Tidewater Oil Co.

National Labor Relations Board - Board Decisions

Feb 7, 1964

145 N.L.R.B. 1547 (N.L.R.B. 1964)

TIDEWATER OIL COMPANY 1547
(b) Upon request, bargain collectively with International Woodworkers of Amer-
ica, Local Union 3-3, AFL-CIO, and supply that organization with accounting
data or other relevant information from Respondent's records bearing upon Re-
spondent's position that a wage increase would adversely affect its competitive
situation.
(c) Post at its plant in Portland, Oregon, copies of the attached notice marked
"Appendix." 4 Copies of said notice, to be furnished by the Regional Director
for the Nineteenth Region, shall, after being signed by a representative of the
Respondent, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that said notice is not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Nineteenth Region, in writing, within
20 days from date of receipt of this Trial Examiner's Decision, what steps have been
taken in compliance.5
* In the event that this Recommended Order be adopted by the Board, the words "A Deci-
sion and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
I In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read- "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of ^a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL upon unconditional application reinstate any striker to his former
or substantially equivalent position, discharging, if necessary, any replacement.
WE WILL bargain collectively upon request with International Woodworkers
of America, Local Union 3-3, AFL-CIO, and, if an agreement is reached, sign
a contract with that Union.
WE WILL upon request furnish that Union with accounting data or other
relevant information from our records bearing upon our position that ^a wage
increase will adversely affect our competitive situation.
WESTERN WIREBOUND Box Co.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Subregional Office, 612
Lincoln Building, 208 SW. Fifth Avenue, Portland, Oregon, Telephone No.
Capitol 2-1607, if they have any questions concerning this notice or compliance with
its provisions.
Tidewater Oil Company and Robert Currie, Thomas Heaney,
Benjamin Wojciechowski, Joseph Besold. Cases Nos. 2-CA-
9102-1, 2-CA-9102-2, 2-CA-9102-5, and 2-CA-9102-6. Febru-
ary 7, 1964
DECISION AND ORDER
On October 16, 1963, Trial Examiner Fannie M. Boyls issued her
Decision in the above -entitled proceeding , finding that the Respond-
145 NLRB No. 149.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found Respondent had not engaged
in certain other unfair labor practices and recommended the com-
plaint be dismissed with respect thereto. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's Decision and a sup-
porting brief and Respondent filed cross-exceptions and a brief in
support of the Trial Examiner's Decision.'
Respondent's request for oral argument is hereby denied since the
record, including the briefs and exceptions, in our opinion, adequately
set forth the issues and the positions of the parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning,
and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in the cases, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modifications indi-
cated herein.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications : 2
The Recommended Order is modified by renumbering paragraph
2 (c) as paragraph 2 (d) and inserting the following immediately after
paragraph 2(b) :3
(c) Post at its Greenpoint Avenue plant in Long Island City,
New York, copies of the attached notice marked "Appendix.' 14
Copies of such notice, to be furnished by the Regional Director
for the Second Region, shall, after being duly signed by an author-
ized representative of the Respondent, be posted by the Respond-
1 No exceptions were filed to the Trial Examiner's dismissal of the complaint with re-
spect to Heaney nor were any exceptions filed to the 8(a) (3) finding in Currie's case
3 The first paragraph of the Trial Examiner's Recommended Order is hereby amended,
by substituting the following paragraph:
Upon the entire record in these cases , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent, Tidewater Oil Company, its officers, agents, successors, and assigns,
shall:
3 we agree with the General Counsel that the posting of a notice by Respondent is ad-
visable and necessary to effectuate the policies of the Act.
* In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States 'Court of Appeals , Enforcing an Order "
TIDEWATER OIL COMPANY 1549
Bent immediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered by any
,other material.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in or activities on behalf
of United Petroleum Workers, Independent, or any other labor
,organization, by discriminatorily denying reinstatement to any
employee because he has engaged in a protected strike or other
concerted activity.
WE WILL NOT, in any like or related manner, interfere with our
employees' rights guaranteed under Section 7 of the Act, except to
the extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act
of 1959.
WE WILL offer to Robert Currie immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and
make him whole for any loss of pay he may have suffered by rea-
son of the discrimination by us against him.
TIDEWATER OIL COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of
1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York,
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York, Telephone No. 751-5500, if they have any question con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon separate charges filed on February 5, 1963, by Robert Currie, Thomas
Heaney and Benjamin Wojciechowski and on February 25, 1963, by Joseph Besold,
a consolidated complaint was issued on April 8, 1963, alleging that Respondent,
Tidewater Oil Company, had violated Section 8(a)(1) and (3) of the National
Labor Relations Act by refusing to reinstate the Charging Parties to available jobs
on and after September 22, 1962, following the termination of an economic strike.'
Respondent filed an answer, denying that it had engaged in any unfair labor practice
and pleading, as an affirmative defense, that it had refused to reinstate the Charging
Parties because of misconduct engaged in by them in connection with the strike.
A hearing, at which all parties were represented, was held before Trial Examiner
Fannie M. Boyls on June 10 through 21, 1963. Thereafter the General Counsel
and Respondent filed briefs, which I have carefully considered.
Upon the entire record in the case, and from my observation of the witnesses on
the stand, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a Delaware corporation , maintaing its principal office and place
of business in Los Angeles, California, but maintaining its eastern division offices
at 660 Madison Avenue in New York City and other offices in the States of New York,
New Jersey, and Pennsylvania, where it is engaged in the manufacture, sale, and
distribution of petroleum and related products. During the past year, a representa-
tive period, it shipped in interstate commerce, in the course and conduct of its
business, products valued in excess of $50,000. Respondent concedes, and I find,
that it is engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
H. THE LABOR ORGANIZATION INVOLVED
The parties stipulated at the hearing, and I find, that United Petroleum Workers,
Independent, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Undisputed facts and issue
For many years the Union has been the collective-bargaining representative of
Respondent's employees in a unit which includes its truckdrivers. On June 30, 1962,
the Union called a strike in support of certain contract demands. On or about Sep-
tember 19, the Union called off the strike and requested that Respondent reinstate
all the strikers. On or about September 22, Respondent refused to reinstate among
others, the four Charging Parties herein, for the asserted reason that those four had
engaged in strike misconduct. Respondent offered to afford a hearing to each of
them and to reverse its decision with respect to each should the evidence adduced
warrant such a reversal. Thereafter each of the Charging Parties appeared in person,
accompanied by their counsel, John J. Corrigan, and were given a hearing before
Joseph G. Jiminez, vice president and general manager of Respondent's eastern
division. Following the hearings, Respondent adhered to its original determination
with respect to these four?
Respondent asserts that the strike misconduct forming the basis for its decision
not to reinstate the four Charging Parties consisted of three incidents. The first
incident occurred on July 8 and involved, among other people, two of the Charging
I The complaint , when issued , included allegations with respect to another Charging
Party, John Tanturri , in Case No. 2-CA-9102-4. On May 27 , 1963, however, the complaint
was amended to delete therefrom ( including the caption ) all reference to Tanturri and the
charge filed by him
2 In addition to the Charging Parties herein , six other strikers were originally denied
reinstatement because of Respondent 's belief that they had engaged in strike misconduct,
but after hearings , four were reinstated.
TIDEWATER OIL COMPANY 1551
Parties, Thomas Heaney and Benjamin Wojciechowski. These same two, along
with a third Charging Party, Robert Currie, are alleged to have participated in the
second incident, which occurred on July 15. All three of these men had been em-
ployed at Respondent's Greenpoint Avenue, Long Island City, New York, plant.
The third incident occurred on July 18 and allegedly involved the fourth Charging.
Party, Joseph Besold, along with other unidentified men. Besold had been employed
at Respondent's Doremus Avenue, Newark, New Jersey, plant.
Except as to the July 8 incident, the Charging Parties have denied even being
present during the incidents about which Respondent's witnesses testified. With re-
spect to the July 8 incident, Heaney and Wojciechowski admit participation but deny
that any misconduct was involved.
It is well established, of course, that strikers do not lose their status as employees
merely because they have engaged in a strike and that their right to strike is pro-
tected under Section 13 of the Act. Moreover, although an employer may refuse
to reinstate an unreplaced striker because that striker has engaged in serious strike
misconduct, "the statutory protection extended to a blameless employee is a firm
and clear guarantee, not one which constantly varies with the correctness of the
employer's opinion or with accuracy of his sources of information. Nor does the
Act expose the innocent employee to the hazard of his employer's mistake where
the consequence of this mistake is to divest the employee of a right guaranteed by
the Act." N.L.R.B. v. Industrial Cotton Mills (Divi'ion of J. P. Stevens Co.),
208 F. 2d 87, 91 (C.A. 4), cert. denied 347 U.S. 935.3
In cases of this nature, the Board has consistently held that in order to protect
the employee in this statutorily protected right to strike, the employer who alleges that
he refused to reinstate an unreplaced striker because of that employe's strike mis-
conduct must first establish a good-faith belief that the employee engaged in such
misconduct before the General Counsel is required to prove that the employee was
in fact innocent of the misconduct charged to him.4 The applicable rule as to the
burden of proof in such cases was succinctly stated by the Board in the Rubin Bros.
case as follows:
. [The] honest belief of an employer that striking employees have engaged'
in misconduct provides an adequate defense to a charge of discrimination in
refusing to reinstate such employees, unless it affirmatively appears that such
misconduct did not in fact occur. We thus hold that once such an honest belief
is established, the General Counsel must go forward with evidence to prove that
the employees did not, in fact, engage in such misconduct. The employer then,
of course, may rebut the General Counsel's case with evidence that the unlawful
conduct actually did occur. At all times, the burden of proving discrimination
is that of the General Counsel.
With these principles in mind, I turn to an evaluation of the, evidence adduced.
B. The July 8 incident
Early in the morning of July 8, Harold Scheff, a Tidewater Oil Company truck-
driver who had formerly worked out of Respondent's Baltimore plant, was assigned'
to drive a truck, loaded with 3,000 gallons of gasoline, from Bridgeport, Connecticut,
to New York City. Accompanying him in the cab of the truck was Eugene Gibson,
a Tidewater salesman. Following the truck in an escort car was Lloyd Bunting,
Respondent's fleet sales supervisor for the eastern division. Bunting had with him
a Brownie camera for use in taking pictures should any incidents arise. The truck
and escort car passed Throgs Neck Bridge and entered the Clearview Expressway
about 9:30 a.m Soon thereafter, the truck passed a service area where an Olds-
mobile, with its hood up, was parked and three strikers, Thomas Heaney, Benjamin
Wojciechowski and Frank Frey, were sitting on the grass. Upon observing the truck
pass, these three men hurriedly closed the hood of the car and set out in pursuit of
the truck. The Oldsmobile belonged to Wojciechowski, but, at his request, Heaney
drove it.
s Accord • Cassano d/b/a American Shuffleboard Co v N.L R B , 190 F. 2d 898, 902-903
(C A. 3) ; Salt River Valley Water Users' Association v N.L R B, 206 F 2d 325, 328-329.
(C.A 9)
4 Cf Rubin Bros. Footwear, Inc, etc, 99 NLRB 610, enforcement denied 203 F 2d 486
(CA. 5) ; and Wichita Television Corporation Incorporated, d/b/a ICARD-TV, 122 NLRB
222, footnote 15, enfd 277 F. 2d 579 (CA. 10), cert denied 364 U.S 871.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undisputed that the strike duties assigned to Heaney, Wojciechowski, and Frey
on the morning of July 8 were to follow the Tidewater Oil trucks, or trucks used
by Tidewater, to their destination in New York City, to check for "fire violations"
while the gasoline was being poured, to check on the driver's certificate of fitness and
the amount of gasoline delivered, and to picket the trucks. These strikers had been
performing their assigned tasks all week without visible success and decided that they
were tired of continuing that type of strike duty. As Wojciechowski explained,
"Frank Frey that morning had mentioned the fact that he was tired of playing cow-
boys and Indians, and so was I. We were getting nowhere following the trucks. They
would dump the gas and you would eat your heart out watching them dump the gas.
They were getting a $100 a day and we were getting nothing. Frey described the
picketing of a truck as follows: "All you see is a red thing in front of you at 20
miles an hour and you get there and they still deliver the load of gas and you walk
up and down like a jerk." Accordingly, Frey stated, they decided "to do little cheat-
ing" on their strike duty assignments.
There are conflicts in the testimony as to what happened in connection with this
"cheating" and these conflicts are set forth and analyzed below.
Although disagreeing among themselves as to some details, all three of Respond-
ent's witnesses testified, in essence, that while the truck was going along the Clearview
Expressway about 28 to 30 miles an hour-the top speed permitted by the governor
on the truck-the Oldsmobile, on several occasions cut in front of the truck and
slowed down , causing Scheff, the driver, to apply his brakes suddenly and swerve
the truck to avoid hitting the Oldsmobile. They also agree that at least on one occa-
sion the Oldsmobile cut in front of Bunting's escort car and forced it to stop. On
this occasion Scheff stopped the truck and started to back up but proceeded forward
when he saw that Bunting was stopped only momentarily. All three likewise agree
that after the truck had turned off Clearview Expressway and had reached Lawrence
Street, the Oldsmobile again cut in front of the truck several times, causing it to
swerve dangerously to avoid a collision and that finally, by stopping in front of the
truck, the Oldsmobile caused the truck to come to a complete Stop .5
Scheff testified , and I find, that he stopped the truck only because he did not be-
lieve he could safely swerve and pass the Oldsmobile. Heaney, the driver of the
Oldsmobile, hurried to Scheff's side of the truck, opened the cab door, and, according
to Scheff and Gibson, grabbed Scheff by the left arm and tried to pull him out of
the truck. Scheff held on to the steering wheel and Gibson, momentarily, helped
by holding Scheff's right arm. This account of Scheff and Gibson is corroborated
by Bunting's testimony that he saw Heaney open the cab door and reach inside.
In the meantime , the other two occupants of the Oldsmobile, Wojciechowski and
Frey, had reached the other side of the truck. According to Gibson, although he
was holding onto the door handle, they succeeded in opening the cab door and
Wojciechowski grabbed his right arm and started pulling him. Gibson then released
his hold on Scheff and, to avoid being dragged out of the truck, cooperated by getting
out. Wojciechowski, in a raised voice, accused Gibson of being a strikebreaker,
reminded him that he had once been a member of the Union, and asked why he
was helping deliver gasoline to the service station .6 Gibson replied that he was only
doing his job. Harsh words followed. Heaney, who had abandoned his attempt to
pull Scheff from the driver's seat, hurried to the other side of the truck and joined
his fellow strikers in their verbal abuse of Gibson. He was followed by Scheff, then
Bunting? At one point during the heated argument, Heaney, in a rage, hurried to the
back door of the Oldsmobile and returned with a tire iron raised above his head
as if about to throw it at Gibson, Scheff, and Bunting or one of them. Wojciechowski,
5 Bunting testified that on one occasion when he was following the truck on Northern
Boulevard, after it had left Clearview Expressway and before it had reached Lawrence
Street, the Oldsmobile pulled alongside Bunting at a stop light and that Heaney used
abusive language and spat on the right window of the car Bunting was driving
6 Wojciechowski, Heaney, and Gibson had known each other for about 10 years. Wojcie-
chowski had at one time considered Gibson as a friend Gibson knew Frey by sight but did
not know his name at the time of the incident. Bunting knew Heaney and Wojciechowski
by sight but had not seen Frey before. The three strikers apparently did not know
Bunting.
7 Bunting used up the last film on the roll in his borrowed camera in taking a picture as
Scheff was passing between the truck and Oldsmobile to join the group around Gibson. As
Scheff pointed out at the hearing, in the picture the left arm of the T-shirt be was wearing
appears stretched and longer than the sleeve of his right arm. This he attributes to the
fact that Heaney stretched it while pulling on his arm to drag him from the truck.
TIDEWATER OIL COMPANY 1553
and perhaps also Frey, then physically restrained Heaney.8 Wojciechowski told him,
"Let's have none of that." One of them suggested, "Let's get out of here" and they
returned to the Oldsmobile and drove away. Shortly before they left, Bunting hailed
a passing mail truck and requested the driver to summon the police. A police car
arrived after the Oldsmobile had left and escorted the truck for awhile.
The General Counsel's witnesses, Heaney and Wojciechowski, gave a different ac-
count of the July 8 incident. Although admitting that they followed the truck and
escort car along the route already indicated and that on Clearview Expressway they
got in front of the truck and deliberately slowed it down to 20 or 25 miles an hour,
they contend they did this only once and deny that they caused either the truck or
the escort car to swerve dangerously. Heaney, moreover, denied that he spat on the
window of the escort car at any time.
Heaney and Wojciechowski testified that on Lawrence Street they twice pulled
alongside the truck and asked that the driver pull over and stop for a talk but that
the truck did not stop when the first request was made .9 Later they again pulled
alongside the truck, waved,,and asked the driver to pull over. This time they heard
what sounded like the "feathering" of brakes and, assuming that the truck was
preparing to stop, pulled in front of the truck and stopped at a safe distance away.
Although the truck was only 3 or 4 feet from the Oldsmobile when it stopped, they
contend that it could safely have stopped sooner. Heaney concedes that he hurried
to the driver's side of the truck, opened the cab door, and invited Scheff out for a
talk but denies that he sought to drag Scheff from the cab or that he even touched
Scheff.
According to Wojciechowski, he attempted to open the door on Gibson's side of
the cab but could not do so. He and Frey asked Gibson to come out and talk.
Gibson at first appeared reluctant to do so but finally acceded to the request. A
heated discussion was then had, with Wojciechowski and Frey, later joined by
Heaney, accusing Gibson of being as bad as a scab since he was riding in the cab
of the truck rather than in the escort car and Gibson defending his right to work in
accordance with directions from his employer. At one point, after Scheff and
Bunting had joined the group, Heaney became very angry and took a couple of steps
toward Gibson but "decided against it" and "did not touch him." According to
Wojciechowski, he said, "Come on, Tom, he is not worth it; let's get out of here."
The three strikers thereupon returned to the Oldsmobile and drove away. Heaney
and Wojciechowski concede that there was a tire iron or similar tool on the floor
near the back seat of the Oldsmobile, but each denied that Heaney at any time
during the incident obtained the iron or any other tool from the Oldsmobile or
threatened anyone with it.
Frey, who was called by the Trial Examiner after both the General Counsel and
Respondent had indicated their intention not to call him, turned out to be a very
unreliable witness, contradicting at times not only his own testimony and prior
written statements given by him, but also contradicting in a number of material
respects the testimony of all the other witnesses, including that of his good friend
Wojciechowski. Among other things, he denied that the Oldsmobile ever got in
front of the truck while it was traveling along Clearview Expressway or at any
other time except just prior to the time the truck stopped on Lawrence Street.
While at first testifying that the Oldsmobile pulled in front of the truck on Lawrence
Street before he heard the air brakes of the truck being hit, he later testified that
it was when the Oldsmobile was alongside the truck that he heard it. He denied
that Woiciechowski ever touched the truck or that Heaney, during the altercation,
ever took any steps toward Gibson or anyone else or that Heaney ever had a tire
iron or other tool in his hand.
It will thus be seen that although substantial credibility issues are involved
in ascertaining the facts as to many of the details, even if the vers'on of the General
Counsel's own witnesses be accepted, some of the acts admittedly engaged in-such
as deliberately slowing the truck down to 20 or 25 miles an hour on the Clearview
Expressway and finally causing it to stop on Lawrence Street-constituted misconduct
of a nature which arguably might have warranted Respondent in refusing to rein-
'Gibson and Bunting mentioned only Wojciechowski as grabbing Heaney's arm to re-
strain him, but Scheff believed Frey also restrained him.
s
Wojciechowski placed the first request to stop as occurring on Northern Boulevard,
before the truck turned off on Lawrence Street This would tend to support Bunting's
recollection. Although I regard it immaterial whether this occurred on Northern Boule-
vard or Lawrence Street, a preponderance of the evidence is to the effect that the first as
well as the second attempt to stop the truck was on Lawrence Street.
734-070-64-vol 145---99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
state them. But I need not decide that question, for I credit the mutually corrobora-
tive version of Scheff, Gibson, and Bunting as set forth above. In doing so, I rely
heavily upon the impression they made upon me as they testified. I regard each
of them as responsible, conscientious men who testified in a forthright and frank
manner. Also, there does not appear to be any reason why they should fabricate
testimony about the incident. This is not to say that I believe each testified ac-
curately in every respect. The incident which they related occurred almost a
year before and it is only natural that there should be some inconsistencies or faulty
recollection regarding minor details. In my view, however, none of those pointed
out by the General Counsel or otherwise apparent on the record are sufficiently
serious to cause me to doubt the reliability of their testimony regarding the more
important phases of the incident, about which the three were in agreement.'°
In crediting the versions of Respondent' s witnesses set forth above, I have also
considered the fact that there are material variances or inconsistencies in the
testimony and prior written statements of Heaney and Wojciechowski. Thus, both
of them gave sworn statements to the General Counsel about 4 months prior to
the hearing in which each denied that the Oldsmobile drove in front of the truck at
any time prior to the time the truck stopped on Lawrence Street whereas each of
them conceded at the hearing that they had pulled in front of the truck on Clearview
Expressway and slowed it down 5 or 8 miles an hour. Heaney, moreover, testified at
a New York State unemployment hearing in April 1963 that he had never seen
a tire iron, a lug wrench, or a combination of the two in Wojciechowski's car; but
at the hearing in this case he first testified that he did not know there was an iron
bar in the car until he got in the back seat when leaving the scene of the altercation,
then later-in an apparent attempt to establish that the Respondent's witnesses
"couldn't help but see" the iron in the car-testified that he had seen it during
the argument while walking around in the vicinity where those witnesses had stood."
There is no question in my mind but that the misconduct of Heaney, and perhaps
also of Wojciechowski and Frey on July 8 was of such a serious nature that Respond-
ent would have been warranted in denying them reinstatement. Interference with
the movements of an oil truck loaded with 3,000 gallons of gasoline, such as the
one driven by Scheff, causing it to swerve dangerously and forcing it to make an
emergency Stop,12 even aside from the other acts I have described, should not be
regarded lightly.
Frey was reinstated by Respondent following a 1-week disciplinary layoff in
connection with another incident in which he was involved. Respondent's vice
president and general manager of its eastern division, Joseph G. Jiminez, testified
that he did not know of Frey's participation in the July 8 incident until the morning
of the hearing in this case. The General Counsel contends that Jiminez knew as
early as April 4, 1963, when Frey's name was mentioned in connection with a
"July incident" at an unemployment insurance hearing. I need not decide whether
Jiminez first learned about Frey in April, however, for Frey had already been rein-
stated, following a 1-week disciplinary layoff because of his participation in another
strike incident and Respondent, understandably, may have been reluctant to disturb
the status quo as to him when later learning about his July 8 activities.
10 1 do not regard it as important , for example , that these witnesses were not in entire
agreement as to the number of times and the locations at which the Oldsmobile cut in front
of the truck , causing it to swerve dangerously ; or that Gibson testified that Bunting used
a flash bulb in taking a picture of the group , whereas Bunting testified, and I find, that no
flash bulb was used . Nor do I find it significant that Bunting did not take pictures of all
or even the more serious of the occurrences about which he testified . He testified, and I
find, that he had with him only a borrowed Brownie camera in which some of the film had
already been used and he ran out of film before Heaney obtained the tire iron from the
Oldsmobile Moreover, as he explained , it was very difficult to take pictures while operat-
ing his car because he had to take them with one hand while the camera rested on top of
the dashboard , and after taking one picture , he could not take another until he had an
opportunity to turn the film to the next stop . Since it was not a movie camera, the shots
obviously could not effectively record actions
11 The testimony of Frey on disputed issues might in a few instances be considered help-
ful to both sides but, as already indicated , his testimony was not of a responsible nature
and I have not relied upon it in reaching my conclusions
12I regard it as immaterial whether-as Gibson , Heaney, and Wojciechowski testified-
Scheff started applying his brakes while the Oldsmobile was alongside the truck , with the
occupants waving the truck over , or whether-as Schell testified--he did not start applying
them until the Oldsmobile started cutting in front of the truck. I am satisfied that--as
Gibson and Scheff testified-Scheff was forced to make an emergency stop
TIDEWATER OIL COMPANY 1555
There is a suggestion in the record, moreover , that Gibson, Scheff , and Bunting
were grateful for Wojciechowski 's and Frey 's restraint of Heaney when the latter
appeared about to throw the iron bar at them and may have sought to refrain from
implicating them any more than was necessary . It is reasonable to assume that they,
as well as Jiminez , considered Heaney, who drove the car and obtained the iron bar,
primarily responsible for the July 8 misconduct . I find it unnecessary to decide
whether Respondent would have denied Wojciechowski reinstatement because of his
part in that incident for I am convinced , as shown infra , that Respondent was war-
ranted in denying him reinstatement because of his participation in a more serious
strike incident on July 15. I find, however, that Respondent was warranted in
denying reinstatement to Heaney because of his misconduct on July 8 and that such
misconduct played a major part in its decision not to reinstate him.
C. The July 15 incident
On July 15 there occurred an assault upon J . A Farley, the driver of a Seaside Oil
Company truck , and Gus Anderson , a Tidewater salesman who accompanied him.
There are no substantial differences in the accounts of Farley and Anderson as to
what happened on this occasion and I am convinced , and find, that the assaults and
other misconduct occurred substantially as related by them. The only real contro-
versy involves the identity of their assailants.
1. The assaults
Farley had been hired on July 13 as a driver for Seaside Oil Company , a wholly
owned subsidiary of Tidewater , to drive oil trucks from the Mount Vernon, New York,
plant. Gus Anderson had been,a salesman in the Tidewater Boston area for many
years but after the occurrence of the strike on June 30 , he was assigned first to
Bridgeport , Connecticut, then to Mount Vernon, New York, to ride with Seaside Oil
Company drivers.
He and Farley left the Mount Vernon plant about 5:55 or 6 a m . on July 15
en route to Brooklyn. When about a mile from the plant going along the service
road to the Connecticut or New England Thruway, an Oldsmobile car cut in front
of the truck and forced it to stop . Four or five men got out of the Oldsmobile and
approached the truck . One of them , with an iron bar in his hand, came to the
driver's side , opened the truck door and started hitting at Farley's legs Farley
attempted to ward off the blows and take the iron from his assailant . Two other
men from the Oldsmobile went to the other side of the truck , opened the door, pulled
Anderson from the truck , and shoved him down a 25-foot embankment causing him
to land on and injure his left arm. As he arose and walked to the top of the embank-
ment, he was hit from behind and knocked down by an unidentified assailant from
the Oldsmobile or from a Chevrolet which had been following the truck which had
stopped behind the truck . Anderson stayed on the ground as he watched some of
the men run to the Oldsmobile and others get into the Chevrolet parked behind the
truck. Before the Oldsmobile drove away he wrote on a card-which he carried
in his pocket and produced at the hearing-the license number of the Oldsmobile,
NS 6248. It is conceded that Wojciechowski owns an Oldsmobile bearing that license
number.
In the meantime , after the two men on Anderson 's side of the truck had pulled
him out and pushed him down the embankment , they reached over and pulled
Farley out while Farley was still warding off the blows of his assailant . Farley
was pulled out with such force that he too went down the embankment but he landed
on his feet By the time he reached the top of the embankment his assailants and
the other men in the Oldsmobile and the Chevrolet had left the scene. Anderson
called to him that he was hurt and Farley then drove Anderson back to the plant.
On the way back and while they were on the Boston Post Road, they saw the
Oldsmobile parked on the side of the road. As the truck approached one or more
of the men got out of the Oldsmobile and one of them threw an iron bar through
the windshield of the truck , shattering glass over Farley and Anderson. When
Farley and Anderson arrived back at the Mount Vernon plant the police were
called, were given an account of the incident , and took the iron bar from the front
of the truck . Anderson , who was severely bruised on .the left arm and in great pain,
was taken to a hospital for treatment.
2. The identifications by Anderson and Farley
About noon on the day of the incident , after Anderson had returned from the
hospital nand was in his motel room , one of Respondent's counsel and a management
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative visited him and took a statement from him about the incident. They
then showed him a group of about 20 photographs, out of which he picked those of
Wojciechowski and Heaney as two of the assailants. On the following day he was
shown a larger group of pictures-about 50-and out of these he picked Currie's
picture in addition to Wojciechowski's and Heaney's as the assailants. Late at night
on July 19 he was taken to the Bronx police station and asked by a police lieutenant
to look through a peephole and state whether or not the three men in the room were
the assailants, Wojciechowski, Heaney, and Currie. Anderson thereupon looked
and stated that they were the assailants.
According to Farley, it was several days after the July 12 incident when he was
shown more than 100 photographs at Respondent 's Madison Avenue office, and
from among them he picked out three as the assailants. After he had selected them
he saw their names on the reverse side of the photographs. In this way he identified
Wojciechowski, Heaney, and Currie. On the night of July 19 he was taken to the
Bronx police station and, looking through a peephole , identified the same three alone
in a room with a policeman. Farley testified that Anderson was with him when
he and Anderson both identified the men, and I credit this testimony, although
Anderson did not recall Farley being present when he was asked to look through
the peephole.
On the basis of their identifications by Farley and Anderson and complaints sworn
out by them, Wojciechowski, Heaney, and Currie were subsequently charged with
assault and tried in a Bronx , New York, criminal court but were acquitted by the
jy.ia
3. The alibis
a. Currie
Currie was on vacation during the first 2 weeks of the strike, that is, from June 30
through July 15. He testified that although he had heard that a strike might be
called, he did not know until July 12 that it had begun on June 30. He spent the
first week of his vacation at his year-round home in Elmont, New York. On July 8
he and his wife left for their summer home in Smallwood, New York, where they
had no telephone. On July 11 after Currie's wife had talked over a nearby public
telephone to their adult daughter whom they had left at home in Elmont and had
ascertained that she was coming down with a cold and not feeling well, they re-
turned to Elmont that night. On the following morning Currie received a call from
a union picket captain requesting him to perform picket duty. After some discussion
as to whether he should perform picket duty while on a paid vacation, he was per-
suaded that he should, and did so on July 12 and 13. On the night of Friday, July 13,
Currie with his wife and daughter returned to their summer home in Smallwood
to enjoy the remaining 2 days of his vacation there. According to Currie and his
wife, they remained there until about noon on Sunday, July 15, when they returned
in their car-a black and white Ford-to Elmont, arriving there about 3:30 p.m.
Currie's daughter, who had testified in his behalf at the criminal trial at which he
was acquitted, was in Europe at the time of the hearing in this proceeding and did
not testify. The account of Currie and his wife, however, is corroborated by the
testimony of several of their neighbors at the summer home. Vacationing in an
adjoining cottage were Arthur Osbahr, district branch manager of Seaboard Finance
Company, his wife, Dorothy Osbahr, who is employed by the Social Security Ad-
ministration, and her mother, Margaret Hayton. These appeared to be responsible
and honest witnesses and I credit their accounts. According to them Currie was in
his yard about 8.05 a.m. on July 15 when the Osbahrs stopped to inquire whether
they could get anything for him at the store to which they were driving Currie
said he would like a newspaper. They arrived back from the store about 8.25 and
hurriedly delivered the paper to Currie, without waiting to be paid for it, since they
were late for an 8:30 golf engagement. Margaret Hayton observed Currie receiving
the paper. She also saw his car in the Currie's driveway when she arose about 7
o'clock that morning. On the day before, she had talked to Mrs. Currie in the morn-
ing and, about 4 p.m., she had seen Mr. Currie carrying packages from their car
after Mrs. Currie and their daughter returned from a shopping trip. On Sunday,
just before the Curries left their cottage, she had observed Currie's daughter taking
a picture of Currie and his wife. This picture was identified by Currie and his wife
and received in evidence at the hearing.
Another neighbor, Orlando Annunziata, an internal revenue tax examiner who has
a cottage nearby, saw Currie's car in his driveway at about 8:20 a.m. on July 15.
is Currie also won a hearing, contested by Respondent, before the State unemployment
insurance board.
TIDEWATER OIL COMPANY 1557
Each of these neighbors learned during the weekend following July 15 about the
charges against Currie when he came to see them to ascertain whether they would
testify in his behalf. Annunziata was not at home when Currie called upon him but
learned from his wife that Currie was in trouble. On the following weekend, he
sought out Currie, whom he described as "crying like a baby" as he told about being
arrested and accused of committing an assault.
Respondent's vice president and general manager, Jimenez, whose decision it was
not to reinstate Currie, interviewed Currie's neighbors before making his final de-
termination. He testified that he did not disbelieve them; nor did he disbelieve the
testimony that Currie had been at his summer home during the evening of July 14
and that he had left there with his wife and daughter about noon on July 15. It
was his stated belief, however, that Currie had participated in the assault as testified
to by Farley and Anderson about 6 or 6:15 a.m. on July 15 and had thereafter re-
turned to his summer home about 101 miles from the scene of the incident, either
driving his own car or being driven there by someone else. Jiminez caused "dry
runs" to be made between those points on several occasions and found that the trip
could be made in 1 hour and 46 minutes while driving within legal speed limits.
Although it might have been physically possible for Currie to have participated
in the incident and to have been driven to his summer home by 8:05 a.m. when the
Osbahrs saw him in his yard, this seems highly unlikely to me. There is no evidence
inconsistent with Currie's claim, corroborated by the testimony of his wife, that he
did not know about the strike and did no picketing prior to July 12, and even then
only when persuaded that picketing was not incompatible with his acceptance of a
paid vacation, and I credit this testimony. It would seem out of character for a man
of his age, 59, with this demonstrated lack of enthusiasm for the strike action, to
interrupt the last weekend of his paid vacation at his summer cottage with a stealthy
202-mile trip to town and back for the purpose of engaging in a single strike incident
such as that which occurred early in the morning of July 15. Moreover, both Currie
and his wife stood up well under cross-examination and I am convinced that they
were telling the truth.
Anderson, the older and more responsible of the two witnesses for Respondent,
admittedly saw the man he later identified as Currie only briefly as the four or five
men were emerging from the Oldsmobile and the three assailants were hurrying to-
ward the truck. Since his attention must naturally have been directed principally
to the two men who approached his side of the truck and assaulted him, I am not con-
vinced that his recollection of Farley's assailant was so clear and vivid that he could
have been positive about the identification of Currie on the following day from the
photographs submitted to him and in identifying him along with Wojciechowski and
Heaney at the police station on July 19. In identifying Currie on the latter occasion,
it is entirely possible that he was unconsciously influenced by the fact that Farley
had identified him and by the powers of suggestion inherent in the fact that Currie
was lined up with Heaney and Wojciechowski in the same room when the police
lieutenant asked whether the three were the assailants. I note, moreover, that
Anderson, unlike Farley, did not purport to identify Currie as the man who threw
the iron bar through the truck windshield 14 If Anderson's fleeting glimpse of Currie
as he hurried to Farley's side of the truck had been as clear as his testimony would
indicate, it seems to me that he would have been able to identify Currie as the man
who a few minutes later threw the bar through the truck windshield, if, indeed, that
man was Currie.
Farley, of course, had ta much better opportunity to observe and recognize his first
assailant but from his demeanor on the witness stand as well as from an analysis
of his entire testimony, I do not regard him as an entirely responsible witness.
As the General Counsel points out, there are some inconsistencies in various affi-
davits given by him prior to the hearing and in his testimony, and he was clearly
confused at times.15 In testifying as to what side of the Oldsmobile and whether from
"According to the credited testimony of Jiminez, neither Farley nor Anderson were
able to identify the man who threw the bar through the truck's windshield
15 In appraising these inconsistencies, I do not regard the abbreviated and obviously
garbled account of the incident appearing in the "information" written by a police officer
in the city magistrate's court as reflecting upon the credibility of either Anderson or Farley.
I do regard it as significant, however, that in his affidavit given a Board agent on July 31,
1962, he mentioned that he saw "one of the men" who pulled him out of the truck, de-
scribing him as "about 5 foot 8, white and stocky," and stated that after picking out his
picture the man was identified to him as Heaney. Heaney was slender and his hair was
red or had a reddish tinge. In this affidavit, moreover, Farley does not mention
Wojciechowski either by name or by description, unless in describing Heaney, he meant
Wojciechowski.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the back or front seat each assailant came, and in describing what each was wearing
at that time and at police headquarters several days later, I believe that Farley was
probably testifying to impressions rather than to known facts. On the other hand
it is possible that his attention to such details at the time of the incident caused him
to pay less attention to and be less accurate in remembering the faces of those in-
volved.16 I note, in addition, that it was several days after the incident occurred
before Farley was shown the photographs from which he picked Currie as one of the
participants. The photographs were not introduced in evidence and no one other
than Anderson and Farley testified as to the circumstances under which the pur-
ported identifications were made. In any event, because I am convinced that Currie
and his supporting witnesses were telling the truth with respect to his whereabouts
early on the morning of July 15, I find that Farley and Anderson were misitaken
in identifying Currie as one of the participants in the incident. Accordingly, I find
that Currie was entitled to reinstatement upon his application at the conclusion of
the strike, and that Respondent violated Section 8(a)(3) and (1) of the Act in
refusing to reinstate him.
b. Wojciechowski
Wojciechowski gave the following account of his activities at the time in question:
Because of a previous rumor that an oversized green trailer truck was delivering
gasoline in Brooklyn at nights, Wojciechowski and a fellow striker, William Caru-
pella, on the night of July 14 to 15, were on a tour of picket duty in Brooklyn, using
Wojciechowski's car, New York license number NS 6248. They arrived back at
strike headquarters on Greenpoint Avenue in Long Island City about 5:45 or 5:50
a in In the vicinity of strike headquarters, Wojciechowski saw a fellow striker, Al
Scott, and stopped to talk with him 14 He also saw a friend, Albert Koran, who was
walking his dog, and spoke to Koran Just before 6 a.m., Carupella stated that he
wanted to attend mass and asked Wojciechowski to check him in at strike head-
quarters. Wojciechowski checked in with Bernard Dixon, the picket captain, about
6.20 am., then dropped by the American Legion post before going home.
Wojciechowski normally performed picket duty only on daytime shifts and,the night
of July 14 to 15 was the only occasion during the strike when he was asked to serve
at night.
Carupella testified in substantial corroboration of Wojciechowski's account. Ac-
cording to him, they returned to strike headquarters between 5:30 and 5.45 a in.
He saw the same people Wojciechowski had mentioned seeing. In addition, he saw
Heaney about 50 feet away, walking in the direction of a car owned by James
Hearney. Carupella further testified that although he saw Wojciechowski and
Heaney shortly after their arrest and release from jail, he was not interviewed in
regard to the July 15 occurrences until after he had returned to work sometime in
September
In further support of Wojciechowski's account, Albert Koran-who owned and
operated his own truck and had been a good friend of Wojciechowski's for over 10
years and had known Carupella for several years-testified that he lived near the
strike headquarters; that he was out walking his dog about 5:45 that Sunday morning,
preparing to leave on a fishing trip with a neighbor who was scheduled to arrive at
Koran's house at 5:30 a.m.;,that he saw Wojciechowski and Oarupella getting out of
a car near the diner across the street from union headquarters about 5:45 and
spoke to them; that he also saw a man there whose face was familiar and who
about 6 months later was introduced to him as Al Scott; and that he saw no one
else in the vicinity other than a stranger apparently waiting for a bus. He knew
Heaney but did not see him there (as Carupella testified he did). Koran also
testified that he learned of Wojciechowski's arrest soon after it occurred and upon
seeing him several days later offered to testify in Wojciechowski's behalf at the
criminal trial. He was not, however, interviewed by anyone about Wojciechowski
prior to the criminal trial. He had intended to show up there and testify but failed
to do so when a replacement driver for his truck failed to appear at the. appointed
time. Nor, according to Koran, was he interviewed by a representative of the
Board about the events of July 15 prior to being subpenaed a few days before the
hearing.
ie The General Counsel appears to argue that because Anderson could not remember
these details , he was too confused to be able to identify any of his assailants I do not
believe that most people normally remember such details and I do not regard it as detract-
ing from Anderson ' s reliability as it witness that he could not remember them
11 Scott testified in Wojciecliowski ' s behalf in the criminal court proceeding but had re-
tired to Florida and was unavailable to testify in this proceeding
TIDEWATER OIL COMPANY 1 550
mere is thus presented square conflicts in the testimony as to whether one of
the assailants in the July 15 incident could have been and was Wojciechowski.
A resolution of this issue has not been easy and if this were a criminal case in which
I had to be convinced beyond ^a reasonable doubt that Wojciechowski was correctly
identified by Anderson and Farley, I would perhaps, like the jury, find Wojciechowski
not guilty. However, Respondent has unquestionably shown reasonable grounds for
its belief that Wojciechowski was a participant and in my view the General Counsel
has not established by a preponderance of the credible evidence that Wojciechowski
was not a participant. In reaching this conclusion, of course, I have relied heavily
upon the testimony of Anderson who impressed me as a mature, responsible, and
honest man, with no motive to place blame on any innocent person. Despite my
conclusion, already stated, that he was mistaken in identifying Currie as a par-
ticipant, I believe that the assailant probably resembled Currie in appearance and
that Anderson honestly believed the man to be Currie. In accepting Anderson's
identification of Wojciechowski, I am influenced not only by the fact that he had a
better and longer opportunity to observe Wojciechowski than Currie and by the
fact that Farley also identified him, but also by the even more persuasive fact that
Anderson wrote down the license number-NS 6248-of the Oldsmobile in which
the assailants were riding. This was concededly the license number of Wojciechow-
ski's Oldsmobile.
The General Counsel did not establish on the record how long it would have
taken for Wojciechowski to drive from strike headquarters on Greenpoint Avenue
to the scene of the July 15 incident, but Heaney estimated that it took about 30
minutes to drive from the Greenpoint Avenue strike headquarters by way of Clear-
view Expressway and Connor Street to the Mount Vernon plant. I do not rule
out the probability that Wojciechowski did, as he and Carupella testified, perform
roving picket duty in Wojciechowski's car in Brooklyn during the night of July 14
and 15, and return to strike headquarters early in the morning of July 15, where they
were seen by Koran and Scott, and where they checked in at strike headquarters.
Koran and Carupella could .in good faith have been mistaken as to the precise time
Wojciechowski was present near the strike headquarters. Dixon, the picket
captain, who was apparently in California at the date of the hearing, did not
testify and no records were produced to show the precise time at which Wojciechow-
ski and Carupella checked in after performing their night's tour of duty.
I find that Wojciechowski's participation in the July 15 assault upon Anderson
and Farley clearly warranted Respondent in denying him reinstatement.
c. Heaney
Heaney gave the following account of his whereabouts at the time of the July 15
incident: About 5:15 am. on July 15, he reported to the strike headquarters in
Long Island City and was assigned by Picket Captain Dixon to picket duty with
James Hearney and Edward Gurecki. They were to report at the Mount Vernon
plant for picketing and tailing trucks. While in the vinicity of strike headquarters,
Heaney saw fellow strikers James Romano and Stan Jaworski, whom Wojciechowski
had also seen, but did not see Wojciechowski or Carupella. After having a snack
in the diner across the street from strike headquarters, he left with Hearney and
'Gurecki in Hearney's black and white Ford about 5:45 or 5:50 a.m for Mount
Vernon, driving en route by way of the New England Expressway and Connor Street
and arriving at the Mount Vernon plant about 6:15 or 6.20 a in. Upon arriving
there they noticed two pickets, William Meade and Salvatore Maggio, :and 'a police
car. Heaney got out of the car and was told by the pickets that there had been
some trouble that morning and that the police had chased all but two pickets away.
A policeman then came over and asked Heaney and his companions to leave. They
did leave and, after telephoning strike headquarters from a diner about 3 minutes
away, they were assigned to follow and picket oil trucks. They performed this
duty until about 6 p.m. At no time that day did they see Anderson or Farley.
Heaney was corroborated in this account by Hearney and Gurecki, with whom
he allegedly rode, and by the pickets Meade and Maggio. I cannot say that they
or Heaney impressed me as any more truthful than Anderson and they, as fellow
strikers in pursuit of a common aim, might be said to have had more of a motive
to fabricate an alibi than did Anderson and Farley to convict an innocent man.
A resolution, however, of the question whether the General Counsel has sustained
his burden of proving by a preponderance of the evidence that Heaney did not par-
ticipate in the July 15 incident is one which I need not, and do not, resolve. The
question is unnecessary to resolve because, as I have found, Heaney's conduct in
connection with the July 8 incident was alone sufficient to warrant Respondent in
refusing to reinstate him.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The July 18 incident
Ronald A . Boehler, upon whom the assault was made, was Respondent's sole
witness with respect to this phase of the case . At the time of the incident , Boebler
had been employed about 11/2 years by Shoreway Trucking Corporation. That com-
pany both before and after the strike occurred had from time to time leased a truck
or trucks to Langer Transportation Company, one of the contract haulers used by
Tidewater. When a truck which Boehler normally drove was leased by Shoreway to
Langer, Boehler, as is part of the arrangement, continued to drive the truck but
under orders from Langer, relayed to him by Shoreway. Boehler gave the follow-
ing account of the events leading up to the July 18 incident, the incident itself,
and his identification of Joseph R. Besold as one of his assailants.
The Tidewater strikers apparently knew that Boehler occasionally used his truck
in making deliveries for Tidewater, for on one occasion during the strike and prior
to July 18 as Boehler drove past the Doremus Avenue plant, he was flagged down
by the pickets and asked whether he was delivering for Tidewater. He replied that
he was not . On another occasion during the strike and prior to July 18 when
Boehler was delivering fuel to the Public Service Company in Perth Amboy, a man
got out of a car, identified himself as a Tidewater driver, and told Boehler that
Public Service was a Tidewater account and that Tidewater drivers were on strike.
He asked Boehler to leave, stating that if Boehler was not out of there in half an
hour , he would get into trouble.
Early in the morning on July 18 , Boehler, on his way to Bayonne , New Jersey, to
pick up products not involving Tidewater, drove his large empty green trailer truck
along an overpass about 300 yards from the Doremus Avenue plant . Shortly there-
after, about 4:15 a.m ., while driving on Route 440 , he stopped for a red light.
As he started up again when the light turned green, a white Ford drove up beside
the truck, then passed, cut in front of it, and stopped about 100 feet beyond the
intersection, forcing Boehler to jam his brakes and stop . It was still dark at this
hour of the morning but the street lights as well as the lights of the truck and car
were on.
Six men were riding in the car , three in the. front seat and three in the back.
The three in the front seat got out and ran toward the truck. The driver of the
car ran to the driver's side of the truck, opened the unlocked door, yelled, "You
are one of those s.o.b.'s that have been hauling Tidewater goods; I'll kill you,"
or something to that effect , then commenced hitting Boehler on the back of his
head and on his left shoulder and arm with a hammer. The assailant also hit and
smashed the windshield of the truck on the driver 's side. In the meantime and
while Boehler was struggling to ward off the blows and take the hammer from his
assailant, another man from the car smashed the window to the right-hand door
of the truck which had been locked, opened the door, and began hitting Boehler
with some hard unidentified object. During the struggle Boehler caught a fleeting
glimpse of the third man from the car in front of the truck's radiator, apparently
doing something to it. Boehler learned later that holes had been punched in the
radiator.
Suddenly the three men ran back to the car and drove away . About that time
another car drove up and the occupant offered to assist Boehler. At Boehler's
request, the man drove him to a Langer Transportation Company terminal about
a quarter of a. mile away.
Before the car containing his assailants drove away , however, Boehler jotted down
the car's license number-a New Jersey license GIB 751-on his pickup order which
was lying on the seat of his truck. He had made a mental note of the car 's license
number as the car had pulled in front of him before stopping , but again looked at it
before writing it down as the car was leaving.
Upon arriving at the Langer terminal Boehler related to Gary Scarfo, the dis-
patcher, what had happened. Scarfo asked him if he had gotten the license number
of his assailants and Boehler thereupon gave Scarfo or someone in the terminal the
license number.18 From there Boehler was taken to a hospital where he was X-rayed,
otherwise examined, and released. After being taken to a series of places that (lay
for the purpose of giving reports on the incident and attempting to find and identify
his assailants and the car used by them, Boehler was driven to his home. He was
unable to work for 20 days thereafter. In September 1962, as a result of his injuries,
he became temporarily paralyzed on his left side and was hospitalized for 2 weeks.
18 Boehler testified that he gave the pickup order on which he had written the license
number to his "boss ," Mathew Sica. The General Counsel at the hearing did not subpena
or request the production of this pickup order and I shall assume that in his investigation
of the case he was satisfied that the pickup order in issue does exist.
TIDEWATER OIL COMPANY 1561
At the time of the hearing he was still under a doctor's care and taking medication
for headaches suffered by him almost continuously subsequent to the assault but not
before.
On the day of the incident he was taken from the hospital back to the Langer
terminal, to the Hudson County police station, to Attorney Max Mehler's office, to
the outside of the Doremus Avenue Tidewater plant, and back to Mehler's office,
probably in this sequence. But as Boehler explained at the hearing, he was "almost
in a state of shock" after the assault and was not certain whether he was taken to
the police station before or after being taken to Mehler's office. Moreover, he at
first testified that he thought it was on the morning of July 19 that he was taken to
the Doremus Avenue plant but later testified that he believed it was on the 18th.
The latter date, as it subsequently appeared from the General Counsel's witnesses, is
the correct date.
Upon being driven by his boss, Mathew Sica, from the hospital back to the Langer
terminal, Boehler was interviewed by Police Detective Pandolfo, to whom he gave
an account of the incident and supplied the license number of the car in which his
assailants were riding. From the Langer terminal, Boehler was taken to the Hudson
County police station where he was again questioned about the incident and gave a
statement to the police He was apparently then taken to the office of Max Mehler,
Respondent's New Jersey counsel. At some time that morning after the police had
checked the ownership of the white Ford bearing New Jersey license number GIB 751,
Boehler was informed that the car was registered in the name of Janet Besold, whose
husband, Joseph Besold, worked for Tidewater. Boehler received this information
either before or during his interview at Mehler's office. While in the attorney's
office and in the presence of Detective Pandolfo, Langer's vice president, Abe Langer,
and Sica, Boehler gave a statement to Mehler (used by the General Counsel in cross-
examining Boehler) about the incident. Either on this occasion or on a later visit
to Mehler's office, Boehler was shown several black and white snapshots of an un-
posed group of between 10 and 30 men and women who were at some outdoor affair.
The pictures were about 6 by 8 inches in size. Boehler was asked to look at them and
see whether he could recognize anyone in them. In one of them he pointed out a
man who he believed was the assailant whom he later identified as Besold. At the
time he looked at the snapshot, however, he did not know and was not informed of
the name of the person he had pointed out. This snapshot though subpenaed by
the General Counsel was not produced at the hearing Mr Head, Respondent's
counsel in this proceeding, explained that Respondent was unable to locate it.
Thereafter, Boehler and Sica were driven by Detective Pandolfo in a police car to
the Doremus Avenue plant for the purpose of ascertaining whether Boehler could
identify any of his assailants from among the strikers there. As they drove south-
ward down Doremus Avenue and parked on the right-hand side of the street across
from the Tidewater plant, Boehler saw a white car parked about 100 feet down the
street on the left-hand side which he believed was the car in question. When asked
by Pandolfo whether he could identify from among the strikers anyone who had
participated in the assault, Boehler stated that he believed that one of them-later
identified as Ronald Apgar-might have been there but he was not sure so would
not identify him as one of the assailants. Besold was not present. The Langer
dispatcher, Gary Scarfo, was present and called Boehler's attention to a light blue
car inside the plant grounds and asked Boehler if that was the car involved. Boehler
told him that it was not-that Boehler had already spotted a car down the street
which he believed was the car. Boehler and the police thereafter walked down the
street and found that the white car, to which Boehler had directed attention, bore
the New Jersey license number GIB 751 which Boehler had theretofore recorded on
his pickup order. It is undisputed that this was the 1960 white Ford which Besold
normally drove and it is referred to in the record as Besold's car.
On the following day Boehler was taken to the Hudson County police station
where he was requested to look at five or six men in a lineup to see if he could identify
any of them. Before going to the police station, Boehler had been told by the police
that they would have Besold there After looking at the men in the lineup, Boehler
pointed out Besold as the man who had driven the white Ford and who had attacked
him with a hammer from the right side of his truck early in the morning of July 18.
Boehler testified firmly and without hesitation regarding Besold, "I'll never forget
him"
Besold denied that he was present at or participated in the assault upon Boehler
or that his car could have been the one used in that connection. He gave the fol-
lowing account of his whereabouts on the night of July 17 and 18 and his subsequent
arrest
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the night in question he arrived for picket duty at the Doremus Avenue plant
about midnight and remained there, without leaving, until about 5.30 or 6 a in. At
his request he had been transferred to the midnight to 8 a.m. picket shift about a
week earlier because his wife was expecting their second child and needed his as-
sistance at home during the day. The baby was about 2 weeks overdue and Besold
was careful not to leave the area of the picketing because he was constantly on the
alert for a telephone call from his wife which was to be relayed to him by a striker
on telephone duty at a diner about a mile away. Because of his wife's condition he
usually left the Doremus Avenue plant about 5:30 or 6 a.m. in order to arrive home
when his wife and child normally awakened.
About that hour on July 18, Besold started up his car for the purpose of going
home, but the car stalled after he had gone only about 50 feet. After he had tried
unsuccessfully to start it again, several of the pickets helped him push it to the left
side of the road, going in a southerly direction, beyond a large road construction sign.
Besold then borrowed the car belonging to striker Jerry O'Pray, the union delegate,
and went home. He had been having ignition trouble for about a month prior
thereto and it had been necessary, at least at times, to keep his gas pedal depressed
in order to prevent the motor from stalling. The pulling of the car's choke could
also have prevented such stalling, he testified.
Besold drove back to the plant about 7 p.m. that day for the purpose of return-
ing O'Pray's car to him. At that time he learned from fellow striker Anthony Tulli
that his car had been towed away by a wrecking company, apparently at the direc-
tion of police. After driving with Tulli to the Newark police station to inquire about
Besold's car and being told to inquire on the following day at the Seventh Detective
Squad, Besold and Tulli returned to the Doremus plant about 9.30 p in and spent
most of the night sleeping in Tulli's car 19 The next morning they learned from the
Seventh Detective Squad where the car had been impounded and obtained a release
for it. At the same time Besold was requested to report to the Hudson County
police station and talk to Detective Pandolfo there
Before reporting to the police station Besold and Tulli located Besold's car,
worked on it a little, got it started, and drove it to an Esso station where they left
it temporarily.
At the police station Detective Pandolfo placed them in a lineup with four other
men who had been lounging around the police station, then walked through the room
with three more men, one of whom was Boehler 20 Seconds later Pandolfo returned,
announced to Besold that he had been identified by Boehler as one of the assailants
who had beaten him up, and told Besold that he was under arrest. Boehler then ap-
proached and told Besold that he had had his fun the night before and that now
it was time for Boehler to have his fun
Besold was thereafter indicted by a grand jury but he had not been tried at the
time of the hearing in this proceeding.
Five of Besold's fellow strikers, Tulli, Apgar, Cluney, Moore, and Lucchesi, who
were on picket duty at the Doremus Avenue plant on the night of July 17 to 18,
testified in his behalf. Three of these, Tulli, Cluney, and Moore, had the respon-
sibility of assisting Union Delegate O'Pray in making up strike assignments each
night. Five other strikes who were on duty at the time refused to testify in Besold's
behalf, according to Besold, either because they were not present during the entire
night shift or because "they didn't want to get involved " 21 In addition to these five,
Union Delegate O'Pray-whose car Besold had borrowed and who was placed by
Apgar and Cluney as leaving the picket area about 4 a.m either for telephone duty
or to get coffee-also did not testify. Cluney testified that he did not see O'Pray
leave and did not know who went with him and that he believed O'Pray was gone
for 20 or 30 minutes
10 According to Tulli, however, he did not arrive at the plant until about midnight on
July 18.
20 Resold testified that one of the men in the lineup wore a holster and that all except
himself and Tulli were clean-shaven and wore white shirts and ties, whereas he and Tulli
were unshaven, dirty, and otherwise unpresentable Besold had borrowed a fresh green
shirt from one of the strikers that morning but the clothes both he and Tulli were wearing
were either Tidewater uniforms or the same color worn by Tidewater employees
21 Besold named the following five pickets who refuted to appear in his behalf John
Zakatansky , Robert Fidwaids, who was at the picket site only from midnight to about
2 15 a in ; Jack Kuhn, a union official ; and Robert Alteri and Fred Schendick, both of
whom were assigned to telephone duty at the diner that night, went to and from the diner
and picket area, and could not verify where they or Besold were at any particular time
that night
TIDEWATER OIL COMPANY 1563
Each of Besold's alibi witnesses vouched for the fact that Besold was present in
the Doremus Avenue plant picketing area from midnight to about 5.30 or 6 a.m. on
July 18.22 However, as Besold himself concedes, some of the strikers and their
cars came and went during the night. Accordingly, even if Besold's supporting wit-
nesses or some of them in good faith believed that Besold and his car remained in
the plant area between the hours of 12 midnight and about 5.30 a m. (a premise
which I am not inclined to accept), I am convinced that it would have been possible
for him to have left long enough to have participated in the assault upon Boehler
and to have returned without his absence having necessarily been noted by all the
pickets.
The principal reason assigned by most of these witnesses for believing that Besold
had not left the picketing area during the period in question is that all knew of
his wife's condition and of his concern about being immediately available to leave
should a telephone message for him arrive The overdue baby situation (it was not
actually born until August 4), however, did not deter Besold from leaving his home,
about 31 miles from the plant, about 6 p.m. that day to return Union Delegate
O'Pray's car, though Besold was not due for picket duty until midnight. Nor did
Besold's concern for his wife deter him from leaving the picketing area that evening
for the purpose of tracking down his impounded car. I am not persuaded that the
alleged immediacy of arrival of his second child in fact deterred him from joining
others in the assault upon Boehler.
The manner in which Besold abandoned his car when it was stalled suggests that
this may have happened so early in the morning that it was still too dark for Besold
or his mechanic friend, Moore, to see how to fix it-that is, at about 4.30 or 4:45
a.m., as Lucchesi's testimony at one point indicated-or that Besold was uneasy
about being apprehended and in such a hurry to get away that he did not want to
take the time then to tinker with his car or obtain Moore's assistance in getting it
started I also do not rule out the possibility suggested by Respondent that Besold
may have contrived the car-stalling incident in order to call the attention of his
fellow strikers to the fact that he was present in the picketing area at that time. I
find it significant that on the following day when he located his car at the wrecking
company premises, he got it started after working on it for only a few minutes and
that after his arrest he gave his friend Tulli the key to his car and that Tull] drove
the car from the Esso station where it had been left without any trouble in starting it.
The General Counsel attacks the credibility of Boehler, pointing to some apparent
inconsistencies or contradictions in his testimony and in prior statements given by him
to Respondent or to a Board representative. But these related to minor matters
about which Boehler appeared uncertain at the hearing-such as a description of the
clothing Besold and others were wearing in the lineup and the sequence in which he
was taken to various places while almost in a state of shock on the morning of July 18.
It was almost a year following the incident when Boehler testified in this proceeding
and I do not regard such minor lapses or inaccuracies in his recollection as reflecting
upon his credibility in regard to the crucial facts
In a further attack upon Boehlei's testimony, the General Counsel contends that
Boehler on July 18 at first pointed to a light blue car inside the Doremus Avenue
plant yard as perhaps being the car involved in the incident and changed his mind
only when Scarfo pointed to a white car down the street as being the one involved.
In this connection, I note that the General Counsel's own witnesses on this point,
Tulle and Apgar, contradicted each other as to what Boehler allegedly said I credit
Boehler's testimony that it was not he, but Scarfo, who pointed to the blue car and
that it was Boehler who then pointed out the white car down the street as being the
one involved As noted, supra, Boehler had already spotted the white car while
still in the police car but had not yet had the opportunity to -identify it by checking
the license number. Even if the identification incident, however, had occurred as
Tulli or Apgar testified, I would not regard this as of any particular significance, for
Boehler did obtain the license number of the car in which his assailants rode and
the white car down the street did bear that license number and was the car registered
in Besold's wife's name and used by Besold. The General Counsel also suggests
that Boehler could not have seen the white car from the place where he was standing
when he allegedly pointed to it. The testimony of the General Counsel's own wit-
nesses was conflicting on the point and I am convinced that Boehler could and did
as One of these witnesses, Lucchesi, at first testified on cross-examination that Besold
backed lies car out preparatory to leaving about 4 30 or 4 45 am but that after the car
stalled Besold stayed around 30 or 45 minutes before going home in O'Pray's car On
rednect examination, however, he placed the car stalling incident about 5,15 a in
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
see it from that point, but that in any event, as he testified, he had already spotted it
as the police car in which he was riding approached the plant and parked on the
opposite side of the street from that on which the white car was parked.
In appraising the reliability of Behler's testimony, I have also considered his al-
leged identification of Besold in one of the snapshots shown Boehler in Attorney
Mehler's office. Since Respondent was unable to locate this picture and it was not
produced at the hearing, I shall not rely upon the testimony regarding it as evidence
that Besold was identified from the photograph. Besold testified that Respondent
has another employee, George Gerden, who resembles Besold and that he himself
had not gone to any outdoors affair while working for Respondent. This may sug-
gest that it was Gerden, not Besold, who appeared in the group picture and that Re-
spondent was unable to locate the snapshot because it was looking for a picture of
Besold, not Gerden. But even if I were to assume that Boehler identified someone
other than Besold in the snapshot, this would not cause me to regard as unreliable
Boehler's testimony that he identified Besold when seeing him in person the next day.
I am convinced from Behler's demeanor on the witness stand that he was a
conscientious and cautious person, careful not to involve anyone in the controversy
unless he was sure of the person's identity. The firmness with which he testified
in identifying Besold as the man who assaulted him with the hammer persuades me
that he had not the slightest doubt on this score. But equally, or even more per-
suasive, is the fact that Boehler obtained the license number of his assailant's car
and that this license number was traced to Besold. I find that Respondent has shown
reasonable grounds for believing that Besold committed the assault charged to him
and that the General Counsel has not established by a preponderance of the credible
evidence that Besold did not engage in such misconduct. I therefore find that
Respondent was warranted in refusing to reinstate him upon the termination of the
strike.
IV. THE REMEDY
Having found that Respondent has violated Section 8(a) (3) and (1) of the Act,
my Recommended Order will require the Respondent to cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Although I have found, upon a preponderance of the evidence, that Currie
while on strike did not engage in the misconduct attributed to him by Respondent,
I have no doubt that Respondent in good faith believed he had done so and that it
denied him reinstatement upon the termination of the strike because of this good-
faith belief and not because of any specific intent to discourage its employees' union
membership or otherwise interfere with their right to engage in protected union or
concerted activities. Nevertheless, Respondent's conduct constituted discrimination
which inherently discourages employees in their right to join unions and engage in
lawful strike activities. To remedy this wrong done to Currie and thereby reassure
its employees of their right to engage in protected strike activities without fear of
loss of their jobs for doing so, Respondent will be required to offer reinstatement
to Currie and make him whole for any loss of earnings he may have suffered, by
payment to him of a sum of money equal to that which he would have earned
between September 22, 1962, and the date he is offered reinstatement less his net
earnings during said period. The backpay provided for herein shall be computed
in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB
289, with interest at the rate of 6 percent per annum as provided in Isis Plumbing
& Heating Co., 138 NLRB 716.
Respondent has no unfair labor practice background and its sole unfair labor
practice, as found herein, was the result of its mistaken identity of employee Currie
as one of the assailants in the July 15 incident. More than a year has elapsed since
the strike was terminated and Respondent and the Union have resumed their con-
tractual relationship. In these circumstances, I do not believe that any useful
purpose would be served in requiring Respondent to post a notice. I therefore
recommend that Respondent not be required to post notices.
CONCLUSIONS OF LAW
1. Respondent, by denying reinstatement to Robert Currie on and after Septem-
ber 22, 1962, discriminated against him, and interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed under Section 7 of the Act,
within the meaning of Section 8(a)(3) and (1) of the Act.
2. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2(6) and (7) of the Act.
DOBBS HOUSES, INC. 1565
RECOMMENDED ORDER
Tidewater Oil Company, its officers, agents , successors , and -assigns , shall:
1. Cease and desist from discouraging membership in United Petroleum Workers,
Independent, or any other labor organization , by discriminatorily denying reinstate-
ment to any employee because he has engaged in a protected strike or other con-
certed activity.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer to Robert Currie immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to his seniority or other rights
and privileges , and make him whole in the manner set forth in the section entitled
"The Remedy" for any loss of earnings suffered by reason of the discrimination
against him.
(b) Preserve and, upon request , make available to the Board and its agents,
for examination and copying , all payroll records, social security payment records,
timecards , personnel records and reports, and all other records necessary and per-
tinent to compute the amount of backpay and to ascertain the right to reinstatement.
(c) Notify the Regional Director for the Second Region , in writing , within 20
days from the receipt of this Decision , what steps Respondent has taken to comply
herewith.23
23 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
Dobbs Houses, Inc. and Hotel and Restaurant Employees and
Bartenders International Union , AFL-CIO, Local 151. Case
No. 10-CA-5276. February 7, 1964
DECISION AND ORDER
On November 12, 1963, Trial Examiner John P. von Rohr issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Decision. Thereafter, the
Charging Party filed exceptions to the Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
145 NLRB No. 155.