Shubert, namely, on November 5, 8, 18, and 19
Leiter was the only witness for Respondent in this
connection and he testified as follows On November 5,
during the lunch period, while he was in his car near the
picket line, he saw Shubert walk to a point along Entrance
B, bend over, put her hand to the ground, stand up, and
then keep going to the other side of that entrance
Whereupon, he walked over and picked up "a roofing nail
sitting on its head" at the spot where Shubert had stood
He then returned to his car He hadjust before this episode
returned from making a tour of that driveway and had
found no nails sitting on their heads He testified further
that he saw Shubert go through the same routine during the
lunch period on November 8, 18, and 19, and each time he
left his car upon seeing this and found "a roofing nail
sitting on its head" at the spot where Shubert had stopped
and touched the ground, which nail he picked up and
brought to his car
In respect to the foregoing testimony, the only counter-
vailing testimony was that of Shubert, in rebuttal
According to her, she never saw or had any nails at
Respondent's picket line, nor did she ever have a roofing
nail in her hand while picketing, or stoop over and place
any nails on Respondent's driveways And, although she
acknowledged that she had seen Leiter walk along the
entrance areas and look around, she denied that she ever
saw him pick up anything As I have found heretofore that
at frequent intervals during the strike, while pickets were
present, nails were in evidence on the entrance ways to
Respondent's premises, as Shubert admittedly picketed
from 9 a in to 1 p in, 5 times a week, "ever since the strike
began," as her denials that she ever saw any nails at
Respondent's picket line do not square with the logic and
probabilities of the situation, as I am persuaded, on the
basis of my observation of Shubert, that she would not
have shrunk from engaging in such conduct, although she
was aware that Leiter was present and keeping watch at the
time, and as Leiter's testimony as to the several roofing nail
episodes was more convincing than Shubert's denials of
any involvement in such episodes, I conclude and find that
the General Counsel has failed to meet his burden of
proving Shubert innocent of placing a roofing nail in the
driveway so that it was "sitting on its head" on November
5, 8, 18, and 19
d Throwing rocks at employees
Respondent relies in this respect on the testimony of
Taylor as to an episode occurring on November 18 about
10 am near the grassy area between Entrance A and
Entrance B Taylor testified, on direct examination, that
the following occurred He was standing there with a
camera in his hand and was going to take pictures of the
approximately seven pickets that were in the vicinity when
Shubert came running across that grassy area, and from a
distance of about 5 to 7 feet flung at him a handful of
rocks, which were about 1 inch in diameter, striking him in
the face and chest area 17 I note, however, that, during
cross-examination by counsel for the Charging Party,
Taylor admitted that a prehearmg affidavit which he had
signed at the behest of Stuart M Gordon, Esq, counsel for
Respondent herein, which affidavit relates to strike
developments on November 18, made no mention of this
episode Further, while conceding that he viewed this
claimed rock throwing as a significant event, he added,
"It's not up to me I obviously told Mr Gordon, but at the
time there were so many things going on that we couldn't
make an affidavit about everything " In view of the doubt
cast upon Taylor's testimony by his failure to mention this
rock-throwing incident in the above affidavit, and in view
of Shubert's denial at the rebuttal stage, when questioned
about this claimed episode, that she ever threw any rocks
at Taylor, or at anybody else while picketing, I find that
the record fails to preponderate in favor of a finding that
Respondent had a good-faith belief that Shubert threw a
handful of rocks at Taylor on November 18
e Jumping on and otherwise obstructing a delivery
vehicle
Respondent relies here on an episode which occurred on
December 22 at about 12 15 p in at and near Entrance B,
it involved an encounter between the driver of an Excello
Wine truck and several pickets, including Shubert, when
the driver was seeking to make a delivery to Respondent
According to Harvey, the following occurred He was
standing near the restaurant building about 30 to 35 feet
from the scene of action when he saw an Excello Wine
truck slow down and stop parallel to the curb between
Entrance A and Entrance B The driver left his truck and
spoke to the six pickets, including Shubert, who were
standing on the grassy area between these two entrances
After that, the driver approached him, telling him that the
pickets were opposed to the delivery being made He
counseled the driver to make the delivery, and the driver,
after speaking on the telephone to his supervisor, advised
him that he (the driver) was told to make the delivery The
driver then went back to his truck, saying nothing to the
pickets as he passed them, and signalled that he was going
17 Taylor testified that he did not require medical attention as a
consequence
JAI LAI CAFE, INC
to turn into Entrance B At this, the six pickets moved from
the grassy plot into the driveway As the truck started to
move very slowly into the driveway, two of the pickets
moved over to the side and out of the way, two pickets, t e ,
Pat Byble and Fran Hager, "attempted to jump onto the
cab section of the front bumper of the truck", and the
other two pickets, i e , Mary Meyers and Shubert, each
jumped on the running boards on opposite sides of the
truck and grabbed the side mirrors As Byble and Hager
did not have much of a footing on the bumper, they slid off
after 3, 4, or 5 seconds However, Meyers and Shubert
continued in their respective positions as the truck moved
about 20 feet into the driveway, and then jumped off
Shubert was not questioned about the substance of
Harvey's testimony when she testified as a rebuttal witness
for the General Counsel However, she did testify concern-
ing this episode during the General Counsel's case in chief
In regard to the critical period of this episode when the
driver entered the driveway in order to make the delivery
to Respondent, Shubert testified merely that, as the driver
was coming through with his truck, Byble was crossing the
driveway, but the driver kept on going, and that she was
then 50 feet away from the truck and did not go near the
truck In this state of the record, and particularly since
Shubert's testimony as to her noninvolvement in this
episode did not impress me as being reliable, I conclude
and find that the General Counsel has-failed to meet his
burden of proving that Shubert was innocent of dumping
on and otherwise obstructing the Excello Wine truck as it
was making a delivery to Respondent
f Mass picketing
Respondent appears to be relying, in the case of Shubert,
on the same episodes discussed heretofore in connection
with the claimed blocking by her of ingress to the
restaurant by customers in automobiles, by employees in
automobiles, and by the driver of the Excello Wine truck
seeking to make a delivery However, as in the case of De
Stazio's claimed blocking of ingress to the restaurant by
customers and employees only, the evidence here fails to
establish anything like the formation of a solid unyielding
mass of employees in and around the area of picketing,
and further fails to show any forceful interference of any
cognizable character with nonstrikers or customers in
automobiles or with drivers making deliveries in trucks by
Shubert acting in concert with others I therefore conclude
here, too, and find, that Respondent did not have a good-
faith belief that Shubert engaged in mass picketing
18 In addition Shubert was involved in the blocking of ingress of the
driver of the Excello Wine truck
19 As the court said in W J Ruscoe Company v NLRB , 406 F 2d 725,
727 (C A 6) The question in each case is whether , under the circumstances
the alleged misconduct of the striker is sufficient to justify the refusal to
reinstate
20 See N L R B v Washington Aluminum Co 370 U S 917
21 N L R.B v Illinois Tool Works 153 F 2d 811, 815 816 (C A 7) Cf
N L R B v Fansteel Metallurgical Corp 306 U S 240 and Southern
Steamship Co v NLRB 31-6 U S 31
22 See Milk Wagon Drivers Union v Meadow Moor Dairies Inc 312 U S
287, 293 Republic Steel Corporation v N L R B 107 F 2d 472 479 (C A 3)
Further Analysis, Conclusions
1173
I have heretofore found that Respondent, in good faith,
believed that both De Stazio and Shubert had engaged in
the following picket-line misconduct Blocking of ingress
to the restaurant by customers and employees, 18 cursing
and using vile language, directing same to both customers
and employees, and throwing or putting down nails in the
entrance ways of Respondent And I have found further
that the General Counsel has failed to meet his burden of
proving these two individuals innocent of such picket-line
misconduct The question thus remains as to whether the
misconduct involved justified the action taken by Respon
dent of discharging them 19 And, in determining whether
the misconduct attains that level, the following settled legal
principles are to be considered (1) Concerted activities by
employees on behalf of a union or for their mutual aid or
protection have the protection of the Act unless shown to
be unlawful, violent, in breach of contract, or indefensi-
ble 20 (2) There is a distinction between activities which
"exceed the bounds of lawful conduct in a manner not
activated by improper motives, and those flagrant cases in
which misconduct is so violent or of such serious character
as to render the employees unfit for further service "21 (3)
In a strike "feelings are stirred to the depths" and "rising
passions call forth hot words," and, in consequence,
disqualification from the protection of the Act on account
of minor disorders or incidents of animal exuberance is
unwarranted 22
I am persuaded that, in applying these principles here, I
should also take into account the fact that much of the
picket-line misconduct detailed above was directed toward
Respondent's customers, without any provocation by such
customers For, I am of the view that picket-line conduct
directed to an employer's retail customers in such instances
should be required to meet a higher standard of propriety
than when directed to nonstriking employees 23 I am
therefore persuaded, and find, that the misconduct of both
De Stazio and Shubert, insofar as it was directed by each
of them against Respondent's customers was sufficiently
serious in character as to lose for each her protection as an
employee, it consisted of the oft-repeated acts of crossing
in front of customers' automobiles seeking to enter
Respondent's premises, stopping momentarily in front of
these automobiles, at times, thereby causing them and
other cars behind them to stop, and, in the course thereof,
shouting obscenities at them 24 And I do so notwithstand-
ing my further finding that such conduct, insofar as it was
directed at nonstriking employees who were seeking to
enter Respondent's premises did not, in the light of the
above-mentioned settled legal principles, constitute suffi-
23 I note in this connection that the Board left open this question of a
higher standard in the case of Montgomery Ward & Co Inc 155 NLRB
999, where a striker called a customer a bastard and a son of a bitch
because it did not believe in view of the provocation by the customer that
the conduct warranted a denial of reinstatement However on appeal in
374 F 2d 606 608 (C A 10) the court rejected the Boards finding of
provocation and answered this question, saying, a casual person herself
not immune from human irritation , is entitled to a far higher degree of
control upon the part of the picket than, for example, a nonstriking
employee
24 See the court decision in the Montgomery Ward case cited in the
footnote immediately above
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciently serious misconduct to lose De Stazio and Shubert
the protection of the Act 25
As to the misconduct of throwing or putting down nails
in the driveway, I find no warrant for distinguishing
between such misconduct on the basis of whether it was
directed against customers, or nonstriking employees, or
drivers making deliveries This misconduct, which consist-
ed of nail throwing along Respondent's driveways by De
Stazio on November 4 and 9, and of the placing of a
roofing nail on its head in a driveway by Shubert on
November 5, 8, 18, and 19 was, to anyone seeking to enter
the driveway, of such a serious nature as to lose for each of
them the protection of the Act,26 and I so find
There remains the further misconduct by Shubert of
jumping on, and otherwise obstructing, the Excello Wine
truck as it was entering the driveway in order to make a
delivery to Respondent This misconduct in which four
pickets, including Shubert, were involved, merely slowed
down or halted the vehicle momentarily, i e, strikers Byble
and Hager got off the front bumper, where they had sought
to get a footing and failed, after 3 or 4 seconds, and
strikers Meyers and Shubert, who had jumped on the
running boards on opposite sides of the truck, merely
grabbed the mirror on that side of the truck and kept their
respective positions as the truck moved forward about 20
feet into the driveway, and then jumped off Further, the
truckdriver was not otherwise interfered with and made his
delivery Accordingly, and as there is no evidence in this
record of other incidents of this nature involving Shubert, I
find that this incident was one of animal exuberance by
Shubert in the course of a strike where feelings are stirred
to the depths and may give rise to disorder And I
conclude, and find, that the above misconduct was not of
25 See The Firestone Tire & Rubber Company supra
26 See Kayser Roth Hosiery Company Inc 187 NLRB 562 Atlas Linen
and Industrial Supply 130 NLRB 761
27 See Milk Wagon Drivers Union v Meadowmoor Dairies Inc supra
Republic Steel Corporation v N L R B supra
28 In the event no exceptions are filed as provided by Sec 102 46 of the
such a serious nature as to lose Shubert the protection of
the Act 27
In sum, therefore, I conclude, and find, in the case of
each alleged discrimmatee that (1) her misconduct during
the driveway-crossing episodes insofar as it was directed at
customers seeking to enter Respondent's driveways, and
(2) her misconduct in the nail episodes whether these types
of misconduct be considered separately or in combination,
rendered her unfit for further service to Respondent and
deprived her of the protection of the Act Therefore, I
conclude further, and find, that the record fails to sustain
the allegations of the complaint herein that Respondent
violated Section 8(a)(3) and (1) of the Act in discharging
De Stazio and Shubert
Upon the basis of the entire record, I make the
following
Conclusions of Law
1 Respondent is an employer as defined in Section 2(2)
of the Act and is engaged in commerce as defined in
Section 2(6) and (7) of the Act
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act
3 Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act by discharging Mary De Stazio and Elizabeth Shubert
on or about January 31, 1972
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I hereby issue the following recommended
ORDER 28
The complaint is dismissed in its entirety
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
1 ' T U S GOVERNMENT PRINTING OFFICE 1974 0-505-065