Mosher Steel Co.

National Labor Relations Board - Board Decisions

Nov 24, 1976

226 N.L.R.B. 1163 (N.L.R.B. 1976)

MOSHER STEEL COMPANY
Mosher Steel Company and United Steelworkers of
America, AFL-CIO. Case 23-CA-5442 and 23-
CA-5630
November 24, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On April 13, 1976, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting 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 rulings,' findings,' and
conclusions I of the Administrative Law Judge and
to adopt his recommended Order.
1 The General Counsel placed in evidence a letter from the Regional
Director to counsel for Fabsteel Company of Louisiana which assertedly
purchased Respondent's Shreveport, Louisiana, plant involved in this pro-
ceeding , in which the Regional Director notified Fabsteel concerning this
proceeding The General Counsel also sought to place in evidence as his
Exh 3(a) Fabsteel's reply to the Regional Director's letter in which in effect
it denied any responsibility or liability for the Respondent's unfair labor
practices and to which it attached a letter it had received from the Union
demanding recognition for the Shreveport employees and a copy of its reply
refusing such recognition These latter two letters the General Counsel of-
fered as his Exhs 3(c) and 3(b), respectively The purpose the General
Counsel claimed for seeking to introduce these three letters was to show
Fabsteel knew of this proceeding and was given an opportunity to partici-
pate in it The Administrative Law Judge rejected these proffered exhibits
We agree with the General Counsel that these exhibits are relevant Conse-
quently, the General Counsel's rejected Exhs 3(a), 3(b), and 3(c) are accept-
ed in evidence Our action here is not to be construed as in any wise a
finding or suggestion on our part that Fabsteel is for any purposes a succes-
sor to Respondent at the Shreveport plant or that it is otherwise responsible
or liable for any of Respondent's unfair labor practices or for remedying
them
2 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge' s resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Drv Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
3 In adopting the Administrative Law Judge's conclusions that employee
Smothers is entitled to reinstatement , we do so solely on the basis of the
credited testimony that Smothers' fight with Suarez was caused by Suarez'
drunkenness and consequent misconduct in a tavern where Smothers was
employed as a bartender at the time of the fight We do not rely on the
alternative ground proposed by the Administrative Law Judge With respect
to employee Wallace, we agree he, too, is entitled to reinstatement How-
ever, in this regard we do not accept the Administrative Law Judge's con-
clusion that circumstantial evidence warrants the inference that Wallace
caused all of the damage to an employee's motorcycle As the Administra-
tive Law Judge notes in his Decision, the direct evidence shows only that
Wallace, who denied causing any damage, did no more than kick the motor-
cycle several times Further, it is unlikely that much of the damage done to
ORDER
1163
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, Mosher Steel Company,
Houston, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
the machine could have been caused by kicking and, finally, the cycle was
in an exposed position where the damage to it could have been done by any
number of persons In these circumstances, we perceive no sound basis for
holding Wallace responsible for all the damage Consequently, we find his
conduct, including the kicking of the cycle a couple of times, did not Justify
the Respondent's refusal to reinstate him
DECISION
STATEMENT OF THE CASE
HENRY L. JALLETTE, Administrative Law Judge- This con-
solidated proceeding involves allegations that the above-
named Respondent violated Section 8(a)(1) and (3) of the
Act by denying reinstatement to 18 unfair labor practice
strikers and by delaying reinstatement to 2 others The pro-
ceeding was initiated by a charge in Case 23-CA-5442
filed on January 31, 1975, and amended on February 11,
1975, pursuant to which a complaint was issued on March
31, 1975, and amended on August 15, 1975, and a charge in
Case 23-CA-5630, filed on June 10, 1975, pursuant to
which complaint issued on August 18, 1975. On various
dates in January and February 1976, hearing was held in
Houston, San Antonio, and Lubbock, Texas, and Shreve-
port, Louisiana.
Upon the entire record, including my observation of the
witnesses and upon consideration of the briefs filed by
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
L BACKGROUND '
Mosher Steel Company is engaged in the business of
fabricating plate and structural steel at several facilities in
the United States, including Houston, San Antonio, and
Lubbock, Texas, and Shreveport, Louisiana, the facilities
involved herem.2
On January 18, 1974, the Union was certified as bargain-
ing representative of the production and maintenance em-
ployees at such facilities, plus a facility at Tyler, Texas.
1 The following background facts are based on findings of fact and con-
clusions of law in Mosher Steel Compant, 220 NLRB 336 (1975), of which I
take official notice, and findings of fact by Administrative Law Judge Eu-
gene Dixon in Case 23-CB-1558. to which no exceptions were filed and of
which I also take official notice, and the pleadings and record in this pro-
ceeding
2 Jurisdiction is not in issue I find that Respondent meets the Board's
$50,000 direct inflow standard for the assertion of jurisdiction
226 NLRB No. 180
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the parties engaged in negotiations without
reaching agreement and a strike was called on July 22,
1974. All the alleged discnminatees herein participated in
the strike , all made unconditional offers to return to work,
and all but two were denied reinstatement for the asserted
reason that they had engaged in misconduct in connection
with the strike. The issues presented are whether the strik-
ers were in fact guilty of strike misconduct, and, if so,
whether their misconduct was sufficiently flagrant to war-
rant a denial of reinstatement.
It is settled law that a striker may be disqualified for
reinstatement by reason of misconduct in the course of a
strike. It is also settled law that not all misconduct in the
course of a strike deprives an employee of his right to rein-
statement . Incidents of misconduct such as using obscene
language , abusive threats against nonstrikers , minor scuf-
fles and disorderly arguments, momentarily blocking cars
by mass picketing, and other minor acts of misconduct are
not generally grounds for denial of reinstatement. As the
Board explained in Coronet Casuals, Inc, 207 NLRB 304,
305 (1973), "minor acts of misconduct must have been in
the contemplation of Congress when it provided for the
right to strike and that this right would be unduly jeopar-
dized if any misconduct, without regard for the seriousness
of the act, would deprive the employee of the protective
mantle of the Act."
It is with the foregoing principle in mind that I have
evaluated the misconduct attributed to the strikers herein.
In addition, I have applied the Thayer doctrine,3 weighing
the misconduct of the strikers against the Respondent's un-
fair labor practices as found in Mosher Steel Company, su-
pra Those unfair labor practices were substantial and were
the cause of the strike. They included systematic question-
ing of employees about their gripes and complaints, solici-
tation of complaints, "massive" individual wage increases,
and a general increase announced on July 12 and effective
July 22, the date the strike started. Such conduct was not
only inconsistent with the duty to bargain in good faith,
but also tended to undermine the Union and to destroy the
right of the employees to be represented by a union for
purposes of collective bargaining. In balancing this mis-
conduct of Respondent against the misconduct of the strik-
ers, I am mindful of the fact that the Board's findings that
Respondent engaged in unfair labor practices and that the
strike was an unfair labor practice strike are pending re-
view by the Court of Appeals for the Fifth Circuit; how-
ever, as of this writing the Board's findings and conclusions
of law are the law of the case.
II THE UNFAIR LABOR PRACTICES
A. The Lubbock Facility
1 Jack Southerland and Hershell White
Southerland and White are the only two strikers in-
volved in this proceeding who were not charged with strike
misconduct and who were not denied reinstatement. Rath-
3 N L R B v Thayer Company, 213 F 2d 748 (C A 1, 1954), cert denied
348 U S 883
er, their reinstatement was delayed from on or about May
10 when they made an unconditional offer to return to
work to July 1 in Southerland's case and to July 15 in
White's case. Reinstatement was delayed for the asserted
reason that there was no work available. However, James
Kindred, general manager, testified that at the time South-
erland and White offered to return to work there were em-
ployees working in their classifications, some of whom had
been employees of Respondent before the strike in other
classifications who were transferred to such classifications
during the strike. Such employees were in effect striker re-
placements, and as Southerland and White were unfair la-
bor practice strikers Respondent was obligated to remove
the striker replacements to make room for Southerland and
White By failing to do so and delaying their return to work
for a period of several weeks, Respondent discriminated
against Southerland and White because of their union and
protected concerted activities and thereby violated Section
8(a)(1) and (3) of the Act.
2. Leroy Robertson
Respondent contends that Robertson engaged in mis-
conduct on three occasions.
Elijah Johnson, a nonstriking employee, testified that
prior to the strike, Robertson solicited him repeatedly to
sign a union card. Johnson refused repeatedly and one day
about a week before the strike, when Johnson refused,
Robertson told him that if he did not sign they were going
to shoot him with a 30:06 (a high-powered rifle) when he
came to work during the strike.
Johnson testified that about 2 weeks after the strike
started Robertson caused him to stop his car as he was
leaving the plant and he invited Johnson to get out of his
car, saying that he would whip him if he did. Johnson did
not and drove away after about 2 minutes.
Larry Rowlett, a nonstriking employee, testified that on
one occasion about 2 or 3 weeks after the strike started, as
he was leaving the plant in his car, moving slowly because
of the pickets, Robertson called him a scab, slapped the
back of his car and told him in vulgar terms that if he got
out of his car, he would, in effect, whip him. Rowlet drove
through.
Rowlett testified that on another occasion as he was
leaving the plant Robertson told him that if he returned to
work the next day he would be the next one. Robertson did
not explain what he meant, but a short distance down the
road Rowlett observed another nonstriker whose car had a
busted window and the nonstriker was bleeding.
Howard Phillips was an employee of National Linen
Service who delivered linens to Respondent's plant. He tes-
tified that on one occasion during the strike as he was en-
tering the plant pickets were cussing him and calling him
names and he remarked, "You'all really think you're
tough" and Leroy Robertson rejoined, "Why don't you get
out and find out how tough we are?" Shortly therafter, as
he was leaving the plant, picket Jesse Bell blocked his truck
while Robertson stood by the window on the right side of
the truck. Both pickets called him a scab and made vulgar
references regarding his mother. Phillips got angry, princi-
pally at Bell, and he got out of his truck. As he did so, Bell
MOSHER STEEL COMPANY
swung his sign and struck the door and scampered away.
By then, Robertson had moved around the truck to Phillips
and a fight ensued between Phillips and Robertson. Phil-
lips struck Robertson a few times, then fell with Robertson
on top of him. When he managed to get up he, in effect,
called it quits. Robertson would not let him return to his
truck, nor permit him to retrieve his watch. Phillips went to
the nearby office of Fuller Construction Company fol-
lowed slowly by Robertson inviting him to "Come on."
Phillips called his supervisor and asked him to call the po-
lice. He returned outside where he was confronted again by
Robertson who told him he had better not try to get into
his truck and leave or he would pull him out and kill him.
The police and Phillips' supervisor arrived and Phillips left
without further incident.
The foregoing are the only incidents of misconduct at-
tributed to Robertson which I deem necessary to detail and
discuss for the purpose of deciding whether Respondent's
refusal to return him to work upon his unconditional appli-
cation was unlawful. The fact that on two occasions his
pickup truck was observed at the picket line with a shotgun
on a rack is insufficient evidence of misconduct to justify
Respondent's refusal to return him to work. Circumstantial
evidence suggests strongly that Robertson participated in
the spreading of tacks at the entrance area of the plant, but
it is not necessary to make a finding on the matter.
As to the incidents described by Johnson and Rowlett
wherein Robertson invited them to step out and fight, I
deem such conduct insufficient to justify a denial of rein-
statement. The incident described by Rowlett wherein
Robertson told him he would be the next one if he returned
the next day, a charge not denied by Robertson, was how-
ever, a clear threat of physical harm. The words used were
not explicitly threatening, but became clearly so when ut-
tered under circumstances as described by Rowlett. The
threat of shooting made to Johnson was also a very serious
act of misconduct. (Robertson denied making the threat,
but I do not credit him. I can perceive no reason for John-
son to have lied.)
Robertson's misconduct as described above did not end
with threats. Admittedly, he was involved in a fight with
delivery man Phillips. According to Robertson, prior to the
day of the fight, he had been goaded by Phillips with name
calling, and on the day of the fight Phillips bumped him
with his truck and was the one to strike the first blow.
Robertson was not a credible witness and I give no cre-
dence to his testimony except as it generally fits in with
Phillips' testimony. It is clear, and I find, that Phillips re-
plied in kind to the verbal abuse heaped on him by the
pickets and that, angered by striker Bell's abuse, he left his
truck to go after Bell. It is also clear that Robertson came
around the truck, admittedly pushed the truck door into
Phillips and gave Phillips cause to believe that Robertson
was attacking him so that Phillips struck the first blow.
Robertson understandably fought back.
Had the incident ended with both participants desisting,
and were it the only incident involving Robertson, one
might conclude, as General Counsel contends, that he was
no more at fault than Phillips and that the incident could
not form the basis of a denial of reinstatement However,
although Robertson was clearly the victor, he was not con-
1165
tent to drop the matter; rather, he pressed the issue by
inviting Phillips to continue fighting, by blocking Rhillips'
access to his truck and watch, and by threats to kill him.
This behavior was of a pattern for Robertson. As shown
above, he had threatened two nonstrikers and had invited
them to fight But for the fact that Johnson and Rowlett
did not accept the challenge there would have been three
fights instead of one. In short, the record supports no other
conclusion than that Robertson perceived it as a legitimate
method of making the picketing effective to engage in de-
liberate acts of misconduct. His threats began before the
strike and continued several weeks after it started. In my
judgment, Robertson's misconduct outweighs the Respon-
dent's unfair labor practices and has rendered questionable
his fitness for future service. Accordingly, I shall recom-
mend that the complaint as to him be dismissed.
B. The Shreveport Facthty
I Robert Wilkerson, Charles Stiles, and Benny Harris
On about the third day of the strike, truckdrivers J. T.
Lindsey and George Austin were approaching the plant in
Lindsey's car and were met at the gate by a group of pick-
ets accompanied by Union Representative C. L. Wimber-
ly. Lindsey and Wimberly talked about Lindsey's entering
the plant and, according to Lindsey, when he indicated he
intended to enter the plant, Wimberly, aided by striker
Robert Wilkerson, dragged him from his car. As Lindsey
was being dragged out, he grabbed a pistol from the seat of
his car, and, after picking himself up from the ground, he
backed towards the plant gate firing two shots in the air.
He was seized from behind by striker Charles Stiles and
charged by Wilkerson whom he struck in the face with his
pistol. Lindsey was wrestled to the ground where he was
stomped by Stiles on the legs, kicked in the head by Wim-
berly and striker Harris, who also struck him in the ribs
with a picket sign. As this was happening, Austin jumped
out of the car with his pistol and broke up the melee by
firing in the air.
The foregoing is essentially Lindsey's version of what
transpired, supplemented by Austin's testimony to the ex-
tent he had opportunity to observe. Their testimony is con-
tradicted by Wimberly, and strikers Wilkerson, Harris, and
Stiles. According to these witnesses, Lindsey was not drag-
ged out of the car; rather, he drove the car at picket Stiles
and then jumped out of the car firing his pistol at
Wilkerson's feet. This conduct by Lindsey provoked the
melee that followed.
I do not credit Wimberly and the strikers. I credit Lind-
sey and Austin. I cannot conceive of Lindsey, even armed
with a pistol, being so foolhardy as to jump out of his car
and provoking a fight with so many strikers present either
right at the picket line or nearby. (According to Stiles,
there were 10 or 15 strikers present near the car, plus some
other strikers nearby.) I am persuaded Lindsey was drag-
ged out of his car by Wimberly, assisted by Wilkerson. I
find that Wilkerson fought with Lindsey and that Stiles
and Harris struck Lindsey as he testified. As a result of the
fight, Lindsey suffered serious cuts requiring 12 stitches
and his ribs were taped. Such serious misconduct justifies
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the denial of reinstatement to all those directly involved;
namely, Stiles, Harris, and Wilkerson.'
2. Roosevelt Washington
Nonstriker Hattie Barfield testified that striker Roose-
velt Washington spoke to her on two occasions during the
first week of the strike. On one occasion as she was leaving
the plant he told her she should call in sick the next day
and advise other female employees to do the same because
there was going to be a big mess up there the next day. On
the second occasion, as she was entering the plant he told
her this was the last warning, that nobody would get in the
next day.
The foregoing is undenied and is the only evidence of
misconduct attributed to Washington.5 I do not deem
Washington's remarks (which were not direct threats that
he would inflict bodily harm) so serious as to render him
unfit for further service with Respondent.
3. Lee Taylor
The only evidence of misconduct adduced against Tay-
lor was an incident wherein he momentarily blocked in-
gress to the plant to the truck of a hauling contractor. In
the process of doing so , from a distance of several feet,
Taylor shouted remarks at the driver which are not de-
scribed in the record , picked up a large rock in each hand,
and made threatening gestures. He did not throw the rocks
and engage in any act of violence beyond his gestures. In
my judgment , such minor misconduct is insufficient to
justify a denial of reinstatement.
C. The Houston Facility
1. James Smothers
About 1 month after the strike started, nonstriker Ar-
mando Suarez accompanied by his wife and two young
children went to Frank's Ice House (a tavern apparently)
where, according to Suarez and his wife, he drank six cans
of beer in a period of 2 or 3 hours. The family left the
premises, but Armando Suarez returned to get another
beer. The bartender was striker James Smothers. Accord-
ing to Suarez, he asked Smothers for a beer, and Smothers
said something which Suarez could not recall and he struck
Suarez between the eyes with the sawed-off butt end of a
cue stick.
According to Smothers, Suarez had had too much to
drink when he first arrived at the tavern and he refused to
serve him. (Mrs. Suarez testified her husband had six cans
4 Wilkerson was also involved in an incident wherein he tore the door
handle off a company truck driven by Austin and an incident where he
threatened nonstriker Hattie Barfield with shooting the tires of her car This
conduct is additional ground for denying him reinstatement Harris was
accused of threatening to get even with a truckdriver who entered the plant
on the second day of the strike, but I deem that incident insufficient to
justify a denial of reinstatement
5 It appears Washington was present on the occasion when Lindsey was
beaten described above, but there is no showing he participated in the inci-
dent
of beer before they arrived at the tavern.) He had to order
him to stop annoying customers and to sit down. After 20
minutes, the Suarez family left, but Armando Suarez re-
turned to demand a beer. When Smothers refused, Suarez
started to walk behind the bar and Smothers pushed him
back. Suarez charged back with his fist closed, so Smothers
struck him.
As is readily seen, if Smothers were credited, his striking
of Suarez with a club, while hardly justified under the cir-
cumstances even as he gave them (Smothers was much
larger than Suarez), would be unrelated to the strike and
would not constitute grounds for denying him reinstate-
ment. I am disposed to credit Smothers despite the unfa-
vorable impression he made upon me by his demeanor,
because his version of the incident appears to me the more
logical one. But it matters little whom I credit. Under Sua-
rez' version of the incident, he was innocent of any act of
provocation, but he offered no evidence that the incident
was strike related. All that the evidence shows is that Sua-
rez was a nonstriker and Smothers was a striker. Respon-
dent would have me infer from this circumstance that
Smothers struck Suarez because Suarez was a nonstriker.
In my judgment, such an inference would be pure specula-
tion. Accordingly, assuming Suarez' version were credited,
I would nevertheless conclude that the evidence was insuf-
ficient to support a finding of misconduct related to the
strike and that Smothers had not engaged in misconduct
which would justify a denial of reinstatement.
2. Douglas Wallace
According to Respondent's records, striker Douglas
Wallace was discharged on September 27, 1974, for "public
display of extreme disrespect for a co. officer." The inci-
dent referred to occurred on or about September 27, 1974,
and consisted in Wallace's giving the finger to Director of
Industrial Relations Jones as Wallace drove by Jones. Ac-
cepting Jones testimony about the incident, it did not con-
stitute misconduct sufficient to justify his discharge and
subsequent refusal of reinstatement.
John Flippin, a hauler for Respondent, testified that
shortly after Christmas he observed Wallace kicking a mo-
torcycle chained to a post near the plant gate. He reported
the incident to Respondent and the motorcycle, which be-
longed to a nonstriker, was moved onto company property.
Pictures of the motorcycle taken sometime later disclosed
that a fluid of some sort had been poured on the gasoline
tank and had flowed onto the motor, a broken gas cap
latch, a dent in the rear fender, a bolt removed from the
license plate holder, an inspection sticker removed, a bent
fender support, a damaged turn signal indicator, wires
pulled from the instrument panel, and an instrument bulb
removed. There is no evidence of the cost of repair of the
damage.
Wallace denied damaging the motorcycle and General
Counsel would have me credit him. In particular, General
Counsel points out that the only actions attributed to Wal-
lace was the kicking of the motorcycle and that most of the
damage described could not have been caused by kicking.
Although General Counsel's observations are correct, I
find that Wallace did cause the damage described above. I
MOSHER STEEL COMPANY
credit the testimony of Flippin and discredit Wallace, and,
while there is no direct evidence that Wallace did more
than kick the motorcycle, the circumstantial evidence war-
rants the inference that his actions did not end with the
kicks.
Despite the foregoing conclusion, I find that as an unfair
labor practice striker Wallace was unlawfully denied rein-
statement. While not to be condoned, Wallace's conduct
caused minimal damage to the motorcycle; as noted above,
no evidence of the cost of repair was adduced. Balancing
such misconduct against Respondent's serious unfair labor
practices, I conclude that it was not sufficiently serious to
render Wallace unfit for further employment by Respon-
dent.
3. Bryan Jacobs
Bryan Jacobs was discharged on July 25, 1974, for the
asserted reason that he had "sabotaged Dept. 46 office rec-
ords prior to going on strike and made threats to bomb
plant." (Resp. Exh. 1) On August 13, 1974, the Union filed
a charge in Case 23-CA-5216 charging Respondent with
violating Section 8(a)(I) and (3) of the Act by discharging
Jacobs. On October 7, 1974, the Regional Director ap-
proved withdrawal of the charge. On January 10, 1975,
Jacobs made an unconditional offer to return to work and
was denied reinstatement. On January 31, 1975, the Union
filed the charge in Case 23-CA-5442 charging that Re-
spondent violated Section 8(a)(l) and (3) of the Act by
refusing to employ Jacobs upon his unconditional offer to
return to work. The complaint allegation respecting Jacobs
is based on that charge and alleges a violation of Section
8(a)(1) and (3) of the Act by reason of Respondent's refus-
al to reinstate him.
Respondent asserts that the allegation respecting Jacobs
is barred by Section 10(b) of the Act.6 Respondent con-
tends that Jacobs was discharged more than 6 months be-
fore the filing of the instant charge and that he cannot, by
requesting reinstatement, in effect seek to relitigate the un-
fairness of his original discharge citing N.L.R.B. v. Textile
Machine Works, Inc., 214 F.2d 929 (C.A. 3, 1954), and
Knickerbocker Manufacturing Company, Inc., 109 NLRB
1195, 1196 (1954).
General Counsel contends that the 10(b) issue is con-
trolled by the Board's decision in Lee A. Consaul Co., Inc,
192 NLRB 1130 (1971). In particular, General Counsel re-
lies on the analysis on pages 1158 and 1159. General Coun-
sel asserts that Jacobs is the analogue of example C in the
Consaul case. There are important factual differences be-
tween example C and the facts surrounding Jacobs' dis-
charge. Whether or not they are sufficient to warrant a
different result is not an easy question and one which need
not be resolved, because assuming, arguendo, that the alle-
gation respecting Jacobs is not barred by Section 10(b) of
the Act, General Counsel has not met his burden of estab-
lishing that Jacobs did not engage in serious misconduct.
The issue of whether or not Jacobs was in fact guilty of
6 Sec 10(b) of the Act provides, in pertinent part "that no complaint
issued based upon any unfair labor practice occurring more than 6 months
prior to the filing of the charge with the Board .11
1167
the misconduct described in Respondent's Exhibit 1 was
not litigated. The only evidence on the issue is Respon-
dent's Exhibit I which was identified and admitted into
evidence as a record kept in the ordinary course of busi-
ness. This record was prepared at the time of Jacobs' dis-
charge and there is no evidence to suggest that the reasons
for discharge appearing thereon were pretextual. Respon-
dent's Exhibit 1, therefore, is sufficient to establish Re-
spondent's honest belief that Jacobs engaged in miscon-
duct and, thereupon, it became General Counsel's burden
to establish that Jacobs did not engage in misconduct.'
General Counsel presented no evidence on the issue. Ac-
cordingly, as the misconduct attributed to Jacobs was of a
very serious nature, I find that General Counsel has failed
to establish that Respondent unlawfully denied Jacobs re-
instatement.
D. The San Antonio Facility
Nine strikers were denied reinstatement at this facility
for the asserted reason that they had engaged in miscon-
duct. Except in the case of James Maney, Respondent ad-
duced no evidence of misconduct in the hearing before me.
As noted earlier, a hearing was held in Case 23-CB-1558
before Administrative Law Judge Eugene Dixon, wherein
the Union (Charging Party in this proceeding) was found
to have violated Section 8(b)(1)(A) of the Act. In that case,
Administrative Law Judge Dixon made findings of mis-
conduct by the eight strikers alleged as discriminatees in
this proceeding. (For example, striker Ramon Briones was
found to have threatened nonstriker Ralph DeLuna with
physical violence if he did not join the strike.) Relying on
such findings, Respondent adduced no evidence of miscon-
duct on the part of the alleged discriminatees. Moreover,
Respondent objected to the receipt of any evidence on the
issue of such misconduct on the ground that it would con-
stitute a relitigation of issues previously decided. Over such
objections, testimony was received from four strikers either
to explain the circumstances of the misconduct found
against them or to deny they had been guilty of it. None of
the four had testified in the hearing before Administrative
Law Judge Dixon
In its brief, Respondent asserts that it was error to re-
ceive testimony from the strikers. After careful consider-
ation of the issues and the cases cited by Respondent, I
reject Respondent's assertion. In Local Union No. 3, Inter-
national Brotherhood of Electrical Worke,.;, AFL-CIO (New
York Telephone Company), 197 NLRB 866 (1972), the same
parties had been involved in both proceedings. That is not
the case here. True, the Union and the Respondent have
been parties in both proceedings, but, in reverse roles.
More importantly, the strikers who are here alleged as dis-
criminatees were not parties to the prior proceeding. The
fact that their conduct was alleged to be imputable to the
Union, or even that they were named as agents of the
r Ohio Power Company, 215 NLRB 862 (1974) In that case, the
company's honest belief was predicated on a discharge letter , instead of a
company record, but the principle remains the same In this case, the record
does not indicate what Jacobs was told as the reason for discharge, but he
was notified of his discharge as indicated by the fact that the charge in Case
23-CA-5216 was filed on his behalf on August 13, 1974
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, did not make them parties. They were not served
with notice of hearing and were under no obligation to
appear unless subpenaed, and there is no showing they
were. Nor could the strikers be deemed privies for the pur-
pose of estoppel. They had no interest in the CB proceed-
ing. In this connection, it should be noted that the hearing
in Case 23-CB-1558 was conducted on January 7 and 8,
1975, before any of the alleged discnmmatees herein had
offered to return to work and had been denied reinstate-
ment. Thus, the issue of the denial of reinstatement was not
even ripe for litigation . For this reason , Peyton Packing
Co., Inc., 129 NLRB 1358 (1961), and Jefferson Chemical
Company, Inc., 200 NLRB 992 (1972), are inapposite. As to
1. Posner Inc., 140 NLRB 1313 (1963), there is no showing
that the issue of estoppel was either raised or decided. I,
therefore, do not deem it dispositive of the issue here.
The ruling that General Counsel was not estopped from
litigating the misconduct of the alleged discrimmatee has
posed some problems. Turning to the example previously
used of Ramon Briones who was found to have threatened
nonstriker Ralph DeLuna with physical violence. Bnones
testified before me and denied threatening DeLuna. De-
Luna did not testify before me. Consequently, I am left
with resolving the factual issue as between Briones' testi-
mony and the finding of Judge Dixon in Case 23-CB-1558
of which I am required to take official notice. It seems
obvious to me that a trier of fact cannot resolve issues of
fact on such a basis, and, if my conclusion that collateral
estoppel did not apply is correct, by failing to recall the
witnesses who had previously attributed misconduct to the
alleged discriminatees , Respondent took the risk that a
finding would be made that they had not engaged in mis-
conduct and were entitled to reinstatement. Respondent
was advised of this risk at the hearing and chose not to call
the witnesses who had previously testified.8
1. Threats of violence
a. Ramon Briones, Roy Zapata, and Juventino Buruato
Nonstriker Ralph DeLuna testified in the CB case that
before the strike started Ramon Briones told him he could
be rendered unable to walk if he came to work during the
strike. DeLuna also testified that Roy Zapata told him that
"he had better not show up for work on the day of the
strike, that this was a warning to him that they would `take
care' of him." Nonstriker Jay Benson testified in the CB
case that, on July 23 on a visit to the picket line to discuss
his crossing the picket line, picket line captain Buruato told
him "they had kicked two black men's asses and they
didn't want to see anything happen to him like that that
didn't have to happen."
Bnones, Zapata, and Buruato, none of whom testified in
the CB case , denied in the hearing before me that they had
made the threats attributed to them. As neither DeLuna
nor Benson testified before me, and as I have no reason to
s One witness, Jay Benson, was unavailable Other witnesses apparently
were, but they were reluctant or unwilling to testify allegedly because of
anonymous threats against them Respondent chose not to compel their
appearance by subpena
discredit Briones, Zapata, and Buruato, I conclude that the
record is insufficient to warrant a finding that they en-
gaged in misconduct.
In any event, assuming that Briones, Zapata, and Burua-
to had made the remarks attributed to them, I would find
the implied threats of physical harm insufficient to render
them unfit for employment. This finding is predicated on
the facts that each striker was guilty of a single threat and
that none of them has been shown to have engaged in any
acts of violence although the strike lasted for several
months and they all performed picket duty.
b. Bias Mora and James Maney
In these two cases, neither of the strikers testified either
in the CB case or this hearing. The evidence respecting
Bias Mora consists of testimony in the CB case that he told
nonstriker Guerrero that he was going to "get my ass" for
coming to work. In the case of Maney, Phil Niemeyer, per-
sonnel director at Respondent's San Antonio plant, testi-
fied that on the first day of the strike as he was leaving the
plant in his car he observed about 70 strikers across the
roadway from the plant gate, including James Maney. Cars
exiting from the plant had to move slowly because of the
pickets and strikers generally were shaking their fists in the
air and calling people leaving the plant all types of obsceni-
ties. Maney, for one, yelled, "Come on down you S.O.B.,"
made a motion inviting him to come across the street, and
added "and I will break your head."
Crediting Niemeyer's testimony, and accepting as true
the evidence against Blas Mora in the CB case, I conclude
that, absent any evidence that either striker engaged in any
acts of violence during a long strike, such isolated threats
are insufficient to justify a denial of reinstatement.
2. Acts of violence
a. Adam Jimenez and Julio Ortegon
Jimenez did not testify either in this proceeding or that
before Administrative Law Judge Dixon. In that proceed-
ing, there was uncontradicted testimony that on July 23
he threw a rock at a pickup truck which had momentarily
stopped as it was leaving the plant. The truck had three
occupants who it appears were nonstrikers. The rock
thrown by Jimenez struck the flat bed of the truck. There
was no evidence of any damage.
In the CB case, evidence was adduced that Ortegon, who
was a picket line captain, tapped the truck of nonstriker
Marcelino Jimenez, Jr., with a picket sign causing a few
scratches. In the hearing before me, Ortegon admitted
striking the side of a truck driven by Jimenez as he was
leaving the plant. Implicit in his testimony is that he did so
in reaction to the truck's coming too close to him as it
passed him by.
Neither of the foregoing incidents involves misconduct
so serious as to warrant disqualification of the strikers. In
Jimenez' case, there was no damage; in Ortegon's case,
only slight damage.
MOSHER STEEL COMPANY 1169
b. Joe Lopez and Pete Mora
The only evidence respecting the misconduct of Lopez
and Mora is the testimony in the CB case. The principal
incident of misconduct occurred on October 18 when a
fight occurred at the picket line between Lopez and non-
striker Roger Huron. Both Huron and Lopez testified and
Administrative Law Judge Dixon found that Huron pro-
voked the fight with Lopez and was the agressor. On the
basis of that finding, I conclude that denial of reinstate-
ment to Lopez would not be warranted on the basis of his
fight with Huron.
However, in his decision, Administrative Law Judge
Dixon noted that nonstriker Jose Villarreal, whose car was
behind Huron's exiting from the plant and who had wit-
nessed the incident between Lopez and Huron and had
stepped out of his car telling the strikers "let the man
alone," testified without denial that Lopez, without provo-
cation, struck Villarreal in the nose with his fist. Another
striker struck Villarreal and he fell to his knees Then, Lo-
pez kicked Villarreal in the nose Villarreal's nose was bro-
ken.
General Counsel did not address himself specifically to
this aspect of the Huron-Lopez fight. He appears to consid-
er the blows struck upon Villarreal as an inseparable part
of a physical altercation into which Lopez was involuntari-
ly drawn I do not agree. As Administrative Law Judge
Dixon noted in his decision, Villarreal's testimony that Lo-
pez struck him without provocation was undenied, as was
his testimony that Lopez kicked him in the nose. Further-
more, after striker Aranda had intervened to stop the beat-
ing, and as he was assisting Villarreal to his feet, Lopez
again struck Villarreal in the face. Although Administra-
tive Law Judge Dixon credited Lopez over Huron and
found Huron to be the agressor, there is no indication that
in doing so he discredited Villarreal who could not really
testify who was the aggressor as between Huron and
Lopez
The beating inflicted on Villarreal cannot be defended
even on Lopez' testimony that Villarreal approached him
with clenched fists. It should be noted that Lopez was not
alone. To the contrary, striker Mann had been close
enough to strike Villarreal, striker Aranda was nearby, as
was striker Pete Mora. Thus, Lopez was hardly at
Villarreal's mercy. To the contrary, Villarreal was at Lopez'
mercy and he received none.
As to Pete Mora, the decision in the CB case reflects that
after striker Aranda had succeeded in stopping the beating
of Villarreal and after Lopez had administered his last
blow, while Villarreal was attempting to wipe the blood
from his face, Mora hit him in the side of the face with his
fist. General Counsel states that Mora "was not found to
be at blame for his participation by Judge Dixon in this
fight." That is true. The fact of the matter is that Mora's
participation was not even considered by Administrative
Law Judge Dixon. I view the decision as finding that Mora
struck Villarreal as he was attempting to wipe blood from
his face and I find the blow was wholly unprovoked.
On the basis of the foregoing, I conclude that Lopez and
Mora are disqualified for reinstatement.
111. SUMMARY
Summarizing the foregoing, I find that Roosevelt Wash-
ington, Lee Taylor, James Smothers, Douglas Wallace, Ra-
mon Bnones, Roy Zapata, Juventino Buruato, Blas Mora,
James Maney, Julio Ortegon, and Adam Jimenez did not
engage in misconduct which would warrant denial of rein-
statement and that Respondent violated Section 8(a)(1)
and (3) of the Act by denying them reinstatement.
I find that Leroy Robertson, Robert Wilkerson, Charles
Stiles, Benny Harris, Joe Lopez, and Pete Mora, engaged in
serious misconduct which rendered them unfit for further
employment. In the case of Bryan Jacobs, General Counsel
failed to establish that Jacobs was not in fact guilty of the
serious misconduct attributed to him by Respondent and
therefore failed to establish that denial of reinstatement to
Jacobs was unlawful.
I find that jobs were available for Jack Southerland and
Hershell White when they unconditionally offered to re-
turn to work and that Respondent unlawfully delayed their
reinstatement in violation of Section 8(a)(1) and (3) of the
Act.
CONCLUSIONS OF LAW
1. Mosher Steel Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2 United Steelworkers of America, AFL-CIO, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
3 By failing and refusing to reinstate Ramon Briones,
Juventino Buruato, Adam Jimenez, James Maney, Blas
Mora, Julio Ortegon, James Smothers, Lee Taylor, Doug-
las Wallace, Roosevelt Washington, and Roy Zapata, upon
their unconditional offer to return to work, and by delay-
ing the reinstatement of Jack Southerland and Hershell
White, Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Sections 8(a)(1) and
(3) and 2(6) and (7) of the Act.
4 The evidence is insufficient to support a finding that
the refusals to reinstate Benny Harris, Bryan Jacobs, Joe
Lopez, Pete Mora, Leroy Robertson, Charles Stiles, and
Robert Wilkerson were violative of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I find it necessary to order Respondent to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondent unlawfully denied re-
instatement to Ramon Briones, Juventino Buruato, Adam
Jimenez, James Maney, Blas Mora, Julio Ortegon, James
Smothers, Lee Taylor, Douglas Wallace, Roosevelt Wash-
ington, and Roy Zapata, I shall order it to offer them im-
mediate and full reinstatement to their former jobs or, if
such jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and privileges, and to make them whole for any loss of
earnings they may have suffered by reason of the unlawful
refusal of reinstatement by payment to them of a sum of
money equal to that which each normally would have
earned as wages from the first workday after their uncondi-
tional offer to return to work to the date of the offer of
reinstatement , less net earnings , to which shall be added
interest at the rate of 6 percent per annum in accordance
with the formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
As to Jack Southerland and Hershell White, whose rein-
statement was unlawfully delayed, I shall order Respon-
dent to make them whole for any loss of earnings they may
have suffered from the date of their unconditional offer to
return to work to the date on which they were reinstated.
Upon the basis of the foregoing findings of fact , conclu-
sions of law , and upon the entire record in this case, I
hereby issue the following recommended'
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it
hereby is dismissed insofar as it alleges unfair labor prac-
tices not found herein.
e In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
10 In the event that the Board ' s Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading " Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
ORDERS
Respondent, Mosher Steel Company, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from.
(a) Discouraging membership in, or activities on behalf
of, United Steel Workers of America, AFL-CIO, or in any
other labor organization , by refusing to reinstate , delaying
reinstatement , or otherwise discriminating against employ-
ees in regard to hire or tenure of employment or any other
term or condition of employment
(b) In any other manner interfering with , restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Ramon Briones, Juventino Buruato, Adam
Jimenez, James Maney , Bias Mora , Julio Ortegon, James
Smothers, Lee Taylor, Douglas Wallace, Roosevelt Wash-
ington, and Roy Zapata, full, immediate, and uncondition-
al reinstatement , and make them , and Jack Southerland
and Hershell White , whole with interest , in the manner
described in the Remedy section of this Decision.
(b) Preserve and, upon 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 rele-
vant and necessary to a determination of the amounts of
backpay due under the terms of this recommended Order.
(c) Post at its facilities in Houston , Lubbock, and San
Antonio, Texas, and Shreveport, Louisiana, copies of the
attached notice marked "Appendix." 10 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 23, after being duly signed by the Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof, and maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to employees are customarily posted Rea-
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice.
WE WILL NOT discourage membership in United
Steelworkers of America, AFL-CIO, or any other la-
bor organization, by refusing to reinstate, delaying re-
instatement , or otherwise discriminating against em-
ployees in regard to hire or tenure of employment or
any other term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
rights protected by Section 7 of the National Labor
Relations Act, as amended.
WE WILL offer Ramon Briones, Juventino Buruato,
Adam Jimenez, James Maney, Bias Mora, Julio Orteg-
on, James Smothers, Lee Taylor, Douglas Wallace,
Roosevelt Washington, and Roy Zapata, full, immedi-
ate, and unconditional reinstatement to their former
jobs or, if such jobs no longer exist , to substantially
equivalent jobs and make them whole for any loss of
pay they may have suffered as a result of the refusal to
reinstate them, with 6-percent interest.
WE WILL make whole Jack Southerland and Hershell
White for any loss of earnings they may have suffered
as a result of our delay in reinstating them, with 6-
percent interest.
MOSHER STEEL COMPANY