Calmat Co.

National Labor Relations Board - Board Decisions

Aug 20, 1998

326 N.L.R.B. 130 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 130
CalMat Company and Building Material Construc-
tion, Industrial Professional and Technical
Teamsters, Local Union #36, affiliated with the
International Brotherhood of Teamsters, AFL–
CIO. Case 21–CA–31793
August 20, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On February 11, 1998, Administrative Law Judge Ge-
rald A. Wacknov issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief and
the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions2 and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

David Mori, Esq., for the General Counsel.
James Zapp, Esq. and Mark Budensiek, Esq., (Paul, Hastings,
Janofsky & Walker), of Los Angeles, California, for the Re-
spondent.
C. A. Stillwagen, Business Representative, of San Diego, Cali-
fornia, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in San
Diego, California, on December 15 and 16, 1997. The charge
was filed on January 7, 1997, by Building Material Construc-
tion, Industrial Professional and Technical Teamsters, Local
Union #36, affiliated with the International Brotherhood of
Teamsters AFL–CIO (the Union) and an amended charge was
filed by the Union on January 23, 1997. On July 16, 1997, the
Regional Director for Region 21 of the National Labor Rela-
tions Board (the Board) issued a complaint and notice of hear-
ing alleging violations by CalMat Company (the Respondent)
of Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act). The Respondent, in its answer to the complaint,
denies that it has violated the Act as alleged.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In adopting the judge’s conclusion that the Respondent did not vio-
late Sec. 8(a)(3) and (1) by refusing to reinstate striking employee
Rodney Andrews, we find it unnecessary to rely on the judge’s assump-
tions about the truck driver’s perceptions during the events at issue.
The parties were afforded a full opportunity to be heard, to
call, examine and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel) and counsel for the Respondent. On the entire
record, and based on my observation of the witnesses and con-
sideration of the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the processing
and sale of rock and gravel and related products with its princi-
pal place of business located in San Diego, California. In the
course and conduct of its business operations the Respondent
annually purchases and receives at its San Diego facility goods
or services valued in excess of $50,000 directly from points
outside the State of California. It is admitted and I find that the
Respondent is engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(2), (6) ,and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are whether the
Respondent has violated Section 8(a)(3) and (1) of the Act by
discharging one employee and by taking other disciplinary
action against another retired employee because of conduct
they engaged in during the course of an economic strike and
picketing at the Respondent’s premises.
B. The Facts
Robert Germann is the Union’s shop steward and was picket
captain during the economic strike and picketing which oc-
curred from approximately January 3 to 19, 1997,1 at the Re-
spondent’s premises. The picketing took place on a public
thoroughfare adjoining the driveway to the Respondent’s prem-
ises, from which large cement trucks and other similar vehicles
would enter and leave the facility. The pickets would walk
back and forth on this public road, crossing the Respondent’s
driveway directly in the path of the traffic entering and leaving
the Respondent’s plant.
The Respondent had employed the services of a private secu-
rity firm to monitor the situation at the picketing site, and Ger-
mann testified that as picket captain he and his counterpart,
Steve Harrington, the supervisor and liaison for the security
firm, agreed on certain ground rules pertaining to the safety of
the Respondent’s property and all individuals in or around the
picketing site. In addition, city police officers frequently moni-
tored the site, and the officers made it clear to representatives
of both the Union and the Respondent that the police would not
tolerate any “shenanigans” from either side, and would be
quick to make an example of anybody who engaged in any type
of unsafe or improper conduct.
1 All dates or time periods are within 1997 unless otherwise indi-
cated.
326 NLRB No. 21
CALMAT CO. 131
It was understood that the pickets were not to set foot on the
Respondent’s driveway or otherwise cross the Respondent’s
imaginary property line; however, as trucks approached or ex-
ited from the driveway, Harrington and his security guards
were permitted to walk from the Respondent’s property into the
public street where the pickets were located for the purpose of
clearing a path for trucks proceeding through the picket line.
Since trucks were entering and leaving the Respondent’s prem-
ises almost continually, Harrington and his fellow security offi-
cers were engaged in this endeavor on nearly a full-time basis.
The purpose of this “traffic control” was twofold: first, to clear
a pathway through the picket line by interrupting the flow of
the picketing across the pathway of the vehicles, and second, to
insure the safety of the pickets, truck drivers, or anyone else in
or around the property. Thus, as videos of each truck entering
and exiting the premises demonstrated,2 the pickets would, in
effect, form a wall or barrier in front of each entering or exiting
truck in order to stop it or slow it down as much as possible,
and this wall of pickets would remain stationary until Harring-
ton and his fellow security guards would approach the picket
line, position themselves about a truck’s width apart, and, as the
pickets moved to either side, signal the truck to proceed
through the picket line. Additionally, when trucks exited from
the driveway, Harrington and other security guards would as-
sume positions as front and side escorts and “walk” the truck
through the picket line as it moved at idle speed.3
Germann testified that on January 10, he happened to be
away from the picket line for about 15 minutes and on his re-
turn he was advised that one of the pickets, Rodney Andrews,
had been hit by a truck as it was exiting the premises. Germann
approached Harrington to ask him what had happened, and
Harrington told him, “the [picket] wouldn’t stop, he wasn’t
following my directions and I had to pull him out of the way [of
the truck], and when I pulled him out of the way he didn’t un-
derstand that and he got mad, and then I let him go and he
jumped on the truck and I had to pull him down again.”
Rodney Andrews was employed by the Respondent as a
mixer driver from June 14, 1995, until February 7, 1997, when
he was discharged for the foregoing alleged strike misconduct.
Andrews testified that while he was picketing on January 10, he
was grazed by a cab-over tractor hauling a 45-foot-long trailer
as it exited the premises. Andrews gave the following account
of the incident. The driver of the truck “paused for a second” at
the stop sign located on the Respondent’s premises, about 15
feet from the end of the driveway, and then, pursuant to the
hand signal of the security guard, continued to proceed slowly,
at about 3 miles per hour, toward the picket line. Andrews
testified that he had not yet walked in front of the truck when
he saw it approaching. He increased his pace so as to inten-
tionally walk in the path of the truck “to slow the truck down,”
as the pickets had been instructed by Shop Steward/Picket Cap-
tain Germann that, “we can slow the truck down as far as pro-
duction.” However, all of the other pickets had stopped in or-

2 The security firm had a video camera set up on a tripod on the Re-
spondent’s premises, and videotaped each entering and exiting truck, as
well as other picket line activity.
3 As depicted on the videotape, the pickets would move laterally to
each side of the truck, stop within inches of the sides of the truck, hold
up their picket signs and yell obscenities and other epithets, and blow
whistles at the truck driver while the truck proceeded slowly through
the gauntlet.
der to clear a path for the truck which Harrington had waived
on through.4
Andrews said that the reason he continued walking across
the path of the truck is because he observed Harrington signal-
ing the driver to stop. However, the driver did not stop, and
just as Andrews was about to clear the far side of the truck its
bumper “rubbed against” his right leg and, as he turned to the
right, hit his left knee. Andrews explained that he was unable
to jump out of the way because his knee was “just numbed up,”
and to protect himself he turned his back to the front of the
truck and leaned against the grill as he shuffled his feet forward
to prevent himself from falling while the truck continued push-
ing him forward at idle speed (variously estimated by witnesses
to be approximately 1 to 3 miles per hour) about 10 or 15 feet.
He heard Harrington yelling for the truck driver to stop, but the
truck did not stop. Then Harrington grabbed Andrews, pulling
him from in front of the truck toward the side, and then releas-
ing him. Andrews became very upset, believing that the truck
driver had intentionally tried to hit him and, still holding his
picket sign, hit the driver’s side window with it while he simul-
taneously grabbed the driver’s side door handle of the truck
with his free hand, opening the door and pulling himself up on
the running board. At this point Harrington pulled him down
from the truck.5 Then the truck, which had come to a stop dur-
ing this brief interlude, continued across the intersection.
Thereupon, Andrews evaded Harrington’s grasp and, as he
testified, “broke for the truck again.” He ran after it and again
jumped on the running board, grabbing the side mirror. He was
again pulled from the truck.6
Then, according to Andrews, a police officer came over and
“hit me with some keys.” Andrews exclaimed that the truck
had hit him, and the police officer said that Andrews was let-
ting his emotions get in the way. He was instructed to sit in the
back of the police car to “cool off” for awhile. After about 15
minutes he was released by the police officers. He then pre-
pared and signed a handwritten account of the incident, appar-
ently for his own purposes, which states, inter alia, as follows:7

I was picketing walking across [the] street at [the] back
gate of Calmat. Then when one of the Corona Transport
[trucks] approached the back gate he did not stop at [the]
stop sign. The security [guards] jumped in front and sides
of [the] truck to keep people from stopping [the] truck.
But we are allowed to walk across [the] walk way to
picket. And as I was walking across the driver didn’t
slow up or stop when security was yelling at him, so I
turned my back and started running forward while security
[was] telling this guy to stop, and then I turned to get out
[of] his way because I thought he was trying to kill me or
4 The lower edge of the windshield of the cab-over tractor truck was
some 6 or 7 feet from the ground and, with all the noise created by the
pickets and their whistles, it was obviously difficult for the driver, who
had his window closed, to hear anything. Thus, he was responding to
Harrington’s hand signal, indicating that he should proceed. Further, as
the truck was proceeding across the picket line at the same time as it
was entering a public thoroughfare, the driver was obviously preoccu-
pied with looking out for oncoming traffic.
5 In fact, as Andrews was pulled from the truck, he continued to hold
on to the door handle, and it was sheared off and fell to the ground.
6 Andrews maintains that a security guard pulled him from the truck
the second time, whereas the Respondent maintains that two police
officers pulled him from the truck on this second occasion.
7 This statement has been edited for spelling and grammar.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 132
something, so I got very upset and tried to get him out of
the truck.

Officer (Sean Bannan #5219) & (Joe Winney #2735)

Stretch [Harrington]—Guard who saw [the incident]

After preparing and signing the aforementioned statement An-
drews immediately returned to the picket line and continued his
picketing activity. He picketed for about another hour before
going to a medical center where an x-ray of his knee indicated
that he had sustained no damage. He thereafter returned to the
picket line and continued picketing for several more hours that
day.
Because of this incident the Respondent did not permit An-
drews to return to work at the end of the strike. On January 28
Andrews attended a meeting between management and union
officials, during which Andrews explained his version of the
incident and maintained that he had been angry with the truck
driver for hitting him and had intended to “get the guy out of
the truck” rather was standing on the other side of the road
some forty feet or so in front of the truck as it exited the Re-
spondent’s driveway. Austin testified that he happened to be
looking toward the truck and the pickets at the time, and ob-
served that the security guards on each side of the truck stopped
the flow of pickets, and motioned for the truck to pass through
the picket line. As the truck moved slowly forward, Austin saw
Andrews walking in front of the truck and observed that Har-
rington, who was facing the truck and could not see Andrews
walking behind him, kept motioning for the truck to continue
through the picket line. When the security guards saw Andrews
they started hollering to the truck driver and Harrington held up
his fist, the standard signal for the driver to stop. However, the
driver did not stop and kept on rolling forward. Then, accord-
ing to Austin, he observed that the truck “come up against”
Andrews’ left side. Andrews then turned around with his back
to the grill of the truck and was pushed along for some 25 feet
or so. Austin observed that Harrington grabbed Andrews and
was pulling him from in front of the truck at the same time as
he was holding up his fist indicating for the driver to stop. As
Andrews was pulled from in front of the truck and was out of
its path he ducked underneath Harrington’s hold. At that point
the truck had pretty much come to a stop, and Andrews got up
on the running board of the truck and slapped the window or
the door. There was a struggle, as Andrews was resisting the
efforts of the security guards who finally succeeded in pulling
him off the truck.
Dennis Bowman has been employed by the Respondent for
over 27 years. Bowman testified that he was walking across
the street next to Andrews when the incident happened. Bow-
man testified that the other pickets had been stopped by the
security guards to make way for the truck, but that he and An-
drews did not stop. Both were in about the center of the grill of
the truck and Andrews was about “a stride or so” in front of
him when Bowman realized that the truck wasn’t going to stop.
Therefore, aware of the danger, he did not continue across but
rather stopped and retraced his steps in order to move out of the
way. However Andrews continued crossing in the path of the
truck. Then, according to Bowman, he saw the truck make
contact with Andrews’ “right shoulder.” Andrews “bounced
forward,” lost his balance, and then rotated and “came back”
against the truck. At this point the truck driver could not have
observed that Andrews was being pushed forward, as he was
hidden from view by the hood of the truck. According to
Bowman, at no point did the security guards try to stop the
truck.8
Steve Harrington is a licensed security officer and head of
security for Personnel Support Systems, a business engaged in
strike security work, employing security personnel including
videographers and photographers. He described his duties dur-
ing the strike, stating that his primary function was to ensure
the safety of the pickets and the individuals entering the facil-
ity, as well as to protect the Respondent’s property.
On the morning of January 8, Harrington, from a distance of
about 15 or 20 feet, observed one of the pickets, later identified
as William Pace, carrying what Harrington believed to be a
prohibited weapon, commonly referred to as an ASP, a col-
lapsible black metal baton about 12 to 18 inches in length, with
a small metal tip. It is, in effect, a small, collapsible billy club
sometimes used by police officers.9 Pace became aware that
the security guards had directed their attention to the object he
was holding and, turning toward the security guards, slapped
the object in his hand a couple of times while staring at them.
He then proceeded to join the picket line, still with the object in
his hand, and began walking with the pickets who carried
picket signs. However, Pace carried only the ASP, sometimes
slapping the object against the side of his leg as he walked.
Harrington testified that on prior occasions, apparently on
preceding days, Pace had directed “numerous comments” to the
security guards, stating that they would get their “ass kicked” if
they stepped over the Respondent’s property line onto the
roadway occupied by the pickets; and Harrington believed that
Pace’s possession and provocative displaying of the ASP was a
physical extension of his verbal threats.
According to Harrington, Pace observed that the security
firm’s videographer had snapped some still photos of him hold-
ing the object, and Pace apparently decided that it was best not
to have it openly displayed; he then pretended that it was con-
cealed under his jacket and began taunting the security guards
so that they would focus their attention on him by inserting his
hand inside his jacket as if he were about to reveal it again.
Meanwhile, Harrington had referred to his copy of the Califor-
nia Penal Code for the subsection of the provision dealing with
the illegality of carrying or possessing such a weapon, as he
was preparing to alert the police department to Pace’s conduct.
But by this time, after about 5 or 10 minutes, Pace no longer
continued to engage in this behavior and appeared to no longer
be carrying the object. Therefore, without the object itself as
evidence, and with Pace no longer carrying it, Harrington de-
cided that notifying the police would not prove to be effectual.
William Pace began working for the Respondent in April
1984. By coincidence, on either the same day or the day prior

8 As pointed out by the Respondent, the videotape of the incident
clearly shows that only Andrews had continued walking in front of the
truck, and that all of the other pickets had stopped. Accordingly, it is
clear that Bowman had not commenced to walk across the path of the
truck with Andrews, and was not in close proximity to Andrews during
the incident. Nor did Andrews ever state that the truck had grazed his
right shoulder. Thus, the account of the incident given by Bowman is
clearly erroneous.
9 Contrary to the testimony of other witnesses, below, Harrington
testified that the object did not appear to be an umbrella shaft; neither
did it appear to be a length of bamboo. Rather, there was no question
in his mind that it was anything other than a weapon: either an ASP,
which is a trade name for a particular brand of collapsible billy club, or
some other brand of collapsible billy club.
CALMAT CO. 133
to the incident in question, Pace gave notice to the Respondent
that he would be retiring on January 31, 1997.
Pace testified that the object in question was not an ASP or
billy club of any type, but rather was “a little plastic looking
thing” that he found by the side of the road as he was picketing.
He believed it was the shaft of an umbrella or something like
that, as it was in a pile of debris that contained the remains of
an old umbrella. It was a “beigish, brownish looking,” object
about an inch in diameter, “light like a feather,” and did not
appear to be collapsible; it had notches on it like a fishing pole.
He carried it on the picket line abut a minute or two, sometimes
hitting his leg with it, and then threw it away. Pace admits that
he “taunted” the guards “verbally,” but did not do so on the day
he was carrying the object. While Pace described his taunting
of the guards as grabbing his crotch and shaking it at them, this
is not verbal conduct, and Pace did not state what verbal taunts
he engaged in. Pace, observing that the photographer was tak-
ing pictures of him and the guards were watching him, put his
hand inside of his jacket and “was just playing with them,
really,” by posing for them as if he were going to remove the
object from inside his jacket. Pace’s Board affidavit states that
he pretended to have a weapon or something under his coat just
to tease the guards, as the guards kept taking his picture “like
they were afraid of me or something.”
On rebuttal, Pace testified that he was a mixer driver, a
physically demanding job which he performed on a regular
basis. However, he has a medical condition, gout, and is on
medication for this condition which sometimes causes swelling
on his right hand and, when the gout flares up, prevents him
from griping and carrying anything heavy. Pace testified that
he suffered a “serious attack” of this condition “along about”
the time of the incident here, and thus would have been unable
to carry any heavy object in his right hand.
Robert Mahoney, a good friend of Pace, testified that he re-
called seeing Pace pick up what appeared to be something like
a bamboo umbrella handle, about 12 to 16 inches in length, but
without a hook on the end.
Denver King, who picketed with Pace, testified that he ob-
served Pace carrying a small dark swagger stick or something
while walking the picket line. On this occasion Pace remarked
to King, in a light-hearted way, that he could get the guard to
take his picture: Pace stuck his hand in his jacket and sure
enough, the guard picked up the camera and started taking
Pace’s picture.
Mark Garza worked for the security firm as a photographer,
videographer, and the evidence coordinator. Garza testified
that he was 30 to 40 feet away from Pace and observed that
Pace was holding an object that, by its length and particularly
the rounded tip at its end, looked like an ASP. On seeing it, he
radioed the people in charge and said that someone on the
picket line was carrying an ASP. He was told to take videos
and photos of the object. While he was trying to document the
fact that Pace was engaged in such conduct, Pace was “playing
games” with him, pretending to be hiding it in his jacket and
then pretending to be pulling it out after Garza no longer had
his camera in the ready position.
Gus Drulias, called as an expert witness by the Respondent,
is currently the vice president of a private security firm and had
previously been employed by the Los Angeles police depart-
ment for almost 33 years. His rank was captain, and he was in
command of a large precinct in Los Angeles country with some
450 officers. He is familiar with and has received training in
connection with collapsible batons, a weapon used for “pain
compliance.” Drulias testified at length regarding the geometry
and purpose of collapsible batons, such as the ASP, one
particular brand of such baton, which are primarily utilized by
plain clothes officers. On reviewing the photo, received in
evidence herei, of Pace holding the object, and the video of
Pace walking with the object and slapping it against his hand
and leg, Drulias testified that by its size, apparent heftiness,
color, geometry, and tip, the object, in his opinion, was clearly
an ASP or similar collapsible baton, rather than an umbrella
handle, or lightweight length of plastic. Further, to purchase
such a weapon it is necessary to have either police identifica-
tion or a California guard card indicating that the purchaser has
a license and the training to use such a weapon. Finally,
Drulias testified that California Penal Code section 12020 gov-
erns the unauthorized possession or use of collapsible batons.
After the strike ended, Pace received a letter from the Re-
spondent alleging that he had been observed with a weapon
during the strike. The letter is as follows:

It has come to CalMat’s attention that you were ob-
served in possession of a weapon while picketing our Mis-
sion Valley facility. This is a very serious offense. Cal-
Mat believes that this act violated Sections 12020 and
12590 of the California Penal Code.
While CalMat believes that you committed this act, we
are nonetheless interested in hearing any response that you
wish to make regarding this charge.

Following receipt of this letter Pace, together with represen-
tatives of the Respondent and the Union, met at the Union’s
hall. Pace gave his version of the matter, and denied that the
object was a weapon of any type.
On January 31, Pace went to the Respondent’s premises to
sign retirement documents and was given the following letter:

As you know, CalMat has been investigating the mat-
ter of your possessing a weapon while you were picketing
our Mission Valley facility during your union’s strike.
Also, as you know, CalMat does not tolerate its employees
possessing weapons and discharges employees for this of-
fense.
Please be advised that CalMat concluded that you did
in fact possess a blackjack-type weapon on January 8,
1997 at approximately 10:50 a.m. while picketing our
Mission Valley facility. Although appropriate disciplinary
action for this offense is discharge, as your retirement be-
comes effective today, any disciplinary action is untimely.
However, please be advised that you are not eligible for
rehire at CalMat. Nor are you allowed on any CalMat
property.

Harrington testified as follows regarding the incident involv-
ing Andrews on January 10. Immediately prior to that incident
Harrington observed that one of the pickets had given a subtle
but deliberate push to one of the security guards toward the
front tire of one of the incoming vehicles as the guard was at-
tempting to clear a path for the vehicle through the picket
line.10 Voices were raised and Harrison rapidly moved from
the Respondent’s property into the street in order to diffuse a
potential confrontational situation. Within a few seconds after

10 This is clearly depicted in the videotape while, simultaneously,
someone warns, “Don’t push!”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 134
this incident another vehicle exited the Respondent’s driveway.
After coming to a brief but complete stop11 it then moved for-
ward and Harrington, as he stood directly in front of the truck,
signaled for the truck to proceed through the wall of some 8 or
10 pickets who spread apart as the truck approached. Another
security guard, Bauermeister, was also positioned on the other
side of the truck, performing the same functions as Harrington.
Harrington was backing up in sync with the forward progress of
the truck when he observed, from his left side peripheral vision,
that someone behind him (Andrews) was walking in the path
of the truck. Harrington testified:

I put up my arms to stop the truck because all of [a] sudden
Mr. Andrews wasn’t moving any longer, he stayed in between
the two of us and he turned, spun around backwards and
pressed himself up against the grill of the truck.

Harrington testified that he did not observe that the truck
touched Andrews before Andrews put his back to it, and be-
lieves that Andrews simply stopped walking, turned around,
and slowly backed into the truck while the truck was moving
forward. At this point Harrington put his fist up in front of the
driver’s face in order to get him to stop, but the driver, who was
apparently looking for oncoming traffic and could not have
easily seen either Harrington or Andrews.12 Realizing that the
driver was not going to stop, Harrington and the other security
guard pulled Andrews out from in front of the truck so that he
wouldn’t get run over, and dragged him to the driver’s side.
According to Harrington, Andrews resisted the entire time, and
when they released their grip he slapped his picket sign up
against the truck, jumped on the running board and opened the
driver’s side door. Harrington and Bauermeister pulled him off
the truck as he was grasping the metal door handle, which was
sheared off the door as a result of Andrew’s failure to release it,
and fell to the ground.
On releasing Andrews Harrington felt the situation was over.
But Andrews “took off chasing the truck” which had continued
across the intersection. He jumped back on the running board
and, not being able to open the door because the door handle
had been broken off, started beating on the window. At this
point several police officers pulled him from the truck, and
seemed to be in control of the situation.
Jeffrey Dyer is director of labor relations for the Respondent.
Dyer testified that on investigation of the conduct of both An-
drews and Pace during the strike, including meetings with un-
ion representatives so as to provide the opportunity for An-
drews and Pace to present their accounts of the incidents, it was
concluded that neither Andrews nor Pace were credible in relat-
ing their versions of what had transpired. In fact, according to
Dyer, the testimony of both Andrews and Pace at the hearing
was inconsistent with the explanations they gave during the
aforementioned union-management meetings, as exhibited by
the notes that Dyer made during the course of the meetings.
Dyer also examined the personnel files of both Andrews and

11 This, too, is clearly depicted on the videotape, and I do not credit
any witness who testified that in fact the truck did not stop.
12 Thus, at that time Harrington was very close to the front of the
truck and he was unable to make eye-contact with the driver because
the bottom of the truck’s windshield was higher than the top of his head
and Andrews, leaning against the grill of the truck, was being pushed
along at about bumper level.
Pace for documentation of past disciplinary action. 13 There-
upon, the Respondent determined that the discharge of An-
drews and the action taken against Pace, who had retired were
warranted under the circumstances, as their conduct, clearly
violated established company rules which the Respondent had
consistently enforced.
Analysis and Conclusions
I conclude and find that William Pace was indeed carrying a
collapsible baton on the picket line on January 8, and that prior
to that he had made threatening remarks to the security guards
who were stationed at the Respondent’s gate in order to protect
individuals and property during the course of the strike. In this
regard I credit all of the witnesses presented by the Respondent
who testified that the object carried by Pace was such a
weapon; that the possession of such a weapon by anyone other
than a duly authorized law enforcement person is prohibited by
law and is governed by criminal sanctions; and that Pace, in
addition to carrying such a weapon, did utter threats of physical
harm to nearby security guards. Conversely, I do not credit the
testimony of any witnesses who testified that the object carried
by Pace was an umbrella shaft, a bamboo or plastic stick, or
any similar object.
The General Counsel contends that the security guards were
not concerned with Pace’s conduct, as demonstrated by the fact
that they did not summon the police, and that Pace testified he
was joking with them as he pretended to be concealing the ob-
ject beneath his jacket. I do not agree. To the contrary, the
evidence shows that the security guards were immediately con-
cerned on observing that Pace had the weapon in his possession
and was walking with it on the picket line; and they did in fact
photograph him and were preparing to contact the police when
they realized that without the weapon, which Pace appeared to
no longer be carrying, the police would be unlikely to arrest
Pace.
Further, the General Counsel contends that as the police
were always nearby, the fact that they did not approach Pace to
take a closer look at the object is evidence that they did not
believe the object was an ASP or similar weapon. I disagree:
The evidence shows that the police were not there on a contin-
ual basis and that the incident occurred over a brief period of
time; therefore it has not been demonstrated that the police did
in fact see Pace holding or carrying the object.
I further find that the Respondent was acting in good faith in
evaluating the situation, and in determining that Pace’s miscon-
duct warranted the disciplinary action that the Respondent im-
posed on him. In this regard, Pace had no business with a
weapon on the picket line and the only ostensible purpose for
his possession and displaying of it would have been to intimi-
date the guards and/or those individuals passing through the
picket line. There is no indication that Pace was singled out for
discipline simply because he participated in the strike or en-
gaged in other protected concerted activity. Accordingly, I
shall dismiss this allegation of the complaint. Clear Pine
Mouldings, 268 NLRB 1044 (1984); Town & Country Nursing
13 Pace was given a warning on March 11, 1993, for a traffic inci-
dent, namely, pulling in front of a man on a motorcycle and running
him into the curb and, after stopping, using profanity toward him, and a
1-day suspension on February 16, 1995, for having a “confrontation”
with a customer and using “offensive immoral” language toward him.
The warnings received by Andrews involved matters unrelated to the
conduct in question here.
CALMAT CO. 135
Home, 291 NLRB 74 (1988); Keco Industries, 276 NLRB 1469
(1985); and Keco Industries, 301 NLRB 303 (1991).
The General Counsel maintains that Rodney Andrews was
hit, brushed, or grazed by a vehicle exiting the Respondent’s
premises as he was picketing, that he wanted to get out of the
way of the truck but could not, and that his responsive reaction
in attempting to physically bring the truck driver from the truck
was therefore spontaneous and justified or excusable. I do not
agree. Rather, I find that Andrews placed himself in front of
the exiting vehicle by, after all the other pickets had stopped,
continuing to walk purposefully in front of it, slowly, in order
to cause it to slow down or stop. Andrews observed, I find, that
in fact the truck did not pause for him. The driver, who had
been given the signal to proceed, apparently believed that if
Andrews continued across the truck’s path he would clear the
other side before the truck passed. When Andrews realized that
he would be unsuccessful in slowing down the truck, he walked
even slower and decided to turn his back to it and use himself
as a barrier so the driver would have no choice but to stop.
Thus, I find, while Andrews could easily have walked out of
the path of the slow-moving truck, he elected not to do so.
Thereupon, it appears that the truck driver, who had been given
the signal to proceed and was obviously preoccupied with the
vociferous pickets crowding his truck on either side and with
attempting to ease his large truck into a public intersection, was
not aware of what was happening immediately in front of the
cab of his truck which blocked his view. By his conduct An-
drews put himself in jeopardy and also placed the security
guards in jeopardy as they were trying to save him from serious
injury.
I find that Andrews was not struck by the vehicle as he now
claims, but rather became upset that he was pushed by the vehi-
cle and then unceremoniously wrestled out of the way by the
security guards. Thus, it is significant that immediately follow-
ing the incident Andrews prepared a statement for his own
purposes, and did not state that the truck stuck him or that he
had a problem with his knee. Further, the security guards, who
were immediately in front of the truck on either side as they
were guiding it out, and were closer to it than Andrews, were
not struck by the truck. Finally, I do not credit Andrews’ asser-
tion that his knee was numbed up and that he was therefore
unable to jump out of the way; the fact that he was able to free
himself from the security guards, jump up on the running
board, and attempt to bring the driver from the truck, and then
to run after the truck, catch up with it, and again attempt to
assault the driver, shows considerable dexterity and physical
ability, and strongly indicates that Andrews had no problem
with his knee whatsoever.14
I further find that the Respondent, by discharging Andrews,
was motivated by lawful considerations, and was not seeking to
retaliate against Andrews for engaging in striking, picketing, or
other protected concerted activity. Deliberately putting one’s
self in the way of physical harm and simultaneously jeopardiz-
ing those assigned to monitor the safety of all individuals in and
around the picket line is itself clearly a justifiable ground for
discharge. Moreover, under the circumstances, Andrews’ two
attempts to assault the truck driver and damage the truck, while
perhaps spontaneous, was not justified and excusable whether
spontaneous or not; thus, Andrews, by deliberately placing
himself in harms way, created the ensuing scenario and is re-
sponsible for what transpired. 15 Accordingly, I shall also dis-
miss this allegation of the complaint. Clear Pine Mouldings,
supra.
On the basis of the foregoing, I shall recommend that the
complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged.
On these findings of fact and conclusions of law, and on the
entire record I issue the following16
ORDER
The complaint is dismissed in its entirety.

14 I do not credit the testimony of Lawrence Austin regarding his
claiming to see the truck strike Andrews. The clear weight of the evi-
dence shows, I find, that Andrews was not hit by the truck prior to
turning his back to it.
15 Cf. Medite of New Mexico, Inc., 316 NLRB 629 (1995); Cf.
Medite of New Mexico, Inc., 314 NLRB 1145 (1994); Ornamental Iron
Works Co., 295 NLRB 473 (1989); and Franzia Bros. Winery, 290
NLRB 927 (1988).
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.