The Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Dec 8, 1970

187 N.L.R.B. 54 (N.L.R.B. 1970)

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Firestone Tire & Rubber Company and Oil,
Chemical and Atomic Workers International Un-
ion, AFL-CIO, Local No 4-23 Case 23-CA-2904
December 8, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On January 14, 1969, Trial Examiner Benjamin B
Lipton issued his Decision in the above-entitled
proceeding, finding that Respondent had violated
Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended, by discriminatorily
refusing to reinstate 13 named strikers at the conclu-
sion of an economic strike Accordingly, he recom-
mended that Respondent cease and desist from such
conduct and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision The
Trial Examiner also found that Respondent had not
engaged in any unfair labor practices with respect to
its refusal to rehire two other named strikers, and he
recommended that the allegations of the complaint
pertaining to these individuals be dismissed Thereaft-
er, Respondent filed exceptions, and the Charging
Party cross-exceptions, to the Trial Examiner's
Decision with briefs in support thereof The Charging
Party also filed a reply brief
On June 20, 1969, by Executive Secretary's Order,
the Board remanded the proceeding to the Trial
Examiner with instructions to admit into evidence
and consider certain exhibits which had been rejected
at the hearing The Order further provided that upon
the motion of any party to the proceeding or on the
Trial Examiner's own motion, the record would be
reopened for receipt of further testimony or evidence
Thereafter, at the request of all parties, the record was
reopened and the hearing before Trial Examiner
Lipton was reconvened on January 27, 1970
At the reopened hearing, the General Counsel
acting pursuant to an agreement of the parties moved
to amend the complaint by deleting therefrom the
names of 121 of the 13 individuals who had been
found to be discriminatees in the Trial Examiner's
Decision The Trial Examiner granted the General
Counsel's motion2 after being satisfied that with
respect to these 12 individuals Respondent had
substantially complied with the terms of the Trial
Examiner's Recommended Order As amended the
complaint lists three individuals as alleged discrimina-
tees, employee Richard Broussard whom the Trial
Examiner had found to be a discriminatee in his
Decision and employees Thomas McCorkle and
I Charles N Bailey Sr Gene Cordeaux Burford Curtiss Donald J
Fowler Steve Henderson Glyn Howell Frank A McLeod Donald
Moore Claude S Peveto Sidney A Patterson Tommy J Swift and V R
Jerald Whitehead whom the Trial Examiner had
found were not refused rehire for unlawful reasons
Also during the hearing, the Trial Examiner granted
Respondent's motion to withdraw its offer of all the
exhibits which were the subject of the Board's Order
except those pertaining to employee Broussard Thus,
by agreement of the parties, the scope of the hearing
on remand was limited to the issues raised with
respect to Respondent's alleged unlawful refusal to
rehire Broussard
On March 26, 1970, Trial Examiner Lipton issued
his Supplemental Decision, attached hereto, in which
he reaffirmed his finding that Respondent violated
Section 8(a)(3) and (1) of the Act by its refusal to
reinstate employee Broussard at the conclusion of the
economic strike The Trial Examiner also reaffirmed
his earlier finding that Respondent did not engage in
any unfair labor practices by reason of its refusal to
reinstate employees McCorkle and Whitehead Ac-
cordingly on the basis of these findings, the Trial
Examiner recommended that the Board adopt, with
certain modifications, the Order set forth in his prior
Decision Thereafter, Respondent filed exceptions,
and the Charging Party cross-examinations, to the
Trial Examiner's Supplemental Decision together
with supporting briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel
The Board has reviewed the rulings of the Trial
Examiner made at both the original and supplemental
hearings and except as previously noted, finds that no
prejudicial error was committed The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision and Supplemental Decision
together with the entire record in this case, including
the exceptions, cross-exceptions, and briefs filed with
respect to both the Trial Examiner's Decision and
Supplemental Decision, and hereby adopts the Trial
Examiner's findings, conclusions, and recommenda-
tions to the extent they are consistent with the
following
We agree with the Trial Examiner that Respondent
was justified in refusing to reinstate employee
Thomas McCorkle based upon McCorkle's serious
misconduct in threatening to put a bullet in employee
Netting's back, if he (Netting) did not leave town that
night However, we do not agree with the Trial
Examiner's finding of a violation in connection with
Respondent's refusal to reinstate employee Richard
Broussard or his dismissal of the allegations relating
Walden
2 The Trial Examiner also granted a motion by the Charging Party to
delete from the charge the names of these 12 individuals
187 NLRB No 8
FIRESTONE TIRE & RUBBER CO. 55
to the unlawful refusal to reinstate employee Jerald
Whitehead.
Our conclusion with respect to employee Broussard
is based upon Broussard's participation and involve-
ment in a threat delivered by employee McCorkle to
R. W. Krajicek, the president of Cesco, Inc. Cesco,
Inc., was under contract with Respondent to perform
certain equipment cleaning functions at Respondent's
plant, and at various times during the strike, its drivers
crossed the picket lines at Respondent's plant in order
to perform its regular services. Evidencing concern
over this situation, employee McCorkle contacted
Marion J. Palermo, an official of Cesco, Inc., and a
personal friend of McCorkle, and arranged a meeting
to discuss that company's refusal to honor the strikers'
picket lines. When McCorkle arrived at the offices of
Cesco, Inc., he was accompanied by employees
Broussard and Fowler, and after a brief conversation
with Palermo, they were taken to see Company
President Krajicek. In the ensuing conversation in
President Krajicek's office, McCorkle served as the
spokesman of his group, and although there is some
testimonial conflict as to the precise nature of the
remarks passed, the Trial Examiner inferentially
credited McCorkle's version of the conversation over
that of Palermo and Krajicek. According to McCor-
kle's testimony, he told Krajicek the reason for the
visit was to discuss their crossing of the Union's picket
line. McCorkle added that they were strictly repre-
senting the Union and that they had made other calls
similar to this and the response had been very good.
After asking Krajicek to remain neutral until the
dispute was settled, McCorkle made the following
remark:
And I said, . . . in past strikes over the nation,
there has been lots of violence, cars and trucks
turned over, burned, people beat up, and my
intentions of going out and seeking these people
out that are crossing our picket lines were just, we
don't want anything like this to happen. And we
certainly don't want any of your drivers to get their
heads peeled or anything of this sort.3
According to McCorkle, Krajicek responded to this
comment by dumping out of his chair and asking
whether he was being threatened. McCorkle respond-
ed with the following statement:
No sir, I said. If I were threatening you, I would
come over there and pull you out away from the
chair, but this is not our intentions of [sic] coming
over here. We don't want any violence. And I dust
3 The essential difference between the testimony of McCorkle and that
of Palermo and Krajicek was that according to the latter , McCorkle made
a direct threat to pull the driver out and peel his head back and to do
damage to company equipment and personnel
4 McCorkle's right to reinstatement is not at issue here because of our
previous adoption of the Trial Examiner's finding that McCorkle forfeited
his right to reinstatement as a result of his threat to put a bullet in the back
want you to understand that there is a possibility
that the position you are putting your drivers in,
something could happen to them.
In our judgment, the foregoing remarks of McCor-
kle are nothing but a thinly veiled threat to cause
serious injury to Cresco, Inc.'s drivers and damage to
their equipment, if that company persisted in crossing
the picket lines at Respondent's plant. Due to the
serious nature of this threat, it would appear that
Respondent was unquestionably within its rights in
denying reinstatement on this basis. However, the
Trial Examiner reasoned that whatever justification
Respondent might have for denying reinstatement to
McCorkle because of this incident,4 the considera-
tions do not hold true for employees Broussard and
Fowlers because they were merely on the "side lines"
and took no active part in the conversation between
McCorkle and Krajicek. We do not agree. Broussard
was aware of the purpose of McCorkle's visit to
Cresco, Inc., and willingly lent his presence to this
activity. If Broussard had any question about his
status as a participant, any doubt surely must have
been dispelled when McCorkle introduced the group
to Krajicek as representatives of the Union, there for
the purpose of discussing Krajicek's failure to observe
the Union's picket line. While Broussard may or may
not have known the remarks McCorkle would make,
Broussard did nothing to disassociate himself from
these remarks. This together with the McCorkle's use
of the collective form in making such remarks could
only cause Krajicek to believe that in making the
threat, McCorkle was speaking on behalf of the
group. In such circumstances, Broussard must also
bear responsibility for the threat even though he did
not personally utter it. Accordingly, we find that
Respondent was justified in refusing reinstatement to
Broussard because of his involvement in the threat
made to Krajicek.6
With respect to employee Whitehead, the Trial
Examiner found that Respondent was justified in
refusing to reinstate Whitehead based upon his
conduct during the so-called "Moncrief Incident."
The incident is described in the Trial Examiner's
Decision as follows. On June 16,7 about 7:30 p.m.,
David Moncrief left the plant accompanied by his
wife and child. As they were leaving the access road to
the plant, they saw two men standing on the side of
the road. When the Moncrief's car approached the
men, they made "vulgar" hand signs and cursed, e.g.,
"S.O.B." and "scabbing bastard." Moncrief returned
of employee Netting
5 As a result of the informal settlement agreement of the parties,
Fowler's rights are not in issue
6 Cf Joseph H Bliss, d/b/a Aricraft Mantel and Fireplace Co, 174
NLRB No 110
7 1967
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the plant to find out the identity of these men, and
after describing them to plant guard Herbert Roberts,
Moncrief was told by Roberts that the names of these
two individuals were Broussard and Whitehead. The
Moncriefs then left the plant for a second time that
evening and as they passed the individual identified as
Whitehead, he approached their car and said that if
Moncrief did anything, "he was going to get his ass."
In passing upon this incident, the Trial Examiner
found that the name calling and vague hand gestures
were insufficient to justify discharge. However, the
Trial Examiner also found that Moncrief could have
reasonably construed the rough vernacular of White-
head's remark as a threat of physical harm, and as the
remark was neither denied nor explained, he conclud-
ed that Whitehead's statement was a threat which
constituted serious misconduct sufficient to justify
Respondent's action in terminating his employment.
While we agree with the Trial Examiner that the
name calling and vague hand gestures, described
above, do not constitute misconduct serious enough
to justify termination, we reach the same conclusion
with respect to Whitehead's remark to Moncrief.
Although vulgar in content, the expression used by
Whitehead is not without recognition in common
parlance where the remark is understood to be a
vague threat to avenge a real or imagined injustice.
Because of the vague and ambiguous nature of the
remark, we do not think it can be reasonably
interpreted as a direct threat of physical harm.
Accordingly, as we do not view Whitehead's remark
to Moncrief as serious misconduct, we find that
Respondent violated Section 8(a)(3) and (1) of the Act
when it terminated Whitehead for this reason.8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that Respondent, The Firestone Tire &
Rubber Company, Orange, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with
the following modifications:
1. Delete paragraph 2(a) and its accompanying list
of named individuals from the Trial Examiner's
Recommended Order and in lieu thereof substitute
the following:
(a) Offer to employee Jerald Whitehead immediate
and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for
any loss of earnings in the manner set forth in "The
Remedy" section of the Trial Examiner's Decision.
2. Substitute the following for paragraph 2(b) of
the Trial Examiner's Recommended Order:
(b) Notify the above-named individual if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
3. Delete the last indented paragraph and its
accompanying list of named individuals from the
Trial Examiner's "Notice to All Employees," and in
lieu thereof, substitute the following:
WE WILL offer to employee Jerald Whitehead
immediate and full reinstatement to his former
position, or, if that position no longer exists, to a
substantially equivalent position, without preju-
dice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may
have suffered by reason of the discrimination
against him.
4. Substitute the following for the paragraph
immediately below the signature line in the Trial
Examiner's notice:
Note: We will notify the above-named individu-
al if presently serving in the Armed Forces of the
United States of his right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
B In making this finding , we have not overlooked the fact that the Trial
Examiner found it unnecessary to pass upon two incidents relied upon by
Respondent as grounds for Whitehead 's termination We have considered
both "Ayres-Parker" and "Drake Highway" incidents and conclude that
even if Respondent's version of these incidents were credited, the conduct
attributed to Whitehead is not of sufficient gravity to serve as justification
for his termination
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner: Upon a complaint
issued by the General Counsel of the Board,' alleging that
the above-captioned Respondent 2 violated Section 8(a)(1)
and (3) of the Act, a hearing was held before me in Orange,
Texas, on March 12 through 15, 1968. All parties were
represented at the hearing, and were afforded full
opportunity to present relevant evidence, to examine and
cross-examine witnesses, to argue orally on the record, and
to file briefs. After the close, briefs were received from each
of the parties, and were given careful consideration.
Upon the entire record in the case, and from my
observation of the demeanor of the witnesses on the stand, I
make the following:
i The charge by the Union was filed on December 6 and served by
registered mail on or about December 13, 1967
2 Company name appears as amended at the hearing.
FIRESTONE TIRE & RUBBER CO. 57
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Firestone Tire & Rubber Company is engaged in the
manufacture of synthetic rubber products at a plant in
Orange, Texas, which is the sole facility involved in this
proceeding. During the year preceding issuance of the
complaint, Respondent had a direct outflow and a direct
inflow in interstate commerce of products and materials, in
each instance, valued in excess of $50,000. It is admitted,
and I find, that Respondent is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union,
AFL-CIO, Local No. 4-23, herein called the Union, is a
labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Essential Issues
In substance, the complaint alleges that Respondent
independently violated each of the Sections 8(a)(1) and (3)
of the Act, by refusing to reinstate, upon their uncondition-
al application, 15 named employees3 who had participated
in a general strike against Respondent.4 In defense,
Respondent denies the alleged violations, and affirmatively
answers that each of the named employees, during or
closely connected to the strike, engaged in various acts of
misconduct which justifiably brought about their
"discharge," excepting one striker who resigned.
B. Allegation of Unfair Labor
taken only of the final action of the Board on these issues.
The Board has since handed down its decisions dismissing
the refusal to bargain complaints and specifically holding
that the strike remained at all times an economic strike 6
C. Pertinent Legal Principles
1. Burden of Proof
N.L.R.B. v. Burnup & Sims, 379 U.S. 21, provides the
basic authority on certain of the questions raised herein
relating to the nature and burden of proof necessary on
either side . The accepted facts, for purpose of decision by
the Supreme Court, were that the employer discharged two
employees in good-faith, but mistaken, belief that they had
threatened to dynamite company property while soliciting
an employee to join the union. Resolving a conflict among
the Circuits,7 the Court sustained the Board's finding of an
employer violation. Key portions of the brief court opinion
are quoted:
We find it unnecessary to reach the questions raised
under Section 8(a)(3) for we are of the view that in the
context of this record Section 8(a)(l) was plainly
violated, whatever the employer's motive . . . . Defeat
of [Section 71 rights by employer action does not
necessarily depend on the existence of an antiunion
bias. Over and again the Board has ruled that Section
8(a)(1) is violated if an employee is discharged for
misconduct arising out of a protected activity despite
the employer's good faith, when it is shown that the
misconduct never occurred. See, e .g., Mid-Continent
Petroleum Corp., 54 N.L.R.B. 912, 932-934 . . ,
Standard Oil Co., 91 N.L.R.B. 783, 790-791 ...; Rubin
Bros. Footwear, Inc., 99 N.L.R.B. 610,611.3
Practice Strike
On or about January 20, 1967,5 all of the approximately
376 employees in a certified production and maintenance
unit commenced a strike, which related to a certain issue
involved in the Union's contract negotiations with
Respondent. On or about November 20, the strike came to
a conclusion . The present complaint alleges in explicit
detail that Respondent engaged in unlawful refusals to
bargain in certain respects and that the strike was caused
and prolonged by such unfair labor practices-all of which
were subjects of litigation in prior complaint proceedings
before a Trial Examiner. At the instant hearing, it was
further disclosed that the allegations herein of refusals to
bargain and existence of an unfair labor practice strike are
identical with those involved in the previous cases, as to
which Trial Examiner Decisions had, as of then, been
rendered adverse to Respondent and were pending on
exceptions filed before the Board. It was thereupon ruled
that relitigation of any of the issues in the prior cases was
barred and that official notice would appropriately be
3 Charles N Bailey, Sr, Richard J Broussard, Burford Curtiss, Gene
Cordeaux, Donald J Fowler, Steve Henderson , Glyn Howell, Thomas W
McCorkle, Frank A McLeod, Donald Moore, Sidney A Patterson, Claude
S Peveto, Tommy J Swift, V R Walden, and Jerald L Whitehead
4 The Union's charge specified 21 sinkers unlawfully refused
reinstatement
That rule seems to us to be in conformity with the
policy behind Section 8(a)(1). Otherwise the protected
activity would lose some of its immunity, since the
example of employees who are discharged on false
charges would or might have a deterrent effect on other
employees. Union activity often engenders strong
emotions and gives rise to active rumors. A protected
activity acquires a precarious status if innocent
employees can be discharged while engaging in it, even
though the employer acts in good faith. It is the
tendency of those discharges to weaken or destroy the
Section 8(a)(1) right that is controlling. We are not in
the realm of managerial prerogatives .. . . See Garment
Workers v. Labor Board, 366 U.S. 731, 738-739 . .
Labor Board v. Erie Resistor Corp., 373 U.S. 221,
228-229.
3 The Rubin Bros case made a qualification as to burden of proof. Prior
thereto the burden was on the employer to prove that the discharged
employees was in fact guilty of the misconduct Rubin Bros said that
"once such an honest belief is established, the General Counsel must go
5 All dates are in 1967, unless otherwise indicated
6 173 NLRB No 178 and No 179 (December 12, 1968).
' The Court compared the opinion below in Fifth Circuit (322 F 2d 57)
which it reversed with N L R B v Cambria Clay Products Co, 215 F.2d 48
(C.A 6), N L R B v Industrial Cotton Mills, 208 F.2d 87 (C.A 4), cert
denied, 347 U S 935; and Cusano v. N LR B, 190 F.2d 898 (C.A 3)
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forward with evidence to prove that the employees did not, in fact.
engage in such misconduct "
In the Mid-Continent case, where a large number of
strikers were discharged for allegedly engaging in a sitdown
in the plant, the Board held in substance that-
... once it is pleaded, as in the case here, that the
discharge was made for unlawful conduct inseparably
connected with the strike, the burden was on the
respondents to show that all the striking employees
discharged therefore had, in fact, been guilty of
unlawful conduct.
The rule was reaffirmed in Standard Oil, where the Board
said that-
... to hold otherwise would be to place employees
who engaged in lawful strike activities with the hope of
returning to their jobs at the end of the economic
struggle at the mercy of an employer who may sincerely
regard their conduct as unlawful . . . [a]n employer
who discharges a striker on the ground that he has
engaged in unlawful strike activities, does so at the peril
of deciding wrongly.
Subsequently, in Rubin Bros., the Board modified the rule
in the following manner:
... we are now of the opinion that the honest belief
of an employer that striking employees have engaged in
misconduct provided an adequate defense to a charge
of discrimination in refusing to reinstate such employ-
ees, unless it affirmatively appears that such misconduct
did not in fact occur. We thus hold that once such an
honest belief is established, the General Counsel must
go forward with evidence to prove that the employees
did not, in fact, engage in such misconduct. The
employer then, of course, may rebut the General
Counsel's case with evidence that the unlawful conduct
actually did occur. At all times, the burden of proving
discrimination is that of the General Counsel. This
modification of the Mid-Continent rule does no more
than recognize the true nature of the General Counsel's
obligation to establish all the essential elements of a
charge that discrimination has occurred when a striking
employee is refused his job. It merely places an
employer's honestly asserted belief in its true setting by
crediting it with prima facie validity.
Manifestly, the General Counsel's prima facie case of a
violation is fully made out upon the showing that
employees were terminated for conduct arising out of a
protected activity. More directly in point, as the Supreme
Court has stated:
If, after conclusion of the strike, the employer refuses to
reinstate striking employees, the effect is to discourage
employees from exercising their rights to organize and
to strike guaranteed by Section 7 and 13 of the Act.. .
Under Section 8(a)(1) and (3), . . it is an unfair labor
practice to interfere with the exercise of these rights.
Accordingly, unless the employer who refuses to
reinstate strikers can show that his action was due to
`legitimate and substantial business justifications,' he is
guilty of an unfair labor practice. N.L.R.B. v. Great
Dane Trailers, 388 U.S. 26, 34. The burden of proving
justification is on the employer. Ibid [Emphasis
supplied.]8
Such business justification would include acts of serious
"misconduct" by which the strikers may be deemed to have
forfeited the protection to their activities afforded under
the Act. Unquestionably, in the entire line of cases, an
employer's contention of striker misconduct constitutes an
affirmative defense and, as such, requires the employer to
carry the overall burden of proof to sustain this position. In
the litigation, the employer may plead or otherwise
specifically rely on the Rubin Bros. theory that he had a
good-faith belief that the alleged misconduct was in fact
committed. Or, as it often is the case, the employer may
proceed to produce his evidence to show that the asserted
misconduct did occur. However, in none of the decisions is
there any intimation that such a "good faith belief,"
whether or not articulated by the employer, can be
established by other than competent evidence. Once
"established," the General Counsel must go forward
successfully to rebut such evidence. As a practical matter,
in the litigation of many such cases, it is determined only
upon an analysis of the total record whether either
adversary has sustained his respective burden of the
evidence .9
In Burnup & Sims, the narrow distinctions of the Rubin
Bros. case, as such, were not actually before the Supreme
Court or decided by it. Under the accepted facts there, the
issue had been litigated and the finding made that the
alleged misconduct had not occurred. Burden of proof was
not in question. The Board doctrine that the employer's
good faith belief was immaterial in these circumstances was
shown by the Court's reference to the cases in Mid-
Continent, Standard Oil and, as continued pro lanto, Rubin
Bros. io
The Supreme Court in Burnup & Sims also referred to the
cases in the conflicting Circuits. In Industrial Cotton Mills,
the Fourth Circuit stated:
.. the statutory protection extended to a blameless
employee is a firm and clear guarantee, not one which
constantly varies with the correctness of the employer's
opinion or with accuracy or his sources of information.
Nor does the Act expose the innocent employee to the
hazard of his employer's mistake where the conse-
quence of this mistake is to divest the employee of a
right guaranteed by the Act.
# n • 3 f
It is true that where denial of reinstatement results from
s N L.R B v Fleetwood Trailer Co, 389 US 375, 378 And see,
Laidlaw Corp, 171 NLRB No 75, Lamb Weston, Inc, 170 NLRB No 186
" As we generally observed in Kohler Co, 128 NLRB 1062,
1194-"Though the parties start with a pleaded issue of honest belief, the
practical result is that what they litigate is the issue whether the striker
actually engaged in the alleged misconduct "
10 The Court's citation and footnote discnption of Rubin Bros should
not, in my view, be construed as an endorsement Also cited were Mid-
Continent and Standard Oil, which are at variance with the Rubin Bros
modification Indeed, certain essential language of the Court could
arguably be interpreted as favoring the former cases to the extent of the
distinction (e g ,-"A protected activity acquires a precarious status if
innocent employees can be discharged while engaging in it, even though
the employer acts in good faith ") For example, it may still be questioned
whether the exercise of Section 7 rights would not be equally deterred
where innocent employees, long after the events, are not available to
establish their lack of guilt
FIRESTONE TIRE & RUBBER CO. 59
the employer's reasonable and sincere mistake, there is
no evil intention behind the harm suffered by the
employee. While the employer's attitude may not be
censurable, the employee too is free of blame. As
between the victim of the mistake and the person who
made the mistake, it seems just that the perpetrator bear
the onus of his own error rather than that the burden of
this error should be shifted to the employee who cannot
guard against it.
The views we have expressed seem to find support in
the decided cases [including `Rubin Brothers'].
From the opinion . . . in Salt River Valley Users
Association v. N.L.R.B., 9 Cir. 206 F.2d 325, 329, we
quote: `That the (employer) may have acted in good faith
believing itself justified in discharging (the employee) is
not material where the activity for which he was
discharged was actually protected by the Act.' (Emphasis
supplied and quotations from other cases, including
Cusano in the Third Circuit, are omitted.)11
Additionally, the Supreme Court adverted to its holding in
the Garment Workers case:
We find nothing in the statutory language prescribing
scienter as an element of the unfair labor practice here
involved. . . . more need not be shown, for, even if
mistakenly, the employees' rights have been invaded. It
follows that prohibited conduct cannot be excused by a
showing of good faith. [Citations include Industrial
Cotton Mills, supra.]12
However, there is no question that Board and court
decisions subsequent to Burnup & Sims have indicated
approval of Rubin Bros., and th -a it is,binding upon me as
the law in this case.13
2. Proof of Good Faith Belief
Board experience with the element of good faith is, of
course, abundant under various sections of the Act. Where,
as here, good faith must be affirmatively established by the
contending party, it is fundamental in the cases that mere
testimonial assertions, or the subjective test, cannot suffice.
Clearly, it is a fact question which must be determined
upon probative evidence, reasonability of the bases, and
objective considerations derived from the total record.14
11 208 F .2d 87, 91-92.
12 International Ladies' Garment Workers Union , AFL-CIO (Bernhard-
Altmann) v. N.L.R.B., 366 U.S. 731, 739. And in N. L.R.B. v . Erie Resistor
Corp., 373 U.S. 21, 29 , The Supreme Court, after pointing out that conduct
which is inherently discriminatory may be found unlawful despite the
employer's "good" motive, cited , inter alia, Cusano and Industrial Cotton
Mills, supra . See also , Welch Scientific Co. v. N. L. R. B., 340 F.2d 199, 203
(C.A. 2 stating-"The cases clearly demonstrate that it is the tendency of
an employer 's conduct to interfere with the rights of employees protected
by Section 8(a)(1), rather than his motives, that is controlling." (Citing cases.)
13 E.g., N. L.R.B. v . Plastic Applicators, Inc., 369 F.2d 495 (C.A. 5). And
in Dallas General Drivers et al. v. N.L.R.B., 389 F .2d 553, 555 (C.A.D.C.)-
3. General Criteria of Misconduct in Economic
Strike
In Republic Steel Corporation v. N.L.R.B., the Third
Circuit early expressed the broad problem in language
which has since become classic in its wide acceptance:
A strike is essentially a battle waged with economic
weapons. Engaged in it are human beings whose
feelings are stirred to the depths. Rising passions call
forth hot words. Hot words lead to blows on the picket
line. The transformation from economic to physical
combat by those engaged in the contest is difficult to
prevent even when cool heads direct the fight. Violence
of this nature, however much it is to be regretted, must
have been in the contemplation of Congress when it
provided in Sec . 13 of the Act that nothing therein
should be construed as to interfere with or impede or
diminish in any way the right to strike. If this were not
so, the rights afforded to employees by the Act would be
indeed illusory.15
Similarly, in Longview Furniture Company,16 the realistic
considerations were aptly described as follows:
Although the Board does not condone the use of
abusive and intemperate language, it is common
knowledge that in a strike where vital economic issues
are at stake, striking employees resent those who cross
the picket line and will express their sentiments in
language not altogether suited to the pleasantries of the
drawing room or even to the courtesies of parliamentary
disputation.
And in Illinois Tool Works, the Seventh Circuit's opinion,
frequently invoked, represents a clear statement of the tests,
viz.:
We believe . . . that courts have recognized that a
distinction is to be drawn between cases where
employees engaged in concerted activities to exceed the
bounds of lawful conduct in `a moment of animal
exuberance' ( Milk Wagon Drivers Union,v. Meadow-
moor Dairies, Inc., 312 U.S. 287, 293 ...) or in a manner
not activated by improper motives, and those flagrant
cases in which the misconduct is so violent or of such
serious character as to render the employee unfit for
further service, [citation omitted) and that it is only in
the latter type of cases that the courts find that the
protection of the right of employees to full freedom of
self-organizational activities should be subordinated to
the vindication of the interests of society as a whole.17
Finally, it is pertinent to note the well-settled proposition
that "unauthorized acts of violence on the part of
individual strikers are not chargeable to other union
" ..the burden of proving innocence of strike misconduct shifted to the
general counsel upon proof of a good-faith belief by the employer that such
misconduct had occurred" [ Emphasis added.]
14 E.g., The Coachman's Inn, 147 NLRB 278, 304; Shattuck Den Mining
Corporation, etc., 151 NLRB 1328, 1339; American Coach Company, 158
NLRB 415, 420 Stewart Hog Ring Company, Inc., 131 NLRB 310, 336;
Lock Joint Tube Company, 127 NLRB 1146, 1150.
15 107 F.2d 472, 479, cert. denied, 309 U.S. 684.
16 100 NLRB 301, 304, enfd. as mod ., 206 F.2d 274 (C.A. 4).
11 N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 815-816. See also, e.g,
Montgomery Ward & Co. v. N.L.R.B., 374 F.2d 608, 610 (C.A. 10).
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members in the absence of proof that identified them as
participating in such violence." 18
D. General Counsel's Prima Facie Case
At the outset of the hearing, Respondent submitted an
amended answer to the complaint, which was accepted in
evidence. Answering the allegations that it failed and
refused to reinstate 15 named strikers who made uncondi-
tional offer to return to work on or about November 20,
Respondent "admits" that, prior to November 20, it
terminated the employment of all the named employees,
except McLeod, who resigned.19 It also asserted certain
"affirmative defenses," inter aha:
Second Defense
The employees referred to in paragraph 14 of the
Complaint committed and engaged in various acts of
misconduct and violence before, during and after the
strike which conduct arose out of, was developed by
and was closely connected to the strike, which brought
about their discharge... .
Fifth Defense
The discharges of the employees named in paragraph
14 of the Complaint were based on various acts of
misconduct and violence as follows:
1. T. W. McCorkle and Don Fowler engaged in acts
of misconduct and violence before January 20, 1967,
which was prior to the time when the strike had
commenced.
2. T. W. McCorkle, Don Fowler, C. S. Peveto and
V. R. Walden engaged in acts of misconduct and
violence between January 20 and February 15, 1967.
3. T. W. McCorkle, Don Fowler, R. J. Broussard,
Sidney Patterson and Gerald Whitehead engaged in
acts of misconduct and violence between February 15
and June 12, 1967... .
4. T. W. McCorkle, R. J. Broussard, Steve Hender-
son, Glyn Howell, Donald Moore, Tommy J. Swift,
Gerald Whitehead, Sidney Patterson, Burford Curtiss,
Gene Cordeaux and Charles Bailey, committed acts of
misconduct and violence between June 12 and October
16, 1967, at which time the said employees were advised
that they had been terminated.
5. T. W. McCorkle and Don Fowler have commit-
ted acts of misconduct and violence between October
17, 1967, and the date hereof, which are further grounds
for refusing to reinstate them.
Sixth Defense
The employees named in paragraph 14 of the
complaint, and other persons acting in concert with
18 N.L R B v. Deena Artware, Inc, 198 F 2d 645, 650 (C.A. 6), and cases
cited therein. To the same effect , see, e g, N L R B v. Cambria Clay
Products Co, 215 F.2d 48, 53 (C A. 6); B.V D Company 110 NLRB 1412.
19 At the hearing Respondent stipulated that on October 16, discharge
notices were sent to all these employees, except Fowler and McLeod
them, were guilty of misconduct, violence, the use of
threatening and obscene language, mass picketing, and
other conduct which was calculated to interfere with,
hinder, obstruct, and intimidate employees of Fire-
stone, both supervisory and hourly, in the exercise of
their lawful right to work and enter upon the
performance of their work, and to prevent them from
freely entering or leaving the premises of the Firestone
plant at Orange and other places, contrary to the
provisions of TEX. REV. CIV. STAT. ANN. art. 5154d.
Further, Respondent stipulated at the hearing that, with the
exception of McLeod, all employees named in the
complaint engaged in a strike beginning on January 20, that
they made an unconditional offer to return to work about
November 20, and that Respondent refused to reinstate
them. General Counsel introduced testimony, treated infra,
sufficient to establish that Respondent refused to accept
McLeod's unconditional application for reinstatement on
November 20, and that McLeod had not resigned.
Thereupon, General Counsel rested his case in chief,
plainly having sustained the burden of the complaint, prima
facie.20
E. Exhibits on Misconduct Offered By Respondent
Greely R. Sanders, manager of industrial relations for the
Gulf Coast plants and chief bargaining negotiator 'for
Respondent, testified as its first witness, in substance: He
personally made the decision to discharge all of the
employees in question based upon his "review of the cases,"
consisting "mostly" of affidavits given to him by other
people. He had asked "that these people report to him
anything that was of a misconduct nature and to so
stipulate or swear to this as being a fact." At this point,
Respondent offered in evidence a great number of exhibits
in bulk, as information "gleaned by Mr. Sanders in his
capacity as personnel officer," and upon which he relied in
his decision to terminate these employees.21 Respondent's
counsel stated that most of these exhibits are affidavits,
point affidavits, or signed statements, that all of the
newspaper articles referring to these people were cleaned
out, and that some of the documents are criminal
complaints and memorandums for the file "of an interview
with an employee or something like that." Counsel also
indicated, upon inquiry, that Respondent was going to have
most of the "affiants" (and presumably those who gave
unsworn statements) in each case available as witnesses,
but that one or two are in the Army and some are
unavailable.
As initially offered these exhibits were not marked,
properly identified, assembled or organized in any orderly
form relating to the discharged employees. The hearing was
recessed for a period of time while Respondent assembled
and marked for identification (R4 a-s) the exhibits
pertaining to one of the dischargees, McCorkle. While all
the exhibits were to be available in the hearing room, in the
interest of time the same ruling made regarding the
20 Respondent's repeated argument , in its brief, that its motion to
dismiss the complaint at this juncture should have been granted needs no
particular discussion. The essential legal principles are covered supra.
21 Sanders himself averred that these documents were "very useful" and
a "basis" for his final decision.
FIRESTONE TIRE & RUBBER CO. 61
McCorkle would apply to the remainder, as to which
Respondent was under specific instruction, and agreed, to
have them properly assembled, marked, and in the hands of
the official reporter by the next morning.22 On the broad
offer of all these exhibits (with only R4 a-s presently
assembled and marked), General Counsel objected to their
admission in view of the nature of these documents, and
insisted on the testimony of individual witnesses so that
they could be cross-examined. In light of the purpose
indicated and the form of Respondent's offer, all the
exhibits (R4-20) were rejected and ordered to be preserved
in the rejected exhibit file.
There were manifold reasons for rejection of these
documents, as offered en masse. Included are some 96
exhibits in copy form, and the major portion is in
handwriting difficult to read or virtually illegible. For
example, one is an affidavit from Sanders himself given to a
Board agent on January 10, 1968, which consisted of 23
legal size pages and 34 paragraphs. (Although he was then
on the witness stand, he did not testify to many of the
matters contained in this affidavit.) Particular documents
involve McLeod, although Respondent took the position
that he resigned. Most of the exhibits are in fact unsworn
statements (despite Sander's purported instructions to
informants, supra). Some are undated; one is just initialed
by an unknown person; and in single documents there are
mentioned the names of several employees, whether as
bystanders or participants in an alleged incident. Also
included are, e.g., a newspaper article, photographs almost
indecipherable, a list of pickets on a particular day,
timecards, a fire report, and copies of a purported taped
television interview of Henderson, spokesman for the
strikers. Numerous statements and affidavits recite details
of events and subjective reactions of the narrator without
any clear indication of the nature of the offense and the
probative circumstances. In general, it may fairly be said
that, in large part, it was impossible to determine from the
exhibits on their face, with no foundation laid, either their
purpose at this stage in the proceeding, orjust what conduct
in the course of a 10-month strike Sanders relied upon for
the discharge of specific strikers.
As shown, Respondent's affirmative defenses filed on the
very day of the hearing, asserted as reasons for the
discharge that various types of misconduct were committed,
with no indication of a position resting on "good faith
belief." It offered the mass of exhibits as a package merely
upon Sanders' testimony that he alone made the decision
22 In actuality, despite repeated instructions, Respondent did not
furnish these remaining exhibits in assembled form until late afternoon on
the third day of the hearing, or the day before it was finally concluded
23 See, e .g, The Coachman's Inn, 147 NLRB 278, 304-5, In 93 "Where
'good faith belief' is material to the issue of the true motive for a discharge,
the basis thereof may be searchingly explored. It must be remembered that
'good faith belief' is a legalism, at the very least connoting that it is the
trier's province to determine its existence This in turn presupposes inquiry
by the trier into the asserted basis for the belief and whether it was or was
not sufficient to result in 'good faith belief' of what was assertedly
believed."
24 Id at 296, In. 60, where a hearsay report based upon a Rubin Bros
contention was similarly rejected. Cf Ohio Associated Telephone Co v.
N L R.B, 192 F.2d 664 (C.A. 6), rev 91 NLRB 932, which presented no
issue of admissibility of exhibits, was otherwise distinguishable on the facts,
and was decided before Burnup & Sims
25 "Since the plaintiff must apprise the defendant in the beginning as to
for Respondent upon his "review" of all the cases.
Nevertheless, Respondent's obvious trial strategy (as
further revealed by its positions throughout the hearing and
in its brief) was to rely on such simple testimony of Sanders
and the introduction of the whole bulk of exhibits as
automatically fulfilling its supposed burden under Rubin
Bros. of establishing Respondent's good-faith belief that the
dischargees engaged in strike misconduct, thereby shifting
to the General Counsel the burden of going forward with
evidence to disprove the misconduct. In these circum-
stances, admission of the exhibits would have required the
General Counsel to take an indeterminate length of time in
an effort to distill all the appearances of "misconduct" from
the multitude of subjective narrations, suppositions, vague
semblance, and miscellany in the exhibits; conduct an
extensive investigation anew; assemble additional available
witnesses; and reprepare his case on the basis of speculative
judgements as to which of the many reported incidents
there might ultimately be findings of "good faith belief,"
and in which particulars it was incumbent upon him to "go
forward" with refuting evidence. Nor merely upon Sanders'
summary testimony and the file of exhibits, could any
ruling at such time conceivably be made by the Trial
Examiner whether "good faith belief" was established as to
specific misconduct by particular dischargees. More
especially in the light of this whole background, such
determinations of good faith would require an analysis of
the full and final record, based upon substantive evidence
and objective considerations.23 Although Respondent's
apparent position was that the exhibits were being offered
to establish the basis upon which Sanders relied in effecting
the discharges, "it would in any event not be the [hearsay
exhibits] but proof from Respondent which would establish
such a contention ...." 24
As a matter of pleading, the allegations of misconduct in
Respondent's affirmative defenses are expressed in vague
generalities and do not furnish minimal particulars which
would enable General Counsel fairly to prepare counter-
vailing proof.25 Nor was such information provided with
any degree of clarity by Sanders or Respondent's counsel at
the hearing.26
Additionally, it is fairly apparent in the record that
essentially Respondent was concerned throughout the 10-
month strike in collecting materials in a file from sources on
only one side of the picture, and in some instances nothing
further was done beyond receiving an informant's state-
ment. As brought to the hearing, the file (which presumably
what he relies upon for a recovery, it is only right that the defendant
should be required also to inform the plaintiff of any special or affirmative
defenses he expects to make by pleading the facts constituting such
defenses ." 41 Am Jur., Sec. 155. And see, e.g., Electric Storage Battery Co.
v. Shimadzu, 307 U S 5
26 Indeed, as later revealed , Respondent's counsel repeatedly refused
requests during the hearing to state whether certain grounds of misconduct
were relied upon, and persisted in resting its position upon the state of the
"record," i e., with the rejected exhibits . Counsel had represented that
available witnesses would be produced on the misconduct issues; while
certain witnesses testified for Respondent, no attempt was made to
corroborate by testimony much of the hearsay content of the exhibits. In
its brief , Respondent now specifies incidents of misconduct derived entirely
from the exhibits, as having in fact been committed by dischargees. And in
doing so, these post facto interpretations and arguments of counsel are
somehow to be ascribed to Sanders , without his testimony , as the basis for
his subjective "good faith belief."
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
included other matters, such as newspaper articles,) was in
an amorphous condition; it is not described how it was kept
and how it was finally "reviewed" by Sanders as the basis
for his decision to effect the discharges. From the evidence,
it must be concluded that generally Respondent made no
effort to conduct an independent, objective investigation
before such decision was reached.27 The dischargees were
not informed of the charges against them and not given the
opportunity to refute or explain.28 In all but two instances
(where just the copies of a complaint by a nonstriker appear
among the exhibits), there is a complete lack of evidence of
any prosecutions, much less of convictions, for alleged
offenses of an apparent criminal character. 29
The Rubin Bros. rule on burden of evidence is available
(for reasons explicated in the cases, supra) to provide a fair
balancing between the rights of employees engaged in
statutorily protected activities, and the proper interests of
management. It was not conceivably intended to furnish
respondents with a strategy of gamesmanship by which, in
such a simple maneuver as reflected herein, the hearing can
be immediately transformed and the onus neatly placed
upon the discharged strikers to prove their innocence to a
vast compilation of vaguely defined accusations of
misconduct (including such heinous offenses as dynamit-
ing, sabotage, or attempted manslaughter). Much as
violence is to be deplored and punished, all the more is it
deplorable to punish the innocent.30 It is not compatible
with American jurisprudence to compel a person, in his
own defense, to answer questions of wrongdoing, except in
response to specific charges. Respondent cannot rely on a
conclusory and omnibus assertion that it believed the
claimed misconduct to be the truth. It must commit itself
with sufficient detail in advance so that the General
Counsel and the accused will not be surprised at the
hearing.
Such an affirmative defense, under Rubin Bros., of a
good-faith belief that misconduct was committed in the
27 Sanders testified that he had talked only to Fowler and McLeod This
was contradicted by Fowler, and as to McLeod , misconduct is not in issue
See, e g , Tyler Pipe & Foundry Company, 171 NLRB No 38, Orleans Mfg
Co, Inc. 170 NLRB No 9
28 Testimony of Broussard, Whitehead, Peveto, Patterson, Fowler, and
McCorkle
29 See N L R B v Industrial Cotton Mills, 208 F.2d 87, 90 (C A 4)
While a factor to be considered , convictions would not be controlling upon
the Board . N L R B v Thayer Company, et at, 213 F 2d 748, 754 (C A 1),
cert denied 348 U S 883
30 Even beyond the discharge itself , it is common knowledge that
frequently the involved employee is stigmatized on his employment records
and in the community
31 My holdings are necessarily confined to the circumstances of this
case. It is for the Board to consider any clarification of the Rubin Bros rule
for general application in the type of situation evident herein
32 Respondent , in its brief, strenuously argues that a comment of the
Trial Examiner during the hearing constitutes fatal error , requiring
dismissal of the complaint Subsequent to the ruling rejecting the exhibits,
the Trial Examiner briefly remarked on his opinion of the law, e g. "Let
me state , I am sure you are aware of the law, that the burden is on the
Respondent here to establish by competent evidence the basis for its
discharge , as you put it, of the strikers , And the law, I think , is already
well described in a number of cases, including Burnup & Sims, that good
faith plays no part in the matter You have to establish as actual evidence
the fact that these employees engaged in the very misconduct on which you
rely " Of course , the cases speak for themselves And the Trial Examiner's
findings on the law are made in this formal decision The term "good
faith" is a "legalism" (fin 23, supra), and perhaps it should have been
course of a protected activity-must be shown by clear and
specific evidence as to each affected employee and each
alleged offense, and provide the probative factors upon
which respondent predicated such belief.31 Particularly, it is
found that Respondent has failed in such basic requirement
in the respect of any purported misconduct reflected solely
in the exhibits which were rejected.32 Furthermore, as to
such purported misconduct stemming from the exhibits, I
cannot accept or credit Sanders' testimony, considering its
character and the broadside manner in which it was
presented,33 as establishing a reasonable basis for a good-
faith belief under the Rubin Bros. case.34
F. McLeod
The facts concerning his alleged resignation need only be
stated briefly. On November 20, as he testified, McLeod
was among the strikers who reported at the plant for
resumption of work. He was not reinstated, but at the
guardshack near the main gate , he signed a list, as requested
by Respondent. The next day, upon being summoned, he
met with Sanders and John Utley, the plant industrial
relations manager. He was interrogated as to whether he
was the owner of a car ostensibly connected with certain
acts of misconduct, and he denied any involvement in such
incidents. He was then told that before he could return to
work these incidents had to be cleared up. Finally, he
signed a form agreeing to take a lie detector test. After
leaving the plant, he changed his mind about the test and
telephoned Utley. At first he spoke with Mrs. Harris,
secretary to Utley, and informed her of his decision, as a
message for Utley. Shortly thereafter, he called again and
talked to Utley. He explained that he was innocent of the
charges and did not have to prove it by taking such a test.
He said he was going back to Grand Chenfer to work and
could be reached at his mother's address in Starks,
Louisiana. Asked by Utley if he was going to keep in touch,
he said no-that they should call him when they thought
preceded in the comment by the word "subjective" and followed by the
words "on the entire record " The reasons for the exclusion of the exhibits
have already amply been shown Respondent was in no way prejudiced In
the course of the hearing, it was not precluded, through Sanders or other
witnesses , from reoffering for material purposes any particular document in
the preserved rejected exhibit file, upon proper foundation laid Moreover,
it is a well known and settled rule that where the right result is reached,
even if a wrong reason is used, there is no prejudicial error E g, N LR B
v Miami Coca Cola Bottling Co, 69 LRRM 2785 (C A 5), November 26,
1968, N L R B v Safeway Steel Scaffolds Company of Georgia, 283 F 2d
273 (CA 5)
33 Purely on an objective evaluation of "good faith belief," I do not
regard Sanders as a reliable and unbiased witness, in view of his own
intimate involvement with the conduct of the strike (infra) Moreover, he
was distinctly prone to testify in terms of generalizations and conclusions
3* In this conclusion , I have also taken into account the overall nature
of the proof actually adduced by Respondent, its positions and reliances
stated in its affirmative defenses , at the hearing, and in its brief, and the
entire record in this case Inter aba, it is noted that Sanders averred in his
23 page affidavit , among the rejected exhibits , to the truth of all the
detailed incidents described therein as had been taken from information
gathered by Respondent , and that in major respects substantial variations
and conflicts exist between his affidavit and the testimony given by
Respondent 's other witnesses To the extent that Respondent produced
witnesses concerning alleged misconduct, the hearsay exhibits could not
stand as substitute or even as corroboration for their free testimony,
subject to cross-examination Thus, the results hereinafter reached based
upon such testimony would, in any event, be the same apart from the
exhibits
FIRESTONE TIRE & RUBBER CO. 63
the matter was settled. On November 22, McLeod called
Sanders concerning information he heard that Respondent
reported him as having voluntarily resigned. Sanders told
him he had terminated himself when he said he was going
to Louisiana to work until the matter was cleared up. That
same day, he wrote Sanders, disputing that he had resigned,
and stating his desire at all times to work for Respondent,
his availability, and various places where he could be
reached.
Respondent's evidence consists of Mrs. Harris' testimo-
ny- which offers no material conflicts. She indicated that,
later in the day on November 21, she informed Sanders of
her telephone conversation with McLeod and then told him
she was going to issue a "removal notice," as it was her
"assumption" that McLeod was resigning because he was
leaving town. In its brief, Respondent adheres to the
position that McLeod resigned and adds that, on the basis
of misconduct, the "discharge might be proper" had he not
quit. It is unclear whether Respondent is relying on Sanders
"good-faith belief" in the report of Mrs. Harris (also
contained as an affidavit in the rejected exhibits). On all
grounds, Respondent's defense is rejected, as obviously
without color of merit, and the violation as to McLeod is
sustained.
G. The Alleged "Mass Picketing"
Sanders testified that, after January 20, he was in and
around the Orange plant practically every day, during
which he had occasion to observe the pickets and their
conduct. The picketing took place at the intersection of
Farm Road 1006 and a black top road, about 47 feet wide,
leading into the plant property and to a main gate about
300 yards from the intersection.35 On January 20, at the
morning shift change, Sanders observed through binoculars
at the main gate some 170 people (salaried and technical
personnel) who crossed the picket line into the plant. On
January 21, about 8 a.m., he estimates there were between
60 and 80 people within a radius of 50 to 60 feet of the
entrance. They congregated at the intersection "in such a
number" that it was difficult for anyone to enter or exit.
Specifically, he saw Henderson, McCorkle, Whitehead,
Walden, and Bailey "milling around in the black top part of
the road." Cars seeking entry to the plant were slowed
down or halted for a moment until the crowd moved out
from in front of the car, but nobody was "completely"
prevented from going in. Asked if any particular employee
posted himself in the path and refused to move aside, he
answered,- "Not on that date." On January 22, he observed
the picketing, but named only Walden. It was in the
evening, after dark. With his binoculars at the main gate, he
saw "flashes and explosive-type noises" in the area of the
picketing. But he could not see anyone who did it.
During the strike, Respondent employed 8 "additional"
private detectives to reinforce plant security personnel, and
some were placed in the vicinity of the picket line for
observation, but not for maintaining order.36 Elsewhere in
the record it also appears that State police were present at
various times in the picketing locality.
As earlier shown, Respondent asserts in its sixth
affirmative defense that an unspecified number of the
strikers named in the complaint engaged in "mass
picketing" in violation of a cited Texas statute. There is no
evidence that Respondent made any attempt to invoke the
State law as to mass picketing in general or as to any
particular striker. And the issue, at most, was sketchily
litigated.
Sanders, using binoculars from 300 yards away, was
certainly not the best witness available as to what actually
happened. He chose to assume that all the "people" he
observed were involved in "mass picketing," and then
proceeded broadly to implicate five specified strikers on the
basis of a group or collective identification. However, on
such testimony, the picketing activity as a whole cannot be
held unlawful or constituting general misconduct. More
especially, Sanders failed to describe in a probative manner
what alleged misconduct he personally saw committed by
each of these discharged strikers. The 60 to 80 people he
observed were on a section of a public highway at the
beginning stage of the strike. The evident circumstances
more accurately depict a confused "milling around" across
the road at shift changes, and density of traffic, rather than
any design or result in effectively obstructing ingress or
egress at the plant. This situation was clearly not the
formation of a solid unyielding mass, nor forceful
interference of any cognizable character attributable to the
named dischargees.37
In Respondent's brief, it is further contended that "mass
picketing" occurred "on June 27 and June 28, as well as
other days," and that seven named strikers (Broussard,
Whitehead, Walden, Moore, Howell, Curtiss, and Patter-
son) were "identified with the picketing" in the testimony.
As to Broussard, the testimony cited was given by James T.
Taylor (discussed infra) on the subject that the misconduct
involved the throwing of a rock on June 27. Taylor
described a large crowd of men (about 200) on FM 1006 at
the intersection leading to the plant, and "a lot of noise and
hollering directed at his car and every car that turned in."
As to Whitehead, the cited testimony is actually that of his
own, on rebuttal, and is utterly void of anything resembling
mass picketing. As to Walden, the cited testimony was that
of John L. Riggs (infra). As Riggs was leaving the plant on
June 28, his car had "stalled" or momentarily stopped at
the intersection of FM 1006; there was a crowd of people; a
picket, Doug Pence, had fallen in front of one of the cars;
and Walden motioned with his hands for Riggs' car not to
move in view of the danger to Pence.38 As to Moore, the
cited testimony was given by Riggs and Roosevelt
Davenport (infra) on the subject of name-calling. The Riggs
incident took place in the same circumstances as related
immediately above. The Davenport incident occurred on
June 28 at the same shift change, which he estimated at 7:45
p.m. He briefly described a large crowd, and traffic tied up
"bumper to bumper." As to Howell, the cited testimony was
as Sanders said it was about 200 yards, Respondent's witness Read Atlas Linen and Industrial Supply, 130 NLRB 761, 778, Stewart Hog Ring
estimated a quarter or half mile, a plat in evidence appears to show in Co, 131 NLRB 310, 312
excess of 300 yards. 38 Elsewhere in the record it was testified that Pence was then hit by a
36 None was called to testify car and "tensions were pretty high "
37 See, e g, Terry Coach Industries Inc, 166 NLRB No 76, TXD,
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that of Gerald B. Stelly (infra) relating to an alleged assault.
Stelly similarly made reference to a large crowd on FM
1006 in the evening of June 28 as he was coming to work.
As to Curtiss, the cited testimony is that of Milton Green,
Jr., (infra) concerning an incident in which a car window
was shattered as he was leaving work in the evening of June
27. He vaguely described a bunch of people near the
intersection of FM 1006 and the traffic of cars slowly
moving stop-and-go. As to Patterson, the cited testimony
was that of Kenneth Book (infra) and involved alleged
name-calling . The incident occurred about the same time as
related by Green, above. Book said that a large group of
people (about 200-300 within his range of vision in front of
the car) deliberately stood out there on the road and
refused to make way for the cars to come through 39 The
only one he could recall was Patterson. Book said that his
car (containing three other employees) was "probably held
up" about three or four minutes, and that there were police
on the scene at the time. He also stated that there was
"something special" two or three days in a row when a large
group of people was present.
In none of these additional instances do I find that the
evidence establishes misconduct stemming from any "mass
picketing" as would justify discharge.40
G. Walden
William J. Read testified to an incident at the intersection
of FM 1006 as he was leaving work on January 21 at the 8
p.m. shift change. He heard sounds like firecrackers around
and on his car; but he actually saw only small flashes of
light. There was no damage. He observed Walden lighting
something with his cigarette and "throw one." In addition
to the alleged "mass picketing," above, the asserted ground
for Walden's discharge was "throwing explosives." The
finding is made that Walden did not engage in conduct
warranting denial of reinstatement, and that his termina-
tion was violative of the Act.
H. McCorkle
Robert L. Netting was one of the employees Respondent
brought in from its Akron, Ohio, plant to work at Orange
during the strike. He testified to an incident at the Jack Tar
Hotel on March 23. Netting, Dilts, and Jones came into the
coffee shop and occupied a booth along an outer wall. Six
or seven men came over and stood in a half circle near their
booth, calling them S.O.B.'s, scabs and, strikebreakers.
Then one of the men, McCorkle, sat down in the booth next
to Netting. McCorkle continued the name-calling while
questioning the three nonstrikers. He asked Netting when
he was leaving, and the reply was- "probably in a week or
so." McCorkle said that wasn't soon enough, he had better
get his bags packed and be out of town either that night or
the following day or he would put a bullet in his back.
Netting reported the incident to Utley at the plant.
sa Book , in my opinion , was exaggerating in his impression of the events
so far as any concerted and deliberate purpose could be inferred of strikers
blocking egress from the plant
40 Moreover, it cannot be assumed merely on the basis of these
contentions in the brief that Sanders relied upon such further alleged
misconduct in reaching his decision to terminate the specified strikers
41 However, it is emphasized that the failure to make findings
Thereafter, he, Dilts, and Jones filed a sworn statement and
complaint against McCorkle with a justice of the peace, but
he (Netting) was never called.
McCorkle testified that, in the booth, he asked them what
they were doing down there, when they came, how they
came, when they were going back, and why they were doing
this, i.e., strikebreaking. He told them they could stand up
as men or go back as they came, but denied making the
specific threats related by Netting. However, he volun-
teered the possibility that he could have said something
about their being "a good chance of violence or something
of this sort that could happen."
On the character of the testimony, as well as the
demeanor of the witnesses, I credit and accept the account
given by Netting. Away from the picket line, in the context
described, the serious threat of violence made to Netting,
and impliedly to Dilts and Jones, exceeded the bounds of
protection afforded by the Act and justified Respondent's
refusal to reinstate McCorkle.
McCorkle was active as the picket major throughout the
strike. His own testimony here and elsewhere reveals a
sharply aggressive disposition toward the strike. This much
found, it is unnecessary to pass upon the numerous other
incidents of alleged misconduct in this proceeding insofar
as they solely involve McCorkle.41
1. The Palermo Incidents
Marion J. Palermo is a salesman and official in Cesco,
Inc., which was under contract with Respondent during the
strike to clean by chemical process certain equipment at the
Orange plant. Palermo had been a classmate and long time
friend of McCorkle. Sometime in March, McCorkle called
Palermo and arranged to come to the Cesco office.
McCorkle arrived with Broussard and Fowler and were
taken by Palermo to see the company president, R. W.
Krajicek. The material conversation was conducted entirely
between McCorkle and Krajicek. McCorkle indicated that
he had previously talked to Palermo about not crossing the
picket line and was assured it would stop,42 that it had
stopped for a couple of months but has resumed, and that
this was the reason for the visit. According to Palermo, the
following ensued: Krajicek initially responded that Cesco
had the obligation to fulfill its contract with Respondent,
that it was not involved with the strike, and that the Union
was "putting" a secondary boycott on Cesco. Finally,
"things got pretty hot" between Krajicek and McCorkle
(but not Fowler and Broussard). McCorkle stated that if
any Cesco trucks cross the picket line, they would "pull the
driver out and peel his head back," and would also do
damage to company equipment and personnel. Krajicek
said he did not have to put up with these threats in his
office, and asked them to leave. "They left like gentlemen."
Cesco's equipment and employees continued to cross the
picket line after mid-March without incident.
concerning these other incidents is not to be construed as an implication of
further misconduct by McCorkle or contributing to the conclusion reached
on Netting's testimony.
42 Palermo testified that, a couple of months before this meeting,
McCorkle had asked him to honor the picket line, and he answered that
Cesco would- "if there was any possible way "
FIRESTONE TIRE & RUBBER CO. 65
The essential variation in McCorkle's account was that
he was merely describing the incidence of violence during
strikes across the country, and then he added that- "we
certainly don't want any of your drivers to get their heads
peeled or anything of this sort." Fowler and Broussard
generally corroborated McCorkle, specifically denying that
any threats were made as to employees or property of
Cesco. Fowler testified that he and Broussard, while
traveling with McCorkle, were only aware that he wanted
to make a stop to speak to Cesco about not crossing the
picket line.
Palermo wrongly identified Henderson as one of the
three visitors, and sought to obtain a "peace bond" against
McCorkle, Broussard, and Henderson, apparently without
success. During a meeting on November 27, Sanders
informed the Union that Henderson was discharged by
reason of his presence at the Cesco incident, as identified
by Palermo.43
I do not credit Palermo. As to either version, however, it
is clear that Broussard and Fowler44 were only on the side
lines and free of any implication of misconduct by reason
of what McCorkle might have said 45
Palermo further testified to an incident a month or two
later . While driving on a highway, he was signaled to stop
by McCorkle in a car with two other men. At the hearing,
he identified Whitehead and Broussard, but was not sure of
the latter.46 Broussard got in the back, and McCorkle sat in
the front seat with him, while the other man stood outside.
The other two men said nothing. His testimony, which was
denied, was that McCorkle told him- "I am at the point
right now to where I could kill you. But we have been
friends; it's taken everything in my power to keep my hands
off of you." Respondent's brief, though meticulously
detailing all the purported misdeeds of the dischargees,47
does not specifically cite this incident as to Whitehead or
Broussard. The finding is made, in any case, that there is no
justifiable basis for associating them with such an alleged
threat.
J. Henderson
The sole evidence adduced by Respondent relating to any
purported misconduct by Henderson involved his mistaken
identification by Palermo as one of the visitors to the Cesco
office in March, supra. Accordingly, Henderson's discharge
is a patent violation.
K. The Riggs and Davenport Incidents
Riggs was initially a striker and union committeeman,
but returned to work during the strike. As earlier shown, he
testified that on January 28 he was leaving the plant (in
Wilmer Daniels' car) and was momentarily stopped in
traffic at the intersection of FM 1006. Broussard came up,
"kind of pushed on the window," called him
"Brutus-Judas," and Riggs shook his head at him.48
Moore, who was group chairman of the union committee,
called him "Judas" and nigger committeeman," and said,
"Why, don't you get a rope and hang yourself?" Several
others around the car "chanted" at him. Broussard testified
that he heard Riggs called "Judas" many times at the picket
line and credibly denied that he did so himself.
Davenport, who had also been on the union committee,
related that, on June 28, while he was in a car with three
other persons stopped at the intersection, Moore called him
a "dirty black rat."
In all these incidents at the picket line, I am constrained
to find the alleged misconduct was not so egregious49 as to
provide reasonable support for the discharge of the strikers
involved.
L. Moore
As no other misconduct allegations are raised against
Moore, above, Respondent's violation as to him is fully
established.
M. The Buckley Phone Calls
James Buckley had been on strike but resumed work on
June 13. Buckley's wife (Mary Buckley) testified substan-
tially as follows: About 11 p.m. on June 13, she received an
anonymous phone call at home. She and her husband were
called S.O.B.'s and told they would be sorry that Buckley
had gone back to work. On the night of June 14, she was
again called allegedly by the same person, who said in
effect that if her husband wouldn't stay home to protect
her, he (the caller) was coming down to rape her. This
person said he would call some more. Several times she just
let the telephone ring at odd hours through the day and
night. About 2 weeks later, at 1:30 a.m., she and her
husband (on an extension) answered the phone. The party,
who did not identify himself, asked for Jim Buckley, and
receiving no response, hung up. Both Buckleys testified
they thought they recognized the voice of McCorkle. On
October 12, during a hearing involving a Section 10(j)
injunction at the Federal District Court in Beaumont, she
recognized a voice in the corridor as that of the person who
had been calling her on the phone. Her companion at the
time identified this person to her as Bailey. She did not
know Bailey and had never spoken to him on the phone
with awareness of his identity. Additionally, she testified
that, along the last of June, an arrangement was made with
the telephone company to put a tap on her phone. The next
call she received was at 1:30 a.m., and she just heard a
43 It is noted that Respondent states in its brief that, on November 20,
Fowler came and told Sanders that it was he, and not Henderson, who was
present at the Cesco visit. (This admission is also indicated in Sanders'
affidavit among the rejected exhibits) Nonetheless, Respondent did not
clarify until it filed its brief that it was no longer relying upon such charge
against Henderson
44 At the hearing, Respondent indicated that it was not relying on this
incident as to Fowler, but in its brief it stated that "Broussard and Fowler,
as silent partners in the gangland style visit are equally culpable "
45 See American Beauty Baking Co, 171 NLRB No 98, TXD
46 McCorkle testified the other two men were Whitehead and Calhoun.
47 Including references to the rejected exhibits.
48 The pushing, the calling, and the head shaking are alleged against
Broussard in Respondent's brief.
49 Respondent states in its brief that "Moore's vituperative remarks
bore overtones of a racial prejudice which cannot be tolerated " However
much it is obnoxious, I am unable to hold that the addition of ethnic or
racial adjectives in name -calling during a strike essentially alters the
conclusion as to whether or not the intrinsic offense constituted
unprotected conduct
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heavy breathing in the phone. She contacted Sanders and
the phone company, and the call was traced.
A phone company representative testified for Respon-
dent that a "called party hold" was installed on the Buckley
phone following a complaint about June 14, that one call
was trapped on June 18, and that he conveyed the
information to the Sheriff's office at 1:30 a.m. on that date.
He was able to trace the phone number from which the call
was made, and it was that listed for Charles Bailey. For a
period of several weeks, this was the only call that was
successfully traced "to this number."
Prior to the testimony of the Buckleys, Respondent called
Bailey as an adverse witness, and he denied ever having
made any phone calls to the Buckley home.
The apprehension of the Buckleys on receiving these
phone calls is understandable, particularly in the circum-
stances of the strike. It was certainly not shown that all the
calls were made by the same person; indeed, one is ascribed
to McCorkle. Possibly, one or more of the calls was the
work of a prankster, and others intended for legitimate
reasons. On October 12, Mrs. Buckley had already been
advised that the tapped call had come from Bailey's phone.
I do not credit her testimony that, 4 months later, she
recognized Bailey's voice in the corridor of a courthouse. It
is far more plausible that she had previously learned or was
then told that this was Bailey before she allegedly
recognized his voice . In itself, the tapped call on June 18
was intrinsically innocuous; particularly it was the call on
June 14 which was flagrant. Respondent's apparent
purpose is to identify, by sequence and association, the
caller on June 18 as the same person who made the earlier
calls. Assuming that the June 18 call was made from
Bailey's number, this does not probatively establish that it
was he who made this call, much less any of the earlier calls.
On the evidence, such a conclusion is highly speculative
and unwarranted; and no reasonable basis was provided
for a "good-faith belief" that Bailey was the culprit on June
13 or 14. I credit Bailey's denial.
N. The Meadows Highway Incident
On October 12, about 8 a.m., Benjamin Meadows was
driving on Interstate Highway 10 at 70 miles per hour in the
left lane . He testified that he passed a car with McCorkle
and Cordeaux and another car in front of McCorkle
containing Whitehead and Bailey. The occupants of the
latter car waved to him and pointed fingers. He "read their
lips" as saying "rat" and "scab." 50 Whitehead turned and
told McCorkle "it's a scab." McCorkle crossed in front of
Meadows, causing him to slow down to 60 miles an hour.
Meadows drove to the right lane to allow traffic to go
through, and McCorkle pulled in front of him, slowed
down, and both McCorkle and Cordeaux pointed to the
side of the road, which Meadows "assumed" was a motion
for him to stop. Meadows, now going 15-20 miles an hour,
shook his head negatively, turned back to the left lane and
took the next exit from the highway.
50 The windows of Meadows' car were rolled up and he did not hear
anything.
51 The hearing involved a petition for injunction against Respondent for
an alleged refusal to bargain
52 So implied in Respondent 's brief in relation to Bailey
Meadows indicated that he was on his way to meet at
Attorney Brown's office prior to the Section 10(j) hearing at
Beaumont scheduled that day.51 After he turned off the
interstate highway, he drove to a police station and had the
police chief call Attorney Brown to tell him why Meadows
would be late. At the Federal Courthouse, Meadows made
a complaint concerning the incident on the highway. In
October, a contempt hearing was held on a charge against
McCorkle and was postponed indefinitely.
Whitehead testified that Meadows waved at him and he
waved back, that McCorkle pulled alongside Bailey's car
and asked who this was, and that Whitehead said it was
"one of those ninety-day wonders that had crossed the
picket line, Talbert Meadows." Whitehead and McCorkle
credibly denied that any attempt was made forcibly to stop
or impede Meadows' car. I reject any implication by
Respondent that the discharged strikers knew that
Meadows was enroute as a witness in the Federal
proceeding or that they planned any interference
therewith.52 Further, the alleged name-calling ("scab" and
"rat") by Whitehead and Bailey furnishes no reasonable
basis for their discharge.
0. Bailey and Cordeaux
The foregoing consists of the only alleged misconduct as
to Cordeaux, i.e., his assumed motioning for Meadows to
stop. And it is the only charge against Bailey in addition to
the Buckley anonymous phone calls, supra. I find both were
entitled to reinstatement after the strike.
P. Fowler
Meadows further testified that, in mid-October, he and
his wife were seated in a movie theater, when Fowler and
his wife walked by and Fowler "tried to give me a bad
face." The next morning, Meadows noticed at a service
station that the gas cap on his car was missing and that
"sugar was all around the gas nozzle." He returned to where
his car had been parked the night before and there was
about a cup of sugar on the ground. (He did not indicate
that sugar was in fact found in his gas tank or that, as a
result, there was anything wrong with his car.) Fowler
recalled that he gave Meadows a "bad look" that night and
credibly denied putting sugar in Meadows' car, or even
knowing that Meadows had a car.
It is concluded that Respondent had no foundation for
discharging Fowler on the basis of the foregoing, and of his
mere presence at the Cesco visit, supra.53 The violation is
clearly sustained.
Q. The Moncrief Incident
On June 16, about 7:30 p.m., David Moncrief left the
plant, accompanied by his wife and child. He testified, viz.:
At the highway intersection , they saw two men on the side
of the access road, not carrying picket signs. As the car
53 At the hearing, Respondent stated that the Cesco incident had no
bearing on the Fowler case, but it nevertheless relies thereon in its brief
Fowler testified he made an unconditional offer to return on November 20
Respondent's brief states that Fowler was discharged by letter from
Sanders on December 8
FIRESTONE TIRE & RUBBER CO. 67
approached, these men made a "vulgar" hand signs and
cursed, e.g., "S.O.B." and "scabbing bastard."54 After
driving a distance, they returned to the plant to find out the
identity of these men. At an office with Sanders and Utley,
Moncrief telephoned a guard, Herbert Roberts, and
described the two men. From the description, Roberts gave
him the names of Broussard and Whitehead. As the
Moncriefs left the second time, Whitehead approached the
car and said that, if Moncrief did anything, he was going to
get his ass . The following day, Moncrief was shown pictures
of Broussard and Whitehead, and he thus identified them.
At the hearing, Moncrief pointed out Broussard but
indicated the wrong person as Whitehead.55
Broussard and Whitehead were not questioned as to this
incident. In my opinion, therefore, enough has been shown
to establish identification. While by no means condoned, I
find the name calling and the vague hand gestures
insufficient to justify discharge.56
R. Whitehead
front of the truck to the right side and, with the "back of his
fist," hit the glass window causing it to shatter. Asked how
Curtiss struck the glass, Spears testified- "he just .. .
walked by and bumped it with his fist." The truck was
apparently moving slowly, as Spears indicated this took
place "before we could stop." Green obtained an estimate
of the damage as $25. Curtiss did not testify.
From the entire description of the event, it is not, in my
view, plausible or reasonable to infer that Curtiss had any
purpose, while walking by a car in motion, of breaking or
shattering the glass with the back of his bare fist. Indeed,
the shattering was done, whatever the condition of the glass
at the time on a 17-year old truck. Although even such
"bumping" on a car window is certainly not condoned, I
find in all the circumstances that Curtiss had not
committed misconduct of such seriousness as to render him
unfit for further service with Respondent at the conclusion
of the strike.59
However, Moncrief could reasonably construe the rough
vernacular of Whitehead as a threat of physical harm. This
was neither denied nor explained. In the circumstances, I
find that the threat constituted serious misconduct, and
that Whitehead's termination therefor was not unlawful.57
S. Broussard
James M. Taylor testified that, at shift change in the
evening on June 27, he and Philip Mortimer were in a
station wagon driven by Dick Underwood. On FM 1006
approaching the intersection to enter the plant, he observed
a large crowd of men on all three sides of the road. A rock,
about "the size of a half a dollar," struck the roof of the car,
chipping the paint. He did not actually see the rock except
as it came toward the car, and he was ducking his head. He
was sitting in the left rear seat. Broussard was on the left
side of the road, about 30 feet away, with "lots of people" in
that area . All he saw was Broussard "cocking his arm" and
then appearing to throw at the time the rock hit the car.
Broussard credibly denied that he threw a rock on this
occasion or on any occasion during the strike in the vicinity
of the plant.58
The Cesco, Riggs and Moncrief incidents have earlier
been considered. It is found and concluded that the
discharge of Broussard was not based upon valid or
reasonable grounds, and was therefore a violation.
T. Curtiss
In the evening on June 27, Milton Green, Jr., Otis
Lazenby, and Johnnie Spears were driving from work in
Green's 1950 Chevrolet pickup truck and "had to
momentarily stop" on FM 1006 because people were
crossing the road. Lazenby and Spears saw Curtiss cross in
54 Written down by the witness as an exhibit
55 There were other wrong identifications at the hearing
56 Eg, Terry Coach Industries, Inc, 166 NLRB No. 76, with full
discussion and cases cited therein.
57 While it is needless to consider other allegations against Whitehead,
as indicative of existent provocations , note is taken of an incident involving
Wiley F. Ayres on June 27, at the evening change of shift, when Ayres
U. Howell
Gerald B. Stelly testified that, on June 28 about 7:30
p.m., he and Ray LeBlanc were driving to work when their
car stalled on FM 1006, "pretty far back" from the
intersection of the plant entrance. They tried to push the
car to the side of the road. At a distance, he saw about
150-200 people. Some of them noticed the car and started
running toward it. One man grabbed LeBlanc around the
neck. Stelly saw Howell coming toward him. Then someone
hit him from the back. In Stelly's words, he "went forward
and Glyn Howell hit me and knocked me down, and then
Duff and Howell both started kicking me." After he was
down, he did try to strike them back. Police officers arrived
and Howell "backed into the crowd," while Duff kept on
trying to kick him. One of the police grabbed Duff and
"hauled him off." About 50 people were around, but 10 to
15 feet away. Stelly told a police officer about Howell, but
nothing was done. At the plant, he was advised he could file
a complaint against Howell, but he did not do so.
Stelly did not know Howell at the time of the incident. On
cross-examination, he testified that "LeBlanc had seen him
come towards me . . . so we assumed he was the one, so we
went and looked in the files and identified his picture .. .
the next day."
Howell testified he was on FM 1006 that night in a crowd
of 200-300 men, with about 70 police officers present.
Stelly's car was seen about 100 yards from the plant
entrance, being pushed. Someone said they were strike-
breakers and the crowd moved toward the car. The closest
he got to the car was 10 feet. He did not know Stelly, did
not hit or kick him, and saw no one who did. Howell is
credited 60
The violation as to Howell is, accordingly, found.
within his car menacingly brandished an open knife at Whitehead It is
apparent that Respondent , aware of this fact, took no action against Ayres.
58 And cf, e g , American Beauty Baking Co, 171 NLRB No. 98, pp 25,
26
5s Ibid
60 LeBlanc did not testify
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. Patterson
Relating to the incident above, Stelly also testified that,
"after it was all over," Patterson told him "it was just going
to be me and him and he would get me, among other
things." Patterson testified that, after the fight, in the
presence of police officers, Stelly turned toward the crowd,
"gave us a finger and said that the law would "take care of
you bunch of S.O.B.'s." Stelly appeared to be looking
directly at Patterson. He then told Stelly that if he still
wanted to fight, he was right there for him to come on over.
He did not say "from now on it will be just you and me." I
find the facts as stated by Patterson, and that no threat was
made by him.
Alfred P. Devers came to Orange on March 20 from
Respondent's Virginia plant, where he is regularly a
supervisor. He testified that, three or four times in April
and May, while he and two other employees were riding
together, they were subjected to "abusive language" at the
picket line by the pickets-usually two to five men,
including Patterson. By reference, he indicated that the
abuse was on the same order as "scabs" and "S.O.B.'s."
On June 27, at shift change about 7:45 p.m., Leach was
leaving in his car with Book, Monte L. Turley, and Harvey
Dubose. Four or five other cars were directly ahead. Book
testified that, at the intersection, a large group of people
were "deliberately" blocking the road, and that Patterson
was one of them. Findings have earlier been made on this
and other testimony rejecting the contention of deliberate
obstruction to ingress and egress. The car doors were
locked and the windows rolled up. Patterson came to the
driver's side and said, "Get out of the car, you rat, you
[S.O.B.]. . . ." Book "assumed" the "cursing" was directed
at Leach 6i A very loud noise was coming from the crowd.
He heard the words "S.O.B." very often and a lot of people
saying, "get out."
As already found, such name-calling does not entitle
Respondent to refuse reinstatement to strikers. Patterson's
termination was thus a clear violation.
W. Swift
At the same incident with Book, above, it was testified by
Turley that Swift "laid on the roof of the car and was
pounding on the windshield and threatening me, but I
couldn't hear what he was saying. He was shaking his finger
at me." Leach testified that Swift stood at the front end of
the car, "leaned over the hood" and was shouting - "come
on out of the car and I will show you . . . who don't have a
backbone like a jellyfish." Leach added that Swift stood
there "probably . . . a minute" and then came around,
grabbed the fender and "started shaking the car." Turley
stated that a deputy sheriff told them (in the car) to move
on, and when they started to move, the car was "rocked" by
a "bunch of them" outside; he did not know who, but
"some of them had to be rocking it." Book did not mention
Swift at all.
The variations in the testimony by these three witnesses
to the same events strongly reflect confusion, exaggeration,
61 In the testimony of Leach and Turley, no reference was made to
Patterson
and vague memories of what actually happened. No
damage of any kind was shown that resulted from Swift's
conduct. "Something special" was apparently arousing the
strikers at the evening shift changes on June 27 and 28. At
most, Swift was indulging in a "moment of animal
exuberance" as to which the substantive content cannot be
regarded as exceeding the limits of lawful conduct or as
rendering him unsuitable for further employment. This
being the only evidence of alleged misconduct as to Swift, it
is found that Respondent's failure to reinstate him after the
strike was unlawful.
X. Peveto
In its brief, Respondent states that "Peveto was
discharged for causing damage to equipment and creating a
hazardous situation which could have resulted in the death
of Firestone's nonstriking personnel and extensive damage
to the plant," and that he "either caused the damage to the
plant intentionally by opening the valve and breaking the
wires or, being in charge of the equipment, he knowingly
left it in a dangerous condition and went out on strike." The
latter contention was not raised at or prior to the hearing,
but is now injected by Respondent. Considerable testimony
by a number of witnesses was put in by Respondent, much
of it remote, internally or mutually conflicting, and
containing extraordinary conjectures and assumptions. It is
unnecessary to treat this evidence in full detail, as it is
abundantly clear that no probative, reasonable support has
been shown for this dire accusation against Peveto.
It appears that a fire broke out on dryer 502 about
midnight on January 20, resulting from the escape of
hexane at the location of a valve under the dryer. The fire
was quickly put out, and the damage consisted of the loss of
one "take-off belt." The strike was scheduled for midnight,
at the expiration of the existing contract. As stated by
Respondent, the represented employees "reported for work
on the midnight shift as usual, because they did not know
for certain that the strike would be called." Elsewhere it
contends that "the controls on all of the dryers had been
turned up to `wide open' 62 . . . in an obvious attempt on
the part of the striking employees, including Peveto, to
cause serious damage to the plant."
There are five dryers in the dryer room, which also
contains conveyor belts, catwalks, control instrument
consoles, and an office. Production Superintendent C. G.
Henderson testified that normally one and a half dryers are
assigned to each operator. In anticipation of the strike,
Respondent had instructed various nonunit personnel to
report early at the dryer room and receive their specific
duty at midnight. Hyden G. Capps, regularly a plant
protection employee, testified that he arrived at 8:30 p.m.
and remained in the area of the dryers until he started work
as an operator at midnight.
Peveto was on the 12 to 8 a.m. shift, assigned to dryer 501
and half of 502. Normally the new men came in 20 minutes
before shift change to consult with the previous operator
concerning the condition of the equipment. On January 20,
62 A plain distortion of the evidence.
FIRESTONE TIRE & RUBBER CO. 69
Peveto reported to work at 11:45 p.m., and left at midnight
upon notice of the strike 63
Peveto gave specific testimony that he did not open the
valve, or in any way adjust or touch the controls on dryer
502. At midnight, he asked Foreman Bordelon64 if he
wanted the operators to stay or go on, and Bordelon told
him they could go. Peveto also denied, as alleged by
Respondent, that he and other strikers were "running"
when they left the dryer room together that night. He was
not given any reason for his discharge, nor questioned in
any manner by Respondent. Peveto is fully credited. While
this resolution should finally settle the matter herein, the
following factors are informative:
(1) No witness has testified, from being at the valve itself,
that it was not already opened prior to Peveto's arrival on
duty.65 (2) There were numerous personnel in the dryer
room and the area of 50266 at the critical time , anyone of
whom could just as well have perpetrated such an act, if
indeed it was deliberate-which would be incredible to find
on this evidence. (3) No one witnessed anyone opening the
valve, and there was no appearance of expert opinion on
the subject, merely the vaguest kind of speculations. (4)
Anyone who attempted to open the valve would be in fairly
open view and easily seen.67 (5) Anyone with such an
outrageous plot deliberately to cause fire and explosion in
the manner hypothesized by Respondent would gravely
endanger himself. As stated by the plant superintendent, it
"could have been instantaneous." (6) It is wholly unrealistic
to entertain even a suspicion of sabotage, without firm
proof, as timed before or at the start of such an economic
strike by a recognized union. (7) Numerous fires in the
dryer room, caused by hexane fumes and static electricity,
had occurred before and after this incident.68 (8) The men
recruited to replace the strikers in the dryer room were
largely inexperienced and untrained. (9) An "abnormal
condition" was found at the same time on dryer 506, also
implied by Respondent as a deliberate act 69 (10) Capps
testified that dryer 502 was down for repairs on January 20,
that al 8:30 p.m. one of the maintenance men said they
"have to get that thing back on line before they went" on
strike, that at 10:55 p.m. the dryer was activated, and that it
takes 4 hours for the dryer to warm up before going into
operation. Henderson said there was major overhaul on 502
the day before, and Shift Foreman L. B. Magness said the
overhaul took place several days before January 20. In
addition, cleanup men work around each dryer for 1 hour
on each shift. (11) Witnesses of Respondent testified that it
63 It was not disclosed who shared with Peveto the assignment on dryer
502 The alleged "responsibility" of operation would fall equally on such
person General Counsel requested that Respondent produce the schedule
of operators working in the dryer room on January 20, and Respondent's
counsel represented that Sanders would later testify on this subject from
company records However , Sanders failed to do so, and the information
was not revealed
64 Not called by Respondent
65 Luther Street, who was stated to have closed the valve after the fire,
did not testify
66 The operators did not have to stay at their assigned dryers, they walk
up and down the catwalks and "do a lot of going downstairs" at the
ground level
67 Such person would have to descend 5 feet from the catwalk and crawl
on knees and elbows about 7 feet under the dryer to reach the valve The
whole process, including manipulation of the controls, would consume
about 1 minute
is possible for the dryer to operate with the valve left open
by negligence, and to continue in such manner for an
indefinite time (a vacuum balance) without the escape of
hexane. (12) Considering the gravity of the question, there
was no effort made by Respondent to investigate the true
facts.70 Nor was there any criminal charge or prosecution.
(13) Although it was customary to maintain logs, written
reports, and work orders, none were kept of this incident or
made available at the hearing. (14) Capps had supposedly
seen Peveto (identified by photo) and four other men
"running" from the dryer room. There is no indication any
of these men were questioned or discharged as accomplices.
About midnight, immediately after the fire, Magness saw
Peveto, Hudson, and Gunstream walking from the dryer
room toward the gate.71 Other substantial conflicts exist in
Respondent's testimony.
In sum, it is found that Peveto, involved in no other
alleged offense, was unlawfully terminated.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate and substantial relation to trade, traffic, and
commerce among the several States , and tend to lead to
labor disputes, burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, Respondent interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section
7 of the Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By the above conduct, Respondent discriminated
against employees in regard to their hire and tenure of
employment, thereby discouraging membership in the
Union, and has engaged in, and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.72
5. The aforesaid unfair labor practices are unfair labor
68 Since August 1953, it was estimated there were 50 to 100 such fires
69 Apropos of Respondent's contention of a general striker conspiracy,
it is noted that Jack E . Reeves testified for Respondent that Bradley
reported to him an "awful lot of vapors" on dryer 502, before Bradley went
off on strike
70 Sanders purportedly discharged Peveto on the report of the safety
supervisor , R N Whitehead , Jr., but Whitehead himself was not put on to
testify
71 Henderson saw Peveto, McGann , and Bradley leave at midnight
72 N L R B v Fleetwood Trailer Co, 389 U S 375, 378, supra
Concerning substantially all of the 15 named strikers who were discharged
and refused reinstatement at the conclusion of the strike, excepting
McCorkle and Whitehead , Respondent failed to "establish " that it had a
good-faith belief they had engaged in serious misconduct relating to the
strike , and has otherwise failed to show "legitimate and substantial
business justifications" for the termination of these employees
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor
practices alleged in the complaint which are not specifically
found herein.
V. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. In my opinion, a broad
cease and desist order is warranted, particularly by reason
of the discriminatory discharges.73
It has been found that Respondent, in violation of
Section 8(a)(1) and (3), terminated 13 named strikers in the
complaint, excluding McCorkle and Whitehead. It will
therefore be recommended that Respondent offer to these
individuals immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings suffered by
reason of their unlawful termination, by payment to them
of a sum of money equal to that which they normally would
have earned from the date of their discrimination to the
date of Respondent's offer of reinstatement, less net
earnings during such period, with backpay computed on a
quarterly basis in the manner established by the Board in F.
W. Woolworth Co., 90 NLRB 289. Backpay shall carry
interest at the rate of 6 percent per annum, as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716. As the 13
named employees remained on strike until November 20,
1967, their backpay will run from the date of their
unconditional request for reemployment at the plant on
November 20, 1967, and not from the date of their earlier
discharge. Accordingly, Respondent shall discharge any
new employees hired on or after November 20, 1967, if
necessary, in order to make room for the reinstatement of
the discriminatees. Further, it will be recommended that
Respondent preserve and make available to the Board,
upon request, all payroll records, social payment records,
timecards, personnel records and reports, and all other
records necessary and useful to determine the amount of
backpay due and the rights of reinstatement under the
terms of these recommendations.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in the case, it
is recommended that Respondent , Firestone Tire & Rubber
Company , Orange , Texas, its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Oil , Chemical and
Atomic Workers International Union, AFL-CIO, Local
No. 4-23, or in any labor organization , by discharging or
refusing to reinstate employees because of their union or
concerted activities , or in any other manner discriminating
against them in regard to hire or tenure of employment, or
any term or condition of employment.
(b) In any other manner interfering with , restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to the employees listed below immediate and
full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings, as set forth in "The Remedy" section of the Trial
Examiner's Decision.
Charles N. Bailey, Sr.
Richard J. Broussard
Burford Curtiss
Donald J. Fowler
Steve Henderson
Glyn Howell
Frank A. McLeod
Donald Moore
Claude S. Peveto
Sidney A. Patterson
Tommy J. Swift
V. R. Walden
Gene Cordeaux
(b) Notify the above-named individuals if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application, in accordance
with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(c) Preserve and make available to the Board or its agents
all payroll and other records, as set forth in "The Remedy"
section of the Trial Examiner's Decision.
(d) Post at its Orange, Texas, plants and facilities, copies
of the notice attached hereto as "Appendix." 74 Copies of
said notice, on forms provided by the Regional Director for
Region 23, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof, in conspicuous
places, and be maintained for a period of 60 consecutive
days. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Trial
Examiner's Decision and Recommended Order what steps
Respondent has taken to comply herewith.75
73 N LR B v. Express Publishing Co, 312 U.S 426, N L R B v
Entwistle Mfg, Co, 120 F.2d 532 (C A 4)
74 If these Recommendations are adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner" in the notice If the Board 's Order
is enforced by a decree of a United States Court of Appeals, the notice will
be further amended by the substitution of the words "a Decree of the
United States Court of Appeals Enforcing an Order" for the words "a
Decision and Order "
75 If these Recommendations are adopted by the Board , this provision
shall be modified to read "Notify the Regional Director for Region 23, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
SUPPLEMENTAL TRIAL EXAMINER'S
DECISION
BENJAMIN B. LIPTON, Trial Examiner: On January 14,
1969, the Trial Examiner herein issued his Trial Examiner's
Decision in this proceeding finding that Respondent had
FIRESTONE TIRE & RUBBER CO. 71
violated Section 8(a)(3) and (1) of the Act in refusing to
reinstate 13 specified strikers' upon the conclusion of an
economic strike, and that Respondent had justifiably
terminated Thomas W. McCorkle and Jerald L. Whitehead
for engaging in misconduct during the strike.
Following exceptions and briefs by the parties, on June
20, 1969, the Board issued an Order Remanding Proceeding
to Trial[ Examiner, in essential part, viz.
Respondent based its refusal on its alleged good faith
belief that the individuals denied reinstatement had
engaged in picket-line misconduct serious enough to
justify such denial. The record shows that all decisions
to deny reinstatement were made by Respondent's
manager of industrial relations, G. R. Sanders. He
passed judgment in each case on the basis of statements
and affidavits of employees who continued working
during the strike, plant guards, police officers, private
detectives, etc.2 These statements and affidavits, and
various supporting documents were submitted by
Respondent to show Sanders' good faith belief.
It was Respondent's contention before the Trial
Examiner that, where an employer refuses to reinstate a
striker on the basis of picket-line misconduct, the
employer need only show evidence of its good faith
belief that such misconduct was engaged in, and the
General Counsel then has the burden of showing that
the alleged misconduct was not in fact engaged in by
the respective employee. The Board is satisfied that
such is the present state of the law, and the Trial
Examiner clearly and correctly stated that law in his
Decision. However, at the hearing the Trial Examiner
stated to Respondent that, once the General Counsel
had made out his prima facie case, it was Respondent's
burden to go forward and make an affirmative showing
that the employees in question did in fact engage in
misconduct sufficient to deny them reinstatement.
In keeping with his ruling that Respondent must go
forward with affirmative proof, the Trial Examiner
rejected all the affidavits, statements, etc., offered by
Respondent, and in making his decision considered
only those that were corroborated by record testimony.
The Board finds that the Trial Examiner erred. He
should have accepted and considered the offered
exhibits. Mr. Sanders made his decisions on the basis of
the facts presented by the exhibits, and Respondent was
entitled to have these exhibits considered in support of
its defense of good faith belief. While we agree with the
Trial Examiner's insistence that the material offered be
presented in some reasonable semblance of order, the
admissibility of the materials on the limited issue
involved does not necessarily turn on their form,
purported vagueness, or lack of a date. Rather, these are
factors to be considered in deciding what weight to
accord the exhibits vis-a-vis the nature and extent of the
General Counsel's evidence.
Record testimony was offered by Respondent to
1 Charles N Bailey, Sr, Richard J Broussard, Gene Cordeaux, Burford
Curtiss , Donald J Fowler, Steve Henderson , Glyn Howell, Frank A
McLeod, Donald Moore, Claude S Peveto, Sidney A Patterson , Tommy J
Swift, V R Walden.
2 With one exception Regarding McLeod, Respondent claimed that he
had quit (Footnote as quoted from the Board's Order )
corroborate some but not all of the matters presented
by the proffered exhibits. Had the Trial Examiner
considered the exhibits as to each individual with an eye
to deciding if Mr. Sanders' good faith belief in each case
was based upon reasonably objective facts, he may have
reached a different conclusion as to some of the
individual cases. The Board, having considered the
matter, finds it advisable to remand the case to the Trial
Examiner to consider the rejected exhibits and the
entire record in that light. As either or both parties may
have proceeded differently had the Trial Examiner
accepted the exhibits in question, and properly ruled on
the burden of proof issue at the hearing, either party
may request a reopening of the record, or the Trial
Examiner if he sees fit may reopen on his own motion.
Thereafter, the Trial Examiner granted motions filed by
each of the parties to reopen the record. Also granted were
repeated joint requests of the parties to postpone hearing,
e.g., "for the purpose of endeavoring to comply with the
Trial Examiner's Decision and to continue settlement
efforts." On January 27, 1970, pursuant to the Board's
Order, a further hearing was held before me in Orange,
Texas. All parties were represented and were afforded a
wide latitude to adduce evidence relevant to the prescribed
purpose and issues of the reopened hearing, and to file
briefs. General Counsel and Respondent submitted briefs,
and the Charging Party filed a letter in lieu of a brief, all of
which has been given due consideration.
Upon the entire record in the case, I hereby make the
following additional and supplemental findings of fact and
conclusions of law:
A. Motions at the Hearing
As to 12 of the 13 discriminatees named above, i.e., all
except Broussard, the Union moved to withdraw charges,
and the General Counsel moved to dismiss the complaint
on the grounds that there was substantial compliance by
Respondent with the Trial Examiner's recommended
order-by the payment of backpay and in certain cases by
reinstatement. The motions were granted by the Trial
Examiner, upon his satisfaction that the policies of the Act
will be effectuated by approval of such compliance and
settlement.3
Further, Respondent's motion was granted to withdraw
its offer of all the exhibits, which are the subject of the
Board's remand order, excepting those pertaining to
Broussard. Pursuant to the Board's Order, these remaining
exhibits relating to Broussard were admitted in evidence.
Thus, the parties themselves effectively reduced the issues
at the remand hearing to those involving only Broussard.
On this state of the record, General Counsel and Charging
Party had no further evidence to adduce. Respondent
thereupon proceeded further, in essential part as follows:
3 General Counsel indicated, inter a/a, that the regular Board
procedures were followed in determining the amounts of backpay, less
interim earnings Respondent's offers of reinstatement were either accepted
or waived by the affected employees, with the final result that three of the
employees were reinstated
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Evidence on Remand
Without objection, Respondent introduced certain
documents. On January 23, 1967, it had obtained from the
county court a temporary restraining order, and on July 6,
1967, a temporary injunction, both relating to the picketing
at Respondent's plant. Broussard, nor any other striker, is
named in the documents. The court's disposition of these
matters upon hearing on the merits is not shown. In its
brief, Respondent states the purpose of seeking to rebut the
negative finding of the Trial Examiner-that there was "no
evidence that Respondent made any attempts to invoke the
State law as to mass picketing in general or as to any
particular striker." The relevance of these documents in the
remand hearing is dubious. However, the original decision
of the Trial Examiner is herein modified to reflect the
foregoing efforts of Respondent to obtain temporary
restraint of the picketing. Also "in response to the findings
in the original decision," Respondent showed that it filed
with the Board certain charges against the Union in 1967,
relating to the strike and picketing. These charges, which
were withdrawn or settled, in no cognizable respect
pertained to the instant issues regarding Broussard.
Respondent adduced testimony from R W. Krajicek,
president of Cesco, and of the receptionist. The Cesco
incident, concerning McCorkle's visit to that firm, accom-
panied by Fowler and Broussard, was fully described in the
previous decision. The receptionist added nothing. Krajicek
in net effect corroborated Palermo's version of a threat
conveyed by McCorkle, that if Cesco's trucks cross the
picket line, McCorkle was going to "pull the man out" of
the truck and "skin his head back." Insofar as such
additional testimony relates to Broussard, I find no
evidence or basis to alter the findings already made.
The exhibits, previously rejected and now admitted,
consist of six affidavits and one unsworn statement
concerning alleged misconduct involving Broussard. As to
* Broussard denied that he had addressed any curse words to Buckley
or Delcambre on this date or on any occasion during the strike
5 While one such exhibit, Palermo's affidavit, is dated January 3, 1968,
all the exhibits, except that of Walter L. Delcambre, each
informant gave actual testimony at the original hearing on
the particular incident. In the affidavits of both Delcambre
and James E. Buckley, the same incident was covered. And
testimony on the subject was previously taken from
Buckley, in substance as follows:
On July 20, 1967, Buckley and Delcambre were riding
home from work when they approached an intersection at
which Broussard was engaged in picketing. Broussard
looked at Delcambre and said "S.O.B." a couple of times,
plus another word of profanity which Buckley did not hear
distinctly.4 Even assuming, as I do not find, that the events
occurred as Buckley testified, the same conclusion is
reached, as indicated in the original decision, that such
name calling does not constitute a valid ground for refusal
to reinstate a striker.
G. R. Sanders gave further testimony that these
admitted exhibits "all influenced the decision making" as to
"whether or not Mr. Broussard would become a good
employee for Firestone. " 5 Each of the allegations, in the
testimony as well as the exhibits, has been fully considered
from the standpoint of Respondent's asserted good faith
belief that Broussard engaged in strike misconduct. On
objective criteria, it has been found that these incidents fail
to provide a reasonable basis for a good faith belief that
misconduct was committed, or that the alleged misconduct
did not in fact occur, or that it did not in any event render
Broussard unfit for reinstatement.
CONCLUSIONS
As supplemented and modified herein, the same findings
of fact and conclusions of law are reached as contained in
the original decision, except that the violation of Section
8(a)(3) and (1) is found only as to Richard J. Broussard, and
only his name shall appropriately appear in the recom-
mended order and notice, instead of the 13 strikers
originally specified.
Sanders stated he was nevertheless aware of the events described therein
when he made the decision in November 1967 not to reinstate Broussard