American Cyanamid Co.

National Labor Relations Board - Board Decisions

Nov 22, 1978

239 N.L.R.B. 440 (N.L.R.B. 1978)

DEC ISIONS OF NATIONAL LABOR RELATIONS BOARD
American Cyanamid Company and Jerry L. Primnu
and' homas G. ,ittle. Cases 9 -CA 11918-2 and 9
CA 11918-4
November 22, 1978
DECISION AND ORDER
By C(HAIRMAN FANNING AND MEMBERS JFNKINS
AND MItRPHIY
On July 17, 1978, Administrative Law Judge James
L. Rose issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed a
brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, American Cyanamid
Company, Willow Island, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
fRespondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to, over-
rule an Administrative Law Judge's resolutions with respect to credibilitl
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Slandard Drr Wall Product-. In .. 91
NLRB 544 (1950). enfd, 188 F.2d 362 [3d Cir 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE. Administrative Law Judge: This matter
was heard before me on April 13 and 14, 1978, at Parkers-
burg, West Virginia, upon the General Counsel's complaint
which alleged that Thomas G. Little was discharged on
May 23, 1977,' (the discharge being subsequently reduced
to a 30-day suspension) in violation of Section 8(a)(3) of
I All dates refer to 1977 unless otherwise indicated.
the National Labor Relations Act, as amended, 29 U.S.C.
§151, et seq.
Respondent contends that its discharge of Little was
justified because of his picket line misconduct on the eve-
ning of May 9 and early morning of May 10, and that, in
any event, the complaint should be dismissed because the
discharge was reduced to a 30-day suspension pursuant to
a strike settlement agreement approved by the Union and
its membership.
Upon the record as a whole, including my observation of
the witnesses, briefs, and arguments of counsel, I hereby
make the following:
FINDINGS OF- FACt AND) CONC(I.L;SIONS Ol LAW
I. JIRISDI(-C ION
Respondent is a Maine corporation engaged in the man-
ufacture and wholesale distribution of chemical and other
products at various facilities throughout the United States
including one at Willow Island, West Virginia, the facility
here involved. In the course and conduct of its business,
Respondent annually sells and ships goods valued in excess
of $50,000 from its Willow Island facility directly to points
outside the State of West Virginia. Respondent admits, and
I find, that it is an Employer engaged in commerce within
the meaning of Section 2(2), (6). and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic International Union, AFL-
CIO-CLC, Local 3-499 (herein the Union), is admitted to
be, and I find is, a labor organization within the meaning
of Section 2(5) of the Act.
III TlHF ALLE;GED UNFAIR LABOR PRA(-Tl(E
A. Background Facts
For a number of years the Union has represented a unit
of Respondent's approximately 500 production and main-
tenance employees. Respondent and the Union have had
successive collective-bargaining contracts, the last one pre-
ceding the events involved in this matter expiring at mid-
night on May 9.
Following intensive negotiations, Respondent presented
the Union its final offer on the afternoon of May 9, which
ultimately was rejected by a vote of the union membership,
and it was determined to strike.
While the strike was officially to have commenced at
midnight, May 9, during the hour or so prior to that, and
following the union meeting, employees began to gather at
the gates to Respondent's plant. Thus, prior to midnight,
there was some picket line activity including building bon-
fires, yelling and whopping by strikers, throwing beer cans,
bottles, and debris on company property, and some picket-
ing. The security supervisor of the plant was physically
stopped when he attempted to leave the premises. Also
during this period, the telephone cable to Respondent's
plant was cut, and throughout the night numerous acts of
misconduct occurred, including pelting the administration
440
AMERICAN CYANAMID CO.
building near the main gate with rocks and small lead balls
shot from a slingshot. Ultimately, the picketers numbered
about 200. They built at least five fires near the various
plant entrances, including three at the main entrance, one
on either side, and one in the middle.
Respondent determined to keep operating, and early in
the evening of May 9 began to call in salaried employees to
do production work. Also Respondent contacted the West
Virginia Highway Patrol. Two troopers arrived about 11:30
p.m. Others were contacted and ultimately there were
about 50 state troopers at the Company's premises who
stayed on until about 4 p.m. on May 10, at which time a
state court of general jurisdiction issued some type of an
injunction against certain activity engaged in by the strik-
ers.
About 3:15 a.m. on May 10, Thomas Little, the Charg-
ing Party, along with two other strikers, Kenneth Winland
and Jerry L. Primm, 2 were arrested by state troopers, hand-
cuffed to a railing near the administration building for
about 45 minutes, and then driven to a local jail where they
were booked and incarcerated. Little was charged with
"public drunkenness" and "obstructing an officer." He
pled nolo contendre to these charges, paid a fine of $66, and
was released from jail.
On May 23, Little, along with other strikers (including
Wineland and Primm), was notified by the Company that
he had been discharged for unspecified acts of picket line
misconduct.
This misconduct, according to the testimony of Donald
C. Wagner, industrial relations associate at Respondent's
Willow Island plant, was:
Well, Mr. Little was observed as one of the conspic-
uous picketers on the picket line along State Route 2.
He was obvious conspicuous by his activities of mov-
ing in and around throughout the-along the high-
way; along the picket line. He was instrumental in
assisting and bringing in wood and in starting fires in
the middle of entrances. He assisted there as picketers
struck up fires; built fires right in the middle of en-
trances at times when the Company was in a situation
where we needed to be able to exit and enter the com-
pany property. He was observed participating in the
activities of throwing things on company property;
whooping up and yelling and generally helping to in-
cite the whole riotous situation.
In addition, Wagner testified that a reason for Little's dis-
charge was the fact that he was arrested on the morning of
May 10.
Tracking the testimony of Wagner, counsel for Respon-
dent in his brief argues that Little was discharged because
he was one of the more conspicuous strikers; he threw
rocks and debris at company buildings; he participated in
blocking the main entrance by being present and by assist-
ing in maintaining a large bonfire: he was seen with Ken-
neth Winland who was observed to have engaged in picket
line misconduct and who was also discharged; he was ob-
2 Pnmm was the C(harging Party in Case 9 CA 11918 2, which ha. been
dismissed upon the request of Primm to withdraw the charge and the agrce-
ment of the General Counsel toi dismiss the complaint
served shooting pellets at the building; and he had been
charged with public intoxication and resisting an officer.
As will be detailed more full infra, Little generally ad-
mits to having been present from time to time on the picket
line during the early hours of May 10 but denies having
engaged in any of the misconduct attributed to him by
Respondent. He admits being in the presence of Winland
from time to time and admits that he was in fact arrested.
He denied, however, throwing anything on company prop-
erty and specifically denied that he had in his possession,
or shot, lead pellets at the buildings.
B. Analysis and Concluding Findings
Initially, Respondent contends that inasmuch as Little's
discharge was converted to a 30-day suspension the case
ought to be dismissed. The fact that Respondent mitigated
its discipline of Little has no bearing on whether it was
unlawful. Such affects only The Remedy. Thus, if Respon-
dent violated the Act by disciplining Little because of his
picket line activity, such was unlawful whether the sanction
was a discharge or merely a 30-day suspension. MP lndus-
tries, Inc., 227 NLRB 1709 (1977). And the fact that the
Union may have agreed to the suspension of Little as part
of the strike settlement agreement neither disproves the
allegation nor would it affect The Remedy if, in fact, the
discipline of Little violated the Act. The cases relied on by
Respondent do not involve an agreement purporting to set-
tle a previously committed unfair labor practice.
United Aircraft Corporation (Pratt & Whitney Division),
192 NLRB 382 (1971), involved an agreement concerning
the reinstatement rights of economic strikers. The alleged
discrimination was in cutting off employment preference
rights of certain strikers pursuant to the settlement agree-
ment. The Board concluded that such an agreement was
not unreasonable, and given all the facts and circumstanc-
es it ought to be accepted by the Board as a matter of
policy. The agreement did not purport to remedy any un-
fair labor practice occurring during the strike. Similarly, in
Western Steel Casting Compan)y, 233 NLRB 870 (1977).
where the criteria of United .4 ircraft are met, the Board will
accept "a valid and enforceable recall agreement and [as] :,
clear and unmistakable waiver of strikers' rights to any
jobs except those to which they would be eligible [under
the agreement]." Again, the recall agreement did not pur-
port to settle any alleged unfair labor practice. Suburban
Transit Corp. v. N.LR.B., 536 F.2d 1018 (3d Cir. 1976).
cited by Respondent, is also inapposite. In that matter the
court held, contrary to the Board, that the grievance the
striking employees sought to resolve was covered under the
contractual grievance procedure, thus the strike was pro-
hibited by the no-strike clause. As has long been recog-
nized, a labor organization can contractually waive em-
ployees' right to strike. Mastro Plastics Corp., and
French-American Reeds Mfg. Co., Inc., v. N.L.R B.. 350
U.S. 270 (1956). It does not follow, nor did the court hold,
that a union may waive an employee's right under the Act
to have his employer's unfair labor practice remedied.
The criteria by which the Board will defer to a private
settlement of an unfair labor practice are set forth in Spiel-
berg Manufacturing Company,. 112 NLRB 1080 (1955).
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
None of those criteria appear to have been met here, par-
ticularly the requirement that the resolution be not clearly
repugnant to the Act. If, in fact, the discipline of Little was
unlawful, to let it stand unremedied is clearly repugnant.
Turning now to the merits, it is well settled that where an
employer disciplines an employee because he has engaged
in an economic strike, such violates Section 8(a)(3) of the
Act. This may be defended by a showing of a good-faith
belief that the employee was guilty of sufficient misconduct
to render him unemployable. If the respondent is able to
meet this burden, then the General Counsel must come
forward with evidence to deny that the employee did what
he was claimed to have done and/or that the activity was
not sufficient to justify his discharge. The burden would
then return to the respondent to rebut such denials. Rubin
Brothers Footwear, Inc., and Rubin Bros. Footwear, Inc., 99
NLRB 610 (1952).
The mere fact that there was substantial misconduct en-
gaged in by some strikers does not impute culpability to
Little. Whether he lost protection of the Act depends upon
his specific conduct and not that of others. Thus,
Each striker's eligibility for reinstatement must be
judged solely upon incidents in which the striker in
question is alleged to have participated. Unauthorized
acts of violence on the part of individual strikers are
not chargeable to other union members in the absence
of proof that identifies them as participating in such
violence. 3
The question here is whether the acts engaged in by Lit-
tle on the morning of May 10 were sufficiently egregious to
deny him continued protection of the Act, or should be
categorized as "a trivial rough incident or a moment of
animal exuberance." Milk Wagon Drivers Union v. Mea-
dowmoor Dairies, Inc., 312 U.S. 287, 293 (1941).
Finally, even though Respondent's discharge of Little
may have been prompted by believed picket line miscon-
duct, such does not relieve Respondent from liability for
having committed an unfair labor practice if it is found
that his acts were not of sufficient gravity under all the
facts and circumstances. W. C. McQuaide, Inc., 220 NLRB
593 (1975).
Here, I conclude that Respondent has not established
that Little engaged in sufficient misconduct so as to justify
its initial discharge of him on May 23, or the lesser disci-
pline of a 30-day suspension. Respondent established only
that Little was on the picket line and was at times near
Winland who apparently was a leader in picket line mis-
conduct. Little had the misfortune to be standing near
Winland when it was determined by the highway patrol-
men, for reasons unspecified on the record, to begin arrest-
ing strikers. It appears from the testimony of Trooper Lake
that Little was arrested because he was there. The fact of
his arrest was duly noted in Respondent's strike log, and
this, I believe, was how Respondent later identified Little
as being one of those to discipline.
Coronet Casuals. Inc., 207 NI.RB 304. 305 (1973), where an additional
factor considered in determining whether the particular act of misconduct
was sufficient to deny reinstatement was the company's unfair labor prac-
tices which had provoked the strike. Here, the strike was economic, Never-
theless, the Board's conclusion that not every act of misconduct strips from
the employee the protective mantle of the Act is equally applicable.
Little testified that he was at the picket line on two occa-
sions for a few minutes shortly prior to midnight and re-
turning in the vicinity of 2:30 a.m. Although Wager testi-
fied to having seen Little in and around the picket line
throughout the early hours of the strike, that Little was
there only on the occasions to which he testified, and for a
short time at that, was not really rebutted by Respondent.
I credit Little.
The specific contentions of Respondent, I conclude, are
neither singly nor together sufficient to deny Little protec-
tion of the Act. Wagner testified that Little was "one of the
conspicuous picketers." But this identification, as indi-
cated, I believe, was a result primarily of Little having been
one of those arrested. In any event, the fact that he was
seen on the picket line or was even "conspicuous" does not
imply that he engaged in strike misconduct. This, therefore,
clearly is not a sufficient reason to deny him the protection
of the Act.
Wagner also testified that he saw Little assisting in
bringing wood from a dark pickup truck. While Little de-
nied that he did this, a denial which I tend to credit in view
of the fact that Wagner's observation necessarily was of
questionable reliability because of the circumstances (night
and distance) nevertheless, the mere fact that Little was
carrying wood certainly is not picket line misconduct. Re-
spondent in this regard appears to argue that because the
picketers built three bonfires, one on either side and one in
the middle of the main entrance to the plant, the strikers
thereby physically restrained ingress and egress, for which
they could be disciplined. Respondent further argues that
since Little was seen unloading some of the wood he is
responsible for this activity.
Although Wagner testified that the fire "made it com-
pletely impossible . . . for one to drive an automobile or
truck to the main entrance," I do not believe that such was
the case or that such has been established. Obviously, there
was ingress and egress to the plant property, particularly of
the 50 or so highway patrolmen who arrived after the fires
were built. It is certainly not inevitable that three fires at a
main entrance to the plant would be so large as to physi-
cally stop all vehicles. There is testimony that Respon-
dent's chief of security attempted to leave the premises and
was restrained from doing so, inferentially by the fires. But
Wagner testified further that his truck was pelted with
rocks.
From the totality of the record, I cannot conclude that
there was such a wall of fire so as to restrain totally ingress
and egress. On the other hand, it was a very cold night and
the possibility that picketers would build bonfires to keep
warm does not seem either unreasonable or beyond the
bounds of permissible picket line conduct. While building
a fire in the middle of the roadway may not have been
proper and should not be condoned, it nevertheless does
not seem to be particularly serious. Thus, even if Little had
participated in building fires, such would not be sufficient
to deny him protection of the Act.
Wagner testified, and Little denied, that Little threw bot-
tles and debris upon company property and caused some
unspecified damage. Again, even if he did such acts, while
not to be condoned, certainly are not particularly serious.
442
AMERICAN CYANAMID CO.
Such would not be reason to discharge or discipline an
individual absent some evidence at least that there was
damage to persons or property, of which there was none.
Accordingly, this is not a sufficient reason for the Respon-
dent to have disciplined Little.
Respondent contends that Little was involved in shoot-
ing lead pellets with a slingshot. There is no direct evidence
that he did this, although company witnesses did testify
that lead pellets were shot and, in fact, some of the compa-
ny officials in the administration building were hit by
them. Winland was actually observed firing the pellets with
the slingshot but Little was not. Respondent, however, asks
that I infer that Little was engaged in this activity because
when he was arrested the highway patrolman who searched
him found a handful of lead pellets. I reject this inference.
Trooper Lake testified that he and two other police offi-
cers, probably another highway patrolman and a member
of the sheriffs department, searched and booked Little,
Primm, and Winland following their arrests. Lake testified
that he searched Winland and he believes the other high-
way patrolman searched Little. Lake testified that during
the course of this event, the other highway patrolman
showed him a handful of lead pellets and said, "Look what
I took from this boy here." While this testimony was re-
ceived, in the fact of Little's credible denial that he had
pellets on his person, I find the weight to be given it insub-
stantial. I conclude that it was not established that Little in
fact had pellets. Beyond that, the mere fact that Little may
have had lead pellets in his pocket does not prove, except
by inference, that he shot pellets at anyone or, if he shot
them, did any physical or property damage. Accordingly, I
cannot conclude that Little should be denied reinstatement
because of shooting lead pellets at company property.
Finally, Respondent contends that Little was disciplined
because he had been arrested. The fact of his arrest, how-
ever, does not prove that he engaged in picket line miscon-
duct. Indeed, it appears that Little was arrested for public
intoxication, at best a vague and subjective complaint, as
well as "obstructing an officer." also a vague and subjec-
tive complaint. In this respect Officer Lake did not testify
to what Little was supposed to have done that amounted to
obstruction of him nor did he offer any evidence that Little
was in fact intoxicated. In any event, assuming without
concluding that Little was properly arrested for the charges
indicated, such does not amount to picket line misconduct
and certainly is not the type of activity for which one
should properly be disciplined.
It may very well be that the situation on the morning of
May 10 was sufficient to cause the Respondent concern
and to justify requesting the presence of 50 highway patrol-
men. It may very well be that the situation was sufficient to
justify injunctive relief. Nevertheless, these facts do not
mean that Respondent was at liberty to discipline anyone
whom it identified on the picket line unless that individual
had actually engaged in serious acts of misconduct. Here, I
find the evidence brought forth by Respondent to be insuf-
ficient to prove that Little in fact engaged in any acts of
misconduct, much less acts so serious as to deny him pro-
tection of the Act. Accordingly, I conclude that when Re-
spondent discharged Little on May 23, it did so in violation
of Section 8(a)(3) and (1) of the Act. This unfair labor
practice of Respondent has not been remedied in any re-
spect by the fact that in the strike settlement agreement it
had reduced the discharge to a 30-day suspension.
IV THE EFFECT OF THE UNFAIR LABOR PRACTI CE UPON
COMMERCE
The unfair labor practice found is an unfair labor prac-
tice affecting commerce and the free flow of commerce and
tends to lead to labor disputes burdening and obstructing
commerce within the meaning of Section 2(6) and (7) of
the Act.
V THE REMEDY
Having found that Respondent discharged Thomas G.
Little in violation of the National Labor Relations Act, but
has subsequently reinstated him without prejudice to his
seniority or other rights and benefits, I shall order that
Respondent make him whole for any loss of wages or other
benefits to which he may be entitled as a result of the
discrimination against him, with interest, as provided by
F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977),4 and ex-
punge from his personnel record all reference to the dis-
charge and/or suspension.
Upon the foregoing findings of fact, conclusions of law,
the entire record in this matter, and pursuant to the provi-
sions of Section 10(c) of the Act, I hereby issue the follow-
ing recommended:
ORDER'
The Respondent, American Cyanamid Company, Wil-
low Island, West Virginia, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging, suspending, or otherwise disciplining
employees who engage in protected concerted activity, in-
cluding an economic strike and picketing.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make whole Thomas G. Little for any losses that he
may have suffered as a result of the discrimination against
him in accordance with the provisions of the "The Rem-
edy" section above.
(b) Expunge from the personnel record of Thomas G.
Little any reference to his discharge on May 23 or to his
subsequent suspension.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
'See. generally. TIes Plumnghn & HIcatlli (,,. 138 NLRB 716 (1962)
In the esent no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Ilabor R lations Board. the findings.
conclusiorns. and rec.ommended Order herein Shall, as provided in Sec
10248 of the Rules and Regulations. he adopted ho the Board and become
its findings, conclusion. and Order. and all objections thereto shall he
deemed .aived for all purposes
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Post at its Willow Island, West Virginia, facility cop-
ies of the attached notice marked "Appendix." 6 Copies of
said notice on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent imme-
diately upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken by Respondent to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case 9-CA-
11918-2 be dismissed.
6 In the event that 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NAIIONAI LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present evidence, examine and cross-examine witnesses,
the National Labor Relations Board has found that we
have violated the National Labor Relations Act and we
have been ordered to post this notice and to comply with
its terms.
WE WILL NOT discharge, suspend or otherwise dis-
criminate against our employees because they engage
in a strike, picketing, or other activity protected by
Section 7 of the National Labor Relations Act.
WE WILL NO1 in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL rescind the discharge and/or suspension of
Thomas G. Little and make him whole for any losses
he may have suffered as a result of the discrimination
against him.
AMERICAN CYANAMID COMPANY
444