Ohio Power Co.

National Labor Relations Board - Board Decisions

Jan 29, 1975

216 N.L.R.B. 348 (N.L.R.B. 1975)

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Power Company and Utility Workers Union of
America, AFL-CIO, Local No. 116. Case 8-CA-
8091
January 29, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND KENNEDY
On August 20, 1974, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, the Charging
Party and General Counsel filed exceptions and
supporting briefs, and Respondent filed an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
For reasons stated by the Administrative Law
Judge, we find that Respondent's discharge of
Robert Gibson, James Wood, and Gary Alvarez was
not violative of Section 8(a)(3) or (1) of the Act.
Further, although we agree with the Administrative
Law Judge's finding that Respondent's discharge of
David Long and John Beckley was not violative of
Section 8(a)(3) or (1), we disagree with her conclu-
sion that by blocking Respondent's line truck, these
striking employees had already taken themselves
outside the area of protected activities, thereby
obviating the determination of whether their conduct
was serious -enough to justify the discharge.
The facts are detailed in the Administrative Law
Judge's Decision. Briefly, Respondent's Canton,
Ohio, employees engaged in an economic strike from
July 1 to December 17, 1973.1 Among the employees
on strike were Long and Beckley. On August 6, six or
seven strikers including Long and Beckley set up a
picket line across a driveway at a site where
Respondent was attempting to install an electric line
to a new home. The strikers obtained the consent of
the owners of the adjacent property. Admittedly, the
primary purpose of the picketing was to block
Respondent's line truck, thereby preventing comple-
tion of the installation work.
Later that day, as Foreman Welsh was taking
pictures of the pickets, Long told him, "either you
put the God damn camera away, or I am going to
All dates herein are 1973.
s This is according to Long 's testimony
216 NLRB No. 70
shove it down your throat." Welsh proceeded to put
the camera away. Long then turned to Respondent's
area manager, Wolfe, and told him to "get in his God
damn car and get out of there" or Long was "going
to shove him in the gas tank." 2
The next morning , August 7, a larger group of
strikers returned to the site , set up a picket line, and
blocked Respondent's truck. Later in the day,
Foreman Hughes began taking pictures and, accord-
ing to Hughes' testimony, Long shouted at him,
"Don't take any more pictures or I will break your
God damned neck," and Long, "partly running"
toward Hughes, said, "You will eat that God damned
camera." Long added, "If you want trouble, I can get
some help right away, quick."3 Wolfe then began
taking pictures and Long shouted the same thing to
him. Wolfe continued to take pictures and Beckley
picked up a broken 2- by 3 1/2-inch piece of tile from
the driveway and threw it at Wolfe. It landed about
10 to 15 feet from Wolfe.4
Division Manager Powell testified that he made the
decision to terminate Long and Beckley. Powell's
discharge letter to Long, dated August 17, stated:
This will notify you that you are discharged
because of your conduct on August 6 and 7, 1973.
Your use of abusive, threatening, and profane
language against other employees of the Compa-
ny, and your intimidation of a supervisor cannot
be tolerated. Your employment with Ohio Power
Company therefore is terminated effective Friday,
August 7, 1973.
Powell's letter to Beckley dated August 16, 1973,
stated:
This will notify you that you are discharged
because of your conduct on August 7, 1973.
Your act of unprovoked aggression against
your supervisor could have resulted in serious
injury to that employee. This type of conduct
cannot be tolerated and therefore your employ-
ment with Ohio Power Company is terminated
effective Friday, August 17, 1973.
The Administrative Law Judge found that the
group of strikers of which Long and Beckley were a
part effectively took possession of Respondent's
property, and thus Long and Beckley forfeited the
protection afforded by the Act to them as strikers,
without applying the serious-minor standard of
judging their behavior. We disagree. It is well settled
that a striking employee may disqualify himself for
reinstatement by engaging in serious acts of miscon-
duct during a strike, but that every act of impropriety
3 Hughes ' version of the incident was not denied by Long.
4 The above is based on the credited testimony of Wolfe and Hughes.
OHIO POWER COMPANY 349
on the part of a striking employee does not
automatically deprive the employee of the protection
of the National Labor Relations Act .5
It is clear that Long and Beckley participated in a
picket line that effectively blocked Respondent's line
truck, and, although seizure of company property
may deprive a striker of the Act's protection,6 we
need not decide that issue herein . Although Re-
spondent's personnel manager , Powell , testified that
the blocking of the line truck was a contributing
factor in the discharge decision , the discharge letters
from Powell belie that assertion , as does the
testimony of Area Manager Wolfe, who was most
directly involved in the incident.
However, notwithstanding the above, we find that
Respondent had just cause for discharging Long and
Beckley. Long's threats to Supervisors Welsh, Wolfe,
and Hughes, as well as his statement that he could
get help quickly if Respondent wanted trouble, were
plainly threats of personal physical violence and were
intended by Long to be so. Similarly, Beckley's
throwing of a large piece of tile at Wolfe was an overt
act of violence, particularly since it was done in
conjunction with Long's last threat. In our view, such
conduct clearly justified Respondent's discharge of
Long and Beckley.?
Accordingly, in agreement with the Administrative
Law Judge, we find that Respondent did not violate
Section 8(aX3) or (1) of the Act by discharging Long
and Beckley for their misconduct during the strike.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is an Ohio corporation principally
located in Canton , Ohio, where it is engaged in business as
an electrical utility . The Respondent annually receives
goods valued in excess of $50,000 directly from points
outside Ohio , and has an annual gross volume of business
in excess of $500 ,000. The Respondent admits and I
conclude that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Respondent admits, and I conclude, that the
Charging Party Union is a labor organization as defined in
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Canton employees of the Respondent engaged in an
economic strike from July 1 to December 17, 1973. All five
employees involved in this proceeding were strikers. They
were discharged in the course of three separate incidents
which occurred during the strike. The Respondent con-
tends they were discharged because they engaged in
misconduct. The General Counsel contends that Gibson,
Wood, and Alvarez did not engage in the misconduct of
which they were accused, that the so-called misconduct of
Beckley and Long was not serious enough to justify the
discharge of strikers , and that the Respondent used the
alleged misconduct as an excuse to rid itself of these
employees because they supported the strike. The facts
surrounding the three incidents are as follows.
Coronet Casuals, Inc., 207 NLRB 304 (1973).
e N.L.R.B. v. Fansteel Metallurgical Corp., 306 U .S. 240 ( 1939).
7 E.g., Pepsi Cola Bottling Company of Lumberton, Inc., 203 NLRB 183
( 1973); Alabaster Lime Company, Inc., 194 NLRB 1116 (1972).
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON , Administrative Law Judge:
This case was heard at Canton , Ohio, June 4 and 5, 1974.
The charge was filed January 2, and served on the
Respondent January 4, 1974. The complaint was issued
April 22, 1974.
The issues are whether or not the Respondent 's discharge
of five economic strikers during August and September
1973 constituted violations of Section 8(a)(l) and (3) of the
National Labor Relations Act, as amended. For the
reasons fully explained below, I conclude that the
complaint should be dismissed.
B. Discharge of Gary Alvarez on August 7, 1973
Gary Alvarez , a dark-complexioned young man with
long, straight, black hair and mustache , was vice president
of the Union and a member of the negotiating committee
during the strike.
Mary Ellen Staley, a purchasing department clerk in the
Respondent 's Canton general offices , testified as follows:
A few minutes before 1 p.m. on August 1, 1973 , she was
sitting at a desk in front of a window facing down over
Third Street. A venetian blind with slats 2 inches apart and
wide open hung in the window. Staley observed a man with
a lot of black hair lean out of the right rear window of a
dark-colored Cadillac about 20 feet away in the street
below and move his arm ; and immediately thereafter heard
a loud cracking noise . Staley left her office and went
outside and saw that a decorative glass panel next to her
office window had been broken . When Staley reentered the
building, a personnel office employee and the police, who
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had arrived , asked her if she would give a statement and
she agreed to do so.
Staley and Personnel Manager Johnson , who accompa-
nied her to the police station a short time later , testified
that Staley identified Alvarez, whom she had not previous-
ly known, without hesitation in a lineup of three or four
men.
Staley denied being aware , until after these events, that
the Respondent had offered a $35,000 reward for informa-
tion on vandalism.
Based on the above information supplied by Staley and
Johnson, and without any direct contact with Alvarez,
Division Manager J . L. Powell discharged Alvarez by letter
effective August 7, 1973, "because of your conduct August
1, 1973. Your deliberate actions destroyed Company
property and could have resulted in injury to other
employees of the Company."
Alvarez and two other strikers , Keith Fogle and Kenneth
Goodrich, testified as follows : They had spent the morning
of August 1 in the company of other union members
drinking beer. Goodrich, a blond young man with
medium-length curly hair and mustache, steward and
picket captain , drank considerably more than the others.
Around noon that day, these three and another, Brent
Burton,' decided to go from the Shamrock Bar to the
Respondent 's northeast service building and pick up their
picketing checks from the Union. Burton drove them in an
old, black, Cadillac limousine . The others sat in the back
seat, Alvarez on the right by a window which they said was
broken and could not be lowered , Goodrich in the middle,
and Fogle on the left . As they passed by the office building
on Third Street , according to Alvarez and Fogle , Goodrich
suddenly leaned forward and fired a slingshot out of the
right front window at the building too fast for the other two
to stop him.2 Fogle saw and heard the crash of the window
breaking . Although he and Alvarez remonstrated with
Goodrich, Goodrich nevertheless fired another shot at the
next intersection . The slingshot was described as made of
metal, and about 12 inches long. Although Alvarez and
Fogle had seen it in Goodrich's possession early that day,
both claimed they did not see the slingshot in the car
before Goodrich suddenly fired it , although Goodrich said
he was wearing only Levis and a short-sleeve shirt or tee-
shirt that day.
After the above incident , the four strikers proceeded to
get their checks, and then started out in the Cadillac to
return to their own automobiles , this time Burton again
driving, with Alvarez in the right front seat and Fogle and
Goodrich in the back , When waved over by a police car,
Goodrich again leaned forward and this time threw the
slingshot out the right front window , they said. The
policeman retrieved it and all four men were escorted to
the police station where they were put in a lineup.3 The
four were then released , none of these three witnesses
having been questioned by the police . Alvarez was arrested
r Burton did not testify.
2 Goodrich testified that he did not see Alvarez fire the slingshot ; he then
refused to answer additional questions on the ground that it might
incriminate him. Goodrich probably did not see anything very clearly that
day and doubtless remembers even leas. I place no reliance on his
testimony.
2 1 do not credit Alvarez and Fogle 's testimony that after the lineup, they
later, but the record does not reveal whether he has been
brought to trial.
I credit the testimony of Mary Ellen Staley , and find that
she identified Alvarez in a police lineup as she did in the
hearing room. Staley's demeanor was that of a person
harboring no doubts whatever about what she had seen.
She could observe the incident clearly from where she was,
and in view of the considerable difference in appearance of
the two men involved-Alvarez and Goodrich-it is most
unlikely that she would mistake one for the other.
Moreover, the possibility of a reward, even if she had
known about it, would not have caused her to deliberately
identify the wrong man.
By contrast , the General Counsel 's witnesses told an
unlikely tale. I refer chiefly to Alvarez and Fogle's
insistence that they did not see the slingshot in the car,
even though it was 12 inches long and Goodrich was
wearing only light summer clothes with no apparent way to
conceal it, and even though he would have had to insert a
missile in the pocket of the slingshot at the time and that
obviously had to be done within sight of the other
passengers in the back seat . In addition , the upward
trajectory of the missile was more consistent with its having
been fired by someone leaning out of the rear window, as
Staley said, than by someone leaning forward from the
middle of the back seat and firing out of the front window,
as Fogle and Alvarez said.
I therefore find that it was Alvarez who fired the
slingshot and broke the decorative panel on the Company's
office building.
C. Discharge of John Beckley and David Long on
August 17, 1973
There is less dispute about the events surrounding this
incident .4 The Respondent 's area manager , Wilbur Wolfe,
ordered the installation of an electric line to a new home
near Midvale , Ohio, owned by one Daniels, located at the
end of a driveway from the Midvale highway, and
requiring the erection of four poles for stringing the wires.
People named Stafford and Jewell owned property on
either side of the driveway between Daniels and the
highway.
In accord with Manager Wolfe's order, a line truck was
dispatched to the location early on the morning of August
6, 1973, apparently manned by supervisors and foremen.
The work progressed normally until about noon when the
supervisors left the site in their cars for lunch.
Meanwhile, word of the installation work reached a
group of strikers in Dennison , Ohio. According to Long,
the group had understood that the Company was to
perform only emergency work during the strike. As the
strikers did not consider this emergency work, the group
decided to proceed to the Daniels place and, as Long put
it, prevent service from being installed. Six or seven
were told by an unidentified person that no identification had been made
but that the Company was pushing for arrests , which was vague self-serving
hearsay.
4 Except as specifically discussed below, where accounts do vary, I have
relied on what I consider to be admissions against interest and the
probabilities in light of the entire record regarding this incident.
O11IO POWER COMPANY 351
Dennison strikers, including Beckley and Long , went to the
site, obtained the consent of property owners Stafford and
Jewell , and about noon set up a picket line across the
driveway between the line truck and the highway, and,
Beckley testified , "told the foremen we were going to set a
picket line up and block the truck."
Shortly after the foreman-crew left for lunch , Manager
Wolfe drove up the driveway in a company automobile to
check on the progress of the work. Blocked by the pickets
from proceeding farther, Wolfe brought his car to a stop
and reversed to back out. At that point, however, Barry
Oiler, a striker and union committeeman , drove his car into
a position behind Wolfe's. Wolfe called to Oiler that he
would like to proceed up the driveway to the Daniels
residence and asked Oiler to request the pickets to move
aside. Oiler replied that the pickets "were pretty hot about
the construction taking place" and that they would not
move for him. Wolfe then requested Oiler to move his car
so Wolfe could back out. Another striker, Kapler, had
pulled his car in behind Oiler's by that time, so Oiler told
Wolfe that he could not oblige him because Oiler 's car was
also blocked.
Beckley testified that the pickets physically blocked the
lane, their primary purpose being to pin the company truck
in, and another objective being to pin Wolfe's car in. They
thought they had a legal right to do this because the
driveway was on private property and the pickets had the
permission of Stafford and Jewell to be there.
Prevented from driving in either direction , Wolfe locked
his car and walked into Midvale . There he found Foremen
Welch and Ray and sent them to the worksite . Wolfe also
contacted company attorneys, who advised him to return
to the site with witnesses and try to get his vehicle out, and
to take pictures.
When Foremen Welch and Ray arrived on the scene and
approached Wolfe's car, the pickets called to them that
Wolfe had better get a Hertz rental car because his car was
there for the duration , as the only way he could get it out
was to run over them . When Wolfe returned , Welch and
Ray reported these remarks to him . Wolfe thereupon
unlocked his car and got a camera out of it . Welch took
pictures while Wolfe asked the pickets one by one to let
him remove his car . Each of the pickets , however, either
said no or did not respond. Long told Welch that he did
not want his picture taken, but Welch continued to snap
the camera . Long, admittedly angry, then told Welch,
"Either you put the God damn camera away, or I am going
to shove it down your throat." When Wolfe told Long he
had not heard what Long said , Long then told Wolfe "to
get his God damn car and get out of there" or Long was
"going to shove him in the gas tank ," a remark which Long
described on the witness stand as "just a figure of speech, I
guess . It would be pretty hard to do." Wolfe and Welch
then walked away.
Wolfe returned with the Sheriff about 2:30 p.m. to fmd
the pickets gone . He removed the line truck and the car.
No work was done at the site after noon that day.
The next morning, August 7, a larger group of about 14
strikers returned to see whether the Company would try to
work at the site again . As the line truck was already there,
another picket line was set up, and the pickets told the
foremen they "were going to block the truck in the lane."
Chairs were brought and the strikers sat and stood across
the driveway between the line truck and the highway.
Wolfe arrived about 8:30 a.m. The foremen continued their
work of raising the poles. Two deputy sheriffs visited the
scene, and the pickets asked them to tell the company
representatives not to take their pictures; when the
deputies spoke to the representatives, the camera was put
out of sight. Although one or more of the pickets also had
cameras that day, no objection was made to their taking
pictures.
After most of the foreman crew departed for lunch,
Wolfe saw Long, Beckley, and another picket walk toward
the line truck which had been left near the Daniels home.
Wolfe followed, and discovered that the ground wire had
been cut. Realizing that no more work could be done
without a transformer, Wolfe summoned the foremen by
radio to remove the truck. When they arrived, Wolfe
showed Foreman Hughes how to operate the camera and
instructed him to take pictures of Wolfe approaching the
pickets! about getting the truck out. One of the foremen
drove the truck down the driveway to within 20 feet of the
picket line. Wolfe asked Burnhouse , recording secretary
and only official of the Union present, and all the other
pickets individually, for permission to remove the truck.
All answered no or made no response . Wolfe summoned
the truck closer, to within 6 to 8 feet of the picket line, and
told the pickets, "I had no intention of running over them
and would they please move ." Beckley replied "that if, in
fact, we did run over them, we better have a good
attorney." Long observed Foreman Hughes start to take a
picture from a point between the picket line and the
highway, and called to Hughes not to do so. When Hughes
ignored him, Long, admittedly angered, started toward
Hughes shouting for him "to put the damn camera away
[or] I was going to feed it to him." Wolfe left the picket line
and joined Hughes near the highway.
When Wolfe began to take pictures a few minutes later,
Long shouted the same thing to him, but Wolfe failed to
put the camera away. Beckley became angry and picked up
a broken 2- by 3-1/2-inch piece of tile from the driveway
and threw it at Wolfe. It landed about 10 to 15 feet from
Wolfe, and Hughes retrieved it and brought it to the
hearing.5 Although other pickets had idly tossed rocks
around during the day, Beckley conceded that he threw
this missile in Wolfe's direction and that he, Beckley,
considered himself as "something of an athlete." Accord-
ingly, while I do not believe Beckley intended actually to
hit Wolfe, I fmd that he did intend to frighten, or at least
startle, him. Based on my assessment of Wolfe, however, I
am sure he was not frightened by that, or by anything else
that happened in connection with this incident.
Although two deputy sheriffs came to the scene at
Wolfe's request, they were unsuccessful in persuading the
5 There was considerable dispute among the witnesses about whether the and Hughes , whose demeanor was favorable and whose testimony in this
broken tile in evidence was the one Beckley threw and how far it landed regard appeared to be the most consistent with the probabilities based on
from Wolfe . The facts as found are based chiefly on the testimony of Wolfe the whole record as to this incident.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pickets to release the line truck. They told Wolfe they were
leaving to get advice from the county prosecutor and that
he was not to take any more pictures.
Unable to obtain any guards, Wolfe arranged for his
supervisors to spell each other guarding the truck through-
out the rest of the day and all night. The pickets apparently
also spelled each other maintaining the road block.
The next morning about 10:30, August 8, Wolfe returned
once more to the scene. A deputy sheriff arrived and served
a writ of replevin, which had been obtained by the county
attorney, on the three pickets present . The line truck was
removed, and impounded for 5 days thereafter.
Division Manager Powell discharged Long and Beckley
by letters dated August 17, 1973. His letter to Long gave as
the reason for discharge "your conduct on August 6, and
August 7, 1973. Your use of abusive, threatening and
profane language against other employees of the Company,
and your attempted intimidation of a supervisor can not be
tolerated." The letter to Beckley gave as the reason "your
conduct of August 7, 1973. Your act of unprovoked
aggression against your supervisor could have resulted in
serious injury to that employee. This type of conduct can
not be tolerated." Powell testified that although these two
strikers' participation in the blocking of the line truck was
a factor in his decision to discharge them, it was not
mentioned in the letters because he had decided that there
were so many people involved in the blocking that he
would not take disciplinary action based on that alone.
D. Discharge of Robert Gibson and James Wood
on September 13, 1973
During the late evening of July 29 and early morning of
July 30, 1973, someone cut through the link chain fences
surrounding five of the Respondent's power substations in
the Canton area and removed the oil plugs from the
transformers. Thirteen thousand gallons of oil, which
serves as a coolant for the transformers, was spilled on the
ground. Alarm systems at two of the transformers triggered
an inspection of all five substations which prevented any of
the transformers from burning up. There were, however,
two brief interruptions of service to several thousand
homes in the vicinity. The Respondent discharged Gibson
and Wood, union members and strikers on September 13,
1973, for the asserted reason that they were the ones
responsible for the vandalism. On December 13, 1973, after
a jury trial in the Stark County Common Pleas Court,
Gibson and Wood were acquitted of charges of malicious
destruction of this property.
The Respondent presented the following evidence in
support of these charges.
At 10:22 p.m. on July 29, 1973, the company dispatcher
received an alarm from the Respondent's northeast
substation. The dispatcher notified Substations Supervisor
Ozzie Resler who sent maintenance men to investigate the
cause of the alarm. They discovered the damage described
above. At 11:35 p.m., employees sent to check on the other
substations discovered similar vandalism at the Easton
substation, which was not equipped with an alarm system.
At 12:47 a.m. on July 30, 1973, an alarm was received from
the West Canton substation. The vandalism at the Way
View and Belden Village substations, neither of which had
an alarm system, was discovered at undetermined times in
the early hours of July 30.
Similar cuts had been made in the link chain fences of all
five substations, making an opening just big enough for a
person to crawl through. Based on sample cuts he made
with a pair of 9" lineman's wirecutters, also referred to as
pliers, similar to those in evidence as Respondent's Exhibit
3, on all the fences, Supervisor Resler estimated it would
take one man 10 to 15 minutes to get inside and do the
damage done at each substation. Resler also testified that it
would take at least 2 minutes for enough oil to drain out of
the northeast substation transformer to trigger the alarm
there. This testimony thus places the perpetrator at the
northeast substation from 10:05 or 10:10 until 10:20 p.m.
on July 29.
The following testimony was received from Deputy
Sheriff Charles Mason: At I a.m. on July 30, Mason
received a message over his car radio to meet an Ohio
Power representative at a place he understood to be the
Company's northeast service building to investigate de-
struction of company property. While waiting in the
parking lot there where a motorcycle was also parked, he
observed a 1964 white Plymouth Valiant approach, and
about 1:10 a.m. he stopped the car. Gibson was the-driver
and Wood the passenger. They told Mason they were Ohio
Power employees on picket duty, that Wood's motorcycle
had blown a fuse, and that they had just returned from
North Canton with another fuse. Noticing a pair of wire
cutters in the back seat, Mason asked to see them and
Gibson handed them over. After looking over the cutters,
Mason returned them to Gibson, took the names and
addresses of the two men, and released them.
Checking with the radio dispatcher, Mason discovered
he was supposed to be at the Company's northeast
substation, about a mile away from the northeast service
building. When he arrived at the substation, Mason saw
the damage. He then proceeded to the Company's Easton
substation about 3- 1/2 miles farther on and saw the similar
damage there. Remembering the wire cutters in Gibson's
car, Mason picked up some pieces from the ground near
each of the substations fence openings , and drove to
Gibson's home, arriving about 2:20 a.m. He asked Gibson
for the pliers, and Gibson gave them to him. Mason turned
the fence cuttings and the 9-inch cutters in to the police
station and they are in evidence, the cutters as Respond-
ent's Exhibit 3.
Meanwhile, Russell L. Aufrance, a private investigator
employed by the Respondent from time to time, was
alerted by the Company's security agent between 12:15
and 1:15. He proceeded to the Easton substation and, in
the company of management representatives , visited all
five substations . He picked up pieces near the openings
found in the fences of the other three substations and took
them to the police station; they are also in evidence.
The Respondent placed in evidence a scale map of
Canton showing the location of the northeast service
building, the five substations, and the homes of Gibson
and Wood. It also shows the route admittedly taken by
Gibson and Wood from the northeast service building,
where they did picket duty on the evening of July 29, past
OHIO POWER COMPANY 353
the northeast and Easton substations to Wood's home that
evening.
The Respondent also presented the testimony of Henry
Dombrowski, a laboratory chemist and supervisor em-
ployed by the Bureau of Criminal Investigation of the State
of Ohio . Dombrowski said he conducted tests similar in
principle to ballistics tests used on firearms with the pliers
on some of the link chain fence clippings in evidence. As a
result of the tests , which Dombrowski described in
considerable detail, he concluded that the wires had been
cut by the pliers in evidence as Respondent's Exhibit 3.
Division Manager Powell discharged Gibson and Wood
by identical letters dated September 13, 1973, "because of
your conduct on July 29 and July 30, 1973. Your actions
destroyed Company property and could have resulted in
equipment failure that would have caused a major
interruption in electric service to our customers ." Powell
affirmed his reasons for deciding to discharge Gibson and
Wood based on the evidence set forth above and without
interviewing the employees to get their stories.
The General Counsel presented the following evidence:
Gibson and Wood flatly denied doing this damage. Both
are linemen second class with over 6 years' experience.
Their account of events was that Gibson arrived at the
northeast service building to relieve Wood on picket duty
in a 1964 white Plymouth Valiant about 8 p.m. on July 29.
Wood 's motorcycle would not start and he asked Gibson
to drive him home to get a new fuse . Gibson said he would
do so after he was relieved of picket duty, scheduled for 10
p.m. Terry Hanlin testified that he arrived at the northeast
service building I or 2 minutes before 10 p.m. to relieve
Gibson. The three of them talked a while, and Wood told
Hanlin he could not get his motorcycle started and that
Gibson was going to take him home to get a fuse . Hanlin
said he thought the two left about 10:15, but that he could
be wrong on the time by 5 or 10 minutes either way. Wood
and Gibson placed their departure at 10:30 , within 5
minutes, Wood said , and within 15 minutes, Gibson said.
They proceeded to Wood's home via the route marked on
the Respondent's map in evidence , passing the two
substations . Although there is another more direct route,
Gibson explained that he took the longer route because his
car is old and it is a better road and has fewer stop signs
and stoplights . Their arrival at Wood 's home at 10:45 p.m.
was confirmed by Wood's wife who testified she looked at
a clock when she was awakened by her husband's coming
in with another person . Ms. Wood went back to sleep in
about 5 minutes without hearing them leave.
While Wood was getting a fuse , Gibson noticed a chess
set in the living room , and asked Wood to play. They
played a few games, and left Wood's house around 12:15
p.m. They returned to the northeast service building
parking lot by the same route, arriving a little after 1 a.m.
when they were stopped by Deputy Mason . The accounts
of their interviews with Mason accord substantially with
his. After Mason released them at the parking lot, Wood
said he replaced the fuse on his cycle and rode it home by
the shortest and most direct route . Gibson also went home,
to be awakened about 2 p .m. by Mason who had come for
the wire cutters.
Gibson and Wood have not been employed at any
substation, but testified they have a certain amount of
knowledge of transformers and the effect on them of oil
drainage . Gibson testified that about 100 employees,
including linemen and other employees of the line
department, have wirecutters similar to those in evidence
as Respondent's Exh. 3. Gibson examined the cutters in
evidence, which are 9 inches long, old and worn, with
metal handles wrapped with black tape. When asked
whether they are the pliers from the back seat of his car,
Gibson said,
I can't say for sure. I had a pair similar to that. I will
say that I have used pliars [sic] of this type from time to
time and kept them in the car for doing different types
of electrical work for friends and relatives. To say that
those are definitely my pliars, I would not know.
When asked why he could not say whether the pliers in
evidence are his, Gibson replied,
These pliars [sic], I will say, look similar. They are
older pliars. They are in pretty bad shape. Most
generally, that's the type that the Power Company buys
for the linemen and the groundmen, and these are
rather common. Every lineman has a set of them. Some
linemen have plastic handles and some have their
handles taped. I don't remember if mine were taped or
had plastic handles, but all these pliars are basically the
same.
On the basis of all the evidence set forth above, and the
entire record, I find that Gibson and Wood did the damage
of which they are accused. Critical to this result was the
evidence of Dombrowski, who was a disinterested employ-
ee of the State of Ohio and an established expert in his
field. His opinion that the fences were cut by the pliers in
evidence was backed by scientific details which remained
unchallenged . I also consider Deputy Mason a disinterest-
ed witness with nothing to gain by lying as far as the record
shows . That Gibson and Wood could have committed the
vandalism is established by their experience as linemen in
the use of wirecutters and their knowledge of transformers.
Resler's undisputed testimony regarding the amount of
time required at each substation, the time factors given by
Hanlin, and the distances as revealed by the scale map
show they could have covered all the five substations
between the time they left the picket line and the time they
were accosted in the northeast service building parking lot.
Ms. Wood's testimony is not necessarily inconsistent with
this conclusion , particularly when one takes into account
that her clock (as well as all times testified to) may have
been less than exact. The conclusion is further supported
by the roundabout route the two men concededly took
when they allegedly were merely proceeding to Wood's
house . The reason given for taking that route was
undermined by Wood's admission that he took the more
direct route when he did go straight home, even though he
was on a motorcycle and making the trip much later at
night. I have also taken into careful consideration the
contrary conclusion of the jury in the criminal trial, but
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must disagrees The standard of proof is , of course,
different in such cases . Most important , however, is my
conviction that Gibson was not telling the truth when he
hedged about his ownership of the wirecutters in evidence.
That testimony being patently false destroyed Gibson's
credibility and convinced me that he and Wood fabricated
the tale about their movements on the evening in question.
E. Conclusions
Having found above that the five dischargees engaged in
the misconduct with which they were charged by the
Respondent , I find without support in the record the
General Counsel's contention that the Respondent did not
discharge them for that misconduct but seized on it as a
pretext for ridding itself of these employees because they
participated in the strike . The Respondent committed no
unfair labor practices , and the record does not reveal that
it harbored any animus against strikers or union members
or officers . I credit the testimony of James P. Keller, a
member of the negotiating committee , to the effect that
Personnel Director Scales told him during the strike that,
as far as Scales was concerned , Wood , Gibson, and
Alvarez were guilty , and even if a jury found them
innocent of criminal charges, they would remain fired. This
only demonstrates the depth of Scales' belief that they
engaged in misconduct , and not that he was discriminatori-
ly motivated . Nor is there any basis for the General
Counsel's charge that Manager Wolfe "instigated" Beckley
and Long ; or for his charge that the Respondent 's failure
to get these employees ' own versions before deciding to
discharge them is indicative of pretextual motive , particu-
larly in view of my finding that they did in fact engage in
the misconduct.
In the above circumstances, I further find that the
Respondent discharged these five strikers for the reasons
given by Manager Powell.
Remaining is the question as to whether the Respondent
nevertheless violated the Act , because as economic strikers
these employees were protected from being disciplined for
what they did. The applicable rule of law is that Sections 7
and 13 of the Act grant employees the right to strike,
picket, and engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection . However , in deference to the rights of employ-
ers and the public , the Board and courts agree that serious
acts of misconduct which occur in the course of a strike
may disqualify a striker from the protection of the Act,
while minor acts of misconduct do not.7
After weighing all the factors relevant to the misconduct
engaged in by Robert Gibson and James Wood , I find that
it was serious enough to strip them of the protection of the
Act. The facts show that in an otherwise peaceful strike
setting, and without provocation by the Respondent by
unfair labor practices or otherwise, these two men stealthly
moved in the dead of night from substation to substation
and deliberately vandalized them one after another.
6 See N. L. R. B. v . Kelco Corporation, 178 F.2d 578 (C.A. 4, 1949).
r See Coronet Casuals, Inc., 207 NLRB 304 (1973 ). Capital Rubber &
Specialty Co, Inc, 201 NLRB 715, 720-721 (1973), The Blair Process
Company, Inc., 199 NLRB 194 (1972).
8 N.L.R.B. v. Perfect Circle Company, 162 F.2d 566 (C.A. 7, 194'1);
The facts surrounding Alvarez' vandalism do not involve
stealth. On the contrary, it appears to have been a more or
less impulsive act. However , I do not believe it falls within
the category of impulsive acts committed out of animal
exhuberance upon which the law has looked with indul-
gence . Alvarez' conduct had its genesis in no deed by the
employer or by nonstrikers or anything which occurred at
or near a picket line or in connection with his or others'
exercise of protected rights . It therefore cannot reasonably
be considered to have been an outgrowth of any intense
feelings developed on the picket line. Rather , it was merely
the culmination of a prolonged drinking bout. Although
the weapon employed is generally associated with boys,
Alvarez is not a boy. He is a man and a responsible union
officer at that . Surely wanton and gratuitous property
destruction of this kind was not so minor as to be within
the contemplation of Congress when it provided for the
right to strike.
The misconduct of Long and Beckley falls within still
another category . Their vague threats and the threatening
gestures, although not serious in themselves , were uttered
after these employees had already taken themselves outside
the area of protected activities . Thus, the group of strikers
to which Long and Beckley belonged went to the Daniels
location for the specific purpose of preventing service from
being installed , and once their their primary purpose
became preventing the Respondent 's representatives from
removing its vehicles from the premises . They so informed
the representatives and proceeded to carry out their
expressed intention by blocking egress of the automobile
assigned to Wolfe for several hours and of the line truck for
more than a day. By this conduct they effectively took
possession of the Respondent 's property and retained
effective possession until forced to release the truck by a
court-issued writ of replevin .8 As these pickets thereby
forfeited the protection afforded by the Act to them as
strikers , the serious-minor standard of judging their
behavior is not applicable . The Respondent was entitled, as
it insists it was, to discharge them for any reason other than
a discriminatory one. In my view of this matter , Manager
Powell's decision not to discharge all the pickets who had
blocked the Respondent's vehicles and not , therefore, to
make specific reference to that conduct in his discharge
letters neither was indicative of discriminatory motive nor
deprived him of his right to select Long and Beckley for
discharge because they additionally threatened his supervi-
sors . Although it is clear that the threats made by these two
employees were directed at preventing management from
taking their pictures , it is also clear that management was
interested only in recording unprotected activities of the
pickets.9
In all the circumstances, therefore , I conclude that a
preponderance of the evidence fails to establish that the
Respondent's discharge of Gibson, Wood, Alvarez, Beck-
ley, and Long was violative of Section 8(a)(3) or (1) of the
Act, and I shall recommend that the complaint be
dismissed.
N LR B v. Clinchfield Coal Company, 145 F.2d 66 (C.A. 4, 1944). Accord.
N L.R B. v. Fansteel Metallurgical Corp., 306 U .S. 240 ( 1939); American Tool
Works Company, 116 NLRB 1681 (1956).
8 Alabaster Lime Company, 194 NLRB 1116 (1972); cf Sackett 's Welding,
207 NLRB 1030 (1973 ). Radio Industries, Inc., 101 NLRB 912, 925 (1952)
OHIO POWER COMPANY 355
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act. I hereby issue the following recommended:
ORDER to
The complaint is dismissed in its entirety.
10 In the event no exceptions are filed as provided by Sec. 102 .46 of the 102 .48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings, its findings, conclusions , and Order , and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec . deemed waived for all purposes.