Capital Rubber & Specialty Co., Inc.

National Labor Relations Board - Board Decisions

Feb 7, 1973

201 N.L.R.B. 715 (N.L.R.B. 1973)

CAPITAL RUBBER & SPECIALTY CO., INC. 715
Capital Rubber & Specialty Co., Inc . and General
Truck Drivers, Warehousemen and Helpers Local
No. 5, a/w International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of
America, Ind. Case 15-CA-4431
February 7, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
statements and gestures which clearly constituted
threats by Montague to inflict bodily harm on Jones.
We find, therefore, that the bounds of permissible
picket line conduct were transgressed by the above
misdeeds of Montague and that he thereby lost the
protection of the Act.
Accordingly, we dismiss the allegations of Section
8(a)(1) and (3) insofar as they pertain to employee
Montague . In all other respects , we affirm the
findings and conclusions of the Administrative Law
Judge with the modifications noted below.
On August 23, 1972, Administrative Law Judge*
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel filed
cross-exceptions and briefs in support thereof and in
answer to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, supporting briefs, and answering brief,
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order to the extent consist-
ent herewith.
The Administrative Law Judge concluded that
Respondent, by terminating and refusing to reinstate
striking employees Matthews W. Drewery and
Donald R. Montague upon their unconditional offers
to return to work, violated Section 8(a)(1) and (3) of
the Act. Respondent has excepted to these findings
and conclusions, contending that the misconduct of
Drewery and Montague on the picket line disquali-
fied them from reinstatement.
We agree with the conclusion of the Administrative
Law Judge that employee Drewery is entitled to
reinstatement, although the issue is not free from
doubt. But we find that employee Montague put
himself beyond the protection of the Act by his
picket line misconduct.
Montague's numerous attempts to impair the
driving visibility of Scholl, as the latter tried to edge
his car out into moving traffic, repeatedly created an
imminent hazard and danger to the safety of the
oncoming motorists as well as to Scholl. On three of
these occasions, a tragedy was only narrowly averted.
In addition to this misconduct, the record evidences
* The title of "Trial Examiner " was changed to "Administrative Law
Judge" effective August 19, 1972
1 The Respondent and General Counsel have both excepted to certain
credibility findings made by the Administrative Law Judge It is the Board's
established policy not to overrule an Administrative Law Judge's resolu-
CONCLUSIONS OF LAW
In view of the above, we do not adopt the
Administrative Law Judge's conclusions 3 and 4 and
substitute the following conclusions in their place:
3. By engaging in the conduct described in
section III above with respect to employee Matthews
W. Drewery, Respondent interfered with, restrained,
and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By the above conduct, Respondent discrimi-
nated against employee Matthews W. Drewery in
regard to his hire and tenure of employment, thereby
discouraging membership in the Union, and has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Capital Rubber & Specialty Co., Inc., Baton Rouge,
Louisiana , its officers , agents , successors, and as-
signs, shall take the action set forth in the said
recommended Order as modified herein.
1. Delete paragraphs 2(a) and (b) of the recom-
mended Order and substitute the following therefore,
relettering the remaining paragraphs accordingly:
"(a) Offer to employee Matthews W. Drewery
immediate and full reinstatement to his former job
or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole
for any loss of earnings, as set forth in `The Remedy'
section of the Administrative Law Judge's Decision."
Lions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions were incorrect Standard
Dry Wall Products, Inc.. 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3) We
have carefully examined the record and find no basis for reversing his
findings.
201 NLRB No. 95
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Substitute the attached notice for the notice of
the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we, Capital
Rubber & Specialty Co., Inc., violated the National
Labor Relations Act, and has ordered us to post this
notice. We therefore notify you that:
WE WILL NOT discourage membership in
General Truck Drivers, Warehousemen and
Helpers Local No. 5, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, Ind., or any other labor
organization, by discharging or refusing to rein-
state employees because of their union or concert-
ed activities, or in any other manner discriminate
against them in regard to hire or tenure of
employment, or any term or condition of employ-
ment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7 of
the Act.
WE WILL offer employee Matthews W. Drewery
immediate and full reinstatement to his former
job or, if such job no longer exists, to a
substantially equivalent position, without preju-
dice to his seniority or other rights and privileges
and make him whole for his loss of earnings, as
provided in the Board's Decision and Order.
CAPITAL RUBBER &
SPECIALTY CO., INC.
(Employer)
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office, Suite 2700, Plaza Tower, 1001
Howard Avenue, New Orleans, Louisiana 70113,
Telephone 504-527-6361.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FRANK H. ITKIN , Trial Examiner : This case was tried at
Baton Rouge , Louisiana , on July 19, 1972. The unfair labor
practice charge was filed by the Union on April II and the
complaint was issued on May 31, 1972. The principal issue
presented is whether Respondent Company violated
Section 8(a)(1) and (3) of the National Labor Relations Act
by failing and refusing to reinstate two strikers, Matthews
W. Drewery and Donald R. Montague , upon receipt of
their unconditional offers to return to work . Respondent
Company asserts , inter alia, that it has refused to reinstate
employees Drewery and Montague because they engaged
in acts of misconduct during the strike.
Upon the entire record , including my observation of the
witnesses , and after due consideration of the briefs filed by
the General Counsel and Respondent Company, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, the answer admits , and I find and
conclude that Respondent Company, a Louisiana corpora-
tion, is engaged in the manufacture of rubber products at
Baton Rouge; that, during the 12-month period preceding
the issuance of the complaint , Respondent Company in the
course and conduct of its business purchased and received
directly from points outside the State of Louisiana goods
and materials valued in excess of $50,000; and that
Respondent Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
The complaint further alleges, the answer admits, and I
find and conclude that the Charging Party Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
A. Introduction
The complaint alleges, the answer admits, and I find that
about October 1, 1971, "certain employees of Respondent
... ceased work concertedly and went on strike"; that,
subsequently, about April I, 1972 , strikers Drewery and
Montague , "employed by Respondent at its Baton Rouge
plant . . . made unconditional offers to return to work";
that about April 3 , 1972, "Respondent failed and refused
to reinstate Drewery and Montague"; and that about April
5, 1972, "Respondent terminated the employment of
Drewery and Montague and since said date has failed and
refused and continues to fail and refuse to reinstate them."
In addition , the parties stipulated before me and I find that
at all times material Respondent Company employed at its
CAPITAL RUBBER & SPECIALTY CO., INC. 717
Baton Rouge plant about 23 production workers who were
in the bargaining unit represented by Charging Party
Union; and that Respondent Company also employed 4
clerical and 7 administrative persons, including Company
President Russell C. Scholl, a salesman, a business
manager, and accountants.
The parties further stipulated and I find that approxi-
mately 13 unit employees went on strike about October 1,
1971; i that 4 of the 13 strikers have not returned to work
with Respondent Company; 2 that 2 of the 13 strikers
returned to work before the strike ended; 3 and that 5 of
the 13 strikers returned to work4 following written
notification by the Union to the Company that "the
striking employees of your Company intend to cease the
strike as of 8 a.m. April 3, 1972, and the Union further
offers on behalf of the striking employees their uncondi-
tional return to work The only two striking
employees allegedly denied reinstatement were Drewery
and Montague. Both Drewery and Montague were
admittedly given a document on April 5, 1972, signed by
y,Nmpany President Scholl, stating:
During the strike you engaged in conduct which is
unacceptable from the Company's standards. You have
been replaced and therefore will not be reinstated.
The events culminating in the above strike are also the
subject of a related unfair labor practice decision issued by
the Board on July 18, 1972 (Case 15-CA-4310,198 NLRB
No. 46). At the request of counsel for General Counsel, I
have taken official notice of the Board's findings and
conclusions in that proceeding. Briefly, the Board, in
agreement with the Trial Examiner, found and concluded
that Charging Party Union was at all times material the
exclusive bargaining agent of "all full time and part time
hourly paid employees" at the Company's Baton Rouge
plant; and that Respondent Company violated Section
8(a)(1) and (5) of the Act by "refusing, on August 17, 1971,
and thereafter, to bargain- with the Union upon request
"5
B. The Alleged Acts of Misconduct
Company President Scholl testified, inter alia, that the
Company has refused to reinstate employees Drewery and
Montague because of "[t]heir conduct on the picket line"
and "acts which endangered [his] as well other people's
lives . ..." Scholl explained that no "picketers besides
those two" were refused reinstatement. Scholl related the
alleged acts of misconduct which he had observed. As for
employee Montague, Scholl recalled:
On very many occasions [Montague] left the normal
walk of the picket line and came over with his placard
[picket sign] and laid it right up against the window of
my car and kept edging right out into the street as I
tried to edge out into the traffic [from the plant].
Scholl testified that the picket sign carried by Montague
was larger than Scholl 's left "front side window" and thus
impeded his vision as he left the plant . As a result,
according to Scholl's testimony , he had "[t]hree very close
calls" with other cars , causing a "screaming of breaks."
Scholl added that Montague impeded his vision as related
above on "more than 20 times."
Further, Scholl related that during the 6-month strike he
"did not say one word at any time to any picket for any
reason" and had told his employees that he "preferred
them not to exchange any words with the pickets ... .
The pickets, however , according to Scholl , made numerous
comments to him when he entered and left the plant.
Scholl characterized Montague and Drewery as "the most
outspoken" of the pickets . As Scholl testified , they said,
"[a]lmost every day when I went in and out," "Good
morning, big nigger ." Scholl attributed these remarks to
"both Montague and Drewery"-but "principally," Mo-
ntague-during "the early stages of the strike ." Later,
"both" Montague and Drewery-but "principally," Mon-
tague-would assertedly say: "Hello, you big fuckin'
nigger son of a bitch ." Montague, according to Scholl, also
stated to Scholl around Christmas: "Well, you won't be
around next week."6
On cross-examination , Scholl acknowledged that the
placard which Montague allegedly held up, thereby
impeding Scholl 's vision as he left the plant, was tied by
string around Montague 's neck and at no time did
Montague remove the sign from over his head . Further,
Montague never used profanity while he allegedly held up
his sign at Scholl . Scholl also testified that about 13
employees picketed at the beginning of the strike, but only
3 employees-Drewery, Montague, and Tucker-remained
on the picket line during the entire 6-month period ; that he
determined to terminate Drewery and Montague "within
the first two months" of the strike ; and that he first
notified Drewery and Montague to that effect in letters
handed to the employees on April 5, 1972. Scholl further
testified that he also decided to terminate employees
Tucker and Smith during the strike; and that he gave
letters of termination to Tucker and Smith similar to those
given to Drewery and Montague.
As for Tucker, Scholl assertedly "had a report" that
Tucker had made an obscene or vulgar remark to a female
employee during the picketing . Scholl , upon further
investigation , discovered "that the party who had made the
general statement [or complaint ] earlier could not say for
sure that Earl Tucker was the one who made the [offensive
remark]. As a matter of fact, she [the employee] said she
was quite sure it was not" Tucker. Scholl also spoke to
Tucker who denied the offensive statement attributed to
I The 13 employees are- Lee Trusclair, Willie Dixon , Bertel Young, Ed
Nicholas, Harry Benton , Richard Williams . Raymond Herbert, Morris
Spland , Charles Kelly, Earl Tucker, Isaih Smith , Matthews Drewery, and
Donald Montague.
2 Trusclair, Dixon, Young. and Smith
a Nicholas and Benton.
4 Williams. Herbert, Spland , Kelly, and Tucker
5 However, the Board declined to accept the "[Trial I Examiner 's finding
that the strike following [Respondent' s I unlawful refusal to bargain was an
unfair labor practice strike" because , as the Board noted , the Trial
Examiner "cites no factual basis for his conclusion that the strike 6 weeks
later was provoked by Respondent 's unfair labor practice" and the record
contains no "testimony on the cause of the strike or its objectives."
6 Scholl also testified that he "constantly got reports from employees
about . being followed home at night". that he "was told by a number of
employees that they were being followed home and being chased at night
. [b ly the pickets . . [ i In the beginning by all the pickets": and that his
decision not to reinstate Drewery and Montague was based in part "upon
reports that [he ] got from other employees about misconduct ." The alleged
acts of misconduct affecting other employees are summarized infra
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him and, consequently, Scholl "tore . . . up" Tucker's
letter of termination. As for Smith, Scholl also gave him a
letter of termination . However , Smith-according to
Scholl-never pursued his application to return.7
Employee Frances Hernandez testified:
As I was leaving the office that afternoon [during the
strike] I punched out and walked out the back
warehouse door . . . to get to the back parking lot and
the comment was made ... "I sure would like to have
some of that ... .
Hernandez also testified that this comment was made while
only Montague and Drewery were walking the picket line;
that she "couldn't say which one made the comment"; that
there were other employees leaving the plant about the
same time ; and that she had her back toward the street
where the pickets were walking. Hernandez heard no other
comments from the pickets , although she testified that
Montague would whistle and "throw " kisses at her as she
would leave in the afternoon.
Employee Helen Bridges testified that upon her return
from lunch one afternoon during the strike, she heard the
comment: "striped whore." Bridges explained that she had
on a striped dress at the time . Bridges further testified that
this remark came from a parked car in the lot adjoining the
plant ; that Drewery and Montague were seated in the car;
and that she did not know which one made the remark
because , as she testified , " I never looked at them because I
don't care to look right at them." Employee Bridges also
recalled that on one occasion when a salesman named
Richard Doughty returned her to the plant after lunch,
"one of them [Drewery or Montague ] made the comment"
to the effect that Doughty had had sexual relations with
her during lunchtime. According to Bridges, Drewery and
Montague were seated in the parked car in the nearby lot
when this comment was made and she could not identify
which one made the statement.8
Employee Daniel Sansone testified that on several
occasions Montague had uttered words at the picket line to
the effect that Montague had had sexual relations with
Sansone's mother; and that on another occasion Drewery
had also made related vulgar and obscene comments to
Sansone referring to the employee 's sister . Sansone also
recalled that Montague had stated in his presence to
another employee, whose wife had just had a baby, "that
was Bruce 's baby or something" to that effect . Sansone
also claimed that he was frequently called "nigger whore, a
nigger punk [and ] a dago" by either Drewery or Montague.
Sansone acknowledged that he would return these com-
ments , calling both pickets "a nigger."9 Sansone was
recalled as a witness by Respondent to relate that he had
also heard Montague and Drewery on one occasion make
7 Respondent 's counsel asserted at the hearing that two letters received
from the Company's insurance agency (dated April 7 and 12, 1972)
concerning the driving records of employees Drewery and Smith establish
an "additional reason" for not reinstating Drewery The significance of the
two letters , insofar as pertinent to the matter in issue before me, is discussed
below.
8 Bridges also recalled that the two pickets would sing songs or rhymes
during the strike , which she characterized as "dirty " She was unable to
recall the words or the subject matter of the songs or rhymes
9 Union Business Agent Pedescleaux , who was present at the picket line.
assertedly called Sansone "a nigger boy" and Sansone , as he testified,
"would call him a nigger back "
a vulgar and obscene comment to two girls as they passed
by in front of the pickets. Sansone acknowledged that there
"are words like that" used inside the plant, but only
"between the men , like in conversation."
Employee David Johnson testified that either Drewery
or Montague uttered two vulgar and obscene comments to
him during the strike ; Johnson could not recall which one
of the two pickets made the statements . Likewise, former
employee Brian Abrams related that there was cursing
"every day" during the strike by Montague and Drewery;
he specifically recalled being asked a vulgar and obscene
question by Drewery during the strike . And, employee
Joseph Cooper, as he entered the premises , was repeatedly
accused by Drewery of "killing [his ] second wife."10 On
other occasions , Drewery asked Cooper, "Is she gone
yet?", referring to his second wife.
Employee Oliver Jones testified that he was followed
home twice by Drewery and Montague during the strike.
During one of the two incidents , as Jones testified, he
"stopped in a shopping center on the corner to get a pack
of cigarettes" and noticed "in [his] rear view mirror" that
Drewery and Montague "pulled in . . . in their car."
Montague "got out of [his] car and walked toward
[Jones ]"; and Jones "rolled [his] window up and backed
away." 11 Later, Jones stopped at a red light and Montague
got out of his car . Jones, according to his testimony, "had
[his] window up and [he] didn' t hear what [Montague]
said ." On another occasion , according to Jones:
I happened to pick up Montague 's car in my rear
view mirror again and saw him driving behind me for a
while , and he [Montague ] pulled up beside me and he
never really looked at me. I would speed up and he
would speed up and kind of slow up again ... .
Jones recalled that Union Business Agent Pedescleaux was
also driving his car behind Jones at the time.
Following the above incidents , Jones confronted Mon-
tague on the picket line and asked the picket "why" this
harrassment had been directed at him . Montague asserted-
ly responded: " I am going to fuck you up" or "We are
going to fuck you up ...." Jones asked "why," and
Montague assertedly stated : "I will do two years for your
ass right now." According to Jones, Montague then "made
a turn . . . to go to the trunk [of his car] and I [Jones]
walked back to the shop and that was the end of it." 12
Employee Donald Montague testified, inter alia, that,
during the last few months of the strike, the only pickets on
the line were Drewery, Tucker, Pedescleaux, and himself.13
Montague denied the various acts of misconduct attributed
to him and Drewery by the Company' s witnesses. Mon-
tague testified that employee Jones,
came out of the plant one day and he called me
10 Cooper's first wife had died of a cerebral disease and his second wife
was, at the time . seriously ill
I I Jones testified that Montague "had his hand stuck under his shirt" at
the time.
12 Jones also related that a tire had fallen off of his wife's new car, after
hitting a bump, and someone had poured acid on the car on another
occasion when the car was parked at a ballpark There is no evidence of
record showing that the Union or any of the pickets were responsible for
these alleged occurrences
13 Montague also related that Drewery. Smith , and himself were the only
three truckdnvers employed by the Company
CAPITAL RUBBER & SPECIALTY CO., INC. 719
[Montague]. He wanted to talk to us and he didn't. He
came out on the driveway of Capital Rubber . . . and
he said he wanted to talk to us and we said OK and,
well, he didn't want to.. . . I turned and walked to the
picket line and he turned around and walked back to
Capital Rubber. After that he went down to the
shopping center and Drewery and I got into the car and
we went down to the shopping center. We pulled aside
of him and I said . . . I thought you wanted to talk
. ... Drewery got out of the car then and walked over
to Oliver's [Jones] car and Oliver pulled off.
Montague denied the other conduct and statements
attributed by Jones to him and Drewery. Montague also
recalled that employee Sansone "would come to the shop
door" during the strike "and called me a nigger, and I
called him a dago." Montague claimed that Sansone
initiated these exchanges, Montague did hear Drewery call
employee Cooper "coach" while the picketing was in
progress; he denied the other utterances related by Cooper
as discussed above.
Further, Montague recalled that, after the strike ended,
he went back to the plant seeking reinstatement. Scholl
interviewed him in the office. According to Montague,
Scholl "asked me if I wanted to come back to work there";
Montague said, yes; Scholl asked "why," and Montague
said, because "it was my job." Scholl "asked [Montague] if
[he] couldn't find a job somewhere else and [Montague]
told him, No." Scholl then told Montague that "he hadn't
had a chance to check with his attorney and check back the
following Wednesday." That Wednesday, the witness was
given his written notice of termination. Scholl told the
employee: "Here, I can't hire you back."
Employee Matthews Drewery denied the various acts of
misconduct attributed to him and Montague. He too
claimed that Jones "wanted to talk to US." 14 Drewery also
testified that Sansone repeatedly called him "nigger boy or
something" and Drewery "called him a black boy,
something like this." As for Cooper, Drewery recalled
calling him "coach or something like [that]." Finally,
Drewery testified that during his reinstatement interview,
he-like Montague-was asked by Scholl to return next
Wednesday because Scholl "hadn't had time to talk with
his lawyer." That Wednesday, he too received written
notification of his termination.
Employee Earl Tucker testified that during his reinstate-
ment interview,
[Scholl] asked me did I want to come back to work and
I told him, yeah, and he said why did I want to come
back to work there, and 1 told him because that was my
job and I still wanted to work there. . . . [Scholl] told
me he hadn't talked to his lawyer and asked me could I
come back the following Wednesday ... .
That Wednesday, Scholl gave Tucker a letter of termina-
tion similar to the ones given to Drewery and Montague.
14 'According to Drewery "He [Jones I drove off and we got off the line
and we drove off behind him He stopped in the shopping center We drove
in I got out of the car and walked up to his car because he said he wanted
to talk He rolled up his window , backed up and left the parking lot "
15 Pedescleaux further testified
He [Jones] told us he would meet us on the other side of the
River and when we got on the other side of the River, he said, "no, you
are trying to kill me."
During the ensuing conversation , Tucker denied "cursing
some ladies ," and Tucker said that he "would go to court
and prove it to" Scholl. At the end of the interview, Scholl
ripped up the employee' s letter of termination and
reinstated him.
Union Business Agent Dennis Pedescleaux testified, inter
a/ia, that the Union is the certified representative of the
Company's unit employees; that the last bargaining session
between the Union and the Company was on August 17,
1971; and that thereafter , "about three days before the
strike," the Union called a meeting and told the employees,
that we had tried to negotiate a contract with the
Capital Rubber Company and the Company refused to
bargain, and we had gone to the Federal Mediation for
help and they had contacted us and said the Company
refused to meet anymore with us, and they [the
employees] would have to make a decision that night
whether to strike or not ... .
A secret ballot vote was taken and the employees present
voted unanimously to strike. The picket line went up 3
days later.
Pedescleaux, who was present during the picketing,
denied various acts of misconduct attributed to Drewery
and Montague. He only heard the pickets call Scholl,
"Scoop." Pedescleaux assertedly had "forewarned" the
pickets "about obscenities." Pedescleaux admitted follow-
ing Jones one day "across the River because he [Jones]
didn't want the Company to see him talking to US." is
Pedescleaux also claimed that private guards "pulled guns"
on the pickets three times during the strike. Pedescleaux
also accused Sansone of calling him a "nigger" and then
the witness in turn "would call [Sansone ] a black boy."
I credit the testimony of employees Hernandez , Bridges,
Sansone, Johnson, Cooper, and Abrams as stated above.
Insofar as their testimony conflicts with the testimony of
Drewery, Montague , and Pedescleaux, I find that the
testimony of the former is a more trustworthy and reliable
account of what transpired. In making these credibility
determinations, I have relied on the demeanor of the
witnesses and the fact that the testimony of Hernandez,
Bridges, Sansone , Johnson, Cooper, and Abrams was at
least in part mutually corroborative of the vulgarities and
obscenities repeatedly uttered during the strike. Likewise, I
credit the testimony of employee Jones as stated above. In
so finding, I rely on his demeanor and the fact that
Drewery, Montague and Pedescleaux in pertinent part
substantiate the testimony of Jones. Insofar as the
testimony of Drewery, Montague, and Pedescleaux as
stated above conflicts with the testimony of Jones, I find
that Jones is a more credible and trustworthy witness.is
Finally, with respect to the testimony of Company
President Scholl, although I am persuaded that he has
exaggerated the number of times that picket Montague
held his placard up to the front left window of Scholl's car
16 1 also credit the testimony of Tucker as stated above His testimony is
in pertinent part substantiated by Scholl. Relying on demeanor . I find that
Tucker's testimony is a trustworthy and complete account of the events
related
Likewise . I credit the uncontroverted testimony of Pedescleaux insofar
as it pertains to the events culminating in the strike . This testimony is
substantiated by the sequence of events and, relying on demeanor, is
credible.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and has similarly overstated the attending dangers, I find
nevertheless that such acts did in fact occur.17 Further, I
find that Montague and Drewery did make the comments
attributed to them by Scholl. Insofar as the testimony of
Scholl conflicts with the testimony of Drewery, Montague,
and Pedescleaux, I find that Scholl's testimony is more
credible and trustworthy.
C. The Communications Received by the Company
Concerning the Driving Record of Employee Drewery
According to Company President Scholl , subsequent to
the time he denied reinstatement to employee Drewery he
received two letters from his insurance company, stating,
inter alia, that the insurance company did "not want .. .
to reinsure two drivers [Drewery and Smith] . . . because
of [their] driving records." 18 The first letter, dated April 7,
1972, from Respondent's insurance agency and addressed
to the Company, states:
Gentlemen:
Re: Comprehensive Auto Insurance
Drivers Isaih Smith and Matthews Drury, Jr.
[Drewery ]
The insurance carrier of your comprehensive automo-
bile liability insurance has just recently completed the
motor vehicle records (MVR's) on the above two
individuals and the carrier, Travelers Insurance Com-
pany, has informed us that they do not desire to write
this coverage if these two individuals are allowed to
drive . Mr. Smith has some seven violations in the last
three years, and Mr. Drury has four violations, three of
which are for speeding.
We would like to emphasize that if these two individu-
als are allowed to drive your vehicles, it would seriously
jeopardize your insurance program.
The second letter, dated April 12, 1972, again from
Respondent's insurance agency and addressed to the
Company, states:
We are writing you with regard the renewal of your
automobile insurance effective May 1, 1972.
Our underwriter at the Travelers Insurance Co. has
indicated a deep concern about the MVR reports on
your drivers and has told us that they will no longer
insure drivers with poor driving records.
Effective with your new policy, May 1, 1972, the
insurance company will no longer cover you for drivers
with unacceptable driving records.
We suggest that each new employee being consid-
ered as a driver be made to obtain a copy of his MVR
from the Department of Revenue on South Foster
Drive and to present it to you prior to employment.
You should in turn forward MVR to us and we will
have it reviewed by the insurance carrier to see if, the
proposed driver is acceptable for insurance purposes.
We feel if your firm will follow these instructions
you will note an improvement in your accident record
and your willingness to cooperate with the insurance
company will go a long way in helping you to find a
ready market for your automobile insurance.
On cross-examination, Scholl testified that his insurance
agency has requested a check on the driving records of his
employees "on an annual basis and [his] insurance
contract comes up on May 1st ...." Scholl identified the
State Motor Vehicle Report, dated April 4, 1972, for
Drewery. That report shows the following violations on the
dates indicated:
3-18-69 Speeding
9-11-69 Non-moving
12-10-69 Speeding
1-23-70 Speeding
Although Scholl admittedly had been advised of the above
violations during earlier years, he took no action against
the driver . Scholl said : "They [the insurance agency ] raised
no particular sand on that particular year ...." Later,
Scholl , referring to 1971 , acknowledged that the insurance
company had complained about Drewery's driving record,
but Scholl "didn't take him off" his truck.19
Ill. DISCUSSION
Under settled principles a striking employee may
disqualify himself for reinstatement by engaging in serious
acts of misconduct during a strike. "The question in each
case is whether , under the circumstances , the alleged
misconduct of the striker is sufficient to justify the refusal
to reinstate ." W.J. Ruscoe Company v. N. L. R. B., 406 F.2d
725, 727 (C.A. 6, 1969). For every act of impropriety on the
part of a striking employee does not automatically deprive
the employee of the protection of the National Labor
Relations Act. As the court stated in N.L. R.B. v. Illinois
Tool Works, 153 F.2d 811 , 815-816 (C.A. 7, 1946):
We believe , as petitioner argues , that courts have
recognized that a distinction is to be drawn between
cases where employees engaged in concerted activities
exceed the bounds of lawful conduct in "a moment of
animal exuberance" (Milk Wagon Drivers Union v.
Meadowmoor Dairies, Inc., 312 U.S. 287, 293 (1941)) or
in a manner not activitated by improper motives, and
those flagrant cases in which misconduct is so violent
or of such serious character as to render the employees
unfit for further service , cf. N.L.R.B. v. Fansteel
Metallurgical Corp., 306 U.S. 240 (1939) and Southern
Steamship Co. v. N. L. R. B., 316 U.S. 31 (1942), and that
it is only in the latter type of cases that the courts find
that the protection of the right of employees to full
freedom in self-organizational activities should be
subordinated to the vindication of the interests of
society as a whole.
Likewise , as stated by Mr. Justice Frankfurter in Mea-
dowmoor Dairies Inc., supra , 312 U.S. at 293 : ". . . the right
of free speech cannot be denied by drawing from a trivial
rough incident or a moment of animal exuberance the
conclusion that otherwise peaceful picketing has the taint
it 1 note that no other witnesses testified about the incidents observed by respect
Scholl. 19 During the earlier year, Scholl was permitted by the insurance
18 Counsel for Respondent asserts this as "an additional reason " for company to pay an additional premium in order to keep Smith on the truck,
denying Drewery reinstatement Scholl's testimony is uncontroverted in this Smith reimbursed the Company for this extra premium
CAPITAL RUBBER & SPECIALTY CO., INC. 721
of force." And see Hugh H. Wilson Corp. v. N.L.R.B., 414
F.2d 1345, 1356, fn. 20 (C.A. 3, 1969) (and cases cited),
cert. denied 397 U.S. 935.
The Board, in striking the balance required under the
foregoing principles, has determined that threats of
physical violence and property damage may, under the
circumstances of a particular case, constitute "serious
misconduct" justifying the refusal to reinstate a striking
employee. See, generally, Firestone Tire & Rubber Compa-
ny, 187 NLRB No. 8 (1971), enforcement denied 449 F.2d
511 (C.A. 5, 1971); 20 Terry Coach Industries, Inc., 166
NLRB 560, fn. 2, 563-564 (1967), enfd. 411 F.2d 612 (C.A.
9, 1969); Schott Metal Products Company, 128 NLRB 415
(1960); Longview Furniture Company, 110 NLRB 1734
(1954) (on remand); Rangaire Corp., 157 NLRB 682, 688
(1966). Thus, for example, the Board has held that
"threatening to put a bullet in [a person's] back if he .. .
did not leave town that night" and an employee's
"involvement in the threat" to "cause serious injury to" an
employer's "drivers and damage to their equipment if that
company persisted in crossing the picket lines" constitute
sufficient acts of misconduct to deny reinstatement.
Firestone Tire & Rubber Company, supra. On the other
hand, the Board has held that "name calling and vague
hand gestures" and a "vague and ambiguous" vulgar
remark, which could be "understood to be a vague threat,"
were insufficient acts of misconduct to justify a refusal to
reinstate (Ibid.) Moreover, the Board, in determining
whether reinstatement of unfair labor practice strikers will
effectuate the policies of the Act, "will balance the severity
of the employer's unfair labor practice which provoked the
industrial disturbance against whatever employee miscon-
duct may have occurred in the course of the strike."
N.L.R.B. v. Thayer Co., 213 F.2d 748, 755 (C.A. 1, 1954),
cert. denied 348 U.S. 883; Golay & Co. v. N.L.R.B., 371
F.2d 259, 263 (C.A. 7, 1967) cert. denied, 387 U.S. 944;
N.L.R.B v. Kohler Company, 300 F.2d 699, 702-705
(C.A.D.C., 1962), cert. denied 370 U.S. 911, and 345 F.2d
748 (C.A.D.C., 1965), cert. denied 382 U.S. 836.
As for the burden of proving such acts of misconduct,
the court restated the controlling principles in Dallas
General Drivers, etc. v. N.L.R.B., 389 F.2d 553, 554
(C.A.D.C., 1968):
The Trial Examiner found no violation of sections
8(a)(1) or 8(a)(3) in the employer's refusal to rehire
these employees, since the employer had acted on its
good faith belief that the three had been guilty of picket
line misconduct. He ruled that proof of such good faith
belief shifted the burden of proving innocence to the
general counsel representing the union, and found that
he had failed to meet that burden. The Board adopted
these conclusions of the Trial Examiner.
We conclude that the Trial Examiner correctly
stated the law in ruling that the burden of proving
innocence of strike misconduct shifted to the general
counsel upon proof of a good faith belief by the
employer that such misconduct had occurred.
The court cited N.L.R.B. v. Plastic Applicators, Inc., 369
F.2d 495 (C.A. 5, 1965); N.L.R.B. v. Burnup & Sims, Inc.,
379 U.S. 21, 23, fn.'13 (1964); Rubin Bros. Footwear, Inc.,
99 NLRB 610, 611 (1952).
In the instant case , the credited evidence establishes and
I find and conclude that Respondent Company, in denying
and refusing reinstatement to strikers Drewery and
Montague , acted on its good -faith belief that they had been
guilty of misconduct during the strike . See Dallas General
Drivers etc. v. N.LR.B., supra; N .LR.B. v. Plastic Applica-
tors, Inc., supra; and cases cited. Thus, Company President
Scholl personally observed in part such conduct and was
also informed of other related conduct by employees.
Further, in the case of striker Tucker, Scholl reinstated this
employee following an investigation which disclosed that
Tucker was in fact free of any misconduct. The question
remains, whether the acts and conduct of Drewery and
Montague as proven before me are sufficient to justify
Respondent's refusal to reinstate them.
The credited evidence establishes and I find and
conclude that strikers Drewery and Montague uttered on a
number of occasions during the 6-month strike offensive,
vulgar, and obscene remarks . During this same period,
nonstriking employee Sansone also exchanged vulgarities
with the pickets . In fact, Sansone acknowledged that there
.,are words like that" used inside the plant, but only
"between the men, like in conversation ." The Board, in
dealing with the subject of "name calling on the picket
line," stated in Longview Furniture Company, 100 NLRB
301, 304 (1952), enfd. as modified 206 F.2d 274 (C.A. 4,
1953), on remand 110 NLRB 1734 (1954), as follows:
Although the Board does not condone the use of
abusive and intemperate language , it is common
knowledge in a strike where vital economic issues are at
stake , striking employees resent those who cross the
picket line and will express their sentiments in language
not altogether suited to the pleasantries of the drawing
room or even to courtesies of parliamentary disputa-
tion . Thus, we believe that to suggest that employees in
the heat of picket line animosity must trim their
expression of disapproval to some point short of the
utterances here in question , would be to ignore the
industrial realities of speech in a workday world and to
impose a serious stricture upon employees in the
exercise of their rights under the Act.
And see Republic Steel Corp. v. N. L R. B., 107 F.2d 472,479
(C.A. 8, 1939), cert. denied 309 U.S. 684; Firestone Tire &
Rubber Company, supra; Hugh H. Wilson Corp. v.NLR.B.,
supra; Terry Coach Industries, Inc., supra. Here, too, I
find and conclude that the statements made by Drewery
and Montague during the 6-month strike-although at
times vulgar, offensive, and obscene and not to be
condoned-do not sufficiently justify Respondent Compa-
ny's refusal to reinstate them . Likewise, I find and
conclude that striker Montague's holding up of his picket
sign at Company President Scholl and thus in part
impeding Scholl's vision as he was leaving the plant does
not, under the circumstances of this case, justify Respon-
dent's refusal to reinstate the striker. I note that the
20 The Fifth Circuit, in denying enforcement of the Board 's order in the
above case , determined that a particular "vulgar invective" "was a threat of
physical harm and constituted serious misconduct warranting . . . termina-
tion" (449 F.2d at 512).
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee, during such incidents, was wearing the picket
sign around his neck; that the picket never removed the
sign from his neck; and that at the time the picket was not
making offensive remarks to Scholl. In sum, I am not
persuaded that the above conduct is sufficient to deny the
striking employees the protection of the Act 21
I encounter greater difficulty in determining whether the
alleged threats concerning employee Jones, as proven
before me, are sufficient to deny the two strikers reinstate-
ment. Thus, on two occasions during the 6-month strike
Drewery and Montague followed nonstriking employee
Jones by car. On both occasions, Montague attempted to
talk to Jones and, after Jones indicated that he did not
want to talk to the pickets by rolling up or keeping up his
window, the incidents ended. Later, when Jones initiated a
conversation with the pickets at the plant and asked them
why they were harrassing him, Montague stated: "I am
going to fuck you up" or "we are going to fuck you up,"
and "I'll do two years for your ass right now." Although
Jones testified that Montague "made a turn to go to the
trunk [of his car]," Jones also acknowledged that he in turn
"walked back to the shop and that was the end of it."
While such language may indicate a threat of bodily harm,
under the circumstances of this case it suggests nothing
more than the rough, vulgar, and obscene method by
which the strikers communicated their emotions. Indeed,
Jones walked away; no physical act occurred at any time
during the strike; and in effect the pickets were crudely
voicing their displeasure at a nonstriking coemployee. I
note that there were no other acts of car following or
language of the type quoted above and no acts of violence
despite the fact that, at the time, Drewery and Montague
were observing their picket line dwindle and costrikers
return to work or find jobs elsewhere; and despite the fact
that they were engaged in this 6-month strike following
management's unlawful refusal to bargain in good faith
with the employees' certified bargaining agent.22
Respondent asserts as an "additional reason" for
denying reinstatement to Drewery the employee's poor
driving record and the insurance agency's letters pertaining
to that record. The letters from the insurance agency are
dated April 7 and 12, 1972, and admittedly were received
by Scholl after he had determined to terminate Drewery
and had so notified the employee. Drewery's letter of
termination, dated April 5, 1972, makes no reference to the
employee's poor driving record. And, an examination of
Drewery's driving record indicates that the employee's last
violation was in January 1970. Despite the fact that
21 Scholl, in relating the various comments made to him by the pickets,
testified that Montague also said "Well, you won ' t be around next week "
Scholl placed this statement around Christmas and, according to Scholl,
nothing else was said In the context of the various remarks made , I do not
regard this vague and isolated remark as a threat
22 The Board rejected in the related unfair labor practice case (supra, In
5) the Trial Examiner's finding that the strike was an unfair labor practice
strike I am bound by the Board 's finding However, in the instant case, the
uncontroverted and credited testimony establishes that the employees
struck following and because of management's refusal to bargain with the
Union
23 In its brief, Respondent also cites court and Board decisions in
support of the proposition "The use of obscenities and threats to
supervisors and non-striking employees has specifically been held to be
valid grounds for denying reinstatement " The cited cases are factually
distinguishable from the instant case For example, in N L R B v Trumbull
Respondent and its insurance carrier reviewed employee
driving records annually during April or May, there is no
explanation as to why the employee's 1969-70 speeding
violations suddenly became a serious concern to the
insurance company or the agency. No testimony by the
insurance company or the agency was adduced, And, in
the past, management had permitted drivers with bad
driving records to drive if they paid the extra insurance
premiums required. How or under what circumstances this
past practice was changed is not adequately or credibly
explained in the record. I therefore find and conclude that
Drewery's 1969-70 driving record and the communications
of the insurance agency are not an "additional reason" for
denying reinstatement to the employee. See Terry Coach
Industries, Inc., supra, 166 NLRB at 563, fn. 10.23
In sum , I find and conclude that Respondent Company,
by terminating and failing and refusing to reinstate striking
employees Drewery and Montague upon their uncondi-
tional applications to return to work, has violated Section
8(axl) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Company set forth in
section III, above, occurring in connection with the
operations of Respondent described in section I, above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2, The Charging Party Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, Respondent interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section
7 of the Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By the above conduct, Respondent discriminated
against employees Matthews W. Drewery and Donald R.
Montague in regard to their hire and tenure of employ-
ment, thereby discouraging membership in the Union, and
Asphalt Company, 327 F.2d 841. 846 (C.A. 8, 1964), cited by Respondent, the
court stated
the picket line conduct of these two men was sufficiently obstructive
and threatening to place employee Johnson in fear of bodily harm and
to cow him to the extent that he stayed away from his job for five
weeks, Maxwell 's extreme measures resulted in damage to a
delivery truck: and their conduct was not limited to verbal abuse
or heckling but included lying down in front of the moving truck and
the purposeful display of a good sized rock . These incidents were not
the urge of "a moment of animal exuberance " They took place over a
period of seven days
Likewise, in N LR B v Fansteel Metallurgical Corp, supra, there was a
sitdown strike and plant seizure , and in N L R B v Longview Furniture Co.
supra, there was , inter alia, a criminal assault The other cases cited by
Respondent are similarly inapposite here
CAPITAL RUBBER & SPECIALTY CO., INC. 723
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Company engaged in
certain unfair labor practices , I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that Respondent, in violation of
Section 8(a)(1) and (3), terminated strikers Drewery and
Montague . It will therefore be recommended that Respon-
dent offer to these individuals immediate and full reinstate-
ment to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
suffered by reason of their unlawful termination, by
payment to them of a sum of money equal to that which
they normally would have earned from the date of their
discrimination to the date of Respondent 's offer of
reinstatement , less net earnings during such period, with
backpay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289. Backpay shall carry interest at the rate of 6
percent per annum , as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716. Further, it will be recommended that
Respondent preserve and , upon request , make available to
the Board all payroll records, social security payment
records , timecards, personnel records and reports , and all
other records necessary and useful to determine the
amount of backpay due and the rights of reinstatement
under the terms of these recommendations.
RECOMMENDED ORDER24
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in the case,
it is recommended that Respondent Capital Rubber &
Specialty Co., Inc., its officers , agents , successors, and
assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in General Truck Drivers,
Warehousemen and Helpers Local No. 5, a/w Internation-
al Brotherhood of Teamsters , Chauffeurs , Warehousemen
& Helpers of America, Ind.,or in any labor organization,
by discharging or refusing to reinstate employees because
of their union or concerted activities , or in any other
manner discriminating against them in regard to hire or
tenure of employment , or any term or condition of
employment.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to employees Matthews W. Drewery and
Donald R. Montague immediate and full reinstatement to
their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings , as set forth
in "The Remedy" section of the Trial Examiner's Decision.
(b) Notify the above-named individuals if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application, in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set
forth in "The Remedy" section of the Trial Examiner's
Decision.
(d) Post at its Baton Rouge, Louisiana, plant and
facilities copies of the attached notice marked "Appen-
dix. " 25 Copies of said notice, on forms provided by the
Regional Director for Region 15, shall after being duly
signed by Respondent, be posted immediately upon receipt
thereof, in conspicuous places, and be maintained for a
period of 60 consecutive days. Reasonable steps shall be
taken to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.26
24 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations , and recommended Order herein shall, as
provided in Sec . 102.48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions , and Order, and all objections
thereto shall be deemed waived for all purposes.
25 In the event that the Board 's 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."
26 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, notify said Regional Director , in writing,
within 20 days from the date of this Order , what steps Respondent has taken
to comply herewith.