Northern Indiana Public Service Co.

National Labor Relations Board - Board Decisions

Apr 23, 1969

175 N.L.R.B. 499 (N.L.R.B. 1969)

NORTHERN INDIANA PUBLIC SERVICE CO.
Northern Indiana Public Service Co . and Paul L.
Riffle. Case 13-CA-8492
April 23, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 22, 1968, Trial Examiner James T.
Barker issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain alleged unfair labor practices and
recommending that the complaint herein be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision, together
with a supporting brief, and the Respondent filed an
answering brief, and a request for oral argument.'
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National Labor
Relations Board has delegated its powers in
connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings," conclusions, and recommendations of the
Trial Examiner, with the following modifications
We agree with the Trial Examiner that the
complaint in this proceeding should be dismissed.
However, we do not feel that the principle of
Burnup & Sims, Inc., 379 U.S. 21, as relied upon in
the arguments of the General Counsel, and as dealt
with by the Trial Examiner, is controlling in
deciding this case. Rather, after reviewing the entire
record, and accepting the credibility findings of the
Trial Examiner, we reach a different conclusion as
to Riffle's innocence of any misconduct. We find
that, although the evidence shows that Riffle was
asleep in the back seat of Huettner's car at the time
of the trio's arrest and he may well have been
unaware of the activities of the other two occupants
of the car, he had placed himself in a position where
he could not be considered completely innocent of
the misconduct for which he was discharged. The
Respondent, therefore, acted in accordance with its
legal right in discharging Riffle.
ORDER
Pursuant to Section 10(c) of the National Labor
As the record, exceptions , and bnefs , in our opinion , adequately present
the issues and the position of the parties, the Respondent 's request for oral
argument is hereby denied
'As requested by the General Counsel, the Board notes the typographical
error in the Trial Examiner' s Decision In par 9 of Sec III, B, of the
Trial Examiner' s Decision, the time should be 3 45 a in , and not 4 45 a m
499
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES T BARKER, Trial Examiner This matter was
heard at Chicago, Illinois, on October 14, 1968, pursuant
to a charge filed on June 18, 1968, by Paul L. Riffle, an
individual.' The amended complaint alleges violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, hereinafter called the Act The parties
timely filed briefs with me.
Upon consideration of the briefs and upon the record in
this case and my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, an Indiana corporation maintaining its principal
office and place of business at Hammond, Indiana, where
it has been at all pertinent times engaged in the
distribution and sale of gas and electricity.
During the calendar year 1967, Respondent's gross
volume of business exceeded $250,000. Moreover, in the
course and conduct of its business operations during 1967
Respondent purchased gas valued in excess of $100,000,
which was transported directly to its place of business in
the State of Indiana from points outside the State of
Indiana.
Upon these admitted facts, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
International Union of District 50, United Mine
Workers of America, Local Union 12775, herein called
the Union, is admitted to be a labor organization within
the meaning of Section 2(5) of the Act, and I so find
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issue in this proceeding is whether
Respondent discharged Paul Riffle because he engaged in
concerted activities by participating in a union-called
strike and by picketing in support thereof, or whether he
was discharged for cause, separable from his concerted or
union activities '
'Unless otherwise specifically noted, all dates herein refer to the calendar
year 1968
'The complaint alleged a violation of Sec 8(a)(3) of the Act , but in his
brief the General Counsel concedes the evidence does not warrant such a
finding
175 NLRBNo 82
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Pertinent Facts
The existing collective-bargaining agreement between
Respondent and the Union expired on May 31. On June
1, Respondent's employees represented by the Union,
struck and remained on strike through June 16. Employee
Paul Riffle, who entered Respondent's employ on
February 7 as a pipe mechanic helper, was a member of
the Union and joined the strike, as did approximately
2,700 other employees of Respondent. Like Riffle, most of
the employees performed picketing duty during the 16-day
strike.
On Friday night, May 31, Paul Riffle was informed by
fellow employee Larry Huettner of the decision of the
employees to strike. Riffle was also told that he had been
assigned picketing duty from midnight to 4 a.m. Sunday,
June 2. Arrangements were made for Huettner and Riffle
to meet at approximately Il p.m. on June 1 and to
proceed together to the plant picket site.
Pursuant to the arrangements, Riffle met Huettner at a
bar and they together drank beer. As they left the bar,
they purchased two six-packs of beer to take with them on
picket duty. They appeared at Respondent's plant and
were assigned picketing duty at the gate to the employee
parking lot. Employee Ron Gilkey was assigned to picket
with Huettner and Riffle.
At the beginning of their tour of duty, Gilkey and
Huettner parked their respective automobiles in a manner
blocking ingress to or egress from the entrance to the
parking lot. They then posted some picket signs and
stayed near or in the automobiles drinking beer. At a time
prior to the 2 a.m. tavern closing hour, they obtained
more beer and continued to drink beer as the night
progressed. At approximately 3:20 a.m. Riffle became ill
and laid down in the back seat of Huettner's automobile
with his head to the passenger side of the vehicle. He
covered himself with a coat and was aware of nothing
more until approximately 3:45 a.m. when he awakened
and heard Huettner and Gilkey conversing in the front
seat of Huettner's automobile. Riffle asked them the time
and he was informed that there was 15 minutes left of
their tour of picketing duty. Riffle settled back and slept.
Riffle next awakened when he was aroused from his
slumber in the rear seat of'the Huettner automobile by
Patrolman Arnold Kirleis of the Gary, Indiana Police
Department. At this point in time the Huettner
automobile had been driven from the Respondent's plant
to an alley off a principal street in Gary. It had been
observed by Police Officers Kirleis and Fred Meyers
parked in the alley with its parking lights on. Upon
observing the parked automobile, Kirleis and Meyers had
driven their patrol car with lights out into the alley to
investigate. Upon approaching the Huettner automobile
they observed a figure in the front seat of the car seated
behind the steering wheel. He later identified himself to
the police officers as Larry Huettner. As the officers
alighted from the patrol car, Kirleis heard Huettner
whistle and turn towards the building by which the
Huettner automobile was parked. At this point in time the
police officers also intercepted Ron Gilkey returning to
the car from a point in the alley. Gilkey was carrying a
14-inch pipe wrench of the variety used by employees in
the Meter Department in the fulfillment of their duties.
As Gilkey approached the Huettner automobile he threw
the wrench under the car. After intercepting Gilkey and
ordering Huettner to alight from the car, Police Officer
Kirleis observed a form or figure in the rear seat of the
Huettner automobile. Kirleis opened the door of the
automobile, removed the coat which was covering the
figure and roused the individual who later identified
himself to the officers as Paul Riffle.
Gilkey, Huettner, and Riffle were taken into custody by
the police officers and were booked at the Gary Police
Department. They were retained in custody from
approximately 5 a.m. on Sunday, June 2, until 4 p.m. the
following day. Riffle was neither arraigned nor tried for
any violation arising from the arrest. However, an
investigation of the area and premises at the scene of the
arrest revealed that a gas meter situated in the rear of the
laundromat and cleaning establishment on the premises
had been tampered with and partially disassembled.' The
meter valves that had been loosened revealed fresh gray
paint scrapings. Moreover, the 14-inch pipe wrench which
Gilkey had thrown under the automobile, and which had
been retrieved by the arresting officers, bore fresh tracings
of gray paint identical in color to that chipped from the
meter at the rear of the laundromat. A 10-inch pipe
wrench which had been found in the Huettner automobile
at the time of the arrest bore the odor of gas and had a
powder like substance imbedded in it.'
It was further determined as a result of subsequent
investigation that on the evening of the arrest of Gilkey,
Huettner, and Riffle, 20 other gas meters in the city of
Gary had been shut off. Oscar Kyelstrom, Respondent's
general supervisor, testified credibly that it would have
taken one individual or a single group of individuals from
1 to 2 hours to shut off this number of meters.
A further investigation conducted by the Respondent
revealed that two pipe wrenches identical in type and
appearance to those found at the scene of the arrest had
been removed from one of Respondent's service trucks
which had not been in active use.
At the time of his arrest Gilkey explained to the
arresting officers that he had entered the alley for the
purpose of urinating, and had carried the wrench with him
for protection. Riffle testified that he had no awareness of
anything that had transpired in the alley and was not
aware of the presence of the autor?tobile at the arrest situs
until aroused by Officer Kirleis. Moreover, he denied
having any knowledge of any use made of the wrenches on
the morning of June 2 or of why, how or when they were
obtained. When aroused by Kirleis, Riffle was in the same
nearly prone position that he had been in when he fell
asleep at 4:45 a.m. at the plant picket site.
Following his release from custody, Riffle resumed
picketing duties and at the termination of the strike
returned to work on the morning of June 17. On June 17,
at approximately 8 a.m., Riffle, Gilkey and Huettner were
called to the office of Howard Hawkins, superintendent of
Respondent's Gary district and, in the presence of Charles
Stern, a representative of the Union, they were informed
of their discharge. Hawkins informed Riffle, Gilkey and
Huettner that he had been instructed not to let them
return to work because they had been accused of shutting
off 21 gas meters. Stern remonstrated that they had not
been accused of shutting off 21 meters. Hawkins answered
that he had the list in his possession and withdrew a piece
'The evidence establishes that the main gas valve of the meter had been
substantially closed and a valve on the outlet side of the meter had been
loosened precariously.
'Assistant General Foreman Bell testified credibly that only by being
exposed to gas escaping directly from a gas main would the wrench have a
gas odor and powder like substance affixed to it. Normal usage of the
wrench , Bell credibly testified , for the mere purpose of affecting a normal
adjustment of a valve, would not produce the gas odor or powder like
substance.
NORTHERN INDIANA PUBLIC SERVICE CO. 501
of paper from his desk drawer. After further discussion
between Hawkins and Stern it was agreed that the matter
should be submitted to grievance.
Walter Hathaway, manager of Respondent's industrial
relations department, who participated in the decision to
terminate the three employees testified the action was
taken because a large number of meters had been turned
off on the morning of June 2 and because the three
employees "had been apprehended by the police where a
meter and other apparatus had been tampered with." He
further testified that of approximately 2,700 employees -
none of whom worked during the strike and most of
whom picketed - only the three apprehended individuals
were terminated.
Respondent undertook no independent investigation to
determine the extent, if any, of Riffle's involvement in the
gas meter tampering.
Conclusions
Relying upon the Burnup & Sims decisions the General
Counsel contends that the discharge of Paul Riffle was
unlawful, as it arose from an alleged act of misconduct for
which Riffle was not guilty, and because his discharge
occurred in the course of his participation in protected
concerted activity.
On the other hand, the Respondent contends that Riffle
was discharged for cause devolving from his arrest and
suspected complicity in a meter tampering incident which
formed no part of Riffle's protected concerted activities as
a striker or picket.
The record supports the Respondent's view and the
complaint must be dismissed. In Burnup & Sims the
Supreme Court found:
In sum, Section 8(a)(l) is violated if it is shown that the
discharged employee was at the time engaged in a
protected activity, that the employer knew it was such,
that the basis of the discharge was an alleged act of
misconduct in the course of that activity, and that the
employee was not, in fact, guilty of that misconduct.
[Emphasis supplied]
However, by way of dicta to its decision in Burnup &
Sims the Supreme Court added a caveat that, "[h]ad the
alleged [misconduct] been wholly disassociated from
Section 7 activities quite different considerations might
apply."
Although I find that because of his debility and slumber
Riffle had no awareness of the alley sojourn, and was thus
innocent of any misconduct, the fact remains that
whatever the purpose and reason for the presence in the
alley of the three employees, including Riffle, their pursuit
was not one associated with their normal picketing
assignment nor one which was in any manner related to
legitimate strike activity. In short, whether Riffle's
compatriots, Gilkey and Huettner, entered the alley where
they were apprehended to permit Gilkey to alleviate his
purported condition of uric extremes, or whether they were
bent on sabotage, they were engaged in pursuits wholly
disassociated with protected Section 7 activities.
This consideration, in my view, renders Burnup & Sims
inapposite to this case and places upon the General
Counsel the burden of establishing affirmatively the nexus
between Riffle's discharge and his prior involvement in
protected activities.' He failed to sustain this burden.
There is nothing of record to suggest Respondent
harbored animosity or resentment against Riffle because,
with approximately 2,700 other employees, he joined the
strike or because, like a large number of the strikers, he
jointed the picket line. To the contrary, following the end
of the strike, out of nearly 2,700 strikers only Riffle,
Gilkey, and Huettner were discharged.
The deficiencies of the General Counsel's proof stands
not alone as impelling necessity for dismissing the
complaint, although that void would be sufficient to
sustain such a disposition. Adding to the determination
which I reach that the complaint must be dismissed, is the
further finding that Respondent discharged Riffle only out
of certitude of Riffle's involvement in meter sabotage.
While his complicity was perhaps not susceptible of
actionable proof sufficient to support a criminal
prosecution or civil action, Respondent's judgment of
Riffle's involvement in the meter tampering was supported
by strong circumstantial evidence. In light of
Respondent's unqualified right to discharge an employee
for any reason except concerted or union activities,' this
fact must be weighed in the balance. The record thus
evaluated requires dismissal of the complaint.
RECOMMENDED ORDER
Upon the foregoing, I shall recommend that the
complaint be dismissed in its entirety.
'N L R B v Burnup & Sims, Inc. 379 U S 21 (1964).
'See Astronautics Corp of America, 1164 NLRB No 89 (TXD), Norge
Division , Borg-Warner Corporation, 155 NLRB 1087 , 1089-90
'The General Counsel concedes the evidence does not warrant finding an
8(a)(3) violation