Tube Craft, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1987

287 N.L.R.B. 491 (N.L.R.B. 1987)

TUBE CRAFT 491
Tube Craft , Inc. and United Steelworkers of Amer-
ica, AFL-CIO, Local 8703 . Case 8-CA-18821
16 December 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 13 August 1986 Administrative Law Judge
Walter H. Maloney Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The principal issue presented here is whether
certain picket-line conduct went beyond the limits
of protected concerted activity and constituted mis-
conduct which permitted the Employer to dis-
charge strikers Edward Steele, Alice Emmert,
Ruth Kelly, Betty Schumaker, and Betty Wallace.
The conduct occurred between 2 and 10 January
1985.1
The Respondent had permanently replaced all
the strikers by 9 January, and it discharged them
the following December. Their replacements were
then still occupying the strikers' positions. Al-
though the Respondent took no action against the
strikers for almost a year after the picket-line con-
duct in question, it stated to the Union on 9 Janu-
ary that the fact it was treating the strikers "as per-
manently replaced does not constitute a waiver of
any of Tube Craft's legal rights with regard to
picket line misconduct." We take this message to
mean that the Respondent wanted to be on record
as not condoning the alleged misconduct and as re-
serving the right either to discharge the offenders
or refuse to reinstate them if and when positions
became available.
Although the complaint in the instant case al-
leges that the Respondent violated Section 8(a)(3)
of the Act by its discriminatory discharge of the
strikers, we apply the same standard in evaluating
the protected nature of the picket-line conduct as
we do in refusal-to-reinstate cases such as Clear
Pine Mouldings, 268 NLRB 1044 (1984), enfd. 765
F.2d 148 (9th Cir. 1985).
Alleged Picket-Line Misconduct
The essential facts concerning what occurred on
the picket line are not in dispute, and the judge's
recitation of the specific incidents is accurate in
general, except that some details that the record
evidence compels us to acknowledge add clarity to
the overall picture. The strike involved only the
Respondent's 6 office and technical employees,
who constituted a separate bargaining unit from the
approximately 40 production and maintenance em-
ployees.2 During the incidents in question, the
picketing activity was focused on a small strip at
the street entrance to the Respondent's driveway,
apparently the only available route for receiving
and shipping the materials used in the Respondent's
metal tube fabricating business. These shipments
were carried in large tractor-trailers or flatbed
trucks driven by truckdrivers employed by outside
carriers, not the Respondent.
The driveway, estimated to be between 10- and
15-feet wide, provided a single lane adequate for a
large truck, with a small amount of space on either
side. A small area of vacant land, which was not
owned by the Respondent, adjoined the driveway
entrance on one side. This empty space created a
potentially wider entrance, but regular truck in-
gress was possible only by driving straight into the
driveway entrance proper. Entry was normally ac-
complished by backing into the Respondent's park-
ing lot on the opposite side of the street from the
driveway entrance and then proceeding directly
across the street and into the driveway. The strik-
ers, usually three or four at a time during the inci-
dents in question, occupied the entrance strip,
either patrolling or standing with their picket signs.
Their presence and oral appeals persuaded many
truckdrivers not to attempt entry. This activity
alone might have succeeded in shutting the Re-
spondent off completely from its supplies and cus-
tomers. That, however, is a lawful object of pri-
mary picketing and does not concern us here.
On 2 January, the first day of picketing, a truck
attempted to enter the driveway. The driver first
parked along the street while strikers Steele, Wal-
lace, and a third striker, who is not involved in this
proceeding, picketed. They were accompanied by
Union Representative John Gronofsky. The Re-
spondent's president, Thomas La Boda, twice asked
Gronofsky to remove himself and the pickets from
the driveway entrance so that the truck could
enter. Gronofsky refused. The Respondent's plant
' All dates hereafter are 1985 unless otherwise indicated We agree
with the judge that other alleged misconduct on 24 January did not con-
stitute a valid basis for discharge
2 The strikers were represented by Local 8703 of the Steelworkers
Union, which also represented the production and maintenance employ-
ees The production and maintenance employees continued to work
throughout the strike
287 NLRB No. 51
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
manager urged the truckdriver to proceed, telling
him to run over the pickets if necessary. Eventual-
ly, the driver performed the backup maneuver and
faced the strikers from across the street. He ad-
vanced about halfway into the street and waited
for the 'pickets to clear, then backed again out of
the street. The record does not reveal how long
the truck remained in the street before retreating.
There is a testimonial dispute, unresolved by the
judge, concerning whether the pickets kept walk-
ing back and forth across the driveway entrance or
stood still and faced the truck as it approached and
waited. Photographs of the incident persuade us
that at some point the strikers stood in the entrance
and faced the truck as it attempted to enter.
La Boda told Gronofsky he would call the
police to get the truck through. When Gronofsky
indicated to La Boda that he should do what he
had to do, La Boda called. The police arrived and
instructed the pickets to permit the truck to enter.
The pickets complied. Although the time taken up
by each stage of this incident is not recorded, the
total elapsed time between the truck's arrival and
its entry was approximately 50 minutes.
A similar incident occurred the following day, 3
January, when pickets occupied the entranceway
until the police arrived. On this occasion, however,
the truckdriver made no active attempt to enter
until the pickets were cleared. He pulled to the
curb, parked parallel along the street, and waited
approximately. 65 minutes while the pickets walked
along the entrance. Participating pickets that day
were Steele, Emmert, Kelly, Schumaker, and a
fifth striker.
Several incidents on 8, 9, and 10 January were
videotaped by the Respondent and the tapes placed
in the record, supplemented by explanatory testi-
mony. To the extent that the following description
sets forth details not recited by the judge in his de-
cision, these details do not involve matters of wit-
ness credibility but, rather, our interpretation of the
videotapes.
An incident on 9 January involved Emmert,
Schumaker, Wallace, and another striker.3 As a
truck attempted to exit from the Respondent's
driveway (apparently the strikers had permitted it
entry earlier), the strikers controlled their move-
ments so that at least one of them was in the
truck's path at all times. The driver approached
within a few feet of the picket line and stopped. A
police officer arrived shortly and persuaded the
strikers to clear the path. The truck was delayed
for approximately 2-1/2 minutes.
Emmert, Wallace, Kelly, and a fourth striker
were involved in the first of two incidents on 10
Janauary. At 8 a.m. a truck arrived and backed
into the parking lot in obvious preparation for for-
ward entry into the driveway. The strikers walked
within the driveway entrance as on the previous
day. The truck advanced to the center of the street
and remained there for a little less than a minute.
The driver then retreated into the parking lot, still
facing the picket line in the entranceway. He re-
mained until a police officer arrived and moved the
pickets away at 8:18 a.m. From the time the driver
completed his initial backup maneuver in prepara-
tion for entering he driveway, he waited approxi-
mately 15 minutes before the entrance was cleared.
Later the same morning the final incident in this
series occurred. Participating were Emmert, Kelly,
and Schumaker. The scenario and the time elapsed
were almost identical to the earlier 10 Janauary in-
cident, but in this instance the truckdriver sounded
his horn before advancing to the center of the
street, where he blocked traffic for about a minute
before retreating to the parking lot.4 Later, two
police officers arrived and talked with the strikers
for 5 minutes before the strikers stepped aside to
permit the truck through. 5
Discussion and Conclusions
The plurality Board opinion in ,Clear Pine Mould-
ings, supra, states that peaceful picketing does not
include the right to block access to the employer's
premises. 268 NLRB at 1047. Both the plurality
and the concurring opinion adopt as the general
standard for striker misconduct serious enough to
permit the employer to refuse reinstatement, that
which, "under the circumstances existing . . . may
reasonably tend to coerce or intimidate employees
in the exercise of rights protected under the Act."
Id. at 1046, 1048, quoting NLRB v. W. C.
McQuaide, Inc., 552 F.2d 519, 527 (3d Cir. 1977).
In unanimously adopting this standard the Board
also extended it to include coercion or intimidation
of persons who do not enjoy the protection of the
Act, such as supervisors. 268 NLRB at 1046 fn. 14
(plurality), id. at 1048 (concurrence).
We view the strikers' conduct here as blocking
access. Further, regardless of whether, blocking
access is, per se, misconduct which forfeits the
right of reinstatement, the conduct here amounted
° Shortly after this maneuver was completed, one of the picketing
3 Our ultimate findings and conclusions make it unnecessary to com- strikers was relieved by an unidentified person the Respondent's brief
ment on a single incident on 8 January except to note our agreement places Wallace at the site during this incident, but the record does not
with the judge that there was no substantial misconduct, even when identify her with the relief picketer
viewed as part of the pattern of events s No arrests were made in connection with any of these incidents
TUBE CRAFT
to such coercion and intimidation of the truckdriv-
ers as to justify refusal to reinstate or, in this case,
discharge.
Although peaceful picketing unquestionably in-
cludes the right to make nonthreatening appeals to
those who are about to cross a picket line, the deci-
sion of such persons to ignore such appeals must be
respected. Thus, physical obstruction of an en-
trance has been held to violate Section 8(b)(1)(A)
of the Act when attributable to a union.6 The ob-
structions here, which are attributable directly to
the discharged strikers, were neither isolated nor
trivial. They took place after the truckdrivers in-
volved had decided to cross the picket line.7 Thus,
in at least three instances, those on 2 and 10 Janu-
ary, the drivers approached the picket line head
on, after consciously maneuvering into position to
cross the picket line, only to have the strikers
block their entrance until the police arrived. All
the discharged except Steele participated in at least
two of these extended obstructions. Steele, howev-
er, participated in the 50-minute obstruction on 2
January and was one of those who stood and faced
the oncoming truck on that occasion when the
driver advanced into the street.'
These instances of blocking access, each extend-
ing over a considerable period of time, together
with the 9 January incident in which three of the
discharged strikers attempted to obstruct the exit of
another truck, constitute a pattern of conduct evi-
dencing a strategy of refusing to limit the picketing
to peaceful appeals for support of the strike. Al-
6 Grede Foundries, 235 NLRB 363, 380 (1978) Although obstructing is
often accompanied by mass picketing and threats, the cited case appears
to isolate obstruction as a violation It should also be noted that "mass
picketing" is a relative concept Under the circumstances presented here,
three to five picketers were sufficient to block truck access quite effec-
tively Cf Leon Ferenbach, Inc, 212 NLRB 896, 904 (1974) There, the
administrative law judge , in a finding that was not excepted to and there-
fore was not reviewed by the Board, stated
Insofar as the pickets were peacefully picketing they were exercis-
ing their statutorily guaranteed right to engage in protected concert-
ed activities That involved their movement back and forth across
the entrance in such a fashion as to inform the public of their appeal
for support , but not in such a manner as to block access to the plant
At the point where the pickets set about to close the roadway for
incoming vehicles and sought to bar such ingress they were not en-
gaged in protected concerted activities Mass picketing, where a
large number of pickets form a solid wall across the factory entrance
to prevent everyone from entering , has long been illegal and unpro-
tected Similarly, here the tactic pursued by Morton, Holdren, and
Morgan closed the entrance as effectively as if a gate had been
swung across the roadway When they chose to adopt this course
they could not expect that the Act would provide them with any
protection
r We take exception to the judge's comment that the drivers "were in-
volving themselves in someone else's troubles by approaching or crossing
the picket line " It was the picket line that involved the drivers in the
dispute Whichever choice they made would have given support to one
side or the other
8 Steele also participated in the less clearcut incident on 3 January
when the driver waited 65 minutes, but never made a direct attempt to
force the picketers to move We need not decide whether the strikers'
conduct during this incident constituted unprotected conduct
493
though such a pattern may not always be a neces-
sary element in converting picketing that blocks
entry into unprotected conduct, it is sufficient here
to persuade us that the conduct of the discharged
strikers was unprotected.
Furthermore, we find that the Respondent dis-
charged the strikers for this misconduct and not for
engaging in a protected strike. The judge inferred
from the Respondent's delay of almost a year in
discharging them that the asserted misconduct was
merely a pretext. The judge suggested obliquely
that the motivating factor may have been the testi-
mony by three of the strikers in an earlier unfair
labor practice proceeding, an allegation that was
neither made nor litigated in this case. We do not
find the inference of a pretext supportable. On 9
January the Respondent expressly reserved its
rights to take appropriate action in response to the
pattern of misconduct then in progress. It can
hardly be said, therefore, that the Respondent con-
doned the misconduct that already had occurred or
that occurred within the following day. As all the
strikers' positions were and continued to be filled
by permanent replacements, there was no need for
the Respondent to take any immediate action with
respect to the strikers' future reinstatement. In De-
cember, the strikers renewed an earlier uncondi-
tional offer to return to work. The Respondent
then decided it was time to act and thus leave no
uncertainty about its position. Whether this strate-
gy was the only choice, the best, the least subject
to criticism, or none of the above, it does not estab-
lish a pretext here. Accordingly, we find that the
Respondent lawfully discharged the strikers for
strike misconduct and shall dismiss the complaint.
ORDER
The complaint is dismissed.
Rufus L. Warr, Esq., for the General Counsel.
Jeffrey M. Carey, Esq., and David E. Bishop, Esq., of
Cleveland, Ohio, for the Respondent.
Mark A. Rock, Esq., of Cleveland , Ohio, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY JR., Administrative Law Judge.
This case came on for hearing before me at Chicago, Illi-
nois, on an unfair labor practice complaint' that alleged
i The principal docket entries in this case are as follows
Charge filed against Respondent by United Steelworkers of America,
AFL-CIO, Local 8703 (the Union or USWA) on January 10, 1986,
amended charge filed here against Respondent by the Union on February
24, 1986, complaint issued against Respondent by Regional Director for
Continued
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Respondent Tube Craft, Inc.2 violated Section
8(a)(3) of the Act More particularly, the complaint al-
leged that the Respondent discharged five named strikers
because they engaged in union and protected concerted
activity. The strikers are Alice Emmert, Edward Steele,
Ruth Kelly, Betty Wallace, and Betty Schumaker The
Respondent admitted firing these individuals and one
other striker, Sylvia Lucia, but asserted that it was privi-
leged to do so because they had'engaged in strike-related
conduct that was so egregious that they forfeited any
right of reinstatement that they might have under the
Act. On these contentions the issues here were drawn.3
FINDINGS OF, FACT
new employees were hired He further found that, as of
January 9 , the strike was converted into an unfair labor
practice strike, so he recommended to the Board an
order requiring the Respondent to reinstate the strikers
as vacancies became available and to place them on a
preferential hiring list in anticipation of that possibility.
At this writing , Tube Craft I is still before the Board on
appeal
In refusing to bargain with the Union , the Respond-
ent's lawyer read to Union Negotiators John J. Gron-
ofsky and Edward Steele5 a statement that was reprinted
in whole in Judge Leiner 's decision With respect to the
issues in this case , the statement read-
I. THE UNFAIR LABOR PRACTICES ALLEGED
Respondent operates a plant in Cleveland, Ohio, locat-
ed at 8000 Baker Street, where it manufactures various
kinds of tubing. It employs a production and mainte-
nance unit of about 40 employees and an office and tech-
nical unit of about 6 employees. Both are represented by
the Charging Party in this case.
On January 2, 1985, at the expiration of their contract,
the six members of the office and technical unit went on
strike. Apparently the production and maintenance em-
ployees did not support this strike and continued to
work. The office employees set up a picket line in front
of the plant near a driveway which forms the western
boundary of the Employer's property and immediately
abuts the main building. The driveway is about 50-75
feet from the main entrance to the building and is used
both by production and maintenance employees and by
deliverymen.4 -
Within a few days after the beginning of the strike, the
Respondent replaced the strikers and refused to bargain
any further with the Union, claiming that it had formed
a good-faith doubt of the Union's continuing majority
status as bargaining agent. As more fully set forth in a
decision issued by Administrative Law Judge Robert W.
Leiner on January 24, 1986 (JD-386-85 (Tube Craft 1)),
Judge Leiner found that the Respondent did not have
objective evidence sufficient to assert a good-faith doubt
regarding thie,Union's majority status and, by refusing to
bargain with .the Union on and after January 9, it violat-
ed Section 8(a)(1) and (5) of the Act. He found that the
replacements, or most of them, were hired before that
date so that' the strike was economic in character when
Region 8 , on February 24, 1986 , Respondent 's answer filed on March 5,
1986, hearing held in Cleveland, Ohio, on May 19, 1986, briefs filed here
by the General Counsel, the Charging Party, and the Respondent on or
before July 14, 1986
2 Respondent admits, and I find, that it is an Ohio corporation which
operates a place of business in Cleveland, Ohio, where it is engaged in
the fabrication of metal tubing for use in the transportation and other in-
dustries It annually ships from its Cleveland, Ohio facility directly to
points and places located outside the State of Ohio goods and merchan-
dise worth in excess of $50,000 Accordingly, the Respondent is an em-
ployer engaged in commerce within the meaning of Sec 2(2), (6), and (7)
of the Act The Union is a labor organization within the meaning of Sec
2(5) of the Act
3 Certain errors in the transcript have been noted and corrected
4 The office is located in the central part of the building, so office em-
ployees use the front door rather than the side driveway going to and
from their duty posts
Six members of the 0 & T unit began a strike on
January 2, 1985. The strike continues as of today.
Tube Craft has permanently replaced each of the six
0 & T employees The replacements are working.6
With regard to permanent replacements, as you
know, the replaced employees have job rights
should the replacements leave in the foreseeable or
unforseeable future.
You know as well as I do, Mr Gronofsky, that
the striking 0 & T employees engaged in miscon-
duct during the strike. The fact Tube Craft is treat-
ing the striking 0 & T members as permanently re-
placed does not constitute a waiver of any of Tube
Craft's legal rights with regard to picket line mis-
conduct. '
I credit Gronofsky's testimony that he mailed to the
Respondent a letter dated January 14, that read as fol-
lows:
As the Representative of the United Steelworkers
of America and the Union Representative, on behalf
of the employees I am requesting that you call them
back to work They wish to return unconditionally
to their positions, however, it is my understanding
that their Agreement which expired on December
31, 1984, would continue in effect
Please advise me at the telephone number above
of the date the employees should report for work.
Tom La Boda, president of the Respondent and the ad-
dressee of this letter, claimed never to have received it
until December 1985, when it was forwarded to the Re-
spondent again as an attachment to a second request for
reinstatement. At a hearing or predetermination confer-
ence conducted in May or June 1985 by the Ohio Unem-
ployment Compensation Commission, a copy of the
letter was given to the referee conducting the meeting
and was discussed in La Boda's presence, although ap-
parently a copy was not given to La Boda at this time.
La Boda testified that, as of May or June 1985, he was
aware of the Union's contention that it had made an un-
a Gronofsky is a staff representative for the United Steelworkers of
America Steele was a striking employee and a member of the bargaining
unit
6 As of May 19 , 1986, the date of the hearing in this case , all six re-
placements were still working
TUBE CRAFT
conditional offer on behalf of striking employees that
they return to work.
Picketing continued at the Respondent 's premises
throughout the summer and fall of 1985 On December 2
and 3, a hearing was held in Tube Craft I, in the course
of which strikers Alice Emmert, Betty J. Schumaker,
and Ruth Kelly testified for the General Counsel. On
December 9, Gronofsky again wrote La Boda a letter re-
questing reinstatement for striking employees . The letter
read:
I am sending you this letter because you indicat-
ed you had not received the letter forwarded by
this office dated January 14, 1985, sent 1st class mail
[copy enclosed] On behalf of the striking employ-
ees I am submitting their unconditional application
for reemployment
Please advise me at the telephone number indicat-
ed on this letterhead of your decision and the time
and date the employees should report to work.
On December 30, 1985, the Respondent sent all six strik-
ers7 identical letters which read:
The Company has considered certain of your ac-
tions related to your picket line activity during the
strike which you and others began on January 2,
1985. The Company has received the evidence
available to it and has consulted with legal counsel
regarding applicable law and considers certain of
your misconduct to be unprotected activity. The
Company has a good faith belief that certain of
your actions during the strike were unlawful and
constituted such misconduct as will justify termina-
tion of your employment with the Company. There=
fore, the Company hereby informs you that you are
discharged from your employment with Tube Craft,
Inc , effective this date.
II. ANALYSIS AND CONCLUSIONS
Any consideration of the rights of strikers to obtain re-
instatement on unconditional request must begin with the
premise that striking, in the absence of contract provi-
sions to the contrary, is activity protected by Section 7
of the Act. As the Third Circuit said in NLRB v. W. C
McQuaide, Inc., 552 F.2d 519, 527 (3d Cir. 1977):
We recognize that some confrontations between
strikers and non-strikers are inevitable and that not
every impropriety is grounds for discharge. t 6
Moreover, we recognize that it is the primary re-
sponsibility of the Board and not of the courts "to
strike the proper balance between the asserted busi-
ness justifications and the invasion of employee
rights." NLRB v. Fleetwood Trailer Co., 389 U.S.
375, 378, 88 S.Ct. 543, 546, 19 L.Ed.2d 614 (1967).
Yet, we do not believe that an employer must coun-
tenance conduct that amounts to intimidation and
threats of body harm. Threats are not protected
495
conduct under the Act, and we fail to see how, a
threat acquires protected status simply because it is
unaccompanied by physical acts or gestures. The
question is whether a threat is sufficiently egre-
gious, not whether there is added emphasis.
16 A "trivial rough incident" or [a] "moment of animal exuber-
ance" does not convert otherwise peaceful picketing into violence
Milk Wagon Drivers Union v Meadowmoor Dairies, 312 U S 287,
293, 61 S Ct 552, 85 L Ed 836 (1940)
The court in McQuaide then went on to equate conduct
so egregious that it warrants the forfeiture of reinstate-
ment rights with conduct by strikers which' amounts to a
violation of Section 8(b)(1)(A) of the Act.
Rather than focus on either the subjective intent
of the striker or the perception of the "victim," we
adopt an,objective standard to determine whether
conduct constitutes a threat sufficiently egregious to
justify an employer's refusal to reinstate. In Local
542, International Union of Operating Engineers v.
NLRB, 328 F.2d 850 (3d Cir.), cert denied, 379 U.S.
826, 85 S.Ct. 52, 13 L.Ed.2d 35 (1964), this court set
forth the test for union coercion and intimidation in
violation of Section 8(b)(1)(A):
That no one was in fact coerced or intimidated
is of no relevance. The test of coercion and in-
timidation is not whether misconduct proves ef-
fective. The test is whether the misconduct is
such that, under the circumstances existing, it
may reasonably tend to coerce or intimidate em-
ployees in the exercise of rights protected under
the Act.
Id. at 852-853. We believe that this standard which
this Circuit had adopted in the closely analogous ,
situation of Section 8(b)(1)(A) violations, is equally
applicable to threats and intimidation by individual
strikers. [552 F.2d at 527-528.]
The court went on, to apply this standard to reinstate-
ment requests made by strikers in the McQuaide case
with varying results in particular instances . It is this case
that the Board relied on in formulating the striker rein-
statement standard which it announced in Clear Pine
Mouldings, , 268 NLRB 1044 (1984).
Respondent relied on six incidents occurring at or near
the picket line between January 2 and 10, 1985, and one
employee following incident occurring on January 24,
1985, to justify the six discharges which were effectuated
on December 30, 1985. As noted before, the picketing of
the Respondent's premises was confined to the driveway
entrance to its premises from Baker Street. The area in
question may best be described in the following sketch,
which does not purport to be drawn to scale:
7 By this time striker Sylvia Lucia had resigned so she was not named
in the complaint that was issued in this case However, the recommended
Order in Tube Craft I is broad enough to include her by reference
496
Lowe
Chemic
lot
4Tpicket ivty
Tube Craft Parking Lot
y1
It is well to note at the outset that none of the picket
line incidents relied on by the Respondent involved con-
frontations between pickets and nonstriking employees in
the production and maintenance unit . Apparently all of
them were able to enter and leave the Respondent's
premises without difficulty. The events in question all in-
volve deliverymen-individuals who were strangers to
the labor dispute in progress at Tube Craft and who
were involving themselves in someone else's troubles by
approaching or crossing the picket line. Many of them,
especially Teamsters-represented drivers, simply drove
on when they observed a USWA picket line at the drive-
way. Others were simply undecided about what course
of action to take, and their indecision was an obvious
factor in some of the events that occurred.
- A second consideration that is quite evident both from
the verbal and pictorial descriptions of these events is
that none of the pickets engaged in violence or in threats
of violence toward drivers or anyone else. One or both
of these factors is an essential element of a finding of in-
eligibility for reinstatement under the Clear Pine Mould-
ings doctrine, as well as other cases that apply that doc-
trine.8 The fact that pickets commit a civil trespass, vio-
late pedestrian regulations in a traffic ordinance, or
commit a parking infraction does not mean that they
have engaged in egregious misconduct, as the Board has
used that term . It'is also clear from undisputed testimony
in this record that Plant Manager Walt Lindenberg on
two occasions urged drivers of delivery trucks to run
over the pickets who were patrolling in front of the Re-
spondent's driveway. Such remarks are a display of
strong animus on the part of the Respondent and are also
evidence of a desire on its part to provoke incidents at
the picket line.
8 One case decided long before Clear Pine Mouldings and relied on by
the Respondent, Leon Fernbach, Inc, 212 NLRB 896 (1974), involved a
situation in which the trial examiner and the Board refused to find egre-
gious misconduct on the part of a picket who actually laid down in the
street in the path of an advancing delivery truck in such a manner that
the driver was persuaded not to advance any farther
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
- Driveway
Tube Craft
Building
ake
!11
Both the verbal descriptions of the picketing and the
videotapes in evidence showed that picketing was,, for
the most part, conducted in the street, not on the Re-
spondent's property, although it would take a surveyor's
instrument to define the precise boundary line, because
the Respondent's driveway ran right into Baker Street
and curbing along that street was either nonexistent or
difficult to observe. No sidewalk runs along Baker Street
to separate either the Respondent's building or- the
vacant lot next door from the street itself. Pickets pa-
trolled back and forth across the 10- to 15-foot entrance
in either twos or threes and, with small exception, kept
moving There were no instances of linking arms ,to pre-
vent passage of vehicles, although there is some evidence
that some pickets stood for short periods of time in the
street at the driveway intersection until police directed
them to move. There is no evidence of a refusal on the
part of any picket to obey police instructions.9
The incidents of January 2 and 3, relied on by the Re-
spondent, are the subjects of verbal descriptions con-
tained in the transcript. On the afternoon of January 2,
the first day of picketing; a Preston delivery truck drove
up to the premises, observed the pickets, and parked on
Baker Street in front of the building. Lindenberg asked
Gronofsky to move the pickets, who were patrolling in
front of the driveway entrance Gronofsky refused,
whereupon Lindenberg asked the truckdriver to run
them over. The truck backed into the parking lot across
the street from the plant and waited. On one occasion he
advanced halfway across the street, stopped, and backed
into the parking lot. The Respondent called the police
and the police instructed the pickets to cease patrolling
long enough to permit the truck to enter. They did so
and the truck entered the' premises
On January 3, a Smith Transfer truck drove up to the
entrance of the plant and, on observing the pickets,
parked at the curb in front of the building. The Respond-
ent's attorney asked Gronofsky to have the pickets cease
patrolling at the entrance of the plant long enough to
permit the truck to enter. Gronofsky refused, so the Re-
spondent again called the police. When the police ar-
rived, the pickets, at police direction, ceased patrolling
long enough to permit the truck to enter and it did
The events of January 8, 9, and 10 are, for the most
part, contained on videotapes that are in evidence. The
events depicted on tape are supplemented by testimonial
comments by La Boda. They all concern short interrup-
tions of the progress of delivery trucks. On January 8, a
driver, who was apparently pointed the wrong way on
the one-way street, drove across the vacant lot next to
the Respondent's property and entered the driveway in
this manner, thus bypassing the pickets. On the afternoon
of January 9, a GMC truck leaving the premises was
9 Across the street from the Respondent's building is an employee
parking lot Occasionally a tractor-trailer driver would back into that lot
from Baker Street and position himself so that he could drive across
Baker Street into the driveway and head down the driveway without the
necessity of making a sharp right turn from Baker Street Such a turn
would either risk hitting the building or require the driver to-cut across
the vacant lot on the other side of the driveway that belonged to another
owner Drivers of smaller vehicles simply drove west on Baker Street (a
one-way street) and made a right turn into the driveway`
TUBE CRAFT 497
stopped briefly by a picket who spoke to him while
standing in the driveway . When the police instructed her
to move, she did so and the truck left. The following
morning, a Bonnie Speed delivery truck backed into the
parking lot and faced the driveway across Baker Street.
He began entering the street and the pickets maintained
their patrol in the street back and forth across the en-
trance way. The police arrived shortly thereafter, the
pickets ceased their patrol momentarily , and the truck
entered the Respondent 's premises A repetition of this
event took place later in the morning with a flatbed
truck owned by Bonnie Speed. The driver approached
the area in the street where the pickets were walking.
The pickets kept on walking so the driver backed into
the lot across the street . He waited until the police ar-
-rived . The police directed the pickets to cease walking
long enough to permit the truck to enter . They did so
and the truck proceeded across Baker Street and down
the driveway.
On January 24, at the end of the' day, strike replace-
ments Mary Ann Rasmussen and Sandra Hall left the
building shortly after the 4.30 p m . quitting time . Strike
replacements had been instructed to avoid pickets and
were counseled to arrive and leave in pairs or in greater
numbers. They went to the parking lot across the street,
found that one of the three entrances to the lot was
blocked by one of the striker's cars, and left by way of
another exit . Their normal driving course would take
them from the side streets on which the plant and the
parking lot were located to Lake Avenue and then to
Detroit Avenue . Both Lake and Detroit are busy arterial
roads having high volumes of rush hour traffic which are
controlled by frequent stop lights Rasmussen noticed
that striker, Ed Steele, was stopped at one light near the
plant and claims that he followed her for a block, at
which point she4ost track of him. She then noticed a car
parked at another nearby intersection driven by Phil
Emmert , the son of striker Alice Emmert. Alice Emmert
was riding in the front seat as a passenger . The Emmert
car proceeded along Detroit Avenue for 'nearly a mile at
a distance of two car lengths from her own car . Rasmus-
sen was riding in tandem with Hall and stopped at a traf-
fic light , opened the window of, her car, and told Hall
that the Emmerts were following her. Until this time,
Hall was unaware of this fact.
Strikers also were in the habit of arriving and leaving
in pairs. A. Emmert left the picket line at the same time
striker Betty Schumaker did Their purpose was to drive
as close to each other as possible to the intersection of
117th Street and Interstate 71, at which point the Em-
merts would -turn left and head east while Schumaker
would take the Interstate south to Strongsville This is
just what , they did. Both of them drove along Detroit
Avenue about the same time Rasmussen and Hall did.
$ However, they turned off of Detroit Avenue at 98th
Street , while Rasmussen kept on going straight to the
nearby suburban town of Lakewood , where she went to
a police station and complained about being followed.
Hall also turned off Detroit Avenue shortly after the
Emmerts did and went in another westerly direction.
It is difficult to follow the Respondent 's assertion of
egregious misconduct on the part of A Emmert for
being a passenger in a car driven by her son . If unlawful
following could be found on this set of facts, it would
have to be attributed to Phil Emmert, not to his mother.
However, all that occurred here was a coincidence of
strikers and nonstrikers leaving the plant premises at the
same time and traveling short distances in heavy traffic
on a snowy day along the same well -traveled major thor-
oughfare to their respective destinations . Only hypersen-
sitivity on the part of Rasmussen made this event into
anything more than a routine commutation in bad weath-
er.
The above-recited events certainly do not amount to
egregious misconduct on the part of strikers and it is
stretching it to assert that the actions attributed to them
amounted to misconduct at all. - However , the lapse of
time which occurred between the events relied on by the
Respondent for denying reinstatement to strikers and
their discharge for strike misconduct makes it clear that
the reasons asserted by the Respondent in its discharge
letters of December 30 were wholly pretextual. Re-
spondent was well aware of the events it relied on for
discharging strikers at the time these events took place.
Indeed , it had videotapes of many of then . Rather than
removing offending strikers from its payroll as a re-
sponse to their activities , it told the Union on January 9
that it would simply "reserve its right" to do so and, in
effect , see what happened Reserving the right to dis-
charge a striker- for egregious strike misconduct rather
than exercising that right with reasonable promptness is
clear indication that getting rid of strikers - rather than
strike misconduct was what the Respondent had in mind
nearly a year later when it decided to act . i ° La Boda
knew long before he received the Union 's December 9
letter that the strikers wanted their jobs back. The fact
that he received a renewed request at that time added
nothing to his understanding of their desires. i i The only
new occurrence taking place in December 1985 was that
three of the strikers appeared at the unfair labor practice
hearing in Tube Craft I and testified for the General,
Counsel.
On the basis of the foregoing findings of fact and the
entire record considered as a whole, I make the follow-
ing
CONCLUSIONS OF LAW
1. Tube Craft, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. United Steelworkers of America, AFL-CIO, Local
8703 is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3 By discharging Alice Emmert, Edward Steele, Ruth
Kelly, Betty Wallace, and Betty Schumaker because of
10 La Boda testified that he had actually decided to fire the strikers at
some undefined point in time much closer to the picket line events of
January 1985 This well-kept secret is not supported by any objective evi-
dence and I discredit his testimony in this regard
11 The Board held in the aforementioned McQuaide case that an un-
conditional request for reinstatement does not require employees to for-
feit their right to strike if the request is denied See 220 NLRB 593, 609
(1975), and cases cited there
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their union sympathies and union activities , the Respond-
ent here violated Section 8(a)(1) and (3) of the Act.
4. The aforementioned unfair labor practices have a
close, intimate, and adverse effect on the free flow of
commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices , I will recommend that it be
required to cease and desist therefrom and to take certain
affirmative actions necessary to effectuate the policies of
the Act. The evidence both in this case and in Tube
Craft I discloses a continuing disposition on the part of
the Respondent to violate the Act and to infringe on the
rights of its employees in serious and repeated ways. Ac-
cordingly, I will recommend to the Board a broad
8(a)(1) order designed to suppress any and all violations
of that section of the Act. Hickmott Foods, 242 NLRB
1357 (1979). I will recommend that the Respondent be
required to offer reinstatement to the five named discri-
minatees if and when positions become available for
them , and that their names be placed on a preferential
hiring list for that purpose . I will further recommend
that they be made whole for any loss of pay or benefits
that he may have suffered by reason of the discrimina-
tions found here, in accordance with the formula set
forth in the Woolworth case,12 with interest thereon at
the adjusted prime rate used by the Internal Revenue
Service for the computation of tax payments. Olympic
Medical Corp., 250 NLRB 146 (1980); Isis Plumbing Co.,
138 NLRB 716 (1962). I will also recommend that the
Respondents be required to post the usual notice advis-
ing their employees of their rights and of the results in
this case.
[Recommended Order omitted from publication ]
12 F W Woolworth Co, 90 NLRB 289 (1950)
0