Moore Business Forms, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1976

224 N.L.R.B. 393 (N.L.R.B. 1976)

MOORE BUSINESS FORMS
Moore Business Forms , Inc. and International Print-
ing and Graphic Communications Union, AFL-CIO
and Robert P Johnson. Cases 10-CA-10917 and
10-CA-10919
June 7, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On September 26, 1975, Administrative Law Judge
Michael 0 Miller issued the attached Decision in
this proceeding Thereafter, Respondent and alleged
discriminatees Melvin Ervin and James Noel Wil-
liams filed exceptions and supporting briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs I
and has decided to affirm the rulings, findings,' and
conclusions 3 of the Administrative Law Judge and
to adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Moore Business Forms,
Inc, Heflin, Alabama, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order
i The requests of Respondent and of alleged discriminatees Melvin Ervin
and James Noel Williams for oral argument are hereby denied inasmuch as
the record and briefs adequately present the positions of the parties
2 Respondent and alleged discriminatees Melvin Ervin and James Noel
Williams have excepted to certain credibility findings made by the Adminis
trative Law Judge It is the Board's established policy not to overrule an
Administrative Law Judge s resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products Inc 91 NLRB 544
(1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the
record and find no basis for reversing his findings
3 Chairman Murphy does not agree with the majority that Respondent's
retention of fixed shifts, which were instituted following commencement of
the strike on March 25, 1974, violated Sec 8(a)(1) and (3) of the Act As the
Administrative Law Judge recognized the initial implementation of fixed
shuts was clearly justified by the reduction in personnel during the strike
and, in her view, the strikers' return to work did not obligate Respondent to
change its lawfully instituted policy There is nothing inherently detrimental
in a change from rotating to fixed shifts Thus contrary to the view of the
majority, this situation is not analogous to that in N L R B v Erie Resistor
Corp et al 373 U S 221 (1963), in that superseniority implicitly and natu-
rally has a potentially deleterious impact on the job retention rights of
others Thus the benefit there was unlawfully granted in the first instance
and hence its continuation was also unlawful The rationale of that decision
393
therefore cannot be controlling here Accordingly, Chairman Murphy dis-
sents from her colleagues' adoption of the Administrative Law Judge's find-
ings on this issue
Additionally, Chairman Murphy does not adopt the Administrative Law
Judge's findings in fn 5, sec II, A, of his Decision, that (1) Respondent's
failure to specify the alleged misconduct of the employees discharged on
April 11, 1974, indicates that the announcement of the discharges was moti-
vated in part by a desire to discourage participation in the strike and (2)
one purpose of the surveillance of strikers by guards and supervisors was to
collect information to be used against the pickets Chairman Murphy con-
cludes that these findings are not supported by the record but did not preju-
dice Respondent as they are unnecessary to the findings that certain em-
ployees were unlawfully discharged
Members Fanning and Penello in agreement with the Administrative
Law Judge, find that the elimination of Respondents practice of rotating
shifts and the institution of a fixed-shift system after the commencement of
the strike and over the expressed opposition of the Union were inherently
destructive of the rights of the striking employees and therefore violated
Sec 8(a)(3) and (I) of the Act N L R B v Erie Resistor Corp, supra As
there was no overriding business justification for continuing the fixed shifts
beyond the training period for strike replacements, this change, like the
award of superseniority in Erie Resistor operated to discriminate between
strikers and nonstrikers, particularly as the returning strikers got the second
and third shifts, both during and after the strike, and had a destructive
impact upon the strike and union activity
DECISION
STATEMENT OF THE CASE
MICHAEL 0 MILLER, Administrative Law Judge These
consolidated cases were heard by me in Anniston, Ala-
bama, on 12 days between March 31 and April 23, 1975
The charge in Case 10-CA-10917 was filed by Internation-
al Printing ana Graphic Communications Union, AFL-
CIO, herein the Union, on September 13, 1974, and com-
plaint, based upon this charge, issued on November 4,
1974 The charge in Case 10-CA-10919 was also filed on
September 13, 1974, by Robert P Johnson, an individual,
and complaint thereon issued on February 27, 1975, to-
gether with an order consolidating cases Amendments to
the complaints were received prior to and at the opening of
the hearing
The consolidated complaints, as amended, allege in sub-
stance that Moore Business Forms, Inc, herein Respon-
dent, discriminatorily discharged and has failed to rein-
state 31 employees because of their participation in a strike
against it, thereby prolonging the strike, and converting it
to an unfair labor practice strike, that it discriminatorily
discontinued its practice of rotating work shifts and insti-
tuted fixed shifts, and that it discriminatorily required em-
ployees who had participated in the strike to undergo a
90-day waiting period prior to resumption of their health
insurance coverage, in violation of Section 8(a)(3) and (1)
of the Act
In its answers to the complaints and amendments there-
to, Respondent admitted the procedural and jurisdictional
allegations but denied all allegations that it had committed
unfair labor practices
At the hearing, the General Counsel, Respondent, and
the alleged discriminatees were all represented by counsel
All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce oral
and documentary evidence, to argue orally, and to file
224 NLRB No 50
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
briefs Briefs were timely filed by the General Counsel and
Respondent
Throughout the hearing , I carefully observed the wit-
nesses and their demeanor on and off the witness stand
Based upon my observation of these witnesses and their
demeanor , and my consideration of the entire record in
this case, including the briefs , I make the following
FINDINGS OF FACT
I RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS
The complaint alleges, Respondent admits, and I find
that it is a Delaware corporation with an office and plant
in Heflin, Alabama, where it is engaged in the manufacture
and sale of business forms During the past calendar year,
a representative period, it sold and shipped finished prod-
ucts valued in excess of $50,000 directly to customers locat-
ed outside the State of Alabama Respondent is an employ-
er within the meaning of Section 2(2) of the Act, engaged
in commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act
The complaint alleges, Respondent concedes, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background-The Factual Setting
The Union was certified as the collective-bargaining rep-
resentative of Respondent's employees at its Heflin, Ala-
bama, plant in November 1973 The parties met, thereafter,
on five or six occasions prior to March 25, 1974' On that
date, at the conclusion of the second shift, most of
Respondent's employees concertedly ceased working in
support of the Union's contract demands 2 According to
"The Cleburne News," a local weekly newspaper, this was
the first union strike activity in Cleburne County, Ala-
bama Tae initial strike activity, particularly through the
first week, was attended by large numbers of pickets and
other employees gathering in the area of the plant and was
largely unstructured Professional representatives of the
Union were not on hand when the strike began, they ar-
rived in the course of the next few days 3
i All dates hereinafter are 1974, unless otherwise specified
2
The number of employees participating varied throughout the strike as
employees joined or forsook the strike At the relevant times , more than
three-quarters of Respondent's employees either participated actively in the
strike or refrained from crossing the picket lines
3 Charles Moss, secretary-treasurer of the Union, arrived on the first
morning, March 26 Newell Wickham, the Union's international representa-
tive, who had been in charge of the campaign and bargaining, arrived, I
find, on March 28 In regard to this latter fact there was much conflicting
evidence General Counsel's witnesses recalled that Wickham did not arrive
until Tuesday of the second week of the strike Respondent's witnesses re-
called Wickham's presence at the picket line on March 28 and that testimo-
ny was corroborated by films taken and identified by an employee of the
guard agency hired by Respondent It was further corroborated by the testi-
mony of Lynwood Williamson chairman of the negotiating committee, who
testified that Wickham had stated, in a bargaining meeting, that he had
been unable to get to the plant until 2 or 3 days after the strike began I
At the outset of the strike, the pickets believed that they
had the right to stop traffic entering the plant in order to
solicit support for their action, their conduct reflected this
understanding Within a few days, however, they were ad-
vised by law enforcement officials that they should not
stop automotive traffic The strike, with large numbers of
employees, new to such activity, was less than a model of
decorum At the picket line itself there were verbal con-
frontations, shouting, the shining of spotlights and mirrors
at supervision, the throwing of various objects, and the
strewing of nails and glass From March 25 until the strike
petered out around August 1, approximately 95 pounds of
nails were swept up by Respondent Respondent spent
$371 43 for automobile tire repairs at a cost of between $1
and $10 per tire, about one-half of which was incurred in
the first week and one-half of the strike It also incurred
expenses of approximately $300 during the entire strike for
the repair of glass on cars and trucks
Pursuant to the instructions of Franklin Sears, Re-
spondent's chief labor relations counsel (and both coun-
sel and a witness in the instant proceeding), Respondent
hired a guard service, Pinkerton, and had both this guard
service and its own supervision continually observing the
picket line areas and employee gathering points, noting
who was present and recording what it deemed to be acts
of misconduct Nonstriking employees were directed to
keep their automobile windows rolled up as they entered
the parking lot, avoid discussions with the pickets, and re-
port acts of misconduct The reports of the guards, supervi-
sors, and nonstriking employees were placed in a "strike
file" maintained by J C Pope, the plant manager, and
turned over to Sears for decision as to disciplinary action
Additionally, a guard service photographer was on duty
continuously to take motion picture films of wrongdoing
on the picket line
Throughout the strike, and not just limited to the period
prior to the discharges in question, local newspapers (re-
ceived into evidence on the question of Respondent's hon-
est belief that misconduct had been engaged in and in re-
gard to the question of prolongation of the strike, but not
as evidence probative of misconduct) reported acts of vio-
lence in the community at large The acts included the fir-
ing of shots into building and electrical equipment owned
or used by Moore, the burning of buildings owned by non-
striking employees or their relatives, the cutting of electri-
cal power poles, and similar acts These acts were attribut-
ed by the press, management representatives, or the victims
to the strike No proof thereof was adduced before me or,
apparently, before the appropriate representatives of the
Alabama criminal justice system Union representatives
denied involvement in, or knowledge of, such acts
On April 5, on complaint of Respondent but by agree-
ment of the parties, a writ of injunction was issued in the
circuit court of Cleburne County, Alabama The Union
and those acting in concert with it were enjoined from
mass picketing, having more than four pickets at an en-
trance or interfering with egress or ingress, shining lights or
note also, in so finding, that local newspapers, admitted for other and very
limited purposes, quote Wickham in Heflin, on March 28 Wickham,
though subpenaed by General Counsel, did not appear at the hearing The
Union was represented at the hearing by Moss
MOORE BUSINESS FORMS 395
mirrors to blind occupants of vehicles, throwing nails,
tacks and similar substances which might damage automo-
bile tires, trespassing or throwing missiles onto the
Respondent's place of business , threatening or harassing
employees or their families or others seeking to do business
with Respondent , and from parking in certain areas near
the plant Respondent and its agents were also enjoined
from interfering with the picketing activities, making ver-
bal or physical assaults on pickets, strikers or members of
their families, or threatening or harassing the pickets, their
families, or persons doing business with them The record
does not reflect what, if any, evidence was adduced before
the court to warrant these injunctions
The strike files maintained by Pope at Sears' direction
were forwarded to Sears On April 11, using the reports of
activity through April 9, Sears determined that 31 employ-
ees should be discharged for misconduct in the course of
the strike 4 Identical letters were sent to each of the 31 and
the Union, informing them of the discharge Beyond stat-
ing that the discharge was occasioned by "one or more acts
of strike misconduct," Respondent did not specify, either
then or when pressed later in negotiations, of what miscon-
duct it deemed the employee guilty Sears testified that he
announced the discharges then, rather than waiting to re-
ject offers to return to work, to show that the Respondent
did not intend to tolerate this type of conduct 5
B The Legal Setting
Respondent argued on brief that a "unique feature of
this case is the element of the strike atmosphere created by
violence and destruction of Company and employee prop-
erty Such an atmosphere places liability on each and every
striking employee for the forseeable results " Such is not
the law As the Board stated in Coronet Casuals, Inc, 207
NLRB 304, 305 (1973)
Each striker's eligibility for reinstatement must be
judged solely upon incidents in which the striker in
question is alleged to have participated Unauthorized
acts of violence on the part of individual strikers are
not chargeable to other union members in the absence
of proof that identifies them as participating in such
violence 13
13 Sea Land Services, Inc, 146 NLRB 931, 949, enfd 356 F 2d 955,
966 (C A 1, 1966) cert denied 385 U S 900 (1966) Wichita Television
Corporation d/b/a KARD TV, 122 NLRB 222, 226-227, enfd 277
F 2d 579 585 (C A 10 1960), cert denied 364 U S 871 (1960)
4 It is coincidental that the co nplamt in Case 10-CA-10917 names 31
employees Included in the 31 nan ed in the complaint are 7 who were
terminated following a shooting incident on April 25, discussed infra Gen-
eral Counsel refused to issue complaint as to 7 of the original 31 terminated
on April 11
5 I deem Sears refusal to specify the acts of misconduct to be somewhat
inconsisten' with this stated objective If one wanted certain conduct to
cease, it would be logical to specify the conduct considered objectionable
This inconsistency , I believe , is some evidence that Respondent's motive, at
least in part, in announcing the April 11 discharges was to discourage parti-
cipation in the strike itself Similarly , I deem the constant surveillance by
supervisors and guards to possess at least , a mixed purpose to collect infor-
mation to be used against the pickets as well as a means of preventing or
discouraging damage to the plant , interference with nonstriking employees
To hold individual striking employees subject to discipline,
including the loss of reinstatement rights, for the wrongful
acts of persons unknown and unidentified would do seri-
ous harm to the right, now embedded so deeply in our legal
system by Section 7 and 13 of the Act, to strike and picket
N L R B v Washington Aluminum Company, 370 U S 9
(1962), NLRB v Fleetwood Trailer Co, 389 U S 375, 378
(1967), United Steelworkers [Carrier Corp ] v N L R B,
376 U S 492, 499 (1964) Such a rule would permit strang-
ers, pranksters , disgruntled former employees , dissident or
irresponsible union members, or even particularly perverse
employers to bring discipline down upon strikers , making
the risk of striking too great for the individual striker to
bear, and render the right to strike nugatory Moreover,
while the violence which occurred in and around the
Respondent's plant at Heflin, Alabama, during this strike
is not to be condoned, it was not so great or unusual as to
warrant the imposition of new and destructive rules of
law 6
The principles governing the right of employers to in-
voke the penalty of discharge with respect to misconduct
by economic strikers are the subject of settled authority,
and are succintly stated in the quotation set forth below
It is, of course, recognized that an employer has the
burden of proving that strikers engaged in conduct
barring them from a return to employment An
employer's honest belief that strikers did engage in
picket line misconduct of a serious nature is not a de-
fense if it affirmatively appears that such misconduct
did not, in fact, occur See N L R B v Burnup & Sims,
Inc, 379 U S 21 and J H Rutter-Rex Manufacturing
Company, Inc, 158 NLRB 1414, 1418 The question,
then, is whether the conduct of [strikers] was
of a nature requiring that they be disqualified for
reemployment under the precedents As has been held,
the applicable test in determining whether strikers ac-
cused of misconduct should be returned to work "is
whether the misconduct `is so violent or of such seri-
ous character as to render the employees unfit for fur-
ther service,' or whether it merely constitutes `a trivial
rough incident ' occurring in `a moment of animal exu-
berance ' 117
As the Board has more recently stated in Coronet Casu-
als, Inc, supra, 304, 305
or other acts of misconduct I note , in so concluding , that neither the guards
nor the supervisors told the pickets that they should stop the misconduct or
that by such conduct they might be jeopardizing their reinstatement rights
6 I note, in so concluding , the following there was no evidence of physi
cal violence at the picket lines , no nonstriking employees or supervisors
sustained any injuries , law enforcement officials present during shift
changes , the high points of picket line activity , observed no conduct war-
ranting arrest and no arrest warrants for strike misconduct issued prior to
the April II discharges , supervisors , such as Vernon Sanders who was pres-
ent at the main employee entrance at the start of the first shift each morning
throughout the early part of the strike , observed and reported few incidents
of conduct which they deemed improper, and although a photographer was
present throughout the critical period and regularly took films of picket line
activity (thirty-six 50-foot rolls in the first couple of weeks), no films of
picket line misconduct warranting discharge were adduced or alluded to in
the course of the hearing
7 Huss & Schlieper Company, 194 NLRB 572, 577 (1971)
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers have been deemed to lose the Act's pro-
tection when they seized the employer's property,4 or
engaged in acts of `brutal violence' against a nonstnk-
er 5 At the same time it is true that not every impro-
priety committed in the course of a strike deprives an
employee of the protective mantle of the Act Thus,
absent violence, the Board and the courts have held
that a picket is not disqualified from reinstatement de-
spite participation in various incidents of misconduct
which include using obscene language,6 making abu-
sive threats against nonstrikers,7 engaging in minor
scuffles and disorderly arguments,8 momentarily
blocking cars by mass picketing,9 and engaging in
other minor incidents of misconduct 10 Consistent with
these cases, the Board and the courts have long held
that minor acts of misconduct must have been in the
contemplation of Congress when it provided for the
right to strike and that this right would be unduly
jeopardized if any misconduct, without regard for the
seriousness of the act, would deprive the employee of
the protective mantle of the Act 11
4 N L R B v Fansteel Metallurgical Corp, 306 U S 240 (1939)
5 N L R B v Kelco Corp, 178 F 2d 578 (C A 4, 1950)
6 See, e g , Terry Coach Industries, Inc, 166 NLRB 560, 562-563,
enfd 411 F 2d 612, 613 (C A 9, 1969), and see Linn v United Plant
Guard Workers, 383 U S 53, 60-61 (1966)
7 See, e g, Terry Coach Industries, 166 NLRB 560, 563, and cases
cited therein, enfd 411 F 2d 612, 613 C A 9, 1969), and N L R B v
Efco Manufacturing, Inc, 108 NLRB 245, 250, 261 (employee Arnold),
enfd 227 F 2d 675 676 (C A 1, 1955), cert denied 350 US 1007
(1955)
'See , e g, Buitoni Foods Corporation 126 NLRB 767, 782-783,
enfd 298 F 2d 169, 174-175 (C A 3, 1962)
9 See , e g , Terry Coach Industries, supra, 562-564, Golay & Compa
ny, Inc 156 NLRB 1252, 1260, 1263-64, enfd in pertinent part 371
F 2d 259, 262-263 (C A 7, 1966), cert denied 387 U S 944, Elmira
Machine and Speciality Works, Inc, 148 NLRB 1695, 1699, 1707-8
(1964)
10 See, e g, Thayer Company and H N Thayer Co, 99 NLRB 1122,
1133, 1212 (employee Leger), remanded on other grounds 213 F 2d
748, 752-757 (C A 1, 1954), Kansas Milling Company, 86 NLRB 925
927-928, remanded on other grounds 185 F 2d 413 (C A 10, 1950),
cert denied 348 U S 883 (1954), Berkshire Knitting Mills 46 NLRB
955, 1002-03, enfd as modified 139 F 2d 134 (C A 3, 1943)
11 See, e g , Republic Steel Corporation v N L R B 107 F 2d 472, 479
(CA 3, 1939)
See also N L R B v Hartmann Luggage Co, 453 F 2d 178,
183-184 (C A 6, 1971), Kayser-Roth Hosiery Co, Inc v
NLRB, 447 F 2d 396, 400 (CA 6, 1971), Montgomery
Ward & Co v NLRB , 374 F 2d 606, 608 (C A 10, 1967),
NLRB v Thor Power Tool Co, 351 F 2d 584,587 (C A 7,
1965), Crown Central Petroleum Corp v N L R B, 430
F 2d 724, 730-731 (CA 5, 1970), Alcan Cable West, 214
NLRB 836 (1974)
Furthermore, it is well settled that an employer violates
Section 8(a)(1) by discharging an employee for misconduct
arising out of a protected activity, despite the employer's
good faith, when it is shown that the misconduct never
occurred N L R B v Burnup & Sims, Inc, 379 US 21
(1964) See also Kayser-Roth Hosiery Co, Inc v N L R B,
supra, United Aircraft Corp v N L R B, 440 F 2d 85, 92
(C A 2, 1971), Huss & Schlieper Co, supra As the Supreme
Court stated in Burnup & Sims, supra, 379 U S at 23
In sum, §8(a)(1) is violated if it is shown that the dis-
charged employee was at the time engaged in a pro-
tected 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
The burden of going forward with evidence to establish
an honest belief that the employee engaged in such miscon-
duct, as would be a defense to a charge of an unlawful
refusal to reinstate, is upon Respondent Once that burden
has been met, it becomes the General Counsel's burden to
prove that the employee did not, in fact, engage in such
misconduct Respondent may, of course, seek to rebut
General Counsel's evidence Rubin Bros Footwear, Inc, 99
NLRB 610 (1952) See also Ohio Power Company, 215
NLRB 862 (1974)
C The April 11 Discharges
With the foregoing factual and legal setting, we turn now
to the individuals who were terminated for alleged strike
misconduct and the actions attributed to them
Nelda Morrow Respondent contended that it dis-
charged Morrow because of her involvement in incidents
occurring on the mornings of March 27 and 28
About 7 15 a in on March 27, Ronald Skinner, a non-
striking employee, turned his truck into the rear gate of the
plant, where Morrow was picketing She had her back to
the incoming traffic and did not see him approaching
Turning in time to jump out of his way, she was startled
and frightened She pulled an egg (intended for her lunch)
from her pocket and threw it at Skinner's truck, hitting the
window on the driver's side Skinner continued into the
parking lot No damage was done to the vehicle On the
following morning, Delores Brimer, a nonstriking employ-
ee who had formerly been secretary of the Union, drove up
to the plant's rear gate about 7 15 a in with several other
nonstrikers in the car They stopped as the pickets walked
in front of the gate One of the pickets asked Brimer to roll
her window down so that they could speak with her Mor-
row and another picket, Kay Estes, asked her to come out
and join them Brimer declined, citing her financial obliga-
tions and responsibilities Morrow told her that financial
arrangements could be made to help her during the strike
and then stated, according to Brimer and her passengers,
Bachus and Criswell, that Brimer "would be safer out there
than she would be inside " Morrow recalled that it was
Kay Estes who made the allegedly threatening statement I
credit Brimer, Bachus, and Criswell
The foregoing conduct was not, I find, so serious as to
render Morrow, an employee since 1969,8 unfit for further
service The "threat" to Brimer, even if this ambiguous re-
mark were to be so construed, is less serious than clear
threats made by employees for whom the Board has or-
dered reinstatement See, for example, Burlington Road-
builders, Inc, 149 NLRB 791, 805 (1964) (threat to employ-
ee and prediction that plant would be damaged), National
Packing Company, Inc, 147 NLRB 446, 447, 456-457
8 Respondent did not consider the tenure or work history of the disci-
plined strikers
MOORE BUSINESS FORMS 397
(1964), remanded on other grounds 352 F 2d 482 (C A 10,
1965) (threats of physical violence), Stewart Hog Ring
Company, Inc, 131 NLRB 310, 313 ( 1961) ("Don't go in
there or I will get you," "I would like to take you back
behind the building"), Schott Metal Products Company, 128
NLRB 415 , 416 (1960) ("I'm going to get you one of these
days", threat to "whip" a nonstriker) Similarly, Morrow's
egg-throwing incident is typical of the impulsive or exuber-
ant behavior which the Board has held insufficiently sen-
ous to warrant the ultimate disciplinary weapon in
management' s arsenal Otsego Ski Club-Hidden Valley,
Inc, 217 NLRB 408 (1975) (O'Rourke) See also Montgom-
ery Ward & Co v N L R B, supra, 608 Unlike the egg-
throwing incidents involved in Oneita Knitting Mills, Inc v
N L R B, 375 F 2d 385 (C A 4, 1967), Morrow's isolated
act appears totally spontaneous and solely a reaction to
having been frightened by a close approaching moving ve-
hicle Accordingly, I find that Respondent violated Section
8(a)(1) by discharging Morrow 9
Leon Daniel About 7 20 a in on March 27, nonstriking
employee Artice Albright drove his car through the picket
line at the rear gate Leon Daniel , walking picket and car-
rying a sign of lightweight cardboard mounted on a piece
of molding lumber, approximately 3 feet long, one-half
inch wide and one-quarter inch thick, held the sign out in
front of Albright' s moving car , from the passenger side,
and it became entangled in Albright 's moving windshield
wipers There was no indication that Daniel was attempt-
ing to block Albright's vision or cause any harm to him
Albright drove in to the parking lot with the sign stuck
under the windshield wiper He removed it after he parked,
no harm was done to his car This incident, the only mis-
conduct attributed to Daniel in the course of the strike,
does not approach the type of serious misconduct which
would warrant termination See Alcan Cable West, 214
NLRB 236 (1974) (Baldwin-not denied reinstatement even
though he ripped a mirror off the automobile of the
employer's chief negotiator as the car went through the
picket line) But cf Otsego Ski Club-Hidden Valley, Inc,
supra (Manowski thrust a picket stake into an automobile
of a nonstriking employee and threatened to "beat his
ass ")
Ronald Craft Respondent's decision to discharge Craft
was based upon written reports made by guard service em-
ployees Isom and Waldrop, to the effect that they spotted
Craft and another striker, Forrest Johnson, throwing nails
and eggs over the fence at the rear of the plant in the early
morning hours of April 4, prior to the arrival of any non-
striking employees Craft and Johnson were allegedly iden-
tified for the guards by Supervisors Meadors and Rollins
Isom and Waldrop did not testify Meadors testified that
he identified Craft and Johnson for the guards b.it did not
see Craft or any identifiable individual (he said there were
about four persons present in the area from which the nails
came) throw nails Rollins testified , but not in regard to
this incident Craft , an employee since 1966, testified that
he was on the picket line for substantial portions of each
9It is not necessary to reach the issue of whether the discharges herein
violated Sec 8(a)(3) of the Act as they were violative of Sec 8(a)(1), whatev-
er Respondent's motive may have been N L R B v Burnup & Sims supra,
22 Ohio Power Company, 215 NLRB 165, In 6 (i974)
day, he could well have been present at the time in ques-
tion However, he specifically denied throwing eggs or nails
at any time on the picket line or seeing others do so
The guard reports and other written reports of strike ac-
tivity formed the basis for Sears ' decision to discharge em-
ployees They were offered into evidence with the express
understanding that they were probative only on the ques-
tion of Respondent's honest belief that employees had en-
gaged in misconduct (Rubin Bros Footwear, Inc, supra)
Respondent did not offer them , and I did not receive them,
as evidence probative of actual misconduct They were re-
ceived over General Counsel 's strenuous objections
The guard reports, I conclude , are generally sufficient to
sustain Respondent 's burden of going forward to establish
its honest belief of misconduct Ohio Power Company, 215
NLRB 862 (1974) In the fact of Craft 's denials, which I do
not deem mcredible , 10 neither the reports nor Meadors'
hearsay testimony of what Isom told him establishes
Craft's wrongdoing General Counsel has sustained his
burden of proving that Craft did not engage in the miscon-
duct attributed to him See Otsego Ski Club, supra, (Sam-
kowiak)
Rayford Parker, Melvin Ervin, Noel Williams, and Billy
Joe McGinnis Respondent sought to justify its discharge
of Rayford Parker with evidence of several acts of miscon-
duct, alone and in conjunction with other striking employ-
ees, including Melvin Ervin , Williams, and McGinnis
On the morning of March 26, the first full day of the
strike, Vernon Sanders, manager of estimating , observed
Rayford Parker rake roofing nails under the rear tire of a
vehicle being driven into the parking lot by a nonstriking
employee Parker denied involvement in this incident and
claimed that he sometimes used his foot to remove nails
from the picket line On the following evening, Parker ad-
mittedly was caught by Sheriff Dryden placing a row of
nails across the highway near the front of the plant He was
directed to remove them and did so
Sanders also heard Rayford Parker ask Sheriff Dryden
whether the pickets could "get" a Pinkerton guard who had
crossed to the outside of the picket line to clean up strewn
nails Parker alleged that he only protested that since the
pickets could not cross the line it was not fair for the guard
to do so Parker's version makes little sense and I credit
Sanders On the morning of March 28 , Rayford Parker told
Assistant Managers Clarence Owens and Bobby Moore
"Don't y'all run those presses today or you will get some
dirt " I credit this version as against Parker whose claim
that he only said they would "get dirty" lacked plausibility
Nonstriker Bill Swafford testified that Rayford Parker and
Jerry Prater approached him in front of a store in Heflin
on March 30, Parker asked him not to go to work Monday,
10 Craft's denial and those of other alleged discriminatees who testuted
similarly, that he did not observe fellow strikers throwing nails , or with nails
in their possession is less than fully plausible (though not totally improba-
ble) in light of the amount of the nails found at the scene However, while I
do not approve of this apparent lack of complete candor , I can understand
its motivation and do not consider it sufficient to warrant discrediting other-
wise credible denials of personal wrongdoing Moreover, as Chief Judge
Learned Hand stated in N L R B v Universal Camera Corp, 179 F 2d 749
754 (C A 2 , 1950), `It is no reason for refusing to accept everything a
witness says because you do not believe all of it, nothing is more common
in all kinds of judicial decisions than to believe some and not all
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and stated that things were going to get rough in a few days
and that they would "hate to see him go home and find a
stump over there " I credit Parker's assertion that he did no
more than solicit Swafford's support for the strike, noting
that Swafford kept expanding on what he was allegedly
told and that Parker was corroborated by Prater, a witness
I deem credible I further find that the allegedly threaten-
ing statements attributed to Parker by Sanders, Moore, and
Owens are ambiguous, innocuous, and, in any event, not so
serious as tojustify a discharge Cf Firestone Tire & Rubber
Co, 187 NLRB 54 (1970) (Whitehead), enforcement de-
nied 449 F 2d 511 (C A 5, 1971)
On Sunday, March 31, Rayford Parker, in the company
of Larry Smith in Parker's car, followed J C Pope, the
plant manager, to Pope's home According to Pope, they
tailgated his vehicle all the way home, along a curvy road
Parker and Smith claimed that they were merely driving in
the same direction in order to pick up Parker's children
who were visiting relatives living in Pope's neighborhood I
am inclined to credit the mutually corroborative statement
of Parker and Smith Even, however, were I to credit Pope,
I would not find this incident serious enough to justify
discharge of the employees involved There was no claim
that the following was anything more than annoying
Parker's car did not touch Pope's or attempt to force it
from the road No potentiality for harm was presented
Otsego Ski Club, supra (Prusakiewicz and Slesmski) Cf
Capital Rubber & Speciality Co, Inc, 201 NLRB 715
(1973), Alcan Cable West, supra (Coon)
Howard Shockley and Bobby Moore, manager and as-
sistant manager of the press department, respectively, testi-
fied that on April 1, dust prior to 6 a in , they observed Noel
Williams, Melvin Ervin, Billy Joe McGinnis, and Rayford
Parker throw several handfuls of roofing nails over the
fence at the front entrance to the plant According to
Moore, Parker secured the nails from his car and shook
them from a sack, over the fence Reports of this activity
were made by Shockley and a guard, and were signed by
Moore McGinnis and Ervin denied that they were at the
picket line on April 1, McGinnis stated that he was not at
the line at all after March 30 (and denied throwing nails
then or at any other time) and Ervin stated that he arrived
at the line around 9 a in each morning and only once was
there as early as 7 a in Williams and Parker, who admitted
being at the plant at that time, corroborated McGinnis'
denial Parker, however, placed Ervin at the scene, along
with Williams
Parker denied throwing nails at that time and testified
that he was merely playing an "April Fool" joke, pretend-
ing to throw nails Williams denied involvement in any
nail-tossing incident and made no mention of any joke
On the basis of the foregoing testimony, noting particu-
larly that Shockley and Moore's observations are consis-
tent one with the other and are supported by Parker's ad-
mission, I conclude that Parker, Williams, and Ervin were
throwing nails over the front gate on April I Parker's joke,
if it was one, backfired, for it left me no alternative but to
credit Shockley and Moore, at least to the foregoing ex-
tent 11 I note also Williams' admission that he offered to
u Except where corroborated by other, more credible, testimony, I would
buy the nails being swept up by Shockley, and Parker's
subsequent statement to Moore, as Moore was picking up
nails, which I credit, that they had a whole keg full of such
nails These statements, although probably made in jest,
indicate an attitude consistent with the throwing of nails I
also conclude that Rayford Parker did rake nails under the
tire of a car, as observed by Sanders on March 26, noting
that Parker admittedly set up nails on the highway on
March 28
Nail strewing is a common form of picket line harass-
ment and has frequently been considered by the Board
Flattened tires present substantial inconvenience for those
subjected to them More importantly, however, such con-
duct tends to provoke violent outbursts at the picket line,
and create driving hazards The Board has consistently
found that nail strewing is such serious misconduct that it
justifies the discharge of strikers so engaged Otsego Ski
Club, supra (C Prusakiewicz and Koronka), Borman's Inc,
199 NLRB 1250 (1972) Accordingly, I find no violation of
the Act in the discharges of Noel Williams, Melvin Ervin,
and Rayford Parker Inasmuch as McGinnis engaged in no
such misconduct, I find that his discharge violated Section
8(a)(1) of the Act
Dorris Junior Payne On the first morning of the strike,
striking employee Dorris Payne had a brief conversation
with William Rollins, assistant manager of the materials
department According to Rollins, "Payne said something
to this effect Are your wife and kids safe " Rollins replied,
"Yes," and Payne "said something to the effect that I
thought you had more sense or something like that "
Payne, in a version corroborated by Jerry Prater and Wil-
liam Vaughn, stated that he merely asked how Rollins'
family was, to which Rollins replied that they were at
home, safe Payne and Rollins were well acquainted for
several years and had socialized together and Payne knew
Rollins' wife and children I credit Payne's corroborated
version of the conversation as against Rollins' less than
positive recollection, finding it plausible that he would
have made such an inquiry early in the strike before ani-
mosities grew, and finding it similarly plausible that Rol-
lins, viewing his friend through the perspective of a picket
line, might have heard the inquiry as a threat although no
threat was made or intended In view of their prior rela-
tionship, a threat against Rollins' family by Payne was im-
probable Moreover, even Rollins' version of the statement
was too ambiguous to constitute a threat sufficiently seri-
ous to warrant discharge
On March 28, according to the testimony of Leon Bru-
ton, a truckdriver employed by Respondent, as he was
bringing a load of materials to the struck plant, a group of
men in a pickup truck stopped him on the highway They
asked him not to go up to the plant He left his truck and
called the plant manager While he was gone , someone, he
did not see whom, threw a heavy iron bolt through the
windshield When he returned to the tractor-trailer, the
men who had stopped him permitted him to drive to the
plant At the gate, he was again stopped by a large number
not credit Shockley, noting particularly, in addition to his general demean-
or, his reluctance to answer as to why he made out the reports or who
instructed the supervisors to maintain surveillance and records of picket line
activity
MOORE BUSINESS FORMS 399
of pickets When he attempted to back away from the gate,
his truck's air hose was cut by an unseen person, locking
up the transmission and preventing him from taking the
truck out of the area or into Respondent's parking lot
Both pickets and supervisors were in the area of the truck
when the lines were cut After these incidents , Bruton went
into the plant where he perused photographs of the em-
ployees taken from company personnel records He picked
out the pictures of Dorris Payne , Larry Smith , Melvin Er-
vin, Larry Turner, and Eddie Waldrop as people who had
been at the tractor-trailer when it was initially stopped
Payne denied being in any group of employees who
stopped Bruton's truck on the highway and I am persuaded
that Bruton's identification was in error Bruton, a highly
suggestible witness, made his identification after the inci-
dent at the gate That incident, he testified, made him so
nervous that he "didn't care what happened " In such cir-
cumstances , it is probable that he recalled Payne's face
from the scene at the gate and thus identified him
Moreover , even assuming that Payne and the others
identified by Bruton had stopped the truck on the highway,
the evidence was not sufficient to form a belief that any
given individual threw or participated in throwing the bolt
Accordingly , I find that General Counsel has sustained
his burden of proof as to Dorris Payne's innocence of pick-
et line misconduct
Jerry Prater Respondent contends that Prater's partici-
pation in two alleged threats and his involvement in nail
throwing justified his discharge One alleged threat, in the
conversation between Rayford Parker and Billy Swafford,
has previously been considered and it was concluded that
no threat warranting a refusal to reinstate employees had
been uttered Moreover, even assuming that a threat was
made, Prater's presence was not such as would make him a
participant in it 12
Similarly, it appears from Respondent 's brief that it con-
tended that Prater must bear responsibility for a threat al-
legedly made by Dorris Payne to William Rollins, assistant
manager of the materials department , on the first day of
the strike Rollins did not even recall Prater being present
when the alleged threat was made Moreover , I have found
that no threat was made (See discussion of Dorris Payne,
supra ) Further, even assuming a threat had been uttered, I
would not find Prater's mere presence within earshot dis-
tance , along with other strikers , adequate to place responsi-
bility for the alleged threat upon him
Shockley testified that he observed Prater, together with
Mike Campbell, Ralph Johnson, Tommy Ervin, and Leroy
Brown, throwing nails over the rear gate, on March 27 or
28, between 11 a in and noon Prater and Brown acknowl-
edged seeing nails in the picket line area, but all five em-
ployees denied involvement in any nail throwing For the
reasons previously set forth in regard to Shockley 's testi-
mony, upon observation of the amplification of his testi-
12 Cf Firestone Tire & Rubber Co, supra , wherein employee BroLssard
was held to bear responsibility for a threat made in his presence where he
voluntarily accompanied other employees to a contractor of the struck em-
ployer , was introduced with them as representatives of the Union there to
discuss the failure to observe the picket line , and failed to disassociate him-
self from thinly veiled threats of serious injury to persons and damage to
property
mony between direct and cross -examination , 13 and noting
that Shockley 's observations occurred at a distance of 75 to
100 feet, I am constrained to credit the corroborated d°m-
als of the five employees The incident either did not occur
or, if it did, these employees were not involved I thus con-
clude that Respondent's discharge of Prater was not Justi-
fied and was violative of Section 8(a)(1) of the Act
Leroy Brown As noted in the discussion regarding Jerry
Prater, Respondent contended that Leroy Brown was in-
volved in a nail-throwing incident on March 27 or 28 I
have credited the testimony of Prater, Brown, and the
other employees as against that of Shockley and concluded
that they were not involved This was the only incident
involving nails to which Brown was linked by testimony
before me He credibly denied throwing or setting up nails
at the picket line
During the second week of the strike , according to the
testimony of Shirley Reeves , a nonstriking employee, as
she was leaving work with Gladys Lett and three other
employees in an automobile , Leroy Brown sh.,ok a stick in
the air and " told us we better not come back the next day
or that could be used on us," and M T Mitchell , standing
nearby, stated that they had plenty of them Gladys Lett
testified that she distinctly heard Brown say not to come in
the next morning but did not recall him saying anything
else She did not hear Mitchell say anything Both Brown
and Mitchell denied involvement in any such incident,
Mitchell stated that he was seldom at the plant when the
day shift left at 4 p in because he had to pick up his wife at
that hour at a plant some distance away Both testified that
there were sticks at the line, which were whittled upon by
the strikers and used for firewood Each of the witnesses to
this alleged incident testified with credible demeanor On
balance , and particularly considering Lett's inability to re-
call a threat to use the stick on them or Mitchell saying
anything , I conclude that Brown and Mitchell were at the
line at that time , had sticks upon which they had been
whittling , and that, as Lett recalled , Brown told them not
to come in the next day I note that there was no contact
between the pickets and the closed-up automobile in which
the nonstrikers were riding The sticks were not beaten on
or thrust into the car I therefore find that the statement
attributed to Brown and Mitchell , like the threat attributed
to Nelda Morrow, was , at most, an isolated incident in-
volving these individuals , presented no real or direct threat
of harm , and, thus, was not so serious as to render them
unfit for further service See Firestone Tire & Rubber Co,
supra (Whitehead), Terry Coach Industries, supra (The
Lunch Truck Incident-"You better not come back tomor-
row "), N L R B v Hartmann Luggage Co, supra
(Taylor) Accordingly, I find that Leroy Brown's discharge
violated Section 8 (a)(1) of the Act
M T Mitchell Respondent discharged Mitchell for his
involvement , with Leroy Brown, in the alleged threat to
Shirley Reeves, Gladys Lett, and others, previously de-
scribed As Mitchell's involvement therein was less than
Brown's , Mitchell's discharge for this conduct would simi-
larly be unjustified
13 His testimony on direct examination only identified Prater and John-
son See , also the discussion in regard to Mike Campbell and Lynn Payne
concerning the unreliability of the guard report of this incident
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additionally , Respondent alleged that it discharged Mit-
chell because he threw a rock at a truck According to the
testimony of Jack Holley, an assistant manager , on March
28 while he was "spotting" (parking) a truck just inside the
fence at the gate to the new warehouse , Mitchell, in the
company of other pickets , threw a rock at the truck from a
distance of 35 or 40 feet The rock hit the fence separating
them Holley stated that no damage was done or intended
Mitchell recalled the incident but denied throwing a rock
at the truck If anything , he stated , gravel and paper cores
were being thrown into and at the barrel which stood be-
tween the pickets and the fence I credit Mitchell over Hol-
ley, whose preoccupation with the difficulties he was hav-
ing spotting the truck and impaired vision made his
testimony less reliable than that of Mitchell Moreover,
even crediting Holley's observations , this incident would
not justify a discharge I therefore find that Respondent's
discharge of Mitchell violated Section 8(a)(1) of the Act
See Coronet Casuals, Inc, supra (Whitfield , Waldrop)
Tommy Ervin, Mike Campbell, and Lynn Payne Respon-
dent contended that Tommy Ervin and Mike Campbell
were discharged for their involvement , with Jerry Prater,
Leroy Brown, and Ralph Johnson in a nail-throwing inci-
dent between 11 a in and noon on March 27 As previous-
ly noted in the discussions regarding Prater and Brown, I
have discredited Shockley's testimony as to this incident
and as noted below, in the discussion regarding Mike
Campbell and Lynn Payne, I have found Guard Parker's
report thereon unreliable General Counsel has sustained
his burden of proof in regard to the innocence of Tommy
Ervin and Mike Campbell as to that alleged incident As
that was the only incident attributed to Tommy Ervin
upon which there was testimony, and as Respondent stipu-
lated that it was only the alleged incident of March 27
which it considered in discharging Tommy Ervin, and as
he had denied all involvement in nail throwing, I find that
he was discharged in violation of Section 8(a)(1) of the Act
However, Mike Campbell and Lynn Payne were also al-
legedly observed , at about 10 30 a in on March 27, placing
nails across a driveway This observation was made, re-
ported , and testified to by Jacob Parker, a guard employed
by the Pinkerton Agency According to Parker, who had
little recollection of the incidents he described independent
of his reports , at the time he made his observation, he
could not identify the striking employees by name, but
asked a member of supervision to provide the names for
him He did not recall which supervisor gave him
Campbell 's name but stated that most names were given to
him by a Clarence Mason No Clarence Mason was called
to testify , Charles Mason , a supervisor , did testify, but
made no mention of identifying strikers for Jacob Parker
or of observing Campbell and Payne strewing nails Camp-
bell and Payne denied that they handled or placed nails as
alleged I am constrained to credit their denials as against
Parker's testimony The guards ' procedures, generally, in
relying upon supervisors to identify those engaged in mis-
conduct, were sufficient to provide reports upon which Re-
spondent might form an honest belief that an employee
had committed conduct warranting discharge I note, how-
ever, that Parker's report of this incident also reflected
what appears to be the incident attributed to Tommy Er-
vin, Prater, Brown, Ralph Johnson , and Lindsey involving
the placing of nails Parker did not testify about that inci-
dent on direct examination and, when questioned on cross-
examination , acknowledged that he saw but two of those
actually place nails His report on that incident was thus
more detailed than his observation would warrant Parker's
reports, from which he drew his testimony , his recollection
of the incidents and the hearsay manner of his identifica-
tions, I must therefore conclude , are not sufficiently reli-
able to overcome the express denials of the employees in-
volved
Respondent also alleged that Lynn Payne's discharge
was justified by the observations of Elton Couch, manager
of maintenance , and Shockley, who testified that they saw
Payne throwing nails on the morning of March 27 I have
previously discredited the testimony of Shockley as to such
incidents In regard to Couch, I find his testimony in re-
gard to this incident to be unreliable His initial testimony
identified only four employees , Vaughn, Hanson, Breed,
and Barnett (the latter three not alleged in the complaint to
have been discriminatorily discharged) as involved in the
incident He repeated those same names when the question
was asked again His notes for the strike file, made shortly
after the incident, did not mention Lynn Payne as having
been involved He only added Payne's name to his testimo-
ny after it was suggested to him by counsel In fact, his
testimony on direct examination only included an affirma-
tive answer to a question as to whether or not he knew
Lynn Payne was present on March 27 In regard to his
notes, he stated, "I put down the ones that I saw throwing
nails " He could not explain why he had not included
Payne in his notes Testimony of this character , even when
coupled with evidence that Payne was present when nails
appeared on the picket line and has access to such nails in
the employment he took some weeks after the strike began,
is, like Parker's reports , insufficient to overcome Lynn
Payne's express denials
Accordingly, I find that General Counsel has sustained
his burden of proof in regard to both Mike Campbell and
Lynn Payne I conclude that their discharges violated Sec-
tion 8(a)(1) of the Act
James McCormick Respondent contended that McCor-
mick was discharged for his involvement in nail throwing
and an alleged threat to Couch on the morning of March
27 Respondent offered no testimony in regard to Mc-
Cormick's alleged involvement in nail throwing and, as I
have previously found, the hearsay reports of such conduct
are insufficient to overcome the employee's express deni-
al 14
On the same morning as the alleged nail-throwing inci-
dent , McCormick called across the picket line to Couch,
14 Respondent asserted in brief that McCormick should be found incredi-
ble because he testified that he only saw nails on the picket line on one
occasion , a "notorious denial " Respondent misstated the record Mc
Cormick never made such a denial He was only asked whether he saw them
on March 27 and he replied ` I saw some in the road , I mean drive I don t
know whether it was that morning or what morning I credit McCormick's
denial that he was involved in the throwing of nails, noting in addition to
general demeanor observations that McCormick admitted , on General
Counsels direct examination the full substance of the alleged threat to
Couch attributed to him The free admission of potentially damaging facts
evinces an honest frame of mind
MOORE BUSINESS FORMS
who was inside the fence, and "told him to get the mean
look off of his face if he would come outside I would
get it off for him " As previously discussed, not every
threat made by an employee on the picket line is deemed
serious enough to render that employee unfit for further
employment As previously noted, the Board has held that
stronger threats than this were insufficient to cause a loss
of reinstatement rights McCormick's braggadocio,
through a fence, to a man larger than himself, hardly pre-
sented a real threat of physical harm
I therefore find that Respondent's discharge of James
McCormick violated Section 8(a)(1) of the Act
Ralph Junior Johnson Ralph Johnson was discharged,
according to Respondent, for shooting missiles into the
plant with a slingshot, throwing eggs, and strewing nails
As to the first two incidents, shooting and throwing
things into the plant area, no testimony was offered and
Ralph Johnson dewed guilt in regard to them Respondent
introduced reports submitted by guards Waldrop and Isom
describing these occurrences, without calling them as wit-
nesses subject to cross-examination I have previously
found such reports, while sufficient to meet Respondent's
burden of going forward to show an honest belief of mis-
conduct, insufficient to overcome testimonial denials
These particular reports provide good examples of why
such a ruling is required Respondent's Exhibit 58 is the
guard report of Thomas H Waldrop for April 4 It states
that two men, "identified by Mr Rawlins, as Johnson and
Kraft" threw eggs and nails over the fence A supervisor
named "Rollins" testified only that he identified Dorris
Payne and Forrest Johnson (a different employee, not al-
leged as a discriminatee) for another guard, Isom, as peo-
ple observed by Isom throwing nails The reports in evi-
dence as Respondent's Exhibits 45 and 92, and relied upon
by Respondent in support of this discharge, are photoco-
pied duplicates of a single report submitted by guard Don
G Isom Exhibit 45 contains, in relevant part, the follow-
ing
Also the 3 men at picket area shot into parking area
with flip and was identified by Mr Carl Thompson
(1) Johnson (2) Barnett (3) Lamonack
However, on Respondent's Exhibit 92, the same entry
reads
(1) R Johnson (2) Barnett (3) Lamonack 15
The inconsistencies in those documents render them total-
ly unreliable, even to sustain Respondent's lesser burden of
showing its honest belief of wrongdoing Moreover, even
within the narrow confines of this case, "Johnson" was a
common name, at least four persons with that name were
15 (Emphasis supplied) Tr at the `R' was added to Resp Exh 92 subse-
quent to the copying of the original of this document could be determined
by mere eye examination and the sense of touch The "R' was written with
what appears to be both pencil and ballpoint pen The raised impression of
that writing can be both seen and felt on the reverse side of the paper The
other writing on the copy, i e, that which was photocopied, left no such
impressions The `R" also obliterates part of the circle around the number
I before Johnson's name on Resp Exh 92, not obliterated on Resp Exh
45
401
involved, including the charging party in Case 10-CA-
10919, whose first initial is also "R " Guard reports merely
identifying "Johnson" or "R Johnson" are without proba-
tive weight
As previously discussed, Ralph Johnson was one of the
group of individuals identified by Shockley as throwing
nails between 11 a in and noon on March 27 or 28 Ralph
Johnson credibly denied engaging in this conduct I have,
earlier in this Decision, discredited Shockley in regard to
the same incident (See discussions involving Jerry Prater,
Leroy Brown, Tommy Ervin, and Michael Campbell)
Vernon Sanders, manager of estimating , testified that on
March 27 he observed a number of pickets walking along
the back gate Nails appeared as they passed One of these,
he said, was Ralph Johnson, and he observed Johnson's
hand come out of his pocket like a "reflex action," as if he
had stuck his hand with a nail This movement strew nails
around Ralph Johnson denied throwing, placing, or strew-
ing nails, then or at any other time I credit Johnson, not-
ing in addition to demeanor that Sanders, though present
at the time to observe just that kind of conduct, recalled
only Johnson out of a group of about 12 pickets
Finally, Respondent alleged that Ralph Johnson was ob-
served by guard Jacob Parker throwing nails over the fence
at 9 10 am on Sunday, March 31 Parker testified that
Johnson was identified for him by a supervisor, whom he
could not name Johnson testified that he did not go to the
picket line on Sundays because of his wife's objections
thereto I credit Johnson He impressed me as an honest
witness, endeavoring to tell what happened as truthfully as
possible Moreover, it was obvious that Parker had little or
no recall independent of his report, at least as to this inci-
dent, and his identification of Johnson, based on the hear-
say statement of an unnamed supervisor, carries little
weight against a credible denial
Accordingly, I find that General Counsel has sustained
his burden of establishing that Ralph Johnson did not en-
gage in the acts of misconduct attributed to him and I
conclude that his discharge violated Section 8(a)(1) of the
Act
Stanley Bragg Respondent contended that Stanley
Bragg threatened a nonstriking employee, Artice Albright,
justifying his discharge Albright testified that on April 1,
as he was driving to work on U S Highway 78, he was
overtaken by Bragg, in a passing zone, Bragg pulled in
front of him and, for a couple of miles, prevented Albright
from passing At one point, as Albright rounded a curve,
he found Bragg stopped across the highway blocking his
forward progress Albright pulled up to within 5 or 10 feet
of Bragg, who was motioning him to turn around and go
back Albright motioned Bragg to let him pass, waited
briefly, made a U-turn and took a different road to the
plant 16 This incident, if threatening at all, presented no
16 Bragg's version was slightly different He stated that he was driving on
Highway 78, his normal route to the plant, recognized Albright as he passed
his car , motioned him to pull over so that he could speak to him , and made
a slow left turn in front of Albright , into a driveway, again motioning him to
pull over However, Albright made a U-turn and drove off in the opposite
direction Albright impressed me as a more candid witness , with less at stake
in the outcome of the proceeding I am therefore inclined to credit him
Continued
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threat of a magnitude sufficient to warrant discharge
There was no physical contact between Bragg tnd Albright
or their vehicles, no words were exchanged, no threatening
gestures made, and even as described by Albright, no dan-
ger of physical harm was presented Bragg's conduct was
not unlike the following of vehicles frequently considered
by the Board, and previously discussed in this Decision in
regard to Rayford Parker and Larry Smith Annoying as
such conduct may be, the absence of danger to the non-
striker or others on the highway renders it insufficiently
serious to warrant discharge See Otsego Ski Club, supra
(Prusakiewicz and Slesinski), Federal Prescription Service,
Inc, 203 NLRB 975, 993 (1973) (Edwards and McCor-
mick) Firestone Tire & Rubber Co v N L R B, supra, cited
by Respondent, presented a far more serious situation In
that case, the striker, Whitehead, vulgarly threatened an
employee who was accompanied by his wife and child both
verbally and by hand signs He also forced a nonstriking
employee's car off the road in such a way that an accident
was narrowly avoided, swerved in front of a car at high
rates of speed and, on two occasions, ordered and tried to
force drivers out of their cars Bragg's conduct is not com-
parable to Whitehead's
Accordingly, I find that Respondent's discharge of Stan-
ley Bragg for this isolated and less-than-serious incident
violated the Act n
Mike Lindsey Respondent contended that observations
of Lindsey engaging in two incidents of setting up nails in
the roadway supported its decision to discharge him Testi-
mony, however, was only offered as to one incident The
other was contained in the guard report of Jacob Parker
for March 26 and 27 18
Respondent's manager of estimating, Vernon Sanders,
testified that on March 27
I was on the back gate and I noticed the pickets start-
ing toward the rail gate a Georgia Highway truck
was entering up the road They used various methods
of blocking this truck One, Michael Lindsey was
stooping or got something out of his pocket and was
stooping across the road This was, I would estimate a
150, 200 feet, I could not see what he was placing 19
Lindsey admitted being present at the time described by
However, Highway 78 is a major route in the area and there was evidence of
other traffic on the highway at that time, and noting that estimates of time
spent in waiting tend to become exaggerated, I find it difficult to believe
that Bragg blocked Albright and the highway for as much as 2 to 3 minutes
The truth, as it frequently does, lies somewhere between the two versions
n It was not clear from Respondent's brief as to whether it was also
relying upon an incident on March 27 where Bragg tapped on the window
of J C Pope's car and asked him whether he had seen Homer Bible's car
strike Larry Smith Whether this "accident" was real or staged, as Respon-
dent argues, Bragg's limited involvement and his query to Pope would not
justify his discharge
is Resp Exh 96, wherein Parker described Lindsey, with Ralph Johnson,
Jerry Prater, and Leroy Brown as setting up nails As noted in the course of
the discussion regarding Payne and Campbell, Parker acknowledged that he
did not see but two of the named individuals placing nails He did not say
which two he saw Based upon this testimony and his inability to name the
supervisors who identified the pickets, I found that his report was not suffi-
ciently reliable to overcome express denials by the involved employees That
ruling is applicable herein
19 Cross-examination of Sanders revealed that the distance was closer to
400 feet Sanders acknowledged that he was not a good judge of distance
Sanders He stated that the pickets held up their signs, the
driver stopped the truck, and they asked him to respect the
picket line A passenger in the truck pointed out nails
across the roadway and commented on how sharp they
looked Lindsey saw the nails He denied seeing who
placed them there He stated that he stooped down, picked
some of them up, and threw them into the underbush He
denied throwing or placing nails at any time
Sanders' observations, even if fully credited, established
a bare basis for Respondent's belief that Lindsey engaged
in picket line misconduct Lindsey's denial of personal
wrongdoing was credibly offered 20 and overcomes any ad-
verse inference which might otherwise be drawn from San-
ders' observation Accordingly, I find that Respondent's
discharge of Mike Lindsey violated Section 8(a)(1) of the
Act
Earl Reaves Reaves' discharge, Respondent contended,
was brought about by his involvement in incidents of rock
and egg throwing, scattering of nails, a slingshot attack on
the plant, and a threat to a nonstriking employee Reaves
denied all misconduct
No testimony concerning Reaves' alleged throwing of
rocks and eggs or his scattering, throwing, or kicking nails
was adduced by Respondent As noted, its written reports
were not introduced or received as probative of such con-
duct, and even if they were to be deemed to have some
probative weight, are not sufficient to overcome Reaves'
express denials 2i
Shockley and guard Jacob Parker, however, both testi-
fied that they observed Reaves, with two other strikers,
Barnett and Breed (not alleged as discrimmatees) shooting
at the building and a parked waste truck with a slingshot at
around 6 p in on March 27 Marbles and ball bearings
were the ammunition It was clear from Parker's testimony
that he had little, if any, independent recollection of the
event He had difficulty recalling whether it occurred in the
early evening hours or after midnight, before or after dark
He did not know the names of the employees involved,
they were identified to him by a supervisor whose name he
could not recall He made his observation from inside the
building Parker did not observe any damage to the build-
ing or vehicles as a result of the slingshot activity at the
time it occurred Such damage as he observed on his
rounds after midnight, he was unable to connect with any
individual Shockley testified that he observed the same
three employees shooting a slingshot and throwing rocks
from the same vantage point as Parker Neither mentioned
the other as being present According to Shockley, he ob-
served this activity going on for 15 or 20 minutes or longer
and saw them break the windshield of the truck, at which
point, he testified, the activity ceased He did not, however,
call the police or attempt to get them to stop this activity
20 As with other General Counsel witnesses, I have some difficulty believ-
ing that Lindsey did not observe someone throwing or placing nails at some
point in the strike I do not however deem this a sufficient basis upon
which to totally discredit him particularly where, as here there was not
direct or probative evidence of wrongdoing
2i I note that although a report dated March 27 purports to establish that
Reaves and others kicked nails under tires the signatories of that report
(Supervisor Meadors and two nonstriking employees, Criswell and Bachus)
did not testify in regard thereto even though they were called as
Respondent's witnesses on other matters
MOORE BUSINESS FORMS
while it was going on When he called the police later that
evening in regard to an alleged subsequent rock-throwing
incident wherein a glass door was broken, he did not report
the earlier activity of Reaves, Barnett, and Breed His re-
port to the strike file, while mentioning the glass door bro-
ken by an unknown assailant, made no mention of the
breaking of the windshield of the truck
Reaves admitted being at the picket line at 6 p in and
throughout the night of March 27 He recalled seeing
Breed there, but not Barnett He recalled observing the
trash truck but not seeing a broken windshield on it until
March 29 He denied using a slingshot on the picket line or
seeing anyone else do so
On balance, I am constrained to credit Reaves' denial
over the assertions of Shockley (whom I have previously
discredited) and Parker Parker's identification of Reaves is
based on hearsay and his recollection of the events is
scanty Shockley's testimony is implausible and inconsis-
tent with both his own report and with the testimony of
Parker
On the third day of the strike, as he was leaving the
plant, nonstriker Dennis Green testified, Reaves spoke to
him
He asked me why I wasn't out there working He said
I ought to be out there with them, supporting them,
supporting the strike and I told him that I couldn't
make it on what they were doing and they told me
they were getting commodities and stuff like that to
eat, they didn't have to buy any groceries I told
him I had to work, I had doctor bills I had to pay
he said, we can come over to your house and do more
there than you're doing here and I said I might do it
On cross-examination, Green said that Reaves told him
that they could come over at his house and "do more than
we're doing here " He also acknowledged, and then retract-
ed, that Reaves could have been offering help Reaves ad-
mitted soliciting Green to join them on the picket line He
denied saying anything about going to Green's house
Reaves' testimony was corroborated by strikers Danny
White and Eddie Waldrop
While I am inclined to credit Reaves' corroborated ver-
sion of the conversation with Green, I find that it makes no
significant difference The statement, as testified to by
Green viewed in the light most favorable to Respondent,
was not a threat of harm to Green, his family, or his home
At most, it was ambiguous and vague (See cases cited in
regard to Nelda Morrow)
Accordingly, I find that General Counsel has sustained
his burden of establishing that Earl Reaves did not engage
in the acts of misconduct attributed to him His discharge
violated Section 8(a)(1) of the Act
Danny White According to the testimony of nonstriking
employee Dennis Green, Danny White spoke to him at a
stop sign in front of the Cleburne Hospital one morning as
he was driving to the plant, about a week after the strike
began They were in separate vehicles White asked him
why he was going to work, Green replied that he had to
White, with a laugh, then said, "There's ways to keep you
from it," and Green answered, "Now's the time " Green
alleged that White was in a vehicle being driven by Eddie
403
Waldrop Waldrop testified that he was in another car be-
hind White Both White and Waldrop denied that anything
was said when they passed Green that morning The de-
meanor of each of these witnesses impressed me favorably
and provided no basis for resolving the conflict herein I
am inclined to credit Green, a witness subpenaed by Re-
spondent, who had little to gain by fabrication, and who
testified that he considered himself a friend of White's both
before and since the incident I note, also, that he made a
report of this incident shortly after it occurred, subsequent
to telling his uncle, a supervisor, about it The credibility
resolution, however, makes little difference, for I find that,
like the alleged threats by Nelda Morrow and Earl Reaves,
the statement by White to Green, a much larger man than
White, was ambiguous, and not a serious threat of harm It
was nothing more than picket line braggadocio and
Green's reply was in a similar tone
Accordingly, I find that Danny White did not commit
such serious picket line misconduct as would warrant his
discharge 22
Eddie Waldrop Waldrop was present, either in the same
car, or in a car immediately behind Danny White, at the
Cleburne Hospital when White allegedly made the state-
ment to Green, discussed immediately above White's al-
leged statement was nonthreatening, Waldrop's role there-
in was passive or nonexistent
On April 8, in the late afternoon, Jimmy Jones, quality
control manager was informed that someone had shot into
two trucks on Respondent's parking lot As he was looking
at a place on the ground where a bullet seemed to have
struck, he heard Waldrop say, "Watch out, the same thing
could happen to you that happened to that truck " Repeat-
ing what he had heard, he asked Waldrop if that was what
he had said Waldrop told him, "I said watch out, you
might hurt your back " Waldrop, who was aware of a back
condition which Jones had, denied that he ever made the
first statement The demeanor of these witnesses provided
no basis for resolving the credibility question However, it
was, I believe, unlikely that Waldrop would have been so
solicitous of Jones' health at this point in this divisive strike
as to merely advise him to take care of his back Based
upon this implausibility, I credit Jones Moreover, while I
do not deem the question free from doubt, I believe that
Waldrop's threat, even though immediately retracted, was
serious enough to warrant discharge A strike is an eco-
nomic, not a military, battle Republic Steel Corporation v
N L R B, 107 F 2d 472 (C A 3, 1939) The use of lethal
weapons or statements threatening or condoning such use
have no place on the picket line
Respondent further contended that Waldrop was, in
part, responsible for the incident on March 28, previously
related, when a group of pickets stopped one of the compa-
ny trucks on its way toward the plant and an iron bolt was
22 It would appear from the record and Respondent's brief that Respon-
dent also contends that White's discharge was justified because he was pres-
ent with 15 or 20 others in the general area on March 27, when Rayford
Parker asked Sheriff Dryden if they could `get a Pinkerton guard who had
crossed the line I have already found that statement to be insufficient to
support the discharge of the declarant Perforce, White s virtual noninvolve
meat therein (he did not even hear the statement made) would not support
an honest belief of misconduct
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thrown through the windshield The driver, Bruton, alleged
that Waldrop was one of the group which stopped him, a
fact denied by Waldrop 23 Even if Waldrop had been in the
group which stopped Bruton's truck, the evidence was in-
sufficient to connect Waldrop or any of the other pickets
who may have been present when the bolt was thrown
Malcolm Meadors, material department manager, testi-
fied that he observed Waldrop throw nails under the tires
of cars stopped by the pickets, on the morning of March
27 Waldrop denied engaging in this conduct Meadors'
testimony, and his identification of Waldrop, whom he had
hired about 2 years earlier, was positive and specific I do
not believe that it was a fabrication As previously noted,
nail throwing on the picket line is conduct sufficiently seri-
ous to warrant discharge
Based upon the threat to Jimmy Jones and the nail
throwing as observed by Meadors, I find that General
Counsel has failed to sustain his burden of proof that Ed-
die,Waldrop did not engage in the acts of serious picket
line misconduct attributed to him His discharge did not
violate the Act
Larry Smith On the morning of March 27, a car being
driven through the picket line by Homer Bible came into
contact with striking employee Larry Smith Smith fell to
the ground He subsequently accused Bible of assault Re-
spondent contended that the incident was staged I need
not resolve the issue Assuming, arguendo, its contrivance,
it was horseplay, not so serious an act of misconduct as to
warrant discharge
On the following morning, March 28, as they were
sweeping up nails from the gate area, Larry Smith told
both Shockley and Plant Controller Nelson, "there goes
two in your driveway at home, for every nail you pick up
there'll be two in your driveway at home " 24 While the
Board has found nail throwing itself to be misconduct of a
magnitude warranting discharge, the threat to engage in
nail throwing stands on a different footing Not every
threat will justify discharge I find Smith's threat herein to
be no more serious than other threats which the Board has
considered to be insufficient as a basis for discharge or
denial of reinstatement (See discussion of Nelda Morrow,
supra, and cases there cited )
On April 1, Jacob Parker observed Larry Smith back his
pickup truck into a steel fencepost, bending it, while turn-
ing around When Smith's truck came back, Parker went
over to get the tag number, Smith observed him and volun-
teered the number Allegedly, he also told Parker, "I see I
am going to have to give you something hot " Smith had no
recollection of hitting the post The hitting of the fencepost
was not shown to be other than a common, innocent, and
23 Bruton s identification was not reliable It was based upon a company
photo of Waldrop, showing him with a moustache and sideburns Waldrop
wore a full beard at the time of the strike, as shown in a picture of Waldrop
in the March 28 edition of The Cleburne News, taken, according to Wal-
drop, about a week earlier Respondents assertion in brief that the picture
was "undoubtedly " taken much earlier is without support in this record See
also the discussion regarding Dorris Payne, supra insofar as it pertains to
Bruton 's identification of strikers
24 Smith denied making this statement I credit mutually corroborative
testimony of Shockley and Nelson, noting that Smith displayed a naivete
about permissible picket line conduct consistent with the uttering of such a
statement
accidental occurrence, the statement to Parker was vague
and ambiguous
Respondent, in brief, argued that the observations of
Houston Jones and guard Don Isom, as reported in the
strike file, established that Smith shot at the plant building
with a slingshot or "flip " Smith and Earl Reaves, also al-
leged to be present, denied the allegations As previously
discussed, I would generally deem the guard reports suffi-
cient to raise an honest belief of misconduct, although in-
sufficient to overcome credible denials by the employees
alleged to be involved Additionally, in this instance, I note
an inconsistency between the reports of Isom and Jones
which indicates that neither person could have seen Smith
in the act of shooting the slingshot 25
Accordingly, I find that as to all of the above-described
incidents , Respondent has failed to meet its burden of es-
tablishing an honest belief that Larry Smith engaged in
picket line misconduct 26
Larry Turner Jacob Parker, the guard, testified that
around March 28, as he was walking on the company park-
mg lot, Larry Turner threw a small wooden block in his
direction It did not strike him Shockley testified that he
observed Turner and William Vaughn throwing nails and
glass over the fence into the parking area, one morning in
the beginning of April, at about 6 am Turner denied
throwing anything from the picket line toward the plant
The Parker incident, the throwing of a single small block of
wood, even if it occurred, was insignificant picket line
horseplay not meant to inflict harm In regard to the nail
and glass throwing incident, I do not credit Shockley In
addition to the reasons previously stated in this Decision, I
note that this allegedly occurred in the very early morning
hours, at a distance of 200 feet, circumstances hardly con-
ducive to accurate observation
Respondent, in its brief, included Larry Turner among
those employees whose discharges, it contended, were par-
tially based upon "threats and obscene or derogatory re-
marks " Turner spent most of his time at the line, it was a
major event for him Respondent's strike file (Resp Exh
83) contains a number of remarks attributed to Turner For
example "the [nails] cost us 300 per lb at the hardware
store," "I am as mad as I can be I am just so mad," "Why
don't you take a running start & kiss my ass," and "Shock
[Shockley] I wish I could think of something to say to you
25 Isom's report stated
I seen a man dressed in Blue Jeans , Denim Jacket , red shirt & red cap
shoot another rock that also hit glass The man was identified by Mr
Houston Jones as being Larry Smith A few mini.tes later I seen Smith
pass the flip to Earl Reaves
Jones' report stated
2 rocks or something hit the glass on front of the building Since Smith
was sitting down couldn t actually see him shooting the flip but when he
got up he passed something to Reaves which looked to be about 15-18
inches long [Emphasis supplied }
26 Respondent also contended that Smith s discharge was warranted by
his presence in Rayford Parker's car when Parker allegedly followed Pope
home, and by his presence in the group which stopped the truce driven by
Leon Bruton I have previously found that the alleged following , even if it
occurred did not warrant discharge , and that the evidence was insufficient
to connect any employees with the bolt thrown through the windshield of
Bruton's truck (See discussion regarding Rayford Parker and Dorris
Payne) Those conclusions are also applicable to Smith s alleged involve-
ment
MOORE BUSINESS FORMS 405
that would not be a threat " These alleged statements 27 are
not sufficiently serious to deny a striking employee the pro-
tection of the Act The Board , in dealing with the subject
of abusive language on the picket line, stated in Longview
Furniture Company, 100 NLRB 301, 304 ( 1952), enfd as
modified 206 F 2d 214 (C A 4, 1953), on remand 110
NLRB 1734 (1954)
Although the Board does not condone the use of abu-
sive and intemperate language , it is common knowl-
edge in a strike where vital economic issues are at
stake, striking employees resent those who cross the
picket line and will express their sentiments in lan-
guage not altogether suited to the pleasantries of the
drawing room or even to courtesies of parliamentary
disputation Thus, we believe that to suggest that em-
ployees in the heat of picket line animosity must trim
their expression of dissapproval to some point short of
the utterances here in question , would be to ignore the
industrial realities of speech in a workaday world and
to impose a serious stricture upon employees in the
exercise of their rights under the Act
And see Republic Steel Corp v N L R B, 107 F 2d 472, 479
(C A 3, 1939), cert denied 309 U S 684 , Firestone Tire &
Rubber Company, supra, Terry Coach Industries, supra, Cap-
ital Rubber & Specialty Co, supra
William Vaughn Among the acts of misconduct attri-
buted to Vaughn were loud, derogatory, or obscene re-
marks , including "it was a long way back to Texas" (to
truckdriver Leon Bruton-undenied), to nonstriking em-
ployee Ellis Lett (the basis of a report by Jimmy Jones, not
testified to) "Lett you got no business out here, get back on
company property , you better get back inside ' (Essentially
admitted-Vaughn stated that he told Lett that he should
not be picking up nails outside the company property and
solicited Lett to join the strikers), telling Shockley that it
was poor management (Shockley's report states that he
said "piss poor management") to employ as many people
as they had before the strike if the company statements
about running at full capacity with a much reduced work
force were true (admitted), and shaking the fence and
shouting obscenities ("damn scab"-admitted) The cases
cited above , in the discussion regarding Larry Turner's
picket line remarks , are applicable here See also Oneita
Knitting Mills, Inc v NLRB , 375 F 2d 385 , 391, fn 7
(C A 4, 1967) Vaughn's vocal enthusiasm was not suffi-
ciently serious to warrant his discharge 28
Respondent also contended that Vaughn was guilty of
throwing nails in the driveway , conduct denied by him
Elton Couch 's testimony 29 was ambiguous and did not
27 No testimony as to these statements was offered and Turner denied
uttering them Thus, even if deemed serious, General Counsel has sustained
his burden of proof Similarly General Counsel has met his burden of es-
tablishing Turner s innocence m regard to the incident at the truck driven
by Bruton (See discussion regarding Dorris Payne )
2s Neither were the allegations of lock tampering and attempts to step or
the hands of Elton Couch, both of which appear to have been picket line
horseplay See Ohio Power Company 215 NLRB 165 (1974) (Greene-pull-
in^ cigar from foreman's mouth)
9 I have previously considered and discredited the testimony of Shockley
which would similarly implicate Vaughn See discussions regarding Parker
clearly state that he observed Vaughn throw nails 30 The
inference to be drawn from Couch's testimony, however, is
consistent with his report thereon and with the reported
observations of three other individuals who d.d not testify
in regard to this incident Respondent thus established its
honest belief of Vaughn's misconduct Vaughn's denial
thereof I cannot credit 3' General Counsel has thus failed
to establish Vaughn's lack of responsibility for nail throw-
ing and I find Respondent's discharge of him did not vio-
late the Act
D April 25, 1974-Shooting and Resultant Discharges
On the night of April 25, Charles Mason, planning de-
partment manager, Pledger Gossage, order processing de-
partment manager, and Bobby McBay, Pinkerton Agency
lieutenant, were on duty in the reception lobby, continu-
ously observing the area in front of the plant The Union's
strike headquarters were located in a building across from
the front gate, and a barrel, where a fire was kept burning
and where employees and others gathered, was located at
the street According to the diagrams and testimony, there
were at least five ways to approach or leave the area, not
all of which could be observed from the plant's lobby
At about 11 05 p in , several of the vehicles outside the
gate were moved and from one of them, a "Bronco" alleg-
edly owned by Scott Lammeck (not alleged as a discrimi-
natee), a light was shined into the lobby 32 McBay told
Gossage to move away from the door because, in his expe-
rience, according to Gossage's testimony, "when they be-
gan shining the spotlight this is when they started
throwing and shooting things at the door " As Gossage
followed McBay's advice, a series of gun shots were fired
through the door At that moment, Mason was on his way
to the rear of the plant to open the gate to admit a deputy
sheriff who had been called at about 10 50 p in because of
rocks being thrown at the plant He heard glass breaking,
but neither Mason nor Gossage heard the shots fired Nei-
ther they, nor the police, who were called immediately after
the shooting, determined the exact direction from which
the shots were fired
Deputy Sheriff Parker came over to the area where the
Melvin Ervin, Noel Williams, Bill Joe McGinnis, Prater, Lynn Payne, and
Turner supra
30 He testified as follows
Q (By Mr Sears) I call your attention to the date of March the
27th What if anything did you observe by way of activities from the
striking employees?
A (By Couch) Nails in the rear entrance of the plant
Q Would you please state the names of the individuals whom you
observed throwing nails, or whatever they were domg9
A Bill Vaughn
31 While I am reluctant to discredit a witness based upon one aspect of
demeanor the drop in the level of Vaughn's voice when questioned with
regard to nail throwing was so obvious as to indicate a desire to avoid
answering such questions at all and constrains me to discredit his testimony
in this regard I note , also, a conflict in his testimony on direct examination,
once answering that he first saw the nails on the morning of March 26 and
then in response to a leading question stating that he first saw the nails on
March 27
32 Such activity was not unusual, the strikers had frequently shined lights
at the plant
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers had been gathered and looked around for spent
shells and guns He spoke to some of the people present
but did not ask for vehicles to be opened Some strikers
volunteered to open their vehicles for inspection He did
not search inside strike headquarters The record reflects
that no further investigation of the incident was made
Pursuant to instructions from Sears, since the first week
in April, a nightly log had been maintained recording all
identifiable persons in the area of strike headquarters The
April 25 log was based upon observations by Mason, Gos-
sage, and McBay, made with ordinary binoculars It identi-
fied 16 individuals as being at the scene and not observed
to have left prior to the shooting Of the 16, 1 is Union
Representative Moss, 1 is neither a striker nor an employ-
ee, and 11 are strikers alleged as discriminatees in the com-
plaint Donald Brown (observed, according to the log, at
7 40 p in and again at 10 10 p in ), Roger Gibson (ob-
served at 7 40 p in), B C Hightower (observed at 7 40
p in ), Curtis Hiett (observed at 7 40 and 8 30 p in ), Lyn-
wood Williamson (observed at 7 40 p in ), Mike Lindsey
(observed at 8 10 p in), James Burrows (observed at 8 30
p in ), Larry Smith (observed at 10 05 p in ), Jackie Gaines
(observed at 10 20 p in ), William Vaughn (observed at
10 22 p in ), and Earl Reaves (observed at 10 30 p m) 33
The log reflected that at 9 25 p in Roy Barnett and
Charles Porter left with someone else who could not be
identified It also records Scott Lamineck as being present
at 7 40 p in and as arriving at the same time as Jackie
Gaines, 10 20 p in , with no indication that he left between
times
On June 21, on the instructions of Sears, Gossage and
Mason swore out criminal complaints charging the 16 indi-
viduals recorded in their report with conspiracy "unlawful-
ly, and with malice aforethought to assault Pledger Gos-
sage, Charles Mason and Bobby McBay with the intent to
murder them contrary to law " 34 The complaints were filed
solely on the basis of the foregoing information Respon-
dent has never learned who fired the shots or from which
direction, other than the front of the plant within the range
of a rifle bullet, they were fired The striking employees
among the 16 so charged were discharged 31
33 Of these, Lindsey, Smith, Vaughn, and Reaves had been discharged on
April 11, and were so alleged in the complaint
34 The delay, according to Sears, was caused by his waiting for local coun-
sel to advise him as to the the nature of the complaint which could be filed,
and to see what, if any, additional evidence might be developed
35
Respondent by its counsel, Sears, contended that they were merely
suspended, pursuant to a company practice in regard to persons charged
with felonies, pending resolution of the complaints W L Murrell, industri-
al relations manager for Resnondent s southern division, testified that these
employees were terminated rather than suspended because of the nature of
the conduct involved His testimony is consistent with the information given
Lynwood Williamson on July 25 and with the letter Williamson received
stating that `The attorneys advise that your employment with the company
has been ternunated " James Burrows received similar information from
Pope on July 26
The criminal complaints, it was stipulated, were no-billed" by the grand
jury around February 8, 1975 Prior to that date, Earl Reaves was employed
as a deputy sheriff in Cleburne County after being informed that he would
be hired when the complaint against him was no-billed He was told that it
had been no-billed when he was hired on August 15, 1974 A letter from the
district attorney, dated April 15, 1975, stated that Williamson Lindsey,
Brown, Vaughn, Reaves, Gaines, Hiett, Burrows, Hightower, Smith, and
Gibson would not be investigated by the Cleburne County grand jury Fol-
All of the employees involved disclaimed responsibility
for the shooting At the time of the shooting, Moss and
Donald Brown had been standing near the barrel, on hear-
mg the shots they ran in opposite directions Brown
stepped on the sleeping bag of either Mike Lindsey or Scott
Lamineck, both of whom were asleep among the pines
Vaughn was in the area between the barrel and the sleeping
bags and described the sounds of the shots as coming from
behind strike headquarters and passing over his head, be-
tween the barrel and himself He hit the ground
Vaughn stated that on April 25, as on other evenings,
people came and left from the picket headquarters area
Williamson had been there all day, left at 6 p in and re-
turned around 7 30 p in to pass out strike benefit checks
He remained until about 8 p in and did not return until the
following morning He testified that he drove straight out
Foster Street, which runs approximately perpendicular to
the plant Roger Gibson dewed that he had been in the
area at any time that night or for several weeks before or
after it None of the other employees placed him there
Larry Smith and Earl Reaves were both present prior to
the shooting but left at around 10 30 p in , going to Smith's
home where Reaves helped Smith to rotate the tires on his
tractor They returned after the shooting Curtis Hiett and
B C Hightower were in the area until approximately 8 45
p in, when they both left in order to get some sleep They
hadjust taken jobs in Georgia which required them to arise
at 4 o'clock the next morning Both approached and left
the area from the front of strike headquarters, which is the
side of the building facing away from Respondent's plant
Burrows was in the area for approximately 1 hour, leaving
around 9 p in from the front of strike headquarters
Gaines was also present at around 10 30 p in, but left with
another employee, Sherman Ginn (not reflected on the log
as having been observed) They did not return until after
the shooting
Based upon the foregoing, and noting particularly the
lack of precision in the log, the fact that persons could
enter and leave from several points without being ob-
served, the lighting conditions (after dark-identification
could only be made if someone were near the barrel or seen
in the headlights of a car), that at least one unidentified
person left at 9 25 p in and noting the absence of any
meaningful investigation at any time prior to the filing of
the complaints, and without condoning, in any way, the
serious act which occurred, I conclude that Respondent
lacked a basis for an honest belief that the named employ-
ees engaged in the act charged to them Moreover, even
assuming that the Mason-Gossage log provided a basis for
meeting Respondent's burden of going forward, I find
General Counsel has met his burden and affirmatively es-
tablished that the employees discharged because of the
April 25 shooting were not guilty of that offense nor of
conspiring to commit it
Accordingly, I find that Respondent violated Section
8(a)(1) of the Act when it discharged Donald Brown,
James Burrows, Jackie Gaines, Roger Gibson, Curtis Hiett,
lowing introduction of this letter, Respondent s counsel stated that Respon-
dent no longer considered them to be suspended but to possess the same
rights as other striking employees
MOORE BUSINESS FORMS 407
B C Hightower , and Lynwood Williamson 36 I further
find that Mike Lindsey, Larry Smith, and Earl Reaves, dis-
criminatorily discharged on April 11 , are not barred from
reinstatement because of any alleged involvement in the
April 25 shooting But for his misconduct prior to his April
II discharge , William Vaughn would have been similarly
entitled to reinstatement
E Alleged Discriminatory Changes in Regard to Health
Insurance and Rotating Shifts
Respondent and General Counsel stipulated as follows
(1) Prior to March 25 , 1974, the Respondent oper-
ated a rotating shift system of employment [Employ-
ees changed shifts weekly ]
(2) Following the strike which commenced on
March 25, 1974 , the Respondent operated a single
shift of employment until on or about June 10, 1974,
and this became a fixed shift of employment when a
second shift was created on said date Strikers return-
ing to work on or after June 10th were offered em-
ployment on the second and third shift fobs, and the
third shift began operations on or about July the 15,
1974 This offer was without regard to their seniority
except to the extent that two striking employees who
made application to return to work on or about the
10th of June , 1974, the most senior employee was giv-
en the last remaining job available on the first shift of
employment
(3) On or about June 14, 1974 , the Respondent and
the Union engaged in negotiations and the subject of
fixed shifts was discussed The Respondent proposed
the fixed shift system of employment
Respondent, both prior to and since the strike, provided
its employees with fully paid hospitalization , medical-surgi-
cal, and major medical supplementary insurance During
the strike , Respondent ceased payments on behalf of the
striking employees , so advised those employees, and in-
formed them that, if they wished, they could continue cov-
erage as individuals Eighty-one striking employees were
removed from the insurance coverage as of April 30 31
It was stipulated that upon their return to work strikers
were treated as new employees in regard to their health
insurance in that their insurance was not reinstated for 90
days 38 This was true even as to any employees who may
have converted to individual insurance coverage
36 Assuming that the employees had been merely suspended pending reso-
lution of the criminal complaints , I would reach no different result and the
remedy would remain unchanged The record reflects that Respondent's
practice of suspending employees charged with felonies was discretionary
and that the discretion had been exercised in regard to at least one nonstrik-
er so charged (Homer Bible) because Respondent did not believe that the
charges against him had merit Thus , suspension was not required by any set
or inviolable company policy Moreover, even if company policy required
suspension , it would be "bootstrapping" for Respondent to rely on criminal
charges it caused to be filed as a basis for suspension and then to argue that
it was bound by its policy
37 It was not contended that the cancellation of benefits during the strike
was unlawful The record does not reflect whether any employees converted
to individual coverage
38 Pursuant to the terms agreed upon between Respondent and the insur-
ers, Group Life and Health Insurance Company (Blue Cross ) and Group
Respondent contended that the returning strikers were
accorded advantageous treatment in regard to their insur-
ance in that, had they merely been treated as terminations,
they would have had to await the anniversary date of the
insurance policies, January 1, in order to renew coverage 39
Respondent 's industrial relations manager, Murrell , testi-
fied that the requirement that an individual who dropped
his insurance coverage while remaining an employee wait
until the policy 's anniversary date to resume coverage was
a matter of Respondent's personnel policies and practices,
not mandated by the insurers
As to both of the foregoing acts, I find that Respondent
has violated Section 8 (a)(3) of the Act The institution of
fixed shifts placed essentially all returning strikers perma-
nently on the less desirable second and third shifts while
strike replacements , whom Respondent began to hire in the
last week of April , and those who gave up their strike activ-
ity early, were permanently assigned to the first or second
shift
While the change from rotating to fixed shifts may well
have been justified as a temporary exigency by the reduced
number of employees and the need to train replacements
during the strike, there was no showing that , once the work
force was stabilized and trained , the continuation of the
fixed shifts over the expressed opposition of the Union was
required Thus, I conclude , the institution of fixed shifts
was comparable to the award of superseniority considered
by the Supreme Court in N L R B v Erie Resistor Corp,
375 U S 221 (1963 ) The institution of fixed shifts , like the
superseniority , operated to discriminate between strikers
and nonstrikers , both during and after the strike , and had a
Hospital Service, Inc (Blue Shield), new employees were permitted to enroll
in the insurance program within 45 days of employment and coverage be-
came effective after 90 days The 90 day eligibility requirement was set by
Respondent , the insurers had no such requirement
3' The contract provisions referred to by Respondent are as follows
ARTICLE I-DEFINITIONS
A EMPLOYEE means a person directly employed on a full time
basis in the regular business of and compensated for services by the
Employer
ARTICLE II-EMPLOYEES ELIGIBLE
The following employees are eligible for insurance under this policy
B Any employee not eligible on the policy date but who subse-
quently to that date shall have been continuously employed by the
employer for the period of time specified in the application , [90 days] or
in a written notice from the Employer changing such period of time
provided however , that such change shall apply only to those
employees employed on or after the effective date of the change
C An employee heretofore insured under this policy , whose insur-
ance terminated for any reasons, shall be eligible for new coverage
hereunder in accordance with the provisions of Article III, below
ARTICLE III-EFFECTIVE DATES OF INSURANCE
B For employees becoming eligible subsequently to the policy date
who submit application for coverage within thirty days following the
date of eligibility the coverage shall become effective on the Insurer's
regular business day immediately preceding the date such application is
delivered to the Home Office of the Insurer [as amended]
C For employees who become eligible subsequently to the poll-
cy date but who make application for coverage more than thirty days
after becoming eligible, the insurance shall become effective on the
next succeeding policy anniversary
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
destructive impact upon the strike and union activity As
such, it carried its own indicia of intent and, as there was
no overriding business justification for continuing the fixed
shifts beyond the hiring and training period for strike re-
placements, the business purpose asserted by Respondent
was insufficient to insulate the change from the reach of
Section 8(a)(1) and (3) of the Act
Similarly, I conclude, Respondent's characterization of
returning strikers as new employees for insurance purpos-
es, with its resultant 90-day delay in the resumption of cov-
erage, falls into what the Court has referred to as the "in-
herently destructive category" placing upon the employer
"the burden of explaining away, justifying or characteriz-
ing `his actions as something different than they appear on
their face"' and permitting the Board to find an unfair
labor practice even if the employer introduced evidence
that the conduct was motivated by business considerations
N L R B v Great Dane Trailers, Inc, 388 U S 26, 34
(1967), N L R B v Erie Resistor Corp, supra at 228
Respondent's explanation that the 90-day waiting period
was a benefit to employees who would otherwise have had
to wait until January 1, 1975, falls in light of Murrell's
testimony that it was only a matter of Respondent's per-
sonnel policy to require employees whose coverage termi-
nated to wait until the anniversary date Whatever the mer-
its of that policy when in the unlikely event an employee
voluntarily terminated the cost-free coverage, it was inher-
ently destructive of the right to strike as applied herein I
note, as set forth above, that it was even applied to any
employee who converted to individual coverage and no ex-
planation therefore was offered I also note, moreover, that
it would appear that returning strikers could have been
considered under article III(B) of the insurance plans, pro-
viding for coverage effective on the business day preceding
receipt of the application at the insurer's home office, as
well as under the subsection (C) which required a delay
until the anniversary date for certain eligible employees
The record does not reflect that Respondent attempted to
have the insurers resume coverage immediately or that the
insurers would have refused to do so if requested 40
F Unfair Labor Practice Strike
General Counsel, by amendment to the complaint, con-
tended that Respondent's unfair labor practices of April 11
prolonged the economic strike which had begun on March
25, and converted it to an unfair labor practice strike 41
Respondent argued that even assuming that some of its 31
discharges on April 11 violated the Act, at least 7 of them
were valid, the General Counsel having refused to issue
complaint thereon Thus, it asserted, conversion of the
strike based upon these discharges and upon Respondent's
40 Art X-"General Provisions," sec D, "Reinstatement," states that ac-
ceptance of the premium by the insurer fully reinstates a policy terminated
by default, and indicates, at least, that reinstatement of the strikers' cover-
age was possible While Respondent s action herein was a cancellation rath-
er than a default, this provision provides some insight into the insurer's
policies
41 It would appear from General Counsel s argument on the record and in
brief that it does not contend that the April 25 discharges converted the
strike
maintenance of its legal position in regard to them would
not be automatic As noted above, I have found that of the
remaining 24 discharges of that date 19 were violative and
5 were justified
No meeting of the employees was held, or vote taken,
wherein it could be said that a determination was made to
continue the strike until the discriminatory discharges were
remedied However, at each of the negotiating meetings
conducted after April 11 (April 17, June 14, and August 1)
the Union made an issue of all of the discharges and
sought reinstatement for the discharged employees I have
no doubt that factors in addition to 19 discriminatory dis-
charges contributed to the prolongation of the strike Some
of the prestrike economic issues were still unresolved, some
of the discharges with which the Union was concerned
were lawful, and, it must be noted, there was serious mis-
conduct by some pickets and/or other persons whose iden-
tities were unknown Each of these factors contributed to
the strikes' prolongation Nonetheless, the law is clear "if
an unfair labor practice had anything to do with causing
the strike, it was an unfair labor practice strike " General
Drivers and Helpers, Local 662 [Rice Lake Creamery Co ] v
NLRB , 302 F 2d 908, 911 (C A D C, 1962), citing
N L R B v Stackpole Carbon Co, 105 F 2d 167, 176 (C A
3, 1939), cert denied 308 U S 605, N L R B v Birmingham
Publishing Co, 262 F 2d 2 (C A 5, 1958) See also Colonial
Lincoln Mercury Sales, Inc, 197 NLRB 54 (1972) The
same rule pertains where a strike which initially involved
no unfair labor practice is prolonged or aggravated by an
employer's unfair labor practice Rice Lake Creamery Co,
supra Such is the case here The strike, initially economic,
took on a mixed character after April 11 and the employer
was bound to reinstate the striking employees upon appli-
cation even if the discharge of their replacements was re-
quired in order to do so
G Offers To Return To Work
General Counsel contended that an unconditional offer
to return to work had been made on behalf of all striking
employees, including those who had been discharged, on
July 23, and that, even assuming arguendo that no blanket
offer was made, after April 17 it would have been a futile
gesture for any of the discharged employees to request re-
instatement Respondent disputed both contentions
The record reflects three formal meetings subsequent to
the commencement of the strike and the initial discharges
At the first meeting, April 17, Union Representative Wick-
ham told Sears that Respondent had created 31 new issues
Sears stated that the employees were terminated Wickham
disputed the validity of the discharges, in general, and
Sears, referring to a file, stated that Respondent had the
evidence to support them He rejected Wickham's request
to examine the evidence and stated that he would present it
to the Labor Board Sears questioned Wickham as to
whether or not he was making it a condition for settlement
that the 31 be reinstated and Wickham stated that he was
Respondent presented a package proposal to settle the
strike which included a provision that discharged employ-
ees could file charges with the Board to determine their
employment status Wickham rejected this "On account of
MOORE BUSINESS FORMS 409
the 31 people " When Respondent and the Union met
again on June 14, Wickham again sought consideration for
the reinstatement of the discharged strikers He asked
Sears whether Respondent would agree to a disciplinary
layoff in lieu of discharge , which Sears rejected Sears also
rejected a proposal to submit each discharge to individual
arbitration and reiterated his position that the NLRB was
the only forum to resolve those issues 42
At the meeting of August 1, Wickham stated that he
wanted to get the entire matter settled and everyone back
to work He sought reinstatement for the 31 dischargees of
April 11 and the dropping of criminal charges filed in re-
gard to the shooting on April 25 Sears stated that he would
recommend that the criminal charges be dropped , that the
persons so charged would be eligible to return to work if
the charges were no-billed , but stood on his position that
reinstatement of the 31 would have to be based upon a
disposition by the NLRB A tentative agreement for the
return of the remaining strikers who had not been dis-
charged was reached Final agreement , however, was never
concluded As of August 1, offers to return to work had
been made by or on behalf of virtually all nondischarged
strikers and all picketing activity had ceased
On August 6, in a private meeting, Wickham told Sears
that the membership would not abandon the 31 At the end
of August , Sears received an unsigned "Strike Settlement
Agreement" which he identified as coming from Wickham
It stated that the Union terminated the strike and offered
on behalf of all eligible employees to return to work Proce-
dures for their return were proposed, as were the dropping
of all criminal charges and the Union's agreement not to
pursue unfair labor practice charges for the 31 The docu-
ment was never executed by either party
On July 23, at least some of the striking and discharged
employees personally sought reinstatement Jerry Prater,
Earl Reaves , Stanley Bragg, Ronald Craft (all alleged dis-
crimmatees), Curtis Mayo, Donald Breed (both discharged
but not alleged as discrirninatees), and Johnny White
crossed the picket line, entered the reception lobby, and
told Supervisors Jones, Rollins, and Whiten that they
wanted to sign the sheet to go back to work 43 Jones, who
could not imagine them coming over to apply for work and
thought they were joking, told them that he thought they
were all on the list of people who had been terminated,
"which means that you're not eligible to sign the sheet " He
42 The foregoing is based on the mutually corroborative testimony of
Sears and Lynwood Williamson , chairman of the negotiating committee As
previously noted , Wickham did not appear at the hearing
43 Prater testified that he went in to the plant at the direction of Wickham,
who had instructed him to make application for all of the striking employ-
ees, which , he stated , he did I am constrained to credit the mutually consis-
tent testimony of Jones, Rollins , and Whiten , as corroborated by employee
White , to the effect that the request was made only for the employees then
present I note that Craft s testimony that Prater made a request on behalf
of all the terminated' employees is inconsistent with Prater's testimony
that his offer was for all "striking employees ' I note , more importantly that
Wickham , although present , did not make the offer himself and the alleged
offer was made orally Even if a blanket offer was intended , the circum-
stances made the offer ambiguous and the ambiguity must be construed
against the party responsible for it Further , the alleged instructions to Pra-
ter to make a blanket offer were somewhat inconsistent with Wickham's
instructions to individual employees , such as Gerald Turner , to make their
own efforts to get their jobs back
stated that he would check with Pope and attempted, un-
successfully , to locate him He then checked his list of the
employees who had been terminated Determining that all
of these employees, except White, had been discharged, he
told them that none but White could sign the list He or-
dered them to leave the plant premises
On July 24 , B C Hightower returned to the plant and
asked Pope what his job status was Pope told him that he
had been terminated In response to a question , Pope told
Hightower that he could return to work when the criminal
charges were favorably resolved Hightower told Wil-
liamson and Burrows of this conversation Williamson and
Burrows, however , made individual applications on July 25
and 26, respectively Donald Brown requested reinstate-
ment on August 1 and was told what Hightower had been
told Roger Gibson requested reinstatement on November
I1 The record does not reflect that any of the discharged
employees , whether in the April I1 or April 25 group, had
been reinstated by the time this case was heard
Based upon the foregoing , I find that offers-in -fact to
return to work were made by Prater , Reaves, Bragg, and
Craft on July 23, Hightower on July 23, Williamson on
July 25, Burrows on July 26, Brown on August 1, and Rog-
er Gibson on November 11 I do not find that any uncon-
ditional offer on behalf of all strikers was made However,
in agreement with the General Counsel, I conclude that the
absence of applications for reinstatement by the dis-
charged strikers is irrelevant because the making of such
applications would have been futile See Penzel Construc-
tion Co, 185 NLRB 544 (1970), affd 449 F 2d 148 (C A 8,
1971) Most significantly , this conclusion is borne out by
the record of such requests herein, not only were the re-
quests of employees who requested reinstatement rejected,
but the employees ' mere presence was received with incre-
dulity, they were not permitted even to sign the return-to-
work list, and they were summarily directed to leave the
plant The union representatives and committee were re-
peatedly told that only by recourse to the Board might
employees be reemployed I note also that the striking em-
ployees talked to one another about the rejections of their
offers Thus, the rejection of one application would tend to
discourage other discharged strikers from applying More-
over, while Respondent could have silently awaited the end
of the strike and then rejected offers to return of those it
believed had engaged in misconduct , it chose to follow a
different route The employees were told once by letter
from Respondent, and repeatedly thereafter by local news-
paper articles and advertisements setting forth Re-
spondent's position, that they had been discharged 44 In
these circumstances , the submission of requests to return to
work would have been meaningless and the striking em-
ployees knew it
General Counsel argued that the futility of application
arose on April 17 and that it was from that date that Re-
spondent was obligated to reinstate the discharged employ-
ees I cannot agree While it may have been futile for these
employees to seek reemployment at any time , the strike
44 One newspaper article , in "The Cleburne News of June 13, self-pro-
claimed as The Most Widely Read Newspaper in Northeast Ala," went so
far as to quote ` plant officials and attorneys as stating that the employees
who had lost their jobs would ` never be rehired "
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was very much alive on April 17 and would not have termi-
nated upon revocation of the 31 discharges of April 11
To paraphrase T S Eliot, the strike herein died "not
with a bang but a whimper " 45 By August 1, picketing had
ceased and requests for reemployment had been made by
substantially all nondischarged strikers and by some who
had been discharged The Union, by then, was urging em-
ployees to seek reemployment General Counsel initially
pleaded August 1 as the date on which the refusal to rein-
state began I believe that date more accurately reflected
the facts as developed by the lengthy hearing herein and I
so find
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act
3 By discharging the following named economic strik-
ers on April 11, 1974, Respondent violated Section 8(a)(1)
of the Act
Stanley Bragg Billy Joe McGinnis
Leroy Brown Martin T Mitchell
Mike Campbell Nelda Morrow
Ronald Craft Dorris Junior Payne
Leon Daniel Lynn Payne
Tommy Ervin Jerry Prater
Ralph Johnson, Jr Earl E Reaves
Mike Lindsey Larry Smith
James McCormick Larry Turner
Danny White
4 The strike which began on March 25, 1974, was an
economic strike at its inception but was prolonged and ag-
gravated by Respondent's unfair labor practice, described
in paragraph 3, above, and became an unfair labor practice
strike as of April 11, 1974
5 By discharging the following named unfair labor
practice strikers on April 25, 1974, Respondent violated
Section 8(a)(1) of the Act
Donald Brown B C Hightower
James Burrows Lynwood Williamson
Jackie Gaines Roger Gibson
Curtis Hiett
6 Respondent did not violate Section 8(a)(1) or (3) of
the Act by discharging the following named economic
strikers on April 11, 1974
Melvin Ervin Eddie Waldrop
Rayford Parker Noel Williams
William Vaughn
7 By discontinuing its practice of rotating work shifts
and instituting fixed work shifts, Respondent violated Sec-
tion 8(a)(1) and (3) of the Act
8 By requiring striking employees, when they returned
to work, to undergo a new 90-day waiting period before
their hospitalization, medical-surgical, and major medical
4'T S Eliot, "The Hollow Men , V (1925)
supplementary insurance coverage was resumed, Respon-
dent violated Section 8(a)(1) and (3) of the Act
9 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
It having been found that the Respondent has engaged
in unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act
It having been found that Respondent unlawfully dis-
charged Stanley Bragg, Leroy Brown, Mike Campbell,
Ronald Craft, Leon Daniel, Tommy Ervin, Ralph Johnson,
Jr, Mike Lindsey, James McCormick, Billy Joe McGinnis,
Martin T Mitchell, Nelda Morrow, Dorris Junior Payne,
Lynn Payne, Jerry Prater, Earl E Reaves, Larry Smith,
Larry Turner, Danny White, Donald Brown, James Bur-
rows, Jackie Gaines, Roger Gibson, Curtis Hiett, B C
Hightower, and Lynwood Williamson, I shall recommend
that Respondent offer each of these employees immediate
reinstatement to his or her former position, or, if such job
no longer exists, to a substantially equivalent position,
without loss of seniority or other rights or privileges, dis-
charging if necessary any replacements hired,46 and make
each of these employees whole for any loss of earnings he
or she would normally have earned from the earlier of
a date 5 days after the employee actually made an uncon-
ditional offer of reinstatement or 5 days after August 1,
1974,47 the date by which I have found the strike in sub-
stance ended and by which the striking employees would
have made unconditional offers of reinstatement had Re-
spondent not made the making of such offers futile by its
earlier conduct, to the date of Respondent's offer of rein-
statement, in accordance with the Board's formula set forth
in F W Woolworth Company, 90 NLRB 289 (1950), with
interest thereon at the rate of 6 percent per annum as set
forth in Isis Plumbing & Heating Co, 138 NLRB 716
(1962)
It having also been found that Respondent unlawfully
required strikers who returned to work to undergo a 90-day
waiting period before their hospitalization, medical-surgi-
cal, and major medical supplementary insurance coverage
was resumed, I shall recommend that they be made whole
for any losses they may have suffered as a result thereof
subsequent to the date they returned to work or would
have returned to work but for Respondent's unlawful dis-
charge of them, together with 6-percent interest per an-
num Ramona's Mexican Food Products, Inc, supra
Further, it having been found that Respondent unlaw-
fully terminated its practice of rotating shifts and institut-
ing a fixed-shift system, I shall recommend that it be re-
quired to reinstitute its rotating-shift system
In view of the seriousness of the violations involved, I
shall recommend a broad remedial order As the Board
recently stated in Ohio Power Company, 215 NLRB 165
(1974)
46 The record reflects that strike replacements were not hired prior to the
discharges herein
47 Ramona s Mexican Food Products Inc 203 NLRB 663 (1973)
MOORE BUSINESS FORMS 411
[T]he ultimate penalty of discharge, as retaliation for
employees exercising their Section 7 rights, strikes at
the very heart of the Act From such conduct we find
it reasonable to infer that similar interference with
those rights likely will recur Therefore, we deem it
appropriate to issue a broad remedial order in this
case N L R B v Entwistle Manufacturing Company,
120 F 2d 523, 536 (C A 4, 1941)
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended
ORDER48
The Respondent, Moore Business Forms, Inc, its offi-
cers, agents , successors , and assigns, shall
1 Cease and desist from
(a) Discharging striking employees who do not engage
in disqualifying strike misconduct
(b) Discouraging membership in International Printing
and Graphic Communications Union, AFL-CIO, or any
other union, or discouraging the free exercise of rights
guaranteed by Section 7 of the Act, by discriminating
against strikers by requiring them to undergo waiting peri-
ods for the resumption of their hospitalization, medical-
surgical, and major medical supplementary insurance cov-
erage or by eliminating the practice of rotating shifts, or in
regard to hire or tenure or other terms or conditions of
employment
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act
2 Take the following affirmative action which it is
found will effectuate the purposes of the Act
(a) Offer Stanley Bragg, Leroy Brown, Mike Campbell,
Ronald Craft, Leon Daniel, Tommy Ervin, Ralph Johnson,
Jr, Mike Lindsey, James McCormick, Billy Joe McGinnis,
Martin T Mitchell, Nelda Morrow, Dorris Junior Payne,
Lynn Payne, Jerry Prater, Earl E Reaves, Larry Smith,
Larry Turner, Danny White, Donald Brown, James Bur-
rows, Jackie Gaines, Roger Gibson, Curtis Hiett, B C
Hightower, and Lynwood Williamson immediate reinstate-
ment to their former positions or, if those jobs are no lon-
ger available, to substantially equivalent positions, without
loss of seniority or other rights or privileges, discharging if
necessary any replacements for these employees, and make
them whole for any loss of earnings they may have suffered
by reason of the discrimination against them, in accor-
dance with the provisions of the section of this Decision
entitled "The Remedy "
(b) Make whole all striking employees for any losses
they may have suffered for lack of fully paid hospitaliza-
tion, medical-surgical, or major medical supplementary in-
surance coverage subsequent to the date they returned to
work or would have returned to work but for Respondent's
unlawful discharge of them, in accordance with the provi-
sions of the section of this Decision entitled "The Reme-
dy 11
(c) Reinstate the practice of rotating shifts
(d) Preserve and, upon request, make available to the
Board or its agents , for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order
(e) Post at its plant in Heflin , Alabama, copies of the
attached notice marked "Appendix " 49 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 10, after being duly signed by Respondent 's author-
ized representative , shall be posted by the Respondent
immediately upon receipt thereof , and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are cus-
tomarily posted Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material
(f) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
48 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions and recorimendea Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
49 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals th- words in the notice reading ` Posted by Order
of the National Labor Relations Board' shall read "Posted Pursuant to a
Judgment of the Unued States Court of Appeals Enforcing an Order of the
National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LP B0R RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT dischaige striking employees who do
not engage in disqual fying strike misconduct
WE WILL NOT discourage membership in Internation-
al Printing ana Graphic Communications Union,
AFL-CIO, or any other union, or the free exercise of
rights guaranteed by the National Labor Relations
Act by requiring striking employees to undergo wait-
ing periods for the resumption of their health insur-
ance coverage or by eliminating the practice of rotat-
ing shifts or by discriminating against them in any
other manner in regard to hire or tenure or other terms
or conditions of employment
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to bargain collectively
through representatives of their own choosing, to en-
gage in concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or
to refrain from any and all such activities
WE WILL offer the following employees immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights and privileges , discharging if necessary any re- Jackie Gaines Larry Smith
placements , and WE WILL make them whole for any Roger Gibson Larry Turner
earnings lost as a result of our unlawful conduct Curtis Hiett Danny White
against them, plus interest at 6 percent per annum B C Hightower Lynwood Williamson
Stanley Bragg James McCormick Ralph Johnson, Jr Mike Lindsey
Donald Brown Billy Joe McGinnis WE WILL make the striking employees whole for any
Leroy Brown Martin T Mitchell losses they may have suffered because we made them
Jimmy Burrows Nelda Morrow wait 90 days before resuming their health insurance
Mike Campbell Dorris Junior Payne coverage and WE WILL reinstitute the rotating-shift
Ronald Craft Lynn Payne practice which we had before the strike began
Leon Daniel Jerry Prater
Tommy Ervin Earl E Reaves MOORE BUSINESS FORMS, INC