Virginia Stage Lines, Inc.

National Labor Relations Board - Board DecisionsMay 26, 1970

182 N.L.R.B. 717 (N.L.R.B. 1970)

VIRGINIA STAGE LINES, INC Virginia Stage Lines, Inc. and Local 1023 , United Trans- portation Union , AFL-CIO . Case 5-CA-4413 May 26, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On November 17, 1969, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions and the General Counsel filed cross- exceptions to the Trial Examiner's Decision, and both filed supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as mod- ified below. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, Virginia Stage Lines, Inc., Washington, D.C., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. 1. Substitute for paragraph 2(a) of the Trial Examin- er's Recommended Order the following: "Offer to Richard Loughhead and Charles Tallent immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner described in the portion of the Trial Examin- er's Decision entitled The Remedy for any loss of earn- ings suffered by reason of the discrimination against them." 2. Substitute for the first indented paragraph of the "Notice to all Employees" the following: 717 WE WILL offer to Richard Loughhead and Charles Tallent 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 other rights and privileges, and make them whole in the manner described in the portion of the Trial Examiner ' s Decision entitled "The Remedy" for any loss of earnings suffered by reason of the discrimination against them . If either of them should currently be serving in the Armed Forces of the United States, we will notify him of his right to such reinstatement after discharge from the Armed Forces, upon appli- cation , in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This case, heard at Washington, D.C., on September 23, 1969,' pursuant to a charge filed the preceding June 16 and a complaint issued August 8, presents primarily the question whether the protection of Section 7 extends to two busdrivers who refused to operate certain assigned charter runs because pickets engaged in an economic strike against another employer represented that but for the strike the runs would have been awarded to their employer. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED Respondent, herein called the Company, a Virginia corporation engaged in several States in the operation of an interstate bus line, has annual gross revenue in excess of $250,000, and is admittedly an employer engaged in commerce within the meaning of Section 2(6) of the Act. The Charging Party, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background-The Relationship Between the Company and Safeway Trails, Inc., and the Strike Against Safeway For a number of years prior to the events in this case the Company has been a subsidiary of Continental I All dates herein refer to the year 1969 except where otherwise indicated 182 NLRB No. 107 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trailways, Inc., serving primarily the areas south and west of Washington, D.C., into Virginia and West Virgin- ia. Another subsidiary of Continental Trailways, Inc., known as Safeway Trails, Inc. (herein called Safeway), also operates out of Washington, primarily serving the areas north and east, including Pennsylvania and New York. In addition to their regularly scheduled runs, both the Company and Safeway operated chartered trips out of Washington. In general, chartered trips to the north were operated by Safeway, and those to the south by the Company. In peak periods, however, when Safeway did not have sufficient equipment or manpower to operate a charter to the north, it might be assigned to the Company, and under reverse conditions a charter to the south might be handled by Safeway. Both the Company and Safeway operate out of the Trailways terminal at 12th Street and New York Avenue in Wash- ington. For administrative purposes the Company is divided into an eastern and western division. The drivers employed in the latter are represented by a labor organi- zation, but those in the eastern division, which includes Washington, are not. At the time of the events here in question the Union was attempting to organize the eastern division drivers. The Union represented the Safe- way drivers, and at the time in question was conducting a strike against Safeway following the expiration of their collective-bargaining agreement. The strike commenced April 1, 1969, and continued for approximately 5 months. The Union picketed the Trailways terminal in Washington and the garage used by both Safeway and the Company, so that drivers employed by the Company had to cross the picket lines to come to work. During the strike Safeway did not operate its regularly scheduled runs, but it continued to operate charter trips, using nonstriking personnel. The number of charter trips handled by Safeway was drastically curtailed as a result of the strike; instead of having as many as 30 buses per day available for such trips, the number varied from 12 to 7. As a direct result of this, the charter operations of the Company substantially increased, by up to seven buses per day. The balance of the charter business which Safeway had to relinquish went to other carriers. Between May I and June 20, 1968, the Company operated only 21 charter trips into territory primarily serviced by Safeway, but for the same dates in 1969 (during the strike) the number of such trips increased to 130. B. Loughhead and Tallent Refuse To Drive Charters North of Washington and are Discharged Early in April driver Charles Tallent, an employee of the Company on its "extra board,"2 advised the 2 The "extra board" is made up of drivers with insufficient company seniority to qualify them for regularly scheduled runs. These drivers operate a special section of regular runs, substitute for regular drivers who are unavailable, and drive charter trips Men on the "extra board" are assigned in rotation, going to the "bottom of the board" when they finish a trip They are not ordinarily permitted to refuse an assign- ment. Company that he would not drive a particular charter trip to New York City. He explained to the Company that on returning from a previous trip to New York he had been threatened by several pickets, and he was afraid to go again. On the witness stand Tallent referred to this as an "excuse," stating: "I couldn't just come out and tell them that I was sympathizing with the Union at that time." Apparently in discussing the matter at the time with company officials, Tallent said he was nervous and that his stomach was upset. The Company excused him from the New York run that day on the ground that he was sick, although he finished driving a local charter that day after his conversation with management. Thereafter, however, Tallent operated charter trips to the north until his refusal to do so on June 10, described below. On Sunday, June 1, driver Richard Loughhead, like Tallent an employee of the Company on the extra- board, and, also like Tallent, an active organizer for the Union among the extra-board drivers, was called to the terminal to drive an empty bus to New York and bring back a chartered trip. While Loughhead was at the terminal, a group of pickets "backed [him] up against the bus and told [him] not to go, that [he] was being used as a strike breaker." They also threatened that if he went, they would "tear [his] car up . . . and they would call to New York and make sure [he] would not return."Loughhead thereupon told the dis- patcher, and later repeated to higher officials of the Company, that because of threats he would not drive the bus. Finally, General Manager Harmon told Lough- head to think the matter over for the rest of the day,3 and to telephone by midnight if he was prepared to go to work and take assignments as they came. Lough- head did not telephone, and Harmon regarded Lough- head's employment as terminated. The following Thurs- day, June 5, Loughhead notified Supervisor Ramsey that if the other drivers were going to continue to drive north, he (Loughhead) would go also. Ramsey referred him to Harmon, and Loughhead, on Saturday, June 7, made the same representation to Harmon. Har- mon, however, told Loughhead that he was terminated and could not go back to work. At that time no replace- ment for Loughhead had been hired. On Sunday, June 8, Tallent and several other extra- board drivers agreed among themselves that they would not handle any more northbound charter trips. Later that day drivers Ritenour and Hill both refused to take such charters. In each case a company official informed the driver the next day that the driver would be perma- nently removed from the extra-board unless he agreed to take any and all assignments that came to him, and in each case the driver promptly agreed to do so and was returned to work. On June 10 Tallent declined to take a charter trip to Douglassville, Pennsylvania, a small town northwest of Philadelphia, explaining to Assistant General Manager Rees that he (Tallent) had been threatened by the pickets, 7 The Company paid a bus company in New York to handle the trip VIRGINIA STAGE LINES, INC 719 and also that he regarded the trip as "Safeway work " In the course of the discussion Rees asked Tallent how the "little meetings were doing " Tallent replied that he did not understand and Rees continued "You didn't have any meetings9" Tallent replied that any time two people spoke together "it might be called a meeting "4 Rees, pointing out that Tallent had refused a charter trip the preceding April, insisted that Tallent either agree on the spot to take whatever runs he was assigned, or he would be considered as "resigning " Tallent replied that he considered himself "fired," and left The charter trip was then cancelled Rees in general confirmed Tallent's testimony As to the inquiry about "meetings," Rees testified as fol- lows On the Monday morning when I first got to work, in the case of Ritenour and Hill, when they refused the assignment , I noticed there were quite a few drivers around the terminal and all of them were interested in what was going on Just as a shot in the dark, not knowing anything about any meeting or whether or not one had been held, I asked him how many people had been at the meeting and, of course, I got the reaction that Mr Tallent told you about, and his testimony was very accurate in that respect, and I dropped the subject I had no knowledge that even a meeting had been held, and I did not think there was some agreement between the men that they were going to get together and turn down the work The record does not establish that the Company ever permanently replaced either Loughhead or Tallent The Company showed that it had two trainees who on June 13 qualified for the extra board, but they would have been placed there whether or not Loughhead or Tallent or any other drivers had been discharged The Company also, later in June, employed some school teachers as temporary employees on the extra board, but this was pursuant to a prior arrangement, and they were in no sense permanent replacements for Loughhead and Tal- lent 5 There is some evidence that the Company might have transferred men from Washington to Richmond but for the discharge of Loughhead and Tallent The testimony in this regard is somewhat vague, as Assistant General Manager Rees referred to a "reduction of service in Richmond" which resulted in "no need to transfer these men to Richmond who were needed in Washing- ton," although he also referred to an inability to "spare the additional men from Washington " Rees also testified that at the time of the Loughhead-Tallent incidents, the Company had from 30 to 32 drivers on the extra board, that at the end of June it had from 38 to 40, and that "it is not likely" the Company would have had that many if it had retained Loughhead " Union organizing meetings involving Tallent had been held in March 1968 and in the fall of 1968 Organizing efforts were being vigorously pursued in April and May 1969 ' The Company in its brief states that it employed the usual school teachers as extra board employees for the summer months and Tallent Presumably Rees intended to testify that it is "likely" the 38 to 40 would have included Tallent and Loughhead, had they not been discharged As the extra board would have been augmented by the two trainees in any event, this is tantamount to a prediction that the Company would have hired only four school teachers as temporary employees rather than six Apart from the speculation and the indefiniteness of Rees' testimony, it is clear that none of the men employed on the extra board were hired as permanent replacements for Loughhead and Tallent C Concluding Findings Insofar as General Counsel contends that the Company discriminated against Loughhead and Tallent because they were active in organizing company employees on behalf of the Union, I am constrained to dismiss the allegation as unsubstantiated by the evidence There is no showing that the Company was aware of their activity in this regard, and little, if any, evidence that the Company's approach to them was harsher than to other drivers who originally refused to take charter trips to the north The allegation in the complaint that the Company "interrogated [its] employees at [its] offices concerning their activities on behalf of the Union" must also be dismissed The sole evidence in support thereof is Rees' inquiry of Tallent as to the employees meetings, and this isolated casual inquiry is insufficient basis for a finding of unlawful interrogation As to the major issue, however, I agree with General Counsel that Loughhead and Tallent were discharged for engaging in a statutorily protected concerted activity, and for assisting a labor organization Both men were discharged for their refusals to drive northbound char- ters, and in both cases their refusals were the direct result of picketing activities by the Union is support of the strike against Safeway In essence, therefore, their refusals demonstrated that they were making com- mon cause with the Safeway strikers, that they were thereby engaging with those strikers in concerted activity for mutual aid or protection, and that they were assisting the striking union Indeed, Tallent expressly told the Company that he regarded the trip as "Safeway work," and Rees was aware that Tallent and other drivers "were going to get together and turn down the work " Loughhead, to be sure, expressed the ground for his refusal as fear of reprisal at the hands of the pickets Parenthetically, one may wonder whether Loughhead, a strong supporter of the Union, was altogether candid with the Company, or whether he, like Tallent the preceding April, was using his "fear" as an "excuse" as he hesitated to reveal his union sympathies But even assuming Loughhead was motivated by fear of reprisal, his subjective reason for joining in the concerted activity does not render it any the less concerted It may well be true in strike situations that some of the strikers participate out of fear of reprisal rather than out of a real commitment to the strike and its objectives, but it has never been held that inquiry into such motives is appropriate or that statutory protection is lost if 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employee's participation was dragooned rather than freely offered. The Board has repeatedly held that employees who respect a picket line of striking employees are thereby engaging in a protected concerted activity. Such holdings apply a fortiori to the instant case where the employing company is a sister corporation of the struck company (both wholly owned subsidiaries of the same parent) and where the work which the employee refuses is work which in all probability normally would have been performed by the struck company. For recent holdings see Lenkurt Electric Co., Inc., 177 NLRB No. 87, and the cases there collected by Trial Examiner Coren- man; Smith Transit, Inc., 176 NLRB No. 141, and the cases there discussed by Trial Examiner Scharnikow; Nuodex Division of Tenneco Chemicals, Inc., 176 NLRB No. 79, and the cases there cited by Trial Examiner Asher. Insofar as the Eighth Circuit indicated to the contrary in N.L.R.B. v. L. G. Everist, Inc., 334 F.2d 312, it is sufficient to note that the case is distinguishable, that the Board's holdings are binding upon me, and that the dissent by Judge Matthes in my opinion correctly states the law. The action of the employees in this case in refusing to drive northbound charters was equivalent to their respecting the picket lines and hence enjoyed statutory protection. The Company was, of course, free to replace them or indeed to discharge them if such action was reasonably necessary to carry on the Company's busi- ness. I find, however, that the Company acted in reprisal for the employees' concerted action rather than to carry on its business. The record is clear that no one had been hired in Loughhead's place at the time he expressed his readiness to drive northbound charter trips if the other drivers were doing so. Tallent was likewise not replaced by a permanent employee, so that it cannot be said that his severance was necessary to permit the Company to operate. At most the Company showed that it needed to rely on its extra-board men in rotation, but this would justify dropping Tallent for the duration of the strike , not discharging him.' I therefore find that by discharging Loughhead and Tallent for their refusal to operate northbound charters, the Company violated Section 8(a)(1) of the Act.' CONCLUSION OF LAW Respondent by discharging Loughhead and Tallent for engaging in a protected concerted activity and for assisting a labor organization committed an unfair labor practice affecting commerce within the meaning of Sec- tion 2(6) and Section 8(a)(1) of the Act. ', Furthermore , the charter trips which Loughhead and Tallent were refusing were in a real sense not part of the Company 's normal business, but part of an increase in that business brought about by the strike at its sister company ' Respondent emphasizes its statutory duty to operate these charters I would suppose that Safeway had even a greater "duty " to operate its regularly scheduled runs, but this would not warrant discharge of employees for going on strike THE REMEDY I shall recommend an order directing the Company to cease and desist from its unfair labor practices, to offer Loughhead and Tallent reinstatement with back- pay, and to post an appropriate notice. Backpay for Loughhead should commence on Thursday,,June 5, the date he offered to resume driving northbound charters. This offer was conditioned upon other drivers also under- taking such trips, but the Company was aware that this condition was being met. After his discharge Tallent never gave any indication of willingness to drive north- bound charters, and therefore backpay for him should commence with the termination of the strike. As he had been discharged, he was not required to apply for reinstatement after the strike, and Loughhead's expe- rience shows that such application on Tallent's part would have been futile. See the Lenkurt and Nuodex cases, supra; see also N.L.R.B. v. Comfort Inc., 365 F.2d 867, 877-878 (C.A. 8), and cases there cited. Back- pay should be computed in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Accordingly, upon the foregoing findings and conclu- sions and upon the entire record , I recommend , pursuant to Section 10(c) of the Act, issuance of the following: ORDER Respondent Virginia Stage Lines, Inc., its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee because he has engaged in concerted activities for mutual aid or protection and has assisted a labor organization by refusing during the course of a strike to perform work which the strikers contend would normally be performed by them. (b) In any like or related manner interfering with, restraining , or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to reinstate Richard Loughhead and Charles Tallent to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges , and make them whole in the manner described in the portion of the Trial Examiner ' s Decision entitled "The Remedy" for any loss of earnings suffered by reason of the discriminatin against them. (b) Notify Richard Loughhead and Charles Tallent if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request , make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports , and all other VIRGINIA STAGE LINES, INC. records necessary to analyze the amount of backpay due under the terms of this Decision. (d) Post at the Washington, D.C. Trailways Terminal, and at the garage in Washington, D.C., where the Compa- ny's busses are kept, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by an authorized representative, shall be posted by Respondent immediately upon receipt there- of, an be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material " (e) Notify the Regional Director for Region 5, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' I In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read "Notify the Regional Director for Region 5, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Richard Loughhead and Charles 721 Tallent their former jobs, and will pay them for losses they suffered as a result of our having dis- charged them in June 1969. If either of them should currently be serving in the Armed Forces of the United States, WE WILL notify him of his right to full reinstatement after discharge from the Armed Forces, upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. WE WILL NOT discharge , or threaten to discharge, or otherwise discriminate against , any employee for refusing , during the course of a lawful strike, to perform work which the strikers contend would normally be performed by them. WE WILL NOT in any like or related manner interfere with , restrain, or coerce employees in their right to engage in concerted activity for mutual aid or protection , or to assist a labor organization. VIRGINIA STAGE LINES, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21202, Telephone 301-962-2822.