Glover Bottled Gas Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1981

255 N.L.R.B. 137 (N.L.R.B. 1981)

GLOVER BOTTLED GAS CORP. 137
Glover Bottled Gas Corp. and John Berini. Case 29-
CA-6989
March 20, 1981
DECISION AND ORDER
On December 11, 1980, Administrative Law
Judge Eleanor MacDonald issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed exceptions and an answering
brief to Respondent's exceptions.
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 her recommended Order. 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 and
hereby orders that the Respondent, Glover Bottled
Gas Corp., Patchogue, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
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 her find-
ings.
' Member Jenkins would provide interest on the backpay award in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives em-
ployees 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
255 NLRB No. 11
To refrain from the exercise of any or all
such activities.
WE WILL NOT suspend our employees for
refusing to cross a lawful picket line estab-
lished at Glover Bottled Gas Corp. by em-
ployees of Suburban Corporation represented
by Local 282, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
WE WILL NOT discharge, nor threaten to
discharge, our employees for refusing to cross
a lawful picket line established at Glover Bot-
tled Gas Corp. by employees of Suburban
Corporation represented by Local 282.
WE WILL NOT interfere with our em-
ployees's access to Board processes by threat-
ening employees with reprisals for filing unfair
labor practice charges with the Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed in
Section 7 of the National Labor Relations Act.
WE WILL expunge the suspensions from the
records of those employees unlawfully sus-
pended for refusing to cross the lawful picket
line established at Glover Bottled Gas Corp.
by employees of Suburban Corporation repre-
sented by Local 282.
WE WILL also restore these employees to
the status they would otherwise have occu-
pied.
WE WILL offer immediate and full reinstate-
ment to John Berini to his former position of
employment, dismissing if necessary anyone
who may have been hired to perform the
work that he was doing on the date that he
was terminated, or, if his former position does
not exist, to a substantially equivalent position,
without prejudice to his seniority or other
rights and privileges previously enjoyed, and
make him whole for any loss of pay he may
have suffered as a result of our discrimination.
Interest will be paid on these amounts.
GLOVER BOTTLED GAS CORP.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge:
This case was heard in Brooklyn, New York, on Febru-
ary 25 and 26, 1980. The complaint based on a charge
filed by John Berini issued on March 30, 1979, alleging
that Respondent, Glover Bottled Gas Corp., violated
Section 8(a)(1), (3), and (4) of the National Labor Rela-
tions Act, as amended, by certain actions including: Sus-
GLOVER BO'ITLED GAS CORP.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pension of employees who refused to cross a picket line
and engaged in a strike; threats to employees for refusing
to cross a picket line; discharge of a John Berini and re-
fusal to pay his wages for refusing to cross the picket
line, and because he was not a member of the union; and
threats and reprisals against John Berini for filing
charges and giving testimony under the Act.
Respondent's answer denies the allegations of unlawful
conduct and alleges that the picket line was illegal, that
the collective-bargaining agreement required the employ-
ees to refrain from striking, and that the employee was
discharged during his probationary period.
Upon the entire record, including my observations of
the demeanor of the witnesses and after due considera-
tion of the brief filed by Respondent, I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTION
Respondent Glover Bottled Gas Corp., a New York
corporation, is engaged in the sale and distribution of
propane gas and related products at Patchogue, New
York, where it annually derives gross revenues in excess
of $500,000 from its operations and annually purchases
goods and materials valued in excess of $50,000 which
are delivered to its plant in interstate commerce directly
from other States. Respondent admits, and I find, that it
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that Local 282,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Picketing and the Suspension of Employees
John P. Russell, vice president of Respondent Glover
Bottled Gas Corp. (hereafter called Glover) testified
about the events relating to the picketing at the Glover
premises.' Russell testified that the employees of the
Suburban Corporation, a company unrelated to Glover,
but engaged in the same type of business, commenced a
strike in November 1978. Suburban employees are repre-
sented by Local 282, IBT (hereafter called the Union),
the labor organization which is also the representative of
Glover's employees. The two bargaining units are, of
course, separate and distinct. The Glover bargaining unit
consists of drivers, platform men, and servicemen. By
December 1978, many of Suburban's customers were
running out of gas, and the New York State attorney
general and certain local government agencies attempted
to secure deliveries for hardship cases from Glover as
well as from other sources. In addition, some Suburban
customers contacted Glover directly. It is not stated in
the record whether Suburban itself referred customers to
Glover. Russell testified that by law Glover could only
make refill deliveries to tanks it owned, and as a result
Glover supplied gas to the Suburban customers in
I Russell is also president of the Propane Company of America, the
parent company of Glover Bottled Gas.
Glover gas tanks. However, when Glover's supply of
tanks ran out, Glover bought empty tanks from Subur-
ban. Russell stated that the purchase was also convenient
in that it permitted Glover to avoid having to disconnect
empty Suburban tanks from the locations where they had
been installed by Suburban; instead, Glover could make
deliveries to the tanks it had newly acquired from Subur-
ban.
Russell testified that Glover drivers who had been
making emergency deliveries to Suburban customers
with union approval were hesitant to continue these de-
liveries. As a result, and in order to satisfy union ques-
tions apparently directed to the nature of the relationship
between Glover and Suburban, copies of the bill of sale
for the Suburban tanks were given to Union Shop Ste-
ward Richard Cleary sometime in mid-January 1979.
Russell testified that Suburban employees began picket-
ing the Glover premises on January 23, 1979, and that
copies of the bill of sale were given to the Union 5 or 10
days before the pickets appeared.
For reasons which will be apparent from the discus-
sion below, the employees of Glover and their union of-
ficials were not convinced that the contract between
Glover and Suburban had any legal effect. Both Shop
Stewards Cleary and Ralph Kendrick believed that the
picket line at Glover was "legal" because Glover was
supplying Suburban customers while Suburban employ-
ees were on strike.
A copy of the sales contract was admitted into evi-
dence. The contract is dated December 26, 1978, and the
testimony establishes that it was signed about January 15,
1979. The contract provides, inter alia, that for a consid-
eration of $1 Suburban shall sell certain assets to New
York Propane for a purchase price to be "determined
within one year following execution of this Agreement."
The assets, listed on Schedule A, are the names and ad-
dresses of both individuals and various types of business-
es which formerly purchased gas from Suburban. Russell
testified that the -year waiting period had been designed
to permit agreement on the actual value of Suburban's
old tanks. However, after the picketing began at Re-
spondent's premises on January 23, 1979, Glover wished
to protect itself from being considered an ally of Subur-
ban, and it agreed on a purchase price of $117,000 which
Russell stated was paid on January 31 or February 1,
1979. Russell expressed his resentment at having to pay
an inflated price for the Suburban tanks as a result of the
fact that he was negotiating with undue haste. He testi-
fied that the price was "forced upon us by the picket
action."
Furthermore, as executed, and as given to Respond-
ent's employees in mid-January 1979, the contract con-
tained the following paragraph 3:
3. Seller [Suburban] shall re-purchase said assets
from Buyer [New York Propane] at a time of Sell-
er's choosing during twelve month period following
the execution of this Agreement, at a total purchase
price equal to that paid by Buyer pursuant to this
Agreement, and Buyer shall deliver to Seller at the
time said option is exercised a Bill of Sale in the
form attached hereto as Exhibit C. Buyer shall be
GLOVER BOTTLED GAS CORP. 139
under no obligation to pay Seller for said assets
until such time as Seller elects to re-purchase same.
Russell testified that this paragraph was deleted by Sub-
urban and New York Propane on January 25, 1979, and
a rider was attached to the contract providing that:
Suburban has sold to Propane assets required to
service approximately 464 of Suburban's customers.
. . The sale of those assets is a final one. . . Sub-
urban will not either during the period of the strike
or at any time thereafter repurchase those assets or
reacquire customers ...
Russell testified that the intent of paragraph 3 had
been to permit Suburban to repurchase some steel tanks
but not to repurchase customer accounts nor the steel
tanks located on customer premises. It does not appear
on the record whether Glover informed the Union of the
deletion of paragraph 3 or of the existence of the Janu-
ary 25 rider. However, the picket line continued at the
Glover premises on January 25 and was not withdrawn
until February 2, 1979. The Glover employees returned
to work on February 3, 1979.
The General Counsel's witnesses testified about the
picketing at Respondent's premises and their testimony is
substantially to the same effect.
Describing the events relating to the refusal of the
men to cross the picket line, John Berini stated that he
reported for work on January 22, 1979, and saw pickets
in front of Respondent's premises. (Actually, the evi-
dence shows that the pickets appeared on January 23.)
He testified that he learned that employees of Suburban
Propane Company "were picketing against Glover Bot-
tled Gas for pumping their tanks unlawful." The Glover
employees entered the plant and punched their time-
clocks, but did not start work or take out any trucks.
When they did not commence work, Manager Wesley
Nott inquired as to their intentions. After about 1-1/2
hours, Shop Steward Cleary arrived. He informed the
men that the pickets had a "legal picket line" to protest
the fact that Glover had been pumping Suburban gas
tanks.
Berini testified that the "union men" decided not to
cross the picket line. 2 Berini stated that, upon learning
that the men refused to cross the picket line, Nott said
that they should punch out because "Mr. Vogel will not
pay them for the day" (Sherman Vogel is the secretary
of Glover Bottled Gas and chairman of the board of its
parent corporation, the Propane Corporation of Amer-
ica.) Cleary testified that, after ascertaining that the men
would not cross, Nott told them to punch out and go
home.
2 Berini was not a member of the Union. Pursuant to sec. 5 of the col-
lective-bargaining agreement, new employees are required to join the
Union 30 days after hiring and the Union may demand the discharge of
an employee who has not become a member after 60 days of employ-
ment. The testimony shows that, in practice, employees are only expect.
ed to join the Union 60 days after being hired. Sec. 4 of the contract
provides that employees are not placed on the seniority list until 60 days
following their employment. Thus, Berini was a probationary employee
from his hiring on December 23, 1978, until his discharge, described
below.
Berini did not cross the picket line because "when I go
back to work I have to work with union men." Cleary
told the men to report to work every day and Berini did
so, but he did not punch in nor did he work because of
the picket line. Berini states that he did not cross the
picket line because it was a "legal picket line" and be-
cause he decided to follow the lead of the union men.
Shop Steward Kendrick testified that the Union did
not tell him not to cross the picket line but that he made
this decision for himself. Kendrick maintained that his
reasons for not working were the presence of the picket
line, his belief that his refusal was sanctioned by the con-
tract, and also fear of possible bodily harm.
The record is uncontroverted that on January 24,
1979, the second day of the strike, Shop Steward Cleary
was called by Manager Nott to the phone in the Glover
office. Vogel was on the other end of the line and he and
Cleary had a conversation. Then, Shop Steward Ken-
drick was called into the office and Vogel spoke to him
while Nott and Cleary listened on extension phones.
Vogel had substantially the same conversation with Ken-
drick that he had just conducted with Cleary. The testi-
mony shows that Vogel began by asking why the men
would not work and why they would not cross the
picket line. Kendrick replied that he feared for bodily
harm." At this point Vogel inquired as to Kendrick's
military service and asked: "You wouldn't be afraid to
go to war . . . why won't you cross the picket line?"
Kendrick then referred to his rights under section 14 of
the collective-bargaining agreement. s Vogel repeated his
request that Kendrick cross the picket line, and then he
said, "If you won't cross the picket line then you're sus-
pended." 4
After Kendrick got off the line, Cleary stayed on the
extension phone while Vogel spoke in the same vein to
other employees successively, including Steve Nott,
Dave Warfield, John Hanson, and Richard Dean.
Berini testified that payday was every Friday. On the
Friday after the picketing started, January 26, the pay-
checks were delayed, and the employees were told that
they could get their checks providing they spoke to
Vogel. Berini and "half the shop" went over to the driv-
er's rooms about 5 p.m. where Vogel spoke to the men
in the presence of Shop Steward Kendrick. Berini testi-
fied that, after some discussion, Vogel stated: "Any man
that does not stick behind me and my company, I don't
want no part of him, I'll let them go." Berini asked
Vogel whether he would fire a nonunion man who did
not cross the picket line, and Vogel replied, "you take it
as it is." 6 Berini further testified that, on Wednesday
during the strike, Zenni told him, "you know you're the
s Sec. 14 provides: "The Employer shall not discharge or suspend em-
ployees for refusing to deliver freight to, or pick up freight from a place
of business at which a strike is being conducted, or refusing to cross a
picket line." Sec. 12, entitled "Strikes, lockouts, arbitrations and griev-
ances," provides in subsec. (a) that "There shall be no strikes or lockouts
during the term of this agreement,"
4 The transcript erroneously gives a phonetic rendition to this phrase
and transcribes it as "then just prevent it." However, it is clear from the
questions that follow this answer that Vogel referred to "suspended" and
not "prevent it," and my recollection of the testimony supports this view.
5 A location used for certain clerical work.
8 Vogel did not testify in this proceeding.
OLOVER BOTTLED GAS CORP.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only nonunion man that is not crossing the picket line;
you know you can lose your job."
Cleary and Kendrick both testified that Vogel called
them after the picketing had been going on for I week
and informed them that the suspensions were lifted. The
men went to the plant the next day, but they did not
cross the picket line. However, Russell testified that in
fact at 6:30 or 7 p.m. on January 23, 1979, the suspension
was lifted. Every morning thereafter the suspension was
reimposed when the employees did not return to work,
and every evening the suspension was lifted. There is no
testimony that the employees were told that the suspen-
sion was lifted until the second week of the picketing,
and the daily suspensions continued until the end of the
strike.
B. The Discharge of John Berini
Berini testified that he was hired by Respondent on
December 23, 1978, as a truckdriver. Berini testified that
his supervisor was Jean Zenni (Frenchie), the service
manager of Respondent. According to Berini he was
hired at $4 per hour and after I week he was given a
raise to $4.25 per hour because, Zenni said, he was doing
"good work." Berini testified that the only negative oc-
currence with respect to his work record at Glover was
an occasion when Zenni asked him to work on the plat-
form where the gas tanks were filled. Berini refused to
work on the platform because he considered the condi-
tion of the facility dangerous and because it was not
truckdriver's work, so Zenni gave him a truck and sent
him out as an installation man. One day after the strike
ended, Berini testified, Zenni praised the large number of
stops Berini made on a certain route.
On Monday, February 5, 1979, Berini testified, Zenni
called him into his office and informed Berini he was
being laid off for lack of work. When Berini insisted that
other men hired after him were not being let go, Zenni
said: "I told you this was going to happen, you should
have crossed the picket line and you didn't . . . but I
will try to talk to Mr. Vogel." Berini thereupon left the
office and, seeing Kendrick, asked for his help. The two
men went into the office and, when Kendrick pointed
out to Zenni that less senior men were not being laid off,
Zenni said: "It came down from Mr. Vogel .... " Fol-
lowing this conversation, Berini and Cleary met with
Zenni and had a substantially similar conversation during
which Zenni stated that, in his opinion, Berini was a
good worker.
Cleary's and Kendrick's testimony confirms Berini's
version of this conversation with Zenni. Both stated that,
when they asked if Berini were being fired for refusing
to cross the picket line, Zenni replied: "Off the record,
yes." Zenni stated that Vogel wanted Berini fired and
that, although Berini did good work, there was nothing
he could do about it.
Berini testified that he was not paid in due course fol-
lowing his discharge. The record establishes clearly that
Respondent's employees are paid every Friday on a 1-
week pay lag basis; that is, pay received on each Friday
is for week ending the preceding Friday. Berini acknowl-
edged on cross-examination that he understood this to be
the case, but he was obviously confused as to the work-
ings of the system.
A careful reading of Berini's testimony convinces me
that the facts are as follows: As of Monday, February 5,
he was owed a total of 3 days' pay, including the
Monday worked before the picketing began (January 22,
1979), and the Saturday and Monday following the re-
sumption of work after the picketing ceased (February 3
and 5, 1979). Berini returned to Glover for his paycheck,
and he was told it was not there. He again returned for
his pay the day after he filed his charge dated February
7, 1979, with the Board. Vogel was there and, when
Berini told Vogel that he had filed charges with the
Board, Vogel stated: "you can take your NLRB, you can
take all your judges, all your lawyers and you can stick
them you know where . . . you're a wise guy." Berini
repeated his request for his pay to which Vogel respond-
ed: "you're not getting your pay." Berini returned and
was paid on Friday, February 9, for the I day's pay due
him for the week ending January 26, 1979. On that
Friday, Vogel said to Berini that he "would be looking
for a job or . . . would need a reference some day, and
he would get even with [Berini]." Berini testified that
"he did, he stopped my unemployment." 7 Finally, on
Wednesday, February 14, 1979, at Berini's insistence,
Berini was paid for the 2 days still owed to him. It is
clear from the record that this was 2 days earlier than
the normal Friday payday on February 16, and, in fact,
the money was taken out of petty cash as an accommo-
dation. As to this payment, the facts do not show that
Berini was paid later than usual or that his pay was with-
held.
Jean Zenni, service manager of Respondent, testified
that he had hired Berini as an installation helper. Zenni
stated that two experienced installation men had worked
with Berini but had asked Zenni not to assign Berini to
them anymore because of a "mental state where he flew
off the handle." Zenni then assigned Berini to the plat-
form, and after a few days he received complaints from
the men on the platform relating to Berini "cursing all
the time and complaining about doing work and refusing
to put in overtime." After this, Zenni testified, he as-
signed Berini to cylinder deliveries and "I had no prob-
lem except that his delivery average was not too high."
Zenni stated that Berini was hired at the rate of $4.25
per hour and that he was never given a raise prior to his
discharge.
Zenni testified that he terminated Berini because "he
wasn't qualified at all," and he had not become suffi-
ciently proficient during his probationary period. Zenni
stated that Vogel did not instruct him to fire Berini. He
testified that he told both Kendrick and Cleary that he
had no choice but to terminate Berini because he was ap-
proaching the end of his probationary period "and I
knew that by the time he joined the Union, I would have
no choice than to keep him on the force."
I Berini expressed his suspicion that Vogel interfered with his collec-
tion of unemployment benefits but there is no record evidence that such
was the case or that Berini did not receive benefits to which he was enti-
tled.
GLOVER BOTTLED GAS CORP. 141
Zenni stated that another probationary employee,
Stanley Wenetta, who had not crossed the picket line
after the second day was not discharged and is still em-
ployed by Respondent. Other testimony shows that some
other probationers did cross the picket line and worked
in the yard; they were not terminated.
On cross-examination, Zenni was questioned concern-
ing James Brown, an employee with a low delivery aver-
age. Brown is a longtime employee, and Zenni admitted
that he was not a satisfactory employee although he had
not been discharged. However, Zenni stated that he and
the Union had tried to improve Brown's performance
and that Brown had been issued a warning slip in 1980.
Further, Zenni stated that Brown differed from Berini in
that he is "very calm ... quiet . . . and reliable."
C. Positions of the Parties
The General Counsel maintains that the sales contract
between Respondent and Suburban is a document of
convenience and not an arm's-length contract. The
signed document contains no purchase price, and the
sum finally agreed upon was not paid until sometime be-
tween January 31 and February 2, 1980. Further, the re-
purchase clause was not deleted until January 25. The
General Counsel concludes that Respondent was doing
struck work within the meaning of Warehouse, Mail
Order, Office, Technical and Professional Employees Union,
Local 743 (MacMillan Science Co., Inc.), 231 NLRB 1332
(1977), and Local 804, Delivery and Warehouse Employees,
International Brotherhood of Teamsters, Chauffeurs. Ware-
housemen and Helpers of America (B. F Goodrich Compa-
ny), 199 NLRB 1167 (1972). The General Counsel argues
that Respondent abandoned its neutral status and that the
refusal of the employees to cross the picket line was
lawful activity protected by the Act and by section 14 of
the collective-bargaining agreement; therefore the em-
ployees were unlawfully suspended for refusing to cross
the picket line in violation of Section 8(a)(3) of the Act.
The General Counsel points out that Vogel did not
testify at the hearing, and that the testimony relating to
Vogel's threats is unrebutted in the record. Further, the
General Counsel asserts that Zenni did not deny threat-
ening Berini with discharge if he refused to cross the
picket line.
The General Counsel asserts that Respondent's March
5, 1979, letter to the Board contains an admission that
Berini's refusal to cross the picket line led to his dis-
charge and that the letter does not mention any unsatis-
factory work performance by Berini. The General Coun-
sel concludes that but for Berini's union activities he
would still be employed at Glover Bottled Gas and that
Berini's discharge was in violation of Section 8(a)(3) of
the Act, citing Charles Edwin Laffey, d/b/a Consolidated
Services, 223 NLRB 845 (1976). The General Counsel
also asserts that Berini was fired because he was not a
member of the Union.
Finally, the General Counsel contends that Vogel's
threat to give Berini unfavorable references was a viola-
tion of Section 8(a)(4) of the Act.
Respondent's position is that Berini was discharged for
cause and not for exercising his rights under the Act. Re-
spondent cites Zenni's testimony that Berini was a poor
worker and that this led to his discharge. Further, Re-
spondent urges that Zenni's testimony effectively rebuts
any allegation that Vogel threatened employees for exer-
cising their rights. Respondent emphasizes that there was
no testimony by any witness that Vogel had ordered
Berini terminated for his failure to cross the picket line.
Respondent contends that the evidence shows that
probationary employees are very often discharged prior
to the date when the contract would give them perma-
nent status. Respondent points to testimony that two
other probationary employees who refused to cross the
picket line were not discharged and are still employed by
Respondent.
Respondent asserts that the General Counsel did not
prove that Respondent's employees were on strike. Fur-
ther, Respondent argues that Respondent's employees re-
fused to cross the picket line for reasons unrelated to
concerted activities, that is, that Cleary would not cross
because he never crossed any picket line and Kendrick
did not cross out of concern for his physical safety. Re-
spondent asserts that the employees' refusal to cross the
picket line is therefore unprotected activity under Red-
wing Carriers Inc., 132 NLRB 982 (1961).s
Respondent argues that the collective-bargaining
agreement prohibits strikes and does not protect employ-
ees in their refusal to cross a picket line unless the picket
line is established away from Respondent's place of busi-
ness. Respondent cites N.L.R.B. v. Rockaway News
Supply Company, 345 U.S. 71 (1953), in support of its
contention that where a valid contract compels employ-
ees to cross a picket line it is not unlawful to discharge
an employee for refusing to cross.
Respondent asserts that the refusal to cross a picket
line was not sanctioned by the Union and was therefore
an illegal wildcat strike. Respondent concludes that it
was thus entitled to discharge those employees who did
not work, including Berini, citing N.L.R.B. v. Sunbeam
Electric Manufacturing Co., 133 F.2d 856 (7th Cir. 1963);
Harnischfeger Corporation v. N.L.R.B., 207 F.2d 575 (7th
Cir. 1953); N.L.R.B. v. Draper Corporation, 145 F.2d 199
(4th Cir. 1944). 9
Respondent states that the picket line was secondary in
nature and violated Section 8(b)(4) of the Act as its pur-
pose "was an attempt to force Glover from doing busi-
ness with another." Respondent also states that the pur-
pose of the picketing was unclear and alleges that the
signs carried on the picket line were misleading and did
not clearly indicate the nature of the dispute. Respondent
urges that the picketing was therefore illegal since it
"gave the false impression that a labor dispute existed
where Glover's employees were not on strike, and where
Glover had a bona fide agreement with a union."
I note that a reading of that decision shows that the Board explicitly
did not rule on the Trial Examiner's finding that refusal to cross the
picket line for fear of violence was unprotected conduct. The Trial Ex-
aminer had relied on Redwing Carriers. Inc.. and Rockana Carriers, Inc..
130 NLRB 1208 (1961), which decision was reconsidered and modified in
Redwing Carriers, Inc.., and Rockana Carriers. Inc., 137 NLRB 1545
(1962). Therefore, I shall not discuss the case cited by Respondent as it
can in no way be considered to represent the Board's view of the law
9 I will not discuss these cases further since they are totally inapplica-
ble to the facts of this case.
GLOVER BOiTLED GAS CORP.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent urges that it was not an ally of Suburban.
It alleges that "Glover employees made occasional emer-
gency drops of fuel into Suburban tanks of people who
were certified by the Attorney General to be hardship
cases without gas to heat their homes and cook their
food during the winter of 1979," and that but for making
these attorney general/union-approved hardship deliv-
eries, Glover would not have lost its neutral status. Re-
spondent's brief contends that, aside from certified hard-
ship cases, Glover refused to fill tanks owned by Subur-
ban and instead supplied its own tanks to new customers
until it had exhausted its supply. Once Glover had no
more tanks on hand, Glover sought to purchase those of
Suburban's tanks located on customer premises. Re-
spondent's brief asserts that these 464 tanks were repre-
sented by the customer names and addresses listed in the
bill of sale dated December 1978, between Glover and
Suburban. The brief argues that all the terms of the con-
tract were clear except for the final purchase price
which could not be determined until an inventory of the
conditions of the tanks. Respondent asserts that Glover
took title to the tanks immediately and assumed insur-
ance coverage. The brief asserts that the setting of the
final purchase price and the closing of the deal with Sub-
urban occurred prior to the commencement of the pick-
eting.' 0 With respect to the repurchase clause, Respond-
ent argues that it was never intended for Suburban to re-
purchase customers, only that it repurchase an equivalent
value of steel tanks.
Concerning the suspension of employees for failing to
cross the picket line Respondent argues that it was
lawful and that it was lifted every evening and reim-
posed every morning. Respondent states that it was the
Union's duty to inform members concerning this action
of the employer.
Discussion and Conclusions
The sequence of events testified to by Russell shows
that Respondent Glover was indeed an ally of Suburban.
It is clear that in December 1978 Glover was making
deliveries to Suburban customers both at their request
and at the request of the state attorney general. Glover
drivers and Suburban employees were aware of this situ-
ation and acquiesced in it, although Glover drivers ex-
pressed concern about doing struck work. As time pro-
gressed, Glover anticipated running out of its stock of
tanks and it needed a source to supply the growing
number of Suburban customers. Under existing safety
and insurance regulations, Glover could not fill tanks it
did not own. For these reasons, Glover decided to take
title to the Suburban tanks located on the premises of
Suburban customers. It should be noted that the list of
these customers which was eventually compiled for in-
clusion in the sales contract contained names of many
business establishments as well as private customers.
The contract was dated December 26, 1978; it was
signed about January 15, 1979. As noted above, it con-
tained no purchase price, the consideration was stated to
'o However, the record shows otherwise. Russell testified that the
closing at a price of $117,000 was "forced upon us by the picket action"
and that the payment took place "just prior to the pickets disappearing."
be S1, and it contained the repurchase clause set forth
above. Russell's testimony as to the true meaning of the
repurchase clause notwithstanding, the language is clear
that Suburban could repurchase the same tanks as were
listed in the contract for the same amount that Glover
had agreed to pay for the tanks, and that Glover did not
have to pay Suburban any part of the (undetermined)
purchase price until Suburban should decide to repur-
chase the tanks. In short, no money need ever change
hands.
About 5 or 10 days before the Suburban pickets ap-
peared (approximately January 13-18, 1979), Respondent
gave copies of this contract to Shop Steward Cleary.
The Union was apparently not convinced that this was
an arm's-length contract and that Glover was not any
ally of Suburban seeking to mask its relationship with a
sham contract, for the pickets appeared at Glover on
January 23, 1979.
I am similarly unconvinced. The contract as signed on
January 15 was not a contract. The stated $1 considera-
tion, the failure to state any purchase price, the lack of a
requirement that the amount of the purchase price ever
be paid, and the existence of the so-called repurchase
clause convince me that no true contract existed. Thus,
Glover was doing Suburban's struck work and was fill-
ing tanks for the benefit of Suburban.
On January 25, after the pickets had been at Respond-
ent's premises for 2 days, the repurchase clause was de-
leted. However, this did not cure the lack of an arm's-
length contract between Glover and Suburban. There
was still no set purchase price and no requirement that
Glover pay anything to Suburban for the "purchase" of
Suburban tanks. To all intents and purposes, Suburban
still owned the tanks that Glover wished its drivers to
service by crossing the picket line.
Russell testified that, because of the Glover employees'
refusal to cross the picket line, Glover was rushed into
agreeing to a purchase price of $117,000 for the Subur-
ban tanks. Although he could not recall when the pur-
chase price was agreed upon and the purchase price
paid, Russell stated it was just before the pickets were
removed. Thus, I find that once a true arm's-length pur-
chase was consummated, the pickets were withdrawn
and the employees returned to work.
Based on the foregoing analysis, I find that during the
picketing at the Employer's premises, from January 23 to
February 2, 1979, Glover was filling gas tanks that in
effect still belonged to Suburban. This work would have
been performed by Suburban employees had they not
been on strike, and performance of the work by Glover
benefitted Suburban because its customers otherwise
would have had to sever their relationship with Subur-
ban and enter into new, arm's-length contracts with
other suppliers. Therefore, Glover had lost its neutrality
by performing struck work and allying itself with Subur-
ban, and it could lawfully be picketed by Suburban em-
ployees.t It follows that the Glover employees had a
" Graphic Arts International Union (G.A.I U). Local No. 277 (S & M
Rotogravure Service, Inc.), 219 NLRB 1053, 1054-55 (1975), review denied
Kable Printing Company v. N.L.R.B., 540 F.2d 1304 (7th Cir. 1976);
Continued
GLOVER BOTTrLED GAS CORP. 143
right protected by Section 7 of the Act to honor the
picket line and refuse to work, and that interference with
or restraint and coercion of this right or discrimination
based upon its exercise is a violation of Section 8(aX)(1)
and (3) of the Act.' 2 Moreover, contrary to Respond-
ent's contentions, the collective-bargaining agreement
does not waive the right of the employees to refuse to
cross the picket line and engage in a sympathy strike. It
is well established that this right may be waived, but
such waiver must be clear and unmistakable.'3 In this
case, the general language of section 12 of the contract
that there shall be no strikes or lockouts is qualified by
section 14 which specifically preserves the employees'
right, inter alia, to refuse to cross a picket line. The clear
and unambiguous contract language (quoted above at fn.
3) conclusively refutes Respondent's contention that the
collective-bargaining agreement waives the employees'
rights not to cross a picket line established at their own
place of employment. Therefore, N.LR.B. v. Rockaway
News Supply Co., supra, is distinguishable on the facts and
does not apply to the instant case in the manner contend-
ed by Respondent. 14
It is undisputed that, beginning on the second day of
the picketing, the employees were suspended for refusing
to cross the picket line. It is of no moment whether the
suspensions were lifted and reimposed every day as con-
tended by Respondent. The imposition of discipline from
January 24 to February 2, 1979, for refusing to cross the
picket line was a violation of Section 8(a)(1) and (3) of
the Act. Amcar Division, ACF Industries, Inc., supra;
Gary-Hobart Water Corporation, supra.
Berini was the chief witness as to the alleged threats
made by Vogel; therefore, his credibility is a major issue
in this case.
Berini's interpretation of some of the events he testi-
fied to was shown to be incorrect. First, Berini testified
that, as a retaliation for refusing to cross the picket line
and for filing charges with the Board, Respondent with-
held his final paycheck. Although Berini stated that he
thought he should have been paid all money owed him
on the day of his discharge, there was no evidence that
Respondent customarily paid discharged employees on
the date of their discharge contrary to the usual method
of Friday payment described above. The evidence shows
that Berini was paid on the Friday after his discharge for
the I day worked before the strike. This was the first
payday after the discharge, and I do not find that it was
unlawful to expect him to wait until the usual payday for
his wages. I note that the General Counsel advanced no
contention that Berini should have been paid during the
strike on Friday, February 2, and that failure to pay
Blackhawk Engraving Co. v. N.LR.B., 540 F.2d 1296 (7th Cir. 1976), affg.
Mount Morris Graphic Arts International Union Local No. 91-P (Black-
hawk Engraving Co.), 219 NLRB 1030 (1975).
12 Gary-Hobart Water Corporation, 210 NLRB 742 (1974), enfd. 511
F.2d 284 (7th Cir. 1975), cert. denied 423 U.S. 925.
'3 Amcar Division. ACF Industries. Incorporated, 247 NLRB 1056
(1980), and the numerous cases cited therein.
14 Manifestly, the dispute between Suburban and its employees was not
arbitrable under the contract between the Union and Respondent. There-
fore, no implied promise to refrain from sympathy strikes may be read
into the contract. Buffalo Forge Co. v. United Steelworkers of America, 428
U.S. 397 (1976).
Berini on that day constitutes a violation of the Act. Fur-
ther, at Berini's insistence, his final 2 days' pay was given
to him 2 days earlier than would have been normal
under established pay procedures. Berini also stated his
belief that Vogel retaliated by interfering in some way
with his collection of unemployment compensation.
Again, there was no evidence to support this assertion,
and the General Counsel did not show that unemploy-
ment compensation was denied Berini for any reason.
Based on this discussion, I do not find that Respondent
violated the Act by withholding Berini's pay or by retali-
ating in connection with unemployment compensation.
As to the threat to give Berini a bad reference, it
should be noted that this statement was allegedly made a
day after Berini informed Vogel that he had filed a
charge with the Board. From his testimony and his de-
meanor, it is clear that Berini believed that Vogel har-
bored ill feelings toward him for refusing to cross the
picket line. It seems that Berini would readily believe
that Vogel was capable of almost any form of retaliation
against him. Although I believe that Berini was not the
most accurate of witnesses, I do not believe that he
would fabricate a story out of whole cloth. Thus, I
credit Berini's testimony that Vogel mentioned that
Berini would need a reference I day and that Vogel
would "get even." It may be that, if Vogel had testified,
he could have given a different meaning to his state-
ments by explaining the context in which they were
made or by giving a more exact rendition. In the absence
of any denial or other testimony by Vogel, and in view
of my belief that although Berini might give an inaccu-
rate interpretation to a statement he would not invent al-
legations, I find that Vogel did threaten to give Berini an
unfavorable reference in retaliation for filing charges
with the Board and that Respondent thus violated Sec-
tion 8(a)(1) of the Act by interfering with an employee's
freedom to avail himself of Board processes. Sunbeam
Corporation (Dumas Division), 211 NLRB 676, 677 (1974).
However, the conduct did not amount to discrimination
that would violate Section 8(a)(4). Ibid.
With respect to Vogel's statements made at the em-
ployee meeting that he would let go any employee who
did not cross the picket line, I also find no basis for dis-
crediting Berini's testimony. Berini testified that he had
asked Vogel a question about probationary employees at
this meeting and his recollection seemed clear and specif-
ic. In the absence of any denial by Vogel that he made
the threat, I find that Vogel threatened to discharge any
employees who did not cross the picket line in violation
of Section 8(a)(1) of the Act.
Finally, I must consider Berini's testimony that Zenni
also threatened him with discharge if he did not cross
the picket line and perform his work. Again, Berini's
memory of this occasion seemed clear, and Zenni, who
testified at great length, did not deny having made the
statements attributed to him. Therefore, I find that Zenni
threatened Berini with discharge for refusing to cross the
picket line in violation of 8(a)(1) of the Act.
Zenni testified that he made the decision to discharge
Berini because he was not qualified. However, Zenni
also stated that after Berini was assigned the job of deli-
GLOVER BOTTLED GAS CORP.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vering cylinders he had "no problem" except that Be-
rini's delivery average was "not too high." The record
shows that Berini's average was no lower than that of
James Brown, an employee who has not been dis-
charged. Further, the record does not show that Zenni
made any efforts to improve Berini's delivery average or
that he warned him that it was low enough to endanger
his job. Thus, I do not credit Zenni's testimony that
Berini was fired for his poor work performance and that
the refusal to cross the picket line was not the reason for
discharge.
Although Respondent alleged that other probationary
employees who did not cross the picket line were not
fired, I do not find this significant in view of all the cir-
cumstances herein. First, there was some testimony that
these employees had worked part of the time during the
picketing or had worked in the yard even though they
did not take trucks out. Further, there is uncontroverted
testimony that Zenni told Berini that he was the only
probationer not working and that he might be fired. I
credit the testimony of Kendrick, Cleary, and Berini to
the effect that Zenni admitted to them that he had been
directed by Vogel to fire Berini because Berini refused to
cross the picket line. I do not credit Zenni's denials on
this score in view of Zenni's prior threats to Berini.
Based on the uncontroverted testimony concerning
threats made by Zenni and Vogel, I find that Berini's re-
fusal to cross the picket line was the motivating factor in
the decision to discharge him. Further, based on my dis-
cussion of Respondent's defense that Berini was fired for
poor work performance, I find that this assertion is a
sham and that Berini would not have been fired if he had
not refused to cross the picket line. Therefore, I con-
clude that Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Berini. See Wright Line, a Divi-
sion of Wright Line, Inc., 251 NLRB 146 (1980).
Finally, I turn to the letter of March 5, 1979, which
counsel for Respondent addressed to a Board agent in
connection with the Board's investigation of the instant
case. The letter sets forth Respondent's view of the facts
leading to Berini's termination. It states, in substance,
that Berini was terminated during his 60-day "trial
period" and before he had joined the Union,'5 and as-
serts that Berini was terminated rather than being con-
verted into a permanent employee because he "did not
adequately fit the job." The letter infelicitously equates
probationary status with lack of union membership. As
described above, upon successful completion of the 60-
day trial period, employees are placed on the seniority
list and at the same time they are subject to the union-
security clause of the contract. According to the testimo-
ny, after 60 days employees can no longer be discharged
at will but are afforded the "just cause" protection of the
contract enforceable through a grievance-and-arbitration
provision. The parties refer to the attainment of this con-
15 The letter contains some typographical errors, including a sentence
which reads, "If the employer refused to retain the employee after the
trial period, then the employee becomes a member of Local 282." This
sentence is an obvious reference to the union-security clause of the col-
lective-bargaining agreement and it should be read as follows: "If the em-
ployer retains the employee after the trial period, then the employee be-
comes a member of Local 282"
tractual protection as "being in the union" and refer to a
probationer as someone who has not yet joined the
union, apparently because the placement on the seniority
list occurs at the same time the employee is obligated to
join the Union.
The General Counsel alleges that the letter of March 5
and the testimony show that Berini was discharged be-
cause he was not a member of the Union. My interpreta-
tion of the letter's awkward usage is that it is not related
to membership or lack of union membership but that it is
the common parlance used to describe an employee who
does not yet have the protection of the just cause provi-
sions of the collective-bargaining agreement and may be
discharged before the end of the probationary period.
Thus, I do not believe that the evidence supports a find-
ing that Berini was terminated for lack of union member-
ship in violation of Section 8(a)(3).
CONCLUSIONS OF LAW
1. Glover Bottled Gas Corp. is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 282, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By suspending its drivers, platform men, and serv-
icemen because they refused to cross a picket line estab-
lished at Glover Bottled Gas Corp. by employees of
Suburban Corporation represented by Local 282, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Respondent violated
Section 8(a)(3) and (1) of the Act.
4. By informing its drivers, platform men, and service-
men that they would be discharged if they refused to
cross a picket line established at Glover Bottled Gas
Corp. by the employees of Suburban Corporation repre-
sented by Local 282, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Respondent violation Section 8(a)(1) of the
Act.
5. By discharging John Berini because he refused to
cross a picket line established by the employees of Sub-
urban Corporation represented by Local 282, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, Respondent violated
Section 8(a)(3) and (1) of the Act.
6. By informing John Berini that Respondent would
give him an unfavorable reference because he filed
charges with the Board, Respondent violated Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. No other violations of the Act were committed.
THE REMEDY
Having found that Glover Bottled Gas Corp. engaged
in certain unfair labor practices, I shall recommend that
it be ordered to cease and desist therefrom and that it
take certain affirmative action to effectuate the policies
of the Act.
GLOVER BOTTLED GAS CORP. 145
Respondent should be ordered to expunge the suspen-
sions from the records of those employees who were un-
lawfully suspended. If any of the discriminatees have
been counseled or assessed with any other form of disci-
plinary action as a result of having been unlawfully sus-
pended, Respondent should be ordered to restore said
discriminatees to the status they would have otherwise
occupied.
Respondent should be ordered to offer immediate and
full reinstatement to John Berini and to make him whole
for lost earnings. Loss of earnings shall be computed as
prescribed in F. W Woolworth Company, 90 NLRB 289
(1950), plus interest as set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962); and Florida Steel Corpora-
tion, 231 NLRB 651 (1977).
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 1 6
The Respondent, Glover Bottled Gas Corp., Patcho-
gue, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Suspending its employees because they refuse to
cross a lawful picket line established at Glover Bottled
Gas Corp. by employees of Suburban Corp. represented
by Local 282, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America.
(b) Discharging its employees because they refuse to
cross a lawful picket line established at Glover Bottled
Gas Corp. by employees of Suburban Corp. represented
by Local 282, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America.
(c) Informing its employees that they will be dis-
charged if they refuse to cross the lawful picket line es-
tablished at Glover Bottled Gas Corp. by Suburban
Corp. employees represented by Local 282, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America.
(d) Interfering with employees' access to Board proc-
esses by threatening employees with reprisals for filing
unfair labor practice charges.
'6 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.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of any
right guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the purpose of the Act:
(a) Expunge the suspensions from the records of those
employees who were unlawfully suspended because they
refused to cross the lawful picket line established at
Glover Bottled Gas Corp. by employees of Suburban
Corp. represented by Local 282, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and restore said discriminatees to
the status they would otherwise have occupied.
(b) Offer immediate and full reinstatement to John
Berini to his former position of employment, dismissing,
if necessary, anyone who may have been hired to per-
form the work that he was doing on the date that he was
terminated or, if his former position does not exist, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay he may have suffered as a
result of the discrimination, in the manner set forth
above in the section entitled "The Remedy."
(c) 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.
(d) Post at its shop copies of the attached notice
marked "Appendix.""' Copies of said notice, on forms
provided by the Regional Director for Region 29, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not found herein.
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."
GLOVER BOTLED GAS CORP. 45