Northwest Metal Products, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1219 (N.L.R.B. 1980)

NORTHIWESI' MEIAI. PRO()I)UCS. INC
Northwest Metal Products, Inc. and United Steel-
workers of America, Local No. 3112, AFL-
CIO-CLC. Case 19-CA- 11549
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEILO
On July 31, 1980, Administrative Law Judge
William L. Schmidt issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, 2 as modified
herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Northwest Metal Products, Inc., Kent, Washing-
ton, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Phillip Hoefer immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole
for any loss of earnings incurred from being termi-
nated on May 2, 1979, as provided in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon as provided in Florida Steel Corporation,
231 NLRB 651 (1977). (See, generally, Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).)"
t 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry W'all 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 his findings.
2 In accordance with his dissent in Olympic Medical Corporation. 250
NLRB 146 (1980), Member Jenkins would award interest on the hackpay
due based on the formula set fiorth therein.
3 We have modified the Administrative Law Judge's recommended
Order to include the full reinstatement language traditionally pros ided by
the Board
252 NLRB No. 170
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPI.OYEIS
POSrTED BY ORI)IDR OF THE.
NATIONA. LABOR REI.ATIONS BOARD
An Agency of the United States Government
W: Wll.l. NOTr discharge an), employee for
engaging in union activities or otherwise exer-
cising any of the rights guaranteed by Section
7 of the National Labor Relations Act, as
amended.
WI: WIt. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Phillip Hoefer 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 other rights or privileges pre-
viously enjoyed, and make him whole for any
loss of earnings incurred from being terminat-
ed on May 2, 1979, with interest.
WE WII.. expunge from our records any ref-
erence to Phillip Hoefer's discharge on May 2,
1979.
NORTHWEST METAL PRODUCTS, INC.
DECISION
STAIIMEFNT OF THI CASI
WII IAM L. SCHMIDT, Administrative Law Judge:
This matter was heard before me on December 19 and
20, 1979, and January 9, 1980, in Seattle, Washington.
The hearing was held pursuant to a complaint issued by
the Regional Director for Region 19 of the National
Labor Relations Board on August 21, 19 79 ,' and is based
on a charge which was filed against Northwest Metal
Products, Inc. (hereinafter called the Respondent), by
United Steelworkers of America, Local No. 3112, AFL-
CIO-CLC (hereinafter called the Union), on July 3. The
issues in this matter were joined by the Respondent's
answer of August 28, wherein it denied the commission
of the alleged unfair labor practices.
Upon the entire record in the case, including my ob-
servation of the demeanor of the witnesses, and upon
consideration of the briefs filed by the General Counsel
and the Respondent, I make the following:
t If not otherwise specified, all dates are in Iq97
1219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FIN)INGS OF FACT
I. JURISI)ICIION
Respondent, a Washington corporation, manufactures
sheet metal products at its place of business in Kent,
Washington. During the 12-month period prior to the is-
suance of the complaint, the Respondent shipped goods
or provided services valued in excess of $50,000 from its
facility in Kent, Washington, directly to customers locat-
ed outside the State of Washington, or to customers
within said State which customers were themselves en-
gaged in interstate commerce by other than indirect
means. Based on the foregoing and the entire record in
this matter, I find that the Respondent is, and has been at
all times material herein, an employer engaged in com-
merce or in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act. I further
find that it will effectuate the purposes of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE CONTENTIONS
The complaint alleges that the Respondent discharged
Phillip Hoefer on May 2 and Ronald Druce on June 7,
and has since failed and refused to reemploy said individ-
uals to their former or substantially equivalent positions
because Druce and Hoefer supported and assisted the
Union in an economic strike against the Respondent and
engaged in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection. At the
outset of the hearing, the parties stipulated that Hoefer's
discharge was reduced to a suspension and that the Re-
spondent offered to reemploy Hoefer on August 14. The
stipulation also states that Hoefer was reemployed on
August 20.
The Respondent denies that it has committed the
unfair labor practices alleged. More specifically, the Re-
spondent asserts that Hoefer was responsible for causing
a vehicular accident at the Respondent's facility on the
morning of May 2, in which damage resulted to the Re-
spondent's property and a nonstriking employee's vehi-
cle, and in which serious physical injury to the driver of
the vehicle was only narrowly averted. The Respondent
also asserts that its discharge of Druce was justified for
unprotected strike activities on June 7 wherein two em-
ployees were assaulted by Druce and Cameron More-
house, the Union's president.2
IV. THE EVIDENCE
A. Background
As noted above, the Respondent is engaged in the
manufacture of sheet metal products at its Kent, Wash-
2 Morehouse was discharged at the same time as Druce as a result of
the incident detailed below. Morehouse, in his capacity as the president
of the Union, filed the charge herein but no complaint issued with respect
to his discharge.
ington, facility. The Respondent employs approximately
210 to 220 employees. Barry Miller, the Respondent's
vice president and general manager, is in charge of the
Respondent's operations. Reporting to him is Dale
Noack, the plant manager. Noack is aided in his manage-
rial responsibilities by a production manager, who, in
turn, is assisted by a plant foreman and a traffic manager.
The Respondent's production operation is staffed by indi-
viduals classified as leadermen, specialists, and Class A,
B, and C production employees.
There has been a collective-bargaining relationship be-
tween the Respondent and the Union for at least the past
11 years while Respondent has been under its current
ownership. The Union also represented the employees at
this facility for a number of years under its prior owner-
ship. On March 31, the collective-bargaining agreement
in effect prior to that time between the Respondent and
the Union expired. As a result of a series of short exten-
sions of the agreement, employees continued to work
until approximately April 20. Thereafter, approximately
160 production employees ceased work and commenced
a strike against the Respondent in support of the Union's
proposals for a new agreement. The strike lasted until
approximately June 7. Approximately 50 employees
abandoned the strike before it concluded. During the
strike, the Respondent marked its property line with a
white broken line where feasible, and advised strikers net
to trespass.
B. Hoefer's Discharge
Phillip Hoefer was discharged on May 2 for engaging
in picket line misconduct while he was picketing on
behalf of the Union in the vicinity of the driveway en-
trance to the Respondent's facility. The Respondent con-
tends that he swung his picket sign and lunged at the ve-
hicle of Steven Cardwell, a nonstriking employee, as
Cardwell was entering the Respondent's premises to
report for work that morning and that Hoefer's actions
were the sole cause of an accident which occurred in-
volving Cardwell's vehicle. The General Counsel con-
tends that the accident resulted from Cardwell's negli-
gent operation of his vehicle and that Hoefer is not
guilty of the misconduct alleged.
Hoefer was initially employed by the Respondent on
August 18, 1978, as a production worker in the fitting
department. He was a member of the Union and partici-
pated in the strike by the Union from its inception on
April 20. On May 2, Hoefer and approximately four
other striking employees were assigned to picket at the
Respondent's premises. Hoefer commenced picketing
that day at approximately 6 a.m. Apart from the Card-
well incident described more fully below, the only other
unusual picket line activity that morning was reported by
Brian Beebe, the Respondent's transportation manager.
According to Beebe, as he was exiting from the Respon-
dent's premises that morning, Hoefer made "menacing"
gestures toward the windshield of his truck with a picket
sign. The gestures-not denied by Hoefer-reminded
Beebe of a person chopping wood. Beebe acknowledged
that Hoefer did not strike his vehicle. However, there is
no evidence of any undue delay or impediment. The
1220
NORTHWEST METAL PRODUCTS, INC.
Cardwell accident occurred approximately 30 minutes
after Beebe left the plant to drive a truck to a pickup
point and meet Plant Manager Noack for a ride back to
the plant. It is necessary to understand the scene of the
accident first.
The Respondent's premises abuts North 4th Avenue in
Kent. 3 This public street is a four lane, hard surfaced,
north-south street in that city. The terrain in that area is
generally flat and views of the pertinent area are unob-
structed. The Respondent's building is set back a consid-
erable distance from the street. 4 Entry onto the Respon-
dent's premises in a vehicle is made by way of a drive-
way north of the Respondent's building. The minimum
width of the drive entrance to the facility from 4th
Avenue is 26 feet. A railroad spur is situated parallel to
the south edge of the drive between the drive and the
north edge of the Respondent's plant. At the public
sidewalk parallel to 4th Avenue, the railroad is at grade
level but it begins a gradual slope below grade a short
distance west of the sidewalk so that by the time the rail-
road reaches the vicinity of the northeast corner of the
Respondent's building, it is in a depression approximately
3-1/2 feet deep and continues slopping thereafter until it
reaches a depth of about 5 feet at a fence located slightly
over 30 feet further to the west. The width of the track-
well is 11 feet 5 inches. The aforementioned driveway
also continues west to the fence line where there is a 16-
foot gate across the drive. The driveway and the railroad
trackwell are separated by a concrete curb along the
south side of the driveway, which is 6 inches high and 8
inches wide. The curb appears to begin at the Respon-
dent's property line which runs parallel to the street curb
but 12 feet west of the curb. Approximately 23 feet to
the west of the Respondent's property line and slightly
to the north of the centerline of the driveway entrance, a
4-foot-wide traffic island commences and continues in a
westerly direction to at least the fence line. At this point
the driveway narrows from 26 feet at the entrance to 16
feet. The area to the north of the traffic island serves as
the employees' parking lot.- Thus, vehicles enter the
premises by turning west off 4th Avenue. A vehicle en-
tering on the south half of the drive is in line with the
gate across the drive. By turning slightly to the north
before reaching the traffic island, a vehicle proceeds into
the employees' parking lot. The traffic island is planted
with low shrubs and a fire hydrant is situated about in
the center of the island 9 feet west of its east edge. On
the south side of the driveway near the front of the Re-
spondent's building, a 5 foot-wide wooden footbridge
across the trackwell accommodates pedestrian traffic
from the building to the parking lot and vice versa. The
eastern edge of the footbridge and the eastern edge of
the traffic island are generally on line with each other.
There is an opening in the curb between the trackwell
and driveway at the footbridge. A north-south sidewalk
on the public right-of-way parallels the street. At the en-
3 Hereafter North 4th Avenue is called 4th Avenue
4 On the basis of a scale drawing and pictures received in evidence. the
building setback appears to be in excess of 40 feet from the street curb
. During the strike, employees parked in an area west of the fence nor-
mally used as a truck parking area rather than in the usual parking lot
which is no1t fenced
trance, a short apron slopes from the sidewalk grade east
to the edge of the street where there is a slight dip very
noticeable in an automobile. West of the sidewalk the
driveway rises quickly to its grade level and this condi-
tion creates a second bump in an automobile as it enters
the premises.
At approximately 6:45 p.m., Cardwell was proceeding
north on 4th Avenue in route to work. It was a clear
day and there is no evidence of any traffic traveling in a
northerly direction in front of him. Cardwell was driving
his personal vehicle-a 1975 Chevrolet Blazer four
wheel drive which was equipped with oversized tires
and a steel bush guard across the entire front of the vehi-
cle in order to make it suitable for off road travel. Fol-
lowing Cardwell at a distance of approximately 200 feet
were Noack and Beebe in Noack's vehicle. It appears
that their presence at this location was merely by
chance. Approximately five pickets were scattered in the
vicinity of the driveway entrance. Hoefer, who was in
the northern most position of the pickets, appears to
have been standing approximately 1 or 2 feet into the
entry and adjacent to the west edge of the public
sidewalk east of the Respondent's property line. The
other pickets were situated from that point south ap-
proximately 20 feet and were generally doing nothing
other than standing around talking to each other.6
Hoefer carried a picket sign over his right shoulder. It
was a typical picket sign constructed of a piece of small-
dimension lumber 3 to 4 feet long with a cardboard plac-
ard attached at one end.
Beebe testified that as he observed Cardwell approach
the plant's entrance he told Noack, "We're going to have
a problem. Let's get up there." Beebe said that his con-
cern resulted from the fact that he knew Cardwell to be
a nervous individual who had been verbally hassled a
couple of days earlier, and the fact that Hoefer had made
"menacing" gestures toward the vehicle driven by him
when he left the Respondent's premises a short time ear-
lier.
There is not much dispute about the course of Card-
well's vehicle as it proceeded west across the south
bound lanes of 4th Avenue toward its final resting place
at the bottom of the railroad trackwell that morning.
Thus, the evidence shows that Cardwell angled across
the south bound lanes and entered the drive about 3 feet
north of the curb separating the driveway and the track-
well. As he reached the point near where Hoefer was
standing, Cardwell swerved his Blazer to his right. This
adjustment put him on course with the traffic island and
the fire hydrant. Apparently noticing this, Cardwell then
turned sharply to his left. The Blazer proceeded south-
ward across the driveway, where it appeared to have
jumped the curb and continued into the trackwell crash-
ing through the wooden footbridge on the way. When
his vehicle came to rest in the trackwell, Cardwell
6 Two of the other pickets, Richard Cox and Richard Russell. testified
in support of he General Counsel's case In addition, the accident was
witnessed by another nonstriking employee, Steve Mellick, who was
aboul 2(X0 feet west of the scene inside the gate and Jeanette Bean, a se-
curity guard. ho was located just inside the gate about 50 feet from the
scene
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alighted from it and headed back toward Hoefer shout-
ing, "You wrecked my truck; you wrecked my truck."
By this time, Noack and Beebe arrived on the scene and
restrained Cardwell. The pickets disclaimed any respon-
sibility for the accident. From what Noack was able to
observe, the footbridge had the effect of returning the
tipping vehicle to an upright position and prevented it
from rolling over as it proceeded down into the track-
well. Had the vehicle rolled over it is likely that Card-
well would have been physically injured. Nevertheless,
the extent of the damage appears to have been the de-
molished footbridge which the Respondent estimated
cost $780 to replace and a sprung tailgate on Cardwell's
vehicle. There was no cost estimate on the damage to
Cardwell's vehicle. The cause of this accident is hotly
disputed.
Hoefer testified that, at the time he first observed
Cardwell proceeding north on 4th Avenue, he was
facing west with his back to the street and looking over
his left shoulder. Hoefer continued in his version of what
happened by testifying that when he observed Cardwell
turn west into the driveway, it appeared to him that
Cardwell was coming right at him. Upon observing the
direction of Cardwell's vehicle, Hoefer claims to have
stepped back a couple of feet and to have pointed his
picket sign at Cardwell's Blazer. At the time he pointed
the sign, Hoefer yelled a warning at Cardwell to watch
where he was going. Hoefer estimated Cardwell's speed
at between 15 and 20 miles per hour as the vehicle ap-
proached and passed him.
Cardwell, the other principal actor in this scenario,
testified that he stopped on 4th Avenue to allow the
south bound traffic to pass and then proceeded toward
the entrance at not over 10 to 12 miles per hour.7 In ad-
dition, Cardwell testified that he then slowed for the
bumps at the entry way so that as he approached Hoefer
he was not going over 7 or 8 miles per hour. 8 Cardwell,
who testified that he was conscious of the presence of
the pickets and anticipating verbal abuse from them as
has occurred on earlier occasions, said that he observed
a dark haired picket standing to the east of Hoefer. Card-
well said Hoefer was standing on the trackwell curb.
The dark haired picket began waving his sign at Card-
well but apparently did not create a distraction. Accord-
ing to Cardwell, as the left-front corner of his vehicle
passed Hoefer, Hoefer stepped toward his vehicle and
began swinging the placard end of his picket sign at the
windshield several times. Cardwell, who claimed to be
unable to see where he was going because of the picket
sign and fearing that the oversized tires on his vehicle,
which extend beyond the wheelwell of the vehicle,
would hit Hoefer, said that he swerved to the right to
avoid hitting Hoefer. Cardwell claimed to have no recol-
lection of accelerating his vehicle. As his vehicle passed
Hoefer, Cardwell believes he heard Hoefer's picket sign
hit the side of the Blazer a couple of times but he did not
? In a prehearilg affidavit Cardwell statled hat he had only slowed on
4th Avenue to allowuo south bound traffic to pass and did not state tha he
slopped.
O)n cross-exainatolon, Cardwell explained that his testimnony at a
prior proceeding in another Irihunal that he as going 2() miles per hour
when he entered the dricsa ;l. w a,, 5 ol a guess
observe this occur. However, Cardwell did observe that
his right turn had put him on course with the traffic
island, so he quickly turned to the left. Cardwell ac-
knowledged that he "over corrected, and as his left front
tire went over the trackwell curb, it grabbed and pulled
him down into the trackwell, smashing through the
bridge inroute."
Both Noack and Beebe testified that Hoefer swung the
stick end of the picket sign at the Blazer in the style of a
baseball player. Both testified that Cardwell turned
slightly to the right and then back to his left. Noack,
who acknowledged that he had given a much lower esti-
mate in an earlier hearing in another forum, testified here
that Cardwell was entering the driveway about 15 miles
per hour. Beebe stated that Cardwell slowed to about 20
miles per hour on 4th Avenue to allow the southbound
traffic to pass, and entered the driveway at or about 10
to 15 miles per hour. Both men testified that Hoefer
swung his picket sign at Cardwell several times. In this
latter regard, Noack testified that Hoefer was standing in
the driveway swinging the picket sign as Cardwell ap-
proached. Beebe testified that Hoefer began swinging the
picket sign as Cardwell reached the sidewalk where
Hoefer was standing. Neither of these two men testified
that they observed Hoefer strike the vehicle with the
picket sign nor did they testify at all concerning the di-
rection Hoefer was standing as Cardwell approached. In
sharp contrast to his version at the instant hearing,
Noack acknowledged that he testified as follows in a
prior proceeding:
Q. (By Mr. Halvorson) Mr. Noack, in your testi-
mony at the unemployment hearing on Mr. Hoefer,
were these questions and these answers asked of
you and provided by you?
Q. Was the picket line across the driveway or
was it just on the shoulder of the road?
(There was an intervening colloquy between counsel
concerning an objection.)
Q. (By Mr. Halvorson) O.K., was your answer to
that question, "Well, they wandered back and forth
across but the group, at the time, was standing on
the south side of the entrance and as the driver ap-
proached to go into the driveway, Mr. Hoefer
jumped out of the group at the driver causing him
to swerve."
Q. He jumped off to the roadway?
A. He jumped north on the sidewalk which
would be the entrance. He didn't jump onto the
roadway at the street. He jumped up to the
sidewalk which made the entrance narrower. The
driver was coming in closer to Mr. Hoefer. As Mr.
Hoefer jumped at him, the driver looked over to
the right. When he looked over to the right, then
he had to come back left in order to get back in the
driveway again. As he did that, Mr. Hoefer started
1222
NORTHWEST METAL PRODUCTS, INC.
swinging at the back of the vehicle and the driver
evidently turned around and looked at him and
didn't watch where he was going. And caused him
to go into the ditch.
He couldn't bring it back to the right again. He
was too far gone to the left.
Q. Mr. Noack, did you make those answers to
those questions?
A. Yes. I did.
From his vantage point west of the fence, Mellick also
observed Hoefer swing at the Cardwell vehicle with the
picket sign and estimated his speed at or about 10 to 15
miles per hour. Mellick, who apparently entered the Re-
spondent's premises minutes earlier without incident, tes-
tified that Hoefer walked sideways swinging his picket
sign at Cardwell from a point slightly inside the property
line to a point almost to the edge of the footbridge, or a
distance of slightly over 15 feet. Mellick also testified
that he observed the Blazer go up on two wheels so that
he could see the undercarriage of the vehicle.9
The shift log of the security guard, Bean, reads as fol-
lows concerning the incident:
6:45 (approx) worker driving Blazer (TM1856)
turned N Bound to enter lot-a picketer yelling
"scab" at man in blazer-lunged toward blazer with
stick end of picket sign in preparation to strike vehi-
cle-man in vehicle swerved & accelerated in order
to miss picketer-vehicle in attempt to miss picketer
hit curb with tire & flipped 1/2 over-his blazer
landed on foot bridge on RR tracks.
Time wise, the foregoing report is out of sequence on
the log.' °
Barry Miller, the Respondent's official who made the
decision to discharge Hoefer, testified that he came to
the scene of the accident probably a minute after it oc-
curred. In deciding to discipline Hoefer, Miller spoke
with Noack, Beebe, Cardwell, and the security guard.
There is no evidence that any attempt was made to
secure Hoefer's version of what occurred. According to
Miller, Cardwell told him that Hoefer made a lunging
type of motion toward his vehicle, and, fearful of strik-
ing Hoefer, Cardwell swung to his right and accelerated
in order to quickly get by the area where Hoefer was lo-
cated.
9 If Mellick is accurate, it would appear that the left tire actually did
not strike the curb, but went onto the footbridge at the opening in the
curb and the grabbing sensation Cardwell felt was the right front tire as
it reached the curb. It is also likely that when the left front W'heel
dropped the vehicle gave the appearance it was rolling over which was
described by other witnesses and exposed the undercarriage to Mellick's
view
' General Counsel objected to receipt of the guard's log for that
guard shift The Respondent attempted to secure the appearance of the
security guard by subpena on the first and last days of the hearing, but
the guard who worked for another employer at the time of the hearing
failed to appear Accordingly, the guard's log was received as a business
record. Additionally. the Respondent argued that the report should be re-
ceived as aailable secondary evidence of an unavailable witness Al
though I find it unnecessarN to consider this additional argument, it
would appear to lack merit as there is no eidence of prior notice as re-
quired by Rule 804(hb)51 of the F R of Eid. and there is other more
probative el dence
C. Druce and the June 6 Incident
Throughout most of the day on June 6, Ronald Druce,
Cameron Morehouse, and two other individuals were in
Tacoma, Washington, working on union business. There
is evidence that in the course of the day the two men
consumed a few beers, but the evidence is quite wide of
the mark in showing that they had become intoxicated.
In the early evening, the group of four men returned to
Kent and it was decided that they would visit the picket
line. One individual departed the company of the group
before arriving at the Respondent's facility. When the re-
maining three men arrived at the Respondent's plant,
they visited momentarily with the pickets. Morehouse
observed that trucks were being loaded and suggested to
Druce that they check out what was being loaded. The
two men proceeded to the loading docks of the ware-
house crossing in the process the no-trespassing line. At
that time, Druce was wearing a green T-shirt, and More-
house was wearing a white T-shirt. The scenario which
follows is based on a composite on the testimony of
Kevin Laux, Guy Brummet, Scott Simmons, Timothy
Catlett, Dean Whitley, and James Warren, all of whom
were called as witnesses by the Respondent, as well as
the portions of the testimony of Ronald Druce and Ca-
meron Morehouse, which I have credited.
When Druce and Morehouse approached the loading
dock at least three trucks were backed to the loading
bays and were in various stages of being loaded or un-
loaded. At door No. 2, Kevin Laux and Guy Brummet
were inside the truck working. Tim Catlett and Jim
Warren were working in a truck at door No. 3 and Scott
Simmons and Al Cregger were in a truck at door No. 4.
There was a commotion. Laux credibly testified that
Druce and Morehouse who he had earlier observed in
the vicinity of the warehouse were shouting obscenities
but that he initially ignored them. Finally, Brummet de-
cided to look outside the truck to see what was going
on. As he stepped from the truck to the space between
the warehouse door jamb and at the side of the truck, his
left leg was grabbed and tugged with sufficient force to
cause pain and put Brummet in fear of being pulled com-
pletely off the loading dock. Brummet held on to a rail
at the edge of the truck to keep from being pulled off of
the dock while shaking his leg in an effort to free him-
self. When Laux observed Brummet's predicament, he
proceeded out of the truck to see what was going on.
Brummet broke free at approximately the same time as
Laux arrived at the truck door and proceeded into the
warehouse in an effort to get away. Laux peered around
the corner and observed Druce immediately below at the
loading dock and Morehouse approximately 15 feet
behind Druce. Druce's and Morehouse's respective loca-
tions at this time led Laux to conclude that only Druce
was in a position to grab Brummet. Brummet did not ob-
serve his attacker.
Laux then proceeded into the warehouse, walking
around a forklift inroute. As he was about half way
around the forklift, Laux heard some further noise. He
turned to see what was going on and observed More-
house coming in to the warehouse. Morehouse came
toward Laux and Laux said to him "What in the hell are
1223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you doing in here?" Morehouse did not respond. Instead,
upon approaching Laux, Morehouse struck Laux with a
clenched fist directly below Laux's right cheekbone. The
blow was of sufficient force to cut the inside of Laux'
cheek and to knock his glasses off into a nearby bucket.
By that time the disturbance had attracted considerable
attention and several of the nonstriking employees who
were working in the warehouse either observed More-
house strike Laux or observed the scene immediately
thereafter. Druce, who entered the warehouse immedi-
ately behind Morehouse, was approximately 3 to 4 feet
away when Morehouse struck Laux. Druce had his fists
up in a fighting posture and was shouting at the non-
strikers in an effort to provoke them to fight with him,
either individually or collectively. Immediately after
striking Laux, Morehouse turned to leave the warehouse.
On his way out, Morehouse tugged Druce by the shoul-
der and said, "Come on, let's get out of here." Druce,
apparently still intent on provoking a fight, continued
shouting and Morehouse proceeded outside. After a few
seconds, Druce joined his companion off the loading
dock. At this point, both men stood outside of the ware-
house for a short period shouting to the warehouse em-
ployees in a further effort to induce a fight outside the
warehouse." Finally, both of the strikers gave up and
proceeded to their automobile to leave the premises.
Both Morehouse and Druce were discharged as the
result of this incident. The decision to do so was made
by Miller on the Saturday following the incident. Ac-
cording to Miller's testimony at the hearing, his decision
was based solely on fact that Druce trespassed on to the
Company's property and physically engaged one of the
nonstriking employees. Miller claimed that Druce's fight-
ing words did have a bearing on his decision to dis-
charge Druce.
In his testimony at the hearing, Morehouse sought to
absolve Druce of any responsibility for the Brummet in-
cident by testifying that he grabbed Brummet's leg. Mor-
ehouse admitted that he hit Laux. Morehouse reluctantly
acknowledged that Druce "may have" invited the non-
strikers to fight. Druce denied that he touched Brummet.
D. Concluding Findings
The general legal standard for cases of this nature was
set forth by the Supreme Court in N.L.R.B. v. Burnup
and Sims, Inc., 379 U.S. 21 (1964). In delivering the opin-
ion of the Court, Mr. Justice Douglas wrote at 379 U.S.
23:
In sum, §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.
" The evidence shows that none of the warehousemen working that
evening became the least bit interested in challenging Morehouse and
Druce in a bare-knuckle contest. Based on my observation of the various
individuals at the hearing, they exercised excellent judgment as More-
house and Druce are significantly larger in physical stature than any of
the warehousemen who testified at the hearing.
The manner in which the Board has applied the legal
standard involved here is summarized in Coronet Casuals,
Inc., 207 NLRB 304 (1973) and The Blair Process Com-
pany, Inc., 199 NLRB 194 (1972), which are cited by the
General Counsel. In general, the holding in those cases is
that serious acts of misconduct in the course of a lawful
strike are not protected. In assessing the seriousness of
misconduct quantitatively, the existence of unprovoked
violence by the disciplined employee usually warrants
the conclusion that the misconduct alleged is unprotect-
ed. Less egregious misconduct, albeit socially unaccepta-
ble, is tolerated by the law lest every ill word, idle
threat, or minor scuffle which occurs in the emotion-
laden atmosphere of labor relations serves to justify dis-
cipline and make protection under the Act available only
to the meek and reticent. The General Counsel has the
burden of going forward with the evidence proving that
an employee was disciplined for misconduct which, in
fact, he did not commit. Rubin Bros. Footwear, Inc. and
Rubin Brothers Footwear, Inc., 99 NLRB 610 (1952).
Based on the foregoing legal standards applicable to
cases of this nature, I have concluded that the General
Counsel has met the burden required in Hoefer's case,
but has failed to meet the required burden in the instant
case of Druce.
It is clear that at the time that misconduct ascribed to
Hoefer occurred he was engaged in picketing in connec-
tion with a lawful economic strike and, hence, was en-
gaged in a known protected activity. The misconduct at-
tributed to Hoefer by the Respondent is that his actions
while engaged in the otherwise protected activity were
the sole cause of Cardwell's accident on May 2 and the
resultant damage. In my judgment, Hoefer's actions were
neither the sole nor principal cause of Cardwell's acci-
dent that morning.
Based on all the evidence in this matter, I conclude
that Cardwell approached the entrance to the Respon-
dent's plant at a speed approximating 15 to 20 miles per
hour and on a course very close to the south side of the
driveway where Hoefer stood facing in the opposite di-
rection. I am also satisfied that Hoefer truthfully testified
that his reaction upon observing that Cardwell's vehicle
was on a course very close to him was designed to cau-
tion Cardwell rather than for malicious purposes espe-
cially where, as here, the evidence shows painly that
Hoefer could have easily struck Cardwell's vehicle with
the picket sign, but that he did not. Moreover, Beebe's
assessment that he anticipated trouble because he knew
Cardwell to be a nervous individual because Cardwell,
not unsurprisingly, had been verbally harassed a few
days earlier when he was crossing the picket line lends
credence to the General Counsel's argument that Card-
well was deliberately attempting to speed through the
picket line in order to avoid the anticipated unpleasan-
tries he encountered earlier crossing the picket line.
Hoefer's movements appear to have surprised Cardwell,
who reacted by accelerating and swerving first to the
right and then sharply to the left.' 2 I do not credit Card-
2 The fact that Cardwell accelerated at or about the time he swerved
to his right as well as the fact that he did not enter the driveway further
Continued
1224
NORTHWEST METAL PRODUCTS, INC
well's contradicted testimony that the sign's placard
blocked his vision, especially where, as here, the evi-
dence shows that his vehicle was traveling at a velocity
from 22 to 30 feet per second and even Cardwell did not
testify that the sign struck the front of the vehicle.
Indeed, these circumstances suggest Hoefer was exercis-
ing, at least, some caution toward Cardwell's vehicle re-
gardless of the type of motion he made. Although it may
be true that Hoefer earlier motioned toward Beebe's
truck in a fashion which Beebe described as "menacing,"
when stripped of the superlative, Hoefer's actions shown
in this record simply do not rise to a malicious level. If
Hoefer is guilty of anything, it is that he failed to recog-
nize the fact that people normally become exceedingly
apprehensive crossing picket lines-especially individuals
who once made common cause with the strikers.
The testimony of Noack, Beebe, and Mellick, as well
as Cardwell, that Hoefer made numerous motions toward
Cardwell's windshield is greatly exaggerated. That testi-
mony simply does not withstand analysis considering the
velocity of Cardwell's truck. The same would also be
true of Mellick's testimony implying that Hoefer contin-
ued distracting motions by sidestepping to keep up with
a vehicle traveling 10 to 15 miles per hour. Cardwell's
testimony which attempted to shift the blame entirely
onto Hoefer by showing he was blinded by a large plac-
ard blocking his view is not supported by any other ac-
count and is not worthy of belief. Similarly, Noack's tes-
timony was in such marked contrast to his testimony at
the unemployment compensation hearing as to make
clear that his real purpose whether consciously or sub-
consciously was to support a position to which the Re-
spondent had committed itself rather than to tell what he
observed. This conclusion is further warranted by the
fact that the Respondent sought no explanation from
Hoefer for his conduct. For these reasons, I do not
credit the testimony of Beebe, Cardwell, Mellick, or
Noack concerning the nature and extent of Hoefer's ac-
tions.
The absence of a demonstrable malicious intent on
Hoefer's part strongly supports the conclusion which I
have reached, that the real cause of this accident was
Cardwell's excessive speed and excited overreaction
behind the wheel of a large vehicle where caution, re-
straint, and due care are demanded by the law. Card-
well's concession from the witness stand that he overcor-
rected in order to avoid the traffic island is, in reality, a
concession that he was not exercising the degree of care
required of a person operating a motor vehicle. On the
basis of the facts before me, it is difficult to escape the
conclusion that were it not for his excessive speed in the
first instance, it would not have seemed necessary for
him to swerve to the right and, in the second instance,
even if it were necessary to turn to the right, there
would have been sufficient time and distance at a more
reasonable speed for him to correct his direction of
travel back to the center of the driveway before hitting
the traffic island. All else failing, he could have stopped
before the damage occurred if he had been in proper
to the north militates against Cardwell's assertion that he initially turned
to the right in order to avoid hitting Hoefer, and supports the conclusion
that he was startled by Hoefer's movement
control of his vehicle. It is submitted that if Hoefer had
been an old man with a cane or the scene of the accident
had been at the entry driveway to a schoolhouse, sports
arena, or a supermarket, the Respondent's attempt to
focus the inquiry on Hoefer in light of the bizzare course
of Cardwell's vehicle would be summarily dismissed. Al-
though, in retrospect, I find Hoefer's actions may have
been unwise in view of Cardwell's obviously agitated
state of mind, I do not find that he engaged in serious
misconduct meriting discipline. Accordingly, I find that
the Respondent violated Section 8(a)(1) and (3) of the
Act, as alleged. N.L.R.B. v. Burnup and Sims, Inc.. supra,
Coronet Casuals, Inc., supra.
The circumstances involving Druce are entirely differ-
ent. At the outset I reject the contention that Morehouse
and Druce had any legitimate purpose to their ware-
house visit. Accordingly, I cannot perceive that they
were engaged in any protected activity when the actions
for which they were discharged occurred. But assuming
that such a finding is not sufficient to end the inquiry, I
am satisfied that Laux' identification of Druce as the
only individual in the vicinity who could have grabbed
Brummet and attempted to pull him off the loading dock
is the accurate version of what occurred to Brummet.
While testifying, Laux impressed me as a sincere individ-
ual attempting to recount a very distasteful event. In so
doing, his quiet manner did not betray any sense of overt
hostility, which would be easily understood in view of
the circumstances described above. Moreover, the testi-
mony of Druce and Morehouse is laced with contradic-
tions and inconsistencies. Finally, I am satisfied that
Morehouse's vague recollection of the leg-pulling inci-
dent when contrasted to his more detailed recollection of
the Laux incident is supportive of the conclusion that
Morehouse's testimony was motivated more by an effort
to injure the Respondent by attempting to absolve Druce
than to truthfully describe what really occurred.
Entirely apart from the Brummet incident, I am also
satisfied that Druce was a full participant in the entire in-
trusion into the warehouse on the evening of June 6 and
even bears some responsibility for the Laux incident. Al-
though it may be true as Miller testified that the Brum-
met assault and the trespass alone caused him to decide
to discharge Druce, at the very least, the other actions of
Druce as described by eyewitnesses (including More-
house) demonstrate that Druce was a full and willing
participant in the violent acts in the warehouse that
evening. It also lends credence to Brummet's fear that
his attacker was attempting to pull him off the ware-
house dock which, if successful, could have resulted in
serious injury to Brummet. The seriousness of acts such
as those which occurred that evening must always be
weighed in the light of all attendant circumstances.
Having concluded that the evidence demonstrates that
Druce wrongfully entered onto the Respondent's prem-
ises deliberately seeking to provoke violence, that he
physically attacked one employee (Brummet) without
provocation, and that he was present when his compan-
ion attacked Laux, also without the slightest provoca-
tion, and that he sought to provoke altercations between
himself and anyone he could induce to step forward, I
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
am satisfied that the Respondent was justified in dis-
charging Druce as it did. It would be a strange anomaly
for a legal structure, to impose upon employers the
heavy burden of responsibility for employees' safety,
which has been done in this society and then excuse such
unprovoked physical attacks upon employees at their
work stations as minor incidents of misconduct. Accord-
ingly, I shall recommend that the complaint be dismissed
as to Druce.
V. THE EFFECT OF THE UNFAIR ABOR PRACTICES
UPON COMMERCE
The activities of the Respondent described above in B
and D, occurring in connection with the operation of the
Respondent described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and that it take
certain affirmative action hereinafter specified which is
designed to effectuate the purposes and policies of the
Act. With respect thereto, I recommend that to the
extent that the Respondent by its reinstatement of Hoefer
on August 20 did not restore him to his former position,
or to a substantially equivalent position if his former po-
sition no longer existed, with all rights and benefits, it be
required to do so now. I shall further recommend that
the Respondent be required to expunge from Hoefer's
employment records any notations that he was dis-
charged or suspended for cause as a result of picket line
misconduct on May 2. As it appears that the strike
against the Respondent's establishment ended prior to its
reemployment of Hoefer, I shall recommend that the Re-
spondent be required to make Hoefer whole for any
losses he may have suffered as a result of the discrimina-
tion against him together with interest thereon. It is also
recommended that the Respondent's assertion in its brief
that Hoefer would not have been recalled until July 10
in any circumstances because of replacements hired
during the strike be investigated as a part of the compli-
ance aspect of this matter and the amount of backpay be
adjusted in accord therewith if the Respondent's asser-
tion is found to have merit. Otherwise, it is recommend-
ed that backpay be computed in the manner prescribed
by the Board in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest thereon as prescribed by the
Board in Florida Steel Corporation, 231 NLRB 651
(1977). And see, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). Finally, it is recommended that
the Respondent be ordered to post the notice to employ-
ees attached hereto as the "Appendix" for a period of 60
consecutive days in order that employees may be ap-
prised of their rights under the Act and the Respondent's
obligation to remedy its past unfair labor practices.
CONCI.USIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce or an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Phillip Hoefer on or about May 2
because of his activities on behalf of the Union, the Re-
spondent has engaged in an unfair labor practice within
the meaning of Section 8(a)(1) and (3) of the Act.
4. By discharging Ronald Druce on or about June 7
for just cause, the Respondent did not violate the Act in
any manner.
5. The aforesaid unfair labor practices affects com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Pursuant to Section 10(c) of the Act and upon the
foregoing findings of fact, conclusions of law, and the
entire record herein, I hereby issue the following recom-
mended:
ORDER 3
The Respondent, Northwest Metal Products, Inc.,
Kent, Washington, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging any employee for engaging in union
activities or otherwise exercising rights guaranteed by
Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees because they choose to
exercise the rights guaranteed to them in Section 7 of the
Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) To the extent that it may not have heretofore done
so, offer to reinstate Phillip Hoefer and make him whole
in the manner specified above in the section of this Deci-
sion entitled "The Remedy."
(b) Expunge from its records any reference to Hoefer's
May 2, 1979, discharge.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary or useful to a determination of the
amount of backpay due under the terms of this Order
and the propriety of any offer of reinstatement made to
Phillip Hoefer in order to comply with paragraph 2(a) of
this Order.
(d) Post at its plant in Kent, Washington, copies of the
attached notice marked "Appendix." t 4 Copies of such
13 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 its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
'4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Continued
1226
NORTHWEST METAL PRODUCTS, INC
notice, to be furnished by the Regional Director for
Region 19 of the Board, shall be duly signed by the Re-
spondent's authorized representative, and be posted im-
mediately upon receipt thereof and be maintained by it
for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
Order of the National Lahor Rel alton, HBoard" hall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeal, Enforcing an
Order or the National l.abor Relations Board"
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
11 ts FURTHER ORDERED that the complaint insofar as
it pertains to Ronald Druce be, and the same hereby is,
dismissed.
1227