Borman's, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1972

199 N.L.R.B. 1250 (N.L.R.B. 1972)

1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borman 's, Inc . and International Union, United Plant
Guard Workers of America (UPGWA) and its Amal-
gamated Local 114, United Plant Guard Workers of
America . Case 7-CA-8919
October 31, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
KENNEDY
On May 11, 1972, Administrative Law Judge'
Robert Cohn issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed an
answer to Respondent's exceptions, and cross-excep-
tions with a supporting brief. Respondent filed a brief
in answer to the General Counsel's cross-exceptions
and a request to reopen the record?
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
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith.
The sole issue presented here is whether, during
the course of the strike, striking employees Donald
Ales and Gene Valentino engaged in the kind of con-
duct which is sufficient in fact and law to deprive
them of their rights to reinstatement, backpay, or any
other rights secured to them under the Act, once the
strike has ended. The Administrative Law Judge con-
cluded that "the degree of any misconduct engaged in
by the two men was not so egregious as to deprive
them of the protection afforded by the Act ...." We
disagree.
The record shows that at 4 o'clock in the morning
of August 11, 1971, when all was calm, there being no
scuffling or commotion or "exuberant" activity of any
kind occurring at the gate to Borman's, Inc., striking
employees Ales and Valentino deliberately inserted
22 nails, points up, in an expansion crack in the road-
way leading to the gate. They were caught in the act
by Respondent's security supervisor and subsequent-
ly prosecuted in local courts, found guilty, and fined
for their conduct.
At 6 o'clock in the morning of August 17, a truck-
driver not employed by Borman's was entering the
plant gate. Striking employee Ales deliberately pulled
the pin connecting the truck to the trailer. The intend-
ed result occurred-the tractor and the trailer separat-
ed, and a tow truck had to be found to pick up the
trailer.
Borman's, Inc., thought this kind of conduct by
Ales and Valentino made them unworthy of reem-
ployment, once the strike had ended. As indicated
above, so do we. There is nothing in the record to
show that these acts were precipitated by any unfair
labor practice on Respondent's part, or by an emo-
tional encounter at the picket line. It shows, instead,
that they were deliberately performed. We conclude
that the foregoing misconduct in which Ales and Val-
entino engaged was sufficiently serious to warrant the
Employer's denying them reinstatement.
Accordingly, we hereby overrule the Administra-
tive Law Judge's Conclusion of Law 3, and we shall
order the dismissal of the complaint insofar as it re-
lates to Borman's refusal to reinstate Ales and Valen-
tino.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and hereby is, dismissed insofar as it relates to
Borman's, Inc.'s, refusal to reinstate employees Don-
ald Ales and Gene Valentino.
The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 In view of our disposition of the issue raised herein , we find it unneces-
sary to reopen the record Accordingly, we deny the Respondent's request
to reopen the record
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASEI
ROBERT COHN, Trial Examiner: This case was heard at
Detroit, Michigan, on January 31 and February 1, 1972,
pursuant to a complaint dated November ^ 19, 1971, based on
an original charge dated August 30, 1971, as amended on
November 19, 1971.'
The complaint alleged that Bormans, Inc. (herein the
Respondent or Company) had engaged in certain specified
acts and conduct in violation of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act, as amended (herein
the Act). However, prior to the hearing herein, all parties
entered into a "Settlement Stipulation" in which all issues
in the case were compromised and resolved except for the
alleged failure and refusal of Respondent to reinstate two
striking employees, in asserted violation of Section 8(a)(3)
and (1) of the Act.2 That issue was left for resolution by the
Trial Examiner after a hearing, Respondent contending that
the two employees were lawfully refused reinstatement be-
cause of their alleged misconduct on the picket line.
i All dates hereinafter refer to the calendar year 1971, unless otherwise
indicated.
2 G.C. Exh . 2. It was agreed that 15 employees who participated in the
stoke were entitled to reinstatement and backpay
199 NLRB No. 177
BORMANS, INC. 1251
At the close of the hearing, counsel for the General
Counsel and counsel for the Respondent presented oral
argument on the record; a postheanng brief with proposed
findings of fact and conclusions of law has been received
from the Respondent, all of which has been carefully con-
sidered.
Upon the entire record, including my observation of
the demeanor of the witnesses,3 I make the following:
FINDINGS OF FACT
I COMMERCE
The Respondent is, and has been at all times material,
a corporation duly organized under, and existing by virtue
of, the laws of the State of Delaware. It has maintained its
principal office and place of business in the city of Detroit
where it is engaged in the business of operating supermar-
kets for the retail sale and distribution of groceries, meats,
produce, etc. In the course and conduct and its business
operations, Respondent annually sells goods valued in ex-
cess of $500,000, and purchases goods valued in excess of
$50,000, which goods are sent directly from points outside
the State of Michigan to Respondent's various places of
business located in the State of Michigan.
I find, based on the foregoing facts as stipulated by the
Respondent (G.C. Exh. 2), that the Respondent is, and has
been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II THE LABOR ORGANIZATIONS INVOLVED
The Charging Unions are, and have been at all times
material, labor organizations within the meaning of Section
2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
As above-indicated, the sole issue to be decided in this
proceeding is whether two of Respondent's striking employ-
ees (Donald Ales and Gene Valentino) engaged in miscon-
duct sufficient in fact and law to deprive them of their rights
to reinstatement and/or backpay, or any other rights se-
cured to them under the Act. There are three alleged inci-
dents involved, all of which occurred on the picket line at
the Respondent's Borman Avenue facility. One incident
happened on August 11; the others on August 17 .1
had been stooping and discovered that nails had been
placed in an expansion crack in the roadway with their
points up. He removed the nails, approximately 22 in num-
ber, and remarked to the individuals nearby that they were
acting like a couple of kids. They made no reply.'
The area was lit by floodlights since Borman's property
is adjacent to Detroit's Public Works Department, and Allen
then recognized the men involved as Ales and Valentino .6
Allen entered the Respondent's facility, telephoned the De-
troit police department, and a few minutes later two
uniformed officers of that department arrived on the scene.
Allen reported to the officers what had occurred and they,
in turn, issued tickets to the picketers for violating a city
ordinance which prohibited placing nails in a roadway with
the points up. Both Ales and Valentino were subsequently
prosecuted in local courts and found guilty of the offense
(which is a misdemeanor) and fined $50 or 7 days in jail .7
B. The August 17 Incidents
It appears that at all times material, Respondent had
a collective-bargaining agreement with a local of the Team-
sters Union covering the drivers employed by the Respon-
dent. A Teamsters shop steward, Samuel Patrona, who was
employed by the Respondent at the time of the incidents
(but was no longer employed by Respondent at the time of
the hearing), testified that he had been assigned to the gate
at the Borman Avenue facility for the purpose of telling
truckdnvers of other employers doing business with Re-
spondent that the Teamsters Union was not honoring the
picket line of the security guards. Shortly before 6 a.m. the
strikers had stopped a truck destined for Respondent and
the driver was returning to a telephone booth, apparently to
seek instructions from his employer. Patrona followed the
driver to the telephone booth, identified himself, and ad-
vised the driver that the Teamsters was not honoring the
strike. Whereupon, the driver apparently agreed to enter the
premises of Respondent. Patrona then went back inside the
entrance to Respondent's premises and as the driver was
coming in, Patrona testified that he saw Ales pull. the pin
which connected the truck to the trailer, the result of which
the trailer and the truck became disengaged. Patrona fur-
ther testified that, at that point, he saw Ales driving away
in a station wagon. Patrona then told one of the garage men
of Respondent to bring a tow truck out to pick up the trailer.
About this time another truck approached the
Respondent's gate, and Patrona sought to advise that driver
that the Teamsters was not honoring the strike. In so doing,
he apparently came into contact with picketer Valentino
who was asking the driver whether he intended to cross the
A. The August 11 Incident
At approximately 4 a.m. on August 11, Carl Allen, one
of Respondent's security supervisors, was traveling west on
Borman Avenue toward the Respondent's facility when
he noticed two individuals stooping down in the roadway
approximately 6 feet outside of the Company's gate. He
stopped, got out of his car, and went over to where the men
s The two individuals involved were striking employees Ales and Valenti-
no They testified that Allen mumbled something to himself which was
incomprehensible and not directed to them.
6 He, of course , knew them prior to the strike since they worked under his
supervision
The foregoing findings are based on the testimony of Allen, who im-
pressed me as a candid and forthright witness Ales and Valentino denied the
matters attributed to them, but there is nothing in the record to imply or
substantiate any contention that Allen harbored any resentment towards
these two particular individuals that would impel him to fabricate the story
I find unpersuasive the implication in the record that the nails could have
3 Cf. Bishop & Malco, Inc, d/b/a Walker's, 159 NLRB 1159, 1161. fallen off of garbage trucks entering the adjacent disposal facility Also, the
4 The strike , which apparently involved only the Respondent's security two men did not appear very surprised or shocked when advised by the police
guards, commenced on June 10 and ended August 23 officers of the nature of the offense with which they were charged.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picket line. According to Patrona's testimony, Valentino at
that point grabbed him by the neck and held him briefly
before letting him go. Patrona then went into the
Respondent's compound and reported the incident to one
of the security guards. Subsequently, the Detroit police de-
partment came out and investigated the incidents; however,
no prosecution resulted from either of the above inci-
dents.8
Analysis and Concluding Findings
The above findings indicate that Ales and Valentino
did engage in a quantum of what may be termed "miscon-
duct" while picketing at the Respondent's Borman Avenue
facility on August 1-1 and 17 .9 However, it is settled that
"not every impropriety committed during [Section 7] activi-
ty places the employee beyond the protective shield of the
Act. The employee's right to engage in concerted activity
may permit some leeway for impulsive behavior, which
must be balanced against the employer's right to maintain
order and respect."' In view of this "leeway" permitted by
law for some abusive and intemperate behavior on the part
of strikers," it seems impossible to delineate any precise
standards of conduct; rather, each case must stand upon its
own footing.
After a consideration of the cases cited in Respondent's
brief, in addition to my own independent investigation, I
have reached the conclusion that the misconduct of the two
men involved here is not of such a character, or of such a
widespread nature , as to deprive them of the protections
secured to them by the Act. Thus, the acts of the men, while
certainly not to be condoned, were isolated events in a strike
lasting over 2 months, and were not-as far as the record
shows-any part of a pattern of abusive, violent, or destruc-
8 My findings of the facts regarding the above incidents are based , essen-
tially, on Patrona 's testimony which impressed me as being a sincere and
forthright revelation of the events , as opposed to that of Valentino Also, as
above-noted , Patrona was not in the employ of Respondent at the time of
the hearing and thus could not be held to have as direct an interest in the
outcome of the proceedings as Valentino.
Ales denied engaging in the misconduct attributed to him, contending
that he was not present at the Borman Avenue facility at that particular time
but rather at the Respondent's Mark Twain facility as shown by the sign-in
sheet (G.C. Exh . 4), which shows Ales as being present at that facility from
6 a.m. to 8.30 a in. However , the sign-in sheet for the Borman Avenue facility
covering the dates in question showed Ales as having been present at that
facility from 3 a in. to 10 a.m on a date which originally appears as "8-17-
71" but where the "seven" in the date " 17" appears to be marked over into
an "8 " Under all circumstances, I find that Ales "pulled the pin" on the
tractor-trailer even though I am aware of Patrona 's prehearing statement
given to the Company (G.C. Exh 3) in which he failed to identify the person
who "pulled the pin ." I note, however, that he was apparently not specifically
asked to make such identification in the statement; i.e, he did not deny that
he knew the picketer who engaged in the conduct in question
9 It should be stated , however, in order to avoid any ambiguity , that I only
find misconduct with respect to the nail placing incident and the "pulling of
the pin" incident. I am not convinced that there was not some provocation
on Patrona's part sufficient to warrant some response in kind by Valentino
Moreover , I note that no prosecution resulted from the incident According-
ly, I find that there was not a preponderance of the evidence to sustain the
contention that Valentino engaged in misconduct as respects that incident
10 N LR.B v. Thor Power Tool Company, 351 F 2d 584, 587 (C.A. 7), cited
with approval in N.LR B v Hartmann Luggage Company, 453 F.2d 178,
(CA 6)
i 1 This was characterized as "animal exuberance" by Justice Frankfurter
in Milk Wagon Drivers Union v Meadowmoor Dairies, 312 U.S. 287, 293.
tive conduct on their part. Nor did any personal or property
damage result from the incidents, although such was clearly
a possibility. However, the cases seem to require more in
order to abrogate the protection which the Act accords to
striking employees.
The Respondent relies heavily on two cases in the Sixth
Circuit 12 (where, it asserts, cases arising in the NLRB's
Region 7 are appealed) in support of its contention. Howev-
er, it appears that in both cases the court reversed a Board
finding, and Trial Examiners have been admonished to fol-
low Board policy and precedent rather than that of a circuit
court which has expressed disagreement with the views of
the Board until the Supreme Court of the United States has
ruled otherwise.13 In any event, it appears that in both cases
the individuals involved engaged in much more widespread
and reprehensible conduct than the two men here involved.
I reach the same conclusion with respect to the two Board
cases cited by Respondent in its brief: Kaiser-Roth Hosiery
Company, 187 NLRB No. 76, and Alkahn Silk Label Compa-
ny, 193 NLRB No. 29. Nor does the conduct complained of
here approach that of some of the individuals involved in
Kansas Milling Company," where the Board said:
Although we have not in the past condoned, and do not
now condone, the use of abusive and intemperate lan-
guage or any other act of violence on the picket line or
elsewhere in the course of a strike, we think that the
acts the Respondent complains of are clearly not of
such a character as to render these employees unsuita-
ble for reemployment.
Lastly, Respondent contends that the General Counsel
failed to prove the necessary antiunion motivation on the
part of the Company in order to establish a violation of the
Act. However, in view of the posture in which this case
reaches me, it would seem that the parties agreed under the
aforesaid "Settlement Stipulation" that the General Coun-
sel would have no such burden. That is to say, the "Settle-
ment Stipulation" recites Respondent's contention that Ales
and Valentino engaged in "sufficient strike misconduct dur-
ing the course of the strike . . . so as to preclude their
reemployability, also asserting that by virtue of said miscon-
duct, it is not obligated to offer them reinstatement and to
render backpay. Counsel for the General Counsel and the
Charging Party assert the contrary. But for this allegation,
the Respondent agrees Ales and Valentino would be enti-
tled to an offer of reinstatement and backpay from it." (Par.
6.) As I have found that the degree of any misconduct
engaged in by the two men was not so egregious as to
deprive them of the protection afforded by the Act, it fol-
lows that they would be entitled to an offer of reinstatement
and backpay under the terms of the settlement stipulation,
without more. Accordingly, I reject this argument of Re-
spondent.ts
i2 Kaiser-Roth Hosiery Company, Inc v. N L.R.B., 447 F 2d 396, and N L
R.B v Hartmann Luggage Company, supra
i3 See e g., Iowa Beef Packers, Inc, 144 NLRB 615, 616, and cases cited.
14 86 NLRB 925, affd. on this point 185 F.2d 413 (C.A. 10)
15 For the reasons set forth above, I find it unnecessary to make a finding
on the issue of proof of motivation in these circumstances However I have
serious doubts whether such proof is required in the circumstances of this
case in any event since, as the Supreme Court held in N L R B v. Burn up and
Sims, Inc, 379 U S 21, 23• "Defeat of those [Section 7] rights by employer
action does not necessarily depend on the existence of an antiunion bias.
Over and again the Board has ruled that Section 8(a)(l) is violated if an
BORMANS, INC.
Upon the foregoing findings of fact, and upon the en-
tire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Unions are labor organizations within
the meaning of Section 2(5) of the Act.
3. By failing and refusing to reinstate Donald Ales and
Gene Valentino to their former or substantially equivalent
positions of employment , following their unconditional ap-
plication therefor subsequent to a lawful strike, Respondent
has interfered with , restrained , and coerced employees in
employee is discharged for misconduct arising out of a protected activity,
despite the employer's good faith , when it is shown that the misconduct never
occurred." While the circumstances of this case indicate that some miscon-
duct occurred , it was not sufficient to deprive the employees of the protection
of the statute . Thus it would seem to follow that Respondent's failure and
refusal to reinstate them upon proper application would constitute a violation
of Sec. 8(axl) irrespective of proof of antiunion motivation.
1253
the exercise of rights guaranteed in Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
RECOMMENDED ORDER
In the aforesaid "Settlement Stipulation," the parties
agreed "that at the hearing heretofore scheduled under the
complaint and notice of hearing in this matter, a Trial Ex-
aminer of the Board shall hear evidence solely on the ques-
tion of whether Donald Ales and Gene Valentino are
entitled to an offer of reinstatement and backpay from Re-
spondent. It is further agreed that following the close of the
afore-descnbed hearing, after presentation of all evidence
by the parties, including oral arguments, the Trial Examiner
shall, in due course, issue a written decision and order,
ruling on the aforesaid question."
As above-indicated, I have ruled affirmatively on the
issue presented to me. Accordingly, my recommended Or-
der is that the names of Donald Ales and Gene Valentino
be included in the group of 15 striking employees enumerat-
ed in paragraphs 1(d) and 2(b) of the Order provided in the
"Settlement Stipulation."