National Steel Corp.

National Labor Relations Board - Board Decisions

May 16, 1979

242 N.L.R.B. 294 (N.L.R.B. 1979)

I)tI('ISI()NS () NA IONAI. I.ABOR REI.A' IONS BOARI)
National Aluminumn l)ivision of National Steel Corpo-
ration and Aluminii Workers International Union,
I!)cal Union 132, AFL-CIO. Case 9 ('A 12329
May 16. 1979
)ECISI()N AND ORDER
BY MIMBI RS P Nt :I 1.() MIRPIIIY, ANI) TRt I :S)AI.I
On January 3. 1979, Administrative aw Judge
Robert W. I.einer issued the attached I)ecision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting hrief and the GCeneral ('ounsel filed
a brief in opposition to the exceptions and in support
of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(h) of' the
National abor Relations Act, as amended, the Na-
tional labor Relations Board has delegated its au-
thority in this proceeding to a three-membner panel.
The Board has considered the record and the at-
tached [)ecision in light of the exceptions and briefk
and has decided to affirm the rulings, findings, and
conclusions2 of the Administrative L.aw Judge anc to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) ofi the National l.ahor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recom iiended Or-
der of' the Administrative Law Judge and hereby or-
ders that the Respondent, Nationial /Alli num
Division of National Steel ('orporation. lawesviille,
Kentuckv. its officers, agents, successors, and assigns.
shall take the action set flrth i the said recommentd-
ed Order.
I Respondent hla excepted to certain crcdIilih tilndings made h hc Ad-
mninrisr:lie .;a Juidge. It is the Bard's estabhlished polic\ nolt to i, err ulc
In Adnillitrall i I aw Judge's resolutioinl s itih respect Ii credthhii iles
the clear preponderance if al l of the rele*it cevidence cninces l' that lile
rcoltition' ale itncorrectl .iandlrd Dr IIll Prodwls . Inc. 9 N R1t 544
(I1950), enld. 188 I .2d 32 3d (ir. 195 1. We have carelulls earnlled the
record and find nol ha sis ir r ersilng his firdings
2 're agree With the Admnlrl trativc l.ai lg. dge r llhe reasi l net ilth hx
him. thai Reponndent liled tl eslablish tha.t it had ;i hilesi belie Ihall
eniplyccs Hrlown nt lv, lrd had en;laged hll nli11llitucIl idiiilg tilhe trlke
xwhich disqualificd hem Ir reilnst.tement. ItIc Ci coIctis conchlded t RC-
spondenls relflual. i these circumstnances. to, ristte these srikers uprll
Iheir unconditiona l ofier, lo return io xiork iolated Sec 8(al)( ) olit tie Act
without inlqulirN as t whclhcr r not Br own itlld 1owU lrdl in dlfct engaged in
the alleged mlisconducr t the di\dmlirstraiie I.an Judge. while Ickno Iniedg
ing the G(eneral ( uinel did not have the hurden r o elahllishing halt lri, i
and lHi ward did nlt. in act. engag i the alleged nlisl rndultl. ietrlheles,
conclude d tIhlt the (iGenerl Co( unsel also met this hburden. Although Ihe
limnter linding m: he deemed gratitius under lie clIfcrntlmsalleC here, we
adopl ii
[)1('ISION
SIAIMINI t)' t lili ( I S
R(lBIR I W. I.INI R, Adlliistra;ltixe I.aw .JtldgC: The
original charge in this matter was filed h Alunminum
Workers International Inion. Local Union No. 132 AFl.
('10. herein called the Union. on March 21. 1978; the
amended charge was filed on April 12. 1978. 'Ihe com-
plaint, alleging violations of Section 8(a( I) and (3) of the
National I.abor Relations Act, as amended, herein called
the Act, together with the notice of' hearing, issued on May
5, 1978. The hearing, with all parties represented hby coun-
sel, was held on September 11 13, 1978. in Hawesville,
Kentucky. Subsequent to the close of' the hearing, briefs
were duly filed by all parties. all of which were carefulls
considered.
The principal issue raised bh the pleadings and proof re-
lates to Respondent's alleged violation of' Section 8(a)( )
and (3) of the Act in ftiling and refusing to reinstate two of'
its emploees who, having engaged in an otherwise lawful
economic strike. allegedl\ committed acts of serious picket
line violence against the property of Respondent.
At the hearing, all counsel were afforded fulll opp(ortunity
to present oral and written cvidence. and to examine and
cross-examine the witnesses. l'he parties s aived oral argu-
mnent ater the presentation of the eidence.
l:pon the entire record. together v\ith m\ careful obser-
vation of the ritlnesses alnd ilh due consideration of the
hriet's I make the fllowin:
INDIN(iS () IA( IS
1. 1111: 11 SINISS ()I RtSP(INI)IN[
Ihe complal;tit lleges. Responidenit admits. and I find,
thial Respondent i a l)li;lare corporation enigaged in the
manufacture and sale of aluminm products at its plant in
l Iawesvill e. Kentuclks. )urirg the 12-month period preced-
ing the issuianice of, the complaint, a representatixe period,
Respondent sold anid shipped goods and materials valued in
excess of $50.(IK) from its l awesville filit? directly to
points outside the State of Kenltucky. Respondent admits
and I find thiat it is a etiploser engaged in commerce and
in aln industrs! allecting commerce within the meaning of
Section 2(2) ((). alid (7) of the Act.
It. tilt I tIR ()RAt(i\/AII() , INVi() AiM
I lie complaint alleges Respondent admits. and I find.
that the abhove-captioned union, herein called the Union
has hbeen. antd is. labor organilzation within the meaning of
Section 2(5) o(f the Act.
Ill. 1Il \1 I I tll) N1 AIR I Ai)R PRA(t tI( I S
A. Bhlcgron,ld
()O July 3. 1974, a majorit of Respondent's employees in
the production and maintenance unit employed at its
ltawesville plant voted in a Board-conducted election in
faxor of' represeni tation h the nion. which v as thereafter
diulx certified as collective-hbargaining representative in that
unit Respondent a;tnd the nion then entered into a 3->ear
collectie hbargaining agreement (Aith ;a 30-day uliioll-secu-
rit, clause) which expired at midnight, February 15, 1978.
B\ midnight on that dte, the parties failed to conclude
flurther collective-hargaining agreement: and at strike by the
242 NL.RB No. 63
294
NATIONAI. STEEI. CORPORAI ION
Union commenced with its pickets picketing at or near Re-
spondent's premises at two locations: the first being the en-
trance at thejunction of a road leading perpendicularl into
Respondent's factorN from KentuckN Route No. 334
(known as the River Road). that perpendicular road being
called the "Access Road": the second picketing point being
at Respondent's Hot Metal Gate at its juncture with Ken-
tucky Route No. 271.1 The picketing at these two locations
was conducted pursuant to a schedule wvhereh' usuallN
three members of the Union (employees of Respondent)
picketed at each location at one time. The focus of the al-
leged picket line violence occurred at or near the Access
Road Junction at about 8:40 p.m. on February 22, 1978.
when about 20 pickets gathered to prevent (whether law-
fully or otherwise is unknown) the alleged continued pas-
sage of commercial traffic through the picket line. Ihe tin-
contradicted testimony of an alleged perpetrator of the
violence, Richard Brown, indicated that the purpose of the
20 pickets at the picket site was to attempt to intimidate hb
a show of numbers any truckdrivers from passing through
the entrance point.
The strike continued (with picketing) until March 8.
1978, when negotiations led to a tentative agreement. B I10
a.m., Saturday. March I I. 1978, the agreement was ratified
hb the unit employees. Immediately after ratification and
notification thereof to Respondent, on March I I. nion
President Mark Fulkerson spoke to Respondent's Industrial
Relations Director, E. H. ("Pete") Gritton.: lie asked Grit-
ton when the employees should return to work. and (iritton
I According to a map of the area (Resp. Exh II. these two plant rea
entrances are not less than 2.0(0 feet apart i connected h direct hne Actu-
ally, they are at the t'xt of a right trl;lngle the Iw.o exiernal coinnecting legs
of which are Kentucky ighwaNs 334 and 271. he map t the area indldicaic
that these two points are about 3.300 feet apart i. as is the case, those low
highways are used o travel from one entrance t the other In addition. the
parties stipulated certain distances friom the more sgnilicant poini it' pickel-
ing herein (the junction of Kentucky State tighw a No 334 and the Access
Road). Ixooking north along Route 334 from a point south of the lunctiion of
the Access Road and Roule 334. there is a residence on which was moiunted
a porch light under an overhanging porch of some 8 to 10 feet. his porch
light was approximately 90 feet from the midpoint line of the unction of the
Access Road and Route 334. Route 334 (the River Road) is a blacktop road
some 22 feet in width. From a midpoint in that road to the rear window a a
certain red Chevrolet pickup truck (the "security truck"). the parties al irst
attempted to stipulate, at the time the ehicle was attacked. that the dstance
was approximately 54 feet from that midpoint on Route 334 to the hack
window of the Respondent's truck Notwithstanding the withdrawal of (;en-
eral Counsel from this part of the stipulation. since all parties slsited the site
and various distances were measured ofl. and in the absence of contradictory
evidence notwithstanding the truck was moving at about I1) I miles per
hour) I find that the distance, at that time. from that midpioint line in the
Junction on Route 334 to the rear window ot the security truck w hich w:as
then proceeding perpendicularly away from the aforesaid unction. was ap-
proximateli 54 feet. I also conclude on the basis ot the stipulation that the
distance from a certain fire barrel to the rear window of the ecurts truck.
which fire barrel as on the west side of Route 334 some 8 to I0 e est of
the road itself. was 82 feet. astly the parties stipulated. and. in addill. the
evidence showed, that there were I I- to 12-foot high bushes r trees pliillel
to the Access Road on the property of the above residence The eldernce
also shows that there were no leaves on the bushes or trees at the tlnie ot the
alleged iolence on February 22, 1978 II as also stipulaled that one ot the
alleged perpetrators of picket line violence. Hienry tov ard. was tried and
consicted, pursuant to a 1971 indictment. of armed a;ssault uith inltent to rh
for which he was sentenced to 10 ears Iin the cuslodN ot the State ot Ken
lucky te served 13 months of that sentence. A the hearing. Respondent
admitted that it knew of the conviction at the time it hired him
2 Respondent conceded that (iriltmn and J nles Russelburg. Its ( Ist lt Hlouse
foreman. ere supervisors and agents I Respondent within the mean ing t
the Act.
told him that the, should return to ork starting with the
midnight shift on Sunmdai-MoNinda. March 13, 1978. Grit-
ton also stated that all the emplo,ees could return to work
except Richard Brown. lenrs Howard. and Rohbert Smith.'
Ihereafter. on March 13. all 196 employees in the unit re-
turned to work except Richard Brown and Ilenr, Ihloard,
though both of them were ready and illing to returrt on
Mlarch 13 when all the striking emplo ees returned to em-
plox ment. ulkerson informed Brow n and I loward oft rit-
ton's further direction: that lowardl and Brown he at his
office thie tfolloing Mlonda nlorlllng.
Otn Mondas. March 13, 1978, at separate morning meet-
ings. (iritt on to l Blo uni n alld llor ar. it l ulkerson's pres-
ence, that the, erer not being reinstated because of their
picket liie assault on ithe securits truck on :ebhruair 22, for
,hich Respondeint h an ewitness: I-orellani Jaies
Russelburg. Bron i ad Howard denied the allegatioln.
When Huliward later the same das attempted to return to
work, he was urned av\. bh Respondent.
Oil the basis tf [:ulIkerson's unconditionil ofter. oln behalf
of all triking eplosees to return to w rk. m ade to and
accepted h Gritton on March II, I cnclude that the
linion, on behalf t all emplo sNees inclIttling Brown and
Ilow ard. made atn effectlie nconditional on ier to return
which Respondent rejected at the same time with regard to
Brov n and I w ard, and which Respondent accepted for
all otlher unit employees comntencing March 13 . .R.B.
. I1. (. l Qtiilt, Initi., 552 .2dl 519. 29 (3d Cir. 1977).
Ihe Rslpndent's obligation to reitistate the striking em-
plo ees. including Brown ,ind How ard. depends in the first
inLstance upon ani uniccitional offer b h e strikers, or the
n tli[ (,on their behallf. lcric(n Aachitntrr (' 1. v.
.1 RH., 424 .2d 1321. 1328. 5th (Cir. 197(1): V. RB. v.
1. Pncer, Io , Pww'r )tihtingi' Corp., atd lI'otc'r Btlicai
,17d Barlz, NSql/i (Cor/i 304 F.2d 773 (2d (ir. 1962) cf.
N.L R.B. (; I)lllt 7troilc/rs. lt . 388 .S. 26 (1967).
1his wa t done. Moreo er. in ie\ tof(irittions explicit state-
menit thilt Br\\ n and Howard should not report. any tfur-
ther attemlpt to offer themsel es ftr reinstatement ould
ha e been futile. as was indeed the case with Houward.
The record shoskNs that tiward had filed about 15 ries-
ances durinig the 3 ears of the expired contract and Brown
had filed about 7 In all. some 22(1 grievances were filed hb
the I nion in 1977. about 185 in 1976 and 2() in 1975. On
the tither hand. Fulkerson himseltf had tiled l) rtevances in
1977 on his o n ehalf.
It is also uncontested that several other enpltees ho
were at the picket site here the alleged itolence occurred
had each iled seven to eight ritevances in 1977.
A Richard Brow n gries ance. still pendilng at the time of
this hearing, related to an improper lastitl. IIenr loHuward
had been through arbitration with Respondent regardilng it
5-da. suspensiin. w thlch arbhitratin tcctlrredl alter trnlinat-
tion o the strike. It is undisputed that '"lust causc" \\asi
tiun d hb the arhitralttr totr I loward's -das suspension.l
B. lt' Pil ttoinx on ethriari 22. / ','
Riclhardi Brtolln, enlplo , el hbs R esponldent siice Matrc h
1972. first picketed on I hrurs 21 ftr 3 ti 4 hours at the
' Ihe tailturc io reeriplos Rhert Sith s iii Il ll ssue hi i, 1se
295
DECISIONS OF NA)IONA I.ABOR R ELATIONS BOARD
[lot Metal Gate entrance 6 da s after the strike started. On
February 22, 1978, Richard Brown, with employees Burch.
Pate. and Potts. drove to the Access Road entrance at about
8:30 p.m.. not because they had been assigned to picket that
night. hut to join with other unit employees so that b their
show of numbers they would tend to coerce the truckdrivers
and to cause them to refrain from passing through the
picket line. Brown recalled seeing Howard arrive at 9 p.m.
Sometime after 6:30 p.m. on February 22. Jim Tipmore.
employed by Respondent for 7 1/2 years. telephoned Hen-
ry Howard and asked him to come out to the picket site to
have a show of people. because Respondent was moing
trucks in and out of the premises. After various detours and
meetings, they ultimately arrived at the picket site about
8:50 p.m.. according to Tipmore and Howard. The mea-
sured this time of arrival particularly on the arrival. alleg-
edly 5 minutes thereafter, of the State police who arrived at
about 9 p.m. I conclude, on the basis of the credited lesti-
mony of Gritton and James Russelburg. ilt. and the cir-
cumstances herein, contrary to their testimony, that the
arrived at the picket site at or immediately prior to 8:40
p.m.. and that the Kentucky State troopers arrived there
about 15 minutes after Tipmore and Howard arrived.
Whereas Gritton's and Russelburg's testimony on the point
had some basis of actual timing. Howard's and Tipmore's
testimony was essentially sequential. I conclude that Rus-
selburg's and Gritton's testimony on this point was more
reliable. I do not credit Brown's recollection on the point.
In any case, the 20 unit employees at this picket site were
standing. at that time, near a fire drum' waring them-
selves. The fire drum had wood on fire within it. and it is
sharply disputed just how high the flames showed above the
rim. Some of Respondent's witnesses testified that the
flames were 3 feet beyond the height of the 4-foot high
drum. General Counsel's witnesses testified that the tire.
when it showed above the rim at all, varied in its height
above the rim of the drum. Some oGeneral Counsel's wit-
nesses testified that the fire did not rise above the rim and
was hardly smoldering. I conclude. on the testimony of Re-
spondent's witness, Marsha Morrison. whose observation
related to the height of' the fire about the time of the alleged
violence. that the flames. at that time. were no greater than
15 inches above the rim. The height of the fire obviously
could and did vary from moment to moment depending
upon the amount of fuel placed in the drum. I credit Mar-
sha Morrison's observation and place the height of' the
flame above the rim, at 8:40 p.m.. at 15 inches.
The only other light mentioned in the record was a porch
light some 90 feet away on a house standing at the junclion
of Route 334 and the Access Road. That porch light gave
off no illumination significant to this case. On this point. I
credit the testimony of James Russelburg. il. Assuming.
as Respondent asserts, that there was a full moon on Febru-
ary 22. there was no proof concerning when the moon set or
concerning the cloud cover at that time and place. I con-
clude, therefore, that the sole source of' light was from the
fire and that that source swas variable both in intensitN and
stabilits. I find the evidence inconclusive on the flact. as
'The fire drum was a 4-foot high. 55-ga;llol steel drum in hilch tlhe pick-
ets placed ood and set the wood afire far purposes lf w.rrming themel ,es
Respondent asserts. that there was additional reflective
light from the fire barrel on snow on the ground at that
tirme.
5
At about 9 p.m.. a Kentuck State trooper told the em-
ploecs that there had been some trouble and asked them to
disperse. lie employees then lett. The evidence shows that
the trouble l It, hlch the State trooper referred consisted of
his assertio that lass had been broken in Respondent's
administration building.
In fact, however, the Respondent's security truck had
been damaged at about 8:40 p.m. at this picket area: and.
as above-noted. Russelburg had identified Hokard and
Brown as the perpetrators. as a result of which the were
denied reinstatement.
Both Howard and Brown not only denied attacking the
truck but also testified that there was no bad blood or ill
teeling between either of them and Foreman Russelburg.
Russelburg and Bro n attended high school together and,
i' not friends in a social sense. knew each other foir 20 years.
Ihere is therefore no basis on which to infer that Russel-
burg's accusation was based on personal retaliation. Russel-
burg often saw lolard, employed by Respondent since
1973. while Russelburg often saw Howard. employed by
Respondent since 1973, while Russelburg was shop stew-
ard. In Januar 1978. when Russelburg was promoted to
super isor in the Cast louse. he as foreman over Henry
Howard, his only black subordinate.
Russelburg. emploed when Respondent's aluminum
plant opened in September 1970. worked or 7 ears as a
urnit emplo ee before becoming (ase Htouse foreman in
J.anuar 1978. At all imes since 1974. he was a member of
the nion and Wi as elected shop steward by Cast House
employees for the final 2 ears of the collective-bargaining
agreement. rhich epired FebruarN 1978. He was shop
steNs ard s hen promoted out o the unit to become fboreman.
( . t, i. tlcgd I olct ( ol Febr'll2, .22, ]978
Respondent retained. as its security guards. persons em-
ploed by (lark Secu-it Agency. On the night of February
22. 1978. because o an apparent strike by employees of the
security agenc. Richard Morrison. a Clark Security guard
employed b Respondent, became the assistant chief of se-
curit at National Aluminum. He was never an employee
of Respondent.
At ahout 8 p.m.. he drove off in Respondent's security
truck on his inspection rounds. About 10 minutes later. as
Morrison drove down Access Road toward Kentucky
Route 334. and while he was about 30 to 40 feet from the
juncture of these two roads, his windshield was struck b a
missile. alter identified a aa steel ball bearing. With the
truck's CB radio. he contacted the guardchouse where guard
KelI and Foreman Russelburg were present and told them
that the vehicle had been struck." He then turned the truck
around and. within 2 or 3 minutes. returned to the guard-
house around 8:15 p.in., rhere he found Kells and Russel-
' I he light luom the tire hbarrel cnlstiluted the sole source oit light until the
.rrlisl 1 Respondenli's secutrit truck. he truck's headlighls ere the other
,ignli an l ,n surce hile the truck wai present. s ill he seen helov,.
t B1 8:20 p ill . Speruisor (iritiln called the State police hecause 1 Ithis
Itic ltlc i
296
NATIONAL STEEL (ORPORATION
burg. Because Kelly was afraid to undertake his subsequent
guard duties alone. Russelburg agreed to accompany him
on his rounds. Thus with Kelly in the truck with him, and
with a cracked front windshield. KellN and Russelburg
drove off on Kelly's rounds with Kelly driving and Russel-
burg seated at his right. Russelburg testified that theN drove
off on the rounds within 2 or 3 minutes after Morrison
returned and took a circuitous route within Respondent's
propertN before the truck stopped at about 8:40 p.m. at the
junction of Access Road and Kentucky Route 334. Richard
Morrison. however, testified that he saw the truck leave at
about 8:30 p.m. and go directly to junction. I credit Morri-
son. except I conclude that Kelly and Russelburg departed
at about 8:15 or 8:20 p.m. I further conclude that the truck
arrived at and stopped at the junction before 8:40 pm.
In any event, after stopping at the junction. before 8:40
p.m.. though it was pitch black darkness. Russelburg testi-
fied that he saw Richard Morrison's wife. Mlarsha Mlorri-
son, approaching the junction in a white van wherein Mrs.
Morrison customarily brought guard Morrison his lunch.
General Counsel's witnesses could not recall ans such white
van. As Mrs. Morrison approached the junction in the
white van. Russelburg said that Kelly drove the pickup
truck out into River Road and U-turned around in a right-
hand turn so that the driver's seat faced out into River
Road and then. completing the turn. started back up the
Access Road. following Mrs. Morrison's white an. which
was proceeding ahead of their securit, truck. In the turn.
with the truck headlights swiveling on the pickets. Russel-
burg was within 20 to 30 feet of the pickets who ere
warming themselves 8 feet off the road at the fire barrel. He
recognized. he testified. onlI to pickets who were patrol-
ing the area nearer the road. and he did not recognize the
faces at the fire barrel because he was concentratinlg on the
patroling pickets immediately near the turning truck. Trav-
eling up the Access Road while the truck was moving at 10
to 15 miles an hour returning toward Respondent's plant.
Russelburg said something hit the back of the truck in the
truck bed. Russelburg said that he looked out of the rear
window of the truck and that saw that two persons had left
the pickets. had stepped out toward the junction (about 54
feet from the rear window) in front of the fire barrel. He
identified the two persons as Richard Brown and HenrN
Howard. He said he saw them in the light of the fire and
with the aid of the moonlight shining on the snow. lie said
that the porch light of the nearbv house offered no helpful
illumination. In subsequent testimon Russelburg dis-
counted the effect of the moonlight shining on the snot but
testified that it was the reflected light from the fire barrel
that was shining on the snow and aiding in overall illiumina-
tion. Russelburg said that he not only saw their faces in full
but also saw their hands, extended in front of them. holding
a certain tpe of slingshot which he described as a "Wrist
Rocket" slingshot.7 Thus. Russelburg testified that at the
time the missiles hit the bed of his truck. the truck was
about 25 feet inside the Access Road. with Brown and
Howard allegedly standing at a distance of something in
excess of 50 feet from his view 25 feet up Access Road: 22
feet (the width of Route 334) plus some 6 or 8 feet hexsond
' No phsical descriptiin ol this tnstirumenil as. ch icted except ithu 11 'LI'
not shaped in Ihe clal . r -hape ,tf he , -,d silngI.li
the edge of the road where Browni and H o, ard w*ere stand-
Ing in ront of the fire bharrel. Russelburg then testified that
immediatel following his momentarN sighting of Howard
and Brown, missiles hit the rear window. completely shat-
tering it. and he immediatel ell to the floor and asked
guard Kell, how to use the (B radio.
Russelburg testified he could not remember i1' either
Brown or [Io, alrd wore hats or hoods hut recalls that he
saw their tfaces not ItIhstaiding that their hbacks were to the
firelight coming rorm the fire drum.
Burch and lipniore testified the, ,ere present hile
Hloward and Brown were at the fi drum iand did not see
them launch ans missiles at anx truck. nor did the' see an3
other emplobee launch such missiles. Hlo ard testified that
at the picket line that night he wore a black cap. a denim
jacket, and blue coveralls. lie testified that he did not see
Richard BroAn that night. Brovn testified he sa, HloAard
arrive at around 9 p.m.i Brown did not testit concerning
what he was earing that night. and the record i silent on
the point.
In anN event. when Russelburg Icll to the floor of the
truck and poke on the (B radio. he called guard \lorrison.
told him that the\ were hit and to call Planlt Manager Jim
Neelh aind tell him that the securit, truck had been hit
again. It took ahout 2 or 3 minutes ftr Keltl to drise back
to the guardhouse. In the drive hack to the ualrdhouse.
Russelburg did not tell KellN tile nIimle (of the assailanis or
that he had indentified them or that thes had slingshot:
and when he arri ed hack at the guardhouse, he did not tell
Richard Molrrison a of this imtorrmation. Kelkl did not
testifs at the hearing.
Russelburg at tirst testitied that he did not speak to Plant
Mlanager Neel, helore he identitied the perpetrators al an
inter eIe v ith the State police at 9:30 p.m. He then testified
that his testiilOns \, is incorrect a;nd that the first time lie
told an one uho h;ald been responsible for breakilg the real
,,indos 1 tile truck as hen he told Plant Manlgel
Neei on the w\a\ to see tle State police.
G(ritton and seel, had first telephoned the State police al
8:20 p.m.. a aho. e noted. after guard Morrison retiurlned
from his inspection round aid (iritton saA the cr.Lcked
windshield. Nee anid Gritton remained together in Nee 's
office in the administration building. Some minutes latel
Morrison called them to tell of the second assault on tlht
truck after Russelhurg had used the CB radio. Neek agaiti
called the State police (A,:)lo had not responded to the firs
telephone call) at 8:45 pn. 1 he police meanwhile had ar
rived at the other (Hot Metal Giate) picket site at about
8:45 p.m. Neelv and Giritton drove to the police at the I lo!
Metal Gate aid then folloled the police car arouiind to the
Access Road picketing location. Neel and (ritton there-
after separated wlhen lorrison ca;me up and told that
someone as hreaking glass back at the Admllinistration
Buildinl. Neel returned Io tile Administration Building.
and Critton renlained iat the Access Road picket line. g\hell
(ritton ettirned to the A\dnlinlistrtlOn Building t ahout
9:30 p.m., Necl,, was at the A\dillllistlrtion Building. ,\l-
thougIh (Grittlon had a con ersati( n t that tlle ilth Neel.
regardiing the daillage t the gla.s i the ecurts, tIuck.
llhere is, no uggestion that Neel told hlim that Rulsselhurg.
297
' I d,, wt red i thi, t,:,tnw;i\ See, -,,,u
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had returned by 8:50 p.m., had mentioned to him that
he had identified the persons who had smashed the rear
window of the truck. Respondent's Plant Manager Neely
did not testify at the hearing, nor was it asserted-as was
the case with guard Kelly- that Neely was unlocatable or
no longer in Respondent's control.
Discussion and Conclusions
The General Counsel and Respondent appear to agree
that the failure to reinstate economic strikers who have re-
quested reinstatement, as here, for picket line misconduct is
governed by the rule in N.L.R.B. v. Burnup & Sims, Inc.,
379 U.S. 21 (1964); Rubin Bros. Footwear, Inc. et al., 99
NLRB 610, enforcement denied, 203 F.2d 486 (5th Cir.
1953). See: Ohio Power Company, 215 NLRB 165 (1974).
In N.L.R.B. v. Burnup & Sims, supra at 22--23 the Su-
preme Court (Justice Harlan, dissenting) stated:
We find it unnecessary to reach the questions raised
under §8(a)(3) for we are of the view that in the con-
text of this record §8(a)(1) was plainly violated, what-
ever the employer's motive. Section 7 grants employ-
ees, inter alia, "the right to self-organization, to form,
join, or assist labor organizations." Defeat of those
rights by employer action does not necessarily depend
on the existence of an anit-union bias. Over and again
the Board has ruled that §8(a)(1) is violated if an em-
ployee is discharged for misconduct arising out of a
protected activity, despite the employer's good faith,
when it is shown that the misconduct never occurred.
See, e.g., Mid-Continent Petroleum Corp., 54 NLRB
912, 932-934; Standard Oil Co., 91 NLRB 783, 790-
791; Rubin Bros. Footwear, Inc., 99 NLRB 610-611. 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.
That rule seems t us to be in conformity with the
policy behind §8(a)(i). Otherwise the protected activity
would lose some of its immunity, since the example of
employees who are discharged on false charges would
or might have a deterrent effect on other employees.
Union activity often engenders strong emotions and
gives rise to active rumors. A protected activity ac-
quires a precarious status if innocent employees can be
discharged while engaging in it, even though the em-
ployer acts in good faith....
In the instant case, notwithstanding the allegations of the
complaint, there was no proof adduced to support any dis-
criminatory or pretextual Respondent motive in the refusals
to reinstate the strikers; nor was this case presented on any
such theory. The sole issue was whether Respondent's re-
fusal to reinstate Brown and Howard violated Section
8(a)(1) of the Act, proof of which requires no showing of
discriminatory motivation.9
In short, General Counsel, to prevail here, must first es-
9 It is unnecessary as in Burnup & Sims, supra, to reach or decide whether
Respondent's conduct also violated Sec. 8(a(3) of the Act.
tablish a prima facie case of violation of Section 8(a)(1)
consisting of (a) the employees, to Respondent's knowledge,
were engaged in the protected concerted activity of a lawful
economic strike; (b) an unconditional offer by (or on behalf
of) the employees was made to return to work at the con-
clusion of the strike, N.L.R.B. v. W. C. McQuaide, Inc.,
supra; and (c) Respondent's refusal to reinstate the erst-
while striking employees. N.L. R.B. v. Burnup & Sims, supra
at 22-23. Here, Respondent does not contest the above
three factors: that Brown and Howard were known to it as
ecomonic strikers; that in the morning of March 11, Super-
visor Gritton agreed to permit all strikers to return to work
commencing with the early morning (midnight) shift Mon-
day, March 13, 1978, except as here pertinent, Howard and
Brown, who were excluded from employment by Respon-
dent (Gritton); and that Brown and Howard were then and
thereafter denied reinstatement by Respondent (Resp. Br.
p. 4).
I conclude, on the above uncontested findings, that Gen-
eral Counsel proved a prima facie case of violation of Sec-
tion 8(a)(1) of the Act.
The parties further appear to agree that, in this type of
case, pursuant to the Rubin Bro's. Footwear, Inc., supra.
qualification on the burden of proof, N.L.R.B. v. Burnup &
Sims, supra at 23, fn. 2, the burden of going forward with
the evidence then shifts to Respondent to establish that it
held an "honest belief' that the striking employees who
were denied reinstatement engaged in misconduct of such a
serious character as to justify Respondent in denying them
their jobs. Rubin Bros. Footwear, Inc., supra at 61 1; Huss &
Schlieper Company, 194 NLRB 572, 577 (1971). Once hav-
ing established such an "honest belief" that the employees
engaged in the strike misconduct, and were refused rein-
statement therefor, Respondent is absolved from liability
except where General Counsel successfully then shoulders
the further burden of affirmatively proving that the dis-
charged employees did not, in fact, engage in the conduct
for which they were denied further employment. Rubin
Bros. Footwear, Inc., supra at 611.
The sole support in this record for Respondent's conclu-
sion that Brown and Howard launched the steel ball bear-
ings which struck the guard truck is the testimony of Rus-
selburg. General Counsel (and the Charging Party) and
Respondent, respectively, disagree on Russelburg's honesty
and his ability to have made the identification and on the
honesty and credibility of Brown's and Howard's explana-
tions and alibis and of their corroborating witnesses.
A. Respondent Did Not Have an "Honest Belief' that
Howard and Brown Engaged in the Asserted Misconduct
I do not credit substantial, and sometimes dispositive,
elements in the testimony of Respondent's witnesses Russel-
burg, Richard Morrison, and Marsha Morrison. As seen
below, some of the testimony (Richard Morrison) is dis-
credited whether or not contradicted by General Counsel's
(or Respondent's) witnesses. Other testimony (Marsha Mor-
rison) is discredited because it is inconsistent with the cred-
ited testimony of other of Respondent's witnesses (Richard
Morrison, E. H. Gritton, and James Russelburg) and, if
credited, would necessarily have undermined Respondent's
defense. Lastly, I have discredited Russelburg on the
298
NATIONAIl STEEI. CORPORA rlIO)N
grounds of his interest. his inconsistent testimony nll critical
facts, and the seeral circumstances which convince me that
his identification of Hioward and Brown as the perpetrators
of the picket line violence was not onl' mistaken but so
recklessly groundless as to he false.
1. Richard Mlorrison
Morrison testified that, in addition to hearing Russelburg
state on the CB radio. "we a being hit" and "we are coming
back," he also not only heard glass breaking. but heard that
the vehicle was "being struck by something."
I am supremely skeptical of Morrison's testimony that.
especially in such a short, unexpected conversation. under
such circumstances, he could identify glass breaking. much
less that the vehicle was being struck by missiles. In an
event, it should be noted that Russelburg testified that the
ball bearings had first struck the flatbed in the rear of the
truckis prior to other missiles subsequently striking the rear
window, that he then fell to the floor. asked the driver (Kel-
ly) how to use the CB radio. and then radioed Richard
Morrison of the event, asking Morrison to then contact
Plant Managerr Jim Neely. In short, there is no suggestion
in any of Russelburg's testimonyv or in ans other evidence.
that at the time Russelburg's radioed to Morrison, missiles
were still striking the vehicle. I regard this part of Morri-
son's testimony as invention. 2
On the other hand, he credibly testified that he saw Rus-
selburg and Kelly leave the guardhouse in the guard truck
at 8:30 p.m." (I conclude it was about 8:15 to 8:20 p.m.)
and proceed direcdtl from the guardhouse to the point
where it was eventually struck by the missiles the intersec-
tion of River Road and the Access Road. This \was the same
route that Morrison had himself earlier taken. Since Morri-
son's further testimony is credited, that it takes onl 3 min-
utes to get to the intersection from the guardhouse. Russel-
burg and Kelly would have been there well before 8:40
p.m., the time Russelburg testified he arrived there. More
important. Morrison's testimonys of Russelburg'S direct
route to the intersection particularly contradicts Russel-
burg's own testimony about his route. Not onl. did Morri-
son: therefore, testify that Russelburg started at about 8:30
p.m.. whereas Russelburg said he started out at 2 or 3 min-
t0 Russelburg admitted that no steel balls were found in the rear of the
truck If nto missiles struck the truck before the rear uindow was shattered.
there would have been no justification for Russelburg to glance out of the
rear window. Once the missiles struck the rear window. it was 9so hattered
that no identification could have reasonably been mande through it In spile
of the act that Respondent found ball bearings in the cab and none In the
bed of the truck. I credit. with reluctance. Russelburg's sersion
" Guard Kelly did not testifv. as noted aboIe. His testimony could hase
been dispositive. Counsel for Respondent's assertion that Respondent could
not locate Kelly is sufficienl. for me. to nol draw an adverse nterence from
Kelly's absence as a witness.
3' Indeed. Morrison testified not only that he heard glass breaking but
also that he heard that the glass was ".. crashing n on the people in he
truck. Such testimony is rejected as imaginatlln
13 Because of an apparent wildcat strike it guard serice enrploees. Mor-
rison was late starting his inspection runds and credibls testlfied that he did
not even return to the guardshack from his earlier inspection n the guard
truck until 8:15 p.m. This conflicts with Russelburg's estimate .il " hen he left
but appears to be supported by Grittn's testimony that. ha'sing seen he
damage to the truck. he called the police at 8:20 pm I conclude that Mor-
rison returned. as Morrison testified. at about 8 15 p m and halit Russelburg
then departed with Kelly in the truck 2 or 3 minutes therealfter
utiles al r 8:00 p.m. but Russelburg also testified he did notl
go direetl to the intersection, hut took a it ircuitous irnpec-
tion trip arriving at the intersection of Riv er Road and the
Access Road at about 8:4) p.m..
In short, to credit Morrison , uld be to undiermine Rus-
selhurg. For. it Morrison saw Russelburg go directly to the
intersection. and it', as Marsha Morrison testitied. the truck.
xwhen she arrived. was parked at the mouth of the Access
Road. Russelhurg would have had the pickets at. and arriv-
ing at. the ire barrel under his direct observation for some-
time. It is unnecessary to resol e the dispute between Rich-
ard Morrison and Russelburg. both Respondent AXlitnescs.
for I conclude. crediting Marsha 1 Morrison. that the truck
was parked on Access Road at 8:40 and that. therefore.
Russelburg had the pickets at the fire barrel under his oh-
servation for some minutes betfore 8:40 p.m. Needless to
add. however. the internal contradictiotn anmong Respon-
dent's own witnesses on this crucial point is not helpful In
supportitng the credibility of Russelburg or the detltse.
2. Marsha Morrison
MNarsha Morrison. witle of guard Richard lMorrison, testi-
fied that she brought lunch t her hushband at ariltnd 6:t1)
p.m. in ai red Caprice ('he rolet. turned int the .\ccss
Roa d trom1 Hliglisha 334. and ohsersed the guard truck
parked near the intersectioi. Ihe guard truck. I -turnitng
around behind her. followed her up Access Road t a dis-
tance of 10 to 15 feet. As she was proceeding u Access
Road. her car windows being rolled dlown. she testified site
heard glass breaking in the truck behind her.
W\hen. a minute or so later. ha, ing delivered the ullch to
her hushband. he again turned dos n Access Road tow ard
the intersection. she sas the tlame fromr the tire harrel
about IS inches above the rim and could identitl tieC ol
the pickets when confronting ti e pickets blocking her was
at the junction of Access Road and Route 334. She siste d
she returned home no later than 7:3() p.m.
I credit Mrs. \lorrtsitn's testiorn, that the tluiae. ait the
time of her return to the intersection. ai "nnnute aillte she
delivered her hushandl's lunch. was 15 inches high nd that
she cotld idenltifs the hlocking pickets controlting her at
the mouth of Access Road. who were apprarcltl no more
than 10 feet in ront of her at the time. I also credit her
insistan testimony that she Aas dri ing a red Chevrolet
Caprice rather than her white ;arn aind that she heard lass
breaking in the truck behind her. I di) not credit her testi-
mons. which contradicts (iritton's, Russelburg's. ;i l her
husband's that the incidentt inol ing the glass breakiig in
the truck occurred betore 73() p.m. lecr testimony. Itliugh
insistanit on the point, and in error, does not bear on otherl
testimony herein which clearls establishes that the incident
occurred at or about 8:4( p.m.
Hiavine credited testimon b Mrs. Morrisonl and Russel-
burg. and although the resolution of the issue is not directly
necessary to resoltluti n of the issues nIi this case. I relect
(jeneral (Counsel's assertion that the e idence lails to l oxs
that tile trutck's rearll- lltlos \las itot brokel n b'1 the pickets
notwithstandiing that the eviience i uholl circumlstanttl.
Circunmstantial eidence i sufficient. ()n the other haind,
conclude that Russelburg's errouneous idelntiticationl ot the
color (red erSxs hite) aid cInttigluraritOn (\an tt ,ersus car)
299
I)1('ISI()NS () NAIIO()NAI. ABOR RLATIONS BOARD
of thie vehicle driven hb Mrs. Morrison is itself a matter of'
almost dispositive signiticance' 4 hoth as to Russelhurg's
credihility (as an observer) and his veracity (willingness to
tfabricate). For if' he ,as unable to identif' and recall accu-
rately an eent of this critical naltlre, when the Morrison
vehicle was within 10 15 feet of' him ftr a length> period
while he irst saw it approach and then trailed it. how call
one reasonahbly credit his identification of idividuals at a
distance of at least 50() teet where the individuals' fbrimis
were cast in shadow and were admittedly visible onls for a
fleetin second. Furthermore having heen unable to iden-
tift' the Morrison vehicle in his headlights. Russelburg's
misidenlification of the vehicle is so patentl' wrong that, as
will he seen herealfter together with other circumstIances, it
raises and helps answer the questions whether Russelburg
was not only in error in his identification. hut also wahether
he was dishonest in his testilnony, and, through him.
whether Respondent. had aln "honest belief" concerning the
identity of the perpetrators. In an event. I do not credit
Russelburg's identification of the ehicle. aid I colnclude
that his lack of credibilit? in identiflin g distant objects.
such as Howsarid and Brown. in the availlble light in a brief
glance, was established hy virtue of' the aboe testlinon.
3. Testimons of' Richard Russelhburg
Russelbur testified. in substatnce, that all a distance of
about 54 eet. while his vehicle was traveling al abo(ut 1 to
15 miles an hour and while he was looking out the rear
window of' the guard truck, after the truck was hit bh a
series of missiles in the rear bed. he sa, Browi and ow a I,,rd
standing with arms up raised their hainds holding "\risl
Rocket" slingshots.
(a) Russelburg testitied that the night was "pitch hlack"
and he could identitf Brown and Howaird standing between
him and the fire barrel. e thereafter identilied another
light source hb which he identified the faces of the perpetra-
tors the firelight reflected on the snow. Ill tis real-J. as
above noted. hIe retreated from the position that the moon-
light was reflecting on the snow and olerin a source of
illumination. lie also testified that the truck was then pro-
ceeding at the rate of about 10 to 15 miles an hour for
about minute (commencineg with the l;-turn. ftllo ing
Mrs. Morrison's ehicle) befre being struck with the first
missiles. When the General ('ounsel caultiolned himi that
even at that relativels slow rale of speed. his truck ,would he
further than 54 feet from the pickets. he changed his testi-
monv so that the time in which lie was traveling s ts less
than a minule. Again, he testified that al'ter arri\vin back lit
the guIard shack and then drivinig with Plani M ianagler
Jarnmes Neel, to see the State police at about 9:30. he had no
conversation with Neelk before speaking to tle State police
(where and ,lien he. tor the first time. identiied Browin anid
Howard as the perpetrators). Russelburg then changed his
testimoin_ slating that he told Neel o their identit, on the
way to see the State police.
Such selfcontradictions necessairilN detract from Russel-
r Mrs lOrrlIsi nS contradiction 1 Russelhul-g as firs CIIrIted h, .rl1CI
tir R splidnl lt In diretl ex iinatiln. ( insel's \idenll dcLti-l1 ll llt i1 c\-
plirc the pinl lie not gi uLinntiiced hs Itic ( iirging Part o, n liirs-c.ili1i-
natlon Rcspondent hereaiter failed to inquire ille or tihcruie claril\ the
rnater. Its bricl i 1millh silent in the pollt
hurg's overall credibility. In an) event I conclude, on the
bhasis of this contradiction and Respondent's falilure to call
(or explain the failure to all) Plant Manager Neely to cor-
roborate RKusselburg's testimony that he identified the per-
petrators to Neely. that Russelburg made no such identifi-
cation.
(b) Both Kelly and Richard Morrison. on the uncontra-
dicted testimony of' Richard Morrison. made written re-
ports of the incident of February 22 to Respondent. Neither
report was produced or ofTered in evidence. Such reports
together with each guard's written log, would at least show
the time the securits vehicle was at a particular place. If the
guard vehicle was not at the place indicated b\ testimonn of'
the witnesses as shown in the reports. the alihies of at least
Hlenrs Howard might be supported. Since Russelburg testi-
fied that he saw Howard and Brown together when the,,
launched the steel ball bearings at the truck. Howard's ah-
sence from this event would substantially eliminate Brown's
presence as well. Further, such reports might support Rich-
ard Morrison's testimon and demonstrate that the securit
truck was parked on Access Road. opposite the pickets. for
a half-hour. permitting extensive direct observation of' the
arrivals. Respondent's failure to produce the reports and
the logs prevents comparing the written documents with the
testimon of all witnesses at the hearing and detracts from
the credibilit of Russelburg's testimon anid Respondent's
defense. That Gieneral Counsel ailed to subpena the logs
iand reports is not crucial: Respondent was under an affir-
ma'ive oligatioln to support its defense b the best avail-
lh!e e videlnce within its control. It'lrriolll iwl. l l,/itcd
J IlltrioItlit'. ' t'l pil( t dillrid Imoi 'co vclil ft oA cr I/ t rt i(a¢.
;i;iihd t I 10 (/)i/t, Ill ;oA ct ((;itrjud 1tR' (Io /)msi) v.
I.. RB. 459 F.2d 1329 (D.C. ('ir. 1972). There was no
suggesMiolll a the hearing or thelreaftler that Respondent did
not hale control o\er these reports. Respondent's failure to
produce ile reports especiall K ell's upports the infer-
ence. uvhich I drawk. that something ! in those reports or logs
would detract f'rom Respondent's defense or support (ien-
erll CouillsCl's cIse.
(c) ('rediling Irvirei.,, Rulssclburg's latter testinilon
that. in fact. lie did tell lalint Manager Neel,, of the identi-
fica;ltion of' the ,.'rong-,doers befiore telling the State police.
Respondent. I further con1ellde. ',, as obliged to produce
Neel to corroborate Russelburg's esthrinion. \While I ac-
cept co)lunsel fr Respondllent's ssertion that Respondent
\was unable to locate guald Kell. and. lqu,, l drla\ no ad-
serse inferelnce lrorn the failure to produce hil. tle samle
does not applI) in the case of' Plant Manager Janies Neel.
Respondenlt's filure to produce Neelk to corroborate Rus-
selburg's identificatio of' Howard aid Brown a fes miln-
uties after the incident not only underlines the contradiction
in Russelburg's tesinlonv. ilp)rrl but seemis to mie to sup-
port the firlt ersion of' Russelhti rg's subsequlentl! contra-
dicled testiimon that he had no conversation with Nel\
on the was I) the police anid thus did not identit\ them to
Neel\. Ilie Ifailure to tell Neel of such all identification
leads mie to the conclusion that Russelburg did not kno of
their identit,. In short I credit Russelburg's first versiol-
that he did nl tell Neel of the identification of' the two
perpetrators because een at that time. he did not knlow
thell. Ihis collclusion is corlsistent with and is supported
hb the filtt that lie told neiither Richard Morrisoni nor
300
NATIONAL STEEL CORPORATION
Frank Kelly of such an identification nor that he could
identify the perpetrators from the time of the incident at
8:40 p.m., notwithstanding his later opportunities to do so.
Had Neely been produced, I conclude that this testimony
would be unfavorable to Respondent, the party which
would be expected to benefit from his testimony. District
65, Distributive Workers of America (The Hartz Mountain
Corporation) v. N.L.R.B., 593 F.2d 1155 (D.C. Cir. 1978)
f.n. 21, enfg. 228 NLRB 492 (1977): Interstate Circuit v.
U.S., 306 U.S. 208, 225-226 (1939).
(d) Since it is clear to me that contrary to an)' other
testimony, the sole source of light by which Russelburg
identified Howard and Brown came from the fire barrel
(stipulated at 82 feet from the rear window of the truck)
and since the relative positions of the fire, the pickets, and
the perpetrators bears directly on the identification and
Russelburg's credibility, it is significant that Russelburg
first seemed to testify that the fire barrel was in front of the
two persons who launched the missiles, i.e., the perpetrators
were further from him and behind the fire barrel. Passing
this, Russelburg then made clear that the perpetrators were
between him and the fire barrel. Thus with the shadows on
the perpetrators' faces, Russelburg testified he not only saw
their faces but also saw they both had something in their
hands. He first testified on direct examination with regard
to what was in their hands that he ". . . didn't know what it
was." Although he also said on direct examination that the
missiles came from sling shots, he thereafter identified the
particular type of slingshots in the hands of the perpetra-
tors, slingshots known as "Wrist Rockets" slingshots.
I do not doubt that identification of familiar forms (in-
cluding the tall and well-built Howard) and faces can be
instantaneous (Howard and Brown were well known to
Russelburg)-at least under ideal conditions for observa-
tion. The ability to identify varies with the ability of the
observer and with the surrounding physical circumstances.
To say that Russelburg, who could not tell a van from a car
or red from white, could not only identify their faces but
also could see relatively small objects in their hands and
identify the particular type of objects, it seems to me, is
another matter. Here, there was admitted total darkness
(except for the fire at the backs of the perpetrators), and the
figures were at least 50 feet away and were observed only
for an instant out the rear window after missiles had hit and
before the rear window was smashed. I do not credit Rus-
selburg's identification.
(e) Finally, as noted above, I was impressed by the cir-
cumstance that Russelburg, having radioed to Richard
Morrison that the truck was being hit, failed to tell either
Kelly (his companion) or Morrison, either on the radio or
thereafter when he saw him at the guardhouse, whom he
had seen launch the missiles. While he was under no legal
obligation to tell either of them, it seems to me that he
would have said something to one of them in the excitement
of the action even if he did not mention the names of the
perpetrators. In short, I conclude Russelburg did not, in
some way, mention that he had recognized the perpetrators
when he was in the truck with Kelly or thereafter on the
radio with, or speaking directly to, Morrison or thereafter
when he was riding with Neely to the State police simply
because he did not know who they were.
In view of the (I) physical circumstances resulting in the
difficulty of identification, (2) Russelburg's testimonial dis-
crepancies, (3) Respondent's overall failure to support Rus-
selburg's testimony by the production of guards' reports, (4)
Respondent's failure to corroborate Russelburg's testimony
with the production of Neely. and in view of the adverse
inferences I have drawn from Respondent's failure to pro-
duce written documents and witnesses in support of its case,
I do not credit Russelburg's identification of Howard and
Brown as the perpetrators. Rather. I find that the evidence.
considered as a whole, shows that Kelly and Russelburg,
while parked on Access Road at and before 8:40 p.m.. had
the pickets, including Brown and Howard, under observa-
tion and that in making the U-turn in the middle of the
Access Road and Route 334. Kelly drove the truck within
20 to 30 feet of the pickets surrounding the fire barrel. It
was at those times, rather than thereafter from the rear
window of the security truck, I conclude, that Russelburg.
by reflected firelight or in the truck's headlights or other-
wise, saw and recognized Brown and Howard, standing
among the 20 pickets. Assuming. arguendo, that he later
saw figures launch missiles at the truck. I conclude that
Russelburg could not identify the perpetrators.
Why Russelburg chose Brown and Howard as the cul-
prits is not at all clear. General Counsel at first attempted to
prove that they were chosen because they had filed too
many grievances under the collective bargaining agreement
against Respondent. It appeared, however, that other unit
employees on the picket line had filed at least as many as
Henry Howard. In his brief, General Counsel alternatively
argues (G.C. Br., p. I I ) that Russelburg, in a state of fatigue
induced by working long hours (12 hours per day) because
of the strike, retaliated against Howard because he was a
discipline problem. General Counsel, however. at the same
time, admits that Brown, a high school aquaintance of Rus-
selburg, was no such discipline problem. General Counsel
then argues only that Russelburg. in his status as the newly
appointed supervisor and in his state of fatigue induced by
the strike and the strikers, regarded Brown, his one-time
friend, and Howard. who worked directly under Russel-
burg's supervision in the Cast House, as the "enemy" and.
needing a scapegoat for retaliation because of the assault,
named the persons whom he recognized on the picket line.
While I agree with the General Counsel's ultimate con-
clusion that Russelburg could not, and did not, identify
them after his vehicle was struck, I do so only on the
ground that he saw Howard and Brown on the picket line,
was confident of their identification, resented the subse-
quent attack on the vehicle and blamed Howard and
Brown when reporting the incident to the police. It is un-
necessary to speculate, as does General Counsel. whether
the vehicle's U-turn into the intersection near the pickets
was intentionally provocative."
'I thus agree that Russelburg's identification of Brown and Howard as
the culprits was an invention (GC. Br.. p. 10) To the extent however that
General Counsel asserts (Br. p 10) that the burden of proof was on Respon-
dent to prove the identity of the perpetrators, he is in error. The burden on
Respondent is solely that of establishing an "honest belief" The negative
burden, the burden to prove that Howard and Brown did not assault the
truck, is on General Counsel. I conclude as below noted, that this final
burden was not on the General Counsel, under the circumstances of this
case, due to Respondeni's failure to prose an honest belief on its own part.
301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the above conclusions, particularly the
peculiar credibility defects in Russelburg's testimony, I am
constrained to conclude further that his identification of
Brown and Howard was not merely honestly erroneous. I
thus further conclude that, through Russelburg, its sole
identifying source, Respondent failed to establish any be-
lief, much less an "honest belief," that Brown and Howard
were responsible for the obviously serious misconduct
which occurred."
Under such circumstances, it appears from Rubin Bros.
Footwear, Inc., supra at 611, that General Counsel is not
obliged to go forward with evidence to prove the innocence
of the alleged perpetrators. Thus, a prima facie violation
having been proved, the violation of Section 8(a)(1) is per-
fected where, as here, Respondent then fails to prove an
"honest belief." In that case, since unauthorized acts of vio-
lence on the part of individual strikers are not chargeable to
particular union members (Howard and Brown) in the ab-
sence of proof that identifies them as participating in such
violence, Cf. Coronet Casuals, Inc., supra; Sea-land Services
Inc; and Sea-Land of Peurto Rico, a Division of Sea-Land
Service, Inc., 146 NLRB 931, 949 (1964), enfg. 356 F.2d
955, 966 (Ist Cir. 1966), cert. denied 385 U.S. 900 (1966),
General Counsel has supported the ultimate burden of
proof which is his, N.L.R.B. v. Burnup & Sims Inc., supra,
Rubin Bros. Footwear, Inc., supra, without more.
B. General Counsel Affirmatively Proved that Neither
Howard nor Brown Engaged in the Asserted Misconduct
In any event, however, Brown and Howard testified that
they did not launch the steel ball bearings or engage in any
other misconduct. Respondent rightly notes that, according
to General Counsel's witnesses, no picket saw or heard any-
thing on that evening. Even picket William Burch saw no
act of violence, even though he apologized to Supervisor
Gritton for the truck windows being broken. Contrary to
any suggestion by General Counsel that the pickets were
not responsible for the damage and even discrediting Rus-
selburg's testimony insofar that it states that he saw some-
one from the picket line launching the missiles, I conclude,
arguendo, that the pickets were responsible for assaulting
the truck in which Russelburg was riding on February 22.
Such a conclusion, absent the showing of participation in a
common scheme, not present here, does not, however, make
Brown and Howard responsible. M.P. Industries, Inc., and
it Subsidiaries, Micro Alloy of Missouri, Inc. and Midwest
Precision Castings Company, 227 NLRB 1709, 1710 (1977);
Coronet Casuals, Inc., supra at 305.
Nevertheless, Howard testified he first arrived at the
picket line only 5 minutes before the Kentucky State troop-
ers arrived at the picket line at about 8:50 p.m.17 and, thus,
after the acts of violence occurred at 8:40 p.m. Were I to
credit Howard and his alibi witness, Jim Tipmore, Howard
would be naturally absolved from participation in the as-
'6 Were the misconduct minor or trivial, such misconduct would be insuf-
ficient to render the stnkers unfit for further employment. Cf Coronet Casu-
als, Inc., 207 NLRB 304 (1973).
17 Supervisor Gritton testified that the State police were at the Hot Metal
Gate at 8:45 p.m. He drove there, met the police, and drove to the Access
Road intersection-3 to 4 minutes having elapsed.
sault. This would also necessarily absolve Richard Brown
because Brown, according to Russelburg, was in Howard's
presence at the time of the assault. As above noted, how-
ever, I have not credited Howard or Tipmore and have
found that Howard, indeed, was present at the fire barrel at
about 8:40 p.m. on February 22. Brown admitted he was
there. In this connection, Howard, convicted by a jury of
armed assault with intent to rob, was sentenced to 10 years
in custody on February 5, 1971 (Resp.'s Exh. 3). Respon-
dent would discredit his testimony on that basis. See: Rule
609 (a), (b), Federal Rules of Evidence.
On the basis of the above discussion relating to Howard's
presence at the fire barrel at or about the time of the de-
struction of the rear window of the truck, I do not credit
either Howard or his corroborating witness, Tipmore, inso-
far as their testimony suggests that they were not present at
the fire barrel at that time. Rather, I credit Tipmore, pres-
ently employed by Respondent for over 7 years and super-
vised by Russelburg, only insofar as he testified herein that
he was present at the picket line at almost all times that
Howard was present and did not see him engage in miscon-
duct. Tipmore particularly testified that he did not always
have Howard in direct observation. Tipmore could easily
have testified that he observed Howard at all times, but he
did not do so. Thus, I credit Tipmore and through Tipmore,
Howard, insofar as Tipmore and Howard testified that
Howard did not engage in acts of violence at the picket line.
Similarly, I credit employee Potts' and employee Burch's
testimony that they were at the picket line with Brown and
that Brown did not engage in picket line misconduct.
As above noted, from all the testimony in the case and
the circumstances herein, I conclude that Howard and
Brown were at the intersection when, prior to 8:40 p.m.,
guard Kelly and Russelburg observed them at the fire bar-
rel and, at about 8:40 p.m., when they U-turned into the
intersection and saw Howard and Brown both in the light
of the fire barrel as well as from the headlights on the guard
truck. While I am skeptical of the solidarity of the General
Counsel's witnesses in failing to note any picket line vio-
lence, especially in view of Burch's apology to Supervisor
Gritton for the truck damage, I am less inclined to disbe-
lieve the denial by Brown and Howard and their corrobo-
rating witnesses than I was Russelburg's testimony. I must
measure them up individually as well as collectively. I con-
clude that neither Burch nor Potts nor Tipmore (either pre-
sent employees testifying against their employer or, in the
case of Burch, a former employee) was unbelievable, and
their testimony should be credited to the extent above.
Georgia Rug Mill, 131 NLRB 1304, 1305, footnote 1 (1961).
Thus, their testimony that they were in the presence of
Brown and Howard and did not see them engage in acts of
violence leads me to conclude affirmatively that the evi-
dence, while less than conclusive, preponderates in support
of an affirmative finding that neither Howard nor Brown
committed the alleged acts of violence.
As above noted, while it seems that some one or more of
the pickets did attack the security truck, the Russelburg
testimony and the General Counsel's witnesses' testimony
not only do not permit the finger of guilt to point at How-
ard and Brown, but also affirmatively demonstrate that
they were not responsible.
302
NATIONAL STEEL CORPORATION
By failing to reinstate Howard and Brown, each having
previously offered to (or there having been an offer on their
behalf) unconditionally to return to work, after the conclu-
sion of an economic strike. Respondent violated Section
8(a)(1) of the Act. .L R.B v. Burnutp & Sims. Inc.. .vupr.
CON(lLI SItNS Of LAW
I. Respondent, National Aluminum Division of Na-
tional Steel Corporation, is an employer within the meaning
of Section 2(6) and (7) of the Act.
2. Aluminum Workers International Union, Local
Union No. 132. AFL CIO. herein called the Union. is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Howard and Brown having unconditionally offered to
return to work were refused reinstatement by Respondent
on or about March 13. 1978, because they engaged in a
lawful economic strike: and by such action the Respondent
violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices burdening and affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
TilE RMFI)Y
To effectuate the policies of the Act, I find it necessary
that Respondent be ordered to cease and desist from the
unfair labor practices found and to take certain affirmative
action, including offering reinstatement to these employees
to their former jobs or, if those no longer exist, to substan-
tially equivalent positions, displacing if necessary any em-
ployees assigned to these positions. without prejudice to
their seniority or other rights and privileges, and to make
them whole for any' losses they may have suffered as a re-
sult of the unlawful interference with their rights and the
refusal to reinstate them on a timely basis. i.e., on March
13, 1978. All such losses are to be reimbursed in the manner
set forth in F. W. Woolworth Compantv, 90 NLRB 289
(1950), with interest thereon to be computed as prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977).'8 I shall
further order that Respondent post an appropriate notice.
Upon the foregoing findings of fact, conclusions of law.
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following:
ORDER 9
The Respondent, National Aluminum Division of Na-
tional Steel Corporation, Hawesville, Kentucky. its officers.
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to reinstate any employee, who
has unconditionally offered to return to his job, for having
engaged in a lawful strike or other concerted activity pro-
"See, generally, Isis Plumbing Heating Co. 138 NLRB 716 (1962).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations. be adopted by the Board and become ts
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
tected under the provisions of Section 7 of the National
Labor Relations Act. as amended.
(b) In any other manner interfering with. restraining. ol
coercing employees in the exercise of the rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action necessar\ to e-
fectuate the purposes and policies of the Act:
(a) Offer to Henry Howard and Richard Brown immiledi-
ate and full reinstatement to their former obs or. If their
jobs no longer exist. to substantially equisalent positions,
without prejudice to their seniorit, or other rights and
privileges, and make them whole lor an! loss of CaltEnlllg
commencing March 13. 1978. in the manier set forth in the
section of this Decision entitled 'I'he RemedL."
(hI Preserse and. upon request. make a ailabhle to he
Board or its agents. for examinaltion and cop, ing. all pat!-
roll records. social securits pa nmelnt records. timnecards.
personnel records and reports. and all other records neces-
sary to analyze the amount of backpa;l due under the terms
of this Order.
(c) Post at its Hawessille. Kentuclk. plant copies of the
attached notice marked "Appendix." 2 ( Copies of the notice
on forms provided b the Regional DI)rector of Region 9.
after being duly signed bh an authorized representati.e of
Respondent, shall be posted bh the Respondent immedi-
ately upon receipt thereof' and be maintained tfor 0 con-
secutive days thereafter, in conspicuous places. including all
places where notices to employees are customarils posted.
Reasonable steps shall be taken by the Respondent to en-
sure that the notices are not altered. detaced,. or covered b\
any other material.
(d) Notify the Regional Director of Region 9 of' the Na-
tional Labor Relations Board. in uwriting. ithin 20 days
from the date of this Order. what steps the Respondent has
taken to comply herewith.
12 In the event that this Order is enforced h a .ludgment i the I nited
States court of Appeals, the :lrds in the notice reading "Posted hb order ot
the National Labor Relatiins Board" shall read Posted Pursulant to a Judg-
ment of the United States Court otf Appeals Entorcing an order ol the Na-
tional .ahbor Relations Board "
APPENDIX
Nori( i 10 EI {l oYI l : s
POSIFI) BY ORI)IR ()i 111I
NA11()NAI. LABOR RI Alli()NS BOARD
,An Agency of the United States Government
W'l I.'11. NOt fail or refuse to reinstate an em-
ployee because he engages in the protected concerted
activity of engaging in a strike upon his unconditional
offer to return to work.
WE IIi NOT in any other manner interfere with.
restrain. or coerce our employees in the exercise of the
right to self organization: to bargain collectivel 3
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.
WF. wtIl.. offer to Henrs How ard and Richard
Brown immediate and full reinstatement to their for-
303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mer jobs or, if their jobs no longer exist, to substan-
tially equivalent positions without prejudice to their
seniority or other rights and privileges, discharging if
necessary any replacements and WE WILL make them
whole for any earnings lost as a result of our unlawful
conduct against them, plus interest, according to the
law.
NATIONAL ALUMINUM. DIVISION OF NATIONAL
STEEL CORPORATION
304