L. G. Everist, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1963

142 N.L.R.B. 193 (N.L.R.B. 1963)

L. G. EVERIST, INC. 193
L. G. Everist, Inc. and General Drivers & Helpers Union Local
749, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America . Case No. 18-CA-1410.
April 23, 1963
DECISION AND ORDER
On November 27, 1962, Trial Examiner Lloyd Buchanan issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices alleged in
the complaint, and, recommended that these allegations be dismissed.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report sand a supporting brief.
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 Inter-
mediateReport, the exceptions and brief, and the entire record in the
case , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are consistent with
this Decision and Order.
As described more fully in the Intermediate Report, the Respond-
ent, a subcontractor, was at all material times herein engaged in haul-
ing aggregate under an oral contract with Milwaukee Motor Trans-
port to a prime contractor, Brown, Jones and Root, at a construction
site in South Dakota. On Friday, December 8, 1961, the construction
site was being picketed by the Iron Workers Union.' Nine of the
Respondent's .drivers arrived that morning at the construction site
and, after observing the picket line, parked their trucks and called
Teamsters to find out if they should cross the picket line. They were
advised not to do so. Roe, Respondent's superintendent, arrived a
short time later and, after a conversation with the project manager
of Brown, Jones and Root, instructed the Respondent's drivers to
cross the picket line and make deliveries or to return the loaded
trucks to the Respondent's place of business. Five drivers continued
to make deliveries, but they quit somewhat earlier in the day because
of icy roads. Dunlap, Miller, Taylor, and Reeves, the claimants
herein, returned their loaded trucks to the plant. Shortly thereafter,
these four drivers received their checks from Roe.'
1 The Respondent's employees are represented by the Teamsters Union.
9 Although this was not their regular payday, Roe gave no reason for paying them, at that
time. The Respondent does not deny that the four claimants were discharged on
December 8.
142 NLRB No. 20.
-194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday, December 11, deliveries were resumed by the five
drivers who crossed the picket line, together with three of the Re-
spondent's supervisors and a student driver. Later that day, a con-
veyor broke down at the construction site, and all work at the site
ceased. On the evening of December 11, Teamsters called a strike of
Respondent's nine drivers to protest the discharges. Picketing at the
Respondent's main office began December 12. The picketing ended
the morning of December 14, at which time the Respondent's drivers
made an unconditional request for reinstatement. Roe notified those
drivers who had crossed the picket line to report for work on Decem-
ber 15, but refused to reinstate the other four drivers, stating that by
refusing to cross the picket line they had quit and, that the matter was
out of his hands. The broken conveyor at the dam site was repaired,
and the Respondent resumed deliveries on December 15, with its five
regular drivers, three supervisors, and another driver. From that
time until about Christmas, Respondent's deliveries were made by
the five regular drivers, the three supervisors, and various temporary
employees who were hired during that period. Around Christmas
permanent replacements were hired and the supervisors returned to
'their normal duties.
The complaint alleges that, by discharging the claimants on De-
cember 8, 1961, because they refused to cross the picket line, and by
refusing to reinstate them on December 14, the Respondent violated
Section 8(a) (1) and (3) of the Act. The Trial Examiner foundI
that the discharges on December 8 did not violate Section 8(a) (3)
of the Act since they were prompted by Respondent's need to con-
tinue operations and were not in reprisal for the claimants having
refused to cross the picket line. The Trial Examiner further found
that, since the original discharges were lawful, the Respondent did
not violate Section 8 (a) (3) of the Act by refusing to reinstate the
complainants on December 14 even though they had not been per-
manently replaced.
In excepting to the Trial Examiner's findings, the General Counsel,
relying on the Board's Decision in Redwing Carriers,' contends that
the discharges on December 8 were unlawful on the ground that the
"The Trial Examiner also found , and we agree , that the Respondent violated Section
8(a) (1) of the Act by the following conduct: ( a) On or about November 17, 1961, Roe,
Respondent's superintendent, told driver Miller that Roe had knowledge that Miller had
persuaded others to vote for the Union, thereby creating the impression of surveillance ;
(b) On February 20, 1962, Roe threatened driver Bode that the Respondent would lease
its trucks and that the men would starve if they continued to support the Union. The
General Counsel excepted to the failure of the Trial Examiner to find that the Respondent
violated Section 8 (a) (1) by Roe's remark to driver Reeves in April 1962 , when Reeves
requested but was denied reinstatement , that Reeves had "learned his lesson" in supporting
the Union. We find merit in the General 'Counsel's contentions , and we find that by such
conduct the Respondent further violated Section 8(a)(1) of the Act.
4 Redwing Carriers , Inc. and Rockana Carriers, Inc., 137 NLRB 1545; Members Rodgers
and Leedom concurring separately.
L. G. EVERIST, INC. 195
Respondent discharged the complainants in reprisal for their having
engaged in protected concerted activity. The General Counsel fur-
ther contends that even assuming these discharges were for the pur-
pose of enabling the Respondent to continue its business, and were
therefore lawful, the refusal to reinstate the complainants on Decem-
ber 14 was unlawful, since at that time they had not been permanently
replaced.
We find it unnecessary to decide whether, as the General Counsel
contends, the Respondent unlawfully discharged the claimants on
December 8, since in our view, the Respondent violated Section
8(a) (1) of the Act by refusing to reinstate the claimants upon their
unconditional application for reinstatement on December 14, at which
time they had not been permanently replaced.5
As noted, the Respondent sought to justify its refusal to reinstate
the claimants on the ground that they had refused to cross the picket
line and had thereby quit their employment. The Trial Examiner
apparently reasoned that where, under Redwing, an employer law-
fully "discharges" employees for refusing to cross a picket line, such
"discharge" is tantamount to a discharge for cause and, as in the case
of any discharge for cause, the employer is thereafter entitled to re-
fuse to reinstate the employees for the same reason that justified the
original discharge. However, in Redwing, the Board found that an
employee's refusal to cross a picket line was protected activity. Red-
wing holds, in effect, that a "discharge" for refusal to cross a picket
line is an exception to the general rule that employees may not be
discharged for engaging in protected concerted activity. It is there-
fore not a discharge for cause, but merely a permissible act in further-
ance of the employer's overriding right to keep his business going by
replacing such employees. To this extent, at least, the employees in-
volved herein are similar to economic strikers, who may also be re-
placed by an employer to permit continued operation of the business
but who, if not permanently replaced, are entitled to reinstatement
upon unconditional application. It follows, therefore, that where,
as here, no permanent replacement has occurred at the time the
claimants unconditionally apply for reinstatment so that their jobs
are still available, the employer is obligated to return them to work.
In light of its continued need for employees, the Respondent's argu-
ment that it was seeking to replace the claimants in order to operate
its business falls and its refusal to reinstate them because of their
5 Although the Trial Examiner dealt with this case as raising issues under Section
8(a) (3) of the Act, as the record here does not establish that the Respondent 's refusal
to reinstate the claimants was related to their union activity or was intended to discourage
union membership , we find that the Respondent 's conduct violated Section 8(a) (1) rather
than 'Section 8(a) (3) of the Act. See: Gullett 64n Company, Inc. v. N.L.B.B., 179 V. 2d
499 (C.A. 5), modifying and enfg. 83 NLRB 1, modified on other grounds, 340 U.S. 361.
712-548-64-vol. 142-14
::196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to cross a picket line necessarily constitutes a penalty for en-
:.gaging in that protected activity. Accordingly, we find that by its
.conduct the Respondent violated Section 8(a) (1) of the Act.
Upon the basis of the foregoing, and upon the entire record in the
case, we shall delete items numbered 2, 3, and 4 of the Trial Examiner's
,conclusions of law in the Intermediate Report, and make the following:
Additional Conclusions of Law
2. The Respondent is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
3. By creating the impression of surveillance in connection with its
..employees' union activities, by threatening to lease trucks and do away
with its employees' jobs if they continue to support the Union, and by
telling employees that they had been discharged because of their sup-
port of the Union, the Respondent has interfered with, restrained, and
.coerced employees in the exercise of their statutory rights within the
,meaning of Section 7 of the Act, and has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of
the Act.
4. By refusing to reinstate Donald B. Reeves, James H. Taylor,
Raymond C. Miller, and Jimmie G. Dunlap, on and after Decem-
ber 14, 1961, because they had refused to cross a picket line, the Re-
spondent has interfered with, restrained, and coerced employees in
the exercise of the rights guaranteed by Section 7 of the Act, and has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
THE REMEDY
Having found that the Respondent committed certain unfair labor
practices in violation of Section 8(a) (1) of the Act, we shall order the
Respondent to cease and desist from such conduct.
We have found that the Respondent violated Section 8(a) (1) of
the Act by refusing to reinstate Donald B. Reeves, James H. Taylor,
Raymond C. Miller, and Jimmie G. Dunlap, on and after December 14,
1961. We shall therefore order the Respondent to offer the aforesaid
individuals immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
and other rights and privileges, dismissing if necessary, in order to
provide places for said individuals, all persons hired on and after
December 14, 1961, and make them whole for any loss of earnings
they may have suffered by reason of the Respondent's refusal to rein-
state them, by the payment to each of them of a sum of money equal
L. G. EVERIST, INC. 197
to that each normally would have earned as wages from December 14,
1961, the date of the Respondent's refusal to reinstate them, to the
,date of the Respondent's offer of reinstatement,' less the net earnings
of each during such period, with backpay to be computed on a quar-
terly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, and shall include an allowance of interest
;at the rate of 6 percent per annum to be computed in the manner set
forth in Isis Plumbing d Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices committed, the
commission by the Respondent of similar and other unfair labor prac-
tices may be anticipated. We shall therefore order that 'the Re-
=spondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, L. G. Everist,
Inc., Chamberlain, South Dakota, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Creating the impression of surveillance in connection with its
employees' union activities, threatening to discharge employees if
they support the Union, or any other labor organization, or making
statements to employees that they were discharged because of their
support of the Union, orally other labor organization,, in a manner
constituting interference, restraint, or coercion within the meaning of
Section 8 (a) (1) of the Act.
(b) Discharging or refusing to reinstate employees because they
have engaged in activities guaranteed in Section 7 of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of-the'right to self-organization, to form
labor organizations, to join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bar-
gaining or mutual aid or protection, or to refrain from any and all
such activities, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
6 The parties stipulated at the hearing that offers of reinstatement were made to Donald
Reeves, on August 8, 1962, and to James H. Taylor, Reymond C. Miller, and Jimmie G.
Dunlap on August 9, 1962.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer to Donald B. Reeves, James H. Taylor, Raymond C.
Miller, and Jimmie G. Dunlap, immediate and full reinstatement to
their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges, dismissing, if neces-
sary, in order to provide places for the aforesaid individuals, all per-
sons hired on and after December 14, 1961, and make them whole
for any loss of pay each may have suffered by reason of the unlawful
refusal to reinstate them, in the manner set forth in the section of this
Decision and Orderherein entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze and determine the amount
of backpay due and the right to reinstatement, under the terms of this
Order.
(c) Post at its plant in Chamberlain, South Dakota, copies of the
attached notice marked "Appendix." ° Copies of said notice, to be
furnished by the Regional Director for the Eighteenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in con-'
spicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional. Director for the Eighteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the Board reserves to. itself the right
to modify the backpay and reinstatement provisions of this Order,
if made necessary by circumstances not now apparent.
MEMBERS RODGERS and LEEDOM, dissenting in part :
Unlike our colleagues of the majority, we would find that the Re-
spondent did not violate the Act by discharging claimants on Decem-
ber 8 and by refusing to reinstate them on December 14. For the
reasons stated in the original Board decision in Redwing Carriers,8
we believe that the claimants' refusal to cross the picket line was un-
protected activity. We would therefore find that the Respondent
acted lawfully in terminating the employment of the claimants be-
71n the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
8 130 NLRB 1208; see also our concurring opinion in Redwing Carriers, 137 NLRB 1545.
L. G. EVERIST, INC. 199
cause of their refusal to cross the picket line. Since the original dis-
charges were for cause and were therefore lawful, we would further
find that the Respondent did not thereafter violate the Act in refus-
ing, for the same reason, to reinstate the claimants. We would ac-
cordingly dismiss those portions of the complaint relating to the
Respondent's discharge and refusal to reinstate the claimants.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a 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 you that :
WE WILL NOT create the impression of surveillance in connec-
tion with our employees' union activities, or threaten to dis-
charge employees if they support General Drivers & Helpers
Union Local 749, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any other
labor organization, or make statements to employees that they
were discharged because of their support of the aforementioned
Union, or any other labor organization.
WE WILL NOT discharge or refuse to reinstate employees be-
cause they have engaged in activities guaranteed in Section 7 of
the National Labor Relations Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form, join, or assist the above-named 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 and all such activities, as
guaranteed in Section 7 of the Act.
All our employees are free to become, remain, or refrain
from becoming or remaining, members of the above-named
Union or any other labor organization.
WE WILL offer Donald B. Reeves, James H. Taylor, Raymond
C. Miller, and Jimmie G. Dunlap, immediate and full reinstate-
ment to their former or substantially equivalent positions with-
out prejudice to their seniority or other rights and privileges,
dismissing, if necessary, in order to provide places for the afore-
mentioned individuals, all persons hired on and after Decem-
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 14, 1961, and make them whole for any loss of pay each may
have suffered by reason of our unlawful refusal to reinstate them.
L. G. EVERIST, INC.,
Employer.
Dated---------------- By------------------------------------
(Representative ) ( Title)
NOTE.-We will 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
of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not bealtered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 316 Federal Building, 110 South Fourth Street, Minneapolis,.
Minnesota, 55401, Telephone No. 339-0112, Extension 2601, if they
have any question concerning this notice or compliance with its
provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein (July 10 , 1962 , charge filed April 17 , 1962 ), as amended,..
alleges that the Company has violated Section 8(a)(3) of the National Labor
Relations Act, as amended , 73 Stat. 519 , by discharging Donald B. Reeves, James H.
Taylor, Raymond C. Miller , and Jimmie G. Dunlap on or about December 8, 1961,.
and thereafter failing and refusing to reinstate them ( except that it offered full and
complete reinstatement to Reeves on August 8, 1962, and to the other three on Au-
gust 9 ), because they refused to make deliveries across a picket line established
against another employer by another craft union; and Section 8(a)(1) of the Act
by said alleged acts , by threats to employees in connection with union membership
and support , interrogation concerning their voting in a Board-conducted election,
and creating the impression of surveillance . The answer, as amended , questions
the nature and validity of the picketing , admits that the Company told the em-
ployees to return their trucks when they refused to make the deliveries , but denies.
that the Company committed any unfair labor practices as alleged.
A hearing was held before Trial Examiner Lloyd Buchanan at Chamberlain , South,
Dakota, on August 22 and 23, 1962. At the close of the hearing, counsel was.
heard in oral argument . Pursuant to leave granted to all parties , the General
Counsel has filed a brief , which carefully analyzes most of the testimony but ignores.
a few important facts.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company , an Iowa corporation with principal
office and places of business in Dell Rapids , South Dakota , and other places of busi-
ness in Chamberlain and Sioux Falls, South .Dakota; and Sioux City and Hawarden,
Iowa, is engaged in the sand , gravel, quartzite , and limestone quarry business for
the production and sale of all types of aggregate and related products; that dur-
ing 1961, it sold products valued at more than $ 100,000 , more than $50,000 of
which were sold and shipped from its Iowa or South Dakota locations to points
outside those respective States; and that it is engaged in commerce within the mean-
ing of the Act.
It was admitted and I find that the Union is a labor organization within the mean-
ing of the Act.
L. G. EVERIST, INC.
U. THE UNFAIR LABOR PRACTICES
201.'.
A. Miller's status
Involved in consideration of both types of violation alleged is the question whether'
Miller was a supervisor or a rank-and-file employee. It appears from the record
that prior to the election which the Board conducted among the Company's drivers
on November 16, 1961, Miller rode with and gave instructions to other drivers,
effectively recommended discharge, and was a supervisor within the meaning of
the Act. Although Miller was not certain of this, it appears that on the day of
the election, counsel for the Company told Miller that he was "just a lead driver." 1
From the testimony it is clear that both counsel for the Company and Miller dis-
tinguished between a foreman, with his supervisory status, and a lead driver, as
rank-and-file employee. Whether mistakenly or willfully, Miller was treated by the-
parties as an employee at the election, and voted without challenge. Thereafter,
whether as reprisal for the way in which the Company believed he had voted, or
for whatever reason, Miller did not exercise any supervisory functions. If there^-
were no new drivers with whom he could ride, and no men were discharged, he had
prior to November 16 ridden with and reported on experienced drivers also; this he
no longer did. Miller appears to have correctly understood that counsel on No-
vember 16 meant that he was now a regular driver only: he was no longer to
perform both supervisory and rank-and-file duties, but was now a rank-and-file'
employee.
His attempt to call Roe when be, fourth driver in line, and the other drivers-
stopped short of the picket line on the morning of December 8 does not show that
Miller had any managerial responsibility or that he assumed that he had, as counsel'
for the Company claims. Such action is quite as compatible with rank-and-file status.
in one who merely seeks further orders or who wants to advise his supervisors. In
this connection it is to be noted that the amended answer recognizes Miller's status
as an employee, and does not allege as a defense that he was a supervisor.
B. The alleged independent violation of Section 8(a) (I)
Driver Bode testified that on February 20, 1962, Roe, the Company's superintend-
ent, threatened that the Company would use more leased trucks and Bode would
starve if he stayed union and caused too much trouble. Such connection of union
support with loss of employment is violative. While Roe undertook to explain
other remarks which he made to Bode, he supported my impression of his credibility'
as he did not attempt to explain or deny this threat.
Roe was guilty of creating an impression of violative surveillance on November 17'
or 18, when he told Miller that he had heard from a good source that Miller had
voted for the Union and had persuaded Taylor and Driver Leibrich to vote similarly.
Roe testified that he "jumped" Miller concerning union activities because he con-
sidered him to be part of management. If Roe was here referring to Miller's testi-
mony concerning this incident, he was not justified since, as we have seen, Miller
was at that time a rank-and-file employee. I do not find that these remarks by
Roe constituted an additional violation, of unlawful interrogation. I do not rely,
nor apparently did the General Counsel, on an alleged statement by Roe concern-
ing Reeves' attendance at a union meeting, the latter being uncertain whether it was.
made before or after the election; nor for the same reason and also because it is not
alleged as a violation, on a suggestion of threat to Reeves by Roe, which the latter,
denied.
C. The alleged violation of Section 8(a) (3)
The Respondent Company was hauling aggregate, under an oral contract with:
Milwaukee Motor Transportation Company of the Milwaukee Railroad, for Jones,.
Brown and Root, the prime contractor at the construction site of the Big Bend Dam,
Fort Thompson, South Dakota. On December 8, 1961, at the entrance to the site
used by the Company's drivers, a picket appeared with a sign indicating a strike-
by Iron Workers Local 184 against another prime contractor, Western Contracting'
Corporation. Dunlap was first to arrive that morning with a load of aggregate,
and he was followed successively by Reeves, Taylor, Miller, and then five other-
company drivers. (At various times, there was reference to 10 or 11 drivers.)
Some 100 to 150 employees of the prime contractors were at the entrance when,
Dunlap arrived, and the number soon swelled to 250 to 300. Dunlap and the other-
'The transcripts erroneous "relief driver" is hereby corrected. The correct phrase,
"lead driver," appears elsewhere,
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers did not cross the picket line (we need not debate the Company's position
that the picket in the road did not constitute a picket line which merited or warranted
observance by the employees), but parked their trucks in a line outside.
Roe arrived at the site about 20 minutes later, crossed the picket line, talked with
Petern, the project manager for Jones, Brown and Root, and visibly upset, came out
to where the drivers were and told them in substance, as both they and he agreed,
to take the load across the line and dump it or return the truck to the Company's
office in Chamberlain and there park it. While the five other drivers made their
deliveries across the picket line and continued to work, quitting somewhat earlier
than usual that afternoon because the roads became icy, the four alleged discrimi-
natees returned to Chamberlain, where they parked their loaded trucks. Roe, having
also returned, called them into the office and told them that he would have their
checks soon; and the four came in for their checks that day or the next. That they
were being discharged for resfusal to make deliveries was clear as the alternative
of discharge was to the other five drivers who had previously balked at crossing
the picket line.
The five other drivers and replacements as we shall see, worked on Monday,
December 11, when the Jones, Brown and Root conveyor motor burned out, and
deliveries had to be halted. This later breakdown did not affect the situation as it
existed on December 8, or the question of violation on that day. Deliveries could
be and were resumed on December 15. In the meantime it was decided at a driver's
meeting on December 11 to go on strike, and these four with three of the five who
had worked on December 8 and 11 went on strike and picketed from December 12
until about 9:30 on the morning of December 14, when the Union herein called
off the picketing. At that time, Mcllvenna, the Union's business representative,
handed to Roe an offer to return to work immediately, signed by the seven strikers.
With respect to the four, Roe told Mcllvenna that it was out of his hands and, later,
that he would not take them back since they had refused to cross the picket line.
It was apparently on the 14th that Roe for the first time stated any reason, it having
been testified that after he had directed the drivers to make their deliveries or return,
and specifically when he paid them, there was no conversation and no reason stated
for the discharges.
The other three, who had crossed the picket line and worked on the 8th and 11th
but thereafter picketed while the conveyor was down, were reinstated, and returned
to work on the 15th, and there is no claim of discrimination against them. Roe
testified that the four had been discharged and that it was against company policy
to rehire discharged employees.
The General Counsel cites Roe's order to the employees when they stopped at the
picket line and, as an admission, a letter to the Board from counsel for the Company
in April 1962. While what the Company thus said and Roe's statement to the
union representative on December 14 may well reflect its motives and may explain
what it did, I am not so much persuaded by the words used as by what was done.
Thus the letter states that the drivers "were taken off the payroll for insubordination
and for refusing to work." This bears on credibility as Schulte, the Company's
general superintendent, and Roe testified to the Company's obligation to perform
under its contract. But the Company's acts themselves more than its own words
indicate the motivation for those acts. If it be urged that its very artlessness (main-
taining that he told employees at their hiring interview that the Company's contract
required deliveries regardless of strikes, Schulte could not be gotten to include the
reference to strikes when he was asked to repeat just what he had said to them)
warrants reliance on the language employed, the Company was no more artful or
wily, and therefore unreliable, in its action, which was reasonable and necessary.
The issue being whether the Company discriminated, promptness of replacement
proves the need and the motive; and the motive, I believe, is the basis for the Board's
recent decision in the Redwing Carriers case,2 following the Supreme Court's de-
cision in Rockaway News.3 Resolution of the issue of violation depends ultimately
on what the Company did and whether that reflected discrimination. If, as the
Board said in Redwing, discharge prior to replacement is not itself discriminatory,
we must consider all of the evidence to see whether that proves discrimination.
Thus we must weigh the promptness of replacement as evidence of the need and
desire to continue operations, these in turn bearing on the issue of discrimination.
Saturday and Sunday, December 9 and 10, were not working days. On the 11th,
the Company did operate, as we have seen, until the prime contractor's conveyor
motor burned out and deliveries had to be halted. Repairs were completed by
December 15 and operations resumed. While the Company's evidence concerning
2 Redwing Carriers, Inc., 137 NLRB 1545.
a N.L.R.B. v. Rockaway News Supply Company, Inc., 345 U.S. 71.
L. G. EVERIST, INC. 203
replacements was not as specific as its records might have shown , the facts testified
to were not contradicted . They harmonized with the testimony of the General
Counsel 's witnesses , most of whom were not very definite in this connection, con-
cerning supervisors , some from other company locations , and new men on the job.
Thus the Company acted promptly to displace the four discharged on December 8,
first calling on three supervisors , including Schulte himself to drive trucks, and
employing and training new men who after a time replaced the supervisors. As we
shall further note, if the Company acted promptly to continue necessary operations
and the four were lawfully discharged , it was not obliged to rehire them on request
before it hired and trained new men.
To say that these four were discharged because of their insubordination and pro-
tected concerted activities , is to recite only part of the facts; and even if the Com-
pany made only a partial recital, I credit the uncontradicted testimony that the con-
tractor told Roe that continued and uninterrupted deliveries were essential, the
aggregate piles being low. The Company had agreed to deliver aggregate as needed
by the prime contractor, and to keep the piles full: and the contract would be auto-
matically terminated if the Company failed to make deliveries. While understand-
ing of these terms by the employees is not an essential element to our recognition
of the Company's obligation , communication of the facts again bears on the issue
of credibility ; and it stands without contradiction by the employees themselves,
although the testimony concerning the oral contract was not otherwise confirmed,
that all were told that deliveries as required by the main contractor were essential,
and that at least some of these employees were informed when they were hired that
deliveries could not be interrupted by strikes.
Now, on December 8, Petern, the main contractor 's superintendent or project
manager , told Roe that he wanted the aggregate brought in and unloaded. Since
failure to comply could mean loss of the contract , we can readily understand the
testimony by the General Counsel's witnesses that Roe was visibly excited and angry
when he came out after talking with Petern , not when he first appeared and saw the
trucks lined up. Here was further evidence that Roe's concern was not over the
concerted activities themselves , but over their effect on the Company's operations,
as now stressed by Petern . Roe had not directed the drivers to cross the picket line or
face discharge merely on their refusal to make delivery ; it was on his return after
Petern 's insistence that the Company live up to its obligation , that he acted. The
fact that he did not discharge or take any other action against the drivers when he
first noted their refusal to cross the picket line indicates that, when he acted thereafter
to discharge and replace them , it was because of the now confirmed obligation to the
prime contractor and, in the language of Redwing, "only to preserve efficient opera-
tion of his business ." The motive , which is thus determinative , was lawful even if
Roe did not then or thereafter tell or remind the drivers of the necessity, and even
if they had not realized what the consquence of refusal would be.
Reference to insubordination and refusal to work explains the report to replace-
ment; it does not contradict the defense that prompt replacement was necessary
to continue operations. Nor must such necessity be stated according to any
formula or abracadabra . That the condition existed is clear. It is equally clear
that Roe acted promptly to get the work done, and his remarks show that without
proof of discrimination . The action taken and the reason therefor were sufficient,
if the explanation was not . Discharge in reprisal merely for insubordination in
refusing to cross the picket line would be violative . But the evidence indicates
that , while the reference was to insubordination , the Company was obliged to make
deliveries and took immediate steps to that end . The refusal to cross the picket
line, without any intervening element , prevented the Company from carrying on
its necessary operations ; with necessary action taken , there is at most a distinction
between a statement which was made and one which should have been made.
Speculating , one might argue that , had it not been necessary to continue operations,
these employees would nevertheless, in violation of the Act, have been discharged for
refusal to work and insubordination . But this is speculation concerning a state
of facts which is not before us.
As we continue this analysis of a new principle from various points of view
from which it may be examined , we should note also that the issue is no longer
whether the employees were discharged before they were replaced? Hence we are
not limited to evidence of replacement with new and permanent employees . Rather,
under Redwing Carriers, the question is whether the Company acted promptly to
fill the need; the Board 's test , as the General Counsel recognized, is necessity and
prompt action. Not only is permanence of the immediate replacements1 not essen-
tial; the fact that the Company called on other employees or supervisors while it
A Id., at 75.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtained and trained permanent replacements itself suggests an emergency and the
need for prompt action.
The General Counsel has correctly stated, "The sole criteri [on] is . . . whether
or not the employer is concerned with the attempt to run his business." I find
that the Employer was thus concerned . In fact , the General Counsel 's witnesses
emphasized the immediate use of company supervisors even as new men were
promptly hired, trained , and assigned to these jobs . If the jobs were not permanently
filled when the discharged employees applied for reinstatement , the Company had
nevertheless acted promptly to replace them and to continue its operations.
If the discharges were thus lawful on December 8, no violation was thereafter
committed in refusing reinstatement . The important point to be noted in this con-
nection is that although permanent replacement had not yet been obained for the
four jobs, the Company had promptly acted to get the work done with temporary
replacements while it took steps to secure new employees . To hold that such ac-
tion is unlawful would be to deny the principle of Redwing Carriers in all cases
where new employees are difficult to obtain or require a preliminary period, for
training or otherwise , before they can adequately perform the necessary work.
The emergency and necessity indicated it cannot be said that the discharges were
discriminatory on December 8 when they were effected. Did they thereafter be-
come so? If the Company had to and did act promptly and lawfully on Decem-
ber 8, the alleged discriminatees were no longer entitled to reinstatement : they had
been discharged , and a policy not to hire men whom it had discharged is not un-
lawful where the discharges were lawful as here. To argue that the December 14
refusal to reinstate is "but additional evidence of the illegal motivation subsequent
to the event ," is to deny ( as the General Counsel does not specifically do) the right
to refuse to employ men previously discharged.
Whatever the General Counsel may say about this not being "good business
practice," the Company could then proceed to obtain permanent replacements
while it attempted in a practical way to operate during , the hiring , and training period.
Not only does the Board not require in Redwing that the replacements be permanent,
but such a requirement might well impose an impossible condition and defeat the
concept of prompt replacement . What if a job required greater specialized skill
and longer training? Redwing holds that there must be a need for and evidence
,of prompt action: the need warrants immediate discharge with prompt action to
replace on refusal to cross a picket line; and the action taken to replace justifies
.the discharge.
Having found that the facts warranted the action there taken by the employer to
-continue operations , the Board in Redwing remarked on "the absence of any evidence
of union animus" as supporting its finding that the employer had not acted in reprisal
because the employees honored the picket line. In the instant case , interference has
been found, and the Company , by letter dated shortly before the election , definitely
expressed its "attitude toward the Teamsters ' Union." Roe, who admittedly had
expressed to another person his opinion that "all the Unions ever did was cause
trouble ," and that the men would be better off if they did not attend union meetings,
opposed unionization . I so found and stated on the record . Beyond that, it is
clear that Roe was not threatening but facetiously indicated his general attitude when
he remarked to this other person , in October or November , before the election, after
they had discussed target pistols such as Roe normally carried , "Now, let me negotiate
'with these drivers."
The interference and animus aside, we have seen that the evidence indicates
that the Company discharged these four employees so that it could run its business,
in the language of Redwing , "despite the sympathetic activities of the drivers here
.involved," i.e., "to preserve efficient operation of [its] business ." The question is
-now presented whether the animus here found indicates that the Company dis-
charged these employees , not merely because it wanted to run its business efficiently,
but at least in part in reprisal.
Animus or general opposition to unionization suggests the possibility of violation
and may indicate such violation where the evidence of animus does not itself show
that violation . But the possibility here is not supported by sufficient proof, and I
-am not persuaded that the showing of animus per se or that the evidence as a whole
deprives the Company of its defense or overcomes its proof that it acted solely to
continue its business . The animus here did not bar immediate acceptance of the
other three strikers ' offer to return to work : they had not failed to make essential
deliveries , having been on strike when the conveyor was down and offered to re-
turn before work was resumed. Nor is there any basis for concluding that Roe's
different treatment of the two groups stemmed from an appreciation of the various
rules of law.
GOLD MERIT PACKING COMPANY, INC. 205
In its reference to animus, the Board in Redwing Carriers presumably meant, not
that animus bars discharge based on need to continue operations , but that animus
should be considered in deciding whether the discharges were in fact based on such
need or whether they were at least in part prompted by a desire to interfere with pro-
tected concerted activities . Having considered the animus and interference , I find that
the discharges and the replacement steps were in fact prompted by the need to con-
tinue operations, and that the Company did not discriminatorily discharge these em-
.ployees or unlawfully refuse to reinstate them.
Roe's undenied remark to Reeves the following April that the latter had perhaps
"learned [his] lesson" is cited by the General Counsel , presumably as an admission
of violation . If we must attempt to construe this patent ambiguity , it is at least
as reasonable to believe that, the Company maintaining that its action had been lawful,
Roe was telling Reeves of the lesson that the latter 's refusal in December warranted
discharge under the circumstances.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company , set forth in section II, above, occurring in connec-
tion with the operations described in section I, above, have a close , intimate , and sub-
stantial relation to trade, traffic, and commerce among the several States , and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain un-
fair labor practices affecting commerce , I shall recommend that it cease and desist
therefrom, and take certain affirmative action in order to effectuate the policies of
the Act.
It has been found that the Company, by threat and impression of surveillance,
interfered with , restrained , and coerced its employees in violation of Section 8 (a) (1)
of the Act. I shall therefore recommend that the Company cease and desist there-
from and from any like or related conduct.
For the reasons cited in the subsection entitled "The alleged violation of Section
8(a)(3)," I shall recommend that the complaint be dismissed insofar as it alleges
the discriminatory discharge and failure to reinstate Reeves, Taylor , Miller, and
Dunlap.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. General Drivers & Helpers Union , Local 749, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
2. By threatening and creating the impression of surveillance in connection with
union activity , thereby interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the Company has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2(6) and (7) of the Act.
4. The Company has not engaged in unfair labor practices within the meaning
of Section 8(a) (3) of the Act.
[Recommended Order omitted from publication.]
Gold Merit Packing Company , Inc. and United Packinghouse,
Food and Allied Workers , AFL-CIO, Local Union No. 774.
Case No. 12-CA-2385. April 23, 7963
DECISION AND ORDER
On November 30, 1962, Trial Examiner Fannie M. Boyls issued
her Intermediate Report in the above-entitled proceeding, finding that
142 NLRB No. 28.