Texaco Inc.

National Labor Relations Board - Board Decisions

May 30, 1986

279 N.L.R.B. 1259 (N.L.R.B. 1986)

TEXACO, INC
Texaco Inc ., and Gregory D. Berglund . Case 13-
CA-20153
30 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 11 June 1982 Administrative Law Judge
Jerry B. Stone issued the attached decision. The
General Counsel and the Respondent filed excep-
tions, supporting briefs, and reply briefs. The Gen-
eral Counsel filed a motion to strike a part of the
Respondent's brief, and the Respondent filed a
reply to the motion.'
The National Labor Relations Board had dele-
gated 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, and
conclusions only to the extent consistent with this
Decision and Order.
The case arises out of the Respondent's suspen-
sion and discharge of employees Gregory Berglund
and Jerry Robinson for alleged strike misconduct.
Both Berglund and Robinson filed grievances chal-
lenging the propriety of their discipline under the
collective-bargaining agreement between the Union
and the Respondent. The grievances culminated in
an arbitration hearing where the arbitrator heard
evidence concerning the alleged misconduct of
Berglund and Robinson. The arbitrator issued an
award in which he concluded that the suspensions
of Berglund and Robinson were for good cause,
but that their discharges were not. He then ordered
Berglund and Robinson reinstated but denied them
backpay.
The unfair labor practice charge and complaint
allege that the discipline imposed on Berglund and
Robinson for their alleged strike misconduct violat-
ed Section 8(a)(3) and (1) of the Act. At the hear-
ing, the judge, as did the arbitrator, received evi-
dence concerning the alleged misconduct of Berg-
lund and Robinson. In his decision, the judge ini-
tially determined that deferral to the arbitration
award was inappropriate. He based this determina-
tion on his finding that the arbitrator did not ade-
quately consider the unfair labor practice because
he failed to determine whether Berglund and Rob-
inson were engaged in conduct the Act protects.
According to the judge, this failure rendered the
award repugnant to the purposes and policies of
the Act. After declining to defer, the judge ad-
1 The General Counsel's motion to strike is denied
1259
dressed the case's merits, concluded that the sus-
pensions and discharges were lawful, and recom-
mended the complaint's dismissal. While we agree
that the complaint should be dismissed, we do so
because deferral is appropriate.
The judge's decision, which issued prior to our
decision in Olin Corp., 268 NLRB 573 (1984), re-
flects the precise analytical error Olin sought to
rectify. That error lies in first determining the
merits of the unfair labor practice case, then con-
trasting that determination with the arbitration
award, where applicable, and finally concluding
that the arbitrator did not adequately consider the
unfair labor practice and, therefore, the award is
repugnant to the Act because it does not replicate
the Board's own findings, analytical framework,
and remedial scheme. As we stated in Olin, such an
approach "predicatably reache[s] a decision not to
defer ... [that] ... serves only to frustrate the de-
clared purpose of Spielberg . . . ." Olin, 268 NLRB
at 574.2 In order to return to the proper Spielberg
standards, therefore, Olin held that an arbitrator
adequately considers the unfair labor practice if (1)
the contractual issue is factually parallel to the
unfair labor practice issue , and (2) the arbitrator
was presented generally with the facts relevant to
resolving the unfair labor practice. Id. Applying
the Olin standard, we find deferral appropriate.3
Regarding whether the contractual and unfair
labor practice issues are parallel, the essence of
each proceeding is whether the Respondent was
justified in imposing discipline on Berglund and
Robinson for their alleged strike misconduct. Con-
cededly, each forum requires its own analytical
framework. Thus, the arbitrator decided whether
just cause for discipline existed while resolution of
the unfair labor practice requires a decision on
whether the employees' misconduct was such that
they forfeited the protection of the Act. These ana-
lytical differences, however, are endemic to the rel-
ative forums and do not detract from the congru-
ent issues of whether Berglund's and Robinson's
misconduct justified the Respondent's imposition of
discipline. Accordingly, the issues in the two pro-
ceedings are factually parallel.
Respecting whether the arbitrator was presented
generally with the facts relevant to resolving the
unfair labor practices, there can be no serious dis-
pute. Both the arbitrator and the judge were pre-
sented with evidence concerning the alleged ac-
tions of Berglund and Robinson, the circumstances
2 Referring to Spielberg Mfg. Co, 112 NLRB 1080 (1955)
3 The judge found , and we agree , that the arbitration proceeding was
fair and regular and that the parties agreed to be bound by the results
279 NLRB No. 163
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surrounding their activities, and the impact of their
acts on other persons present.
Finally, we find that the arbitrator's award is in
no way repugnant to the purposes and policies of
the Act. As noted, the arbitrator found that Berg-
lund and Robinson did, in fact, engage in strike
misconduct that served as a basis for the Respond-
ent's imposition of discipline. Such a finding is
plainly consistent with the Act. Clear Pine Mould-
ings, 268 NLRB 1044 (1984). The fact that the arbi-
trator effectively reduced the discipline by direct-
ing the employees reinstated without backpay does
not diminish our finding. Combustion Engineering,
272 NLRB 215 (1984); Douglas Aircraft Co. v.
NLRB, 609 F.2d 352 (9th Cir. 1979). As stated in
Combustion Engineering, "We believe that the flexi-
bility of remedies is a major advantage of arbitra-
tion. Industrial peace is more likely to result from
awards tailored to specific circumstances than
those applied mechnically to diverse situations."
272 NLRB at 217 fn. 11.
ORDER
The complaint is dismissed.
Douchan Pouritch, Esq., for the General Counsel.
David R. Sheil, Esq., and Gary Earl Jobe, Esq., of Hous-
ton, Texas, for the Respondent.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge. This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, was tried pursuant to due notice on January 6,
1982, at Chicago, Illinois.
The charge was filed on July 16, 1980. The complaint
in this matter was issued on June 16, 1981. The issues
concern whether the Respondent violated Section 8(a)(3)
and (1) of the Act by (1) about February 1, 1980, sus-
pending Gregory D. Berglund and Jerry Robinson, and
(2) about February 27, 1980, discharging Gregory D.
Berglund and Jerry Robinson. Subsumed in such issues
and controlling thereto are issues on whether Gregory
D. Berglund and Jerry Robinson engaged in picket line
misconduct of such a serious nature that such conduct
was unprotected and that the Respondent was free, inso-
far as statutory obligation and rights are concerned, to
discipline Berglund and Robinson for such misconduct.
All parties were afforded full opportunity to partici-
pate in the proceeding. Briefs have been filed by the
General Counsel and the Respondent and have been con-
sidered.
On the entire record in the case and from my observa-
tion of witnesses, I make the following'
' An order, dated February 8, 1982, and an affidavit of service of such
order, dated February 8, 1982, respectively marked as ALJ Exhs 4 and
5, are received in the record
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based on the pleadings and admis-
sions therein.
At all times material herein, Texaco, Inc., the Re-
spondent, a Delaware corporation, has maintained its
principal office and place of business at 2000 Westchester
Avenue, White Plains , New York, at which location it
has been engaged in the business of refining petroleum
products.
At all times material herein, the Respondent has main-
tained and operated an oil refining facility on Second
Street in Lockport, Illinois (the Lockport facility), at
which location it has been engaged in the business oper-
ations described above. The Lockport, Illinois facility is
the only facility involved herein.2
During a representative 12-month period, the Re-
spondent, in the course and conduct of the business oper-
ations described above, shipped goods and materials
valued in excess of $50,000 from its Lockport, Illinois fa-
cility directly to points located outside the State of Illi-
nois.
As conceded by the Respondent and based on the
foregoing, it is concluded and found that the Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED3
Oil, Chemical and Atomic Workers International
Union, Local 7-222 (the Union) is now, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Facts
1. Supervisory/agency status4
At all times material herein, P. Beall Jr. occupied the
position of plant manager at the Respondent's Lockport
facility, and has been, and is now, an agent of the Re-
spondent, acting on its behalf within the meaning of Sec-
tion 2(13) of the Act, and a supervisor within the mean-
ing of Section 2(11) of the Act.
2 The strike5
About January 7 to about April 10, 1980, certain em-
ployees of Texaco, Inc, represented by the Oil, Chemi-
cal and Atomic Workers International Union, Local 7-
222, and employed at the Respondent's Lockport, Illinois
facility, ceased work concertedly and engaged in a strike.
2 The Respondent's answer averred that operations at the Lockport,
Illinois facility had ceased and that reopening of such facility was not
contemplated at this time
8 The facts are based on the pleadings and admissions therein
The facts are based on the pleadings and admissions therein
5 The facts are based on the pleadings and admissions therein or on
clear and undisputed facts as revealed by the record
TEXACO, INC.
Gregory D. Berglund and Jerry D. Robinson were
employees of Texaco, Inc., who participated in the
above-referred-to strike. The facts are clear that Robin-
son, on January 14, 1980, while on the picket line, en-
gaged in certain acts of misconduct of throwing nails
under automobiles leaving the Respondent 's premises.
The facts are also clear that Berglund, on January 28,
1980, threw firecrackers in the direction of the Respond-
ent's employees who were in the process of trying to
clear debris (nails, etc.) from the road before vehicles
leaving the Respondent's premises had to traverse the
road. The facts are further clear that on January 30,
1980, Berglund threw a bottle on the gravel of the road
and that` the bottle broke on contact with the road. The
facts also reveal that both Robinson and Berglund par-
ticipated in picketing on February 23, 1980, that Robin-
son picketed in such a way as to completely block or
impede vehicles from moving, and that both Robinson
and Berglund used much profane and vulgar language of
the type designed to cause someone to feel compelled to
fight or to feel humiliated and demeaned, and that such
language was accompanied by threats of serious bodily
harm.
3. Discipline-the suspensions; discharges
(a) On January 17, 1980, the Respondent transmitted a
letter to Robinson as follows:
January 17, 1980
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Jerry D. Robinson
3454 Prieboy Avenue
Joliet , Illinois 60435
Dear Sir:
This will advise you that due to your misconduct
on or about the picket line, you are being suspended
for ten working days without pay beginning imme-
diately with the conclusion of the current work
stoppage.
On Monday, January 14, 1980, while you were
participating in picket line activities, you were ob-
served picking up nails and throwing them directly
under personal and company cars as they were ap-
proaching the intersection of Second and State
Street.
Misconduct of this nature which is designed to
inflict damage to personal and Company property is
a very serious matter and cannot be tolerated at any
time whether it occurs during regular working con-
ditions or during a work stoppage situation.
We are hopeful that you will realize the serious-
ness with which we view your actions and that you
will recognize and respect the legal rights of the
Company to operate its facilities without harassment
in the future.
A copy of this letter is being placed in your per-
sonal folder.
Yours truly,
PBJr-PJO
1261
(b) On February 1, 1980, the Respondent transmitted
the following letter to Berglund:
Lockport, Illinois , February 1, 1980
PERSONAL
(BLIND) EMPLOYE RELATIONS-LOCKPORT
PLANT
EMPLOYEE DISCIPLINE
CERTIFIED MAIL-
RETURN RECEIPT REQUESTED
Mr. Gregory D. Berglund
565 E. Division, Apt. 3
Lockport, Illinois 60441
Dear Sir:
This will advise you that due to your misconduct
on or about the picket line, you are being suspended
for ten working days beginning immediately with
the conclusion of the current work stoppage.
On Monday, January 28, 1980, at approximately
7.30 PM while you were participating in picket line
activities , you were observed lighting and throwing
M-80 firecrackers at Company personnel cleaning
debris from the Company roadway. Moreover, at
approximately 9:40 AM on Wednesday, January 30,
1980, you were observed throwing and breaking a
glass bottle on the Company roadway leading into
the main plant entrance.
The throwing of firecrackers jeopardized the
safety of our personnel and delayed their clean-up
procedures. Your additional misconduct which was
designed to obstruct traffic and inflict damage to
vehicles is also a very serious matter and cannot be
tolerated under any circumstances, whether it
occurs under regular working conditions or during
a work stoppage situation.
We are hopeful that you will realize the serious-
ness with which we view your actions and that you
will recognize and respect the legal rights of the
Company to operate its facilities without harassment
in the future.
A copy of this letter is being placed in your per-
sonal folder.
Yours very truly,
/s/ P BEALL, JR.
P. Beall, Jr.,
Plant Manager
PB, jr.-DB
Folder (BLIND)
(c) On February 27, 1980, the Respondent transmitted,
letters to Berglund and Robinson. Such letters contained
the following excerpts:
Excerpts from the Letter to Berglund
This will advise you that due to your flagrant
misconduct on or about the picket line, your serv-
ices are being terminated effective February 27,
1980.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Saturday, February 23, 1980 between 7:00
PM and 8:15 PM you were observed and identified
as the picket who was repeatedly guilty of gross
misconduct which was characterized by inflamma-
tory, vile, obscene and unconscionable language as
well as threats of physical violence directed at
Company employees as they were passing through
the picket line
Excerpts from the Letter to Robinson
This will advise you that due to your flagrant
misconduct on or about the picket line, your serv-
ices are being terminated effective February 27,
1980
On Saturday , February 23, 1980 , between 7:00
PM and 8:15 PM, you were observed and identified
as the picket who was repeatedly guilty of gross
misconduct which was characterized by inflamma-
tory , vile, obscene and unconscionable language as
well as physical threats of violence directed at
Company employees as they were passing through
the picket line.
Moreover , you repeatedly blocked the roadway
and held up large numbers of Company vehicles for
considerable periods of time . In one instance you
completely blocked a Company vehicle for an
elapsed time of twenty-five minutes and only upon
arrival of the Sheriffs Police permitted access
through the picket line.
B. The Deferral Issue
The Respondent's answer averred as an affirmative de-
fense that the complaint in this matter should be dis-
missed "since each of the issues raised therein was dis-
posed of finally via fair and regular arbitration proceed-
ings under the collective-bargaining agreement between
the Company and the Union, wherein each of the parties
agreed to be bound, and where the arbitrator's award
was clearly not repugnant to the policies of the Act."
The Respondent raised the same issue by the making of a
Motion for Summary Judgment based on the same con-
tention.
There is no issue and it is clear that the Union and the
Respondent have a collective-bargaining agreement with
provisions for arbitration. There is no issue and it is clear
that there was an arbitration hearing held on July 8,
1980, that the hearing involved issues relating to the con-
duct of Robinson on January 14 and February 23, 1980,
as set forth in slight detail beforehand herein, and that
the hearing involved issues relating to the conduct of
Berglund on January 28 and 30 and February 23, 1980,
as set forth in slight detail beforehand herein, and wheth-
er the discipline of suspension and discharge as rendered
by the Respondent was warranted or justified. It is clear
that the July 8, 1980 arbitration proceeding was a regular
and fair type proceeding
The Respondent contends that the arbitrator's decision
and award, apparently issued on December 29, 1980, sat-
isfied the Board's criteria for deferral, and that such deci-
sion and award was not repugnant to the Act. The Gen-
eral Counsel contends that the arbitrator's decision and
award reveals inconsistency between findings and
remedy. In effect, the General Counsel contends that the
arbitrator found that Berglund and Robinson were en-
gaged in protected concerted activity and that the award
involving discipline against such employees is repugnant
to the Act.
A review of the arbitrator's decision and the transcript
of the arbitration hearing does not reveal that the issue
of whether Berglund and Robinson had engaged in statu-
torily protected conduct was raised or considered.
Rather, the transcript of the proceeding and the decision
reveal that the issues considered related to contract
rights and arbitrational decisional law
The arbitrator found that the 10-day layoffs (suspen-
sions) of Robinson for his conduct on January 14, 1980,
and for Berglund for his conduct on January 28 and 30,
1980, were reasonable and for proper cause.
It is clear that if the arbitrator considered that Berg-
lund's and Robinson's conduct on January 14 and 28,
1980, was conduct protected by the statute (National
Labor Relations Act), the award allowing discipline for
such conduct was repugnant to the Act. If the arbitrator
considered that Berglund's and Robinson's acts of con-
duct on January 14 and 28, 1980, were acts of serious
misconduct removing them from the protection of the
Act, the arbitrator very well might not have found it
necessary to consider whether the discipline or suspen-
sions were reasonable or not. On the other hand, the ar-
bitrator might have considered the acts of conduct of
Berglund and Robinson on January 14 and 28, 1980, to
be serious acts of misconduct removing them from the
statutory protection of the Act, and perhaps at the same
time considered that industry practice or contractual
rights warranted a consideration of reasonableness of the
discipline imposed on them. I do not find it necessary to
determine whether the consideration of facts of contrac-
tual rights and industry practice as referred to above
would require a finding that such conduct was not seri-
ous misconduct removing Berglund and Robinson from
the statutory protection of the Act. Limited to a consid-
eration of the arbitration hearing and the arbitrator's de-
cision, it is not established that the arbitrator has passed
on the statutory issue of whether Robinson's conduct on
January 14, 1980, and Berglund's conduct on January 28,
1980, is either protected by the Act (the National Labor
Relations Act) or unprotected because of the seriousness
of the misconduct. The overall facts related by the arbi-
trator would tend to suggest an indication that the acts
of misconduct were not acts of serious misconduct. If
this were true, the employees would not be deemed to
have lost the protection of the Act, and the imposition of
discipline would be deemed to be violative of the Act.
However, the arbitrator's handling of the question of
Berglund's and Robinson's conduct on February 23,
1980, persuades that the arbitrator's finding and decision
were not based on a consideration of whether Berglund's
and Robinson's conduct was conduct statutorily protect-
ed. This being so, I find it clear that deferral should not
be accorded the arbitrator's decision as regards the con-
duct of Berglund and Robinson in January 1980, and the
TEXACO, INC.
10 days' suspensions for such conduct as previously re-
ferred to herein.
The arbitrator found that the Respondent's discharge
of Berglund and Robinson for their conduct on the
picket line on February 23, 1980, was not for proper
cause . The arbitrator's award was to the effect that Berg-
lund and Robinson would be reinstated but without
backpay.
It is clear that if the arbitrator considered that Berg-
lund's and Robinson's conduct of February 23, 1980, was
protected by the Act, the arbitrator's finding must be
deemed repugnant to the Act because of the imposition
of discipline of a constructive suspension.
It is clear that the arbitrator's finding that Berglund
and Robinson were not discharged for proper cause
makes it improper to deduce that in actuality the Re-
spondent discharged Berglund and Robinson for cause,
for serious misconduct removing them from the protec-
tion of the Act.
In sum , a review of the arbitration hearing and deci-
sion does not reveal a consideration of whether Berg-
lund's and Robinson's conduct in January and February,
as set forth beforehand, was or was not protected by the
Act. The award by the arbitrator as viewed in the con-
text of the findings, if statutory questions are deemed to
have been passed on, must be found to be repugnant to
the Act. Accordingly, the Respondent's motion and con-
tentions that the proceeding should be dismissed because
of the referred-to December 29, 1980 arbitration decision
is rejected
C. The Discrimination Issues
1. Events of January 14 and 17, 1980
The facts are clear that Jerry Robinson engaged in
picket line misconduct on January 14, 1980, and that the
Respondent disciplined Robinson by giving him a 10-day
suspension by letter dated January 17, 1980.8
The picket line misconduct by Robinson consisted of
throwing nails from his position on the picket line on the
gravel roadway used by vehicles going to and leaving
from the Respondent's premises.
What occurred is revealed by the following excerpts
from Robinson's testimony as credited.'
BY MR. POURITCH:
Q Drawing your attention to January the 14th,
1980, did you picket that day?
A. Yes.
Q. Where did you picket?
A. State Street and Second Street.
a The details have been set forth in sec III,A,3(a)
r I credit Robinson's testimony as to facts as revealed but not to the
extent it might be construed as meaning that Robinson's action of
"throwing nails" was provoked It is clear that anyone on the picket line
should have known that the debris on the road should not be on the
road, that the tractor's pushing of such debris in the area of the pickets
and policemen was not intended to throw the same at the pickets or po-
licemen but merely a necessary act of clearance of hazards from the road
Further, Robinson's throwing of nails under cars and continuation of the
same when such nails were being cleared from under the cars is revealing
of a deliberate act to interfere with usage of the road and not revealing
of a spontaneous act in anger
1263
Q. About what time did you come to picket that
day?
A. Roughly 4:00.
Q. How many pickets were there at that time?
A. From 10 to 15. I don't know exactly.
Q. What was the state of the access road when
you came?
A. When I came there there was nails, glass,
ashes , debris with them burning logs and so forth
on the side of the road at that time . The barrel was
upon State Street.
Q. And what happened then?
A. The street sweeper came out sweeping off
streets. There was a couple of supervisors with
them.
They cleaned the street up and the cars followed
them out to State Street exit. At that time the cars
was all stopped. We were walking back and forth
with signs and so forth. Lockport Police was there.
There was three or four Lockport Police there.
The street sweeper was sweeping it to the-I be-
lieve it would be the North side of the road. When
he got close to the picket line he was sweeping the
debris into the picketers face as well as into the po-
lice's face.
At this time me and a couple other fellows we
went along the side of the road, picked up some
nails , threw them underneath the cars. One of the
supervisors, Bernie Swenson, he was sweeping them
back out from underneath the cars. I went on down
the roadway picking up nails and throwing them
underneath the cars or into the vicinity of the car
where Bernie was at and he was sweeping them
back from out underneath of the cars, the ones he
didn't hit with a broom. Then I would go to the
next car.
Q. Mr. Robinson, on the 14th of January-the
nail throwing incident, had the road been cleaned
up completely at any point before you threw the
nails?
A. Before I threw the nails? Yes, the tractor
come up before the cars got there, swept it up to
the picket line. After the tractor got to the picket
line the road was clear.
Q. The road was clear? And then you proceeded
to start throwing the nails back onto the road?
A. After the tractor swept the debris in my face,
yes.
Q. And were the cars coming out of the plant at
that time?
A. They were stopped.
Q. They were stopped?
A. At the red light.
On January 17, 1980, the Respondent issued a notice
of a 10-day suspension to Robinson for his misconduct of
throwing nails under cars.
The Respondent argues that the throwing of nails on
the roadway and under cars constitutes serious miscon-
duct of the type to remove Robinson's picketing conduct
from the protection of the Act. The General Counsel
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argues in effect that the throwing of nails on the road
and under cars was not serious misconduct because Rob-
inson knew that the Respondent was clearing such nails
from the roadway.
Considering all the facts, I am persuaded that Robin-
son's conduct of throwing nails on the roadway and
under cars constituted serious misconduct removing such
picket line conduct from the protection of the Act. Thus,
Robinson reasonably would have known that a realistic
possibility existed that the Respondent would not be able
to completely clear all nails from a graveled roadway and
that some of the cars could be expected to have some
nails become embedded in tires resulting in flat tires or
blowouts later . Futher, Robinson should have reasonably
known that his actions relating to nails constituted a
hazard to human life and property. This is even clearer
where the facts reveal that while cars were stopped for a
stoplight, Robinson was throwing nails under the cars. It
seems clearer that the danger that all nails could not be
cleared from under such cars became greater because of
the limited time factor.
In sum , I conclude and find that Robinson's conduct
on January 14, 1980, in throwing nails on the roadway
and under cars was part of a battle to maintain hazardous
conditions for employees and automobiles using the
gravel roadway to and from the Respondent's premises
and constituted serious misconduct and that such serious
misconduct exceeded the type of conduct protected by
the Act. It follows, and I so find, that the Respondent's
disciplinary suspension on January 17, 1980, for the mis-
conduct of January 14, 1980, did not constitute conduct
violative of Section 8(a)(3) and (1) of the Act.8
2. Events of January 28-February 1, 1980
The background facts reveal that debris, such as nails,
broken glass, and tree branches, repeatedly appeared on
the gravel road leading to and from the Respondent's
premises, and that the Respondent had a standard clean-
up operation to remove such hazards from the gravel
road at times of shift changes.
On January 28, 1980, there was such debris on the
road. When the Respondent's employees approached the
road for a cleanup operation, Berglund threw some fire-
crackers in the general direction of employees or super-
visors who were en route for a cleanup operation. The
facts indicate that Berglund did not intend any physical
harm to the individuals headed for the cleanup operation.
I credit Berglund's testimony to the effect that the fire-
crackers were simply firecrackers, that the brand of fire-
8 I note that at the trial the General Counsel and the Respondent stipu-
lated the issues in this case to be simply whether or not Berglund and
Robinson had engaged in serious misconduct which is not protected by
the Act. It was made clear at the trial that the General Counsel did not
contend that the Respondent had selected Robinson and Berglund for
discipline on a discriminatory basis in a general sense At the trial the
General Counsel appears to argue that "condonation" of similar miscon-
duct had a bearing on the issues Since there is no contention of discrimi-
natory or disparate treatment of a general sense, condonation would not
appear relevant excepting as might be established on the specific conduct
of Berglund and Robinson Considering the timing of events , the basis of
discipline , and the letters relating to the suspensions and discharges, it is
clear that the Respondent had not condoned Berglund's and Robinson's
misconduct involved in the issues in this case
crackers were "cherry bombs," and that the firecrackers
were not the type called "cherry bombs" or M-80's. The
facts are also clear that no real damage or physical
injury resulted from Berglund 's throwing of firecrackers
On January 30, 1980 , Berglund threw a beer bottle
onto the gravel road . On contact with the road, the
bottle broke.
On February 1, 1980, the Respondent gave Berglund a
notice of a 10-day suspension in employment because of
the throwing of firecrackers on January 28, 1980 , and the
throwing of a bottle on the road on January 30, 1980.9
The General Counsel argues and contends that the
throwing of firecrackers by Berglund did not constitute
serious misconduct of the type which removed Berg-
lund's conduct from the protection of the Act, and that
therefore the Respondent 's discipline of Berglund for
such misconduct constituted conduct violative of Section
8(a)(3) and (1) of the Act. The Respondent contends that
the throwing of firecrackers by Berglund constituted se-
rious misconduct of the type which removed his picket
line conduct from the protection of the Act and that
therefore the Respondent 's discipline of Berglund for
such throwing of firecrackers did not constitute conduct
violative of Section 8(a)(3) and (1) of the Act.
Whether the throwing of firecrackers by Berglund on
January 28 , 1980, constituted serious misconduct must be
viewed in the context of the surrounding circumstances.
It is not clear whether the firecrackers were simple fire-
crackers or M-80 's or cherry bombs. Berglund should
have known that exploding firecrackers might cause dust
or rock fragments to go through the air and injure some-
one's eyes or other parts of their bodies . Further , there is
always danger from firecrackers exploding on a delayed
basis . And, it is clear that the harassment of cleanup em-
ployees by the exploding of firecrackers could result in
their failure to clear all nails or all other hazardous ob-
jects from the roadway . I am persuaded that the throw-
ing of firecrackers by Berglund on January 28, 1980, was
part of a battle to maintain hazardous conditions for em-
ployees and automobiles using the gravel roadway to
and from the Respondent's premises and constituted seri-
ous misconduct which removed his picket line miscon-
duct in such regard from the protection of the Act. 1 o
Accordingly, I conclude and find that the Respondent's
discipline of Berglund on February 1, 1980, did not con-
stitute conduct violative of Section 8(a)(3) and (1) of the
Act.
The General Counsel contends in effect that Berg-
lund's conduct , throwing a bottle on the road on January
30, 1980 , did not constitute serious misconduct of the
type to remove Berglund's picket line conduct therein
from the protection of the Act. The Respondent con-
tends that such misconduct was serious misconduct and
of the type to remove such picket line conduct from the
protection of the Act.
Such conduct must be viewed in the context of the
facts that the gravel road was used for access to and de-
parture from the Respondent 's plant by employees and
8 The details have been set forth in sec III, A,3 (b) beforehand
10 It is clear that Berglund's throwing of firecrackers was not a sponta-
neous act and was not the result of provocation
TEXACO, INC.
others in cars. It is clear that a smashed bottle presented
a hazard to the tires on such automobiles. It is also clear
that, even with attempted cleanup of debris, the possibili-
ty existed that old broken glass could not be effectively
cleared from the road It is clear that Berglund 's conduct
was in the nature of a battle to see that hazards were
presented to those using the gravel road. Accordingly, I
conclude and find that Berglund 's misconduct on Janu-
ary 30, 1980, was serious misconduct which removed
itself from the protection of the Act. It follows and I so
conclude and find that the Respondent's discipline of
Berglund for such misconduct did not constitute conduct
violative of Section 8(a)(3) and (1) of the Act.
3. Events of February 23, 198011
On February 23, 1980, Jerry Robinson and Gregory
Berglund were on the picket line. Robinson and Berg-
lund and other pickets were stopping cars en route from
the Respondent's premises. The facts reveal that Robin-
son blocked the movement of the cars for periods of 10
to 15 minutes by walking back and forth between the
headlights of the cars in such a manner that the cars
could not move forward without touching him. During
such period of time, Robinson and Berglund directed a
barrage of obscene words and comments at the passen-
gers in such cars Thus, the passengers were a captive
audience subjected to much verbal abuse. The remarks
were laced with words of the type designed to provoke
someone to fight or to cause a feeling of humiliation.
Robinson spat on a number of the cars. It is undisputed
that Berglund directed a number of threats of physical
violence at passengers in such cars. Thus, Berglund
asked one occupant of the cars, "How would you like
for me to poke your eye out just to look at it." Berglund
stated to one occupant that, "We got people following
you. How would you like to go home with a couple of
broken legs9" Berglund made another threat to an occu-
pant of a car that, "We're going to break your neck."
Berglund told one occupant that, "I'll grab your neck
and break it in five places " Berglund also told an occu-
pant "I'll break your f--g neck. I hope they get this
on tape, cause I will "
At one point the driver of a car edged forward and
bumped Robinson. Robinson responded by accusing the
driver of bumping him, pointing his finger at the driver
telling the driver that he would come through the
window after him if he did it again At one point Robin-
son in effect told an occupant that he would blow his
"f--g head off ,12
The Respondent, on February 27, 1980, discharged
Berglund and Robinson because of their misconduct on
February 23, 1980.13
i l The facts are based on the exhibits relating to remarks stipulated to
have been made, the videotape of the events of February 23, 1980, and
the testimony of the witnesses Although in counsel 's brief reference is
made to a transcript of the arbitration proceeding as evidence , the same
was not presented as evidence of the events Such transcript is in the
record only as regards the issue of whether the proceeding should be dis-
missed because of the arbitration proceeding and award
12 This remark by Robinson is not admitted by the General Counsel
but is clearly audible on the videotape, in evidence, as coming from the
person identified as Robinson
13 See sec III,A,3(c)
1265
The General Counsel presented some testimony
through Robinson and Berglund in an attempt to estab-
lish that Robinson's and Berglund's conduct was the
result of provocation by the occupants of the cars while
stopped. Thus, occupants in the cars allegedly smiled,
smirked, laughed, or gave the "finger" sign . A review of
the videotape of the events of February 23, 1980, per-
suades that if such conduct were engaged in, it was of a
minimal nature and certainly not of a type to warrant
Robinson's and Berglund's actions or threats. Testimony
seems to suggest some anger by Berglund and Robinson
because employees were working as replacements. Cer-
tainly such employment of replacement workers does not
constitute justification for Berglund's or Robinson's con-
duct.
The General Counsel presented some testimony by
Robinson and Berglund to suggest that friendly banter
occurred between Robinson and Berglund and supervi-
sors. Some of this appears true. Nevertheless, it does not
justify or minimize the effect of the threats and conduct
directed at others.
Robinson testified to the effect that the threats he
made were "idle threats," that, however, he made them
because he wished to scare the employees.
The sum of the facts reveals no instance wherein Rob-
inson or Berglund carried out the threats that they made
to occupants of the cars. I am persuaded that Robinson
and Berglund did not intend to carry out such threats as
made.
The General Counsel contends in effect that Robin-
son's and Berglund's conduct on February 23, 1980, did
not constitute serious misconduct removing such picket
line misconduct from the protection of the Act. The Re-
spondent contends that such conduct was serious miscon-
duct removing such picket line misconduct from the pro-
tection of the Act.
The controlling principles are set forth in W. C.
McQuaide, Inc., 220 NLRB 593, 593-594 (1975):
It is well established, however, that not all conduct
which occurs in the course of a labor dispute is
within the purview of Sections 7 and 13. A striking
employee who engages in serious acts of miscon-
duct may lose the protection of the Act and subject
himself to discharge . But, as has long been recog-
nized by Board and court decisions, undue strictures
on the exercise of Sections 7 and 13 rights could be
imposed if every act of impropriety committed by a
striking employee is deemed sufficient to place that
employee outside the protection of the Act. In a sit-
uation such as that here involved, the Board has
therefore evaluated the character of the improper
acts committed by striking employees and has
drawn certain distinctions. Thus, the Board has dif-
ferentiated between those cases in which employees
have arguably exceeded the bounds of lawful con-
duct during a strike in a "moment of animal exuber-
ance" from those cases in which the misconduct is
so flagrant or egregious as to require subordination
of the employee's protected rights in order to vindi-
cate the broader interests of society as a whole.
[Footnote omitted.]
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board in the McQuaide case found that there
were indications of certain instances in which striking
employees verbally abused or threatened replacements.
The Board, however, found that (220 NLRB at 594):
[T]his language was not accompanied by any physi-
cal acts or gestures that would provide added em-
phasis or meaning to their words sufficient to war-
rant finding that they should not be reinstated to
their jobs at the strike's conclusion. [Footnote omit-
ted.]
As indicated, where language of verbal abuse and of
threats has occurred, consideration must be given to the
physical acts and gestures accompanying such verbal
abuse and threats. 14 In the instant case it is clear that
Robinson's and Berglund's conduct was not of a sponta-
neous nature, that the threats were in the context of
physical acts of blocking of cars in such a manner that
the occupants were momentarily at least a captive audi-
ence, that the threats were made in a context of verbal
abuse, finger pointing, and strong expression of hostility
by the spitting on cars by Robinson. It is clear that the
threats were intended to scare the occupants of the cars,
and such were reiterated by Berglund's remarks that he
meant his threats. Under all such circumstances, I am
persuaded that Robinson's and Berglund's conduct on
14 Great tolerance is to be accorded to strikers' use of language, insult-
ing or otherwise. See Linn v Plant Guard Workers Local 114, 383 U.S 53
(1966), and Letter Carriers Branch 496 v Austin, 418 U S 264 (1974), Fire-
stone Tire & Rubber Co, 187 NLRB 54 (1970), and Capital Rubber & Spe-
cialty Co, 201 NLRB 715 (1973)
February 23, 1980, constituted serious misconduct re-
moved from the protection of the Act. It follows that
the Respondent's discharge of Berglund and Robinson on
February 27, 1980, did not constitute conduct violative
of Section 8(a)(3) and (1) of the Act.
On the basis of the above findings of fact and on the
entire record in the case, I make the following
CONCLUSIONS OF LAW
1. Texaco, Inc., the Respondent, is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, Local 7-222 is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Texaco, Inc., the Respondent, has not engaged in
conduct violative of Section 8(a)(3) and (1) of the Act as
alleged in the complaint in this proceeding.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'5
ORDER
The complaint in this matter is dismissed in its entire-
ty.
15 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.