Midwest Solvents, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1282 (N.L.R.B. 1980)

1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midwest Solvents, Inc. and Harold Lassen. Case 17-
CA-8561
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On November 27, 1979, Administrative Law
Judge James T. Rasbury issued the attached Deci-
sion in this proceeding. Thereafter, Respondent and
the General Counsel filed exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
In adopting the Administrative Law Judge's De-
cision regarding Roy and Donald Lassen, we spe-
cifically disavow his dictum that, were he to have
followed certain decisions by various courts of ap-
peals, he would have found Respondent's refusal to
reinstate the two lawful. I Further, we do not share
his view that, under Board precedent, mere threats
unaccompanied by physical contact or provable
acts of destruction of property are insufficient to
warrant a refusal to reinstate protected strikers.
Rather, we find that, in the circumstances of this
case, the conduct for which Roy and Donald
Lassen were discharged was not of such serious
character as to render them unfit for further serv-
ice.
The Administrative Law Judge found that, while
walking, picket Roy Lassen threatened a farmer
that he would blow up, or burn up, the farmer's
combine if the farmer continued to make deliveries.
The record indicates that the threat was made as
the farmer was leaving the Respondent's plant, and
it is undisputed that the farmer made subsequent
deliveries without any inference or threats from
Lassen or any other picket. It is well established
that not every incident of misconduct committed
on a picket line justifies a refusal to reinstate a
striking employee. 2 We find that this isolated
i On the assumption that this is a correct reading of his views, we
hereby correct the Administrative Las Judge's statement in the penulti-
mate sentence before "Conclusions of Law'" from "nriot sufficiently egre-
gious to warrant reinstatement" to "not sufficientl egregious to bar rein-
statement."
2 Coroner Casuals, 207 NlRB 304 (1973) Iluo & Schlitcpr Co'npalv.
194 NLRH 572 (1971)
251 NLRB No. 171
with the delivery, is the type of minor misconduct
which was in the contemplation of Congress when
it provided for the right to strike. 3
The Administrative Law Judge also found that
Donald Lassen had threatened Call, a nonstriking
employee, as well as three college students who
were working as strikebreakers. It is undisputed
that Donald Lassen and striker Kesinger went to
Call's apartment. When Call would not open the
door, the two strikers asked Call not to work and
offered to find him employment elsewhere. Call
testified that, during the conversation, one of the
strikers said that he had better "watch" himself,
that "some of the boys might get rowdy." Apart
from the fact that Call could not identify Lassen as
having made the threat, the words, at most, were
an isolated act of mild intimidation spoken in ap-
parent frustration over Call's refusal to join the
strikers' cause. There is nothing to indicate that
Lassen went to Call's apartment with the intention
of harassing or intimidating him. Further, there is
no evidence that Lassen ever spoke with Call or at-
tempted to interfere with his employment again.
The isolated threat constitutes nothing more than
the type of impulsive, trivial misdeed which we
have found, in the past, to be insufficient to war-
rant a denial of reinstatement to a protected strik-
er. 4 We reach the same conclusion regarding his
right to reinstatement in light of the Administrative
Law Judge's finding that Lassen "threatened"
three college students who were working during
the strike. Further, we note that the record con-
tains no direct testimony as to what Lassen said to
the students. Lassen denied saying anything and
the only other witness testifying to the conversa-
tion was Mercer, Lassen's companion, who cor-
roborated Lassen.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Midwest Sol-
vents, Inc., Atchison, Kansas, its officers, agents,
successors, and assigns, shall take the action set
forth in said recommended Order, except that the
: Contrary to the Respondent. we do not find Montgomery Ward & Co.
Iniorporated \ N.I.R.B., 374 F 2d 00 (10th Cir 1967). controlling That
case fiould lawful the denial of rehistatemment to a striker u ho profanely
insialled a customer ienlerilg a retail tre The courl noted that a casual
person is cmTitled Ilo receive a higher degree of control on the part of a
picket than is a strikebreaker r nonstriking emploee Unlike a casual
nlenmber of the public, the farmer threatened by l.assen was aiding the
Respondenl in ts operaitois by snaking deliveries
IP rlduwtric; In(-. ic, 227 NlRH 170 (1977) (emplosees arrow
and Wallherl
MIDWEST SOLVENTS, INC 1283
attached notice is substituted for that of the Ad-
ministrative Law Judge.
MEMBER TRUESDALE, concurring:
I agree with my colleagues that the Administra-
tive Law Judge was correct in concluding that Re-
spondent's refusal to reinstate strikers Roy, Donald,
and Harold Lassen constituted a violation of Sec-
tion 8(a)(1) and (3). However, I reach my conclu-
sion concerning Roy and Donald Lassen on a dif-
ferent basis from the rationale utilized by either the
Administrative Law Judge or my colleagues.
As found by the Administrative Law Judge, in
September 1978 certain employees of Respondent,
including the Lassens, engaged in a lawful econom-
ic strike. At the conclusion of the strike, Respond-
ent denied reinstatement to six strikers, including
the Lassens, because it believed that those strikers
had engaged in strike misconduct. Only the legality
of the discharge of the Lassens is at issue here.
The Administrative Law Judge found that
Harold Lassen had not engaged in strike miscon-
duct and that, although Roy and Donald Lassen
had engaged in some misconduct, that misconduct
was not sufficiently egregious to warrant Respond-
ent's refusal to reinstate them. For the reasons set
forth below, I would find that Roy and Donald
Lassen did not engage in strike misconduct.
Donald Lassen
Respondent relied on two incidents in which
Donald Lassen purportedly engaged in strike mis-
conduct. The first incident involved alleged threats
made to Robert Call, a nonstriker. The second inci-
dent involved alleged threats to three college stu-
dents who were working behind the picket lines.
Upon a careful review of the record, I conclude
that Donald Lassen's remarks to Call were not of a
threatening nature and that Donald Lassen directed
no comments at all-much less threats-to the stu-
dents in question. The incidents are discussed sepa-
rately below.
On September 16, 1978,5 Donald Lassen and
James Kesinger, another striker, visited Call at his
apartment. Because Call did not open the door,
Call was unable to tell which of the two visitors
was speaking at any time. Call testified that one of
his visitors stated that Call should watch himself
and that "some of the boys might get rowdy."
Donald Lassen testified that he told Call that he
personally did not care what Call did but that some
people were more radical and were talking vio-
lence. Kesinger testified that it was he, Kesinger,
rather than Lassen, who told Call to "watch his
step." All three witnesses testified that Lassen and
s All dates are in 1978
Kesinger offered to help Call find other employ-
ment as an inducement to Call to join the strike.
Both Lassen and Kesinger testified that during the
conversation they each reassured Call that they
had no intention of taking any action against him
themselves.
Even taking the testimony of Call alone, I find
nothing inherently coercive or threatening in the
comments made by Lassen and Kesinger. It is clear
from Call's testimony that the primary focus of the
conversation was a plea that Call make common
cause with the striking employees. Although Call
may have interpreted the visit as threatening, his
subjective reaction does not alter the character of
the comments made. Indeed, Call's testimony
makes it evident that Call considered the visit itself
threatening, even before the first word was spoken.
Given the comments reported by Call, I would
find that Lassen and Kesinger did not exceed the
bounds of protected activity. Moreover, I note that
the statement given the most emphasis by Call-
that he should watch himself-was made by Ke-
singer rather than Lassen. In these circumstances, I
conclude that the General Counsel has established
that Donald Lassen did not engage in misconduct
during his encounter with Call.
In early September, Donald Lassen and Bill
Mercer, another striker, followed a car driven by
one of Respondent's officials which was transport-
ing three nonstriking employees to a college dormi-
tory. After the students had left the car, Respond-
ent's officials observed that Mercer and Lassen in-
tercepted the students. Respondent's officials were
unable to hear what, if any, remarks were made to
the students. Thereafter, the students did not return
to work.
In finding that this incident constituted miscon-
duct, the Administrative Law Judge erroneously
relied on hearsay testimony by Respondent's offi-
cials to the effect that the students had been threat-
ened. As noted above, Respondent's officials were
unable to say whether it was Lassen or Mercer
who spoke to the students, much less what was
said. Respondent failed to call the students to give
competent evidence concerning any comments
made. Finally, Lassen and Mercer-the only wit-
nesses with direct knowledge concerning the con-
versation-both testified that only Mercer spoke to
the students, and then only to ask that the students
join the strike.
I would find that the General Counsel has estab-
lished that no misconduct occurred. In so finding,
unlike the Administrative Law Judge, I deem it ir-
relevant that the students did not work following
their encounter with Mercer and Lassen. The com-
petent evidence established only that a lawful plea
MIDWEST SOLVNTS, INC
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for solidarity with the strikers was made, and the
possibility that this plea may have been effective
would not render the plea unlawful. Accordingly, I
would find that Respondent erroneously believed
that Donald Lassen engaged in misconduct during
his encounter with the college students and that
this belief cannot constitute a defense to the
charges herein. 6
In addition to the above specific incidents, Re-
spondent allegedly relied on Donald Lassen's activ-
ities in following vehicles from Respondent's prem-
ises. At the hearing, Respondent's witnesses were
unable to state when this purported misconduct oc-
curred, what vehicles were followed, or what, if
any, actions of a harassing nature were taken by
Lassen. A further purported ground was that
Lassen, along with Mercer, was known to be a
"union enforcer." However, Respondent's witness
was unable to state who it was that referred to
Lassen and Mercer in this manner, or what the
basis was for this characterization. Unlike the Ad-
ministrative Law Judge, I would find that such
vague and indirect evidence of misconduct does
not provide a reasonable basis for Respondent's
avowed belief that Lassen engaged in strike mis-
conduct. 7
Roy Lassen
Respondent relied on two purported instances of
strike misconduct by Roy Lassen. The first inci-
dent involved allegations that Lassen used his truck
to block a customer's truck from the entrance to
the plant. The second incident was an alleged
threat to a farmer who was bringing grain into the
plant. Having reviewed the testimony and exhibits
relating to these two incidents, I conclude that the
first incident did not constitute strike misconduct
and that there is insufficient evidence to establish
that Roy Lassen was involved in the second inci-
dent.
The truck-blocking incident occurred at one of
several entrances to the plant. The sequence of
events is essentially undisputed. According to the
testimony most favorable to Respondent, Lassen
pulled around a customer's truck while the custom-
er was waiting for the gate to Respondent's plant
to be opened. Lassen's truck blocked the custom-
er's truck from entering the plant. When Lassen
was asked to move his truck, he did so, and the
customer proceeded into the plant. The Adminis-
6 N.L.R.B. v Burnup and Sims, Inc., 379 U.S 21 (1964)
7 With regard to allegations concerning Lassen's association with
Mercer, I further note that Lassen's mere failure to disassociate himself
from another striker's misconduct is insufficient to constitute strike mis-
conduct in itself. See, e.g., International Ladies' Garment brkcrs IU';on
[B. D. Company, Inc] v N.L.R.B., 237 F.2d 545 (D.C Cir 1956), and
The A. S. Abell Company, 234 NLRB 802 (1978).
trative Law Judge made no finding concerning
Lassen's motivation in parking his truck where he
did. Even if I were to adopt Respondent's theory
that Lassen intentionally blocked the customer's
truck, I would find that this conduct caused only a
brief delay for the customer which would not rise
to the level of harassment. Accordingly, I find that
this incident cannot justify Respondent's refusal to
reinstate Lassen.
The alleged threat occurred at the picket line,
and the identities of the participants are in dispute.
As noted by the Administrative Law Judge, there
was considerable conflict in the testimony concern-
ing the circumstances of this threat. However,
much of this conflict was created by evidence
which should have been given no weight in evalu-
ating the testimony. It is necessary to examine the
evidence presented by Respondent and the General
Counsel in some detail in order to evaluate the reli-
ability of certain disputed documents.
Dale Caudle, a local farmer, testified that, while
leaving Respondent's plant after delivering a load
of grain, he was told by a picketer not to come
back because his combine would be blown up or
burned up. Caudle was unfamiliar with the picket-
er. Thereafter, Caudle testified, he drove to his
farm, roughly a half hour's drive away, spent
roughly a half hour filling his truck with another
load of grain, and returned to the plant. While he
was in the process of unloading this second load of
grain, Caudle reported the picket's comment to Jim
Hosier. Thus, according to Caudle's recollection,
the picket line comment was made at least an hour
and a half before any report was made to Respond-
ent. Caudle was not asked whether the picketer
who made the comment was still at the picket line
when Caudle returned with his second load of
grain.
Following Caudle's direct testimony, Respondent
introduced an "affidavit" signed by Caudle dealing
with the incident. The "affidavit" stated, inter alia,
that the comment was made as Caudle entered the
plant and that he then reported it to Hosier. Upon
reviewing the "affidavit," Caudle specifically dis-
avowed the "affidavit" insofar as it stated that the
comment was made while he was entering the
plant. Instead Caudle reasserted that the comment
was made while he was leaving the plant. The dis-
parity between the "affidavit's" account of events
and Caudle's recollection is understandable when
one considers that Caudle also testified that the "af-
fidavit" had already been prepared for his signature
before he arrived at the meeting with Respondent's
attorney to sign it. The "affidavit" was signed-
and, one assumes, drafted-after the General Coun-
sel and Respondent had presented the main body of
N11MVEST~S7 SOLVENTS'S IC 12 5
their evidence, at a time when it was apparent that
the timing of the comment was a crucial factor,
and only 2-1/2 weeks prior to Caudle's testimony
at the hearing.
The timing of the comment is significant because
of the evidence concerning the identity of the
author of the comment. Caudle did not know the
picketer who made the comment, but only reported
his physical appearance to Hosier. After Caudle's
report, Respondent's officials surveyed the picket
line to see which picketers fit the description, and
chose Lassen. The testimony at the hearing estab-
lished that, although Lassen visited the picket line
for periods of less than an hour, he actually picket-
ed on only 4 full days, and picketed the entrance
used by Caudle only on September 1. The com-
ment was made to Caudle on September 5, accord-
ing to Caudle, or September 12, according to Re-
spondent's officials. No matter which date is used,
it is highly unlikely that Lassen was present for the
hour and a half or more following the comment
while Caudle drove to his farm, loaded his truck,
returned, and reported the comment to Hosier.
As support for its belief that Lassen was respon-
sible for the comment, Respondent introduced the
testimony and affidavit of Donald Bratton, Jr., who
was president of the Union at the time of the strike
and who is still employed by Respondent. The affi-
davit, which was relied on by the Administrative
Law Judge, stated that on September 29 Lassen ad-
mitted to Bratton-
. . .that he had made a phone call to a farmer
and had threatened the farmer about bringing
grain to the plant during the strike but said the
Company could never prove it. He also said
he talked personally with the farmer bringing
grain into the plant while he [Roy] was on the
picket line. He told the farmer "if he contin-
ued to bring grain into the plant something
could happen to his combine."
In my view, Bratton's testimony and affidavit were
the product of coercion and should be discredited
in their entirety. It is instructive to consider the
circumstances under which the affidavit was taken.
Six days before Bratton's testimony, he was
called into an office with Respondent's attorneys
and two supervisors. There he was asked questions
concerning statements allegedly made by the Las-
sens at the conclusion of the strike. During the
course of the interview, Bratton informed those
present that he had notes at home which would
allow him to answer the questions more accurately.
After 40 minutes of questioning, Bratton "shot out
of there" to get his notes so that he could refresh
his recollection concerning the events at the meet-
ing with the Lassens. Bratton signed the affidavit
before going to get his notes and, although he
thereafter sought out one of the supervisors who
had been present at his interview, Respondent gave
him no opportunity to compare his notes with the
affidavit.
I consider the circumstances of this session to be
inherently coercive and not conducive to an accu-
rate recounting of Bratton's recollection. Indeed, at
the hearing, while referring to his notes, Bratton
evidenced considerable difficulty in reconciling his
testimony to the affidavit. In particular, Bratton re-
called that Lassen's remarks to the farmer were not
threatening. Throughout his testimony, Bratton's
recollection as refreshed by his notes seemed to
differ substantially from his "recollection" as re-
corded in the affidavit. The Administrative Law
Judge chose to credit the affidavit. While our pro-
cedures do not prohibit the crediting of an affidavit
over direct testimony,8 it is necessary to consider
the affidavit carefully to determine whether it is
more likely than not that it accurately depicts the
events with which it is concerned. The presence of
Bratton's supervisor and other officials, Bratton's
obvious interest in continuing to be employed by
Respondent, and the failure to allow Bratton to
consult his notes before signing the affidavit make
a highly suspect mixture, in my view. Moreover,
the conflicts in Bratton's testimony, when coupled
with other evidence presented at the hearing, casts
doubt on the account of Lassen's statements con-
tained in the affidavit.
The affidavit states that Lassen and the other
strikers were informed of the reasons for their dis-
charge on September 29. During the parts of Brat-
ton's testimony when he referred to the affidavit,
Bratton testified that Lassen's admission occurred
on September 29 when he and the other strikers
were informed of the reasons for their discharge.
However, other discharged strikers testified that
Bratton told them on September 29 that Respond-
ent had not yet given the Union reasons for the
discharges and that the employees would be noti-
fied by mail of the reasons for their discharges.
During the parts of Bratton's testimony when he
referred to his notes, or at least did not have the
affidavit before him, the essence of Bratton's testi-
mony was that Lassen's admission was made at
some time after the September 29 meeting but
before a meeting held on October 13 with Re-
spondent's representatives. Other evidence indi-
cates that Bratton did not meet with the discharged
strikers between September 29 and October 13,
giving rise to some question concerning when
Sec. c g . ivin J Bart and (o In. 23 N.RBH 42 (1076)
MJt)wEST SOLVENTS. IN 55
1286 I)ECISIONS OF NAI()NAI. I.ABOR RELATI()NS BO()ARI)
Lassen had the opportunity to make the statements
reported by the affidavit.
I believe the Administrative Law Judge correct-
ly discounted Bratton's contradictory testimony,
for that testimony was quite plainly the product of
a desire to mold his testimony to fit Respondent's
trial strategy. That desire was frustrated only be-
cause Bratton was unable to fill in the gaps in Re-
spondent's manufactured evidence, the cornerstone
of which was Bratton's coerced affidavit. As I
would credit neither the affidavit nor Bratton's tes-
timony at the hearing, I find that no competent evi-
dence exists to rebut the evidence presented by the
General Counsel to the effect that Lassen did not
make the statement.
Moreover, even if the evidence had established
that Lassen made the statement reported by
Caudle, I would not find this isolated outburst suf-
ficient cause to refuse him reinstatement. This case
is unlike Montgomery Ward and Co., Incorporated v.
N.L.R.B., 374 F.2d 606 (10th Cir. 1967), cited by
Respondent. In Montgomery Ward, a retail store
saleswoman insulted a customer without provoca-
tion. Because the saleswoman, if reinstated, would
have regular contact with customers, such an inci-
dent could have a continuing adverse impact on
the store's business because of the risk that the in-
sulted customer would come in contact with the
offending saleswoman. Here, however, the striking
employees apparently do not have regular contacts
with suppliers such as Caudle which might cause
Lassen's continued employment to interfere with
Respondent's ability to acquire supplies." Lassen
himself was engaged in construction and mainte-
nance work for Respondent, and there is no evi-
dence that Lassen would come into contact with
suppliers such as Caudle while engaged in that
work. Accordingly, although I would find that no
misconduct occurred, I further conclude that the
misconduct alleged would at most amount to an
isolated moment of animal exuberance of a nature
that can be expected in tense encounters such as
those on a picket line, and which would not have a
continuing effect on Respondent's operations.
Respondent further relies on reports that Lassen
followed its trucks out of the plant. On one occa-
sion, Lassen admittedly followed several car
lengths behind a truck going into Missouri, but
turned around and returned to Kansas when his car
developed a flat tire. Lassen also admitted follow-
ing vehicles on other occasions. There is no evi-
dence that Lassen endangered the vehicles he fol-
lowed or took other steps to harass their drivers.
It is interesting. although not determinative, to note that. by Caudle's
account. Caudle brought another load of grain to Respondent's plant
within hours after the statement was made to him.
Accordingly, I would not find this conduct a suffi-
cient cause for discharge.
APPENDIX
NOTICE To ENMPI.OYEES
POSTED BY ORDER OF THE
NATIONAI. LABOR REILATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities, except to the extent that the
employees bargaining representatives and
the employer may have a collective-bargain-
ing agreement which imposes a lawful re-
quirement that employees become union
members.
WE WILL. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed by the Na-
tional Labor Relations Act.
WE wni.. offer reinstatement to employees
Harold Lassen, Donald Lassen, and Roy
Lassen to their former jobs, or, if those jobs
no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or
other rights and privileges previously enjoyed,
and will make each employee whole for all
monies lost from September 30, 1978, with in-
terest.
MIDWEST SOLVENTS, INC.
DECISION
STATEMENT OiE -rH CASE
JAMES T. RASBUR, Administrative Law Judge: This
case was heard before me in Kansas City, Kansas, on
March 21 and 22, and April 11, 1979, based on a charge
filed by Harold Lassen, an individual, on October 16,
1978, and amended on November 17, 1978, a copy of
each having been served on the Respondent, Midwest
Solvents, Inc., on or about the same dates.' Pursuant to
said charge and amended charge a complaint alleging
violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (herein the Act), was
issued on November 29 by the Regional Director for
U lnless otherwise indicated all dates hereinafter will refer to the year
1978
MIDWIHSS SLVENTS, INC 1287
Region 17 of the National Labor Relations Board and a
copy served on the Respondent. Respondent's answer.
dated December 4 and duly served on all interested par-
ties, admitted certain prerequisite jurisdictional data, hut
denied the commission of any unfair labor practices.
Upon the entire record. including my observation of
the witnesses, and after due consideration of the briefs
filed by the parties, I make the following:
FINIINGS OF ACI
I. JURISDICIION
Respondent is a State of Kansas corporation engaged
in the production, manufacture, distribution, and nonre-
tail sale of alcohol and alcohol byproducts from its
Atchison, Kansas, facility. In the course and conduct of
its operations within the State of Kansas, Respondent an-
nually purchases goods and services valued in excess of
$50,000 directly from sources located outside the State of
Kansas. Respondent annually sells goods and services
valued in excess of $50,000 directly to customers located
outside the State of Kansas. Based on this admitted infor-
mation, the Respondent does not deny and I herewith
find the Respondent to be an employer engaged in com-
merce within the meaning of Section 2(2). (6), and (7) of
the Act.
II. I AOR ORCGANIZAI ON
The Distillery, Rectifying, Wine and Allied Workers
International Union of America. Local 74, is now, and at
all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THL AI.ILGiEI) UNFAIR LABOR PRACIICFS
A. Issuc's
This case is concerned with the refusal by the Re-
spondent, following the termination of a 29-day strike, to
reinstate the Charging Party., Harold Lassen, and his two
brothers, Roy and Donald Lassen. The Respondent con-
tends the refusal to reinstate said Lassen brothers is due
to their respective misconduct and acts of violence both
on and off the picket line during the period of the strike.
The General Counsel contends the Lassen brothers were
not involved in misconduct and alternatively, that even if
they were, the acts of misconduct allegedly committed
were too isolated and insignificant to warrant discharge.
B. Background
The Respondent's employees have been represented by
the Union for a number of years. On July 12, Respond-
ent and the Union entered into labor negotiations with
the hope and expectations of replacing the then-current
collective-bargaining agreement, which was due to
expire on midnight August 31, with a new agreement.
Negotiations were unsuccessful and the Union struck the
plant on September 1. This was the first strike experi-
enced by the Company in its 37-year history and ended
after a period of 29 days when the parties completed,
and the membership then ratified, a new agreement. Re-
spondent continued operations during the period of the
strike by utilizing management personnel and employees
that did not observe the strike, and by hiring additional
personnel. uring the course of the strike Respondent
encountered instances of violence, intimidation of em-
ployees and customers, and sabotage and destruction of
compa;lny property. most of which could not be legally
attributed to the Union or its individual members, but
which somehow only seems to occur during a strike.
There were instances where sophisticated equipment
was wired incorrectly: cherry bombs were thrown onto
the plant premises; bent staples and nails were thrown
into the driveway being used bh customers and employ-
ees; styrofoam was placed behind various electrical
switches causing them to malfunction; a log chain was
thrown into a power plant causing a 16h-hour outage;
rolls of wire were thrown into an electrical substation:
and valve stems on company trucks used in the transpor-
tation of volatile material were bent and damaged. Addi-
tionally, there were instances of individual intimidation
and physical violence. Management received reports
from working employees and their families who were re-
ceiving anonymous and threatening telephone calls at all
hours of the night. An employee was told that if he con-
tinued to haul people to and from the plant some harm
might come to his children. Working employees, custom-
ers, and company trucks transporting highly volatile
products were frequently followed when leaving the
plant and there were two incidents of actual physical as-
sault of employees who elected to work during the
strike. The Respondent obtained a state court restraining
order against the Union (Resp. Exh. 2).
On September 29, the union negotiating committee and
the Respondent's negotiating representatives reached an
agreement which the union committee was ready o take
back to the membership and recommend ratification. At
that time the company representatives advised the union
committee that former employees Harold Lassen.
Donald Lassen, Roy Lassen. David Joe Bowen, William
Mercer. and Steve Wilson were being discharged as a
result of strike misconduct and that another employee,
Patrick Hegarty, was being suspended pending a police
investigation of an incident which occurred on Septem-
ber 20.
According to the testimony, on the evening of Sep-
tember 29 prior to the ratification vote by the Union, the
union representatives met with the aforenamed dis-
charged employees and advised them of the Company's
decision. The employees were told that they could
attend the ratification meeting, but that they were not to
"make waves" during the meeting. Union representatives
who advised the dischargees of their status included Don
Bratton, union president, Bill Walz, secretary-treasurer,
Greg Arnold, recording secretary, and Richard Helfand,
union attorney.
A meeting was held with the discharged employees on
October 13 at which time both company and union offi-
cials were represented and the discharged employees
were given an opportunity to present their case and
make any statement they might wish to make to the
Company. That meeting was attended by Union Repre-
sentatives Don Bratton. Bill WValz, Greg Arnold, and
MII)WEST OLVENTS. INC I '
1288 DECISIONS ()F NATIONAl. LABOR RATI()NS BO()ARI)
Union Attorney Richard Helfand. Company representa-
tives included Joe Carrigan, a vice president and secre-
tary of the Respondent, Marvin Hammond, personnel di-
rector, and Tom Watkins, company attorney. As a result
of the explanation and statement given by Steve Wilson
at the October 13 meeting-which information was fur-
ther investigated by the Respondent-Steve Wilson was
reinstated to his former position with the Company. The
other individuals involved, Mercer, Bowen, and Hegarty,
were not named as parties to this individually filed
charge alleging discrimination against the three Lassen
brothers.
C. Ihe Evidence
1. Donald Lassen
Bob Call testified that he had gone to work for Re-
spondent on the 11th of August and had gone out on
strike beginning September 1, but after 2 weeks of unem-
ployment it was necessary for him to return to work. He
returned to work and has remained continuously em-
ployed. On the 16th of September he was visited at his
apartment in Atchison by two men, one of whom he was
able to identify as Donald Lassen. 2 Call testified that he
was at home with his two children, ages 1 and 5, at the
time the two individuals knocked on his door. He stated
that he refused to open the door and therefore could not
identify which individual was doing the talking, but that
he was asked if he would quit working for Midwest, to
which he responded, "No." He testified, "They had told
me I had better watch myself if I didn't quit. They of-
fered me another job somewhere up north and I told
them I wasn't interested in none of that. That was about
all." On further examination when asked if he had been
told that he had better beware if he continued working
at Midwest Solvents, Call replied, "Yes, he said that
some of the boys might get rowdy." Call testified that he
walked out on the balcony of his apartment when the
two individuals left and it was then that he saw Donald
Lassen well enough to later identify him.
Donald Lassen acknowledged that he went with Jim
Kesinger at the request of Larry Drimmel, a member of
the union negotiating committee, to Call's apartment.
Donald Lassen denied that either he or Kesinger made
any statement to Call to the effect that if he continued to
work at Midwest he had better beware. However, Ke-
singer testified that he told Call that, "You better watch
your step, because there's some people that are upset."
On another occasion during the early part of Septem-
ber, Donald Lassen and Bill Mercer followed a car
driven by Marvin Hammond and accompanied by Ray
Miller, who were taking three college boys back to their
dormitory at the Benedictine College after they had
completed their day's work. After reaching the college
dormitory, Mercer and Lassen spoke to the college stu-
2 It was revealed during the course of the hearing that the other cnl-
ployee accompanying Donald Lassen 'was James Kesinger. There is no
indication that Kesinger was reprimanded or punished i any wly by the
Respondent, hut Carrigan. a Respondent vice president, testified hat
until very recently the Respondent as of the opinion that le "ot her"
employee involved was Bill Mercer. a discharged employee vAith *hoinm
we are not cncerned ih hi, dispule Kesiiger is nio lIotger ;an empl yee
itr the Respondent
dents-one of whom was sufficiently frightened that he
ran directly from the car into the dormitory-and al-
though neither Hammond nor Miller was able to over-
hear what was said to the students they did not return to
work and later related to Joe Carrigan that they had
been advised not to return to work and felt threatened.
Donald Lassen did not deny having followed the three
college students to their dormitory in the company of
Bill Mercer.
Along with these two related incidents, Donald Lassen
was frequently seen following cars of employees, cus-
tomers, and company trucks as they departed from the
plant and along with Bill Mercer was generally known
to be the "union enforcers."
2. Roy Lassen
Roy Lassen has been employed since December 1967
by Respondent in construction and maintenance work.
According to his testimony he only picketed on four oc-
casions. The first time was on September 1 at the Rob-
erts Street entrance from midnight to 8 a.m. The second
time-while he was unsure of the date--was from noon
until 6 p.m. at the 14th Street entrance. The third time-
date again unknown-was at the Main Street entrance
from 8 a.m. to 4 p.m. The fourth time was at 14th Street
from noon until 6 p.m. (See G.C. Exh. 2 for a map gen-
erally showing the points of picketing.)3 However, Roy
Lassen acknowledged that he frequented the picketed
lines on many other occasions and visited with the other
pickets. These visits varied from 20 minutes to a half
hour in length depending on how busy he was at home.
The reasons for the refusal to reinstate Roy Lassen
were given as (1) his deliberate efforts to prevent a cus-
tomer from coming into the plant with his truck by park-
ing the car in a manner that blocked the customer's en-
trance; (2) his threatening a farmer who was bringing
grain into the plant that the farmer's "combine could be
burned up"; 4 and (3) his following employees and com-
pany trucks from the plant.
The facts of the truck-blocking incident are not seri-
ously disputed. According to Roy Lassen he was parked
on Main Street near the Roberts Street entrance to the
plant (see the letter K shown on G.C. Exh. 2) while talk-
ing to a friend who was double parked. He was asked by
the plant superintendent, Melvin Bessette, to move his
truck so the customer could move his truck from the
parking lot (see the letter M on G.C. Exh. 2) into the
plant. According to the testimony of Carrigan, a custom-
er's truck had "pulled up onto the curb to make a sweep-
ing left-hand turn into the plant," because Ray Miller
had gone to open the gate for the truck to enter. At this
point Carrigan said he saw Roy Lassen pull his pickup
truck around the customer's truck and park directly in
front of him so that the customer could not get into the
plant. At that point Melvin Bessette asked Roy Lassen to
move and he did so. According to Carrigan he witnessed
' Ihe infrequency of Ry assen's picketing was supported hb the tes-
tiliony of Jack Walker sho lestified that he frequetly swas "hired" hy
Roy assen to serve in Ry l.assen's place
4 Ihe farmer v;a, not stire whether the person milking the statement
had said "burned" or "blo il"
MID'WEST SOLVENTS. INC. 1 29
the entire incident from his office window which was
about 200 feet away from the parked trucks.
The second incident was more serious, but more con-
tentiously disputed. While Roy Lassen does not deny
asking farmers not to do business with Respondent
during the strike, he categorically denied making any
threat to "blow up or burn up a farmer's combine." Ad-
ditionally, the infrequency of his picketing-the General
Counsel argues-makes him an unlikely candidate as the
party who made the threat; Roy Lassen actually only
picketed the Roberts Street entrance on September I and
this incident occurred on or about September 5.
Mr. Dale Caudle testified that on one of his trips into
the Respondent's plant he was told, by one of the picket-
ers, "not to come back or I'll be out to blow your com-
bine up, and that's all he said." Thereafter Caudle related
the remark to Jim Hosier who was working for Re-
spondent at the weighing scales. Caudle gave Hosier a
description of the picketer who had made the remark.
Hosier testified that he then went to "13th Street to see
who was on the gate and then went in and called Joe
Carrigan and told him to look out the window and gave
him the same description that I received and asked him
to tell me who he saw." Hosier said he identified Roy
Lassen as the man at the gate and his opinion was con-
firmed by Carrigan's identification. Carrigan testified that
he immediately looked out his office window upon re-
ceiving the call from Hosier and identified Roy Lassen.
Donald Bratton, Jr.-who was serving as the union
president at the time of the strike and is still employed
by Respondent-was called to testify and stated that at
the September 29 meeting, when the six employees were
informed that they were not going to be taken back to
work, Roy Lassen had said "that he had made a phone
call to a farmer and had threatened the farmer about
bringing grain to the plant during the strike but said the
Company could never prove it. He also said he talked
personally with the farmer bringing grain into the plant
while he (Roy) was on the picket line. He told the
farmer that 'if he continued to bring grain into the plant
something could happen to his combine."'
Roy Lassen did not deny having followed some trucks
and/or vehicles from the plant and on one occasion fol-
lowed a company truck into Missouri.
3. Harold Lassen
Harold Lassen has been employed by Respondent
since 1966 and was "dismissed from employment at Mid-
west Solvents Company because he deliberately blocked
the entry of a customer's large trailer truck from enter-
ing the plant to pick up a load of feed."
The evidence clearly establishes that Harold Lassen
did park his car on Main Street in back of a customer's
truck that resulted in the customer being unable to move
his truck until a pickup truck parked in front of the cus-
tomer's truck was moved. The police were called, but
the pickup truck moved before they arrived and a con-
frontation was avoided.
The evidence establishes" that Harold Lassen had
parked his car on the south side of Main Street when he
first reported for picket duty. (See G.C. Exh. 2 and the
point marked with an orange X.) Later his car was
moved to the north side of Main Street into a legal park-
ing place that was directly behind a customer's truck.
Harold Lassen testified that shortly after reporting for
picket duty he departed in his car to go to the Union's
headquarters to get some more picket signs. When he re-
turned he approached the plant by driving south on 12th
Street and then turned right on Main Street and parked
his car on the north side of Main Street.
Analysis and Conclusions
I am firmly of the opinion that Bob Call was warned
by Don Lassen that harm could come to him if he con-
tinued working at Midwest Solvents, Inc. I am equally
convinced that Bob Call felt threatened and concerned
not only for his own safety, but also for the safety of his
family. Exactly what was said by Don Lassen and his
companion Mercer (who was not reemployed because of
acknowledged physical violence) to the college students
that caused them to fail to return to Midwest Solvents
for work was never clearly established, but it is clear
that the students no longer reported for work.
Insofar as Roy Lassen's conduct is concerned, it is
equally clearly based on the "difficult" testimony, but
fully credited affidavit of Donald Bratton, Jr., and the
equally credited testimony of a concerned and frightened
Dale Caudle, that Roy Lassen threatened to either blow
up or burn up Dale Caudle's combine if he continued to
make deliveries to Respondent.
The real issue is whether the conduct of Donald and
Roy Lassen, which clearly placed an employee and a
customer in fear of their own personal safety if they (em-
ployee and customer) continued to do what the law
gives them a right to do, is sufficiently egregious to justi-
fy a refusal to reinstate Roy and Donald Lassen.
Economic strikers are entitled to full reinstatement
when jobs for them become available. Laidlaw Corpora-
tion, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir.
1969); NL.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S.
375 (1967). However, economic strikers can lose their
right to reinstatement if they engage in substantial mis-
conduct during a strike. When an employer discharges
an employee for misconduct arising out of a protected
activity such as a strike, the employer's good-faith belief
that the misconduct occurred is not a defense to such a
discharge if it is shown that the misconduct never oc-
curred. N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21
(1964). When an employer establishes such an honest
belief, the defense is adequate unless the General Counsel
affirmatively establishes that such misconduct did not in
fact occur. Rubin Bros. Footwear, Inc., et al., 99 NLRB
610, enforcement denied 203 F.2d 486 (5th Cir. 1953).
The Respondent had both an honest belief and reason-
ably solid evidence of the events on which they refused
s There is no serious dispute on the es idence of this incident The Issue
is whether or not the act uas deliberate harassment that arrants refusal
to reinstate
MIDWEST SOLVENTS. INC 89
1290 I)ECISIONS OF NAII()NAL LAB3()R RELATI()NS B()ARI)
reinstatement. The key question is: Were the acts suffi-
ciently egregious to warrant discharge?
Decisions by the Board and decisions by the circuit
courts of appeal appear to be widely divergent on this
issue. The Respondent's counsel argues rather persua-
sively that the language by the Third Circuit Court of
Appeals in a partial reversal of the Board's decision in
W. C. McQuaide, Inc., 220 NLRB 593, 594 (1975), enfd.
in part 552 F.2d 519 (1977), accurately sets forth an ob-
jective standard to determine whether the alleged con-
duct of an 8(a)(3) violation constitutes a threat sufficient-
ly egregious to justify an employer's refusal to reinstate.
The Board had stated in the McQuaide case:
Although there are indications of instances in which
they [the alleged 8(a)(3)'s] verbally abused or
threatened replacements, this language was not ac-
companied by any physical acts or gestures that
would provide added emphasis or meaning to their
words sufficient to warrant finding that they should
not be reinstated to their jobs at the strike's conclu-
sion.
In finding that the Board had applied an erroneous
standard, the Third Circuit said (552 F.2d at 527):
We recognize that some confrontations between
strikers and non-strikers are inevitable and that not
every impropriety is grounds for discharge. More-
over, we recognize that it is the primary responsibil-
ity of the Board and not of the courts "to strike the
proper balance between the asserted business justifi-
cations and the invasion of employee rights."
N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375,
378, 88 S.Ct. 543, 546, 19 L.Ed.2d 614 (1967). Yet,
we do not believe that an employer must counten-
ance conduct that amounts to intimidation and
threats of bodily harm. Threats are not protected
conduct under the Act, and we fail to see how a
threat acquires protected status simply because it is
unaccompanied by physical acts or gestures. The
question is whether a threat is sufficiently egregious
not whether there is added emphasis.
Some courts have used a subjective approach to
evaluate threats. In N.L.R.B. v. Efco Manufacturing
Co., 227 F.2d 675, 676 (Ist Cir.), cert. denied 350
U.S. 1007 (1955), a striker's threat to beat up a plant
manager was considered not egregious because the
management was not put in direct fear of a beating.
But threats which placed a non-striker in fear of
bodily harm so that he left work for five weeks
were sufficiently egregious to deny reinstatement
inN.L.R.B. v. Trumbull Asphalt Co., 327 F.2d 841,
846 (8th Cir. 1964). The difficulty with this ap-
proach is that it focuses on the effect on the non-
striker rather than on the conduct of the striker.
Another approach is articulated in N.L.R.B. v. Pepsi
Cola Company of Lumberton, Inc., 496 F.2d 226 (4th
Cir. 1974), where the court denied reinstatement of
a striker who told a prospective employee, "I know
where you live, and if you go in there to work, I'll
come looking for you." The Fourth Circuit found
that this "veiled threat" crossed the line from per-
suasion to threats and intimidation and stated, "We
have drawn the line at conduct that is intended to
threaten or intimidate non-strikers." Id. at 228. A
contrary result was obtained in N.L.R.B. v. art-
mann Luggage Co., 453 F.2d 178 (6th Cir. 1971),
when the court focused on the intent of a striker
who told a supervisor that it would be a shame for
them to kill him. Enforcing reinstatement, the Sixth
Circuit observed that the threat was picket line
rhetoric, not literally intended.
Rather than focus on either the subjective intent
of the striker or the perception of the "victim," we
adopt an objective standard to determine whether
conduct constitutes a threat sufficiently egregious to
justify an employer's refusal to reinstate. In Local
542, International Union of Operating Eng. v.
N.L.R.B., 328 F.2d 850 (3d Cir.), cert. denied, 379
U.S. 826, 85 S.Ct. 52, 13 L.Ed.2d 35 (1964), this
court set forth the test for union coercion and in-
timidation in violation of Section 8(b)(l)(A):
That no one was in fact coerced or intimidated
is of no relevance. The test of coercion and in-
timidation is not whether the misconduct proves
effective. The test is whether the misconduct is
such that, under the circumstances existing, it
may reasonably tend to coerce or intimidate em-
ployees in the exercise of rights protected under
the Act.
Id. at 852-853. We believe that this standard which
this Circuit has adopted in the closely analogous sit-
uation of Section 8(b)( I )(A) violations, is equally
applicable to threats and intimidation by individual
strikers.
The First Circuit Court of Appeals in a partial reversal
of the Board's decision adopted the Third Circuit's ob-
jective standard as set forth in the McQuaide case in As-
sociated Grocers of New England Inc., 562 F.2d 1333
(1977). While not specifically adopting the objective
standard set forth by the Third Circuit, the Fifth Circuit
arrived at the same result in Mosher Steel Company, 568
F.2d 436, 442 (1978), when, in a partial reversal of a
Board decision it said, "it would not effectuate the pur-
poses of the Act to allow reinstatement of employees
forcefully retaliating against other employees who are
protected by the Act.
Both the Board and the courts in their efforts to strike
a proper balance between the right of employees to
engage in a lawful strike and the equally lawful right of
an employer to continue to operate his business during a
strike have evaluated the total conduct of both the strik-
ing employees (or union) and the activities of the em-
ployer. In the instant case there was a great deal of
damage done to Respondent's property during the strike
which Respondent attributes, though without demonstra-
ble proof, to union causation. On the other hand there
was absolutely no evidence offered tending to show con-
duct on the part of the Employer that might indicate
union animus. When the activities of Donald Lassen and
Roy Lassen are viewed in light of the substantial damage
to company property during the course of the strike and
MIDIEST SLVENTS, INC. 1 21
the actual uncontested dismissal of some employees be-
cause of physical violence it adds substantial strength
and weight to my belief, based on the observation of the
witnesses at the time of their testimony, that Dale Caudle
and Bob Call had reasonable grounds to believe that
their person or property was in danger. Viewed in such
a light and applying the objective standard established by
the Third Circuit which I believe to be consistent with
the purposes of the Act, I would be disposed to find the
refusal to reinstate Roy and Donald Lassen by the Re-
spondent to have been for lawful and justifiable reasons
under the Act and to have been done without any intent
to interfere with the rights of the individuals, or other-
wise discriminatory under either Section 8(a)(l) or (3) of
the Act. Utilizing the same objective standard I would
be compelled to find that the refusal to reinstate Harold
Lassen was violative of Section 8(a)(1) and (3) of the
Act, because I am not convinced from the evidence that
the movement of his car which resulted in the inability
of a customer's truck to immediately enter the Respond-
ent's plant was a deliberate act of harassment on Harold
Lassen's part. I credit and believe Harold Lassen's testi-
mony that upon moving his car, after reporting for
picket line duty, he parked in the most convenient availa-
ble legal area for doing so. The mere fact that this may
have inconvenienced one of Respondent's customers is
totally inadequate to warrant a refusal to reinstate.
However, it is well established that it is the duty of an
administrative law judge "to apply established Board
precedent which the Supreme Court has not reversed" 6
The General Counsel accurately points out that the
Board has said in Huss & Schlieper Company, 194 NLRB
572, 577 (1971), "the applicable test in determining
whether strikers accused of misconduct should be re-
turned to work 'is whether the misconduct "is so violent
or of such serious character as to render the employees
unfit for further service," or whether it merely consti-
tutes a "trivial rough incident" occurring in "a moment
of animal exuberance." This distinction has been drawn
on the theory that some types of "impulsive behavior,"
being "normal outgrowths of the intense feelings devel-
oped on picket lines," "must have been within the con-
templation of Congress when it provided" for the right
to strike."' From this language to is apparent that the
Board is of the opinion that mere threats unaccompanied
by some actual physical contact or provable acts of de-
struction of property are insufficient to warrant a refusal
to reinstate following the termination of a lawful strike.
The Board stated in Coronet Casuals, Inc., 207 NLRB
304, 305 (1973), in a case involving the reinstatement of
strikers accused of misconduct as follows:
Thus, strikers have been deemed to lose the Act's
protection when they seized the employer's proper-
ty,
4 or engaged in acts of "brutal violence" against
a nonstriker.s At the same time it is true that not
every impropriety committed in the course of a
strike deprives an employee of the protective
mantle of the Act. Thus, absent violence, the Board
and the courts have held that a picket is not dis-
Icw'a BeeJ Pa, kers. Inc . 144 NL.RB 015. 616 (1963)
qualified from reinstatement despite participation in
various incidents of misconduct which include using
obscene language, 6 making abusive threats against
nonstrikers 7 engaging in minor scuffles and disor-
derly argumentsf momentarily blocking cars by
mass picketing,9 and engaging in other minor inci-
dents of misconduct."' Consistent with these cases,
the Board and the courts have long held that minor
acts of misconduct must have been in the contem-
plation of Congress when it provided for the right
to strike and that this right would be unduly jeop-
ardized if any misconduct, without regard for the
seriousness of the act, would deprive the employee
of the protective mantle of the Act."l Thus, in the
words of one decision,
not every incident occurring on the picket
line, though harmful to a totally innocent em-
ployer, justifies a refusal to reemploy a picketing
employee for acts that exceed the bounds of rou-
tine picketing. Impulsive behavior on the picket
line is to be expected, especially when directed
against non-striking employees and strike break-
ers. 12
' L R H Mintcl .litallurgical (Corp. 316 S 240 (1939)
s .'I. R v Keco, (corp. 178 F 2d 57s (C A 4. 1950)
e S . g, Irr; ((au h Induric,. Inc. 166 NRB 5N). 562
563. enfd 41 F 2d 612, 613 (C A . 1969). and c l. ton , I'ntcld
Pl,,t (;uard WIrkctr, 38 S 53, 60-61 (1966)
See. e g., Trrv (oah Industries,. 166 NLRB 560. 563. and
cases ciled therein, end) 411 F 2d 612, 613 (CA. 9, 1969), and
.\:I.. R V Eco .fanulitturing. Inc, 108 NLRB 245, 250). 261
(rplosee Arnoldl, cnfd 227 F 21 675. 676 (C A I. 1951), crt
denlied 350 S 1007 (1955)
' See. e g . Buirlni Iidv Corporation. 126 NLRB 767. 782-783.
enfd 29 F 2d 169, 174-175 (CA 3, 1962).
!- See. eg. Irry Cwch Industries. supru, 562-564. Golay &
(;onpany. Inc. 156 NIR 1252, 1260. 1263 64, enfd in perlinent
pirt 71 1 2d 259. 262 261 (CA 7. 166), crt denied 387 LI S
944 (1966): Elmira Machine and Specialv Wbrks. Inc.. c . 148
NlRIB 1695, 1699, 1707-8 (1964)
"' See. eg.. hayer Compant and H. Ihaver Co., 99 NLRB
1122, 1133, 1212 (employee Leger). remanded on other grounds
213 F2d 748, 752-757 (CA 1. 1954): Kansas Milling Companv. 86
NLRB 925. 927-928 remanded on other grounds 185 F.2d 413
( A I, 195()) cert denied 348 t S 883 (1954) Bcrshlrc Anitting
Mill. 46 NI R1 955. I(X)2 . nfdt a, modfied 119 F 2d 114 ( A
1 1943)
e See. e g. Republic Steel Cornpraion X I. R B. 10' F 2d
472, 479 (C A 3. 1939)
.Mointgomenrc Ward & C( v .NL.RB., 374 F 2d )th. H08
C A 10. 1967)
As indicated earlier herein, I could not find under
either the standard established by the Board or by the
courts the discharge of Harold Lassen to be permissible
under the Act. The action of Harold Lassen in parking
his car in an authorized parking place on the north side
of Main Street was certainly not such an egregious act
that it would warrant loss of his job nor did it threaten
anyone. On the other hand the conduct of Donald and
Roy Lassen was of a more serious nature. Their conduct
was not, under Board standards, accompanied by actual
physical violence or destruction of property and thus not
sufficiently egregious to warrant reinstatement. I find,
therefore that the refusal of the Respondent, Midwest
Solvents, Inc., employees Roy Lassen, Donald Lassen,
MIDWEST SLVENTS, INC. q1
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Harold Lassen to have been violative of Section
8(a)(1) and (3) of the Act and shall order their reinstate-
ment with backpay.
CONCLUSIONS 01 LAW
1. The Respondent, Midwest Solvents, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Distillery, Rectifying, Wine and Allied Work-
ers International Union of America, Local 74, AFL-
CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By failing and refusing since on or about September
29, 1978, to reinstate Donald Lassen, Harold Lassen, and
Roy Lassen to their former jobs the Respondent has vio-
lated Section 8(a)(l) and (3) of the Act.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that it be or-
dered to cease therefrom, and that it take the affirmative
action provided in the recommended order below, which
I find necessary to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER7
The Respondent, Midwest Solvents, Inc., Atchison,
Kansas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to reinstate employees Harold Lassen,
Donald Lassen and Roy Lassen, to their former positions
of employment, or, if those positions no longer exist, to
substantially equivalent employment.
I 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 find-
ings, conclusions, and recommended Order herein shall, as pros ided 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.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed by the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Harold Lassen, Donald Lassen, and Roy
Lassen immediate and unconditional reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent jobs making each employee whole
for any moneys lost from September 30, 1978, until rein-
stated in the manner prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and with interest thereon at
the rate and in the manner provided by the Board in
Florida Steel Corporation, 231 NLRB 651 (1977). 8
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and all other records relevant or
necessary to facilitate the determination of the amounts
due each of the aforenamed employees under the terms
of this order.
(c) Post at its place of business in Atchison, Kansas,
the attached notice marked "Appendix. " 9 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
See, generally, Iss Plumbing & Heating Co., 138 NLRB 716 (1962)
I' n1 the event that this Order is enforced by a Judgment of a United
Sltates Court of Appeals. the words ill the notice reading "Posted by
Order of the National I.abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing at]
()rder of the Natlional l.abor Relations Board."