M/G Transport Services, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1973

204 N.L.R.B. 324 (N.L.R.B. 1973)

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M/G Transport Services , Inc. and Lawrence Ray My-
Ian. Case 9-CA-7428
June 20, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On March 30, 1973, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
to the Administrative Law Judge's Decision and a
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, M/G Transport Services,
Inc., Gallipolis, Ohio, its officers, agents, succesors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
GEORGE J. BorT, Administrative Law Judge: Upon a
charge of unfair labor practices filed by the above-named
individual on November 15, 1972, against M/G Transport
Services, Inc. (Respondent or Company), the General
Counsel of the National Labor Relations Board issued a
complaint on January 11, 1973, alleging that Respondent
had violated Section 8(a)(1) of the National Labor Rela-
tions Act, as amended, herein called the Act. Respondent
filed an answer and a hearing was held before me in Cincin-
nati, Ohio, on February 21, 1973. Respondent and General
Counsel have filed briefs which have been considered.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:I
1 General Counsel 's unopposed motion to correct the transcript is hereby
granted
FINDINGS OF FACT
I JURISDICTION OF THE BOARD
Respondent is an Ohio corporation, engaged at its Galli-
polis, Ohio, location in the business of barge cleaning and
repair, and river towing.
During the year prior to the issuance of the complaint,
Respondent received revenues in excess of $50,000 for serv-
ices rendered in the transportation of goods in interstate
commerce.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
Local Union No. 15357, International Union of District
50, Allied and Technical Workers of the United States and
Canada (District 50) is a labor organization as defined in the
Act.
111, THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharge and Refusal to Reinstate
Lawrence Ray Mylan
Mylan was employed as a cook on the M.V. Coalburg,
one of Respondent's towboats. He lives in Portsmouth,
Ohio, but he normally boards the Coalburg for duty at Gal-
lipolis, Ohio, where Respondent has its offices and a dock
repair facility.
It is conceded that District 50 was certified by the Board
on or about July 12, 1972, as the collective-bargaining repre-
sentative of Respondent's employees working at the Galli-
polis repair yard, and that from on or about October 1,
1972, to on or about October 17, 1972, the employees in the
repair yard were engaged in a lawful economic strike au-
thorized, maintained , and established by District 50 against
Respondent. It also appears from a stipulation of the parties
that District 50 represents, in separate units, the licensed
and deck personnel, including cooks, on Respondent's tow-
boats, but a question concerning the representation of all
employees on the boats was pending at all times material
herein.2
On October 6, Captain Johns brought the Coalburg into
Respondent's Gallipolis landing and dismissed the crew.'
As Mylan left the Respondent's premises he observed pick-
ets at the entrance carrying signs with the legend, "District
50 on strike."
Supervisor Blake , who was dispatching employees that
weekend, telephoned Mylan at his home on October 7 and
asked him if he would return to work. When Mylan indi-
cated that he would if the strike were over and the pickets
2 District 50, the Teamsters Union and the Seafarers Union are parties to
the representation proceeding.
J Mylan testified that Captain Johns told the crew when he dismissed them
that District 50 was on strike The ship's log for that day contains an entry
indicating that Johns tied up the Coalburg because the towboat's toilets were
defective Johns did not testify, and although I am inclined to believe Mylan's
testimony on this point, it is unnecessary to resolve the question because it
is a fact that District 50 was on strike and picketing at the time and that
Mylan was aware of it
204 NLRB No. 59
M/G TRANSPORT SERVICES 325
had been removed, Blake suggested that he could avoid the
pickets by boarding the Coalburg at the dock of another
company close' to Respondent's Gallipolis landing. Blake
conceded in his testimony that Myland voiced some uncer-
tainty about this idea, but he also said that Mylan agreed
to board the towboat down river at Catlettsburg, Kentucky.
Mylan denied that the possibility of his meeting the Coal-
burg at Catlettsburg was mentioned in his conversation with
Blake. I again find it unnecessary to resolve this conflict
because it clearly appears that Mylan did not return to the
Coalburg because District 50's strike continued.
Mylan testified credibly that after speaking with Blake, he
drove to Gallipolis and saw District 50's pickets. He testi-
fied, without contradiction, that Captain Johns, one of the
pickets, told him that the Union was picketing at the site
across the river where the Coalburg was tied up.4 Mylan
returned to his home.
Supervisor Redman telephoned Mylan on October 9 and
asked him why he had not reported for work following
Blake's telephone call of the 7th. Mylan explained that there
was a picket line at the City Ice & Fuel landing, contrary
to the advice Blake had given him. Mylan testified, and I
credit his testimony, that Redman then asked him if he were
now ready to return to work, and that he replied that he was
not as long as the strike was in progress. Redman then
stated, "Well, if that is the way you feel, I don't need you
anymore." Mylan assumed from this remark that he had
been discharged.
On October 17, after District 50's strike was over, Mylan
telephoned Redman and told him that he was ready to
work. Redman responded that the Company no longer
needed him because it had hired somebody in his place.
Redman testified that the Coalburg returned upriver from
Ashland, Kentucky, on Sunday, October 8, without a re-
placement for Mylan. He telephoned Mylan the next day
and asked him to board the vessel. When Mylan replied that
he would not return as long as District 50's strike continued,
Redman said he told Mylan that he would have to secure
another cook if Mylan would not work during the strike. On
the same day, he transferred Statts, the cook on the Ram,
one of Respondent's towboats, to the Coalburg, where he
remained until October 16, 1972, when he was replaced by
Sinclair, a cook on another of Respondent's vessels. Statts
then returned to the Ram.
Redman said that when Mylan telephoned him October
17 and informed him that he was willing to work because
the strike was over, he told him that he did not need him
because he had obtained a cook who was assigned to one
of Respondent's other towboats but who was off duty at the
time. As indicated earlier, he testified that he did not tell
Mylan that he was discharged. Redman added that, as of
the time of the hearing in this case, the cooks who were
assigned to the Coalburg in Mylan's absence were both em-
ployees of Respondent as of the beginning of the strike.
It appears from Redman's testimony that Mylan has not
been permanently replaced but that Respondent has merely
shifted its staff of cooks around to cover the Coalburg.5 I
4 This site was the dock of the City Ice & Fuel Company where Blake said
he first suggested to Mylan that he board the Coalburg.
5 Crews on towboats stay aboard for a certain number of days and remain
have also credited Mylan's testimony that when he told
Redman on October 7 that he would not report for duty
while the strike was on, Redman told him that if that was
his intention, then Respondent did not "need (him) any-
more." Mylan considered that this was an announcement
that he was discharged, and I find that it was a declaration
of Respondent's intention not to reemploy him, and hence
a discharge.
B. Analysis and Conclusions
The refusal of an employee to work during the strike of
another union in another bargaining unit is protected activi-
ty under Section 7 of the Act, and Respondent violated
Section 8(a)(1) of the Act by discharging Mylan because of
his refusal to work while District 50 was on strike .6
I find no merit in Respondent's contention that Mylan's
refusal to work during the strike was not protected because
his activity involved a separate bargaining unit, a separate
operation of the Employer; and did not involve the crossing
of a picket line. The law is clear that employees in units
other than the unit on strike are entitled to the same protec-
tion as strikers under Section 7 and 13 of the Act if they
make common cause with striking employees and refuse to
work while the strike continues? Respondent's repair facili-
ty is a separate unit, but it is also part of Respondent's
overall operations and the employees employed in it repair
Respondent's towboats. The Board has held with court ap-
proval that the refusal of an employee to cross a picket line
of another union than his own at another plant than that of
his employer is protected activity under Section 7 of the
Act.8 Such sympathetic strikers "know that by their action
each of them assures himself, in case his turn ever comes,
of the support of the one whom they are all then helping;
and the solidarity so established is `mutual aid' in the most
literal sense, as nobody doubts." 9 Since the employees
working on the towboats clearly have as much interest in
preserving the good will of fellow employees as they do that
of employees of other employers, logic requires that the law
give them at least as much protection when they assist their
fellow employees by not working while they are on stnke.10
Respondent contends, contrary to what I have found to
be the case, that Redman, its agent, did not discharge Mylan
on October 9, 1972, when Mylan told him that he would not
work as long as the strike continued, but that he merely told
him that he would get another cook to replace him. Even
ashore for periods of time Mylan said that he worked 20 days and was off
10
e Kellogg Co v N L R B, 457 F.2d 519 (C A. 6, 1972), N.L R B v. Union
Carbide Corp, 440 F 2d 54, 56-57 (C.A 4, 1971), N L R B v. Alamo Express,
Inc. 430 F.2d 1032, 1036 (C A 5, 1970), Southern Greyhound Lines, Division
ofGreyhound Lines, Inc, 169 NLRB 627, Texas Foundries, Inc, 101 NLRB
1642, 1683.
7 Southern Greyhound Lines, supra, In 6 at 626
s N L R B v Alamo Express, Inc, supra, fn. 6
9 N L R B v. City Yellow Cab Company, 344 F.2d 575, 582, (C.A 6, 1965),
quoting Judge Learned Hand in N L R B v Peter Cailler Kohler Swiss Choc-
olates Co, Inc., 130 F 2d 503, 505-506 (C.A 2, 1942).
10 There actually were pickets at the place where Mylan normally boarded
the Coalburg, but even if there were none at other places where he could have
boarded the boat, it would be immaterial because he had a right to refuse
to work as long as the strike continued The activity that is here protected
is Sec 7 and 13 activity, and picketing and honoring a specific picket line
are only two of the many forms of activity protected by those sections
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assuming, however, that Mylan was not discharged, he, as
an economic striker, was entitled to reinstatement upon
request at the conclusion of the strike." in Fleetwood Trailer
Co., the Supreme Court held:12
If, after the conclusion of the strike, the employer refus-
es to reinstate striking employees, the effect is to dis-
courage employees from exercising their rights to
organize and to strike guaranteed by Section 7 and 13
of the Act. . . . Under Section 8(a)(1) and (3), it is an
unfair labor practice to interfere with the exercise of
these rights. Accordingly, unless the employer who re-
fuses to reinstate strikers can show that his action was
due to `legitmate and substantial business justifica-
tions,' he is guilty of an unfair labor practice. N. L. R. B.
v. Great Dane Trailers, 388 U. S. 26, 34 (1967). The
burden of proving justification is on the employer. Ibid.
The Supreme Court has recognized two situations as consti-
tuting legitimate and substantial business justification for
refusing to reinstate economic strikers. One is where the
strikers' jobs are filled by persons hired as permanent re-
placements, and the second is where the strikers' jobs have
been eliminated for substantial and bona fide reasons other
than considerations relating to labor relations, such as the
need to adapt to changes in business conditions or improve
efficiency."
When Mylan applied for reinstatement, no one had been
hired to replace him; all that had occurred was that Respon-
dent had assigned Statts, a cook who was off duty from
another of Respondent's towboats, to take Mylan's place,
and sometime later, Statts returned to his previous assign-
ment on the Ram, and Sinclair, a cook from still another of
Respondent's boats, replaced him. Moving of employees
around another to fill vacancies caused by strikers is not a
substantial business justification for refusing reinstatement
to a striker. I find and conclude that Respondent has not
carried its burden of proving economic justification, and
that it violated Section 8(a)(1) of the Act by refusing to
reinstate Mylan on October 17, 1972, when he made an
unconditional application for reinstatement. 14
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, it shall be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily dis-
charged and discriminatorily refused reinstatement to Law-
rence Mylan, it shall be recommended that Respondent be
ordered to offer him full and immediate reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges and make him whole for any loss
of earnings he may have suffered as a result of the discrimi-
nation against him, by payment to him of a sum of money
equal to that which he would normally have earned as wages
N L R B v Fleetwood Trailer Co , 389 U S 375 (1967)
12 389 U . S at 378
13 389 U Sat 379
14 389 U S 378-379, Kellogg Co v N L R B, supra, fn 6 at 527
from October 17, 1972, 15 when he requested reinstatement,
to the date of Respondent 's offer of reinstatement , less net
earnings during such period , with backpay and interest
thereon to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 , and Isis Plumbing &
Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. District 50 is a labor organization within the meaning
of the Act.
3. By discharging and thereafter refusing to' reinstate
Lawrence Mylan because he engaged in the protected activ-
ity of assisting a labor organization, Respondent interfered
with, restrained, and coerced him in the exercise of his rights
guaranteed in Section 7 of the Act and has engaged and is
engaging in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and upon the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 16
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or refusing to reinstate any employee
because he has assisted a labor organization by refusing to
work during a lawful strike.
(b In any other like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Lawrence Mylan immediate and full reinstate-
ment to his former position or, if it does not exist, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of pay he may have suffered as the result of the
discrimination, in the manner set forth above in the Section
entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents all payroll and other records necessary to compute
the backpay and reinstatement rights as set forth in "The
Remedy" section of this Decision.
(c) Post on each of its towboats copies of the attached
15 A discharged striker becomes entitled to reinstatement and backpay, not
from the time of discharge , but only after he chooses to abandon the strike
and voluntarily requests reinstatement Sea-Way Distributing, Inc., 143
NLRB 460, Texas Foundries, Inc, 101 NLRB 1642, 1691
16 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions , and recommended Order herein shall, as provided in Section
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
M/G TRANSPORT SERVICES 327
notice marked "Appendix." 17 Copies of said notice, on
forms provided by the Regional Director for Region 9, shall,
after being duly signed by Respondent, be posted immedi-
ately upon receipt thereof , in conspicuous places, including
all places where notices to employees are customarily post-
ed, and be maintained by it for 60 consecutive days. Rea-
sonable steps shall be taken to insure that said notices are
not altered , defaced , or covered by any other material.
(e) Notify the Regional Director for Region 9 , in writing
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
17 In the event the Board ' s Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
WE WILL NOT discharge or refuse to reinstate any em-
ployee for assisting a union by refusing to work during
a lawful strike engaged in by our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right, guaranteed under the National Labor Rela-
tions Act, to assist a labor organization.
WE WILL offer Lawrence Mylan reinstatement to his
former job without prejudice to any of his rights and
privileges, and WE WILL make him whole for any wages
he lost.
Dated By
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
MSG TRANSPORT SERVICES, INC
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Office Building, Rm. 2407,
550 Main Street, Cincinnati, Ohio 45202, Telephone 513-
684-3686.