Keco Industries

National Labor Relations Board - Board Decisions

Jan 25, 1991

301 N.L.R.B. 303 (N.L.R.B. 1991)

303
301 NLRB No. 40
KECO INDUSTRIES
1 276 NLRB 1469 (1985).
2 268 NLRB 1044 (1984), enfd. mem. 765 F.2d 148 (9th Cir. 1985).
3 Id. at 1046 (quoting NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 527
(3d Cir. 1977)).
4 Ruben F. Lima v. NLRB, 819 F.2d 300 (D.C. Cir. 1987).
5 Id. at 303. Judge Williams dissented. He found that the record supported
the Board’s decision to deny Lima reinstatement. Id. at 304–306.
6 Clear Pine Mouldings, supra at 1046.
7 ‘‘First, a gun is an article that is typically and characteristically dangerous;
the use for which it is manufactured and sold is a dangerous one, and the law
reasonably may presume that such an article is always dangerous even though
it may not be armed at a particular time or place. In addition, the display of
a gun instills fear in the average citizen; as a consequence, it creates an imme-
diate danger that a violent response will ensue. Finally, a gun can cause harm
when used as a bludgeon.’’ McLaughlin v. U.S., 476 U.S. 16, 17–18 (1986)
(footnote omitted).
8 Roto Rooter, 283 NLRB 771, 772 (1987). See also NLRB v. W. C.
McQuaide, Inc., 552 F.2d 519, 527 (3d Cir. 1977):
Rather than focus on either the subjective intent of the striker or the
perception of the ‘‘victim,’’ we adopt an objective standard to determine
whether conduct constitutes a threat sufficiently egregious to justify an
employer’s refusal to reinstate. . . . That no one was in fact coerced or
intimidated is of no relevance. The test of coercion and intimidation is
not whether the misconduct proves effective. The test is whether the mis-
conduct is such that, under the circumstances existing, it may reasonably
tend to coerce or intimidate employees in the exercise of rights protected
under the Act [citations omitted].
Keco Industries, Inc. and Ruben F. Lima. Case 9–
CA–17923
January 25, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, OVIATT, AND RAUDABAUGH
On October 16, 1985, the National Labor Relations
Board issued a Decision and Order,1 finding that the
Respondent did not violate the Act by refusing to rein-
state four strikers who engaged in certain strike mis-
conduct. The Board reversed the administrative law
judge’s decision with respect to Rubin F. Lima. The
Board cited Clear Pine Mouldings,2 which held that
strikers will forfeit their right to reinstatement when
they engage in ‘‘misconduct . . . that, under the cir-
cumstances existing . . . may reasonably tend to co-
erce or intimidate employees in the exercise of rights
protected under the Act.’’3 Applying this test, the
Board found that Lima forfeited his right to reinstate-
ment. The Board therefore dismissed the complaint.
Thereafter, Lima sought review of the Board’s decision
in the United States Court of Appeals for the District
of Columbia Circuit.
On May 19, 1987, the court issued its decision.4 The
court granted the petition for review and remanded the
case to the Board for further consideration of ‘‘whether
the Board’s application of the Clear Pine Mouldings
rule is rational, based on substantial evidence, and con-
sistent with the Board’s own precedents.’’5
The Board accepted the remand and the Charging
Party and the Respondent filed statements of position.
The Board has reconsidered its Decision and Order
in light of the court’s decision, the entire record, and
the statements of position, and has decided to affirm
its conclusion that the Respondent did not violate the
Act by refusing to reinstate Lima.
The facts concerning Lima’s strike misconduct are
as follows. On the third day of the strike, less than an
hour before noon, while strikers were picketing in
front, the Respondent’s guards twice briefly observed
Lima behind the plant in the vicinity of the gate being
used by nonstrikers. Lima was walking on railroad
tracks off the Respondent’s property. While none of
the guards came closer to Lima than about 25 yards,
they saw a gun stuck in his waistband on both occa-
sions. One of the guards summoned the police and
then went to the front of the plant where he saw Lima,
but no gun. Thereafter, Lima got into his car and drove
to a parking lot across the street. The police arrived
and conducted a search, but no gun was found on
Lima’s person, in his automobile, or in the area.
Before the judge, Lima denied ever carrying a fire-
arm on the picket line and stated that he was in the
habit of carrying only a leather knife case. He did not
claim that he was carrying another object that might
have been mistaken for a gun from a distance.
The judge credited the testimony of the Respond-
ent’s guards and discredited Lima’s. He found that
Lima had a gun stuck in his waistband on the two oc-
casions the guards observed him in the rear of the
plant in the vicinity of the gate used by nonstriking
employees.
The issue in this case is whether Lima’s conduct
‘‘under the circumstances existing . . . may reasonably
tend to coerce or intimidate employees in the exercise
of rights protected by the Act.’’6
In resolving this question, we start with the propo-
sition that a gun is an inherently dangerous weapon.7
We also note that a picket line is often a place where
tempers can flare and emotions can run high. Indeed,
in the instant case, rocks were thrown, at least one per-
son was physically assaulted, tires were slashed, and
verbal abuse was common. Finally, we note that Lima
was standing in the vicinity of the gate used by non-
strikers. In a strike situation, this area is often a focal
point for the venting of anger and frustration. The in-
herent danger of a gun becomes particularly acute
when a striker with a gun stands at a place where non-
strikers enter the plant.
Concededly, there is no evidence that any employee
saw Lima with a gun. However, the test is not whether
employees are in fact coerced or intimidated by the
gun.8 Rather, as noted above, the test is whether the
gun ‘‘may reasonably tend to coerce or intimidate em-
ployees.’’ Applying this test, we find that the carrying
of the gun, in the circumstances of this case ‘‘may rea-
sonably tend’’ to intimidate employees. The fact that
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Catalytic, Inc., 275 NLRB 97, 98 fn. 13 (1985).
it did not in fact do so on the day in question is irrele-
vant.
We do not pass on the issue of whether the carrying
of a gun would constitute misconduct per se, i.e.,
whether it would tend to coerce or intimidate employ-
ees in all circumstances.
Further, state gun control laws are not controlling
here. The legality of Lima’s conduct under state laws
is not dispositive of what are separate and distinct
issues raised under the National Labor Relations Act.9
Accordingly, we affirm our earlier disposition of this
case. The Respondent did not violate the Act by dis-
charging Rubin S. Lima.
ORDER
The complaint is dismissed.