Gsm, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1987

284 N.L.R.B. 174 (N.L.R.B. 1987)

174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
GSM, Inc. and Local 585, International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America. Cases 4-CA-
13204 and 4-CA-13392
10 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 30 March 1984 Administrative Law Judge
Karl H. Buschmann issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs, and the Charging
Party filed a brief in opposition to the Respond-
ent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings,2
and conclusions only to the extent consistent here-
with, to modify his remedy, 3 and to adopt his rec-
ommended Order as modified.
We affirm the judge's findings that the Respond-
ent unlawfully discharged and refused reinstate-
ment to strikers Marenic, Davis, and Jones. 4 With
respect to these strikers, the judge credited their
testimony denying that they engaged in any picket
line misconduct. Accordingly, we find that even if
the Respondent held an honest belief that they had
engaged in misconduct, the General Counsel met
the burden of proving that such misconduct did
not occur.
1 The Respondent excepts to the judge's ruling denying its motion to
dismiss the complaint on the grounds that, under Markle Mfg Co, 239
NLRB 1142 (1979), enfd. 623 F 2d 1122 (5th Cir 1980), the General
Counsel had failed to establish a prima facie case. We affirm the judge's
ruling, agreeing that Markle is distinguishable insofar as the CB com-
plaint in that case, unlike here, identified specific individuals who had en-
gaged in picket line misconduct We express no view on the other bases
cited by the judge for distinguishing Markle or for otherwise denying the
motion
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
3 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.0 § 6621
4 Consistent with Abilities & Goodwill, 241 NLRB 27 (1979), the Judge
awarded backpay to the unlawfully discharged strikers computed from
the date of their discharge Chairman Dotson would overrule Abilities &
Goodwill, and would, in the event the unlawfully discharged strikers were
not permanently replaced prior to their discharge, date the Respondent's
backpay obligation to them from the time they made an unconditional
offer to return to work
284 NLRB No. 22
We also affirm the judge's finding that the strike
was converted to an unfair labor practice strike on
1 November 1982, shortly after the above strikers
were unlawfully discharged. 5 Additionally, we
affirm the judge's finding that the Respondent vio-
lated Section 8(a)(1) of the Act by threatening em-
ployees with the loss of their jobs and canceling
certain employees' insurance benefits.6
We disagree, however, with the judge's findings
that the Respondent unlawfully discharged and re-
fused reinstatement to strikers Attanasio, Errickson,
Paravati, and Smith. The record shows, and the
judge found, that Attanasio kicked a striker ,re-
placement's car as it was leaving the plant and at-
tempted to kick another; that Errickson slapped the
hood of a car as it was leaving the plant; that Para-
vati threw a beer can at the side of the Respond-
ent's delivery truck as it was leaving the plant; and
that Smith intentionally parked his van in areas
where the pickets could hide behind it and throw
rocks. Smith was also driving the van on an occa-
sion when, after following a company truck, his
passenger, striker Bohrer, jumped out at a stoplight
and threw a cinder block at the truck.
In Clear Pine Mouldings, 7 the Board held that
strike misconduct is disqualifying if, under all the
circumstances, it reasonably tends to coerce or in-
timidate other employees. With respect to Attana-
sio, Errickson, and Paravati, the judge found their
assaults on vehicles nondisqualifying under this
standard because they were "relatively, innocuous,"
because they were "unaccompanied . . by verbal
or other intimidating conduct," because the strikers
themselves "did not exhibit any threatening or vio-
lent demeanor" while assaulting the vehicles,
and/or because their assaults did not actually
damage those vehicles. 8 We disagree. Conduct
such as kicking, slapping, and throwing beer cans
at moving vehicles is intimidating enough in and of
itself without being accompanied by additional
threats or a "threatening or violent demeanor."
Further, while such conduct might be "relatively
5 The judge Inadvertently failed to order the Respondent to offer rein-
statement to all strikers who were neither discharged nor permanently re-
placed prior to the strike's conversion into an unfair labor practice strike.
We shall therefore modify the judge's recommended Order to include
this remedy See Interstate Paper Supply Go, 251 NLRB 1423 (1980)
6 Inasmuch as we also agree with the judge's conclusion that, under
Broyhill Go, 260 NLRB 1366 (1982), no remedial order is necessary for
these violations, we find it unnecessary to pass on the judge's finding that
the Respondent also violated Sec 8(a)(3) of the Act when it canceled
certain employees' Insurance benefits
7 268 NLRB 1044 (1984)
8 With respect to Errickson, the judge also stated that he was pro-
voked into slapping the car because his father had been struck by a strik-
er replacement's car However, Errickson himself cited only obscenities
shouted by the striker replacements and his "frustration" for his violent
behavior Moreover, it is unclear whether Errickson's father was struck
before or after the car slapping incident
GSM, INC. 175
innocuous" when measured against more violent
behavior, it nevertheless is violent conduct which
may reasonably tend to coerce or intimidate em-
ployees in the exercise of their rights protected
under the Act.9
With respect to Smith, the judge found his dis-
charge unlawful because there was no evidence
that Smith himself directly engaged in any coercive
or intimidating conduct. We find, however, that his
active cooperation with pickets engaged in such
conduct justified his discharge."
Accordingly, contrary to the judge, we conclude
that strikers Attanasio, Errickson, Paravati, and
Smith are not entitled to reinstatement.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 3.
"3. By discharging and refusing to reinstate strik-
ers James Marenic, Arthur Davis, and Lamont
Jones, the Respondent violated Section 8(a)(1) and
(3) of the Act."
2. Substitute the following for Conclusion of
Law 5.
"5. By threatening employees with the loss of
jobs and canceling certain employees' insurance
coverage, the Respondent violated Section 8(a)(1)
of the Act, but in view of its disavowal of that
conduct and corrective action a remedial order will
not be required."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, GSM, Inc., Pennsauken, New Jersey, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
9 See Stroehmann Bros. Co, 271 NLRB 578 (1984) (each of striker's
acts of blocking a truck, jumping on its running board, and banging on its
window, alone or in concert with other stnkers' misconduct, warranted
striker's discharge). It is noteworthy that, here, both Ernckson and Para-
vats acted in concert with other pickets in assaulting vehicles. For exam-
ple, several other pickets as well as Errickson slapped the car as it was
leaving the plant. Paravati, too, was not alone in attacking the Respond-
ent's delivery truck when its driver refused to honor the picket line.
There was testimony that another picket broke the truck's windshield,
and the videotape of the incident shows another picket also throwing an
object at the truck.
Member Babson finds it unnecessary to rely on this additional rationale
in concluding that Errickson's and Paravati's misconduct justified their
discharges and disqualified them from reinstatement.
I ° See Giddings & Lewis, 240 NLRB 441, 445-456 (1979). In agreeing
with his colleagues that Smith is not entitled to reinstatement, Member
Babson relies solely on the judge's finding that Smith was driving the van
when his passenger, Bohrer, jumped out and threw a cinder block at a
company truck. He finds that Smith's participation in this incident is suf-
ficient alone to justify Smith's discharge and disqualify him from rein-
statement.
1. Delete the names "Antonio Attanasio,"
"James Smith," "Brett Errickson," and "Dominic
Paravati" from paragraph 2(a).
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Upon their unconditional application to
return to work, offer immediate and full reinstate-
ment 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, to all strik-
ers whose jobs were not filled by permanent re-
placements on or before 1 November 1982, dismiss-
ing if necessary any persons hired after that date,
and make the strikers whole for any loss of earn-
ings and other benefits suffered as a result of the
Respondent's refusal, if any, to reinstate them, by
payment to each of them a sum of money equal to
that which each would have earned as wages
during the period commencing 5 days after the
date reinstatement is required to the date of the Re-
spondent's offer of reinstatement, with backpay and
interest thereon to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289
(1950), and New Horizons for the Retarded, 283
NLRB No. 181 (May 28, 1987)."
3. Substitute the attached notice for that 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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against any of you for en-
gaging in a strike or other concerted activity pro-
tected by Section 7 of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer James Marenic, Arthur Davis,
and Lamont Jones immediate 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, discharging if neces-
sary any replacements for these employees, 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.
WE WILL remove from our files any reference to
the above unlawful discharges and notify the em-
ployees in writing that this has been done and that
the discharges will not be used against them in any
way.
WE WILL, on their unconditional application to
return to work, offer immediate and full reinstate-
ment 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, to all strik-
ers whose jobs were not filled by permanent re-
placements on or before 1 November 1982, dismiss-
ing if necessary any persons hired by us after that
date, and make the strikers whole for any loss of
earnings and other benefits suffered as a result of
our refusal, if any, to reinstate them in a timely
fashion, plus interest.
GSM, INC.
Marvin Weinberg and Bruce D. Bagley, Esqs., for the Gen-
eral Counsel.
Steven W. Sulks, Esq., of Haddonfield, New Jersey, for
the Respondent.
William T Josem, Esq., of Philadelphia, Pennsylvania, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge.
These cases arose on a complaint issued in Case 4-CA-
13204 on November 30, 1982, and a second complaint
issued in Case 4-CA-13392 on March 16, 1983. The
complaints were consolidated on April 6, 1983. The re-
spective charges were filed on September 15, 1982, and
December 9, 1982, by Local 585, International Union,
United Automobile, Aircraft and Agricultural Implement
Workers of America. The complaints allege in substance
that the Respondent, GSM, Inc., unlawfully threatened
and interrogated its employees in violation of Section
8(a)(1) of the National Labor Relations Act, that the Re-
spondent discontinued payments for medical and life in-
surance for certain employees in violation of Section
8(a)(3) and (1) of the Act, and that the Respondent un-
lawfully discharged 21 employees because they partici-
pated in a strike. The Respondent filed its answer on
March 23, 1983, in which it admitted certain jurisdiction-
al allegations and in which it denied the commission of
any unfair labor practices.
A hearing was held before me on May 2-6, and 10,
1983, in Philadelphia, Pennsylvania. Pursuant to motion
by the General Counsel the complaint was amended
during the trial to allege that the strike by the employees
was prolonged by the Respondent's unfair labor prac-
tices.
On the entire record,' including my observation of the
witnesses, and after consideration of the briefs filed by
the General Counsel, the Company, and the Union, I
make the following
FINDINGS OF FACT
I. BACKGROUND
The Respondent, GSM, Inc., is a New Jersey corpora-
tion engaged in the remanufacture of automobile trucks
and industrial engines at its Pennsauken, New Jersey fa-
cility. The Company is admittedly an employer within
the meaning of Section 2(6) and (7) of the Act. It em-
ploys approximately 75 production employees who were
represented by the Union for about 10 years.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
The most recent collective-bargaining agreement be-
tween the principals expired on July 23, 1982. The par-
ties were unable to agree on a new contract after about
10 bargaining sessions. As a result, the Company's pro-
duction and maintenance employees went out on strike
on July 25, 1982. Within a few days, on July 28, 1983,
GSM requested injunctive relief in the state court of
New Jersey. The injunction prohibited the Union from
such conduct as maintaining more than four pickets at
each of the plant's entrances, trespassing on the Compa-
ny's premises, harassment of other employees, and acts of
violence. In spite of the state injunction, the striking em-
ployees engaged in occasional misconduct on the picket
line after the Company decided to hire replacement em-
ployees for the strikers in September 1982. On Septem-
ber 13 the first group of replacement workers reported
for work. On September 23 the Company filed charges
accusing the Union of picket line misconduct. On Octo-
ber 29 the Company informed 21 strikers that they were
terminated for their picket line misconduct. The Union
promptly informed the Company on November 1, 1983,
that its ongoing strike was in protest of GSM's unfair
labor practices. On November 30 the Board issued a
complaint in Case 4-CB-4519 charging the Union with
misconduct in violation of Section 8(b)(1)(A) of the Act.
The complaint, which did not identify individual strikers,
contained allegations of rock and bottle throwing, block-
ing the entrances to the plant, shouting and kicking, or
hitting of cars. The CB complaint against the Union was
in the process of settlement at the time of the trial in this
case. At the conclusion of the hearing, the settlement
stipulation was pending with the Board.
i Errors in the transcript are noted and corrected
GSM, INC. 177
The termination letter of October 29, 1982, was writ-
ten by Jeffrey Kelemen, the Respondent's president. It
notified 21 strikers that they were fired for having en-
gaged in picket line misconduct, but the form letter did
not specify the particular misconduct and simply in-
formed the discharged employee as follows:
This letter is to advise you that your employee
status at GSM, Inc., is being terminated immediate-
ly due to your picket line misconduct.
The specific incidents on which the Respondent relied
for its decision to discharge the strikers are itemized in a
letter, dated January 11, 1983, drafted by the Respond-
ent's counsel and addressed to the attorney for the Board
(G.C. Exh 11). The Charging Party emphasized in its
brief that the Respondent must be limited at the trial in
establishing its good-faith belief that the strikers had en-
gaged in the described conduct to those incidents speci-
fied in the letter, since the letter was written shortly
after the discharges. Any additional incidents, according
to the Union, should be disregarded. I generally sympa-
thize with this position, because the Respondent's letter
may be considered an admission. Because the incidents
were so numerous it is conceivable, however, that the
Respondent's counsel had omitted certain incidents on
which the Respondent had actually relied at the time of
the discharges. I have therefore not limited the Respond-
ent to its itemized list of incidents and I have considered
additional misconduct when the record indicates that the
Respondent had considered them at the time the dis-
charges were effectuated.
A. The Burden of Proof
The law is clear that when an employer disciplines an
employee because he has engaged in an economic strike,
such discipline violates Section 8(a)(3) and (1) of the
Act. An employer may defend its action by showing that
it had an honest belief that the employee disciplined was
guilty of strike misconduct of a serious nature. If the em-
ployer is able to establish such a defense, then the Gener-
al Counsel has the burden to show that either the em-
ployee did not engage in the conduct or that such con-
duct was protected. The burden then shifts back to the
employer to rebut such evidence. Schreiber Mfg. Co. v.
NLRB, 725 F.2d 413 (6th Cir. 1984). General Telephone
Co., 251 NLRB 737, 738-739 (1980), affd. 627 F.2d 895
(D.C. Cir. 1981). See also NLRB v. Burnup & Sims, 379
U.S. 21 (1964).
That an employer must assume the burden to establish
an "honest belief" of misconduct is well settled. The Re-
spondent, however, has moved to dismiss the complaint
in reliance on the decision in Markle Mfg. Co., 239
NLRB 1142 (1979), affd. 623 F.2d 1122 (5th Cir. 1980).
There, as here, the Board had issued two complaints, one
against the union charging it with violations of Section
8(b)(1)(A) of the Act, citing numerous incidents of picket
line misconduct, and the other against the employer al-
leging that the discharges of employees for picket line
misconduct violated Section 8(a)(3) of the Act. In
Markle, the Board had accepted a formal settlement of
the CB complaint, and the employer was held to be enti-
tied to rely on that complaint and the disposition of it by
consent order to establish its good-faith belief that the
pickets had engaged in disqualifying conduct. Accord-
ingly, it is the Respondent's position here that, like the
employer in Markle, it should have been able to rely on
the CB complaint and the settlement stipulation for its
"good faith" belief that picket line misconduct has oc-
curred that would have required the General Counsel to
show as its prima facie case that the pickets had in fact
not engaged in such conduct. Because the General Coun-
sel had failed to assume that burden and, instead estab-
lished as its prima facie case proof that the employees
had been discharged for their participation on the picket
line, the Respondent filed a motion to dismiss the com-
plaint. The Respondent's motion, a ruling on which I
have reserved, must however be denied because of sever-
al important distinctions between the facts in Markle and
those in the instant situation. First, on October 29, the
date when the Respondent made its decision to discharge
the strikers, a complaint had not yet issued in the CB
case. It consisted of no more than the Respondent's own
charge that was filed on September 23. The complaint
did not issue until November 30. Second, in Markle, the
employer's decision permitting reliance on the CB case
was made after the court's enforcement of the CB settle-
ment. Third, in Markle the complaint had identified the
specific employees who had engaged in the misconduct.
The CB case in the instant case did not list the individ-
uals. Even if the Respondent had based its honest belief
of picket line misconduct on such a CB complaint, it
would obviously be unable to do so with respect to iden-
tifiable strikers. And finally, the standard that determines
a violation of Section 8(b)(1)(A) of the Act may not be
identical to that which constitutes disqualifying picket
line misconduct. It is therefore clear that the Respond-
ent's motion must be denied.
B. The Misconduct
The parties agree that serious acts of misconduct com-
mitted by a striker on the picket line may disqualify him
from the protection of the Act as a matter of public
policy. NLRB v. W. C. McQuaide, Inc., 552 F.2d 519,
527 (3d Cir. 1977); Clear Pine Mouldings, 268 NLRB
1044 (1984). For example, Coronet Casuals, 207 NLRB
304, 305 (1973), frequently cited and relied on by all the
parties, set forth the explanation that strikers who seized
the employer's property or engaged in brutal violence
against a nonstriker generally lost the protection of the
Act.
According to the Board, it is necessary to analyze the
seriousness of each act of misconduct and to differentiate
between cases of mere "animal exuberance" from those
in which the misconduct is so flagrant or egregious as to
require subordination of the employees' protected rights
in order to vindicate the broader interests of society as a
whole. General Telephone Co., 251 NLRB 737, 739. The
crucial question is whether the misconduct under the cir-
cumstances tended "to coerce or intimidate" nonstriking
employees or the Respondent's supervisors. W. C.
McQuaide, Inc., supra; Associated Grocers v. NLRB, 563
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
F.2d 1333, 1337 (1st Cir. 1977); Clear Pine Mouldings,
supra.
Although the parties are in general agreement about
the legal defmition of disqualifying misconduct and,
indeed, that some of it occurred during the strike, there
is sharp disagreement about the seriousness of a particu-
lar act, the extent of the misconduct evidenced by the
record, and whether the discharged employees had par-
ticipated in it.
I have carefully considered the record and considered
the Respondent's reasons for terminating the strikers, as
well as the evidence of actual picket line misconduct. Of
particular assistance were videotape recordings of the
employees' activities that were taken by the Respondent
over the 10-month period throughout the lengthy strike
(R. Exhs. 8, 10). The video recording that actually de-
picts the picket line activity and that is designed to high-
light picket line misconduct consists of a 15-minute com-
posite out of a total of 15 hours of video recordings. It
showed, for example, that the misconduct was not as
violent as described by the Respondent and that the ac-
tivities were not one-sided. Throughout the period, when
the strikers walked the picket line, they were confronted
by and exposed to the video camera. Uniformed security
guards hired by the Respondent patrolled the facility, oc-
casionally with guard dogs. For much of the time local
police were also present in their police cruisers. Al-
though the record shows that some intimidating and co-
ercive misconduct occurred, it is also clear that claims of
strikers' "daily violence" or "massive and egregious vio-
lence," or of "a virtual siege" lasting several weeks, are
exaggerated. This is particularly so when the record fur-
ther shows that in some instances replacement workers
taunted the strikers with gestures or slogans such as
"we've got your jobs," and that they participated in
mutual rock throwing and other misconduct. This caused
confrontations between workers and strikers and it esca-
lated the hostility. Yet the Respondent did not discharge
any replacement employees for their misconduct. More-
over, it is clear from the testimony and the record that
nonstrikers, including employees from other firms in the
area, also engaged in violence and misconduct during the
strike. In short, from a broad perspective the strikers
may have received a disproportionate share of the blame
for , some of the misconduct, all of which may also ex-
plain the lack of actual involvements by the local police,
in spite of its ubiquitous presence at the site.
In the following person-by-person account of the mis-
conduct, I have greatly relied on the testimony of the
Respondent's president, Jeffrey Kelemen, and Scott Ke-
lemen, Respondent's vice president. With few exceptions
I found their testimony credible and reliable. The Re-
spondent's other chief witness was security guard James
Tallman. However, I have not heavily relied on the testi-
mony of security guard James Tallman, unless it ap-
peared plausible or consistent with other testimony or
documentary evidence. As a witness he appeared inse-
cure, nervous, and unreliable. His testimony also im-
pressed me as being frequently exaggerated, partial, and
vague. Nonetheless, on the basis of the video tape show-
ing specific incidents of misconduct and eyewitness ac-
counts by supervisors, replacement workers and guards,
as well as the strikers' admission of their own demeanor
throughout the strike, the record establishes a consistent
and reliable basis of the strikers' conduct. In several of
the discharges the Respondent was able to establish a
good-faith basis for its belief that misconduct occurred.
In some instances the General Counsel has shown that
the misconduct was not committed by the employee or
that it failed to rise to the levels of disqualifying conduct.
Most of the alleged misconduct consisted of the
throwing of objects (rocks, bottles, bolts, firecrackers) at
the cars of replacement workers or at the plant. I have
found such conduct, when committed more than once by
a Striker, or when it caused damage to the car or the
building, to be of such seriousness so as to disqualify a
striker from reemployment. Coronet Casuals, 207 NLRB
304 (1973); Gold Kist, Inc., 245 NLRB 1095, 1101 (1979).
Other common misconduct consisted of kicking or slap-
ping of cars of replacements. I have found that such con-
duct, if standing alone and unaccompanied by damage,
did not rise to the level of seriousness to be considered
disqualifying. Coronet Casuals, supra; Gold Kist, Inc.,
supra at 1100; Newport News Shipbuilding, 265 NLRB 716
(1982).
1. Antonio A. Attanasio
According to the Respondent, this employee partici-
pated in two incidents of serious misconduct. The first
incident occurred about a week after replacements had
been hired around the middle of September 1982. Scott
Kelemen, Respondent's vice president, testified that he
observed Attanasio kicking the car of a replacement
worker as the car was leaving the plant. He also attempt-
ed to kick a second car but fell down. Attanasio admit-
ted that he made an attempt to kick the car, but that he
lost his balance and fell down in the process. His testi-
mony, although somewhat equivocal, is supported by a
photograph which shows him stumbling to the ground.
(G.C. Exh 12.)
The second incident occurred on September 28, 1982,
when a group of pickets were present as job applicants
left the plant in a car. This incident is depicted on a vid-
eotape (R. Exh. 8, incident 14) and shows the pickets
milling about as the car approached them, reversed, and,
at one point, almost appeared to collide with them. Jef-
frey Kelemen, Respondent's president, testified that At-
tanasio was among the pickets and that he kicked the car
occupied by job applicants. It is the Respondent's posi-
tion that Attanasio's conduct intimidated the occupants
of the car although the Respondent apparently concedes
that he made no verbal threats and showed no other in-
timidating demeanor. An examination of the video por-
tion of this incident discloses that intimidating conduct, if
any, was not committed by this striker but by the car's
driver who appeared to drive recklessly. (R. Exh. 8, inci-
dent 14.)
Moreover I find the incident as depicted on the video-
tape to be unclear and inconclusive insofar as Attanasio's
presence is concerned during that incident. I therefore
credit the testimony of Scott and Jeffrey Kelemen to the
extent that Attanasio's misconduct consisted of one epi-
sode where he slightly kicked a car and another episode
GSM, INC. 179
where he attempted to kick a car of replacement em-
ployees or job applicants. His conduct in this regard was
restrained and admittedly caused no damage to any vehi-
cle. He certainly did not exhibit any threatening or vio-
lent demeanor, I find his conduct to be relatively innocu-
ous, not violent or intimidating, and certainly not suffi-
ciently serious so as to disqualify him from reinstatement.
Clear Pine Mouldings, 268 NLRB 1044 (1984); Gold Kist,
Inc., 245 NLRB 1095, 1100 (1979); Coronet Casuals,
supra, 207 NLRB at 307.
2. Luther Bloodworth
As a shop steward and 15-year veteran in the Re-
spondent's employ, Bloodworth was discharged for
having engaged in misconduct, consisting of rock throw-
ing.
The first incident occurred on September 21, 1982,
when two cars approached the plant. The first car was
driven by Jeffrey Kelemen. As he entered the plant
Bloodworth threw a bottle at the car's rear quarter
panel. Bloodworth admitted this incident and testified
that he reacted to a replacement worker's obscene ges-
ture and comment to get out of the way. This incident
was recorded on videotape (R. Exh. 8, incident 3) and
described by Kelemen's testimony that indicated that
some damage resulted to the rear of his car as a result of
the impact with the bottle.
Bloodworth also admitted a second incident in which
he threw a rock at a passing company tractor trailer,
acting out of anger at the driver of the tractor who told
him to get out of the way. The incident is recorded on
videotape (R. Exh 8, incident 5). No damage was caused
by this rock throwing incident.
The other alleged rock throwing incident on Septem-
ber 23, 1982, was not substantiated by the record. Wit-
ness Larry Young, a security guard, identified Blood-
worth as one of several people throwing rocks or bolts
at the plant from behind a blue van on September 23.
However, he subsequently identified the man on the
tape, thought to be Bloodworth, as Bo Williams, another
striker (Tr. 495). His testimony is therefore unclear and
unreliable.
Bloodworth also stands accused of having participated
at the September 26 "night raid." Witness James Tall-
man, a security guard, testified at length about a gather-
ing of pickets and employees of other firms on that
Sunday evening across from the Respondent's plant.
Tallman's testimony indicated that the gathered group
made threats to vandalize the Respondent's building and
that they threw rocks and bottles at the windows. How-
ever, Tallman was unable to be specific about the extent
of Bloodworth's participation. He identified Bloodworth
as one who participated in the throwing of objects. But
the record does not contain any corroboration of Tall-
man's testimony or show which object was thrown or
whether any damages resulted from Bloodworth's action.
Accordingly, I find that Bloodworth was present at a
general rock throwing incident on September 26, in
which the extent of his participation is unclear and
where he caused no damage.
Reliable evidence, however, shows that Bloodworth
threw objects on two specific occasions, once at Kele-
Men's car with minor damage and once at a truck. I con-
clude that his misconduct reached the severity that dis-
qualified him from reemployment rights. Case law indi-
cates that the throwing of objects at an employer's car is
not always considered such serious or violent conduct as
to deprive a striker the right of reinstatement, Coronet
Casuals, 207 NLRB 304, 308 (1973), but the throwing of
rocks at cars or trucks, accompanied by some damage,
will usually be regarded as disqualifying conduct. Gid-
dings & Lewis, Inc., 240 NLRB 441, 448 (1979); Totes
Inc., 257 NLRB 678 (1981); Schreiber Mfg. Co. v. NLRB,
725 F.2d 413 (6th Cir. 1984).
3. Russel Cauley
The Respondent has accused this employee of miscon-
duct on the picket line, including making verbal threats,
kicking cars, and throwing rocks or bolts at cars, trucks,
and the plant building. Cauley did not deny the evidence
against him, and the record supports several of the alle-
gations of picket line misconduct. For example, on Sep-
tember 13, 1982, as replacement workers were leaving
the Respondent's plant, Cauley kicked cars and spat on
them. This was observed by Scott Kelemen, Respond-
ent's vice president, and William T Simmons, one of the
replacement employees. Cauley engaged in similar car-
kicking episodes on September 29, as cars entered the
Respondent's parking lot.
On September 20 or 21, Cauley was observed by Mark
McAndrew, Respondent's treasurer, throwing a rock at
the plant and breaking a window.
On September 29, 1982, witnesses Charles Shover and
James Tallman, both security guards for the Respondent,
testified that Cauley threw a rock over a truck towards
the plant. This incident was also recorded on video tape
(R. Exh 8, incident 12). No damage resulted from this
incident.
The record contains the testimony by supervisors and
employees that Cauley may have engaged in other
rockthrowing incidents. A detailed discussion of that tes-
timony would only be cummulative, for it is clear that
the extent of Cauley's misconduct relied on by the Re-
spondent and actually shown in the record was suffi-
ciently serious so as to disqualify him for reemployment.
Gold Kist, Inc., 245 NLRB 1095 (1979); Giddings &
Lewis, supra; Newport News Shipbuilding, 265 NLRB 716
(1982); Schreiber Mfg. Co. v. NLRB, supra.
4. Robert Keefe
Also known as Tarzan, Robert Keefe was discharged
for picket line misconduct that the Respondent believed
consisted of numerous "incidents of violence and vandal-
ism." According to the Respondent, Keefe threw rocks
and other objects at employee cars and windows on sev-
eral occasions, including September 21 and 22, and par-
ticipated in the night raid on September 26, 1982. The
record substantiated several of the incidents.
Approximately 3 weeks after the replacements were
hired on September 13, Keefe with two other individuals
were positioned behind a camper near the south end of
the plant. Ronald Campbell, a security guard, observed
them throwing beer bottles and rocks towards the build-
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing. No damage resulted, but at one point Keefe actually
aimed a rock at the security guard. This incident was
also observed by another security guard, Charles Shover.
Security guard Tallman and replacement worker
Frank Rubba testified that for a period of 1 or 2 weeks
right after replacements were hired, Keefe threw rocks
and other objects at the loading platform of the plant
and the employees' parking area.
In October or about 2 months after William Simmons
was hired as a replacement worker, Keefe approached
Simmons on the employee parking lot during a break-
time. Keefe showed him the handle of a gun with the
comment that he had a surprise for him Keefe admitted
that incident but explained that it had merely been the
handle of a toy gun. At another occasion on September
22 Keefe can be seen on a videotape being among a
group of pickets and swinging an umbrella at a car as it
left the parking lot.
There were other incidents that Keefe was alleged to
have committed. However, in view of the above find-
ings, a detailed discussion would be redundant. For ex-
ample, on September 29 Keefe threw a rock at replace-
ment John Murray's car, damaging his windshield. How-
ever, the incident was not known by the Respondent at
the time it decided to discharge Keefe. Another incident
involving a confrontation between several replacement
employees and strikers, including Keefe, occurred on
September 21. The Respondent described it as an ambush
on National Highway. However, the testimony of sever-
al witnesses explained that this episode may have been
provoked by replacement workers who were armed with
chains and axe handles. Similarly, in the incident on Sep-
tember 29, when Keefe threw an empty soda can at the
car of a replacement worker entering the parking lot, the
record shows that the car gave no signals and nearly ran
over Keefe. Keefe's conduct was clearly provoked by
the driver of the car. Keefe denied throwing objects at
replacement workers except during the "ambush epi-
sode" on September 21. However, the record clearly
shows that Keefe committed several acts of violence
such as stone throwing and engaged in other intimidating
conduct so as to disqualify him from reemployment.
5. Earl Bohrer
The Respondent based its good-faith belief that Bohrer
committed strike misconduct on such incidents as punch-
ing or kicking cars, the throwing of firecrackers and
other objects, and his participation during a night raid.
The record supports the Respondent's belief in several
respects. First, on September 13, the day the replace-
ments reported for duty, Bohrer punched the windows
and sides of three or four cars as they passed through the
picket line. Although Bohrer did not damage any of the
cars, he seriously hurt his hand and wore a cast for some
time thereafter. Obviously Bohrer's punches must have
been substantial. The record, however, does not show
that Bohrer's actions were accompanied by verbal
threats. On the same day, James Perry, a replacement
worker, observed Bohrer throwing objects at the cars of
replacement workers. Perry did not identify the objects
nor what damage, if any, resulted.
On September 23, 1982, Bohrer white picketing threw
1-inch firecrackers on the driveway. He did not throw
them at anyone or cause any damage.
Bohrer was also identified by security guard Tallman
as being among several strikers who threw rocks and
other objects at the plant on the evening of September
26. However, Tallman's testimony was not corroborated.
In any case, no specific damage attributable to Bohrer
was mentioned. Bohrer's participation in this incident is
therefore not clear.
Finally, William Simmons, a replacement worker, testi-
fied, that Bohrer with other strikers followed a company
truck in October as it left the plant. As the truck
stopped, the strikers pulled alongside, and Bohrer threw
a rock or a cinderblock striking the rear of the truck.
Other incidents of alleged misconduct were unknown
to the Respondent at the time it decided to discharge this
employee or were not sufficiently established by record
evidence to be reliable. In any case, it is clear that
Bohrer's conduct clearly transgressed the limits of per-
missible conduct. His discharge was therefore justified.
6. Jethro Grace
The bases for the discharge of Jethro Grace are sever-
al incidents of rock throwing at the cars of replacement
workers, other acts of vandalism against cars, and his
participation during the night raid on September 26. Ac-
cording to the record, Grace was observed by James
Perry on September 13 standing on Melrose Highway
and throwing a rock towards the plant building. The
rock broke the window. On the same day, security guard
Shover saw Grace as he picked up a rock, bouncing it
several times in his hand, and then threw it into the park-
ing lot. Shover also testified that he believed that the car
window of a replacement worker was shattered as a
result of Grace's action. Two replacement employees,
Donald Anderson and James Perry, described how
Grace, among other strikers, stood on the highway in
front of the plant on September 15 and broke the win-
dows of their cars with a pipe or a club as they ap-
proached the parking lot.
Other incidents, such as Grace's participation in the
Sunday night raid on September 26 and a car tire slash-
ing reference, are not sufficiently specific to be consid-
ered as probative evidence. However, Grace's involve-
ment in the incidents of picket line misconduct listed
above is fully supported by credible evidence despite
Grace's denials. I therefore find that the Respondent was
fully justified in discharging this employee.
7. Edward Kelly
Kelly was discharged because he allegedly kicked the
cars of employees as they left the plant and because he
participated in a rock-throwing incident on September
23, 1982. The record supports the Respondent's belief
that this employee engaged in acts of misconduct. First,
Kelly admitted, when confronted with video recording
segments, that he participated in three incidents of car
kicking. The first incident occurred on September 23,
1982, when he kicked the right rear of a blue car as it
left the plant. The second incident occurred on Septem-
GSM, INC. 181
ber 29 when he again kicked a car and, on October 7,
Kelly kicked the side of a red truck that was driven by a
job applicant.
Kelly was also observed by replacement workers to
have carried a slingshot on September 24 to the picket
line. Frank Rubba credibly testified that he saw a rock
flying through the air simultaneously with Kelly carry-
ing a slingshot. He was, however, unable to testify
whether Kelly actually shot the rock through the
window. Gary Koehler testified that Kelly not only car-
ried a slingshot, but that he observed him use it on sever-
al occasions in breaking a window in the area where
Koehler worked. Koehler's testimony, however, Wistix-
aggerated and intemperate. I have therefore credited his
testimony only to the extent that it corroborated that of
Rubba. Accordingly, I find that Kelly brought a sling-
shot to the picket line and that its use did not cause any
damage. Finally, security guard Young observed Kelly
as he positioned himself behind a parked blue van on
September 23 from which rocks were thrown at the
plant building. Kelly denied throwing any objects and
testified that he made throwing motions only to tease the
person operating the video camera. I cannot credit
Kelly's explanation and find that he engaged in rock
throwing.
On the basis of the foregoing episodes considered as a
whole, I find that Kelly's conduct was sufficiently coer-
cive and violent so as to disqualify him from reemploy-
ment by the Respondent.
8. James Marenic
The Respondent believed this employee to have
threatened replacement workers as they entered the plant
and to have thrown objects at the plant building. The
record, however, does not support the Respondent's
belief of Marenic's misconduct. First, the only evidence
of a threatening statement was a voice recorded in the
Respondent's video recording equipment to the effect,
"your old lady's got to drive out . . . [y]ou think she's
going to get out of here." (R. Exh. 8.) That statement,
however, could have been made by anyone near the
picket line, and there is no testimony that Marenic made
that statement. The Respondent attempted to offer the
testimony of Jeffrey Kelemen to identify the voices on
the recording as that of Marenic and Alex Rusinko. Be-
cause I deemed this voice identification too speculative, I
disallowed the evidence. 2 Marenic credibly testified that
he did not yell or threaten any replacement worker, al-
though he may have uttered a swear word. I therefore
find that Marenic did not, as the Respondent may have
believed, threaten any replacement worker.
Insofar as Marenic's alleged violence on September 26
is concerned, the record contains only security guard
Tallman's testimony. He testified that he observed a
large gathering of union people across from the Re-
spondent's plant on that Sunday night. As he approached
the group, he spoke to Masenic inquiring what was hap-
pening. Marenic, according to Tallman, replied that they
were "going to tear the hell out of the place." Tallman
2 This ruling also affected Respondent's allegation of similar statements
made by Alex Rusinko Jr.
testified further that he overheard Marenic repeating the
threat to the police a short while later. Pursuant to a
leading question, Tallman hesitantly stated that Marenic
threw one or two objects at the building that night.
Tallman's testimony in this regard was not corroborat-
ed and seems implausible. Although security guard
Young was present during the episode, guarded the
building with Tallman that night, and appeared as a wit-
ness in this case, he did not testify about this episode.
Moreover, I have difficulty accepting the alleged con-
versations in which Marenic would openly admit to the
security guard and the police that he was about to
commit serious acts of vandalism. I have not credited his
testimony. Marenic, on the other hand, credibly testified
that he was at the picket site that evening and that he
spoke with Young and Tallman specifically observing
that the picketing was peaceful. Marenic left for home
prior to the commencement of any violence. On the basis
of the foregoing, I conclude that Marenic did not engage
in any misconduct. Finally, the Respondent accused
Marenic of "loitering behind the van with a group of
employees when the shower of rocks took place" on
September 23. However, the video recording of Maren-
ic's conduct on that day, while showing his presence on
the picket line, proves that he did not engage in any
stone throwing incident or any other misconduct. It is
well settled that the misconduct committed by other
pickets may not be imputed to another employee unless
he actually participated in such conduct, which the re-
cordfails to do. Accordingly, the Respondent's good-
faith belief of Marenic's misconduct was disproven. His
discharge violated Section 8(a)(1) and (3) of the Act.
9. Robert Haines
The Respondent's good-faith belief that Haines com-
mitted serious misconduct on the picket line is alleged as
a result of incidents of rock throwing on September 23
and 29 and the setting off of firecrackers while on the
picket line. Security guard Ronald Campbell testified
that he observed Haines on September 23, 1982, as he
shot off a bottle rocket from the opposite side of the
plant's entrance towards him. The instrument landed
about 2 feet from where he stood near the front entrance
of the plant. On the same day Haines, sitting on the curb
near the picket line, lit and threw firecrackers to the
ground. (R. Exh., incident 8.) The record is not clear to
what extent a bottle rocket differs from a firecracker, but
it is clear that the bottle rocket was the more serious of
the two incidents because it was directed at the security
guard.
On September 29, 1982, according to security guard
Shover's testimony, Haines was behind the blue van
parked on the opposite side of the street. Haines had a
pile of rocks on the ground and threw them at the plant
building. He hit two windows and broke them. Similar
conduct is also alleged to have occurred on September
23, 1982. However, Haines was merely identified as
being among several pickets behind the parked blue van.
Video recording of the episode depicts the scene but is
inconclusive as to the extent of Haines' conduct on that
day. I have therefore not considered this incident in eval-
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
uating the alleged misconduct. However, the misconduct
that is fully supported by the record, despite Haines'
denial, particularly the willful destruction of the plant
windows and the attempted assault with the bottle rocket
is sufficient to support the Respondent's good-faith belief
of misconduct by this employee to justify his discharge.
10. Alex Rusinko Jr.
As the Union's strike captain until his discharge, Ru-
sinko was on the picket line more than any other em-
ployee. He occasionally wore a cowboy hat and carried
a clipboard to keep a record for the scheduling of pick-
ets. He also carried a mirror to blind the camera, because
he objected to the Respondent's practice of video re-
cording the strikers on the picket line. Rusinko was fired
by the Respondent because he threatened employees en-
tering the plant on September 17, 1982, and kicked their
cars, for using the mirror to blind the camera, and for his
participation for the "night raid" on September 26, 1982.
On September 17, 1982, a replacement worker's car
was leaving the plant. As the car passed him on the
picket line Rusinko hit the car with his hand and ran
alongside it for a short distance. Rusinko testified that he
slapped the car because it nearly hit him when it entered
the lot and that he attempted to slow down the car to
obtain the license and registration number. The evidence
does not show that the car was driven recklessly or that
its driver had somehow provoked Rusinko. He simply
slapped the car and yelled out to the driver (R. Exh 8,
incident 1).
On September 23, 1982, Rusinko, with other pickets,
stood beside the blue van parked across the street. Ru-
sink° with a truck mirror in his hand reflected the sun at
the video camera as it recorded the throwing of several
rocks by individuals hidden behind the van. That scene
shown on videotape incidentally supports the General
Counsel's claim that nonstrikers were often involved in
some of the misconduct. In any case, Rusinko left the
scene along with everyone else after a window was shat-
tered by the rocks. (R. Exh., incident 10.) The evidence
clearly suggests that Rusinko's action was designed to
camouflage the rock-throwing episode from the video
camera. Rusinko thereby became a part of the unlawful
action.
In addition, the record contains testimony by several
replacement workers that Rusinko engaged in serious
rock-throwing incidents. For example, John Murray tes-
tified about an incident on October 1 when Rusinko
threw a rock at a replacement car. Similarly, Gary
Koehler testified about two incidents of rock throwing.
Both incidents, however, were not reported by these em-
ployees to management until about 2 weeks before the
trial in this case. The Respondent obviously did not rely
on these incidents (R. Exh. 11). I have therefore not con-
sidered them in my analysis of Rusinko's alleged miscon-
duct. Two other incidents that the Respondent discussed
in its brief should be disregarded. Perry's testimony im-
plicating Rusinko on September 13 for throwing rocks at
employees' cars did not identify Rusinko by name. Perry
identified Rusinko only as the "cowboy" because he
wore a cowboy hat on the picket line. This identification
is insufficient, because the record shows that other strik-
ers occasionally appeared on the picket line in cowboy
attire. Tallman's recollection of Rusinko's role on Sep-
tember 26 was not corroborated and was generally un-
clear.
Rusinko's participation with the mirror behind the blue
van while rocks were thrown at the plant building, as
well as his hitting of the car driven by a replacement
worker were sufficiently intimidating and serious to sup-
port the Respondent's decision to discharge this employ-
ee.
11. Jack Montesjardi
The Respondent's belief that Montesjardi engaged in
misconduct is based on incidents of rock throwing on
September 23 and 29, 1982. Montesjardi was a union
steward and had served on the Union's negotiating com-
mittee. He had been in the Respondent's employ for
about 15 years. The record shows that Montesjardi en-
gaged in several acts of picket line violence. He admitted
to rock throwing at a replacement's car because the oc-
cupant taunted him with a comment, "I got your job."
The video recording shows that Montesjardi threw an
object in the direction of a car after it entered the plant's
premises about 8 a.m., on September 29, 1982. (R. Exh
8, incident 12.) The object did not hit any car or cause
any damage. Security guard Shover testified that
Montesjardi threw a total of about four or five rocks into
the parking lot that morning as replacement workers en-
tered the plant in their cars. One car may have been hit
and damaged, according to Shover. He further testified
that Montesjardi and Robert Haines were behind the
blue van sometime later during the same morning of Sep-
tember 29 throwing objects in the direction of the plant.
Additional rock-throwing incidents are alleged, as for
example one which occurred on September 23 as de-
scribed by Michael Waller, a replacement worker, an-
other one on September 22 as seen on video and identi-
fied by Kelemen, one described by Tallman in his ac-
count of the Sunday night raid on September 26, as well
as the group activity behind the van on September 26. I
found the video scenes on September 23 and 26 too un-
clear and vague to be credible and Waller's testimony
dubious, because of his uncertain demeanor as a witness.
Moreover, the lack of corroboration by Perry and An-
derson who were in Waller's car during the alleged as-
sault but did not mention this incident during their testi-
mony, supports Waller's lack of credibility. Montesjardi
denied his involvement in that incident. Finally, Tall-
man's account of_the Sunday night raid was uncorrobor-
ated and, for reasons already stated, unreliable. Howev-
er, the record has convincingly established that Montes-
jardi committed picket line misconduct, as believed by
the Respondent I accordingly find his discharge to have
been justified.
12. John F. Montesjardi
As the nephew of Jack Montesjardi, the union stew-
ard, John Montesjardi was also employed by GSM, Inc.,
until his discharge on October 29, 1982. The Respondent
based its belief of serious picket line misconduct commit-
ted by this employee on an incident on September 29,
d8M, INC. 183
1982. Jeff Kelemen testified that he was leading a group
of employees by caravan into the plant when Montes-
jardi threw a bottle at his car. It hit the left rear quarter
panel and dented it. Montesjardi denied ever throwing
any objects. However, I credit Kelemen's testimony and
find that Montesjardi was responsible for the incident.
The Respondent also refers in its brief to a rock-
throwing incident about a week after the replacements
had reported for work on September 13. According to
security guard Shover's testimony, Russel Cauley and
Montesjardi stood behind a truck and threw rocks at the
plant's loading platform. However, because the record
does not show in any way that the Respondent relied on
this episode or was even aware of it at the time of the
discharge, I have not considered it.
Even though Montesjardi, unlike the strikers discussed
above, had engaged in only one act of misconduct,
namely, the throwing of an object causing damage to
Kelemen's car, it was sufficiently intimidating to the re-
placements in the caravan and violent towards Kelemen
to be regarded as disqualifying conduct.
13. Aniello Napolitano
Employed for 9 years at GSM, Inc., Napolitano was
discharged for having thrown objects at employees on
several occasions. Napolitano denied ever having thrown
a stone or any other object. But the record shows other-
wise. Security guard Shover testified that on September
28, 1982, about lunchtime, he observed Napolitano throw
a rock at a car that drove out of the Respondent's park-
ing lot. Two hours later, as a job applicant was leaving
the plant and turned on Melrose highway, Shover wit-
nessed as Napolitano threw a bottle at the side of the
car. One day in the first week of October, replacement
employees Joseph Baxter and Joseph Sage were leaving
the plant in Sage's car at 4:30 in the afternoon when Na-
politano stepped out of a group of pickets and threw a
rock at the side of Sage's car. NVhen Sage stopped the
car momentarily, Napolitano motioned to him as if to
invite him to a fight. No damage resulted from the inci-
dent. And finally, replacement employee William Sim-
mons testified that he was a passenger in a fellow em-
ployee's car several weeks after they were hired in Sep-
tember when Napolitano threw an object at the car caus-
ing minor damage. The record contains additional testi-
mony about Napolitano's rock-throwing activity. How-
ever, the seriousness of his misconduct was sufficiently
established by the incidents listed above from which I
have no difficulty concluding that the Respondent was
justified in discharging this employee.
14. James Smith
The Respondent's belief of misconduct of this employ-
ee is primarily based on his use of the blue van that was
frequently parked on a sidewalk across from the plant.
Smith admitted that he owned the van and habitually
parked it in a spot across from the plant to provide shel-
ter for the pickets in inclement weather and to serve
coffee. But the Respondent accused Smith of using it to
assist pickets in unlawful acts such as the throwing of
stones. Again, Smith has conceded in his testimony that
on some occasions other individuals may have hidden
behind the van to throw objects and that fellow employ-
ee Bohrer threw a cinderblock from the van at the car of
replacement worker Simmons. But the record is devoid
of any misconduct actually committed by James Smith.
Indeed, the record shows and Smith credibly testified
that he used the truck as a resting place for his fellow
strikers where they kept coffee and sandwiches and
where they went to get out of the rain. Smith denied
that he stored rocks or other objects in the van or that
he used it to camouflage misconduct.
When on September 23 rocks were thrown by individ-
uals from behind the van, there is no evidence suggesting
that Smith threw rocks or transported rocks to the
picket line. Indeed, close scrutiny of the video segment
(R. Exh. 8, incident 10) shows that rocks were thrown at
the pickets and landed near the van. The incident on
September 24 described by security guard Shover indi-
cates that bolts were thrown from behind the van, but
his testimony indicated that four individuals were behind
the van. There is no suggestion that Smith participated in
that conduct. This is also true of a rock-throwing inci-
dent on September 29 when certain pickets were identi-
fied as having thrown rocks; Smith was not one of them.
Finally, there is testimony by replacement worker Sim-
mons that the van driven by Smith followed his car on
September 13 for about 2 miles without any incident.
About a month later, Smith's van followed a company
truck driven by Simmons, when Bohrer emerged from
Smith's van to throw a cinderblock at the rear of the
company truck. However, except for the inference that
in both instances Smith followed the cars, there was no
suggestion that Smith committed any other wrongful act.
Moreover, I reject any suggestion that Smith followed
the cars or trucks of replacement employees in order to
intimidate them. Rather, I find that any appearance that
the van may have followed Simmons' car or truck was
purely coincidental. The record clearly shows that fol-
lowing the cars of replacements was not a common prac-
tice among the striking employees. Furthermore, Sim-
mons' statement that the blue van had intentionally fol-
lowed him is totally uncorroborated and I discredit Sim-
mons' testimony to that effect. It is therefore clear that
the record does not support any acts of misconduct or
violence committed by Smith. The blue van may have
annoyed the Respondent, but Smith's discharge obvious-
ly violated Section 8(a)(1) and (3) of the Act.
15. Edward Williams
A 10-year veteran with the Respondent, Williams was
accused of throwing objects at cars on September 13 and
20, 1982. The record shows that on September 13, when
replacements first reported for work, security guard
Shover and replacement employee William Simmons ob-
served Williams throwing a bottle at Simmons' van as he
left the Respondent's parking lot. The window of Sim-
inons' car was shattered. Williams' testimony, as cor-
roborated by John Alexander, credibly established that
Simmons drove aggressively out of the parking lot to-
wards Williams and, sharply turning on the highway,
narrowly missed Williams. At the same time Simmons
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shouted at Williams to get out of the way. Williams, who
had to jump out of the way, then threw the bottle at the
car.
Security guard Shover testified about another incident
that occurred about a week after replacements had been
hired. Williams stood on the street and threw a rock into
the direction of the parking lot area. No damage resulted
from this incident.
On October 7, 1982, when replacement employee Ken
Ford applied for a job with GSM, he was stopped by
about eight pickets. Ford conversed briefly with the
pickets when Williams slapped the side of his truck with
his hands. The truck was not damaged as a result of this
incident.
The Respondent has alleged two additional incidents,
one which occurred on September 13 when Williams
threw a rock at a car in which replacement worker
Donald Anderson was riding and another that occurred
on the following day when replacement James Perry ob-
served Williams, among others, throwing rocks. Howev-
er, I agree with the General Counsel that, in both in-
stances, the witnesses' identifications of Williams were
tenuous. For example, to the question whether he could
see the person who threw the rock, Anderson repeatedly
stated, "Not really." He finally identified the man as
being black and wearing a denim hat that resembled Wil-
liams. Similarly, Perry hesitantly identified Williams as
one of the strikers who threw rocks at his car. On cross-
examination, Perry seemed unsure, he could not explain
why he had failed to mention this incident in his affida-
vit, and he admitted that it was difficult to "think clearly
all the time" under such circumstances.
In any case, these two last instances are not the sole
determining factors of Williams' picket line conduct.
Williams admitted the throwing of rocks, albeit when
provoked; and the record is clear that Williams threw
objects at cars at least on one occasion without provoca-
tion. It is therefore clear that Williams' misconduct, con-
sidering the cumulative effect of the several incidents,
rose to the level of seriousness so as to justify the Re-
spondent's action.
16. Brett Errickson
A relative recent employee at the time of his dis-
charge, Errickson was fired even though he engaged in
only one minor incident on the picket line on September
17, 1982. In this regard, the record evidence consists of
only the video segment of the incident that shows a car
leaving the plant and, breaking through the picket line
without stopping and entering the highway without
slowing down, the car is slapped by several pickets. Er-
rickson also slaps the hood with his hand, unaccompa-
nied, however, by verbal or other intimidating conduct
(R. Exh 8, incident 1). The entire scene as shown on the
video segment is fairly innocuous and devoid of any sig-
nificant coercive or intimidating effect. Moreover, Er-
ricicson, who admitted that he may have slapped the
hood of the car, explained that the men going through
the picket line cursed him and shouted obscenities. He
also related that his father, also an employee at GSM,
was once struck by a car recklessly driven by a job ap-
plicant. Errickson therefore felt particularly frustrated.
In any case, it is clear that the casual slap on the hood of
the car, particularly under the circumstances here and
without causing any damage, did not amount to the vio-
lent, intimidating, or coercive misconduct to be consid-
ered disqualifying for reemployment. The Respondent's
action in discharging this employee clearly violated the
Act.
17. Arthur Davis and Lamont Jones
The Respondent discharged employees Davis and
Jones upon its belief that these employees were involved
in coe incident of kicking the car of a job applicant on
September 28, 1982. The only record evidence for this
incident is a video segment and Jeffrey Kelemen's testi-
mony—not as an eyewitness—attempting the identifica-
tion of Davis and Jones from the video recording (R.
Exh. 8, incident 14). Even conceding Kelemen's familiar-
ity with the individual pickets and his expertise in
making identifications of individuals from the video re-
cording, I question the accuracy of the identification of
these two individuals, because the particular segment (in-
cident 14) shows at least a dozen or more strikers who
can barely be recognized as individuals. Even if I accept-
ed, arguendo, Kelemen's identification of Davis and
Jones as the two individuals who kicked the car, it is
clear that the driver of the car drove in an extremely
reckless and provocative manner that prompted an audi-
ble commentary on the video segment "he is running
over them." The car stopped several times and suddenly
reversed in an apparent attempt to hit the pickets, rather
than making an effort to get away from them. Obviously,
the ones intimidated were not the job applicants. In any
case, I credit Jones' and Davis' testimony in which they
denied that they ever kicked a car or engaged in any
misconduct. It is therefore abundantly clear that the
record does not support the Respondent's good-faith
belief that Davis and Jones had engaged in misconduct,
not only because of their denial of any wrongdoing and
a clearly deficient identification, but also because their
alleged conduct was unaccompanied by any intimidating
or coercive demeanor and because their alleged miscon-
duct was harmless and in any case had been provoked by
the driver of the car. I accordingly find that the Re-
spondent violated Section 8(a)(1) and (3) of the Act
when it discharged these strikers.
18. Dominic Paravati
This employee was discharged by the Respondent on a
belief that his involvement in one incident amounted to
serious and intimidating picket line misconduct. The evi-
dence shows that on September 21, 1982, Paravati was
among several pickets as Respondent's delivery truck
was leaving the plant's premises and was briefly stopped
at the picket line where the pickets requested that he
honor the picket line. As shown on the video segment
recording this incident, Paravati threw an empty beer
can at the side of the truck. (R. Exh. 8, incident 4.) Para-
vati admitted the incident and explained that he was frus-
trated at the driver who refused to honor their picket
line. Although there is testimony that other pickets broke
the windshield of the truck, it is clear that Paravati was
GSM, INC. 185
unaware of that and certainly was not responsible for
that occurrence. His sole responsibility was the throwing
of an object at the side of the truck. He caused no
damage and, unaccompanied by any intimidation or
threats of bodily harm, the act did not tend to coerce or
intimidate any employees. The record shows clearly that
Paravati's only act did not rise to the seriousness of dis-
qualifying conduct. The Respondent violated Section
8(a)(3) and (1) by its failure to reemploy this employee.
II. THE UNFAIR LABOR PRACTICE STRIKE
As amended, the complaint charges that the Union's
strike was prolonged by the discharge of the strikers on
October 29, which in effect turned the economic strike
into an unfair labor practice strike. Because the Union
changed its picket signs as of November 1, 1982, to pro-
test the Respondent's unfair labor practices, it is the Gen-
eral Counsel's position that the strike became an unfair
labor practice strike effective November 1, 1982. The
issue would be moot had all 19 discharges been justified.
However, because the Respondent's discharges of several
strikers violated Section 8(a)(3) and (1) of the Act, it is
clear that the issue must be considered. The parties agree
that in making a determination whether a strike will be
considered an unfair labor practice strike it must be
caused "in whole or in part" by the company's unfair
labor practice. American Cyanamid v. NLRB, 592 F.2d
356 (7th Cir. 1979). An economic strike may be convert-
ed into an unfair labor practice strike provided that there
is a causal connection between the unfair labor practice
and the prolongation of the strike. Robbins Co., 233
NLRB 549 (1977). The record shows that the strike
began on July 23, 1982, as an economic strike. The dis-
charges were effectuated by letter on October 29, 1982,
and a union meeting was held on November 1, 1982.
John Alexander, president of Local 585, testified that the
meeting on November 1, 1982, was called for the em-
ployees to sign up for strike benefits. At that meeting the
Union had become aware of the discharges. Because it
thought that the Company was not bargaining in good
faith, because it set up bars to a settlement and dis-
charged the employees, it changed its picketing signs to
read "G.S.M., Inc. unfair labor practice strike, Local 585
UAW." Although the primary purpose for the strike was
to get a bargaining agreement, the record is clear that
the Union protested the Company's unfair labor practices
that it thought consisted of bad-faith bargaining and the
discharges. Accordingly, there is no doubt that the
Union protested the Company's discharges. The record
also shows that the strike was prolonged by the Compa-
ny's action. Contrary to the Respondent's suggestion, the
Union in its written communications to its membership
repeatedly expressed its frustrations about the results of
the discharges. For example, the communications (dated
Nov. 2 and 18 and Dec. 7 and 16) contain the following:
We have over eighty of our members on strike. The
company has now hired scabs of which there are
over thirty-five working in the plant at the present
time. It has become a very nasty situation with a
very, very unreasonable company. . . It is essen-
tially important that all our units support the gallant
efforts of our membership at GSM in the strike of
survival against a scab-hiring, union-busting corpo-
ration. [R. Exhs. 37-40.]
Moreover, the record shows that the strike became
more violent right after the Company decided to hire re-
placements. Indeed, Jeffrey Kelemen admitted in his tes-
timony that picket line violence increased substantially in
September and October 1982. It is accordingly clear that
the Company's discharges prolonged, at least partially,
the ongoing strike. Having found that the Respondent
violated Section 8(a)(3) and (1) by discharging seven of
the strikers, I find that the strike was converted into an
unfair labor practice strike on November 1, 1982.
HI. ADDITIONAL ALLEGED VIOLATIONS
The complaint contained three allegations of 8(a)(1)
violations; first, that on September 7, 1982, Supervisor
Robert Feby threatened employees with discharge if
they failed to ratify certain company proposals in con-
nection with the collective-bargaining agreement;
second, that Supervisor Joseph Brocious interrogated an
employee on September 7 about the employees' sympa-
thies regarding these proposals; and third, alleged also as
an 8(a)(3) violation, that on August 6, 1982, the Re-
spondent unlawfully discontinued premium payments for
certain employees. By letter of December 2, 1982, the
Respondent informed all strikers and replacement em-
ployees that there was no truth to these allegations, and
that, in any case, the Company disavowed such conduct
even if it had occurred, and that the cancellation of the
insurance policy for these individuals had been an inad-
vertent error that had been retroactively corrected by
the Company (R. Exh. 4). Nevertheless, the General
Counsel has submitted these issues to be resolved. The
record shows, and the Respondent concedes, that on
September 7 the two supervisors, Feby and Brocious,
and two employees, James Marenic and Alex Rusinko,
had a conversation at the picket line. It is also agreed
that the conversation concerned the vote of the union
members concerning certain company proposals. The
parties, however, disagree whether the supervisors made
the alleged statements. In this regard, I credit the testi-
mony or the two employees who had little or nothing to
gain from their testimony. Their testimony was substan-
tially consistent and plausible.
Following the union meeting on September 7, the
strikers returned to the picket line. Feby who was later
joined by Brocious approached Rusinko and asked how
the vote went. Rusinko answered that the membership
had turned it down. Brocious then inquired what the of-
ficial count was, to which Rusinko answered that all but
three voted "no." Brocious asked for their names. The
employees refused to reveal the names. At one point
during that conversation Feby interjected and stated that
they should have voted in favor of the proposal because
the Company would now hire people to replace them
and that the strikers would be fired.
It is clear that a supervisor's statement to employees
that they would lose their jobs because of their union or
protected activity is a violation of Section 8(a)(1) of the
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act. But the interrogation of employees as to their union
sympathy is a violation only under coercive circum-
stances. I do not regard the circumstances of this conver-
sation sufficiently coercive. The employees were on the
picket line and not under the employer's control; they
had the freedom to leave at any time; these supervisors
did not belong to top management; the meeting was
casual; the questions were posed in a conversational set-
ting; and these individuals have talked informally on pre-
vious occasions. The Respondent therefore violated Sec-
tion 8(a)(1) of the Act only with respect to the threat
made by Feby. In its letter of December 2, 1982, Re-
spondent informed its employees, inter alia, as follows:
With respect to the charge of Local 585 regarding
alleged statements of Robert Feby, the Company
wants you to know that, even if such statements
were made, they were not authorized, and they do
not reflect the position of the Company. The Com-
pany disavows them. The Company reaffirms the
right of its employees to legally picket.
Even though the Respondent did not disavow this
conduct until 2 months later, I believe that a remedial
order under these circumstances is unnecessary. Broyhill
Co., 260 NLRB 1366 (1982).
With regard to the Respondent's discontinuance of the
insurance benefits, the record is uncontroverted. The Re-
spondent discontinued its premium payments on August
6, 1982, for all employees and so informed them by
letter. The Respondent's action with respect to the strik-
ers was lawful, but several employees, including John
Bowers, Frank Viola, Antonio Attanasio, Arthur Burns,
and Stanley Prusik, were already on disability at the time
of the strike. The Respondent has stated that the insur-
ance of these individuals was inadvertently canceled and
notified them by letter of December 2, 1982, that the in-
surance had been restored retroactively. It is of course
clear that an employer may not discontinue the benefits
for disabled workers. Emerson Electric Co. v. NLRB, 650
F.2d 463 (3d Cir. 1981). The Respondent has essentially
conceded its error and represented in its brief that "cov-
erage was made retroactive so that no one entitled to in-
surance benefits lost even a day's protection." Based on
this representation, and because the Respondent informed
all employees of this error by letter of December 2,
1982, a finding of violation is unnecessary on this issue
even though a technical violation was committed. Broy-
hill Co., supra. The Respondent stated as follows in the
December 2 letter:
With respect to the charge of Local 585 regarding
cancellation of insurance benefits, please be advised
that when the Company exercised its legal right to
cancel the insurance benefits for its striking employ-
ees on August 6, 1982, the insurance benefits of
seven individuals who were out of work on disabil-
ity or workers' comp leave were, due to clerical
oversight, inadvertently cancelled. The individuals
affected were Frank Viola, Percy Breaux, Antonio
Attanasio, John Bowers, Stanislaw Prusik, Arthur
Burns and Walter Zarnack. This action was neither
taken nor intended to punish any employees for en-
gaging in protected union activities. When the error
was discovered, the insurance benefits for these
seven individuals were immediately and retroactive-
ly restored, so that they at no point lost any insur-
ance coverage.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I recommend that the Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully dis-
charged and failed to reinstate Antonio Attanasio, James
Marenic, James Smith, Brett Errickson, Arthur Davis,
Lamont Jones, and Dominic Paravati, I recommend that
the Respondent offer each of these employees immediate
reinstatement to their former jobs or, if such jobs no
longer exist, to substantially equivalent jobs, without loss
of seniority or any other rights or privileges, discharging
if necessary any replacements hired, and make each of
these employees whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in
Florida Steel Corp., 231 NLRB 651 (1977).
Any remedial order relating to the Respondent's viola-
tions of Section 8(a)(1) involving a threat, and Section
8(a)(1) and (3) involving the cancellation of the insurance
policies for certain employees, is unnecessary in view of
the Respondent's corrective action.
CONCLUSIONS OF LAW
1. The Respondent, GSM, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Local 585, International Union, United
Automobile, Aircraft and Agricultural Implement Work-
ers of America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging and refusing to reinstate the seven
strikers, Antonio Attanasio, James Marenic, James Smith,
Brett Errickson, Arthur Davis, Lamont Jones, and Do-
minic Paravati, the Respondent has violated Section
8(a)(1) and (3) of the Act.
4. The strike that began on July 23, 1982, was convert-
ed into an unfair labor practice strike on November 1,
1982.
5. Even though the Respondent violated Section
8(aX1) of the Act by threatening employees with the loss
of jobs and Section 8(a)(3) and (1) of the Act by cancel-
ing the insurance coverage for certain employees, a re-
medial order will not be required in view of the Re-
spondent's disvowal of the practices and corrective
action.
6.The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7.All other allegations have not been substantiated.
- GSM, Ii4C, 187
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed
ORDER
The Respondent, GSM, Inc., Pennsauken, New Jersey,
its officers, agents, successors, and assigns, shall
I. Cease and desist from
(a) Discharging or failing to reinstate any employee
for engaging in a strike or any other concerted activity
protected by Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Antonio Attanasio, James Marenic, James
Smith, Brett Errickson, Arthur Davis, Lamont Jones,
and Dominic Paravati immediate 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 previous-
ly enjoyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against them, in the manner set forth in the
remedy section of the decision.
3 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 4$ of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(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 pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Pennsauken, New Jersey,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent 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 Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
4 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 Nation-
al 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."