North Cambria Fuel Co., Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1980

247 N.L.R.B. 1408 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Cambria Fuel Company, Inc. and Hans P.
Wuchina, and Paul G. Baughman and Louis T.
Zilli. Cases 6-CA-11901, 6-CA-12013, and 6-CA-
12127
February 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On July 11, 1979, Administrative Law Judge
Almira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.2
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(3) and (1) of the Act by
terminating economic strikers Dale Basinger, Paul
Baughman, Wayne Campbell, Norman Gorman, Ron-
ald Smith, Roger Snyder, Hans Wuchina, and Louis
Zilli. In doing so, the Administrative Law Judge
concluded that Respondent had not met its burden of
showing that the terminated strikers had engaged in
serious strike misconduct. Based on the Administra-
tive Law Judge's finding that striker Wuchina was not
present when the violence occurred, we agree that
Respondent's subsequent discharge of Wuchina was
unlawful. However, we find merit in Respondent's
exceptions to the Administrative Law Judge's findings
concerning the seven other strikers terminated by
Respondent.
Facts
The Union called a strike on May 16, 1978,' when
Respondent refused to accept the new United Mine
Workers contract. The strike was marked by violence.
' Respondent has excepted to certain credibility findings made by the
Administrative 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 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing her findings.
' In par. I(b) of her recommended Order, the Administrative Law Judge
uses the broad cease-and-desist language, "in any other manner." However.
we have considered this case in light of the standards set forth in licknorr
Fo~od. Inc.. 242 NLRB 1357 (1979), and have concluded that a broad
247 NLRB No. 176
On June 6 the Pennsylvania Courts of Common Pleas
of Indiana and Westmoreland Counties issued an
injunction restraining the Union and its members from
picketing the entrance to Respondent's facility on the
north side of 1-22. Thereafter, the Union held a
meeting on July 9, which was attended by 35 to 40
members, including at least 7 of the strikers involved
here. The meeting was boisterous, the members were
angry, and orders were given to "get as many pickets
there as we can," and to put on a "show of force."
The following morning, all of the alleged discrimi-
natees went to Respondent's 1-22 loading facility
along with about 25 other union members. When six
trucks loaded with coal approached the entrance, Zilli,
Smith Wuchina, Basinger, and many others, who had
assembled on the south side of 1-22, crossed the
highway because they wanted to stop the trucks from
entering the premises.' Most, if not all, of the strikers
picked up rocks, shouted vulgarities, and made ob-
scene gestures at the drivers. At this point, the sheriff
arrived and informed the men that they were acting in
violation of the court injunction. All the union
members immediately left the entrance and crossed
back to the south side of 1-22. Wuchina got in his car,
drove away from the area, and did not return. Shortly
thereafter, the sheriff drove out of the facility followed
by four of the trucks which had dumped their cargo.
When the other two trucks approached the entrance a
few minutes later, the remaining 7 alleged discrimina-
tees were among about 15 strikers who returned to the
south side of 1-22. Some of these strikers threw rocks
at the first truck, breaking its windshield.
All eight alleged discriminatees were among those
strikers found in contempt of the Indiana County
Court injunction. On October 7, seven of the alleged
discriminatees entered guilty pleas to disorderly con-
duct charges. The charges against Wuchina, who pled
not guilty, were later dismissed for failure to prose-
cute. The county court found four other strikers, not
involved herein, guilty of throwing rocks at the truck
and ordered them to pay damages. They were subse-
quently discharged.
On November 16, Respondent dismissed seven of
the alleged discriminatees for engaging in "illegal
criminal conduct" at its 1-22 loading facility. Wuchi-
na returned to work in September, but was discharged
remedial order is inappropriate inasmuch as it has not been shown that
Respondent has a proclivity to violate the Act or has engaged in such
egregious or widespread misconduct as to demonstrate a general disregard for
the employees' fundamental statutory rights. Accordingly, we shall modify
the recommended Order to use the narrow injunctive language "in any like or
related marner."
' All dates herein are in 1978, unless otherwise indicated.
' Gorman, Baughman. Snyder. and Campbell were among a small group of
employees who had taken up positions on the north side of 1-22. at the
entrance to the facility.
1408
NORTH CAMBRIA FUEL COMPANY
by Respondent on December 8, for his alleged serious
strike misconduct.
Contrary to the Administrative Law Judge, we find
that Respondent reasonably held the honest belief that
these individuals engaged in serious strike misconduct
and that, with respect to all these individuals other
than Wuchina, the General Counsel failed to show
they did not engage in such misconduct. Thus, the
record shows that they were on the scene pursuant to
the Union's exhortation to put on a "show of force"
Furthermore, they picked up and threatened to throw
rocks at six trucks entering Respondent's premises
until a local sheriff informed them that they were
acting in violation of a court injunction and ordered
them to disperse. Only a few minutes later, after the
sheriff's departure, these same individuals were identi-
fied as among a group of 15 or so strikers who
returned to Respondent's premises, where some of the
group threw a barrage of rocks at a truck and broke its
windshield. Subsequently, these same individuals were
found in contempt of the court injunction and later
entered guilty pleas to the charge of disorderly
conduct. The General Counsel tried the case on the
theory that the seven strikers were not present at the
scene of the misconduct after they were ordered to
disperse, but the Administrative Law Judge did not
credit this testimony, except for Wuchina. On this
evidence we find that the General Counsel has failed
to meet his burden of establishing that the alleged
discriminatees, other than Wuchina, did not engage in
serious strike misconduct.' Accordingly, we shall
dismiss these allegations of the complaint concerning
these alleged discriminatees.
CONCLUSIONS OF LAW
I. North Cambria Fuel Company, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Mine Workers of America, Local 1180, is
a labor organization within the meaning of Section
2(5) of the Act.
3. By discriminatorily terminating and refusing to
reinstate Hans Wuchina because of his union activi-
ties, Respondent has engaged in, and is engaging in,
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(3) and (I) and 2(6) and (7) of
the Act.
' Ohio Power Company, 215 NLRB 862 (1974).
See generally, Isis Plumbing d Heating Co.. 138 NLRB 716 (1962).
· In the event that this Order is enforced by a Judgement of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
North Cambria Fuel Company, Inc., Spangler, Penn-
sylvania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Terminating strikers, or otherwise discriminat-
ing against employees, to discourage membership in
United Mine Workers of America, Local 1180, or any
other union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Hans Wuchina immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole for
any loss of earnings he may have suffered due to the
discrimination practiced against him. Backpay shall be
computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon as prescribed in Florida Steel Corporation, 231
NLRB 657 (1977).?
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, and personnel records and reports, and all
other records necessary to analyze the amounts of
backpay due under the terms of this Order.
(c) Post at its Blairville, Pennsylvania, facility on I-
22 and at its principal office in Spangler, Pennsylva-
nia, copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly
signed by an authorized representative of Respondent,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous place,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
National Labor Relations Board" shall read "Posted Pursuant to a Judgement
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORI)IDRIDI) that the remaining allega-
tions of the complaint be, and they hereby are,
dismissed in their entirety.
MEiMR ER JENKINS, dissenting in part:
Contrary to my colleagues in the majority, I would
adopt the Decision of the Administrative Law Judge
in its entirety. The Administrative Law Judge correct-
ly held that the issue is whether any misconduct
engaged in by the eight employees found by her to
have been discharged in violation of Section 8(a)(3)
was sufficiently serious to deprive them of the protec-
tion which the Act effords to economic strikers. I
agree with the Administrative Law Judge that Re-
spondent discharged seven of those strikers" because of
a good-faith belief that they had engaged in "illegal
criminal conduct" by being in the company of other
strikers, some of whom threw rocks at a moving truck
thereby damaging it and endangering the driver. I do
not find it necessary to pass on Respondent's charac-
terization of the offending conduct, though I do note,
as does the majority, that the seven strikers did plead
guilty in state court to charges of disorderly conduct.
This was presumably for their violation of a court
injunction against massed picketing and in picking up
and threatening to throw rocks. I especially note, and
call to the attention of my colleagues, that since four
other strikers were found guilty of inflicting the
damage on the truck and were ordered to pay
restitution the actual rock throwers must thereby have
been identified to Respondent's satisfaction. The
discharges of these four strikers, appropriately
enough, were never the subject of any 8(a)(3) com-
plaint.
The majority's reliance on Ohio Power Company,
supra, is misplaced. There is no dispute that Respon-
dent's decision to discharge the seven strikers whom I
would find to be discriminatees was explicitly based on
their presence with the rock throwers. There is thus no
need for the General Counsel to carry the burden of
showing, in the face of Respondent's good-faith belief,
that this degree of misconduct did not occur. I stress
that there is no evidence in the record that any of the
seven strikers consented to any rock throwing by
others.
While I do not condone the overall behavior of the
seven strikers, I do not view it as sufficiently serious to
justify their termination, given the lack of any showing
of complicity in acts with serious potential for
personal injury or property damage." Admittedly, I
draw a fine line here separating protected from
unprotected behavior. I would find, however, under
the circumstances of this case, that while that line may
have been approached, it was not crossed. According-
ly, I would affirm the Administrative Law Judge in
her finding that all eight strikers named in the
complaint were discharged in violation of Section
8(a)(3).
I agree with the majorilty that Res'xpndent unlawfuilly di~harged Hans
Wuchina bas.ed on the Administrative Law Judge's finding that he had left the
area before any rks were thrown.
' MP Ilndurite.. I.. e a. 227 NLRB 1709 (1977).
APPENDIX
NOTICEi To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIl.I NOT terminate strikers or otherwise
discriminate against employees to discourage
membership in United Mine Workers of Ameri-
ca, Local 1880, or any other union.
WE Will.. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act, as
amended.
WE Wlt.l. offer Hans Wuchina immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
rights or privileges previously enjoyed, and WE
wil.l. make him whole for any loss of earnings he
may have suffered due to our discrimination
against him, with interest.
NORTH CAMBRIA FUEI. COMPANY, INC.
DECISION
STATE:MINT OF THI CASE
ALMIRA ARROT STEVENSON, Administrative Law Judge:
This case was heard in Indiana, Pennsylvania, June 5 and 6,
1979. A copy of the charge filed by Hans P. Wuchina in
Case 6-CA-1 1901 was served on Respondent December 20,
1978. The original charge filed by Paul G. Baughman in
Case 6-CA-12013 was served January 30, 1979; the amend-
ed charge in that case was served February 28, 1979; and the
second amended charge was served April 30, 1979. The
charge in Case 6-CA-12127, filed by Louis T. Zilli, was
served on Respondent March 5, 1979. An amended consoli-
dated complaint and notice of hearing, and an order further
consolidating cases were issued April 30, 1979. The amend-
ed consolidated complaint was duly answered by Respon-
dent.
The issue is whether or not Respondent violated Section
8(a)(3) and (1) of the National Labor Relations Act, as
amended, by terminating eight economic strikers. For the
1410
NORTH CAMBRIA FUEL COMPANY
reasons fully set forth below. I conclude that the termination
of the strikers was unlawful, as alleged in the complaint.'
Upon the entire record, including the demeanor of the
witnesses. the stipulation of fact entered into by the parties,
the oral arguments, and the brief submitted by Respondent,
I make the following:
FINI)IN(;S FACT ANI) CONCI USIONS 01 LAW`
I. UN:FAIR ABOR PRAC'rICICS'
A. Background
Respondent is engaged in providing labor for strip mines
at various locations in Pennsylvania. It admits and I find
that the following individuals are supervisors within the
meaning of Section 2(11) of the Act: President Jessie Jolly,
Vice President Girard Bloom, Superintendent Fritz Stritt-
matter, and Engineer Dale Hinigan.
On December 6, 1977. the National Bituminous Coal
Wage Agreement. to which Respondent and United Mine
Workers of America, were parties, expired, and the Union
struck. Respondent began operations on March 26, 1978,
when the Association (of which Respondent was not a
member) and UMWA reached a new agreement. Although
Respondent refused to accept the new agreement, it contin-
ued negotiations and operations until May 16, 1978, when
the Union struck the Respondent. The strike, in which Paul
Baughman, Louis Zilli, Wayne Campbell, Ronald Smith,
Roger Snyder. Norman Gorman, Dale Basinger [Bassinger],
and Hans Wuchina participated, and which is still in
progress, was marked by violence. Thus, $35,000-$50,000
worth of damage was inflicted on machines located at
Respondent's New Alexandria, Pennsylvania, site; $11,000
worth of damage was done to equipment, and a building and
the paperwork it contained were destroyed at Respondent's
Blairsville location on 1-22. Although reported to the State
police, no arrests were made. Other incidents included an
assault on a supervisor at 1-22 picket line, and truck and
bulldozer radiators and windshields' being shot out.
On June 6, 1978, an injunction was issued against the
Union by the Courts of Common Pleas of Indiana and
Westmoreland Counties restraining the Union and its
members from, among other things, picketing Respondent's
1-22 loading facility and certain other facilities with more
than four pickets at one time.
On July 9, 1978, the day before the events in issue in these
cases, striker Eugene Hudson, Jr., struck Vice President
Girard Bloom, cutting his forehead, and was discharged;
and Respondent's loading facility in Brush Valley Township
'There is no merit to Respondent's contention that no violations of the Act
can he found with respect to those strikers who did not themselves file unfair
labor practice chargoe with the Board. See N.LR.B. v. Anchor Rome Mlls.
Inc.. 228 F.2d 775 (5th Cir. 1956); Cathey Lumber. 86 NLRB 157 (1949),
nfd. 185 F.2d 1021 (5th Cir 1951); Montgomery Wardd Company. 9 NLRB
538. 54 ( 1938.
No issue is raised as to jurisdiction. The complaint alleges, the answer
admits, and I find that Respondent meets the Board's standard for the
assertion of jurisdiction il this proceeding. Respondent also admits, and I
find. that United Mine Workers of America, Local IR80. herein called the
Union. is a labor organization within the meaning of Sec. 2(5) of the Act.
Except where credibility is specifically discussed. the evidence is
substanlially undisputed.
was burned to the ground resulting in about $18,000
damage. The same day the Union held its weekly Sunday
meeting which was attended by 35 to 40 members. including
7 of the strikers involved herein.' The meeting was boister-
ous, the members were angry, and orders were given to "get
as many pickets [out] there as we can," to put on a "show of
force," and " keep the trucks from coming in and for North
Cambria Fuel to sign a contract."'
B. Events of July 10, 1978
All of the alleged discriminatees went to Respondent's I-
22 loading facility on the morning of July 10. Gorman and
Baughman, who had been assigned picket duty, took up
positions on the north side of 1-22, at the entrance to the
facility. Snyder and Campbell also proceeded to the en-
trance. Zilli, Smith, Wuchina, and Basinger assembled with
20-25 other men on the south side of 1-22 across from the
entrance. Wuchina testified that he heard some talk about
throwing rocks and that he was asked if he were going to
throw any but he believed he replied he was not going to.
When six trucks loaded with coal, led by President Jolly,
were observed approaching the entrance, Zilli, Smith,
Wuchina, Basinger, and many others crossed to the north
side because, Basinger, Smith and Zilli said, although they
knew it was a violation of the injunction, they were upset
that the facility was working, and they wanted to stop the
trucks from coming in. Basinger admitted he picked up a
rock and testified that "everybody else picked up a rock."'
Some of the pickets shouted vulgarities and provocations
and made obscene gestures at the drivers; Baughman, Smith,
Gorman, Zilli, Campbell, Snyder, and Basinger called them
"s.o.b.'s" and "scabs."' However, before any violence
occurred, the sheriff arrived and all pickets put down their
rocks.' The Sheriff informed the men they were in violation
of the injunction and ordered all but four pickets to disperse.
All eight discriminatees were among the men who left the
entrance immediately and crossed back to the south side of
the road. The six trucks entered the premises and dumped
their loads. Shortly thereafter the sheriff drove out of the
facility followed by four of the empty trucks, without
incident. A few minutes later, the two trucks remaining on
the premises, the first of which was driven by Daniel Boring,
followed by a pickup driven by Vice President Bloom,
approached the entrance on their way out, when Boring met
with a barrage of rocks, many of which struck his truck and
some of which broke his windshield.
Boring identified Baughman, Smith, Gorman, Zilli,
Campbell, Snyder, and Basinger as being in the group of
rock throwers, although he could not say that any of them
' Based on the credited testimony of Wuchina, Baughman. Smith. and
Snyder, over denials by Zilli and Basinger that they attended and Campbell's
testimony that he could not remember whether or not he attended. Gorman
also could not remember. but there is no evidence he did attend.
' Based on the testimony of Wuchina. corroborated by Snyder. Because of
the admissive nature of this testimony. I credit it over the denials orf
Baughman, Smith. and Campbell that any call for mass picketing or show orf
force was issued.
' I credit this admissive testimony over that of other alleged discriminatees
that they saw no picket with rocks.
Based on the testimony of President Jolly and Vice President Blo'm.
which I credit as plausible in the light of all the other credited evidence.
' Based on the credited testimony of Basinger.
1411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threw rocks. Boring identified Wuchina as a rock thrower.
Bloom testified that he was not in the position to see the
rock throwing, but that he immediately pulled around
Boring's truck where he saw the above-named eight men
running across the road from north to south. I credit the
testimony of Boring and Bloom as to all the alleged
discriminatees except Wuchina. Boring was a disinterested
witness, employed by a contract trucker otherwise unrelated
to Respondent, with nothing to gain by lying about these
matters. Although he was not acquainted with the seven
discriminatees at the time of the incident, he identified them
shortly thereafter from photographs taken by Respondent of
pickets before the sheriff arrived. Accordingly, although he
could no longer identify or describe these men at the time of
the hearing, I find that he observed them in the group of
rock throwers and recognized their pictures shortly thereaf-
ter. Bloom knew them by signt, and he impressed me as an
honest person capable of accurate observation and recall. I
believe he told the truth in this instance. By contrast, the
testimony of the witnesses for the General Counsel was so
riddled with inconsistencies and they purported to be so
unbelievably unaware or uninterested in this violent incident
that I can only conclude that they were more concerned with
avoiding what they feared might be the consequences of their
conduct then they were with telling the truth. In making this
credibility resolution, I have also taken into consideration
the fact that these employees pleaded guilty to a reduced
charge of disorderly conduct after Respondent filed criminal
charges against them for allegedly engaging in a riot,
criminal trespass, and propulsion of missiles into an occu-
pied vehicle, based on the events of July 10. Although they
attributed their pleas to matters having nothing to do with
their guilt or innocence of the charges, Roger Snyder
acknowledged he was guilty of misconduct, and I cannot
believe any of them would have so pleaded if they had been
confident that their conduct was above reproach.
With regard to Wuchina, Vice President Bloom acknowl-
edged that he could have testified at the unemployment
compensation hearing that he could,not remember whether
he saw Wuchina leave the area before or after the rock-
throwing incident. Moreover, Respondent granted Wuchi-
na's request to return to work on September 13, 1978, upon
his signing a sworn statement that he had engaged in no
violence. This seems to indicate that Respondent, at that
time, had more confidence in Wuchina's denial than in
Boring's identification of him as being involved in the
incident. Wuchina's denial of being involved in the violence
was more persuasive than those of the other General
Counsel witnesses, he was more candid than they as to other
matters, and he alone of this group pleaded not guilty to
criminal charges subsequently filed against them by Respon-
dent. In view of these considerations and the weaknesses in
the identification of Wuchina compared with that of the
other alleged discriminatees, I credit Wuchina, even though
he was denied unemployment compensation on the ground
that he threw a stone at Boring's truck, and find that he left
the area before any rocks were thrown, as he testified.
The eight alleged discriminatees and others were found in
contempt of the Indiana county court injunction and they
' See A.rociated Grocers of New England. Inc.. 227 NLRB 1200, 1207
(1977), enfd.., reversed, and remanded in part 562 F.2d 1333 (st Cir.)
were, banned from all of Respondent's facilities except under
specific circumstances; in addition, four other pickets, not
involved herein, were ordered to pay for the damage to the
truck and were subsequently discharged.
As indicated, Respondent filed charges of riot, criminal
trespass, and propulsion of missiles into an occupied vehicle
against the discriminatees and others. On October 17, 1978,
all except Wuchina entered pleas of guilty to the reduced
charge of disorderly conduct and were fined $100 plus $26
costs, which fines, as far as this record shows, were paid by
the Union. Wuchina pleaded not guilty to the original
charges and was bound over for trial; the charges against
him were subsequently dismissed for failure of the Common-
wealth to proceed against him within a reasonable time.
By letters dated November 16, 1978, Respondent dis-
missed Zilli, Campbell, Smith, Snyder, Gorman, Basinger,
and Baughman for the stated reason of "illegal criminal
activity relative to an incident which took place on July 10,
1978 at the 1-22 Loading Facility." A letter dated December
8, 1978, dismissed Wuchina for the stated reason of his
"involvement in the illegal activity which took place at the
corporation's loading facility on July 10, 1978."
President Jolly and Vice President Bloom testified that
Zilli, Campbell, Smith, Snyder, Gorman, Basinger, and
Baughman were terminated because of the observations of
Bloom, Jolly, and Boring of their conduct on July 10 and
because of their pleas of guilty to disorderly conduct; and
that Wuchina was terminated because of the reports of
Bloom, Jolly, and Boring and because he was bound over for
trial on the original criminal charges.
C. Conclusions
Respondent contends that its termination of these strikers
was not violative of Section 8(a)(3) because they were not
terminated for striking but because Respondent honestly
believed, based on the eyewitness accounts of Jolly, Bloom,
and Boring and the guilty pleas to charges of disorderly
conduct, which clearly establishes, that these strikers en-
gaged in serious acts of violence. Respondent also believed
that Wuchina actually threw a rock at Boring's truck and
that the others were in the group of strikers who stoned the
truck, thereby participating in, aiding, and abetting the
violence.
It is clear, and I find, that these employees were not
terminated for striking. I accept Respondent's contention
that it acted on a good-faith belief that all of these strikers,
including Wuchina, with respect to whom the evidence on
this matter is somewhat weaker, engaged in strike miscon-
duct. A good-faith belief is not enough, however, unless it is
affirmatively shown that the terminated strikers in fact
engaged in misconduct, and not all misconduct in the course
of a strike justifies termination.' It is established Board law
that only "a striker's actual serious misconduct during a
strike" warrants his termination'" and "the mere fact that an
employee was in the company of another employee who
commits an act of misconduct will not taint the first
' Advance Industries Division-Overhead Door Corporation. 220 NLRB 431,
438 (1975).
1412
NORTH CAMBRIA FUEL COMPANY
employee, without a showing of complicity on the part of
that employee in the wrongful activity."
Having considered all the evidence, I cannot find that any
of these employees actually engaged in misconduct suffi-
ciently serious to meet the Board's standard for justifying
termination of a striker.
Thus, the evidence shows that these strikers appeared at
Respondent's 1-22 loading facility on July 10 at the urging
of the Union. Their intent was to put on a show of force to
prevent trucks from entering the facility and thus pressure
Respondent into agreeing to a collective-bargaining contract,
in deliberate violation of the court injunction limiting the
number of pickets to four. Most of them assembled across
the road from the entrance to the facility with 20-25 other
strikers where there was talk about throwing rocks at any
trucks which might try to enter. When trucks were observed
approaching the entrance to the facility, they, with other
strikers, crossed the road to the entrance because they were
upset that the facility was working and they wished to stop
the trucks from coming in.
This is the only misconduct in which Hans Wuchina
engaged. Although his presence, like the presence of the
other strikers, was motivated by making a show of force to
prevent the facility from operating, Respondent does not
contend that engaging in mass picketing in violation of the
court injunction was a factor in its decision to terminate
these strikers. I have found that Wuchina left the area when
ordered to do so by the sheriff and threw no stones at the
trucks. I therefore find that Wuchina engaged in no serious
misconduct and conclude that his termination on December
8, 1978, was a violation of Section 8(a)(3) and (1) of the Act.
The others picked up rocks as they crossed the road and
shouted vulgarities and provocations at the drivers of the
trucks. When the sheriff arrived, they laid down their rocks
and went back across the road. The six trucks entered and
dumped their loads and four left under escort by the sheriff,
without incident. Then, when the two remaining trucks
started to leave the facility, the seven other strikers there
involved joined a group of strikers, some of whom threw
rocks at the lead truck, damaging its windshield.
As I understand Board law, shouting vulgarities and
provocations and picking up rocks without throwing them is
not conduct which the Board considers sufficiently serious
to warrant discharge.'' Nor, to my knowledge, has the Board
ever found that the termination of a striker is justified on the
basis of being a member of a group, other members of which
are engaged in violence, in the absence of evidence that the
terminated employee himself engaged in the violence.
Although the decision of these strikers to plead guilty to the
charge of disorderly conduct may well have reinforced
Respondent's good-faith belief that they engaged in strike
misconduct, it is not conclusive evidence that they engaged
" MP Induries. Inc. and its Suhbdiare. Micro A/lhy of Msowuri. Inc and
Midwet Precision Castings Company. 227 NLRB 1709. 1710 (1977).
' See Moor,n Buine.ss Form. Inc .. 224 NLRB 393. 405 (1976). reversed in
part 574 F.2d 835 (5th Cir. 1978): Trunbull Asphalr Comnpany ofj Delavre.
139 NLRB 1221 (1962). reversed in part 327 F.2d 841 (8th Cir. 194).
Black's Law Dictionar. Fourth Edition. p. 55h.
"Cf. MarAle Manufacturing Comnpanv of San Antoni. 239 NLRB 1142
(1979).
in misconduct of a sufficiently serious nature to justify their
termination. The charge of disorderly conduct has been
described as,
A term of loose and idenfinite meaning (except as
occasionally described by statutes), but signifying gen-
erally any behavior that is contrary to law, and more
particularly such as tends to disturb the public peace or
decorum, scandalize the community, or shock the
public sense of morality."
This definition does not, of course, conform with Board
standards as to strike conduct justifying termination. Re-
spondent has not suggested that disorderly conduct is
otherwise defined by statutes of Pennsylvania, and this
record does not show that the strikers' plea encompassed
anything more definite than the definition set forth or
anything more serious than the conduct found herein, if that.
It is not the plea, or the conviction, that counts here, but
"what the conduct actually was."" In these circumstances, it
does not signify that Respondent followed a policy of
discharging all strikers who engaged in violence nor that its
counsel informed these strikers, when they entered their
guilty pleas, that discharge might result.
I conclude that the termination of strikers Paul Baugh-
man, Louis Zilli, Wayne Campbell, Ronald Smith, Roger
Snyder, Norman Gorman, and Dale Basinger on November
16, 1978, for misconduct on the picket line was not justified
under Board law and was violative of Section 8(a)(3) and (1)
of the Act, as alleged in the complaint.'"
II. THE REMED)Y
Having found that Respondent committed certain unfair
labor practices, I recommend that it be ordered to cease and
desist therefrom and, because of the nature of the violations
found, to cease and desist from in any other manner
interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them under Section 7 of the
Act. I shall also recommend that Respondent take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent violated Section 8(a)(3)
and (I) of the Act by terminating Paul Baughman. Louis
Zilli, Wayne Campbell, Ronald Smith, Roger Snyder,
Norman Gorman, and Dale Basinger on November 16,
1978, and Hans Wuchina on December 8, 1978. I recom-
mend that Respondent offer them immediate and full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges, and to make them
whole for any loss of earnings suffered by reason of
"Respondent has called to my attention several cases. including some of
those cited above. i which courts of appeals have found. contrary to the
Board. that conduct similar to that engaged in by the strikers here inlolved
justified termination of strikers. I am. however, required to) follow the Board
Iowa BeefPackers. Ic.. 144 NLRB 615 (1t90). The Board has not. to my
knowledge. applied the ruling olf the Supreme Court il . L.R.B. ; Fatrel
Metallurgical Co(rptrario,. 3()6 US. 240 (1939). ustitfyig the discharge of
aiders aind ahetitrs of sitdtwn strikers to picket-linc miscoliduct
1413
DECISIONS OF NATIONAL LABIOR RELATIONS BI)ARD
Respondent's unlawful conduct against them, in accord with
the Board's Decision and Order in Abiliries and Goodwill.
Inc.. 241 NLRB 27 (1979) Backpay shall be computed as
provided in FI/ W. Woolworth Company. 90 NLRB 289
(1950). Interest shall be paid on all backpay due. Florida
Steel Corporation. 231 NLRB 651 (1977); Isis Plumbing &
tleating Co.. 138 NLR3 716(1962).
[Recommended Order onmitted from publication.]
1414