Siemens Energy & Automation

National Labor Relations Board - Board Decisions

Aug 10, 1999

328 N.L.R.B. 1175 (N.L.R.B. 1999)

SIEMENS ENERGY & AUTOMATION, INC. 1175
Siemens Energy & Automation, Inc. and Interna-
tional Union, United Automobile, Aerospace,
and Agricultural Implement Workers of Amer-
ica, Local Union No. 1956, AFL–CIO. Case 15–
CA–12149
August 10, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND BRAME
On July 6, 1998, Administrative Law Judge William
N. Cates issued the attached bench decision. The General
Counsel filed exceptions and a supporting brief, in which
the Charging Party joined, and the Respondent filed
cross-exceptions with a supporting brief and an answer-
ing brief to the General Counsel’s exceptions. On Feb-
ruary 9, 1999, following a remand by the Board,1 the
judge issued the attached supplemental decision. The
General Counsel filed exceptions and a supporting brief,
in which the Charging Party joined, and the Respondent
filed an answering brief to the General Counsel’s excep-
tions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decisions and the record
in light of the exceptions and the briefs and has decided
to affirm the judge’s rulings, findings,2 and conclusions
and to adopt the recommended Order.
We agree with the judge, for the reasons set forth be-
low, that the Respondent did not unlawfully refuse to
reinstate Jesse Banks after the instant strike, and that it
lawfully suspended and subsequently discharged him for
engaging in serious strike misconduct: i.e., throwing
roofing tacks (also referred to as roofing nails) on the
roadway at a vehicular entrance to the plant during the
strike, and kicking a car as it passed through the picket
line.
In his attached July 6, 1998 initial decision, the judge
found it unnecessary to determine whether Banks had in
fact engaged in the above misconduct so as to justify the
Respondent’s denial of reinstatement and discharge of
Banks. Rather, the judge found that the record estab-
lished that Banks made underhanded tossing motions at a
vehicle that was entering the Respondent’s facility at a
time during the strike when this roadway was littered
with roofing tacks, and also that Banks made a kicking
motion at a car as it was entering the Respondent’s facil-
ity during the strike. The judge found that such conduct
alone was sufficiently serious strike misconduct to justify
the Respondent’s actions toward Banks. Thus, he rec-
ommended dismissal of the complaint on the basis of
those findings alone, without finding whether Banks in
fact threw tacks or kicked the car.

1 Chairman Truesdale did not participate in the remand order. Mem-
ber Brame dissented from the remand order, as he would have adopted
the judge’s original decision recommending dismissal of the complaint.
2 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established policy
is not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing the findings.
On December 21, 1998, we remanded the instant pro-
ceeding to the judge for him to determine, based on the
preponderance of the evidence, whether Banks in fact
kicked cars or threw roofing tacks onto the roadway at
the vehicular entrance to the Respondent’s plant during
the strike. In his February 9, 1999 supplemental deci-
sion, the judge found that Banks did in fact throw tacks
and kick a car, and he reaffirmed his prior recommenda-
tion that the complaint be dismissed. We affirm the
judge’s findings that Banks did in fact engage in the
above misconduct, and we adopt his recommended Order
dismissing the complaint.
In adopting the judge’s recommended dismissal of the
complaint, however, we find that he inappropriately ap-
plied the framework for analysis set forth in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). Cases like this,
where the issue is whether an employer may lawfully
refuse to reinstate (and thus discharge) a striker on the
basis of alleged strike misconduct, require a two-part
analysis. First, under the standard in Clear Pine Mould-
ings, 268 NLRB 1044, 1046 (1984), enfd. 765 F.2d 148
(9th Cir. 1985), cert. denied 474 U.S. 1105 (1986), an
employer may lawfully deny reinstatement to a striker
whose strike misconduct under the circumstances may
reasonably tend to coerce or intimidate employees in the
exercise of rights protected under the Act. Second, under
the framework for analysis in Rubin Bros., 99 NLRB 610
(1952), General Telephone Co., 251 NLRB 737 (1984),
and Axelson, Inc., 285 NLRB 862 (1987), once the Gen-
eral Counsel has initially established that a striker was
denied reinstatement for conduct related to the strike, the
burden of going forward with the evidence shifts to the
employer to establish that it had an honest belief that the
striker in question engaged in the strike misconduct. If
the employer establishes that, then the burden of going
forward shifts back to the General Counsel to establish
that the striker in question did not in fact engage in the
alleged misconduct.
In applying these principles to this case, we note that
throwing roofing tacks on the roadway at a vehicular
entrance to the plant during the strike, or kicking a car
entering or leaving the plant during the strike, may rea-
sonably tend to coerce or intimidate employees in the
exercise of their right to refrain from participating in a
strike. See, e.g., GSM, Inc., 284 NLRB 174 (1987)
(kicking a car); Certainteed Corp., 282 NLRB 1101,
1115–1118 (1987) (throwing and placing nails); PRC
Recording Co., 280 NLRB 615, 615–616, 652–661
328 NLRB No. 164
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176
(1986), enfd. sub nom. Richmond Recording Corp. v.
NLRB, 836 F.2d 289 (7th Cir. 1987) (throwing and drop-
ping nails). Further, we agree with the judge, for the
evidentiary reasons he sets forth in his attached deci-
sions, that the Respondent established that it had an hon-
est belief that Banks engaged in such misconduct. Fi-
nally, we agree with the judge that the preponderance of
the evidence, as set forth and discussed in his decisions,
establishes that striking employee Jesse Banks in fact
kicked a car and threw roofing tacks onto the roadway at
a vehicular entrance to the Respondent’s plant during the
strike involved in this case. Conversely, then, we find
that the General Counsel has failed to establish that
Banks did not engage in that conduct. Accordingly, un-
der the standard in Clear Pine Mouldings and the frame-
work for analysis in, e.g., Axelson, we affirm the judge’s
conclusion that the Respondent lawfully refused to rein-
state Banks after the strike and lawfully discharged him
for engaging in the above strike misconduct.3
ORDER
It is ordered that the complaint is dismissed.

MEMBER BRAME, concurring.
I agree with my colleagues that the Respondent law-
fully discharged Banks for strike misconduct. I also
agree with my colleagues that the proper framework for
analyzing this case is that set forth in Clear Pine Mould-
ings, 268 NLRB 1044, 1046 (1984), enfd. 765 F.2d 148
(9th Cir. 1985), cert. denied 474 U.S. 1105 (1986).1 Un-
der Clear Pine, an employer may lawfully deny rein-
statement to a striker whose actions during the strike
reasonably tend to coerce or intimidate employees in the
exercise of their Section 7 rights. Consistent with the
Supreme Court’s decision in NLRB v. Burnup & Sims,
379 U.S. 21 (1964), an employer may defend its decision
not to reinstate a striker by showing that it had an “hon-
est belief” that the striker engaged in misconduct.
Medite of New Mexico, Inc. v. NLRB, 72 F.3d 780, 790
(10th Cir. 1995). The burden then shifts to the General
Counsel to prove that no misconduct occurred. Id.

3 Under the circumstances of this case, we find that the General
Counsel has misplaced reliance on Clougherty Packing, 292 NLRB
1139 (1989), and Catalytic, Inc., 264 NLRB 1157 (1982), enfd. mem.
714 F.2d 158 (11th Cir. 1983), cert. granted in other part 104 S.Ct.
2164 (1984), see 275 NLRB 97 (1985). In both of those cases, contrary
to this case, the employees credibly denied that they had engaged in the
alleged strike misconduct (throwing rocks). The Board thus found in
both of those cases that even assuming the employers had good-faith
beliefs that the employees had engaged in the misconduct, the General
Counsel had met its burden of establishing that they had not in fact
engaged in that misconduct. Here, in contrast, the judge has discredited
Banks’ denial that he threw nails and kicked a car, and has found, based
on the preponderance of the evidence as discussed in his decisions, that
Banks in fact did engage in that misconduct.
1 Thus, I agree with the majority that the judge erred in applying the
framework for analysis set forth in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
However, applying this standard, I would dismiss the
complaint for the reasons stated in the judge’s original
decision. Thus, in agreement with the judge, I would
find that the underhanded throwing motions which Banks
made on the picket line alone, under the circumstances of
this case, reasonably tended to coerce employees in the
exercise of their Section 7 right to choose to work during
the strike. Clear Pine Mouldings, supra.2 This conduct
was undisputed and establishes that the Respondent’s
failure to reinstate Banks after the strike was not unlaw-
ful. Id.3 In such circumstances, a remand was unneces-
sary.4 Of course, the judge’s supplemental decision, and
his conclusion that Banks did throw the tacks further
demonstrates that the Respondent lawfully failed to rein-
state him. I join my colleagues in adopting these find-
ings.

Andrea J. Goetze, Esq., for the General Counsel.
Armin J. Moeller Jr., Esq. and Phelps Dunbar, Esq., for the
Respondent.
Danny E. Cupit, Esq., for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is a
wrongful suspension and termination case. At the close of a 2-
day trial in Jackson, Mississippi, on June 16, 1998, I rendered a
bench decision in favor of Siemens Energy & Automation, Inc.
(Company). This certification of that bench decision, along
with the Order which appears below, triggers the time period
for filing an appeal (exceptions) to the National Labor Rela-
tions Board. I rendered the bench decision pursuant to Section
102.35(a)(10) of the National Labor Relations Board’s (Board)
Rules and Regulations.
For the reasons stated by me on the record at the close of the
trial, I concluded counsel for the General Counsel (Govern-
ment) made a prima facie showing sufficient to support an in-
ference protected conduct was a “motivating factor” in the
Company’s decision to suspend, on November 6, 1992, and
terminate, on November 18, 1992, its employee Jesse Banks.
The Government demonstrated Banks, a long-term employee,
had been active with the International Union, United Automo-
bile, Aerospace, and Agricultural Implement Workers of Amer-
ica, Local Union No. 1956, AFL–CIO (the Union); that the
2 As noted in the judge’s original decision, individuals observing
Banks’ underhanded throwing motions would be intimidated and co-
erced by such actions. There were numerous instances in which tacks
were found on the roadway in Banks’ vicinity and the tacks damaged
the tires of several employees who drove through the picket line.
3 Accordingly, I find it unnecessary to address the other alleged inci-
dents of strike misconduct by Banks, including whether or not he
kicked at or kicked cars.
4 Contrary to the phrasing of the majority’s remand order, given that
the Respondent had established that it had an honest belief that Banks
threw tacks, the issue was not whether Banks in fact threw tacks, but
whether the General Counsel proved that he did not. In this regard, in
his original decision, the judge found that “the evidence is clearly in-
conclusive as to whether [Banks] had tacks in his hands or not.” In my
view, this finding indicates that the judge had concluded that the Gen-
eral Counsel had not sustained his burden of showing that Banks did
not engage in any misconduct. I would have adopted this finding.
SIEMENS ENERGY & AUTOMATION 1177
Company was aware of his union activities; and, his discharge
was based on his union-related activities. Specifically his ac-
tivities involved a strike at the Company’s facility, which oc-
curred from October 19 until October 30, 1992—at which time
the parties arrived at a collective-bargaining agreement. I con-
cluded the Company demonstrated it would have taken the
same action it did with respect to Banks even in the absence of
any protected conduct on his part. See: Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).1
I concluded the Company discharged Banks based on its
honestly held belief he engaged in serious picket line miscon-
duct. Clear Pine Mouldings, 268 NLRB 1044 (1983).2 The
Government failed to prove Banks had not engaged in the mis-
conducts or that the misconduct3 was not sufficiently serious to
forfeit the National Labor Relations Act’s (Act’s) protection.
Axelson, Inc., 285 NLRB 862, 864 (1987). I recommended the
complaint be dismissed in its entirety.
I certify the accuracy of the portion of the transcript, as cor-
rected,4 pages 407–421, containing my bench decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
Exceptions may be filed in accordance with Section 102.46
of the Board’s Rules and Regulations, but if they are not filed
timely or properly filed, Section 102.48 provides that my bench
decision shall automatically become the Board’s Decision and
Order.
CONCLUSION OF LAW
The Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and 7) of the Act and has not
violated the Act in any manner alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The unfair labor practice complaint is dismissed.
APPENDIX A
407
[Errors in the transcript have been noted and corrected.]

. . . .
JUDGE CATES: This is my decision. Let me first state that it
has been a pleasure to be in Jackson, Mississippi. I have en-

1 The United States Supreme Court approved and adopted the
Board’s Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
2 The Board explained the test to be applied in determining whether
an employer may refuse to reinstate (or discharge) a striker based on
alleged strike misconduct in Mohawk Liqueur Co., 300 NLRB 1075
(1990). See also Addington, Inc., 325 NLRB 702 (1998).
3 The conduct Banks was discharged for is not disputed—in fact it
was captured on videotape.
4 I have corrected the transcript by making physical inserts, cross-
outs, and other obvious devices to conform to my intended words,
without regard to what I may have actually said in the passages in ques-
tion.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
joyed the presentation of the case by the parties. It is always a
pleasure to hear a case in which all parties know what it is they
intend to establish and then do just that.
If you’ll reflect back over this trial, I have asked few, if any,
questions, and that is a credit to counsel from all sides. I com-
mend you on the presentation of the case, all of you.

408

So regardless of who wins or who loses, you may not lay it
at the feet of counsel. Each have done an outstanding job pre-
senting their points of view and the evidence therewith.
The charge in this proceeding was filed by the Union on May
17, 1993, and I find it was thereafter timely served on the
Company.
I find the Company is a corporation, with an office and place
of business located at Jackson, Mississippi, in which it manu-
factures large outdoor electrical equipment.
During the 12-month period ending April 30, 1995, which is
a representative period, the Company, in conducting its busi-
ness operations sold and shipped from its Jackson, Mississippi
facility goods valued in excess of $50,000 to points located
outside the State of Mississippi.
During that same period of time, the Company purchased
and received at its facility in Jackson, Mississippi, goods valued
in excess of $50,000 directly from points outside the State of
Mississippi.
Based on that evidence and the admissions herein, I find the
Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
I find the International Union, United Automobile, Aero-
space, and Agricultural Implement Workers of America, Local
Union No. 1956, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.

409

I find that at all times material to this case, D.D. Countiss
and Mike Goryl were supervisors and agents of the Company
within the meaning of Section 2(11) and (13) of the Act.
The Government alleges at paragraph 7 of its complaint that
the Company suspended on November 6 and 18, 1992, termi-
nated the employment of its employee Jesse Banks. The Gov-
ernment alleges the Company discharged Mr. Banks because he
assisted the Union, engaged in union activities, or to discourage
employees from doing such.
More specifically, the Government contends Mr. Banks was
not recalled, rehired, or re-employed because he engaged in and
participated in a strike at the Company, and/or that he engaged
in union or other concerted protected activities.
The Charging Party adds to that—and perhaps the General
Counsel also—that Mr. Banks was not rehired or recalled be-
cause of his active role in the strike, and his status on the picket
line as sort of a spokesperson for those engaging in a strike.
The Company’s contention, on the other hand, is that Mr.
Banks engaged in misconduct, and the testimony and evidence
has alluded to a number of items the Company contends consti-
tutes misconduct for which the Company says it relieves it of
any obligation to recall or rehire or re-employ Mr. Banks.
First, let me describe some very general facts, and then I
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1178
410

will move into specific facts as I go through the case. As to
these general facts, I don’t perceive there is a conflict, but if
you find that there’s any evidence contrary to what I am finding
as the general facts, then I have not credited any testimony that
is contrary to these general facts.
I find the strike started on or about 12:01 a.m. on October 19,
1992, and continued until approximately October 30, 1992. If
those dates are off slightly, it will not impact the outcome of
this case.
I further find that at the beginning of the strike, on at least
the morning hours of the first day, there were large numbers of
pickets at the entrance, the front entrance, to the Company’s
facility, and that the large number of pickets, if they did not
block, certainly impeded entrance to the facility on the first
morning hours of the strike itself.
I base that, among other things, on the testimony of a number
of the witnesses and on some videotaped activity. For example,
Mr. Gray testified that the driveway was full of strikers, just
jammed full of strikers.
Ms. Dixon and her husband, based on Ms. Dixon’s testi-
mony, found a large number of pickets were present on the first
day, and that they did not proceed through on their attempt, but
at the direction of the pickets, went to the back of the facility,
and, again, on their first attempt at the back of the fa-
cility, were not able to, or elected not to, enter the

The United States Supreme Court approved and adopted the
Board’s Wright Line test in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1993).

411

premises, went someplace else, and later came back, and were
able to enter the facility.
I am persuaded there were also tacks of a roofing-type nature
on the roadway, of which the witness described the dimensions
of, which I shall not take the time at this point to describe.
Most of the people involved in this proceeding will understand
what is meant by roofing tacks.
I find there were tacks on the picket line during the strike
herein, particularly days one and two, and for the purposes of
this decision, I perhaps need not decide beyond that whether
there were racks thereafter or not.
I base my finding that there were tacks on the picket line
based on the testimony of witnesses presented by both sides,
that there were tacks on the picket line, the roadway leading in
to the facility.
For example, Mr. Siler of, I believe at that time, Day Detec-
tives, testified that he picked up a tack in one of the tires on his
car on Monday, October 19.
Bernice Smith, I believe it was, testified that she was a pick-
eter on the picket line and she saw tacks all over the road. Mr.
Brandon, I believe it was, spoke of tacks on the drive leading in
to the facility.
Now, I recognize that Ms. Miller testified she was on the
picket line and never saw any tacks. I find that testimony un-
persuasive with respect to the other evidence that there were
412
tacks on the picket line, including the testimony of the sweeper
operator, who was employed by a janitorial service doing busi-
ness for the Company herein.
He testified that with magnetic-type equipment, he picked up
nails, and that also with a sweeper-type machine, he picked up
nails. So I am fully persuaded there was nails, and when I say
nails, I’m referring to roofing-type nails, whether they call them
nails or tacks.
That’s the general setting of the strike in days one and two.
And then the strike went on, as I indicated, that I believe ran to
October 30, but it’s not critical that I go that far.
Now, before I look at the specific facts and apply them to the
law, let me just briefly make reference to the principles I will
be guided by, based on the positions the parties have taken
which I set forth earlier.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899,
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test for all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation.
First, the General Counsel must make a prima facie showing,
sufficient to support the inference that protected conduct was a
“motivating factor in the employer’s decision.” On such a
showing, the burden shifts to the Employer, to demonstrate that

413

same action would have taken place, even in the absence of the
protected conduct.
Now, with respect to an employer’s burden, I note that ab-
sent legitimate business reasons, an employer must reinstate
striking employees at the termination of certain strikes. And for
that proposition, see General Chemical Corp., 290 NLRB 76 at
82 (1988). A refusal to reinstate may be justified by showing
that an employee was guilty of serious picket line misconduct.
Clear Pine Mouldings, 268 NLRB 1044 at 1046 (1984), enfd.
765 F.2d 148 (9th Cir. 1985), cert. denied 474 U.S. 1105
(1986).
Initially the Employer has the burden of demonstrating the
existence of an honest belief that a striking employee engaged
in such misconduct. Once such a belief has been demonstrated,
the burden shifts to the General Counsel to prove that the em-
ployee was not engaged in the alleged misconduct or that the
misconduct was not sufficiently serious to forfeit the Act’s
protection. For that proposition, see Axelson, Inc., 285 NLRB
862 at 864 (1987).
In Clear Pine Mouldings, the Board addressed the question
of what test should be applied in determining whether an em-
ployer may refuse to reinstate a striker, based on alleged strike

414

misconduct. There, the Board stated that the test is “whether the
misconduct is such that, under the circumstances existing, it
may reasonably tend to coerce or intimidate employees in the
exercise of rights protected under the Act.”
The Clear Pine Mouldings standard is an objective one. It
does not call for an inquiry into whether any particular em-
ployee was actually coerced or intimidated. Rather, the test is
applied to determine whether the conduct at issue would rea-
sonably tend to coerce or intimidate an individual faced with
such conduct.
That is the guiding principles under which I will decide this
case.
First, did the Government establish a prima facie showing
that Mr. Banks’ union or protected activity was a motivating
SIEMENS ENERGY & AUTOMATION 1179
factor in the Company’s action against him? I find the General
Counsel established a prima facie case.
Mr. Banks was a longtime employee of the Company, who, I
think, commenced working for the Company in 1973, I think it
was, and worked up until his separation in late 1992. Mr. Banks
had union activity in that he helped in initially organizing for
the Union at the Company, although I think the Company at
that time went by a different name in those days.
Mr. Banks is one of those named in the charter of Local Un-
ion 1956, and that charter, I believe, was issued on February 16,
1976. Mr. Banks had served for the Union on the bargaining

415

committee for the contracts that were negotiated between the
Company and the Union for the 1980 to 1983 contract, the
1983 to 1986 contract, the 1986 to 1989 contract, and the 1989
to 1992 contract.
I note that Mr. Banks was not on the bargaining committee at
the time of the strike here. I think the evidence shows he went
off the bargaining committee in perhaps June of 1992.
Mr. Banks served as a strike captain on the 1992 strike at the
facility, had spoken at union meetings on behalf of the Union
and had spoken to the media about the strike and union- related
matters.
Did the Company know of his activities? Absolutely so. He
had been the signatory to the collective-bargaining agreements
over the years indicated; he had been involved in certain griev-
ances at the Company, and the Company was fully aware of his
support of and participation with the Union.
The challenged employer action arose out of union and/or
protected activities. In other words, the activities that brought
about his demise with the Company grew out of the strike
activity at the facility, and the discharge was close in time to
the union activities, namely the strike.
So I’m persuaded the Government demonstrated a prima fa-
cie case, sufficient to support the inference that protected con-
duct was a motivating factor in its decision involving Mr.

416

Banks.
The burden of persuasion at that point shifts to the Company
for its affirmative defense. Would it have taken the same ac-
tion, even if the employee had not engaged in any protected or
concerted activity?
The Company must, in establishing or attempting to establish
its affirmative defense, demonstrate the existence of an honest
belief that the striking employee engaged in misconduct.
In support of that, the Company demonstrated large numbers
of pickets on the picket lines, that claims were filed with it
regarding customers, suppliers and other employees having had
tire damage to their vehicles. In fact, I think, the evidence
demonstrates the Company paid out in excess of $1200 for tire
repair damage to various vehicles for which there had been
claims made, for damage to tires.
Tacks were retrieved at the site. The Company even had a
sweeper go through to clear the picket area, and the Company
presented videotapes, specifically of two instances that are of
great concern to me in this case. I do not mean to belittle the
other matters.
But there is evidence presented by the Company of Mr.
Banks making underhanded motions toward a vehicle that
is proceeding into the Company. The Company also pre-
sented evidence of Mr. Banks kicking, or kicking at, a
vehicle as it is entering or

417

attempting to enter the premises.
Based on those two factors alone, without having to review
the other items, I find the Company has demonstrated it had a
good-faith belief Mr. Banks engaged in serious picket line mis-
conduct.
The burden at that point shifted back to the Government, to
the General Counsel, and on that burden, the General Counsel
must demonstrate that either the individual did not engage in
the misconduct, or the misconduct was not serious enough to
warrant discharge or to warrant the failure on the Company’s
part to recall or to re-employ Mr. Banks.
On first defense that the General Counsel would need to
meet to prevail, she does not. The videotape of the two inci-
dences demonstrates the incidences took place. The more criti-
cal question and the one that requires closer scrutiny is: Was
the misconduct that Mr. Banks engaged in sufficiently serious
misconduct that would warrant a forfeiture on his part of the
right to be reinstated.
The evidence indicates that Mr. Banks made underhanded
motions underneath an automobile, as an automobile is entering
the premises. Much has been made about the fact the videotape
does not demonstrate that Mr. Banks actually had tacks in his
hand or that he actually threw tacks under the automobile.
In the context of this situation—and the situation I’m

418

making reference to is the activity along the picket line. In the
context of this situation, where individuals are incurring tire
damage and tacks being found in their tires, I’m persuaded that
a reasonable person would be intimidated and coerced by the
actions of Mr. Banks’ movements, whether or not he had tacks
in his hand.
I find the evidence is clearly inconclusive as to whether he
had tacks in his hands or not, but I find for the purposes of this
decision that it’s of no great moment, that when he made the
motions underneath the vehicle, that he was doing something
underneath the vehicle, and in the context of this case, I’m per-
suaded a reasonable person would be intimidated and coerced
by such action.
I would equate it to, for example, an individual saying, I
pointed an empty gun; therefore, I can’t be guilty because I
didn’t have anything in the gun. It’s not a good argument, and
it’s not a good argument here to say that there was no proof that
he actually threw tacks.
Going through the motion, under the circumstances of this
case, is sufficient to meet the requirement, in my opinion, of the
test as set forth in Mohawk Liqueur Co., 300 NLRB 1075
(1990) (the test to be applied to determine whether the conduct
at issue would reasonably tend to coerce or intimidate an
individual faced with such conduct).
I’m persuaded that an individual who knows there are

419

tacks or that there has been reports of tacks—and tire damage,
for Mr. Banks to then engage in the conduct he did, which was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180
demonstrated on the video of making the underhanded motions,
he must know it would be reasonable to conclude that an indi-
vidual would find that intimidating and coercing.
Then I move to the second issue, and that is whether or not
Mr. Banks kicked or stomped an automobile as it entered the
facility or attempted to enter the facility. I find the evidence is
inconclusive as to whether he actually made contact with the
vehicle or not.
But I find for the purposes of this decision that is of no great
moment, because an individual proceeding in and seeing the
actions Mr. Banks took in kicking at or stomping the automo-
bile is sufficient to meet the test that a reasonable person under
the circumstances existing may reasonably tend to be coerced
or intimidated.
And with respect to the tossing of the hand, when you look at
the fact that the Day Detective, Mr. Siler, I believe it was, got a
nail in his tire, Mr. Lowe spoke to roofing nails in the tires of
his Corvette, I believe it was, and there was testimony that Jim
Mayer had tacks in his tires and Mr. Chissum, I believe it was,
so I find that the conduct that he engaged in was of a serious
nature.
Now, I also have to go further and address whether the
Company

420

treated Mr. Banks in a disparate manner, even though I find he
engaged in serious misconduct. Did they treat him in a dispa-
rate manner?
I find no persuasive evidence presented here that he was
treated in a disparate manner. I’m also persuaded there is no
antiunion animus present in this case on which to conclude
there was disparate treatment.
For example, the local union president, Mr. Cagle, I believe
it was, was recalled. The other strike captain was recalled, and
if there was, in fact, a third strike captain, there’s no contention
that person was not recalled.
So I’m persuaded that, based on the evidence as I have ar-
ticulated and outlined, I must recommend and do dismiss the
complaint in its entirety.
Upon receipt of the transcript of this proceeding, I will cer-
tify those pages that constitute my decision to the Board, and it
is my understanding it is from that point forward that an ap-
peals period takes effect or runs from that period forward.
Please do not be bound, however, by my understanding of
the rules. Refer to them yourself, and exceptions or any further
action that need be taken may be taken at that point. It is my
understanding of the rules that nothing can be done between
now and the time that I certify the bench decision.
The court reporter normally provides me transcript within 10
days of the conclusion of the hearing or at least reasonably

421

soon thereafter, and as reasonably soon as I am in the office, I
will certify those pages of the transcript that constitute my deci-
sion to the Board.
With that, this trial is closed.

Andrea J. Goetze, Esq., for the General Counsel.
Armin J. Moeller Jr., Esq. and Phelps Dunbar, Esq., for the
Respondent.
Danny E. Cupit, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
WILLIAM N. CATES, Administrative Law Judge. My initial
bench decision in the above-captioned matter issued on July 6,
1998. On December 21, 1998, the National Labor Relations
Board (Board) issued its unpublished Decision and Order Re-
manding,1 in which the case was remanded to me.
The Decision and Order Remanding, reads in part:

The Board . . . finds that substantial and material is-
sues of fact remain unresolved.
Accordingly, the Board has decided to remand this
proceeding to the Judge for him to make findings of fact,
on the basis of the preponderance of the evidence in the
existing record, whether alleged discriminatee Jesse Banks
in fact kicked cars or threw roofing tacks (also referred to
as roofing nails) onto the roadway entrance at the Respon-
dent’s plant during the strike in this case.
[T]he judge shall prepare and serve on the parties a supple-
mental decision setting forth credibility resolutions, findings
of fact, conclusions of law, and a recommended Order, as ap-
propriate on remand.

The parties stipulated a strike commenced at the Company’s
facility on or about Monday, October 19, 1992, and ended on or
about October 30, 1992. The focus of the remand centers on a
timeframe commencing October 19 and continuing through
October 21, 1992. A restatement of certain operative facts is
instructive.
Local Union President Billy Cagle testified that on the first
day of the strike and thereafter those employees picketing “ex-
pressed their dissatisfaction” with those employees who chose
to cross the picket line. Local Union President Cagle testified;
“they hollowed, scabs, and they made it very well known that
they didn’t appreciate them crossing the picket line.” Local
Union President Cagle placed Jesse Banks (Banks) on the
picket line on the dates in question as a strike captain,2 but
stated he never observed Banks engaging in any misconduct.
On cross-examination, Local Union President Cagle acknowl-
edged he was informed by the Richland, Mississippi chief of
police early in the strike “there are a few tacks out there; I don’t
believe that the Union threw them. If they did, you need to tell
them we don’t want to see any tacks.”3 Local Union President
Cagle borrowed the Richland, Mississippi chief of police’s loud
speaker and: “I said . . . the chief of police said there are a
few tacks out here. The Union don’t condone that.”
Local Union President Cagle testified, “I believe there were
some tacks there, because he [chief of police] said there were.”
Cagle added, “I didn’t actually see any, but we told them to
arrest anybody caught doing anything at the time.”
Local Union President Cagle identified Banks in a video
taken at the picket line during the early stages of the strike
making a “bowling motion” under a car. Cagle acknowledged

1 Member Brame dissented stating in part “The majority’s [Members
Fox and Liebman] remand of this case is unwarranted.”
2 Cagle identified Billy Dykes as the other strike captain.
3 Richland, Mississippi Police Lieutenant David Lucas testified he
did not observe Banks throw tacks at or kick vehicles when he (Lucas)
was at the strike site. Lucas, however, acknowledged on cross-
examination that “the patrol car had a flat” but added he could not say
“if it was particularly a tack.” When pressed he testified “we could
have had flats.” Lucas acknowledged that in his testimony at an arbi-
tration hearing he could have testified about “a patrol car having a tack
in a tire.”
SIEMENS ENERGY & AUTOMATION 1181
Banks was “very low to the ground” and further acknowledged
“that’s his arm, sticking all the way under the tire.”
Don Siler testified that in 1992 he worked for a private
investigating company, Day Detectives, and during the strike
was “assigned to film the strike line during the shift changes at
the plant.” Siler testified he did not know, nor was he
instructed, to film Banks. Detective Siler testified the first time
he saw tacks at the picket line was on Monday, October 19,
1992, when he picked one up in his tire as he was leaving the
picket line at the plant. Detective Siler testified “I believe I
witnessed some tack-throwing on the picket line.” Siler added,
“I witnessed an individual on the strike line, at the time certain
few cars came through. He would kneel down on his knees and
make a tossing motion under the car.”4 Detective Siler testified
he did not at that time know the individual but later learned it
was Jesse Banks. Detective Siler testified Banks, among other
strikers, told him he needed to find something else to do that
they “were tired of seeing me come through here” and Siler
“needed to get out of here.”
Ricky Bowden, a then (1992) employee of Douglas Janitorial
Service worked for that company at the site of the Company
here performing janitorial services. During the strike Bowden
testified he operated a forklift with a magnet to pick up “sheet-
rock nails” from the roadway at the Company. Bowden testi-
fied he also operated a road sweeper at the front and rear en-
trances at the Company to sweep up nails and roofing tacks.
Bowden testified that when he was doing a sweep for nails at
the front entrance at the Company he encountered Jesse Banks.
Bowden testified he had known Banks all his life. Bowden
explained “[e]ver since I remember being in the world, I re-
member Jesse Banks. He [Banks] was an image that we looked
up to, the kids looked up to.” Bowden testified that while he
was performing his nail sweeping duties Banks “advised
harshly that I remove myself from out there around the picket
line.” Bowden testified company management “advised that I
go ahead and pull off from the area at that time” following his
confrontation with Banks. Bowden testified he picked up tacks
each time he swept the picket line area.
Employee James Lowe testified that while going to work
during the strike, he encountered “a problem” getting into the
parking lot “everybody would stop your car,” “demand that you
roll the window down,” “but they eventually let you go by.”
Lowe testified, “I went out to go to lunch, and exiting the park-
ing lot, I received 12 or 13 roofing tacks . . . put in my tires on
my car.” Lowe reported the tire damage to company manage-
ment and was instructed to have his tires repaired at company
expense. Lowe testified that as he left the Company that eve-
ning, he “kind of gave them [the pickets] a piece of what for,”
adding, “I was hacked off that they got me tied up in the middle
there,” explaining, “I’ve known some of them practically since
I was a child.” Lowe stated those present, including Jesse
Banks, “just laughed it off . . . but I didn’t think it was funny
at all at the time.”
Employee Clay Coleman testified he and fellow employee
Bennie Chissum were intending to go for lunch away from the
Company on an occasion during the strike but that he (Cole-
man) decided to remain at the Company. Coleman testified
Chissum left and as he was returning down the driveway into
the plant he heard “tap, tap, tap, tap,” from Chissum’s car tires

4 Detective Siler testified: “Based on what I saw, I could think of no
other reason he’d be doing that, other than tossing tacks.”
“and he had tacks in his tires.” Coleman testified that when
fellow employee Jim Mayer returned from lunch, “his tires
sounded like he was tap-dancing, coming down the road. He
had tacks in all tires.”
Employee Bernice Smith testified she visited the picket line
before she was scheduled to perform picket line duty and
“everybody” was present, including Jesse Banks. Smith testi-
fied that one morning while she was at the picket line, she ob-
served tacks on the road. Smith testified “they was all over the
road, the turn-in, you know. They was all over where you turn
in and go down there.” Smith said Jesse Banks was present on
that occasion.
Employee and union member David Johnson testified he par-
ticipated in the strike by being “out on the picket line” and was
present the first day of the strike. David Johnson testified
“when I came there that morning, there was tacks all in the
road, and a friend of mine said, man, there’s tacks everywhere.”
David Johnson estimated there was “a bunch” of tacks. When
asked if there were more than 10 tacks, David Johnson re-
sponded; “there was ten in one tire, I imagine.” David Johnson
testified police officers were present and one of them “smiled”
and “kicked the tacks around.” David Johnson testified he
overheard Jesse Banks on the picket line tell Dee McHaffy
“don’t get any tacks out of his car.”
Purchasing Department employee Osborn Johnson testified
his department rented a van during the strike and he was as-
signed the task of making “pick-ups and deliveries” with the
van. Osborn Johnson testified the van picked up “multiple
tacks in multiple tires” going through the picket line. Osborn
Johnson testified Jesse Banks “was visible most of the time
when I was going in and out” with the van. Osborn Johnson
testified, “on one occasion when I was coming out of the gate
. . . he [Jesse Banks] made a . . . tossing gesture . . . I didn’t
see any tacks, but he made a gesture. We made eye contact in
the mirror. He was smiling.” Osborn Johnson testified no one
else made any such gestures at him.
Vice President of Human Resources Michael Goryl testified
the Company made a decision before the strike, to operate, in
the event of a strike. Goryl testified that on the first day of the
strike mass picketing blocked, for a while, the entrances and
exits at the Company. Goryl testified it was brought to his
attention the pickets were shouting and beating on cars. Goryl
testified: “And then as the strike progressed, the tack-throwing
became very apparent early Tuesday morning continuing
through Wednesday.” Goryl said: “It was reported to me that
employees were picking up tacks in their tires.” Goryl ex-
plained, “I was receiving a number of complaints from employ-
ees and vendors, that they were picking up significant amounts
of tacks in their tires, as they were either trying to enter or exit
the facility.” Goryl testified that as a result of these complaints
and reports, he ordered that a sweeper clear the entrances and
exits to the Company. Goryl also telephoned the Richland,
Mississippi chief of police to ask for the city’s assistance in
keeping the traffic lanes clear. The Company obtained a tem-
porary restraining order and a preliminary injunction from a
local court regarding keeping the plant entrances open. Goryl
testified the Company had never, before the strike nor since the
strike, experienced tacks-in-the-roadway problems. The Com-
pany incurred over $1200 of tire repair expenses for employees,
customers, pickup and delivery personnel, and others.
Goryl personally picked up tacks at the picket line during the
course of the strike. Goryl described the tacks as roofing types
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182
about “three-quarters of an inch” in length with “a square—
about three-quarter-inch square flat, metal surface to hold . . .
roofing felt down.” Goryl said other tacks were the same
length with “a large round head,” a “galvanized roofing tack
. . . but with a small head,” and “a large nail . . . with about a
quarter-inch round head.”
It is against the above-credited detailed description of activi-
ties on or about the picket line during the early days of the
strike that I evaluate Jesse Banks’ testimony related to tack
throwing and car kicking.
After observing Banks and the other 15 witnesses who testi-
fied, I was unwilling at trial, and remain unwilling, to credit
any uncorroborated testimony by Banks. Simply stated, and as
hereinafter explained, I did not find Banks to be a reliable wit-
ness. For example, I am persuaded Banks, as one of two strike
captains on the picket line, “[f]rom day one until it ended” par-
ticipated in, heard, saw, and/or was aware of far more than he
was willing or able to truthfully recall. When asked, for exam-
ple, what he did on the picket line Banks responded “just
picket.” Banks said daily devotionals were conducted, prayers
were recited, and the pickets talked to people crossing the
picket line. Banks, however, denied seeing any tacks on the
roadway at the Company or seeing any tacks in pickets’ hands
or in their possession. In that regard, the only thing Banks
acknowledged seeing was some “aluminum foil” twisted to
look like tacks.
Banks gave his testimony in the face of compelling evidence
to the contrary as reviewed below.
Local Union President Billy Cagle testified the chief of po-
lice for Richland, Mississippi, told him on the picket line there
were tacks on the roadway and that he thereafter announced on
a loudspeaker to the pickets the chief’s concern about tacks.5 It
is unbelievable Banks would not have heard or had this an-
nouncement by his local union president brought to his atten-
tion.
Douglas Janitorial Service employee Ricky Bowden credibly
testified he operated a magnet equipped forklift on the picket
line to pick up “sheetrock nails” from the roadway at the picket
line. Bowden also testified he operated a sweeper to clear tacks
from the roadway at the picket line. Bowden testified he and
Banks had a confrontation at the picket line. According to
Bowden’s credited testimony, Banks told him “harshly” to
remove himself from the picket line. Regardless of what
brought about the confrontation between Bowden and Banks, it
is unbelievable Banks would not have been aware of, or ob-
served, tacks on the picket line.
Employee David Johnson testified he participated in the
strike as a picket. David Johnson credibly testified he saw “a
bunch” of tacks all in the road at the picket line. David John-
son stated he even saw a police officer smilingly kicking tacks
around at the picket line. David Johnson credibly testified he
heard Jesse Banks say to Dee McHaffy on the picket line “don’t
get any tacks out of his car.” Again it is unbelievable Banks
did not know of, hear about, or see, tacks on the picket line.
Employee Bernice Smith, who served on the picket line, tes-
tified she saw tacks on the roadway. She said “they was all
over the road, the turn in.” Employee Osborn Johnson testified
he was assigned to drive a company rented van for pickup and

5 Richland, Mississippi Police Lieutenant David Lucas, albeit some-
what reluctantly, acknowledged there were tacks on the roadway at the
plant during the strike and even that a patrol car had a flat tire.
delivery purposes during the strike and while driving along the
picket line, entering and leaving the plant, he picked up “multi-
ple tacks in multiple tires.” Day Detective Company employee
Don Siler testified he became aware of tacks on the roadway on
Monday, October 19, 1992. Detective Siler picked up a tack in
one of the tires on his vehicle as he left the plant on that date.
Employee Clay Coleman convincingly testified about seeing
and hearing tacks in employee Bennie Chissum’s car tires as
well as in employee Jim Mayer’s car tires. Vice President Mi-
chael Goryl credibly testified tack throwing was readily appar-
ent during the strike. As a result of reports by employees and
others of tacks in their tires, he, Goryl, ordered the roadway
area swept by a power sweeper. The Company paid in excess
of $1200 in tire repair costs for those having tire damage as a
result of entering and leaving the Company during the strike.
Employee James Lowe credibly testified about getting 12 or 13
roofing tacks in his tires as he left the Company. Lowe stated
he was “hacked off” at the pickets, some of whom he had
known from childhood, and gave them “a piece of what-for.”
Lowe testified those present, including Jesse Banks, “just
laughed it off.” In light of the above, it is unbelievable Banks
knew nothing of, and/or ever saw, or heard about any tacks
along the picket line.
Banks’ trial testimony regarding a lack of knowledge of
tacks on the picket line was then, and still is, troubling as re-
lated to his overall credibility. Banks’ credibility was not en-
hanced by the fact he was not arrested for any tacks related
incidents on the picket line. Such failure is unpersuasive
viewed in light of the testimony that a policeman was smilingly
kicking tacks around on the picket line. I also found unpersua-
sive the testimony of two witnesses that they did not see “a
tack” in Banks’ hand during the time they were on the picket
line.
Did Banks throw roofing tacks (also referred to as roofing
nails) onto the roadway at a vehicle entrance to the Company’s
plant during the strike in this case? Banks denied doing so. In
fact, Banks testified he never placed tacks on company prop-
erty, never saw any tacks in any pickets possession, didn’t see
any tacks within 300 feet of the picket line at any time, never
saw any tacks on the roadways at the Company, and had no
idea what the power sweeper was doing along the picket line
during the strike. Banks did, however, acknowledge he ap-
peared on videotape “making two separate underhanded tossing
motions below tires of vehicles.” Although it is clearly incon-
clusive on the video in question whether Banks actually had
tacks in his hand at the times in question, I am, in light of his
lack of credibility on other matters and the overwhelming
weight of the evidence, compelled to conclude, as I do, that
Banks had and threw tacks under the vehicles. I am persuaded,
even beyond a reasonable doubt. The picket line was tack
strewn. Day Detective Company Detective Siler credibly testi-
fied he saw an individual on this tack strewn picket line kneel
down on his knees “at the time certain few cars came through”
“and make a tossing motion under the cars.” Detective Siler
did not know at the time, but later learned, the individual in
question was Banks. Detective Siler testified, “based on what I
saw, I could think of no other reason he’d be doing that, other
than tossing tacks.” Considering all the tacks that were on the
picket line and the resulting tire damages, Detective Siler’s
conclusion is very instructive. Furthermore, employee Osborn
Johnson credibly testified “on one occasion when I was coming
out of the gate . . . [Jesse Banks] . . . made a tossing gesture.”
SIEMENS ENERGY & AUTOMATION 1183
Although Osborn Johnson added, “I didn’t see any tacks” he
was certain Banks made such a gesture because they made eye
contact in the mirror and Banks was smiling. Osborn Johnson
testified no one else made any such gestures at him or toward
his vehicle. In light of the facts herein, the only plausible con-
clusion is that Banks tossed tacks onto the roadway when cer-
tain vehicles entered and/or left the Company, and I so find.
Did Banks kick cars at a vehicular entrance to the Com-
pany’s plant during the strike here? Banks denied doing so, but
acknowledged he appeared on videotape making “a kicking
motion” toward employee James Gray’s car as it passed
through the picket line. It is clearly inconclusive on the video in
question whether Banks actually made contact with the car as
he kicked at it. However, based upon Banks established con-
duct on the picket line, taken in conjunction with his other un-
believable denials and discredited testimony, and viewed in
light of no logical explanation for his actions, it is very prob-
able, and I find, Banks did in fact kick employee Gray’s car on
the picket line.
Lest it not be crystal clear, I expressly, unambiguously, and
unequivocally discredit Banks’ testimony that he did not throw
tacks on the roadway or kick cars on the picket line during the
strike.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
I reaffirm my prior findings, conclusions, and recommended
Order.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.