The Blair Process Co., Inc.

National Labor Relations Board - Board DecisionsSep 21, 1972

199 N.L.R.B. 194 (N.L.R.B. 1972)

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Blair Process Company , Inc. and Norman F. For- shey; Richard A . Nickolich ; and Richard E. Swon- ger. Cases 8-CA-6726-1, 8-CA-6726-2, and 8-CA-6726-3 September 21, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND. PENELLO On April 27, 1972, Trial Examiner Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel 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 Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner 's rulings , findings , and conclusions and to adopt his recommended Order, as modified herein. The issues presented herein relate to the Respondent's discharge of three employees for alleg- ed misconduct during a strike at the Respondent's plant between February 9 and May 25, 1971. While Sections 7 and 13 of the Act grant employees the right to strike, picket, and engage in other "concerted activ- ities for the purpose of collective bargaining or other mutual aid or protection," these rights would be un- duly jeopardized if all forms of misconduct occurring in the course of a strike would deprive the employee of the protective mantle of the Act, without regard for the seriousness of such conduct.' In the light of these principles, we agree with the Trial Examiner that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Nickolich and that he is entitled to reinstatement and back- pay.' Although we agree with the Trial Examiner that the discharge of Forshey was also violative of the Act, we find, contrary to the Trial Examiner, that he is not entitled to reinstatement or backpay.3 We also agree with the Trial Examiner that the discharge of Swonger was not violative of the Act .4 ORDER agents , successors , and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as modified herein. 1. Amend the Trial Examiner's recommended Order by substituting the following as paragraphs 2(a) and (b): "(a) Offer Richard A. Nickolich immediate and full reinstatement to his former position or, if such position is no longer available, to a substantially equivalent position, without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay suffered by reason of the violative conduct directed toward him in the manner described in the. Remedy section of the Trial Examiner's Decision. "(b) Notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act." 2. Substitute the attached notice for the Trial Examiner's notice. ' See Terry Coach Industries, Inc., 166 NLRB 560, 563, enfd . 411 F.2d 612 (C.A. 9). 2 In agreeing with the Trial Examiner that Respondent discharged Nicko- lich because of the mistaken belief that he engaged in picket line misconduct on March 11, 1971, we disavow the Trial Examiner 's assumption that, even if Nickolich, concerning a different occasion , had been specifically identified as having thrown rocks which broke some windows in the plant, such conduct would not be sufficiently serious to bar his reinstatement. 3 We agree that Forshey's picket line conduct of February 11, 1971, was not sufficiently serious to warrant his discharge . As found by the Trial Examiner, however, Forshey, who was the picket line captain, also told other strikers to follow cars and scare nonstriking employees , and Forshey himself followed such cars and drove his car in such a manner as to force an employee's car off the highway. We find, contrary to the Trial Examiner, that such misconduct deprived Forshey of the Act's remedial benefits . See Hilton International Co., d/b/a San Jeronimo Hilton Hotel, 187 NLRB No . 140, fn. 2, TXD. 4 We do not pass on the Trial Examiner's observation that, although the misconduct engaged in by Swonger was sufficiently serious to justify his discharge, the same misconduct , absent a lawful discharge, might not render him an unsuitable employee for purposes of reinstatement and backpay. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner as hereinafter modified and hereby orders that the Respondent, The Blair Process Company, Inc., Tallmadge, Ohio, its officers, WE WILL NOT discharge employees because they have engaged in union or protected concert- ed activity within the meaning of the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the 199 NLRB No. 23 THE BLAIR PROCESS COMPANY, INC. exercise of their rights guaranteed in Section 7 of the Act, except to the extent as may be permitted under lawful agreements in accord with Section 8(a)(3) of the Act. WE WILL offer Richard A. Nickolich imme- diate and full reinstatement to his former posi- tion, or, if such position is no longer available, to a substantially equivalent position, without prej- udice to his seniority or other rights and privi- leges previously enjoyed, and make him whole for any loss of pay suffered by reason of the conduct directed against him that was violative of the Act. THE BLAIR PROCESS COMPANY, INC (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on February 8 and 9, 1972, at Akron, Ohio. The charges were filed on November 18, 1971, and served on Respondent on November 23, 1971. The com- plaint in this matter was issued on December 23, 1971. The issues concern whether Respondent has violated Section 8(a)(1) and (3) of the Act by the discharges of Forshey, Nickolich, and Swonger because of picket line conduct. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel and the Respondent and have been considered. Upon the entire record in the case and from my obser- vation of the witnesses, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER 195 The Blair Process Company, Inc., the Respondent, is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Ohio, with its only place of business located in Tallmadge, Ohio, where it is engaged in the manufacture and sale of various rubber products. Annually, in the course and conduct of its business, Respondent ships goods valued in excess of $50,000 to points directly outside the State of Ohio. Based on the foregoing and as conceded by the Re- spondent, it is concluded and found that the Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED United Rubber, Cork, Linoleum and Plastic Workers of America, Local Union 873, AFL-CIO, hereinafter known as the Union, has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. It is so concluded and found. III THE UNFAIR LABOR PRACTICES A. Introduction 1. The United Rubber, Cork, Linoleum and Plastic Workers of America, Local 873, AFL-CIO, represented Respondent's plant employees from a point of time prior to February 9, 1971, to May 25, 1971. 2. A collective-bargaining agreement between Respon- dent and the aforesaid Union expired on January 1, 1971. 3. On February 9, 1971, a strike commenced,and the Union established a picket line at Respondent's plant site. This strike continued in effect until May 25, 1971. 4. On May 25, 1971, Respondent's plant employees voted in a Board-conducted election to decertify the Union as their collective-bargaining representative. 5. Norman F. Forshey, Richard A. Nickolich, and Richard E. Swonger, all engaged in union activity and pick- eting activity during the time of the aforesaid strike. 6. During the strike, Norman F. Forshey became and served as a picket captain. Richard E. Swonger was presi- dent of the Local Union prior to the stake and continued to serve as president throughout the strike. Richard A. Nickolich served as the Union's only observer at the May 25, 1971, decertification election. 7. During the strike certain events concerning violence and possible misconduct occurred. Thus, on March 31, 1971, a number of union members massed on the picket line and blocked the entrances to Respondent's plant. On such occasions, concrete blocks were placed as obstacles in the driveways. On April 14, 1971, two nonstriking employees were followed home by men, including at least one iden- tified striking employee. On February 11, 1971, an incident occurred on the picket line with the principal parties being Norman F. Forshey and Respondent's president, Tom 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blair . On two occasions, Richard A. Nickolich's car was parked partially in one of the Respondent's plant entrances. On one occasion an incident occurred among striking em- ployees, employees, or supervisors of a company called Waltco, a nonstriking employee of Respondent, and Respondent's supervisors. During the strike there were some street lights broken, some plant windows were broken, some employees were followed home from work, and some nonstriking employees' cars were damaged. During the strike some cherry bomb type missles were thrown on Respondent's plant roof and did some damage. B. Norman F. Forshey 1. As established by the pleadings, it is clear that Re- spondent discharged Norman F. Forshey on or about May 26, 1971. The facts, found later herein, reveal that Respon- dent discharged Forshey because of an incident that oc- curred on February 11, 1971. The first notification that Respondent gave Forshey as to his discharge occurred on May 25, 1971. At such time Respondent challenged Forshey's right to vote in the Board-conducted decertifica- tion election on the ground that his employment had been terminated because of misconduct on the picket line. Con- sidering the foregoing, I conclude and find that Respondent discharged Forshey on May 25, 1971. 2. The facts are clear that the alleged misconduct for which Respondent discharged Forshey is the incident that occurred on February 11, 1971. This incident concerned Forshey, job applicant Heflin, and Respondent President Blair. t 3. There is dispute as to the precise facts relating to the events preceding and the events of the February 11, 1971, incident for which Forshey was discharged. The crucial facts relate to what occurred when job applicant Heflin proceeded by automobile to leave plant premises by an exit not manned by pickets. Picket Forshey left the exit where he was picketing and in an accelerated jog attempted to intercept Heflin's car at the exit as he was about to drive away from the plant. At the time of intercep- tion Heflin's car was at a virtual standstill. Forshey swung his picket sign in such a manner that he appeared to be threatening to hit the hood of Heflin's car. Forshey did not actually hit Heflin's car with the picket sign .2 Considering all of the foregoing and all of the facts, I am persuaded that Forshey did not intend to actually hit Heflin's car with the picket sign. President Blair arrived at the scene almost immediately after Forshey arrived at the exit. At this time Forshey had moved around to the driver's side of Heflin's car. Blair spoke to Forshey and told him to get off his property. For- 1 Blair's credited testimony is to the effect that the reason he discharged Forshey was the February 11, 1971, altercation, and that such was the reason asserted by him at an unemployment hearing Blair , later in his testimony, generalized as to the basis of his reasons for discharge. Considering the testimony as a whole, I am persuaded that the more specific testimony as credited is more reliable than the later general type testimony. To the extent that the later testimony is contradictory of the first, it is discredited 2 The facts are based on a composite of the credited aspects of the testimo- ny of all witnesses to this event I discredit Forshey, Hunt, and Nickolich to the composite effect that Forshey did not swing the picket sign in such a manner shey argued that he had a right to be there. During the heated discussion, Forshey had the picket sign in his hands. The picket sign was in a carrying position with the sign portion being over Forshey's shoulder. During the discus- sion, the picket sign moved slightly but in such a manner that Blair believed that Forshey was threatening to hit him. Blair then waved Heflin to leave and Heflin left. At no time did Forshey hit Blair. Considering all of the facts, I am persuaded that Forshey did not intend to hit Blair with the picket sign.3 4. The facts clearly establish that Respondent, on May 25, 1971, discharged Forshey for union picket line conduct that occurred on February 11, 1971. The issue is essentially whether Forshey's actions in the incident set forth above constitute misconduct of such a serious nature that he lost his statutory protection. Considering all of the facts, I am persuaded that Forshey's conduct on Febiaary 11, 1971, is not misconduct of such a serious nature as to remove the protection of the Act from him. I am persuaded that For- shey did not intend to damage Heflin's car and in fact did not damage Heflin's car. I am also persuaded that Forshey did not intend to hit President Blair with the picket sign and in fact did not hit President Blair with the picket sign. Fur- thermore, the question of the seriousness of misconduct has to be viewed with an overall perspective of the facts at the time. Considering this and Forshey's failure to render any blows toward Blair at the time that Blair pushed Forshey down, I find that this conduct is not of the type to remove Forshey's union and picketing activities from the protection of the Act. Accordingly, I conclude and find that Respondent's discharge of Forshey on May 25, 1971, constitutes conduct violative of Section 8(a)(3) and (1) of the Act. 5. The facts clearly reveal that Respondent discharged Forshey because of the February 11, 1971, incident referred to above. Despite this, Respondent contended that certain other alleged picket line misconduct constituted a part of the basis for its discharge of Forshey. It is sufficient to say that this contention is not supported by the facts. The question of this alleged misconduct, however, war- rants consideration as to the determination of an appropri- ate remedy for the violative conduct found. The credited facts ° reveal that, during the strike, For- shey told Mannochio to follow cars and scare employees, Forshey followed nonstriking employees and supervisors and drove his car in such a manner as to force a supervisor's car off the highway and attempted to force an employee's car off the highway; Forshey in effect on one occasion invited a foreman to engage in a fight and threatened to stomp him, and Forshey was present at a time that some rocks were thrown at the plant. The facts reveal that Forshey was present with Swonger and Nickolich at Waltco Company on an occasion contend- ed to be an incident of misconduct. It is sufficient to say that 7 As indicated, the facts are based on a composite of the credited aspects of the testimony of all witnesses who testified to the incident and upon a consideration of the logical consistency of all the facts. Testimony of witness- es inconsistent with the facts found is discredited. ° I credit the testimony of Mannochso , Christy and Fish over the testimony of Forshey where such facts are in dispute . It is sufficient to say that I am persuaded that Mannochio , Christy, and Fish were more frank, forthright, and truthful witnesses than was Forshey to these incidents THE BLAIR PROCESS COMPANY, INC. 197 there is no evidence that any violence or damage was perpe- trated by either Nickolich, Forshey, or Swonger. Assuming Blair's and Willingham's testimony to be true, Swonger told Blair that if Waltco didn't stop receiving Respondent's de- liveries, they were going to shut them down. The facts reveal that deliveries normally made to Respondent were being made to Waltco during the strike. Considering such circum- stances, it is clear that such conduct does not render For- shey an unsuitable employee for reinstatement and backpay purposes. The question presented is not whether such picket line or related activity misconduct would justify Respondent's discharge of Forshey. The facts reveal that such misconduct was not the basis for Forshey's discharge. The question presented is whether such conduct is of such a nature as to warrant a departure from the conventional remedy for the unlawful discharge of Forshey. Thus the question is whether such misconduct renders Forshey an unsuitable employee for reinstatement and backpay purposes. In my opinion, such misconduct is not of such a nature as to render Forshey an unsuitable employee for further employment by Respon- dent. Therefore, the conventional remedy for Respondent's unlawful discharge of Forshey will be recommended. C. Richard A. Nickolich 1. As established by the pleadings, it is clear that Re- spondent discharged Richard A. Nickolich on or about May 26, 1971. The facts reveal that Nickolich spoke to President Blair on May 28, 1971, about returning to work and was told that he had a "bad attitude." On Monday, May 31, 1971, Nickolich received a letter of termination from the Respondent. It is noted that Respondent's termi- nation letter to Forshey was dated May 28, 1971. Blair's testimony was to the effect that the decision to terminate Nickolich and Swonger occurred around May 28, 1971. Considering all of the facts, I conclude and find that Re- spondent discharged Nickolich on May 28, 1971. 2. There is dispute as to the timing of the alleged mis- conduct and as to the alleged misconduct for which Re- spondent discharged Nickolich. Despite the dispute as indicated, the facts overwhelmingly reveal that Respondent discharged Nickolich because of alleged misconduct con- nected with a cherry bomb type missile incident which oc- curred on March 11, 1971. Thus, I note that the reason for Nickolich's discharge was litigated at an unemployment hearing on October 19, 1971. At such hearing the asserted reason for Nickolich's discharge was a cherry bomb missile incident occurring on March 11, 1971. Although Blair testified in the instant pro- ceeding that the reasons for Nickolich's discharge were (1) misconduct on an occasion that occurred between April and late May concerning a cherry bomb missile incident and (2) two occasions concerning Nickolich's parking his car par- tially in the entrance of Respondent's premises, I do not credit Blair's testimony to such points. The overwhelming weight of all the evidence reveals the facts as found. The facts relating to the March 11, 1971, cherry bomb missile incident may be set forth as follows: During the night of March 11, 1971, unidentified persons threw cherry bomb type missiles which hit and damaged Respondent's plant roof. President Blair was a witness to such incident. At a state court injunction proceeding, Blair testified about such incident and to the effect that he could not identify the person who threw such missiles. Considering the credited testimony of Nickolich and Referee William M. Bowers' Unemployment Hearing Decision, issued October 21, 1971, it is clear that Blair testified on October 19, 1971, to the effect that Nickolich was discharged because of misconduct on March 11, 1971. The facts in this case reveal no evidence to show that Nickolich was involved in the March 11, 1971, incident. Further, the facts reveal no objective basis for inference that Nickolich was involved in the March 11, 1971, incident. Nickolich credibly testified to the effect that he did not throw cherry bomb missiles at Respondent's plant roof on March 11, 1971. 3. The facts thus reveal that Respondent discharged Nickolich because of its mistaken belief that he had engaged in picket line misconduct on March 11, 1971. The facts also clearly reveal that Nickolich had not engaged in such mis- conduct. Accordingly, it is found that Respondent violated Section 8(a)(3) and (1) of the Act by the discharge of Nicko- lich on May 28, 1971. 4. The facts reveal that the two incidents of alleged misconduct by Nickolich concerning the parking of his car partially in the company driveway were not a part of the reason for his discharge. Assuming, however, that the Re- spondent had been motivated in part by such conduct in the discharge of Nickolich, I would not-find such conduct to constitute conduct that would justify the removal of the statutory protection for union and concerted activity from Nickolich. Thus, I would not find that such conduct would legitimatize Respondent's discharge of Nickolich. 5. The facts clearly reveal that Respondent discharged Nickolich because of the alleged misconduct on March 11, 1971, referred to above. Despite this, Respondent contend- ed that certain other alleged picket line misconduct consti- tuted a part of the basis for its discharge of Nickolich. It is sufficient to say that this contention is not supported by the facts. The question of this alleged misconduct, however, war- rants consideration as to the determination of an appropri- ate remedy for the violative conduct found. As indicated previously, I would not find the two inci- dents wherein Nickolich parked his car partially in the Respondent's entrance way to constitute serious miscon- duct of a nature that would justify a discharge of Nickolich for otherwise union or protected activity. Similarly, I would not find such conduct to be of such a nature as to warrant a departure from a conventional reinstatement and backpay remedy for Nickolich's unlawful discharge. With respect to other alleged misconduct, I note the following: Hipps credibly testified to a threat by Nickolich to him in the earlier part of the strike as is revealed by the following credited excerpts from Hipps' testimony.5 Q. Now, when you went into the plant to work, were you ever threatened by employees on the picket line? 5 1 discredit Nickolich's testimony contradictory of the facts found. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Yes. Nickolich threatened me, he said I would be the first one to get it. And I asked him to get what, and he said, "Wait and see." So I told him, "Give it to me now." And he took off down the road. Considering the foregoing, I am persuaded that the conduct is not of such a nature as to make Nickolich an unsuitable employee for backpay and reinstatement remedy purposes. Christy testified to an incident wherein unidentified persons threw rocks and broke some windows in the plant. Christy did not see who threw the rocks, but when he stepped out of the plant, he observed that Forshey, Swon- ger, Nickolich, and others were on the picket line close by. Assuming that Nickolich threw rocks on such occasion, I would not find such conduct to be of the type which would make him an unsuitable employee for purposes of a back- pay and reinstatement remedy. Christy also testified to another incident that occurred during the strike. Christy's testimony is revealed by the following excerpts from the transcript. Q. Do you remember any other times when any other strikers called you names or threatened you? A. Well, one night there was me and a security guard, we were opening the gate to let the men out. And there was- Q. Would that be letting the men out at the end of the night shift? A. At the end of the shift. And when we opened the gate, Nickolich and a guy by the name of Badgett walked up. And they wanted me outside the gate so they could beat me up. Considering the above facts, I conclude and find that such conduct is not of the type which would make Nickolich an unsuitable employee for purposes of a backpay and rein- statement remedy. Pike credibly testified to the effect that he was a non- striking employee during the strike, that his car was fol- lowed on two occasions by the same type car as owned by Nickolich. Assuming that Nickolich followed Pike home on the occasions testified to, I would not find such conduct to be of such a nature as to make Nickolich an unsuitable employee for the purposes of a backpay and reinstatement remedy. The facts relating to the alleged misconduct by For- shcy, Nickolich, and Swonger at Waltco Company are set forth elsewhere herein. It is sufficient to say that the facts as to such conduct do not reveal conduct of the type to render Nickolich as an unsuitable employee for backpay and reinstatement remedy purposes. D. Richard E. Swonger 1. As established by the pleadings, it is clear that Re- spondent discharged Richard E. Swonger on or about May 26, 1971. Blair's credited testimony establishes that Respon- dent discharged Swonger on June 2, 1971. Considering the foregoing, I conclude and find that Respondent discharged Swonger on June 2, 1971. 2. The facts reveal that Respondent discharged Swon- ger for alleged misconduct in picketing or related activities blocks were placed in the driveway by pickets in (a) organizing midnight raiding parties, (b) organizing harassment of employees, (c) organizing window-breaking incidents, and (d) in blocking the plant entrance on one occasion. 3. There is no evidence to reveal that Swonger organ- ized midnight raiding parties directed at the plant or at nonstriking employees for the purpose of inflicting damage upon the plant and property of employees. In this connec- tion, I note and would conclude and find that Respondent did not establish a good-faith objective belief that Swonger organized midnight raiding parties as contended. I make this conclusion and finding upon a composite consideration of Blair's testimonial appearance and the testimony and facts elicited. Thus, Blair as a witness clearly tried to present a stronger case than the facts warranted. I am not persuaded that he was a reliable and objective witness. Blair testified to the effect that Mannochio and Hipps had told him that Swonger had organized the midnight raiding parties. Nei- ther Mannochio nor Hipps, presented as witnesses by Re- spondent, testified to facts to support that they knew that Swonger had organized midnight raiding parties. Nor did Mannochio and Hipps give testimony to the effect that they had told Blair about Swonger's activities in connection with midnight raiding parties. They in effect denied that they had given Blair such information. While I believe that Manno- chio and Hipps may have indicated to Blair some belief that Swonger was engaged in such activity, I am not persuaded that what they told Blair revealed an objective basis for Blair to believe that there was more than speculation as to Swonger's activities. Further, Blair testified to the effect that his belief was fixed in part by Swonger's being the Union's president. Mannochio did testify to receiving instructions from Forshey to follow cars and to scare employees. Had Mannochio been aware of objective facts relating to Swonger's participation in alleged midnight raiding, I am persuaded that testimony to such effect would have been presented. In sum, I am persuaded that Respondent did not have a good-faith belief, based on objective facts, that Swonger organized midnight raiding parties for the purpose of inflicting damage upon Respondent's plant or employees' property. Swonger denied in his testimony that he had organized midnight raiding parties. Swonger's testimony in effect was a general denial. Considering his testimony as a whole, I am not persuaded that it is of sufficient reliability as to establish in fact that he did not organize midnight raiding parties. 4. As indicated, one of the alleged incidents of miscon- duct constituting part of Respondent's reason for discharge of Swonger was an incident involving the blocking of Respondent's entrance on March 31, 1971, by Swonger and other strikers. The facts are clear that Respondent's driveway en- trance was blocked by pickets who stood in the driveway on March 31, 1971, and that concrete blocks were placed in the driveway by pickets to interfere with usage of the drive- way.6 There were approximately 25 pickets involved in the blockage of the plant entrance. It appears that the police 6 1 find it proper from the facts and circumstances to infer that the concrete THE BLAIR PROCESS COMPANY , INC. 199 were called and the concrete blocks were removed from the driveway. It also appears that most of the pickets involved left at some time after the initial blockage of the driveway. As a result of the initial blockage of the driveway, eight nonstriking employees were denied access to the plant. Lat- er in the day some of the eight nonstriking employees re- turned to the plant and went to work. While the 25 pickets still remained on the scene, the facts reveal that Blair saw Union President Swonger among the pickets . There is no evidence to reveal any action by Swonger showing disapproval of the pickets ' actions. Under such circumstances , I conclude that Swonger was partic- ipating in and condoning the conduct of the pickets in blocking the driveway. The picketing conduct discussed above interfered with the nonstriking employees ' right to work and the employer's right to have such employees to work. The described picketing conduct by Swonger , in and of itself , presents a close question as to whether it is such, serious misconduct as to afford Respondent a justifiable reason to lawfully discharge Swonger for his picketing activ- ities. Considering this conduct with the related conduct of Swonger's being involved in the rock-throwing incidents later described , I am persuaded that Respondent's dis- charge of Swonger is legally justified. 5. As indicated, one of the reasons that Respondent discharged Swonger was because of alleged misconduct in connection with organizing harassment of employees. (a) For substantially the same reason as indicated with respect to the question of the alleged conduct of organizing midnight raiding parties , I would find ( 1) that Respondent did not have a good-faith belief based on objective consider- ations that Swonger organized harassment of employees away from the plant and (2) that Swonger 's testimony is not reliable to establish that he in fact did not so organize har- assment of employees away from plant premises. (b) As to the general question of alleged misconduct in harassment of employees, I would note that one of the incidents in contention is the Waltco incident . As to this incident, I would note that during the strike deliveries nor- mally made to Respondent were made to Waltco for Re- spondent . Swonger , Nickolich, and Forshey went to Waltco and told Waltco's manager that he should not receive deliv- eries for Respondent during the strike. Respondent's driver, Ambrose, was present and called Respondent and reported in effect that he was being stopped and would be beaten up if he tried to proceed in getting the deliveries . I credit Swonger's testimony to the effect that he did not threaten Ambrose that he would be beaten up. Blair and Willingham, for the Respondent , went to the scene . I credit Willingham's testimony to the effect that Swonger told Blair that if Walt- co didn't stop receiving Respondent 's deliveries , they were going to shut them down. Under the circumstances, Respondent had extended the dispute site to the premises of Waltco. Such conduct as set forth above is not of the type to justify a discharge of Swonger who was engaged in union and picketing activity. (c) With respect to the question of misconduct in con- nection with "organizing harassment" of employees, there are several incidents testified to by Christy and Fish. Al- though Blair did not- testify precisely as to how he ascer- tained such conduct , I am persuaded that the facts as a whole reveal a basis for an objective belief that Swonger engaged in such misconduct . Thus, Blair testified in effect that employees related incidents to him and that his attor- ney also ascertained some of the facts . I find it reasonable to believe that nonstriker Fish and Foreman Christy 7 would communicate the facts they knew to Respondent and its attorney . Considering all of this , I conclude and find that Respondent 's belief that Swonger's engagement in the con- duct herein described constituted a part of the reason for its discharge of Swonger. Fish testified to an incident during the strike wherein rocks were thrown at plant windows from the vicinity of the bowling alley parking lot . Although Fish did not see who threw the rocks, he did see Swonger and several other non- strikers standing in the apparent area from which the rocks were thrown . The nonstrikers yelled at Fish and others, "Come on, you scabs, come out in the street." Christy testified to an incident in which rocks were thrown and plant windows were broken . The rocks were thrown from an apparent area in the bowling alley parking lot. Christy did not see who threw the rocks but did observe when he immediately stepped out of the plant building that Forshey, Swonger , Nickolich , and several other strikers were in the apparent area from which the rocks had been thrown. Swonger denied participating in or seeing any violence. His testimony did not have the ring of truth and I do not credit it. I am persuaded- from the overall facts that Swon- ger, at least, participated in or condoned the referred to rock throwing . Such conduct afforded the Respondent ajustifia- ble reason for the discharge of Swonger despite the fact that such conduct occurred in union or picket line activity.8 6. Considering all of the foregoing , I conclude and find that the facts do not reveal that Respondent discriminatorily discharged Swonger on June 2, 1971. E. Miscellaneous I note that the General Counsel' s argument suggests that Respondent discharged Forshey, Nickolich, and Swon- ger because of a general hostility to them because of their overall union and picketing activity. Thus, evidence was adduced as to statements by President Blair to Nickolich throughout the strike to the effect that he would be without a job at the end of the strike. It suffices to say that the preponderance of the facts reveals the reasons for the dis- charges to be as set forth herein. As to Forshey and Nickolich, the Respondent's assert- ed reasons were specific in nature . As to Swonger, I note that Respondent at the unemployment hearing in October asserted a reason concerning the placement of "nails" in the driveway. The overall facts reveal that this was not one of the real reasons for Swonger 's discharge . I note also that At the time Christy was foreman. s Were Respondent to have improperly discharged Swonger and the ques- tion presented were whether such conduct would render him an unsuitable employee for purposes of backpay or reinstatement remedy , I would find that such conduct did not render him an unsuitable employee for such purposes Here the question is essentially whether the conduct is serious misconduct so as to justify a discharge under the circumstances 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blair, at points in his testimony and in pretrial assertions, appears to have asserted rationalized reasons determined as possible reasons for discharge of Nickolich, Forshey, and Swonger. I have considered all of the foregoing, all conten- tions, and have made the findings as to the real reasons for discharge as set forth in this Decision. As indicated herein, there is a distinction between the effect of "misconduct" when considered as a basis for a justified discharge of an employee engaged in union or pick- eting activity and when considered with respect to backpay remedy for an employee discharged in violation of Section 8(a)(3) and (1). As to the question of a justified discharge of an employee engaged in union or picketing activity, the misconduct must be of a serious type for which the employ- ee loses the protected status of the Act. As to the question of remedy, the misconduct normally should be of the type that renders such employee an unsuitable employee for reemployment. ers of America, Local Union 873, AFL-CIO, has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Norman F. Forshey, and Richard A. Nickolich in May 1971, as indicated in this Decision, be- cause of their engaging in union and protected concerted activity, the Respondent has thereby interfered with, re- strained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:9 ORDER IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respon- dent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Norman F. Forshey and Richard A. Nickolich in violation of Section 8(a)(3) and (1) of the Act, the recom- mended Order will provide that Respondent make offer of reinstatement to each and make each whole for loss of earnings within the meaning and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, excepting as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from the specific unfair labor practices found , and that it cease and desist from in any other manner interfering with , restraining, and coercing em- ployees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Blair Process Company, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Work- Respondent, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging employees because they have engaged in union or protected concerted activity within the meaning of the Act. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent as permitted under lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Norman F. Forshey and Richard A. Nicko- lich immediate and full reinstatement to their former posi- tion or, if such positions are no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay suffered by reason of the violative conduct directed toward them in the manner described in the Remedy section of this Decision. (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records, and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its place of business in Akron, Ohio, copies of the attached notice marked "Appendix."10 Copies of said 9In 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 Continued THE BLAIR PROCESS COMPANY, INC. notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's authoriz- ed representative, shall be posted by it immediately upon receipt thereof, and be maintained by it immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said 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 " 201 notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in wnt- ing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith." IT IS RECOMMENDED that the complaint allegations rela- ting to the discriminatory discharge of Richard E. Swonger in violation of Section 8(a)(3) and (1) be dismissed. 11 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."