McCormick & Co.

National Labor Relations Board - Board Decisions

Feb 20, 1981

254 N.L.R.B. 922 (N.L.R.B. 1981)

MeCormick & Inc., Produd Division
0.
20, 1
The
1979,'
hereinafter
mem-
ben
Indeed,
yards the itselt!
a g a
6-yearbld
boxcan
his
"Fuck you,"
' &tm refer
1
made
supervisors 1979."
beiig
Respondent
discipline
Bave
afrangement.
i@
and
Associated Gmcen
F.2d
res
gesrae
Plasreren' & Internarional
922 DECISIONS O F NATIONAL LABOR RELATIONS BOARD
Co., Grocery

and Clifford
Pitchford. Case 32-€CA-2178
February 198
DECISION AND ORDER
On September 24, 1980, Administrative Law
Judge Burton Litvack issued the attached Decision
in this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and each filed an answering brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ing& and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
operative facts are fully described in the
Administrative Law Judge's Decision. On or about
July 26, the International Longshoremen
and Warehousemen's Union Local 6, re-
ferred to as the Union, commenced an economic
strike against Respondent. Also on that date,
of the Union, including Charging Party Pitch-
ford, began picketing Respondent's facilities. With
one minor exception, the picketing was entirely
peaceful. the record reveals that Respon-
dent's supervisors crossing the picket line often
stopped and engaged in friendly conversations with
picketing employees. Throughout the strike, Pitch-
ford picketed for at least 4 hours per day,
On August 23, Pitchford was assigned to picket
in front of the "annex" building from approximate-
ly 3 p.m. until 7 p.m. The picket line was located
at the driveway entrance to the annex, approxi-
mately 75 from building A railroad
spur line is located about 30 yards behind the
annex building. Upon reporting for picket line duty
on August 23, Pitchford was accompanied by his
two sons, 6 and 12. Initially, Pitchford's sons
played some distance from the picket line. Upon
noticing the railroad track behind the annex build-
ing, however, the requested that Pitch-
ford take his brother and him to see whether there
were any hidden behind the building.
Pitchford agreed, got in his car with sons, and
drove behind the annex. A few moments later, a
pickup truck containing two supervisors appeared.
One supervisor, James Hashimoto, who was riding
in the bed of the pickup, asked Pitchford whether
he knew where he was and stated that Pitchford
should not be there. Pitchford replied,
and "It's none of your damn business." Hashimoto
reiterated that Pitchford should not be behind the
annex building and stated that he did not like
Pitchford's attitude. Pitchford then took off his hat
All to 1979.
254 NLRB No. 11
and glasses, placed them in his car, and wiped his
forehead with his handkerchief. Hashimoto asked
whether Pitchford was going to leave. Pitchford
replied, "Who's going to make me? You and what
army?" Hashimoto said that he was leaving and
that Pitchford had to leave also. Pitchford respond-
ed, "Fuck you." Hashimoto then said he was going
to get the authorities and left. Pitchford thereafter
returned to the picket line without further incident.
Approximately 1 week later Pitchford received a
letter, dated August 28, which stated, in pertinent
part, that Pitchford war "suspended on the grounds
of misconduct" because he "refused to leave Com-
pany property when ordered to do so and . . .
abusive remarks and. threatening gestures to
Company on . . . August 23,
The letter further stated that a copy was for-

warded to the Union, and that
would
review any comments Pitchford might have as to
the circumstances of the incident before making a
final determination in the matter. On October 2,
representatives of the Union and Respondent met
to discuss the incident and the resulting
Pitchford was present at the meeting and his
version of the incident. At the conclusion of the
meeting, Respondent and the Union agreed upon a
settlement which provided that Pitchford would be
immediately reinstated with his period off work
counting as a suspension, his seniority would be re-
duced to May I, and he would be placed on proba-
tion for a period of 1 year. Pitchford initially
balked at accepting the settlement, but then acced-
ed to the Respondent's manager of
human relations admitted that, in reaching disci-
plinary decision, no consideration was given to ,
Pitchford's rights, if any, under the Act.
Notwithstanding that the foregoing facts were
uncontroverted and based on the testimony of
Pitchford himself, the Administrative Law Judge
discredited Pitchford's testimony concerning the
reason he went to the rear of the annex building
and found that the true reason Pitchford drove
behind the annex was to check on Respondent's ac-
tivities in the vicinity of the railroad tracks. Having
so found, the Administrative Law Judge further
stated that such activity was "obviously clearly
in aid of the strike," citing of
New England v. N.LR.B., 562 1333, 1338 (1st
Cir. 1977). Moreover, the Administrative Law
Judge further found that, even if he did credit
Pitchford's testimony, "it would constitute sheer
sophistry to assert that such was not within the
of the picketing activities." We find merit to
Respondent's exceptions to each of these findings.
Initially, we reaffirm our policy, as set forth in
Operarive Cemenr Masons'
MCCORMICK &
Asrociation, (Burnham Emthem, Inc.),
(1973),
cir-
cumstanma
the
case
basis
alone
establish faie
caac, Pitchford testified
exmination
w a p can
'
tracka
tracka
boxcar-whatever wan there.
Outside
Pitchford
annex
Pitchford
activities.
does
activities
annex raultant
harbored
reason far
pretextual
aeneral Couneel failed his
Wrlght
Inc., (1980),
lqc)
dismissed
STATEMEM OF
BURTON LITVACK,
wan Salinas,
0.
sutmtance, McCormick & Co..
Producta
E(aM1)
suspen-
Local 394 207
NLRB 147 that:
A trier of fact need not accept uncontradicted
testimony as true if it contains improbabilities
or if there are reasonable grounds for conclud-
ing that it is false. It is well settled that a wit-
ness' testimony may be contradicted by
as well as by statements and that
demeanor may be considered in such circum-
stances.
However, this policy is not a substitute for es-
tablishment of a prima facie by a preponder-
ance of the record evidence. Speculation, conjec-
ture, and surmise are not a substitute for such evi-
dence; there must be some in the record from
which inferences may be drawn which are con-
trary to direct testimony, if such is desired. Cir-
cumstances, demeanor, and inherent probabilities
may play a role in any such determination, but
speculation or conjecture standing may not
be used to satisfy the General Counsel's burden to
a prima
In the instant on direct
as follows:
Q. The question was, how was it that you
didn't stay at that picket site location the
entire time?
A. Well the boys were in back of the back
of the picket line a little where the
were parked. They were playing and the
youngest noticed the railroad and he
wanted to know if there were any trains back
there.
Q. And as a result of that question what
happened?
A. Well I said that I didn't think there was
any trains back there but with the railroad
there, there probably was a couple of
box cars back there. He wanted to go see. The
baby did-the 6 year old.
On cross-examination, Pitchford similarly testified:
Q. When you started out you didn't know
there was a boxcar back there, did you?
A. Not for certain, no.
Q. And indeed your main purpose in going
back there was to see if there was a boxcar
there.
A. Of course.
Q. And you wanted to see what the Compa-
ny was doing with the boxcar back there. Isn't
that right?
A. Did I?
Q. Wasn't that your main purpose for going
back?
CO., INC. 923
A. No, it was to take my sons back there so
they could see the boxcar.
THE JUDGE: I didn't understand that last
answer.
A. He's saying I went back there for one
reason and I'm saying I went back there for
another reason. My reason is to take the two
boys back there so they could see the train or
back
of this testimony, there is not one iota of
evidence in the record as to the reason
went behind the building. We therefore
reject the Administrative Law Judge's finding that
the true reason went behind the annex
building was to check on Respondent's
While we do not disturb the Administrative Law
Judge's discrediting of Pitchford's testimony, we
hold that a preponderance of the evidence not
support the Administrative Law Judge's finding as
to the reason Pitchford went behind the annex. We
note that, apart from the fact that Pitchford partici-
pated in the strike, there is no evidence to connect
the strike activities to Pitchford's behind
the building or to his discipline. We
further note that there is no evidence that Respon-
dent any animus against the Union or its
employees' union activities, and that there is no in-
dication that the asserted by Respondent
disciplining Pitchford was in nature.
Under these circumstances, we find that the disci-
plining of Pitchford was not strike-related and that
the has to carry burden
of establishing a prima facie case of discrimination,
as required by Line, A Division of Wright
Line, 251 NLRB 1083 and shall there-
fore dismiss the complaint in its entirety.
ORDER

Pursuant to Section
of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint be,
and it hereby is, in its entirety.
DECISION
THE CASE

Administrative Law Judge: This
case heard before me in California, on May
6, 1980, pursuant to a complaint issued by the Regional
Director for Region 32 of the National Labor Relations
Board, herein called the Board, on November 29, 1979,
pursuant to a charge filed by Clifford Pitchford, an
individual, on October 10, 1979. The complaint alleges,
in that Inc.. Grocery
Division, herein called Respondent, violated
Section and (3) of the National Labor Relations
Act, as amended, herein called the Act, by the
sion,
parties
contractual
A11 &rded
e m i n e
filed
demanor w i t n q
Maryland o k
place busineas
Salinas,
manufacture nonretail
during
kswncc shipped goods
product8 valued S50.000 directly custom-
outaide the
admita, rod ir
the 2(2),
(6). and
11. U B b R OROANlUTION
Respondent end Internationel
Longbnmen & Warehowmen Local huein
called
meaning 2(5)
111. ISSUES
Whether
strike misconduct 8(a)(1)
Pitchford's
Whether
2,
5. war arsigned
8(a)(l)
IV. UNFAIR U B O R PRACTICES
slle foods,
itcma cans.
consirting a building Sali-
naa, represents
~Apondent's employees, inEluding th& classified
representa
mechanics
agreement Respondent
1979,' thosc
employees, 0. r ep
against
f d l y mechanics
.bout
However, since contractual
unrdved , IAM-repreacnted
Sptanber Ines-
most d othu
f o r d
bargaining employees
September
within
returned
becaw
been
y~ aa
reprcacntcd
employmmt.
least hours
waa
that
entrana
back approximately
the milmad a p
annex.
disclosg becaw
stma,
accompanied 4
the strikers' pnrked distance
line
buildin8
and,
his Volkswagon,
l k
far
been
Jim Ha-
bed
data are
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reducing the seniority, placing on probation for 1
year, and reassigning to more arduous work of Pitchford
for participation in a strike against Respondent. Respon-
dent filed an answer denying the commission of any
unfair labor practices, and alleging that the Board should
defer a decision on the merita to an informal settlement
agreement which was fully agreed upon by the
while in the midst of their grievance proce-
dure parties were full opportunity to
appear, to introduce evidence, and to and cross-
examine witnesses. Extensive briefs were by counsel
for the General counsel and by Respondent and have
been carefully considered.
Upon the entire record in the case, from my observa-
tion of the of the and having care-
fully considered the poet-hearing briefs, I make the fol-
lowing:
Respondent. a corporation, with an

and
of in Baltimore, Maryland, and a plant
facility located in California, is engaged in the
and retail and sale of spices. Re-
spondent, the most recent 12-month period prior
to of the complaint, sold and and
in excess of to

era located
State of California. Respondent
I find, that Respondent an employer en-
gaged in commerce within meaning of Section
(7)of the Act
THE INVOLVED
admits, I find, that
Union 6,
the Union, is a labor organization within the
of Section of the Act.
1. Whether Pitchford's activities on August 23, 1979,
were related to the employees' strike.
2. Respondent's discipline of Pitchford for al-
leged is violative of Section and
(3) of the Act.
3. Whether alleged misconduct on August
23, 1979, was sufficiently flagrant and serious so as to
warrant diiipline
4. the Board should defer to the parties' Oc-
tober
1979, private resolution of the dispute.
Whether Pitchford to more onerous
job duties on or about October 3, 1979, in violation of
Section and (3) of the Act.
THE ALLEGED
A. Facts
Respondent, which is engaged in the manufacture and
of spices, convenience extracts, and other
in bottles, and foil packets, maintains a plant
of main and annex facility in
California. The Union a bargaining unit of
as
warehousemen, and the International Association of Ma-
chinists, herein called the IAM, Respondent's
and maintenance employees. Each Union's
collective-bargaining with ex-
pired on or about July 26, and on that date
including Clifford Pitchford, who are

resented by the Union, commenced a strike
Re-
spondent. Rather than striking, the
and maintenance employees honored the Union's picket
line. Subsequently, Respondent and the Union negotiated
a settlement of the strike, and on or September 1
the strike ended. their dis-
pute remained the employ-
ees commenced their own strike on 1.
much as its employees were honoring the
IAM picket line, Respondent delayed a callback
of the Union-represented unit until
17. The IAM and Respondent settled their
strike on September 24, and the next 2-week
period all employees to work and the plant
fully operational.
Prior to August 23, Pitchford had employed by
Respondent for approximately 7 a warehouse-
man and had been by the Union for the
entire period of his During the Union's
strike, Pitchford picketed for at 4 per day,
and on August 23 he assigned to picket in front of
the annex building from approximately 3 p.m. until 7
p.m. The record discloses that on date Pitchford
picketed on the street at the to the annex build-
ing, that the building is set 75 yards
from street, and that a spur line runs
proximately 30 yards behind the
The record further that, his wife was
working that afternoon, Pitchford's two young ages
12 and 6, him while he picketed, but that
the boys were physically separated from him, playing
near can some from the
actual picket Pitchford testified during direct exami-
nation that, while he picketed, his youngest son noticed
the railroad spur line behind the and asked him
whether any trains were back there. Pitchford replied
that he did not know but that there might be some box-
cars there. His son said that he wanted to see them.
according to Pitchford, he consented and put the boys in
drove onto the annex property and
around behind it, and parked between the spur and
the building. Pitchford and his sons left the car, and he
pointed out a boxcar standing at the end of the build-
ing. Pitchford further testified that he and his sons had
standing in back of the building for no mare than a
few minutes when a pickup truck drove around the near
side of the building and towards them. He did not recog-
nize the driver but did recognize a supervisor.
shimoto, standing in the of the truck. The pickup
stopped next to Pitchford's car, 15 to 20 yards from
where Pitchford and his sons were standing.
All herein in 1979.
&
(Pitch-
knew was
because
for
hat glesses
scat [car] wiped
swa t then whether
"[Wlell make
army?"
back
Pitchford
1'11
durinn crossexamination
significant discrepancies
his in
day.
driving
b o p e boxcar-
whrbever back there," responses questiom
counsel Thus,
testified youngat
possibility
croakexamination, pressed
possible
wen
himrdf
testifylnl were next
crossexamination
oldat
stauding
towardti his "that
sorr
weakly
a&
cross-examination fonner
Pitchford further
informing wsr
his glasses, started pickup
and
Pitchford
deputed
evidence phydcrl Hashi-
mot0 Pitchford resultant Also, Ha-
d l e d sr witneg
abovedescribed even&.
received
dated from Lormz, Respondent's
re&
b a n
ground8
M,
remarks threatening
supervimrs August
am thie
Willaim Rorsch,
fd
thin
circ~mst.ncea.~
the later, went
William Roesch.
had letter
mating.
mating is unclear,
October
Pitchford's
WPI
procedure. Presmt
Roasch,
atoas, stewardess.
Respondent McFaddm,
Clyourn, manage?,
Hayncs, h e f i b compensation,
Lormz.
McFadden
"was
cau-
Respondent
a Lbrenz testifd employe, Stan Bisnchini. received
letter. was p l d hh pnonncl along pdice -13,
m iacidmt hubcap super-
c u .I car passed picketing employes. Lbrenz d-
mitt4 t h m w n diripline and differentiated
inasmuch u "was
a Lbrenz Pitchford tatifled regarding thi Thtir
accounts mutually cormbontive.
MCCORMICK CO., INC. 925
According to Pitchford, Hashimoto asked if he
ford) where he and told Pitchford that he
should not be there. Pitchford responded, "Fuck you!'
Hashimoto repeated that Pitchford should not be behind
the building and that he did not like Pitchford's attitude.
Pitchford testified, "At this point I was getting a little
nervous there was two of them . . . and I was
afraid myself and my two sons. . . . And then I took
off my and my and laid them on the front
of my and I took a handkerchief and the
off my forehead." Hashimoto asked
Pitchford was going to leave. While stating that "I never
indicated to him that I would not leave," Pitchford re-
sponded, who's going to me-you and
what Hashimoto replied that he was going to
bring "the authorities" and asked if Pitchford
would still be there when he returned. replied.
"Of course be gone." The pickup truck thereupon
droverway. and Pitchford followed a few moments later.
Pitchford's testimonv re-
vealed several and deviations
from prior testimony his description of the eventa
of that Initially, while reiterating that his reason for
behind the annex building was "to take the two
back there so they could the train or
was his to the
of Respondent's belie this explanation.
Pitchford originally that hie son raised
the of driving behind the building after ob-
serving the railroad tracks leading there. However. on
when as to whether it was
to see the railroad tracks from where the pickets
located, Pitchford replied that you could see the
tracks but "I could be mistaken." Next, he contradicted
regarding the location of his sons while behind
the building. Originally that they to
him, Pitchford on admitted that his
youngest son remained in the car and that his son

was away from him at the corner of the build-
ing He further admitted that, as the pickup truck drove
him, older son yelled somebody was
coming" Asked whether he instructed his to be a
lookout, Pitchford did not specifically deny it but rather
replied, "I don't recall saying that to my son."
As to the confrontation with Hashimoto. Pitchford
mitted on that the gave no in-
dication that he was about to get out of the pickup truck.
admitted that Hashimoto began the
confrontation by him that he on private
property. Pitchford replied that he knew. Hashimoto
then politely asked what Pitchford was doing there, and
the letter responded, "Fuck you." Hashimoto then polite-
ly asked Pitchford to leave. Thereupon, the latter took
off hat and over towards the
said, "You and who else is going to make me."
continued, admitting that Hashimoto stated
that he had a right to know what Pitchford was doing.
Pitchford replied that it was none of Hashimoto's busi-
ness. Hashimoto then announced that he was leaving and
that Pitchford had to leave when he did. Pitchford again
retorted. "Fuck you." Finally, Hashimoto announced
that he was leaving to get the authorities and left. At
that point Pitchford also the area. There is no
record of any contact between
and or any damage.
shimoto WPI not a by Respondent to
testify concerning the
Approximately I week later Pitchford a letter
August 28 Roy man-
ager of human relations. Said letter as follows:
This is to advise you that you have suspended
on the of misconduct in that you refused to
leave company property when ordered to do and
that you made abusive and ges-
tures to company on . . . 23,
1979. I sending a copy of letter to the
I.L.W.U. representative, Mr. and
indicating that, before the Company makes a
determination in matter, we will review any
comments you might have as to the
Upon receipt of Pitchford to the Union's
office and spoke to The latter told
Pitchford that he received a copy of the and
that la ta on they would have a
Although the origin of the the
record establishes that on 2 a meeting concern-
ing the August 23 incident and resulting dis-
cipline held in the "Nutmeg Room," of the main
plant and that it war held pursuant to the contractual
grievance at the meeting for the
Union were Pitchford, Pete Robledo, a shop ste-
ward, and Pat a shop Representing
were Mike supervisor of em-
ploye relations, Hill production Pat
supervisor of and and
The meeting lasted approximately 2 hours, and
Roasch and were the main
Roasch began the mating by stating that Pitchford
was currently on suspension and that he wanted to get
him back to work. Thereupon, Pitchford was asked to
give his version of the August 23 incident, and he did so.
McFadden then reported Hashimoto's account of the
confrontation and. while questioning Pitchford, accused
him of attempting to pick a fight. Pitchford responded
that he was only trying to defend himself because he
heard that Hashimoto a green beret." At that point
the union and Respondent representatives each
cussed.
Approximately a half hour later. the meeting resumed.
McFadden announced that would take cer-
tain actions as a result of the August 23 incident: (I)
Pitchford would immediately be taken back to work in
the first available job, which probably would be the
that another a
which in file with a
concerning during which he kicked at the of a
visor's the through

that
no attendant the Pitch-
ford incident the latter not related to the strike."
Both and meeting. re-
spective were
1,
ar suspension.
McFadden
discloses
Roasch,
too Roesch speak
Roasch
meting, R m h
McFadden
McFad-
speak
Lorenz,
Pitchford's actiom %cause
w u
Pitchford concurred,
w u decided
Lormz that R e
reaching ita disciplinary decihn,
ford'r rights,
Pursuant the agreement, Pitchford r e
line. After
hia
nurse. disability
h.d issued
Rutherford 27,'
nurse. examined
full re lusa8
apparently hia
w0rk.O
Counsel
8(a)(1)
producta mechanically
department
he
"caroscl,"
auspcnhn end d
injured hb performing California Nationd a u u d
underwent di eumimtioo, and ductor dingno4 8~
~ u l i n " .ad p l w d Pitchlord on divbiity Septanber
Octokr
' Respondent dlow" individluh
u n l a can d l weigh& be 100%
b c k
mr counsel the General Counsel uun
Pitcbford whik Rerpondmt October
culicr. 00 Octokr pitch ford'^ back w r d u p d n "acute
tnunutk lumb.aed ~tmin." haring, admitted that
h d bem given penhion weight# and had
ido the pmsnu ha inmuch n
wm month."
"palletizing"
packeta
~ -
Mexiun M connotes,
prepared
30
asserted work
his
fdled
required fdled
i n c h
off between 73
Lorenz
warehousemen
than
line,' real d~ercmcc-and his
departmenta
yurrs
Dimmion
herein that Pitchford participated
repramted strike against
September
well,
strike8 a
retain
pendency
destructive
L G w r f i n e Tmilers, Inc., (1967).
Respondent
sons
uncontroverted
Pitchford. probably lurn
@ .bout hours Mexiun
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mexican dinner line, (2) his seniority would be reduced
to May 1979, (3) he would be placed on probation for
I year, and (4) the period he was off from work would
be counted a Pitchford asked for time to
think about the settlement; however, stated
that Respondent expected him to be at work the next
day. The record that at this point Pitchford met
privately with complained that the punishment
was harsh, and asked if he could to
Respondent about reducing the discipline. did so
but shortly thereafter reported back to Pitchford that
Respondent was adamant as to the punishment.
After this private Pitchford and met
again with Respondent's representatives. Pitchford ex-
plained to that he was upset over the disci-
pline and wanted to speak to someone about it.
den suggested that he to his wife but that Pitch-
ford would have to report for work the next day or be
terminated. The meeting ended at that point. According
to Respondent's representatives interpreted
as accepting the settlement
there no indication that what had been said would
not be complied with." testifying
"it that I would be back to work." Finally,
admitted no consideration was given by
spondent, in to Pitch-
if any, under the Act.
to settlement
ported for work on October 3 and was assigned to the
Mexican dinner working for approximately 30
minutes, he complained that back hurt and was taken
to the plant Pitchford had with him a
certificate for a back injury, which been by a
Dr. on September and showed it to the
She the doctor's note and told Pitchford
that he could not return to work without a
Since that date, due to back injury, Pitch-
ford has not reported back for
for the General Counsel contends that Re-
spondent's placing of Pitchford on the Mexican dinner
line constituted a more onerous work assignment and,
therefore, violated Section and (3) of the Act.
The record discloses that prior to the strike Pitchford
worked in the foil department, wherein gravies, spices,
and other are inserted into foil
pouches. Warehousemen, such as Pitchford, carry raw
materials into the and package the finished
pouches. According to Pitchford, worked on the
sorting out boxes of different foil products and
After him but prior to the the IAM strike. Pitchford
back w h i i dutia. He
a a the injury
"low back fmm I I
until I .
Pitchford admitted that " d m not to
work they lift "You have to or not go
at dl."
Neither Pitchford for that
injured him back working for on 3
or 9, injury
At the Pitchford he
not yet to lift havy that he
no about condition o f back "I haven't
my doctor in a couple of
then and strapping together boxes filled
with foil in groups of six. The boxes came to
Pitchford on a conveyor belt which is waist high, and a
bundle of six groups weighs no more than 18 to 20
pounds.
The dinner line, the name is Re-
spondent's operation wherein Mexican-style dinners are
and packaged. Although on October 3 he
worked in said department for just minutes and, given
his back condition, the extent of his work therein is ques-
tionable, Pitchford that the was more
onerous; job assignment consisted of supplying to the
women on the line little t u b with tomatoes, sauces,
and corn and he was to lift t u b onto a
conveyor system. The latter is approximately 18
the ground, and the t u b weighed and 80
pounds. Also, Pitchford's function entailed packaging the
dinners in boxes.
Roy testified, without contradiction, that em-
ployees in the classification perform basi-
cally the same function throughout the plant. Also,
Pitchford admitted that the Union has always considered
warehousemen's work in the foil department to be more
demanding other plant work and, consequently, has
sought a wage premium for that work, that no special
training was required for work on the Mexican foods
that the only problem-be-
tween the foil and Mexican dinner was the
"heavier weight," and that "I had worked in [the Mexi-
can dinner department] in the previous" doing the
same work.
B. and Findings
There is no issue in
the union- employees' Respon-
dent from July 26 until I or that on August
23 he picketed in front of the annex building. It is
settled law that economic are form of protected
concerted activity, that strikers their status as em-
ployees during the of a strike, and that, with
limited exceptions. actions by employers affecting said
status are inherently of Section 7 rights.
N. R.B. v. 388 U.S.26
Nevertheless, contrary to Counsel for the General Coun-
sel, argues that, by leaving the picket line
and entering onto Respondent's private property in order
to show his a "train" behind the annex building,
Pitchford was not engaged in protected activities inas-
much as said conduct was wholly unconnected with and
not in furtherance of the strike but rather a personal un-
dertaking. Contrary to Respondent, I believe that Pitch-
ford's conduct was in aid of the strike and, therefore,
protected by Section 7 of the Act.
At the outset, acceptance of Respondent's contention
necessitates the crediting of Pitchford's testimony con-
cerning the events of August 23. While not unmindful
that his testimony was and notwithstand-
ing his stated reason for being behind the annex building
According to "Well I think you could the
in 2 on the Dinner line."
&
regard.8
admissions crosa+xamina-
tion
crossexamination
doe6 asserted
vis-u-vis
Gmcen hc N.LR.B.,
F.2d
ruraon
res qestae Thua,
Haahimoto,
worktime
behind normal
acixpted thew
protected
that Hashi-
wrrs d k i -
plinrry
n d l y implics
Asscciated Gmcers supm,
task the Board
strikers,
diflermtiate "cases employeer
cases
W: McQuaide. Inc.,
' tricr fsct Decd r c e p t uncontradicted aa
conwins improbabilities arc reawnable
thal i fdw. ic settled w i t n a ' m y contn-
dicted c i r c u m a ~ n n statements demeanor m y
mnddered circumstancm." Opemtivo Plorfemrr' &
MOION' Inarnafional Arc~ciofion. Local (Burnhorn Bmfhcn hc.).
(1975), P.2d
acts gestura that
meaning
threats senre
T m Nurnkr
Incorpomted, d/b/a/ B i d K e w
based
confrontation
peaceful Pitchford
often strident adversPri.l
strikers thew
aa used Pitchford,
Board doer wc in-
tanpaate laoguage, is
vital is8uer
exprejs
pleaamtries
room" Longvbw Furnitun Compny, 1100 301.
301 d e d 206 F.2d Cir.
meanin#
glaaus and
maLc while startiog
is ambiguoum was, mom
a Pitchtord's course
unintimidated
the supervk
himnelf Thus, evidence
c l m
Haehimoto,
sons
counrel
Flatiron
d/b/a Flcrtima M a t e ~ h Cornpony, 250
(1980).e
MI unmindbl fact the typical striker milcon-
caw. Pitchford w a terminated suspended and
MP Indrufrie~ Inc.. ef oL, the Boud
"LM severe discipline diachrr&e] nonetheleu affects
tenure h n m e
jeopardizing protected and
ptcket. reinatate, employee exercising
MCCORMICK CO., INC. 927
when confronted by Hashimoto, I do not credit hi testi-
mony in this Rather, I believe the record sup-
ports the inference that Pitchford went to the rear of the
annex building in order to check on Respondent's sus-
pected activities back there. As pointed out above, Pitch-
ford's testimony was utterly contradictory regarding the
circumstances of his confrontation with Hashimoto, and
I give credence to his during
that his youngest son remained in the Volkswagon
while behind the annex building, that his older son stood
near a corner of the building, and that the latter warned
Pitchford when the pickup truck approached. Regarding
his elder son's activities, I find it compelling that Pitch-
ford did not specifically deny instructing him to act as a
lookout. In short, Pitchford's testimo-
ny regarding hi and his sons' activities in back of the
annex building not comport with his reason
for their presence there out rather suggests a more nefar-
ious motivation. What, of course, is significant is that, if,
as I believe, Pitchford drove behind the annex building
to check on Respondent's activities the boxcar
there, such activity, although possibly not to be con-
doned, was obviously and clearly in aid of the strike. As-
sociated of New England, v. 562
1333, 1338 (1st Cir. 1977).
Moreover, even if I were to credit Pitchford's stated
for being behind the annex building, I believe it
would constitute sheer sophistry to assert that such was
not within the of the picketing activities.
the record establishes that Pitchford picketed prior to
going behind the building and resumed after confronting
and that the entire incident lasted for only a
short time. Also, it is patently obvious that Hashimoto
would not have bothered Pitchford had not the latter
been a striker. Surely, during Pitchford's pres-
ence the building would have been a oc-
currence and Accordingly, in circum-
stances, I believe that Pitchford's activities on August 23
were by Section 7 of the Act and clearly relat-
ed to the Union's strike.
Notwithstanding such a finding, Respondent argues
Pitchford's conduct during his mating with
moto "flagrantly insubordinate." and "justified
action." Initially, I note that "the right to strike
soma 'leeway for impulsive behav-
ior." of New England at 1335.
The for is to evaluate the character of al-
legedly improper acts committed by and, in so
doing, to in which have
arguably exceeded the bounds of lawful conduct . . . in
a 'moment of animal exuberance' from those in
which the misconduct is so flagrant or egregious as to
require subordination of the employee's protected rights
in order to vindicate the broader interests of society as a
whole." C. 220 NLRB 593, 594
"A of not testimony true if it
or if there grounds for concluding
it It well that a testimony be
by well by and that
be in such Cement
394 207
NLRB I47 (1973).
enfd. in part 552 519 (3d Cir. 1977). As to
essentially verbal confrontations, such as that which is at
issue herein, the Board holds that "mere verbal abusive
language and threats not accompanied by any physical
or would provide added emphasis or
to the words are not a sufficient basis to deny
reinstatement after a strike. However, physical assault
and conduct that gives a of immediacy and
credence would justify [discipline.]" Bitch
One, Manor, 243 NLRB
495, 498 (1979).
Initially, upon the numerous inconsistencies in
his testimony and his demenaor while testifying, I credit
as being more probable and reliable Pitchford's cross-ex-
amination account of his with Hashimoto
on August 23. Analysis of said incident establishes that
Pitchford clearly acted in a generally insolent, insubordi-
nate, and pugnacious manner. However, I do not believe
Pitchford's conduct was sufficiently flagrant and egre-
gious to warrant discipline. In so concluding, I note that
the incident lasted for just a brief moment in the context
of a generally strike, that did leave
the property, and that strike situations, as herein in-
volved, engender and ex-
changes between and supervisors. Further-
more, to the language by "Although
the not condone the of abusive and
it common knowledge that in a
strike where economic are at stake, striking
employees . . . will their sentiments in language
not altogether suited to the of the drawing
NLRB
(1952). enfd. as 274 (4th
1953). Moreover, the of Pitchford's conduct, re-
moving his hat and muttering "You and who
else is going to me" towards the
pickup truck, and I believe, no
than overly exuberant bravado. Also, rather than being
the actions of one provoking fight,
of action suggests a striker who was acting
in presence of a and preparing to defend
from attack. there is no record
that Pitchford ever advanced to the pickup or that
he made any effort to force Hashimoto down from the
bed of the pickup. Also, I find it highly unlikely that
Pitchford would provoke a fight with and
probably the driver, with his two young nearby. In
sum, in agreement with for the General Counsel,
I think that Pitchford's conduct constituted merely a mo-
mentary act of "animal exuberance" not sufficiently seri-
ous enough to justify discipline of a striker.
Paving Company
NLRB 554 Accordingly, by suspending Pitch-
@ I not of the that, unlike
duct not but nthcr there-
after put back to work. However, in
held: [than an em-
ployee's employment and the prohibited effect of inter-
fering with and an employee's right to strike
Like a refusal to it punishes an for
his or her statutorily protected rights." 227 NLRB 1709, 1710 (1977).
8(a)(l)
Oeneral
muonable."
t e r n
he
these circumstances,
(1973),
case,
a l l
Express Incorpomted,
(1979),
Rwdway Ex-
p n s
record doar
diacusscd,
negotiations" Rwdwy Exprw,
undentand
terms agmmmt.
settlement propod
scope, an Rorrhwy Express,
discipline the
diacuedann.
Bolvd
Roadwy Expm Moreover,
tenna settlement consisted
hio
that
Section 8(a)(l)
counsel General
Pitchford's
8(a)(1)
the
argument
Pitchford's
es-
tablishes
j
worked
h b
admitted
asaignmmt
and recommend dismissel
THE REMEDY
suspending
loss earnings he
nonnally the
1979,1° backpay
F. W; Woolworth
(1950). prmcribed Isir
& Hating Ca, m d Florida
Corpomtion, r e
coneider Pitchford
Respondent engaged
2(2), (6).
I
a organization
2(5)
0.
August then
-&cause
~rotected
with coerced employ&
guaranteed
8(a)(1)
These
2(6)
reversed
groundr F.2d lruamuch rr wrr p&uI
status om September 11 tk reminder suspension
md, have worked, b 8 c k p y penal ndcd
September Counsel General C o u d does seek back-
pay-and none is warmkd-for penod October 3.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ford on August 28, Respondent acted in violation of Sec-
tion and (3) of the Act.
Contrary to counsel for the Counsel, Respon-
dent next asserts that the Board should defer any deci-
sion on the merits herein to the parties' informal resolu-
tion of the instant dispute on October 2 inasmuch as said
agreement "was eminently fair and Initially,
I think that by his admitted conduct Pitchford tacitly ac-
cepted Respondent's for returning to work and
that there is no question that understood the implica-
tions of the settlement. In citing
Centml Cartage Company, 206 NLRB 337 Re-
spondent contends that deferral is proper. In that
the parties reached a private settlement of their dispute
subsequent to a hearing before the Board's Administra-
tive Law Judge. The Board concluded that it should
defer inasmuch as the parties raised no issues concerning
the t e n i as were willing to abide by them, and as
"all issues in dispute were considered and appropriately
resolved in a manner which" disposed of the matter.
Centml Cartage Company, supm at 338.
However, in Roadway 246
NLRB 174 the Board distinguished, and gave a
limited interpretation to, Centml Cartage
involved a voluntary settlement by the parties to a
grievance. In concluding that deferral was not warrant-
ed, the Board principally relied upon the fact that "the
not disclose whether the legality of [the dis-
cipline] was ever much less resolved, during
the settlement supm at
175. As a secondary factor, the Board noted that the em-
ployee did not agree with nor apparently the
of the Herein, while Pitchford under-
stood the terms of the and does not
dispute their in the legality of
Respondent's was not a factor in settlement
Accordingly, inasmuch as I am bound by
precedent, I do not believe the deferral to the par-
ties' October 2 resolution of the instant dispute is war-
ranted. supm. inasmuch as
the of the of additional disci-
pline to Pitchford-reduction of his seniority and place-
ment on probation- for August 23 conduct, I find
such additional discipline was likewise violative of
and (3) of the Act.
Finally, for the Counsel argues that
assignment on October 3 to the Mexican
dinner line constituted a more onerous work assignment
and, therefore, was also violative of Section and
(3) of Act. His only apparent rationale for this argu-
ment is that the weight to be lifted in that department is
substantially higher. The record establishes that the im-
petus for this was Pitchford's back condition,
which did not permit him to perform the work in the
Mexican dinner area. However, there is no evidence that
Respondent was aware of ailment prior to
the assignment. Moreover, Pitchford, by his own admis-
sion, worked on the new job for at least 30 minutes
before stopping due to his injury. The record further
I
that warehousemen work in all plant areas, per-
forming essentially the same kind of work, and that
,
Pitchford previously on the Mexican dinner
line--presumably when back permitted that work. Fi-
nally, Pitchford that work on the Mexican
dinner line in no way caused his injury, In these circum-
stances, I do not believe that to the Mexican
dinner line constituted additional punishment for Pitch-
ford's August 23 conduct shall
of that portion of the complaint.
V.
\
Having found that Respondent engaged in unfair labor
practices. I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. As I
have found that Respondent unlawfully disciplined
Pitchford by him from work, reducing his se-
niority, and placing him on probationary status, I shall
recommend that Respondent be ordered to make Pitch-
ford whole for any of may have suffered
as a result of his suspension by payment to him of the
amount he would have earned from date of
his suspension, August 28, 1979, until September 10,
with to be computed in the manner pre-
scribed in Company, 90 NLRB 289
and with interest as in Plumbing
138 NLRB 716 (1962). Steel
231 NLRB 651 (1977); that Respondent
store Pitchford's senority back to his original date of
hire; and that Respondent no longer
as being on probationary status.
1. is an employer in commerce
within the meaning of Section and (7) of the
Act.
2. The Union is labor within the mean-
ing of Section of the Act.
3. By suspending Clifford Pitchford on or about
28, 1979, and reducing his seniority and
him on probation for 1 year he engaged
in concerted activities, Respondent interfered
restrained, and in the exercise
of their rights by Section 7 of the Act, and
thereby committed unfair labor practices within the
meaning of Section and (3) of the Act.
4. unfair labor practices affect commerce within
the meaning of Section and (7) of the Act.
5. Unless specifically found, Respondent committed no
other unfair labor practices.
[Recommended Order omitted from publication.]
Abilities and Goodwill Inc., 241 NLRB 27 (1979). on other
612 6 (1st Cir. 1979). Pitchford on
disability for of t k
period therefore, could not tk
on 10. for the not
the 1979. to date.