Redwing Carriers, Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1961

130 N.L.R.B. 1208 (N.L.R.B. 1961)

1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relations acts" are the only means of regulation. Nor do we regard
State labor relations boards as the only State tribunals through which
a State may assert jurisdiction over labor disputes, especially in view
of the congressional policy ceding to any State agency or any State
court jurisdiction in those areas where we decline it. Since our decli-
nation of jurisdiction over public trainers, as well as nearly all other
closely related phases of racing, leaves the States free to assert juris-
diction, we adhere to the conclusion that our declination of jurisdiction
will not defeat the purposes of our Act.
Since we had not established any standard for such enterprises prior
to August 1, 1959, nothing in Section 14(c) (1) of our Act prevents
us from declining jurisdiction over public trainers.
By reasons of the above result it has become unnecessary to deter-
mine which specific activities of the Employer, if any, are agricultural
under Section 2(3) of our Act.
Redwing Carriers, Inc. and Rockana Carriers, Inc. and Team-
sters, Chauffeurs and Helpers Local Union No. 79, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America and Willie P. May. Cases Nos.
12-CA-1021,'12-CA-1022, 12-CA-1023, 12-CA-1025, 12-CA-1026,
12-CA-1027, 12-CA-1028,12-CA-1060, and 12-CA-1102. March
6, 1961
DECISION AND ORDER
On May 19, 1960, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report atached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report, and
supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, only to the extent that they are consistent with the
following Decision and Order.'
The Respondent is a common carrier and for years has carried on
regular hauling operations by truck from and to the plants and mines
1 The Respondent 's request for oral argument is denied as the record , including the
briefs, adequately presents the issues and the positions of the parties.
130 NLRB No. 113.
REDWING CARRIERS, INC. & ROCKANA CARRIERS, INC. 1209
of the Virginia-Carolina Chemical Corporation (herein called V-C).
On May 22, 1959,2 the employees of V-C struck and formed a picket
line at the entrance to the V-C premises. The strike lasted until
August 1. As more fully described in the Intermediate Report, on
June 2, the Respondent terminated seven of its drivers (Silvers,
Spivey, V. Bennett, B. Bennett, J. Cooper, L. Cooper, and Sewell),
and on July 21, one driver (May), for refusing to carry out their as-
signments which required them to cross the picket line at V-C, al-
though they remained on the job for the performance of all other
work. Another driver, Krzanowski, when given the same assignment
on June 24, left the job and went home. Upon his return to the plant
on June 26, he was discharged on the specific ground that he had
left his work without notice to the Respondent.
The General Counsel relies in substance upon Section 502 of the Act
which provides in part that "the quitting of labor by an employee or
employees in good faith because of abnormally dangerous conditions
for work at the place of employment of such employee or employees
[shall not] be deemed a strike under this Act." Specifically, the Gen-
eral Counsel takes the position that all nine drivers, the complainants
herein, refused to cross the V-C picket line because they believed in
good faith that to accept such assignment would subject them to ab-
normally dangerous conditions in the course of their work. In these
circumstances, the General Counsel contends Section 502 provides pro-
tection to the nine complainants, and their discharge therefore vio-
lated Section 8(a) (1) of the Act.
We need not decide whether, had there existed "abnormally danger-
ous conditions," Section 502 would afford affirmative protection to
these complainants, for, upon careful consideration of all the pertinent
evidence, we cannot conclude that the General Counsel has established
the existence of such conditions.
It is necessary first to clarify the meaning of the term "abnormally
dangerous conditions" as used in Section 502. We are of the opinion
that the term contemplates, and is intended to insure, an objective, as
opposed to a subjective, test. What controls is not the state of mind of
the employee or employees concerned, but whether the actual working
conditions shown to exist by competent evidence might in the circum-
stances reasonably be considered "abnormally dangerous." 3 In this
light, we turn to the evidence relative to the specific complainants.
We can dispose of Krzanowski's case at the outset. On the basis
found by the Trial Examiner, we are satisfied that his case is dis-
tinguishable from the others with respect to the Section 502 allegation.
When this driver was given the assignment to the V-C premises on
9 All dates hereafter are for the year 1959, unless otherwise specified.
' See, e.g., N.L.R.B. v. Knight Morley Corp., 251 F . 2d 753, 756, 757 ( C.A. 6) ; and
Knight Morley Corporation , 116 NLRB 140, 145, 154; Burke v. Mesta Machine Co.,
79 F. Supp. 588, 611.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 24, he abruptly left the job and went home: He returned to work
on June 26, stating that he had been sick and his truck had not been
operating properly. In the circumstances, we find the Krzanowski
was justifiably discharged for the specific reason that he left his work
for about 2 days without notice or explanation to the Respondent in
violation of a company rule.
Seven of the drivers were discharged on June 2. The background
circumstances were as follows. Prior to the strike at V-C, Respondent
hauled in or out of V-C from 60 to 90 loads a day. From the inception
of the strike on May 22 until June 2, the V-C facilities were virtually
shut down. During this period, 13 loads in or out of V-C were hauled
by 10 of Respondent's drivers, of whom 3 are complainants under dis-
cussion 4 On June 1, V-C notified Respondent it would reopen on a
full scale and Respondent thereupon undertook to resume its normal
trucking operations. (As of June 2, Rockana alone had a complement
of about 50 drivers.) 5 On June 2, the seven drivers in question,
among. others, were assigned to the V-C premises.
As detailed in the Intermediate Report, the incidents occurring be-
tween May 22 and June 2, adduced to show the existence of "ab-
normal danger" which would affect these complainants in crossing
the V-C picket line, consisted of the following. Shortly before the
strike commenced, drivers Spivey and B. Bennett were told by cer-
tain V-C employees not to cross the picket line in the event of a strike
as "somebody would get hurt." Driver Shirley was stopped at the
picket line and, after reporting to the Respondent, was escorted across
the picket line by a deputy sheriff. Driver Francouer was stopped
at the picket line and threatened by pickets. He proceeded to a
nearby grocery store to telephone Respondent for advice. A "good
dozen" pickets followed him into the store and threatened him; as
he left the store he was shoved, swung at, and finally kicked in the
"rear end." Driver Sewell was approached by 8 to 10 men while he
was eating supper in a diner and was told, "I hope you boys are
not planning to go in because if you do we ain't going to promise you
what will happen."
In the early morning of June 2, six of these drivers, excluding Se-
well, after generally discussing the matter among themselves and
others, refused the assignment to drive through the V-C picket line.
They were promptly discharged. Sewell reported for work in the aft-
ernoon, being aware of the six who had turned down the assignment
that morning. Sewell made the same decision and was terminated."
'Namely, B. Bennett, J. Cooper, L. Cooper.
6 The record does not disclose how many drivers were employed by Redwing as of
June 2.
0It was not established that Sewell was aware of certain additional incidents which
occurred during the morning of June 2 in connection with a convoy of eight trucks which
Respondent initially arranged .to go into the v-C premises . These incidents , which are
REDWING CARRIERS, INC. & ROCKANA CARRIERS, INC. 1211
On July 21, driver May received the assignment, refused, and was
discharged. As to May, we rely upon these particular circumstances.
He had previously decided, in agreement with the other drivers on
the morning of June 2, to refuse any assignment to cross the V-C
picket line. On June 27, a Florida State Court issued an injunction
which, inter alia, restrained 10 individuals from further participation
in the picketing at V-C upon finding that they had committed acts
of violence on the picket line. Following the injunction until the
date of May's refusal on July 21, only one specific incident of vio-
lence (the acid throwing) occurred-and this occurred away from
the picket line.
As already indicated, we have considered the evidence as to each
of the complainants herein in light of the objective facts existing at
the time each made his decision to refuse the assignment. In reach-
ing our conclusion on the factual issues posed, we have in addition
given weight to the evidence showing that between June 2 and August
1, when the strike ended, Respondent hauled in or out of V-C about
1,800 loads in the process of which over 50 of Respondent's drivers
crossed the V-C picket line about 3,600 times.
The threats and acts of violence which have been shown in this
case are not in issue as such and in no sense are condoned. Un-
fortunately, some disorder is not unusual in any extensive strike.'
Other recourses and forums appropriately exist to prevent and remedy
such transgressions. Our function, of course, is limited to the alle-
gations of the specific violation of the Act raised in the General Coun-
sel's complaint.
In view of the criteria and circumstances related above, and on
the record considered as a whole, we conclude that the pertinent evi-
dence does not warrant a finding that there existed "abnormally
dangerous conditions" within the meaning of Section 502, when the
complainants (except Krzanowski) refused to perform their assigned
work.
We are left then with virtually the precise situation as was involved
in the Auto Parts case.' There an employee refused in the course of
his assigned duties.to cross a picket line at the plant of another em-
ployer, while continuing on the job for the performance of his other
work. It was held in effect that the activity of the employee was un-
protected. As "simply stated" by the Board, the employee's "conduct
was a refusal to do the job for which he had been hired and a direct
disregard of his employer's instructions. For such conduct he could
not described in the Intermediate Report, consisted of attempted blocking and cutting off
the road of Respondent's trucks, cursing, threatening, and throwing objects at drivers,
strewing nails on the road, and the firing of a shot by an unidentified source.
7 See Republic Steel Corporation v. N.L.R.B., 107 F. 2d 472 , 479 (C.A. 3), cert. denied
309 U.S. 684.
s Auto Parts Co., 107 NLRB 242.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
properly be discharged ." 9 On the same legal basis , therefore, irre-
spective of whether their activity was concerted, we find that, in re-
fusing the assignment to cross the V-C picket line, the eight com-
plainants ( excepting Krzanowski ) engaged in unprotected conduct.
We shall accordingly dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBERS JENKINS AND KIMBALL took no part in the consideration
of the above Decision and Order.
Q For the principle that employees cannot insist on remaining at work on their own
terms and conditions , or that partial or intermittent work stoppages are unprotected, see,
e.g., C. G. Conn Limited v . N.L.R.B., 108 F. 2d 390 , 397 (C.A. 7 ) ; N.L.R.B. v. Montgomery
Ward ci Co ., 157 F. 2d 486, 496 ( C.A. 8) ; N.L.R.B. v. Kohler Company, 220 F. 2d 3, 10-12
(C.A. 7), enfg. 108 NLRB 207 ; N.L.R.B. v. Rockaway News Supply Company, Inc.,
197 F. 2d 111, 113 (C.A. 2), affil. 345 U.S. 71.
INTERMEDIATE REPORT AND RECOMMENDATIONS
STATEMENT OF THE CASE
This proceeding was heard before the duly designated Trial Examiner in Tampa,
Florida, on March 14 , 15, and 16 , 1960. The issue litigated was whether Redwing
Carriers, Inc., and Rockana Carriers , Inc. (herein referred to collectively as Re-
spondent and separately as Redwing and Rockana , respectively ), violated Section
8(a)( I) of the National Labor Relations Act, as amended (herein called the Act).
After the hearing the General Counsel and the Respondent filed briefs which the
Trial Examiner has considered.'
Upon the entire record , and, from his observations of witnesses , the Trial Ex-
aminer makes the following:
FINDINGS AND CONCLUSIONS
THE BUSINESS OF RESPONDENT
Redwing and Rockana are separate Florida corporations located in Tampa,
Florida, and are common carriers engaged in the hauling of liquid (petroleum)
products and, of dry freight (fertilizer , rock , etc.) products . During 1959 each
corporation derived revenue in excess of $100 ,000 from hauling products outside
the State of Florida or destined ultimately to points outside the State of Florida.
For the purpose of this proceeding these corporations constitute a single employer
within the meaning of the Act and are referred to herein as Respondent . The evi-
dence reveals that Respondent is engaged in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act and that the Board 's requirements
for the assertion of jurisdiction have been established.2
THE ALLEGED UNFAIR LABOR PRACTICES
Issue
In the course of normal business Respondent has for a number of years carried on
regular hauling operations from and to plants and mines of Virginia -Carolina
Chemical Corporation ( herein referred to as V-C) located near Tampa , Florida.
On May 22, 1959, International Chemical Workers Union , Local No. 36, AFL-CIO,
called a strike among employees of V-C and picket lines were established at the
Florida facilities of that corporation . Between May 22 and June 2, 1959, the
hauling operations normally performed by Respondent from and to these facilities
of V-C were reduced to occasional trips (rather than regular runs in and out of the
plants and mines). On June 2 , 1959 , Respondent endeavored to resume its normal
'A document entitled "Consent Motion To Correct the Record" has also been filed and
considered and Is hereby granted.
2 Respondent concedes that the operations here involved are within the jurisdiction of
this Agency.
REDWING CARRIERS, INC. & ROCKANA CARRIERS, INC. 1213
hauling operations from and to the facilities of V-C. On this occasion and there-
after some of Respondent 's truckdrivers refused to accept assignments requiring
them to cross the picket lines at the plants and facilities of V-C and Respondent
terminated their employment because of such refusals . The issue herein is whether
such terminations were violative of Section 8 (a) (1) of the Act.
The Facts
As noted above , a strike among employees of V-C and picketing at the facilities of
V-C started on May 22, 1959 . A few days before the beginning of this strike and
picketing the employees of Respondent were advised of the pending nature thereof
and were advised that crossing the picket lines might lead to trouble.
On May 27, 1959 , Rockana employee Donald E . Shirley was stopped at a
picket line at V-C 's property by about 125 pickets gathered there shouting "scab and
picket line breaker" and taking moving pictures and was asked not to cross the
picket line "until something was straightened out." Shirley then left the picket line
site and reported this incident to Respondent . He was advised by Respondent to
Wait and that someone would meet and give him safe passage through the picket
line. Shortly thereafter he was escorted through the picket line by a deputy sheriff.
On May 29, 1959 , Rockana employee Andre Francoeur (also called Frenchy)
approached the picket line at one of the facilities of V-C intending to make a pickup.
As he did so the pickets (between 25 and 30) "strung themselves across the road,"
blocking his passage . When Francoeur stopped, the apparent leader of the pickets
"jumped on the running board " of Francoeur 's truck and told him "it would be more
healthy if" he turned "around and did not make the pickup ." Francoeur then
left the picket line site and went to a grocery store "about a quarter of a mile down
the road" and telephoned Respondent , reporting what had happened . He was ad-
vised to stay where he was and that someone would be sent to help him.
When Francoeur left the picket line site about a dozen pickets followed him to
the grocery store. After his telephone call to Respondent these pickets milled about
him in a menacing manner-calling him "scavenger" and threatening to assault him
and crowding him out of the store and toward his truck-until Francoeur started
to leave the grocery store site . As Francoeur started to leave, a couple of the
pickets kicked at him, one of them actually making contact with Francoeur 's body.
Upon leaving the grocery store site Francoeur was followed by the pickets for about
2 miles. Upon returning to Respondent 's place of business Francoeur reported to
Respondent and to his fellow employees what had happened.
On May 29, 1959 , Rockana employee John T . Sewell was approached by 8 to 10
men in a diner near the facilities of V-C and asked if he was the driver of the
Rockana truck parked outside. When Sewell responded in the affirmative he was
told, " I hope you boys are not planning on going in [to V-C] because we are on
strike and if you do we ain't going to promise you what will happen ." Sewell re-
plied, "If that is the way it is I am not going in there " and was told, "Well that is
the way it is." As Sewell left the diner, the men who had spoken to him stated,
"You boys be sure and watch your steps." The following day Sewell reported this
incident to other drivers for Respondent ( J. F. Cooper , Buie Bennett, and possibly
to Melvin B . Spivey ). Audrey Cribbs, another Rockana driver present in the diner,
also testified with respect to this matter . His version of this incident varies from
that given by Sewell in that he testified that the men suggested , without accom-
panying threats, that Respondent 's employees not cross the picket line. On the
basis of observation of witnesses and evaluation and the weighing of evidence, the
Trial Examiner believes and finds that Sewell 's version is more reliable than that
given by Cribbs.
As noted above , on June 2 , 1959 , Respondent endeavored to resume normal haul-
ing operations from and to the facilities of V-C. Accordingly , when its drivers
reported for work on that date some of them found assignments directing them to
these facilities . These drivers ( and others ) then conferred among themselves, dis-
cussing the assignments and the strike at the facilities involved. They anticipated
that if they tried to cross the picket lines they would be placing themselves in
danger of harm to themselves and damage to Respondent 's equipment and decided
not to cross the picket lines.3 Supervisors for Respondent, including Respondent's
Respondent contends that the decision not to cross the picket lines was "Individual"
rather than "concerted" activity because the witnesses testified they made up their own
minds not to cross the picket lines . In the light of the record this appears to be an
"afterthought." In any event , any such contention Is hereby rejected . It is clear from
the record herein that the decision to refuse , and the refusal , to cross the picket lines on
June 2 , 1959 , was group or concerted activity and was treated as such by Respondent.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
president, Charles E. Mendez, were informed of this decision and the reasons there-
fore and these supervisors endeavored to persuade the drivers to go ahead and
carry out their assignments, crossing the picket lines where necessary. Six drivers
(.William G. Silvers, Melvin B. Spivey, Vernon Bennett, Buie Bennett, James F.
Cooper, and Lonnie Cooper) remained steadfast in their decision and were ter-
minated . That afternoon when driver John T. Sewell reported for work he was
given an assignment requiring him to cross the picket lines and he refused because
of the anticipated bodily harm and his employment was terminated by Respondent.4
There is a conflict of evidence herein as to whether Respondent's supervisors were
informed that the drivers' decision not to cross the picket lines was because of their
apprehension about harm to themselves or because they (the drivers) were averse
to crossing any picket lines. As noted above, the Trial Examiner finds that Re-
spondent was informed that it was because of the aforementioned apprehension.
In making these credibility resolutions the Trial Examiner has considered the atti-
tude, character, and interest of each of the testifiers in the light of the situation as
a whole as the evidence reveals it and inherent probability.
As noted above, the drivers' fears of bodily harm and damage to equipment were
not without foundation. Furthermore, on and after June 2, 1959, the- bodily harm
and damaged equipment which the drivers anticipated became a reality. Not only
was there substantial damage to the Respondent's equipment by nails and thrown
objects but Respondent's drivers were threatened and assaulted and shot. In addi-
tion, the parties herein stipulated that after June 2, 1959, there was misconduct, at
and in the vicinity of the picket lines (violence), which created hazardous condi-
tions of employment for persons required to cross these picket lines.
,On Wednesday, June 24, 1959, Redwing driver William Krzanowski was given an
assignment directing him to the facilities of V-C then being picketed. Upon receipt
of this assignment Krzanowski remarked to Respondent's Assistant Dispatcher
Feltz, "Don't you know those boys are mean out there, they might hurt me" and
then left Respondent's premises in his own automobile. Krzanowski did not re-
port for work or call in on Thursday. On Friday, June 26, 1959, Redwing Dis-
patcher James R. Cunningham asked Krzanowski, "What happened to you yester-
day?" and Krzanowski replied that he was sick. Cunningham then indicated to
Krzanowski that his services were being terminated and that he should turn in
certain safety equipment issued to drivers when they are first employed by Re-
spondent. Later that morning Krzanowski was told by Redwing's Assistant Dis-
patcher Feltz that he (Krzanowski) should have taken the assignment to the V-C's
facilities and that someone else had taken it and Krzanowski replied he did not
have to take it. Krzanowski testified that his decision not to cross the picket lines
was his own decision and that he did not discuss whether or not he was going to
cross the picket -lines with anyone. There is no evidence herein that Krzanowski
either before or after his termination acted in unison with other drivers for Re-
spondent except for the fact that he did not cross the picket lines and the fact that
he indicated that he anticipated physical harm if he attempted to do so. However,
his refusal to cross the picket lines (unlike the refusal of the drivers on June 2) was
not clearly stated to Respondent . At the time he left the dispatcher's office Re-
spondent did not know whether he was going to perform his assignment or walk
away without doing such. As noted above, he did the latter. Also, as noted above,
it is not clear that Krzanowski's services were terminated for refusal to perform
the assignment requiring him to cross the picket lines. From the record, one of
two inferences appear applicable-that he was terminated for leaving his work
without notice or that he was terminated for refusing to cross the picket lines.
While the Trial Examiner has some doubt about the matter, he believes (and finds)
that the weight of the evidence establishes the former rather than the latter.
On June 2, 1959, Redwing driver Willie P. May conferred with other drivers for
Respondent and agreed that he would not carry out any assignment requiring him
to cross the .picket lines at V-C. On July 21, 1959, May was given such an assign-
ment but did not recognize it as such until after he had left Respondent' s premises.
While en route to his destination (a location not familiar to him) it occurred to
him that possibly he was being sent to a V-C facility. At that point May tele-
phoned Respondent's Assistant Dispatcher Feltz and inquired whether he was being
directed to V-C facilities. Upon receiving an affirmative reply he told Feltz that
he was "afraid to go out there" and that he would return Respondent's truck at
once, which he did. When he got back to Respondent' s premises May told Red-
wing Dispatcher Cunningham substantially the same thing he had told Feltz and
was told that Respondent did not have something else for him. May made it clear
4The duties of the terminated drivers were transferred to nonobjecting employees and
thus Respondent maintained its operations.
REDWING CARRIERS , INC. & ROCKANA CARRIERS, INC. 1215
that he was only refusing assignments requiring him to go to V-C facilities and
that he would go anywhere else. May asked Cunningham whether he should turn
in his equipment and was told to do as he pleased. He did turn it in. Respondent's
answer herein admits that May was terminated on or about July 21, 1959, and in a
letter to this Agency's Regional Director Respondent asserts May was dismissed
for failure to carry out his assignment on July 21, 1959.
There is no evidence herein indicating antiunion animus or antipathy toward the
employees for their concerted activity and, as noted above, the evidence reveals that
the terminations were not impelled by such considerations, but by economic con-
siderations.
Conclusions
The General Counsel asserts that the activities of the drivers herein were an
exercise of rights guaranteed in Section 502 of the Act 5 and that this section of the
Act limits the right of an employer to require continuance of work under what the
employees in good faith believe to be abnormally dangerous conditions no matter
how economic the employer's motivation may be. He relies primarily upon the
doctrine announced in Knight Morley Corporation.6
It appears that Section 502 was inserted into the Act as a protection to those
prevented from striking by virtue of no-strike clauses of contracts or by virtue
by Section 8(d) of the Act (see Knight Morley Corp., supra) and it is questionable
whether it applies in situations such as is involved herein, where there is no collective-
bargaining contract in effect. Assuming, arguendo, it is applicable, it appears that
the principle announced in the Knight Morley case would apply herein although
there is a major factual difference other than the existence and nonexistence of a
contract. In the Knight Morley case the conditions giving rise to the employee
activities were of a fixed and continuing nature and were such that they created an
actual constant threat to health. Here the conditions were sporadic and uncertain
and it was speculative whether employees would be subjecting themselves to harm
by going into the area. The language of Section 502 with reference to good faith
suggests that employees are not required to wait until abnormally dangerous condi-
tions are an actual constant and continuing threat and that they may act under
a good-faith belief that such conditions exist as well as when such conditions actually
exist and the rationale of the Knight Morley case appears applicable in either situa-
tion. It is believed that the evidence adduced herein establishes a good-faith belief
which has not been overcome by evidence that abnormally dangerous conditions
did not exist .7
Assuming, arguendo, that Section 502 is not applicable, questions arise as to
whether the drivers' activity here involved was concerted activity, whether it was
concerted activity protected by the Act, and, if these issues are answered in the affirm-
ative, the problem involved is one of balancing the conflicting interests and rights
and determining whether the employer's right to operate its business must give way
to the employees' right to engage in concerted activities.8
As previously noted, except in the situation involving Krzanowski, the Trial
Examiner believes and finds that the driver's activity here involved was concerted
rather than individual activity. Section 7 of the Act recognizes a right of employees
to work together for their mutual air or protection. As noted in the dissenting
opinion in the Rockaway News case, it is a time-honored custom for employees to
help one another by refraining from crossing picket lines. That is what the drivers
herein were doing. Furthermore, they were seeking conditions of employment for
themselves which did not require them to cross picket lines where violence prevailed-
an activity intimately connected with their own immediate employment. In view of
the foregoing, the Trial Examiner believes, finds, and concludes that the activity
here involved was concerted activity protected by the Act. See Washington Alumi-
num Company, Inc., 126 NLRB 1410.
The problem now for determination may be stated: Must an economically moti-
vated employer's right to operate its business give way to the concerted activities
protected by the statute? The cases bearing upon this issue indicate that the answer
is in the affirmative. The Board's rationale is set forth in Cyril de Cordova & Bra.,
5 Section 502 provides, ". . . nor shall the quitting of labor by an employee or employees
in good faith because of abnormally dangerous conditions for work at the place of em-
ployment of such employee or employees be deemed a strike under this Act."
6 See N.L.R.B. v. Knight Morley forp., 251 F. 2d 753 (C.A. 6), enfg. 116 NLRB 140.
4 See Wichita Television Corporation d/b/a KARD-TV , Incorporated, 122 NLRB 222, 226.
8 A problem which the Supreme Court noted but did not answer in N.L.R.B. v.
Rockaway News Supply Company, Inc ., 345 U.S. 71.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
91 NLRB 1121. See also dissenting opinion in Rockaway News, supra.. In short,
the authorities hold that an employer's desire to operate its business cannot serve as
justification for infringing the rights which the Act guarantees to employees.
Redwing and Rockana are common carriers subject to the Interstate Commerce
Commission and to the Florida Railroad and Public Utilities Commission and it may
be argued that the duties imposed on these carriers required them (and through
them the drivers) to cross the picket lines involved. It is not clear whether such
duty is imposed. Assuming, however, that the carriers had an obligation to provide
services under the conditions then prevailing it would seem that then restrictions
similar to those imposed by no-strike clauses of contracts would be placed upon
employees and that in that event it would be appropriate to apply Section 502 and the
Knight Morley doctrine and thus effectuate the policy of Congress of not requiring
continuance of work under what the employees in good faith believe to be abnor-
mally dangerous conditions. If the duties imposed upon carriers by the afore-
mentioned commissions requires carriers to cross picket lines where violence pre-
vails and Section 502 does not apply, then an apparent conflict of requirements exists
and in balancing this conflict (and the conflict of interests and rights previously
noted) it appears appropriate to consider the intent of Congress as expressed in
Section 502 and, in view thereof, to resolve the conflicts against the carriers.
In summary, the Act gives employees, acting in concert and in the face of abnor-
mally dangerous conditions, a right to quit their labor without penalty (either in the
face of a no-strike clause or where there is no such clause) in order to protect their
health and their lives.
In view of the foregoing, the Trial Examiner finds and concludes that, except in
the situation involving Krzanowski, the activity of the drivers herein in refusing to
cross the picket lines at V-C was protected concerted activity and that their termi-
nations were therefore unlawful.
As previously indicated, the Trial Examiner concludes that the evidence adduced
does not establish that Krzanowski was terminated in violation of the Act.
ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board's requirements
for the assertion of jurisdiction herein.
2. The evidence adduced establishes that Respondent, by interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed in Section
7 of the Act, engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a)( 1 ) of the Act.
3. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
4. The evidence adduced does not establish that Respondent violated the Act by
terminating the services of William Krzanowski.
[Recommendations omitted from publication.]
Ellis and Watts Products, Inc. and International Union, Allied
Industrial Workers of America, AFL-CIO. Cases Nos. 9-CA--
2041 and 9-CA-2069. March 6, 1961
DECISION AND ORDER
On June 23, 1960, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondent had engaged in and was engaging in cer-
tain unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
130 NLRB No. 109.