International Van Lines

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 353 (N.L.R.B. 1969)

INTERNATIONAL VAN LINES
International Van Lines and Teamsters and
Warehousemen , Local 381, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen , and Helpers of America. Case
31-CA-855
June 30, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 20, 1968, Trial Examiner David F.
Doyle issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in certain unfair labor practices and
recommending dismissal of the complaint in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in this case, including the Trial
Examiner's Decision and the exceptions and briefs,
and adopts the Trial Examiner 's findings,
conclusions and recommendations only to the extent
consistent herewith.
1. The Trial Examiner found that certain
statements made by Johnny McEwan, son of
Respondent's president, on several different
occasions were not violative of Section 8(a)(1) of the
Act. Contrary to the Trial Examiner, and for the
reasons detailed hereafter, we find that certain
remarks made to employees by Johnny McEwan on
company premises were violative of the Act.
David Dicus testified that around September 1'
while he, Robert Vasquez, and Jimmy Weaver,
employees at the warehouse, were unloading a truck,
Johnny McEwan said, "if the Union did come in,
that our fishing trips would be gone . We would
never have any more.. " Employees Vasquez
testified that Johnny came in and "asked us, he
heard that we were joining the union." When
Vasquez answered in the affirmative, Johnny said
that "we should not, that his dad had said if we
should join the union, that it [sic] is going to take
all our benefits and rights, and he was going to
work our . . ." Vasquez ' version of this conversation
not only supplies the context in which the
conversation took place but also attributes the
coercive remarks to Johnny's father and
Respondent' s president , Robert McEwan. The latter
did not deny making such remarks to his son.
353
Such remarks were uttered on the heels of an
inquiry into the union sympathies of the employees
and clearly identified Johnny's interest with the
interests of his father and Respondent.' In view of a
similar statement made to employee Richard Dicus
by Johnny's father,' we find that Johnny, in making
the remarks and attributing them to his father, was
acting as a conduit for his father and thereby
coerced and interfered with the employees' exercise
of their Section 7 rights. Accordingly, we conclude
that in these circumstances the remarks uttered by
Johnny McEwan violated Section 8(a)(1) of the Act.
2. The Trial Examiner also found that
Respondent did not violate Section 8(a)(3) by
discharging and refusing to reinstate striking
employees Manuel and Robert Vasquez and Richard
Dicus and by refusing to reinstate striking employee
Salvidor Casillas. We disagree.
The Union was attempting to organize
simultaneously the employees of all or almost all of
the van and storage companies in the Santa Maria
area, including the Respondent. It is clear that the
Union had by September 11 secured authorization
cards from a majority of Respondent's employees in
an appropriate unit of Respondent's employees but
did not make a demand on Respondent for
recognition. Instead, the Union filed a
representation petition with the Board on September
21 limited to such unit. Union meetings of
employees of all the area companies were held on
October 2 and 3 and thereafter a strike and
picketing commenced at Respondent's premises on
October 4. One of the picket signs carried the
legend, "Unfair to Teamsters Union Local 381,"
and underneath, "No elections. Why." On October
5 Respondent sent identical telegrams to employees
Manuel and Robert Vasquez and Richard Dicus,
stating, "For failure to report to work as directed at
7 a.m. on Wednesday, October 4, 1967 you are
being permanently replaced."
Robert McEwan testified that the strikers had
been replaced as of October 5 by Harold Mitchell,
Gary Hoffman , Blaine Burlington , Ysmael
Contreras, and Don Cross. However, the record
shows, and the Trial Examiner found, that these
were temporary replacements.4 Subsequently, the
striking employees made requests for reinstatement.
Robert McEwan admitted in his testimony that in
'Unless otherwise indicated , all dates refer to events which occurred in
1967.
'For similar reasons, we have excluded from bargaining units the
children of individuals who have substantial stock interests in closely held
corporations. See Foam Rubber City 2 of Florida, Inc., d/b/a Scandia,
167 NLRB No. 81.
'Dicus testified that on October 3 Robert McEwan told him , "If the
union gets in here , we cannot have fishing trips and picnics and Christmas
bonuses." McEwan admitted that he mentioned fishing trips, barbecues,
and picnics but testified that these benefits were discussed in connection
with the effect unionization would have on Respondent 's ability to continue
such benefits.
The replacements worked for Respondent on Thursday, October 5,
They formerly worked for Robert McEwan ' s brother at Mercury Van &
Storage but were being laid off as of October 5, the end of Mercury's pay
177 NLRB No. 33
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the latter part of November employee Salvidor
Casillas came to his office and told him that he
could not stay out on strike like the other men who
had wives working and that he had to go back to
work. Casillas asked to be placed on an "availability
list."` Contrary to the Trial Examiner's findings, the
record shows further, and we find, that on
December 12 Manuel and Robert Vasquez and
Richard Dicus made unconditional offers to return
to work but were refused.'
The Trial Examiner viewed the General Counsel's
evidence as establishing an industrywide strike
beginning on October 4 which was allegedly caused
by the Union's secretary-treasurer, Ben Sanders,
announcing at the October 2 and 3 union meetings
that Respondent and other van lines had withdrawn
their consent to an election .' Sanders also testified
that another reason for the strike was the dismissal
of employees from other companies.'
period Although Respondent 's pay period began on October 5, the men
were carried on Mercury' s payroll for the day they worked for
Respondent . Indeed , there is no evidence that any of the men worked for
Respondent on the remaining days of its pay period which ended October
I I or that Mitchell and Cross performed any further work for Respondent
through the pay period ending November 29 Moreover , through the pay
period ending November 29 , Contreras was carried on Respondent's
payroll only for the pay periods ending October 18 and 25. Burlington
worked only during the pay period ending October 25 , and Hoffman first
appeared on Respondent's payroll during the same pay period
'Based on the foregoing testimony , we find that Casillas made an
unconditional application for reinstatement in November 1967.
The Trial Examiner inadvertently refers to the date as December 21.
'Principally because there was no foundation established on the record to
support the fact that Respondent had even consented to an election, let
alone withdrawn such consent , the Trial Examiner discredited this
testimony and characterized it as "a fabrication by Sanders to give a
semblance of excuse for his arbitrary and precipitate conduct in calling the
work stoppage ." It appears that the Trial Examiner was persuaded to this
conclusion by the testimony of employee Richard Dicus who testified that
at the October 3 meeting the van line situation was discussed in general
but Respondent was not mentioned by name at any time.
In discrediting Sanders' testimony, the Trial Examiner appears to have
focused on the issue whether the Respondent 's withdrawal of consent was
true or false The General Counsel took the position at the hearing , as well
as in its brief, that the truth or falsity of the assertion was irrelevant,
stating that the testimony was being adduced only for the purpose of
establishing the basis for the Union's decision to strike . As such testimony
would tend to establish an economic motivation for the strike , we find
merit in this contention . Moreover , insofar as the Trial Examiner discredits
Sanders' testimony on the basis of Dicus' apparent denial that Respondent
was mentioned by name at the October 3 meeting, the Trial Examiner
leaves the erroneous impression that the General Counsel induced Dicus to
modify his testimony through leading questions on redirect examination.
The record shows , however, that Dicus testified on cross -examination that
he left the meeting early and Respondent' s name might have been
mentioned after he left . Indeed , Casillas , who did remain until the end of
the meeting , corroborated Sanders' testimony that there was discussion
concerning the withdrawal of consent to an election by three van lines,
including Respondent , and that this news precipitated the strike . Casillas
testified "we lust decided, well, they don't want to consent to an election.
We are going to go on strike, and we all started making picket signs that
night." This testimony is consistent with the admitted fact that an
industrywide strike occurred on the following day and with the "No
elections. Why." legend that appeared on one of the picket signs
'The Trial Examiner restricted the evidence to events which pertained
only to Respondent, notwithstanding evidence tending to show that
decisions at the union meetings were made by and for employees of all the
van and storage companies . Indeed, the General Counsel ' s rejected offer of
proof indicates that the strike and picketing began on September 27 at the
premises of another employer , Coast Delivery Service, because it had
While the record evidence supports a finding that
one of the objects of the strike was to bring pressure
on Respondent to agree to a consent election,' we
need not predicate our disagreement with the Trial
Examiner ' s conclusions on such evidence. For even
accepting the Trial Examiner's premise that the
strike was at best aimed at seeking immediate
recognition of the Union, a finding which is clearly
supported by the record, there is nothing unlawful
or against public policy in employees striking for
such purpose when no other union has been
certified." Moreover, the strike does not lose the
protection of the Act merely because the Union did
not present beforehand a specific demand upon the
Respondent for recognition. The Supreme Court has
stated unequivocally that the language of Section 7
is "broad enough to protect concerted activities
whether they take place before, after, or at the same
time" a demand is made." Nor are we here
concerned with the reasonableness of or the
justification for the decision to strike. It is settled
law that the wisdom or unwisdom of a strike, the
justification or lack of it, does not alter its status as
a protected activity." Accordingly, we conclude that
on and after October 4, Respondent's employees
were economic strikers who retained their status as
employees until such time as they were permanently
replaced.
We turn now to a consideration of the legal effect
on the status of the strikers of Respondent's
telegrams of October 5." While these wires are
couched in language indicating that the three
employees to whom they were addressed were being
permanently replaced, their clear import is that they
were being discharged for not working; i.e., for
engaging in a strike. Moreover, as found by the
Trial Examiner, at the time the wires were sent only
temporary replacements had been hired. Indeed, the
Respondent neither contended nor does the record
show that the strikers were replaced by new
employees other than those whom the Trial
Examiner found to be temporary replacements. In
these circumstances, we conclude that Respondent,
by sending these wires, intended to and did
discharge employees Manuel and Robert Vasquez
allegedly discharged employees for union activity, and that the decision to
strike this employer and any other employer who similarly discharged
employees for union activity was made at a general union meeting on
September 26. While the exclusion of this background evidence was not
helpful in developing a well-rounded record , we conclude its exclusion was
not prejudicial
'A stoke to bring pressure on an employer to agree to a consent election
is not unlawful or against public policy . New Orleans Roosevelt Corp, 132
NLRB 248; Phdanz Oldsmobile, Inc., 137 NLRB 867, 869.
"Philanz Oldsmobile , Inc., supra, 869
"N.L.R.B . v Washington Aluminum Co , 370 U.S. 9, 14. However,
prior to striking the Union had, as previously indicated , filed a petition
limited to Respondent's employees and copies of such petition had been
served upon the Respondent which thus knew the Union claimed to
represent its employees.
"N.L.R.B v. MacKay Radio and Telegraph Co., Inc., 304 U S. 333,
344.
"As the Trial Examiner found that the strike was unprotected, he did
not reach this issue.
INTERNATIONAL VAN LINES
and Richard Dicus for engaging in a strike and
thereby violated Section 8(a)(3) and (1) of the Act.
The discharge of the aforesaid employees, which
had the natural effect of tending to prolong the
strike, converted what had commenced as an
economic walkout into an unfair labor practice
strike."' Accordingly, Respondent further violated
Section 8(a)(3) and (1) of the Act by refusing to
reinstate , upon their unconditional applications,
Salvidor Casillas, Manuel and Robert Vasquez, and
Richard Dicus.
3. The General Counsel contends that the Union
represented a majority of Respondent's employees in
an appropriate unit, and we agree that a unit of all
of Respondent' s employees with the usual exclusions
is an appropriate unit." The record shows that on
September 21, the date the Union filed its petition
for representation with the Board, the unit consisted
of six full-time and part-time employees who were
eligible to select a collective-bargaining
representative.16 As found by the Trial Examiner, all
of these employees except Weaver had signed
authorization cards by September 11. Although
Poncetta was apparently discharged for cause on
October 2, we find that the Union still represented a
majority of Respondent's employees when
Respondent discharged three union adherents on
October 5.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , we shall order it to
cease and desist therefrom and take certain
affirmative action to effectuate the policies of the
Act.
Having also found that the Respondent unlawfully
discharged employees Manuel and Robert Vasquez
and Richard Dicus and that the striking employees
became unfair labor practice strikers, we shall order
the Respondent to reinstate , or offer immediate and
full reinstatement to, Manuel and Robert Vasquez,
Richard Dicus , and Salvidor Casillas to their
prestrike or substantially equivalent jobs with all of
the rights and benefits they would have accumulated
but for the discrimination against them, discharging,
if necessary , any strike replacements. The
Respondent shall also be required to make whole
the above-named employees for any losses they may
have suffered as a result of the Company ' s failure to
"Coast Radio Broadcasting Corporation d/b/a Radio Station KPOL,
166 NLRB No. 72.
"As Respondent 's business is seasonal and a number of part-time
employees are hired in the peak season (July-September), all regular
part- time employees who worked or will work a minimum of 15 days in
the 3 -month period from July to September are includible in the unit
Motor Transport Labor Relations , Inc., 139 NLRB 70.
"Included in the unit were Richard and David Dicus , Manuel and
Robert Vasquez , Jimmy Weaver, and David Poncetta. Johnny McEwan is
excluded from the unit because he is the son of Respondent 's president and
the Respondent is a closely held corporation. Foam Rubber City 2 of
Florida, d/b/a Scandia, supra
355
reinstate them beginning 5 days after their
unconditional applications for reinstatement and
continuing until the date of their reinstatement. As
the record does not clearly establish whether
Salvidor Casillas was a full-time or part-time
employee, resolution of his status and his
concommitant benefits under this decision will be
deferred to the compliance stage of this proceeding.
Any backpay due will be determined in
accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
Having concluded that Respondent, by
discharging Manuel and Robert Vasquez and
Richard Dicus on October 5, engaged in unfair
labor practices violative of Section 8(a)(3) and (1),
we are further persuaded that such conduct
demonstrates that Respondent had completely
rejected the collective-bargaining principle and its
violations could only have had the effect of
destroying conditions needed for a fair election." As
the Union did reresent a majority of the employees
in an appropriate unit prior to the discriminatory
discharges, we conclude that only a bargaining order
can adequately restore as nearly as possible the
situation which would have existed but for the
Respondent's unfair labor practices." Accordingly,
we shall order Respondent, upon request, to bargain
with the Union in the unit herein found appropriate.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Union has been at all material times the
statutory bargaining representative of Respondent's
employees in the following appropriate unit for
collective bargaining : all full-time employees and all
regular part-time employees employed at the
Employer's Santa Maria, California, operations,
excluding office clerical employees, guards, and
supervisors as defined in the Act.
4. By discharging Manuel and Robert Vasquez
and Richard Dicus because they participated in the
October 4, 1967, strike, the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. The strike which commenced as an economic
strike on October 4, 1967, was prolonged by the
Company's unfair labor practices, and was
converted on October 5, 1967, into an unfair labor
practice strike.
"The Maxwell Company, 164 NLRB No. 97.
"While the Union made no formal demand on Respondent for
recognition , such a demand is not a prerequisite to our granting a
bargaining order in these circumstances . Western Aluminum of Oregon
Incorporated, 144 NLRB 1191, 1192; L. B. Foster Company, 168 NLRB
No 15.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By refusing to reinstate Salvidor Casillas,
Manuel and Robert Vasquez, and Richard Dicus,
after their unconditional application, Respondent
violated Section 8(a)(3) and (1) of the Act.
7. By threatening employees with reprisals and
loss of benefits if they should join the Union, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
8. The unfair labor practices enumerated above
are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
9. Respondent has not violated the Act in respects
not found herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
International Van Lines, Santa Maria, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals and loss
of benefits if they should join a union.
(b) Discouraging membership in Teamsters and
Warehousemen, Local 381, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, or in any
other labor organization, by discharging or in any
other manner discriminating against strikers in
regard to hire or tenure of employment or any term
or condition of employment.
(c) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of the right of self-organization , to form labor
organizations, to join or assist Teamsters and
Warehousemen, Local 381, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, or any
other labor organization, to bargain collectively
through representatives of their own choosing, and
to engage in concerted activities for the purpose of
mutual aid or protection as guaranteed in Section 7
of the Act, and to refrain from any and all such
activities, except to the extent that such right may
be affected by an agreement requiring membership
in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization, as the exclusive bargaining
representative of all its employees in the aforesaid
appropriate unit ,19 with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement.
(b) Offer to Manuel Vasquez, Robert Vasquez,
Richard Dicus, and Salvidor Casillas immediate and
full reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing, if
necessary, any employees hired subsequent to the
discharges of October 5, 1967.
(c) Make whole Manuel Vasquez, Robert
Vasquez, Richard Dicus, and Salvidor Casillas for
any losses they may have suffered because of the
discrimination against them, in the manner set forth
in the section herein entitled "The Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary for determination of
the amount of backpay due and the rights of
reinstatement under the terms of this Order.
(e) Notify any of the above-named employees
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
(f) Post at its offices in Santa Maria, California,
copies of the attached notice marked "Appendix.""
Copies of such notice, on forms provided by the
Regional Director for Region 31, after being signed
by an authorized representative of Respondent, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
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 covered by any other material.
(g) Notify the said Regional Director, in writing,
within 10 days from the date of this Decision, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
unfair labor practices not found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT threaten our employees with reprisals
and loss of benefits if they should join a union.
WE WILL NOT discourage membership in Teamsters
and Warehousemen , Local 381, International
"Described in paragraph number 3 of the Conclusions of Law.
"In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals,
Enforcing an Order "
INTERNATIONAL VAN LINES 357
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, or in any other labor
organization , by discriminating in any manner against
employees because they strike or engage in any activity
protected by the National Labor Relations Act.
WE WILL NOT in any other manner interferewith,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form , join , or assist
Teamsters and Warehousemen, Local 381, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, or any other labor
organization, to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the
extent permitted by the provisos in Section 8(a)(3) of
the Act.
WE WILL, upon request , bargain collectively with
Teamsters and Warehousemen , Local 381, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America , as the exclusive representative
of all employees in the appropriate unit described below
and embody all understandings reached in a signed
agreement . The appropriate unit is:
All full-time employees and all regular part-time
employees employed at our Santa Maria , California,
operations, excluding office clerical employees,
guards, and supervisors as defined in the Act.
WE WILL offer to Manual Vasquez,Robert Vasquez,
Richard Dicus, and Salvidor Casillas immediate and
full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges , dismissing , if necessary,
any employees hired after the discharges of October 5,
1967.
WE WILL make whole Manuel Vasques, Robert
Vasquez, Richard Discus, and Salvidor Casillas for any
losses they may have suffered because of the
discrimination against them.
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
INTERNATIONAL VAN LINES
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, Bartlett
Building, 215 West Seventh Street , Los Angeles,
California 90014, Telephone 213-688-5801.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID F. DOYLE, Trial Examiner : This proceeding, with
the parties represented by the persons named above, was
heard by me at Santa Maria , California, on April 3, 4,
11, 1968, on complaint of the General Counsel and answer
of the Respondent.'
The complaint dated November 29, 1967, was based on
a charge filed by the Union on October 12, 1967.2 The
complaint alleged in substance that the Company had
violated Section 8(a)(1) and (3) of the Act by (1) the
discriminatory discharge of four employees named, Sal
Casillas , Richard L. Dicus, Manuel Vasquez , Sr., and
Robert Vasquez because they had engaged in protected
union activities and (2) by certain coercive conduct of
company supervisors which is described hereinafter.
In its duly filed answer the Company denied the
commission of any unfair labor practices but admitted
certain allegations concerning the nature of the
Company ' s business and the Union.
At the hearing , counsel for the parties were afforded
full opportunity to be heard, to examine and
cross-examine witnesses , to introduce evidence bearing on
the issues , to argue the issues orally upon the record and
to file briefs and proposed findings . The General Counsel
and counsel for the Company have filed briefs which have
been carefully considered.
Upon the entire record in the case and upon my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The pleadings and a stipulation of the parties at the
hearing establish that the Company is a California
corporation with a warehouse in Santa Maria , California.
The Company is engaged in the transportation of
household goods by motor vehicle. During the past year
the Company in the course and conduct of its trucking
operations within the State of California derived gross
income in excess of $50,000 from operations performed
pursuant to contracts or arrangements with Republic Van
Lines, and other corporations which engage in the
interstate transportation of household goods.
During the year prior to the issuance of the complaint
Republic Van Lines, derived revenues valued in excess of
$50,000 for and from the transportation of household
goods in interstate commerce between the different states
of the United States.
It is found , therefore , that the Company at all times
material herein has been an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings and a stipulation of the parties at the
hearing establish and I find , that the Union at all times
material herein has been a labor organization within the
meaning of Section 2(5) of the Act.
'In this Decision International Van Lines is referred to as the Company
or the Respondent ; Teamsters and Warehousemen , Local 381,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the Union; the General Counsel of the Board and
his representative at the hearing as the General Counsel; the National
Labor Relations Board as the Board; and the Labor Management
Relations Act, as amended , as the Act.
'All dates in this Decision are in the year 1967 unless specified
otherwise
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The Issues
At the hearing the General Counsel claimed (1) that the
evidence established that the Union began an
organizational campaign among the Comany' s employees
and that because of the Company' s unfair labor practices
the employees of the Company engaged in an unfair labor
practice strike , during which the four employees named
above were discharged because they engaged in the said
strike and other protected union activities . The General
Counsel claimed that the alleged discharges were designed
to undermine the Union and to destroy its majority in an
appropriate unit.
He also contended (2) that the Company had violated
Section 8 (a)(1) of the Act by (a) threatening its employees
with loss of economic benefits or detrimental reprisals, if
they assisted the Union , and (b) by interrogating
employees concerning their union membership and
activities, and (c) by creating the impression that the
Company kept the union activities of the employees under
surveillance.
The Company at the hearing contended that the strike
of employees which occurred on October 4, 1967, was not
an economic strike ; that it occurred without notice or
warning and without prior demand for recognition made
by the Union upon the Company ; and that the strike was
neither caused nor prolonged by any unfair labor practices
on the part of the Company and that the named
employees were lawfully replaced in the course of the
work stoppage . The Company denied that any of its
officers had committed any acts which attempted to
interfere , restrain , or coerce its employees.
Undisputed Facts in Background of Controversy
As noted previously , the Company engages in the
business of moving household goods by motor van. Its
place of business is located in Santa Maria, California,
and a large portion of its moving business is derived from
the movement of personnel , both civilian and military,
into and out of Vandenberg Air Force Base which is in
the area.
The Company is a corporation with its stock owned by
two brothers; Robert L. McEwan owns 30 percent of the
stock , is the company president and the active head of the
business at Santa Maria . John R. McEwan , Jr., owns 70
percent of the stock , but has his own business in Southern
California and did not participate in the direct events of
this controversy or testify.
Two other McEwans participated in these events, one is
the father of the owner-stockholders , by name , John R.
McEwan , Sr., and the other is the son of Robert L.
McEwan , by name , John G. McEwan.
It is alleged in the complaint that John G. McEwan
who is approximately 17-18 years of age and is a divinity
student attending a seminary at Concordia , Missouri, and
who worked during the summer for the Company
committed unfair labor practices . In order that this boy
may not be confused with his elders, he will be referred to
herein as "Johnny McEwan."
It is undisputed that the Company bought its business
as a going concern from one, A. J. Smith, in July 1967,
and during that month John R. McEwan , Jr., took over
its active control.
It is likewise undisputed that around the last of August
1967 the Union began an organizing campaign among the
employees of all the van and storage companies located in
and around Santa Maria , California . This organizational
campaign was directed by Ben H . Sanders, the
secretary- treasurer of the Union , who testified in the
proceeding . It is conceded by the counsel for all parties
that the organizational activity of the Union extended to
approximately 23 individual companies who were owned
by 10 or 11 separate employers . It is likewise conceded
that the Company is a single employer and that the
Company is not a member of any employers association
of moving companies , van lines or other employers.
Indeed , it is conceded that in the Santa Maria area no
group or association of van-line employers exists. It is
likewise undisputed and conceded that while the Union's
organizational activities were directed to numerous
employers, each employer was organized as a single
employer unit and when the Union sought certification of
representatives, it sought certification for the employees of
single employers ; thus , when the Union filed a petition for
certification in Case 3l -RC-666 on September 21, 1967, it
named this employer as International Van Lines and
asked for certification of a unit composed of, all truck
drivers, packers , traders, order fillers, checkers,
warehousemen, loaders , and helpers , etc., of the Company
at its Santa Maria , California location . The petition
stated that the Company employed five men in the
appropriate unit which the Union proposed.
The Organizational Efforts of the Union As Regards
the Company
It is undisputed that in the course of its general
campaign in the Santa Maria area the Union experienced
some success in recruiting membership from the
employees of the Company. Of the Company' s personnel
Richard L. Dicus , Robert Vasquez, and Manual A.
Vasquez , and David Dicus signed authorization cards for
the Union on August 23, and David Poncetta signed an
authorization card on September 11.
On September 21, George A. Pappy, Esq., of the law
firm of Brundage and Hackler as attorney for the Union
filed a petition with Region 31 of the Board (Los Angeles,
California) requesting certification of representative in the
appropriate unit of the Company' s employees at Santa
Maria , California. This petition stated that the number of
employees was five, and that the Union represented more
than 30 percent of the employees in the proposed unit.
The Strike Without Demand for Recognition,
Without Notice to the Company, and while Board
Action was Pending
The petition filed on Thursday, September 21, was
transmitted by the Regional Office by regular mail from
Los Angeles and received by the Company on September
25, the following Monday . The strike of the employees of
the Company and all other van lines in the area occurred
on October 4, some nine days later . It is undisputed that
although the Union had secured authorization cards of
four employees on August 23, and of a fifth employee on
September 11, it had not prior to the date of the strike,
demanded recognition of the Company or told the
Company that it claimed to represent the Company's
employees, or offered to the Company to prove its
majority by a showing of authorization cards to either
company officials or to a third party who might determine
their authenticity; nor did the Union check the cards
against any payroll of the Company or request the
Company to provide any payroll records for the purpose
of verifying its claimed majority.
INTERNATIONAL VAN LINES 359
Thus, the only claim of majority status or request for
recognition transmitted to the Company is that contained
inferentially in the transmittal of a copy of the Union's
petition from the Board to the Company, with the Board's
notice that a representation proceeding had been
instituted.
Thus, having received notice from the Board of the
pending proceeding the Company awaited action by the
Board. With this the prevailing state of affairs, the Union
struck the Company and all other van lines in Santa
Maria on October 4.
The Undisputed Cause of the Work Stoppage
Ben H. Sanders, secretary-treasurer of the Union
testified as to the Union's reasons for striking the
Company. Called as a witness by the General Counsel, he
testified that a meeting was held of all employees of all
the van lines in the Santa Maria area on October 2.
Sanders testified that he announced to the "members
attending the meeting that some companies, including
International Van Lines, had withdrawn their consent to
an election, and we were going to have time - wanted to
have time to check it out to make sure that it was right "
It was then agreed by union adherents present that
another meeting would be held the next evening. At this
meeting, Sanders, "announced to the employees attending
the meeting that we had checked with our legal counsel
and found that International Van Lines and other van
lines that we had filed elections on and the companies that
had consented to an election had withdrawn their consent
for an election."
In the discussion that followed, it was decided to strike
International Van Lines and all other van lines.
On cross-examination, Sanders admitted that he did not
know, if any documents consenting to an election had
been filed with the Board by the Company; nor had he
any knowledge that the Company had consented to an
election either verbally or in writing. Sanders said that he
had called union counsel in Los Angeles, who told
Sanders that he (counsel) had called the Regional Office
of the Board and someone there had told him (counsel)
that some person had gone to the Regional Office and
"withdrawn all the consents to the elections on the three
petitions that had been filed."
It should be noted at this point that the General
Counsel failed to prove in this entire case that (1) any
written or verbal, formal or informal consent to election,
was ever given by the Company to the Union or to the
Board or (2) ever withdrawn by the Company. Undisputed
evidence offered by the Company is to the effect that no
consent was ever given and no consent was ever
withdrawn. As stated previously, at this point in time the
Company was awaiting action by the Board on the
Union's pending representation proceeding.
On redirect examination , the General Counsel asked
Sanders if the erroneous "withdrawl of consent" was the
only reason for placing pickets at International Van Lines.
In answer Sanders said, "The other reason, other
employees from other companies were being dismissed."
On the morning following the second meeting the
Union picketed the premises of the Company and all
other van lines in the Santa Maria area.
Richard Dicus, one of the union adherents who was
called as a witness for the General Counsel testified that
when he arrived at the Company's warehouse on October
4 he was surprised to see pickets patrolling in front of the
place. He did not know these men; they were not
employees of the Company, but he thought they were
employees of some other van line in the area. Meador, the
office manager of the Company came to the office door at
that point and Dicus asked him, "What goes here?"
Meador replied that he didn't know, and went back into
the office. A few minutes later Robert McEwan drove up
to the office and went inside. In a moment or two he
came out with a cup of coffee in his hand and Dicus said
to him, "Where is your union contract?" McEwan said
that he had not seen a union contract. Then Dicus said
that the men had been told at the union meeting and by
the pickets that the Company's consent to an election had
been withdrawn, and all that the men wanted was a
chance to vote for it or against the Union. McEwan
replied that he had not withdrawn any consent to any
election and looked very surprised. Dicus then suggested
that if he were permitted to call the union office that the
Union would send a contract over to McEwan in about 10
minutes. At that point McEwan replied, "Hell, no. I'm
not signing anything," and went back into the office.
Later in his testimony, Dicus stated most positively
several times that at the meeting on the evening of
October 3, the persons at the meeting discussed the van
line situation in general but did not mention International
Van Lines by name at any time. However, on redirect
after some prompting by leading questions, Dicus
explained that he left the meeting early and International
Van Lines might have been mentioned at the meeting
after he left.
Dicus said that on the morning of October 4 when he
arrived at the picket line, the picketing was being
conducted by two men with whom he was not acquainted.
Present at approximately this time were employees
Manual Vasquez, Sal Casillas, Robert Vasquez, and some
other men with whom he was not acquainted. He
explained that the Company had a large movement of
office equipment planned for that day, so there were
additional, casual workers ordered for this large office
move.
It was stipulated by counsel for the parties that the
picket signs carried by the men had at the top the word
"Picket" and on the next line "Unfair to Teamsters
Union Local 381." In addition to this uniform top portion
of the picket sign, one picket sign had the added slogan,
"No elections. Why." Another sign had the added slogan,
"No contract." Another had the added slogan, "Big
money for attorneys nothing for us."
Robert L. McEwan, president and general manager of
the Company, testified that on October 4, he received a
phone call from Meador, the office manager, at
approximately 6.45 a.m. Meador told him there were
pickets out in front of their office and asked him to come
right over He was dressing at the time so hurried and
arrived over at the office and asked Meador what it was
all about. Meador said that he didn't know anything
about it, so McEwen went out to talk to the pickets. At
that time in the group there were four men present, who
were known to him. They were Richard Dicus, Manuel
Vasquez, Sal Casillas, and Robert Allen. He went across
the street to the men and said, "We have a job to do. Are
you going to go to work?" They said, "No, we don't have
a contract. We cannot cross the picket line." He replied
that he did not see how he could sign a contract when he
had never been presented with one. One of the men asked,
if he wanted them to get a contract and he replied, "Not
at this time." He went back to his office and phoned the
Federal Electric Company for whom his Company was to
perform a big office moving job that day. He explained
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his situation to Mr . Castle of Federal Electric Company
and asked if he could have a day's delay in making the
move Castle replied that under the circumstances his
company would be satisfied if the movement of their
office was made on the following day
The Strikers are Replaced
McEwan testified without contradiction that having
arranged the postponement with Federal Electric
Company Meador and McEwen then tried to locate men
locally to replace the strikers , so that the move could be
performed the next day . When they were unsuccessful in
finding replacements from local sources, McEwan called
his brother John R . McEwan , Jr., at Oxnard , California,
and explained his plight to him . John said that under the
circumstances he had some men that he thought he could
make available to the Company . On the following
morning, his brother supplied to him five men named
Harold Mitchell , Gary Hoffman , Blaine Burlington,
Ysmael (Easy ) Contreras , and Dan Cross. With the
assistance of these men the Company was able to
complete the move of the Federal Electric Company.
On October 5, the Company sent identical telegrams to
Vasquez, Dicus, and Robert Vasquez , stating, "For failure
to report for work as directed at 7 a in on Wednesday,
October 4 , 1967 you are being permanently replaced "
McEwan explained that the first employment of the men
sent to him by his brother did not appear on the payroll
records of the Company because he agreed with his
brother to reimburse the brother for the time the men
worked for him and for which the brother paid these men.
In addition to the men obtained through his brother
McEwan was able to hire other men to work for him
from time to time as his business required . The Company
was able to continue its operations in that fashion and the
picketing was continuing at the time of the hearing herein.
Robert L. McEwan' s Illness
It is undisputed that on April 8, 4 days after the work
stoppage, Robert L . McEwan was hospitalized at Santa
Maria for major surgery . He continued in the hospital
until October 28 when he was discharged and went to
Oxnard , California , for a period of approximately 1 week,
to his mother's home for a further period of
convalescence During the period that he was hospitalized
and inactive his father , John R . McEwan , Sr., came to
Santa Maria and gave what assistance he could to the
business operations of the Company.
The Alleged Interference , Restraint and Coercion
The fact that there are four members of the McEwan
family, involved in the events of this proceeding , to either
a less or more extent , occasioned some confusion among
McEwans at the hearing at it appears that the draftsman
of the complaint in certain particulars mixed up these
persons. At the hearing counsel for the General Counsel
stated that the John R . McEwan , Jr., alleged to be an
officer of the Company in paragraph V of the complaint,
was not John G. McEwan (herein previously designated as
Johnny McEwan ) the son of Robert L. McEwan. After
this statement without objection paragraph XII(a) was
amended to read "by John G. McEwan" instead of "By
John McEwan , Jr." This clarification eliminated from any
allegations of coercive conduct , John McEwan, Jr., the
officer of the Company who lives at Oxnard , California,
and did not appear in the events taken place at Santa
Maria, and John R . McEwan , Sr., who was a stand in for
his son for a few weeks in the course of his son's
hospitalization and convalescence and who testified most
briefly in this proceeding . John R . McEwan , Sr., appeared
on the witness stand only long enough to say that he never
discussed union activities with any of the employees while
he was at Santa Maria.
David Dicus , the son of Richard Dicus , is the principal
witness to the alleged unfair labor practices committed by
Johnny McEwan. David Dicus is a young man who is a
student at California Polytechnic Institute , San Luis
Obispo. Employee Robert Vasquez corroborated to some
extent some of the testimony of David Dicus. It was
during the cross-examination of Robert Vasquez, that it
appeared that there had been a case of mistaken identity
as to the McEwan who had held certain conversations
with David Dicus. In the course of that cross-examination
Vasquez said that the McEwan who had talked to him
and Dicus was the son of Robert L. McEwan , a young
man 16-17 years of age.
The testimony of David Dicus further clarified this
point. David testified that when the Company was run by
Smith , the former owner, he had a summer job as a
part-time employee with the Company . When David was
asked what Johnny McEwan ' s position with the Company
was, he said that Johnny was a "swamper , just like I was
a swamper being a helper ." David testified that in the first
conversation that took place around September 1 that he
was unloading a truck with Robert Vasquez and Jimmy
Weaver, employees at the warehouse . David said that he
did not know what lead up to the conversation but his
testimony is as follows : Johnny said , "that if the Union
did come in, that our fishing trips would be gone. We
would never have any more, and that is about as good as
I can remember on the conversation then ." David said he
did not know what provoked this conversation but, "John
came out with that little statement ="
David further testified that some three weeks later
Johnny came to David ' s trailer-home to say good-bye to
David because Johnny was going back to college in
Missouri , and to help David sand an automobile which
David owned preparatory to it being painted . While they
were so engaged, the conversation veered to the subject of
the Union . David said something about the Union had
"better medical plans." At that point Johnny "come up
with a statement, his father would handle the situation the
same as he did or a friend of his did, in Virginia , that he
would make it so hard on the workers it would make
them want to quit . That is the whole conversation right
there." In the course of further examination by me, David
testified that this conversation arose while the boys were
sanding David ' s car which "John ' s grandfather was going
to paint" for David.
The complaint alleges by three separate paragraphs that
on October 2, Robert L. McEwan interrogated employees,
threatened them with loss of economic benefits or
reprisals because of union activity and promised
employees promotions to supervisory positions if they
refrained from becoming or remaining members of the
Union.
In support of these allegations the General Counsel
called as a witness Manuel Vasquez , an employee.
Vasquez testified that about a week prior to October 4, he
had a conversation with Robert L. McEwan in the
warehouse of the Company. As to this conversation
Vasquez testified as follows.
INTERNATIONAL VAN LINES 361
A. I was looking in the - some overseas shipment I
was working , and Mr. McEwan walked up to me and
asked me if I knew anything about this union business
that was going on.
Q. Yes?
A. And I told him that I did, and he asked me,
"Well, are you going - are you fellows going to join9" I
told him, "Yes", that I think we would. Well, it was
not exactly the words he said , "Are you going to go
along with it?" I told him , "Yes", I though we would,
and what did I mean by we would . And I told him that
most of the guys working in the warehouse, that
worked with me in the warehouse, employees of
International and -
TRIAL EXAMINER- Go right along What else was said?
THE wiTNESS• He says, he told me, you know, he did
not think that the union would be good for the
company, and he said that he had heard that me and
Dicus, me and Tex were the instigators.
I told him that was not true, but that we were going
to go along - I made the mistake if I said I was going to
go along with the boys, and I told him that, you know,
a lot of the companies in Santa Maria were paying real
cheap wages, and that they had talked to me about
going along with them . That was the fellow employees
in different companies.
And I told them I was going to go along with them
and go with the Union . And he did not say nothing
else, I don ' t think . He turned around and walked back
in the office.
Manuel Vasquez also testified that on either October 2
or 3 he had a second conversation with Robert L.
McEwan , in the latter ' s office. Vasquez testified that on
this occasion he was in Meador ' s office and McEwan
nodded with his head for him to come in When he was in
McEwan ' s office McEwan showed him some figures on a
pad and told him approximately how much money the
Company was going to make in a future period . McEwan
then said , " that if the Company made any profit , that the
money - the profit the company made would go to
paying casual labor during the summer time , because the
wages had been so high" - "If we did not join the
Union , that the money could be distributed among the
employees by having barbecues and picnics and parties
and fishing trips."
Alter his attention was directed to the subject of a
bonus by the General Counsel, Vasquez testified that
McEwan also said that if the men joined the Union that
they would lose the yearly bonus.
It's one of the oddities of this work stoppage that when
Vasquez was asked if he went "on strike on October 4"
Vasquez replied , " I don ' t know what you mean I went
out on strike. I reported for work ." When he was asked if
he worked he answered , in the negative and said that he
did not cross the picket line.
When Robert L. McEwan was called as a witness on
behalf of the Company he said that he had a conversation
with Manuel Vasquez between September 21 and October
4 in regard to the Union . His version of the conversation
was somewhat different from that furnished by Vasquez.
McEwan said he made the statement that if the Union
was to come into the Company' s organization that the
high rate of pay which would be paid to casual labor
would take away from the profit situation of the
Company. And if there were no profits the Company
might not be able to pay Christmas bonuses or furnish the
employees with fishing trips, barbecues and picnics
However, he also told him that whether the Union came
in or not, if the corporation made a profit that the
Company would give Christmas bonuses, fishing trips,
barbecues and picnics , etc. In this connection it should be
noted that A. J. Smith, the prior owner of the Company
had on occasion given picnics , fishing trips or a bonus to
the employees . In the short period of time, during which
McEwan had owned the Company he had not set up any
practice of procedure on bonuses, picnics, barbecues, or
fishing trips; his conduct of the business had not reached
those matters.
Richard Dicus called as a witness by the General
Counsel stated that the Company had promised him
benefits and threatened reprisals in an attempt to
influence him in his voting for a collective -bargaining
representative Dicus testified that on October 2 McEwan
called Dicus into his office to talk to Thomas W. Arruda,
who was the labor relations consultant and trial counsel
for the Company . Dicus testified that when he was seated
Arruda said to him that McEwan nad called him in, "to
see if we cannot do something about these Union things
that are going on, and we would like to know if you could
give us some help ." Dicus testified that then Arruda
looked at some papers on his desk and said that there
were five names signed on authorization cards that were
eligible to vote in the election. Dicus, assuming that
Arruda knew the names of the Union employees then told
him that they were David Dicus , David Ponsetta , Robert
Vasquez, Manuel Vasquez, and himself . Arruda then said
that he couldn ' t see how David Dicus, a summer employee
and David Ponsetta who had worked only a few days
could be eligible to vote Then Arruda asked him how he
felt about the "Union thing ." Dicus said he could take it
or leave it. Then Arruda said , "Bob and I have been
talking it over, and we're thinking about making you the
foreman and giving you a substantial raise in pay." Then
Arruda said , "we would like to do something about this
Mexican thing around here." Dicus said he would like the
raise in pay but he would like to have the Union too,
because the benefits of the Union were pretty good Then
Arruda said he was going to have just as good benefits
without the Union as he would have with the Union and
that Bob McEwan was working on an insurance
proposition that Dicus was interested in. According to
Dicus, Arruda closed the conversation by saying that he
could not fulfill any of these promises, if the Union came
in, that it would be illegal. As he was leaving the office,
Arruda said to Dicus, "well we can depend on you for a
no vote, then ." Dicus replied in the affirmative.
In the course of his testimony Robert L. McEwan
testified that some time in August , Dicus came to him and
said that he was worried about his job, because Mexicans
were taking over so much of the moving industry in the
area. McEwan told Dicus not to worry, that McEwan was
planning on making Dicus, either operation manager or
foreman , as soon as he had the operations running
smoothly. After the advent of the union organizational
campaign , McEwan told Dicus during the first part of
September that Arruda , his labor relations counselor had
cautioned McEwan that he could not promote Dicus to
the position of operations manager or foreman at that
time because such a promotion might be considered an
unfair labor practice designed to dissipate the Union's
representational strength . According to McEwan, Dicus
said that he didn't understand that , and asked if he could
talk to Mr. Arruda the next time the labor relations
consultant was in town . On October 2, Arruda visited the
Company and at that time McEwan told Dicus that
Arruda was in his office if Dicus wanted to talk to him.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dicus joined Arruda and McEwan in the office and said
to Arruda that he understood that Arruda had said that
he could not be promoted at that time, and Dicus asked
why. Arruda explained that to promote him would be like
trying to break the Union or dissipate its majority.
Arruda said that the petition said that there were five
employees. Dicus said that he knew who the men were
who were adherents of the Union and started to name
them, but Arruda stopped him saying, "I don't want to
know who they are." Then Arruda explained that Dicus
had a right to join the Union or to refrain from joining
Dicus replied that he didn't care whether the Union got in
or not, but he thought that McEwan and he could sit
down and work out an arrangement between themselves.
Arruda told Dicus, that if the Union came in and
McEwan still wanted to promote him, he could. But he
couldn't do it at that time, because it would look as
though he was trying to take away the Union's majority.
McEwan denied that Arruda asked Dicus how he was
going to vote or that the words vote or voting were
mentioned in the course of the conversation at any time.
McEwan testified that he was in the office during the
entire conversation and several times stopped Dicus from
closing the door.
The Alleged Requests for Reinstatement
At the hearing the General Counsel offered proof that,
"during the month of October, both Vasquez and Dicus
inquired of McEwan as to whether they would have their
jobs at the end of the strike." This short passage from the
General Counsel's brief is quoted because the actual
testimony seems to fall far short of an unconditional offer
to call off the strike and an unconditional request for
reinstatement Richard Dicus testified that that while
McEwan was in the hospital he called at the hospital to
see McEwan. In the course of the conversation with
McEwan he asked if he was going to have a job or not.
McEwan said that he did not know how the strike was
going to turn out and he could not say, whether Dicus
would have a job or not at that time. After McEwan left
the hospital and was back at the warehouse of the
Company, Dicus and his wife called on McEwan at the
office. Again he, "asked Mr. McEwan if I was going to
have a job, and he told me practically the same thing."
McEwan said, "I don't know. I don't know how this thing
is going to turn out as far as I'm concerned, it is the
principle of the thing." The General Counsel then asked
Dicus if he was asking for his job back at that time or
"after the strike was over " Dicus replied that at "this
particular time I asked him after the strike was over "
Manuel Vasquez also testified that he went to the
hospital to see McEwan on a Sunday. He told McEwan
that the boys had talked about going back to work and
they would like to know how he felt about it. McEwan
told Vasquez that physically he was not in a position at
that time to talk about their going back to work, that
after he got a little better and he felt more like talking,
that his door would always be open to any of the men
who wanted to talk to him.
Richard Dicus testified further that around December
21, Manny Vasquez, Robert Vasquez, and himself went to
the office to see if McEwan would give them their jobs
back. Manny Vasquez asked McEwan if he would
consider giving the men their jobs. McEwan replied that
he could not do it. He said that he had men working for
him that had stuck with him during his trouble and he just
could not fire them to make room for the former
employees. He asked them how they would feel if he put
them back to work, and 2 or 3 weeks later fired them.
McEwan said his door was always open to the men, but at
that time he could not do it.
In the course of his testimony, McEwan said that at the
time the various employees visited him at the hospital he
was recovering from major surgery and was under the
influence of sedatives, that he simply told the men that he
was in no position to discuss anything concerning the
operation of the Company at that time.
In addition to the verbal testimony, the General
Counsel introduced certain documents which showed the
payroll of the Company for weeks immediately prior to
and after the initiation of the strike. These records
demonstrate that no one worked on either October 4 or 5.
From McEwan's testimony which is uncontracted it is
clear that his brother furnished him with 5 men who
worked for a short period of time after the beginning of
the strike and that thereafter McEwan made do with such
men as he could hire in the locality.
It is undisputed that from October 4 until the date of
the hearing the strike and picketing at the warehouse
continued. On the day before the hearing a final effort
was made by employees Vasquez and Dicus to confer with
McEwan and settle the strike and arrange for a return of
the men to their jobs. McEwan said that he would confer
with his attorney on the situation and the employees
offered to submit for consideration of McEwan, sample
Teamster Contracts from Monterey or Sacramento.
However, the hearing previously adjourned, took place as
scheduled.
The testimony related above does not purport to be a
summary of all testimony and all documentary evidence
submitted and received at the hearing, it is merely a
summary of the testimony of the principal witnesses for
the parties which presents their contentions. All testimony,
and all documents have been considered in reaching the
conclusions hereafter stated, but some testimony of
relatively lesser importance has not been narrated here in
the interest of brevity.
Concluding Findings
As the reader must have noted the sequence of events
leading to the principal issues here, the work stoppage, is
undisputed. This evidence established beyond any possible
doubt that the Union organized the employees of the
Company, but did not demand recognition from the
Company, or offer to prove to the Company its majority
status by the presentation of authorization cards or by any
other means. The Union first chose to use the procedures
of the Board to settle the question of representation, so it
duly filed a petition for certification of representative with
the Regional Office, (Regional Office 31) Los Angeles.
This conduct of the Union was in accord with the spirit
and the hope of the Congress in passing the National
Labor Relations Act, and the various amendments, whose
purpose was and is to insure industrial and employment
stability and harmonious labor relations conducted in
accordance with law by collective bargaining, and not by
"quickie" resorts to the use of economic force which the
Congress on several occasions had found to be inimical ;to
our national welfare.
However, the Union's reasoned course of action, was
soon abandoned and in its place the Union, with6ut
demand or notice to the Company, initiated a work
stoppage and picketing, and here we reach the crux of this
proceeding. Why did the Union abandon the lefgal
procedure of the Board and resort to its "quickie" whrk
stoppage? Ben Sanders, the Union officer in charge of, the
organizational efforts of the Union testified that this
INTERNATIONAL VAN LINES 363
action was taken for two reasons, (1) he had received
hearsay information that the Company had withdrawn its
consent to an election and (2) some other employers in the
area had fired some union adherents. As to (1), the fact is
undisputed that the Company had not consented to an
election, and had not withdrawn any consent or withdrawn
any action which could be described as purported consent.
The Company, at that point was awaiting further action
of the Regional Office in the union-instituted proceeding.
At that point the Union ordered the work stoppage and
picketing began '
At this point, in my judgment the question must be
raised, was this "quickie work stoppage," a protected
activity under the Act9 I am familiar with the line of cases
which appear to hold that all concerted work stoppages,
except those for a clearly illegal purpose, are protected
under the Act, but in my judgment this case arising after
30 years of collective bargaining calls for a reexamination
of this so-called blanket protection of work stoppages
upon the fiction that they are legal strikes, either
"economic" or "unfair labor practice" in nature.
To place this question in its proper focus let me say
that "quickie strikes" which arise spontaneously because
of an unfair labor practice committed by an employer, or
because of unsafe, or unsanitary conditions developing on
a job are, in my judgment, properly protected by the
Board. But, the rationale protecting those strikes may not
be stretched to this work stoppage without nullifying the
intent of the Congress , in enacting and in amending the
Act.
Most of the writers on this subject define a strike as a
concerted withholding of their labor by a group of
employees to exert economic pressure upon an employer
with whom they have a labor dispute. Here, at the time of
the work stoppage, there existed no labor dispute; the
Union had not notified the Company of its claimed
majority representative status; it had not demanded
recognition and it had not been refused At that point, no
difference existed between the Union - employees and
the Company. The Company waited, expecting the law as
administered by the Regional Office to take its course.
At that point the Union called a work stoppage of this
Company because allegedly (1) some other van line in the
area had done something which the Union didn't like and
(2) for the purpose of muscling its way to representative
status by the use of economic force.'
I do not believe that such conduct should receive the
protection of the Act. Thirty years have passed since the
passage of the Wagner Act, but even in that long time, we
'In passing it should be stated that in his testimony , Sanders after some
leading questions , testified that he received his information concerning the
withdrawal of consent from the Union's counsel, George A Pappy, Esq ,
in a phone call to Mr Pappy ' s office in Los Angeles, and that Mr Pappy
had received the information from "someone " in the Regional Office I do
not credit this testimony of Sanders Mr Pappy is an experienced labor
counsel , and a former employee of the Regional Office I have such
confidence in Mr Pappy's ability and integrity and in the ability and
integrity of the personnel in the Regional Office, that this testimony
proved to be utterly without factual foundation , cannot be credited In my
judgment , this bit of testimony is a fabrication by Sanders to give a
semblance of excuse for his arbitrary and precipitate conduct in calling the
work stoppage I do not credit this attempt by Sanders to slough off the
responsibility for his conduct on Mr Pappy or Regional Office personnel
'I have stated previously that I do not credit the testimony of Sanders as
to the alleged withdrawal of consent to an election In my judgment, the
Union, through the Teamster officers, simply decided to abandon the
Board's procedure and to muscle their way to representative status by
economic force, without displaying proof of majority status to either the
Company or the Board
should not forget that it was a veritable plague of strikes,
often caused by arbitrary, unreasoned and unreasoning
action by employers and unions , that brought the Wagner
Act into being to bring order out of chaos that threatened
our national existence . Its purpose was to promote
harmonious labor relations , and employment stability by
the means of collective bargaining and the use of legal
procedures , and thus displace the bull-headed
intransigence which was the hallmark of many employers
and union leaders of that era. Upon a consideration of the
causes which brought the Act into being, and the clearly
stated Congressional purpose in passing the Act, and its
amendments , I cannot see how this work stoppage can be
found to be a protected activity under the Act.
' Support for this position is found in the decision of the
Court of Appeals for Fourth Circuit and of the Supreme
Court in the Washington Aluminum case which states and
answers the question here presented .' In the cited case the
employees of Washington Aluminum Co. walked off the
job because the place of their employment was in their
opinion "too cold." The Circuit Court noted that no
notice to strike was given , and no complaint about the
cold given to the Company before the strike The
Supreme Court found notice to strike in some individual
complaints lodged with supervisors and excused the failure
to give notice on the ground that the employees had no
bargaining representative , - a deficiency not present here.
The reasoning of the circuit court in pertinent part is as
follows:
There was some variation in the testimony of the
employees as to the real reason for the walkout. But
even if it be assumed their sole purpose was to protest
the low temperature of their place of employment we
do not believe their actions should be considered a
protected activity under the facts and circumstances
here presented . One of the fundamental policies of the
National Labor Relations Act, 29 U.S.C. Section 151
(1958), is to secure industrial peace and prevent strife
and disruption by encouraging negotiation and peaceful
procedure for the attempted settlement of the demands
of a party . That is not to say that employees may not
under any circumstances , exert concerted pressure on
their employer in their efforts to gain compliance with
their demands . However, the office of a demand as a
condition upon the use of concerted pressures is well
recognized As this court stated in Jeffery-De Witt
Insulator Co. v. N. L R B., 91 F2d 134, 138, 1 LRRM
634 (4th Cir. 1937):
. A "strike" in such common acceptation, is the
act of quitting work by a body of workmen for the
purpose of coercing their employer to accede to some
demand they have made upon him, and which he has
refused.'
An important and necessary qualification of the right
to exert pressure on an employer through work
stoppages is that such pressure be exerted in support of
a demand or request made to the employer....
The decision then cites N.L.R B. v. Ford Radio and
Mica Corp ., 258 F.2d 165 (C A. 2), to the following
effect:
In N.L.R B v Ford Radio & Mica Corp., 258 F.2d
457, 465, 42 LRRM 2620 (2nd Cir. 1958), the court
said:
The duty to bargain collectively is but a facet of the
underlying purpose of the entire Act in promoting and
'Washington Aluminum Co , 291 F 2d 869, 48 LRRM 2528 reversed
370 U S 9, 82 S Ct 1099, 50 LRRM 2235
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
encouraging the peaceful settlement of labor disputes.
Placing the activity here under the broad protection of
section 7 would clearly frustrate that purpose. To hold
that those engaging in a strike had an unfettered right
to refuse not only to discuss their grievances but even
to name them would, far from promoting the peaceful
settlement of labor disputes, inject a judicially fashioned
element of chaos into the field of labor relations. "The
purpose of the act was not to guarantee to employees
the right to do as they please but to guarantee to them
the right to collective bargaining for the purpose of
preserving industrial peace... "
We do not hold as a matter of law that employees
engaging in concerted activities must give formal or
even informal notice of their purpose. However, where
the employer from the facts in its possession could
reasonably infer that the employees in question are
engaging in unprotected activity, j ustice and equity
require that the employees, if they choose to remain
silent, bear the risk of being discharged
We believe this principle particularly applicable
where, as here, the cause of the objectionable condition
was largely fortuitous and substantially beyond the
control of the employer and was of but brief duration,
and where, even beyond the neglected opportunity for
inquiry, negotiation and settlement , effective measures
had been taken by the employer before the protest was
even staged. The company was afforded no opportunity
to avoid the work stoppage by granting a concession to
a demand of the employees.
The Supreme Court, Mr. Justice Black writing,
reversed the circuit court on the following reasoning
We cannot agree that employees necessarily lose
their right to engage in concerted activities under
Section 7 merely because they do not present a specific
demand upon their employer to remedy a condition
they find objectionable. The language of Section 7 is
broad enough to protect concerted activities whether
they take place before, after, or at the same time such a
demand is made. To compel the Board to interpret and
apply that language in the niggardly fashion suggested
by the respondent here would only tend to frustrate the
policy of the Act to protect the right of workers to act
together to better their working conditions. Indeed, as
indicated by this very case, such as interpretation of
Section 7 might place burdens upon employees so great
that it would effectively nullify the right to engage in
concerted activities which that section protects. The
seven employees here were part of a small group of
employees who were wholly unorganized. They had no
bargaining representative and, in fact no representative
of any kind to present their grievances to their
employer Under these circumstances, they had to
speak for themselves as best they could As pointed out
above, prior to the day they left the shop, several of
them had repeatedly complained to company officials
about the cold working conditions in the shop. These
had been more or less spontaneous individual pleas,
unsupported by any threat of concerted protest, to
which the company apparently gave little consideration
and which it now says the Board should have treated as
nothing more than "the same sort of gripes as the
gripes made about the heat in the summertime." The
bitter cold of January 5, however, finally brought these
workers' individual complaints into concert so that
some more effective action could be considered. Having
no bargaining representative and no established
procedure by which they could take full advantage of
their unanimity of opinion in negotiations with the
company, the men took the most direct course to let
the company know that they wanted a warmer place in
which to work. So, after talking among themselves,
they walked out together in the hope that this action
might spotlight their complaint and bring about some
improvement in what they considered to be the
"miserable" conditions of their employment This we
think was enough to justify the Board's holding that
they were not required to make any more specific
demand than they did to be entitled to the protection of
Section 7. [Emphasis Supplied.]
Upon a consideration of the lines of legal reasoning in
these decisions I must hold that the Union-ordered work
stoppage of October 4 was an unprotected activity. Here
there was no spontaneous work stoppage and the men
were represented by a collective-bargaining agent -a local
of a national union. However , the collective-bargaining
agent chose to proceed by the use of economic force, and
acted in absolute derogation of the Act, which it had
previously invoked; because of its displeasure with some
other employer in the Santa Maria area.
However, the General Counsel contends that the
Union's action of October 4 was a protected unfair labor
strike. It is not clear from her argument, what action of
the Company was an unfair labor practice which caused
or prolonged this alleged strike, and as I view the evidence
there can be no doubt as to why this work stoppage
occurred and why it has continued until the date of the
hearing. On that point we have the questionable testimony
of Sanders himself and the testimony of McEwan, which I
credit, to the effect that the Company took no action
against the Union or its adherents prior to the stoppage. I
have examined the Company's conduct from every angle
and I can perceive no element of unfair labor practice
which caused or prolonged the work stoppage.
At best, for the General Counsel's purposes, this strike
could be only an economic strike for the purpose of
gaining recognition of representative status from - the
Company. I recognize the fact that the Board may
rationalize that transmittal of a copy of the Union's
petition to the Company was by inference a demand for
recognition and when the Company did not recognize the
Union immediately, the Union's strike action was
justified. Of course, such a finding would disregard those
factors in the evidence previously enumerated, but in case
that point may be reached by the Board , I will determine
the rights of the so-called strikers to reinstatement.
On October 5, the Company sent Manuel Vasquez,
Robert Vasquez, and Richard Dicus a telegram stating
that "for failure to report for work as directed at 7 a.m
Wednesday, October 4, 1967 you are being permanently
replaced." The testimony of McEwan which is
uncontracticted and which I credit, establishes that on
October 4, he made arrangements with his brother for
replacements of temporary duration and that hereafter he
hired such men as the circumstance of the strike and the
labor market afforded as permanent replacements. It has
been held for many years on the highest authority that an
employer has the right to replace economic strikers and
continue his business despite the strike if he can.'
Therefore, I find that the action of the Company in
replacing the economic strikers was not a discriminatory
discharge as alleged in the complaint and was not an
unfair labor practice.
'Mackay Radio and Telegraph Co, Inc, 304 U S 333.
INTERNATIONAL VAN LINES
At this point we may turn to a consideration of the
rights of the replaced economic strikers to reinstatement
to their jobs. Here, it is undisputed that the strike which
began on October 4, 1967, continued until the date of the
hearing on April 3, 4 and 11, 1968. The testimony of the
employees themselves is clear on the question of
reinstatement rights. Their first worry about their jobs
was couched in the question, would they get their jobs
back, after the strike was over. Up to the day before the
hearing the employees, with the union officials in the
background, sought to induce McEwan to enter into a
version of the Teamsters contract and to reemploy the
strikers. The law is clear on this point; if economic
strikers call off or abandon their strike, and if they make
an unconditional offer to return to work, they have a right
to be reinstated in their former or equivalent positions, if
the employer has not hired permanent replacements for
the strikers or if the employer has an equivalent job open.
In this case , none of these conditions to reinstatement
were ever fulfilled by the strikers, and the proof offered by
the General Counsel is fatally defective, in that this
transcript does not disclose that the Company had vacant
jobs to which the strikers could have been reinstated. To
enumerate these deficiencies; (1) the strikers never
abandoned or called off their strike, but on the contrary
continued it; (2) they made no unconditional offer to
return to work; (3) they had been permanently replaced
and (4) there is no proof in this record that there were
equivalent jobs open which could have been given to the
strikers. Therefore, I find that the failure of the Company
to reinstate the strikers was not an unfair labor practice as
alleged in the complaint.
The complaint herein alleges that the Company violated
Section 8(a)(1) of the Act, by specific conversation of
certain individuals. One of these is Johnny McEwan, son
of one of the stockholders of the Company. It is
undisputed that this teenage college boy was a summer
helper at the Company as was his friend, David Dicus,
another college student. Johnny McEwan is the son of one
of the owners of the Company and David Dicus is the son
of Richard Dicus, a leading union adherent. These
part-time, casual, summertime employees are involved in
365
this controversy, only by the accident of birth and filial
loyalty. According to David Dicus, Johnny McEwan
offered the opinion to his friend David that Johnny's
father would work the men so hard they would quit. On
another occasion as they sanded David's "hot rod,"
Johnny reiterated this statement. I do not think this
expressed opinion of one college boy to his chum; both of
whom are known to the employees as "helpers" of
summertime duration only, constitutes an unfair labor
practice on the part of this Company. The General
Counsel's claim that this opinion of Johnny McEwan
binds the Company, based only on his relationship to his
father, is, in reality an admission of just how insubstantial
is the General Counsel's case.
There are other conversations alleged in the complaint
to be violations of Section 8(a)(1) of the Act. They involve
a conflict in testimony between McEwan and employees
Dicus and Vasquez. The differences in the testimony of
the witnesses as to these conversations goes largely to
their timing and the factual context in which the
conversations occurred. Upon a consideration of all the
evidence and the bearing and demeanor of these witnesses,
I credit the versions of these conversations given by
McEwan. His version of these conversations seems to be
more consistent with the totality of the evidence and the
undisputed sequence of events from the time the Company
acquired the business from its former owner, until the
time of the hearing. Furthermore, I can perceive no threat
of force or economic reprisal in these conversations.
Therefore I find that the Company did not violate
Section 8(a)(1) of the Act as alleged in the complaint.'
Upon a consideration of all the credible testimony and
documents submitted in the case it is found that the
General Counsel has failed to prove by a preponderance
of the credible evidence that the Company committed any
of the unfair labor practices alleged in the complaint,
therefore it is ordered that the complaint herein isl
dismissed in its entirety.
'Dierks Forests, Inc, 385 F 2d 48 (C.A. 8), and cases cited,
TRW-Semi-Conductors, Inc.. 385 F 2d 753 (C A 9)