Teledyne Still-Man

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 161 (N.L.R.B. 1989)

TELEDYNE STILL-MAN
Teledyne Industries, Inc. d/b/a Teledyne Still-Man
and Linda Minnear and Ellen- Crawford and
Willie Wheeler and Michael Harris and Oma
Stidham . Cases 10-CA-21421, 10-CA-21507,
10-CA-21541, 10-CA-21619, and 10-CA-
21689
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 6, 1987, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief
and the General Counsel filed an answering 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 briefs and has
decided to affirm the judge 's rulings, ' findings,2
and conclusions3 and to adopt the recommended
' After the conclusion of the hearing , the Respondent moved that the
record be reopened for the purpose of introducing newly discovered evi
dence concerning Willie Wheeler 's knowledge of the contempt proceed-
ings in which he was a named party . The judge denied the motion. Be-
cause the record clearly shows that there was not an adjudication of
Wheeler 's guilt or innocence in those proceedings , the evidence sought to
be adduced would not require a different result in this case . See Sec.
102.48(dXl) of the Board 's Rules and Regulations. Therefore the judge
properly denied the motion.
2 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
a We agree with the judge that the discharges of Oma Stidham and
Willie Wheeler were unlawful . Both Stidham and Wheeler were dis-
charged for alleged misconduct arising out of protected activity ; howev-
er, the General Counsel proved that neither Stidham nor Wheeler actual-
ly engaged in that alleged misconduct . Therefore, the Respondent's dis-
charge of Stidham and Wheeler violated Sec 8(a)(1) NLRB v. Burnup &
Sims, 379 U .S. 21 (1964). Although the judge also found that the Re-
spondent's conduct violated Sec . 8(a)(3), we find 1t unnecessary to pass
on the 8(aX3) allegations. The recommended Order and notice are modi-
fied accordingly.
In adopting the judge's finding that Wheeler did not engage in conduct
that would warrant the Respondent's refusal to reinstate him, we note
that the judge credited Wheeler, who testified that he did not picket on
July 13 , the day the alleged vehicle blocking incident occurred. In light
of the judge 's crediting Wheeler's testimony, we find it unnecessary to
rely, as the judge did , on the picket rosters , in concluding that Wheeler
was not on the picket line the day the alleged blocking incident occurred.
The judge found it probable that Stidham was present on the street in
front of nonstriker Linda Young 's apartment in conjunction with her pro-
tected activity of obtaining strike information from law enforcement offi-
cials. We disavow the judge 's finding and find it unnecessary to deter-
mine why Stidham was present in front of Young 's apartment since we
adopt the judge 's findings that she did not engage in the alleged miscon-
duct of following the nonstrikers to Young 's apartment and that she did
not threaten the nonstrikers.
The judge incorrectly reported the citation to Markle Mfg. Co., 239
NLRB 1142, 1151 (1979 ), enfd . as modified 623 F .2d 1122 (5th Cir . 1980).
161
Order as modified.4 In remedying the unfair labor
practices, the judge ordered the Respondent to re-
instate, with backpay, Stidham and Wheeler.5 The
Respondent asserts that backpay is inappropriate
because it had a good-faith belief that Stidham and
Wheeler engaged in misconduct based on the
Board's naming them in the 8(b)(1)(A) complaint
and the injunction proceedings in Federal court.
We find no merit in the Respondent's position. Jus-
tice Harlan, in his dissent in Burnup & Sims, supra,
similarly suggested that an employer should not be
liable for backpay for the period in which it held a
good-faith belief that the individual engaged in mis-
conduct; however, the court majority reasoned that
protection of the Section 7 right to engage in con-
certed strike activity (a right protected against em-
ployer interference by Section 8(a)(1)) is of para-
mount concern and that the discharge of an inno-
cent employee for exercising such a right, regard-
less of an employer's good-faith belief that the em-
ployee engaged in misconduct, substantially weak-
ens that right. Burnup & Sims, supra at 24-25.
Likewise, the failure to restore a discharged inno-
cent employee to the status quo ante, i.e., by order-
ing reinstatement and backpay, would have the
same tendency to weaken the Section 7 right, i.e.,
to discourage participation in any future strikes out
of fear that he or. she might lose a job no matter
how benign his or her own conduct. Thus the
proper remedy includes both reinstatement and
backpay. See also Ferrell-Hicks Chevrolet, 160
NLRB 1692 (1966).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Teledyne Industries, Inc. d/b/a Teledyne
Still-Man, Cookeville, Tennessee, its officers,
agents, successors, and assigns , shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Discharging or denying reistatement rights
to any employee for having engaged in a lawful
strike or other concerted activity protected under
the provisions of Section 7 of the National Labor
Relations Act."
4 The judge included a visitatorial clause in his recommended Order
authorizing the Board , for compliance purposes , to obtain discovery from
the Respondent under the Federal Rules of Civil Procedure subject to
the supervision of the United States court of appeals enforcing this
Order. Under the circumstances of this case , we find it unnecessary to
include such a clause Cherokee Marine Terminal, 287 NLRB 1080 (1988).
Accordingly, we will modify the recommended Order to delete the
clause.
3 Interest will be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
295 NLRB No. 25
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Substitute the following for paragraph 2(e).
"(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
3. Substitute the attached notice for that of the
adminstrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge or deny reinstatement
rights to any employee for having engaged in a
lawful strike or other concerted activity protected
under the provisions of Section 7 of the National
Labor Relations Act.
WE WILL NOT in any like or , related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Oma Stidham, and Willie Wheel-
er immediate and full reinstatement to their former
jobs or, if such jobs no longer exist , to substantially
equivalent positions , without prejudice to their se-
niority or other rights and privileges previously en-
joyed , and make them whole for losses they have
suffered as a result of our unlawful conduct, with
interest.
WE WILL expunge from our files any reference
to the discharges of Oma Stidham and Willie
Wheeler, and notify them in writing that this has
been done and that evidence of their unlawful dis-
charge will not be used as a basis for future person-
nel actions against them.
TELEDYNE INDUSTRIES , INC. D/B/A
TELEDYNE STILL-MAN
Victor A. McLemore, Esq., for the General Counsel.
Alan L. Rolnick Esq., of Atlanta, Georgia, and Larry W.
Bridgesmith, Esq. and William A. Blue Jr., Esq., of
Nashville, Tennessee, for the Respondent.
DECISION
on 29, 30, and 31 October and 5, 6, 7, 18, and 19 Novem-
ber 1986. The charges in Cases 10-CA-21421, 10-CA-
21507, 10-CA-21541, 10-CA-21619, and 10-CA-21689
were filed respectively by Linda Minnear , an individual,
on 30 December 1985, by Ellen Crawford , an individual,
on 24 January 1986, by Willie D. Wheller, an individual,
on 10 February 1986, by Michael Dale Harris , an indi-
vidual , on 18 March 1986 , and by Oma Stidham , an indi-
vidual , on 14 April 1986. The third amended consolidat-
ed complaint , which issued on 27 June 1986 and was
amended at the hearing, alleges that Teledyne Industries,
Inc. d/b/a Teledyne Still-Man (the Company or Re-
spondent) violated Section 8(a)(3) and (1) of the National
Labor Relations Act. The gravamen of the complaint is
that the Company allegedly terminated Minnear, Craw-
ford, Wheeler, Harris, and Stidham and failed and re-
fused to reinstate them because of their membership in
and activities on behalf of International Association of
Machinists and Aerospace Workers, AFL-CIO and
Local Lodge 2553 (the International and the Local, and
collectively the Union) and because they participated in
an economic strike against the Company which com-
menced on 1 February 1984. The Company's answer
denied the commission of the alleged unfair labor prac-
tices, and affirmatively asserts, in sum, that the Company
terminated the employment of the alleged discriminatees
as a result of its "good faith belief that the named em-
ployees had engaged in misconduct during the course of
the strike which had a reasonable tendency to coerce or
intimidate other employees in the exercise of rights pro-
tected under the Act," and that General Counsel is es-
topped and otherwise precluded by law from contending
otherwise with respect to certain of the alleged discri-
minatees . All parties were afforded full opportunity to
participate , to present relevant evidence , to argue orally
and to file briefs.
On the entire record in this case2 and from my obser-
vation of the demeanor of the witnesses and my observa-
tion of a location involved in this case ,3 and having con-
sidered the briefs submitted by General Counsel and the
Company, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The.Company, a California corporation, maintains an
office and plant in Cookeville, Tennesseee , where it is
engaged in the manufacture and sale of heating elements.
In the operation of its business , the Company annually
ships from its Cookeville plant finished products valued
in excess of $50,000 directly to customers located outside
the State of Tennessee . I find, as the Company admits,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These
consolidated cases ' were heard at Cookeville, Tennessee,
' The caption was amended at the hearing to reflect the correct name
of the Respondent , and to reflect the deletion , on motion by General
Counsel, of allegations pertaining to James Daniels , an individual (Case
10-CA-21768).
2 By a ruling and order dated 13 January 1987, I directed that the sten-
ographic transcript of proceedings be corrected in certain respects
a With the knowledge and concurrence of the parties, I personally ex-
amined the premises of Druthers Restaurant , where the alleged miscon-
duct involving Michael Harris took place.
TELEDYNE STILL-MAN . ' 163
H. THE LABOR ORGANIZATION INVOLVED
The International is and the Local was at times materi-
al, each 'a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Context of the terminations: the
Union 's Strike and its Consequences
In 1975 the Board certified the Union as the collec-
tive-bargaining representative of the Company's produc-
tion and maintenance employees at its Cookeville plant.
Thereafter the Company and the Union negotiated suc-
cessive contracts , the last of .which expired 31 January
1984.4 In late January the parties reached tentative
agreement on a new contract , but the agreement was re-
jected by the Union' s membership . On 1 February the
Union commenced an economic strike against the Com-
pany, including picketing at the Cookeville plant. Ap-
proximately 350 employees went on strike . For 4 weeks
the Company operated only with salaried (nonunit) per-
sonnel . By letter dated 23 February the Company noti-
fied the employees of its intention to begin hiring perma-
nent replacements on Monday, 27 February, if the strike
was not settled by that date. On 28 February replace-
ments and some striking employees crossed the picket
lines to work at the plant . In the'meantime the picketing
began in a peaceful an orderly fashion . However, begin-
ning in the second week the strike was marked by acts of
misconduct, specifically, scattering of nails in driveways.
On 27 February, to use an old expression , all hell broke
loose . Beginning on that date, the strike was marked by
mass picketing , blocking of entrances and access routes,
and threats and acts of harassment and violence. On ap-
plication by the Company, the Circuit Court for Putnam
County, Tennessee, at 6:15 p.m. on 27 February, issued a
temporary restraining order enjoining the Union, its offi-
cers, agents, members, and associates , and persons acting
in concert with them , from in sum engaging in mass
picketing , obstruction of access to and from the Compa-
ny's premises , threats and acts of violence or other mis-
conduct in connection with the strike . However, the
state court injunction and the efforts of local law en-
forcement authorities did not effectively curb the unlaw-
ful activity. On 22 February the Company filed an unfair
labor practice charge (Case 10-CB-4281) alleging that
the Union was violating Section 8(b)(1)(A) of the Act.
On 22 March, General Counsel, by the Regional Direc-
tor for Region 10, issued a complaint alleging, among
other things, specific acts of strike misconduct by named
individuals , including present alleged discriminatees Min-
near, Stidham , and Crawford.5 On 28 March the Board
petitioned the United States District Court for the
Middle ' District of Tennessee for temporary injunctive
relief pursuant to Section 10(j) of the Act, based on the
allegations of the complaint. On 4 April the district
court, upon consent of the Board and the Union , entered
a temporary injunction order enjoining in sum, mass
4 All dates are for 1984 unless otherwise indicated
In this and some subsequent pleadings , Stidham was sometimes mis-
takenly referred to as Ida Stidham.
picketing and other strike misconduct. There was no
hearing and the parties waived findings of fact and or
conclusions of- law. On 3 May the Company filed an-
other unfair labor practice charge (Case 10-CB-4322) al-
leging that the Union maintained an unlawful no-resigna-
tion rule. On 12 June the General Counsel issued a con-
solidated complaint in Cases 10-CB-4281 and 4322, en-
compassing the prior allegations and the no -resignation
rule. In the meantime , on 11 May the Board filed a peti-
tion with the district court to adjudicate the Union and
20 named individuals in civil contempt of the outstanding
injunction order . On 22 May, following a hearing, the
court found five of these individuals guilty of civil con-
tempt and dismissed the allegations against the other de-
fendants: None of the alleged discriminatees in the
present case were named in this contempt proceeding.
On 13 August the Company commenced operating a
second shift, and this action precipitated a resurgence of
strike misconduct. On 15 August the Company filed an-
other 8(b)(1)(A) charge against the Union (Case 10-CB-
4385) alleging numerous acts of strike misconduct during
the period from 1 May through 13 August , and naming
numerous strikers and having engaged in such miscon-
duct. The charge did not name any of the alleged discri-
minatees in the present case . On 16 August the Board
filed a petition (and on 24 August an amended petition)
with the district court, for adjudication in civil contempt
of the injunction order and for institution of criminal
contempt proceedings. The petition requested that the
Union and 36 named individuals , including Willie Wheel-
er, be adjudicated in civil contempt, and that the Union
and 4 of these individuals (not including Wheeler) be
prosecuted for criminal contempt. On 29 August the dis-
trict court , upon consent of the parties , entered an order
which in sum provided for certain relief in lieu of con-
tempt proceedings , and dismissed the petition for adjudi-
cation in civil contempt. The order in part directed that
the named individuals be excluded from participation in
the picket line "and shall not come within five hundred
feet of the employer's facility," and that any person sub-
sequently cited and found in contempt of the court's
orders as a result of further misconduct would be found
in criminal contempt and punished accordingly. The
order was entered in open court on the return date of
the Board petition . However, there was no hearing and
the court made no findings of fact or conclusions of law.
Thereafter the picketing was conducted in a lawful
manner and there were no further allegations of strike
misconduct. On 27 September the General Counsel
issued a second amended consolidated complaint , encom-
passing the allegations in Cases , 10-CB-4281, 10-CB-
4322, and 10-CB-4385. On 23 August 1985 the General
Counsel , the Company , and the union entered into a set-
tlement stipulation , subject to the Board 's approval, pro-
viding for the entry of a consent order by the Board and
a consent judgment by any appropriate United States
court of appeals . The stipulation contained a nonadmis-
sion clause, specifically providing that "Respondent
Unions, by the execution of this Stipulation, do not admit
that they violated the Act." On 10 December 1985 the
Board , on'the basis of the settlement stipulation, issued
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its Decision and Order in the matter . In accordance with
its usual procedure , the Board made jurisdictional but no
other findings. The Board's Order enjoined the Union, its
officers, agents , and representatives and persons acting in
concert with them , from enumerated acts of strike mis-
conduct, and from otherwise interfering with , restrain-
ing, or coercing company employees in the exercise of
Section 7 rights. Although the strike ended on 5 April
1985, the Board 's Order contained restrictions on picket
line activity , including a provision excluding certain
named individuals , including Willie Wheeler, from par-
ticipating in the picket line or coming within 500 feet of
the Company 's facility . None of the alleged discrimina-
tees in the present case ever had a hearing on the allega-
tions against them , were ever adjudicated as having en-
gaged in striking misconduct , or admitted in any adminis-
trative of judicial proceeding that they engaged in strike
misconduct . The Board 's Regional Office did not, prior
to naming Minnear, Stidham , Crawford, and Wheeler in
the various pleadings , take statements from or otherwise
contact them.
In the meantime , by September 1984 the Company had
through reduction of the normal work force, hiring of
permanent replacements , and return of employees who
adandoned the strike , achieved a full complement. On 5
September the Company established a rehire priority list.
As employees called , wrote or came in to offer to uncon-
ditionally return to work, their names were placed on
the list . However , early in the strike the Company decid-
ed that it would terminate employees for strike miscon-
duct. The Company monitored the conduct of the strike.
During the strike the Company had over 50* security
guards on duty, and these guards submitted reports at
the end of each shift. Beginning on 27 February the
Company installed cameras on its premises and began vi-
deotaping picketing or other strike activity at and in the
vicinity of its premises . Supervisors were instructed and
nonstriking employees were encouraged to report inci-
dents of strike misconduct . Company Personnel Director
Cecil Cummings also periodically observed the picketing
and other strike activity in the vicinity of the plant. At a
negotiating session on 23 February the Company initially
informed the Union of its intention to terminate employ-
ees for strike misconduct . The Company stated that it
did not wish to do so en masse, as this might precipitate
further violence and filing of unfair labor practice
charges . The Company asserted that instead, it reserved
the right to terminate employees for strike misconduct
within 14 days following ratification of a new contract,
although it also reserved the right to terminate them at
an earlier time . As it became increasingly apparent that
the parties were not likely to reach agreement on a con-
tract in the near future, if at all , the Company modified
its position to state that it reserved the right to terminate
employees for strike misconduct within 14 days after
they became eligible for reinstatement . By eligibility, the
Company referred to the date when the employee
reached a point on the rehire priority list when there
was a job opening for which he or she was qualified, and
the Company was prepared to offer that job to the em-
ployee. The Company adhered to this position through-
out the negotiations and restated its position at a decerti-
fication hearing (Case 10-RD-913) on 21 February 1985.
The Union disagreed with the Company's position, and
the parties never reached agreement on the matter. The
Company also adhered in practice to its stated position.
Striking employees who unconditionally offered to
return to work were placed on the rehire priority list, re-
gardless of whether the Company believed they had en-
gaged in strike misconduct . The Company sent followup
letters to employees inquiring whether they were still in-
terested in returning to work, again without regard to
whether the Company believed they engaged in strike
misconduct . However, as employees reached the top of
the list and became eligible for job openings , the Compa-
ny terminated some for alleged strike misconduct. The
first employee so terminated (not one of the alleged dis-
criminatees in this case) was terminated in January 1985.
In each instance the Company sent the employee (includ-
ing the alleged discrimnatees) a letter signed by Person-
nel Director Cummings containing the following perti-
nent language:
After a careful review of the applicable evidence,
Teledyne Still-Man is terminating your employment
effective today, based on our good faith belief that
you have been guilty of strike misconduct as de-
'fined by the National Labor Relations Act in appli-
cable decisions of the National Labor Relations
Board.
Cummings testified that in each case he made the deci-
sion to terminate after reviewing the evidence and con-
sulting with company counsel . The Company did not
give any advance notice to the alleged discriminatees, or
inform them of the particulars of the alleged misconduct,
or ask for their side of the story before terminating them.
During contract negotiations the Company refused to
give the Union the names of employees who it intended
to terminate for strike misconduct, asserting that the re-
quest was premature. The Union filed unfair labor prac-
tice charges based in part on this refusal , but the charges
were administratively dismissed.
In April 1985 , following a Board -conducted election,
the Union was decertified as bargaining representative.
The strike ended on 5 April 1985, and the local, which
had represented only the Company's employees , ceased
to exist.
At this point I shall take up the cases of the individual
alleged discriminatees , dealing with them insofar as prac-
ticable in chronological order of the alleged strike mis-
conduct attributed to them.
B. Michael Harris
Michael Harris worked for the Company as a shipping
and receiving clerk. He joined the strike and participated
in the picketing . On 17 April 1985 he unconditionally of-
fered to return to work. The Company sent.Harris a ter-
mination letter dated 27 January 1986. Personnel Direc-
tor Cummings testified in sum that he terminated Harris
because Harris and others assaulted John Cass, a non-
striking employee, at Druthers Restaurant in Cookville
on 28 or 29 February . Cummings testified that in making
his decision he relied on Cass' report, a police report of
TELEDYNE STILL-MAN 165
the incident , and a local court proceeding involving a
complaint filed by striking employee Fred Heady against
Cass, arising out of the incident . Harris is the only al-
leged discriminatee who was not named in any Board
complaint or in any pleading filed in the 10(j) injunction
proceeding . The pleadings do not even refer to any inci-
dent at Druthers Restaurant , and the Company does not
contend that it relied in whole or part on the pleadings
of other representations of General Counsel in making its
decision to terminate Harris.
On Tuesday , 28 February , strikers followed nonstrik-
ing employees as they drove away from the plant after
work . The previous day John Cass came to the plant
seeking employment . Cass had not previously worked
for the Company . Cass had previously served as a police
officer in another community . It is evident from Cass'
testimony that he is a trained observer , and is experi-
enced and knowledgeable in dealing with a crisis situa-
tion . As Cass arrived at the plant, he was approached by
three strikers , including one whom he later learned was
Heady . After asking him questions, Heady told him
"We're on strike, you don't have any business being
here, you need to get out of here ," and "its going to get
rough around here, . don't come back ." The next day (28
February) at about 7 a.m., Cass again came to the plant,
filled out a job application, was hired, and commenced
working . Cass and other employees left work at or short-
ly after 4:30 p . m. Cass was alone and driving his Toyota
pickup truck . As he left the plant premises a red pickup
truck with two men inside pulled out directly behind
him and proceeded to follow him. Cass drove to Druth-
ers' Restaurant , which is located at the opposite end of
Cookeville from the plant . He parked in front of the res-
taurant, in the last parking space on the left (facing the
restaurant), adjacent to a handicap ramp . Cass testified as
to the following sequence of events : The red pickup
truck pulled up next to him on his left, with its right
wheels on the handicap ramp . Then a pale green or
yellow truck pulled up behind him. (Cass has difficulty
distinguishing the two colors.) The two vehicles blocked
in Cass' vehicle . Heady was the passenger in the red
pickup , and a man whom Cass later learned to be Mi-
chael Harris was a passenger in the other pickup. Cass
identified Harris in open court at the present hearing.
Heady wedged himself against Cass ' cab door and
pounded on the window with his fists , swearing at Cass,
calling him scab, and telling him "I told you yesterday
not to come out there , and this is what you get." Then a
woman whom Cass later learned to be Anna Key came
running up and began beating on his truck with her
hands, yelling "f-scab ." Next another man came up and
began beating and kicking on his passenger door (Cass
had locked both doors). Then Cass saw Harris reach
under the seat of the truck behind him and emerge with
a 12-inch crescent wrench. Harris then approached Cass'
passenger door . At this point Cass unlocked his driver
side door, kicked the door open knocking Heady down,
and initially retreated to the sidewalk in front of Druth-
ers, taking with him a sledgehammer handle which he
had in his cab. Cass next fled into the open area of the
parking lot in front of Druthers , where he was confront-
ed by a group of about six individuals, including Heady
Harris, and Anna Key. (Cass was not able to identify the
others by name . However as will be discussed, Harris
and Key testified as to the identity of at least some of the
other persons .) 'In the meantime a crowd of some 25 to
50 persons had gathered . Some ' were on the sidewalk,
others in the parking lot, and vehicles were scattered in
the open area of the parking lot. Cass testified that most
of them had CB radios , although he did not identify any
particular vehicle as having such equipment . Many in the
crowd were yelling at Cass, calling him scab and shout-
ing obscenities . Heady kept repeatng , "I want some of
you, you [S .O.B.]." Cass was holding his hammer handle
in an on-guard position . Harris told him to put down the
handle, whereupon Cass asked Harris what he was going
to do with the wrench he had in his hand. Harris replied,
"I'm going to beat your brains out with it." Cass did not
put down his stick . One man in the group , whom Cass
described , said "Let's get him, he can't get us all."
Heady and the other mari kept advancing on Cass. An-
other man had a stick or pipe in his hand . Cass kept tell-
ing the group to leave, saying "we don 't want any trou-
ble." Eventually a.patrol car pulled into the parking lot
and a policeman approached the group . At this time the
crowd retreated toward their vehicles and Harris put the
wrench in his back pocket , under his field jacket. Cass
told the officer that Harris had the wrench in his pocket.
The officer removed the wrench and Cass' hammer
handle . Cass did not see the stick in the other man's
hand; however, before the officer arrived he saw some-
one throw an object across the street toward a vacant
lot. The officer told the remaining persons to disperse,
and Cass went into the restaurant to eat . The next morn-
ing (29 February) Cass reported the incident to the Com-
pany. Cass described the incident to the Company's at-
torney, and furnished an affidavit to the Board 's, field ex-
aminer . The following week Cass saw Harris on the
picket line, and identified him to Personnel Director
Cummings as being one of the persons involved in the
incident.
Cass' testimony was corroborated in pertinent portions
by Frances Huddleston and police officer James Lane,
who were presented as company witnesses , and by Cum-
mings . At the time of the incident , Huddleston was em-
ployed by Druthers and was on duty at the front
counter . Druthers has large glass windows at the front of
the restaurant, and Huddleston had a clear view of the
area immediately in front of the restaurant . Huddleston
testified in sum as follows: Sometime between 4:30 and
5:30 p .m. Cass pulled up to the restaurant , whereupon
other people got out of their vehicles , headed toward
Cass' truck, and gathered around. A man and woman
were standing in front of Cass' truck and the woman was
making a downward motion. Another man was hitting
and kicking Cass' truck , and a third man, whom Huddle-
ston identified at the hearing as Michael Harris, stood
near the rear of Cass' truck with a wrench in his hand,
shaking it back and forth. Other persons joined them and
made angry motions at Cass. Cass was blocked. A red
pickup truck was parked partially on the handicap ramp
and another truck was behind his . Cass emerged from his
truck with something that appeared to be an axe handle.
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At this point Huddleston telephoned the police. Cass
went around the front and passenger side of his truck
and backed away into the parking lot. Huddleston did
not leave the restaurant , and she could not see exactly
what happened in the open area of the parking lot. How-
ever she did see that some six to eight people were
standing near Cass, and that others were gathered on the
sidewalk and in the parking lot. Some vehicles were in
the open areas of the lot . Cass and the group near him
were still there when the police came . Huddleston did
not see any potential weapons or similar objects other
than those carried by Cass and Harris . After the police
arrive Cass came into the restaurant and had his meal.
Huddleston testified that on the basis of her observation,
it appeared that the people who came up to Cass' truck
started the trouble , because they began their assault
before Cass had even gotten out of his vehicle . Officer
Lane testified that he was dispatched to Druthers be-
tween 3:30 and 7 p.m. When he arrived on the scene he
found Cass standing in the middle of the parking lot
holding an axe handle , with six or more persons in a
horseshoe position around him . The group appeared to
be surrounding Cass, and Cass appeared to be backing
away from them . There was a crowd , and vehicles were
scattered around the parking lot. There was a lot of hol-
lering going on, and Heady was making more noise than
the others . Lane radioed for assistance . He took the axe
handle from Cass and removed a 12-inch crescent
wrench from Harris' back pocket . (He later returned
them .) Lane did not see any other comparable objects.
Heady claimed that Cass hit him and had a weapon, and
asked Lane about a warrant . Lane filed a report of the
incident . Personnel Manager Cummings testified that he
was advised of the incident at Druthers , and that subse-
quently at the picket line Cass identified Harris as being
one of those involved in the incident.
Harris, who was visibly nervous on the witness stand,
testified in sum concerning the incident as follows: On
the afternoon of 28 February , Harris and Ricky Lynn at-
tended a special union meeting at the Labor Temple in
Cookeville. After the meeting , which ended at 5 p.m. or
shortly thereafter, they drove to Druthers Restaurant in
Lynn's 4-wheel vehicle , in order to get something to eat.
They pulled into a parking space in front of the restau-
rant. As they entered the parking lot they saw two other
strikers, Fred Heady and Bobby Scantland , standing in
front of a man holding a stick . Scantland's vehicle, a
light green pickup truck, was parked in a space to the
left of the third man's vehicle (the third man being Cass),
and there was no vehicle behind that of Cass . Lynn and
Harris parked , got out of their vehicle, and walked to-
wards the others . As he left the vehicle, Harris took out
a 6- to 8-inch crescent wrench and placed in is his back
pocket, under his coat . Harris failed to explain why he
found it necessary to take the wrench with him. Heady
twice asked Cass, in a normal tone of voice, what he was
trying to prove "going in there and stealing people's
jobs." Cass said nothing . In the meantime Anna and
Doyle Key pulled up in their red pickup truck. (Anna
Key was also a striking employee . Her husband Doyle
was not a company employee , but was chief steward for
an IAM Local at another firm .) They left this vehicle
near the drive-through window (on the left side of the
building as one faces Druthers ) and came over to the
others . Anna Key asked what was going on, and Harris
answered that "the guy had a stick pulled on Fred."
Harris .in his testimony never explained how he knew
that Cass pulled a stick on Heady . Indeed , in Harris' de-
scription of the incident , he never indicated that Cass
had in any manner acted aggressively ' or had even said
anything . Harris testified that he did not hear anything
else said until the police arrived , that he said nothing to
Cass, and did not even know who Cass was , that he did
not know how the others happened to be there , that he
did not see any weapons , and that he did not know of
anyone else connected with the strike who was at the
scene . Presumably the silence and inactivity were so
overpowering as to necessitate the arrival of a police of-
ficer on the scene , who upon observing the situation
called for reinforcements . Harris testified that between 6
and 6 :30 p.m . that evening , i.e., less than an hour after
the incident , he was sitting down to dinner with his wife,
either at home or at his mother-in-law's home, although
Harris -lived in another town . Harris' wife and mother-in-
law must have had great presence of mind to expect
Harris for dinner , in view of his testimony that he and
Lynn intended to eat at Druthers . The inference is war-
ranted , and I so find , that they did not go to Druthers
for the purpose of eating . The General Counsel also pre-
sented Anna Key as a corroborative witness . As with
Harris, the essence of her testimony was that nothing
much happened . She even testified that she did not hear
Heady say anything, although even Harris admitted that
Heady was abusive toward Cass . Her testimony concern-
ing her arrival at Druthers is illuminating. Key testified
that she and her husband went to the union meeting
where they did not see Heady, Harris, or Scantland, and
after the meeting immediately went to Druthers, al-
though they had never been to Druthers before. They
pulled up to the drive-in window , but upon seeing Harris
they immediately abandoned their vehicle without wait-
ing for their order and rushed over to join him, although
they had no evident reason to believe that anything was
wrong, and could not see around to the front of the
building from the drive-in side.
I credit the testimony of Cass, who impressed me as a
credible witness and an accurate observer of the events.
Cass' testimony is not inconsistent with his affidavit.
Two disinterested witnesses , Frances Huddleston and of-
ficer James Lane, corroborated Cass in the important re-
spect that the both observed that Harris and the others
were ganging up on Cass . Huddleston also corroborated
Harris in the crucial respect that she saw Harris waving
his wrench at Cass, and that he did so before Cass
reached for his axe handle . I have no reason to disbelieve
the testimony of Huddleston or Lane . Huddleston's ver-
sion of the events was consistent with that of Cass inso-
far as she was able to see those events (she was not in a
position to hear what was said ). Indeed , the undisputed
facts speak for themselves . Even on the basis of the ad-
missions of Harris and Anna Key, it is evident that Cass,
a newly hired employee (in the strikers' view , a' "scab")
was confronted by at least five strikers and one strike
TELEDYNE STILL-MAN 167
sympathizer , that one of them , who had previously.
warned Cass not to cross the picket line, was verbally
abusing Cass, 'and that Cass did not behave in an aggres-
sive manner toward the strikers . It is evident that Cass
was acting defensively . Compare Emerson Electric Co.,
247 NLRB 1365 , 1370 (1980), enfd . 649 F . 2d 589 (8th
Cir. 1981 ). In contrast , the versons of Harris and -Key
were in certain respects , as discussed , inherently incredi-
ble. The ' General Counsel attaches great significance (Br.
25) to testimony by Harris that at the time of the inci-
dent at Druthers he had a beard , although at the time of
the present hearing he had a moustache but no beard. F
fail to see the significance. It is undisputed that Harris
was one .of the individuals who confronted Cass at
Druthers Restaurant and that he was the only one who
had a crescent wrench in his possession . Therefore there
is no real question of identification presented in his case.
Rather the only crucial fact question presented is what
Harris did and said on that occasion . I also attach no sig-
nificance to Cass' failure to take legal action against
Harris or the others . Cass' failure to do so indicates lack
of vindictiveness rather than lack of truthfulness. More-
over, the Company advised nonstriking employees not to
take retaliatory action against strikers who engaged in
misconduct.
Following the incident Fred Heady filed a criminal
complaint against Cass in state court , alleging that Cass
unlawfully carried a weapon for the purpose of going
armed . The matter came on for hearing in September.
Heady and officer Lane were the only witnesses to testi-
fy. There was no testimony concerning what Harris said
or did . On motion of defendant Cass the case was dis-
missed at the close of complainant testimony . In view of
the undisputed fact that Cass was holding an axe handle,
I find that Cass' acquittal may properly be considered as
an adjudication that he was not the aggressor in his con-
frontation with Heady.
In light of the credited testimony of Cass and the
other evidence discussed above, including the simultane-
ous arrival of strikers at Druthers upon Cass' arrival, the
patently false reasons given by Harris and Anna Key for
their presence at Druthers , and their concerted actions
upon their arrival , I find that Heady, Scantland , Harris,
Lynn , and the Keys, and probably other strikers, fol-
lowed Cass from the picket line to Druthers ; or joined in
the chase upon being told by CB radio that Cass was
being followed or had stopped at Druthers. I further find
that the strikers , including Harris, did so for the purpose
of harassing and intimidating Cass in order to dissuade
him from crossing their picket line.
In National Steel Corp ., 242 NLRB 294, 298 (1979), the
Board spelled out in detail the allocation of burden of
proof and burden of going forward with the evidence in
cases of this type, as follows:
General Counsel . . . must first establish a prima
facie case of violation of Section 8(a)(1) consisting
of (a) the employees , to Respondent 's knowledge,
were engaged in the protected concerted activity of
a lawful economic strike; (b) an unconditional offer
by (or on behalf of) the employees was made to
return to work at the conclusion of the strike,
NLRB v. W. C. McQuaide, Inc., [220 NLRB 593];
and (c) Respondent 's refusal to reinstate the erst-
while striking employees . NLRB v. Burnup & Sims
[379 US 21 , 22-23 ( 1964). ...] Pursuant to the
Rubin Bros, Footwear, Inc. [99 NLRB 610, •enf.
denied, 203 F . 2d 486 (5th Cir . 1953)] qualification
on the burden of proof, NLRB v. Burnup & Sims,
supra at 23, fn . 2, the burden of going forward with
the evidence then shifts to Respondent to establish
that it held an "honest belief' that the striking em-
ployees who were denied reinstatement engaged in
misconduct of such a serious character as to justify
Respondent in denying them their jobs . Rubin Bros.
Footwear, Inc., supra at 611 ; Huss & Schlieper Com-
pany, 194 NLRB 572, 577 ( 1971). Once having es-
tablished such an "honest belief" that the employees
engaged in the strike misconduct , and were refused
reinstatement therefor, Respondent is absolved from
liability except where General Counsel successfully
then shoulders the further burden of affirmatively
proving that the discharged employees did not, in
fact, engage in the . conduct for which they were
denied further employment , Rubin Bros. Footwear,
Inc., supra at 611.
The above principles have since been modified in an im-
portant substantive respect, with respect to the definition
of "misconduct of such a serious character" as to justify
denial of reinstatement. In W. C . , McQuaide, Inc., .220
NLRB 593, 594 (1975), enf. denied in pertinent part 552
F.2d 519, 527-528 (3d Cir . 1977), the Board held in sum
that verbal threats by strikers, "not accompanied by any
physical acts or gestures that would provide added em-
phasis or meaning to [the] words," do not constitute seri-
ous strike misconduct warranting an employer's refusal
to reinstate the strikers . However in Clear Pine Mould-
ings, 268 NLRB 1044 , 1046 ( 1984), affd . 765 F.2d 148
(9th Cir. 1985), the Board rejected this standard, holding
instead that the test for determining whether verbal
threats by strikers directed at fellow employees justify an
employer's refusal to reinstate is "whether the miscon-
duct is such that, under the circumstances existing, it
may reasonably tend to coerce or intimidate employees
in the exercise of rights protected under the Act."
Applying the foregoing to the facts of the present
case, I find that the Company did not violate the Act by
terminating and consequently refusing to reinstate Mi-
chael Harris . The Company had a good-faith belief that
Harris, without provocation , threatened to kill John
Cass, that belief being based on Cass' verbal reports to
the Company 's attorney and to Personnel Director Cum-
mings . The Company also properly relied on the police
officer's report and the local court proceedings , in that
they indicated that Cass was not the aggressor in the
confrontation at Druthers . Harris' threat to kill Cass with
his wrench, made in the context of an aggressive con-
frontation against Cass by Harris and other strikers, con-
stituted unprotected conduct which permits denial of re-
instatement rights, whether measured by the standard of
Clear Pine Mouldings or that of W. C. McQuaide. Com-
pare Clear Pine Mouldings , 268 NLRB at 1047 (conduct
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of Anderson), and W. C. McQuaide, 220 NLRB at 594
(conduct of Lesnak , Albert, and Patterson).
General Counsel does not contend that the Company
condoned the misconduct or alleged misconduct of
Harris or any of the other alleged discriminatees in this
case, by failing to terminate them at or shortly after the
time it learned of such ' misconduct . However, General
Counsel does argue in a one-sentence statement, unac-
companied by citation of authority (Br. 27) that "if such
conduct was so coercive and intimidating , then why did
Respondent wait for over a one year period to discharge
the alleged discriminatees?" If General Counsel is serious
in making this argument , then it is difficult to understand
why the General Counsel declined to proceed on other
cases in which strikers were terminated for alleged strike
misconduct pursuant to the Company's policy when they
become eligible for job openings . If General Counsel is
correct , then General Counsel should have proceeded on
all those cases . In any event , General Counsel 's argu-
ment is without merit. The Company explained to the
Board and to the Union its policy and reasons for that
policy, and acted consistently in adhering to that policy.
Generally the Board will not find condonation in the ab-
sence of "some positive manifestation [by the employer]
of a willingness to forgive the specific misconduct in-
volved." Southern Florida Hotel & Motel Assn., 245
NLRB 561 , 563-564 (1979), enfd . in pertinent part 751
F.2d 1571 (11th Cir. 1985). In the present case, the Com-
pany never led to alleged discriminatees to believe that
they would be reinstated notwithstanding the alleged
misconduct . Rather, the Company always made clear to
the Union that it intended to terminate employees for
strike misconduct, and described the procedure it would
follow . Therefore , I am rejecting the General Counsel's
argument with respect to all the alleged discriminatees.
C. Oma Stidham
Oma Stidham began working for the Company in
1973, and was a light machine operator. She joined the
strike and participated in the picketing. On 8 April 1985
Stidhain unconditionally offered to return to work. The
Company sent Stidham a termination letter dated 1 April
1986. Personnel Manager Cummings testified in sum that
he based his decision to terminate on (1) Board pleadings
in which Stidham was alleged to have engaged in strike
misconduct, (2) a written incident report by employees
Linda Young, Jeanie Houston, Karen Buchanan, and
Teresa Johnson, (3) an affidavit furnished by employee
Bobby Kirby to the Company's attorney, and (4) a• vid-
eotape of Stidham's activity in the vicinity of the plant
premises.
The Board complaint which issued on 22 March, and
subsequent amended consolidated complaints which en-
compassed the prior allegations, alleged in part that on
28 February Stidham and other pickets "followed non-
striking employees and other persons from the picket
line," and at employees' homes "threatened non-striking
employees with death, physical harm and/or property
damage." The complaint was attached as an exhibit to
the petition for a 10(j) injunction. There were no other
allegations against Stidham in the Board pleadings.
The incident report was a one-page handwritten narra-
tive, unsigned , but bearing the names of Young; Hous-
ton, Buchanan , and Johnson at the top . The report unex-
plainedly is marked with two dates : 2-28-84 and 4-28-
84. The time of the incident 'is described as "From work-
4:30"; the time being a correction initialed "L. Y." The
text of the report is as follows:
We left Stillman 's turned on Fisk.road . When on
Fisk road we met Elmer Ayers. He turned around
& followed us up 10th Street to Lickity Split he
turned & went toward McCord's. When we
reached the traffic light at 10th & Washington Janet
Jones pulled out behind us from Clarence Stewart
Auto Sales & followed us all the way to the Sher-
iffs department . We talked to Doug Burgess & he
said he would come by the apartment to see that
everything was OK. When we left the Sheriffs de-
partment Polly Bowen , Wanda McClound, Sherry
Dyer, followed us all the way to the apartments.
When we got out of the car they hollered you can't
have the law with you all the time . All of you
bitches will be dead! After that they went up &
down the street . Also Oma Stidham was following
behind Polly Bowen . [Emphasis added.]
As indicated , only the last sentence of the report made
any reference to Stidham. Cummings testified that he did
not recall who gave him the report , but he thought it
was Young.
Young, Johnson, Houston, and Buchanan were pre-
sented as company witnesses. Young and Houston
worked for the Company prior to the strike, and conse-
quently knew at least some of the strikers . They crossed
the picket line to return to work on 28 February. John-
son and Buchanan began working for the Company on
that date, and they did not know the- identity of the strik-
ers involved in the alleged incident. Young testified in
sum concerning the incident as follows : 6 On 28 February
about 4:30 p .m.. the four of them left work in Houston's
car, with Young driving . (At. the time, Houston was 7
months' pregnant .) Some 200 to 250 strikers, including
Polly Bowen, were gathered outside the plant, screaming
and yelling . As they drove away, striker Elmer Ayers
turned to follow them. Later Ayers' car disappeared and
she saw another striker , Janet. Jones, following them in
another car . Young drove to the sheriffs office, where
she informed Deputy Sheriff Doug Burgess that they
were being followed. Burgess said he would follow them
home . Young saw several strikers , including Bowen, in
the vicinity of the sheriffs office. As they drove to
Young 's apartment, Bowen , who had five or six passen-
gers in her car, pulled in between Young and Burgess
and followed Young . When they arrived at the apart-
ment building , Burgess pulled into the driveway behind
Young and Bowen parked on third Street, near the side
of Young's apartment. (The building is "L shaped, and
Young's apartment was at the third Street end of the
building , with her bedroom window , but not the front of
6 Young married in September 1986, and her married name is Golden.
In the interest of clarity I shall refer to her as Young.
TELEDYNE STILL-MAN 169
the apartment , facing third Street). As Young got out of
the car she saw Oma Stidham parked behind Bowen.
This was the first time since that morning (when she saw
Stidham near the plant) that Young observed Stidham.
Someone from Bowen 's car yelled that they were going
to kill them . Others shouted profanity at the four non-
strikers . Young testified that Stidham once yelled some-
thing , but she did not know what Stidham said. Young
did not testify that anyone asked her to identify Stidham.
Deputy Sheriff Burgess remained in his car until the four.
employees entered her building . He told them to stay
there . However, they did not, because Young wanted to
see who was passing her home . Young testified that sev-
eral strikers , some of whom she identified by name,
drove past her home over a 30-minute period , yelling
epithets at them . In the meantime Sheriff Jerry Abston
pulled into the driveway. He told the strikers to go
home or he would arrest them . He left after some 5 to 10
minutes, but the strikers remained . They continued to
circle the block around her home, yelling epithets as
they went by. Young initially testified that Stidham was
in a group of cars which circled the block some three or
four times, but she subsequently testified that Stidham
went down third Street to Chestnut Street (the next
intersection) and back, and she did not know how many
times Stidham did this . Young testified that Jeanie Hous-
ton wrote up and turned in the incident report, although
Young read the report before it was turned into the per-
sonnel office. Young gave the Board an affidavit dated
28 February and a supplemental affidavit 29 February.
Both appear to describe the incident of 28 February, al-
though the first affidavit refers to the events as having
occurred the previous day (27 February). The affidavit
stated that she drove with Houston , and no other passen-
gers are mentioned . The affidavit, which runs three
pages, indicates that five cars of strikers followed them
from work, and that several cars of named strikers each
circled her block three or more times . The affidavit also
describes specific threats and abusive language by named
strikers . However, there is no mention of Stidham. The
supplemental affidavit of two pages refers to the incident
as having occurred on 28 February . This time Young
named all four occupants of "my car ." The supplemental
affidavit also described the incident in detail, including
threats and abusive language by Polly Bowen and her
passengers . However, the supplemental affidavit indicates
that Janet Jones followed her to her apartment , and that
Bowen was already there, "parked across the street"
when they arrived . There is only one reference to Stid-
ham, namely, that "Oma Stidham was in her car behind
Polly when she came back ," referring to Bowen 's return
after Deputy Sheriff Burgess left and Houston 's husband
arrived with a gun.
Teresa Johnson, the Company's second witness to the
incident, testified that while Deputy Sheriff Burgess was
still at the apartment , there were cars lined up on the
apartment side of the street . The occupants were "calling
us names and saying that they was going to get us."
Johnson testified that one woman in a green or gold car
said , "I'm going to get y'all " or "we're going to get
y'all." Johnson asked Young "who is that?", and Young
answered that it was Oma Stidham . Johnson testified that
Stidham said it twice, and also uttered a stream of abu-
sive names at them . She also testified that she did not
hear any striker other than Stidham make any threats.
Johnson identified Stidham in open court at the present
hearing . Johnson testified that at the time she was stand-
ing by the door of Young's apartment , Young was by the
car, and Stidham was in her parked car. She testified that
she went inside the apartment because she was scared,
but went outside again after a few minutes in order to
see what was going on. She further testified that she was
in the apartment for some 30 or 45 minutes until Hous-
ton's husband took her home, that she looked out the
bedroom window and saw three or four cars, including
Stidham 's, pass by five or six times , and that she recog-
nized Stidham 's car because it had a CB antenna but the
others did not . Johnson also testified that she and Young
were standing outside the front door of Young's apart-
ment when Stidham drove by. Johnson testified that she
did not give an affidavit to the Board and was not asked
to do so, that she did not file an incident report with the
Company and probably did not read the written report
which was given to the Company, although she subse-
quently discussed her testimony with the Company's at-
torneys in preparation for the present hearing.
Jeanie Houston, the third company witness, confirmed
that Young was driving her car . Houston testified in sum
that Janet Jones followed them to the sheriff's office, and
that Young, Bowen, Deputy Sheriff Burgess , and striker
Wanda Thomas (in that order) proceeded to Young's
apartment . After they arrived , Bowen and Thomas drove
around slowly, with their passengers yelling obscenities
and calling them names . She went into Young's apart-
ment, looked outside the front door, and saw the Bowen
and Thomas ' cars going up and down the street. She was
at the apartment for 30 to 45 minutes . Then her husband
and Buchanan's husband arrived to take them home.
Shortly thereafter Sheriff Abston arrived . He spoke to
Young and to Houston 's husband . Then Abston left and
she and the others left . Houston testified that she did not
see either Stidham or her car , or any other vehicles than
these described above in her testimony. She testified that
she heard Johnson and Young talking about Stidham,
that Johnson "wanted to know who she was because she
had yelled something out while they were outside," but
that Houston did not hear what was yelled because she
was in the apartment. Houston testified that she could
not recall what Johnson and Young said to each other.
Houston testified that she wrote the incident report
which she gave to the Company on the morning of 29
February, signing all four names , that Young initialed the
time charge, that she (Houston) misdated the report, put-
ting down 4-28-84, and that she did not know who
wrote 2-28-84 . Houston further testified that the other
three employees were present and helped her write up
the report , including facts that she did not witness. Hous-
ton thereby contradicted Johnson 's testimony that she
had no involvement in the report. Karen Buchanan, the
fourth company witness to the incident, added little to'
the evidence . Buchanan testified that as they arrived at
Young's apartment and got out of the car , she saw cars
go by (which she could not identify ) and that she went
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
into the apartment until her husband arrived . She testi-
fied that while in the apartment she heard noices outside,
but that she did not look outside.
Oma Stidham testified in sum with respect to the inci-
dent as follows: She knew Linda Young, having worked
with her, and heard that she crossed the picket line to
work. However, she did not know Houston well enough
to recognize her. On 28 February she did not go to the
picket line. She went to a union meeting at 4 p .m. (the
same meeting that Harris testified he attended). After she
left the meeting, about 4:30 p.m., she drove to her sister's
residence , but her sister was not at home . Stidham usual-
ly drove her 1973 gold Cadillac Coup de Ville, which
did not have any CB radio or antenna , and sometimes
she drove her daughter's old tan Chrysler, which may
have had a radio antenna but did not have a CB radio.
On 28 February she was driving the Cadillac. After leav-
ing her sister 's residence she headed home. She did not
know where Linda Young lived . However, on going
home she drove down third Street, saw Young standing
in' front of her apartment , and in this manner learned
where Young lived. At this time, purely by coincidence,
Stidham found herself immediately behind Polly Bowen's
car. Stidham testified that she did not follow Bowen to
Young's apartment , she said nothing on seeing Young,
she did not stop , and she drove past Young's apartment
only once, and did so in the process of heading home.
Stidham described the routes which she traveled that
day. If her description was correct, this would indicate
that she twice deviated from a direct route in the process
of going home : First, - Stidham admitted that a direct
route from her sister's residence would have taken her
on Second Street and then south on Willow Avenue (a
main thoroughfare). Instead Stidham proceeded to third
Street, in the opposite direction from her home (the
numbered streets running east to west in a sequence from
south to north), and then went west on third Street, past
Willow to Chestnut Street , and then south to Broad
Street and west to Route 70 . Stidham testified that she
wanted to avoid traffic at the intersection of Willow and
Broad (where Druthers Restaurant is located ). However,
if Stidham had gone south on Willow she would have
reached Buffalo Valley Road, which was her direct
route home. Instead , by taking Chestnut to Broad, she
would have to double back on Route 70 in order to
reach. Buffalo Valley Road.
Polley Bowen was also presented as a General Coun-
sel witness . Bowen testified in sum as follows: On 28
February she was at the picket line. After the plant let
out she drove with four other strikers to the Sheriff's
office , because they heard that an employee had been ar-
rested . Bowen was driving her white Cadillac, which did
not have a CB radio. She did not follow Young to the
sheriff's office . However on arriving there she saw
Young, and also saw Deputy Sheriff Burgess, whom she
knew well, proceed to follow Young. Therefore she fol-
lowed Burgess . No one followed Bowen , to her knowl-
edge . Bowen followed them as far as a churchyard at the
corner of third Street and Willow , adjacent to the apart-
ment building , where she parked . After Burgess escorted
Young and her passengers to Young 's apartment, he
came over to Bowen and spoke to her for a few minutes.
He then left. Bowen then drove back to the plant for her
passengers to get their cars . Bowen admitted . that in
doing so, she drove initially west on Third Street (away
from the plant) in order to go past Young 's apartment.
As she did so, she saw Oma Stidham in her rearview
mirror . Bowen testified that this was coincidental, and
she did not see Stidham any other time that day. Bowen
did not see Stidham stop or hear her • yell anything.
Bowen testified that she herself said nothing to Young,
although one of her passengers threw a can in Young's
yard and Bowen told her to stop.
With regard to the Kirby matter, employee Bob
Kirby, who crossed the picket line to return to work on
27 February, gave the Company's attorney an affidavit
dated 28 February. The affidavit described the conduct
of strikers on 27 and 28 February. With reference to
Oma Stidham the affidavit stated that on 28 February:
"when I arrive at the plant Oma Stidham [sic] shouted
`Son of a' bithc' and `Scab'." There was no other refer-
ence to Stidham . Pesonnel Manager Cummings testified
that he considered this to be a threat, but. Kirby testified
that Stidham never threatened him. Kirby also gave the
Board an affidavit dated 28 February which also de-
scribed the events of 27 and 28 February, and which,
with reference to Stidham, also indicated only that Stid-
ham called him a "scab" and a "son-of-a-bitch" as he en-
tered the plant . However, on the witness stand Kirby
gave an embellished account of Stidham's conduct.
Kirby testified that on the morning of 28 February, as he
was driving to work , Stidham , who was standing alone
at the corner of Fisk Road and Volunteer Drive (nearly
a block from the plant entrance), called him "a bald-
headed son-of-a-bitch" and threw a rock at him, but
missed . Kirby initially testified that this occurred on his
third day at work , then testified that it happened about a
week after the strike started, next testified that it hap-
pened about a week after he returned to work, and later
testified that it was about 2 to 3 weeks after he returned
to work. Kirby added to the confusion by testifying that
on the morning of 29 February , at that same location,
unidentified persons threw rocks at him. According to
Kirby, this occurred the day before an incident which
will be discussed in connection with the discharge of
Linda Minnear . However, that incident occurred on 29
February. Therefore the previous day would be 28 Feb-
ruary, when Stidham , standing alone, allegedly threw a
rock at him . Stidham testified that she never threatened
Kirby, threw a rock at him or called him a "son-of-a-
bitch," but may have called him a "scab."
Personnel Manager Cummings testified that during the
strike, strikers including Stidham participated in vehicu-
lar processions in the vicinity of the plant , which in his
opinion were intended to prevent the plant from operat-
ing. He testified that in deciding to terminate Stidham he
relied on one videotape of such a procession (R. Exh.
13). The Company also introduced into evidence a
second alleged tape such a procession. (R. Exh . 14). Both
tapes indicated a small procession of cars, accompanied
by honking of horns and shouting . Neither tape indicated
any blocking of ingress or egress . Cummings testified
that one of the cars in Respondent's Exhibit 13 was Stid-
TELEDYNE STILL-MAN 171
ham's vehicle . He initially testified that Respondent's Ex-
hibit 13 was taped on the morning of February 28 or 29,
and that he was in the • Company's parking lot at the
time . However, Cummings subsequently admitted that he
did not know what time of 'day Stidham drove by, or
whether he was indoors or outside . Cummings did not
film either Respondent 's Exhibit 13 or 14 , - and no other
company witness was presented to authenticate either
tape, although the voice of the narrator was obviously
that of security coordinator Terry Priest, who was pre-
sented as a company witness in connection with- the case
of Willie Wheeler . Cummings testified that he believed
Respondent 's Exhibit 14 was filmed in March . Stidham
testified that she did not participate in vehicular parades
and was not aware of them , and that she did not block
or slow down traffic . She testified that she was present
at the picket line on 28 February . She testified that she
could not identify either the vehicle or driver in question
in Respondent 's Exhibit 13,-but that Respondent 's Exhib-
it 14 showed her driving her daughter 's car . She was
evasive about whether she followed other cars . Neither
film indicates that the driver 's lips were moving. Cum-
mings estimated that the vehicle in Respondent 's Exhibit
13 was going 15 mph , and Stidham estimated that the ve-
hicle in Respondent's Exhibit 14 was going 25 mph. On
the basis of my observation , I find that it is not possible
to identify the driver in Respondent 's Exhibit 13 as Stid-
ham.
Applying the standards spelled . out in National Alumi-
num, I find that as with respect to the other alleged dis-
criminatees, General Counsel made out a prima facie
case, based on the undisputed facts that the Company
knew Stidham engaged in a lawful economic strike, that
she unconditionally offered to return to work after the
strike, and that the Company refused to reinstate her.7 I
r Notwithstanding that the Company concedes National Aluminum sets
forth the proper standards (Br. 72), the Company nevertheless argues (Br
7, 12) that I should have dismissed the complaint as to Stidham and Ellen
Crawford because on their direct examination the General Counsel ini-
tially chose not to ask them questions about alleged or actual strike mis-
conduct . The Company's argument is also inconsistent with the Compa-
ny's assertions (e g., Br . 24) that the General Counsel propounded leading
questions by asking the alleged discriminatees whether they engaged in
certain types of specific acts of strike misconduct. As the alleged discri-
minatees testified before any company witnesses were presented , it is dif-
ficult to see! how the General Counsel could have entered the area of
strike miscondduct without asking such questions The Company 's argu-
ment is without merit . First , as indicated , the General Counsel made out
a prima facie case as to all the alleged discriminatees . Second , upon coun-
sel for General Counsel 's refusal to question Stidham about strike miscon-
duct , apparently out of pique because he was unable to call Personnel Di-
rector Cummings as his first witness , I invoked my authority under the
Board's Rules and Regulations (Secs . 102.34 and 35 (k)) to inquire fully
into the facts and to examine and cross-examine witnesses, in order to fa-
cilitate the hearing and eliminate an unnecessary question as to whether
the General Counsel had made out a prima facie case. See New York Ty-
pographical Union No. 6 (Thermo-Craft Press), 233 NLRB 6 In 1 (1977). I
did not ask leading questions or vouch for Stidham 's credibility. One
does not ask leading questions by asking a witness to meet general or spe-
cific allegations against him . Thus an employer counsel does not ask lead-
ing questions by asking the employer whether he fired an employee for
union activity or whether he questioned employees about their union ac-
tivity . Similarly neither I nor counsel for General Counsel led the alleged
discnminatees by asking them whether they engaged in certain types or
specific acts of strike misconduct.
further find, upon consideraton of the record, that the
Company had a good-faith belief that Stidham engaged
in strike misconduct of such a character as to justify
denial of reinstatement , based solely on the Board com-
plaint and petition for 10(j) injunctive relief. Such plead-
ings may constitute a basis for a good -faith belief. Markle
Mfg. Co., 231 NLRB 1142, 1151 (1979), enfd . as modified
623 F.2d 1122 (5th Cir. 1980). The allegations of the CB
complaint and injunction petition , if true, would consti-
tute such misconduct under Clear Pine Mouldings, supra.
Just what constituted the evidence upon which General
Counsel based these allegations , present an interesting
question . None of the occupants of the Young vehicle
ever told either the Board or the Company, prior to the
present hearing, that Stidham either followed them from
the picket line or threatened them with death , physical
harm , or property damage at any of their homes . The in-
ference is warranted , and I so find, that on the basis of
Young's affidavits , General Counsel for pleading pur-
poses simply lumped Stidham into an alleged joint ven-
ture together with other named strikers, alleging in sum
that Stidham was responsible for the actions of the
others . Presumably General Counsel anticipated that a
hearing on the unfair labor practice complaint would
elicit the actual facts . However, the Company had no
way of knowing this . The Company did not know
whether the Board 's Regional office obtained affidavits
from the occupants of the Young vehicle, or other po-
tential witnesses , or what was said in such affidavits. In
these circumstances the Board 's pleadings could reason-
ably give rise to a good-faith belief by the Company that
Stidham engaged in the alleged unlawful conduct. How-
ever, I find that the Company did not have a good-faith
belief based on any of the other factors on which it al-
legedly relied , namely, the incident report, Kirby's affi-
davit , and the videotape (R. Exh . 13). The incident
report did not indicate that Stidham said anything to
Young or her passengers . The report described how
Polly Bowen , Wanda McCloud, and Sherry Dyer fol-
lowed them , yelled at and threatened them , and cruised
past Young's apartment. However, with respect to Stid-
ham the report simply added , seemingly as an after-
thought, that Stidham was following behind Bowen. As
Personnel Director Cummings admitted , the report could
mean that Stidham just happened to be behind Bowen.
The Company could have investigated further before at-
taching a different meaning to the report . However, it
did not . The Kirby affidavit also did not give rise to a
good-faith belief. The use of epithets or profanity on a
picket line is not conduct which would warrant denial of
reinstatement rights . The Board, with Supreme Court ap-
proval , has long held that an employee's use of the term
"scab," at least in the context of a labor dispute or an
organizing campaign , generally constitutes an expression
of opinion which is protected under Section 7 of the
Act, although "most often used as an insult or epithet."
Letter Carriers Branch 496 v. Austin , 418 U.S. 264, 278-
279, 283 (1974). Therefore Cummings ' testimony • that he
regarded the term "scab" as a threat , was tantamount to
an admission that the Company discharged Stidham in
part because of her protected activity. The commonplace
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
epithet "son of a bitch" is no more serious than "scab,"
and likewise does not convey a threat . See Catalytic,
Inc., 275 NLRB 97, 98 (1985); Shalom Nursing Home,
276 NLRB 1123 fn. 3 (1985). The videotape on which
Cummings, ostensibly relied (R. Exh . 13) also did not
provide a basis for terminating Stidham as the driver in
question . The tape fails to show any blocking of ingress
or egress, and Cummings never testified that he personal-
ly observed Stidham blocking access to the premises.
As the Company had no basis for a good-faith belief
either that Stidham threw a rock at Bob Kirby or
blocked access to or from the plant by her participation
in vehicular parades, it is not necessary for me to deter-
mine whether she actually engaged in such misconduct.
If necessary, I would find that she did not. I credit her
testimony that she never threw a rock at Kirby. Kirby's
testimony in this regard was incredible . Kirby furnished
detailed statements to the Board and to the Company
which indicated that Stidham did nothing more than call
him names . If Stidham threw a rock at Kirby, then it is
unlikely that Kirby would have failed to mention this
fact in his statements or to otherwise report the incident.
It is also unlikely that any striker would have been stand-
ing alone at the corner of Fisk Road and Volunteer
Drive when Kirby arrived for work, in view of the large
numbers of strikers gathered in the vicinity of the plant
during the week of 27 February. As indicated, Kirby
was unable to indicate with any degree of consistency
when the alleged incident occurred . Rather, as indicated
in Kirby's written statements . I find that Stidham only
called him names . I further find, for the reasons dis-
cussed above , that Stidham did not block access to or
from the plant with her car, although I do not credit her
testimony that she did not participate in vehicular pa-
rades.
The merits of the Young incident must be evaluated
by a different standard . As discussed , the Company did
not have an objective basis for relying on the incident
report. However the allegations of the Board • complaint
and injunction petition obviously referred to this inci-
dent. Therefore the burden shifts to General Counsel to
prove that Stidham in connection with this incident, did
not engage in strike misconduct as alleged in the CB
complaint, which would justify her discharge. I find
upon consideration of the evidence that General Counsel
has carried the burden and that Stidham did not engage
in strike misconduct as alleged in that complaint . Resolu-
tion of this question has not been easy . Although six wit-
nesses to the events were presented , I am not persuaded
that any of them were wholly truthful, although as will
be discussed, there is probably some truth in each of
their versions . Unfortunately neither side chose to
present the testimony of Deputy Sheriff Burgress or
Sheriff Abston although as presumably disinterested wit-
nesses they might have shed light on the facts . Therefore
I have endeavored to glean the facts from the testimony
of the six partisan witnesses . First , I credit Stidham's tes-
timony that she said nothing to the occupants of the
Houston vehicle, and I specifically do not credit John-
son's testimony that Stidham threatened to get them.
Johnson did not impress me as a credible witness. She
was obviously embellishing the facts , and her testimony
was inconsistent with that of Young and Houston in sev-
eral crucial respects . As discussed , Houston contradicted
Johnson in that Houston admitted that all four occupants
of her car participated in preparing the incident report to
the Company . Houston 's admission reflects adversely on
Johnson's credibility. Moreover, as the report referred to
threatening language by other strikers, and also men-
tioned what Stidham did, it is unlikely that Johnson
would fail to have Stidham 's threat included in the
report, if in fact Stidham made such a threat. According
to Johnson , Young was closer than her to Stidham at the
time the alleged threat was made . If Stidham twice
threatened to get them , adding a stream of abusive
names, then it is unlikely that only Johnson would have
heard her. Nevertheless Young testified that she heard
Stidham yell only once , but could not hear what she
said, and she conspicuously failed to testify that Johnson
asked her to identify Stidham. As indicated, Johnson tes-
tified that she did not hear anyone but Stidham make any
threats. If so, then Young did not testify truthfully and
the incident report itself was untruthful . Johnson's pur-
ported identification of Stidham 's vehicle was question-
able. Although Johnson identified another car (apparent-
ly Bowen's) as a white Cadillac, she vaguely described
Stidham 's alleged vehicle only as an old gray or greenish
car. I also did not credit Houston's rather lame attempt
to corroborate Johnson . (This case was not tried under a
rule of exclusion , and Houston testified immediately after
Johnson .) Houston testified that she was inside Young's
apartment when the purported conversation between
Johnson and Young took place and indicated that they
were also in the apartment, talking about something that
previously occurred outside: If so, then this would con-
tradict Johnson 's testimony. If the conversation between
Johnson and Young took place outside, then Houston
would not have heard them. I further find that Stidham
did not either follow Houston 's car from the plant or in-
tentionally drive back and forth or around Young's
apartment. No witness testified that Stidham followed
the Houston vehicle either from the plant to the sheriffs
office or from there to Young's apartment. The peculiar
wording of both the incident report and Young's supple-
mental affidavit, coupled with Young's total failure to
mention Stidham in her initial affidavit, tend to indicate
that the employees had serious doubts as to whether
Stidham was involved in cruising around or past Young's
apartment, and that none of them saw her drive by more
than once. Young's affidavits are particularly significant
because among the four occupants of Houston's car, only
Young and Johnson testified that they saw Stidham, and
Johnson did not know her. However, in light of the cir-
cuitous route taken by Stidham that evening , I do not
credit her testimony that she merely happened upon the
scene by coincidence . I do find significant the testimony
of both Young and Johnson that Stidham was parked
near Young's apartment when they arrived , and Polly
Bowen's testimony concerning her conversation with
Deputy Sheriff Burgess. In light of the overall evidence,
I find it most probable that Stidham learned that Burgess
was escorting the young group to Young 's apartment,
went directly there to find out what was going on, either
TELEDYNE STILL-MAN
was present at Bowen 's conversation with Burgess or
learned from Bowen what was said , and then left the
scene, in the process following behind Bowen . This does
not constitute strike misconduct . Rather it is a form of
protected activity to obtain information from law en-
forcement officials relative to a strike, or to discuss
strike-related matters with fellow employees. Therefore,
and regardless of whether Bowen ,or other strikers en-
gaged in misconduct in connection with the Young inci-
dent, I find that Stidham did not, and therefore that the
Company violated Section 8(a)(3) and (1) of the Act by
discharging her.
This brings me to the Company's various arguments
(Br. 10-19) that by reason of the prior CB litigation,
General Counsel is now precluded from asserting that
the alleged discriminatees were unlawfully discharged.8 I
rejected those arguments in denying the Company's
motion for partial summary judgment -at the outset of the
present hearing , and I adhere to that ruling . See Markle
Mfg. Co., supra, 239 NLRB at 1151-1152, 623 F.2d at
1126-1127. The considerations discussed by the Board
and the court in Markle are -also applicable to the present
case, whether the Company 's arguments are labeled judi-
cial estoppel , equitable estoppel, or due process of law.
General Counsel is not estopped or otherwise precluded
by law from proceeding in this case , because none of the
alleged discriminatees were ever adjudicated as having
engaged in strike misconduct , which would justify denial
of their reinstatement rights . See Markle, supra; NLRB v.
Cambria Clay Products Co., 215 F.2d 48, 54 (6th Cir.
1954); NLRB v. W. C McQuaide, Inc., 522 F.2d 519, 526
(3d Cir. 1977).
In Markle, supra, the court of appeals, in disagreement
with the Board , held that although estoppel did not
apply, backpay should be tolled pending the entry of an
enforcement order in the second (CA) case, because (as
in the present case), a prior consent Board order and en-
forcement decree was entered in a CB proceeding in
which the alleged discriminatees were alleged to have
engaged in strike misconduct in which the employer as-
sertedly relied in refusing to reinstate them . I, of course,
am bound by the Board's decision in Markle. The present
case also did not arise in the geographical ' venue of the
Fifth Circuit. Moreover, the practical effect of such a
remedy would be to totally cut off backpay, because the
employer would be in contempt of court if he falied to
reinstate discriminatees after entry of an enforcement
decree . Such a result , based on a desire to "discipline the
Board," rather than on any misconduct by the discrimin-
atees themselves, would be contrary to the policies of
the Act. See NLRB v. J. H. Rutter-Rex Mfg. Co.,- 396
U.S. 258, 262-265 (1969), in which the Supreme Court
rejected an analogous decision of the same court of ap-
peals . Even if one accepts the concept of tolling backpay
in situations like this, it seems to me that the court in
Markle went too far. In the present case , the Company
8 In its answer and at the hearing , the Company invoked these argu-
ments as to all alleged discnnunatees named in the Board pleadings, i.e.,
all except Harris . However, in,a posthearing motion the Company argued
that General Counsel was also precluded from proceeding in Harris' case,
because the Board 's Regional Office allegedly knew that Harris was in-
volved in the incident at Druthers Restaurant.
173
argues in sum that it relied on positions taken by General
Counsel in the Board and court litigation . However,
once General Counsel informed the Company that it in-
tended to issue a complaint based on the charges filed by
the alleged discriminatees in the present case, the Com-
pany could no longer validly make such an argument.
The Company cannot validly contend that it relied on
the Board's-Consent Decision and Order in the CB case,
because the Board did not adjudicate the merits of the
case, and the Decision and Order were based on a settle-
ment stipulation , agreed to by the Company and the
Union , which contained a nonadmissions clause . There-
fore, even if tolling of backpay were appropriate, such
tolling should run only until the time that the Board's
Regional Office informed the Company that it intended
to issue a complaint based on the charges filed by the al-
leged discriminatees in the present case . Furthermore,
tolling of backpay in the present case would not only be
contrary to Board policy as indicated in Markle, but
would also be inconsistent with Board policy, approved
by the courts, in analogous situations . Thus the Board,
with court approval, has held that it will not toll back-
pay during the pendency of an administative law judge's
decision finding no violation , where the Board subse-
quently reverses that determination , except in unusual sit-
uations such as those in which the Board changes its
view of the legal principles on which liability depends.
A. P. W. Products Co., 137 NLRB 25, 28-31 (1962), enfd.
316 F.2d 899 (2d Cir. 1963); see also Ferrell-Hicks Chev-
rolet, 160 NLRB 1692 (1966). In A. P. W., the Board
held with respect to such tolling that "its real thrust is in
the direction of benefiting the wrongdoer at the expense
of the wronged-a result antithetical to the fundamental
aim of the Board 's remedial athority and powers." See
also NLRB v. J. H. Rutter-Rex, supra. That rationale is
also applicable to the present situation . Indeed it is even
more compelling here than in situations like A. P. W.,
where the erroneous decision was reached after a full
evidentiary hearing and thorough consideration by the
administrative law judge . In the present CB case, Gener-
al Counsel acted in haste (and properly so) in order to
enjoin what appeared to be a situation of mass picketing
and violence which the local authorities had failed to
control (10(j) injunction proceedings cannot be instituted
until a Board complaint has issued ). Theretofore it is not
surprising that the investigation of that case was not as
thorough as might otherwise be expected . Thus it is also
not surprising that at the one point in the entire case
when a hearing was conducted, the district court found
only 5 of 20 named individuals in civil contempt of its
injunction order . The beneficiary of all this haste was the
Company, which enjoyed the benefits of a state court
temporary restraining order, a Federal district court in-
junction , an order in lieu of further contempt proceed-
ings, and , a Board Decision and Order, all without the
inconvenience of an evidentary hearing . Now the Com-
pany, which speaks rather glibly of due process, again
seeks an adjudication in its favor without a hearing. The
alleged discriminatees have not, until the present pro-
ceeding, had the benefit of an evidentiary hearing on
their alleged misconduct , as a result which they were
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
denied reinstatment . It is a settled principel of our system
of jurisprudence that a complaint allegation is not tanta-
mount to an adjudication of guilt . The alleged discrimin-
atees in the present case were not even parties to the
Board proceeding in the CB case . Even if they were, it is
also settled law that a named defendant or respondent is
not legally obligated to clear his or her name through
litigation, but may instead exercise an available option to
enter into a settlement agreement and thereby avoid a
trial and adjudication . In the present CB case the Com-
pany agreed to such a procedure, and did not oppose
such procedures in the injunction proceeding . The Com-
pany cannot now validly argue that the alleged discri-
minatees have been adjudicated as guilty of strike mis-
conduct because they were served with papers accusing
them of misconduct and did not demand a trial. As Oma
Stidham did not engage in the strike misconduct alleged
against her, the Company violated Section 8(a)(3) and (1)
by discharging her, and she is entitled to the convention-
al remedies of reinstatement and full backpay.
D. Linda Minnear
Linda Minnear began working for the Company in
1973, and was a quality control inspector . She joined the
strike and participated in the picketing . On 10 January
1985 Minnear unconditionally offered to return to work.
The Company sent Minnear a termination letter dated 25
November 1985 . Personnel Director Cummings testified
in sum that he based his decision to terminate on Board
pleadings which alleged that she was involved in strike
misconduct, and on evidence from employees of such
misconduct; specifically, concerning an assault on a vehi-
cle driven by employee Carl Greene. The Company fur-
nished the Board 's Regional Office with an affidavit by
Greene . The Board complaint and 10(j) injunction peti-
tion alleged that on or about 29 February, Linda Min-
near and other pickets "in the vicinity of the picket line,
physically blocked the ingress and egress of nonstriking
employees , supervisors , and other individuals to the Em-
ployer's place of business ; struck vehicles of nonstriking
employees , supervisors , and other individuals at the Em-
ployer's place of business ; and threatened nonstriking
employees , supervisors and other individuals at the Em-
ployer's place of business with acts of violence ." On the
basis of the Board pleadings and employee reports, the
Company had a good-faith belief that Minnear engaged
in strike misconduct of such a nature as would justify
denial of reinstatement . Therefore, the burden of proof
shifts to General Counsel . For the reasons which will be
discussed , I find that General Counsel did not meet this
bruden, and that Minnear did in fact engage in strike
misconduct of such a character as to justify her dis-
charge.
On the morning of 29 February, the situation around
the plant was chaotic . Some 200 strikers had gathered
outside the plant. -Strikers were blocking traffic, throw-
ing rocks , beating on cars and trying to open them, and
shouting epithets . One car was pushed into a ditch. That
morning employee Carl Greene drove to work in his
1978 blue Dodge Aspen , accompanied by his great-neph-
ews Brian Greene and Bob Kirby. Carl Greene and
Kirby were longtime employees who knew Minnear.
Brian Greene began working for the Company that same
day, and did 'not know Minnear .9 All three were seated
in front, with Brian Greene on the passenger side and
Kirby in the middle . Greene testified in sum as follows:
He was inching his way along Fisk Road , preliminary
to turning left onto Volunteer Drive, where the Compa-
ny plant is located .' After surviving an attempt by a
group of strikers to 'push his car into ' a ditch, he reached
a point near the intersection of Volunteer Drive, where
the Oster plant (on his right) faces the Cookeville Uni-
form Rental plant (on his left). He had to stop because a
brown pickup truck ahead was blocking his way. At this
point Minnear came into the road and said : "Mr. Greene,
you're not going any farther." She then crawled on his
hood, bent his windshield wiper and . broke his side
mirror . There was a crowd of some 10 to 15 strikers
around his car, beating on the car and cursing and yell-
ing. Greene saw three men (whom he named ) with Min-
near . Greene furnished the Board with an affidavit
which was not inconsistent with his testimony. Kirby
and Brian Greene, who were also presented as company
witnesses, substantially corroborated Greene's testimony.
However Kirby testified that someone other than Min-
near pulled off Greene's mirror, and that Minnear
screamed . and yelled and called them names. Brian
Greene testified that Carl told him that the woman.who
bent back his wiper was Minnear . John Cass and Jeanie
Houston also testified as to the events of that morning,
although they did not claim to see the incident involving
Green's car . However Houston testified that on the
morning of 29 February she saw Minnear with striker
Louise Guy in front of the Oster parking lot, and that
she saw Minnear beating on cars . None of the witnesses
testified that Minnear threatened anyone. Personnel Man-
ager Cummings testified that he also received a report
from an office employee (who was driving behind
Greene), concerning the Greene incident . However the
employee was not presented as a witness.
Minnear testified that on the morning of 29 February
she was standing on the side of Fisk Road in front of
Cookeville Uniform Rental , with strikers Doris Ham-
mock and Wanda Thomas, and, that she saw Greene
driving in slow moving traffic, with Kirby in his car.
Minnear testified that she remained at the side of the
road , did not say anything to Greene or threaten him,
did not . go onto the road or approach his car, did not
pull off his windshield wiper, and did not see anyone else
do this or surround his car . She testified that she never
blocked entrances or delayed cars . Minnear admitted that
there was a lot of shouting and hollering , and that traffic
was moving slowly, although she attributed this to icy
road conditions. Minnear initially testified that police
were present for the purpose of directing traffic to the
plant. However, as a rebuttal witness Minnear testified
that police were standing directly in front of her. Gener-
al Counsel also presented Thomas and Hammock as cor-
roborative witnesses . They testified in sum that they
were with Minnear on the morning of 29 February, that
° Unless otherwise indicated "Greene" herein - refers to Carl Greene
TELEDYNE STILL-MAN
they saw Greene , and that they did not see Minnear
engage in any of the misconduct alleged against her.
If the Company's case rested only on the testimony of
Bob Kirby, I would have serious reservations about find-
ing that Minnear engaged in strike misconduct . Howev-
er, I have no reason to question the credibility of Carl or
Brian Greene. In contrast, Minnear tended to be an eva-
sive witness. I also do not believe that Thomas and Ham-
mock were with her when she saw Greene . As dis-
cussed , Greene testified that she was with three persons,
all men, at the time of the incident . Although Minnear
testified that they were standing in front of Cookeville
Uniform Rental , Hammock indicated in her testimony
that they were standing south of that plant, between
Cookeville Uniform Rental and Paul's Candies. Ham-
mock also testified that a policeman was standing direct-
ly in front of them , and Thomas similarly testified that
an officer was near her. However Minnear on her direct
testimony simply referred to police directing traffic. Not
until General Counsel's rebuttal case, after she had an
opportunity to hear the testimony of Hammock and
Thomas, did Minnear testify that "policeman" (plural)
were standing in front of them . I find it unlikely that
Minnear would have omitted this important fact (Min-
near having testified twice on direct, the second time
after . Cummings testified), if in fact it were true . It is evi-
dence that on rebuttal Minnear was simply trying to con-
form her testimony to that of Hammock and Thomas,
and was not given accurate in doing so . Minnear also ini-
tially testified that Hammock was with her, and only on
being recalled added that Thomas was also there. As for
the credibility of her corroborative witnesses, Thomas
testified that there was no shouting at employees coming
to work . Even Minnear admitted that there was plenty
of shouting and hollering at the employees that morning.
I find that Minnear intentionally blocked and vandalized
Greene's vehicle on the morning of 29 February. I also
credit Houston 's testimony that she also beat on other
vehicles . t 0 Such misconduct is of a serious nature which
justifies denial of reinstatement. See Clear Pine Mould-
ings, supra, 268 NLRB at 1047; Cartridge Activated De-
vices, 282 NLRB 426 fn. 1 (1986); Richmond Recording
Corp., 280 NLRB 615 (1986); Stroehmann Bros. Co., 271
NLRB 578 (1984). Therefore the Company did not vio-
late the Act by discharging Minnear.
E. Ellen Crawford '
Ellen Crawford began working for the Company in
1986, and was employed on the second shift in bake and
broil . Supervisor Mike Roberts was her foreman. She
joined the strike and participated in the picketing. On 22
February Crawford unconditionally offered to return to
work. The Company sent Crawford a termination letter
10 I do not attach any significance to the presence of police officers in
the area, in light of evidence that the police were unable and in some
instances possibly unwilling to control the mass picketing and violence. I
also attach no significance to testimony to the effect that Minnear was
normally a peaceable person (Even Carl Greene told his grandnephew
that he was surprised to see Minnear do this.) Such testimony fails to
consider the stressful impact on a sinker who sees someone taking her
job, and mistakenly assumes that normally peaceful persons will never be
influenced by peer pressure , particularly in the context of mob action
175
dated 16 January 1986. Personnel Director Cummings
testified in sum that he based his decision to terminate on
(1) Board pleadings which alleged that she was involved
in strike misconduct, (2) an assault on and threats to em-
ployee Jeanie Houston on 3 March at the premises of
Super X Drugstore in Cookeville, as reported by Hous-
ton to the Company, and (3) an incident on 16 July, re-
ported by Supervisor Roberts, in which Crawford struck
his pickup truck with a picket sign as he exited the plant
premises . The Board complaint and injunction petition,
which obviously referred to the Houston incident, al-
leged that on or about 2 March , at Super X Drugstore in
Cookeville, Crawford " threatened non-striking employ-
ees with death , physical harm and/or property damage."
Houston testified that she reported the incident to securi-
ty guard Bob Twedell, and Cummings' testimony indi-
cates that Twedell then submitted a report which was re-
duced to writing and submitted to the personnel office.
Cummings and Supervisor Roberts testified in sum that
Roberts verbally reported the July incident to Cummings
and also filed a written incident report . The Company
did not report this incident to the Board's Regional
Office. On the basis of the Board 's pleadings and the re-
ports by Houston and Roberts , the Company had a
good-faith belief that Crawford engaged in unprotected
strike conduct of such a nature as would justify denial of
reinstatement.
With regard to the merits of the alleged Super X inci-
dent, Jeanie Houston testified in sum as follows :,On the
afternoon of Saturday , 3 March, between 4 and 5 p.m.,
she and employee Karen Buchanan, who is also a neigh-
bor of Houston , were in the parking lot of the Kroger
Supermarket , which is adjacent to the Super X Drug-
store . At the time Houston was 7 months and visibly
pregnant . Buchanan wanted to go to the drugstore. They
went in and there met Houston 's neighbor Carolyn Gaw,
who is not a company -employee . They stopped to talk.
Crawford then entered the store , came up behind Hous-
ton, and said to her: "if you want to lay up and stay
well, you better stay out of there bitch." Crawford then
bumped into Houston . The others said nothing. Craw-
ford left. Houston and Buchanan left because Houston
wanted to inform Cummings of the incident . As they
walked to their cars, Crawford again came up from
behind, and said to Houston: "Did you hear what I said?
If you want to lay up and stay well and take care of that
baby, you better stay out of there bitch." Houston then
telephoned Cummings' home and spoke to security guard
Twedell. She described the incident , and he advised her
to call the sheriffs office and ask them to issue a war-
rant. However that office informed Houston that they
would not issue a warrant because the incident was strike
related , but that Houston could come in on Monday and
file a complaint. She did not do so, but she did furnish an
affidavit to the Board . Houston identified Crawford in
open court at the present hearing. She testified that she
knew Crawford , having worked with her for 6 to 8
weeks, although she was not sure whether Crawford's
first name was Ellen or Helen . She further testified that
at the time Crawford was a tall , heavyset black-haired
woman , and she so described her to Twedell. The Com-
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany's written incident report, which Houston did not
see, referred to the assailant as "a person [Houston] be-
lieves to be Ellen Crawford, a Still-Man striker who
works in the Bake & Broil Department on the 2nd shift,
a tall, stoutly-built lady with black hair." Buchanan, in
her testimony, substantially corroborated Houston's de-
scription of the incident. Buchanan identified Crawford
in open court. However Buchanan admitted that she did
not know Crawford, and did not see her at anytime from
the incident until the hearing. Houston in her testimony
admitted that she pointed out Crawford to Buchanan at
the hearing. Buchanan testified that at the time of the in-
cident Crawford was a tall woman with short, black
hair. Gaw, who was presented as a company witness,
testified that as she was talking with Houston and Bu-
chanan in Super X, a tall, dark-haired woman (possibly
with dark brown hair), whom she could not otherwise
identify, bumped into Houston, called her a bitch, and
uttered some kind of threat, although she could not
recall exactly what the woman said. She testified that
one of the other woman identified her as a striker, but
that she did not recall their mentioning her name.
Crawford was at the time of the present hearing a tall,
stoutly-built woman with light brown hair. She testified
that her hair was never black or distinctly short. She tes-
tified in sum that the alleged incident never occurred,
that she seldom went to the Super X Drugstore, and that
she did not even know Houston. However in her affida-
vit to the Board, dated 8 February 1986, she stated that
she was never present at the Super X Drugstore or any
other place of business where Houston was present, and
did not indicate that she did not know Houston. Craw-
ford testified in sum that on 3 March she attended a
union rally which ended between 3 and 4 p.m.; but that
she left early, arriving at her home in Baxter , Tennesse
about 2:20 p.m., because she had to be home when a new
gas dryer was delivered. She testified that the dryer was
delivered about 3 p.m., and that she remained home for
the balance of the day. In support of her explanation
General Counsel introduced in evidence a check in pay-
ment for the dryer, signed by her husband Kenneth
Crawford, and delivery slip and receipt, also dated 3
March and also made out to Kenneth Crawford. Ken-
neth, who was Ellen Crawford's only corroborative wit-
ness, undercut her explanation for her, alleged nonpre-
sence at Super X that day. Kenneth Crawford testified
that she arrived home after 2 p.m. that day. However he
also testified that in the morning she left, saying that she
was going to a union rally, and he went alone to Carth-
age; Tennesse to look for a dryer, because they needed
one as soon as possible. He purchased one, arranged to
have it delivered at 3 p.m., and returned home, arriving
about noon. His wife was not home. Kenneth Crawford
admitted that he did not know when she would be home,
and that she had no way of knowing that he had pur-
chased a dryer which would be delivered at 3 p.m.
Therefore it is evident that Ellen Crawford' s explanation
of her whereabouts on the afternoon of 3 March was
false . Kenneth Crawford was also somewhat equivocal
about his wife's hair color. He testified that her hair was
never "completely black," that she had her hair tinted,
and that her hair could have been darker before than it
was now. In light of Ellen Crawford's testimony that she
did not know Houston, which was inconsistent with her
affidavit, and her false explanation for her whereabouts
on the afternoon of 3 March. I credit Houston, and I
find that the incident occurred as described by Houston.
Crawford knew Houston. They had worked together,
and the strikers were closely monitoring the identity of
employees who crossed the picket line. Houston was par-
ticularly conspicuous because of her condition. I also
find that Houston, Buchanan , and Gaw accurately de-
scribed Crawford. She was undisputedly brunette, and
her hair color may well have been darker in February
1984 than in October 1986.
With regard to the second incident, Supervisor Rob-
erts testified in sum as follows: On 16 July at about 3:30
p.m. he attempted to exit the plant premises through the
20th Street gate in his pickup truck. Ellen Crawford and
Wanda McCloud were picketing the gate, crossing each
other's path across the gateway. Roberts inched his way
forward, wanting for them to clear the way. After
making two or three passes they cleared the entrance at
the same time , and Roberts moved forward. As he did so
he glanced in his side-view mirror and saw Crawford hit
his truck, near the rear tire, with the stick of her picket
sign . There was no damage . Crawford drove to his desti-
nation, a golf course, where he met Personnel Director
Cummings and reported the incident to him. Roberts also
submitted a written incident report the next day. Securi-
ty guard Terry Beaver substantially corroborated Rob-
erts' description of the incident. Beaver testified that he
was assigned to the parking lot area that day, had an un-
obstructed view of the 20th Street gate, and could identi-
fy Crawford, having frequently observed her on the
picket line. Crawford testified that she and McCloud
were picketing at the 20th Street gate on 16 July when
Roberts exited, that he nearly missed hitting McCloud,
and that she never hit his vehicle or any other vehicle
with a picket sign. McCloud, who was presented as a
General Counsel witness, testified that she did not see
Crawford strike Roberts' truck or any other vehicle.
However she admitted that it was possible for Crawford
to hit the vehicle without McCloud seeing her,, because
McCloud was on the opposite side of the truck. I have
no reason to question the credibility of Roberts and
Beaver. In contrast Crawford demonstrated a lack of
credibility in connection with the Super X incident. I
credit Roberts and Beaver, and I find that the incident
occurred as described by them.
I find that by reason of her conduct at Super X on 3
March and at the picket lne on 16 July, Crawford en-
gaged in strike misconduct of a serious nature which jus-
tified denial of reinstatement. Crawford deliberately as-
saulted Jeanie Houston and twice threatened ' her with
physical harm. With respect to such conduct, see Clear
Pine Mouldings, 268 NLRB at 1047. With respect to the
assault on Roberts' vehicle, see also Richmond Recording,
supra and Cartridge Activated Devices, supra. As indicated
by these cases, it is immaterial that Roberts' vehicle was
not damaged . It is also immaterial whether Crawford hit
the vehicle with a large picket sign or a small one. While
this incident may seem relatively minor, it should be
TELEDYNE STILL-MAN
noted that the strike had been in progress for over 5
months, and had been the subject of a State court injunc-
tion , a Federal injunction and a civil contempt proceed-
ing. In these circumstances Crawford's action can hardly
be dismissed as innocuous . I find that the Company did
not violate the Act by discharging Crawford.
F. Willie Wheeler
Willie Wheeler was employed by the Company for 14
years, and worked as a mill operator. He joined the
strike and participated in the picketing. On 9 April 1985
Wheeler unconditionally offered to return to work. The
Company sent Wheeler a termination letter dated 20 Jan-
uary 1986. Personnel Manager Cummings testified that
he made the decision to terminate:. "Based upon the re-
ports that we had that he had been named in civil con-
tempt as well as a videotape which was submitted to the
National Labor Relations Board, of his picketing activi-
ty." I have quoted Cummings' exact language in this
regard, because it is particularly significant in resolving
the merits of this case. For the reasons which will be dis-
cussed, I find that the Company did not have an honest
belief that Wheeler engaged in strike misconduct, and
that even if it did, Wheeler did not in fact engage in the
misconduct alleged against him.
The Board's second petition for adjudication in civil
contempt, filed on 16 August, alleged that: "On or about
July 13, 1984, strikers James Smith and Willie Wheeler
struck a vehicle driven by an employee." The second
amended consolidated complaint filed on 27 September,
alleged that "Pickets James Smith and Willie Wheeler"
among numerous other strikers on various dates during
the period from February 6 through August 14, on or
about July 13, "in or about the vicinity of the picket line,
physically blocked the ingress and egress of nonstriking
employees, supervisors, and other individuals to the Em-
ployer's place of business; struck vehicles of nonstriking
employees, supervisors and other individuals at the Em-
ployer's place of business; and threatened nonstriking
employees, supervisors and other individuals at the Em-
ployer's place of business with acts of violence." The
contempt allegation upon which Cummings assertedly
relied, to the effect that Wheeler struck a vehicle driven
by an employee, was totally unsupported by any testimo-
ny or other evidence in this proceeding. Wheeler testi-
fied that he never struck a vehicle (As will be discussed,
he also testified that he did not picket on 13 July, and
also denied the other allegations of the CB complaint). In
contrast to the complaint and injunction petition allega-
tions against Oma Stidham, the source of this unfounded
allegation is no mystery. By a position statement letter to
the Board's Regional office, dated 20 July, in which the
Company requested institution of contempt proceedings,
company counsel alleged among other allegations that:
"Strikers James Smith and Willie Wheeler struck the ve-
hicle of employee Russell Swallows on July 13 with
their picket signs as he departed." The letter was submit-
ed with attachments, including an "Attachment C"
which purportedly contained "statements and reports"
supporting this and other allegations. However, although
the Company was meticulous in demanding that docu-
ments presented or used by counsel for General Counsel
177
be complete , including all attachments , the Company of-
fered only the letter in evidence , without the attach-
ments . The Company did not call Russell Swallows,
James Smith , or any other person as a witness in connec-
tion with this allegation , and did not explain its failure to
do so . Additional circumstances also tend to raise serious
questions as to whether this allegation was made in good
faith . First, in connection with the videotape incident,
which also allegedly occured on 13 July, the Company
asserted that Wheeler was picketing with Herman Bean.
The strikers picketed at each gate in pairs, each pair for
a 4-hour shift, because the State court restraining order
restricted the Union to two pickets at each gate . There-
fore it is unlikely that Wheeler would have picketed with
both Smith and Ban on the same day. Second , another
employee, one William C. Wheeler, also went on strike
and participated in the picketing . It is evident that this
coincidence of names . could present identity problems.
These circumstances called for some explanations, but
none was forthcoming . I find that the Company either
knew or subsequently learned that the allegation against
Wheeler was erroneous or could not be substantiated,
but nevertheless chose to use the allegation as a basis for
discharging him. Even if the doctrine of equitable estop-
pel could properly be considered in this proceeding, it
plainly would not be appropriate to Wheeler's case, be-
cause in his case it was General Counsel who relied upon
representations of the Company, and not vice versa. As a
result of this mistaken reliance, Wheeler -was deprived of
his statutory right to participate in peaceful picketing. l t
I find that the Company did not have a good -faith belief
that the allegation of the contempt petition was true. I
also credit Wheeler's uncontroverted testimony, and I
find that he did not either strike a vehicle or threaten
anyone.
With regard to the second alleged basis for discharg-
ing Wheeler, the Company presented in evidence a vid-
eotape of picketing which, in sum , showed two pickets,
who by their method of slowly crossing paths across a
gate, delayed a tractor-trailer truck from entering the
plant premises for a period of 65 seconds . Then security
coordinator Terry Priest testified that he did the audio
portion of the tape , and that as indicated , the tape was
filmed at about 3:30 p.m . on 13 July. Although Priest fre-
quently did such narration , and attempted to verbally de-
scribed incidents and name the persons involved when-
ever possible, the tape contains no identification of the
pickets . The tape was run several times during this hear-
ing, and Wheeler was present when it was run. It is not
possible from viewing the tapedo identify either picket
as Wheeler . Therefore the tape could not alone have fur-
nished the basis for a good -faith belief that Wheeler pre-
vented the truck from entering the plant premises.
Rather that basis would have to be provided by an eye
11 Wheeler admitted that he did not picket after . 29 August because he
was enjoined from doing so Therefore it is evident that he had knowl-
edge of the allegation against him . No issue is presented as to Wheeler's
knowledge of the second contempt proceeding. As previously discussed,
neither the Union nor Wheeler had any legal obligation to contest the
allegations against him, and their failure to do so cannot be construed as
an admission of guilt.
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
witness who could personally identify Wheeler as one of
the pickets delaying the truck , with the tape serving as
corroborative evidence . The Company 's belated efforts
to provide such testimony were contradictory and de-
monstrably incredible . Cummings initially testified that
he relied only on the tape, and that he had no other evi-
dence that Wheeler blocked the truck . Subsequently, in
response to leading questions from company counsel,
Cummings testified that he personally saw Wheeler
block the truck . Security coordinator Priest testified,
however, that when Cummings stood in the main park-
ing lot to watch picketing activity , he usually stood
under a canopy at the far end of the lot, and that he did
so on the day of the incident in question . This would
have been too far away to identify the picket who alleg-
edly was Wheeler, and who was wearing a cap. Priest
did not personally know Wheeler . He variously testified
that he did not know on 13 July that the picket was
Wheeler, that he did learn his identity that day, that he
might have learned Wheeler 's identity before the tape
was run, and that he learned Wheeler's identity from
Cummings after the incident . Priest admitted that he did
not file an incident report or add Wheeler 's name on the
tape when he learned his identity , although it was his
practice to file incident - reports and to place names on
tapes when identification was made. Priest was unable to
explain why he failed to take either action in this situa-
tion . Cummings also did not make any incident report.
The Company did not present any other alleged wit-
nesses to the incident.
Willie Wheeler testified that he normally picketed
once each week, that he picketed from 8 a.m. to noon on
10 July and from 8 a.m. to noon on 16 July, that he did
not picket on 13 July, and that he never blocked a vehi-
cle from entering the plant premises . Wheeler's testimo-
ny was corroborated by the Union's picket rosters,
which considered of daily sign-in sheets . It is undisputed
that these sheets did not invariably reflect the identity of
those who actually picketed , because sometimes strikers
would sign for someone else when performing picket
duty . Thus the Company presented evidence that the sig-
natures on various picket rosters either were not or
could not have been those of the persons who actually
picketed . Wheeler testified that he always signed his
name as "Willie D. Wheeler." Thus where his name ap-
pears in this fashion , as on the rosters for 10 and 16 July,
it is probable that Wheeler actually picketed on those
dates, because it is unlikely that other strikers would
have so signed his name . However where the signatures
"Willie Wheeler" appears as it does several times, it is
evident, as Wheeler himself admitted , that someone was
substituting . for him . The picket rosters indicate that
Wheeler usually . signed in once a week during the period
from February until late August and did not sign in more
often than such interval. Wheeler testified that he did not
recall substituting for someone else, but that if he did so,
he would sign the other person 's name . The picket roster
for 13 July indicates that 17 men and women signed in
for picket duty on the noon to 4 p .m. shift . .The names
do not include Wheeler , James Smith, or Herman Bean
(Smith is listed on the 4 a.m. to 8 a .m. shift). The Com-
pany did not present any evidence that any of the signa-
tures were not authentic , although if they were not, the
Company could have done so by comparing the 'signa-
tures with those in its - personnel records, as it did with
signatures on other dates . Therefore I have no reason to
question the reliability of the 13 July roster insofar as it
indicates that Willie Wheeler did not picket on that date.
As previously discussed , the Company also failed to ex-
plain its contradictory positions that Wheeler picketed
with Smith and that he picketed with Bean , both, on the
same date.
I find that the Company did not have a good-faith
belief that Wheeler was the picket shown in the . 13 July
tape . Rather, the evidence indicates that when the Com-
pany realized that it could not prove its false assertion
that Wheeler struck a vehicle on 13 July, it sought to pin
another accusation on Wheeler . I also , credit Wheeler's
testimony , and I find that he did not engage in the al-
leged strike misconduct . Therefore the Company . violat-
ed Section 8(a)(1) and (3) of the Act by discharging
Wheeler.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The International is and the Local was at all times
material, each a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminately discharging Oma Stidham and
Willie Wheeler, thereby discouraging membership in' the
Union, the Company has violated and is violating Sec-
tion 8(a)(3) of the Act.
4. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, the Company has engaged, and is en-
gaging, in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. The Company did not violate the Act by discharg-
ing Michael Harris, Linda Minnear, and Ellen - Crawford.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1) and (3) of the Act, I shall recom-
mended that it be required to cease and desist therefrom
and from like or related conduct, and to take certain af-
firmative action designed to, effectuate the policies of the
Act.
Having found that the Company discriminatorily ter-
minated Oma Stidham and Willie Wheeler, it will be rec-
ommended that the Company be ordered to offer them
immediate and full reinstatement to their former jobs, or
if such jobs no longer exist, to substantially equivalent
positions , without prejudice to their seniority or other
rights and privileges , and make them whole for any loss
of earnings and benefits that they may have suffered
from the time of their discharge to the date of the Com-
pany's offer to reinstatement. I shall further recommend
that the Company be ordered to expunge from .its
records any reference to their unlawful discharges, to
TELEDYNE STILL-MAN
give each of them written notice of such expunction, and
to inform them . that its unlawful conduct will not be used
as a basis for further personnel actions against them. See
Sterling Sugars, 261 NLRB 472 ( 1982). Backpay shall be
computed in accordance with the formula approved in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
computed in the manner and amount prescribed in Flori-
da Steel Corp., 231 NLRB_651 (l977).12 It will also be
recommended that the Company be required to preserve
and make available to the Board, or its agents, on re-
quest, payroll and other records to facilitate the compu-
tation of backpay due. I am granting General Counsel's
request for a visitatorial clause, because the circum-
stances of this case warrant such a remedy . The recom-
mended Order provides for reinstatement and backpay to
Stidham and Wheeler , but also enjoins the Company
from engaging in like or related violations of Section
8(a)(1) and (3), which would include discriminatory dis-
charge or denial of reinstatement rights to other strikers.
At the time of the present hearing, there were other
pending charges against the Company alleging unlawful
denial of reinstatement, and there were many other em-
ployees on the Company 's rehire priority list. It is quite
possible that in order to determine whether there has
been complaince with the Order , it may be necessary for
the Board to examine records, depose witnesses, or
engage in other compliance discovery . In these circum-
stances a visitatorial clause would effectuate the policies
of the Act. Compare Hilton Inn North, 279 NLRB 45 fn.
3 (1986).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed"
ORDER
The Respondent , Teledyne Industries , Inc. d/b/a Tele-
dyne Still-Man, Cookeville, Tennessee , its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Discouraging membership in International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO,
or any labor organization , by discharging, denying rein-
statement rights or otherwise discriminating against em-
ployees because of lawful strike, picketing of other union
activity.
is See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962).
13 If no exceptions are filed as provided by Sec . 102 46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall , as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
179
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Oma Stidham and Willie Wheeler immediate
and full reinstatement to their former jobs or, if such
jobs no longer 'exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for
losses they suffered by reason of the discrimination
against them as set forth in the remedy section of this de-
cision.
(b) Expunge from its files any reference to the dis-
charges of Oma Stidham and Willie Wheeler, and notify
each of them in writing that this has been done and that
evidence of their'unlawful discharges will not be used as
a basis for future personnel actions against them.
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due.
(d) Post at its Cookeville, Tennesse place of business
copies of. the attached notice marked "Appendix."t 4
Copies of the notice , on forms provided by the Regional
Director for Region 10, after being signed by the Re-
spondent's authorized representative , shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the ' notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply. For the purpose of determining or
securing compliance with this Order, the Board, or any
of its duly authorized representatives , may obtain discov-
ery from the Respondent, its officers, agents, successors,
or assigns, or any other person having knowledge con-
cerning any compliance matter, in the manner provided
by the Federal Rules of Civil Procedure. Such discovery
shall be conducted under the supervision of the United
States court of appeals enforcing this Order and may be
had upon any matter reasonably related to compliance
with this Order, as enforced by the court.
14 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al 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."