Ohio Power Co.

National Labor Relations Board - Board Decisions

Nov 27, 1974

215 N.L.R.B. 165 (N.L.R.B. 1974)

OHIO POWER COMPANY
Ohio Power Company and Larry J. Greene, Larry C.
Callen , and Joseph F. Campbell. Cases
8-CA-8164, 8-CA-8253, and 8-CA-8276
November 27, 1974 .
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On June 27, 1974, Administrative Law Judge Joel A.
Harmatz issued the attached Decision in this proceed-
ing. Thereafter, General Counsel and Respondent filed
exceptions and supporting briefs, and Respondent sub-
mitted an answering 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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We agree with the Administrative Law Judge's find-
ings, for the reasons set forth by him, that Respondent
violated Section 8(a)(3) and (1) of the Act by discharg-
ing economic striker Larry Greene,' but that Re-
1 Respondent contends that the Administrative Law Judge's conduct at
the hearing deprived it of a fair trial and evidenced his bias and prejudice,
particularly on the issue of Campbell's discharge Respondent specifically
asserts that the Administrative Law Judge acted improperly by (1) permit-
ting Charging Party's counsel extensively and repetitiously to question Re-
spondent's witnesses, (2) harassing witness Wright by asking accusatory
questions, and (3) making on-the-record remarks about being one of the
"new breed" of Administrative Law Judges Upon a careful review of the
record as a whole, we do not find that the Administrative Law Judge acted
improperly, abused his discretion, or evidenced that he had prejudged the
case Thus, the Administrative Law Judge's questioning of Wright, while
perhaps somewhat lacking in tact, was clearly permissible under Sec 102.35
of the Board's Rules and Regulations, Series 8, as amended, which makes
it the duty of the trier "to inquire fully into the facts " As to the alleged
repetitious questioning by Charging Party's counsel, Sec 102 38 of the
Rules and Regulations provides that any party to an unfair labor practice
proceeding "shall have the right" to appear and to participate fully in such
proceeding Although the Administrative Law Judge may, in his discretion,
limit such participation, we find no abuse of discretion here Finally, while
the Board does not approve the Administrative Law Judge's characteriza-
tion of himself or other Administrative Law Judge as members of a "new
breed," the term is not in and of itself invidious nor does it suggest that his
findings and conclusions are other than objective The Board draws no
distinction among its Administrative Law Judges and requires all of them
to comply with the Board's Rules and Regulations in conducting hearings
in the same orderly and judicious manner
2 Chairman Miller would find that the discharge of economic striker Larry
Greene violated Sec 8(a)(1) of the Act regardless of Respondent's motiva-
tion Therefore, we would find it unnecessary to decide whether the dis-
charge also violated Sec 8(a)(3) While he does not condone Greene's
misconduct (i e , pulling a cigar from Foreman Cunningham's mouth while
the latter was behind the wheel of a company truck which was stopped by
a traffic light), he finds that it did not endanger Cunningham or constitute
165
spondent did not so violate the Act by discharging
economic striker Callen. The facts and circumstances
surrounding these discharges, as found by the Adminis-
trative Law Judge, are fully supported by the record.
The Administrative Law Judge also found that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
discharging economic striker Joseph Campbell, al-
legedly for misconduct engaged in by him while away
from the regular picket line at Respondent's premises.
The Administrative Law Judge concluded that Re-
spondent's assigned reason for the discharge-the al-
leged misconduct-was pretextual, intended to conceal
the true motive for the firing, namely, Campbell's par-
ticipation in union activities; i.e., the strike. Alterna-
tively, he found that Campbell's alleged misconduct,
even if it occurred, was not sufficiently serious to justify
his discharge. Finally, and also alternatively, he con-
cluded on the basis of his credibility determinations
that the alleged misconduct did not, in fact, occur.
Respondent contends that the discharge of Campbell
did not violate Section 8(a)(3) and (1) because at the
time and place of the incident involved Campbell was
not engaged in picketing or other strike activities.
Therefore, Respondent argues, since the alleged mis-
conduct of Campbell did not occur "in the course of
protected activity," the principle of Burnup & Sims,
Inc.,3 is not applicable and the discharge must be
judged by the traditional "unlawful motivation" test.
Alternatively, Respondent contends that Campbell's
misconduct was of such serious nature as to warrant his
discharge.
Although we do not adopt the Administrative Law
Judge's pretext theory, we find no merit in Respon-
dent's primary contention and do not pass upon its
alternative contention! Instead, we find that the cir-
cumstances surrounding Campbell's activities on the
early morning of October 21, 1973,5 in effect re-
created the traditional picket line situation and that,
therefore, the standards enunciated in Burn up & Sims,
supra, are applicable. Based upon such standards, we
find that Respondent's discharge of Campbell violated
Section 8(a)(1) of the Act. In view of that finding, we
need not reach the issues raised under Section
8(a)(3).'
The undisputed facts, as established in the record
and set forth in the Administrative Law Judge's Deci-
sion, are as follows: Prior to his discharge on October
a menace of other vehicles on the road Cf Capital Rubber & Specialty Co,
Inc, 201 NLRB 715 (1973)
3 379 U S 21 (1964)
4 Because we accept the findings of the Administrative Law Judge, based
upon his credibility resolutions, that Campbell did not in fact engage in the
misconduct attributed to him by Respondent's witnesses, we deem it un-
necessary to pass upon his alternative finding that the misconduct, even if
it occurred, was not sufficiently serious to justify discharge
5 Unless otherwise indicated, all dates are in 1973
6 Burnup & Sims, Inc, supra at 22
215 NLRB No. 13
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
31, 1973, Campbell had been employed by Respondent
for more than 16 years. He was classified as a "lineman
A" which is the top skilled classification in the unit,
ranking below only foremen. Campbell's normal job
duties included, inter alia, repairing broken powerlines.
On July 1, Campbell went out on strike with the other
unit employees in support of the Union's bargaining
demands against Respondent. A picket line was estab-
lished at Respondent's Bellaire and East Liverpool of-
fices, as well as at other locations where Respondent
conducted its normal business. There was also roving
picketing from place to place by strikers in automo-
biles. During the strike, which lasted until December 4,
Respondent continued to operate with replacements, as
well as with supervisory and other nonunit personnel.
On October 21, Campbell, who had been engaged in
picketing at the Bellaire office, was at his home in the
early morning hours when the electricity in his house
and neighborhood went off., After discovering the
source of the power failure (a truck had collided with
a power pole severing the pole in half), Campbell con-
tacted a union picket line captain named Larry Camp-
bell. Both decided to go to'the source of the power
failure and picket whatever activities Respondent's
strike replacements might engage in to restore power.
They put their picket signs in Joseph Campbell's car
and, as he testified, Larry Campbell also went along to
make sure the picketing was conducted in a lawful
manner . The Campbells, who are not related to each
other, arrived at the scene before Respondent's truck
arrived, and did not picket. Instead, they and a third
striker, Gabriel Basbarre, began talking to the people
who were milling about the scene of the collision, tell-
ing them that but for the strike the damage would have
been repaired. Within a short period, Respondent's
truck arrived carrying two supervisors who had been
dispatched by Respondent to do the repairs: Alvin E.
Mayer, a working foreman, and Kenneth Dawson, an
area foreman. Joseph Campbell walked over to the
truck as the two foremen alighted and engaged Mayer
in a conversation about how long the power would be
off. When Mayer replied that it wouldn't be off for
long, Campbell said that his nerves were getting pretty
thin. Mayer retorted that his nerves, too, were wearing
thin and asked Campbell if he had seen a recent news-
paper account of vandalism to his (Mayer's) home and
car and to a company truck by unidentified persons.
Campbell replied that he had not seen that news item.
The testimony as to what happened immediately after
this exchange was in sharp conflict, with Respondent's
witnesses testifying that Campbell threw Mayer to the
ground, and General Counsel's witnesses testifying that
Mayer turned abruptly, collided with Campbell, lost
his footing and fell to the ground. Thereafter, and on
the strength of Dawson's and Mayer's versions of the
events, Respondent, by letter dated October 31, noti-
fied Campbell that he was being discharged for his "act
of unprovoked aggression against a supervisor . . .."
The principles of Burnup & Sims, supra, and its
progeny,' as Respondent correctly points out, are in-
tended to protect employees who are discharged for
misconduct arising out of a protected activity, despite
the employer's good faith, when it is shown that the
misconduct never occurred. There the Supreme Court
approved the Board's repeated holdings that, despite
the absence of union animus, an employer violates Sec-
tion 8(a)(1) of the Act if he discharges an employee for
suspected misconduct emanating from protected activi-
ties and it is later shown that the misconduct did not
in fact occur. One of the most recent Board pronounce-
ments of the governing principles involved here appears
in Huss & Schlieper Company, supra, the relevant por-
tions of which are quoted in the attached Decision.
Respondent argues, however, that these principles
are inapplicable to the present situation because the
asserted misconduct took place at a time and place
removed from the picket line and, hence, did not ema-
nate from a protected activity. We disagree. Although
no picketing actually took place at the scene of the
power-line breakdown, the circumstances under which
the disputed incident occurred clearly involved con-
certed activity intended to support the on going strike.
Thus, a striking line repairman, Campbell, and a union
picket line captain went to the scene of the power fail-
ure, anticipating that strike replacements would arrive
to repair the broken line. They came fully prepared to
picket, having brought their picket signs to protest the
performance of their work by strike replacements and
to appeal to such replacements to support the strike
effort. When the Campbells arrived at the scene, Re-
spondent's repair truck and crew had not yet arrived
and, hence, there was no reason to start picketing then.
Instead, the employees engaged in conversation with
members of the public, presenting their views as to why
the damage was not being repaired-which conversa-
tions were in themselves a form of concerted activity
designed to elicit public sympathy for the strikers'
cause. When the truck finally arrived, bearing two
supervisors who had been dispatched to repair the
broken line, Campbell engaged Supervisor Mayer in a
conversation the substance of which again related di-
rectly to the overall strike situation. It was at this time
that the disputed incident or alleged misconduct oc-
curred. These facts, in our view, amply demonstrate
that, although the employees did not use their picket
signs , they were nevertheless engaging in protected
concerted activity in support of the strike. We therefore
7 J. H. Rutter-Rex Manufacturing Company, Inc., 158 NLRB 1414, 1418
(1966), Terry Coach Industries, Inc, 166 NLRB 560, 563 ( 1967), and cases
cited therein, Huss & Schlieper Company, 194 NLRB 572, 577 (1971)
OHIO POWER COMPANY
find that the alleged misconduct by Campbell occurred
in the course of protected concerted activity, and that,
therefore, the principles of Burnup & Sims are applica-
ble. And, as we adopt the Administrative Law Judge's
findings, based upon his credibility resolutions, that
Campbell had not in fact engaged in the misconduct for
which Respondent assertedly discharged him, we con-
clude that Respondent's discharge of Campbell vi-
olated Section 8(a)(1) of the Act.'
The General Counsel excepted to the failure of the
Administrative Law Judge to recommend a broad
remedial order. We find merit to that exception because
of the seriousness of the violations involved. In our
view, the ultimate penalty of discharge, as retaliation
for employees exercising their Section 7 rights, strikes
at the very heart of the Act. From such conduct we find
it reasonable to infer that similar interference with
those rights likely will recur. Therefore, we deem it
appropriate to issue a broad remedial order in this case.
N.L.R.B. v. Entwistle Manufacturing Company, 120
F.2d 532, 536 (C.A: 4, 1941).
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, an amended, the National Labor Relations
Board hereby orders that the Respondent, Ohio Power
Company, Steubenville, Ohio, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminat-
ing against, interfering with, restraining, or coercing
employees because they have engaged in the protected
activity of assisting Local 696, International Brother-
hood of Electrical Workers.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of rights gua-
ranteed them by Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Offer Larry J. Greene and Joseph F. Campbell
immediate reinstatement to their former positions or, if
those jobs no longer exist, to substantially equivalent
positions, without loss of seniority or other rights or
privileges, discharging if necessary any replacements
for these employees, and make them whole for any loss
of earnings they may have suffered by reason of Re-
spondent's unlawful conduct, in accordance with the
provisions of the section of the Administrative Law
Judge's Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
8 Member Fanning, in agreement with the Administrative Law Judge,
would find that the discharge of Campbell also violated Sec 8 (a)(3) of the
Act.
167
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its various locations within the Steuben-
ville, Ohio, district, copies of the attached notice
marked "Appendix."9 Copies of said notice, on forms
provided by the Regional Director for Region 8, after
being duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices 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 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
9 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against, interfere with, restrain, or coerce any em-
ployee because he engages in the protected con-
certed activity of assisting Local 696, Interna-
tional Brotherhood of Electrical Workers.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the right to self-organization; to bargain collec-
tively through representatives of their own choos-
ing; to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid
or protection; or to refrain from any and all such
activities.
WE WILL offer Larry J. Greene and Joseph F.
Campbell full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, discharg-
ing if necessary any replacements, and WE WILL
make them whole for any earnings lost as a result
of our unlawful conduct against them, plus inter-
est as set forth in the Decision of the Administra-
tive Law Judge.
OHIO POWER COMPANY
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This pro-
ceeding tried before me on May 21 and 22, 1974, at Steuben-
ville, Ohio, involves consolidated complaints,' which allege
respectively that Respondent violated Section 8(a)(3) and (1)
of the Act, by discharging and refusing to reinstate Larry J.
Greene, Larry C. Callen, and Joseph Campbell, because of
their participation in an economic strike. Respondent duly
filed answers to the respective complaints, denying that any
unfair labor practices were committed. After close of the
hearing, the General Counsel, the Charging Parties, and the
Respondent filed briefs.
Upon the entire record, including my observation of the
demeanor of the witnesses while testifying, and after consid-
eration of the post-hearing briefs, I hereby make the follow-
ing:
FINDINGS OF FACT
1. THE EMPLOYER INVOLVED
Respondent is an Ohio corporation, with its principal of-
fice and place of business located in Canton, Ohio, from
which it is engaged as an electrical public utility company
producing , generating , transmitting , and furnishing electrical
power for public consumption. In the course of and from said
operations , Respondent derives annual gross revenues ex-
ceeding $500,000 and receives, at its various Ohio facilities,
goods and products valued in excess of $50,000 from sources
located outside the State of Ohio.
The complaints allege, the answers admit, and I find that
Respondent is an employer within the meaning of Section
2(2) of the Act, affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION
The complaints allege, the answers admit, and I find that
Respondent Local 696, International Brotherhood of Electri-
cal Workers, at all times material, is and has been a labor
organization within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background, and Controlling Principles
On July 1, 1973, a strike commenced against Respondent's
Steubenville Division among employees in the collective-bar-
gaining unit represented by IBEW, Local 696. The strike
ended on December 4, 1973, and at all times was of an eco-
nomic nature. Respondent, during the course thereof, con-
tinued operations apparently utilizing nonunit personnel and
' The complaint in Case 8-CA-8164 issued on March 15 , 1974, on a
charge filed on February 6, 1974. The complaint in Case 8 -CA-8253 issued
on March 28 , 1974, upon a charge filed on March 22, 1974 The order
consolidating cases and complaint in Case 8 -CA-8276 issued on April 9,
1974, on a charge filed on March 29, 1974.
replacements. Joseph Campbell, Larry C. Callen, and Larry
J. Greene were strikers, who in the course of the strike, were
discharged following confrontations each had with individu-
als who were engaged in the performance of struck work. As
indicated, it is the lawfulness of those discharges that is in
issue here.
The principles governing the right of employers to invoke
the penalty of discharge with respect to misconduct by eco-
nomic strikers are the subject of settled authority, and are
succinctly stated in the quotation set forth below:
It is, of course, recognized that an employer has the
burden of proving that strikers engaged in conduct bar-
ring them from a return to employment. An employer's
honest belief that strikers did engage in picket line mis-
conduct of a serious nature is not a defense if it affirma-
tively appears that such misconduct did not, in fact,
occur. See N.L.R.B. v. Burn up & Sims, Inc., 379 U.S. 21
and J. H. Rutter-Rex Manufacturing Company, Inc., 158
NLRB 1414, 1418. The question, then, is whether the
... conduct of [strikers] was of a nature requiring that
they be disqualified for reemployment under the prece-
dents. As has been held, the applicable test in determin-
ing whether strikers accused of misconduct should be
returned to work "is whether the misconduct 'is so vio-
lent or of such serious character as to render the em-
ployees unfit for further service,' or whether it merely
constitutes 'a trival rough incident' occurring in 'a mo-
ment of animal exuberance.' This distinction has been
drawn on the theory that some types of 'impulsive
behavior,' being 'normal outgrowths of the intense feel-
ings developed in picket lines,' 'must have been within
the contemplation of Congress when it provided' for the
right to strike."'
With these principles in mind, I turn to consideration of
the factual issues underlying the separate circumstances sur-
rounding the discharges of each of the alleged discriminatees.
B. The Discharges
1. Joseph Campbell
Joseph Campbell, prior to his discharge had been employed
by the Company for more than 16 years. He was classified as
a "lineman A" which is the top skilled unit classification,
only ranking below those having the status of foremen. Dur-
ing his employment, Campbell at no time received any form
of reprimand and his uncontradicted testimony reveals that
shortly before the strike he was offered a position as a work-
ing foreman.
Campbell was notified of his termination by letter dated
October 31, 1973, over the signature of Clayton H. Wright,
the Respondent's Steubenville division manager, which
stated as follows:
2 Huss & Schheper Co, 194 NLRB 572, 577 (1971) Since the strike
involved here was not shown' to have been caused or prolonged by unfair
labor practices , the more stringent standards protecting unfair labor practice
strikers against discharges, as Respondent points out in its brief, are inappos-
ite here Cf. Coronet Casuals, inc., 207 NLRB 304 (1973), and cases cited
at fn 15 thereof.
OHIO POWER COMPANY
This will notify you that you are discharged because of
your conduct on October 21, 1973.
Your act of unprovoked aggression against a supervisor
cannot be tolerated, therefore, your employment with
the Ohio Power Company is terminated effective
Wednesday, October 31, 1973.
The facts relative to Campbell's conduct on October 21,
show that in the early morning hours, a truck collided with
a power pole, severing it in half at a location just outside the
corporate limits of Bellaire, Ohio. As a result, the power was
shut off in the vicinity. Alvin E. Mayer, a working foreman,
and Kenneth Dawson, an area foreman, were assigned by
Respondent to cover this trouble call. The power failure was
in Joe Campbell's neighborhood, and after Campbell discov-
ered its source and contacted a fellow striker, Larry Camp-
bell, both went to the scene of the accident.3 When they ar-
rived the Ohio Power truck was still in route. The Campbells
and a third striker, Gabriel Gasbarre, began talking to the
people who were milling about the scene. When the Ohio
Power truck arrived, Joseph Campbell apparently left the
other strikers and headed towards the truck. Mayer and
Dawson got out of the truck. Campbell then asked Dawson
the identity of the dispatcher on duty that night, indicating
that the dispatcher had given him a hard time. Dawson said
he did not know and proceeded to the other side of the truck.
Campbell and Mayer, with Dawson out of earshot, then be-
gan a conversation. Campbell asked Mayer whether the
power would be off very long, to which Mayer replied he
didn't think so. Campbell then said my nerves are getting
pretty thin. Mayer said you know mine are too and asked
Campbell whether he noticed a newspaper article the other
night.' Campbell denied having seen the article. This ended
the dialogue between the two and what happened next is the
subject of a sharp conflict in testimony. It is undisputed
however, that Mayer wound up on the ground. The crucial
question is how he got there. Dawson and Mayer testified
that Campbell had placed his arms around Mayer, from
Mayer's rear, in bearhug style, and shook him in a way that
Dawson described as "not violent;" but which resulted in
Mayer being thrown to the ground. This is contradicted by
witnesses for the General Counsel, who testified that Joseph
Campbell was leaning against the front of the truck and that
Mayer veered towards Campbell sharply, and that when
Campbell attempted to move away from the truck the two
bumped at chest level with Mayer losing his footing and
falling backwards onto the roadway. After Mayer regained
his feet, Dawson advised Joseph Campbell that he would
report the incident , and then Dawson and Campbell pro-
ceeded to complete their duties with respect to the downed
power pole.
At the time of this incident, there was a State Highway
Patrol cruiser and a Bellaire police cruiser in the vicinity,
with at least three law enforcement officers present at the
scene of the accident. I am satisfied based on the testimony
3 The testimony of Joseph Campbell and Larry Campbell, who are not
related, indicates that they went to the scene with the intention of picketing
and in order to determine the cause of the power failure Because of the
circumstances that later developed, however, they elected not to picket
The newspaper article referred to by Mayer concerned acts of vandalism
directed towards Mayer 's home, a power truck and his car
169
of all witnesses concerning the lighting available from the
police cruisers, the Ohio Power Truck, and other automo-
biles, that the entire area was reasonably well lit. Mayer
testified that he had known Joseph Campbell for about 16
years and described their relationship, in the past, as one of
friendship. He also indicated that in the conversation that
preceded his going to the ground, Campbell spoke in a nor-
mal voice, that Campbell had made no threats, and that
Mayer had no fear at all. According to Dawson, though he
returned to the scene, seeing Campbell's arms around Mayer,
with Mayer being thrown down, Dawson relates that Camp-
bell did not have to be restrained. Dawson also testified that
Joe Campbell did not appear to be angry.
The decision to discharge Campbell was made by Clayton
H. Wright, after clearing this recommendation with the com-
pany's personnel director at company headquarters in Can-
ton, Ohio. This recommendation, according to Wright, was
based upon a "... personal discussion with both Mr. Mayer
and with Mr. Dawson in regard to the activities which oc-
curred on October 21." According to Wright, he acted on the
same evidence that was presented by Mayer and Dawson in
the instant hearing. No effort was made by Wright to contact
Joseph Campbell, any other eye witnesses to the incident, or
to pursue the matter beyond Mayer and Dawson. This despite
the fact that the accounts of Dawson and Mayer, on their
face, attribute highly improbable conduct to Campbell and,
at the least, arouse curiosity. According to the sense of their
testimony Campbell was neither angry nor violent either
before or after Mayer met the ground and yet in the presence
of witnesses, including police officers, they seemingly testify
that Campbell engaged in an unprovoked attack on Mayer.
Wright faced with this curious state of events, nonetheless
was only concerned with the question of provocation. He
states that he questioned them as to whether there was any
provocation, and that he had no reason to disbelieve their
denials. In this regard it should be apparent that Dawson was
incapable of throwing any light on this question, since he
concededly was not a witness to the events preceding Camp-
bell's alleged assault on Mayer. Thus, the only evidence of
provocation would have to come from Mayer, the accusing
party, and one who, if there in fact had been provocation
would I assume, be expected by Wright to come forward and
admit his responsibility for the entire incident. This assump-
tion is not without basis for Wright was satisfied and claims
to have had no reason to disbelieve Mayer's response. I can
hardly accept that if Campbell's innocence were a real consid-
eration, Wright, whose own testimony discloses a reluctance
on his part to invoke discipline in the form of discharge,
would have terminated an employee with a good work record
over a period spanning some 16 years on the basis of such a
limited investigation. Indeed ordinary experience immedi-
ately suggests that encounters of the type described by Mayer
and Dawson, which erupt quickly and end as fast, are fre-
quently the subject of varying perspectives, often depending
on the interests of witnesses to such an incident. Fair judg-
ment as to what actually occurred could hardly be predicated
on the cursory investigation conducted by Wright. I am con-
vinced, from observing Wright and from a consideration of
the entirety of his testimony, that he was well aware of the
procedures to be followed, if in good faith, he was interested
in getting to the bottom of this matter. I am satisfied that the
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner in which he proceeded indicates a lack of concern for
the innocence of Campbell, but an interest in ferreting out
whatever facts were available which would tend to create a
color of legitimacy to the striker 's discharge . In the circum-
stances I find that the investigation conducted by Wright, in
the face of the facts reported to him, was neither reasonable,
nor in good faith and it is my view that the evidence gained
therefrom fails to furnish a reasonable basis for believing that
the misconduct attributed to Joseph Campbell did in fact
occur.'
In any event , I am not satisfied that Respondent has
demonstrated that Campbell' s conduct was sufficiently seri-
ous to justify the discharge in question . Even accepting, ar-
guendo, Dawson and Mayer's version of the critical encoun-
ter, Campbell 's conduct was obviously limited to a
spontaneous outburst which did not interfere with the work
of the two foremen, did not result in mentionable injury to
Mayer,' was not shown to have occurred in a context of vio-
lence , and was an isolated incident not likely to trigger mis-
conduct on the part of fellow strikers . Against this back-
ground , considering the combined testimony of Dawson and
Mayer , that Campbell 's activities were neither fear inspiring,
nor violent , and undertaken without apparent anger, I find
that the alleged misconduct of Joseph Campbell falls within
that category of trivial and inconsequential scuffles which do
not deprive an employee of the protective mantle of the
Act.'
Finally , and also in the alternative , I find on the basis of
the credited testimony of Joseph Campbell, as corroborated
by fellow striker Larry Campbell , and Bellaire police officer,
Glen Warnock , that Joseph Campbell did not assault Mayer
and that Mayer 's falling on the ground was attributable to
other causes! I do so because not persuaded as to truthful-
ness of the accounts related by Mayer and Dawson. They
would have me believe that Campbell who impressed me as
mild-mannered and of temperate , stable disposition , without
provocation , and in the presence of witnesses , including law
enforcement officers, after a conversation in which Campbell
reflected no temperament , grabbed Mayer from the rear and
shook him , throwing him to the ground with Mayer landing
some 10 feet away from the point of confrontation on the rim
of the road . Mayer and Dawson impressed me as uneasy in
their role as witnesses against Campbell and the testimony of
both shifts from what appears to be an exaggeration of Camp-
bell's misconduct to what in other respects seems a mitigation
of Campbell 's role in the incident . The inability to assess
5 See , e g, Reidbord Bros. Co, 189 NLRB 158, 170 (1971), fn 54.
6 Mayer testified that he scraped his elbow and left middle finger as a
result of falling to the roadway No treatment was necessary and his ability
to work was not impaired
7 Buitoni Food Corp., 126 NLRB 767, 783 (1960), Huss & Schlieper
Company, 194 NLRB 572, 577 (1971); BeaverBros. Baking Co., Inc., d/b/a
American Beauty Baking Co., 171 NLRB 700, 719 (1968)
8 Much of the record herein is devoted to efforts by various counsel to
elicit testimony as to contradicted minor matters such as distances and the
location of various witnesses in relation to the Mayer-Campbell confronta-
tion These matters are subsidiary to the critical question herein; i e, the
cause of Mayer's failing to the ground; they too may be resolved only
through an assessment of conflicting testimony As such, they raise purely
collateral credibility issues which are of no aid in assessing the conflicting
testimony on the critical issue presented Their resolution would serve no
purpose other than to prolong the analysis and discussion of this phase of
the case.
which part of their testimony is truthful renders the entirety
of their story both improbable and unreliable.' Although
certain aspects of the accounts given by the General Coun-
sel's witnesses are not entirely free from doubt, I find, as the
more probable, considering the entire setting of the incident,
that Mayer went to the ground after having lost his footing,
following a collision with Campbell, of a type which hardly
could be described as a deliberate act of aggression. In credit-
ing Joseph Campbell and Larry Campbell in this regard, I
was particularly impressed with the corroborating testimony
of Police Officer Warnock. It is true that, like the Campbells,
he was a native of Bellaire, and knew Larry Campbell and
Gasbarre and had known of Joseph Campbell. I do not be-
lieve he officiously would have lied in Joseph Campbell's
behalf. Accordingly 1 find that Joseph Campbell did not en-
gage in the misconduct attributed to him.10
For all of the above reasons I find that Respondent dis-
charged economic striker Joseph Campbell in violation of
Section 8(a)(3) and (1) of the Act."
2. Larry C. Callen
Callen at the time of his discharge, was also a participant
in the economic strike against Respondent's Steubenville dis-
trict. He was initially hired on January 3, 1969. Prior to the
strike he was classified as "meter man B." His superiors;
namely, Donald E. Sayre, manager of the East Liverpool area
of the Steubenville Division, and Division Manager Wright,
concede that during his employment with Respondent,
Callen had an above average work record and was regarded
as a good employee.
Callen was discharged in consequence of an altercation
between himself and Roland Rice, which occurred on
November 8, 1973 Rice and Callen had been friends, prior
to this incident, for some 15 years. Rice was hired as a meter
reader and initially reported for work on October 12, 1973,
at the strike bound East Liverpool operation.
It is undisputed that on November 8, 1973, Rice, after
completing his last call for the day, was in route to his Ohio
Power automobile, when he was confronted by Callen. A
fight ensued, which resulted in injuries to Rice, calling for
medical treatment, including stitches which were necessary
to close a laceration on his ear.
Subsequently, by letter dated November 10, 1973, over the
signature of C. H. Wright, division manager, Callen was
notified as follows:
9 As indicated heretofore I am persuaded that the District was interested
in making an object lesson out of Campbell This may lend some explanation
for the shifting nature of the testimony of Mayer and Dawson My observa-
tion of Mayer and Dawson as well as the specifics of their testimony suggest
that, having initially reported the incident to the Company, they subse-
quently may well have been torn to conflict by virtue of their sense of loyalty
to the Company, yet on the other hand their displeasure with the severe
discipline ultimately meted out in Campbell's case
10 In assessing credibility, I have considered evidence adduced by Re-
spondent in an attempt to show that Joseph Campbell on the evening of
October 21, was subject to pressures which, perhaps, rendered him prone
to a loss of self-control From my observation of Joseph Campbell, and from
the description related by Dawson and Mayer of his composure both before
and after his collision with Mayer , I am not persuaded that, in the circum-
stance, these "pressures" would have triggered the type of impulsive assault
attributed to him by Respondent 's witnesses
II See N.L.R.B. v. Burnup and Sims, Inc., 379 U.S 21, 23 (1964)
OHIO POWER COMPANY
This will notify you that you are discharged because of
your conduct on November 8, 1973.
Your act of unprovoked aggression against an employee
of the Ohio Power Company cannot be tolerated, there-
fore, your employment with the Ohio Power Company
is terminated effective Friday, November 9, 1973.
Callen claims that he was prodded into the fight by Rice
and that his actions were in self-defense I find below that this
was not the case at all The circumstances leading to the
Callen-Rice altercation, as well as the sequence of events, and
what was said in the course of this confrontation are the
subject of conflicting testimony.
According to Rice, whose testimony I credit in toto, at the
end of the workday on November 8, as he was heading to-
wards his car, he saw Callen driving down the street. As
Callen's car neared Rice, Callen recognized Rice and Callen
gave him "the finger."12 Callen ignored this and kept walk-
ing towards his car. In the meantime Callen turned his car
around and parked on the opposite side of the street from
where Rice was walking. Callen got out of his car, ran across
the street, and stopped Rice, stating "do you know that you
are taking my job?" Callen accused Rice of giving him "the
finger." After Rice denied that he had done so, Callen pushed
him stating "go ahead and take a swing ." Rice at that time
told Callen that he didn't want to fight." Callen then
shoved him again and Rice turned to walk off in the direction
of his car. At that point Callen hit Rice on the back of the
head, forcing Rice against a nearby wall. While Rice was
backed up against the wall, Callen continued to hit him on
the head. Rice was in a crouched position at that time and
was swinging his meter book , " striking Callen in the legs
with it. Finally, while continuing to receive the blows of
Callen, Rice struck Callen on the head with the meter book.
With this, Callen turned away and started walking back to his
car stating "that ought to take care of you."
In accepting Rice's version of this incident, I discredit
Callen's testimony to the effect that (1) Rice gave Callen the
finger, (2) Callen only landed the first blow in reaction to
Rice's having raised the meter book as if to use it against
Callen, (3) Callen did not impede Rice in the latter's efforts
to return to his car, (4) Rice voluntarily delayed his-return
to his car, (5) Rice did or said anything during the incident
which indicated that Rice was prodding Callen into a fight,
and (6) that Rice made any statements indicating that he was
interested in anything but an avoidance of a fight. This credi-
bility resolution is based in part on my observation of Callen
and Rice while testifying and my decided impression there-
from that Rice was the more truthful witness. Rice's tes-
timony is also the more probable, for, certain undisputed
facts persuasively indicate that Callen was primed for trouble
when he approached Callen that day
Thus, Callen, concedes that in his 15 years of knowing
Rice, he regarded Rice as one who was not aggressive but sort
12 For reasons to be more fully stated later, I discredit Callen's testimony
that it was Rice and not Callen who made " the finger" gesture
13 Callen's own testimony reveals that , before any blows were struck, Rice
both asked to be left alone and told Callen that he didn't do anything
14 The meter book is a metal encasement in which the meter readers carry
the paper materials used in the performance of their work It is approxi-
mately 4 inches in width, 9 inches in length, and 1-1/2 inches in depth
171
of an introvert. Rice was 5' 6" tall, and weighed about 160
pounds. Callen was 5' 7" tall, but a husky 220 pounds. Rice
also had a crippled left arm which, due to an industrial acci-
dent in 1968, he could not bend at the elbow. Callen concedes
that he harbored a resentment towards people, like Rice, who
took jobs to perform work of the strikers. Indeed, consistent
with such resentment, Callen on at least two previous occa-
sions attempted to dissuade Rice from working for the Re-
spondent during the strike by resorting to what might be
described fairly as tactics of intimidation or harassment.
In this latter regard, Callen acknowledges that a few days
before Rice started working for the Respondent, he had a
conversation with Rice's brother. Callen at that time in-
formed Rice's brother that because of their friendship he
couldn't believe that Rice would take a job with Ohio Power.
He warned that people get hurt in a strike and went on to
state that if someone broke Rice's other arm and made book
ends out of him there was nothing he, Callen, could do about
it. Callen told Rice's brother to be sure and pass this on to
Rice.
In a second incident, occurring sometime in late October
after Rice began working for Respondent, as Rice was leaving
work, four strikers including Callen confronted him. The four
men proceeded to escort Rice as he walked to his car, with
two in the front and two to his rear. Rice went into a store
in an attempt to elude the strikers. Two of the men followed
him through the store and the other two went around the
store to the other door where Rice was intercepted. Then all
four resumed the tailing of Rice to his car, calling him names
such as "scab" and "son-of-a-bitch." When Rice arrived at
his car where his wife and mother were waiting, the men
apparently withdrew.15
Against the background, Callen would have me believe
that Rice would provoke him. Quite to the contrary, I cannot
even believe that under conditions existing on November 8,
that Rice would even idle with Callen. From my observation
of Rice it was not my impression that he was an aggressive
individual, and I certainly am afforded no basis for assuming
that he harbored any resentment towards Callen. Callen's
greater physical stature, the threatening expression made to
Rice's brother, and the other harassment Callen directed at
Rice, would not dispose Rice to any kind of confrontation
with Callen. On the other hand, the foregoing amply attests
to Callen's propensity for provocation.
Furthermore, Callen's activities immediately after the fight
are strongly indicative of his own sense of guilt concerning
that which had transpired. Thus according to Callen he re-
turned to his mother's house after the fight and was very
upset by what had happened. Therefore he returned to the
scene, to see if Rice had called the police. Upon arriving, he
saw Rice engaged in conversation with a police officer. After
Callen himself had a conversation with the officer, he decided
to go to the headquarters of Ohio Power in East Liverpool
According to Callen he did this because he realized his job
was in jeopardy; in Callen's words "Other people had gotten
fired for a lot less." At the offices of Ohio Power, he met with
Area Manager Sayre. Callen informed Sayre that he was
sorry that the incident had occurred and that he felt that it
15 Based on the credited , uncontradicted testimony of Rice
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
probably would mean his job.16 Callen during this meeting
also indicated that it wasn't his fault as Rice had given him
the finger.17 In the circumstances I am satisfied that Cal-
len's actions, as set forth above, following the fight, were
prompted by his own sense of responsibility for the serious
and violent encounter he had just had with Rice.
Based on the foregoing, specifically the credited testimony
of Roland Rice, I find that on November 8, 1973, Callen
provoked and then engaged in a violent attack upon nonstrik-
ing employee Rice and that such conduct was beyond the
protective ambit of the Act Accordingly Respondent in dis-
charging him for such misconduct did not violate Section
8(a)(3) and (1) of the Act.18
3. Larry J. Greene
Green was initially hired in May 1963 and at the time of
his discharge was in the top rated position of "lineman A."
He was a participant in the strike and at the time of his
discharge was the Union's Recording Secretary. Effective
August 17, 1973, Greene was terminated by letter over signa-
ture of C. H. Wright, which recited as follows:
This will notify you that you are discharged because of
your conduct on August 10, 1973.
Your act of unprovoked aggression against a supervisor
cannot be tolerated, therefore, your employment with
the Ohio Power Company is terminated effective Friday,
August 17, 1973.
The incident to which the above letter makes reference in-
volves an encounter between Greene and Line Foreman Ross
Lee Cunningham and Working Foreman Walt Williams It
is undisputed that Cunningham and Williams on August 10,
1973, departed from a worksite in a company truck and were
headed West on North Street. As the truck approached the
intersection of North and 4th Streets in Steubenville, strikers
Greene, Huff, and Robson were located on the Southeast
corner of that intersection. Because the traffic signal turned
red, Cunningham who was driving the truck stopped at that
intersection. The entire incident took place during the period
in which the truck was stopped by the red light. The events
opened with Greene, who was carrying a picket sign, shout-
ing in the direction of the truck: "don't you know we're on
strike?" Greene also made reference to the fact that Cunning-
ham and Williams were not wearing hard hats and were in
short sleeved shirts. In this regard, he asked "aren't you
working within the safety rules?" Following these remarks
Greene left the sidewalk and on a diagonal course from the
16 Based on the credited testimony of Sayre which is consistent with that
of Callen insofar as Callen acknowledges that he indicated his regret of the
incident Sayre's testimony as to Callen's expressed fear for his job is also
consistent with Callen's admitted purpose in going to the offices of Ohio
Power
17 Callen acknowledged that Sayre in no way at that time interfered with
his ability to present his side of the incident. Nonetheless, in that interview,
Callen did not inform Sayre that Rice had used the meter book in menacing
fashion.
19 As I find that Callen actually engaged in the misconduct on which the
discharge was based, my conclusion on the legitimacy of this discipline is
not altered by the fact that Wnght's decision in this regard was based solely
upon Rice's version of the incident. The nature of the investigation and
other facts in no event are adequate to support an inference that this un-
protected act of violence was seized on as a pretext to get nd of a striker
corner, crossed the two lanes between the curb and the West-
bound lane and grabbed a cigar from Cunningham's mouth
and threw it to the ground. In the process of grabbing the
cigar, it is asserted that Greene's hand brushed the face of
Cunningham. In reaction, Cunningham stated "this was
what I was waiting for." Cunningham then reached towards
the glove compartment for the purpose of securing a
camera19 to take pictures of the strikers. Williams suggested
that they move on and the light turned green at that point.
Cunningham drove off without getting the camera.
Immediately after this incident, Cunningham and Wil-
liams went to the offices of Ohio Power and reported their
versions of what had happened to Clayton Wright. According
to Clayton Wright he later decided to discharge Greene be-
cause of the potential for danger created by Greene's action
and also because he did not feel that supervisors should be
exposed to such abuse. Furthermore Wright indicated that he
saw a need for positive action in the interest of eliminating a
recurrence of such conduct in the future.
I find that Greene's activities on August 10, which are here
in issue , were limited to what is set. forth above. I discredit
Cunningham's testimony, as corroborated by Williams, to the
effect that before the cigar was removed from his mouth,
Greene, gesturing towards Cunningham, made a statement
"we're planning a party for you." I also discredit his tes-
timony that he did not see Greene approaching him to take
the cigar, and that he was surprised or startled by Greene's
having done so. I was not impressed with Cunningham's
demeanor. His testimony was evasive and showed a tendency
to fence with his questioners. Cunningham's possession of a
camera for use against the strikers, and his remark to the
effect that the cigar incident was all he needed, not only
suggest his hostility towards the strikers but also reflects a
predisposition to make a case against one or more of them.
Indeed, in his zeal to get Greene, Cunningham admits to the
fact that he reported to company officials that Greene in
removing the cigar from his mouth, "hit" him. This was
plainly not the case, and demonstrates that Cunningham was
not above serious exaggeration in vindicating his hostility
towards the strikers. Aside from my distrust of Cunning-
ham's demeanor and his apparent bias I think it entirely
unlikely that he would not have seen Greene approach him
to grab the cigar. Considering the short time interval between
this act and Cunningham's observation of Greene while he
was making certain statements and gestures with the picket
signs , I doubt that Cunningham would have shifted his atten-
tion to the traffic signal with such a degree of concentration
that he would not have noticed Greene's movements toward
him along a diagonal line within the scope of Cunningham's
normal vision. I regard it as entirely improbable that Cun-
ningham would have indulged in a fixation upon the traffic
light, which would interfere with his observation of the strik-
ers, where Cunningham himself, had gone through the trou-
ble of carrying a camera for the purpose of developing evi-
dence which could be used against strikers. It is true that
Cunningham's testimony with respect to the implied threat
19 Cunningham during the strike carried a camera in his glove compart-
ment. It is plain from his testimony that he did so for the purpose of using
it to gain evidence against strikers He conceded that he decided to go for
the camera because he felt that with this evidence the Company might get
an injunction against the strikers.
OHIO POWER COMPANY
attributed to Greene was corroborated by Williams.
Nonetheless, I find the testimony of Huff and Robson, who
are presently employed by Respondent, to the effect that they
heard no such statement, as being the more reliable. Both
Huff and Robson at times when Greene is alleged to have
made that statement, were located more proximate to Greene
than Williams, who was seated on the passenger seat at the
far side of the truck, probably some 20 feet distant from
Greene.20
Based,on the foregoing I find that Respondent discharged
Greene on the basis of an exaggerated account of Greene's
conduct on August 10. I find that Greene's activities were
limited to his approaching Cunningham and lifting the cigar
out of his mouth, then throwing it to the ground, while possi-
bly brushing Cunningham's face gently and as an incident to
the removal to the cigar from Cunningham's mouth. I cannot
agree with Respondent that, on this record, it can be found
that Greene's behavior created a safety hazard, potentially
jeopardizing either company equipment or personnel. It was
a single, isolated, expression and though, inconsequential, fits
the category of outbursts to which many strikers are prone
when confronted with the impassioned feelings inherent in
strike action. To find that statutory protection is removed by
virtue of such misconduct would clash with the right to strike
as guaranteed by Section 13 of the Act. In sum, I find that
the alleged misconduct of Larry Greene represented no more
than a minor brush with a supervisor insufficient to remove
the striker from statutory protection. Accordingly I find that
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging Larry Greene.
20 The truck was in the westbound lane which was the third lane away
from the sidewalk on which the strikers were standing Williams testified
that Greene when he made the alleged statement was off the curb about 15
feet distance from the truck The possibility that Williams might have heard
such a statement, if it in fact were made, is not enhanced by the noise from
the truck's motor, which was running , and that from passing traffic I also
note that Williams, in contrast with Cunningham, assumed a more passive
stance with respect to the strikers, and that it is quite possible that Greene's
testimony was accurate insofar as he related that Williams seemed to be
looking down and avoiding eye contact with Greene I credit Greene and
find this to have been the case, thereby contributing further to the improba-
bility of Williams' testimony in corroboration of Cunningham
CONCLUSIONS OF LAW
173
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging economic strikers Larry J. Greene and
Joseph F . Campbell, Respondent violated Section 8(a)(3) and
(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act
5. Respondent did not violate the Act by discharging eco-
nomic striker Larry C. Callen.
THE REMEDY
It having been found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act, it will be recommended that the Respondent cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that Respondent unlawfully dis-
charged Larry J. Greene and Joseph F. Campbell, it will be
recommended that Respondent offer each of these employees
immediate reinstatement to his former position, or if such job
no longer exists, to a substantially equivalent position, with-
out loss of seniority or other rights or privileges, discharging
if necessary any replacements hired, and make each of these
employees whole for any loss of earnings they may have
suffered by payment to each of them a sum of money equal
to the amount he normally would have earned from the date
of an unconditional application for reemployment made on
behalf of these employees or strikers generally to the date of
Respondent's offer of reinstatement, in accordance with the
Board's formula set forth in F W.- Woolworth Company, 90
NLRB 289 (1950), with interest thereon at the rate of 6
percent per annum as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
[Recommended Order omitted from publication.]