Virginia Mfg. Co.

National Labor Relations Board - Board Decisions

May 7, 1993

310 N.L.R.B. 1261 (N.L.R.B. 1993)

1261
310 NLRB No. 218
VIRGINIA MFG. CO.
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties. Further, the Respondent’s mo-
tion to strike the Union’s brief answering the Respondent’s excep-
tions is denied because the brief, in fact, was timely filed. In addi-
tion, the General Counsel’s motion to strike references in the Re-
spondent’s exceptions brief to a motion filed in Case 11–CB–2035
is denied, because, although not part of the record in the instant pro-
ceeding, the motion in the CB proceeding is subject to administrative
notice.
2 We agree with the judge that the Respondent condoned any strike
misconduct in which the four discriminatees may have engaged. Ac-
cordingly, we find it unnecessary to address the judge’s summary of
evidence concerning alleged misconduct at sec. II,C,2(a) through (e)
of his decision, much of which involves unresolved factual conflicts.
In addition, we agree with the General Counsel, and not with the
judge, that it is appropriate to find that the Respondent violated Sec.
8(a)(3), as alleged in the complaint, as well as Sec. 8(a)(1), in dis-
charging the four discriminatees for the asserted strike misconduct,
because the Respondent had previously condoned it. See, e.g., Cir-
cuit-Wise, Inc., 308 NLRB 1091, 1103 (1992); White Oak Coal Co.,
295 NLRB 567, 571 (1989).
3 In sec. II,B,2(b) of his decision, the judge dismissed a separate
8(a)(1) allegation involving a statement by Hurd to employee Tim
Continued
Virginia Manufacturing Company, Inc. and Bobby
Duncan and Steve Birman and Jimmy
Crusenberry and Randy Woodard and United
Mine Workers of America District 28, Sub-Dis-
trict 3, AFL–CIO. Cases 11–CA–14621–2, 11–
CA–14621–3, 11–CA–14621–4, 11–CA–14621–5,
and 11–CA–14766
May 7, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 7, 1992, Administrative Law Judge Richard
J. Linton issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and the Union each filed briefs answering the
Respondent’s exceptions, and the Respondent filed a
brief in reply to the General Counsel’s answering
brief.1 In addition, the General Counsel filed cross-ex-
ceptions and a supporting brief, and the Respondent
filed a brief answering the General Counsel’s cross-ex-
ceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified and to adopt the recommended
Order as modified.
The General Counsel has excepted, inter alia, to the
judge’s dismissal of the allegation that the Respondent
violated Section 8(a)(1) of the Act through an implied
threat of discharge for concerted activities made by
Plant Superintendent Daniel Hurd to employee Steven
Birman. For the following reasons we find merit to the
exception.
As more fully detailed in the judge’s decision, on
the morning of June 20, 1991, certain production and
maintenance employees initiated an economic strike at
the Respondent’s manufacturing facility. Prior to the 7
a.m. start of the morning shift, employees discussed
among themselves issues involving certain terms and
conditions of employment which they wished to take
up with management. As set forth in section II,B,2(c)
of the judge’s decision, one of the employees who en-
gaged in this discussion was Steven Birman. When the
shift buzzer sounded, Birman decided to join the strik-
ing employees. As he was leaving, he stopped to tell
Plant Superintendent Hurd why he was joining the
strike. It is clear from the circumstances that Hurd
knew at the time that a concerted work stoppage was
in progress. When Birman asked whether Hurd was
aware of the employees’ complaints, Hurd answered
no. In response to Birman’s attempt to explain the
issues, Hurd gave a ‘‘cold shoulder’’ shrug. Birman
then started to leave, and Hurd took him by the arm,
turned him around, and said ‘‘Steve, it’s your job.’’
Birman pulled away, and Hurd told him to leave the
property. Birman then joined the strikers.
The judge stated that he would have agreed with the
General Counsel that Hurd had unlawfully threatened
Birman with discharge if he joined the strike, but for
the absence of evidence establishing that Hurd knew at
the time that the work stoppage was directed toward
improving terms and conditions of employment, i.e.,
that it was protected by the Act. Accordingly, he dis-
missed this allegation of the complaint. We disagree
with the judge and we find that Hurd’s statement was
a discharge threat violating Section 8(a)(1).
The fact of the matter is that Hurd was offered the
opportunity, by Birman, to learn of the nature of the
employees’ walkout, and he rejected it, literally shrug-
ging it off. At the same time, he was aware that a con-
certed employee protest of some kind was underway.
In these circumstances, ‘‘Respondent cannot blind
itself to the surrounding actions and claim that it did
not know the walkout was based upon a protected ac-
tivity.’’ Eaton Warehousing Co., 297 NLRB 958, 961–
962 (l990), enfd. mem. 919 F.2d 141 (6th Cir. 1990).
The Respondent’s refusal, through Hurd, to permit
communication of the nature of the employees’ com-
plaints was an action in which the Respondent engaged
at its peril. We impute to the Respondent constructive
knowledge of the protected nature of the employees’
strike at the time of Hurd’s statement to Birman. Id.
at 962. Accordingly, we conclude that his statement—
‘‘Steve, it’s your job’’—in the circumstances violated
Section 8(a)(1) because it was a threat of discharge
should Birman join the walkout.3
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jones on the morning of June 20, 1991; the judge relied in part on
the lack of evidence that Hurd was aware of any protected, con-
certed activity at the time. The record establishes that when Hurd
directed Jones and other employees, who were standing around pack-
ing line 1 waiting for assignments, to get to work in 3 minutes or
hit the clock, these employees in fact were not engaged in protected,
concerted activity. We rely on this in affirming his dismissal.
1 Norton and Big Stone Gap lie along U.S. Route 23, a highway
running from Florida to northern Michigan, fabled in song (Dwight
Yoakam’s 1987 ‘‘Readin’, Rightin’, Rt. 23’’) as the road for those
leaving Appalachia for an illusory better life working in northern
factories. Big Stone Gap is itself the situs of John Fox Jr.’s 1908
novel, ‘‘The Trail of the Lonesome Pine,’’ three times made into a
Hollywood motion picture. D. Wax, Welcome To John Fox, Jr.’s
Lonesome Pine Country (1990).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Vir-
ginia Manufacturing Company, Inc., Pennington Gap,
Virginia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
l. Insert the following as paragraph 1(c) and reletter
the subsequent paragraph as 1(d).
‘‘(c) Threatening employees with discharge if they
join or support a protected strike.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in concerted activities
protected by the National Labor Relations Act.
WE WILL NOT threaten you with discipline if you
join or honor a protected strike.
WE WILL NOT threaten you with discharge if you
join or honor a protected strike.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer the four employees named below im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharge, less any
net interim earnings, plus interest:
Bobby Duncan Jimmy Crusenberry
Steve Birman Randy Woodard
WE WILL notify each employee that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
VIRGINIA MANUFACTURING COMPANY,
INC.
Rosetta B. Lane, Esq., for the General Counsel.
Gary W. Wright, Esq. and Jeffrey R. Murrell, Esq. (Wimberly
& Lawson), of Knoxville, Tennessee, for the Respondent.
James J. Vergara Jr., Esq. (Vergara & Associates), of Hope-
well, Virginia, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
discharge case. VAMCO, as the company is known, fired the
four individual Charging Parties on September 4, 1991, for
unspecified misconduct which they allegedly engaged in dur-
ing a strike of June 20 to August 9, 1991. I do not resolve
the disputed misconduct issue because I find that VAMCO
condoned any disqualifying misconduct the four may have
engaged in. I order VAMCO to offer the four immediate and
full reinstatement and to make them whole, plus interest. Of
the seven independent 8(a)(1) allegation paragraphs, I dis-
miss six, finding merit to one threat allegation.
I presided at this 5-day trial beginning January 7, 1992, in
Norton, Virginia, and concluding February 11, in Big Stone
Gap, Virginia.1 The trial pleading is a December 24, 1991
order consolidating cases, consolidated complaint and amend-
ed notice of hearing (complaint) issued by the General Coun-
sel of the National Labor Relations Board through the Acting
Regional Director for Region 11 of the Board. All dates are
for 1991 unless otherwise indicated.
The complaint is based on charges filed September 6 by
Brian K. Marsee (Marsee) in Case 11–CA–14621, on Sep-
tember 9 by Bobby Duncan (Duncan) in Case 11–CA–
14621–2, by Steve Birman (Birman) in Case 11–CA–14621–
3, by Jimmy W. Crusenberry (Crusenberry) in Case 11–CA–
14621–4, by Randy Woodard in Case 11–CA–14621–5 on
September 16, and by the United Mine Workers of America,
District 28, Sub-District 3, AFL–CIO (UMW or Union) on
November 25, amended December 16, 1991, and again on
1263VIRGINIA MFG. CO.
2 References to the five-volume transcript of testimony are by vol-
ume and page. Exhibits are designated G.C. Exh. for the General
Counsel’s, U. Exh. for the Union’s, R. Exh. for VAMCO’s, and Jt.
Exh. for the joint exhibits.
3 The General Counsel attached a proposed order and a proposed
notice to the Government’s brief.
4 The Company’s unopposed motion for leave to file a three-page
reply brief, dated March 30, 1992, to the General Counsel’s
posthearing brief is granted. Fruehauf Corp., 274 NLRB 403, JD fn.
2 (1985).
December 24, against Virginia Manufacturing Company, Inc.
(Respondent, Company, or VAMCO).
The General Counsel alleges in the complaint that Re-
spondent VAMCO violated Section 8(a)(1) of the Act about
June 20 by threatening employees with the futility of their
striking, with discharge or other discipline if they continued
striking or because they did strike; about June 23 by threat-
ening employees with unspecified reprisals because they had
engaged in union activities; and about June 26 by threatening
employees with unspecified reprisals because they had en-
gaged in union activities, and by threatening an employee
with discharge because of his union activities.
The complaint alleges that Company violated Section
8(a)(3) by discharging, on September 4, employees Brian K.
Marsee, Bobby Duncan, Steve Birman, Jimmy Crusenberry,
and Randy Woodard. When The General Counsel and the
Union rested their cases in chief, VAMCO moved to dismiss
the complaint as to Marsee for lack of supporting evidence.
Marsee did not testify. The General Counsel stated that the
Government did not oppose, and Union’s counsel stated that
he did not represent Marsee and had no objection. I granted
the motion to dismiss the complaint as to Marsee. (2:452–
459.)2 The parties have treated Marsee’s dismissal as a dele-
tion of Case 11–CA–14261 from the complaint’s caption as
well as from the allegations. Because of this, and as there
is no limitations problem, I shall do likewise.
By its answer, the Company admits certain facts but de-
nies violating the Act. VAMCO’s answer admits, and I find,
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel3 and VAMCO,4 I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
VAMCO is a Virginia corporation with a facility located
at Pennington Gap, Virginia, where it manufactures and sells
at nonretail case goods and containers. During the past 12
months, the Company sold and shipped from its Pennington
Gap facility products valued at $50,000 or more direct to
points outside the State of Virginia. Although the complaint
does not so allege, I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Events
1. VAMCO’s business, management, and plant
VAMCO is owned by several families of Pennington Gap.
(3:754.) During the summer to early fall of 1991, the rel-
evant time period, VAMCO’s major customer was the Fed-
eral government. Nearly all of Company’s business is with
the General Services Administration (GSA). (3:754.) Under
the GSA contract, VAMCO manufactures furniture (such as
wall lockers, three-drawer chests, shelves, and similar items),
for the military. (1:32.) For the 12 months ending about Oc-
tober 1991, the Company also, in support of Operation
Desert Storm, fabricated some 135,000 ammunition boxes for
the Government. (2:310; 4:935, 945–946, 956.)
Since the fall of 1990, Robert J. Parkey has been
VAMCO’s president and Charles Fugate has been its execu-
tive vice president. (3:753–754; 4:942.) Ken Hughes is the
production manager, or was at the time (4:848, 851), Donald
Patrick was the plant manager (4:847–848; G.C. Exh. 2),
Daniel Hurd was the plant superintendent (4:894, 911), and
there were several supervisors there during the summer-fall
of 1991. Fugate testified that as of June 20 VAMCO em-
ployed 120 persons, with 110 of those being employed in
production and maintenance classifications. (3:700, 756.)
There were two shifts at the plant. (1:70.)
VAMCO’s Pennington Gap facility sits at the end of In-
dustrial Drive, a short road extending about .4 mile north of
U.S. Highway 58, within the city limits of Pennington Gap.
Although two lanes, wide enough for two cars to pass each
other, Industrial Drive has no marked center line. Picketing
during the strike occurred along part of Industrial Drive.
Situated on the left side of Industrial Drive, as one pro-
ceeds north from Highway 58 toward VAMCO, are some
businesses. A bank sits at the corner of Highway 58 and In-
dustrial Drive. After the bank is a motel, then Oakwood
drive. (3:677.) Eventually on the left, or west side of Indus-
trial Drive, is Morrell Motors. Beyond Morrell Motors on the
right is the mental health facility of Lee County Health De-
partment. Finally, where the road meets VAMCO’s property,
a sign is posted on the right side of the roadway. The sign
alerts the public that state maintenance ends at that point.
A photocopy of an aerial photograph of the last half of the
roadway, plus VAMCO’s four buildings and parking lot, is
in evidence as Joint Exhibit 1. (1:31.) Driveways are des-
ignated from A to E, the first four being at Morrell Motors
and E marking the entrance to the mental health facility’s
parking lot. Industrial Drive is asphalt-paved. (3:684, 716;
5:1076.) The driveways of Morrell Motors are gravel and
slope down to Industrial Drive. (3:802–803.) The parties
agreed to a diagram (Jt. Exh. 4) reflecting measured dis-
tances between various points appearing in the aerial photo-
graph. (5:979–981.) Industrial Drive measures 19 feet wide
near point A. That appears to be its approximate width from
there to the sign alerting the public about the end of state
maintenance.
Joshua Carroll, a supervisor now but an assistant super-
visor during the time of these events, testified that the photo-
graph shows only about one half of Industrial Drive from
1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
VAMCO south to Highway 58. That is, the photograph
would have to be extended at the bottom, or southerly direc-
tion, for an equal distance of Industrial Drive shown in the
photograph in order for that road to reach Highway 58.
(3:660.)
As can be seen from the photograph, the Industrial Drive
roadway that passes through VAMCO’s premises separates
the buildings, with building 1 and the parking lot being on
the left (as one looks at the photograph) or west side, and
buildings 2, 3, and 4 being on the right. The main office is
located in building 1, and both Robert J. Parkey, VAMCO’s
president, and Charles Fugate, the executive vice president,
have their offices there (4:941; 3:704) as does Ken Hughes
(2:274–275). Daniel Hurd’s office is in the production area
of building 1. (4:895, 908.)
2. Events June 20 to September 4, 1991
a. Strike begins June 20, 1991
On Wednesday evening, June 19, 1991, several employees
(apparently off duty and away from VAMCO’s premises)
gathered and developed a list of demands to present to
VAMCO’s management for the purpose of improving their
wages and working conditions. (1:34.) Although the list is
not in evidence, Bobby Duncan, one of the Charging Parties,
testified that items were listed for the purpose of improving
employees’ pay rates and obtaining relief from certain work
rules. (1:34.) Parkey, Respondent’s president, testified that
effective April 1 VAMCO, to comply with the new Federal
minimum wage law, increased its starting hourly wage rate
for unskilled workers to $4.25. (4:948, 964.) After just over
a year at VAMCO as of June 20, Duncan’s rate was $4.30
per hour. (1:31.) The other three Charging Parties had less
service than Duncan.
About 6:45 a.m. the following day, June 20, Duncan,
Jimmy Crusenberry, his brother Keith, and some eight or
nine other employees gathered on VAMCO’s parking lot be-
fore work. Most of the group, perhaps all, appear to have
been workers from building 4. Deciding to seek the support
of others before presenting their demands to management,
the group went first to the breakroom of building 1 (two
packing lines and wood shop), then to building 2 (welders),
and finally to the south door (two paint lines) of building 4
before they departed to establish a picketing situs on Indus-
trial Drive, generally between points E and D on Joint Ex-
hibits 1 and 4, or about 150 feet or so from VAMCO’s prop-
erty.
This ‘‘roundtrip,’’ Duncan testified, consumed about 30
minutes. (1:59.) Along the way, the employees had conversa-
tions with Production Manager Ken Hughes and Plant Man-
ager Donald Patrick, and I will address those conversations
later when I cover the alleged independent violations of Sec-
tion 8(a)(1). Although there is a dispute whether the pro-
testers were told, as alleged, they would be terminated if they
did not clock in and begin working, the General Counsel nei-
ther alleges nor contends that the strikers were terminated for
this 30-minute episode. Indeed, at trial the General Counsel
clearly stated that the Government was not contending the
strikers were fired on June 20. (2:453.)
Approximately 20 or so when the picketing began the first
day, the strikers’ number shortly grew to about 40 or more.
The strikers fashioned picket signs bearing legends reading
‘‘Unfair Labor’’ and ‘‘On Strike.’’ (1:41, 91.) During that
first day Bernie Noe, VAMCO’s tool and diemaker, a skilled
specialist (1:43; 2:347; 4:937, 948, 965), came to the picket
line about midmorning. Later I address the allegations that
Noe came as VAMCO’s agent and that VAMCO is respon-
sible for statements Noe made there. At this point it suffices
to note that Noe obtained a copy of the list of demands and
reported to Parkey the group’s desire to meet with him to
discuss their demands. Noe returned to the line about noon
and apparently sought to have one of the strikers return with
him to discuss the demands with management. Birman testi-
fied that Noe appeared to be attempting to act as a mediator.
(2:251.) J. Crusenberry testified that the strikers declined the
invitation, telling Noe that they had decided to obtain union
representation. (1:93.)
b. Case 11–RC–5781
Roger Tomlinson, a field representative for the Union, tes-
tified that, responding to a telephone call he received earlier
that day from VAMCO employee Leonard Brewer, he went
to the picket line the ‘‘evening’’ (apparently the late after-
noon) of June 20. Tomlinson and about five strikers went to
the nearby Hardee’s parking lot where Tomlinson answered
questions and gave the strikers about 100 authorization cards.
The next day Tomlinson met with about 50 or so strikers,
gathered at the picket site under a tarp tent for protection
from the rain, where he received about 50 signed authoriza-
tion cards. International Representative Sam Church also at-
tended. (2:426–429, 442, 445.)
The following day, a Saturday, with many of VAMCO’s
employees present, Tomlinson gave strict instructions that
there could be no violence, no guns, no alcohol, no threats,
nor any intimidation. (2:429–430.) Church also told the
group that the strike would have to be peaceful, and he re-
peated this at meetings on Saturday afternoons. (5:1077–
1078.) In some cases unions distribute written instructions to
strikers respecting picketing and other conduct. For example,
see those in Wayne Stead Cadillac, 303 NLRB 432 (1991).
There is no evidence that the Union distributed any written
instructions to the strikers here.
The following Thursday, June 27, the Union filed its peti-
tion (Jt. Exh. 2) for representation election, docketed as Case
11–RC–5781. (2:422–423.) By letter (Jt. Exh. 3) dated Au-
gust 6, Region 11’s Regional Director, Willie L. Clark Jr.,
notified VAMCO’s attorney, copies to the Union and its at-
torney (2:422–423):
This is to advise you that the election scheduled for
Friday, August 9, 1991, is indefinitely postponed pend-
ing disposition of unfair labor practice charges filed by
you on behalf of the Employer alleging that the United
Mine Workers of America, AFL–CIO violated Section
8(b)(1)(A) of the Act.
Please remove the Notices of Election and replace
them with copies of this letter.
c. Strike ends; attempt to return August 12, 1991
On Friday, August 9, the Union, on behalf of the strikers,
made an unconditional offer for the strikers to return to
work. (1:19–195; 2:267–268; 3:701, 734, 764.)
On Monday, August 12, the strikers reported for work and
were directed to the breakroom at building 1 where Fugate,
1265VIRGINIA MFG. CO.
5 It is unlikely that Jack London wrote ‘‘Definition of a Scab.’’
No citation lists any publication by London asserting authorship. The
source of the rumor probably lies in the fact that London did write
an intellectual discussion titled ‘‘The Scab’’ which was included in
his book War of the Classes beginning at 101 (Macmillan 1905).
That article was delivered first in 1904 as a lecture. 1 The Letters
of Jack London 352–353 fn. 1 (E. Labor, R. Leitz, and I. Shepard,
Stanford Univ. Press, 1988). Moreover, London died in 1916, and
‘‘Definition of a Scab’’ apparently does not appear until many years
later.
VAMCO’s executive vice president, told the group that
Company’s production could accommodate the return that
morning of eight and the rest would be recalled as produc-
tion was restored. Fugate concedes that much in cross-exam-
ination by the General Counsel (3:735), and in response to
questions by the Union Fugate admits that as of August 12
he intended to recall everyone but later changed his mind.
(3:809–810.) I cover this in more detail later when discussing
the contention of the General Counsel and the Union that on
this occasion VAMCO condoned any strike misconduct.
Some of the strikers not recalled to work that August 12 re-
turned to Industrial Drive where they began informational
picketing until the Charging Parties were fired. (1:53–54,
100–101, 196.)
d. Charging Parties fired September 4, 1991
For the first week or two of the strike the local police of
Pennington Gap stationed an officer across from the picket
site throughout the presence of strikers. Thereafter, the city
(or town) police were present at shift changes, the noon
lunch period, and frequently during morning and afternoon
breaks. Additionally, the city police of Pennington Gap and
the Lee County Sheriff’s department made unannounced ran-
dom drivebys of the picket site. No arrests were made, and
none of the strikers was even charged with any criminal law
violation based on alleged strike misconduct.
Curtis Minton, Pennington Gap’s police chief, testified that
the strikers cooperated with any requests he made. (1:160.)
Many nonstriking employees would stop and talk with the
strikers or accept literature. Chief Minton occasionally heard
the strikers call out ‘‘scab’’ or ‘‘yellow dog’’ at workers
passing the picket line. (1:171–172.) Some of the Charging
Parties concede that or testified similarly. Of course, such
name calling falls well short of serious misconduct that for-
feits reinstatement notwithstanding that VAMCO’s employ-
ees did not appreciate being called such names.
‘‘Scab,’’ for example, has a long history of litigation. See
cases such as Boise Cascade Corp., 300 NLRB 80 (1990),
and Caterpillar Tractor Co., 113 NLRB 553 (1955), enf. de-
nied 230 F.2d 357 (7th Cir. 1956). As the Seventh Circuit
wrote, in denying enforcement, and quoting from one of its
earlier decisions, ‘‘Probably no words are more insulting to,
or arouse keen resentment more promptly in, an employee
than to call him ‘a scab.’’’ 230 F.2d 357 at 359. The Board’s
view, however, prevails. Linn v. Plant Guard Workers, 383
U.S. 53 (1966). Even the more offensive ‘‘Definition of a
Scab,’’ usually attributed to author Jack London,5 generally
is protected. See Southwestern Bell Telephone Co., 276
NLRB 1053 (1985), and Letter Carriers v. Austin, 418 U.S.
264 (1974). Thus, VAMCO does not rely on name calling as
a basis for the discharge.
During the course of the strike VAMCO obtained affida-
vits from employees describing alleged misconduct by the
strikers. Although the record and VAMCO’s posthearing
brief (especially pages 3–4) contain more representations
(that is, references to matters outside the record) than actual
evidence on the matter, the record establishes that at some
point VAMCO filed an 8(b)(1)(A) charge with Region 11
against the Union in Case 11–CB–2035. The filing date is
not given in the record, but that charge apparently was filed
around the end of July. The approximate filing date is ob-
tained by working back 30 days from the date of August 30,
discussed below. The General Counsel’s field instructions for
Regional Offices set a time target of 30 days to reach a Re-
gional Office determination after a charge has been filed.
Casehandling Manual Part One Sec. 10051 at A,2 (June
1989).
As already noted, shortly (apparently) after that charge
was filed, the Regional Director, by letter dated August 6,
notified the parties that he was indefinitely postponing the
August 9 election pending disposition of the charge against
the Union. Region 11 apparently completed its investigation
of the charge in Case 11–CB–2035 and made its determina-
tion about August 30. On that date, Fugate testified,
VAMCO’s attorney (Gary W. Wright, its trial counsel) tele-
phoned and notified him that, absent settlement, Region 11
had decided to issue a ‘‘14-count’’ complaint against the
Union in the case. (3:703, 743–744, 787, 812–813.) Fugate
testified that some 28 to 30 affidavits taken by VAMCO had
been supplied to Region 11 in support of the charge in Case
11–CB–2035, with some of the affidavits describing more
than one incident. (3:787, 794.)
Based on Attorney Wright’s description of the specific
dates of the 14 counts that would be alleged, as purportedly
reported to Attorney Wright by Region 11 on August 30
(3:787, 812–813), Fugate, after consultation with Attorney
Wright and with Robert Parkey, Ken Hughes, and Donald
Patrick (3:743, 816), in the first week of September (Tr.
3:702), made the final decision (3:702, 740, 742–743, 788–
789, 826), while in a telephone discussion with the attorney
(3:793), to discharge Charging Parties Duncan, Birman,
Crusenberry, and Woodard for strike misconduct. The deci-
sion, Fugate testified, was based primarily, even entirely, on
misconduct described in the 28–30 affidavits (only some of
which pertained to the four Charging Parties, 3:748, 795)
supplied to Region 11, as reinforced by the decision of Re-
gion 11 to issue a complaint. (3:703, 743–748, 797, 819,
828, 837.)
Responding to VAMCO’s December 17 request under the
Freedom of Information Act (FOIA), Regional Director
Clark, by letter (R. Exh. 3) dated December 30, disclosed as
follows. In Case 11–CB–2035 Region 11 made its determina-
tion and advised the parties on August 30. Moreover, de-
scription of the incidents found meritorious, the dates, and
names of the individuals involved would not be disclosed
under FOIA exemptions. Finally, if a settlement had not been
obtained, the following allegations (13 dates, not 14) would
have been set forth in a complaint and notice of hearing.
First, the complaint would have included a paragraph alleg-
ing that commencing about June 20 the Union established
and maintained picket lines at VAMCO’s plant and, in the
presence of employees, threatened nonstriking employees, su-
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pervisors, and agents with physical violence on the six dates
of June 26, July 12, 20, 22, and 29, and August 5.
Second, the complaint would have contained a paragraph
alleging that beginning about ‘‘July’’ (June) 20 the Union,
which maintained a picket line at the plant, on the four dates
of July 11, 29, 30, and August 1, and in the presence of em-
ployees, ‘‘threatened to damage the property of persons
doing business with the Employer and of non-striking em-
ployees.’’
Third, the complaint would have alleged that about June
20 the Union, which maintained a picket line at the plant,
‘‘attempted, in the presence of employees, to cause damages
to the property of nonstriking employees and persons doing
business with the Employer,’’ on the three dates of July 19,
and 27 and August 2.
Fugate testified that no itemized list of specific misconduct
incidents, on which the discharge decision was based, was
prepared for each of the Charging Parties. (3:800.) At trial
Fugate relied on his memory from earlier (1991, it seems)
readings of the 28 to 30 affidavits, and, when that memory
was exhausted, from his refreshed memory (refreshed from
inspecting affidavits on the witness stand, over the repeated
objections of the General Counsel and the Union, 3:820–823,
831, 833), to describe specific incidents on which he relied
in deciding to fire former strikers Duncan, Birman,
Crusenberry, and Woodard. Later I address the misconduct
allegations.
Over the signature of Plant Manager Don Patrick,
VAMCO, by letters (G.C. Exhs. 2, 3, 4, and 5) dated Sep-
tember 4, notified Charging Parties Duncan, Birman,
Crusenberry, and Woodard:
This letter is to inform you that, effective September
4, 1991, your employment with VAMCO is terminated
as a result of your misconduct related to the work stop-
page which began on June 20, 1991.
At no point before the trial, neither in the discharge letters
nor later, did VAMCO advise the Charging Parties of any of
the specifics of the misconduct alleged against them.
B. Alleged 8(a)(1) Violations
1. Bernie Noe—June 20, 1991
a. Allegations
The complaint alleges (par. 6; denied) that Bernie Noe, a
tool and die maker, was VAMCO’s statutory agent, and that
VAMCO violated Section 8(a)(1) of the Act on June 20
when Noe (par. 7a, denied), told employees that it was ‘‘fu-
tile for them to cease work concertedly and engage in a
strike,’’ and (par. 7b, denied), threatened employees ‘‘with
discharge if they continued to engage in a strike.’’ Because
I find that the evidence falls short of establishing that Noe,
who did not testify, was VAMCO’s statutory agent, I do not
reach the merits of the allegations. (Were I to reach the mer-
its, I generally would credit the evidence concerning his
statements.)
b. Discussion
There is no evidence that on this occasion VAMCO sent
Noe to speak to the strikers. Parkey testified that Noe came
to him volunteering to, in effect, mediate. (4:939–940, 951–
952, 961, 970.) No evidence contradicts this. The General
Counsel cites testimony that Noe told the employees the
Union could not help him because he is ‘‘management.’’ (Br.
at 29.) Statements of an alleged agent, however, do not con-
stitute evidence of agency status.
The only point which raises a question is the fact that Noe
attends information meetings which Parkey holds about every
other Wednesday (Parkey testified ‘‘bimonthly’’ but the con-
text suggests he means semimonthly, 4:952, 954) with indi-
viduals from different departments. Parkey’s purpose is to
update attendees on the status of orders and to dispel rumors.
There is no evidence that Noe (who works directly under
Patrick, the plant manager) is expected to, or does, convey
this information to other employees. Indeed, as Noe is the
only employee assigned, at least regularly, to the tool and die
area, he normally works alone. Noe attends apparently by
virtue of his key position at the plant and also, perhaps, to
lessen any feeling of isolation he might have.
In any event, as the evidence falls short of demonstrating
that Noe in the past conveys messages to employees from
management, or that VAMCO has placed Noe in the position
where employees could reasonably believe that he speaks for
management, I shall dismiss complaint paragraphs 7(a) and
7(b).
2. Daniel Hurd—June 20, 1991
a. Allegation
Complaint paragraph 7(c) alleges that on June 20 Super-
visor Daniel Hurd (spelling corrected, 4:931–932) threatened
employees ‘‘with disciplinary action if they continued to en-
gage in a strike.’’ Respondent denies. I find merit to the alle-
gation.
b. Early morning—Tim Jones
(1) Facts
Tim Jones works on packing line 1 in building 1 under
Jeff Barber, a supervisor who reports to Daniel Hurd, the
plant superintendent. (2:324–325.) Instead of joining the
group protesting wage rates and working conditions when it
came to the breakroom in building 1 the morning of June 20,
Jones reported for work at packing line 1 after having
clocked in. As he and the other 10 to 12 packers stood there
waiting for Jeff Barber, their supervisor, to come make work
assignments, Plant Superintendent Hurd came by and told
them to ‘‘get to work,’’ that if they ‘‘don’t [get to] work in
3 minutes, hit the time clock.’’ About that time Barber came
up and assigned Jones and the other to packing line 2.
(2:325, 328, 333–334.) Although Jones had never heard ‘‘hit
the clock’’ phrase at VAMCO, he testified that he under-
stands it to mean the person is fired. (2:328–329.)
That morning, Hurd testified, he observed that several em-
ployees, after the 7 a.m. shift had begun, walking around
outside and standing around inside. Ken Hughes had come
to Hurd’s office and told him there was a work stoppage and
for him to see that his employees were at work. (4:900, 911,
921.) Approaching the packing lines, he discovered some
employees working and some simply standing there not
working. He ‘‘politely’’ asked them to get to work or to
1267VIRGINIA MFG. CO.
leave the property. He denies threatening to terminate any of
those at the packing lines. (4:895, 897, 902, 915, 929.)
Hurd explains that company policy (possibly related to
Federal wage-hour regulations) requires employees to be
clocked in during the shift if they are in a work area. Hurd
did not check to see whether the employees were clocked in,
and he did not know if any of these employees were partici-
pating in any walkout. He did not ask why they were not
working because normally everyone starts working at 7 a.m.
On occasions when someone is not working he asks him to
get back to work, but he normally does not ask the person
to leave. (4:911–912, 915–916.)
Employed for nearly 17 years at VAMCO (4:907–908),
Hurd asserts that at VAMCO he has never heard the phrase
‘‘hit the clock’’ and has never said that to anyone. (4:917.)
He has told employees to punch the time clock and to leave
VAMCO’s premises, but this is when he is terminating an
employee and he tells the person he is terminated. (4:903,
916, 929.) Employed at VAMCO for 3 years as of the hear-
ing, Plant Manager Donald Patrick asserts that he has heard
employees use the phrase ‘‘hit the clock’’ but that manage-
ment, which does not use it, instead tells employees to
‘‘clock out’’ and return the next day to discuss matters.
(4:872.)
(2) Discussion
Respecting this largely undisputed incident, I find that it
does not support complaint paragraph 7(c). Jones’s version is
ambiguous as to the consequences, and he in effect concedes
that his understanding of the meaning is merely subjective.
But even if Hurd’s direction to get to work or, in 3 minutes,
hit the timeclock should be interpreted as a threat of dis-
charge, there is no violation because Hurd was not aware of
any concerted, protected activity. To the extent that para-
graph 7(c) depends on this incident, I shall dismiss the alle-
gation.
c. Early morning—Steven Birman
(1) Facts
Steven Birman, one of the charging parties, worked in
Building 1 as a packer under the supervision of Richard Hil-
ton who, as Jeff Barber, reports to Daniel Hurd. (2:239–240,
274.) After clocking in, as usual, about 20 minutes before the
7 a.m. start of the day shift, Birman went to the breakroom.
Several building 4 employees, including Bobby Duncan and
Jim Crusenberry, then arrived from building 4 and began dis-
cussing the demands they planned to present to management.
At the buzzer for the 7 a.m. shift Birman, and apparently the
other building 1 employees, began walking toward their work
stations. (2:244–245.)
Although Birman makes no reference to the presence of
Ken Hughes, Duncan (1:35) and Crusenberry (1:88–89) as-
sert that, while they were discussing the demands with the
building 1 employees, Hughes passed through the breakroom
on his way to another part of the building. It is not clear
whether Hughes understood, or even heard, what the employ-
ees were discussing.
Birman was undecided as he walked toward his work sta-
tion. Passing one of the packing lines, and about halfway to
his work station, Birman met Hurd who asked him if he was
going to work. ‘‘I guess not,’’ Birman answered. ‘‘Not you,
Steve, you’re not in with this.’’ (2:246.) Birman’s testimony
is unclear at that point. He seems to suggest that the two
parted before the next exchange.
In any event, as Birman was preparing to leave he stopped
(whether at Hurd’s office or elsewhere is unclear) to tell
Hurd why he was walking out. To Birman’s question of
whether he had heard any of the demands or complaints of
the group, Hurd answered no. When Birman sought to de-
scribe some, Hurd gave a ‘‘cold shoulder’’ shrug. As Birman
then turned to leave, Hurd grabbed his arm and, turning
Birman around said, ‘‘Steve, it’s your job.’’ When Birman
pulled away, Hurd said he would like for Birman to leave
VAMCO property. Birman left the building and joined the
group as it was walking from building 2 to the side of build-
ing 4 by the paint line. (2:246–247.) Hurd does not address
Birman’s testimony, and VAMCO likewise fails to cover it
on brief. The General Counsel argues (Br. at 26) that Hurd’s
‘‘It’s your job’’ is a threat that VAMCO would fire Birman
if he joined the employees in protesting their working condi-
tions.
(2) Discussion
I would agree with the General Counsel if the evidence es-
tablished that Hurd was aware that the group walkout was
directed at improving wages, hours, or working conditions.
All we know is that Hurd was unaware of the nature of the
employees’ ‘‘demands’’ or ‘‘complaints’’ and that he de-
clined to listen to any explanation. Such complaints could
have been about matters unprotected by the statute. In the
absence of a threshold showing that Hurd was aware the
group protest pertaining to wages, hours, or working condi-
tions, I find that this incident does not support complaint
paragraph 7(c).
d. End of shift—Tim Jones
(1) Facts
About 2 minutes before the 3:30 p.m. end of that June 20
shift, Tim Jones testified, Hurd came and addressed the 10
to 12 employees working at packing line 2. Hurd told them
that anyone not reporting for work the next day would re-
ceive an ‘‘unexcused’’ absence. Such an absence, Jones ex-
plains, results in ‘‘a write-up and after three write-ups you’re
fired.’’ Writeups, Jones acknowledges, are served on an em-
ployee by the supervisor. (2:325–326, 330.) Hurd confirms
the disciplinary consequence, although he states that it is the
fourth unexcused absence that results in termination. (4:902,
916.)
Jones did not report for work the following day, Friday,
June 21, and he joined the strike the following Monday.
(2:329–330.) Jones concedes that after he returned from the
strike he has received no written warning for an unexcused
absence during the strike, and he knows of no striker who
did. (2:331.) He would not know, however, if his attendance
record or that of any other striker had been marked as ‘‘un-
excused’’ for June 21 or any other day of the strike. (2:334–
335.)
Hurd confirms that unexcused absences will result in ter-
mination, but he places the termination as occurring after the
fourth unexcused absence. (4:902, 916.) When Hurd ap-
proached the line about 7:15 to 7:20 a.m. that day to get peo-
ple working, employees James Calton and Jason Colwen
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(4:895–896, 901, 912, 918, 923) asked him what would hap-
pen if they did not cross a picket line and report for work
the next day. According to Hurd, he explained to them that
the normal policy was that if the job was available and there
was no legitimate excuse then the absence would be consid-
ered unexcused, but that he did not know how the situation
would be handled. (4:896, 902, 918, 921.) He testified that
under the circumstances of events he did not know what
VAMCO would do. (4:907, 919.) Hurd generally denies ad-
dressing the packers at the end of the day about absences the
following day. (4:897–898) Hurd testified that no striker was
disciplined for absenteeism or unexcused absences. (4:899.)
VAMCO’s absentee calendars for Charging Parties Dun-
can (G.C. Exh. 16), Crusenberry (G.C. Exh. 9), Birman (G.C.
Exh. 10), and Woodard (G.C. Exh. 15) reveal that the
records for the four were marked ‘‘unexcused’’ from June 20
through August 23 (except for the July 4 plant vacation) with
most entries including the phrase, ‘‘on line.’’ No calendar
was offered for Tim Jones, James Calton, or Jason Colwen.
Charles Fugate, the executive vice president, testified that
VAMCO treated time on the picket line as an excused ab-
sence (3:736), that the ‘‘unexcused’’ is shown as a ‘‘catch
all’’ phrase when the clerk is uncertain how to classify the
absence, and that ‘‘on line,’’ which means the picket line, is
an explanatory reference. (3:740, 811.) Fugate testified that
the ‘‘unexcused’’ in no way figured in the terminations of
the four, and he assumes that the records of all those absent
during the strike show the same ‘‘catch all’’ designation.
(3:810–811.)
(2) Discussion
Crediting Tim Jones rather than Daniel Hurd, I find that
VAMCO, as alleged, threatened employees with disciplinary
action, thereby violating Section 8(a)(1). By shift’s end
VAMCO, and Hurd by extension, was well aware of the pro-
tected nature of the strike. There is no dispute that under
VAMCO’s rules an unexcused absence is one step in the dis-
ciplinary process which eventual, after three or possibly four
such absences, results in discharge. Hurd, in addressing the
employees at shift’s end, offered no explanation that they
would not be charged with an unexcused absence for partici-
pating in a protected strike.
As Hurd’s conversation with Calton and Colwen would,
even if violative, be cumulative, I need not treat that con-
versation. To the extent that Hurd’s version is offered to
show that he would not have made the unqualified statement
Tim Jones attributes to him, I find that he remarked as Jones
testified. Thus, in view of my finding respecting Hurd’s end-
of-shift warning to the packers, I find merit to complaint
paragraph 7(c).
3. Donald Patrick—June 20, 1991
a. Allegation and introduction
Complaint paragraph 7(d) alleges that on June 20 Donald
Patrick, the plant manager, threatened employees ‘‘with ter-
mination because they ceased work concertedly and engaged
in a strike.’’ Respondent denies.
Although there is no similar allegation naming Ken
Hughes, the production manager, testimony was elicited,
without objection, to comments by Hughes similar to those
attributed to Patrick. The General Counsel moved to amend
the complaint to add Hughes to paragraph 7(d) in conformity
with the evidence. Eventually I denied the motion for the
purpose (unsuccessful) of avoiding an extension of the hear-
ing into a second week. Nevertheless, I made clear that the
evidence as to Hughes, while not available to establish an
unfair labor practice, would be considered for any animus his
comments might reflect. (1:223–231; 2:254–255.)
b. Ken Hughes
(1) Facts
Three of the four Charging Parties and former striker
Geoffrey Lewis testified concerning this allegation. Ken
Hughes did not testify. Bobby Duncan testified that while the
protest group was in building 2, Ken Hughes and Jeff Cox
(a building 4 supervisor) arrived and Hughes told Duncan
and the others of the group that they had ‘‘3 minutes to hit
the clock or we was terminated. To get off the property.’’
The group left there and went to the south door of building
4 to solicit support from the painters. (1:37.) (Charging Party
Birman, recall, did not join the group until it had left build-
ing 2. 2:247.)
Jimmy Crusenberry quotes Hughes as telling the protesters
that they had 3 minutes to get to work or they would be ter-
minated and to get off the property. (1:90, 107–108). In his
second pretrial affidavit, dated October 23, Crusenberry
quotes Hughes as telling the group of protesters (R. Exh. 5;
1:105, 107–108): ‘‘ There’s work to be done. You have three
minutes to clock in and get to work or get off Company
property.’’
At the trial Crusenberry was unable to explain why his
October 23 pretrial version omits the phrase about termi-
nation, but Crusenberry assures that he has no doubt the
word was spoken on June 20. (1:122.) He denies that the
‘‘termination’’ came from his own conclusion that he was
terminated when the group was told it had 3 minutes to clock
in or to get off the property. (1:123.)
Randy Woodard testified that Hughes told the protesters
that there was work to be done and that they had so many
minutes to get off the premises or to clock in. ‘‘I can’t, don’t
know exactly how he put it, but he said we would be termi-
nated if we left the premises.’’ (1:185.) Woodard admits
(1:208) that the pretrial affidavit erroneously places the com-
ments of Hughes in the building 1 breakroom, and he con-
cedes (1:209) that his recollection about this is not ‘‘on the
tip of my mind.’’
Geoffrey Lewis, a brake press operator in the crew work-
ing for Jeff Cox in building 4, was one of the protesters who
had assembled in the parking lot before the 7 a.m. shift.
(2:338–339). Lewis testified that when Hughes came into
building 2 he gave the protesters an ultimatum (2:341):
‘‘There is work available for everyone. You have 3 minutes
to punch the time clock or vacate the premises.’’
(2) Discussion
The testimonial quote of Geoffrey Lewis, mirrored in
Crusenberry’s second pretrial affidavit, having a more natural
word order, and Duncan, Crusenberry, and Woodard being
unpersuasive as to Hughes, I find that Hughes, speaking as
Lewis describes, made no reference to ‘‘termination.’’
1269VIRGINIA MFG. CO.
c. Donald Patrick
(1) Facts
Donald Patrick testified that on June 20 he arrived late, a
few minutes after 7 a.m., and observed a group of 10–20 em-
ployees walking toward the back of building 4. Patrick met
Ken Hughes who informed him the group wanted to talk
about wages and other matters, that he had told them he
would not talk to them as a group, and that he had told them
to leave or clock in but that they would not clock in. Patrick
entered building 4 and proceeded to the south door where he
met the strikers and asked them what was going on. (4:848–
850, 853–854.)
After several of the group mentioned some of their de-
mands, and Patrick’s saying he would talk with them individ-
ually if they returned, but would not talk with them as a
group, Patrick (4:850, 869–871) told them to clock in and go
to work or leave the premises or, as with the Ken Hughes
issue, he additionally may have gold them that they were ter-
minated. Duncan cites the terminated language (1:38, 76),
but omits it during cross-examination (1:61, 83–84.)
Crusenberry (1:91, 109) includes the ‘‘terminated’’ but, as
earlier noted respecting Hughes, omitted (1:109–110) it from
his second pretrial affidavit and has no explanation for doing
so. (1:122.)
At the trial Randy Woodard initially (1:186–187) and a
second time (1:200) omits the ‘‘terminated,’’ then recalls that
‘‘one of them’’ (Patrick or Hughes) added that ‘‘you will be
terminated.’’ ‘‘I don’t know how they phrased that. I can’t—
they phrased it in a way, but I took it that we was fired.’’
It was Patrick, Woodard then testified, who said it. Now re-
calling exactly, Woodard testified that Patrick said that they
had ‘‘3 minutes to clock in or get off the property, that we
would be terminated.’’ (1:202.) As noted earlier, Woodard
concedes (1:209) that his recollection on this does not flash
from his memory with the brilliance and focus of a laser
beam. On redirect examination by the Union, and after being
further refreshed by his third pretrial affidavit, Woodard con-
firms (1:217–218) that Patrick told the protesters to clock in
and if they did not they had ‘‘3 minutes to get off the prop-
erty, that we were fired.’’
Geoffrey Lewis describes the incident as concluding with
Patrick’s saying ‘‘basically the same thing that Mr. Hughes
had said up in the other building.’’ Asked what that was,
Lewis testified, ‘‘That we had 3 minutes to clock in or va-
cate the premises.’’ (2:343.)
Patrick denies telling the strikers that they were termi-
nated. (4:850–851, 879–880.) Patrick acknowledges that later
some employees asked him whether the strikers had been
fired and that he said he did not know. (4:864–865.) Pat-
rick’s expansion of that in the next answers rambles, ranging
from a definite ‘‘I knew that they were not fired’’ to several
mushy options such as not knowing if they could be fired,
did not think they could be, it was out of his hands, he
would shrug his shoulders, and ‘‘I would say I don’t know
what’s going to happen.’’ The first and last of these, I find,
is what he responded when asked by employees. That is, he
told them he did not know and did not know what was going
to happen. (4:865.)
(2) Discussion
As with the Ken Hughes question, the wording offered by
most of the General Counsel’s witnesses seems less natural
than that given by striker Geoffrey Lewis (as mirrored by
Crusenberry’s pretrial version), Woodard’s initial trial
version, plus Plant Manager Patrick’s account. Accepting
that, and Patrick’s denial that he told the employees they
were terminated, I shall dismiss complaint paragraph 7(d).
4. Thomas Pennington—June 2, 1991
a. Allegation and facts
Complaint paragraph 7(e) alleges that on June 23, at
VAMCO’s Pennington Gap facility, Thomas Pennington, a
supervisor, threatened ‘‘employees with plant closure if they
engaged in union activities.’’ Respondent denies.
Jimmy Crusenberry and Union Representative Roger Tom-
linson testified in support of this allegation. Thomas Pen-
nington, who testified in opposition, supervises the wood ma-
chinery department in building 1. (4:889–890.) There is no
dispute that on June 23 Crusenberry, Tomlinson, and several
of VAMCO’s employees, including Anthony von Von
Burgin, were standing or sitting outside the St. Charles, Vir-
ginia railroad station (contrary to the situs alleged), a local
gathering spot about 7 miles from VAMCO’s plant (4:883),
when Pennington drove up.
Actually, the manner of Pennington’s appearance is dis-
puted. According to Crusenberry, Pennington just ap-
proached, and not in response to anyone in the group hol-
lering for him to stop as he drove by. (1:96, 110–111.)
Crusenberry suggests that Pennington first began a conversa-
tion with Tomlinson and that he paid little attention until he
heard the Union mentioned. (1:111–112.) That is when he
heard Pennington say, ‘‘If you form a union, or try to, we’ll
shut the doors; there will be no union in VAMCO’’ (1:96)
or (1:111) ‘‘If you try to put a union in, VAMCO will shut
the doors.’’
According to Tomlinson, Pennington drove by, made a U-
turn, and came back to the group. One of the employees said
hello, but Pennington, who appeared to be in a bad mood,
asked what they were doing. One of the employees said they
were discussing the organizing campaign and the strike. Pen-
nington then said, ‘‘We’ll shut the plant down if a union is
voted in.’’ (2:432, 450–451.) The conversation quickly ended
and, Tomlinson testified, the employee group left Pen-
nington. (2:451.) Other than Anthony Von Burgin, none of
the other employees there on the occasion was called by the
General Counsel, and Von Burgin, although called as a wit-
ness about another allegation, was not asked about this inci-
dent. (Counsel for the General Counsel, at 2:305, did ask
Von Burgin what occurred on June 23, but when Von Burgin
could not answer (recorded as ‘‘No audible response’’),
counsel withdrew her question.)
Pennington, who lives in St. Charles, testified that the
group hollered and flagged him down as he passed by, that
he turned back and even as he was getting out of his vehicle
Tomlinson and Keith Crusenberry approached him and began
asking him to join the strike. Pennington replied that he
could not. Tomlinson said VAMCO was making millions of
dollars and that some of the owners had cleared $150,000 the
previous year. Pennington said he doubted that, because he
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sees what comes in and goes out, but if they had proof
VAMCO was making millions then he would consider walk-
ing himself. Tomlinson said union companies in sheet metal
were paying $8 to $10 an hour.
Pennington said he was a supervisor and probably could
not vote anyway. Tomlinson (who did most of the talking
rather than Keith Crusenberry or any other employee) said
that even if Pennington could not vote he could talk to his
employees. ‘‘No,’’ Pennington replied, he could not do that
either because if he had a vote he would vote for VAMCO.
‘‘In my opinion,’’ Pennington offered, ‘‘if the Union does
come in, they [VAMCO] would shut the doors,’’ adding that
the Company had said nothing about it to him. Tomlinson
stated that all companies say that, but VAMCO could not
shut the doors because it had government contracts to fulfill.
Pennington answered, ‘‘Yes they could.’’ Pennington re-
peated that he could not vote in any event, and the conversa-
tion ended with everyone leaving. (4:883–892.) Pennington
denies that anyone in management has ever told him
VAMCO would shut down nor even told him what the Com-
pany’s position would be on this. (4:892.)
b. Discussion
Testifying with far more details than the Government’s
witnesses, Pennington gave a version which sounds natural
and persuasive. In crediting Pennington over J. Crusenberry
and Roger Tomlinson, I have considered the fact, as stipu-
lated by the parties (4:891–892; 5:982–984 and 1094–1095),
that within the last 10 years Pennington sustained a felony
conviction.
VAMCO argues (Br. at 87) that Pennington’s expression
of opinion, made to the Union’s representative in the pres-
ence of open and strongly committed (strikers) supporters of
the Union, was not violative of the Act. VAMCO concedes
that in different settings the statement could be considered an
unlawful threat, but here the expression, VAMCO observes,
was an isolated incident, spoken in a debate with the Union’s
field representative, away from the plant, in a conversation
initiated by the Union’s representative and another employee
and in which Pennington made clear that he was speaking
only for himself. The General Counsel argues (Br. at 29) that
VAMCO is responsible for Pennington’s statement because
the employees, aware of Pennington’s supervisory status, had
just cause to believe he was acting on VAMCO’s behalf.
In the usual case plant closing predictions or threats are
made by employer officials in captive audience meetings, or
at least in the management/worker context in a plant setting,
and frequently are part of a pattern of such conduct. Here,
none of the usual circumstances prevailed. Outnumbered
about 5 to 1 by open and strong supporters of the Union,
plus the Union’s organizer, Pennington’s expression of opin-
ion was given in the context of, in effect, a debate with the
Union’s organizer in which Pennington clearly states that his
expression was his own opinion. In the unusual cir-
cumstances of this incident, I find that Supervisor Thomas
Pennington’s expression of opinion would not reasonably
have tended to threaten or coerce employees who may have
overheard his statement. Accordingly, I shall dismiss com-
plaint paragraph 7(e).
5. Robert J. Parkey—August 26, 1991
a. Allegations and facts
Two paragraphs of the complaint allege that Robert J.
Parkey, VAMCO’s president, threatened employees on Au-
gust 26 because of their union activities. Paragraph 7(f) al-
leges a threat of ‘‘unspecified reprisals’’ and paragraph 7(g)
alleges a threat of discharge. Respondent denies. Striker An-
thony Von Burgin testified in support, and Parkey testified
in opposition.
Employed at VAMCO since December 4, 1990 (2:288,
306), Von Burgin joined the picket line the first day and he
thereafter served on the picket line every day of the strike.
(2:292, 295.) He was elected and served as a spokesperson
for the strikers with the media. He was interviewed by re-
porters from television and newspapers and his statements
were reported. (2:310–311.) In response to a letter recalling
him after the strike, Von Burgin returned to work on August
19. (2:302, 308.) He was among the first half of the strikers
recalled. (2:312.)
Before the strike Von Burgin worked the second shift.
(2:289, 322.) After his recall, Von Burgin was assigned to
the day shift welding ammunition boxes in building 4.
(2:302, 305, 309.) On Monday, August 26, a week after his
return to work, Von Burgin was at his station welding, when,
both agree, Parkey approached and engaged Von Burgin in
conversation. (2:303; 4:934.) Both witnesses also agree that,
because of the noise in the area (an employee near Von
Burgin was operating a grinder) they stepped outside for
most of their conversation. Their versions differ about the
content.
Before summarizing the versions, I note Parkey’s testi-
mony that he tries to walk through the plant at least once
a day and talk to employees about work and families.
(4:941–942.) Although Parkey balks at saying he has made
a special effort to do so since the strike, he acknowledges
that he has spoken with as many of the returned strikers as
he could. (4:943.) This is the first occasion Parkey ever
stopped to speak with Von Burgin (2:320); but, before the
strike Von Burgin worked the second shift ‘‘back in a small
corner.’’ (2:322.) On most of Parkey’s visits after the strike,
Von Burgin asserts, Parkey stands and watches employees,
speaking only with certain ones. (2:322.)
Parkey specifically remembers Von Burgin from the days
of picketing because, Parkey testified without contradiction,
Von Burgin displayed aggressive hostility by yelling obsceni-
ties and gesturing at him the majority of times that Parkey
passed the pickets. This did not upset him, Parkey asserts,
but he was shocked by the hostility of the strikers because
he could not understand what had precipitated the passion
which they displayed. (4:943, 957, 959–960.)
Von Burgin testified that Parkey ‘‘came over talking about
the Union. He didn’t understand why we’d walked out. He
made a statement saying that as soon as his [ammunition
box] contract is up that I would be gotten rid of. That I
would never work in this county again.’’ At that point they
stepped outside because ‘‘We was practically hollering be-
cause of the noise’’ (2:303–304, 309), although later he as-
serts that it was Parkey who had trouble hearing. (2:318.)
Once outside Parkey began asking about any problems
with VAMCO, and Von Burgin asked about a safety com-
mittee, gloves, pay rates, and about his own possible pay
1271VIRGINIA MFG. CO.
raise. Parkey suggested that they arrange a date for Von
Burgin to talk ‘‘one on one’’ after work in Parkey’s office.
Von Burgin said that would be ‘‘no problem.’’ (2:304, 317–
319.) Although such a meeting was scheduled, Von Burgin
had to cancel and no second meeting was ever scheduled.
(2:319.) Von Burgin concedes that after the ammunition con-
tract was completed in October, to his surprise, he was trans-
ferred to the sheet metal department, that, although some em-
ployees went to the second shift, no one was laid off when
the ammo box contract was completed, and that he currently
is employed on the day shift as a packer in building 1.
(2:288, 310.) Parkey confirms this testimony of no layoffs
and that Von Burgin remains employed. (4:935, 956.) Parkey
denies the threats Von Burgin attributes to him. (4:936, 937.)
Parkey suggests that the conversation moved almost imme-
diately from Von Burgin’s work station to the spot outside
where the conversation ‘‘got started’’ by Parkey asking how
he was doing and other small talk. Von Burgin said he had
heard he would be laid off when the ammo box contract was
completed. Parkey said there are rumors, just as in the mili-
tary, that there was a backlog of work because of the strike,
and he believed that at completion of the ammo box contract
the employees working on it would be absorbed into other
areas of the facility. Von Burgin expressed other concerns
and Parkey suggested that they meet later at a convenient
time to discuss those concerns and (4:936) ‘‘why they’d sub-
mitted to the employees.’’ (4:935–936, 946–947, 955–956.)
Parkey acknowledges that he had seen the list of griev-
ances, which had been submitted to him on June 20, and that
he thus was familiar, on August 26, with the complaints em-
ployees had. (4:962.) Parkey viewed this occasion with Von
Burgin as an opportunity to bridge possible hard feelings,
and because of that he suggested that they talk more later.
(4:955.) Parkey concedes that he does not think the employ-
ees chose the right way to air their grievances, and he admits
telling Von Burgin that there is a right way and a wrong way
to do things and that he thought the employees had chosen
the wrong way to be heard. (4:944.)
Although he did not tell Von Burgin the employees had
no reason to walk out, Parkey thinks they should not have
done so without first attempting ‘‘some communication.’’
After having seen the list of demands, Parkey asserts ‘‘it’s
very true I do not think they had a valid reason to go out.’’
Most of the strikers had not been there long, some a month,
2 weeks, even 2 days. ‘‘So, no, I don’t believe that they had
a right to go out there.’’ (4:944, 962–963.)
b. Discussion
Despite the differences in the versions, two matters are
clear. First, Parkey had a possible personal motive for the
threats Von Burgin attributes to him, for during most days
of the strike Von Burgin, with accompanying gestures, had
yelled obscenities at Parkey as he passed the pickets. Pre-
sumably the gestures, in keeping with the obscenities, were
likewise obscene. Offsetting this, at least to some degree, are
the admitted facts that Parkey (1) offered to meet with Von
Burgin to discuss his concerns and, apparently, to obtain a
better understanding of the concerns of employees generally,
and (2) neither Von Burgin nor anyone else was laid off
when the ammo box contract was completed.
Of course, the mirror image of Parkey’s possible personal
motive is Von Burgin’s possible personal animus (obsceni-
ties, gestures) against Parkey. If Parkey’s possible motive
would lead him to threaten Von Burgin, would Von Burgin’s
personal animosity toward Parkey prompt him to lie about
Parkey? Consideration of that possibility must take into ac-
count that any current employee of a respondent employer
ordinarily, from self interest, would be reluctant to testify
falsely against his employer.
Aside from Von Burgin’s possible motive of personal ani-
mus, the second clear fact is the lack of logic in Von
Burgin’s account. According to Von Burgin, Parkey, at Von
Burgin’s work station, began by expressing his lack of un-
derstanding why the employees had walked out and then,
hollering over the noise for all the world to hear, threatened
to lay Von Burgin off at the end of the ammo box contract
and to blacklist him everywhere in the county. If Parkey had
made these threats, why would he then suggest stepping out-
side for a quiet conversation, a conversation in which he
consulted Von Burgin about any problems at VAMCO, lis-
tened to Von Burgin list some concerns, including Von
Burgin’s own pay, and then suggest that the two of them
meet at a convenient time to continue their discussion?
Von Burgin’s account lacks plausibility, and I do not be-
lieve him. Except for the threats, and some of the sequence,
most of what Von Burgin describes fits well into Parkey’s
description. Parkey’s account is plausible, and I find that he
did not succumb to any temptation, which could have ema-
nated from a possible personal resentment at Von Burgin, to
threaten Von Burgin. Accordingly, I shall dismiss complaint
paragraphs 7(f) and (g).
C. The Discharges for Alleged Strike Misconduct
1. Governing law
In all cases involving either the discharge of or refusal to
reinstate strikers for having engaged in alleged acts of strike
misconduct, ‘‘the burden of proving discrimination is that of
the General Counsel.’’ Rubin Bros. Footwear, 99 NLRB 610,
611 (1952). But action taken against participants of a pro-
tected strike is inherently destructive of Section 7 rights.
NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). Accord-
ingly, the General Counsel’s threshold burden is to establish
(1) that a worker was, in fact, a striker and (2) that his em-
ployer took some action against him for conduct associated
with the strike. Laredo Coca Cola Bottling Co., 258 NLRB
491, 496 (1981).
The General Counsel discharges the Government’s two-
factor threshold burden (establishes a prima facie case) by
demonstrating (frequently by stipulation and then resting) the
following: (1) that a discharged, or unreinstated, employee
had been a striker and (2) that the employer had discharged,
or failed to reinstate, the worker on the basis the employee
had engaged in strike misconduct. General Telephone Co.,
251 NLRB 737, 739 fn. 18 (1980), enfd. mem. 672 F.2d 895
(D.C. Cir. 1981) (General Counsel obtained stipulation of
threshold facts for prima facie case and then rested, held suf-
ficient).
When the General Counsel has established the Govern-
ment’s prima facie case, the burden shifts to the respondent
employer to show it had an honest belief that the employee
disciplined was guilty of strike misconduct of a serious na-
ture. NLRB v. Champ Corp., 933 F.2d 688, 700 (9th Cir.
1991); Gem Urethane Corp., 284 NLRB 1349, 1352 (1987);
1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Telephone, supra at 738. Serious misconduct which
disqualifies a striker from reinstatement, or permits his dis-
charge, is that which meets the test adopted by the Board in
Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984):
[W]hether the misconduct is such that, under the cir-
cumstances existing, it may reasonably tend to coerce
or intimidate employees in the exercise of rights pro-
tected under the Act.
And misconduct aimed at managers or other nonemployees
may also be grounds for denying reinstatement. General
Chemical Corp., 290 NLRB 76, 82 (1988); Aztec Bus Lines,
289 NLRB 1021, 1027 (1988); Clear Pine Mouldings, supra
at 1046 fn. 14, 1048. However, it is not clear from the cases
whether misconduct against someone such as a manager or
other nonemployee must occur in the presence of employees
to be available as a basis for disqualification, whether em-
ployee presence is satisfied from the presence of the accused
striker, or whether it is assumed that knowledge of the event
will be disseminated among employees. Clearly a lone striker
cannot escape discipline simply because no other employee
observes him club a manager or firebomb the employer’s
plant (where a security camera captures the misconduct on
videotape).
The employer’s honest belief burden is not satisfied by
generalities, and meeting that burden ‘‘requires some speci-
ficity in the record, linking particular employees to particular
allegations of misconduct.’’ General Telephone, supra at 739.
The employer ‘‘must produce evidence connecting the dis-
charged employees to specific misconduct.’’ Columbia Port-
land Cement Co. v. NLRB, 915 F.2d 253, 257 (6th Cir.
1990). However, the employer’s burden does not extend to
proving that the striker did engage in the misconduct, nor
does it require that the linkage be concrete or conclusive.
Axelson, 285 NLRB 862, 864 (1987). Moreover, the employ-
er’s honest belief may be based on reports from its security
guards or on written reports from others. Clougherty Packing
Co., 292 NLRB 1139, 1142 (1989). General Telephone,
supra at 739.
Once the employer demonstrates its honest belief, the bur-
den shifts back to the General Counsel to prove the dis-
charged striker’s innocence. Champ Corp., 291 NLRB 803,
806 (1988), enfd. 933 F.2d 688, 700 (9th Cir. 1991); Laredo
Coca Cola Bottling Co., supra at 496; Rubin Bros. Footwear,
supra at 611. The employer then may offer evidence rebut-
ting the Government’s innocence evidence. Laredo Coca
Cola; Rubin Bros. Footwear. If the General Counsel does not
adduce a preponderance of the credible evidence, the Gov-
ernment loses because at all times it has the overall burden
of proving discrimination. Champ Corp., supra at 806, 807
fn. 13; Axelson, supra at 864; Gem Urethane, supra at 1352;
Rubin Bros. Footwear, id. If it is found that the striker did
not engage in the misconduct alleged, he or she may not
lawfully be discharged regardless of the employer’s good
faith. NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964);
NLRB v. Champ Corp., 933 F.2d 688, 700 (9th Cir. 1991).
Even if the General Counsel fails to prove the discharged
striker innocent of the misconduct relied on, in good faith,
by the employer, the Government still may prevail if the
General Counsel demonstrates that the employer applied a
double standard to employees respecting incidents of mis-
conduct. That is, the employer ‘‘may not knowingly tolerate
behavior by nonstrikers or replacements that is at least as se-
rious as, or more serious than, conduct of strikers that the
employer is relying on to deny reinstatement to jobs.’’
Chesapeake Plywood, 294 NLRB 201, 204 (1989), modified
917 F.2d 22 (4th Cir. 1990); Champ Corp., supra at 806;
Aztec Bus, supra at 1027. In our case the General Counsel
does not contend that VAMCO treated strikers and non-
strikers disparately.
There remains a final avenue by which an employee who
has engaged in serious strike misconduct may reach reinstate-
ment notwithstanding an attempted discharge or refusal to re-
instate. This avenue is the doctrine of condonation which
recognizes that the employer may elect to waive its right to
discipline the employee for his serious strike misconduct. Id.
at 1065. Condonation of unprotected activity will not be
readily inferred, but must be based on clear, convincing, and
positive evidence that the employer has agreed to forgive
such misconduct and desires to continue the employer-em-
ployee relationship as though no misconduct had occurred.
The Board does not look for any magic words suggesting the
forgiveness, but it examines whether all the circumstances
establish clearly and convincingly that the employer has
agreed to ‘‘wipe the slate clean’’ respecting any employee
misconduct. White Oak Coal Co., 295 NLRB 567, 570
(1989); Fibreboard Corp., 283 NLRB 1093, 1097–1098
(1987).
Reinstating some of the strikers does not condone the seri-
ous misconduct of others. Longview Furniture Co., 100
NLRB 301, 306 (1952). But offering reinstatement to the ac-
cused strikers, after the alleged misconduct and before the re-
fusal to recall, condones the alleged misconduct. White Oak
Coal. supra at 570–571. Even where reinstatement is not of-
fered after the alleged misconduct, if the employer testifies
at trial that it would have offered reinstatement had the strik-
er been qualified for the job opening, then the employer
thereby admits condonation of the alleged misconduct. Id. at
571 (Tony Deel).
In our case there is no dispute that the Government estab-
lished a prima facie case. Although the General Counsel, in
the Government’s prima facie case, also undertook the proce-
durally unnecessary task of seeking to establish that the pick-
et line was peaceful (2:258, 260), thereby opening the door
for cross-examination on practically anything showing seri-
ous misconduct, it is clear (1) that the four Charging Parties
participated in the strike and (2) that VAMCO, by its Sep-
tember 4, 1991 letters discharging each of the four, fired
them expressly for ‘‘your misconduct related to the work
stoppage which began on June 20, 1991.’’ I now turn to
VAMCO’s defense, its evidence of an honest belief.
2. Vamco’s honest belief
a. Introduction
As I described earlier, Executive Vice President Charles
Fugate, the person who made the final decision to discharge
the four Charging Parties, had no itemized list of misconduct
incidents for each Charging Party. That is, no list of items
was extracted and compiled from the affidavits either at the
time of decision or later. Thus, Fugate’s testimony is, under-
standably, a largely confused effort to recall events from
memory from his past reading of the 28–30 affidavits, as
1273VIRGINIA MFG. CO.
eventually aided (over the repeated objections of the General
Counsel and the Union) by leading questions and refreshing
his exhausted memory from reading certain affidavits.
In Fugate’s direct examination there is no testimonial link-
age of his early September discharge decision to any specific
misconduct attributed to Bobby Duncan or Randy Woodard,
although he does describe specific incidents respecting Ste-
ven Birman on July 30 and Jimmy Crusenberry on August
2. As given by Fugate eventually, including the supporting
testimony, the specific incidents linked to the discharge deci-
sion for each of the four individual Charging Parties are as
follows. Without summarizing the General Counsel’s rebuttal
evidence or resolving credibility, I briefly mention the testi-
mony of the accused strikers.
b. Bobby Duncan
Fugate testified that he fired Bobby Duncan because he
threatened to burn the house of Jeff Cox and the business,
Dryden Grocery, of his mother. Duncan also ‘‘harassed’’
Paul Bishop (John Paul Bishop Jr.) and three other employ-
ees and threatened to burn their homes. (3:748–749, 798–
799, 806, 835–836.) Later Fugate, after refreshing his mem-
ory from Cox’s July 11 affidavit (R. Exh. 10), attributes the
same, or similar, houseburning threat against Cox to Randy
Woodard. (3:829–831.)
Moreover, Duncan, with Woodard and Brian Marsee,
threatened to physically harm Bishop and they hit and dented
his truck. (3:832–833.) Fugate also lists, by general ref-
erence, club-swinging by Duncan because of ‘‘discussions’’
Fugate recalls. The club-swinging was a factor in the deci-
sion to fire Duncan ‘‘If it was included in those affidavits,
yes.’’ (3:799.) The record does not disclose whether any of
the affidavits which VAMCO collected describe Duncan par-
ticipating in a club-swinging incident. Accordingly, I shall
not address that as it is only a potential allegation not linked
to any affidavit, witness, or any written report. Indeed, it is
not linked to anything other than ‘‘discussions.’’ That feeble
support is legally insufficient.
Jeffery Cox, a production supervisor since July 1990
(3:512, 527–528), testified that it was Randy Woodard (not
Duncan) who uttered the house/grocery-burning threat on
July 11 to Cox who was talking with maintenance employee
Pete Carroll. (3:496–497, 514, 523, 530.)
John Paul Bishop Jr., who had enlisted in the U.S. Marine
Corps (but not yet left for training) as of the trial, drove a
fork lift and did setups at VAMCO during the relevant time.
(3:547.) Bishop testified that he knows Bobby Duncan, that
he had worked directly with him four or five times, and that
Duncan knows Bishop’s family. (3:554, 578–579.)
On July 12, Bishop testified, Bishop and employees John
Burgin, Ted Garrett, and Larry Reynolds had just finished
their lunch, outside, near the southwest corner of building 4.
As Bishop and the others turned the corner to walk toward
a door on the south side of building 4, strikers Duncan,
Randy Woodard, and Keith Crusenberry, who were standing
20 to 25 feet away at the sign alerting the public to the end
of state maintenance on Industrial Drive, began hollering
‘‘scab’’ and obscenities in accusing them of taking the strik-
ers’ jobs. When Bishop heard ‘‘I know where you live,’’ he
turned around and saw Duncan pointing at him saying, ‘‘Yes,
you.’’
Pointing to himself, Bishop said ‘‘Me?’’ Duncan replied,
‘‘Yes, you Paul. You, f—k you. I know where you live. I’ll
get you. I’ll get you.’’ Bishop reported this to Jeff Cox (the
supervisor, apparently) who told him to report the incident
to Fugate, Parkey, and Attorney Wright. Bishop gave a state-
ment to management either that day or later. He did not re-
port the incident to the police. (3:544–559, 574–576). Con-
trary to Fugate’s description, Bishop does not attribute any
house-burning threat to Duncan. None of Bishop’s three
lunch companions testified.
Respecting the physical harm threat and truck-hitting inci-
dent, Bishop describes an incident on June 26 involving
Brian Marsee and Randy Woodard, but he does not name
Duncan as part of the event. (3:551, 572.)
In short, VAMCO’s evidence links Fugate’s discharge de-
cision to a single incident of misconduct attributed to Bobby
Duncan—Duncan’s shouted (from about 25 feet or so) threat
on July 12 to Paul Bishop, ‘‘I know where you live. I’ll get
you. I’ll get you.’’ Duncan denies. (5:1055–1056, 1060.)
c. Steve Birman
Fugate describes two incidents as the reasons he decided
to fire Steven Birman. The first occurred on July 30 when
Fugate personally observed Birman toss jackrocks under a
truck semitrailer of Triad Packaging as the Triad vehicle left
VAMCO’s premises after a delivery. The second incident oc-
curred August 5 and is based on a report by VAMCO’s local
truckdriver, Chester Langley, involving jackrocks and
Birman.
Jackrocks were displayed at the hearing. A jackrock typi-
cally is a device formed by crossing, twisting, and soldering
two large nails, with sharp points at each end, in a manner
that the now four-pronged jack will settle with a sharp spike
projecting up no matter how it is tossed or lands. Virginia’s
Criminal Code, sec. 18.2–147.2 (R. Exh. 1), outlaws even the
mere possession of jackrocks because they ‘‘are primarily
designed for the purpose of disabling motor vehicles by the
puncturing of tires.’’ Fugate describes (3:714–715) jackrocks
seen in this case as having four legs or spikes about 2 to 2.5
inches long.
Respecting the July 30 incident, Fugate testified that the
Triad driver arrived complaining of a threat on his way in
and asking that the police be called to escort him out. Fugate
did not call the police but he did have Kevin Pierce, an in-
ventory clerk (3:708, 757), follow the big Triad semi out
while Fugate observed from a conference room window near
the southwest corner of building 4. (Building 4, recall, is the
closest of the buildings to the picketing situs.) (3:696–698,
704–708.)
Fugate’s vantage point was about 200 feet from where
Birman was stationed with the strikers between points E and
D on Joint Exhibits 1 and 4. (3:715–717.) (Fugate testified
that nothing obstructed his view 3:718–719. The conference
room window through which Fugate was observing sits about
35 feet or so (as figures on J. Exh. 4 suggest) from the edge
of Industrial Drive. Thus, the angle for Fugate’s line of sight
was from Birman’s right rear to right side, and Birman was
leaning back against a Blazer vehicle. Tr. 3:723. The angle
of sight, in other words, is a factor to be considered in addi-
tion to the distance.)
According to Fugate, as the Triad semi passed by on its
way out, Birman tossed jackrocks in front of the tractor’s
1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rear tandem axles. (Tr. 3:699–700, 724 and 751.) Fugate tes-
tified that Union Representative Barry Mark Hall, standing
by Birman, laughed. (3:699, 719, 723 and 808.) Hall did not
testify. The Triad semi did not stop. Fugate does not know
if Triad reported any damage, but assumes there was no
damage because a young girl retrieved two jackrocks and
gave them to Birman after the two vehicles passed. (3:700,
719, 724–725.) Fugate did not notice (3:724) whether
VAMCO’s trailing pickup, driven by Kevin Pierce, swerved
to miss anything in the road, but it did not get a flat. (3:724.)
Fugate did not report the matter to the police. (3:727, 762.)
Fugate testified that Birman’s tossing the jackrocks under
the Triad semi was a major factor in his decision to fire him.
(3:817, 821.) Kevin Pierce, the driver of VAMCO’s pickup
which followed the Triad semi, presumably was following in
a manner to see and be seen by the strikers. Clearly Pierce
was in a much better position than Fugate to observe any in-
cident. Pierce did not testify. Cases such as this frequently
have witnesses who made videotape of incidents. If VAMCO
videotaped any incidents, or otherwise captured any incidents
on camera or motion pictures, no such evidence was offered.
Indeed, other than the aerial photograph of the area, there is
no evidence that VAMCO sought to make use of cameras,
motion pictures, or videotape. And even though there is testi-
mony that strikers frequently brandished clubs (apparently
big sticks of lumber some of the strikers admittedly had for
whittling to pass the time), there is not so much as a single
still photograph of strikers holding the sticks in the fashion
of a club or even as a baseball bat.
Chester Langley drives a truck locally for VAMCO,
around the premises, to a warehouse off the premises, and
to a landfill. He knows Steve Birman. (3:614.) As Langley
returned from the landfill and warehouse on August 5, about
10 to 14 pickets were stationed on Langley’s right, or pas-
senger side, as he approached VAMCO’s entrance. (3:615,
634.) Langley saw jackrocks spread across Industrial Drive
opposite where the strikers were standing. Langley swerved
to the left attempting to miss the jackrocks. As he passed on,
Langley looked in his mirror and saw Birman run out into
the road, appear to pick up objects, and return to the group
of strikers. (3:616, 634.) After arriving at the plant, Langley
checked his tires and found a jackrock embedded in one. He
called over Ron McCoy, his supervisor, who took the
jackrock. (3:614–618.) The tire, one about midway on the
right side (3:630), was punctured but still holding air because
of the jackrock’s presence. (3:635.)
Langley knows Birman by sight, not by name. McCoy
identified Birman’s name for Langley at the scene that day.
(3:625–626.) (At the hearing Langley identified Birman as
the person he saw. 3:635.) Langley concedes that he only as-
sumes that Birman picked up the jackrocks when he ran out
because he really could not see. (3:626–627.) Langley also
admits that he did not feel it when his tire picked up the
jackrock because the truck is very loud. However, he
checked the 10 tires before leaving from the warehouse. He
never saw Birman throw anything. (3:627–631.) Langley
nevertheless believes that he picked up the jackrock from
those in the road in front of the strikers, and he believes that
Birman went out after the truck passed and picked up
jackrocks. (3:636.) Langley reported the incident to manage-
ment. (3:636.)
Fugate did not describe the Langley incident until his redi-
rect examination when he was asked about Langley. Recall-
ing that Langley had a jackrock incident and a jackrock
being pulled from a tire, Fugate could not recall which strik-
er the incident was linked to until shown Langley’s affidavit
(R. Exh. 9) of August 5. (3:826–828.) Fugate then testified
‘‘this incident’’ played a ‘‘vital role’’ in his final determina-
tion to discharge Steve Birman. ‘‘All the actions that were
set forth in those affidavits that listed those illegal activities,
played a vital role. They were the entire basis for the deci-
sion to discharge those people.’’ (3:828.) Birman denies both
incidents. (5:987–989.)
d. Jimmy Crusenberry
Fugate describes two incidents as the basis for Jimmy
Crusenberry’s discharge. Actually, Fugate described only an
August 2 incident on direct examination (3:695–697), and
not until cross-examination did he vaguely mention (giving
no date) a second event which he described as Crusenberry’s
handling jackrocks in the presence of Sam Church, the
Union’s International representative. (3:752.) When the
Union inquired about the topic counsel referred to August
30, and Fugate neither confirmed nor corrected the date.
(3:806–807.) On redirect examination, counsel asked if the
second incident occurred on July 29, and Fugate said
‘‘That’s right.’’ (3:821.) According to Fugate, the July 29
and August 2 incidents had a ‘‘major role’’ in the decision
to fire Crusenberry. (3:751–752, 821, and 837.)
As July 29 occurs first, I shall address that event first.
Fugate eventually asserts that, on this occasion, Sam Church
and Crusenberry were at the picket situs at a folding table
having a discussion while ‘‘going through some green-barred
computer paper.’’ During that process, Crusenberry ‘‘was
handling jackrocks.’’ Fugate understands that mere posses-
sion of jackrocks is against Virginia law. For ‘‘several rea-
sons’’ Fugate did not call the police or file a charge so a
warrant would issue. (3:806–808.)
No evidence was offered that Fugate recorded any of this
on videotape or even on a camera with a telephoto lens. Al-
though Fugate does not give the diagram (J. Exh. 4) or photo
(Jt. Exh. 1) location of Church and Crusenberry, presumably
they were situated at the general picket situs just north of
point D, or about 75 to 80 yards (225 to 240 feet) from
Fugate’s window viewpoint.
Actually it is not necessary to presume, for Sam Church
confirms his presence there with some voter registration
printouts about late July that Crusenberry helped him with.
(5:1079–1081.) Church emphatically denies there were any
jackrocks in his presence (5:1082), and Crusenberry also de-
nies handling jackrocks on that occasion or ever having
jackrocks other than what was found one morning (under
strikers’ vehicles) and turned over to the police. (5:1040–
1044.)
I generally have limited the description in this section to
VAMCO’s honest-belief evidence. Strictly, however, all the
evidence is available for consideration, as necessary. Indeed,
all record evidence eventually must be weighed before a de-
cision on the merits is made. Greco & Haines, 306 NLRB
634 (1992). Fugate does not disclose whether he made a con-
temporary memo about the incident. Summing up as to this
event, it is limited to Fugate’s asserted observation that
1275VIRGINIA MFG. CO.
Crusenberry, in Sam Church’s presence, was openly holding
jackrocks—a criminal offense in Virginia.
Turn now to Fugate’s description of the August 2 incident.
From his window vantage point in building 4 about 10:30
that morning, Fugate testified, he observed Jimmy
Crusenberry, Anthony Goodman, Geoffrey Lewis, and
(Barry) Mark Hall standing near the center of Industrial
Drive opposite a spot south of the driveway of the mental
health clinic; that is, south of point E on the photo and dia-
gram. Hall, Fugate testified, is a representative of the Union.
The VAMCO pickup, Kevin Pierce driving, approached the
plant and the group moved toward the east or picket situs
side of the road. As Pierce began to pass, Crusenberry turned
and, with an underhanded motion, tossed two jackrocks be-
hind, it appeared, the (right) front wheel. (3:695–697, 730–
732, and 804–806.) That is, the toss was made when the
driver probably could not observe and in an attempt to land
the jackrocks so that the pickup’s right rear wheel would be
punctured.
When the group moved over, Crusenberry’s back was to-
ward Fugate, but Crusenberry turned and in turning his front
side momentarily passed in view of Fugate. (3:733.) As
Crusenberry turned, Fugate saw Crusenberry’s arm come
‘‘across’’ (3:733) and release ‘‘it’’ in ‘‘a tossing motion un-
derhand’’ (3:805) from Crusenberry’s position about 2 feet
(3:806) from the pickup. ‘‘I actually saw the jackrock leave
the hand, hit the road, come to rest. I actually saw two of
the jackrocks.’’ (3:806.)
After the Pierce vehicle passed, Crusenberry walked over
and picked up the jackrocks, turned and walked back to the
group where, as Crusenberry held up one of the jackrocks
(apparently Fugate made no telephoto or videotape of that
moment), the group held a discussion. (3:697.) Fugate ac-
knowledges that the pickup’s tire did not sustain a puncture
or flat. (3:733.) Geoffrey Lewis testified as a government
witness before Respondent’s honest-belief stage, but was not
recalled to rebut any of Fugate’s description. Also not called
were Anthony Goodman or Union Representative Hall.
Crusenberry did testify. In brief, Crusenberry denies.
(5:1040.)
e. Randy Woodard
Other than confirming (3:702) that Randy Woodard is one
of the four employees discharged ‘‘for strike misconduct,’’
Charles Fugate, in his direct examination, fails to describe
even generally the kind of misconduct Fugate viewed as re-
quiring or justifying the discharge of Woodard. Cross-exam-
ination revealed that Fugate could recall no specifics respect-
ing Woodard other than that there were ‘‘several’’ incidents
making ‘‘a quite clear case on him’’ (3:751) and that he was
involved with ‘‘threats’’ and liked to walk to the property
line and ‘‘yell’’ at employees as revealed by ‘‘discussions
with some of the employees’’ (3:808).
At the trial Fugate could not recall the specifics given in
the affidavits. (3:819.) On redirect examination of Fugate,
and after it was clear that Fugate’s memory was exhausted
respecting Woodard, VAMCO was permitted (over objec-
tions by the General Counsel and the Union) to refresh
Fugate’s memory either by having him review an affidavit
(R. Exh. 10) or by mentioning employee names to him.
(3:820, 829–834.) That process elicited a brief identification
of four incidents which played a ‘‘vital’’ role in Fugate’s de-
cision to discharge Woodard.
The four incidents are as follows, in the order listed by
Fugate. First, Woodard threatened to burn Jeff Cox’s resi-
dence and the business, Dryden Grocery, of Cox’s mother.
Second, at a grocery store Woodard threatened Ronnie
‘‘Pete’’ Carroll. Third, either Woodard or Brian Marsee
threatened to ‘‘mess’’ up John Paul Bishop’s face. And
fourth, Woodard practically ran Joshua Carroll and David
Carroll off the road by pulling in front of the Carroll vehicle,
blocking its movement, then going to that vehicle for an agi-
tated conversation with its occupants. VAMCO’s supporting
witnesses describe the incidents. In date sequence the four
incidents are, briefly, as follows.
June 26. John Paul Bishop Jr. describes an incident in
which, after hearing a thump on his vehicle, as he slowly
passed a double row of strikers, he ‘‘turned around and re-
turned to the picket situs. Brian Marsee and Woodard
stepped forward and invited him to get out so they could
‘‘mess up’’ Bishop’s face. Woodard added that he knew
where Bishop lived and that he could come get him there.
(3:548–552, 562–564, and 572.) Woodard denies. (5:1023–
1024, 1034.)
Early July. About the second week of the strike (about late
June), a preliminary event occurred. (3:641, 650.) Woodard
was in one vehicle, and in the second vehicle, a jeep, were
Bill Morrison, the driver and a supervisor (3:639, 645–646),
David Carroll, a forklift operator (3:668), Johnny Baker, an
hourly production employee (3:639, 668–669), and the assist-
ant supervisor, now supervisor, Joshua Carroll who was
riding in the front passenger seat. (3:638–639.) Morrison and
Baker did not testify. Baker no longer works at VAMCO.
(3:680.) In this first incident Woodard allegedly drove very
slowly in front of the Morrison jeep up Industrial Drive,
thereby subjecting the four occupants of the jeep, as they
passed the picketing situs, to jeers of ‘‘Scab,’’ ‘‘Yellow
dog,’’ and threats of ‘‘We’ll get you; you’ll be sorry.’’ At
trial Fugate did not appear to rely on this preliminary inci-
dent (3:835), and it only sets the stage for the second event
a week later.
About a week later, or about early July, Joshua Carroll and
his brother David Carroll assert, Woodard jumped his vehicle
in front of the Morrison jeep only a short distance onto In-
dustrial Drive from Highway 58 and then again began driv-
ing slow. When Joshua Carroll expressed a request that Mor-
rison pass Woodard to avoid another slow-motion drive-by to
the accompaniment of more jeers and threats, Morrison start-
ed to pass the Woodard vehicle. Woodard then veered his
vehicle to the left, nearly forcing the Morrison jeep off the
road. Morrison pulled in front of Woodard, stopped, got out,
went back, and exchanged words with Woodard. As Morri-
son returned to the jeep, Woodard pulled to the front where
he slowly preceded the jeep. For a second time the Morrison
group was subjected to the jeers of names and threats. Al-
though neither of the Carrolls asserts when he reported this
veering incident to VAMCO, Fugate identified (3:833–835)
David Carroll’s affidavit (R. Exh. 11) of August 5 in this
connection.
Woodard denies trying to run the Morrison vehicle off the
road (5:1028) and asserts that he was driving normal when
Morrison sped by him, stopped, got out, came back, and
asked whether Woodard was trying to run him off the road,
1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 R. Browning, Andrea Del Sarto, L. 97.
to which Woodard answered no. Woodard pulled around and
as Morrison passed the pickets he told them they had better
do something about Woodard or Woodard was going to get
his ass kicked. (5:1027–1028.)
July 11. This is the Jeff Cox incident which Fugate ini-
tially attributed to Duncan (3:749), but later, after refreshing
his memory from Jeff Cox’s July 11 affidavit (R. Exh. 10),
charged to Woodard. (3:830–831.) On July 11 Jeff Cox, a
supervisor in building 4, held a conversation with Ronnie
‘‘Pete’’ Carroll outside and to the west of building 4. Com-
ing up to the sign alerting the public to the end of state
maintenance for Industrial Drive, Woodard yell out asking
Cox how he would like ‘‘your house burned down,’’ how
would he like (his mother’s) ‘‘Dryden Grocery burned
down,’’ and ‘‘I could beat your ass up there at Dryden Gro-
cery.’’ (3:496–497, 523, 525, 530–534, and 545–546.)
Although Ronnie ‘‘Pete’’ Carroll is described as either a
maintenance worker (3:496, 514, 592) or a maintenance su-
pervisor in his pretrial affidavit (G.C. Exh. 8; 3:595), no evi-
dence establishes him to be a statutory supervisor. In any
event, Ronnie ‘‘Pete’’ Carroll corroborates Cox’s version.
(3:590, 599, 610–611.) Woodard denies. (5:1021–1023,
1032–1034.) Ronnie Carroll and ‘‘Pete’’ Carroll are stipu-
lated to be the same person. (3:620.)
August 3. The fourth and final incident occurred at the
Black Diamond convenience store in nearby Stone Creek.
Carroll testified that Woodard, pointing his finger at him and
cursing in a loud voice, said, ‘‘You need to join the Union.
We’ll see to that.’’ The clerk said she wanted no trouble in
the store and Carroll simply walked out. Although Carroll
does not recall the date of this incident, he remembers that
it was the weekend before he gave his affidavit (G.C. Exh.
8) of (Monday) August 5 to the company. (3:594.)
As I mentioned above, Fugate testified (after being asked
about any threats to Ronnie Carroll) that the off premises-
grocery store threat to Carroll played a ‘‘vital’’ role in the
discharge decision. (3:832.) Called as a rebuttal witness as to
other matters, Woodard was not asked about the Black Dia-
mond incident and therefore offered no conflicting version.
f. Case 11–CB–2035
Earlier I referred to Case 11–CB–2035 and the August 30
telephone calls between the Board’s Region 11 and
VAMCO’s attorney and then between the attorney, Trial
Counsel Wright, and Fugate, respecting the ‘‘14 counts’’ that
the Region would include in the complaint, absent settle-
ment. Fugate implies that Attorney Wright informed him that
Region 11 would issue a complaint based on the conduct of
several named employees. Fugate remembers only eight of
the names, including the four Charging Parties here. (3:814.)
He made no list of the names during or after the call.
(3:788.) Region 11’s decision to issue a complaint based on
a finding that these employees had violated the Act, Fugate
testified, was a factor in VAMCO’s discharge decision be-
cause VAMCO felt that Region 11’s decision substantiated
its own decision that the four individual Charging Parties had
violated the law and that VAMCO was justified in taking ac-
tion against the four. (3:703, 743–744, 747, 797, and 815.)
At the trial (1:14–15, 21–22; 3:77–778, and 824), in his
posthearing submissions (Br. at 3; Reply Br. at 4),
VAMCO’s counsel, disappointed that Region 11’s December
30 response to VAMCO’s FOIA request did not name the of-
fending employees, represented that VAMCO’s discharge de-
cision process involved matching incidents in the affidavits
to the dates which the Region, on August 30, said would be
listed in the complaint. Distilled from that process are the
names of the Charging Parties. All of this is for the purpose,
as counsel describes, of showing that its honest-belief burden
is met, at least in part, under Gem Urethane Corp., 284
NLRB 1349, 1352–1353 (1987), a case where an employer
properly relied on a CB case complaint issued (then settled)
naming specific strikers and specific dates and acts of alleged
misconduct.
Several problems attend VAMCO’s position. First, an at-
torney’s representations do not serve as positive evidence
that can be used in carrying the party’s burden of proof on
an issue (but they may be used by the opponent as admis-
sions if they constitute such). Second, there is a gap here be-
tween the attorney’s representations and the evidence. Fugate
never describes a process of matching names against dates.
Nor does Fugate say that Attorney Wright reported that he
had done so and that Fugate in good faith relied on Attorney
Wright’s analysis. Thus if, as represented by Attorney
Wright (Br. at 3; Reply Br. at 4), and contrary to the Re-
gion’s December 30 response (R. Exh. 3) to the FOIA re-
quest, a Board agent at Region 11 identified specific inci-
dents, that fact also is lacking in the evidence. To paraphrase
the poet, the reach of the attorney’s representations exceeds
the grasp of his client’s proof.6
Third, and as the General Counsel (1:16) and the Union
(1:19) observed at trial, there is nothing in Region 11’s
FOIA response linking any of the four Charging Parties to
any of the allegations or dates of the proposed complaint in
Case 11–CB–2035. Although counsel for the General Coun-
sel represented at trial that the Region’s decision to issue a
complaint in the CB case was in keeping with the General
Counsel’s policy when the Region is not able to make certain
crucial credibility determinations (1:16–17), she acknowl-
edged (1:26) that no evidence of that inability-basis would be
introduced.
Despite VAMCO’s disagreement with counsel’s premise,
and arguing that a regional decision to issue a complaint
means a regional finding of merit (1:25), I note that the Gen-
eral Counsel’s casehandling instructions to the regions con-
tain the following paragraphs in NLRB Casehandling Manual
(Part One) (June 1989):
10060. Credibility: In the event of hearing, credi-
bility questions may be critical. In view of this, the fol-
lowing points should be kept in mind.
On the basis of its investigation, The Regional Office
is expected to resolve factual conflicts.
. . . .
In the infrequent case in which (a) applying all rel-
evant principles, the Region is unable to resolve credi-
bility, and (b) the resolution of the conflict means the
difference between dismissal and issuance of complaint,
a complaint should be issued. This is not to be con-
strued, however, as permitting the avoidance of the
making of difficult decisions.
Countering VAMCO’s citation of Gem Urethane Corp.,
284 NLRB 1349, 1352 (1987) (employer could base honest
1277VIRGINIA MFG. CO.
7 The prophet’s denunciation rings clear: ‘‘[Y]et they are not at all
ashamed, they know not how to blush.’’ Jer. 8:12.
belief on issuance of CB complaint where strikers named,
dates given, and incidents specified), the General Counsel
(Br. at 7) relies on GSM, 284 NLRB 174 fn. 1, 177 (1987),
where a CB complaint issued but, as here, did not name any
strikers as having engaged in specific incidents of alleged
misconduct. The administrative law judge there rejected a
contention that GSM could rely on the CB complaint to
show an honest belief. On the basis the complaint did not
identify the strikers, the Board affirmed the judge. I agree
with the General Counsel that GSM applies here.
Finally, and as noted much earlier, the 28–30 affidavits
VAMCO furnished to Region 11 named more strikers than
simply the four and frequently covered more than one inci-
dent. Even so, while that might bear on credibility, it would
not mean that VAMCO had failed to offer evidence of an
honest belief had VAMCO in fact offered evidence that it
matched affidavits with dates (and possibly incidents as well)
supplied by Region 11. VAMCO offered no such evidence.
Accordingly, I find that Region 11’s August 30 notification
to the parties of its determination to issue a complaint, absent
settlement, in Case 11–CB–2035 does not constitute evidence
in support of an honest belief by VAMCO in this case that
the four individual Charging Parties here had engaged in any
of the strike misconduct for which VAMCO discharged them
on September 4.
3. Condonation
a. Facts
As I mentioned earlier, in the breakroom in building 1 the
morning of August 12, Fugate addressed the strikers who had
gathered. Charging Party Woodard places the number at 20
to 22 (1:203), whereas Fugate estimates the number at 35 to
40 (3:735.) Fugate asserts that all the returning strikers were
wearing military-type camouflage dress, gathered in a small
room, and he suggests that he found that fact a bit dis-
concerting. (3:734–735, 791.) Fugate specifically recalls that
Bobby Duncan and Randy Woodard were standing close to
him. (3:735, 791.) Jimmy Crusenberry (1:99) and Steven
Birman (2:268) testified that they also were there.
Fugate told the group that VAMCO could accommodate
only eight that day, but that the remainder of them would be
called back as production increased and as there was work
for them to perform. (3:735–736, 786.) Fugate admits that he
made no exceptions. (3:787.) The strike, Fugate testified, had
reduced VAMCO’s production by half. (3:736.) Full produc-
tion was not again reached until the third week of Sep-
tember. (3:702.) Thus, Fugate testified, there was no debate
(among management) about anyone not being recalled. In-
stead, it simply was a matter of ‘‘Let’s start scheduling, let’s
start getting our production up, what do we do and who do
we get in here first.’’ (3:764–765).
When objection was made to the relevance of Fugate’s
presence at any discussion of the schedule for recall (3:766),
witness Fugate was asked to step outside the courtroom.
(3:767.) After Fugate withdrew, a lengthy colloquy ensued in
which, eventually, the Union revealed (3:770, 784) that it
was pursuing the concept of condonation (touched on briefly,
but without name, by the General Counsel, 3:735). Respond-
ent argued that the circumstances did not show condonation.
Although expressing doubt that condonation was shown (at
that point) I, in effect, overruled the objection to relevance
and permitted the Union to proceed. (3:785.) The additional
point here, however, is that it appears there had been no pre-
vious discussion among the parties about the topic. That is,
the topic of condonation was a surprise.
In any event, on Fugate’s return to the stand the Union re-
sumed its cross-examination. (3:785.) At the second question,
asking for confirmation that Fugate met with the strikers
when they showed up at the breakroom on August 12,
VAMCO’s counsel, attorney Wright, objected (emphasis
added): ‘‘Objection. I mean—again, I don’t think the con-
donation theory is relevant.’’ ‘‘Your Honor, we might as
well have left this man in the room,’’ Union’s counsel, attor-
ney Vergara, protested. To that VAMCO’s attorney stated, in
part, ‘‘I thought we pretty much had that resolved that under
these circumstances, the condonation theory is irrelevant.’’
Attorney Vergara objected that VAMCO’s attorney ‘‘is de-
feating the entire purpose of having the witness excluded
from the room.’’ I overruled VAMCO’s objection. (3:786).
Despite VAMCO’s attorney having twice injected the
word ‘‘condonation’’ into his objections,7 in the presence of
a witness previously excused from the hearing room while
that concept was discussed, Fugate nevertheless testified
(3:787), as noted, that he made no exceptions to his state-
ment that all of the strikers would be recalled as production
needs dictated.
Still later Fugate testified that it was after August 12 be-
fore he became aware he could terminate any of the strikers
for misconduct during the strike. (3:809.) Then the Union
asked if it were true that on August 12 ‘‘you intended to
bring everybody back and subsequent to that you had a
change of heart, so to speak?’’ ‘‘Yes,’’ Fugate answered.
(3:809–810).
Finally, Fugate confirms that many of the 28 to 30 affida-
vits had been taken before August 12. (3:810.) Indeed, as to
this last item, we already have seen that every incident which
Fugate (eventually) itemized at trial occurred before August
12. Most of them are dated well before August, with the lat-
est dates being affidavits taken on August 5. Fugate even
personally observed, according to his trial testimony, inci-
dents on July 30 and August 2 involving Crusenberry and
Birman.
b. Discussion
In short, the morning of August 12 Fugate was well aware
of the incidents for which VAMCO, on September 4, fired
the four Charging Parties, yet Fugate, on August 12, told
all—and not excluding any of the four Charging Parties who
were present—that all of them would be returned as produc-
tion returned to normal. If that were not enough, Fugate ad-
mits that as of August 12 he intended to return all of the
strikers, and only later did he change his mind (when he
learned he could fire them for misconduct during the strike).
Although Fugate on August 12 was not aware of his legal
rights respecting striker misconduct, he was well aware of
the underlying facts. Waiving those facts, he told all—as he
admits he then intended—that all would be recalled as pro-
duction resumed.
By Fugate’s August 12 conscious waiver of the alleged
misconduct, I find that VAMCO condoned any serious mis-
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
conduct which any of the four individual Charging Parties
may have committed. I therefore find that VAMCO violated
Section 8(a)(1) of the Act when it discharged Bobby Duncan,
Steve Birman, Jimmy Crusenberry, and Randy Woodard for
strike misconduct. Accordingly, I shall order VAMCO to
offer the four reinstatement and to make them whole, with
interest. White Oak Coal Co., 295 NLRB 567 (1989). Be-
cause I need not reach the allegation of an 8(a)(3) violation,
I shall dismiss complaint paragraphs 11 and 12 in that re-
spect. General Telephone Co., 251 NLRB 737, 740 fn. 21
(1980).
Having found that VAMCO condoned any serious mis-
conduct, I need not address the General Counsel’s rebuttal
evidence (beyond the brief descriptions already given) nor re-
solve credibility over disputed facts.
CONCLUSIONS OF LAW
1. Respondent VAMCO is an employer engaged in com-
merce within the meaning of 29 U.S.C. § 152(2) and (7).
2. VAMCO has engaged in unfair labor practices within
the meaning of 29 U.S.C. § 158(a)(1) when:
a. Plant Superintendent Daniel Hurd, on June 20, 1991,
told packing line employees that anyone not reporting for
work the next day would receive an ‘‘unexcused’’ absence.
b. VAMCO, by letters dated September 4, 1991, fired
Bobby Duncan, Steve Birman, Jimmy Crusenberry, and
Randy Woodard for strike misconduct.
3. The unfair labor practices found affect commerce within
the meaning of 29 U.S.C. § 152(6) and (7).
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Virginia Manufacturing Company, Inc.,
Pennington Gap, Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees for engaging in concerted activities protected by the
National Labor Relations Act.(b) Threatening employees with
disciplinary action if they join or support a protected strike.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Bobby Duncan, Steve Birman, Jimmy
Crusenberry, and Randy Woodard immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously
enjoyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section
of the decision.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this has
been done and that the discharges will not be used against
them in any way.(c) Preserve and, on request, make available
to the Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of this
Order.
(d) Post at its plant in Pennington Gap, Virginia copies of
the attached notice marked ‘‘Appendix.’’9 Copies of the no-
tice, on forms provided by the Regional Director for Region
11, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.