Laredo Coca Cola Bottling Co.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 491 (N.L.R.B. 1981)

LAREDO COCA COLA BOTTLING CO
Laredo Coca Cola Bottling Company and Brewery,
Soft Drink, Grain, Flour, Candy, Industrial and
Allied Workers Local 1110, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
and Rodolfo Pena, Enrique Villanueva, Ray-
mundo Iruegas, Jose H. Villarreal, and Luis In-
ocencio. Cases 23-CA-7553, 23-CA-7562-1,
23-CA-7562-2, 23-CA-7652-3, 23-CA-7652-
4, and 23-CA-7652-5
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 23, 1980, Administrative Law
Judge Burton Litvack issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief and letter in answer to the
General Counsel's exceptions.
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 at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
In affirming the Administrative Law Judge's Decision, we find it un-
necessary to rely on his comments concerning his personal agreement
with certain views expressed by the Fifth Circuit Court of Appeals in
Masher Steel Company v. N.LR.B., 568 F.2d 436 (5th Cir. 1978) See
ALJD, sec. IV,C, par. 4.
With respect to the Administrative Law Judge's dismissal of the allega-
tion that Respondent violated the Act by denying certain vacation bene-
fits to reinstated strikers, we put particular reliance on our decision in Ace
Beverage Company, e al, 253 NLRB 951 (1980), in affirming that conclu-
sion.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge: These
consolidated cases were heard before me in Laredo,
Texas, on January 8 and 9, 1980. The charge in Case 23-
CA-7553 was filed on June 13, 1979, by Brewery, Soft
Drink, Grain, Flour, Candy, Industrial and Allied Work-
ers Local 1110, affiliated with International Brotherhood
258 NLRB No. 69
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union. The charges in Cases
23-CA-7562-1, -2, -3, -4, and -5 were filed on June 15,
respectively, by Rodolpho Pena, an individual; Enrique
Villanueva, an individual; Raymundo Iruegas, an individ-
ual; Jose H. Villarreal, an individual; and Luis Inocencio,
an individual. An order consolidating those cases and a
consolidated complaint was issued by the Regional Di-
rector for Region 23 on September 4, 1979. The com-
plaint alleges that Laredo Coca Cola Bottling Company,
herein called Respondent, violated Section 8(a)(1) and
(3) of the National Labor Relations Act, herein called
the Act, by failing and refusing to reinstate the afore-
mentioned employees to their former positions, at the
close of an unfair labor practice strike, upon uncondition-
al offers to return to said positions and by refusing to
pay to striking employees their vacation benefits. Re-
spondent filed an answer essentially denying the commis-
sion of any unfair labor practices. All parties were af-
forded full opportunity to appear, to introduce evidence,
and to examine and cross-examine witnesses. Extensive
briefs were filed by the General Counsel and by Re-
spondent and have been carefully considered.
Upon the entire record in the case, and from my ob-
servation of the demeanor of the witnesses, and having
carefully considered the post-hearing briefs, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material
herein, a corporation duly organized under and existing
by virtue of the laws of the State of Texas. At all times
material herein, Respondent has maintained its principal
office and place of business at No. 1 Del Mar Industrial
Park, Laredo, Texas, where it is engaged in the business
of the manufacture and sale and distribution of soft drink
beverages. During the 12-month period immediately pre-
ceding issuance of the complaint, a representative period,
Respondent purchased and received goods and materials
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of Texas. The complaint alleges, Re-
spondent admits, and I find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ISSUES
The issues presented are whether: (1) since on or about
January 10, 1979, Respondent has failed and refused to
reinstate to their former positions employees Rodolfo
Pena, Enrique Villanueva, Raymundo Iruegas, Jose H.
Villarreal, and Luis Inocencio because they engaged in
an unfair labor practice strike against Respondent in vio-
lation of Section 8(a)(1) and (3) of the Act and (2) since
on or about June 12, 1979, Respondent violated Section
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(l) and (3) of the Act by failing and refusing to pay
to returning strikers their vacation benefits.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, which is engaged in the manufacture,
sale, and distribution of soft drink products, is a family
held and managed corporation, whose president is Lamar
Gill. His wife is the vice president; Paul Payne, Gill's
stepson, is the general manager; and Juventino Villareal,
who formerly was the office manager and personnel
manager, has been the assistant manager since January
1979. Pursuant to a representation election held on
August 19, 1977, the Union was certified by the Regional
Director for Region 23 of the National Labor Relations
Board, herein called the Board, on August 29, 1977, as
the exclusive representative for purposes of collective
bargaining of Respondent's production employees, truck-
drivers, driver helpers, loaders, warehousemen, auto and
cooler mechanics, painters, premix employees, and ware-
house janitors. In response to a union request for infor-
mation regarding these employees' wages and fringe
benefits, Respondent failed to provide information per-
taining to certain benefit programs, including a Christmas
bonus and Christmas fund. Notwithstanding this conduct,
commencing in September 1977 Respondent and the
Union engaged in collective bargaining over the terms of
an initial contract covering the aforementioned bargain-
ing unit employees.
Negotiations were not productive, and, on November
18, 1977, the parties reached a bargaining impasse.
Thereafter, on March 14, 1978,' the unit employees en-
gaged in a strike against Respondent. George Eichler,
the secretary-treasurer of the Union, testified, "The pur-
pose of the strike was, because we were having trouble
getting a contract, because the company had refused to
give us . . . certain information that we needed to help
negotiate a contract. Therefore, we went on strike on
that basis . . . ." On April 12, The Laredo Times, a
daily newspaper of wide circulation, published an article
about the strike, stating, according to Paul Payne, that
new employees had been hired to replace the striking
employees on a permanent basis and that Respondent
would eventually replace all the strikers. On September
20, in Laredo Coca Cola Bottling Company, 241 NLRB
167 (1979),2 the Board concluded and found that Re-
spondent had committed numerous unfair labor practices
during the preelection period, that the failure and refusal
to transmit the above-described information to the Union
constituted a violation of Section 8(a)(l) and (3) of the
Act, that Payne's comments, as reported in The Laredo
Times on April 12, were violative of Section 8(a)(1) of
the Act, and that the strike against Respondent was an
unfair labor practice strike.
The strike ended on January 10, 1979. On the next
day, Eichler sent to Respondent a letter, reciting an un-
conditional offer from the striking employees to return to
Unless otherwise stated, all dates herein are in calendar year 1978.
' Subsequently, the Board's decision was affirmed by the United States
Court of Appeals for the Fifth Circuit. N.L.R.B. v. Laredo Coca Cola
Bottling Company, 613 F.2d 1338 (5th Cir. 1980).
their former positions of employment, including Luis In-
ocencio, Raymundo Iruegas, Rodolfo Pena, Enrique Vil-
lanueva, and Jose H. Villarreal. During the next 2 weeks,
Respondent mailed individual offers of reinstatement to
their former jobs to most of the strikers named in
Eichler's letter as well as to seven other strikers. Howev-
er, Respondent also notified Eichler that it rejected the
Union's offer of reinstatement with respect to Iruegas,
Pena, Villanueva, Villarreal, and several others because
those individuals, in Respondent's view, had participated
in acts of strike violence and misconduct. Additionally,
although originally offering him reinstatement, Respond-
ent subsequently rejected the offer of reinstatement made
on behalf of Inocencio allegedly because of his convic-
tion on drug charges. While Respondent was making its
offer of reinstatement, its attorney and Eichler negotiated
the terms of a settlement of the strike. As a result of
these discussions, Respondent reduced the number of em-
ployees it would not reinstate because of strike miscon-
duct to Iruegas, Pena, Villanueva, Villarreal, and two
others, but continued to maintain that it would not rein-
state Inocencio because of his drug conviction, and the
parties reached agreement on the terms of a collective-
bargaining agreement, effective from January I through
December 31, 1979. A strike settlement agreement, me-
morializing these and other matters, was entered into by
Eichler and Respondent's attorney on January 31, 1979,3
and the agreed-upon collective-bargaining agreement,
which "was based on the last offer that the company had
on the bargaining table," was executed on March 23,
1979.
B. The Refusal To Reinstate Iruegas, Pena,
Villanueva, and Villarreal
Respondent's plant, which consists of three adjoining
buildings-a maintenance shop, a production building,
and an office-is located at the intersection of Industrial
Boulevard and C.P. & L. Entrance Road on the north-
west corner. There are three entrances to the street, with
two entrances (gates A and B, respectively) on Industrial
Boulevard. Across from gate A, on the south side of In-
dustrial Boulevard, are a large tree (tree A) and a grass
covered, triangular shaped land area. The third plant en-
trance (gate C) opens onto C.P. & L. Entrance Road and
is approximately 150 feet north of Industrial Boulevard.
This latter entrance leads to a parking area surrounding
the office. Directly across from the intersection of Indus-
trial Boulevard and C.P. & L. Entrance Road, on the
south side of Industrial Boulevard, is another large tree
(tree B). Approximately 100 feet east of the intersection,
on Industrial Boulevard, is a crossing over the Missouri
Pacific Railroad tracks, and just a few feet east of the
crossing, on the north side of Industrial Boulevard, is lo-
cated another large tree (tree C). Finally, continuing east
on Industrial Boulevard, there is a stop sign at the inter-
section of that road and Santa Maria.
Juventino Villareal testified without contradiction that,
in January 1979, although Paul Payne and Respondent's
I By the terms of the agreement, the Charging Parties did not waive
their right to file charges concerning Respondent's refusal to reinstate
them.
492
LAREDO COCA COLA BOTTLING CO.
attorney jointly made the final decisions to deny rein-
statement to Iruegas, Pena, Villanueva, and Jose H. Vil-
larreal, 4 he participated in the decisionmaking process
because of his personnel duties. Villareal further ex-
plained that Respondent's decisions in this regard were
based on eyewitness reports from employees and man-
agement officials, including himself, certifying that Irue-
gas, Pena, Villanueva, and Jose H. Villarreal had partici-
pated in incidents of "excessive . . . strike misconduct
and violence." Finally, Villareal testified that accounts of
the following incidents were those on which Respondent
based its denial of reinstatement decisions.
1. Events of March 315
Jorge Mario Ruiz had been employed as a strike re-
placement for 2 or 3 days. On this afternoon, he left the
plant after work, driving his own car in the direction of
his home. As Ruiz drove from the plant, a flashy, brown
pickup truck, which was owned by Iruegas, followed
him. In the truck were Iruegas, Villanueva, and Jose
Guerrero, another striker. As Ruiz drove on San Ber-
nardo in the vicinity of Pla-Mor, a building containing
small businesses and play areas, the brown pickup pulled
alongside of Ruiz' car, forced him to the side of the
road, and stopped at an angle in front of Ruiz so that the
latter could not drive ahead. Iruegas and Guerrero got
out of the pickup and walked over to Ruiz, who re-
mained in his car. When they reached the side of Ruiz'
car, either Iruegas or Guerrero, according to Ruiz, "told
me that if I went back there again to work, then they
would beat me up." Iruegas then returned to his truck
while Guerrero began kicking the side of the car and
banging on the windows. As Iruegas approached his
pickup, Villanueva got out and walked over to Ruiz' car.
He thereupon joined Guerrero, beating on the side of the
car with his fists and kicking at the door. Finished,
Guerrero and Villanueva returned to Iruegas' truck and
they drove away.6 There was no damage done to Ruiz'
car.
2. Incidents involving Patricia Perez
Juventino Villareal credibly testified, without contra-
diction, that the initial strike replacement employee
whom Respondent hired was Patricia Perez and that, on
several occasions during the first 2 weeks in April, he
personally observed her driving a car through gate A
into the plant in the morning and after lunch. According
' Neither Iruegas, Pena, Villanueva, nor Villarreal was called to testify
by counsel for the General Counsel on rebuttal despite all being present
in the hearing room to hear Respondent's allegations against them.
I The description of events in this section is an amalgam of the uncon-
troverted testimonies of employees Marvin K. Bosenberg and Jorge
Mario Ruiz.
I have made the aforementioned findings notwithstanding that Ruiz
could not identify his assailants at the hearing. However, I note that both
Bosenberg, a longtime employee who was well acquainted with the strik-
enrs, and Ruiz corroborated each other on the events. Moreover, Bosen-
berg, who viewed the entire incident as he slowly drove past the scene,
positively identified the participants as well as the pickup truck. Also,
Ruiz had never seen the participants prior to the incident and, thereafter,
did not see them until the hearing. Accordingly, I rely on Bosenberg's
extremely credible testimony as to the identities of the participants. Final-
ly, I note that neither Iruegas nor Villanueva denied their participation in
the incident.
to Villareal, there were normally strikers, including Jose
H. Villarreal, standing outside the entrance, carrying
picket signs, and they would flash and wave the signs
and yell obscenities, such as "bitch" and "whore," at
Perez in Spanish as she drove past. On one occasion,
Jose H. Villarreal yelled in Spanish, "Here you come
again. We told you . . . to stay away, but you don't
listen. Well, you'll be sorry."
3. Events of the afternoon of April 13
Juventino Villareal credibly testified, without contra-
diction, that, in the afternoon of April 13, he received a
telephone call from a company truckdriver who was
making a delivery at the United States Customs Office at
the Laredo Airport and who reported that his truck was
boxed in by strikers' cars and, as a result, could not be
moved. Thereupon, Villareal and Paul Payne drove out
to the airport. According to Villareal, when they ar-
rived, he observed a green Chevrolet, which was owned
by striker Geraldo Gaytan, parked in front of Respond-
ent's truck and a distinctive red and white Ford, owned
by Jose H. Villarreal, parked no more than 5 feet behind
the truck. The delivery truck was empty; Jose H. Villar-
real and another striker, David Contreras, were sitting
on the hood of the Ford; and Gaytan and striker Ricardo
Salas were standing near the truck. "[T]hey started yell-
ing all kinds of obscenities and cursing . . . I heard [Vil-
larreal] . . . cursing in Spanish .... I guess you could
translate it as saying 'Fuck your mother, son-of-a-bitch."'
Then, while the others laughed, Jose H. Villarreal turned
to Juventino Villareal and said, "You better take care of
both your cars." 7
At that point a police car approached the scene, and
the truckdriver and the two truck helpers left the Cus-
toms building. After a few minutes and after the police
spoke to the strikers, everybody left the scene. No one
was arrested; there was no damage to the delivery truck;
and no attempt was made to stop the actual delivery. Fi-
nally, while the strikers spoke to Villareal and Payne,
they made no threatening gestures or physically assault-
ed either Payne or Villareal.
4. Events of the evening of April 138
At approximately 5:30 that evening, Paul Payne left
the plant through gate A, driving Respondent's white
van and carrying five or six replacement truckdrivers to
a motel at which they were living. Darryl Laird, a plant
supervisor, followed Payne in his own car. Both vehicles
turned left on Industrial Boulevard toward Santa Maria.
As Payne and Laird crossed the Missouri Pacific Rail-
road tracks, at least eight cars, which had been parked
across Industrial Boulevard from gate A, pulled out and
followed them. Among the pursuing cars were Jose H.
Villarreal's red and white Ford, Gaytan's green Chevro-
let, and a blue and white Chevrolet, which was owned
by striker Antonio Villareal. As Laird crossed the rail-
road tracks, Gaytan's car almost ran into the rear of the
Juventino Villareal testified that he owns two automobiles.
'The description of events in this section is an amalgam of the uncon-
troverted testimonies of Juventino Villareal and Paul Payne.
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
former's car. Meanwhile, several of the pursuing cars at-
tempted to pass Payne and Laird on the left, and the
drivers began honking their car horns.
At the Santa Maria intersection, Payne and Laird
stopped at the stop sign. A. Villareal, who was observed
driving his car, drove past Payne and, without stopping,
turned right on Santa Maria. Payne then also turned
right, Laird drove across Santa Maria, and the remaining
pursuing cars followed Payne's van. Out of fear, Payne
increased his speed to approximately 80 m.p.h. and
passed Villarreal's Ford. The pursuing cars kept pace;
two of the cars, but not that of Villarreal, passed Payne
on the left, cut in front of him, and suddenly slowed,
causing Payne to "slam on" his brakes to avoid crashing
into the car ahead of him.
For approximately 2 miles, a procession of 10 cars,
with Respondent's white van in the middle, continued
down Santa Maria. As they approached the Carlton in-
tersection, the two lead cars pulled over to the right, and
Payne abruptly turned left onto Carlton. Villarreal's
Ford and another car also turned left after Payne, with
Villarreal's car almost "rear-ending" Respondent's van.
Payne reached the motel without further incident but
was momentarily blocked from driving into one of the
motel entrances by a gold Chevrolet Malibu. There was
no damage done to Respondent's van.
5. Events of April 149
Elva Martinez was hired by Respondent during the
strike as a production worker. At home on the night of
April 14, as Martinez was preparing to go to sleep at ap-
proximately 9:30 or 9:45, she was startled by a loud noise
and the sound of shattering glass coming from outside.
She ran outside through the front door of her house and
observed a read and white Ford speeding away. Al-
though she saw neither the driver, whether there were
any passengers, nor the license number of the car, she
recognized the red and white Ford as being identical to a
car which she had observed parked on the opposite side
of Industrial Boulevard from gate A. Martinez' family
van was parked in front of her house that night. As the
other car sped away, Martinez noticed that the wind-
shield of the van was shattered, the antenna was broken
off, and the body was dented. Also, a brick lay on the
ground near the van.
The next morning, she observed the red and white
Ford parked across from gate A and asked Juventino
Villareal who owned the car. The latter told her that the
car belonged to Jose H. Villarreal.
6. Events of the afternoon of June 2 0
During the afternoon of June 2, Rodolfo Pena and En-
rique Villanueva picketed near gate C, the plant entrance
which is nearest to the office building. A car, with three
boys inside, passed through the gate and parked in the
office parking lot. As the boys left the car and walked
towards the office, Pena and Villanueva shouted in Span-
' The description of events in this section is based on the uncontrovert-
ed testimonies of Elva Martinez and Juventino Villareal.
'o The description of events in this section is based on the uncontro-
verted testimonies of Edward Rathbun and Juventino Villareal.
ish, "You'll be sorry, you goddamn queers. Just remem-
ber, the same way you went in is the same way you're
coming out." After they reached the office, the boys,
who were job applicants, appeared to be scared and ner-
vous as a result of the shouting; however, upon being
asked by Juventino Villareal, they refused an escort out
of the plant by the sheriff's department.
Edward Rathbun, the plant facility manager, heard the
shouting and stepped outside the office front door after
the boys entered. Seeing Rathbun, Villanueva clenched
his fists and gestured to Rathbun with a waving motion.
According to the latter "Villanueva . . . began to
motion to me to come out-and it was very obvious to
me that he wanted me to . . . fight him." While making
his hand and arm motions to Rathbun, Villanueva shout-
ed, "Come on, come on, let's go."
7. Events of the evening of June 211
That evening Payne, Villareal, Rathbun, and Frank
Aguilar, the computer programer, worked late on some
reports. At approximately 4:30 p.m., they observed a
large group of between 30-40 people, including strikers
and nonemployee strikers, massed in front of tree B,
across Industrial Boulevard from the C.P. & L. Entrance
Road intersection. At approximately 5:30, George
Eichler and two strikers drove up to the crowd and
began what appeared to be a meeting which continued
past 6:30. At that hour, Payne and the others finished
their work, left the office, and walked to their respective
cars. Rathbun and Aguilar, with the latter in front, drove
through gate C, and both turned right on C.P. & L. En-
trance Road toward Industrial Boulevard.
As Aguilar turned his car onto Industrial Boulevard, a
large number of the crowd, which was massed around
tree B, broke away and, screaming and yelling, ran
across the road, surrounded Aguilar's car, and proceeded
to kick and bang on the body of the car. Meanwhile,
Rathbun had followed Aguilar and, consequently, was
forced to stop by what was happening to Aguilar. The
crowd permitted Aguilar to pass but then surrounded
Rathbun's car before he could follow and engaged in the
same conduct-shouting and beating on the sides of the
car with their hands and fists. Among the crowd, Rath-
bun recognized Pena and Villanueva; however, Rathbun
admitted that he did not see either hitting his car and
that despite the banging no damage was done to his car.
Meanwhile, Villareal had waited for Payne to lock
gate C, and then each drove down C.P. & L. Entrance
Road toward Industrial Boulevard. However, because of
the commotion at the intersection, when Villareal, who
was in front of Payne, reached the scene, he was forced
to stop his car. According to Villareal, "I took a left
turn, and this mob . . . just massed around my car and
started kicking it and banging on the windows .... I
" The description of events in this section is an amalgam of the uncon-
troverted testimonies of Payne, Villareal, and Rathbun. Upon being ques-
tioned as to whether certain strikers were among the crowd. Payne an-
swered that Jose H. Villarreal was a participant. However, Payne did not
again mention Villarreal's presence nor did Rathbun nor Juventino Vil-
lareal state that Jose H. Villarreal was present. Accordingly, I believe
Payne's reference to Jose H. Villarreal may have been an inadvertent
mistake, and I do not believe Respondent thought he was a participant,
494
LAREDO COCA COLA BOTTLING CO.
started crawling my way through . . . and, finally, I
managed to get away and pulled out of there." While
surrounding his car, the crowd "kicked it and they
pounded on it with their fists, on the hood, on the roof,
on the trunk, on the sides." As to the identities of the
participants, Villareal remembered "specifically Pena and
Villanueva pounding and kicking my car." While unable
to recall who did what damage, Villareal testified that
there were a few dents on the sides of his car as a result
of the incident.
Closely following Villareal's car was that driven by
Paul Payne, who stopped "one to two feet behind his
rear bumper." Villareal slowly moved through the
crowd until he had room to accelerate, and, as Villareal
did so, so did Payne. As his car's speed increased, ac-
cording to Payne, "somebody kicked the right rear quar-
ter panel of my car, and dented it." While unable to
identify who kicked his own car, Payne identified Villan-
ueva as one of the individuals who pounded on Villar-
eal's car. Payne also testified that the repair cost for the
damage to his car was approximately $1,000.
8. Events of June 8 2
At approximately 1:10 p.m. on June 8, Juventino Vil-
lareal returned from lunch and drove his car onto the
plant property through gate C. Enrique Villanueva was
picketing at the gate. As Villareal left his car and walked
towards the office, Villanueva began gesturing to Villar-
eal as if he wished to provoke a fight. As Villanueva did
so, he said in Spanish, "You son-of-a-bitch. You god-
damn queer, come on, let's you and I get up each other's
hands. Let's have a good fight. Let's throw some
punches. You son-of-a-bitch." Villanueva thereupon fin-
ished gesturing and "shot the finger at me, quite a few
times." No fight ensued.
9. Events of June 13 3
Arnulfo Molina, Jr., is a route supervisor for Respond-
ent, and, occasionally during the strike, he went out on
the trucks. On June 13, he drove a route with helpers
Leonard Espanosa and Edna Felany. That afternoon as
he drove toward the plant on Industrial Boulevard and
crossed over the Missouri Pacific Railroad tracks,
Molina noticed several strikers standing near tree B. Just
as he crossed the tracks, one of the strikers, Enrique Vil-
lanueva, picked up an object from the ground. Molina
kept his attention on the road, and one of the helpers
yelled that Villanueva was about to throw the object.
Molina turned and observed Villanueva throw something
at the truck. Molina never saw the object; however, after
the truck pulled into the plant yard, Molina noticed can-
taloupe seeds splattered on the side of the truck and sur-
mised that the object had, indeed, been a cantaloupe.
Molina admitted that no damage resulted to the truck
and that it was just a matter of washing the material off
to repair what had been done.
12 The description of events is from the uncontroverted testimony of
Juventino Villareal.
'" The description of events is from the uncontroverted testimony of
Arnulfo Molina, Jr.
10. Events of June 15'4
Martha Arredondo is an office worker for Respondent,
and her brother was hired as a strike replacement
worker. On the morning of June 15, she was driving her
brother to work in her car. As she drove along Industrial
Boulevard toward the plant, Arredondo was forced to
stop and wait for a train to pass on the Missouri Pacific
Railroad tracks. Another car stopped behind her.
Arredondo observed approximately 10 strikers, includ-
ing Raymundo Iruegas and Rodolfo Pena, standing near
tree C, which was on the north side of Industrial Boule-
vard. As Arredondo waited for the train to pass, "several
strikers, including Iruegas and Pena, ran to and sur-
rounded her car" and "they started banging their fists on
the windows and banging on the car, kicking on the
tires" and shouting at Arredondo and her brother. How-
ever, seeing the strikers come toward her car, Arre-
dondo had rolled up the windows and locked the door
but because the car behind her was only a few feet away
she could not back up and escape. After no more than 5
minutes, the train passed and the strikers permitted her
car to move ahead. Thereupon, Arredondo immediately
drove onto the plant property through gate C; she re-
ported the incident to Paul Payne, and the latter tele-
phoned the police. A short while later, Arredondo no-
ticed that police officers were speaking to strikers near
tree C. Arredondo admitted that no damage was done to
her car as a result of the incident, and there is no evi-
dence in the record that any criminal charges were filed
against any of the incident participants.
That evening, Arredondo was sitting on the steps lead-
ing up to the front door of her house when a dark col-
ored car drove slowly past her house. As it did so, the
driver yelled out in Spanish, "What's going on, Martha?"
The car then drove slowly away. Arredondo was unable
to identify the driver.
11. Events of June 1715
On the morning of June 17, Arredondo returned home
from a shopping trip. She parked her car on the street,
and, as she locked the door, she observed Rodolfo Pena
drive slowly past her house in a blue colored car, look-
ing at her. Frightened because of what occurred 2 days
before, Arredondo decided to drive to a friend's house,
got inside the car, and pulled away. Pena, whose car
faced the opposite direction, made a U-turn and pulled
ahead of Arredondo. When the latter turned toward her
friend's house, Pena continued going straight.
Arredondo arrived at her friend's house and went
inside. Five minutes later, she looked out the front
window and saw Pena parked outside in the blue colored
car. A few minutes later, another striker drove up and
parked outside the house. Arredondo remained at this lo-
cation for 30 minutes but then decided to return to her
home. However, before leaving, she telephoned the sher-
iff's office and requested that a deputy meet her at her
" The description of events is from the uncontroverted testimony of
Martha Arredondo.
Is The description of events is taken from the uncontroverted testimo-
ny of Martha Arredondo.
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house. Arredondo then left her friend's house and drove
in the direction of her house. Both Pena and the other
striker followed in their cars; however, Arredondo left
them standing at a red light and lost them. During the
entire time, Pena neither left his vehicle nor said any-
thing to Arredondo.
12. Events of June 3016
Daniel Ramos, who worked during the strike, was em-
ployed as a loader and route helper. Because he did not
own a car, on June 30 Ramos arranged for a friend to
pick him up at Respondent's plant at 7:15 p.m. He fin-
ished work at 6:15, and, for the next hour, he waited in
front of the maintenance shed. At approximately 7 p.m.,
he observed employee Joe Perez, driving his car, leave
the plant through gate A, and turn left on Industrial
Boulevard. A group of nine strikers were standing next
to tree A, which is directly across the boulevard from
gate A, and Ramos recognized Jose H. Villarreal among
the strikers. Ramos further observed two female passen-
gers in Perez' car.
As Perez passed the group of strikers, several shouted,
in Spanish, that the girls were "whores" and "bitches"
and that Ramos was a "fag." Also, according to Ramos,
"I heard some broken glass, like a rock had hit the
window of [Perez'] car, and, as they drove up, I saw
[Perez] turn into the C.P. & L. Road .... " Ramos'
friend arrived 5 minutes later. As they drove down In-
dustrial Boulevard toward Santa Maria, Ramos observed
Perez' car in the office parking area.
The car crossed over the Missouri Pacific Railroad
tracks, and Ramos saw strikers Raymundo Iruegas, Enri-
que Villanueva, and Oscar Lopez standing next to tree
C. The car passed them, and Lopez shouted that Ramos
was next. As Ramos and his friend reached the Santa
Maria intersection, Ramos noticed Iruegas' distinctive
brown pickup truck directly behind his friend's car.
Inside the truck were Iruegas, Villanueva, and striker
Juan Morales. Ramos told his friend what he saw, and
their car proceeded across Santa Maria onto the 1-35 ex-
pressway. Iruegas followed onto the highway, and
Ramos' friend increased his speed in an effort to lose
Iruegas. However, Iruegas kept pace and closely fol-
lowed the car as Ramos and his friend left the highway
and proceeded for several blocks until they arrived at a
stoplight at the intersection of Springfield and Lion. As
Ramos' friend stopped, Iruegas pulled his truck along-
side.
Iruegas, Villanueva, and Morales got out of the truck
and walked over to the car. Iruegas and Villanueva
stayed by the driver's side while Morales wandered over
to Ramos' side. Thereupon, Morales began beating on
the window and door, and Iruegas and Villanueva began
cursing at Ramos, calling him a "fag" and a "son-of-a-
bitch." The light then changed and Ramos asked his
friend to drive away quickly.
The car continued down Lion until Ramos and his
friend stopped at a stop sign at the intersection of Lion
and Bartlett. They were stopped behind another vehicle
'' The description of events is taken from the uncontroverted testimo-
ny of Daniel Ramos.
as Iruegas came from behind and cut in front of the car,
blocking it from going forward. Iruegas, Villanueva, and
Morales again left the truck and stood by the driver's
door. All three began cursing, and Villanueva yelled,
"[T]hat if I didn't stop working, I was going to be beat
up." He repeated this threat several times while the
others continued cursing and yelling that we were not
helping the strike by working and that they were trying
to make things better. Finally, Ramos signaled that he
wanted to talk. Villanueva told Ramos that, if he did not
work, they would leave him alone. Ramos said okay if
that meant they would leave his family alone. Then,
Ramos shook the strikers' hands and the latter three re-
turned to the truck and drove off.
C. Analysis of Respondent's Refusal To Reinstate
Iruegas, Pena, Villanueva, and Villarreal
1. Legal setting, Respondent's honest belief, and
what constitutes sufficiently serious strike
misconduct to deny reinstatement
The Supreme Court has long recognized that actions
taken against strikers are inherently destructive of Sec-
tion 7 rights. N.L.R.B v. Great Dane Trailers, Inc., 388
U.S. 26 (1967). In all cases involving either the discharge
of or the refusal to reinstate strikers for having engaged
in alleged acts of misconduct, "the burden of proving
discrimination is that of the General Counsel." Rubin
Bros. Footwear, Inc., etc., 99 NLRB 610, 611 (1952). Ac-
cordingly, the General Counsel must first establish that
an individual was, in fact, a striker and that an employer
took some action against him for conduct while said indi-
vidual engaged in the strike. At that point, the burden
shifts to the respondent which must prove that it enter-
tained an honest belief that the striking employees have
engaged in misconduct. Such constitutes an adequate de-
fense to a charge of discrimination in refusing to reinstate
strikers except where the General Counsel affirmatively
establishes that the employees did not, in fact, engage in
such misconduct or where the conduct in question was
not "so flagrant or egregious as to require subordination
of the employees' protected rights in order to vindicate
the broader interest of society as a whole." Dallas Gener-
al Drivers, Warehousemen and Helpers, Local Union No.
745, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America [Farm-
ers Co-operative Gin Association] v. N.L.R.B., 389 F.2d
553 (D.C. Cir. 1968); Gold Kist, Inc., 245 NLRB 1095
(1979); Birch Tree Number One, Incorporated, d/b/a Birch
View Manor, 243 NLRB 495 (1979); Co-Con, Inc., 238
NLRB 283 (1978); Rubin Bros., supra. Once the General
Counsel has established that the misconduct did not
occur, the burden shifts to the respondent to rebut the
denials. Gold Kist, Inc., supra.
Herein, Respondent, in its answer, admitted that Irue-
gas, Pena, Villanueva, and Jose H. Villarreal were strik-
ers and that they were terminated because of their activi-
ties during the strike, which lasted from March 14, 1978,
through January 10, 1979. Respondent further established
that these individuals were denied reinstatement based on
eyewitness accounts that they engaged in serious inci-
496
LAREDO COCA COLA BOTTLING CO.
dents of violence and misconduct while striking. Con-
trary to Respondent, counsel for the General Counsel as-
serts that Respondent did not have an honest belief that
any of these strikers engaged in misconduct, arguing that
such "belief has to be based on something of such grava-
men as to remove an employee from the protection of
the Act." Contrary to counsel for the General Counsel,
such is not the standard for determining the validity of
an employer's honest belief. Rather, the Board has held
that proof of the foregoing need not be "conclusive" and
that there need not be certainty as to guilt. Farmers Co-
Operative Gin Association, 161 NLRB 887, 911 (1966).
Factors, on which the Board has relied in testing an em-
ployer's honest belief, include the existence of independ-
ent evidence of unlawful animus; whether the reports,
upon which the employer acted, were reliable and credi-
ble, not without foundation, and promptly reported; and
whether the witnesses themselves were worthy of belief.
Birch View Manor, supra; Giddings & Lewis, Inc., 240
NLRB 441 (1979); Associated Grocers of New England,
Inc., 227 NLRB 1200 (1977), enfd. in part 562 F.2d 1333
(Ist Cir.). Herein, the identical eyewitness accounts,
upon which Respondent based its decisions to deny rein-
statement, were uncontroverted at the hearing, and there
is no evidence in the record to establish that Respondent
should have questioned their accuracy or reliability.
Birch View Manor, supra. Further, while there is nothing
to indicate that Respondent sought the strikers' versions
of these events, it is reasonable to rely on eyewitness ac-
counts without doing so. Associated Grocers of New Eng-
land, supra. Finally, there is no evidence that Respondent
"altered its planned course of action because of antiunion
motivation." Birch View Manor supra at 4. 17 Accordingly,
based on the foregoing, and the record as a whole, I be-
lieve Respondent has established that its actions herein
were based on an honest belief that Iruegas, Pena, Vil-
lanueva, and Jose H. Villarrealt' engaged in misconduct
sufficiently serious to deny them reinstatement.
Neither Iruegas, Pena, Villanueva, nor Jose H. Villar-
real testified in his own behalf at the hearing. Therefore,
counsel for the General Counsel did not affirmatively es-
tablish and meet his burden of proof that the alleged dis-
criminatees did not, in fact, engage in the above-de-
scribed acts of violence and misconduct. Rubin Bros..
supra. Rather, he apparently asserts that their respective
" While I note that, on April 12, Paul Payne told The Laredo Times
that all strikers would be replaced, Respondent did, in fact, reinstate all
but seven of the individuals who unconditionally offered to return to
work. Other than that, there was no evidence of unlawful animus in the
record toward the strikers-either generally or toward specific individ-
uals.
" Counsel for the General Counsel suggests strongly that Respondent
could not have had an honest belief that Jose H. Villarreal threw the
brick at Elva Martinez' van on April 14 inasmuch as she could not identi-
fy the driver. However, while not seeing the driver or license number,
Martinez did recognize the car as being identical to one which she ob-
served parked across from the plant and later pointed to Villarreal's red
and white Ford as the car she saw. Given these circumstances and the
observation of Villarreal driving his own vehicle during other strike-re-
lated incidents, I believe Respondent did have an honest belief that Vil-
larreal was the driver of his vehicle as it sped away from Martinez' house
on April 14. In any event, Villarreal, who was at all times present in the
hearing room, did not deny the incident. Finally, it is gainsaid that the
degree of proof necessary to establish an honest belief need not be "con-
clusive" as to guilt. Farmers Co-Operative Gin Assocaition, supra.
conduct was not sufficiently serious in nature so as to
disqualify them from the protection of the Act. Hedstrom
Company, a Subsidiary of Brown Group, Inc., 235 NLRB
1198 (1978). In this latter regard, it is axiomatic that "not
every impropriety committed in the course of a strike
deprives an employee of the protective mantle of the
Act." Coronet Casuals, Inc., 207 NLRB 304 (1973). Thus,
the Board differentiates "between those cases in which
employees have arguably exceeded the bounds of lawful
conduct . . . in a 'moment of animal exuberance' from
those cases in which the conduct is . . . flagrant and
egregious .... " W. C. McQuaide, Inc., 220 NLRB 593-
594 (1975), enfd. in part 552 F.2d 519 (3d Cir. 1977).
Finally, I note that both the Board and the United
States Court of Appeals for the Fifth Circuit have con-
cluded that the strike herein was an unfair labor practice
strike. (241 NLRB 167, fn. 2 (1979).) As such, both the
Board and the courts have recognized that the miscon-
duct of unfair labor practice strikers "must be balanced
against the severity of the employer's unfair labor prac-
tices which provoked the dispute." Mosher Steel Compa-
ny v. N.L.R.B., 568 F.2d 436, 441 (5th Cir. 1978);
N.L.R.B. v. Thayer Company, etc., 213 F.2d 748, 756 (Ist
Cir. 1954); Hedstrom Company, supra; Bromine Division,
Drug Research, Inc., 233 NLRB 253 (1977). Nevertheless,
I agree with the rationale of the Fifth Circuit that such a
balancing test should not be utilized "where the effect
would ratify .. . retaliation not against the employer,
but against . . fellow worker[s]."Mosher Steel Company,
supra at 442.
2. Was Respondent legally justified in denying
reinstatement to Raymundo Iruegas?
The record establishes that Raymundo Iruegas en-
gaged in the following acts of misconduct and that Re-
spondent refused to reinstate him based on said acts: On
March 31, in his distinctive brown pickup truck, follow-
ing a car driven by employee Jorge Mario Ruiz, imped-
ing the latter from continuing by stopping his truck in
front of Ruiz' car, and either engaging in or condoning
threats to Ruiz while banging on and kicking the latter's
car; on June 15, among a group of strikers, surrounding
the car of employee Martha Arredondo while the latter
waited for a passing train, shouting at Arredondo, and
beating on her car; and on June 30, in his pickup truck,
following an auto in which employee Daniel Ramos was
a passenger, stopping next to and then blocking the car
from driving ahead, and condoning the banging on the
car by another striker and the shouting of threats at
Ramos by Enrique Villanueva. As to the March 31 inci-
dent, counsel for the General Counsel asserts that the
record fails to establish that Iruegas or any other striker
threatened Ruiz or engaged in any other serious miscon-
duct that day; however, I have previously credited the
testimony of Bosenberg and Ruiz as to the events of that
day and believe that Iruegas did, indeed, engage in the
conduct, which has been ascribed to him. With regard to
the Arredondo June 15 incident, counsel for the General
Counsel argues that Iruegas' conduct was not sufficiently
serious to justify refusal to reinstate. Finally, counsel for
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel offered no position on the June 30
Ramos incident "in the interest of brevity and economy."
Based on the foregoing, and the record as a whole, I
believe that Iruegas' aforementioned misconduct was suf-
ficiently flagrant to justify Respondent in refusing to re-
instate him. Initially, I note that each of the described in-
cidents involved verbal taunting or threats accompanied
by physical gestures or actual acts of violence. Thus, the
"threats of personal physical injury [combined] with ac-
tions that would tend to give import to the expressions
of violence [were] . . . sufficiently egregious to remove
them from the protective mantle of the Act." W C.
McQuaide, supra at 594. Further, it makes no difference
whether Iruegas participated in or merely condoned the
above conduct, for the record is patent that he willingly
lent his presence to the activities and did nothing to
either halt or disassociate himself from the conduct. Gid-
dings & Lewis, Inc., 240 NLRB 272 (1979); Alcan Cable
West, a Division of Alcan Aluminum Cororation, 214
NLRB 236 (1974); The Firestone Tire & Rubber Company,
187 NLRB 54, 55 (1970). Also, this is not a case in
which strikers peacefully followed a nonstriker's car.
Southwestern Pipe, Inc., 179 NLRB 364 (1969). Further,
even adopting the "balancing test" attendant to cases in-
volving violence during unfair labor practice strikes, the
Act does not condone violence and intimidation of such
a serious nature. Acker Industries, Inc., 184 NLRB 472,
483 (1970). Accordingly, I shall recommend that the
8(a)(l) and (3) allegation in the complaint regarding Irue-
gas be dismissed.
3. Was Respondent legally justified in denying
reinstatement to Rodolfo Pena?
The record establishes that Rodolfo Pena engaged in
the following acts of misconduct and that Respondent re-
fused to reinstate him based on said acts: On the after-
noon of June 2, shouting threats at three job applicants
after the latter individuals departed from a car in the
office parking area near gate C; on the evening of June
2, with a large crowd of strikers, surrounding the cars of
Paul Payne, Juventino Villareal, Edward Rathbun, and
Frank Aguilar, banging on and kicking the sides of the
cars, and generally obstructing the passage of the vehi-
cles; on June 15, among a group of strikers, including
Iruegas, surrounding the car of Martha Arredondo and
beating on the sides of the car; and, on June 17, in a blue
colored car, following Arredondo to her friend's house
and back. While not specifically discussing the June 2
(afternoon) incident, counsel for the General Counsel
characterized all testimony, concerning alleged verbal
threats and name-calling, as insufficient to justify a refus-
al to reinstate. Likewise, counsel for the General Counsel
characterizes the June 15 and 17 Arredondo incidents as
not sufficiently serious to justify a refusal to reinstate. Fi-
nally, as to the June 2 (evening) episode, he argues that
inasmuch as Respondent offered reinstatement to other
participants, Respondent cannot justify its actions as to
Pena and Villanueva, who also participated.
Based on the foregoing, and the record as a whole, I
believe that Pena's aforementioned misconduct was suffi-
ciently flagrant and egregious to justify Respondent in
refusing to offer him reinstatement. In so concluding, I
do not rely on the events on the afternoon of June 2.
While the Board has never condoned such language as
used by Pena, "strikes frequently cause hard and bitter
feelings and are not normally accompanied by chivalry
on the part of strikers." Arrow Industries, Inc., 245 NLRB
1376 (1979). Moreover, the Board has long held that
threats and name-calling, unaccompanied by any physical
acts or gestures that would provide added emphasis or
meaning to the words, are not sufficient basis to deny re-
instatement after a strike. MP Industries, Inc., et al., 227
NLRB 1709, 1711 (1977). Nor do I rely on the following
of Arredondo's car by Pena on June 17. "Annoying as
such conduct may be, the absence of danger to the non-
striker or others on the highway renders it insufficiently
serious to warrant discharge." Moore Business Forms,
Inc., 224 NLRB 393, 402 (1976), enfd. in part 574 F.2d
835 (5th Cir. 1978).
In reaching my conclusion regarding Pena, I rely on
the events of the evening of June 2 and the June 15 Ar-
redondo incident. As set forth above, counsel for the
General Counsel apparently concedes the seriousness of
the June 2 wanton attack on the cars of Payne, Villareal,
Rathbun, and Aguilar by the mob of strikers and possibly
nonstrikers and the obstruction of their passage. Both
Pena and Enrique Villanueva were identified as partici-
pants in the unprovoked attack. Such a serious incident is
itself sufficiently egregious to warrant dismissal. Giddings
& Lewis, Inc., supra. Moreover, the events of that eve-
ning should not be confused with incidents of peaceful
and momentary blocking of egress from a plant during a
strike. MP Industries, supra at 1776. Finally, while Re-
spondent's prior 8(a)(l) and (3) violations were of course
serious, such conduct was not so blatant as to provoke
and excuse the June 2 attack. Bromine Divsion, supra. As
to counsel for the General Counsel's contention that Re-
spondent condoned the behavior of other participants in
this incident, such an argument utterly disregards the tes-
timony of Union Official Eichler, who testified that,
when the strike ended, Respondent refused to reinstate
several other employees, including other participants in
the June 2 incident, but that, after lengthy collective bar-
gaining, Respondent agreed to reinstate all but the
Charging Parties and two others. In these circumstances,
it could hardly be said that Respondent condoned the ac-
tivities of any of the participants or that Pena is a victim
of disparate treatment. Finally, as with Iruegas, I rely on
the attack on Arredondo's automobile on June 15 as jus-
tification for Respondent's denial of reinstatement to
Pena. W. C. McQuaide, supra. Accordingly, I shall rec-
ommend that the 8(a)(l) and (3) allegations of the com-
plaint regarding Pena be dismissed.
4. Was Respondent legally justified in denying
reinstatement to Enrique Villanueva?
The record establishes that Enrique Villanueva en-
gaged in the following acts of misconduct and that Re-
spondent refused to reinstate him based on said acts: On
March 31, while riding with Iruegas, following a car
driven by employee Ruiz and either engaging in or con-
doning threats to Ruiz while banging on and kicking the
latter's car; on the afternoon of June 2, while picketing
498
LAREDO COCA COLA BOTTLING CO.
with Pena at gate C, taunting and threatening three job
applicants, and attempting to provoke a fight with Rath-
bun; on the evening of June 2, participating in the attack
on automobiles which were driven by Aguilar, Rathbun,
Villareal, and Payne; on June 8, while picketing at gate
C, cursing at and attempting to provoke a fight with Ju-
ventino Villareal; on June 13, throwing a cantaloupe at
one of Respondent's trucks; on June 30, while riding in
Iruegas' pickup truck, following employee Ramos, con-
doning the banging on the side of the latter's car by an-
other striker, and threatening bodily injury to Ramos.
Contrary to counsel for the General Counsel, I previous-
ly concluded that the events of March 31 did, indeed,
occur and further conclude that Villanueva engaged in
the conduct which is ascribed to him. As to the events of
June 2 (afternoon) and June 8, counsel for the General
Counsel characterizes such conduct as insufficient to jus-
tify a refusal to reinstate. Concerning the alleged canta-
loupe-throwing incident and the June 30 Ramos incident,
as stated above, counsel for the General Counsel did not
discuss said incidents in his post-hearing brief "in the in-
terest of brevity and economy." Finally, as to the June 2
(evening) incident, I have previously stated that counsel
for the General Counsel apparently concedes the egre-
gious nature of the episode but asserts that Respondent
condoned the conduct of several participants but not that
of the Charging Parties.
Based on the foregoing, and the record as a whole, I
believe that Villanueva's aforementioned misconduct was
sufficiently serious and flagrant to justify Respondent in
refusing to reinstate him. In so concluding, I do not rely
on either the events of June 2 (afternoon) or the taunting
of Juventino Villareal on June 8. Arrow Industries, Inc.,
supra; MP Industries, supra. Nor do I rely on the canta-
loupe-throwing incident of June 13. A splattered canta-
loupe, while messy and somewhat difficult and annoying
to clean up, certainly is not of such an egregious nature
as to warrant Respondent's failure to reinstate. Robbins
Company, 233 NLRB 549 (1977); Larand Leisurelies, Inc.,
222 NLRB 838, 845 (1976). Rather, for reasons stated
above, I rely on the March 31 Ruiz incident, the June 2
(evening) wanton and unprovoked attack on the auto-
mobiles of Aguilar, Rathbun, Payne, and Villareal, and
the June 30 Ramos incident as involving conduct of such
a serious nature as to require subordination of Villanue-
va's rights under the Act in order to vindicate the broad-
er interests of society. W. C. McQuaide, supra. Thus, not
only did his conduct involve verbal taunting and threats,
but also physical actions to add import to his expressions
of violence. This is so, of course, notwithstanding that he
may have accompanied others who engaged in the actual
misconduct. Giddings & Lewis, Inc., supra. Finally, Re-
spondent's prior unfair labor practices can, in no way, be
said to justify or excuse his conduct vis-a-vis innocent em-
ployees. Mosher Steel, supra. Accordingly, I shall recom-
mend that the 8(a)(1) and (3) allegations of the complaint
regarding Villanueva be dismissed.
5. Was Respondent legally justified in denying
reinstatement to Jose H. Villarreal?
The record establishes that Jose H. Villarreal engaged
in the following acts of misconduct and that Respondent
refused to reinstate him based on said acts: During the
first 2 weeks of April, taunting and name-calling directed
at strike replacement Patricia Perez; on April 13 (after-
noon), participating in the blocking of the egress of Re-
spondent's delivery truck at the U.S. Customs Office at
the Laredo Airport and threatening Respondent's man-
agerial personnel; on April 13 (evening), in his auto-
mobile, following Paul Payne, who was driving replace-
ment drivers in the company van to their temporary resi-
dence, at a high rate of speed along a main street in
Laredo; and on June 30, in a crowd of strikers, when a
rock was thrown at the car of a nonstriker, shattering
the windshield. The record further establishes that Re-
spondent honestly believed that Villarreal, while driving
his own distinctive red and white colored Ford past the
house of nonstriker Elva Martinez on the night of April
14, was responsible for, or involved in, the throwing of a
brick at the latter's family van, shattering the windshield
and causing other damage, and that this incident was an-
other factor upon which Respondent refused to reinstate
Villarreal. As to the April 13 U.S. Customs Office inci-
dent, counsel for the General Counsel argues that no
damage was done and that the alleged misconduct was
not sufficiently serious to cause termination. Regarding
the following of the van driven by Paul Payne on April
13, counsel for the General Counsel likewise argues that
the misconduct was insufficient to justify Respondent's
failure to reinstate.
The record discloses, and I believe, that Respondent
honestly believed that Villarreal participated in the
throwing of a brick at the van of Elva Martinez on April
14. Inasmuch as Villarreal was not called as a rebuttal
witness, counsel for the General Counsel failed to meet
his burden of proof that Villarreal did not, in fact,
engage in such conduct. In these circumstances, I am re-
quired to find that Respondent has established "an ade-
quate defense" to the charge of unlawfully refusing to
reinstate Villarreal unless the act was not sufficiently se-
rious as to deny him the protection of the Act. Gold Kist,
supra; Rubin Bros. supra. The Board has long held that
such a deliberate act of violence, committed upon the
property of a nonstriker, is the kind of behavior which
would disqualify a striker from reinstatement. Byran In-
fants Wear Company, 235 NLRB 1305, 1310 (1978). Ac-
cordingly, I believe that Respondent was justified in not
offering reinstatement to Villarreal and shall recommend
dismissal of the allegations of the complaint regarding
Villarreal.
In so ruling, I do not rely on Villarreal's other acts of
misconduct. As to the blocking of Respondent's delivery
truck at the Laredo Airport, the delivery was not imped-
ed nor was there any resulting damage. Coronet Casuals,
supra at 308. As to the high-speed chase of Payne's van,
the record discloses that Payne increased the van's speed
on his own accord and that at no time did Villarreal at-
tempt to force Payne off the road or drive so wreckless-
ly as to endanger others. Advance Patter and Machine
Corporation d/b/a Gibraltar Sprocket Co., 241 NLRB 501
(1979); Moore Business Forms, supra. Further, name-call-
ing or threats at nonstrikers, without more, has not been
considered as sufficiently serious to permit a denial of re-
499
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instatement. W. C. McQuaide, supra. Finally, while Vil-
larreal may have been in a crowd when a rock was
thrown, without evidence of complicity or condonation,
such is not sufficient to deny reinstatement. MP Indus-
tries, supra.
D. The Refusal To Reinstate Luis Inocencio
Luis Inocencio was employed by Respondent as either
a truckdriver or a truck helper and participated in the
strike, which lasted from March 14 until January 10,
1979. On July 6, Inocencio pleaded guilty and was subse-
quently convicted of the criminal offense of possession of
marijuana, class A, a misdemeanor under the criminal
statutes of the State of Texas. He was fined $400 and
sentenced to I year's confinement in the county jail,
which was ultimately served by granting Inocencio pro-
bation. On Friday, July 7, The Laredo News, a local
newspaper, reported Inocencio's conviction and sentence
but failed to specify whether it was a felony or misde-
meanor conviction.
Assistant Manager Juventino Villareal testified that he
read this newspaper article and, inasmuch as he was not
certain whether the individual, who was identified in the
article, was Respondent's employee, placed the article in
Inocencio's personnel file for future reference. Following
the termination of the strike, in the last week of January
1979, Respondent sent a letter to Inocencio, offering him
reinstatement to his former position. Pursuant thereto, he
arrived at the plant office one morning between January
28 and 30 at approximately 9 a.m. Inocencio spoke to
Villareal, who initially gave Inocencio a form to fill out,
updating any changes in personnel data. Then, according
to Villareal, he handed Inocencio the newspaper clipping
and asked if he were the individual identified therein. In-
ocencio admitted that the article referred to him. Villar-
eal responded, "Well, Luis, you know, the company has
a policy that we do not employ anyone that has been
convicted of possession of marijuana or narcotics." Ino-
cencio asked whether that was what Villareal wanted to
tell him. The latter replied that it was and that he needed
to confirm that it was Inocencio to whom the article re-
ferred. Inocencio again said it was and left the office.
Based on Inocencio's admission and the aforementioned
policy, according to Villareal, Inocencio was not offered
reinstatement by Respondent. While testifying at the
hearing, Inocencio did not deny the above-described
meeting.
Regarding Villareal's explanation to Inocencio for not
reinstating him, which is Respondent's defense to this al-
legation, the record reveals that its standard employment
application form contains the following question: "Have
you ever been convicted of a crime, excluding misde-
meanors and summary offenses?" When asked to explain
how an apparent policy of not hiring convicted felons
applied to Inocencio, whose drug conviction appears to
have been a misdemeanor offense, Villareal obliquely tes-
tified, "[T]here is a company policy not to hire anyone
being with possession of marijuana." When asked to ex-
plain the seeming conflict between these policies, Villar-
eal explained that the general policy, as set forth in the
employment application, not only applies to marijuana
convictions and that the policy is, "You know, if they
have been convicted of possession of marijuana, we don't
employ them."
Villareal further testified that this policy existed prior
to his employment. When again asked to define the
policy, he stated that Respondent would not employ
someone convicted of a felony and that while the policy
is not specifically directed at marijuana possession, "it's
just part of the company policy, you know .... It is
included." Villareal was then asked whether Respond-
ent's obdurate attitude toward marijuana convictions in-
cluded misdemeanors, and Villareal answered, "Yes, we
don't employ someone who has been convicted of mari-
juana possession." Further, Villareal admitted that he
was unaware of the legal distinction between a misde-
meanor and a felony; that, upon reading the newspaper
article, he believed Inocencio had been convicted of a
felony, but that, in reaching a decision as to Inocencio, it
made no difference that his offense was merely a misde-
meanor-possession of marijuana was enough.
Villareal testified that the marijuana policy was stated
to him by Lamar Gill when Villareal assumed his per-
sonnel duties. Paul Payne corroborated this, testifying
that Gill told him "that he did not want anyone that had
anything to do with drugs on our route trucks, because it
would be too easy of a cover for them for distribution."
Payne conceded that the drug policy is broader than the
normal felony conviction policy but that "it's just that
we don't want anything to do with drugs, because our
trucks are all over town, and it would be too easy to dis-
tribute drugs from our trucks." Payne elaborated, "If we
had knowledge that [employees] had drugs, we would
not want [them] in our organization at all." Both Villar-
eal and Payne testified that the drug policy had never
been enforced prior to denying reinstatement to Inocen-
cio.
Counsel for the General Counsel seemingly asserts that
Respondent's defense is pretextual, that it had no policy
of not hiring or retaining in its employ persons convicted
of misdemeanor offenses, that Inocencio was a good em-
ployee who made no effort to falsify or conceal his con-
viction, and that, notwithstanding his conviction, Inocen-
cio was "a fit subject for reinstatement." Contrary to
counsel for the General Counsel, Respondent contends
that Inocencio was denied reinstatement for reasons com-
pletely unrelated to his concerted or union activities-his
drug possession conviction.
Despite the inarticulated explanation of Respondent's
drug possession conviction policy by Juventino Villareal,
I believe a fair reading of his testimony and that of Paul
Payne conclusively establishes that such a policy does
exist, that it is broader than the felony conviction policy,
which is set forth on the employment application forms,
and that it encompasses all drug possession convictions-
both felony and misdemeanor. I credit their uncontro-
verted testimonies and further believe that this drug
policy existed but was not enforced-prior to the strike
herein. Concerning Villareal's rather confusing testimo-
ny, I note that he was asked technical questions regard-
ing the legal distinction between felonies and misdemean-
ors when he had no apparent legal training; that he an-
swered consistently regarding Respondent's marijuana
500
LAREDO COCA COLA BOTTLING CO.
policy; and that, while answers may not be articulate,
such does not necessarily mean they are fabricated.
In arguing that Inocencio was a "fit subject for rein-
statement," counsel for the General Counsel relies on
Board decisions, setting forth a policy that felony con-
victions and/or drug possession convictions do not
render an individual, who has been unlawfully terminat-
ed, unfit for reinstatement. " Notwithstanding the valid-
ity or lack of validity of said decisions, they are inappo-
site herein inasmuch as the instant case solely concerns
Respondent's motivation for terminating an employee.
One may disagree with what I believe to be Respond-
ent's conviction of drug possession policy; however, "it
is well established that an employer may discharge an
employee for a good reason, for a bad reason, or for no
reason at all-provided that it is not a reason proscribed
by the statute. It is equally well settled that the Board
may not substitute its judgment for that of an employer
in determining what is a justifiable reason for discharge."
Acrylic Optics Corporation, 222 NLRB 1105, 1106 (1976).
The core question, then, is whether the General Counsel
has made "a prima facie showing sufficient to support the
inference that [whatever] protected activity in which In-
ocencio engaged was a 'motivating factor' in [Respond-
ent's] . . . decision." Wright Line, a Division of Wright
Line, Inc., 251 NLRB 1083 (1981).
I do not believe that the record supports such a con-
clusion. Thus, at the termination of the strike, Respond-
ent offered reinstatement to 33 strikers, 18 of whom ac-
cepted. In these circumstances, it could hardly be said
that Respondent harbored unlawful animus against its
striking employees; including Inocencio, who had been
tentatively offered reinstatement subject to identification
as the individual in the newspaper story. Moreover,
there is no evidence that Inocencio engaged in any other
union or concerted activities or a scintilla of evidence of
independent unlawful animus as to him. This is not a
case of striker misconduct; rather, based on the record,
and Respondent's defense, Inocencio would have been
terminated notwithstanding the strike. In these circum-
stances, I do not believe that counsel for the General
Counsel has established by a preponderance of the evi-
dence that Respondent was unlawfully motivated in re-
fusing to reinstate Luis Inocencio.2 0 Accordingly, I shall
recommend that the allegations of the complaint regard-
ing Inocencio be dismissed. Wright Line, supra.
E. Respondent's Denial of Vacation Benefits to
Reinstated Strikers
Paragraph 12 of the complaint alleges that since on or
about June 12, 1979, Respondent has denied vacation
benefits to all reinstated strikers in violation of Section
8(aX)(1) and (3) of the Act. At the hearing, Respondent
did not contest the fact that vacation benefits were not
paid to said individuals but contends that they were not
entitled to such benefits pursuant to the terms of the Jan-
uary 1 to December 31, 1979, collective-bargaining
agreement between Respondent and the Union, inasmuch
' Jacob E. Decker & Sons, 244 NLRB 875 (1979).
2 In view of my decision herein, I have not considered Respondent's
alternative theory that, at some point during the strike, Inocencio aban-
doned the strike and, thereby, lost his status as an employee.
as the strikers were absent from work, as a consequence
of the strike during calendar year 1978, for periods in
excess of 180 hours and, thus, did not earn vacation
benefits.
Article XVI of the aforementioned collective-bargain-
ing agreement reads, inter alia, as follows:
ARTICLE XVI
Vacations
Section 1. Subject to the terms and conditions set
forth below in this Article, employees shall be enti-
tled to vacations as follows:
(d) Employees who are on the payroll as of the
effective date of this Agreement, and who have one
year or more of continuous service with the Com-
pany as of January 1, 1979, shall be eligible for one
(1) week of paid vacation. The "continuous service"
and the "vacation eligibility date" of such employ-
ees shall be measured from January I.
Section 3(a). The term "continuous service"
means an employee's continuous performance of
productive work for the Company during the 12-
month period immediately preceding his vacation
eligibility date. With respect to an employee who is
on the payroll as of the effective date of this Agree-
ment, and who has one year or more of continuous
service with the Company as of January 1, 1979,
such employee's "continuous service" is deemed
broken if he is absent 180 or more hours when he
was scheduled to work during the 12 months imme-
diately preceding his January I vacation eligibility
date. For the purpose of computing such 180 hours,
absences due to an employee's authorized vacation
time or holidays will not be counted; all other ab-
sences, for any reason whatsoever, shall be counted
in computing such 180 hours.
Section 4. It is understood and agreed that a va-
cation is granted in recognition of an employee's
"continuous service" to the Company during the
12-month period immediately preceding his vaca-
tion eligibility date. An employee who is absent for
180 or more hours (as computed in Section 3(a)
above) during the 12 months immediately preceding
his vacation eligibility date shall not be entitled to a
vacation.
As discussed infra, the aforementioned collective-bar-
gaining agreement, which was agreed upon on January
31, 1979, and signed on March 23, 1979, was based on
Respondent's final contract offer prior to the March 14,
1978, strike. George Eichler, whose testimony was un-
controverted and credible, testified that he was the
501
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's chief spokesman during the original negotiations;
that Respondent's attorney, Manitzas, was its representa-
tive; and that there were substantial negotiations regard-
ing the vacation section. According to Eichler, while
these discussions did involve absences from work and the
effect thereof on vacation entitlement, "we had no dis-
cussion at all in regards to time off due to the strike."
Regarding what was discussed on this issue, Eichler tes-
tified that the initial company proposal was that, if em-
ployees were absent more than a specified length of time,
they would not earn any vacation benefits. Eichler pro-
posed that neither time off for illness nor workmen's
compensation injuries be counted against an employee's
"continuous service"; however, Manitzas would not
agree, and these proposals were dropped. Eichler ad-
mitted he never specifically raised the matter of strike
time. Analysis of article XVI discloses that only vacation
or holiday absences are enumerated as not counting
against the contractual 180-hour absent limit.
While apparently conceding that the employees' terms
and conditions of employment are controlled by the col-
lective-bargaining agreement and that due to the strike
reinstated strikers were technically absent from work
more than 180 hours during 1978, counsel for the Gener-
al Counsel argues that an individual's right to strike is
clearly protected under the Act, that there is no mention
of strike time in the contract and strike time was never a
subject of bargaining, and that, in these circumstances,
the employees cannot be held to have waived a right
under the Act and have strike time counted against them.
Contrary to the General Counsel, Respondent argues
that the Board has never compelled employers to com-
pensate employees for strike time, that to require Re-
spondent to compensate the employees for their strike
time would force Respondent to finance the strike, that
the meaning and scope of article XVI, section 3(a), of
the agreement was thoroughly discussed by the parties,
and that Respondent was correctly implementing said
agreement by denying vacation benefits to employees. I
agree with Respondent and find that it lawfully withheld
vacation benefits from the reinstated strikers.
The initial-and, in my view, still controlling-deci-
sion on this issue is General Electric Company, 80 NLRB
510 (1948), in which the respondent refused to credit
striking employees, upon termination of a strike, with
continuous service for the period of said strike, which
action decreased employees' vacation benefits. As herein,
the parties' collective-bargaining agreement contained a
clause which required employees to earn continuous
service credits in order to become eligible for seniority,
vacation, and other benefits. Certain types of absences
were set forth as not counting against an individual's
continuous service. As herein, although not specifically
numerated, Respondent counted strike time against the
continuous service requirement. While not discussing the
negotiations on said clause or the effect of waiver, the
Board concluded that, unlike seniority, deferred benefits,
such as vacation benefits, "are, in reality, a form of
wages [and] . . . Respondent is not required under the
Act to finance an economic strike against it by renumer-
ating the strikers for work not performed." General Elec-
tric, supra at 511. In Mooney Aircraft, Inc., 148 NLRB
1057 (1964), the Board again decided whether an em-
ployer lawfully excluded strike time in computing vaca-
tion eligibility and concluded: "The Board does not
award backpay to strikers for wages lost during [a
strike]." Vacation benefits are a form of deferred wages
to which employees are not entitled during strike time.
Mooney Aircraft, supra at 1059.
The Board next considered this same question in Roe-
gelein Provisio Company, 181 NLRB 578 (1970), upon
which Respondent heavily relies. Therein, as in the in-
stant case, an employer refused to count strike time to-
wards vacation eligibility under a newly negotiated col-
lective-bargaining agreement, thereby denying reinstated
strikers the vacation benefits they would have earned if
they had worked during the strike. Said contract con-
tained a vacation clause similar to that involved herein-
with no mention of strike time. Unlike General Electric
Company, supra, the Board analyzed the contract negoti-
ations, found that the subject of vacations was discussed
on, at least, eight different occasions, and determined
that the matter of strike time was raised by the union but
rejected by the employer. Deciding the case upon the
facts without restating the legal principles set forth in
General Electric and Mooney Aircraft, the Board conclud-
ed that the respondent lawfully withheld the vacation
benefits from the reinstated strikers in the year after the
strike. The Board ruled that the meaning and scope of
the vacation clause were extensively discussed, that the
matter of strike time was raised and rejected, that there
was "no confusion" as to the clause's impact o returning
strikers, and that, therefore, "the losses incurred by the
strikers stemmed from good-faith collective bargaining
.... " Roegelein, supra at 580.
Counsel for the General Counsel argues that Respond-
ent's reliance on Roegelein is misplaced inasmuch as
herein, unlike that case, the subject of strike time was not
only never bargained away by the Union but also never
discussed. As support, counsel for the General Counsel
cites MCC Pacific Valves, a unit of Mark Controls Corpo-
ration, 244 NLRB 931 (1979), a case in which the re-
spondent, pursuant to a contractual provision, counted
strike time against strikers' seniority rights. In discussing
Roegelein, the Board noted that a key to its decision was
its "emphasis on the collective-bargaining process as the
method of obtaining a limitation on the rights of employ-
ees" and that "the vacation clause resulted from in-
formed good-faith negotiations." In deciding that strike
time was wrongfully utilized to limit employees' contrac-
tual seniority rights and that no good-faith negotiations
occurred on that issue, the Board relied on the fact that
"application of the clause to time lost during the strike
was never discussed by the parties." MCC Pacific Valves,
supra at 16-17. Citing this rationale, counsel for the Gen-
eral Counsel distinguishes Roegelein and argues that the
instant fact situation is controlled by MCC Pacific Valves.
While at first glance these arguments seem compelling,
close scrutiny reveals their fallacious nature. The logic
utilized by counsel for the General Counsel seems equal-
ly applicable to ratiocination that reinstated strikers are
entitled to wages for the period of their strike; however,
I believe he would concede that Respondent's employees
502
LAREDO COCA COLA BOTTLING CO.
are not entitled to such compensation-a position the
Board has historically maintained. Mooney Aircraft, supra.
As set forth above, the Board has also traditonally equat-
ed vacation benefits to wages and has never ordered that
strikers be compensated for the loss, incurred during a
strike, of said benefits if unaccrued. Hence, I believe
that, in order to prevail, counsel for the General Counsel
must explain why the equation of vacation benefits to
wages does not also apply in the instant case. He did not
do so, and I can find no valid reason for overturning
longstanding Board precedent. Mooney Aircraft, supra.
The fact that the Board found a failure of good-faith bar-
gaining over seniority rights in MCC Pacifc Valves does
not itself make such rationale applicable herein inasmuch
as the Board, in General Electric, distinguished between
vacation benefits and seniority rights, concluding that se-
niority is "one of the factors upon which the individual
employee's tenure of employment may depend" and that
"except to the extent that a striker may be replaced
during an economic strike, his employment relationship
cannot otherwise be severed or impaired because of his
strike activity." (Supra at 513.) The Board, then, has tra-
ditionally been concerned with discrimination against
strikers in this regard and not as to unaccrued economic
benefits. Freezer Queen Foods, Inc., 249 NLRB 330
(1980). Finally, while the Board may have decided Roe-
gelein on collective-bargaining principles and not on
those enunciated in General Electric and Mooney Aircraft,
such does not mandate a contrary result. The factual set-
ting of Roegelein lent itself to such a result, and the
Board often rules in such a fashion, rather than unneces-
sarily stating broad legal conclusions. Also, the choice
between two equally applicable legal principles does not
render that not chosen overruled or inapplicable unless
the Board so states. To date, I believe the precepts of
General Electric and Mooney Aircraft retain their prece-
dential value and, accordingly, shall recommend that this
allegation of the complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(l) and (3)
of the Act by failing and refusing to reinstate Rodolfo
Pena, Enrique Villanueva, Raymundo Iruegas, Jose H.
Villarreal, and Luis Inocencio at the conclusion of an
unfair labor practice strike.
4. Respondent did not violate Section 8(a)(1) and (3)
of the Act by not crediting employees for strike time in
determining eligibility for vacation benefits.
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record herein, and pursuant
to Section 10(c) of the Act, I recommend the issuance of
the following:
ORDER 21
The complaint shall be, and is, dismissed in its entirety.
21 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulations, be adopted by the Board and
becomes its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
503