Cavanaugh, Reid J.

National Labor Relations Board - Board Decisions

Mar 24, 1981

255 N.L.R.B. 194 (N.L.R.B. 1981)

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reid J. Cavanaugh, Sole Proprietor and Chauffeurs,
Teamsters and Helpers Local Union 491 a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 6-CA-13088
March 24, 1981
DECISION AND ORDER
On December 5, 1980, Administrative Law
Judge Phil W. Saunders issued the attached Deci-
sion in this proceeding. Thereafter, the Respondent
filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
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, as
modified herein. 2
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, as herein
modified, and hereby orders that the Respondent,
Reid J. Cavanaugh, Connellsville, Pennsylvania, his
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed in Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In par. I(b) of his recommended Order, the Administrative Law
Judge included a broad cease-and-desist order against the Respondent.
We find it unnecessary to impose such a broad order against the Re-
spondent. As the General Counsel has not demonstrated that the Re-
spondent has a proclivity to violate the Act, or that the Respondent has
engaged in such widespread or egregious misconduct as to demonstrate a
general disregard for employees' fundamental statutory rights, a broad
order is not warranted here, Hickmott Foods, Inc., 242 NLRB 1357
(1979). Accordingly, we will modify the Administrative Law Judge's rec-
ommended Order by substituting narrow cease-and-desist language for
the broad language used by the Administrative Law Judge.
255 NLRB No. 20
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
I WILL NOT fail and/or refuse to reemploy
economic strikers who have unconditionally
requested reinstatement when work for which
they are qualified becomes available.
I WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
I WILL offer Robert Showman immediate
and full reinstatement to his former position
or, if that job no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or any other rights or privileges pre-
viously enjoyed, and I WILL make him whole
for his loss of earnings, with interest.
REID J. CAVANAUGH
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Judge: Based on a
charge filed on January 30, 1980, by International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union 491, herein the Union,
a complaint was issued on March 25, 1980, against Reid
J. Cavanaugh, referred to herein as Respondent or Ca-
vanaugh, alleging violations of Section 8(a)(1) and (3) of
the Act. Respondent filed an answer to the complaint
denying it had engaged in the alleged matter. Both the
General Counsel and the Respondent filed briefs in this
matter.
Upon the entire record in the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
REID J. CAVANAUGH 195
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a sole propri-
etorship with an office and place of business in Connells-
ville, Pennsylvania, has been engaged in the transporta-
tion of goods and materials, and during the 12-month
period ending February 29, 1980, Respondent, in the
course and conduct of its business operations, provided
services valued in excess of $50,000 for other enterprises
within the Commonwealth of Pennsylvania, including
Allied Mills, Inc.
At all times material herein, Allied Mills, Inc., an Indi-
ana corporation, has been engaged, inter alia, in the man-
ufacture, sale, and distribution of livestock and poultry
feeds, and during the 12-month period ending February
29, 1980, Allied Mills, Inc., in the course and conduct of
its business operations, sold and shipped from its Buffalo,
New York, facility products, goods, and materials valued
in excess of $50,000 directly to points outside the State
of New York.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
It is alleged in the complaint that from on or about
April 2, 1979, to on or about May 31, 1979, certain em-
ployees of Respondent working at the Connellsville fa-
cility, including Robert Showman, ceased work concer-
tedly and engaged in a strike in support of their union
organizational efforts; that on or about May 31, 1979,
Robert Showman made an unconditional offer to return
to his former or substantially equivalent position of em-
ployment; that since May 31, 1979, Respondent has failed
and refused to reinstate Showman; and that on or about
November 15, 1979, Respondent hired Leslie Myers and
did so without first offering reinstatement to Robert
Showman even though Showman occupied the same or
substantially equivalent position of employment as the
one for which Myers was hired and has since occupied.
Respondent is basically involved in the trucking and
excavating business, and prior to the strike, starting on
April 2, 1979, had a variety of different work including
the hauling of coal, feed, sand, stone, and other "dump
truck" type commodities. Respondent was also engaged
in some other general trucking operations involving
longer hauls. Consequently, Cavanaugh had two differ-
ent categories of drivers as indicated on his seniority
list-there is one list of drivers entitled "trailers," and
another list of drivers entitled "local and dump trucks,"
and the alleged discriminatee in this proceeding, Robert
Showman, was a local or dump truck driver prior to the
inception of the strike. Cavanaugh testified that his "long
haul drivers" were willing to take loads like the Allied
Mills type work and which required 6 a.m. appointments
in New York City, Allentown, or Baltimore, and these
people (over-the-road drivers) used sleeper cabs in
making their hauls. Cavanaugh stated that his local or
"dump truck drivers" operated dump trucks or dump
trailers, and all of them worked on a local basis-they
reported in the morning for their job assignments and
then would be back to the terminal at the end of the day.
It appears that Robert Showman was hired by Re-
spondent as a truckdriver on September 9, 1974, and
during his several years of employment with Respond-
ent, drove both dump trucks (also referred to as tri-axles)
and tractor trailers and in doing so hauled various com-
modities including sand, gravel, coal, dog food, and a
substance referred to as bonemeal or meat scraps. During
the early part of 1979, Showman's work consisted mainly
of bonemeal runs and, to a lesser extent, over-the-road
trips hauling dog food and other products. Showman
possessed the necessary certifications which were issued
following completion of a written test, road tests, and a
physical examination required by the ICC for all over-
the-road drivers.
During late 1978 and early 1979, an organizational
effort on behalf of the Union took place among Re-
spondent's employees, which culminated in a strike that
commenced on April 2, 1979. Showman testified that he
has property next to Cavanaugh's garage or terminal,
and he had permitted those on the picket line to build a
small temporary shanty on his property so that they
could escape from bad weather, and that on or about
April 4, 1979, Cavanaugh inquired of him if he (Show-
man) had allowed the pickets to put the shanty on his
land, and he informed Cavanaugh that he had. The strike
continued until the morning of May 30, 1979, at which
time the pickets were pulled in order that a Board elec-
tion could take place.'
The following morning, May 31, 1979, pursuant to
instructions from Union Secretary-Treasurer Amos
Courtney, the picketers, including Showman, appeared at
Respondent's facility and indicated, through employee
Richard Doppelheuer, that they were there to return to
their jobs, but Cavanaugh then informed the group that
there was no work available at this time and asked them
to sign a roster to show that they had reported to work.2
Cavanaugh then informed the group that they would be
notified by registered mail when he wanted them to
return to work. However, as of the date of the hearing in
the instant case, none of the employees who uncondition-
ally offered to return to work and whose names appear
on Joint Exhibit I have been offered reinstatement with
the sole exception of William V. Long, Jr., who was re-
called on or about August 13, 1979. 3
Showman testified that on or about June 2, 1979, some
of the people who had offered to return went back to
the terminal in order to get their personal belongings and
radios and that on this occasion Cavanaugh "cussed" at
Respondent filed objections to the election (Case 6-RC-8441), and it
was recommended that the election on May 30, 1979, be set aside, but
subsequent thereto the Union withdrew its petition for certification. See
Resp. Exhs. I and 2, and it. Exh. 2.
Z See Jt. Exh. 1.
3 It appears that just a few days prior to his recall, Long gave some
favorable testimony for Respondent at the hearing on objections to the
election. See Resp. Eh. 2
REID J. CAVANAUGI-I
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him (Showman), and then told him that for the present
he did not have anybody "backing him up," and for
Showman to "watch" himself.4
Showman testified that in October 1979 he was hired,
under a union contract, by the construction firm of
Swank and Dickerson, and that he worked there for 6
weeks as a truckdriver before he was laid off in Novem-
ber, but that he is presently on their union seniority list
with recall rights, and, in fact, was recently recalled by
Dickerson. Showman stated that his wages at Dickerson
were $9.66 per hour, and admitted that this was more
than his wages at Respondent. He admitted further that
he also anticipates staying with Swank and Dickerson.
Leslie Myers was initially hired by Respondent as a
truckdriver and a shop worker in 1972, but after a few
years went elsewhere as an operator on heavy equip-
ment. Myers then spent 4 years in the service, but testi-
fied that within a year or so prior to his discharge he
talked on occasions to Cavanaugh about working for
him, and again in November 1979 contacted Cavanaugh
about employment. Myers testified on this occasion Ca-
vanaugh informed him that he could not hire anybody
except for "over-the-road" hauls, and that on November
16, 1979, he was so employed. Myers stated that he took
the required tests and obtained the necessary certifica-
tions for such driver on or about November 13, 1979,
and that Cavanaugh himself administered the driving
tests.
Myers testified that during the first few months of his
employment, he worked 5 days a week hauling bone-
meal, dog food, and food products for Cavanaugh, but
since May 1980 he has been on layoff. Further, that
during his preliminary discussions with Cavanaugh, it
was indicated that at times he would also be working in
the shop and, as a result of these discussions and his
background, he was hired to do a combination of jobs-
to make overnight trips, to do some shop work, and as
an operator of heavy equipment.
Myers testified that in doing shop work, he had re-
moved a radiator, helped on brake and tuneup jobs, used
test meters, and stated that he had also operated heavy
equipment in pulling trucks in and out of the shop, cut-
ting grades, and on occasions loading dirt. Moreover,
that he quite frequently made overnight trips to various
locations-to New York, to New Jersey, and to Ohio,
and that from time to time he would also haul bonemeal,
but stated that he could not have been kept busy merely
by the local hauling of bonemeal.
Cavanaugh testified that during the 2 months' strike in
April and May, Respondent lost about 80 percent of
whatever work they had, and that he has recaptured
only "a small portion" of their prior work. He stated
that on a limited basis he did get back some hauling of
dog food for Allied Mills and that this was over-the-road
work, but that he did not retain any of the dump truck
4It is undisputed that a lawful economic strike for union recognition
took place from April 2 to May 30, 1979. Moreover, it was stipulated
that on May 31, 1979, Showman and the other employees who had been
on strike, and whose signatures appear on Jt. Exh. , approached Cavan-
augh at the Respondent's facility and signed a roster indicating their will-
ingness to return to work, and there is also uncontroverted testimony
that the strikers' offer to return to work was unconditional.
hauls except an odd job now and then, so he had no oc-
casion to recall dump truck drivers, and stated that ap-
proximately 75 to 80 percent of the work Showman did
prior to the strike, was local dump hauling. Cavanaugh
testified that in respect to hauling dog food to Mallet's
Terminal in Pittsburgh-that this work was also lost
during the strike, yet he got part of this work back in
February and March 1980, but then lost it again within 4
months or so, and that the meat scrap business was simi-
larly lost. In fact, Cavanaugh testified that the limited
meat scrap work that was available in September and
October 1979, all involving runs of less than 50 miles,
was spread out among the existing drivers.
Cavanaugh testified that within the first few months or
so after the strike ended, he was only able to call two or
three drivers back, and gradually other orders returned,
but business was not good, and at the present time Re-
spondent still has only two full-time and four part-time
employees who work on an as-call basis. Moreover, ac-
cording to Cavanaugh, although Respondent previously
employed three mechanics, none of them returned after
the strike, and as a result he himself performed certain
mechanical work, and also the drivers who were called
back performed mechanical and excavating work in addi-
tion to their driving.
It is the position of Respondent that the job for which
Myers was hired was not the same position or job previ-
ously held by Showman-that Showman was both un-
willing and unqualified to perform the work for which
Myers was hired, and that there just simply was not suf-
ficient work of the type performed by Showman to keep
a man busy. Cavanaugh maintains that Myers was hired
as a "combination man" to perform over-the-road driv-
ing using the sleeper cab, to do mechanical and shop
work, and also to operate heavy equipment, that it was
necessary to have the new employee perform all these
types of work in order to obtain a 40-hour week, and
that the decision to rehire Myers upon his return from
the service, as opposed to recall Showman, was based on
"legitimate and substantial business justifications."
As pointed out, in order to properly analyze whether
or not the job for which Myers was hired was the same
job held by Showman prior to the strike, it is necessary
to look at each segment of the work for which Myers
was hired, and to compare that with what Showman had
done, and then to consider whether Showman had the
qualifications to do such work.
Cavanaugh testified that 80 percent of the Allied Mills
work which they had returned to them, involved over-
night deliveries. Both Cavanaugh and employee John
Bialek testified that such overnight trips, and the use of
sleeper cabs, were required by the fact that many deliv-
ery times were set for early in the morning and, there-
fore, the driver had to reach the destination the night
before, and Cavanaugh's testimony was to the effect that
Showman, on numerous occasions, had refused to take
overnight trips with the sleeper cab. Both John Bialek
and Cavanaugh then related one incident where Show-
man was assigned to an overnight trip to Baltimore but
at the last minute refused to take it, necessitating Cavan-
augh having to take it himself.
_
REID J. CAVANAUGH 197
Cavanaugh indicated that although other drivers did
mechanical or shop work prior to the strike, Showman
had never performed mechanical work or had indicated
any interest in this type of work. John Bialek testified
that, while other drivers worked at the shop, Showman
shied away from this kind of work because he did not
like it and he did not perform it. On the other hand, Re-
spondent, points out, Myers had performed shop work
for Cavanaugh prior to going into the service and had
done everything in the shop that needed to be done
except for major repairs.
Third, it was required and expected of the employee
filling the combination job here in question that he
would also be able to operate heavy and excavating
equipment for Respondent, and this was not part of
Showman's duties prior to the strike, nor at any time did
Showman ever indicate that he was qualified as a heavy
equipment operator, while on the other hand, argues Re-
spondent, Myers had imminent qualifications in respect
to the operation of heavy equipment.
In essence, Respondent argues that Showman's appli-
cation for reinstatement was for the work which he had
performed prior to the strike, and that Respondent was
justified in assuming, until further notification, that
Showman did not wish to be assigned to work which he
did not want when he was working for Cavanaugh prior
to the strike. Moreover, Showman was not qualified for
some of the work of the combination job, and admittedly
could not perform such work.
As pointed out, Cavanaugh indicated that if work
became available for which Showman was qualified, he
would then recall him, but, argues Respondent, there is a
serious legal question as to whether such a recall would
be necessary as Showman had found other regular and
substantially equivalent employment which, in fact, paid
more than he had earned at Cavanaugh, as detailed pre-
viously herein. Finally, Respondent contends that there
was no evidence presented of a creditable nature to sub-
stantiate that Respondent's failure to recall Showman,
when it hired Myers, was due to Showman's union activ-
ities.
Final Conclusions
Certain principles governing the reinstatement rights
of economic strikers are by now well settled. In
N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378
(1967), the Supreme Court held that if, after conclusion
of a strike, the employer "refused to reinstate striking
employees, the effect is to discourage employees from
exercising their rights to organize and to strike guaran-
teed by [Sections] 7 and 13 of the Act .. . . According-
ly, unless the employer who refuses to reinstate strikers
can show that his action was due to 'legitimate and sub-
stantial business justifications,' he is guilty of an unfair
labor practice. The burden of proving justification is on
the employer." The Court in Fleetwood relied on its deci-
sion in N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S.
26, 34 (1967), where it held that "once it has been
proved that the employer engaged in discriminatory con-
duct which could have adversely affected employee
rights to some extent, the burden is upon the employer to
establish that he was motivated by legitimate objectives
since proof of motivation is most accessible to him." In
reevaluating the rights of economic strikers in light of
Fleetwood and Great Dane, the Board in The Laidlaw
Corporation, 171 NLRB 1366, 1369 (1968), stated that:
The underlying principle in both Fleetwood and
Great Dane, supra, is that certain employer conduct,
standing alone, is so inherently destructive of em-
ployee rights that evidence of specific antiunion mo-
tivation is not needed. Specifically in Fleetwood, the
Court found that hiring new employees in the face
of outstanding applications for reinstatement from
striking employees is presumptively a violation of
the Act, irrespective of intent unless the employer
sustains his burden by showing legitimate and sub-
stantial reasons for his failure to hire the strikers.
First of all, this record shows that the individuals who
signed the roster, which is Joint Exhibit 1, including
Showman, were the active supporters of the Union's
strike for recognition, and were the drivers engaged in
picketing and other activities designed to bring economic
pressure to bear on Respondent, and this record further
shows that the only employees or drivers who have been
recalled by Respondent, besides Bill Long, are those em-
ployees who did not actively support the strike, and there
is no evidence in this record that any of the employees
who have been recalled, other than Long, made uncondi-
tional offers to return to work following the strike.
Moreover, the job for which Myers was hired was not
first offered to Showman, and the examination of Myers'
daily hauling reports reveals that the work which Myers
performed was substantially equivalent to the work per-
formed by Showman prior to the strike.
The daily hauling reports for Myers show that he was
continually hauling bonemeal (beef or scrap meat) and
dog food from Allied Mills or Inland Products to Mallet
Warehouse or, on occasions, making the same hauls to
the same parties, but in reverse order. It readily appears
that Myers spent a great majority of his working hours
on such hauls, and much less of his total hours engaged
in over-the-road hauls.5 As indicated, this is highly com-
parable to the work that was done by Showman during
the several months' period immediately preceding the
strike. For the most part, Showman was hauling bone-
meal and feed from Inland, and spent less of his time
making over-the-road hauls."
Respondent's evidence is also unpersuasive concerning
Showman's alleged disinterest in over-the-road overnight
runs, and which Cavanaugh defined on the record as
anything beyond 150 miles. Cavanaugh and Bialek testi-
fied and contended that a good majority of the work out
of Allied Mills in Everson, Pennsylvania, was overnight
because of appointment deliveries in the early morning
hours. However, Showman also made numerous trips of
over 150 miles and with several of them originating in
Everson, but testified that he did not consider any of the
trips from Everson to Allentown to be overnight trips
because they took only 14 hours, and that none of the
See G.C. Exhs. 6(a) through 6(n).
s See G.C Exhs. 5(s) through 5(ee).
REID I. CAVANAUGH
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers who made the Allentown trip used a sleeper cab
unless they were going to pick up a backload of Kuhn
Transportation in Gettysburg on the way back. Further-
more, all of Myers' over-the-road trips were 15 hours or
less, with the exceptions of a 17-hour trip to Alexander,
New York, and a 16-hour trip to Allentown, Pennsylva-
nia, and the only two Allentown/Kuhn "backloads" that
Myers hauled, took a total of only 13 hours and 15 hours
respectively, therefore, as pointed out, it is difficult to as-
certain in what manner Myers was required to do any
more "overnight" hauls than Showman had previously
done. 7 Moreover, Showman testified that he had never
complained to Cavanaugh about having to be away over-
night, and had not informed Cavanaugh that he did not
want either overnight or over-the-road assignments. In
fact, Respondent witnesses could cite only one instance
where Showman ever refused to take an over-the-road
(overnight) trip, and this was to Cockeysville, Maryland,
in the winter of 1979. However, Showman testified that
he turned down this run because it was not considered a
good run in the summer and much less so during bad
winter weather. Since Showman had initially agreed to
take this load, it would appear that it was the bad weath-
er factor rather than the overnight considerations that
caused him to refuse this assignment at the last minute.
John Bialek ventured in his testimony that the type of
overnight trips that Showman "was inclined to take,"
based upon discussion among the drivers, were long dis-
tance runs "where it would involve several days." How-
ever, according to Myers' hauling reports, as previously
indicated, he was never dispatched to make a trip of
more than 17 hours, much less several days.
Showman testified, and it was not denied, that despite
his apparent allergy to bonemeal, Cavanaugh still wanted
him on the job of hauling bonemeal because Showman
"was doing such a good job." In fact, the bonemeal
work was available from November 1979, but was per-
formed by a new hire (Myers) rather than by striker
Showman who had previously done this work.
8
In January, February, and March, 1979, the 3 months
immediately preceding the strike, it appears that Show-
man was spending most of his hours hauling meat scraps
or bonemeal but, in certain weeks during this period, was
actually working considerably less than 40 hours-in sev-
eral weeks between 16 and 33 hours. Cavanaugh argues
that Showman was not rehired because the normal work
he did before the strike would not be sufficient to keep
him fully occupied. It is quite obvious, however, that
Showman was not always engaged in a 40-hour week in
the months immediately prior to the strike and, in fact,
seldom worked a full 40-hour week.
As pointed out, no question can be raised by Respond-
ent as to Showman's qualifications to do the driving here
in question. Showman possessed the various certifications
The recent trips to Bronx, New York, and Clifton, New Jersey, re-
ferred to in Myers' testimony do not appear in his hauling reports.
8 Respondent contends that 50 percent of Showman's work was
"dump truck type work, hauling stone, gravel, sand," and that this work
"disappeared during the strike." However, a look at the daily hauling re-
cords reveals that this type of work was substantially reduced as of Sep-
tember 1978, well in advance of the strike, and the same is true of coal
hauling which fell off in August 1978, and also scrap metal hauls which
fell off in October 1978.
which the ICC requires of drivers, but the fact remains
that at the time Myers applied for the job he did not pos-
sess the needed certifications, as aforestated, but was
qualified to do the majority of the work for which there
was an opening.9
Counsel for the Respondent argues that in the instant
case there is a complete absence of any evidence of
animus or unlawful motive. However, Showman credibly
testified that in early April 1979, soon after the strike
started, Cavanaugh asked him if he had allowed the
strikers to put their shanty on Showman's property, and
after Showman told Cavanaugh that he had given them
his permission, Cavanaugh then had a disapproving ex-
pression on his face and walked away from Showman
without saying anything. Showman also testified about
an incident involving the returning strikers and Cavan-
augh on June 2, 1979, as aforestated, and wherein Cavan-
augh told Showman he now had no backing and to
"watch" himself. Showman's testimony as to the latter
event is also substantially corroborated by witness Rich-
ard Doppelheuer, who testified that on this occasion
when Showman started to talk to Cavanaugh, "Cavan-
augh turned around with his clenched fist and said
'Showman don't get smart with me, I'll smack you right
in the mouth,"' and went on to tell Showman that "he
didn't have nobody backing him" and that "his ass was
his." 0° These remarks were directed at Showman as an
individual and, although Cavanaugh was present in the
courtroom and available to deny them, he did not testify
concerning either of these incidents. Moreover, even
absent this evidence of hostility directed specifically at
Showman, this record also reveals other instances from
which it can be concluded that Respondent was acting
pursuant to an unlawful motive or plan to defeat the eco-
nomic strikers' right to reinstatement. The following em-
ployees were "actively" involved in the strike in the sense
that they not only ceased working, but also picketed or
attended union meetings: Doppelheuer, Long, Jr., Whip-
9 Board decisions make it clear that an employer's obligation to offer
available positions to strikers also extends to positions which are not the
same as the former position. Thus, in Bromine Division, Drug Research,
Inc., 233 NLRB 253 at 261 (1977), it was found that a striker whose
former job was in shipping and receiving, should have been offered a
production work job for which he was qualified. In Crossroads Chevrolet,
Inc., 233 NLRB 728, 730 (1977), it was concluded that the striker, rather
than a new hire, should have been offered an available part-time position,
even though the striker's former position was full-time. Thus, as pointed
out, strikers are entitled to be offered jobs for which they are qualified
even if it is a different job or in some respect a less desirable job. Ac-
cordingly, Respondent's arguments that it did not need to offer Showman
the job because it was not the same as his former job, or because it was
anticipated that Showman would find the bonemeal and overnight work
undesirable, must be rejected at the outset. At the very least, Showman
was entitled to be put to a true test of deciding whether to accept rein-
statement or not.
10 It should also be noted that the facts found herein are based on the
record as a whole upon my observation of the witnesses. The credibility
resolutions herein have been derived from a review of the entire testimo-
nial record and exhibits with due regard for the logic of probability, the
demeanor of the witnesses and the teaching of N.L.R.B. v. Walton Manu-
facturing Company, 369 U.S. 404 (1962). As to those witnesses testifying
in contradiction to the findings herein, their testimony has been discredit-
ed, either as having been in conflict with the testimony of credible wit-
nesses or because it was in and of itself incredible and unworthy of belief.
All testimony has been reviewed and weighed in the light of the entire
record.
REID J. CAVANAUGH 199
key, Loya, Showman, Jacobs, Smerkar, Stephens, Smith,
and Zebley. The names of each of these employees
appear on Joint Exhibit 1 as employees who made un-
conditional offers to return to work on May 31, 1979,
but out of these employees only Bill Long, Jr., has been
recalled, and Long was returned to work on August 13,
1979, the Monday following his testimony favorable to
Respondent's position in the hearing on objections held
August 7, 1979, as noted earlier herein.
While there appears to have been very few drivers
working during the strike, if any, nevertheless, the
record shows that out of the drivers recalled by Re-
spondent-their participation in the strike was on a very
limited basis and was considerably less than wholeheart-
ed, and, of course, the fact that Respondent reinstated
one union adherent (Long) does not exculpate it from
the charge of discrimination as to those not recalled.
The General Counsel argues that the most revealing
piece of evidence indicating that Respondent created the
issue of over-the-road drivers versus local drivers as a
device to avoid recalling strikers is Myers' employment
interview with Cavanaugh. Myers testified that when he
asked Cavanaugh generally about employment, Cavan-
augh's response was that the over-the-road was the "only
thing we would hire anyone for" because of "the strike
and everything," and then told Myers that "they had a
strike and the trouble is not with the over-the-road work,
it's with the local drivers and he was allowed to hire for
over-the-road." I am in agreement that this statement
clearly implies that it was the local drivers who had
made trouble by striking and being on the picket line,
and, as previously indicated, this record reveals that
many of the active participants (i.e., pickets) were the
local drivers. This conversation is significant evidence in
support of the argument that Cavanaugh was engaged in
a discriminatory plan designed to avoid rehiring the
strike activists.
Turning now to Respondent's argument that Showman
was not qualified to do heavy equipment work or me-
chanical shop work, and thus there was a legitimate busi-
ness justification for hiring Myers rather than reinstating
Showman. Cavanaugh admitted that employees Prinkey,
Bialek, Blaney, Richter, and Wilson, all of whom were
recalled, had heavy equipment experience, and Cavan-
augh further admitted that he gets calls for heavy equip-
ment work very infrequently. Showman testified, on the
other hand, that Cavanaugh never asked him about his
ability to do this type of work, and it also appears that
the various mechanical skills which were possessed by
Myers, but in which Showman was deficient (ability to
use a cutting torch and welder, ability to do brake work
and tuneups), were seldom used by Myers, and probably
because they were also possessed by so many other of
Respondent's employees. " Thus, Myers admitted that he
tuned up only one pickup truck, and used a cutting torch
" Cavanaugh testified that Bialek is the main mechanic and does the
major part of the mechanical work, and yet only 75 percent of Bialek's
time is taken up with mechanical work. In addition, Respondent current-
ly has a surfeit of other employees with the ability to do mechanical
work: Prinkey (who is a certified mechanic), Mains, Blaney, Long.
Henry, Richter (who does body work), and Wilson. Moreover. Cavan-
augh himself does some shop work.
only once to cut bearings off an axle for the only brake
job he had helped on. Myers testified that he took a radi-
ator out, had it recored, and then put it back on. From
the testimony it appears that all he did was to unbolt the
radiator from its mountings, took it somewhere else to
have the recore operation done, and then remounted it.
Myers also did work on the wiring of a tractor but not
the trailer. These few minor repairs are about all the
shop work he did, and from such limited work it is diffi-
cult to believe that Myers did anything that Showman
was not qualified to do. As pointed out, Myers' work-
sheets reveal the following specifically noted items of
shop work: 11-14-79, oil change; 11-21-79, cleans truck;
1-15-80, flat tire; 1-16-80, clean truck and paint; 1-28-
80, take trailer to Fruehauf. The record reveals that
Showman also fixed flats, put in lightbulbs, went for
parts, washed trucks, and took trucks to be repaired else-
where.
In the final analysis, the burden of proof is on Re-
spondent to establish that the striker is not reasonably
qualified to perform the duties of the job for which there
is an opening and, inasmuch as the great majority of
Myers' work consisted of driving assignments similar to
those previously done by Showman, it must be conclud-
ed that Respondent has failed to meet its burden of proof
of demonstrating that Showman was not reasonably
qualified to fill the position for a "combination employ-
ee." Moreover, Respondent's evidence in support of its
assertion that Showman had previously restricted his
availability for work is insubstantial and unpersuasive for
the reasons previously set forth herein. In addition, Re-
spondent's failure to inquire as to Showman's current de-
sires and inclinations regarding his job at the time the
need for an additional driver arose, is a further indication
of the pretextual nature of this defense and gives rise to
the inference that Respondent's pattern of behavior was
motivated by a desire to rid itself of a striker who had
actively supported the strike and who had made avail-
able adjacent property on which fellow strikers and pick-
ets could construct a shelter in event of bad weather.
Finally, Respondent's contention that Showman had
regular and substantial employment elsewhere at the time
Myers was hired on or about November 16, 1978, is also
rejected. Showman was unemployed from the time of his
unconditional offer to return to work, May 31, 1979,
until he secured temporary employment with Swank/
Dickerson Construction for 6 weeks during the late fall
of 1979, and ending November 2, 1979.12 Thus, Show-
man was available for work at the time Respondent hired
Myers on or about November 16. Moreover, at the time
Showman was hired by Swank/Dickerson, both he and
Courtney were told that the job was only temporary,
and Courtney testified that Showman's seniority with
Swank/Dickerson was by jobsite only, that there is no
company seniority under the contracts which Swank/
12 Although Showman recalled specifically the date of his last pay-
check-November 2, 1979-he had trouble recalling the specific date he
started. However, Amos Courtney. the union official who helped Show-
man secure this temporary employment, testified that it was in August or
September 1979. September would seem to be correct since a 6-week job
ending November 2, 1979, would necessarily have to begin in September.
REID J. CAVANAUGH 99l
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dickerson Construction have with Teamsters Joint
Council 40, and that Showman's work in the autumn of
1979 was on Highway 119, and at another jobsite in
Pittsburgh. As noted, just the day before the hearing in
this case, Showman was again hired by Swank/Dicker-
son to work at a bridge construction jobsite. However, it
appears that Swank/Dickerson was not required to
rehire or recall Showman for this job by virtue of his
past employment on other jobsites, and Showman's latest
employment with Swank/Dickerson is therefore as a
new hire.
As further indicated, although Showman's temporary
work at Swank/Dickerson was similar in nature to his
job with Respondent (truckdriving), this alone is insuffi-
cient to make this employment "regular and substantially
equivalent" to his previous job with Cavanaugh. Most
importantly, the Swank/Dickerson job was clearly not
"regular," it was temporary. Furthermore, as also noted,
even if Showman had secured seniority with Swank/
Dickerson-the very fact that this employment is in the
construction industry makes it seasonal, sporadic, and un-
certain in nature, but the record and exhibits in the in-
stant case reveal that Showman's driving with Respond:
ent was steady and weekly work. Moreover, the Board
has indicated that a striker's desire and intent to resume
his struck work is a significant factor in determining
whether the employee has obtained regular and substan-
tial other work.
Respondent presented no evidence that Showman
ever, in any manner, indicated a desire to withdraw his
application for reinstatement. Showman testified that he
never informed Cavanaugh of his temporary job with
Swank/Dickerson. Thus, Respondent failed to present
any evidence upon which it could be concluded that Re-
spondent was even aware of Showman's interim employ-
ment at Swank/Dickerson. Respondent, therefore,
cannot be heard to say that it did not offer reinstatement
to Showman because they thought he had another job.
Moreover, even if Respondent's business justifications
for refusing to reinstate Showman are found to be legiti-
mate and substantial, this merely shifts the burden of
proof back to General Counsel to show evidence of un-
lawful motivation, and the incidents of animus directed
at Showman-the fact that virtually none of the employ-
ees who have been reinstated were sympathetic to the
strike, and, most revealingly, Cavanaugh's statement that
he was "allowed" to hire only the over-the-road drivers
because of the "trouble" with the local drivers, and the
other statements and incidents detailed previously herein,
provide ample evidence of unlawful motivation.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully re-
fused to reemploy Robert Showman on November 16,
1979, I shall recommend that Respondent offer him im-
mediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his senior-
ity or other rights and privileges, and make him whole
for any loss of earnings he may have suffered by reason
of the discrimination against him by payment of a sum of
money equal to that which he would have normally
earned from the date of Respondent's discrimination, less
net earnings, during said period. All backpay provided
herein shall be computed with interest on a quarterly
basis, in the manner described in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and with interest thereon
computed in the manner and amount prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977).13
CONCLUSIONS OF LAW
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. By engaging in the conduct described in section III
above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 14
The Respondent, Reid J. Cavanaugh, Connellsville,
Pennsylvania, his agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to reinstate economic strikers
who have unconditionally requested reinstatement when
work for which they are qualified becomes available.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Robert Showman whole for any loss of earn-
ings he may have suffered by reason of Respondent's
failure to reemploy him, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at his facility in Connellsville, Pennsylvania,
copies of the attached notice marked "Appendix."' 6
Copies of said notices, on forms to be provided by the
Regional Director for Region 6, after being duly signed
I3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
14 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
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
'1 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted By
Order of The National Labor Relations Board" shall read "Posted Pursu-
ant To A Judgment of The United States Court of Appeals Enforcing an
Order of The National Labor Relations Board."
REID J. CAVANAUGH 201
by Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has to comply herewith.
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