Keco Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 16, 1985

276 N.L.R.B. 1469 (N.L.R.B. 1985)

KECO INDUSTRIES
Deco Industries , Inc. and Patrick Murray and
Roger Cobb and Thomas W. Haigis and Ruben
F. Lima. Cases 9-CA-17583-1, 9-CA-17583-2,
9-CA-17676-4, and 9-CA-17923
16 October 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 19 January 1983 Administrative Law Judge
Bernard Ries issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
In Clear Pine Mouldings, 268 NLRB 1044 (1984),
the Board held that strikers will forfeit their right
to reinstatement when they engage in "misconduct
. . . that, under the circumstances existing .. .
may reasonably tend to coerce or intimidate em-
ployees in the exercise of rights protected under
the Act." Clear Pine Mouldings, supra at 1046. Ap-
plying that test to this case, we find, contrary to
the judge, that employee Lima has forfeited his
right to reinstatement by carrying a gun in the vi-
cinity of the plant entrance used by nonstriking em-
ployees. We find that, in these circumstances,
Lima's conduct was the kind of misconduct that
would reasonably tend to coerce or intimidate em-
ployees in the exercise of their Section 7 rights.I
While it does not appear that any bargaining unit
employee saw Lima with the gun, "[t]he test of co-
ercion and intimidation is not whether the miscon-
duct proves effective. The test is whether the mis-
conduct is such that, under the circumstances exist-
ing, it may reasonably tend to coerce or intimidate
. . . ." Operating Engineers Local 542 v. NLRB,
328 F.2d 850, 852-853 (3d Cir. 1964). The salient
fact here is that Lima carried and displayed a
weapon in the vicinity of the plant entrance used
by nonstrikers. Lima himself offered no excuse or
explanation for his action here; rather, he denied
i Chairman Doston finds it difficult to envision any set of circum-
stances where weapon carrying in the tense atmosphere created by a
picket line would not reasonably tend to be coercive under the standard
of Clear Pine Mouldings, supra. He notes also that our decision here im-
poses no arguable burden on protected concerted activity. To avoid the
risk of lawful discharge strikers need only to leave deadly weapons at
home Seeking excuses for this type of misconduct only encourages
bnnksmanship.
1469
having carried a gun at all, which denial the judge
discredited.
Because the Respondent did not violate the Act
by refusing to reinstate Lima and the other strikers
named in the complaint were likewise not entitled
to reinstatement, we will dismiss the complaint.2
ORDER
The complaint is dismissed.
2 We agree with the judge that strikers Patrick Murray, Thomas
Haigis, and Roger Cobb were not entitled to reinstatement but, in so
doing, we do not rely on or adopt any of the judge's rationale which is
inconsistent with our decision in Clear Pine Mouldings , supra.
Carey E. Lindsay, Esq., of Cincinnati, Ohio, for the Gen-
eral Counsel.
Paul R. Moran, Esq., Robert J. Hollingsworth, Esq., and
David L. Barth, Esq. (Cors Bassett Kohlhepp Halloran &
Moran), of Cincinnati, Ohio, for the Respondent.
DECISION
BERNARD RIES, Administrative Law Judge. The issues
raised by these consolidated complaints were tried in
Cincinnati, Ohio, on August 24-27, 1982. Presented for
decision is whether the discharge of four striking em-
ployees violated Section 8(a)(3) or (1) of the Act.
I have carefully considered the briefs filed by the par-
ties, and I have reviewed the entire record. My findings
of fact, conclusions of law, and recommendations
follow. i
1. MATTERS OF GENERAL APPLICABILITY
Respondent manufactures military equipment at a plant
in Cincinnati, Ohio, where it employs a total of about
300 people. The 200 production workers opted for union
representation in 1980 and, no bargaining agreement
having been concluded by September 24, 1981,2 they
went out on strike on the latter date. With the execution
of a collective-bargaining agreement, the strike ended on
November 16.
During the strike and thereafter, Respondent dis-
charged four employees for engaging in misconduct in
the course of the strike, and it is the legality of those ter-
minations which is in issue here. Consideration of the
special principles which apply to the strike-discipline sit-
uation is therefore in order.
When employees have not in fact engaged in miscon-
duct in the course of striking (or of other concerted ac-
tivity protected by the statute), an employer may not
lawfully discipline them, however bona fide the belief of
the employer in their guilt. In NLRB v. Burnup & Sims,
379 U.S. 21, 23 (1964), the Supreme Court approved the
following formulation:
Transcript errors have been noted and corrected.
On brief, Respondent urges that the word "didn 't" attributed to me at
726, 1. 2, is erroneous, and that in fact I said "did " I do not recall the
statement at this time.
2 Unless otherwise indicated , all dates are in 1981.
276 NLRB No. 167
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, § 8(a)(1) is violated if it is shown that the
discharged employee was at the time engaged in a
protected activity, that the employer knew it was
such, that the basis of the discharge was an alleged
act of misconduct in the course of that activity, and
that the employee was not, in fact, guilty of that
misconduct.
As set out in General Telephone Co. of Michigan, 251
NLRB 737, 738-739 (1980), the Board has evolved the
following procedure for applying the foregoing principle
in the case of discharged economic strikers:
The law is clear that when an employer disci-
plines an employee because he has engaged in an
economic strike, such discipline violates Section
8(a)(3) and (1) of the Act. An employer may defend
its action by showing that it had an honest belief
that the employee disciplined was guilty of strike
misconduct of a serious nature. If the employer is
able to establish such a defense, then the General
Counsel must come forward with evidence that
either the employee did not engage in the conduct
asserted, or that such conduct was protected. The
burden then shifts back to the employer to rebut
such evidence.
As just indicated, the "honest belief" which the em-
ployer has to establish as a predicate for requiring the
General Counsel to adduce proof of employee innocence
must relate to "strike misconduct of a serious nature."
The Board and courts have uniformly held that "[N]ot
every impropriety committed in the course of a strike
deprives an employee of the protective mantle of the
Act," Coronet Casuals, 207 NLRB 304 (1973).
Not easily described is the standard to apply in deter-
mining whether misconduct is "serious" enough to war-
rant disciplinary action. It is universally accepted that
strikes arouse strong emotions and that, as a matter of
law, the right to engage in concerted activity includes
some elbow room for the play of those emotions.3 An
early and frequently cited case enunciating this concept
was NLRB Y. Illinois Tool Works, 153 F.2d 811, 815-816
(7th Cir. 1946):
[A] distinction is to be drawn between cases where
employees engaged in concerted activities exceed
the bounds of lawful conduct in "a moment of
animal exuberance" (Milk Wagon Drivers Union v.
Meadowmoor Dairies, Inc., 312 U.S. 287, 293, 61 S.
Ct. 552, 555, 85 L. Ed. 836, 132 A.L.R. 1200) or in
a manner not activated by improper motives, and
those flagrant cases in which the misconduct is so
violent or of such serious character as to render the
employee unfit for further service.
This statement of the standard has been frequently re-
peated. Thus, in MP Industries, 227 NLRB 1709, 1710
(1977), the Board stated:
3 "A strike is essentially a battle waged with economic weapons En-
gaged in it are human beings whose feelings are stirred to the depths."
Republic Steel Corp. v. NLRB, 107 F.2d 472, 479 (3d Cir. 1939).
The Board and courts have consistently held that
"not every impropriety committed in the course of
a strike deprives an employee of the protective
mantle of the Act." Although an employee may ac-
tually have engaged in misconduct, he or she may
not be denied reinstatement absent a showing that
"the misconduct is so violent or of such serious
character as to render the employee unfit for fur-
ther service."
Despite the repeated use of the phrase, it would
appear that the standard of "unfitness for further serv-
ice" is not to be applied literally, that is, there is no re-
quirement of a finding that the employee, by his conduct,
has demonstrated that he is no longer capable of per-
forming his work function. Thus, although the Court in
Illinois Tool Works, supra, spoke of a conclusion that the
striker was "unfit for further service," it also stated else-
where a somewhat different criterion: the "protection of
the right of employees to full freedom in self-organiza-
tional activities should be subordinated to the vindication
of the interests of society as a whole." This latter phrase
was echoed by the Board in General Telephone Co.,
supra, 251 NLRB at 739: "[T]he cases of mere `animal
exuberance' [must be] differentiated from those in which
the misconduct is so flagrant and egregious as to require
subordination of the employee's protected rights in order
to vindicate the broader interests of society as a whole."
To like effect, see W C. McQuaide, Inc., 220 NLRB 593,
594 (1975).
While hardly self-defining, the "societal interests"
standard seems more useful than one which comprises
only the categories of "animal exuberance" and "unfit
for further service," since the latter standard is, at least
in connotation, less than comprehensive. It could be
argued that between the regions of spontaneous " animal
exuberance" and "flagrant . . . misconduct . . . so vio-
lent or of such serious character as to render the employ-
ee unfit for further service" lies a zone of behavior
which is more than simple unrestrained exuberance but
less than truly egregious behavior. Generally speaking,
the cases tend to lump this vast collection of middle-
region incidents into the "flagrant" category, but they
seldom fit very comfortably, for the simple reason, that
the severity of the language ("flagrant . . . so violent
. .. of such serious character . . . render the employee
unfit for further service") seems very nearly to encom-
pass nothing less than capital crimes.
Behavior which will "render the employee unfit for
further service" could be considered to impose a very
stringent test, applicable to only the most heinous con-
duct. Consider, for example, an employee who has
served the company well and faithfully for 10 years, con-
scientiously working his 8 hours each day and periodical-
ly receiving wage increases and promotions. In the ex-
citement of the strike and in the heat of his anger at the
nonstrikers who are working while he goes without pay,
the employee takes a nail and deliberately scratches the
side of a car driven by a nonstriker as it goes through
the plant gate.
it would appear from the cases that the employee
could lawfully be discharged for such misconduct. Can it
KECO INDUSTRIES
fairly be said that this proven loyal and dedicated
worker, by virtue of this single uncharacteristic act of
mischief committed in the course of a provocative situa-
tion wholly divorced from his regular working life, has
shown himself to be "unfit for further service?"
It would hardly seem so. To the argument that his re-
instatement is undesirable because of the friction which
would result from regular contact between him and the
injured nonstriker in an employment setting once the
strike has ended, it may be asked whether the Board
would treat the matter differently upon proof that the
nonstriker has, prior to the Board's decision, left the
employ of the Company; I have seen no evidence that
the Board would do so. To the claim that the employer
is entitled to take action upon this initial showing of a
propensity for violence,4 it can be answered that long
experience has shown that , while in "service," this em-
ployee is simply not the violent type.
A review of the cases suggests that, in many of them,
a strict application of the "unfit for further service"
standard might not call for upholding the discharge, and
yet the discharges have been validated. This may be be-
cause, the behavior not having been easily amenable to
classification as mere "animal exuberance ," it was reflex-
ively labeled as "flagrant misconduct," the only remain-
ing category. It may be, on the other hand, that there are
more fundamental considerations underlying these deter-
minations than the "fitness" of the striker for future serv-
ice. As indicated, both the court and the Board in the Il-
linois Tool and General Telephone cases previously quoted
refer to subordinating the protected rights of strikers to
the "vindication ofthe interests of society as a whole."
That test, it would seem, requires a rather different in-
quiry than one limited to the question of an employee's
continued "fitness" for work. Neither tribunal identifies
the precise "interests of society as a whole" which must
be considered, or how they are to be weighed. It seems
probable, however, that the court and the Board have in
mind the need for the maintenance of civil order and the
deterrence of serious antisocial behavior at a strikebound
plant.
The literal test of "unfitness for further service," then,
would not appear to be the most useful standard, nor the
one that the Board truly has in mind .5 What the cases
really seem to be willing to sanction is a certain amount
of rough horseplay , steam blowing, and pressure releas-
ing, i.e ., "animal exuberance ." The statute has no interest
in protecting misconduct not fairly classifiable as the
venting of human emotion, and more properly adjudged
to be a calculated effort to apply force in a manner
which meaningfully infringes upon the rights of non-
strikers, the employer, and the remainder of society.
When a striker engages in the sort of non-"exuberant"
misconduct for which the employer might well discharge
an employee in a nonstrike situation , there is no discerni-
4 It could be argued, of course, that the only employers who could be
heard to advance such a claim would be those who routinely refuse to
hire employees with a past record of antisocial behavior
5 Indeed , the Board did not use that particular phrase in General Tele-
phone Co , supra, although it has often done so. E g., Iowa Beef Processors,
255 NLRB 1328, fn. 3 (1981); MP Industries, 227 NLRB 1709, 1710
(1977).
1471
ble reason for according special protection to the em-
ployee . And that, I take it, is essentially what is meant
by the Board's requirement that the disqualifying miscon-
duct be regarded as "serious."
This case was not litigated in accordance with the the-
oretical procedure outlined above in General Telephone
Co., with the Respondent first establishing its good-faith
belief that the dischargees committed serious misconduct,
thereby shifting the burden to the General Counsel to
present evidence of an absence of misconduct, followed
by Respondent 's rebuttal evidence . Instead, the more tra-
ditional (if slightly cockeyed ) presentation was made,
with the General Counsel's witnesses first denying alle-
gations which had not yet been testimonially leveled
against them , and Respondent 's witnesses coming on next
to make, inter alia, Respondent's threshold showing of
good-faith belief. Despite that, it is easy enough to sort
out the evidence here.
I first conclude that the officials of Respondent who
effected the discharges entertained a good-faith belief,
based on adequate documentation and oral reports, that
the,four alleged discrimmatees had (with one minor ex-
ception) engaged in the misconduct for which their em-
ployment was terminated . Personnel Manager Marylee
Burgess testified that the discharge decisions were made
after consultation between her and board chairman (and
"owner") Robert G. Adair. It seems to me that the evi-
dence on which Burgess and Adair acted was generally a
sufficient basis for the assertion of a "good faith belief"; I
do not read the General Counsel's brief to argue other-
wise, except about Lima, whose termination was delayed
for some 3 months, as hereafter discussed.
In discussing the cases of the four employees below,
accordingly , I shall consider that this preliminary ques-
tion has been disposed of, and will only address the re-
maining questions of what misconduct they actually en-
gaged in and the significance of such behavior.
At the close of the hearing, I had very little doubt
about the factual findings demanded by the evidence.
The comparative demeanor of the witnesses , the logic,
likelihood, and consistency of their stories, and the thou-
sand other circumstances which enter into the complex
matter of determining facts, all led me to believe that the
witnesses for Respondent plainly deserved to be substan-
tially credited on all material points of conflict. Having
studied' the transcript of proceedings and the exhibits,
and having reviewed the briefs, f perceive no reason to
modify my initial conclusions in any respect . Moreover,
because I think that there can be no real dispute about
where the essential truth lies in every vital area of con-
troversy, I can conceive of no good reason for tediously
laying out all the testimony adduced at the hearing. If I
considered the factual issues to be relatively close, I
would, as I normally do, discuss in detail the testimony
given by both sides. Here there is no need to do so.
A. Patrick Murray
By letter of October 13, Patrick Murray was notified
of his discharge, "effective as of 29 September 1981, be-
cause of your violation of company rule 7 by slashing
the tire of an Overnight [sic] Transportation truck."
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, Murray recalled being in the vicinity
of the truck at Respondent's loading dock on September
29, but he and other picketers denied that Murray had
slashed the truck's tire. Respondent presented ample tes-
timony that one of the tires had indeed been punctured.
It also presented the credible testimony of a security
guard, Joseph Ament, who saw the cut being made as he
stood near the vehicle and who identified Murray as the
person he observed "stabbing just directly into" the tire.6
I found Murray to be an unimpressive witness, but I
cannot say the same about strikers Charlotte Dickey and
Gary Fuson, both of whom testified that Murray did not
puncture the tire. Nonetheless, guard Ament was a par-
ticularly good witness, and he had no reason to make a
false accusation against Murray. Someone cut the tire,
and I believe that it was Murray.
It is unlikely that the Board would regard the stealthy
slashing of a truck tire on the fifth day of the strike as a
tolerable demonstration of animal exuberance. As Re-
spondent points out, in Davis Wholesale Co., 165 NLRB
297, 309, 314 (1967) (Keith Tomblin), the Board held
that puncturing the tire of a company truck was beyond
the pale. See also Porto Rico Container Corp., 89 NLRB
1570, 1579 (1940) (Lopez). Given such precedents, I
must necessarily conclude that Murray engaged in the
kind of "serious" misconduct which justified his termina-
tion.
In addition to the foregoing incident, Respondent also
would rely on an encounter subsequent to Murray's dis-
charge between Murray and an employee of Interstate
System. The theory of the proffer is that even if Murray
had not been discharged for slashing the tire, he would,
in any event, have been denied reinstatement for his later
behavior toward the Interstate driver. I agreed to hear
this evidence because it seems obvious that a discharged
employee might well engage in conduct which plainly
would have caused his termination had he not already
been released and which, it might reasonably be said, no
employer should be required to tolerate. Gold Kist, 245
NLRB 1095, 1101 (1979) (Poole).?
A video tape taken on October 19 showed Murray and
two female pickets attempting to prevent an Interstate
System truck from backing into Respondent's loading
dock. Murray, in a very agitated state, launched a profu-
sion of obscenities in his effort to discourage the driver
from crossing the picket line. Among the statements
picked up by the less-than-wholly-intelligible taping were
"That's right, I'll go to jail . . . going to do it. You'll be
.. . take the truck back"; "Mother fucker. You hear
that? Bust you in your mouth"; "Okay, what's your
name? . . . Hey, remember this face." Security guard
lieutenant David Weller was present during this incident,
and he recalled Murray yelling at the driver, "Remember
this face, you're going to see it later. I don't care what
they say or what they do, I'm going to get you. Just get
6 The testimony of security guard lieutenant Tom Clark is not consist-
ent with Ament's testimony that after Ament saw Murray stab the tire,
he "informed lieutenant Clark of it", Clark said that he learned of the
puncture only by noticing it himself. My impression at the hearing was
that Clark had forgotten the facts to some extent
7 If the original discharge had been unlawful, of course, other consid-
erations would come into play
a good look and remember me because I'll see you
later." Frank Biddle, a sales manager for Interstate who
was driving the truck, credibly testified in similar vein,
and added that the thing that "particularly disturbed"
him was that Murray asked "how long I thought I was
going to live" (Biddle responded, "About one more day
than you.")
As Respondent notes on brief, the Board has in the
recent past indicated that verbal abuse or threats are an
insufficient basis for disqualification if "not accompanied
by any physical acts or gestures that would provide
added emphasis or meaning to their words." W C.
McQuaide, Inc., 220 NLRB 593, 594 (1975). Accord: As-
sociated Grocers of New England, 227 NLRB 1200, 1207
(1977).
Both McQuaide and Associated Grocers were reversed,
in pertinent part, on appeal. The Third Circuit in
McQuaide" and the First Circuit in Associated Grocers9
held that, in the words of the latter court, "A serious
threat may draw its credibility from the surrounding cir-
cumstances and not from the physical gestures of the
speaker," id. at 1336; and the circuits agreed that the
proper standard is "whether the misconduct is such that,
under the circumstances existing, it may reasonably tend
to coerce or intimidate employees in the exercise of
rights protected under the Act." 552 F.2d at 528 (3d Cir.
1977); 562 F.2d at 1336 (1st Cir. 1977).
The language used by the Board in McQuaide, Associ-
ated Grocers, and other cases is an interesting and seem-
ingly unheralded departure from the sort of all-the-cir-
cumstances objective standard which the Board had
theretofore previously applied and which the courts of
appeals subsequently embraced in McQuaide and Associ-
ated Grocers.10 In decisions such as Terry Coach Indus-
tries, 166 NLRB 560, 563 (1967), and the cases cited ther-
eat, the Board employed no rule of thumb requiring
some physical gesture to qualify a spoken threat as seri-
ous misconduct.
The case of Firestone Tire Co., 187 NLRB 54 (1971), is
a particularly good example of the Board's earlier think-
552 F 2d 519
562 F.2d 1333.
10 The derivation of the McQuaide words-plus-action requirement is
also interesting. The Board's McQuaide language referring to the absence
of "physical acts or gestures" bears a "see" citation to three cases. In the
first, Valley Oil Co., 210 NLRB 370 (1974), a picketer, in response to a
vulgar remark by a nonstriker , said "I will kill you " The administrative
law judge in Valley Oil acknowledged that such a statement, "uttered se-
riously," would constitute serious misconduct, but found that the threat
was clearly not so uttered, "as evidenced by the fact that it was not ac-
companied by any physical acts of misconduct", it was "just an angry
retort provoked by Sheldon's vulgarity " Id. at 376 The only case cited
by the administrative law judge was Davis Wholesale Co., 166 NLRB 999,
1000 (1967), which relates solely to the "provocation" factor.
The second case cited in McQuaide was Federal Prescription Service, 203
NLRB 975 (1973). The citation seems to be inapposite; the only apparent-
ly relevant situation involved employee Peterson, and as to her the Board
found an actual unlawful motive behind her discharge purportedly for ut-
tering a threat. 203 NLRB at 976-977 (1973).
The final citation was to Capital Rubber Co., 201 NLRB 715 (1973). In
that case, the administrative law judge, in finding a violation, made no
reference to any "physical misconduct" requirement, he relied instead on
"the circumstances of this case" in concluding that the language used
amounted to nothing more than the "rough, vulgar, and obscene method
by which the strikers communicated their emotions." Id. at 722.
KECO INDUSTRIES
ing on the matter. In Firestone, when three striking em-
ployees went to the office of the president of a supplier
to their strikebound employer and engaged in an ex-
tended conversation about the danger to the supplier's
drivers of having their "heads peeled" if they persisted in
delivering, the Board found a disqualifying threat, al-
though the record gives no indication of accompanying
graphic illustration of head peeling.
The Board reached a similar conclusion in Firestone in
the following circumstances. Six or seven strikers ap-
proached three replacement employees in a hotel coffee-
shop, heaping invective upon them, and one striker sat
down, questioned the replacements about when they
were leaving, and told one of them that he had "better
get his bags packed and be out of town either that night
or the following day or he would put a bullet in his
back." Id. at 64. The conduct was away from the picket
line and calculated to frighten, and the threat was specif-
ic both in point of time and manner of execution.
On the other hand, in another situation in Firestone,
where a striker told the nonstriker occupant of a passing
car that if the nonstriker "did anything" (i.e., apparently
referring to the possibility of the nonstriker reporting to
management earlier cursing and vulgar gestures), the
striker "was going to get his ass," the Board considered
the latter remark too "ambiguous" to be "reasonably in-
terpreted as a direct threat of physical harm." Id. at 56.
See also Moore Business Forms, 224 NLRB 393 (1976),
and cases cited at 396-397.
There is, however, no basis for concluding that the
McQuaide and Associated Grocers line represents merely a
poorly articulated adherence to, or an unconscious aber-
ration from, the earlier Terry Coach and Firestone ap-
proach. In A. Duie Pyle, 263 NLRB 744 (1982) a Board
panel (Chairman Van de Water dissenting), in rejecting
the recommendation of the administrative law judge, said
the following:
Thus, an employer is not entitled to discharge a
striker for engaging in threats unless the threats are
accompanied by "physical acts or gestures" that
would provide added emphasis or meaning to the
striker's words sufficient to warrant finding that the
striker should not be reinstated to his job at the
strike's end.
With all respect, this seems to be an unnecessarily re-
strictive and artificial approach." 1 Nonetheless, the
Board has made it quite plain that I must apply currently
prevailing Board law in making my recommendations,
Iowa Beet`' Packers, 144 NLRB 615, 616 (1963). It is true,
of course, that due to my earlier conclusion as to the sig-
nificance of the tire slashing, it is not strictly necessary
to consider the effect of Murray's October 19 conduct
toward Biddle. If decision were required, however, I
would feel constrained to hold, under the precedents
cited above, that Murray could not have been lawfully
discharged solely for his behavior on that occasion, the
11 As earlier noted, the First and Third Circuits have already rejected
the Board's test Respondent's brief states that the Fourth, Seventh, and
Eighth Circuits have also found the Board 's logic wanting on this point,
but the brief fails to cite the relevant precedents from those courts.
1473
record indicating no particular physical motions which
made more emphatic the threats to kill 12
I might note, moreover, that such conduct may not be
considered disqualifying even under a less restrictive ap-
proach. In NLRB v. Hartmann Luggage Co., 453 F.2d
176 (6th Cir. 1971), enfg. in part 183 NLRB 1246 (1970),
the court agreed with the Board that a striker was enti-
tled to reinstatement despite the fact that she told a su-
pervisor that the strikers were angry with him, were
going to stay angry, and that "it would be a shame for
them to have to kill him . . . because he was too young
to die but it seemed like they were going to be forced to
do so." The court dismissed this attack as "picket line
rhetoric." (453 F.2d at 185.)
B. Thomas W. Haigis
On October 13, Respondent notified Thomas W.
Haigis of his discharge, effective as of September 25,
"because of your violation of company rules 4 and 5 by
threatening employees Georgina Mann and Brenda
Tolson, and by damaging Mrs. Tolson's automobile." At
the hearing, Respondent further contended that, as it
now reiterates on brief, Haigis "would also have been
denied reinstatement because of a later incident involving
damage done to the car of another nonstriking employee,
Richard Schlemmer, again caused by the throwing of a
rock at the car by Haigis."
The credited testimony shows that on September 25,
the second day of the strike, Robert Tolson, a nonem-
ployee, drove his wife, employee Brenda Tolson, and an-
other employee, Georgina Mann, to work. As the three,
all seated in the front of the car, approached the plant
shortly before 7 a.m., driving in the curb lane, Thomas
Haigis and Patrick Murray were seen picketing on the
sidewalk. Brenda Tolson observed Haigis "[reach] down
and [pick] something up, but I didn't see what he picked
up." After the car had stopped for a traffic signal at an
intersection, and had started to move forward, Brenda
Tolson next heard a "big thump" against the passenger
side of the car. Georgina Mann testified that she saw
Haigis and Murray standing on the sidewalk, and heard
"a really loud bang" on the passenger side of the car, but
did not see Haigis bend over before the sound was
heard. Robert Tolson saw two males, identified to him as
Haigis and Murray, on the sidewalk, and heard a "bang-
ing noise, sort of like a rock hitting the side" of his car.
He did not, however, see anyone bend over or throw a
projectile. When Tolson later dropped off his wife and
Mann, he examined the car for damage and discovered
that the missile had "just banged up the chrome strip on
the bottom of the car." 33
We halt the action at this point to examine the separa-
ble claim that Haigis threw a rock at the Tolson car. The
evidence establishes that, in a continuum of action,
12 It may be, however, that Murray 's behavior toward Biddle can be
considered cumulatively relevant In Georgia Kraft Co, 258 NLRB 908,
913 fa 11 (1981), the Board said that the "totality " of a striker's miscon-
duct to be evaluated may include conduct which would not be independ-
ently disqualifying
is He later secured an estimate of the damage at "$ 17 00 and some-
thing."
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Haigis leaned over in a gravel -strewn area and almost
immediately a loud sound was heard on the passenger
side of the car, inflicting damage to the vehicle . The evi-
dence further shows that only Haigis and Murray were
in the vicinity. 14 These circumstances justify a conclu-
sion that Haigis threw an object at the Tolson car. See
Giddings & Lewis, 240 NLRB 441, 448 (1979).15
Recently, in Schreiber Mfg. Co., 262 NLRB 1196
(1982), I collected and discussed some of the rock-throw-
ing cases , concluding that " [n]ot every act of throwing
during the heat of a strike is automatically disqualifying"
and that the cases authorizing discharge for rock throw-
ing implicitly required a showing of "malicious intention
and predictable danger." In affirming my conclusions,
the Board did not disavow my analysis . As for the
present case , I think it fair to infer that the missile was
thrown by Haigis with the requisite intention and in dis-
regard of the potential consequences . The object was
hurled from a short distance away;16 it was thrown with
enough force to cause a loud noise and a dent; and,
given the accelerating speed at which Tolson was driv-
ing, a distraction of the sort which occurred might have
had extremely serious results . I believe, accordingly, that
Respondent was entitled to discharge Haigis on the basis
of the reports it received relating to the rock-throwing
portion of this incident.
There was more, however . After the impact was
heard, Tolson braked the car, got out, walked to the rear
of the car, warned the approaching Haigis and Murray
not to throw anything else at his car during the strike,17
and then returned to the driver 's door . At this same time,
Brenda Tolson and Georgina Mann got out of the car on
the passenger side to examine for possible damage to the
car, and remained standing there after Tolson had reen-
tered the automobile . As Tolson did so, his wife testified,
Haigis said , "I'll blow your fucking heads off." 18 As
Haigis said this, he "reached his hand around towards
the back of his back," a motion construed by Brenda
Tolson as reaching for a gun , "because he is known to
carry a gun ." 29 Brenda testified that the motion by
14 Although Haigis testified that Kenneth Bell was "maybe 20 feet"
from the Tolson car, Bell, an otherwise unimpressive witness, later testi-
fied that he was "approximately 75 yards" away
I5 Murray at first testified that Haigis did not "have anything in his
hands," then said that Haigis had coffee in one hand "and his other hand
was in his pocket " Similar testimony was given by Kenneth Bell. Nei-
ther explained how his memory had retained such a recollection about
what was, according to both stones, such an innocuous occasion.
I have considered here the testimony of Georgina Mann that, on the
preceding day, she had seen Haigis throw a rock as big as a "pineapple"
at the car in which Mann, Brenda Tolson, and Paula Lee were driving
home at shift's end The size of this missile sounds improbable, but
Brenda Tolson, testifying prior to Mann, did say that on the first day of
the strike, Mann had said that Haigis had thrown a rock at the car, al-
though Tolson did not see it I am inclined to believe Mann's testimony
except for the size attributed to the rock
is Robert Tolson left the impression that the distance from Haigis to
the car was 10-15 feet.
17 Although the Tolsons so testified, Mann recalled Tolson saying,
"What do you think you're doing? You know, you don't scare me "
18 Mann recalled the words as "I ought to blow your fucking head
off"
19 Georgina Mann testified that she had driven in Haigis' car on occa-
sion and had seen a pistol in his glove compartment; Haigis conceded
carrying a "pellet gun" in the glove box Mann further said that, prior to
the strike, Haigis "was always making a remark that he always made sure
Haigis left her "scared to death," and Robert said that
when the two women returned to the car, they were
"scared and shook up."
Haigis and Murray denied that Haigis had thrown any-
thing at the Tolson vehicle. They testified instead that,
unaccountably, the car had come to a screeching halt
and Tolson, to their amazement, had jumped out threat-
ening to "kick ass" (to which Haigis assertedly replied,
"I'll cut your fucking head off').
I credit the account of the aftermath of the rock
throwing given by Brenda Tolson and Georgina Mann.
As an independent ground for discharging Haigis, I
think, without conviction, that Haigis' words and actions
might suffice under the Board standard discussed above.
"I'll blow your fucking heads off," accompanied by a
menacing motion made by a man known to carry a
weapon, seems a serious enough threat, although perhaps
of only momentarily frightening effect once the motion
turned out to be meaningless20; "I ought to etc." would
have been, arguably, less immediately threatening.2 t Cf.
Mosher Steel Co., 226 NLRB 1163, 1166 (1976) (Taylor;
picking up "a large rock in each hand" and shouting and
making "threatening gestures" at a truckdriver not
grounds for disqualification).
As earlier stated, Respondent would further rely on a
rock-throwing incident which occurred on September
30, but which is not referred to in the discharge letter.
When Personnel Manager Burgess was asked at the hear-
ing why, since the discharge letter was not written until
October 13, Respondent failed at that time to rely on an
incident which had occurred 2 weeks before, Burgess
stated that since "the discharge was made effective on
September the 25," she felt that the post-"discharge"
conduct could not be referred to, even though it had oc-
curred prior to the first notification of discharge. This
seems an odd and technical approach to take, but I
cannot deny Respondent's right to take it, especially
when it began establishing a pattern of "retroactive" dis-
charges. Three things seem clear: Respondent was fully
aware of the September 30 rock throwing before dis-
charging Haigis; it was the kind of conduct for which
other employees were being fired; and, if Respondent
had thought that it could terminate Haigis, on October
13, for the September 30 conduct as well as that of Sep-
tember 25, Respondent would have done so.
On September 30, Richard Schlemmer, a quality con-
trol inspector, was driving about 10 or 15 miles per hour
down a driveway leading to the back parking lot of the
plant shortly before 7 a.m. He passed Haigis standing by
the building wearing a picket sign and with a stick in his
hand, about 10 feet from the car, and then heard a "loud
that he carried something on him," and also testified that he had once
stated to Mann that he had "beat [his wife] in the head with his pistol "
Brenda Tolson testified that Mann had previously told her about seeing
the pistol in Haigis' car
20 In Associated Grocers of New England v. NLRB, supra, 562 F.2d at
1337 (1st Cir 1977), however, the court refused to allow the Board to
"excuse the employee's misconduct on grounds that the supervisor's fear
was eventually put to rest and the intimidation did not open into physical
harm."
21 On the record, I really do not have any basis for deciding precisely
how Haigis put it
KECO INDUSTRIES
boom" against the driver's side of the 1973 vehicle.
Schlemmer pulled his car over, asked Haigis why he had
done that, noting that he would be fired if he did not
report for work, and Haigis replied, "You ain't shit,
Hector." A supervisor came between the two men, and
Schlemmer proceeded to work, where he reported the
incident to management representatives. He procured an
estimate for repairing the car door dent in the amount of
$76.
That Haigis actually threw a rock at Schlemmer's ve-
hicle was convincingly testified to by Jeffrey E. Payne,
who worked as a foreman for Respondent from June
1981 to March 1982, and has since been otherwise em-
ployed. Payne said that he was driving only "two or
three feet" behind Schlemmer's car on September 30
when he saw Haigis (one of Payne's supervisees)
"[throw] a rock and hit Richard Schlemmer on his car,
on the side of his car."
There are some surface problems with Respondent's
testimony. Payne testified that the light had been dim at
that time of the morning and his car lights were on;
nonetheless, despite Payne's lights, Schlemmer testified
at the hearing that he did "not know" whether any cars
were behind him in the driveway; at an earlier criminal
trial of Haigis, Schlemmer had more affirmatively stated
that there were "no" autos behind him at the time. The
obvious question is how Schlemmer could have been un-
aware of Payne's car only a few feet behind him in the
darkness with his lights on. The answers, I suppose,
could be several: Schlemmer might simply have been
sleepy, for example.
Also of some concern is the fact that, at the earlier
criminal proceeding, Payne testified, contrary to here,
that he did not see Haigis "pick up a rock"; and here he
said that Haigis was standing when first seen, whereas in
the earlier case he stated that Haigis was "walking."
Despite these problems, however, both Schlemmer and
Payne left a strong impression of trustworthiness, and I
can perceive no basis in the record for concluding that
either or both would have fabricated this accusation
against Haigis.22 Moreover, Schlemmer testified that
Payne told him shortly after the incident that he had wit-
nessed it; there is a neatly confirming detail in the undis-
puted appearance of Assistant Plant Manager Bass on the
scene, which Payne says was the result of his informing
Bass that "Tommy and Richard are having a problem
back there" after he pulled around Schlemmer's car and
arrived at the plant; and a memorandum to the file from
personnel manager Burgess dated September 30 refers to
the information contributed by Payne on that day. Also
of interest is Haigis' recollection that he saw Payne
"about five minutes after the accident happened," but
Payne did not tell him what he had observed. That
22 Haigis, on the other hand, was a poor witness, as was Laura Hauser,
who vainly attempted to offer testimonial support to Hargis, but whose
testimony was hopelessly inconsistent with that given at the earlier crams-
real trial. While Darlene Lee, who also testified in favor of Hargis, was a
more believable person. I am not inclined to credit such testimony as that
she saw Haigis "kind of holding [his hands] up" behind Schlemmer's car,
so that she could see that they were fully occupied with a stick and a cup
of coffee Indeed, it appears from the evidence that neither Hauser nor
Lee were positioned so that they were able to see Hargis.
1475
Haigis should remember seeing Payne on that day is ex-
traordinary, unless there was some reason for remember-
ing.
Altogether, I have little doubt that Haigis threw the
rock at Schlemmer's car, and that the deed was not per-
petrated by phantom rock throwers near the railroad
tracks, as suggested by Haigis, Laura Hauser, and Dar-
lene Lee.23
According to Payne, Haigis threw the hardball-sized
rock at the vehicle moving 10 miles per hour with a
"hard" "overarm throw" from a distance of 6 feet.
Under the precedents earlier discussed, I infer from these
facts the existence of a malicious intention and predict-
able danger. Accordingly, to the extent that Respondent
may now rely on this incident, I would find this miscon-
duct a sufficient basis in itself to warrant denial of reme-
dial relief to Haigis.
C. Roger Q. Cobb
On October 13, Personnel Manager Burgess notified
Roger Cobb of his discharge effective as of September
28 "because of your violation of company rules 1, 5, and
6 by hurling an obscene suggestion to me as I handed
David Hustead his paycheck, by damaging Peggy An-
derson's automobile and assult [sic] upon Machine Shop
Foreman, [sic] Ron Schroeder."
Cobb had a busy day on September 28, the fourth full
day of the strike. First, according to the credited testi-
mony of Foreman Ronald Schroeder, as he drove into
the employee parking lot about 6:10 a.m., Cobb blocked
his car. When Schroeder attempted to inch forward,
Cobb (who "appeared to be intoxicated," was "very un-
coordinated, staggering," and carried a beer bottle)
moved toward the driver's side, "stuck his left hand
inside the window of the car and struck me in the face,"
saying at the same time that Schroeder's "day would
come." The first blow hit Schroeder's left cheek and
knocked off (and bent) Schroeder's glasses; as Cobb
withdrew his arm, he delivered a couple of stinging slaps
to Schroeder's other cheek. Schroeder then drove into
the lot and reported the incident to a security guard,
Lieutenant David Weller, who said that he had wit-
nessed the encounter.24 At the hearing, Weller con-
firmed that he had witnessed "Mr. Cobb's arm in the car
going past Ron's face" and "Ron's glasses flying off into
the interior of the car somewhere."
I believed the very credible Schroeder, as supported
by Weller; I did not believe the unlikely testimony of
Cobb, substantiated by Patrick Murray, that Cobb only
leaned down and benignly said to Schroeder, "In order
22 Haigis testified unequivocally that he saw "two" such rock throw-
ers, and even described their clothing At the earlier criminal proceeding,
he had indicated that there was only one such person When confronted
with that testimony at this hearing, Haigis blithely said, "I really couldn't
say that there was more than one person back there because I didn't
really get close enough to see them "
In any event, a rock thrown from the location at which the phantoms
were placed would not have damaged the driver's side of the car, except
perhaps by ricochet.
24 As Schroeder was entering the premises, he heard Cobb yelling
after him, calling him a "double-jointed, dick-sucking, mother-fucking
fag" and vowing to "get [Schroeder' s] ass."
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for you to help our cause, you don't need to cross the
picket line." Nor do I believe the testimony of striker
Pam Ulrich that she watched the entire incident and did
not see Cobb reach into Schroeder's window. Ulrich left
a good impression, but parts of her testimony did not
measure up, such as her notion that the "conversation"
between Cobb and Schroeder may have lasted as long as
25 seconds, which agrees with the account of no one
else, and her eventual concession that she did not keep
her eyes trained on the two men the whole time they
were together: "Continuously, no." Moreover, it appears
from the testimony of Schroeder, a more impressive wit-
ness than Ulrich, that although she was in the vicinity,
Ulrich was "walking away" from his car during the
Cobb-Schroeder encounter.25
The second reason for discharge referred to in the Oc-
tober 13 letter occurred shortly after the Cobb-Schroe-
der incident, just before 7 a.m. Employee Peggy Ander-
son, who was not a member of the bargaining unit, and
employee Rebecca Ward, who was, drove into the park-
ing lot in Anderson's car. Cobb approached the car, and
Anderson stopped. Cobb leaned on the right front side of
the car, holding a beer bottle in his left hand, and peered
into the passenger side. He raised his right fist and
brought it down "hard" on the windshield, yelling,
"You're bringing in a fucking scab." Anderson told
25 At the hearing , the General Counsel proffered a copy of a dishon-
ored subpoena addressed to an employee named William Norman, said to
have been a witness to the Cobb-Schroeder incident . Counsel made a rep-
resentation that he had placed telephone calls to Norman after the latter
had failed to appear as ordered , but had been unable to contact him, and
counsel offered in evidence a copy of the testimony of Norman given in
a criminal proceeding against Cobb I rejected the prior testimony On
brief, the General Counsel renews the effort to introduce Norman's testi-
mony.
Under Rule 804(b)(1) of the Fed R. of Evid., former testimony of an
unavailable witness may be received "if the party against whom the testi-
mony is now offered , or, in a civil action or proceeding , a predecessor in
interest , had an opportunity and similar motive to develop the testimony
by direct , cross, or redirect examination " in the prior proceeding As I
pointed out at the hearing, the Report of the House Committee on the
Judiciary noted that the version of Rule 804 (b)(1) originally submitted by
the Supreme Court to the Congress for consideration would have al-
lowed prior testimony to be admissible "if the party against whom it is
offered or a person `with motive and interest similar ' to his had an oppor-
tunity to examine the witness." The House Committee, however , thought
that it was "generally unfair to impose upon the party against whom the
hearsay evidence is being offered responsibility for the manner in which
the witness was previously handled by another party ," the "sole excep-
tion" being when "a party's predecessor in interest in a civil action or
proceeding had an opportunity and similar motive to examine the wit-
ness."
It is obvious from this history that the rule as enacted specifically in-
tended to reject the Supreme Court's notion that it was enough that the
witness had been previously examined by a person with "motive and in-
terest similar" to the party against whom the testimony is presently of-
fered The General Counsel , nonetheless, ignoring this threshold require-
ment of either precise identity of parties or a "predecessor in interest"
relationship , focuses only on the latter portion of the quoted House
Report sentence , thereby distorting its meaning "The Report of the
House Committee on Judiciary in addressing the issue of the requirement
of substantial identity said that the former testimony could be allowed in
if there was `a similar motive to examine the witness "' Although the
Committee did use those words, that , of course, is exactly the opposite of
what the Committee really said and did, in fact, the Committee conclud-
ed that a "similar motive to examine " was sufficient only when a "prede-
cessor in interest " to the present party was involved in the earlier pro-
ceeding. The State of Ohio is not a predecessor in interest to Respondent
I would note, moreover , that I cannot conceive that Norman's bare
printed words could lead me to discredit Schroeder in any circumstances.
Ward to lock the doors, security guards approached and
grabbed Cobb, and the women drove on. In Anderson's
opinion , Cobb was "staggering" because he "had too
much to drink"; Ward characterized him as "slightly in-
toxicated." There was no damage to Anderson's car.
The foregoing account is based on the complementary
testimony of Anderson and Ward. Cobb testified on re-
buttal that at no time did he strike Anderson 's wind-
shield, and that he did not recall seeing Anderson's car
on September 28. I am quite certain that the two women
did not simply concoct this tale, and I credit their testi-
mony.
The last occurrence on September 28 referred to in the
discharge letter involved Personnel Manager Burgess.
About 6:35 a.m., Burgess went to the front gate to give
striker David Hustead his paycheck. Cobb was present,
as were nonstrikers Cliff Davis and Donald Dukes. Cobb
yelled the following at Burgess: "Hey, you good-looking
thing, you; come over here and suck my weenie. I hear
you're pretty horny. Have you got the big drip?"
Cobb, interestingly enough, recalled an encounter with
Burgess on September 28, their only conversation during
the strike , but his version , as one might guess, does not
faithfully replicate hers. According to Cobb, he and a
large group of strikers (including David Hustead) were
present to pick up their paychecks. After Cobb had
asked Burgess thrice how long she would be there and
had received no reply, he impatiently snapped, "Well,
aren't you a peach!" David Hustead testified that he
picked up a paycheck "probably" on September 28; that
Cobb was also present; and that Cobb called Burgess a
"peach," a term Hustead has heard Cobb use at other
times in the past. Oddly, however, and contrary to Cobb,
there was no crowd of "75 to a little over a hundred"
employees present at the time ; Hustead had missed the
payout on the previous Friday and had come in on
Monday to get his check (a fact which corresponds to
Burgess' testimony that she had come to the gate to give
Hustead his pay), and the only people present were him-
self, Burgess , and Cobb . The sequence given by Hustead
also differed radically from Cobb's-Burgess handed
Hustead a check and Cobb, without asking questions per-
sistently, said , "Marylee, you're a peach."
There can be no question that Cobb made the offen-
sive remarks to Burgess on September 28 that she memo-
rialized on that day,26 and I so find.
It thus appears that , within an hour's time on the
morning of September 28, Cobb engaged in three acts of
misconduct. The first, in which he struck Schroeder,
would ordinarily constitute sufficient misbehavior as to
justify his discharge under the cases. E.g., Meilman Food
Industries, 234 NLRB 698, 715-716 (1978) (Hood).
The second incident, in which Cobb slammed his fist
down on the windshield of the car occupied by Ander-
26 On brief, each side faults the other for failing to call for the testimo-
ny of employees Dukes and Davis, who, Burgess testified , were present
during the encounter with Cobb Neither cites authority for drawing an
adverse inference against the other party for the perceived omission
Since Dukes and Davis were equally available to both sides within the
contemplation of the adverse inference principle , it would not be appro-
priate to draw such an inference here II Wigmore , Evidence (3d ed
1940) §§ 285, 288, 290
KECO INDUSTRIES 1477
son and Ward, might itself be disqualifying conduct.
Cobb is an unusually tall young man, and his menacing
approach to the two young women in the semidarkness
was probably terrifying, and hardly made less so by the
fact that Cobb was carrying a bottle in his other hand
(Ward cried uncontrollably for some time thereafter).
There is a problem here, however, in that the discharge
letter made no reference to an assault upon the two
women, and instead spoke only of damaging the automo-
bile, which did not in fact occur. At the hearing, Burgess
could not explain why the discharge letter referred to
Cobb "damaging" Anderson's automobile. It seems clear
that Burgess and Adair, Respondent's owner, understood
the circumstances of the Anderson-Ward incident at the
time the letter was sent, but there is a serious argument
available under Burn up & Sims that unless the employer
can make out the existence of an honest belief in the oc-
currence of the misconduct for which the employee was
purportedly discharged, it must fail in its threshold
showing. Here, Respondent has failed to demonstrate its
good-faith belief that Cobb damaged the car, since it had
no evidence of damage reported to it.
The barrage of grossly offensive language directed at
Burgess was, in my opinion, a figurative assault. While
obscene words are ordinarily discounted in this arena,
Coronet Casuals, 207 NLRB 304, 305 (1973), Longview
Furniture Co., 100 NLRB 301, 304 (1951), Cobb's thrust
against Burgess was a particularly vicious onslaught.
Respondent notes, and attempts to distinguish, the
recent Georgia Kraft Co., 258 NLRB 908, 913 (1981). In
that case, where the industrial relations manager had
heard a striker refer to her as "that fucking bitch," and
"that mother fucker, that ugly bitch," the Board held
that the misconduct was not "sufficiently egregious" to
warrant discipline.
I agree with Respondent that this case and that one
are materially unlike. In Georgia Kraft, the manager was
not addressed directly; here, she was. And what was ad-
dressed to Burgess was not the kind of commonplace
rough mutterings uttered in Georgia Kraft, but a sus-
tained and breathtakingly crude invasion of her privacy
and dignity, a verbal assault nearly physical in its dimen-
sions.
As Respondent points out, the Board has upheld the
discharge of employees for the use of language which,
while nonthreatening, is nonetheless an intolerable im-
pediment to resumption of the employment relationship.
Old Town Shoe Co., 91 NLRB 240, 273-274 (1950) (to
the Jewish general manager: "It is too bad Hitler
couldn't have lasted a couple of more years. He'd have
gotten rid of all the goddamn Jews."). In addition, the
Board has held to be sufficiently serious certain nonth-
reatening conduct which "deeply offended" the employ-
er's patrons. Southern Florida Hotel Assn., 245 NLRB
561, 564 (1979) (striker yelled obscenities and exposed
himself to two hotel guests).27
There is ample basis, therefore, for deferring to Re-
spondent's decision to discharge Cobb, except for one
problem which has not yet been discussed. Respondent
systematically set out to establish at the hearing that
Cobb was "staggering" drunk on the early morning in
question, eliciting from each witness testimony to show
the extreme degree of his inebriation. Just as consistently,
the General Counsel challenged this testimony and, in
the end, produced rebuttal testimony that Cobb drank
nothing more serious than apple juice and soft drinks on
the picket line and was known (to Murray) as a "health
freak." It seemed to me, and I said so at one point, that
the parties had their natural positions reversed; I
thought, that is, that Respondent could more convincing-
ly argue the propriety of the discharge if it could show
that Cobb was cold sober when he reached in and struck
Schroeder than if the evidence showed that Cobb's mind
was befogged by intoxicants. The parties nonetheless
persisted in their positions.
On brief, the General Counsel holds to his previous
stance, contending that the evidence fails to prove intoxi-
cation. Respondent is equally constant, and states that
after extensive research, it can find no cases which
"stand as authority for the proposition that intoxication is
a defensive or a mitigating factor in picket line miscon-
duct cases." Respondent further points to one case,
United States Plywood Corp., 153 NLRB 241 (1964), in
which the Board arguably rejected the idea that intoxica-
tion was a defense and, indeed, seemed to approve the
use of intoxication as a basis for discharge. There, a strik-
er caused a disturbance while picking up his paycheck
and was discharged for conducting himself "in a disor-
derly manner," resisting arrest, and "drinking heavily."
A panel majority agreed with the trial examiner that the
grounds for discharge were sufficient and, in a footnote,
stressed the validity of the examiner's finding that the
striker was, in fact, "intoxicated," a finding contested by
the dissent. 2 8
In criminal law, although voluntary intoxication has
not been recognized as a defense to crimes committed
while under the influence, many courts have permitted
such a defense to disprove the existence of specific ele-
ments of criminal offenses, such as purpose, motive,
malice, deliberation, premeditation, and knowledge, and
statutes have also provided that intoxication may be con-
sidered in mitigation of the penalty for a crime. 21 Am.
Jur. 2d, Criminal Law §§ 54, 155, pp. 173, 298-300.
Whether the concept of diminished capacity may or
should be imported into the body of strike misconduct
principles is not easy to decide; the policy considerations
which operate here are not the same as those which
come into play in criminal jurisprudence.
In my view, however, the issue need not be reached in
this case. For one thing, it is, to say the least, unseemly
to give an employee the benefit of a defense which he
vigorously disclaims. Moreover, while I do believe that
21 I note the recent case of Robbins Co, 233 NLRB 549, 557, (1977)
where the judge recommended reinstatement of a striker who ap-
proached a female employee and "made crude and obscene remarks and
suggestions regarding sex, including an invitation to `make some extra
money at his apartment that night."' No exceptions were taken to this
recommendation, and the Board adopted it pro forma, 233 NLRB at 549
fn. 1.
28 Dissenting Member Brown, in any event, would not have found the
conduct "so egregious" as to warrant sanctioning the discharge Id. at
243.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cobb had been imbibing on September 28, I very much
doubt that he had become so inebriated on beer by 6
a.m. that he can fairly be adjudged not responsible for
what he was doing.29
Accordingly, I conclude that the discharge of Cobb
did not violate the Act.
D. Ruben F. Lima
It was not until January 8, 1982, that Ruben Lima re-
ceived a letter of dismissal , which stated : "Because of
strike-related misconduct and your violation of Company
Rules Nos. 2 and 4, your employment by Keco Indus-
tries, Inc. has been terminated effective immediately."
The letter went on to note that Lima's name had been
placed on the striker recall list by "administrative inad-
vertence," and had been removed therefrom.
Personnel Manager Burgess testified that she and
owner Adair discussed the Lima case shortly after the in-
cident on September 26, and that a letter of discharge
was prepared. The letter was not sent, however, because
of uncertainty about the "legality" of discharging Lima
for carrying a gun when he was not on company proper-
ty. As we shall see, Company Rule No. 2 prohibits the
possession of firearms "on company premises." Although
the January 8 letter was not prepared by Burgess, she
testified (and the General Counsel seemed to agree) that,
despite the use of the conjunctive ("strike-related mis-
conduct and"), Adair did not rely on any misconduct in
effecting the discharge other than the following incident.
The evidence shows that on September 26, about 11:15
a.m., security guard Elmer Bishop, sitting in a company
van behind the back gate of Respondent's plant, ob-
served Lima walking along some railroad tracks which
run parallel to Respondent's property about 75 feet or
more behind the location at which Bishop was sitting.
Bishop recognized Lima, and he also identified "a small
caliber pistol sticking out of his belt line, pearl-handled
or white plastic-handled like a small caliber chrome
pistol." At that point, Bishop called his superior, Lieu-
tenant Weller, and reported a man "on the tracks with a
gun." At the hearing, Bishop testified that he "think[s]"
he was "sure" that he saw a real pistol, but it was "possi-
ble" that he was wrong.
Weller and Lieutenant Tom Reagan, another guard,
made their way to the back of the plant. Although the
testimony of Bishop, Weller, and Reagan is in a state of
some disarray about precisely what happened and when,
it would appear that by the time the latter two men ar-
rived at the rear of the property, Lima had disappeared
down the tracks.30 The two guards walked away, and
then received another radio call that Lima was coming
back along the tracks toward the plant. They returned
and saw Lima and another unidentified individual appear
on the tracks. From some 30-40 feet, Weller saw in
Lima's waistband what "appeared to be a revolver with
ss At least some confirmation of this impression is found in Schroe-
der's testimony as to the rather elaborate and tongue-tying epithet fash-
ioned by Cobb as Schroeder was entering the plant office, set out earlier.
30 That was the testimony of Bishop and Weller, Reagan recalled that
he and Weller saw Lima as soon as they reached the rear of the plant
instead of slightly later , as Weller recounted and as set out below I think
Reagan had a memory lapse here
pearl handles and a bright chrome or nickel-type finish
on it," which he thought to be an "[a]pproximately 22
caliber weapon." Reagan described seeing "a firearm, a
small caliber pistol . . . bright . . . chrome-plated and
pearl handles, or white handles, stag grips possibly."
Lima stayed "[j]ust a couple of minutes, not very long at
all," and then moved away.
Weller called for the police and then went to the front
of the plant, where he found Lima but saw no pistol.
Some loud mention was made of the police having been
summoned. Lima got into his car and drove to a parking
lot across the street. When the police arrived a few min-
utes later, no gun was found on Lima, in his automobile,
or in the area.
Lima denied at the hearing having ever carried a fire-
arm "on the picket line." He answered the somewhat
ambiguous question "Did you possess any type of
weapon of any kind?" by saying "Just a case-knife
case ." He went on to testify that he had worn his leather
knife case on the picket line, and also had always worn
it, with a knife, while at work, for the purpose of cutting
materials ; counsel for Respondent subsequently conceded
the truth of the latter assertion.
As a technical matter, Lima did not expressly deny
having carried a pistol on the railroad tracks , since the
questions put to him can be construed as asking only
about such possession on the picket line. To the extent,
however, that his testimony implies that he had no pistol
at all during the strike, and that what the security guards
must have seen was his knife case, I do not accept that
testimony. I conclude, from the evidence given by the
three credible guards, that something resembling a pistol
was seen in Lima's waistband . The testimony is not over-
whelmingly clear that the object was a real weapon.
Bishop was almost, but not quite , positive that it was;
Reagan was more certain. However, absent testimony
from Lima that he was carrying a toy gun or something
of the sort, I am willing to conclude that the weapon
was a genuine 22 caliber pistol.
Respondent contends that the possession of the pistol
constitutes serious misconduct because of "the effect the
presence of the weapon had or could have had on the
non-striking employees who were also exercising Section
7 rights by crossing the picket line." Respondent relies
on the decision by the Court of Appeals for the Seventh
Circuit in Overhead Door Corp. v. NLRB, 540 F.2d 878
(7th Cit. 1976), reversing in pertinent part 220 NLRB
431 (1975). In that case, the full Board approved the
holding of an administrative law judge that an employee
had been improperly denied reinstatement . The basis for
her termination had been her alleged involvement in
"misconduct in connection with damage done to the
center -light on Respondent's premises." While the judge
found that the employee had drawn a gun , crouched
down, and aimed it at the light for a minute or two, he
also found that she had not fired the weapon, and he fi-
nally found that damage to the light had occurred at an
earlier time.
Thus, the judge and the Board, concluding that the
striker had not in fact engaged in the misconduct for
which she was discharged, held that her disqualification
KECO INDUSTRIES 1479
for reinstatement was improper. The Seventh Circuit,
however, considered the matter from a broader perspec-
tive and concluded that reinstatement was not required
(540 F.2d at 882):
Her actions could not have failed to direct attention
to her and to what she was doing. The actions were
openly performed in the picketing area of a plant
'which was not shut down but which was attempt-
ing to continue its operation with non-strikers.
Word that strikers were armed could have a strong
coercive effect on non-strikers; a striker's apparent
willingness to use a weapon makes the effect even
stronger. That this effect was not demonstrated to
the ALJ is not relevant; the misconduct still oc-
curred.
Arguably, the Board's decision in Overhead Door Corp.
may subsume a conclusion that the Board did not consid-
er the momentary brandishing of a pistol as itself consti-
tuting "serious misconduct."31 And it may well be that
the Seventh Circuit would itself also see Lima's case as
being different. The record shows, as discussed, that the
only time Lima was seen with the gun was for a few
minutes while walking on railroad tracks 25-30 yards
from Respondent's back gate.32 He was not seen holding
the pistol in his hand, and thus gave no evidence of "ap-
parent willingness to use" the gun. The record contains
no indication that any nonstriking employees were in the
vicinity at the time (11:15 a.m. or thereabouts) at which
Lima was spotted; the shift begins at 7 a.m. and ends at
3:30 p.m.3 3 This decision to stick a pistol in his belt was
evidently a rapidly passing fancy on Lima's ,part. Guard
Bishop said that he had "seen Mr Lima a lot during the
strike," but these few moments were the only time that
he had detected Lima wearing a pistol.
The foregoing circumstances, as well as the decision of
the full Board in Overhead Door Corp., lead me to con-
clude that the Board would not consider Lima to be
guilty of "serious misconduct" in wearing his belt for
these few minutes, out of sight of nonstriking employees
and off company property, what probably was a 22 cali-
ber pistol. I agree with the sense of Respondent's obser-
31 I do not think that the other case cited by Respondent, Mark Con-
trols Corp, 244 NLRB 931, 946 (1979), is apposite here. In that case, the
Board approved the discharge of a striker who, after being warned that
he was committing a felony, persisted in retaining a billy club and a sap
while walking the picket line, scuffled with the police , had to be carried
away, and was terminated "[b]ecause of this conduct " Compare Mosher
Steel Co, supra, where the Board found tolerable the holding of "a large
rock in each hand ," accompanied by shouting and "threatening gestures."
32 As earlier noted , Respondent explained at the hearing that the delay
in discharging Lima was caused by its research into whether it was justi-
fied in terminating an employee who was carrying a weapon off compa-
ny premises Despite Respondent 's acknowledged awareness that Lima
was not in possession of the weapon on company-owned land, it nonethe-
less stated in the discharge letter that he was being released for , inter alia,
violating company rule 2, which prohibits possession of firearms or
weapons "on company premises" (the other rule referred to, company
rule 4, forbids "Threatening , intimidating , and coercing other employ-
ees")
33 The back gate to the plant was being used as an employee gate at
least during the first part of the strike As best as I can make out, none of
the guards came closer to Lima than about 25 yards during the brief
period in which he displayed the gun
vation on brief that "[t]o allow a striking employee
openly to wear a weapon in the vicinity of a picket line
would be to flirt with disaster and to encourage intimida-
tion," but I would at least require a showing that the
striker knowingly flaunted the weapon in the presence of
nonstrikers. I shall therefore recommend that Respond-
ent be required to reinstate Lima.34
CONCLUSIONS OF LAW
1 Respondent Keco Industries, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. By discharging Ruben F. Lima on January 8, 1982,
Respondent violated Section 8(a)(1) of the Act, which
unfair labor practice affects commerce within the mean-
ing of Section 2 (6) and (7) of the Act.
3. In no other respect alleged in the complaint has Re-
spondent violated the Act.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice in violation of Section 8(a)(1) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent unlawfully dis-
charged Ruben F. Lima on January 8, 1982, I shall rec-
ommend that the Respondent be required to offer to him
immediate reinstatement to his former position or, if such
job no longer exists, to a substantially equivalent posi-
tion, without loss of seniority or other rights or privi-
leges, discharging if necessary any replacement hired,
and make Lima whole for any loss of earnings he may
have suffered by virtue of the unlawful act against him
by paying him an amount equal to what he would have
earned from the date of discharge to the date that he is
offered reinstatement by Respondent.35 Backpay shall be
34 I note that under company rule 2, carrying the pistol on the railroad
tracks would not be violative since not done "on company premises", nor
is there any showing that the weapon was used for "threatening , intimi-
dating, or coercing other employees," as proscribed by company rule 4
Respondent has not contended here that the conduct for which Lima
was penalized was unrelated to Lima's protected activity It seems to me
that any such argument would have to be rejected under the reasoning of
the First Circuit Court of Appeals in Associated Grocers v. NLRB, supra,
562 F 2d at 1338. There the employees were disciplined for puncturing a
tire 50 miles from the site of the strike The court of appeals held that
Burnup & Sims, supra, would be inapplicable only where the asserted
misconduct was "wholly disassociated from § 7 activities " and that, in
the case before the court, the puncturing "was clearly seen [presumably
by the employer] to be in furtherance of the strike ." In the instant case, it
is obvious that the display of the pistol was thought by Respondent to be
a part of Lima's strike activity, as indicated by the discharge letter's reli-
ance on company rule 4.
3s The foregoing is the standard reinstatement order The discharge
letter to Lima indicates , however, that this remedy may have to be tai-
lored to a special situation The letter implies that although the strike had
ended in November 1981, no vacancy had opened for Lima as of January
8, 1982 , even though Lima had been inadvertently regarded as an eligible
member of the "striker recall" group. If the foregoing inference is cor-
rect, and if the present situation is that Lima would still not be entitled,
as an undischarged-but-replaced striker, to reinstatement , then Respond-
ent would not be required to offer him immediate reinstatement or give
him backpay. If, on the other hand, Lima was not entitled to reinstate-
Continued
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
computed in accordance with the Board 's formula set interest thereon to be computed as prescribed in Florida
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with Steel Corp., 231 NLRB 651 ( 1977).36
I shall also recommend posting of the traditional no-
tices and the customary purging of Respondent 's files.
[Recommended Order omitted from publication.]ment on January 8, but would have become so entitled at some point
thereafter, then the reinstatement order given in the text would apply,
and backpay would begin to run as of the date of such entitlement. 36 See generally Isis Plumbing Co, 138 NLRB 716 (1962).