Appeal on Application for Enforcement of an Order of the National Labor Relations Board dated August 26, 1982.
Hunter and Weis, Circuit Judges, and Dumbauld, District Judge.*fn*
In this enforcement proceeding, the National Labor Relations Board contends that an employee should be reinstated even though he made arson threats during a strike. Because the Board used a standard we had previously rejected, we will not enforce that reinstatement decision. In another instance, the Board concluded that the use of a knife during a picket line scuffle would have been justified as self defense. Because this premise conflicts with state criminal law under the facts here, we will not enforce the Board's order of reinstatement.
An ALJ found that the employer had discharged James Scott in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), but that there had been adequate grounds for the discharge of Robert J. Touchton. The Board affirmed as to Scott, but reversed as to Touchton, directing that both employees be reinstated. One member of the panel dissented, finding adequate justification for the dismissals of Scott and Touchton. The Board petitions for enforcement.
The respondent A. Duie Pyle, Inc. is in the business of transporting freight and warehousing. The company has its main warehouse and terminal facilities in West Chester, Pennsylvania and also maintains a large warehouse about 20 miles away in Parkesburg, Pennsylvania. Teamsters Local 312 represented three units of employees at the West Chester plant; the employees at Parkesburg were not unionized.
Events giving rise to this case occurred during an economic strike by Local 312 at the West Chester premises. The strike began on May 21, 1979 with picketing at West Chester and Parkesburg, although the Parkesburg employees were not on strike. On August 20, 1979, most of the West Chester employees returned to work. Later that year, the Teamsters Local was decertified as the bargaining agent for the West Chester units.
The strike was not dispassionate. The ALJ found that the record "shows a background of violence wherein union agents and striking employees appear to have attacked and destroyed Respondent's property including breaking truck windows, assaulting drivers of customer's trucks, and threatening customers crossing the picket line."
On May 25, 1979, the Court of Common Pleas of Chester County, Pennsylvania issued a preliminary injunction restraining the union from interfering with business at both facilities by threats and acts of intimidation, coercion, and violence. The union consented to the entry of this decree as well as an extension into late August. On June 8, the union and several of its members, including Touchton and Scott, were found in contempt of the injunction order.
The events leading to Touchton's discharge occurred on the night of May 31, 1979 at the nonstruck Parkesburg facility. Edward Givler, a warehouseman and truck driver, accompanied a plant guard who was investigating an unusual noise that seemed to come from the picket line located at the intersection of the state highway and the road leading to the company's warehouse. It was dark and the guard brought his dog along.
Givler stayed back about 300 feet from the intersection as the guard walked down the road. Both heard Touchton yell to inquire if the guard had brought his dog. The striker also threatened the guard, stating he would shoot the animal. As the guard walked back towards Givler, Touchton yelled: "Givler, your house is on fire." The guard heard him add: "if it is not now, it will be Saturday." Touchton repeated the first arson threat twice more within a ten minute span, and, as before, it was heard by Givler and the guard.
Givler owned a historic house built in 1736. He had renovated it at considerable expense and Touchton knew of Givler's exceptional pride in the house and the efforts given to its preservation. After Touchton's threat, Givler began to keep a loaded shotgun at his house, and asked the police and his father to keep a watch on the premises.
On the night of the Touchton incident, Givler reported it to James Latta, Jr., the president of the company. Latta was particularly sensitive to the threat because his house had been subjected to arson by a nonemployee one year before. The company wrote to Touchton on June 1, advising him that the May 31 incident would be investigated and that disciplinary measures might follow.
The company presented the arson threat to the Court of Common Pleas at a hearing on June 8 as one of several grounds for a contempt of court citation. Without admitting that any union member committed a criminal act, the union attorney consented to a finding of contempt. On June 11, 1979, the company discharged Touchton. He did not testify at the NLRB hearing that followed.
The ALJ found that Touchton made the arson threat because of its special meaning to Givler. Applying the Board's "physical acts or gestures" standard for discharge, the ALJ concluded that Touchton's conduct was the "coercive equivalent" of such acts and thus justified his discharge.The ALJ found it unnecessary to consider Givler's specific reaction to Touchton's words or Latta's particular sensitivity to arson threats. The General Counsel's assertion that the discharge was improperly based on the contempt citation was rejected. The Board majority disagreed with the ALJ's conclusion because Touchton's threats were not accompanied by "physical acts or gestures" and were not "sufficiently egregious" to deny reinstatement.
The facts surrounding the Scott discharge are more extensive. The company presented evidence implicating Scott in several incidents that arguably justified his discharge. The ALJ concluded, however, that Scott's discharge was based solely on his altercation with company supervisor Anthony Talamonti. Talamonti's and Scott's version of this incident varied substantially.
Late in the afternoon of May 31, after spending several hours at a nearby tavern, Scott parked his camper in a parking lot across the street from the company's West Chester facility. This vehicle consisted of a cabin, with a door at the rear, mounted on the bed of a pickup truck. The cabin was occupied by Scott, two other union members, and a female friend.
The ALJ found that as Talamonti walked by the camper, Scott uttered threats that Talamonti "reasonably construed as being directed against his home and family." He continued to the company office a block away, but after pondering the remarks, angrily returned "seeking to physically confront Scott."
The ALJ further found that as Talamonti approached the camper, he met Larry O'Connor, a union official, and said in reference to Scott that he "wanted that fuzzy faced [expletive]. I'm going to kill him." Scott then opened the rear door of the camper and taunted Talamonti with "what do you want, [expletive]." A scuffle between Talamonti and Scott then took place.
The witnesses disagreed as to whether Scott had a sheath knife in his right hand when he opened the camper door.Two of his fellow-picketers, Wilson and Davie, said they did not see a knife in Scott's ...