Roto Rooter

National Labor Relations Board - Board Decisions

Apr 29, 1987

283 N.L.R.B. 771 (N.L.R.B. 1987)

ROTO ROOTER
F. E. Wray, Inc. d/b/a Roto Rooter and Warehouse,
Mail Order and Retail Employees and Whole-
sale Liquor Salespersons, Local 853 , Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Cases
32-CA-6880 and 32-CA-6943
29 April 1987
DECISION AND ORDER REMANDING
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 9 June 1986 Administrative Law Judge
James M. Kennedy issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to re-
instate employees Lionel Myles and Steve Martinez
following their participation in a strike protected
by Section 7 of the Act. The sole issue before the
judge was whether Myles and Martinez had en-
gaged in misconduct during the strike sufficiently
egregious to deprive them of their right to recall as
economic strikers who had made unconditional
offers to return to work. We find merit in the Re-
spondent's exceptions to the judge's findings con-
cerning Myles. Additionally, we shall remand this
proceeding to the judge for credibility determina-
tions regarding the conduct of Martinez and fur-
ther analysis of the complaint allegations concern-
ing him.
The judge recognized the authority of Clear Pine
Mouldings, 268 NLRB 1044 (1984), in which the
Board "reject[ed] the per se rule that words alone
can never warrant a denial of reinstatement in the
absence of physical acts," and adopted an objective
test: "whether the misconduct is such that, under
circumstances existing, it may reasonably tend to
coerce or intimidate 'employees in the exercise of
rights protected under the Act." Id. at 1046; see
also Id. at 1048.
, The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
771
With respect to Myles, the judge examined sepa-
rately his alleged misconduct on five different oc-
casions. First, the judge found that Myles, while on
picket duty, spoke for about 2 minutes to nonstrik-
ing employee Guy Akana, who was driving his
truck from the Respondent's premises. During this
incident, Myles told Akana to tell "Don A" that
Myles was going to "break his legs." Since Myles
held no weapon and "Don A" was not present or
even known to Akana, the judge concluded, with-
out condoning Myles' language, that the threat was
"remote" and thus insufficient to warrant denial of
reinstatement.
A second series of incidents involving Myles
took place when he picketed a worksite to which
nonstriking employee John Sales had been dis-
patched. The judge found that Myles, in addition
to making taunting comments about Sales' compe-
tence, threatened ' to "kick [Sales'] fucking ass,"
"break [his] bones," and "break [him] ,up." Myles
further told Sales that his threats were not a "union
scare tactic but between you and I [sic], pal."
Myles also joined several other picketers in pound-
ing on Sales' truck and' shouting, "I'm going to get
you" as Sales drove from the worksite following
his completion of the job.
The judge characterized Myles' conduct toward
Sales as "simply a vociferous and boisterous nee-
dling of a non-striker" by stressing his findings that
Myles never displayed a weapon, that Sales did not
consider the verbal threats to be very serious be-
can se he did not - seek help, and that the truck
pounding incident was not a physical threat be-
cause Myles refrained from any direct assault
during the times Sales was working outside his
truck. The judge concluded that these acts did not
rise to a level of misconduct entitling the Respond-
ent to deny reinstatement to Myles.2
On yet another occasion during the strike, Myles
parked his personal truck 'across, the Respondent's
driveway, thus blocking that access to its facility.
The Respondent's president testified that he asked
Myles to move the truck and that Myles refused.
Myles testified that it was the Respondent' s general
manager who asked' him to move his truck and he
thereupon did so. The judge found no evidence re-
garding the length of time the truck remained' in
the' driveway and no evidence'to contradict Myles'
testimony that he promptly moved it when request-
ed. The judge further relied on evidence that an
adjacent driveway belonging to a neighboring busi-
2 The judge also considered Sales' testimony that on a separate occa-
sion about a week before the strike ended in late November 1984, Myles
told him that he would return in a week and "take care" of Sales at that
time. However, the judge credited Myles' denial that this encounter took
place.
283 NLRB No. 117
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ness, one regularly used by the Respondent's em-
ployees, did at all times provide access to the Re-
spondent 's property . He concluded that this inci-
dent by itself did not warrant denying reinstate-
ment to Myles.
Finally, in addition to the encounters involving
employees Akana and Sales, Myles was involved in
another incident with a nonstriking employee.
Myles followed employee Scott Johnson as he left
the Respondent's facility in a company truck.
Myles intended to -picket at -Johnson 's worksite.
However, Johnson did not go to work but instead
went home for lunch . After Johnson arrived at his
home, Myles stood about 60 feet from Johnson's
home and, without entering onto his property,
called Johnson a "fucking scab" and threatened to
follow him "until he died." The judge found the
latter alleged threat to be ambiguous and suscepti-
ble to the interpretation that Myles only intended
to adhere tenaciously to the strike by continuing
his practice of lawfully picketing the Respondent's
worksites . The judge concluded that the remark
was not intended to be . taken literally and was
therefore - not a threat of bodily harm . The judge
once again evaluated this incident in isolation from
Myles' other activities and concluded that it did
not entitle the Respondent to deny reinstatement to
Myles.
Our first disagreement with the judge 's analysis
concerns his reliance, in part, on a subjective test
rather than the objective standard mandated by
Clear Pine Mouldings. With respect to-the import of
Myles' encounters with nonstriking employees
Akana, Sales , and Johnson, the judge, rather than
evaluating any reasonable tendency to coerce or in-
timidate, chose to analyze what he understood to
be Myles' intentions and the employees ' reactions.
The judge found that when Myles told Akana to
deliver personally to a third employee a threat to
"break his legs," Akana "was not particularly con-
cerned" because he did not know the named em-
ployee and because Myles had no weapon or im-
mediate opportunity to effectuate the threat. Con-
cerning Sales, the judge inferred , that Sales did not
take Myles ' threats of bodily harm "seriously", be-
cause Sales did not seek help from others. The
judge further inferred that Myles himself did not
intend the threats to be taken seriously because,
though he had the opportunity , he did not follow
through on them . With respect to. Myles' following
of Johnson to his home , the judge found Johnson's
fear to be "beyond reasonableness" because the al-
leged threat was ambiguous and the Union was en-
titled to engage in ambulatory picketing.
In addition to his departures from the Clear Pine
Mouldings test, the judge failed to consider the to-
tality. of Myles' behavior , choosing instead to
evaluate each incident in isolation from the others.
ConOer̀ning ' one of these incidents , we agree with
the judge that there is insufficient evidence to
show that Myles' parking of his truck on the Re-
spondent 's driveway constituted any 'significant in-
terference with the conduct of the Respondent's
business . And, as indicated above, we also adopt
the judge 's credibility finding that the alleged en-
counter , between Myles and .Sales in late November
did not take place . However, with respect to the
remaining three incidents, we find that Myles did
engage in a pattern of behavior by - threatening
Sales directly with bodily harm and shortly there-
after pounding on his truck , by telling Akana to
deliver an even more explicit threat to another
nonstriking employee, and by following Johnson to
his home and threatening to follow him "until he
died."
Contrary to the judge, we find that, taken as a
whole, Myles ' encounters with three employees -in
which they and a fourth employee were threatened
either , directly or indirectly with serious bodily
harm or with picketing away from their worksites
because they exercised their Section 7 right to re-
frain from striking , reasonably tended to ' coerce or
intimidate them . Regardless of the striking employ-
ees' subjective reaction to these series ' of threaten-
ing remarks , the reasonable , indeed the clear, tend-
ency of such repeated threats is to coerce or intimi-
date employees . In reaching this conclusion, we
emphasize that Myles' misconduct was neither an
isolated outburst nor were his remarks, in most in-
stances, amenable to a 'noncoercive interpretation.
Under these circumstances , we find that the Re-
spondent's failure to reinstate Myles did not violate
the `Act and we will dismiss that portion of the
complaint.
However, a different result is required concern-
ing employee Steve Martinez. In determining
whether Martinez engaged in misconduct during
the strike sufficiently serious to deprive him of his
right to recall , the judge considered 'both his testi-
mony and that of employee Steve Penney : Penney
testified that ' while driving a company van he
stopped at a stoplight on a busy highway. Marti-
nez, in his own truck and accompanied by a friend,
was in ` the adjacent lane to the right . According to
a We agree with the judge that the circumstances surrrounding Myles'
conduct at Johnson's home are less coercive than those in Georgia Kraft
Co., 275 NLRB 636 (1985), given that here there is no -evidence that
other members of Johnson's family overheard the shouted threat Howev-
er, in our view, Myles crossed any permissible line.
Because the Union had a right to engage in ambulatory picketing that
reasonably required following nonstriking employees, Member Johansen
does not regard Myles' following Johnson home in itself to be an element
of Myles' misconduct.
ROTO ROOTER
Penney, Martinez tried to cut in front of him as the
light changed while shouting that 'he was going to
"kick his ass." Penney also testified that Martinez
spat at his van and threw ice from a paper cup.
Martinez, on the other hand, denied the alleged at-
tempt to interfere with , the path of Penny's van
and the alleged threat, spitting, and ice throwing.
He stated that he had merely pulled up alongside
the Respondent's van and then proceeded on his
way in a normal, fashion when the light changed.
The judge in crediting Penney's testimony, "for
the sake of analysis" concluded that Penney was
neither in any actual danger nor did he reasonably
believe he was in, danger. The judge found that the
incident lasted only a few moments, the vehicles
were moving, at most, about 5 miles per hour, and
Penney was at all times protected `from Martinez'
alleged nonverbal abuse by the van -itself. The
judge concluded that it seemed "unlikely" to him
that Penney was "actually intimidated." On this
basis he found that the Respondent's refusal to re-
instate Martinez was not justified and therefore
violated Section 8(a)(3)'and (1) of-the Act.
We find, however, that the judge undercut his
own analysis in two ways. First he utilized, as he
did with the behavior of Myles, the same subjec-
tive test rejected in Clear Pine Mouldings. Second-
ly, the judge employed a most equivocal procedure
for resolving the conflicting testimony regarding
what actually happened at the highway stoplight.
For while he credited Penney "for the sake of
analysis," he also found Martinez' version to be
more credible "in some respects." The judge found
it "unlikely" that Martinez would, have involved
his friend by instigating a "near violent" situation
in the middle' of traffic. The judge's avoidance of a
clear credibility resolution deprives us of the neces-
sary factual basis to determine ' whether any mis-
conduct occurred and, if it did, whether it was suf-
ficiently serious to deprive Martinez of the protec-
tion of the Act. In addition, the judge failed to
apply the Clear Pine Mouldings test in an appropri-
ate manner. We will therefore remand this portion
of the -proceeding to the judge to make definite
credibility findings on the alleged strike misconduct
and to apply the Clear Pine Mouldings objective
test.
ORDER
The complaint allegation that the Respondent
violated Section 8(a)(3) and (1) of the Act by refus-
ing to reinstate employee Lionel Myles is dis-
missed,
IT IS FURTHER ORDERED that this proceeding is
remanded to Judge Kennedy for the' purpose of
making credibility resolutions on all testimony con-
773
cerning the alleged strike misconduct of employee
Steve Martinez and for recommendations whether
his conduct justified, under the standard of Clear
Pine Mouldings, 268 NLRB 1044 (1984), the denial
of his right' as an economic striker to return to
work.
IT IS FURTHER ORDERED that the judge shall pre-
pare and serve on the parties, a supplemental deci-
sion setting forth the resolution of such credibility
issues and findings and conclusions with respect
thereto. Copies of the supplemental decision shall
be served on all parties, after which the provisions
of Section 102.46 of the Board's Rules shall be ap-
plicable.
Raoul Thorbourne , for the, General Counsel.
Harry Finkle and Neil M. Gerstner (Finkle & Stroup),
Walnut Creek, California, for the Respondent.
DECISION
JAMES M . KENNEDY, Administrative Law Judge. This
case was tried before me in Oakland , California , on Janu-
ary 22, 1986. It is based on a consolidated complaint
issued by the Acting Regional Director for Region 32 of
the National Labor Relations Board on January 31, 1985.
The complaint is based on charges filed by Warehouse,
Mail Order and Retail Employees - and Wholesale Liquor
Salespersons, Local 853 , International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of
America (the Union) on November i and December 4,
1984. 1 Prior to the hearing, the, General Counsel, Re-
spondent , and the Charging Party reached a partial set-
tlement in which paragraphs 7, 8, 9, ,and 10 were re-
solved. In addition, the General Counsel moved to dis-
miss those portions of paragraphs 13 and 14 respecting
an individual named Lister . The motion was granted.
The complaint now' alleges that F . E, Wray, Inc. d/b/a
Roto Rooter (Respondent) has engaged in certain viola-
tions of Section 8(a)(1) and (3) of the National Labor Re-
lations Act , as amended (the Act).
Issue
As modified, the complaint leaves for resolution only
the question of whether Respondent unlawfully refused
to recall two individuals after the cessation of a strike.
The parties have stipulated that the two- individuals in
question, Lionel Myles and Steve Martinez, were partici-
pants in, a strike that commenced on November I and
ended about December 3. The only' question for resolu-
tion is whether Myles and Martinez engaged in miscon-
duct sufficient to deprive them of their right to reinstate-
ment. Respondent contends that they, did; the General
Counsel contends they did not.
Based on the stipulation of facts and the entire record
of the case, as well as my observation of the witnesses
and their demeanor,, I make the following:
1 All dates are 1984 unless otherwise noted.
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits, and I find, that it has been at all
material times a California corporation with an office
and place of business in San Leandro where it is engaged
in the business of providing sewer and drain cleaning
services as well as plumbing services, on both retail and
nonretail bases to residential 'and commercial customers.
It further admits that during the past 12 months its gross
revenues exceeded $500,000 and that it purchased and re-
ceived goods and services valued in excess of $5,000,
which originated outside California. Accordingly, it
admits and I find that it has been at all material times an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits , and I find, that the Union is and
has been at all material times a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The parties stipulated that on November 1, 1984, cer-
tain of Respondent's San Leandro employees went on
strike, that its employees Lionel Myles and Steve Marti-
nez were among the strikers, and that the strike was an
activity protected by Section 7 of the Act. The parties
further stipulated that on December 3, 1984, both Myles
and Martinez made unconditional offers to return to
work but reinstatement was denied them because Re-
spondent believed they had engaged in certain strike mis-
conduct. Finally, the parties have stipulated that had Re-
spondent not held that -belief, it would have reinstated
both of them to their former jobs. -
A. Lionel Myles
Respondent points to'approximately five "incidents" to
support its decision not to reinstate Myles. The first oc-
curred in early November, approximately a week after
the strike began. Myles and two other stikers, Mark
Forbes and John Greer, were picketing Respondent's
San Leandro yard, which is located on Washington Bou-
levard, a major thoroughfare in San Leandro. The three
pickets were patrolling the sidewalk across the driveway.
A nonstriker, Guy Akana, began to exit the parking .lot
via the, driveway. Myles stood momentarily in front of
Akana's company truck and brought it to a stop at the
sidewalk. Akana agrees that he would have had to stop
at that point anyway in order to abide by the traffic laws
and in order to await a traffic opening. While he was
stopped, Greer and Forbes engaged Akana in a short,
friendly conversation lasting no more than 2 minutes.
Akana testified that he could have left at any time the
traffic permitted him to do so, but that he chose to listen
,to what the pickets had to say. After hearing them out,
he entered Washington Boulevard and proceeded to his
job.
With respect to the conversation itself, Akana testified
that Forbes asked him to turn in his company keys, but
he replied that he could not. He said that Myles then
came over and told- him: "Tell Don A that Lam going to
break his legs." Akana did not know who- Don A was
although he later learned it was an individual named
Don Atkins.
Myles denied that he ever blocked Akana's truck from
leaving the facility. In addition, he specifically denied
making any remark about "Don A" and generally denied
threatening anyone during the strike.
In both early and late November, Myles had confron-
tations with nonstriker John Sales. During the strike
many of the strikers followed nonstrikers to worksites
and picketed '-near those workmen. Late one morning in
early November Myles observed Sales leave Respond-
ent's yard- on Washington Boulevard for a clean-out job
located at the Eden Lodge residential complex also lo-
cated on Washington Boulevard and only a few hundred
feet from Respondent's yard. Myles and another striker,
Tim Shantin, followed Sales there and began to picket.
Sales had some difficulty with his winch, which appar-
ently had broken, and he was unable to remove his
equipment from the truck. Taking advantage of the inci-
dent, the pickets taunted Sales by shouting in the pres-
ence of the complex's manager that Sales- was inexperi-
enced and incompetent. Myles testified that except for
telling Sales he was incompetent he said nothing else to
Sales. Sales disagrees, asserting that Myles told him he
was going to "kick [Sales'] fucking ass and break his
bones." Later, Sales says, Myles said he would "bust
[Sales] up,"' amplifying that it was not a union scare
tactic but "between you and I, pal."
Unable to 'unload his equipment with the broken
winch, Sales returned to Respondent's yard where he re-
paired it. The pickets followed' him to the yard. When he
returned to Eden Lodge they followed him again. Myles
testified he said nothing to Sales when he returned to the
Lodge. Sales testified, however, that when he returned
Myles told him he was going to "bust him up" and "kick
his ass." Sales then, testified that after he had finished the
job, the pickets surrounded his van as he began to leave
and Myles and others began to pound, on it. He says
Myles was shouting angrily, "I'm going to get you."
Myles denied pounding on the van or making any of'the
remarks. During this incident it appears' that Sales' van
suffered two flat tires. It is unclear whether the tires
were punctures or were simply deflated. Either' way
there is no evidence connecting Myles to the tire inci-
dent. Respondent concedes that it cannot prove that
Myles had anything to do with the flat tires but points to
the incident as part of the atmosphere of ' the strike.
When Sales realized his tires were flat, he got out of the
vehicle to inspect them. Neither Myles nor any other
picket made any move to carry- out the alleged threats.
In late November, according to Sales, Myles remarked
to him in the presence of two, other pickets in front of
the San Leandro yard that he was going to be coming
back to work the following week. Sales' said Myles told
him, "I'm going to get you then. I'm going to get your
ass then." Sales says he asked-' Myles to repeat what he
had said and Myles obliged saying, "I'll be back next
week and I'll get ' your ass." Sales responded by saying
ROTO ROOTER-
that if Myles attempted to do so he would ' file assault
charges against him.
Respondent also alleges that Myles at one point parked
his car in such a manner as to block the driveway into
the yard. According to the testimony there are two
driveway entrances, one on Respondent's property and
another on the U-Haul establishment's property next
door. Respondent's employees regularly used the U-Haul
driveway as well as their own. Myles remembers that on
one occasion he was going to use the telephone booth lo-
cated approximately 10 feet inside Respondent's drive-
way and that he parked his small truck nearby to do so.
He says that when Guy Davenport, Respondent's gener-
al manager, asked him to move it he did . Davenport
could not remember the incident, but Rodney Wray, Re-
spondent 's president, asserts that it was - he who had
asked Myles to move his car. He says when he did
Myles replied. "No way," and refused. Wray asserts that
Myles' vehicle was parked horizontally across the drive-
way, thereby blocking it. Neither he nor anyone testified
that any other vehicle actually attempted to use the
driveway while Myles was parked there. Indeed, Wray
has no idea when the vehicle- was actually moved, for he
simply walked away and did not pursue the matter fur-
ther. In any event, there continued to be access to the
yard through the U-Haul driveway ' only a few feet
away.
The last episode involving Myles occurred about No-
vember 20. Nonstriker Scott Johnson, shortly before
lunchtime, left the yard in a company truck. Myles and
striker Will Lister, believing that Johnson was going out
on a call, decided to follow him for the purpose of pick-
eting the jobsite. Johnson took evasive action and at-
tempted to lose them in traffic, adding credence to their
belief that he was on his way to a call. Instead of going
to a job, however, Johnson went to his home in Fremont
to get his lunch . Johnson testified that as he was entering
his house Myles and Lister pulled up. He was about 60
feet away from them when they began calling him a
"fucking scab." Lister told Johnson that he had no right
working for the Company and would never have any
rights if he continued to work for it. Johnson says addi-
tional words were exchanged and at that point he heard
Myles say he was going to harass and follow Johnson
"until he died." As a result of that remark Johnson .de-
cided to call the police.
Myles testified that when he and Lister arrived in
front of Johnson's house, Johnson got out of his vehicle
and began "hollering" at them. Johnson shouted at the
strikers that they did not want to have a job and did not
want to work, but could have a job at Roto Rooter if
they wanted' to work. Myles referred to a court order, of
which he had a copy, which had refused to prohibit
strikers from following nonstrikers to jobs and picketing
them there. When the police arrived Myles showed the
court order to the policeman. Apparently the only thing
the policeman did was to detain Myles and- Lister long
enough to permit Johnson to leave 'without being fol-
lowed.
775
B. Steve Martinez
Respondent asserts that striker Steve Martinez en-
gaged in misconduct I day on Hesperian Boulevard in
San Leandro . The street is a busy six-lane divided thor-
oughfare.
About November 13, Martinez 'was driving his own
truck down Hesperian Boulevard when he encountered a
Roto Rooter van driven by Steve Penney, which was
stopped at a stoplight . Penney had previously worked at
Roto Rooter but had been brought back during the
strike. Both vehicles were stopped in adjacent traffic
lanes, about 15 car lenghts from the intersection . Penney
says Martinez attempted to force his way in front of his
van and that while Martinez was doing so he yelled at
Penney saying he was going to "kick his ass ." Penney
says Martinez then spit at the van and threw ice at it
from a fast-food chain's paper cup . Penney concedes,
however , that his van was never in any real danger and
that Martinez did not actually block h' im' from proceed-
ing. The entire incident occurred while the stoplight was
changing from red to green as the traffic slowly began to
move forward . At no time did Penney 's vehicle ever
exceed 5 miles per hour nor was Martinez driving any
differently from that of an individual attempting to
change lanes in a traffic jam.
Martinez denies the entire matter . He says he noticed
the van, remarked on it to a friend who was driving with
him, and then proceeded on his way . He specifically
denies saying anything to the driver (Whom he did not
seek to identify), denies throwing ice or spitting, and
denies attempting to cut the van off by chanting lanes.
IV. ANALYSIS AND CONCLUSIONS
In its decision in Clear Pine Mouldings, 268 NLRB
1044, 1046 (1984), the Board reconsidered its traditional
rule with respect to the reinstatement of strikers accused
of misconduct. Prior to this decision the Board had held
that a striker's verbal threats that were unaccompanied
by any physical, act or gesture would not constitute seri-
ous strike misconduct justifying an employer's denial of
reinstatement . It had also held that verbal threats that
were accompanied by physical movements or contacts,
such as hitting cars, did constitute serious misconduct. Its
rule, as set forth in Coronet Casuals, 207 NLRB 304
(1973), was that absent violence a striker was not to be
disqualified for reinstatement, despite having made abu-
sive threats against nonstrikers.
However, in Clear Pine Mouldings, a Board plurality
disagreed- with the, standard because it was inconsistent
with other'sections of the Act. It looked to the decision
of the Court of Appeals for the Third Circuit in NLRB
v. W. C McQuaide, Inc., 552 F.2d 519 (1977) and to the
decision of the First Circuit in Associated' Grocers of New
England v. NLRB, 562 F.2d 1333 (1977). Those courts
had disagreed with the Coronet Casuals approach. In
Clear Pine Moulding, the Board adopted these courts'
analysis stating that it rejected that per se rule that
words alone can never warrant a denial of reinstatement
in the absence of physical acts. Instead, the Board said, it
now agreed with those courts that a serious threat may
draw credibility from the surrounding circumstances and
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not from the physical gestures of the speaker , moreover,
an employer need not countenance conduct that amounts
to intimidation and threats of bodily harm . Specifically,
the Board adopted the McQuaide test, which it charac-
terized as an "objective" test, that the Board should look
to "whether the misconduct is such that, under the cir-
cumstances existing ,- it may reasonably tend to coerce or
intimidate employees in the exercise of rights protected
under the Act." Clear Pine Mouldings , supra at 1046,
quoting McQuaide, supra at 528.
Accordingly, it is now the obligation of the Board to
look at all the surrounding circumstances to -determine
whether or not the strikers ' acts may reasonably be seen
to have a coercive or intimidating effect on the employ-
ees who are also exercising a Section 7 right, the right
not to engage in a strike.
Since its decision in Clear Pine Mouldings, the Board
has decided a number of cases applying that rule. A cer-
tain amount of name-calling and posturing conduct has
passed muster. See, for example , MGM Grand Hotel, 275
NLRB 1015 (1985) in which strikers called nonstrikers
"scabs." Similarly, in Shalom Nursing Home, 276 NLRB
1123, 1135-1136 (1985), even racist name-calling and
taunting were deemed to be insufficient to warrant the
denial of reinstatement . Yet, in Georgia Kraft Co., 275
NLRB 636 (1985), when strikers visited a nonstriker's
home and threatened to "take care of' the nonstriker in
the presence of his pregnant wife and young child, the
Board deemed that verbal threat sufficient to warrant the
denial of reinstatement. In Clear Pine Mouldings itself,
the Board found that a striker who swung a 2-foot club
at a nonstriking motorcyclist and used the club to beat
on the vehicles of other nonstrikers was properly denied
reinstatement . The surrounding circumstances included
other strikers carrying other weapons , such as tire irons,
baseball bats, and ax handles, as well as being accompa-
nied by dogs . Also unprotected was a verbal threat to
kill a nonstriker when the individual making the threat
was equipped with a weapon that he had been using, as
was a statement to a nonstriker while crossing the picket
line that she was taking her life in her hands by crossing
the line and would live to regret it. Likewise unprotect-
ed was a threat to burn down the residence of a non-
striker.
As I view the cases , it seems to me that a striker's pos-
session of a weapon while simultaneously making the
threat will clearly warrant the refusal to reinstate. Also,
justifying the denial of reinstatement would be a threat
to burn a nonstriker's home. This sort of threat seems to
fall in the same category as the threat accompanied by a
,weapon because the act is so horrible that fire itself be-
comes a weapon. -
However, a threat made while at an individual 's home,
unaccompanied by any weapon, seems to fall into a less
clear category . In Georgia Kraft, supra, the threat was
made in the presence of the nonstriker 's pregnant wife
and child . That circumstance seems to have made the
threat more immediate and real . Would the result be dif-
ferent if the 'threat was more vague , was shouted from
some distance while simultaneously respecting the prop-
erty line , and in the absence of any especially vulnerable
family member?
Similarly, if no weapon is present when a nonstriker's
car crosses the picket line, but the strikers nonetheless
pound on the vehicle with their hands without damaging
the vehicle, can it be said that the conduct is intimidat-
ing? After all the persons inside the vehicle are not likely
to be harmed for they are physically shielded by the auto
itself. This is not to say that the din created might not
cause apprehension in reasonable individuals. Yet can it
be said that the strikers by such boisterous conduct have
done anything so serious as to warrant loss of employ-
ment? Hopefully, the surrounding circumstances test will
be helpful here.
A. Lionel Myles
Turning to the facts before me, I should observe that
for the most part all of the witnesses seem reasonably
credible in the presentation of their perception of what
happened. It is true that Lionel Myles exhibited some
areas of inconsistency, but on the other side it seemed to
me that John Sales had some problems as well, including
a failure to fully observe what was happening around
him. Nonetheless, assuming what Sales had to say was
true, it appears that Myles said that he was going to kick
Sales' fucking ass and break his bones, followed later by
a similar threat that Myles was going to bust Sales up
and that it was not simply a union scare tactic, but "be-
tween you and I, pal." Even so, at no time did Myles
approach Sales while Sales was, out of his vehicle and at
no time did Myles ever display a weapon. Sales was not
even sufficiently concerned to complain to the apartment
manager or to return to the company office. It seems to
me that Sales' own conduct here -demonstrates that he
did not consider the verbal threats to be very serious. I
reach this conclusion despite Sales' testimony that Myles
was shouting and gritting his teeth and Sales' assertion
that he had taken the threats seriously. Had he done so,
he would have sought immediate help for he was out-
numbered by the pickets. Despite his current' testimony,
he was so unconcerned when ' he went back to the yard
to fix his winch that he said nothing about it, and then
returned to the job.
Similarly, when he entered the vehicle to return to the
yard after the job was completed, Sales accused Myles of
repeating the threats and of pounding on the company
truck with his hands. He agrees that other pickets were
making similar remarks and also pounding on the vehi-
cle. He was so unafraid he got out to check the tires.
When he did so nothing happened to him. It was not
until he discovered that the truck had suffered the flat
tires that he even bothered to report the incident to the
Company.
I am of the view that this incident is not so serious as
to warrant denying Myles reinstatement. While the inci-
dent is not to be condoned, nonetheless it appears that
the entire incident, except for the flat tires (to which
Myles is not in any way connected) was simply a vocif-
erous and boisterous needling of a nonstriker. Sales did
not take the threats seriously because they were not
made in a serious vein. Similarly, the pounding on the
truck did not actually amount to a physical threat to
him. Had the pickets or Myles wished to actually strike
ROTO ROOTER
Sales, they could easily have done so when he exited his
vehicle : to discover flat tires. Yet they refrained from any
physical contact whatsoever . I conclude, therefore, that
the incident at the Eden Lodge is not sufficient to war-
rant denying reinstatement to Myles.
Similarly, Sales testified that in late November , about a
week before the strike ended , Myles said that he was
going to return in a week and would "take care of" Sales
then . Myles denies this incident in its entirety . Adding
credence to his denial is his statement that he did not
know when the strike was to end so he wouldn't have
said that he was going to return in a week . In any event
this is a threat that was unaccompanied by any gesture
or deeds suggesting that it had credence . Here I accept
Myles's denial.
With respect to Myles allegedly blocking Akana, it
seems to me that the incident speaks for itself. Akana had
to stop at the sidewalk for traffic anyway, chose to listen
to the pickets, and then proceeded without further delay.
He testified that he could have left at any time and that
the pickets did not block his exit. Accordingly, I con-
clude that neither Myles nor anyone else actually
blocked Akana's egress . Connected to that incident,
however , is Akana's testimony that Myles told him to
tell "Don A" that Myles intended to break his legs.
Akana didn't even know who Don A was at the time.
Even so, Myles had no weapon and no immediate appar-
ent ability to carry out the threat. Don A was not to be
seen . Again, while I do not condone his language, Akana
was not particularly concerned with it and proceeded on
his way. The threat appears remote and not sufficient to
warrant denying reinstatement.
Similarly , I am unimpressed with the evidence tending
to show that Myles blocked the driveway with his vehi-
cle. Even accepting Wray 's version that Myles parked
his pickup truck horizontally across the driveway, it ap-
pears that there was still sufficient space for another ve-
hicle to have passed; in any event the second driveway
was not blocked . Furthermore, even though Myles may
have told Wray that he wasn't going to move his car,
Myles testified that he did so and Respondent has pre-
sented no evidence to the contrary . Aside from Myles'
testimony that the truck was parked there only briefly,
there is no evidence regarding the length of time the
truck remained in the driveway . Finally, there is no evi-
dence that anyone actually attempted to enter the drive-
way during that period . This incident certainly would
not warrant denying Myles reinstatement.
Finally, Respondent points to the incident involving
Myles and nonstriker Scott Johnson . The fact that Myles
and another striker followed Johnson to his home is of
little significance . Certainly Myles intended to picket
Johnson at a repair site. He did not know that Johnson
was going home to get his lunch . There is no evidence
that Myles entered Johnson's property or did anything
other than to shout at him from the street . Johnson,
however, was understandably upset that he had been fol-
lowed to his home . Undoubtedly Johnson believed, as do
most people , that his home was safe from the labor dis-
pute. Yet Johnson inadvertently carried the labor dispute
to his house when he drove the company truck there.
The Union did have the right to engage in ambulatory
777
picketing and was merely attempting to exercise that
right. Johnson's fear, because he was followed, is magni-
fied beyond reasonableness. Respondent, however, points
to Myles' alleged remark that he would follow Johnson
"until he died." Frankly, I find the language to be am-
biguous. It may simply have been hyperbole on Myles'
part, asserting that he intended to engage in ambulatory
picketing until Johnson was tired of it. On the other
hand it could mean that Myles literally intended to dog
Johnson's trail until he became physically exhausted and
died. The latter version seems to be most unlikely given
the Union's desire to engage in lawful ambulatory picket-
ing. Accordingly, I conclude that Myles' alleged threat
here was not a threat at all, but simply a statement made
to advise Johnson that he and the Union were tenacious-
ly adhering to the strike. Moreover, the statement was
made to Johnson who was a party to the labor dispute,
not to his family as in Georgia Kraft Co., supra. I con-
clude that this incident does not justify denying Myles
reinstatement.
B. Steve Martinez
The last incident involves Steve Penney's version of
what Steve Martinez allegedly did and said at the stop-
light on Hesperian Boulevard . Frankly, even crediting
Penney's version, it seems to me that nothing untoward
happened . Assuming that Martinez edged his vehicle in
front of Penney's, spit at the van, threw ice at it, and
threatened to "kick Penney's ass ," nothing really signifi-
cant happened . Penney was never in any danger and did
not reasonably believe himself to be in any danger. At
the most, his vehicle was moving only 5; miles .an hour
and he was well protected by the vehicle itself. Martinez
never left his vehicle and he did not even attempt to
harm Penney's person. The incident lasted only a few
moments and it seems unlikely to me that Penney was in
any way actually intimidated.
I should say here that although I have credited Pen-
ney's version for the sake of analysis , in some respects I
find Martinez to be the more credible of the two. Marti-
nez was driving his own personal vehicle, was not fol-
lowing Penney but happened on him by chance, and it
seems unlikely he would have drawn his passenger friend
into a near-violent situation in the middle of traffic.
Moreover, as the light changed Martinez did nothing to
continue the encounter , but proceeded on his way. In
any event, I find that the incident did not reasonably
tend to coerce or intimidate Penney in any manner. Ac-
cordingly, I would not deny Martinez reinstatement
based on this incident.
In conclusion, I find that Respondent has not sustained
its burden of proof that either Myles or Martinez en-
gaged in a serious act of misconduct such as to disqualify
either of them from reinstatement . Accordingly, I con-
clude that when Respondent denied reinstatement to
Myles and Martinez at the end of the strike , it did so on
the basis that they engaged in the strike, conduct clearly
protected by the Act. The denial of reinstatement consti-
tutes a violation of Section 8(a)(3) and (1) of the Act.
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in certain
violations of Section 8(a)(3) and (1) of the Act, I shall
recommend that it be ordered to cease and desist there-
from-and to take ,certain affirmative action designed to
effectuate the policies of the Act. In this regard, Re-
spondent shall be ordered immediately to reinstate
Lionel Myles and Steve Martinez.to their former jobs,
dismissing.if necessary any replacements , or if those posi-
tions no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and
privileges and to make them whole with interest for loss
of earnings as described by the Board in F. W. Woolworth
Co., 90 NLRB 289 (1950) and Florida Steel Corp., 231
NLRB 651 (1977). See, generally, Isis Plumbing Co., 138
NLRB 716 (1962).,In addition, Respondent shall be re-
quired to remove from its records any reference to the
unlawful discharges and shall provide each of them with
written notice of such removal and to inform each that
the discharges will not be'used ras a basis for further per-
sonnel actions concerning him.
On the foregoing fmdings of fact and the entire record
in this case, I make the following
CONCLUSIONS OF LAW
1. Respondent F. E. Wray, Inc. d/b/a Roto Rooter is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Warehouse , Mail Order and Retail Employees and
Wholesale Liquor Salespersons , Local 853, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America is a labor organization "within
the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the
Act on December 3, 1984 by refusing to reinstate strikers
Lionel Myles and Steve Martinez to their former posi-
tions of employment because they had engaged in a pro-
tected strike.
[Recommended Order omitted from publication.]