Noel Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 905 (N.L.R.B. 1994)

905
315 NLRB No. 131
NOEL CORP.
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 The judge rejected the Respondent’s contention that the strike
was unprotected because the Union allegedly failed to comply with
the notice requirements of Sec. 8(d). No exceptions were filed to the
judge’s decision in that regard.
4 Unless otherwise stated, all dates refer to 1990.
Noel Foods Division of the Noel Corporation and
General Teamsters Local 524, International
Brotherhood of Teamsters, AFL–CIO.1 Cases
19–CA–21094 and 19–CA–21330
December 16, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On March 18, 1993, Administrative Law Judge
David G. Heilbrun issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The issues before us concern certain allegedly un-
lawful actions taken by the Respondent in response to
an economic strike called by the Union and engaged
in by approximately 50 employees. The complaint al-
leges that the Respondent effectively discharged nu-
merous employees, in violation of Section 8(a)(3) and
(1) of the Act, when several of its supervisors in-
formed them that if they chose to strike they would be
permanently replaced, in effect as soon as they began
to withhold their services, even though the Respondent
had not obtained permanent replacements for all the
potential strikers at the time the statements were made.
The complaint also alleges that the Respondent con-
structively discharged many of the employees, again in
violation of Section 8(a)(3) and (1), by informing them
that the Respondent would become, or had become,
‘‘nonunion’’ when the strike commenced. The com-
plaint further alleges that, because of the numerous un-
lawful discharges, the Respondent did not bargain to a
lawful impasse and consequently violated Section
8(a)(5) and (1) by unilaterally implementing the terms
of its final bargaining proposal some 2 weeks after the
strike had begun. Finally, the complaint alleges that
the Respondent violated Section 8(a)(3) and (1) by re-
fusing to pay strikers accrued vacation pay unless they
resigned, while continuing to pay vacation benefits to
nonstrikers.
The judge found that the Respondent did not violate
the Act in any respect.3 The General Counsel has ex-
cepted, and contends that each of the alleged violations
should be found. For the reasons discussed below, we
find merit in some of the exceptions. Thus, we find
that the Respondent unlawfully terminated numerous
employees who engaged in the strike after being
threatened with permanent replacement, constructively
discharged an employee who quit his employment be-
cause he was informed that the Respondent was oper-
ating nonunion, and unilaterally changed terms and
conditions of employment of unit employees without
first bargaining to a valid impasse.
Facts
The Respondent is a wholesale grocery distributor
with operations centered in Union Gap, Washington, a
suburb of Yakima. It serves businesses in other cities
in Washington and other States. The Union represents
a unit of the Respondent’s warehouse employees (with
certain exceptions), truckdrivers, and service and sales
personnel. The parties’ collective-bargaining relation-
ship extends back for about 10 years. The most recent
collective-bargaining agreement was effective from
August 29, 1987, until August 29, 1990.
The parties negotiated during the late summer of
1990 for a successor agreement.4 By late August, the
parties still had not reached agreement on three issues:
the amount of the Respondent’s contributions to the
Union’s pension plan, the type of health benefit plan
for unit employees, and the exclusion of salesmen
from the bargaining unit. On Wednesday, August 29,
the parties agreed to substitute a company health care
plan for the existing union health benefit plan, and ap-
parently also agreed that salesmen would be excluded
from the unit. They were still some distance apart on
the pension contribution issue, however; the Union
proposed a 15-cent-per-hour increase for each of the 3
years of a new contract, and the Respondent countered
with an offer of a one-time increase of 7 cents an
hour. The Union put the Respondent’s offer to a vote
of the membership late that afternoon. The employees
voted to reject the offer and to strike at midnight. The
strike that began that night is conceded to be an eco-
nomic strike; there is no allegation or contention that
it was either caused or prolonged by the Respondent’s
alleged unfair labor practices.
The Respondent was notified of the outcome of the
strike vote about 8 p.m., and immediately took steps
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Not all employees testified that they were told both that they
would be permanently replaced if they struck and that the Respond-
ent would become nonunion at midnight. Some testified only as to
the former, and others only to the latter.
Several employee witnesses testified that they were informed that,
in effect, they would be terminated, lose their jobs, or never work
for the Respondent again if they honored the strike. The judge dis-
credited that testimony.
6 Pursuant to long-established Board practice, the mediator did not
testify at the hearing, and the judge did not resolve the testimonial
discrepancy. There is no allegation, however, that the Respondent
falsely claimed to have permanently replaced any strikers or that it
unlawfully refused to reinstate any striker who had not been perma-
nently replaced and who had unconditionally requested reinstate-
ment. Thus, whether the Respondent actually said that it had perma-
nently replaced all or only some of the strikers is immaterial to the
issues presented in this case.
designed to enable it to continue to operate as nor-
mally as possible during the anticipated strike. Shortly
before 9 p.m., Human Resources Manager Dave
Cummins telephoned Employment Plus, a personnel
agency that already had been seeking applicants on the
Respondent’s behalf for possible use as striker replace-
ments. The agency’s co-owners, Chris Wellner and
Erin Hale, were told by Cummins and Mike Noel, the
Respondent’s general manager, to get as many poten-
tial striker replacements as possible to the Respond-
ent’s facility by midnight. Wellner and Hale began
contacting individuals who had responded to the agen-
cy’s help-wanted advertisement for the Respondent
during the past 2 days. They ultimately obtained 15 re-
placements that night; those individuals reported for
work around midnight.
Meanwhile, at about 9 p.m., Mike Noel called a
meeting of the Respondent’s managers. Noel informed
the managers that the Respondent intended to obtain
permanent replacements for the strikers, and discussed
the legal and practical consequences of doing so. He
also told the managers to telephone the unit employees
and find out who intended to strike and who did not.
Pursuant to that instruction, Operations Manager Rod
Robbins, Traffic Manager Ed Shirley, Day Warehouse
Supervisor Don Miller, and Chemical Beverage Man-
ager Jim Foster called numerous unit employees during
the night of August 29–30. Robbins, Shirley, Miller,
and Foster made a number of statements during those
telephone calls that are alleged to be unlawful. The
gist of those statements was that anyone who went on
strike would be permanently replaced; some employees
testified that they were told that they would be perma-
nently replaced if they did not report for work on their
next scheduled shift. Employees were also informed
that, as of midnight, the Respondent would be operat-
ing nonunion.5
At about 10:15 p.m. on August 29, Robbins called
a meeting attended by employees on the night shift at
the warehouse, as well as by several swing shift work-
ers who had not yet gone off duty. At that meeting,
Robbins made further allegedly unlawful statements,
again to the effect that strikers would be permanently
replaced and that the Respondent would become non-
union at midnight.
After the strike and picketing commenced at mid-
night, and during the ensuing days and weeks, the Re-
spondent’s supervisors made additional remarks to em-
ployees that are alleged to be unlawful. Those state-
ments again were that strikers would be permanently
replaced and that the Respondent was now operating
nonunion.
On September 10, the parties held their first bargain-
ing session following the commencement of the strike.
A Federal mediator was present, and the parties made
their proposals through him, rather than face to face.
The union negotiators told the mediator that their chief
concerns were for increased contributions to the
Union’s pension plan and for the reinstatement of all
strikers. The Respondent’s negotiators testified that
they countered by proposing to replace the union pen-
sion plan with the Respondent’s own pension plan and
to delete the union-security provision. They also testi-
fied that they told the mediator that some of the strik-
ers had been permanently replaced and that the process
of replacing others was continuing. The Union’s wit-
nesses testified that the mediator informed them that
the Respondent was proposing to end union security
and to substitute the Noel pension plan for the union
pension plan, and claimed either to have permanently
replaced all strikers or to have placed them on a pre-
ferred hiring list.6 In any event, the union negotiators
were unwilling to consider ending the strike unless all
strikers were reinstated, and left the bargaining session.
By letter dated September 11, the Respondent reiter-
ated its contract proposal of the previous day (with
minor modifications), and stated that if the Union had
not responded by September 14, the Respondent would
deem its offer rejected. The Union did not respond. By
letter dated September 18, the Respondent declared im-
passe and implemented the terms of its final offer, ret-
roactive to September 1, except for the provisions con-
cerning union security and arbitration, which the Re-
spondent did not claim could be implemented without
the Union’s agreement.
During the strike, several strikers asked representa-
tives of the Respondent if they would be receiving va-
cation pay at the time of their scheduled vacations.
They were informed that they could not receive vaca-
tion pay unless they resigned. A few strikers did resign
and received their vacation pay; others did not resign
and did not receive the payments sought. As for the
nonstrikers, Mike Noel announced at the beginning of
the strike that all vacations were canceled until further
notice; later, however, nonstrikers were allowed to take
vacations on a case-by-case basis.
907NOEL CORP.
7 The General Counsel also alleges that the Respondent told sev-
eral employees, in various ways, that if they struck, they would be
out of a job or would never work for the Respondent again. As we
have noted, however, the judge discredited the testimony supporting
those allegations.
8 Robbins testified that he did not remember specifically what he
had said to all the employees on the telephone, but stated that the
conversations were all ‘‘very similar.’’ We construe that testimony
as an admission that Robbins told all the employees with whom he
spoke that strikers would be permanently replaced and that perma-
nent replacements had been hired.
9 297 NLRB 137 (1989), enfd. 945 F.2d 1428 (8th Cir. 1991).
10 Mars Sales & Equipment Co., 242 NLRB 1097 (1979), enfd. in
pertinent part 626 F.2d 567 (7th Cir. 1980), and W. C. McQuaide,
Inc., 237 NLRB 177 (1978), enfd. on other grounds 617 F.2d 349
(3d Cir. 1980).
11 For this reason, our decision applies only to statements made to
employees who were required to make a decision about striking at
the midnight deadline or by the beginning of the morning shift some
6 hours later.
Analysis
1. The ‘‘permanent replacement’’ statements
The General Counsel first alleges that the Respond-
ent effectively discharged numerous employees by tell-
ing them that strikers would be permanently replaced,
at times when insufficient replacements had been ob-
tained to replace all the potential strikers.7 The judge
found that the Respondent’s supervisors made a variety
of such statements, but that the statements were not
unlawful. The General Counsel excepts. To the extent
discussed below, we find merit to the General Coun-
sel’s exceptions.
Operations Manager Robbins testified that he an-
nounced at the night-shift meeting on August 29, less
than 2 hours before the strike was to occur, and in sep-
arate conversations with other employees on the same
night, that striking employees would be permanently
replaced and that the Respondent had hired permanent
replacements.8 The judge found that at the time these
statements were made, ‘‘the task of marshalling a
measurably complete replacement program was not yet
even under way.’’ Contrary to the judge and to our
dissenting colleague, we find that Robbins’ remarks
constitute an unlawful threat of termination under the
rationale of American Linen Supply Co.9 Accordingly,
we find that those night crew employees who did not
yield to the unlawful threat and engaged in the strike
were effectively terminated in violation of Section
8(a)(3) at midnight on August 29, and that day-shift
employees who were threatened by Robbins that
evening and who joined the strike on the morning of
August 30 were similarly unlawfully discharged.
The Board has held that an employer who informed
lawful economic strikers that they had been perma-
nently replaced, when in fact the employer had not ob-
tained such replacements, terminated the strikers in
violation of Section 8(a)(3).10 The Board reasoned that
a false statement that permanent replacements had
been obtained effectively resulted in withholding from
strikers the right to return to their unoccupied jobs
solely because they went on strike. In American Linen,
the Board extended this rationale to false statements
about permanent replacements made to employees
shortly before the commencement of a strike. There,
the employer distributed a memorandum to employees
about 10 minutes before 7 a.m., the starting time for
work, informing them that if they did not return to
work at 7 a.m., ‘‘you are permanently replaced.’’ The
Board found that the employer made a false statement
when it indicated that the striking employees would be
permanently replaced by 7 a.m., because it was un-
likely under the circumstances that the employer actu-
ally had obtained replacements for the strikers. The
Board concluded that such a false statement constituted
an unlawful termination threat, and that the employer
unlawfully terminated the employees who did not
abandon the strike by the deadline.
The Respondent’s actions in this case are very much
like those of the employer in American Linen. Accord-
ing to Robbins’ testimony and that of many employees
who attended the night-shift meeting on August 29 or
received a call from him that evening, Robbins
stressed that a strike was called to begin at midnight
and that the company would then become nonunion. In
emotional terms, Robbins told the employees that they
would have to make the choice that was best for them.
He told them that if they chose to strike, they would
be permanently replaced. Robbins also testified that he
told employees at the night-shift meeting and in sepa-
rate phone calls that the Respondent had hired perma-
nent replacements. Robbins’ remarks were made less
than 2 hours before the strike was scheduled to begin.
Robbins’ statement that if the employees struck they
would be permanently replaced, viewed in context, is
virtually identical to the employer’s statement in Amer-
ican Linen. Robbins clearly identified midnight on Au-
gust 29 as a deadline. The emphasis on a rapidly ap-
proaching deadline and the necessity to make a choice
at that deadline indicated to employees that a choice
to strike would result in immediate permanent replace-
ment.11 In this regard, we see no significant difference
between the American Linen employer telling employ-
ees that if they engage in a strike which will occur
within 10 minutes, they ‘‘are’’ permanently replaced,
and Robbins telling them that if they engage in a strike
which will begin in less than 2 hours, they ‘‘will be’’
permanently replaced. The message is the same in both
cases: if employees join the strike when it begins, they
will be permanently replaced at that time.
Our dissenting colleague argues that Robbins did no
more than imply that the Respondent intended to exer-
cise its right to replace strikers permanently when it
could do so. He relies on Chromalloy American
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 286 NLRB 868 (1987), enf. denied on other grounds 873 F.2d
1150 (8th Cir. 1989). Chairman Gould finds it unnecessary to ad-
dress the propriety of Chromalloy American at this time because he
finds that in any event it does not apply to the circumstances of this
case.
13 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert.
denied 397 U.S. 920 (1970).
14 A number of employees testified that supervisors, such as Mil-
ler, Wright, and Shirley, told them on the evening of August 29 that
they would be permanently replaced if they joined the strike sched-
uled to begin at midnight. The supervisors either did not recall mak-
ing such statements, testified that they told employees that the Re-
spondent would be trying to permanently replace strikers, or denied
making threats to permanently replace strikers. The judge did not
make express credibility resolutions concerning the alleged state-
ments by supervisors. He did, however, question the suggestibility
of the employee witnesses, particularly with regard to statements
made by the Respondent’s agents during the last days of August. He
also found that all the supervisors’ word choices concerning perma-
nent replacement amounted to no more than telling employees that
the Respondent would take the necessary steps to continue full oper-
ations. The judge, therefore, implicitly found that the supervisors did
not convey the message that the employees would be permanently
replaced at the time they joined the strike. This finding does not re-
late to Robbins, who, unlike the other supervisors, admitted that he
told employees they would be permanently replaced if they engaged
in the strike and that permanent replacements had been hired.
15 Cf. McCotter Motors Co., 291 NLRB 764, 768 (1988) (super-
visor’s admission discredited where admission was not included in
investigatory affidavit, supervisor admitted giving a false affidavit,
and there was no corroboration of the admission by employees).
16 Other employees attended the meeting, but they either did not
join the strike at all or were not scheduled to work past midnight
and were not due back at work until the next afternoon. Those em-
ployees were not effectively discharged.
Corp.12 to find that Robbins’ remarks were a lawful
expression of the employer’s right to hire permanent
replacements. In that case, the employer sent letters to
employees who were already on strike, urging them to
return to work and informing them that if they did not
return by a certain date, the employer would take steps
necessary to exercise its right to permanently replace
them. The Board found that the employer’s letter
merely notified employees who were already striking
that it intended to exercise its legal right to obtain per-
manent replacements if they did not return to work.
The letter was consistent with the law and did not
threaten that employees would be deprived of their
rights in a manner inconsistent with Laidlaw Corp.13
We are not persuaded by the dissent’s argument that
the statements at issue here are of the same type as
those analyzed in Chromalloy American. There, the
employees were already on strike. The letter mentioned
a specific date for employees to return to work, but
that date was not imminent. Further, the letter ex-
pressly stated that the employer would take necessary
steps to obtain permanently replacements, making it
clear to employees that the process of permanent re-
placement had not yet begun and would not begin until
the date mentioned in the letter. Here, in sharp con-
trast, the employees were not yet on strike. They were
told they had to make a decision in a matter of a few
hours to either continue in their jobs or to strike and
be permanently replaced. There was nothing in Rob-
bins’ remarks which expressly indicated that the proc-
ess of replacement had not yet begun. To the contrary,
Robbins admitted that he also told the employees that
permanent replacements had been hired. This admis-
sion dispels any uncertainty concerning the import of
Robbins’ statements to the employees that they would
be permanently replaced if they engaged in the
strike.14
Our dissenting colleague discounts Robbins’ admis-
sion by ‘‘doubting’’ that Robbins made the statement
he claims to have made. He takes this unusual step of
questioning an admission in the absence of any show-
ing that Robbins gave contrary evidence at an earlier
point in the investigation, left his job holding a grudge
against the Respondent, or engaged in any other activ-
ity which would give cause to question the veracity of
his admission.15
The principal reason given by the dissent for reject-
ing Robbins’ admission is that employees did not cor-
roborate his statement. We are not persuaded by this
reasoning. It is true that no employees testified that
Robbins told them that the Respondent had ‘‘hired re-
placements.’’ On the other hand, the employees did not
contradict Robbins’ admission. They testified that Rob-
bins told them, shortly before midnight on August 29,
that a strike was called for midnight and that if they
chose to strike, they would be permanently replaced. In
our view, it is not significant that the employees made
no reference to the hiring of replacements. In the face
of the deadline that was presented to them, the phrases
‘‘you will be permanently replaced’’ and ‘‘the com-
pany has hired permanent replacements’’ reasonably
could be viewed as conveying the same message of
immediate replacement.
For these reasons, we rely on Robbins’ statement
that he told employees that the Respondent had hired
permanent replacements. That statement, made at a
time when the Respondent had not in fact hired perma-
nent replacements for all the potential strikers, gives
conclusive support for the finding that the Respond-
ent’s actions come within the scope of American Linen
and constitute an unlawful threat of termination.
Of the employees who attended the night crew meet-
ing on August 29, only Tom Glass, Jim Stiltner, Leo
Hull, and Bret Lombard joined the strike at midnight.
For the reasons explained above, we find that those
employees were effectively terminated.16 Richard Wil-
son (through his wife Susan), James Doll (through his
wife Mary), Marty Layman, Greg Bolin, Roger Lay-
man, and Chuck Foster (through his wife Mardi) were
recipients of Robbins’ telephoned threats on the
evening of August 29, but joined the strike rather than
909NOEL CORP.
17 Other employees were threatened by Robbins but either were
not scheduled to work the morning of Aug. 30 or worked that morn-
ing and joined the strike only later. Those individuals were not ef-
fectively discharged.
18 The new conditions were not implemented immediately, how-
ever. As noted previously, they were implemented only after the Re-
spondent declared impasse, and were made retroactive to September
1.
19 See, e.g., Laidlaw Waste Systems, 307 NLRB 1211 (1992).
There is no contention here that the Respondent could lawfully have
withdrawn recognition of the Union.
20 See, e.g., White-Evans Service Co., 285 NLRB 81, 81–82
(1987).
21 Ibid.
22 Watt Electric Co., 273 NLRB 655, 659 (1984).
23 Although, as the judge found, the Respondent actually continued
to bargain with the Union, that fact would not have been apparent
to the employees at the time most of the remarks in question were
made.
24 White-Evans Service Co., supra, 285 NLRB at 82 fn. 6;
Schmidt-Tiago Construction Co., 286 NLRB 342, 368–369 (1987).
25 A few strikers testified that they resigned but indicated that they
did so in order to receive vacation pay. They did not claim that their
resignations were prompted by the Respondent’s ‘‘going nonunion’’
statements. Because they apparently quit for other reasons, we find
that they were not constructively discharged. See S. E. Nichols-
Dover, Inc., 167 NLRB 832, 834 (1967).
26 ‘‘Failure to work during the pendency of a strike cannot be con-
strued as a termination of employment.’’ United States Cold Storage
Corp., 96 NLRB 1108, 1109 (1951).
27 Schmidt-Tiago Construction Co., supra, 286 NLRB at 368 fn.
49. Sec. 2(3) of the Act defines ‘‘employee’’ as including individ-
uals whose work has ceased because of a current labor dispute and
who have not obtained any other regular and substantially equivalent
employment. The Board has interpreted that provision as requiring
evidence of intention to abandon the struck job. See Pacific Tile &
Porcelain Co., 137 NLRB 1358, 1359–1360 (1962); Rose Printing
Co., 304 NLRB 1076 fn. 3 (1991).
work as scheduled on the morning of August 30.
Those employees also were effectively terminated.17
2. The ‘‘going nonunion’’ statements
According to the credited testimony, the Respond-
ent’s supervisors made statements to numerous em-
ployees to the effect that the Respondent was ‘‘going
nonunion’’ or would be a nonunion shop, with newly
imposed Noel benefits, at midnight on August 29.18
Other employees were informed by the supervisors
shortly after the strike began that the Respondent was
now operating nonunion. Although the judge found
that those statements were made, he rejected the Gen-
eral Counsel’s contention that they constituted con-
structive discharges of the employees to whom they
were addressed. He reasoned that the remarks were
made in a context free of union animus, and that the
Respondent in fact continued to recognize and bargain
with the Union. He concluded that ‘‘the context does
not therefore support an unlawful sort of rebuke to
statutory rights, but must instead be thought of only as
reasonably and objectively meaning that a collective-
bargaining relationship, which by its terms was to ex-
pire, did expire that night.’’ The General Counsel
excepts.
With one exception, which we discuss below, we
agree with the judge that the Respondent did not con-
structively discharge employees when its supervisors
told them the company would operate nonunion as of
midnight on August 29. We do not adopt the judge’s
reasoning, however. An employer may not unilaterally
abrogate its relationship with an incumbent union un-
less the union has lost the support of a majority of the
employees, or unless the employer has a good-faith
doubt, based on objective evidence, that the union has
lost its majority status.19 In the absence of either con-
dition, the employer may not lawfully inform the em-
ployees that it will no longer recognize the union, be-
cause if it does, it effectively forces them to choose
between continued employment and the continued ex-
ercise of their statutory right to representation.20 Faced
with such a Hobson’s choice, an employee who quits
rather than accept the loss of his bargaining representa-
tive is constructively discharged in violation of Section
8(a)(3) and (1).21 That the Respondent may not have
acted out of animus against the Union, as the judge
found, is immaterial.22 The judge’s finding that there
was no ‘‘unlawful sort of rebuke to statutory rights’’
because the Respondent’s supervisors meant only that
a collective-bargaining relationship was to expire is al-
together inexplicable. Contrary to the judge, the par-
ties’ collective-bargaining relationship did not end on
August 29; only their contract did. We do not find it
reasonable to suppose that the employees, on being in-
formed that the Respondent was about to start operat-
ing ‘‘nonunion,’’ would infer that the supervisors were
merely telling them something they already knew, i.e.,
that the contract was about to expire. We think the
only reasonable construction to place on the super-
visors’ statements was that, as of midnight on August
29, the employees would no longer be represented by
the Union.23
Despite our disagreements with the judge’s analysis,
however, we adopt (with one exception) his finding
that the employees were not constructively discharged
when the Respondent’s supervisors told them the com-
pany was going nonunion. Although it is unlawful for
an employer to force his employees to abandon either
their bargaining representative or their jobs, an em-
ployee who is presented with that choice nevertheless
is not constructively discharged unless he does, in fact,
quit.24 With few exceptions, the Respondent’s employ-
ees did not quit.25 Many of them participated in the
strike, but striking is not the same as quitting.26 Some
of the strikers testified that they eventually obtained
employment elsewhere, but going to work for another
employer does not, ipso facto, establish that they quit
their jobs with the Respondent.27
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Shirley testified that he wanted Cruz back and that he told Cruz
in early December that a job was available and asked if Cruz was
interested, but that Cruz said he was not. Although Shirley’s account
lacks the outright job offer reflected in Cruz’ version, we find that,
under either man’s account, the job was Cruz’ for the asking.
Shirley denied having told Cruz that the job was nonunion. The
judge, however, discredited several of the Respondent’s witnesses
(though not, specifically, Shirley) who denied saying that the com-
pany would be operating nonunion. We infer that the judge intended
to discredit all such testimony, including that of Shirley.
29 The complaint does not specifically allege that Cruz was con-
structively discharged as a result of Shirley’s statement. The com-
plaint does allege that Cruz was effectively or constructively dis-
charged as a result of earlier statements by Robbins, and it also al-
leges that numerous employees were constructively discharged as a
result of the Respondent’s various ‘‘going nonunion’’ statements.
Shirley’s constructive discharge of Cruz thus is closely related to
other allegations of the complaint, and was fully litigated at the hear-
ing. Consequently, our finding that Cruz’ discharge violated the Act
does not deprive the Respondent of due process.
30 At least, he visited the picket line on the night of August 29
and did not report for work on August 30.
31 The Respondent did not purport to implement the terms of its
offer regarding arbitration or union security. (The Respondent pro-
posed replacing the expired union shop clause with a maintenance
of membership provision.) As the Respondent stated in its September
18 letter, however, those are matters of contract; see, e.g., Indiana
& Michigan Electric Co., 284 NLRB 53 (1987); Chemical Workers
Local 112 (American Cyanamid), 237 NLRB 864 (1978). Hence,
they could not lawfully be imposed unilaterally by the Respondent,
even after impasse, and the General Counsel does not contend other-
wise.
We find, however, that striking driver Mitch Cruz
did indicate to the Respondent that he had abandoned
any interest in returning to work if the company was
operating nonunion. Cruz testified that in early Decem-
ber, Ed Shirley called him and said that a driver was
quitting and that Shirley wanted Cruz to come back to
work. Cruz asked Shirley whether it would be a union
or nonunion situation, and Shirley replied that ‘‘it’s a
nonunion shop from now on.’’ Cruz then said that they
had nothing more to talk about, because he did not
want the job.28 Thus, Cruz turned down Shirley’s job
offer, apparently for the sole reason that Shirley had
said it would be a nonunion job. We find that, in de-
clining Shirley’s offer of employment under these cir-
cumstances, Cruz did not simply indicate that he in-
tended to remain on strike, but instead stated, in effect,
that he had no intention of returning to work for the
Respondent—in short, that he quit. Because he quit
rather than work under nonunion conditions, Cruz was
constructively discharged in violation of Section
8(a)(3) and (1).29
Strikers Charles Wickenhagen, Jerry Cooper, and
Tom Hamel, in response to statements or inquiries by
the Respondent’s agents, made remarks similar to
Cruz’ regarding their unwillingness to work under non-
union conditions. We find, however, that none of those
employees were constructively discharged.
Wickenhagen testified that his supervisor, Pat
Stump, told him that if he did not return to work he
would be permanently replaced, and that the shop
would be nonunion; Wickenhagen replied that he
would not come back under those circumstances.
Wickenhagen had already joined the strike,30 however,
and Stump did not make him a tangible job offer of
the sort Shirley made to Cruz. We find that
Wickenhagen’s comment, in this setting, can as readily
be construed as an intention to remain on strike as it
can an abandonment of his prestrike job, and we there-
fore find that the General Counsel has not shown, by
a preponderance of the evidence, that Wickenhagen
quit rather than work under nonunion conditions.
Both Cooper and Hamel testified that they indicated
to Supervisor Wright that they would not return to
work under nonunion conditions; however, neither tes-
tified that any representative of the Respondent had
previously informed them that the company was going
to operate nonunion. As the General Counsel does not
contend that any employee was wrongfully treated on
the basis of statements he may have heard from
sources other than the Respondent (even though the
substance of the statements, as in the cases of Cooper
and Hamel, may have originated with the Respondent),
we do not find that either employee quit because of
any unlawful statement made by the Respondent.
In summary, we find that only Cruz was unlawfully
constructively discharged when informed that the Re-
spondent was operating nonunion, because we find that
he, alone among the employees, quit because the Re-
spondent forced him to make the choice between
working and retaining his union representation. Al-
though others were similarly informed, the record does
not support a finding that they quit in response; hence
they were not constructively discharged.
3. The unilateral implementations
As we have noted, the Respondent declared impasse
and implemented most of the terms of its final offer
to the Union on September 18.31 The General Counsel
argues that a lawful impasse could not be reached be-
cause of the 8(a)(3) violations allegedly committed by
the Respondent before it declared impasse, and there-
fore that the implementation of the Respondent’s offer
violated Section 8(a)(5) and (1). Having found no
8(a)(3) violations, the judge found that the Respondent
had lawfully declared impasse, and dismissed the
8(a)(5) allegation. In his exceptions, the General Coun-
sel argues only that the 8(a)(3) violations alleged pre-
clude the finding of a lawful impasse. In this regard,
the General Counsel stresses that the Union broke off
negotiations in September over the Respondent’s re-
fusal to agree to reinstate all the strikers on the ground
that some or all had been permanently replaced, de-
spite the General Counsel’s contention that most if not
all of the strikers had been discriminatorily discharged
911NOEL CORP.
32 On brief, the General Counsel seems to suggest that the strikers
were unfair labor practice strikers who, like the employees who had
been unlawfully discharged, may not be denied reinstatement on re-
quest. At the hearing, however, counsel for the General Counsel
made clear that the complaint did not allege an unfair labor practice
strike (indeed, the portion of the charge alleging an unfair labor
practice strike was dismissed; see R. Exh. 1) and that the nature of
the strike would not be an issue in the case.
33 See, e.g., Columbian Chemicals Co., 307 NLRB 592, 592 fn. 1,
596 (1992), enfd. mem. 993 F.2d 1536 (4th Cir. 1993); J. W. Rex
Co., 308 NLRB 473, 473, 496 (1992), enfd. mem. 998 F.2d 1003
(3d Cir. 1993).
34 The judge erroneously identified Bonlender, rather than Reed, as
the returning striker in question. We correct the inadvertent error.
35 285 NLRB at 245–246.
36 Nuclear Fuel Services, 290 NLRB 309 (1988).
and thus could not have been lawfully denied reinstate-
ment.32
We find merit in the General Counsel’s exceptions.
Although an employer who has bargained in good faith
to impasse normally may implement the terms of its
final offer, it is not privileged to do so if the impasse
is reached in the context of serious unremedied unfair
labor practices that affect the negotiations.33 Here, the
negotiations foundered in part because the Respondent
refused the Union’s demand that all strikers be rein-
stated as a group. That refusal was based on the Re-
spondent’s representation that some or all of the strik-
ers had been permanently replaced. As we have found,
however, numerous strikers had been unlawfully dis-
charged and could not lawfully be permanently re-
placed. The breakdown in negotiations thus was the
proximate result of the Respondent’s serious
unremedied unfair labor practices. Accordingly, we
find that the Respondent was not entitled to declare
impasse and that it violated Section 8(a)(5) and (1)
when it unilaterally implemented portions of its final
contract proposal.
4. The requirement that strikers resign in order to
receive accrued vacation pay
It is undisputed that a number of strikers requested
that they be paid for their accrued vacation time during
the strike, and that the Respondent informed them that
they would have to resign in order to receive the re-
quested payments. The complaint alleges that by refus-
ing to pay the strikers their accrued vacation pay,
while paying for the vacations of nonstrikers, the Re-
spondent discriminated against the strikers in violation
of Section 8(a)(3) and (1). The judge rejected this con-
tention. He found that the Respondent’s actions were
dictated solely by the needs of the operation; that ‘‘the
status of being a paid vacationer and, simultaneously,
an active economic striker, cannot coexist’’; and that
there is no evidence that strikers who returned to work
were denied their vacation rights.34 The General Coun-
sel excepts. Again, we agree with the judge’s finding
but not with his reasoning.
The judge’s finding that the Respondent’s actions
were dictated solely by the needs of the operation is
not borne out by the record. Although the Respondent
canceled all vacations at the outset of the strike, it
began to allow at least some of the nonstrikers to take
their accrued vacations once the strikers’ functions had
been covered. Just how the needs of the operation
would be served by denying vacation pay to strikers,
who were performing no services for the Respondent,
while allowing some nonstrikers to take paid vacation,
is not explained by the judge. The judge’s assertion
that one cannot be a paid vacationer and an economic
striker at the same time is wrong as a matter of law.
In the leading case on this subject, NLRB v. Great
Dane Trailers, Inc., 388 U.S. 26 (1967), the Supreme
Court enforced the Board’s finding that the employer
had violated Section 8(a)(3) by denying vacation bene-
fits to strikers while providing them to nonstrikers.
That the Respondent did not punish returning strikers
by denying their claims for vacation benefits is some
indication of a lack of animus on the Respondent’s
part, but, as we shall see, that fact is not dispositive
of this matter.
The appropriate analysis of this issue is set forth in
Texaco, Inc., 285 NLRB 241 (1987). In Texaco, the
Board announced that the question of whether an em-
ployer violates Section 8(a)(3) or (1) by withholding
benefit payments from disabled employees on com-
mencement of a strike will be resolved by applying the
test for unlawful conduct set forth in Great Dane.
Under that test, the General Counsel bears the prima
facie burden of proving some adverse effect of the
benefit denial on employee rights. That burden can be
borne by showing that the benefit was accrued—i.e.,
that it was due and payable on the date it was de-
nied—and that it was withheld on the apparent basis
of a strike. If the General Counsel makes the required
showing, the burden then shifts to the employer to
prove that it had a legitimate and substantial business
justification for withholding the benefit. The employer
may make that showing by proving that the employ-
ees’ collective-bargaining representative explicitly
waived their right to be free from such discrimination
or coercion, or by demonstrating reliance on a non-
discriminatory contract interpretation that is reasonable
and arguably correct. Even if the employer proves
business justification, the Board still may find that it
acted unlawfully if the conduct is found to be ‘‘inher-
ently destructive’’ of important employee rights or mo-
tivated by antiunion intent.35 Although Texaco con-
cerned the denial of disability, health insurance, and
pension benefits, the analysis is equally applicable to
the withholding of vacation benefits from strikers.36
To determine whether the General Counsel has car-
ried his prima facie burden of establishing that the
strikers were denied vacation benefits that were ac-
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 The record establishes that many employees had accrued vaca-
tion time under the terms of the collective-bargaining agreement.
38 In fact, the General Counsel wholly ignores this testimony. So
did the judge.
39 See Nuclear Fuel Services, 290 NLRB 309 (1988), in which the
Board, on almost identical facts, found that the General Counsel had
not made out a prima facie case that vacation pay in lieu of vacation
was an accrued benefit. Cf. Seeburg Corp., 192 NLRB 290 (1971)
(unlawful to deny vacation pay to strikers where contract provided
for money to be paid in lieu of actual vacation).
40 Nuclear Fuel Services, 290 NLRB at 310.
41 See Detroit Edison Co., 206 NLRB 898 (1973).
42 388 U.S. at 28, fn. 3.
43 Id. at 34.
crued—that is, due and payable—we must first specify
exactly what benefits are alleged to have been with-
held. The complaint alleges that the Respondent re-
fused to pay strikers accrued vacation pay on their re-
quest. It does not allege a refusal to allow strikers to
take accrued paid vacations. The strikers who testified
that they had asked about receiving vacation benefits
all stated that they had asked for vacation pay, not to
take paid vacations.37
We must, therefore, determine whether the General
Counsel has proved that the right to receive vacation
pay (in lieu of taking paid vacation) was an accrued
right. To make that determination, we turn first to the
language of the collective-bargaining agreement. Arti-
cle 6 of the agreement (which was unchanged in the
Respondent’s final offer) provides that employees shall
accrue vacation benefits according to their tenure of
service. Paragraph 6.2 states that ‘‘Pro-rata vacation
shall be paid to all employees with one (1) year or
more of service who are laid off, quit, or are dis-
charged . . . on the basis of one-twelfth (1/12th) of
vacation pay earned per month.’’ There is no indica-
tion in Article 6 that employees may receive vacation
pay in lieu of vacation under any circumstances other
than those listed in paragraph 6.2.
We find that the contract does not provide for em-
ployees’ receiving vacation pay in lieu of vacation ex-
cept in the above-enumerated circumstances, but in-
stead contemplates their taking time off from work
with pay. Both Mike Noel and Human Resource Man-
ager Dave Cummins testified without contradiction that
it is the Respondent’s established policy that employ-
ees are paid for vacation when they take vacation, and
that employees could not get vacation pay without tak-
ing vacation unless they resigned or were terminated.
The General Counsel does not dispute that testimony,38
and the evidence does not establish that the Respond-
ent ever previously deviated from its stated policy. On
this record, we find that the benefits the strikers
sought—vacation pay in lieu of taking vacation—were
not contained in the contract and had not been con-
ferred in the past. We therefore find that the General
Counsel has failed to carry his prima facie burden of
establishing that the benefits the Respondent denied
were accrued.39
Moreover, even assuming for the sake of argument
that the General Counsel had established a prima facie
case, the Respondent established a legitimate and sub-
stantial business justification for refusing to pay vaca-
tion pay to strikers who did not resign. The Respond-
ent showed that it relied on a nondiscriminatory con-
tract interpretation that is reasonable and arguably cor-
rect. Article 6 of the collective-bargaining agreement
provides for vacation with pay, but does not provide
for vacation pay in lieu of taking time off except for
employees who have resigned or been laid off or dis-
charged. In this regard, ‘‘vacation’’ is commonly un-
derstood to be a respite from work. Because the Re-
spondent’s interpretation of the contract is reasonable
on its face and consistent with the common under-
standing of the meaning of ‘‘vacation,’’ and because
there is no contrary contract language and no evidence
of contrary past practice or interpretation, we find that
the Respondent has established a sufficient rebuttal,
even assuming the General Counsel had made out a
prima facie case.40
Finally, we find that the Respondent’s refusal to pay
vacation pay to strikers unless they resigned was not
‘‘inherently destructive’’ of employee rights, nor was
it motivated by antiunion animus. The Respondent’s
refusal was not discriminatory; as we have noted, there
is no evidence that the Respondent ever deviated from
its policy, reflected in the language of the contract, of
not paying vacation pay to employees in lieu of their
taking vacation, and there is no evidence that nonstrik-
ers were treated more favorably than strikers in this re-
spect. As the judge found, returning strikers apparently
were not denied their vacation rights, and one witness
(Berghoff) testified that he was told that to receive va-
cation pay he would have to either resign or wait until
the strike was over. Thus, it is clear that the Respond-
ent was attempting not to divest the strikers of their
vacation benefits, but to postpone their enjoyment of
those benefits until they returned to work (and could
take vacations from work)41 or, pursuant to the con-
tract, resigned.
The General Counsel relies on Great Dane Trailers,
supra, and on Texaco, Inc., 291 NLRB 508 (1988), and
Glover Bottled Gas Corp., 292 NLRB 873 (1989), in
support of this allegation of the complaint. We find
those cases distinguishable from this one. In Great
Dane, unlike this case, the parties’ contract explicitly
provided that employees could continue to work and
receive vacation pay in lieu of taking vacation; thus,
vacation pay arguably was an accrued benefit for strik-
ers.42 Moreover, the employer in Great Dane, unlike
the Respondent, proffered no legitimate business jus-
tification for its actions.43 In Glover Bottled Gas, the
employer denied vacation (and bereavement) benefits
913NOEL CORP.
44 292 NLRB at 873, 881–882.
45 291 NLRB at 511–512.
46 The General Counsel reports that the Respondent closed its
doors on January 29, 1993, ‘‘apparently forever,’’ and that its goods
and equipment are being liquidated. Accordingly, the General Coun-
sel states that a reinstatement order is improper. We find that this
issue is better suited to resolution in the compliance process. Ac-
cordingly, we shall order the Respondent to reinstate the
discriminatees, unless it can show at compliance, on the basis of evi-
dence that was not available at the time of the unfair labor practices
hearing, that that action would be unduly burdensome. See We Can,
Inc., 315 NLRB No. 24, slip op. at 6–8 (Sept. 30, 1994).
47 That the Respondent may have made payments on the employ-
ees’ behalf to its own health and pension programs does not absolve
it of its responsibility to make the union funds whole for contribu-
Continued
to strikers after they had returned to work, and did so
on the basis of a contract interpretation that was nei-
ther reasonable nor arguably correct.44 The employer
in Texaco was found to have acted lawfully when it
canceled all vacations (for both strikers and nonstrik-
ers) at the outset of a strike, because it relied on a rea-
sonable and arguably correct interpretation of the col-
lective-bargaining agreement and also on established
practice which the Board found to have evolved into
a term and condition of employment.45
For the foregoing reasons, we find that the Respond-
ent’s refusal to pay vacation pay to strikers in lieu of
vacation unless they resigned was not a denial of an
accrued benefit, and that even if it was, the Respond-
ent has shown that it had a legitimate and substantial
business justification for its action. We further find
that the Respondent was not motivated by antiunion
intent and that, because it did not treat strikers dif-
ferently from nonstrikers in this respect, its actions
were not ‘‘inherently destructive’’ of important em-
ployee rights. Accordingly, we affirm the judge’s dis-
missal of this allegation of the complaint.
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act, and the Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
2. At all times material to these proceedings, the
Union has been the exclusive collective-bargaining
representative of employees of the Respondent in the
bargaining unit described in article 1 and appendix C
of the parties’ collective-bargaining agreement that ex-
pired on August 29, 1990.
3. By informing employees during the evening of
August 29 that they would be permanently replaced if
they went on strike at midnight or at the beginning of
the day shift on August 30, and that permanent re-
placements had been hired, when permanent replace-
ments had not been obtained for all the potential strik-
ers, the Respondent unlawfully threatened the employ-
ees with termination if they joined the strike, and ef-
fectively terminated the employees who heard the
threat but nevertheless joined the strike, in violation of
Section 8(a)(3) and (1) of the Act.
4. By informing Mitch Cruz that it was operating
nonunion, with the result that he quit his employment
with the Respondent, the Respondent constructively
discharged Cruz in violation of Section 8(a)(3) and (1)
of the Act.
5. By unilaterally changing terms and conditions of
employment of employees in the bargaining unit with-
out first bargaining to a valid impasse with the Union,
the Respondent failed to bargain in good faith with the
Union in violation of Section 8(a)(5) and (1) of the
Act.
6. The violations found are unfair labor practices af-
fecting commerce within the meaning of Section 2(6)
and (7) of the Act.
7. The Respondent did not otherwise violate the Act
as alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent violated Sec-
tion 8(a)(3) and (1) by effectively discharging Tom
Glass, Jim Stiltner, Leo Hull, Bret Lombard, Richard
Wilson, James Doll, Marty Layman, Greg Bolin,
Roger Layman, and Chuck Foster because they en-
gaged in a lawful economic strike, and by construc-
tively discharging Mitch Cruz, we shall order the Re-
spondent to offer those employees reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent employment, discharging if
necessary any replacements.46 We shall also order the
Respondent to make those employees whole for any
loss of earnings and other benefits incurred from the
date of their discharges to the date of a proper offer
of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289
(1950).
Having found that the Respondent violated Section
8(a)(5) and (1) by unilaterally changing the terms and
conditions of employment of employees in the unit
without first bargaining with the Union in good faith
to a valid impasse, we shall order the Respondent, at
the Union’s request, to rescind the unilateral changes
and to make the employees whole for any losses of
wages and benefits they may have incurred as a result
of the unilateral changes, as set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971). We shall also order the Respond-
ent to remit all payments it owes to employee pension
and health care funds, with interest, as provided in
Merryweather Optical Co., 240 NLRB 1213 (1979),47
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions it unlawfully withheld from them. See Manhattan Eye, Ear &
Throat Hospital, 300 NLRB 201 (1990), enf. denied 942 F.2d 151
(2d Cir. 1991); Stone Boat Yard, 264 NLRB 981, 983 (1982), enfd.
715 F.2d 441 (9th Cir. 1983), cert. denied 466 U.S. 937 (1984).
48 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
and to make the employees whole for any expenses
they may have incurred as a result of the Respondent’s
failure to make such payments, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981).
All make-whole payments to employees shall be
made with interest as provided in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Noel Foods Division of the Noel Foods
Corporation, Union Gap, Washington, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing its employees that they will be perma-
nently replaced if they join a strike scheduled to begin
within a few hours and that permanent replacements
have already been hired, if the Respondent has not
hired permanent replacements for all potential strikers
at the time the statements are made.
(b) Discharging its employees who join a lawful
economic strike in the face of the unlawful statements
described above.
(c) Informing its employees that it is, or will be, op-
erating nonunion, when those employees are rep-
resented by a labor organization as their exclusive col-
lective-bargaining representative.
(d) Constructively discharging its unionized employ-
ees when they quit rather than accept employment
under nonunion conditions.
(e) Unilaterally changing the terms and conditions of
employees represented by General Teamsters Local
524, International Brotherhood of Teamsters, AFL–
CIO (the Union), in the bargaining unit described in
article 1 and appendix C of the parties’ collective-bar-
gaining agreement that expired on August 29, 1990,
without first bargaining with the Union in good faith,
to a valid impasse.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Tom Glass, Jim Stiltner, Leo Hull, Bret
Lombard, Richard Wilson, James Doll, Marty Layman,
Greg Bolin, Roger Layman, Chuck Foster, and Mitch
Cruz immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, discharging if necessary any em-
ployees hired to replace the discriminatees, without
prejudice to their seniority or any other rights and
privileges previously enjoyed, unless it can show at
compliance, on the basis of evidence that was not
available at the time of the unfair labor practices hear-
ing, that that action would be unduly burdensome, and
make them whole, with interest, for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the
remedy section of this decision.
(b) Remove from its files any reference to the un-
lawful discharges, and notify the discriminatees in
writing that this has been done and that the discharge
will not be used against them in any way.
(c) At the Union’s request, rescind the unilateral
changes the Respondent made in the terms and condi-
tions of employment of the unit employees.
(d) Make the employees whole, with interest, for
any losses of pay or benefits they may have suffered
as a result of the Respondent’s unilateral changes, and
for any expenses they may have incurred as a result
of the Respondent’s failure to make the required pay-
ments into the union pension and health care plans, in
the manner described in the remedy portion of this de-
cision.
(e) Reimburse the union pension and health care
plans, with interest, for unpaid contributions to those
plans.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Post at its facility at Union Gap, Washington,
copies of the attached notice marked ‘‘Appendix.’’48
Copies of the notice, on forms provided by the Re-
gional Director for Region 19, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
915NOEL CORP.
1 The General Counsel concedes that, should the 8(a)(3) allegations
of the complaint be dismissed, the Respondent cannot be found to
have acted unlawfully by declaring impasse. He does not contend,
in other words, that the impasse was tainted by any of the Respond-
ent’s statements that might be found independently unlawful.
2 286 NLRB 868 (1987), enf. denied on other grounds 873 F.2d
1150 (8th Cir. 1989).
3 286 NLRB at 871.
4 297 NLRB 137 (1989), enfd. 945 F.2d 1428 (8th Cir. 1991).
5 In adopting the judge’s finding, I do not rely on his statement
that ‘‘It is too sterile a contention to look literally at the essential
message, and say that mere word choice supersedes all the complex
realities of a major business setting.’’ Although the context in which
words are spoken may be significant to an understanding of their
meaning, the speaker’s choice of words also may be critical, as myr-
iad decisions make clear. See, e.g., NLRB v. Gissel Packing Co., 395
U.S. 575, 617–620 (1969). In this case, the words spoken by the su-
pervisors did not constitute threats of discharge.
6 Employee Leo Hull testified that Robbins told the group that
strikers would be permanently replaced and that ‘‘they had people
to replace them. There was [sic] plenty of workers.’’ That version
of Robbins’ remarks, however, falls short of an assertion that perma-
nent replacements had already been hired. It also allows for the pos-
sibility that strikers could be replaced temporarily (as, indeed, they
were) by employees from other parts of Noel’s operations.
7 I think that Robbins actually stated in effect that the Respondent
was in the process of obtaining replacements, as some witnesses tes-
tified.
MEMBER STEPHENS, dissenting in part.
Unlike my colleagues, I do not find that Rod Rob-
bins’ statements on the evening of August 29 con-
stituted threats to terminate employees who joined the
strike that night, or that employees who heard those
statements and walked out that night or early the next
morning were unlawfully discharged. Because I agree
with my colleagues that no other employees were dis-
charged, either actually or constructively, until long
after the Respondent declared impasse and unilaterally
implemented most of the terms of its final offer on
September 18, I find that the impasse was lawful and
that the Respondent did not violate Section 8(a)(5) by
making the unilateral changes.1 In all other respects, I
agree with the majority.
When the Respondent informed the employees that
they would be permanently replaced if they walked off
the job, or if they failed to report for work as sched-
uled, it did no more than inform them of its intention
to exercise its right to hire permanent replacements for
economic strikers. Unlike my colleagues, I find that
such statements do not falsely imply that the strikers
would be replaced immediately, but only that the Re-
spondent intended to replace them when it could do so.
In Chromalloy American Corp.,2 the Board found that
the employer lawfully informed its striking employees
that if they were not at their jobs at the beginning of
certain specified workdays, ‘‘then management will
take the necessary steps to permanently replace those
who have not returned to their jobs.’’ The Board found
that the employer had simply informed the employees
that they were subject to permanent replacement.3 In
this case, as in Chromalloy American, the Respond-
ent’s statements do not imply that strikers who fail to
report by a date and time certain, or who walk off the
job at the commencement of the strike, will be, in ef-
fect, terminated. In this regard, the cases are distin-
guishable from American Linen Supply,4 in which the
employer warned strikers that if they did not report to
work by the starting time for work (which was only
some 10 minutes away), ‘‘you are permanently re-
placed.’’ Such a statement falsely implies that they
have no ‘‘right to return to their unoccupied jobs sim-
ply because they have gone out on strike.’’ Id. Here,
however, Robbins made his statement further in ad-
vance, and the statements had some basis in fact, since
the Respondent had made arrangements to obtain
qualified replacements from a temporary employment
agency, and some of those replacements in fact arrived
around midnight. I therefore agree with the judge that
the Respondent did not threaten to discharge employ-
ees by telling them they would be permanently re-
placed if they honored the strike, or effectively dis-
charge the employees who joined the strike in spite of
hearing those statements.5
Hence, Robbins’ testimony that he announced at the
night-shift meeting on August 29 that the Respondent
had hired permanent replacements and that he made
similar statements in individual conversations that
evening with Susan Wilson and with employees Bolin,
Mullinex, and Lombard does not—in the circumstances
here—require a finding of unlawful threat of termi-
nation under the American Linen analysis because the
statement to which he testified did not falsely indicate
to employees that they would be immediately pre-
cluded from returning to their jobs if they went on
strike. In any event, I doubt that Robbins phrased the
statement in the way to which he testified. Susan Wil-
son, Bolin, Mullinex, and Lombard all testified at the
hearing, and none of the four corroborated Robbins’
account. None of the witnesses who attended the night-
shift meeting on August 29 testified that Robbins stat-
ed on that occasion that permanent replacements had
been hired.6 I think it highly unlikely that statements
as powerful as those Robbins claims to have made
would not be remembered by any of the employees to
whom they were supposedly addressed.7 And even if
Robbins did make those statements and the employees
forgot them, I think it logically impossible to find that
employees were effectively given notice of discharge
by statements they did not recall having been made.
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel’s unopposed motion to correct transcript is
granted in its many particulars. (The correction proposed at p. 516
is actually on L. 4.) On my own motion the transcript is further cor-
rected by attached appendix listing, which shall be omitted from
publication. See Airlines Parking, 197 NLRB 762 (1972). Finally, R.
Exhs. 18, 19, and 23 are confirmed to be rejected from admission
to the record, as the General Counsel observed in his motion should
be done and separately bound.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT inform employees that they will be
permanently replaced if they join a strike that is sched-
uled to begin in a few hours, or that we have hired
permanent replacements for strikers, at a time when we
have not hired permanent replacements for all potential
strikers, and WE WILL NOT effectively discharge em-
ployees who join the strike in the face of such state-
ments.
WE WILL NOT inform our employees who are rep-
resented by a union that we are, or will be, operating
nonunion, or constructively discharge them when they
quit rather than work under nonunion conditions.
WE WILL NOT make unilateral changes in the terms
and conditions of employees represented by General
Teamsters Local 524, International Brotherhood of
Teamsters, AFL–CIO in the bargaining unit described
in article 1 and appendix C of our collective-bargain-
ing agreement with the Union that expired on August
29, 1990, unless we have first bargained with the
Union in good faith to a valid impasse.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Tom Glass, Jim Stiltner, Leo Hull,
Bret Lombard, Richard Wilson, James Doll, Marty
Layman, Greg Bolin, Roger Layman, Chuck Foster,
and Mitch Cruz immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, unless we can show in compliance
proceedings, on the basis of evidence that was not
available at the time of the unfair labor practices hear-
ing, that that action would be unduly burdensome, and
WE WILL make them whole for any loss of earnings
and other benefits resulting from their discharges, less
any net interim earnings, plus interest.
WE WILL notify those employees that we have re-
moved from our files any reference to their discharges
and that the discharges will not be used against them
in any way.
WE WILL, at the Union’s request, rescind the unilat-
eral changes we made in the terms and conditions of
employment of our unit employees.
WE WILL make our employees whole, with interest,
for any losses of pay and benefits they may have suf-
fered as a result of our unilateral changes in their
terms and conditions of employment, and for any ex-
penses they may have incurred because of our failure
to make the required contributions to the Union’s
fringe benefit plans.
WE WILL reimburse the union pension and health
care funds for all unpaid contributions, with interest.
NOEL FOODS DIVISION OF THE NOEL
CORPORATION
James C. Sand, Esq., for the General Counsel.
Gary E. Lofland (Lofland & Associates), of Yakima, Wash-
ington, for the Respondent.
Kenneth Pedersen (Davies, Roberts & Reid), of Seattle,
Washington, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. These
consolidated cases were tried at Yakima, Washington, over
a course of 12 trial days spanning March 5, 1991–May 3,
1991, inclusive. Charges on which the proceeding was based
were filed August 31, 1990, and January 31, 1991 (amended
February 6, 1991), by General Teamsters Local 524, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO (the Union). A third
amended consolidated complaint was subsequently issued
February 14, 1991. The primary issues are whether Noel
Foods Division of the Noel Corporation (Respondent) (a) ef-
fectively and in the alternative, constructively, discharged
various striking employees in order to discourage them from
being members of, or acting in support of, the Union, (b)
discriminatorily refused to pay striking employees their ac-
crued vacation pay, and (c) unilaterally implemented certain
terms and conditions of employment, while contempora-
neously terminating all contributions to certain joint trust
funds, this in violation of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act.
On the entire record,1 including my observation of the de-
meanor of witnesses, and after consideration of briefs filed
by the General Counsel and Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent is an operating division of a Washington cor-
poration. Its office and place of business is in Union Gap,
Washington, where it engages in wholesale food distribution.
During the 12-month period preceding February 14, 1991,
Respondent, in the course and conduct of its operations, and
917NOEL CORP.
2 A yet different entity named Noel Transport also exists; it is
known only to be a unionized entity of the overall enterprise, and
associated to trucking needs of the Pepsi-Cola division which does
business mostly in many of the communities served by Respondent.
3 Respondent’s industry, and essentially its own operation, is ex-
emplified by reference to a comparably ‘‘large wholesale grocer’’
with Teamsters-represented ‘‘warehouse work force,’’ all as de-
scribed in passages of Associated Grocers, 253 NLRB 31, 36 (1980).
as representative of all times material to these cases, (a) both
sold and shipped goods or provided services from its facili-
ties within the State of Washington to customers outside the
State, or sold and shipped goods or provided services to cus-
tomers within the State of Washington, which customers
were themselves engaged in interstate commerce by other
than indirect means, and collectively of a total value in ex-
cess of $50,000; and (b) purchased and caused to be trans-
ferred and delivered to its facilities within Washington goods
and materials valued in excess of $50,000 directly from
sources outside Washington, or from suppliers located within
Washington, which suppliers in turn obtained such goods and
materials directly from sources outside the State of Washing-
ton.
On these admitted facts, I find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and, as is also admitted, that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Union Gap is a small, commercially orientated community
abutting, and commonly viewed to be within, the urban
bounds of greater Yakima. In realistic terms, Respondent is
one autonomously managed component of an umbrella cor-
poration having several such community-sited business units.
The Union is an amalgamated Teamsters local representing
bargaining units throughout at least the general metropolitan
area. The parties have had a collective-bargaining relation-
ship extending back for about 10 years.
B. Nature of the Business
Respondent is a grocery distributor, with the size and re-
sources sufficient to serve customers situated in large and
not-so-large cities or towns throughout the Pacific Northwest,
plus operations of lesser concentration. The main band of
customers is within greater Yakima, or its immediate sur-
roundings, while distinctively specialized food wholesaling is
provided at other cities of the Pacific Northwest. The largest
city of all that are served is Portland, Oregon, and the second
largest business venue is Spokane, Washington. Smaller
communities, reachable in satellite-like fashion as offshoots
from established out-of-town (non-Yakima) routes, are served
by modified delivery schedules reflecting a lower sales vol-
ume to fulfill customer needs.
This geographically grid-like wholesale food distribution
enterprise ran in all compass directions from Yakima; with
some sales, delivery, and specialized employees having a
permanent duty station at significant business locations such
as distant Spokane, ‘‘Tri-Cities,’’ Walla Walla, and
Wenatchee, Washington, and in Portland. Minor customer lo-
cations, some served weekly and some less than weekly, in-
cluded the towns of Brewster, Goldendale, Hermiston, and
Moses Lake, Washington, the Dalles and Pendleton, Oregon,
and Lewiston, Idaho. A separate, thrice-weekly shipment was
picked and loaded at the Union Gap warehouse, transported
to the West Coast, and shipped by container to Alaska cus-
tomers.
The divisionalized business structure of the Noel Corpora-
tion permits various interconnections of function. Thus over-
the-road, tandem semitrailer driving is done variously by Re-
spondent’s employees, by drivers of nonunion Noel Trans-
portation, or by privately engaged independent carriers.2 A
centralized vehicle repair and maintenance shop exists at the
main Union Gap facility. Here, too, the function is split be-
tween Respondent’s mechanics and those on the payroll of
Noel Transportation, in essentially undifferentiated manner as
between vehicles and mechanical equipment of Respondent
versus that of a sister division.
Movement of goods from warehouse to customer is ac-
complished by closely planned trucking capacity. In greater
Yakima local delivery drivers regularly supply retail cus-
tomers after direct loading at Respondent’s dock. Distant
venues receive bulk delivery at an established transfer point
in the given community; a place where semitrailers, usually
doubles, have been hauled by over-the-road drivers for a
tractor unit switch between Yakima and local personnel
there. Two long distance ‘‘shuttle’’ drivers, regularly pulling
tractor-trailers to Spokane each night, worked a longer, more
specialized shift.
An array of job classifications exists to accomplish the
overall business mission. Fundamentally three shifts are uti-
lized, however time variations and overlapping are present
for functional purposes. When understood as such the day
shift may be thought of as commencing from 5 to 8 a.m.,
the swing shift from 1 to 2 p.m., and the night shift from
6 to 10 p.m.
In the course of round-the-clock, essentially weekday, op-
erations, the more numerous jobs are those of warehouse-
man, local, yard, or long-haul drivers and mechanics. The
yard drivers respotted trailers during their shift, to best posi-
tion them for loading and relieve vehicle congestion near the
warehouse dock. Other titled occupations also exist, such as
chemical beverage specialist in the field, and a related bench
technician position at the main location. Finally, a sales force
was deployed in parallel to overall product distribution per-
sonnel.3
C. The Triggering Labor Contract
The most recent collective-bargaining agreement between
the parties was one of 3 years’ duration, effective from Au-
gust 29, 1987, until August 29, 1990. In this the Union was
recognized as exclusive representative of all employees, ex-
cept for those listed by their individual capacity, those in
named occupations, those in both the meat and produce de-
partments, and supervisors. The contract provided for a wage
reopener after the first and second year, plus a typical clause
to permit forestalling renewal by timely notice of desired
change, modification, or termination given at least 60 days
prior to expiration.
The Union first gave effective notice of wage reopening
in early summer 1989. Negotiations following that notice re-
sulted in unfair labor practice proceedings as Case 19–CA–
20737, that verged on a formal hearing scheduled for July
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 All dates and named months hereafter are in 1990, unless other-
wise indicated.
17, 1990. The complaint in this case had alleged that an un-
lawful refusal ‘‘to execute a written contract’’ embodying
such ‘‘full and complete agreement’’ as assertedly reached
on or about October 11, 1989, had occurred. Soon subse-
quent to issuance of this complaint the parties exchange cor-
respondence, as a written debate of contractual status, con-
flicting positional claims between them, and potential evo-
lution of the situation as a labor-management relations mat-
ter.
This exchange originated with a letter dated March 23,
1990, from Union Secretary-Treasurer M. A. ‘‘Mel’’
Tanasse to Respondent’s general manager, Mike (Michael)
Noel. It read:
Local 524 was informed yesterday by a representative
of Region 19 of the National Labor Relations Board
that a complaint will issue upon the charge filed by the
Union against Noel Foods, Inc., on or about February
6, 1990.
In view of this development, and given Noel’s continu-
ing refusal to sign the collective bargaining agreement
agreed to in October, 1989, Local 524 hereby gives no-
tice of its intent to terminate the collective bargaining
agreement (which the National Labor Relations Board
has determined to be enforceable) on its scheduled ex-
piration date, midnight on April 30, 1990.
Prior notice was, of course, futile in view of Noel’s re-
pudiation of its contractual obligations. Noel has
waived any entitlement to prior notice, inasmuch as it
has refused, and continues to refuse, to execute its
agreement with Local 524.
This notice will be effective, for Section 8(d), sixty
(60) days after you receive it. Please contact me in
order that a schedule of negotiations toward a successor
agreement may be established.
In reply, Mike Noel answered with the following letter dated
March 26, 1990.
I am in receipt of your letter of March 23, 1990. That
letter requires a response and the correction of some of
the statements you have made.
The National Labor Relations Board has not determined
that a contract was reached in October, 1989, or that it
is enforceable. The matter will go to a hearing before
an Administrative Law Judge. The basis for issuing the
complaint is the conflict in the testimony as to whether
the company reserved the right to approve the Collec-
tive Bargaining Agreement. That determination will be
made by an Administrative Law Judge after a hearing,
which will likely take place in six (6) months to a year.
Assuming your position to be correct that there was a
contract in October, 1989 (and we do not agree that
there was), that agreement would have been effective
and enforceable on that date. There is no legal obliga-
tion that it be in written form. Our refusal to acknowl-
edge a contract existed, in no way prevented you from
fulfilling obligations under the agreement. You cannot
avoid the obligation of opening, as required by the
terms of the agreement you claim existed, by trying to
place the blame on us. Your intent to open the agree-
ment (if it exists) some thirty (30) days late, is ineffec-
tive and would not be honored. The contract would
have renewed itself for one year.
Further, you need to consider the effects of your deci-
sion. If you are correct that there was a contract
reached October, 1989, then your failure to have
opened that contract will have caused it to rollover.
Thus, the union will have negotiated a contract for em-
ployees, which would last until May 1, 1991, with a 10
cent/an hour increase.
The union’s failure to open the agreement in a timely
matter severely effects [sic] our employees: The current
language in the existing contract, with the ‘‘CAP’’ on
the health and welfare, you have just increased out of
pocket costs to our employees.
We intend to open the contract and negotiate a succes-
sor agreement upon the expiration of the contract on
August 29.
Subsequently, by letter dated July 3, 1990, Respondent’s
attorney, Gary Lofland, wrote to the Union’s attorney, Ken-
neth Pedersen, extensively treating legal, labor cost, and em-
ployee benefits factors of the situation. This letter closed
with a solicitation toward prompt, mutual efforts at ‘‘resolv-
ing’’ the matter without litigation.
Ultimately a written settlement agreement of the imminent
litigation was reached between the parties, and necessary sig-
natures secured by July 17, 1990. It provided certain retro-
active wage rate adjustments, and recited that the ‘‘underly-
ing agreement’’ would terminate on August 29, 1990. In this
last respect of how the contract would terminate on August
29, 1990, the parties also agreed to ‘‘immediately move for-
ward with timely good faith negotiations.’’ Further, the set-
tlement agreement contained an express acknowledgment by
Respondent that the Union had ‘‘fully complied’’ with notice
provisions of Section 8(d) of the Act.
D. Resumed, and Ultimately Unsuccessful, Negotiations
Separate and apart from legal and tactical positions of the
parties, as then unspoken or yet to be developed, the settle-
ment agreement in fact avoided immediate litigation. Its
achievement was, however, a somewhat tortuous process.
In an approximate 24-hour period immediately preceding
the typically 9 a.m. commencement of a formal unfair labor
practice hearing, settlement activity unfolded progressively,
albeit haltingly.4 During the morning of July 16, a transmittal
letter of that date from Mike Noel to Union Business Rep-
resentative Mark Rogstad was hand-delivered to the Union’s
office. This letter enclosed a brief, proposed ‘‘Letter of Un-
derstanding and Settlement Agreement’’ covering procedural,
concessionary, and notice (8(d)-type waiving) language suit-
able to winding up Case 19–CA–20737. Brisk dealings on
July 16 included Rogstad’s telephone communications with
the Union’s attorney in Seattle, plus an assumed role as set-
tlement agent by the Region’s trial counsel James Sand; he
later also to be counsel for the General Counsel here. Thus
a three-way undertaking, including actual visit to the office
of Attorney Lofland, conveniently close by in Yakima,
919NOEL CORP.
5 This contract was technically between Respondent as employer
and, on the other hand, the Union jointly with Teamsters Local 839
of Pasco, Washington. Its actual date of execution by representatives
of all three entities, along with collateral letters of understanding,
was on June 16, 1988.
moved the parties toward resolution. Such process generated
the new, more detailed settlement agreement, as drafted by
James Sand. When the business day of July 16 ended an ap-
proving signature of Tanasse for the Union had resulted, but
only a failed expectation that Respondent would also join in
disposing of the case.
Early on the morning of July 17 the parties girded for
trial, with Respondent’s position manifesting in Mike Noel’s
perplexity about why ‘‘we were still going to court.’’ After
the parties actually assembled at the place of hearing, a short
delay in starting the trial was taken for Mike Noel and his
attorney to contact enterprise owner Roger Noel about mak-
ing the agreement as tendered. Roger Noel ostensibly ap-
proved, for Mike Noel signed the more elaborate settlement
agreement, it an enlargement on his own simpler proposal of
the day before, and the need for a hearing dissolved.
Turning to the present case, this record is barren as to par-
ticular bargaining dynamics over the next several weeks, ex-
cept as to a few subjects such as additional unit exclusions,
optional mileage rate and minor language matters, all as as-
sociated to the date August 15. However, by late August a
growingly intense negotiation process was under way, this at-
tempting an actual full contract renewal by addressing key
bargaining issues then still in dispute. As to respective teams
the union spokesperson was Rogstad, accompanied by an
employee bargaining committee of varying composition, and
perhaps also fellow Business Representative Anton Jones.
Respondent’s chief negotiator had been David (Dave)
Cummins to start, with Mike Noel ‘‘step[ping] in later’’ and
Cummins remaining at the table to assist him.
A generally favorable status existed in the negotiations as
the last full week of August was reached. The parties met
on Monday of that week, August 27, and again the next day,
making ‘‘a lot of progress’’ on both occasions according to
the perception to Mike Noel. At this point the principal unre-
solved issues concerned (1) pension fund contribution by the
Employer, (2) the basis of a health benefit plan, and (3) po-
tential exclusion of ‘‘salesmen’’ from the bargaining unit of
which they had been a part.
On August 29 the parties met to negotiate further at both
10 a.m. and 3 p.m. In the morning session, an agreement was
reached to immediately substitute a comprehensive company
health care plan for the Union’s health care benefit plans of
the past. By this point the salesmen exclusion issue had been
tacitly agreed to by the Union, leaving the pension subject
still the only primary topic in dispute.
The afternoon session of August 29 focused on the dis-
puted amount of company payment into the Western Con-
ference of Teamsters Pension Trust Fund, expressed as a
benefit amount per employee hour worked. The Union’s pro-
posal called for an increase of 15 cents per hour worked in
each year of a new contract. After extensive bargaining Re-
spondent’s negotiators caucused for discussion with a cor-
porate official. The upshot was movement to an offered 7-
cent-per-hour increase over an existing 70-cent-per-hour
base. This amount, if established, would have brought that
benefit cost in line with the comparable feature available to
employees of the Pepsi-Cola Division of the Noel Corpora-
tion. Rogstad was provided a written assurance of this con-
cession, for his display later that day at a scheduled strike
vote by the membership.
E. Union-Side Preliminaries to Contract Expiration
The participating employee bargaining committee of the
Union included delivery driver (Yakima area) Chuck Foster,
Wenatchee area delivery driver Don Reed, day warehouse-
man Raul Murillo, day freezer stocker Matt Loranz, truck
maintenance (utility) employee ‘‘Tom’’ (Charles) Wick-
enhagen, forklift maintenance employee (truck shop-utility)
Greg Bolin, Alaska order picker Roman Barczyszyn, and
vending serviceman Wally Hull. Reed testified that a union
meeting had been held on Saturday, August 25, intimating it
to be only of bargaining unit members at Respondent. He re-
called that during this meeting, and in context of potential
strike action, Rogstad ‘‘tried to explain to us what the law
. . . said about [possibly being] permanently replaced.’’
Reed added credibly that this particular subject, rife as it was
with uncertainties and variables, ‘‘had been mentioned a time
or maybe twice’’ at a prior meeting too. The membership
meeting of August 25 resulted in a vote giving strike author-
ization to the bargaining committee.
As prearranged, a final strike vote meeting began in late
afternoon of Wednesday, August 29. Both the starting time
and meeting length were tailored to permit widest possible
participation as among Yakima-area employees and those at
distant points. The approximately 6 p.m. meeting start readily
served departing day (first) shift employees, and, for the
most part, those arriving for night (third) shift work. The nu-
merically fewer swing (second) shift employees did not, in-
sofar as known, personally appear at the meeting. A loose
understanding permitted augmentation of voting by informal
proxy of, or telephone communication from, members regu-
larly stationed at outlying business locations.
A main structure to the meeting was secret-ballot voting
by the members, plus informally allowable augmentations. In
the course of this Rogstad had occasion, or was drawn, to
speak out loudly across the mingling assemblage of mem-
bers. He sought continuing orderliness to the event, cau-
tioned of the serious occupational and financial consider-
ations that were at stake, answered questions, and reiterated
governing notions about the subject of an employer perma-
nently replacing its striking employees in their jobs. By
about 8 p.m. an overwhelming, final strike authorization vote
had been given, and the Union conveyed notice of this to
Respondent’s facility, plus girding for the start of picketing
at midnight.
F. Prior Employer-Side Strike Planning
Mike Noel was in career transition when the ‘‘triggering’’
labor contract of 1987–1990 was reached. Prior to September
1987 he had been a cost accountant for nearly 2 years with
Respondent, although actually working on a finance project
for the sister enterprise named Noel Canning. After appoint-
ment as general manager in September 1987 Mike Noel par-
ticipated in finalizing the new collective-bargaining agree-
ment.5 He testified that a ‘‘handout’’ intended for employees
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had been created by Attorney Lofland at that late 1987 point
in time, and in anticipation of a possible strike then.
When the 1989 wage reopener dispute and resultant unfair
labor practice proceedings of Case 19–CA–20737 occurred,
Respondent also made certain strike contingency plans. This
involved utilization of the Yakima business entity named
Employment Plus, an employment service co-owned by Chris
Wellner and Erin Hale. Employment Plus screened striker re-
placement prospects at that time, and a training program was
deliberately carried out in order to have moderately com-
petent backups for Respondent’s mainstream warehouse and
delivery functions. Wellner herself is a former administrative
employee of Respondent and had associated with Employ-
ment Plus in September 1989 at just about the time this
strike contingency training originated.
As negotiations of summer 1990 approached the August
29 contract expiration date, Respondent again turned to Em-
ployment Plus for a standby program. During managers’
meetings as early as August 9, a possible strike was dis-
cussed by partial reference to such 1987-authored handout on
the subject. At this point in time management hierarchy
under Mike Noel (Noel) at Respondent’s Union Gap-centered
facility was headed by Operations Manager Rodney (Rod)
Robbins. Others were Sales Manager Douglas Englund, Traf-
fic Manager Ed Shirley, Day Warehouse Supervisor Don
Miller, Night Warehouse Supervisor Michael (Mike) Wright,
Chemical Beverage Manager Jim Foster, and Truck Shop
Manager Pat Stump.
By mid-August Employment Plus had a verbal commis-
sion from Cummins to reactivate old applicant files, and gen-
erally anticipate more intense activity should a strike actually
ensue. As more August days passed without a firm expecta-
tion of settlement, Employment Plus ran a ‘‘blind’’ help
wanted advertisement on Tuesday, August 28, and repeated
it in the area’s morning newspaper on August 29. These first
2 days yielded about 20 applicants which Employment Plus
tentatively screened. It segregated those with a combination
class A license necessary for truck driving and those with
forklift experience useful to warehouse positions, from pros-
pects for general laboring. This preparation led to certain
hasty job substituting as evening events of August 29 un-
folded.
G. Essentials of Evening, August 29
Noel testified that advice from the Union of its intention
to strike jarred his ‘‘pretty good feeling’’ about having a new
agreement before the midnight deadline. When so informed,
however, he returned to his office and became principally ac-
tive in planning to continue operating insofar as would be
possible. His general sequence of activity was imparting
advisories to corporate and sister company officials, conduct-
ing a midevening managers’ meeting to fulfill a four-point
strike response presentation, relatedly contacting Employment
Plus for urgent exhaustion of available strike replacement
personnel, and maintaining running communication with At-
torney Lofland for legal guidance.
In the course of all this Rogstad reached Noel by tele-
phone to inquire if a last minute get-together yet that night
might ‘‘avert the strike.’’ This suggestion ran afoul of Noel’s
emergency commitments with his own people. At approxi-
mately 11 p.m. he called back to Rogstad per expectations
between the two of them. Noel declined to meet, saying that
the Company would simply accept the strike commencing at
least for then. With this inevitability established, Rogstad
went directly to the facility where about 40–45 members
were setting up to picket.
Inside the premises Noel had conducted his managers’
meeting over approximately three quarters of an hour begin-
ning around 9 p.m. Most affected managers were present,
along with Cummins. Robbins attended on a call-in basis
from the second week of a vacation, while Englund was
away in Spokane that night for a meeting. Noel started with
a short ‘‘pep talk,’’ then expressing likelihood to the con-
cerned managers that strike disruption would certainly mean
‘‘late trucks’’ to Respondent’s customers. He testified that
his most critical instruction to managers concerned the inten-
tion to acquire permanent replacements for strikers, and his
discussion of both the legal and practical consequences of
doing so. Finally, Noel directed that immediate telephone
surveying of employees be done, to get a ‘‘read on’’ who
would strike and who would not. He concentrated this as-
signment with Robbins and Shirley, who together supervised,
directly or indirectly, the main bargaining unit contingent of
warehousemen and drivers.
Implementation of Noel’s directions took several forms.
The telephoning was actually done that night by Robbins,
Miller, Foster, and Shirley. Robbins made the greatest num-
ber of calls, concentrating on both warehouse employees and
Yakima-area delivery drivers. Miller called day warehouse
personnel of his department, plus miscellaneous employees
such as a swing shift warehouseman and the receiving clerk.
Foster telephoned to a few chemical beverage servicemen
under his supervision. As agreed between Robbins and Shir-
ley the latter called to outlying-based drivers with whom he
was more familiar. In all cases the telephoning also involved
leaving of messages with spouses or others, intended to
quickly draw out job intentions from individual employees.
In late day around 10 p.m., Robbins determined to conduct
a night crew meeting. With Wright’s assistance this was
quickly arranged to precede the group’s usual 10:30 p.m.
break. The basic night crew was called away from their du-
ties, and, along with several swing shift workers who were
then nearing their own normal quitting time, plus truck shop
personnel, this entire group of at least 18 persons assembled
in the breakroom to hear from Robbins. He spoke for about
10 minutes, testifying that he said the decision to strike was
one of great consequence and could mean anyone leaving
‘‘would [or] can be permanently replaced’’ (Tr. 1440–1442,
1925). Robbins took a few questions from employees, but
soon became tearfully emotional as he compared any strike
disruption to the divorce he was experiencing at the time.
Wright then stepped in to make concluding remarks. These
were more practically geared to operational consequences of
a strike, and reminders such as for strikers to turn in freezer
suits and boots.
There were also episodal conversations and events both
before and after the official time of actual strike commence-
ment at midnight. These included (1) what several rank-and-
file employees overheard of the home telephoning activity
being carryed out by management, (2) various exchanges as
night crew employees prepared, or leaned toward preparing,
to commence their strike, (3) remarks made by supervisors
of Respondent who ventured outside to the picket line after
midnight, and (4) unique episodes covered in testimony of
921NOEL CORP.
6 G.C. Exh. 5, Employment Plus’ 14 name applicant list indicating
actually hire at 12:01 a.m. of Thursday, August 30, subordinates in
accuracy to a summarizing ‘‘Attendance Record’’ (G.C. Exh. 11)
and its foundation in semimonthly ‘‘Payroll Time Ticket[s]’’ (G.C.
Exh. 13) for the pay period ending August 31. In turn, G.C. Exh.
13 has more probable accuracy than G.C. Exh. 11, the latter known
to be a document prepared for litigation and not a basic business
record (Tr. 1283). The situation of replacement employee Frank
Marazita needs special comment, because I take the facts of his
Continued
particular General Counsel witnesses. In all regards the con-
text was originating strike action by employees, versus a
concerned management group making unprecedented adjust-
ment to minimize its business effects.
H. Profile of the Period August 30–September 4
1. Strike commencement and Employer response
While the tensions of an imminent strike began building
in earnest by around 10 p.m. on Wednesday, August 29, as
a calendar matter the first day of the strike is commonly and
conveniently considered to be the 24-hour period beginning
at midnight, or 12:01 a.m., on Thursday, August 30. From
postmidnight of Wednesday, August 29, into the daylight
morning hours of Thursday, August 30, different activities
occurred that were both separate and interrelated. There was
first a typical scene outside the facility with several dozen
strikers, some of whom had gathered earlier, remaining
through all the wee hours of that initial picketing. Other
strikers arrived after the exact hour of midnight, and still oth-
ers chose to leave at various times before dawn. Remotely
based members, particularly those supportive of the strike,
strove to learn the true situation during telephoned commu-
nications as advocates of both sides spread factual or merely
persuasive information.
Second, several of Respondent’s supervisors remained at
the facility in a form of special duty that ranged from a few
extra stay-over hours, or time spent after call-in, to Traffic
Manager Shirley who was up some 30 consecutive hours in
connection with company-side needs of the strike having
started. The presence of the supervisors also reflected a mon-
itoring of strike-related operational adjustments, plus rudi-
mentary training and break-in of the dozen plus individuals
drawn from initial help wanted adverting.
A third main dynamic concerned call-up of substitutional
and supplementary personnel to operate tractor-trailer loads
out to daily delivery venues as this would be expected by
customers on a routine weekday (Thursday) morning. Here
the reach was to supervision, sales employees, truck shop
employees, Noel Transportation drivers, or other persons
available and qualifiedly licensed.
2. Extent of the strike
A principal business disruption on the first day was the
few key departures by striking night crew members, coupled
with extensive strike solidarity among Yakima-area delivery
drivers. The night crew strikers who left during that first af-
fected shift were yard driver Jim Stiltner, dry warehouse
picker Bret Lombard, and freezer picker Tom Glass. Addi-
tionally, the significant distant locale of Portland was af-
fected by striker vacillation, while at at Spokane it was from
strike unity of regular, long-haul, tandem tractor-trailer shut-
tle drivers Sam Denton and Chris Tracy. The early effective-
ness of the strike was also felt in several specific areas or
functions, as at Wenatchee and the Idaho runs where, respec-
tively, withholding of services or inexperience of replace-
ment employees impaired normal business. Finally, the spe-
cific activity categories of truck maintenance, chemical bev-
erage servicing, and computer routing were hit by the strike.
3. Variables to extent of the strike
Generally the individual prestrike information, apparent
solidarity of purpose, and participation in strike voting were
spotty as among bargaining unit members. In the imme-
diately early times following their midnight deadline, the fi-
nancial, domestic, and career realities of striking affected ac-
tual behavior of particular strikers. This was essentially true
with members of the Union not present at the picket line,
whose awareness of developments came mostly from tele-
phone networking calls, plus the early, persistent inquiries of
management officials. The results were instances of indeci-
sion and delay among some employees as to just what they
would do, and the more complicated activity of providing
partial work service or only promising to do so.
4. Extent of striker replacing
The strike planning efforts of Employment Plus Co-Own-
ers Erin Hale and Chris Wellner had changed abruptly from
active to urgent as of late evening on Wednesday, August 29.
Cummins, as directed by Noel, attempted, and by about 9
p.m. had completed, telephone contact to the personnel agen-
cy. Hale and Wellner went directly to their client’s premises,
arriving about when Noel’s managers’ meeting ended. The
coordinating duo of Noel and Cummins quickly instructed
them to marshall up potential strike replacements by mid-
night. Hale and Wellner immediately returned to commence
telephoning from their office, and through this means can-
vassed availables from the past 2 days of help wanted adver-
tising. They obtained statements of intention from 17 people
to show up by midnight. Cummins had meanwhile notified
Respondent’s security firm about the strike, and this agency
provided extra guards for midnight and beyond as required.
Hale and Wellner arrived back at the facility by around
11:30 p.m. with a list of names keyed to job functions antici-
pated by Respondent as its immediate replacement needs. Of
the 17 persons expected to appear, 15 actually showed up
just before, or at around, midnight. On arrival, and after
some coordination of movement by the augmented security
personnel, they were shunted directly into operational areas
for orientation, break-in and training. The effective result
was a spreading of not fully initiated, supplementary employ-
ees to continue with the nightly cycle of overall order pick-
ing and truck loading.
5. Variables to extent of striker replacing
A complete depiction of oddities and adjustments as this
initial group phased into the operation cannot be made, be-
cause many details of such a process were not, as would be
so overly difficult to do, developed for this record. What is
known includes first that a number of the striker replace-
ments did not stay long or were soon terminated.6 In some
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
poststrike utilization to be neither G.C. Exhs. 11 or 13-based, but in-
stead the detailed and acceptingly creditable testimony of Wright
(Tr. 1953–1954, 2009).
7 The record does not explain whether ‘‘Warehouse Clerical,’’ as
expressly excluded from the collective-bargaining agreement, was
synonymous with ‘‘checker.’’ Other suggestive job title terminology
is also found in the testimony, such as inventory control (‘‘we called
it’’) or quality control (for ‘‘customer service’’ purposes). I sense
from the overall facts, and testimonial implications, that this ‘‘check-
er’’ position was excluded from the bargaining unit by usage and
understanding (see Tr. 1920, 1936–1937, 2014).
8 I fix the date of the meeting as Friday, August 31, based on
Noel’s precise, persuasive, and seemly more correct testimony; thus
crediting it over the contrary implication by Rogstad that they had
talked over coffee on Thursday, August 30. This factual finding also
controls an immediately following sequence of telephoning between
them.
9 The parties were well familiar with functions of the Federal Me-
diation and Conciliation Service (FMCS) as applying to their long-
running contractual dispute. Matters of mediation function and pro-
cedure were first touched on back in summer 1989, and continuingly
so throughout the first 8 months of 1990. This will be treated in sec-
tion Q below (headed Respondent’s Affirmative Defense).
cases, as with warehousemen James Aills, Monty Owens,
and Idaho driver Lawrence Nicholls, only a day or so were
lasted. Somewhat comparably and as to persons hired after
the help wanted advertising for reading on the morning
Thursday, August 30, ‘‘barraged’’ Employment Plus with ap-
plications, warehouseman Jeff Schlepp and driver James
Cheney, plus William Englebert at Spokane, resigned or
were terminated.
An internal situation involved several persons employed in
the entry level, nonbargaining unit position of checker.7
After assessment of business needs at an operational meeting
held by Wright around 1:30 a.m. on August 30, three of
these checkers on duty at the time were upped to order pick-
ers. This decision triggered another minor change whereby
‘‘floating’’ warehouseman Howard (Russ) Powell replaced
departed night crew striker Tom Glass. Powell’s special cat-
egory as a floater meant that he was qualified for freezer
work if called on, and paid a 15-cent-per-hour ‘‘premium’’
(not shown or traceable from payroll time ticket markings)
over wage rate. In other instances, as treated below, the par-
ticular replacement dynamics as to bargaining unit members
were affected by special circumstances, unique to their indi-
vidual situations.
6. Labor management dealings
The next significant contact between key representatives of
each party occurred on August 31. Early that morning
Rogstad telephoned Noel and the two of them agreed to an
‘‘off-the-record’’ meeting at a Yakima restaurant that after-
noon.8 The ensuing meeting’s remarks were candid and
showing mutual concern, with both Rogstad and Noel ex-
pressing rather dismayed surprise over the strike having com-
menced. Beyond this nothing of substance was achieved in
regard to Respondent’s then current, and rejected, contract
offer. Rogstad did lightly probe whether Respondent would
be willing to tinker with the economics, such as by
‘‘shuffl[ing]’’ dollars to show an increase in pension con-
tribution. Noel made a guarded reply in the subject of eco-
nomics, as well as larger issues of contract renewal as a
whole, which remained inconclusive.
Before such off-the-record and discreet meeting of these
two ended, the topic of striker replacements was raised.
Rogstad’s testimony on the point reads:
Mike then raised the issue of the rights of the perma-
nent replacements. He said that they had hired a few
but not that many, that there had been some hired, and
I told him that from my viewpoint, I would recommend
that they make them temporary, not make them perma-
nent to avoid problems down the road. He said that he
would get on his car phone on the way after that meet-
ing and see what he could do to set up something for-
mal.
Noel testified more succinctly as follows:
And Mark asked me flat out, ‘‘How many permanent
replacements have you hired?’’ And I didn’t know and
I basically didn’t discuss it.
Demeanor factors between these two witnesses are es-
sentially equal as to the just-quoted versions of con-
versation regarding striker replacement. I am persuaded
to accept the detailed testimony of Rogstad, and believe
it to be accurate.
What did eventuate at the restaurant meeting was a ten-
tative agreement between Rogstad and Noel to meet later that
day at Yakima’s Towne Plaza Motor Inn. Rogstad went there
at the proposed time with colleague Jones, but no meeting
of an anticipated ‘‘more formal’’ variety happened. Instead,
after Noel had conferred expediently with Attorney Lofland
and Corporate Official Larry Estes, he arranged for the wait-
ing Rogstad to get a telephone message calling off that late
afternoon meeting.
Soon afterward, by now approaching 5 p.m. of Friday, Au-
gust 31, Rogstad and Noel did have direct telephone contact
with each other. Rogstad testified that in this conversation,
confirming as it did that Respondent’s representatives had
‘‘changed their minds,’’ Noel also added how ‘‘the company
. . . instead wanted to work through a mediator rather than
go face-to-face that day.’’ Noel’s version of this telephone
conversation fixed it as one originating from a ‘‘dis-
appointed’’ Rogstad. He recounted an exchange focusing on
the holiday weekend which the strike was about to span, and
his own emphasis to Rogstad that Respondent intended ‘‘to
reevaluate this thing [and] look at it next week.’’ Noel
strongly denied making reference to Federal mediation serv-
ices during this conversation.9 On this direct point of con-
tradiction between these chief representatives for the oppos-
ing parties, I am persuaded to fully credit Noel. This is based
on his generally convincing demeanor, his well-detailed
recollection of the exact remarks exchanged, and the inherent
probabilities of how the overall course of negotiations had,
and was to be, unfolded, plus Noel’s consistent reliance on
legal counsel’s advice throughout.
Noel testified further that a decision was hatched on Sep-
tember 3, at a long meeting where he was present with At-
torney Lofland and corporate officials including Roger Noel.
As commissioned to make ‘‘the best move . . . to protect
the company’’ Attorney Lofland proceeded to arrange a
meeting of the parties for September 10, at the Towne Plaza
‘‘to resume negotiations.’’ He confirmed this scheduling by
letter to FMCS Commissioner Norm Beatty dated September
923NOEL CORP.
4, in which he wrote that representatives of the Union had
been appropriately notified.
I. Selected Witnesses of the General Counsel
The synopsis of testimony that follows is made in the
same order in which numerous witnesses were called by the
General Counsel during trial. This includes, in additional to
alleged discriminatees, a few auxiliary witnesses called dur-
ing the General Counsel’s case in chief, but for whom no
violation is claimed or as to whom a listing in the third
amended consolidated compliant has been effectively with-
drawn. Where testimony of a witness connects to information
relayed by a spouse, the assertions of both persons are com-
bined under one numbered heading for convenience and
brevity.
1. Dick Martin—He was a vacation relief warehouseman
and worked as scheduled on August 29 from 2:30 to 11 p.m.,
plus an hour later added on as overtime. According to Martin
he attended a night crew meeting with about 30 other em-
ployees at 10:30 p.m. by his approximation, knowing at the
time from coworkers that a strike was to start at midnight.
Martin testified to hearing Robbins say (1) that as of mid-
night Respondent would be a nonunion shop, (2) that any-
body walking out would be permanently replaced, and (3)
that this would all result in strikers not having (‘‘will lose’’)
their jobs, which were ‘‘tough right now to find.’’ He also
recalled hearing Robbins say how those who stayed to con-
tinue working ‘‘will go under Noel’s insurance and pension
plan.’’ Martin, as well as numerous witnesses following him,
described Robbins’ emotionalism as he spoke of crying a lit-
tle and referring to his own problems of a divorce proceed-
ing.
Martin elected to strike starting the next afternoon, and has
not worked since then for Respondent. At the time he had
2 weeks of accrued vacation scheduled in early fall. As the
case with many other strikers Martin believed from word of
mouth that he would have to terminate from employment by
resignation to obtain money in lieu of vacation pay. On this
basis Martin has neither requested vacation pay, nor re-
signed, as of the time he testified.
2. Dan Bonlender—He was a local delivery driver work-
ing at Portland along with Jeff Taylor, the other driver at that
location. According to Bonlender he had learned from Taylor
during the evening of August 29 that a strike by the Union
had been planned to start at midnight. Bonlender testified
that around 10 o’clock that evening he was telephoned at his
home by Robbins, who wanted to know if he was going to
join the strike or was going to stay working for the Com-
pany. Bonlender recalled Robbins saying that he would ‘‘be
nonunion’’ if he were to stay and work, but would be perma-
nently replaced if he did not. Bonlender asked for time to
think over a decision, and did so while discussing it both
with his wife and with Taylor. Both drivers decided to work
the next day, one on which the route schedules had them
riding together and he telephoned back to Robbins with this
decision.
They began delivering the route on schedule the next
morning, but soon begin experiencing call messages at var-
ious stops from union members of the Yakima area wanting
to talk with them. They then called to Shirley for information
on what was happening around the various operations, and
were told by him that in certain outlying areas drivers were
working and delivering. Based on this Bonlender and Taylor
decided to quit delivering, and after notifying the area sales-
man of this decision returned with their truck to Portland
while about four undelivered stops still remained. When
Bonlender reached his home at around 3 p.m., Robbins
called again saying that the route delivery should be com-
pleted, and repeatedly said ‘‘you’re either in or you’re out.’’
Bonlender again asked for time to discuss the pressured situ-
ation with his wife and was given 15 minutes to do so. He
then called back to Robbins telling him that with assistance
from his wife, but not from the unwilling Taylor, he would
then finish the route. The couple did so, working until about
1 a.m. the following morning in the process.
Bonlender again appeared for work on Friday, August 31,
at 5:30 a.m., just as the loaded Portland trailers arrived for
that day. The rig was driven by Tom Clark, a salesman from
the Walla Walla area, who was accompanied by District
Sales Manager Bill Combs. These two sales officials inquired
about Taylor’s intentions, and later got an indirect assurance
that he would work. Meanwhile Bonlender had pulled out
with his own load and proceeded with a normal delivery that
day. On his return around 2:30 p.m. he observed the second
of the tandem trailers still sitting undelivered where it had
been dropped that morning. Bonlender made a routine check-
in call to Shirley, who inquired of him about Taylor’s unde-
livered route. Shirley also asked Bonlender to make that de-
livery, but he declined based on his own fatigue at the mo-
ment adding that he could not even do it the following day
because of personal plans that Saturday. After the full labor
day weekend had passed, Bonlender in fact elected to join
the strike and has not worked since then for Respondent. At
the time he had 1 week of accrued vacation scheduled for
the end of November, but has ultimately received no pay for
it after receiving a letter from Respondent that a resignation
would be necessary to get this money.
3. Tom Glass—He was last actively employed as a freezer
picker on the night shift, ordinarily working scheduled hours
of 6 p.m. to 4 a.m. He also attended the night crew meeting,
recalling that it began around 10:15 p.m. in the lunchroom
with approximately 25 employees present. Glass testified that
Robbins stated Respondent would become nonunion, the em-
ployees would be permanently replaced if they commenced
a strike, and they would never work for Respondent again.
As Martin had generally done, Glass attributed the statement
to Robbins that anybody staying to work in face of the strike
‘‘would be covered under the Noel benefits package.’’ Glass
recalled Robbins ending his remarks with repetition that Re-
spondent would become nonunion, and saying employees
who walked off the job would experience an unemployment
line.
After this assembled meeting of employees ended, Glass
started on his way out to begin striking accompanied by co-
worker Jim Stiltner. Before actually leaving the premises
Wright spoke to them, reminding Glass that his freezer coat
should be left and that telephoning was already being done
to arrange replacements. Glass added how Wright then inti-
mated that this permanent replacing meant that he would
never come back with Respondent.
4. Cecil Wilson—He was actively employed as a night-
shift freezer picker on August 29. He had attended the
Union’s strike vote meeting late that afternoon, and learned
the results of it later while at work. Wilson was present at
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the night crew meeting with numerous others, and recalled
that during the course of it Robbins said the Teamsters
would be through at the Company as of midnight. Wilson
added that Robbins said if a walkout occurred such employ-
ees would be terminated, but that those employees staying on
the job would be working for ‘‘new contract wages.’’ He
also recalled Robbins saying that it would be hard to find
jobs in the vicinity at wages Respondent was paying, and
how it would be a serious thing to inform a spouse of no
longer being employed. Wilson did not go on strike, but con-
tinued working and around January 1991 became a day-shift
cooler stocker. He took a paid vacation in October based on
his accrual of this benefit.
5. Jim Stiltner—He was last actively employed as a night-
shift yard driver, with scheduled hours of 7:30 p.m. to 6 a.m.
The job involved shuttling trailers at Respondent’s ware-
house premises, and setting up loaded tandems. As to driving
qualifications he testified to prior experience and that shut-
tling of trailers at and around the docks was equivalent to
over-the-road driving. Stiltner added that once in the course
of employment he went on a public road because of a truck
breakdown to switch equipment. When he had to be replaced
for time off it was ordinarily employee Chuck Baladez who
did so.
He attended the Union’s strike vote meeting, and later
learned from a committeeman at work that the membership
had rejected Respondent’s last contract offer. Stiltner recalled
that during the Union’s strike vote meeting Rogstad had stat-
ed the Company could replace strikers permanently, and
would likely do so as applications were already being taken.
Stiltner had been late arriving at the night crew meeting,
recalling that it was announced to begin around 10 p.m. and
had approximately 18 employees present. According to
Stiltner, Robbins talked right up to the time of the ordinary
lunch break for night shift, saying that Respondent would no
longer be a union shop, that strikers would be replaced, and
that ‘‘Noel Foods retirement and insurance’’ would come
into effect.
At about 11:30 p.m., as Stiltner continued working, Wright
approached him in the yard to ask about intentions. When he
advised of planning to strike, the supervisor only said ‘‘to do
what I think was right.’’ Stiltner testified that when midnight
came he went on strike, and experienced more remarks from
Wright as he and Glass were exiting premises immediately
after the midnight deadline. Stiltner recalled Wright’s closing
remarks were simply the informal advice to ‘‘take it easy.’’
Stiltner has never since asked for his job back, nor been of-
fered it.
6. Leo Hull—He was lastly actively employed as a night
mechanic, with scheduled hours of 4 p.m. to 2:30 a.m. He
altered his work to attend the Union’s strike vote meeting,
but was uncertain whether or not Rogstad had said anything
about the possibility of members being permanently replaced
for going on strike. He did recall comment that Respondent
was taking applications for replacements, that they were ad-
vertising in the newspaper, and that ‘‘a risk’’ was involved
in going on strike.
Hull attended the night crew meeting, recalling that it
began around 10:30 p.m. with approximately 22 employees
present. According to Hull, Wright spoke first, saying that he
had enjoyed working with us all but the Company was strong
and serious as it approached the strike deadline. Robbins
then made emotionally charged remarks in which he said
there were plenty of people ready to work, that those going
on strike would be permanently replaced with those they had,
and that as of midnight Respondent would no longer be a
union Company.
Hull joined the strike at midnight, walking out with co-
worker Bret Lombard. Before doing so he twice experienced
further remarks from management officials while still at the
premises. One was with his supervisor, Pat Stump, who ad-
vised him to ‘‘think about’’ his decision and its effect on his
ever coming back, as the Company would ‘‘not fall’’ under
strike circumstances. The second occasion was when Noel
said simply that if the striking employees changed their
minds to notify him. Noel explained this as meaning he
would see about their coming back, and, answering
Lombard’s inquiry, that there was no time limit on this op-
tion. Hull has not had any further contact with Respondent
regarding employment, nor had his job been offered back to
him.
7. Bret Lombard—He was last actively employed as a
night picker in the warehouse, with regular hours of 6:30
p.m. to 2:30 a.m. He attended the Union’s strike vote meet-
ing and recalled Rogstad saying that employees could be per-
manently replaced. Lombard actually learned of the midnight
strike deadline from Kelly Phillips, his committeeman, who
told him of this around 9:30 p.m. that evening.
Lombard was called to the night crew meeting, which he
believed began around 10:15 p.m. with 20 to 25 employees
present. According to Lombard, Robbins spoke emotionally,
asking for trust in the Company while saying that after mid-
night it would become nonunion as those employees going
on strike would be permanently replaced and not coming
back. Lombard recalled that shortly after the meeting ended
Robbins spoke to him again, inquiring about his plans and
saying that going on strike would be the wrong decision and
result in his not coming back. Lombard corroborated the tes-
timony of Hull about remarks of Noel as they left the prem-
ises at midnight to commence striking.
8. Rick Mallonee—He was last actively employed as a
computer router, and ordinarily worked from 1 to 10 p.m.
fulfilling an office function called ‘‘road net’’ in which daily
delivery plans were scheduled. According to Mallonee, word
about a planned strike was going around ‘‘pretty wildly’’ at
the facility. He personally learned what was about to go on
when Robbins and Shirley came into the office where he was
working at some point. He attended the night crew meeting
and testified that Robbins said striking employees would be
permanently replaced, would no longer have a job with Re-
spondent and would never come back. Mallonee also recalled
that withdrawal cards were discussed, with the suggestion to
get them from the Union immediately. Mallonee got the im-
pression from remarks that employees could ‘‘go to the Noel
insurance and pension plan,’’ and he testified that while an-
swering the question of employee Dan Gilcher, Robbins said
Respondent could actually ‘‘let us go’’ for striking as when
people are fired.
Mallonee also testified that in the course of his last
evening at work he overheard several telephone conversa-
tions undertaken by both Shirley and Robbins. In Shirley’s
case these were being made at approximately 9:45 p.m. from
a point only about 4 or 5 feet away from the desk where
Mallonee himself worked. According to names mentioned by
925NOEL CORP.
Shirley, he was conversing in turn with Pat Benesch, Cecil
Bixler, Mike Weiler, and Monte Berghoff, all of whom were
drivers. In each case the remarks from Shirley’s end of the
conversation were that Respondent would permanently re-
place any individuals going on strike. Mallonee could also
hear ‘‘bits and pieces’’ of telephone conversations under-
taken by Robbins from a point about 15 to 20 feet distant.
Here Mallonee recalled no names being mentioned over the
course of two or three such calls, while hearing Robbins say
loudly to the listener that they ‘‘would no longer have a job’’
but without mention of permanently replacing employees.
Mallonee began the strike along with many others, and has
had no contact since with members of management. At the
time he had a vacation accrual of 96 hours, apparently effec-
tive at the end of October but not scheduled for use.
Mallonee has not received vacation pay money, nor re-
quested it from Respondent.
9. Ernest Reich—He was last actively employed as a
freezer stocker ordinarily working from 1 to 11 p.m. He was
scheduled for an hour of overtime work on August 29, and
beyond this his next workday would again begin at 1 p.m.
He attended the night crew meeting, which he recalled as
starting around 10:30 p.m. According to Reich, Robbins stat-
ed the Company would become nonunion at midnight, and
anybody leaving on strike would no longer have a job to
come back to.
Reich later determined to go on strike, but as his extended
shift of August 29 ended was still noncommittal. Before
leaving the facility that night he had a brief conversation
with his immediate supervisor, Don Miller, and later while
actually exiting from the premises another one with Noel. He
testified that Miller simply said he should make up his own
mind about striking, while Noel told him that an answer
about whether he would continue working could be made the
next day. At about this same point Wright approached him
and handed over withdrawal slips from the Union, which he
indicated should be returned to Respondent.
Reich has had no further significant contact with Respond-
ent since that time. He had 2 weeks of accrued vacation,
with one of them already scheduled in October. He received
no money for this vacation accrual, nor did he request it be-
cause of hearing that he would have to resign in order to get
it such compensation.
10. Charles (Tom) Wickenhagen—He was last actively
working in Respondent’s truck shop as a utility man doing
vehicle service on a fluctuating day-shift schedule. He was
supervised by Stump, but worked in close coordination with
maintenance employees of the nonunion Noel Transportation
division.
Wickenhagen attended the Union’s strike vote meeting,
and recalled some discussion of strike consequences at that
time. He stayed at the hall for the entire strike vote and be-
yond, then went directly to the picket line where he stayed
until well after midnight. Wickenhagan did not go into work
the following day, and he testified that Stump telephoned
him that afternoon to state that those going on strike would
be permanently replaced, and that the Company was operat-
ing nonunion.
11. Robert Allen—He was last actively employed as a day
warehouseman, ordinarily working scheduled hours of 5 a.m.
to 1:30 p.m. He was present for the Union’s strike vote
meeting in late afternoon of August 29, and knew from this
of the planned strike at midnight. This meeting was an ani-
mated, well-attended one, with much noisy talk among the
members, however Allen cannot recall whether Rogstad re-
ferred to the possibility of employees being permanently re-
placed after going on strike. Allen testified that around 10
p.m., on August 29 he was telephoned by Miller, who stated
that his going on strike would mean being permanently re-
placed as of September 1. His answer to this prospect was
that Miller should do what he has to do and he, Allen, would
do what he had to do. He did in fact go on strike, and on
the first Friday, August 31, experienced the receipt of papers
from Robbins along with others on the picket line. Beyond
this he has had no further contact with Respondent’s offi-
cials, nor as the case with practically all other strikers of-
fered to return to his job. The handout made by Robbins
early in the strike was a question and answer sheet regarding
strikes.
Allen further testified that on the morning of August 30
he saw about six exiting delivery trucks, two of which were
driven by new personnel and the other four driven by super-
vision, salesmen, or nonstriking warehousemen familiar to
him. The new drivers were accompanied by office personnel
of Respondent riding with them.
Allen had 1 week accrued vacation based on his anniver-
sary date of October 21. He has not been paid for such vaca-
tion, nor did he request it based on advice from Rogstad that
he should wait on this point or it might jeopardize the possi-
bility of any backpay.
12. Richard Buckley—He was also last actively employed
as a day warehouseman, but ordinarily working scheduled
hours of 8 a.m. to 5 p.m. He attended the Union’s strike vote
meeting, and knew of the membership’s contract offer rejec-
tion for this reason. Buckley testified that around 10 p.m.
that night Miller telephoned him to say that if he did not re-
port for work the next day he will be permanently replaced.
Buckley acknowledged this information, saying he will talk
to Miller later and hung up. He did, however, simply com-
mence to strike, and he began picketing activity on August
30. He has had no further contact with Respondent’s officials
since that time.
Buckley testified how on that first morning of picketing he
saw three or four delivery trucks exiting the premises, and
being driven by either salesmen or management personnel all
of whom were familiar to him. Buckley denied ever seeing
a document similar to the question and answer handout in
evidence as Respondent’s Exhibit 2, or that anything of this
nature had been given to him on the picket line.
13(a) Susan Wilson—She is the wife of employee Richard
Wilson. She testified to being telephoned the night of August
29 around 9:30 p.m. by Robbins. The official asked if her
husband was at home, and learned he was not. According to
Susan Wilson, Robbins stated that as of midnight there was
no union at Respondent, but if her husband would call in be-
fore that deadline and tell them he was coming to work he
could continue as it had always been for him. She recalled
that Robbins added Respondent would be ‘‘under no obliga-
tion to hire [her husband] back after the strike is over.’’
When Richard Wilson returned home at around 9:45 p.m.,
she told him of Robbin’s call and exactly what he had said
to her.
13(b) Richard Wilson—He was last actively employed as
a delivery driver on a shift that ordinarily began at 5 a.m.
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
He learned of the telephone contact from Robbins to his wife
after getting back from the Union’s strike vote meeting of
August 29. Richard Wilson did not call back to Robbins but
simply became a striker by not reporting to work the next
morning. He has not had contact with any official of Re-
spondent since then, nor received any offer of reinstatement.
14. Mike Weiler—He was last actively employed as a va-
cation relief driver. August 29 fell in a week that he was
temporarily assigned up at Spokane. He learned of the union
membership’s strike decision by participating in a group vote
of Respondent’s employees at Spokane, who telephoned in
their votes to be combined with the overall total. By this
process he and other regular drivers of the Spokane vicinity
knew that a midnight strike deadline had been established.
According to Weiler, Shirley reached him by telephone
shortly after 10 p.m. that day, and stated that should he
honor the strike he would be permanently replaced. Weiler
asked if it seemed the situation would really go that far, and
Shirley surmised that it probably would. Weiler then said
that he would appear for work at 5 a.m., but not cross a
picket line should it be present. Shirley answered by saying
he had talked with the other three Spokane vicinity drivers,
and was told they were all planning to work.
The next morning Weiler arrived at the regular delivery
pickup point and found that in fact the other three drivers
were picketing. On this basis he did not perform service, but
instead also joined the strike. Later that morning he tele-
phoned Englund at Respondent’s Union Gap warehouse.
Weiler recalled Englund stating in the course of this con-
versation that if he wanted to work for Respondent he should
resume his assignment, and it would be on a nonunion basis
with the Company-offered pay and benefits. Weiler promptly
returned to the Yakima vicinity where he resides, and within
2 or 3 days was telephoned by Shirley who stated he did not
want to lose him as an employee. Shirley also stated Re-
spondent was then operating on a nonunion basis, and to this
Weiler remarked that he wanted to give the strike some time
so as to see what might happen.
According to Weiler, Robbins called him sometime during
the second week of the strike, to reiterate Respondent’s hope
that it not lose his services because he was one of the ‘‘key
people’’ they had. Robbins repeated the phrasing that Re-
spondent was operating a nonunion shop, and Weiler could
work on that basis if he wanted to. Weiler answered that he
still wanted to take more time. Robbins telephoned again
about 2 or 3 days later, and on this occasion simply commu-
nicated information, as though reading from a piece of paper,
about how strikers should return any company property.
Weiler emphasized the tone of this communication by adding
that when Robbins finished he simply hung up without fur-
ther comment. Weiler had accrued vacation of about 1 week
at the time, scheduled to be taken in November. He has nei-
ther received such vacation pay nor requested it because of
not wanting to resign from Respondent’s employ.
15(a) Mary Doll—She is the wife of employee James
Doll. According to her two telephone calls were received at
their home during the evening of August 29, the first from
Robbins around 7:30 p.m. and the second from Miller within
an hour later. In Robbins’ call she was advised that Respond-
ent would become a nonunion shop at midnight, and her hus-
band would be permanently replaced if he did not appear for
work. In the second call Miller just asked to have her hus-
band telephone back to him. James Doll called his wife
around 10 o’clock that evening to say he would go on strike
at the picket line, and she referred the two messages to him
including passing on the phrasing of Robbins’ remarks.
15(b) James Doll—He was last actively employed as an
Alaska order selector, working day shift hours of 6 a.m. to
5 p.m. on Mondays, Tuesdays, Fridays, and Saturdays. Be-
cause of this he was not scheduled to work on either
Wednesday, August 29, or Thursday, August 30. He attended
the Union’s meeting of late afternoon on August 29, recall-
ing that a strike authorization resulted after membership re-
jection of Respondent’s last contract offer. He then learned
from his wife of the two telephone calls made to his home
with the intention of reaching him, and believed the time of
such information was around 8:30 p.m.
Based on this he called Robbins, and then went to the
plant around 9:30 p.m. to meet with him for private discus-
sion in a breakroom. According to James Doll, Robbins said
in the course of this meeting they needed him in the morn-
ing, and if he did not come to work then he would be perma-
nently replaced in the nonunion operation that Respondent
would become. Robbins advised him to give the matter
strong consideration if he wanted to still ‘‘have a job with
Noel Foods.’’ Additionally, Robbins asked him to talk with
other employees so Respondent would not lose key people,
meaning by this that James Doll was likely to have influence
among his coworkers because of being a former supervisor.
Robbins’ remarks were made as applying to all strikers gen-
erally, including the danger ‘‘that we would lose our jobs.’’
The next day Robbins telephoned him at home with the
same remarks as made the night before. James Doll answered
that he would not jeopardize his ‘‘union job,’’ meaning that
he would not abandon the strike and return on the basis that
Robbins was projecting.
James Doll testified about picketing on the first night of
the strike with about 40 or 50 other individuals, and how a
‘‘little bit of shock’’ existed among them concerning how
few of the night-shift personnel had come out at midnight.
He recalled that on this first night Englund, Wright, and
Shirley came out on the picket line at around 3:30 a.m., with
Wright telling picketers they would be permanently replaced
for continuing to strike and that reporting back to work
would be ‘‘under nonunion conditions.’’ James Doll also tes-
tified that as part of this episode in a private side conversa-
tion with Wright, this supervisor added further comment
about how ‘‘he hated to see’’ it come down to this. He testi-
fied further that on the first Sunday of the strike Robbins
passed out religious pamphlets to persons on the picket line,
along with blank withdrawal cards from the Union which he
urged be filled out and used to return to work on a nonunion
basis. At the time of the strike James Doll had accrued, but
unscheduled, vacation entitlement, which he has not asked be
paid to him because of not wanting to resign from ‘‘all ties’’
with Respondent.
16. Mike Cingle—He was last actively employed as a day
warehouse stocker, ordinarily working scheduled hours of 6
a.m. to 2:30 p.m. He attended the Union’s strike vote meet-
ing of August 29, and testified that later in the evening at
around 10:30 he was telephoned by Miller. According to
Cingle, this official inquired if he would come into work that
night for a a few hours, which he declined to do. Miller then
ascertained how this meant Cingle was going to strike with
927NOEL CORP.
the rest, and said in conclusion that Respondent was ‘‘going
nonunion’’ at midnight.
Cingle has had no further contact from Respondent or a
job offer since that time. He commenced picketing at around
11:30 p.m. on August 29, at which time 50 or 60 strikers
were present. There was extensive talk among them about
the various calls and employer contacts each had received
earlier that evening.
Cingle testified that during that day’s earlier union meet-
ing, Rogstad had advised members they were considering a
‘‘very serious matter’’ and said something to the effect of
permanent replacing that might affect strikers. He also re-
called questions being raised on this point, but none of the
details concerning them. He recalled seeing the question and
answer sheet which is in evidence as Respondent’s Exhibit
2 about a week or two into the strike.
17. Marty Layman—He was last actively employed as a
Yakima-area delivery driver, ordinarily scheduled to begin
work at 6 a.m. He learned from fellow delivery driver Mitch
Cruz about occurrences at the Union’s strike vote meeting of
August 29, and later that night Robbins telephoned him at
home. According to Layman, Robbins asked if he had made
a decision about the strike, and on finding he had not asked
him to ‘‘side with the Company’’ as Layman was considered
a good employee. Robbins followed this by saying that to
side with the Union would mean being ‘‘permanently re-
placed with a nonunion worker.’’ Layman then asked for the
clarification if this meant being terminated, and Robbins re-
peated that the result of not coming to work would mean
being ‘‘permanently replaced.’’ Cruz was directly present at
Layman’s home during the course of this conversation, and
Robbins asked to also speak with him. However, Cruz would
not take the telephone, so Robbins was content to just ask
that his remarks be relayed. Before the episode ended Rob-
bins emphasized how they should ‘‘bear in mind’’ that after
midnight Respondent would be a nonunion shop. Robbins
soon called back still seeking an answer about whether he
would have the driver next morning, but Layman did not
have an answer for him.
The next morning Layman did decide to commence on
strike by not reporting for work. At the time Layman had 2
weeks of accrued vacation, with one already scheduled for
late September. He did not receive pay for such accrued va-
cation, nor request it, knowing from Robbins that he would
have to quit first.
18. Mitch Cruz—He was another route driver in Yakima,
and had attended the Union’s strike vote meeting of August
29. Cruz recalled that during this meeting Rogstad had ad-
vised members how they had ‘‘a serious matter’’ under con-
sideration, and that something was said about permanent re-
placements meaning people who would take the jobs of strik-
ers. He had no personal contact with Respondent’s officials
on that date; however, Layman did relay the essence of a
telephone call intended for him at the Layman home from
Robbins that evening. Cruz refused to speak with Robbins,
and went on strike the next day. He was aware that the par-
ties continued in negotiations even after the strike com-
menced.
He had contacts with Respondent after passage of consid-
erable time from the start of the strike. About 2 months later
he telephoned Shirley to ask for a necessary waiver concern-
ing his relicensing as a commercial driver. In the course of
this conversation Shirley stated there were no hard feelings
about the situation and he would be glad to have Cruz back.
Still later, around December 1, Shirley telephoned him to ad-
vise that a driver was quitting, and he would like him to
come back to work. Cruz asked if it would be on a union
or nonunion basis, and when Shirley advised that Respondent
had become nonunion and was operating on that basis Cruz
declined.
19. Robert Young—He was also a Yakima vicinity deliv-
ery driver with a Tuesday through Friday work schedule of
4 10-hour days starting at either 5:30 or 6 a.m. He attended
the Union’s meeting of August 29, both learning of the mid-
night deadline and deciding to join the strike himself. Fol-
lowing this he went into Respondent’s facility to turn in re-
ceipts from the previous day and encountered Robbins there,
who asked to have private discussion with him in the upstairs
driver’s room. According to Young, Robbins stated that Re-
spondent would no longer be a union shop as of midnight.
He said Young could keep his job as a ‘‘nonunion member’’
by stopping at the office of Cummins to pick up a document
which gave the ‘‘do’s and don’t’’ of such employment, add-
ing that Young would be paid a 25-cent-per-hour raise if he
would stay and continue to work.
Young picketed only briefly for 2 days and then around
late September telephoned Cummins to inquire about sick
leave and vacation matters. His question about sick leave
was based on a slight heart attack he had suffered just short-
ly before the strike commenced, and the vacation subject re-
lated to an unscheduled accrual he had at the time. Young
made an appointment to discuss these matters and did so a
couple of days later, however Cummins soon informed him
by telephone that there would be no benefits in either regard.
20. Edward Thomas—He was last actively employed as a
day-shift warehouseman, but was actually on short-term sick
call for Wednesday, August 29. Thomas was notified by a
fellow employee around 10:30 p.m. that date that a vote had
been made for the Union to strike at midnight. The next day
of Thursday, August 30, he was again ill, and called in to
advise a secretary that he could not appear for his scheduled
9 a.m. start time. According to Thomas, he was soon tele-
phoned by Miller for questioning about his sickness and any
doctoring. Miller referred to the strike then in progress, say-
ing he did not want anyone ‘‘riding the fence.’’ Thomas said
he would probably honor the strike (which he did), and was
told by Miller he ‘‘will be permanently replaced’’ for doing
so.
21. Sam Denton—He was last actively employed as one
of the shuttle drivers based in Spokane. His normal run was
to Yakima for pickup and return to Spokane, pulling a dou-
ble trailer in convoy with fellow shuttle driver Chris Tracy.
The overall span of time on this run was approximately 12
hours, from 7 p.m. departure to 6 a.m. return with loaded
trailers.
Denton participated in the group telephone voting of Spo-
kane-area employees (as had Weiler, noted above), and knew
the results of it before leaving on his evening run of August
29. When Denton reached Yakima he saw employees stand-
ing along the front of Respondent’s premises shortly before
midnight, and he spoke briefly to Rogstad who confirmed the
strike was about to start. Denton entered the premises with
his rig, deciding at that point to actually go on strike, and
had a brief conversation with Shirley at the fuel pumps.
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When Denton answered Shirley’s question about whether he
would join the strike that he would, Shirley stated that he
‘‘will be permanently replaced’’ and had 20 minutes to clear
off the premises with his personal belongings. After incon-
sequential brief conversation with Wright, Denton (as well as
Tracy) obtained a ride back to Spokane that night.
In the morning Denton joined the picketing at Respond-
ent’s Spokane location, and later observed the Spokane loads
being brought in by two drivers from the Noel Transportation
division. The following day the two loads again arrived, one
being driven by the Noel Transportation driver familiar to
him, and the other being hauled by an independent trucking
company. The same pattern he had observed on Friday Au-
gust 31, was repeated with the following Tuesday’s loads.
Approximately 2 weeks after the start of the strike, Denton
telephoned Shirley to inquire about his vacation entitlement.
He had 1 week accrued, but unscheduled, at the time. In this
conversation Shirley advised that Denton had already been
replaced and was on a preferential hiring list. Shirley further
advised that in order to obtain vacation pay he would have
to submit a resignation. Denton did in fact do so, ending 8-
1/2 years of employment, and on this basis received his va-
cation pay.
22. Chris Tracy—He was the other shuttle driver in Spo-
kane, and pulling runs in convoy with Denton. He similarly
participated in the voting at Spokane, and from this knew be-
fore leaving for Yakima of the small group’s support for a
potential strike at midnight. The pair of drivers arrived in
Yakima as usual about 11:35 p.m. with Tracy leading. He
pulled into the yard, and by CB radio call to Denton estab-
lished that numerous assembled employees by the gate were
about to go on strike. Tracy then encountered Shirley at the
fuel line, where this official asked if he would work or join
the strike. Tracy answered that he would not cross a picket
line, and to this Shirley stated that other Spokane drivers
were going to work, making Tracy and Denton the only two
Spokane-area drivers intending to go on strike. According to
Tracy, he repeated his intentions and Shirley then gave him
15 minutes to clear out from the premises, stating he
‘‘should consider [himself] permanently replaced’’ for join-
ing the strike. Tracy also recalled that before leaving the
premises he met Wright, who stated to him that because of
the strike Respondent ‘‘will now be a nonunion shop.’’
Tracy testified that after he and Denton traveled back to
Spokane that night, arriving at Respondent’s facility there
around 6 a.m., they found about six other Spokane-area em-
ployees already picketing. Tracy recalled that he observed
loads coming in later that morning, one of them brought by
a Noel Transportation driver familiar to him. As to takeover
and breakdown of the shuttled loads for local delivery on the
first 2 days while Tracy picketed, he did not recognize any
of the drivers newly involved in this function at Spokane.
Tracy had no further contact with officials of Respondent
until the following Tuesday, when he was telephoned by
Robbins wanting him to return uniforms, keys, and all com-
pany property. Tracy advised Robbins that he had already
done so by giving such items to Spokane salesman Frank
Plummer. Tracy had a week of accrued vacation at the time,
which was scheduled to be taken in November. Tracy later
eventually telephoned Shirley to inquire about this benefit,
and when advised how he would have to resign in order to
obtain the vacation pay money, did so.
23. Pat Benesch—He was last actively employed as one
of the local drivers at Spokane. He learned of the strike by
a telephone call to his home from Shirley about 9:15 p.m.,
on the evening of August 29. According to Benesch, Shirley
went into economic details of Respondent’s last contract
offer, and asked if he would continue working. When
Benesch answered that he would honor a picket line, Shirley
said Respondent will be hiring permanent replacements for
anybody not coming back. Shirley added that company em-
ployment would become a nonunion situation because of the
strike.
Benesch went to Respondent’s warehouse at Spokane the
next morning at his usual pre-6 a.m. time. He learned from
a fellow employee that the Union was on strike, and began
picketing for what eventuated as about 1 week’s time.
Benesch testified that he saw the Spokane loads come in late
that Thursday morning around 10 or 11 a.m., but did not rec-
ognize any of the tractor drivers. The various Spokane-cen-
tered delivery routes were set up and departed that day with
management personnel and Spokane-area salesmen as driv-
ers.
On the Saturday immediately following Robbins tele-
phoned Benesch at home. This time Robbins focused on ex-
plaining Respondent’s own insurance package, advising
Benesch that he was considered a valued employee and
wanted him back at work. Benesch protested the call being
made to him directly while on strike, and this seemingly ag-
gravated Robbins who concluded the conversation saying
Benesch would be permanently replaced.
Benesch had accumulated but unscheduled vacation at start
of the strike. He eventually furnished a letter of resignation
in order to receive vacation money, however the amount paid
was less than he claimed because of disagreement over an
earlier absence when his child was born. Benesch’ last con-
tact with Respondent was up in November, when he called
Shirley to inquire about returning. The official simply said
he could list for preferential hiring as one permanently re-
placed, but the chances of employment were ‘‘zero.’’
24. Doug Vantine—He was last actively employed as a
chemical beverage serviceman, installing and repairing coffee
equipment, dishwashers, and chemical systems. He per-
formed this work in the field using a Company-owned van
and as based at Spokane. Vantine also participated in voting
at Spokane, but left that small group meeting knowing only
of a local split being seven to five not to strike. At this point
in time his next scheduled start of work was 8 a.m. the fol-
lowing morning.
According to Vantine he was telephoned late in the
evening of August 29 by Foster, who said that the strike was
scheduled for that night. The supervisor inquired whether
Vantine would tell by midnight if he would honor the strike,
stating that to do so would mean he would be terminated.
Vantine answered that he would let Foster know later, and
he did call back to say he would work the next day. By
morning Vantine determined that he would not go to work,
and left an early telephone message for Foster to that effect.
He then proceeded to picket for 3 or 4 days with other Spo-
kane-area employees, during which time he observed his
service truck being loaded by a salesman or another Spokane
chemical beverage specialist.
Vantine testified that Foster telephoned him again early in
the first full week after the strike to ask if he would return
929NOEL CORP.
to work. Vantine’s answer to Foster was that if Respondent
had permanently replaced him the question seemed odd, be-
cause this intimating that picketers ‘‘still have our jobs’’
conflicted with earlier saying he was already terminated. He
recalled that Foster did, however, add that should he return
to work it would be under Respondent’s contract offer in-
volving provisions for the Company’s medical insurance and
pension plans.
At the time of the strike Vantine had certain accumulated,
scheduled vacation time, and learned in a conversation with
Foster that he would need a withdrawal card from the Union
and a letter of resignation in order to obtain vacation pay.
As it eventuated Vantine did not pursue this subject.
25. John Blake—At time of the strike he was as a swing-
shift supervisor within the bargaining unit, and ordinarily
scheduled at work from 2 to 10:30 p.m. at Respondent’s
main Yakima warehouse. Blake did not attend the Union’s
strike vote meeting of August 29, and only became aware a
strike would take place from hearsay information passing
around the facility that night. He testified that around 10:30
p.m. Robbins spoke to him in the warehouse, stating that at
midnight Respondent would become nonunion and he could
guarantee Blake the day-shift job he had always wanted if
he would work. Blake declined the proposal, and became one
of the strikers by not thereafter going back to work. Before
leaving the premises that night, Blake overheard Supervisor
Miller making the commonly used remark about permanent
replacement in a telephone conversation with employee
Frank Fernandez.
26. Bruce Angeloff—He was last employed as a chemical
and beverage bench technician at Respondent’s main Yakima
location, for which his job was the reconditioning of equip-
ment that Respondent provided to customers. Angeloff ordi-
narily worked from 8 a.m. to 5 p.m., having Foster as his
immediate superior. Angeloff testified that he had been to the
Union’s strike vote meeting of August 29, where an esti-
mated 30 to 35 members were present. He stayed for the en-
tire time, recalling that Rogstad referred to their deliberations
as ‘‘a very serious matter’’ and that the concept of strikers
being permanently replaced was discussed.
About 10 p.m. on the evening of August 29, Foster tele-
phoned him to inquire of his intentions about working.
Angeloff said he would go on strike if that was what the
Union decided to do, and testified that to this Foster stated
if he did not show up at his usual 8 a.m. starting time the
next day he would be permanently replaced and never work
for Respondent again.
27. Greg Bolin—He was last actively employed as a day-
shift forklift maintenance and utility employee, having Stump
as his supervisor. He attended the Union’s strike vote meet-
ing of August 29, recalling that Rogstad referred to the situa-
tion as ‘‘a very serious matter’’ and that strikers could be
permanently replaced. He did not believe that Company ad-
vertising for applicants was discussed, and was not pre-
viously aware that permanent replacement of strikers could
occur. He recalled that the membership’s decision was to go
on strike at midnight.
Late that evening Robbins telephoned Bolin to ask wheth-
er he would be at work the next morning. According to
Bolin he expressed uncertainty about this, causing Robbins
to say that by not showing up he ‘‘would be out of a job.’’
Bolin then went down to the premises just before midnight
with 20 or 30 other employees to help set up picketing in
his capacity as a committeeman. During that first night he
recalled there was conversation among the several dozen
strikers about telephone calls they had received from various
managers, and what Robbins had said inside at the night
crew meeting. He then observed Wright, Shirley, and
Englund come out to the picket line around 1:30 a.m. and
speak with various strikers; however, Bolin himself could not
hear what was being said.
28. Mike Mullinex—He was last actively employed as a
Yakima-area delivery driver with Thursdays as his routine
day off. He had not attended the Union’s strike vote meeting
on August 29, and August 30 was a scheduled day off for
him. A coworker notified him at midevening of August 29
that the Union had set a strike for midnight. He testified that
Robbins later telephoned him at home around 10 p.m. and
stated that Respondent would become a nonunion shop after
midnight, adding that he had work for Mullinex in the morn-
ing at a $11.80 hourly rate under the Company’s health and
pension plans.
He went to the picket line that night around 11:30 p.m.
and stayed until 5 a.m. Mullinex testified to telling fellow
picketers of Robbins’ call and that there was cross talk about
similar calls some of them had also received. Soon after ar-
riving back from picketing Shirley telephoned Mullinex
around 6 a.m. at home, asking what he was going to do and
adding that Robbin’s telephone offer to him was a ‘‘one shot
deal.’’ Mullinex testified that he actually formed the inten-
tion to go on strike by midevening of August 29. Accord-
ingly, he advised Shirley that he would not be coming into
work, and since then has had no further contact from Re-
spondent nor offered to go back.
29. Tim Alderman—He was last actively employed as head
receiving clerk at Respondent’s warehouse, working on a day
shift of 7:30 a.m. to 4 p.m. He was at the Union’s strike vote
meeting of August 29, and knew from this of plans for that
midnight. He left home around 10:45 p.m. on the evening of
August 29 and went to Respondent’s premises, where he met
Miller at the warehouse dock around 11:30 p.m. The two of
them conversed briefly, with Miller saying he had attempted
to reach Alderman by telephone earlier that evening. Accord-
ing to Alderman, Miller told him that had his attempt been
successful he would have advised that employees not show-
ing up for work would be permanently replaced. Alderman
then proceeded through the plant for the purpose of urging
employees to join the strike and generally support them in
the process. While doing so he encountered Robbins, who
said he should leave the premises. Although he told Robbins
he was only there for coffee and to pick up sweatshirts, he
realized that Robbins knew of his true purpose. Alderman
had accrued vacation time as of August 29 with at least 1
week of it scheduled for December; however, he has had no
further contact with Respondent knowing he must sign a
‘‘waiver’’ of employment to receive this money.
30. Gerald Schwindt—He was last actively employed as a
floating relief warehouseman, who worked varying hours of
the day or swing shift. His particular schedule for August 29
was 10:30 a.m. to 7 p.m., with 2 hours later added on as
overtime. He had voted on the strike question by telephone,
and was later told by a committeeman that a strike was
scheduled that night. According to Schwindt he encountered
Wright as he was leaving work, who told him the shop
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘may be’’ going nonunion if the strike commenced.
Schwindt then went home, knowing at the time that he was
again scheduled to start work at 10:30 a.m. on Thursday.
Early the next morning he went to the picket line to com-
mence being on strike, and there had discussion with other
picketers about calls they had received from members of
management the previous evening. He has had no contact
with Respondent since that time, except to inquire about his
accrued 6 days of vacation for which he has taken no action
on learning it was necessary to resign.
31. Frank Fernandez—He was last actively employed as
a warehouseman on swing shift, and normally scheduled to
work from 2:30 to 11 p.m. On the date of Wednesday, Au-
gust 29, his special schedule was 8 a.m. to 5 p.m., which he
worked and then proceeded directly to the union meeting at
which a strike vote was taken. He returned home around
10:30 p.m. where Miller telephoned. According to
Fernandez, Miller said that if he did not report to work the
following day on his regular swing shift he would be perma-
nently replaced. Fernandez asked if this only applied to him,
and Miller ended the conversation saying that everyone was
being told the same thing. Fernandez telephoned back to Mil-
ler in a few moments, and asked if he was going to lose his
job. He testified that Miller answered by saying he would be
permanently replaced, which was what Miller had been told
to tell employees generally.
Fernandez did not report for work the following day, nor
has he since had any contact with Respondent regarding em-
ployment. He had accrued vacation of 2 weeks scheduled to
be taken in late October, but has neither been paid for it nor
inquired about this benefit because of having been told at a
union meeting that he must resign in order to obtain it.
32. Carl Keeler—He was last actively employed as a de-
livery driver based at Wenatchee. He had learned from a co-
worker during the evening of August 29, that the Union
planned a strike based on the vote of its membership. Ac-
cording to Keeler, he was telephoned around 11:30 p.m. that
night by Shirley, who told him that other truckdrivers were
not planning to honor the strike and he wanted to know of
Keeler’s intentions. Keeler testified to telling Shirley that he
himself would go on strike, and recalled that on this Shirley
said he would ‘‘be permanently replaced at that time.’’ In the
process Shirley tried to talk him out of going on strike, de-
scribing that if he continued to work it would mean better
pay and benefits. Following this Shirley again asked if he
would honor the strike, to which Keeler gave the same an-
swer. Keeler recalled Shirley then saying if he was not out
for his trailer the next morning he ‘‘would lose [his] job.’’
Keeler’s usual trailer pickup time for his delivery route
was 4:30 to 5 a.m. On the morning of August 30 he went
instead to the home of fellow Wenatchee delivery driver Don
Reed, getting there around 7 a.m. While in the Reed home
District Sales Manager Russ Teeples telephoned, and after
speaking with Reed then spoke with Keeler. The conversa-
tion was very brief with Teeples assertedly saying that if
loads, as then running late, were not picked up the drivers
would be replaced. Following this Englund called to the
Reed home around 9 or 10 a.m., also first speaking with
Reed and then with Keeler. Englund referred to them as ex-
cellent workers whom he did not want to lose, and he ex-
plained the Company’s pending contract offer. By this time
Don Summers, another Wenatchee-area driver, was at the
Reed home, and he too spoke by telephone with Englund.
Following this Keeler was present while Reed telephoned
Rogstad seeking information on whether Wenatchee drivers
were the only persons on strike as they had been told by
company officials. Keeler then left the Reed home around
10:30 a.m. and went to the Wenatchee truckstop where
pickups were made. At approximately 11:30 a.m. two shuttle
drivers arrived with the four trailers used for route comple-
tion in that area. Keeler recognized one of them as affiliated
with company operations, but was not familiar with the other
driver. He left that area around noon, while arrival details of
the loads were still unsettled. On August 31 Keeler, accom-
panied by Reed, traveled to Respondent’s premises in Yak-
ima and picketed there for an afternoon. He has had no fur-
ther contact with Respondent’s officials since then, nor has
he offered to return to work. At time of the strike Keeler had
accumulated vacation scheduled to be taken in late October,
but has not been paid for this benefit.
33. Don Reed—He was originally a resident of the Port-
land, Oregon vicinity, but at time of the strike actively em-
ployed with Respondent as a local delivery driver for its
Wenatchee customers. Prior to the strike Reed had been a
member of the Union’s bargaining committee, and recalled
a union meeting in Yakima on Saturday, August 25, at which
the status of negotiations was discussed. In the course of this
Rogstad stated, as he had done at prior meetings, that perma-
nent replacement of strikers might occur and he attempted to
explain the applicable law on the subject about which there
was ‘‘pretty good discussion’’ (noted above). Reed also testi-
fied that Keeler and Summers had verbally committed to him
they would support the strike, and that when he returned
home from the meeting of August 25 Keeler and Summers
were waiting at his home. According to Reed the Wenatchee-
area drivers did not specifically vote on the last contract
offer the following Saturday, and he himself learned in early
evening by telephone from Rogstad of the final strike vote
as taken on August 29.
Reed testified that Shirley telephoned him about midnight
of August 29 to ask if he would continue to work, saying
that the employees at Wenatchee would be the only out-of-
town drivers not to do so. Reed answered that he would go
with the Union, and the conversation ended. Reed did not go
to work the next day, recalling that Keeler and Summers
came early to his house following which local salesman
Wayne Schatz and Englund telephoned. Reed did not recall
Russ Teeples calling, and testified that Englund’s call to him,
an attempted coaxing back to work, occurred after both
Keeler and Summers had left. Reed recalled that much dis-
cussion in this conversation with Englund covered the Com-
pany’s proposed new medical insurance plan, and while
some comment about permanently replacing was mentioned
he cannot remember any particular manner of wording.
After approximately 2 months of looking for work while
still in strike status, Reed was contacted by Shirley and of-
fered a driver job at Portland effective November 1 com-
parable to the one he had been performing in Wenatchee.
Reed accepted this offer, including a restoration of his se-
niority, and relocated to Portland immediately.
34. Don Summers—He was last actively employed as one
of the local delivery drivers at Wenatchee. He recalled voting
on the Employer’s last offer by telephone on August 29, and
931NOEL CORP.
during the wee hours of that night learned from Reed that
members of the Union had voted to strike. He then tele-
phoned to Shirley asking for status information. At this 3:30
a.m. point in this time Shirley said drivers who did not come
back ‘‘could be possibly replaced,’’ and that this policy ap-
plied to everybody. When Shirley asked if he would work
that day Summers said he would have to think more about
the situation. He then went to Reed’s home at around 5 a.m.,
and stayed there all morning after dropping needed business
keys at the truckstop. In the course of time Englund called,
and the three drivers present, including Keeler, talked to him
in turn at around 8:30 or 9 a.m. Summers recalled that about
the same conversation ensued as had occurred with Shirley,
by Englund saying that striking employees ‘‘could be re-
placed’’ if they went out like the others. Englund did some
coaxing of them in an attempt to have them work, but in the
end simply said good luck and ended the conversation.
Summers equivocated about his strike status over the next
2 weeks. He testified that after a mediation meeting the
Union sent a letter to members saying Respondent was prob-
ably going nonunion and ‘‘our jobs would be replaced.’’
Shortly after this he contacted Shirley to ask about returning
to work, and accepted an available route. In connection with
this return to work Shirley also arranged for him to obtain
a week of vacation pay against the two which he had accrued
at the time.
35(a) Elvira Loranz—She is the wife of employee Matt
Loranz, and was acquainted with Supervisor Miller. She re-
called receiving a telephone call at home from Miller around
11:40 p.m. on August 29, asking for her husband. When she
advised he was not there, Miller stated that Respondent
would be a nonunion shop as of midnight, and requested that
she relay this information to her husband. That conversation
ended abruptly; however, Elvira Loranz’ husband soon called
her and she informed him of Miller’s remarks.
35(b) Matt Loranz—He was last actively employed as
day-shift freezer stocker, ordinarily working scheduled hours
of 5 a.m. to 1:30 p.m. He was a member of the Union’s bar-
gaining committee, and attended the strike vote meeting of
August 29. In the course of this Rogstad mentioned the pos-
sibility of permanent replacements for strikers, and com-
mented about ‘‘a preferential hiring list.’’
Loranz learned from his wife on telephoning around 11:45
p.m. on August 29 of a contact from Miller, and what this
official had said. Later that night while at the picket line,
Englund, Shirley, and Wright had appeared outside the plant
around 3 to 3:30 a.m. and mingled among various striking
employees. Loranz testified that he heard ‘‘bits and pieces’’
of certain conversations, including one with Wright talking
to striking night crew employees and saying that the Re-
spondent was now nonunion. When morning came Loranz
saw five or six delivery trucks go out from the premises with
substitute drivers Chuck Baladez, Kelly Phillips, a sales re-
lief person, an employee of the produce department, and two
employees from Respondent’s Pepsi-Cola division wearing
distinctive shirts.
36. Monte Berghoff—He was last actively employed as a
Yakima-area relief driver with a varying schedule of hours.
He attended the Union’s strike vote meeting on August 29,
recalling that it had already started when he arrived.
Berghoff testified that principal points of the meeting were
written out on paper mounted at the front, and that these
points included the subject of permanently replacing strikers.
He also recalled Rogstad mentioning this subject in his re-
marks, and believed he reminded members that they were
voting on ‘‘a very serious matter.’’ Berghoff had been em-
ployed for about 3-1/2 years at that point.
At around 10:30 p.m. on August 29, Berghoff was tele-
phoned at his home by Shirley. He testified that this super-
visor said Respondent would try to replace us if employees
went on strike, which Berghoff had told him he would do.
After the brief conversation with Shirley, he went to the
picket line and stayed for over 2 hours that night. Berghoff
had a week of accrued vacation at the time, which was
scheduled to be taken in early November. He testified that
approximately a month after the strike began he telephoned
Shirley to inquire on this subject. Berghoff recalled being
told that he must either resign or wait for the end of the
strike to get his vacation pay.
37. Roger Layman—He had been employed 4 months with
Respondent, last actively working as a Yakima-area relief
driver. His next scheduled shift following August 29, would
have commenced early the next morning. After attending the
Union’s strike vote meeting Layman was at his home, and
received a telephone call from Robbins around 9:30 p.m.
Layman had attended union meetings prior to the one of Au-
gust 29, and recalled that in one or more of these Rogstad
discussed the subject of permanent replacement for strikers.
He testified that Robbins inquired if he knew a strike had
been authorized, and said it was ‘‘decisionmaking time’’ for
him. According to Layman, Robbins continued by saying
that as of midnight the Union would be out and Respondent
would operate as a nonunion company. Layman also recalled
Robbins inviting him to continue working at a new base pay
of $11.90 per hour with good company benefits. Layman un-
derstood at the time that $11.90 per hour was the top wage
rate of Respondent’s pending, and largely agreed-on, contract
offer. Layman thanked Robbins for the offer and the con-
versation ended. He then went to the picket line and spent
about 2 or 3 hours there that night. Layman did not report
for work the following day or thereafter, and has had no fur-
ther contacts material to the case with any member of Re-
spondent’s management.
38. Mark Schooley—He was last actively employed as a
Yakima delivery driver. He was on vacation as of August 29,
and next scheduled to resume work on Tuesday, September
4. He attended the strike vote meeting on August 29, recall-
ing in the course of it that Rogstad stated Respondent could
replace employees if they struck. As a final summary on the
status of negotiations Rogstad said he thought Roger Noel
would agree to perhaps another dime contribution to the pen-
sion plan. Schooley also testified that Rogstad said employ-
ees were facing ‘‘a very serious matter’’ for which their de-
cision would involve a ‘‘risk’’ to them.
At around 10 p.m. on August 29 Schooley was telephoned
by Robbins, who inquired if he knew of the strike vote.
Schooley immediately answered he was ‘‘going to stick with
the guys,’’ meaning commence the strike as scheduled. Ac-
cording to Schooley, Robbins persisted by saying that Re-
spondent would now be nonunion, and that if Schooley did
not show up for work when scheduled he would be perma-
nently replaced. Schooley recalled that Robbins reminded
him that $11.65 was good hourly pay in the Yakima area,
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Schooley said in conclusion to the overall remarks that
he would consider what to do.
Schooley did in fact join the strike, and about a month
later contacted Shirley to ask for a skills test waiver in order
to get a combination driver’s license. In the course of light
conversation between the two, Schooley indicated a desire to
have his job back. The vacation he took in late August left
him with an additional week, however this has not been paid
to him nor has he requested it from Respondent.
39. Randy Jacobson—He was last actively employed as a
day-shift mechanic. He did not know of the Union’s strike
plans until telephoned on the morning of August 30 by his
immediate supervisor. Stump said the strike was on, and in-
quired if he was available to drive a truck. Jacobson held a
combination driver’s license at the time. He told Stump that
he would need a day to think about this, and then spent some
time merely observing around the strike scene. He did not
work again on Friday, August 31, but soon had a significant
conversation about that date with Stump. In this the idea de-
veloped that Jacobson would quit his employment at Re-
spondent, and immediately start work as a mechanic with
Noel Transportation division of the enterprise. After formal
transfer arrangements Jacobson commenced such a work sta-
tus on September 4, without any change in wages from be-
fore or effect on his vacation eligibility.
40. Barry Ross—He was last actively employed as a re-
ceiving clerk at Respondent’s warehouse, working on a day
shift of 6 a.m. to 2:30 p.m. He was at the Union’s strike vote
meeting of August 29 and knew from this of plans for that
midnight. Ross testified that during the meeting Rogstad
mentioned the permanent replacing of employees. Ross re-
called a mutual feeling among members at the meeting, and
on his part, that they would not lose their jobs for going on
strike. Before the vote Rogstad had also emphasized that the
decision on Respondent’s last contract offer was not ‘‘a
game,’’ and members should give the subject careful
thought.
Ross testified that around 10:30 that day he was tele-
phoned by Miller, a person he described as his personal
friend, who stated he had a number of things to say. The first
of these was that if Ross did not work the next normal shift
he would be permanently replaced, and, second, that as of
midnight Respondent would be a nonunion shop. The con-
versation included expressions of regret between the two par-
ticipants; however after it ended Ross did commence being
on strike and went to the picket line that first night. He re-
called discussion among the strikers about the telephoning
that was made to many of them that evening, and further talk
of the meeting Robbins had held within the plant. Ross has
had no further contact with any official of Respondent nor
requested a return to his job.
41(a) Vicki Barczyszyn—She is the wife of employee
Roman Barczyszyn. She recalled receiving a telephone call
at home from Miller around 11:15 p.m. on August 29, asking
for her husband. When she advised he was not there, Miller
stated his message was that if Roman did not report for work
the next morning he will be permanently replaced. Miller re-
quested that she relay this information to her husband.
Roman Barczyszyn returned home that night about 2:30 or
3 a.m., and she informed him of Miller’s remarks.
41(b) Roman Barczyszyn—He was last actively employed
as an order picker for Alaska accounts, ordinarily working a
scheduled day shift of 6 a.m. to 4:30 p.m. He was a member
of the Union’s bargaining committee, and present at the
strike vote meeting of August 29. He recalled that during this
meeting Rogstad said Respondent ‘‘could’’ permanently re-
place strikers, and if they took such action this might mean
they would lose their jobs. In this same connection Rogstad
emphasized they were embarking on a serious decision in re-
gard to the strike vote. Barczyszyn does not, in contrast to
Reed’s testimony, recall this subject being discussed by
Rogstad at earlier meetings of the Union’s bargaining com-
mittee, or that any discussion occurred at the meeting on Au-
gust 29 about Respondent placing help wanted advertise-
ments in local newspapers. Once he learned of the member-
ship vote results, he had the intention of going on strike
along with others who chose that course of action.
Barczyszyn testified that he returned home late that night,
and was told by his wife of the message from Miller. He did
not report for work the next day and has continued on strike
against Respondent since that time. He has had no direct
contact with any officials of Respondent, has not had a job
offer from it nor made any request to return to work. He had
vacation scheduled at the time of the strike for Thanksgiving
week, but has received no pay for it nor requested this be-
cause of having heard from other members that he would
have to resign to obtain such payment.
42(a) Mardi Foster—She is the wife of employee Chuck
Foster. She recalled receiving a telephone call at home from
Robbins around 11 p.m. on August 29 asking if her husband
was at a union meeting and whether she would give him a
message. She answered affirmatively to both questions, after
which Robbins stated that if he did not show up for his next
scheduled work he would be permanently replaced. Mardi
Foster testified that to this she simply said okay and the con-
versation terminated. About 4:30 a.m. that night her husband
telephoned home, and she informed him of Robbins’ mes-
sage.
42(b) Chuck Foster—He was last actively employed as a
delivery driver based out of Yakima. He was also a member
of the Union’s bargaining committee for these negotiations,
and recalled attending a ‘‘last ditch effort’’ in which the par-
ties met at Respondent’s sales conference room late in the
afternoon of August 29. Foster testified that as this meeting
ended inconclusively certain members of Respondent’s bar-
gaining team stated the Company ‘‘would try to do whatever
they had to do to continue to operate.’’ He was also aware
of talk at the time about newspaper advertisements of the
Company for work applications, but had not personally seen
such ads.
Foster testified that he then attended the Union’s strike
vote meeting of August 29, and while not recalling that
Rogstad expressly talked about permanent replacements be-
lieved that such circumstances were ‘‘already known’’ al-
ready the members. The membership vote was completed by
around 7:30 or 8 p.m. that evening, and from this point on
Foster was resolved to go on strike as he did continuously
from that time.
He recalled telephoning his wife around 4:30 a.m. on the
first night of the strike, and learning from her the substance
of Robbins’ earlier message. Consistent with his strike inten-
tions, he did not report for work the next morning and pick-
eted regularly during the first week of the strike. In the
933NOEL CORP.
course this he observed the same salesman named by Loranz
drive out for his route with the equipment he ordinarily used.
43. Rick Stump—He is the son of Pat Stump, and was last
actively employed as a yard driver on the day shift. His reg-
ularly scheduled hours were 9 a.m. to 5:30 p.m., performing
the same type of equipment moving as done by Stiltner on
nights. Rick Stump possessed a combination driver’s license,
and while occasionally making a run to nearby Selah, Wash-
ington did not otherwise do over-the-road driving. He testi-
fied that his work of repositioning trailers around Respond-
ent’s facility involved the same driving skills as would be
used for actual highway runs.
Stump testified that on the evening of August 29 fellow
employee Mitch Cruz stopped by his home around 10:45
p.m. to tell him of the strike vote. He then went promptly
to Respondent’s premises, and joined the strike action being
engaged in by others. According to Stump, Wright came out
from the facility around 1:30 a.m. and engaged various pick-
eters in conversation. In the course of this Stump was closely
present to hear Wright say that certain ones on vacation at
the time would be permanently replaced if they did not re-
turn to work the following week. Other than this experience
he also recalled other employees were talking among them-
selves about the evening telephone calls many had received
and about the inside meeting conducted earlier that night by
Robbins. Stump has had no significant contact with company
officials since going on strike. He testified that in the course
of this Miller once jokingly asked if he would come back to
work, to which he inconclusively replied that he did not
know. Stump had accrued vacation scheduled for late Octo-
ber, which has not been paid to him nor has he requested
it because other strikers were not doing so.
44(a) Chet Cooney—He was last actively employed as a
freezer warehouseman on a swing shift, with ordinarily
scheduled hours of 2:30 to 11 p.m. He was on vacation dur-
ing the week with Wednesday, August 29, but attended the
Union’s strike vote meeting that evening and learned of the
plans for midnight. Cooney did not recall Rogstad making
any statement about permanent replacements during this
meeting or at any prior ones, but does recall reference to the
membership’s consideration of Respondent’s last contract
offer as ‘‘a very serious matter.’’ After the strike vote to re-
ject this offer was tallied Cooney’s intention was to go on
strike, and in fact he appeared at the picket line that evening
around 11:30. He was still participating on the picket line by
morning of the first day of the strike, and recalled seeing
about a dozen trucks go out with the persons driving them
who he recognized as sales or inside employees of Respond-
ent.
Cooney testified that around 8 or 9 o’clock on the evening
of August 29 a telephone call came at his home, which he
answered on the speaker phone with his wife present to hear
the other voice. The caller was Miller, who said he was to
tell Cooney that if he did not return to work when due he
will be permanently replaced. In accordance with his strike
intentions Cooney did not report for work on Monday (Labor
Day), September 3, as next scheduled from his vacation. He
has had no further contact with any member of Respondent’s
management.
44(b) Karen Cooney—She is the wife of Chet Cooney,
and was aware of a planned midnight strike at Respondent
after he returned to their home from the Union’s meeting on
the evening of August 29. In further brief testimony she cor-
roborated her husband, as to what was said by Miller when
his telephone call was answered on their speaker phone.
45. Doug Shelton—He was currently employed as one of
Respondent’s Walla Walla, Washington delivery drivers. He
had formerly been a driver for the Pepsi-Cola division there.
He testified that Respondent’s Walla Walla area salesman
Tom Clark contacted him on September 1 to inquire if he
would switch employers, and take a delivery route previously
held by striking employee Mark Lambert. At Clark’s sugges-
tion Shelton telephoned Shirley, and ascertained that the
switch would result in a 65-cent-per-hour pay increase plus
retention of his seniority and company pension plan. A final
step by Shelton was to obtain a waiver of 2 weeks’ advance
notice from Pepsi-Cola Supervisor Stan Taylor, and with
these arrangements in place his first day on the job as Re-
spondent’s employee was Tuesday, September 4. On that
date Respondent’s other nonstriking Walla Walla area deliv-
ery driver actually took Lambert’s former route, which was
the heavier of the two. Thus on his first day Shelton actually
drove the lighter route for easier orientation in this new
work. He also immediately procured a skill waiver certifi-
cation from Respondent’s fleet manager, James Hand. This
resulted in Shelton’s class A licensing, as needed to drive the
trailer rigs used in Respondent’s business.
46. Mark Lambert—He had been employed by Respondent
for more than 4 years, last actively working as a local deliv-
ery driver in Walla Walla. His duties involved using a pick-
up point at the Pepsi-Cola division bottling facility, where he
was acquainted with Shelton. He had been notified of Re-
spondent’s last contract offer by Rogstad, and cast a tele-
phone vote on the contract rejection and strike authorization
balloting being done during the afternoon of August 29. At
around 10 p.m. that evening a person identified only as Tom
telephoned him from the Union to advise that the member-
ship vote was to reject Respondent’s offer and commence a
strike. At 10:30 p.m. Robbins then telephoned to his home
saying he understood the employees would go on strike.
Lambert answered affirmatively, to which Robbins said ev-
eryone that did go on strike would be permanently replaced.
He prodded Lambert to consider whether a job paying
$11.90 per hour with benefits could otherwise be obtained in
the Walla Walla vicinity. Lambert further recalled that Rob-
bins said if he changed his mind a contact should be made
to Miller, and if not Respondent would be a nonunion shop
as of midnight and he would have to submit a letter to re-
sume working.
According to Lambert, Englund next telephoned at 3 a.m.
to ask if Lambert was willing to talk further about the situa-
tion. When Lambert agreed to do so, Englund asked if he
was aware that he would be permanently replaced and knew
that the Union would not exist anymore at the Respondent.
Englund continued by saying that at midnight only a few in-
dividuals had gone on strike, and Respondent would be able
to get its loads done. He then went over the contract bargain-
ing issues and emphasized Respondent’s pension benefits in-
cluding a Section 401K pension plan, alluding to an inter-
view for a sales position that Lambert was scheduled to have
the following week. Englund urged Lambert to think over the
situation.
At 5:30 a.m. that morning Lambert was called by Shirley,
who told him that he should rethink his decision because 32
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of 36 drivers were working and only a few people on strike
from the night shift. Shirley advised that the other Walla
Walla driver would not go on strike, and when Lambert in-
quired about relief drivers Weiler and Layman, Shirley an-
swered that neither of them would honor the strike. Shirley
urged him to consider the situation and the potential 25-cent-
per-hour raise with fully paid insurance and no union dues.
After doing so Lambert telephoned back to Shirley saying
that he would continue to work.
When he arrived at starting time on August 30 his trailer
was present at Walla Walla, and he ran the complete route
that day. On returning home from work his wife had a list
of coworkers who had called him, including numerous ones
that Shirley had named as not honoring the strike. When he
contacted them, they told him the strike was on and that in
fact they were honoring it. At that point Lambert made a de-
cision to join the strike as of August 31. He testified that at
5:30 a.m. that next morning Shirley telephoned him to ask
why he had decided to go on strike. Lambert’s answer was
that Shirley had lied to him, and he asserted from this that
Shirley said he could get someone to replace Lambert that
day and had all weekend to make a permanent replacement
of him. During this conversation Shirley mentioned that
Englund had spoken highly of him, and he alluded to the im-
minent sales position interview he was soon to have with Bill
Combs, sales manager for that district. According to Lam-
bert, Shirley’s remark was that he would not get that inter-
view if he did not return to work.
47. Jerry Cooper—He was last actively employed as a
night-shift picker, with ordinarily scheduled hours of 6:30
p.m. to 5 a.m. He was on vacation during the week with
Wednesday, August 29, and due back to work on Monday,
September 3. He attended the Union’s strike vote meeting of
August 29, where he heard Rogstad say that Respondent
could permanently replace strikers. He did not otherwise hear
discussion of the consequences of strike action, or that Re-
spondent was advertising for replacements. Cooper went to
the picket line at around 11:30 p.m. that night, where other
members of the Union were talking about telephone con-
versations they had gotten that evening. Cooper himself was
aware of this because he had telephoned various fellow em-
ployees from his home that evening before going to the pick-
et line. He recalled that there was also talk of the in-plant
meeting held by Robbins. Cooper stayed at the picket line
that night until about 4 a.m. During this time span he re-
called that both Wright and Shirley came out from the facil-
ity, and spoke with various strikers who were present. Coo-
per testified that Wright made a specific remark to him that
he would be permanently replaced if he did not show up for
work on Monday after his vacation. Cooper also recalled
hearing Wright tell employee Tom Hamel that he must work
the next night or be permanently replaced. Cooper answered
Wright by saying that he would not work in a nonunion
shop, to which Wright said nothing. Cooper had heard from
other employees that Respondent was becoming a nonunion
shop.
On the morning of August 31, Cooper was at the picket
line, and as Wright was driving out he conversed briefly with
Cooper. Wright told him he had until Monday to come back
and that he would get full vacation pay for the week off.
Cooper testified that he again responded he would not work
in a nonunion shop. He has had no further contact with any
official of Respondent since that time, nor requested his job
back.
48. Tom Hamel—He was last employed as a picker and
loader on the night shift, with ordinarily scheduled hours of
6:30 p.m. to 5 a.m. August 29 was a night off, for which
he was next scheduled to work on August 30. He was
present at the Union’s strike vote meeting on August 29, and
stayed through the vote and tally. He does not recall Rogstad
saying anything about permanent replacements, but only that
members would have a ‘‘fight on their hands.’’ Hamel de-
cided for himself after the strike vote was taken that he
would go on strike, but actually believed at the time that the
dispute would be settled before it came to actual strike ac-
tion.
He went to the picket line that first night and stayed 5 or
6 hours, during which other members discussed the telephone
calls they had received that night and the Robbins’ speech.
At about 1:30 a.m. Wright emerged from the facility where
several employees were present and spoke with them. Wright
said that as of midnight Respondent was a nonunion shop,
and he should appear for work that next evening or be per-
manently replaced. Hamel recalls Wright saying generally the
same things to Cooper. He has had no contact with any offi-
cial of Respondent since that time, and has neither been paid
for, nor applied to be paid for, his late October scheduled va-
cation.
49. Raul Murillo—He was last actively employed as a
warehouseman working a day shift of 8 a.m. to 4:30 p.m. He
was on the Union’s bargaining committee and recalled that
in the course of various meetings Rogstad had talked about
the chances of employees being permanently replaced.
Murillo knew ahead of time about this concept because of
having been in unions all of his adult life, and knowing it
to be an option of employers in strike situations. Shortly
after August 29 he saw Respondent’s advertisements for re-
placement workers. He attended the Union’s strike vote
meeting on August 29, and recalled Rogstad saying that Re-
spondent ‘‘could’’ permanently replace strikers, explaining
that there was a chance of this if the strike were to occur.
Murillo testified further that Rogstad stated in this event
members would have to get their jobs back by asking the
Company for them and getting out of the Union. According
to Murillo this was said to him in a private side conversation
with Rogstad. From the time of the vote onward, Murillo
considered himself on strike and that has been his intent at
all times thereafter. He has never requested a return to duty.
Murillo had gone to the picket line at around 10 p.m. on
August 29, and stayed for about 12 hours. During this period
there was various discussion among employees about the
telephone calls they had received at their homes and the talk
by Robbins in the plant to night-shift workers. Later in the
night time hours Wright, Englund, and Shirley came out
from the warehouse and talked with the various employees
present. He recalls Wright saying that the parties should be
able to work the situation out, but if they didn’t ‘‘you guys’’
will be permanently replaced. Other than this Wright said
that things were going fine for the Company, and he repeated
this the next morning saying that operations were getting by.
50. Donald (Dave) Donovan—He was last actively em-
ployed as the only local delivery driver for Respondent in the
Moses Lake, Washington vicinity. He was not aware of the
Union’s planned strike action on August 29, but shortly after
935NOEL CORP.
midnight was telephoned by Shirley who so informed him.
Shirley asked if he would show up for work, to which Dono-
van answered he would not and the conversation ended es-
sentially at that point.
Later in the night Local Sales Representative J. P. Jones
contacted Donovan to ask if he would call Englund. Dono-
van did so around 5:30 a.m., and learned from Englund that
he wanted him back at work since his route, two at
Wenatchee and two at Spokane were not running. According
to Englund these were the only 3 areas out of 25 that were
not being worked. Donovan asked him for time to consider
the situation, and one-half hour later called back to say that
he would work. On August 30 he picked up his trailer after
it was about one-half hour late in arriving and driven by a
person he did not know. The Moses Lake trailer drop was
usually made either by Tracy or Denton, the two Spokane
shuttle drivers. By 10 a.m. that morning Donovan was in the
town of Ephrata, from which he telephoned Shirley. Dono-
van advised that he had decided to take the truck back to
Moses Lake and park it, to which Shirley simply acknowl-
edged this advice. Donovan started to return, but Jones
stopped him and asked that he finish the route.
He then also went to work on August 31, and at Jones’
request telephoned Noel about noontime. Noel advised that
most routes were running but some were late, and that he
was still talking to the Union with matters open between the
parties. Donovan telephoned again about 1 p.m. to Respond-
ent, and Robbins happened to take the call. Donovan testified
that he told Robbins he would finish the day out, but not
work after that Friday. He recalled that to this Robbins first
stated he wanted a letter of resignation, but then com-
prehended Donovan was simply going back on strike. At 5
p.m. that afternoon he telephoned Shirley to report in his
mileage as usual, and was told by Shirley that his route job
would ‘‘never be replaced’’ and he would always have a job
with Respondent. He has had no further contact with officials
since that time nor asked for his job back.
J. Summary Evaluation of the General Counsel’s
Selected Witnesses
The numerous witnesses whose testimony is summarized
above comprised General Counsel’s main body of oral evi-
dence regarding primary issues of the case. In general these
witnesses testified with a favorable demeanor and appearance
of candor. However an impression of permeating suggest-
ibility also arises, particularly as to collective misapprehen-
sion among many strikers respecting realities of an employ-
ment relationship and the interpretation of inartfully phrased
utterances made by various agents of Respondent during the
especially eventful days of late August.
Preliminarily, I have determined to limit an accord of
credibility as to witnesses Martin, Glass, Cecil Wilson,
Mallonee, Tracy, Vantine, Angeloff, Bolin, and Keeler, on
grounds of less convincing demeanor, uncertainty as to accu-
racy of their memories, doubt as to the complete honesty of
their renditions, or a combination of such factors. As particu-
lar issues of the case are analyzed below, more specific
credibility evaluations shall be made in explanation of how
legal conclusions were reached.
K. Respondent’s Witnesses
1. Nonsupervisory witnesses
As part of Respondent’s case a dozen witnesses were
called who had been rank-and-file employees that did not go
on strike. There was a predominance from the Alaska load-
ing group, but otherwise spread among those of the night
crew and variously based delivery drivers. For the most part
this phase of case testimony related to Respondent’s night
crew meeting, and to a lesser extent several telephone con-
tacts made by management to ascertain strike intentions.
Among these witnesses there was a uniform recollection
that Robbins had told assembled employees they would be
permanently replaced if going on strike. While different
phasings of the idea were quoted, the gist was essentially
what so many others had described during the General Coun-
sel’s case-in-chief. With some of the witnesses the remem-
bered comment was watered down as a probable result, not
coupled with the ‘‘permanent[ly]’’ adjective, indirectly stated
as a necessary ‘‘cover[ing] my route,’’ or simply not voiced
at all. On the separate points of permanent replacement
meaning automatic and irrevocable job loss, and the strike
signifying that Respondent would instantly become nonunion
in character, this was generally denied as having been said
by Robbins, or at least not recalled.
2. Supervisory witnesses
Englund was first called from this group. He denied telling
Weiler that Respondent was going to be a nonunion shop. He
comparably denied telling Lambert that the Union would no
longer exist at Respondent, and relatedly testified that Lam-
bert did not appear for a scheduled relief sales position inter-
view. As to a telephone conversation early on the morning
of August 30 with Donovan, Englund recalled telling this
driver he ‘‘could’’ be replaced, and denied saying that Dono-
van would not have a job if he did not come back to work.
Robbins covered various episodes in which he was assert-
edly involved by his testimony. As to a late evening discus-
sion with Bolin on August 29, he attributes himself inquiring
about Bolin’s work intentions, and saying that ‘‘the Com-
pany had hired’’ permanent replacements. Robbins obliquely
explained that he ‘‘referenced’’ a permanent replacement of
Bolin as sometime ‘‘in the future,’’ and he did not expressly
deny saying that Bolin ‘‘would be out of a job’’ if he did
not work through the strike.
His testimony as to a contact with Mullinex was com-
parably indirect as far as not denying that he termed the new
working conditions available to employees not going on
strike as ‘‘nonunion.’’ As to telephone communication with
Bonlender on the Portland route delivery situation, Robbins
denied only that he had ever said an employee might not
work for the Company again. Beyond these three instances
Robbins does not have much ‘‘individual recollection’’ of
further telephone contacts with employees. As to the night
crew meeting, Robbins basically conceded the tone and con-
tent of his remarks as described by numerous witnesses, save
for those who quoted him as saying any of Respondent’s em-
ployees going on strike would ‘‘never come back,’’ or
‘‘would be fired or terminated,’’ which he denied. This de-
nial also traversed the specific testimony of Lombard, insofar
as factually whether Robbins had said, to the group or later
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to Lombard individually, that striking employees would not
be coming back.
Foster took guidance from Noel’s instructions at the man-
ager’s meeting to avoid unnecessary comment when canvass-
ing employees about their intentions. As to attempted tele-
phoning of Vantine at Spokane, he recalled reaching him
personally at around 10 p.m. on August 29, and receiving the
employee’s assurance of working the next day as usual. Fos-
ter denied telling Vantine that he would be terminated for
honoring the strike, or even mentioning the prospect of per-
manent replacement. Vantine was the only distantly based
serviceman who actually did go on strike, and Foster testified
that within several days he telephoned him again to advise
that permanent replacements ‘‘were being looked for.’’ The
two continued in frequent contact until a point about 2 weeks
later, when one specific replacement was hired. As to
Angeloff, Foster denied saying anything to him once the em-
ployee had advised he would start on strike, and that beyond
this a known replacement possibility was immediately hired
for the single bench technician position.
In Shirley’s case his poststrike actions were based prin-
cipally on the need to determine how his far-flung deliver
coverages could be assured. Otherwise his lessons were from
Noel’s manager’s meeting, and by the question and answer
(‘‘NLRB . . . list of things’’) document which he had re-
tained from the past. His approach was to methodically at-
tempt contact with all nonlocal drivers and ascertain their in-
tentions once the strike deadline had passed. Otherwise there
was general comparability of substantive exchanges with
those testifying about him.
Miller’s responsibilities as day warehouse manager also
embraced the several employees working connective swing
shifts. He had a limited recollection of his telephoning after
being called in from home for the manager’s meeting of
midevening on August 29. His memory ability was also ad-
mittedly impaired by the extremely long hours which the
strike imposed on him for more than a month following. A
specific denial, which Miller tied to a recollection of experi-
encing sarcasm, was that he did not tell Cingle that Respond-
ent was going nonunion at midnight.
L. Resumed Mediation
The meeting under mediation auspices took place on Sep-
tember 10, with each party confined to separate rooms. The
Union’s bargaining committee and Attorney Pedersen accom-
panied Rogstad on this occasion, while Respondent had its
core bargaining team including Noel, Cummins, and Attor-
ney Lofland for the session.
After a delayed arrival, the mediator by happenstance took
his orientation on status of the negotiations from Respondent
representatives, learning that the last complete proposal
stemmed from the party’s final prestrike session in late after-
noon of August 29. The mediator then dealt with the Union,
where Rogstad expressed their chief concerns of the moment.
These were identified as achievement of the Union’s pro-
posal for increased pension plan contributions, and full rein-
statement of strikers by a simultaneous return to work. The
mediator then left for company-side discussion, and soon re-
turned with a company response. Rogstad testified to being
told that all strikers had been permanently replaced, that the
subject of pension was tied only to Respondent’s own plan,
and that an open shop provision was introduced in place of
past contractual union-security language. The Union advised
that it would not go on further with the negotiations, for no
reason other than the employer’s unwillingness to return all
strikers.
Bolin testified to being among the several employees on
a bargaining committee along with union officials attending
the negotiation session on September 10 in which a Federal
mediator was present. The parties did not negotiate on a
face-to-face basis, but were situated in separate rooms to
which the mediator went alternately. Bolin testified that the
Union informed the mediator of their position, which was to
seek the proposals last on the bargaining table, although
dropping their demand for pension contributions by 10 cents
per hour, and seeking that all strikers be reinstated together.
He recalled that the mediator was out of the room for about
20 minutes in a caucus with Respondent, and then returned
to say that Respondent had proposed no union security and
that strikers would only go on a preferential hiring list under
the Company’s pension plan. Bolin testified that the Union’s
committee discussed this information, and advised the medi-
ator it was unacceptable.
This portion of the critical day was covered by the testi-
mony of both Cummins and Noel, who recalled Attorney
Lofland being principal spokesman for the Company. The
version of these witnesses had him summarizing Respond-
ent’s presentation to the mediator as involving a withdrawal
of the previous pension proposal, and conditional agreement
as to continuing past union-security language. The emphasis
made to the mediator was that some, not necessarily all,
striking employees had been replaced, and an active program
of completing further replacing was under way. After another
separate session with the Union the mediator returned, and
according to the company witnesses announced to their sur-
prise that the Union was departing the session. Settled public
policy clearly prohibits the Board from compelling the testi-
mony of Federal mediators. J. W. Rex Co., 308 NLRB 473
(1992).
Following this Cummins wrote to Rogstag by letter dated
September 11 confirming the modified contract proposal in
the two major regards, while also adding two minor subjects.
The letter was hand-delivered, and set a deadline of close of
business Friday, September 14, beyond which silence would
be considered as rejection. A complete revised, proposed
contract document accompanied the letter. When no response
from the Union resulted by the end of that week, an imple-
mentation was immediately done retroactively to September
1. The implementation covered Respondent’s last wage offer,
plus company health care and pension plans. Payments to the
Union’s trust funds were terminated after the September 1 re-
mittance based on August hours.
M. Factual Holdings
The numerous contacts during Respondent’s main efforts
to assess continued availability of regular employees from
the striking bargaining unit termed the whole notion of per-
manent replacement in a host of word choices. While any fa-
miliarly with its significance certainly varied as among the
work force, it can be traced for present purposes from a
point several days before the strike when, as testified by
Reed, the prospect was commented about by Rogstag at a
membership meeting. Irregardless of how many members
heard or understood the notion at that early time, it was fully
937NOEL CORP.
reinforced during the subsequent strike vote meeting, when
so many of those present heard a cautionary reference to per-
manent replacement by Rogstag. Finally the subject was de-
scribed in writing by a picket line hand-out, and although
only a negligible number of strikers even remembered it, the
offering was, at least, made.
As to verbal expressions by agents of Respondent the evi-
dence showing these were in a wide range of verb choice
and emphasis as to immediacy. I consider it natural that the
preferred ‘‘risk of being permanently replaced’’ never even
appeared in the testimony as managers spoke more familiarly
in their context about what ‘‘would,’’ ‘‘could,’’ ‘‘can,’’ or
‘‘will’’ happen. I do not deem any of the statements on the
specific subject equating a strike decision to continued em-
ployment status as a constructive discharge from employ-
ment. It is too sterile a contention to look literally at the es-
sential message, and say that mere word choice supersedes
all the complex realities of a major business setting. I there-
fore hold first of all that statements about employees being
permanently replaced should they choose to strike did not, in
any instance, impair the effective ability to make a strike
choice. This is notwithstanding that the task of marshalling
a measurably complete replacement program was not yet
even under way, let alone assessable as to chances of further
success.
A second area that affects fundamental case issues is the
matter of referencing Respondent as about to become, or
having become, ‘‘nonunion’’ in character, or as otherwise
often termed a nonunion shop after midnight of August 29.
Here I expressly credit the General Counsel’s various wit-
nesses, to the extent that such phrasing, or its equivalent, was
uttered to them as managers groped to characterize what
change their place of employment would undergo following
the strike deadline. This belief also involves discrediting Re-
spondent’s witnesses Englund, Robbins, Wright, and Miller
on the point.
However, the use of such words must be evaluated in con-
text. The case is free of any classic indicators of animus, and
the controlling tone of Employer strike responsiveness was
set by Noel himself as the highest official handling the near-
frantic adjustments. It is noteworthy that no witness quotes
Noel himself as making any untoward utterance, even as he
moved among and spoke with those departing on strike
closely around the midnight deadline. It is odd therefore that
Reich, routinely leaving work to start his strike status at mid-
night, independently speculated that this strike status itself
would generally leave ‘‘a nonunion shop’’ (Tr. 237). Further-
more Rogstag was at the emerging picket line even before
midnight, at a point that he was seeking quiet summitry
about the dispute without repudiation from Noel. Even more,
the two faction leaders did meet civilly barely more than 36
hours after the strike started, a solid indication that in real
terms any notion of the facility having become union-free did
not square with official behavior. The news release on Au-
gust 31, propagandized the strike’s advent, but in the process
of only a few succinct paragraphs referred three times to
‘‘Union members’’ of its work force. In illustrative terms,
the testimony of Marty Layman may be looked to, where he
considered a replacement person, should one be utilized, as
a ‘‘nonunion worker’’ (Tr. 408). The context does not there-
fore support an unlawful sort of rebuke to statutory rights,
but must instead be thought of only as reasonably and objec-
tively meaning that a collective-bargaining relationship,
which by its terms was to expire, did expire that night.
The record contains testimony about employees hearing
comment from management that they would lose their jobs
for striking, be terminated, and otherwise not again work for
Respondent. This facet of the case is little a matter of con-
text, but more a matter of straight-on acceptance of fact. The
source of such remembrance includes testimony of employ-
ees Cecil Wilson, Mallonee, Hull, Vantine, and Bolin, who
among them attributed job finality intimations to Robbins,
Foster, and Stump. I simply discredit the accuracy of these
several assertions, noting the small percentage it involves as
among all that was spoken, and that, contrarily and again as
to Noel himself, Hull recalled the assurance even as he and
others were walking out from the facility to start on strike
that there would be no time limit on their change of mind.
Comparable assurances were received at various times by
Marty Layman, Doll, Fernandez, and Donovan. Finally, this
subject was raised in colloquy of record, during which the
General Counsel expressly stipulated that his legal position
was that of an employer attempting permanent replacement
rather than terminating employees (Tr. 1608). Overall, and as
with conversational references to ‘‘nonunion’’ character of
the workplace, I hold that remarks as here discussed do not,
independently or supportively, establish the commission of
any unfair labor practice.
As to the fact of replacement employees, it was an evolv-
ing process, begun, knowingly or not, as early as August 29
when new employee Slagle drove on the Lewiston, Idaho
route. It accelerated greatly by the strike aftermath, when
more than a dozen applicants were slotted into warehouse
work. The following morning brought a crucial array of
emergency assignments allowing a substantial fulfillment of
Yakima-area deliveries and, where necessary in outlying
places, with management, sales employees, intradivisional
borrowing and overtime. The long holiday weekend breather
advanced the process, with six new employees starting on
both Friday, August 31, and Saturday, September 1, while
the advantage of sister divisions under this corporate struc-
ture invited sly changes such as moving Jacobson into Noel
Transportation.
The eventful night had pitted two diametrically different
realities, awkwardly juxtaposed against each other. Respond-
ent, facing a strike of only partial participation by bargaining
unit employees, but sorely affected by even these con-
sequences given the nature of its business, operated in two
principal ways. First, it was done from a position of ample
preparation, with the near strike some years earlier as a re-
hearsal model. Second, its managers were, except for the
emotionally distraught Robbins, disciplined as to their role
and their communication cues. This combination gave Re-
spondent a solid-seeming, predictable, and essentially con-
sistent expression of its institutional self as an employer
under strike.
Members of the Union on the other hand were tactically
scattered in one sense as to those away from Yakima. Mean-
while those at the headquarters vicinity were only question-
ably informed of their status and objectives, as numerous
versions, interpretations, and slanting of company remarks
passed among the core group of initial picketers, or those in-
directly in close touch with events. In this disrupted situation
I see essentially an overall reality in which the Union, wisely
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or less than that as the future was shown, exercised a classic,
a economic strike with plainly predictable consequences for
a complex, service-oriented business. Respondent’s reaction
may have had awkward, officially unintended, or devilishly
coaxing aspects to it; the it being the many and continuing
verbal exchanges between supervisors laboring under Noel’s
resolute commission to prevail, and rank-and-file each in
their own way seeking to fulfill personal and ideological mo-
tives. The query that arises from it all is whether Respondent
overstepped permissible bounds of the statute, in both the
sense of its letter and spirit. The query is also whether the
emergency, increasingly orderly, and basically unpredictable
course of keeping the business viable constituted unlawful
labor-management behavior as to characterizations made con-
cerning intentions and achievements of the functional re-
placement process. I answer both questions in the negative,
noting prominently that this record has no individual instance
of these economic strikers breaking off from that status dur-
ing any transitional or temporary phase of specifically cover-
ing the total array of jobs with replacement persons. On
these holdings and my interpretation of events during the
controlling 2 weeks following the strike, I turn to argument
grounded in Board precedent.
N. Respective Legal Contentions
The General Counsel relies chiefly on American Linen
Supply Co., 297 NLRB 137 (1989), arguing that its signifi-
cance must be viewed in the context of earlier cases W. C.
McQuaide, Inc., 237 NLRB 177 (1978), and Mars Sales &
Equipment Co., 242 NLRB 1097 (1979), enfd. in pertinent
part 626 F.2d 567 (7th Cir. 1980). In McQuaide, the context
was one of weighing factual points about true permanence of
replacement employees in terms of the times when strikers
effectively offered to return. The Board finding of violations
there was influenced by a lack of ‘‘bona-fide’’ showings of
permanence as to numerous replacements, and anecdotal evi-
dence such as the ‘‘shifting’’ employment records produced
by that employer. Mars Sales, also a case finding unfair
labor practices, turned on an employer’s unequivocal written
assertion, made nearly a week after start of a strike, that per-
manent replacements causing no further need of striker serv-
ices had been made. When the evidence showed this to sim-
ply be a false assertion, the consequences flowing from this
falsity meant that the strikers eventually involved for reme-
dial purposes had been unlawfully terminated. Enforcement
of the Board’s Order in Mars Sales did not enlarge on case
theory as to consequences to an employer of falsifying such
information through the formality of a writing.
In American Linen the Board explicitly relied on the prec-
edence of McQuaide and Mars Sales, stating that it was the
conflict with fact of the matter when claiming permanent re-
placement had occurred that constituted an unlawful termi-
nation of strikers. Among detailed facts and related analysis
adopted by the Board in American Linen were that the advice
to strikers they were permanent replaced was (1) in writing
(2) that the word choice of what was written claimed that
strikers ‘‘are’’ replaced, a meaning about what has happened
in contrast to what consequence ‘‘might,’’ ‘‘could,’’ or
‘‘would’’ happen as this was comparatively discussed. Amer-
ican Linen, supra at 142.
Respondent contends that Chromalloy American Corp.,
286 NLRB 868 (1987), is dispositive of the case. In
Chromalloy, various forms of communication, done at var-
ious points of time following a strike, were in issue. How-
ever, for present purposes the case established that ‘‘truth-
fully informing employees that they are subject to permanent
replacement’’ is not a violation of the Act by ‘‘well-estab-
lished’’ rule. A specific communication scrutinized in
Chromalloy was in writing, which by forceful-type word
choice expressed a rather absolute resolve to continue oper-
ations in protection of business interests. I am satisfied that
the verbal communication made here in so many diverse
ways did not go beyond what Chromalloy permits. Atmos-
phere of the imminent strike was well infused with employee
awareness of such a prospect, and all word choices used by
managers amounted to no more than the formal ‘‘are com-
mitted to fulfill our orders,’’ ‘‘must have adequate man-
power,’’ and ‘‘take the necessary steps’’ phrasing of the sev-
eral letters present in Chromalloy.
Furthermore, Respondent recognized the employees’ right
to engage in strike action in advance of its commencement,
in critical moments during actual inception as with Noel’s
own allowable remarks near midnight, and during the imme-
diate days stringing out into weeks following the strike, as
it was maintained with universal consistency by participants.
The Board equated permissible statements by an employer as
to ‘‘job status,’’ in strike or imminent strike context, with
Section 8(c) of the Act. This statutory right of expressing
views, absent threat of reprisal, would in my view be erro-
neously undercut were the General Counsel’s chief conten-
tion to be adopted. This belief specifically includes recogni-
tion that the notion of a ‘‘nonunion’’ character to the oper-
ation would coincide with the strike; however, I have con-
cluded that such added verbiage could not be reasonable
taken other than a reference to an ending of the Union’s con-
tractual status with Respondent.
O. The Implementations
Respondent’s implementations respecting wages and work-
ing conditions, and its related discontinuance of contributions
to union benefit plans, raises an issue hinging on whether it
had by then committed unfair labor practices. As to the
scope of the implementation, it corresponded to the last offer
made through a mediator on September 10, but more signifi-
cantly as confirming just how negotiations stood by hand-de-
livered letter the following day. I have found no preexisting
unfair labor practices, thus the remaining question becomes
that of impasse, as always a mixed matter of fact and law.
Here the Union had on August 29 rejected an offer more pal-
atable than the one advanced roughly 10 days later while a
strike was actually, and somewhat effectively, in progress.
There is no reason to think that further negotiations would
have been fruitful in these circumstances, by definition a
consequence showing how bona fide impasse had been
reached. The finding that this impasse was valid is also sup-
ported by the fact that the Union discontinued further pros-
pect of bargaining, because of its own tactical choice of
seeking immediate displacement of all newly utilized work-
ers as a precondition as ending the strike. On this basis I find
discrete paragraph 13 of the third amended consolidated
complaint is not established from the proofs.
939NOEL CORP.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
P. Vacation Pay
The General Counsel contends that Respondent’s handling
of vacation entitlement as accrued when the strike started led
to violations of the Act. This contention is made largely by
pointing to disparity of accommodating individual employee
situations, and by the claim that Respondent’s poststrike pol-
icy was inherently destructive of employee rights under the
doctrine of Great Dane Trailer Co. v. NLRB, 388 U.S. 26
(1967). In more detailed application to the issue, the General
Counsel advances Texaco Inc., 291 NLRB 508 (1988), and
Glover Bottled Gas Corp., 292 NLRB 873 (1989), as estab-
lishing theory for the pertinent test here. At the outset I find
the General Counsel’s reliance on Texaco and Glover to be
unavailing. Both cases involved contract interpretation of rel-
atively sophisticated contract language on the subject of va-
cations, a prospect that is totally absent here inasmuch as po-
sitions taken on the subject by Respondent were dictated
solely by needs of the operation. This means that Great
Dane may be squarely looked to in terms of its rationale that
once an ‘‘inherently destructive’’ impact on protected rights
arises, as with the significant value of vacation benefits, any
explaining away of effect must show action different than ap-
pearing on its face. I believe that to be the situation here,
meaning the simple holding of monetary value of accrued va-
cation will explain any appearance of impermissible intrusion
on statutory rights. Thus the fundamental contentions flowing
from Great Dane in regards this subject lack merit.
The status of being a paid vacationer and, simultaneously,
and active economic striker, cannot coexist. Respondent has
done nothing more than maintain the status quo, and there
is no showing that any striker who did ultimately return to
work, as with Bonlender, were punished as to this vacation
entitlement because of having struck. The fact that nonstrik-
ers obtained vacation pay when their scheduled time arose,
and in one case a return from strike was synchronized with
a vacation value payment, does not show disparity of appli-
cation to any actionable degree.
Q. Respondent’s Affirmative Defense
Respondent has introduced the argument that in any event
these strikers lack protection of the Act by operation Section
8(d). Its contention here is that notice to mediation authori-
ties was not effectively given as required by law. I find this
contention to be unavailing, for the bargaining process in this
case was a continuum originating early in 1990 based on
still-earlier written notice to mediation authorities in summer
of 1989. While unique litigation time lines created an un-
usual hiatus in dealings between the parties, there is no
showing that the purposes of alerting mediation authorities to
the dispute were either abandoned or made moot. Notably,
a mediator responded promptly in September when such
services were requested on short notice. Finally, the argu-
ment was completely and unmistakably waived by Respond-
ent when it entered into the settlement agreement reached on
July 17. I thus reject Respondent’s affirmative defense as
premised in its brief.
CONCLUSION OF LAW
The General Counsel has not established by a preponder-
ance of the credible evidence that Respondent violated the
Act alleged as in the third amended consolidated complaint.
Disposition
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The third amended consolidated complaint is dismissed in
its entirety.