Arrow Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1376 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arrow Industries, Inc. and Lee R. Crowley and Arrow
Industries Transportation Union. Cases 16 CA-
7321, 16-CA-7421, 16 CA-7431, and 16-RC 7448
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On May 10, 1979, Administrative Law Judge
Abraham Frank issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,t' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, only to the extent
consistent herewith.3
1. The Administrative Law Judge concluded that
striker Bobby D. Richie engaged in strike misconduct
that was sufficiently serious to justify Respondent's
failure to reinstate Richie. We do not agree.
As more fully described in the Administrative Law
Judge's Decision, during the strike, strikers Richie
and Will Ray observed one of Respondent's trucks
driven by mechanic Walt Henry leave Respondent's
plant. They followed the truck which Henry drove to
his wife's place of employment. At that point, the
strikers approached and spoke with Mr. and Mrs.
Henry, apparently with Richie and Mrs. Henry doing
all the talking.
Richie asked Mrs. Henry to convince her husband
not to drive Respondent's truck during the strike.
Mrs. Henry replied that her husband was not on
strike. According to the Administrative Law Judge's
factual findings, the brief conversation concluded
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 In affirming the Administrative Law Judge's conclusions as to Respon-
dent's disparate treatment of Lee Crowley, we note that, regardless of senior-
ity being a recognized fact of industrial life, Respondent's past practice had
been, in regard to truck assignments, to rely on seniority.
Pursuant to Hickmort Foods, Inc., 242 NLRB 1357 (1979), we find that a
narrow cease-and-desist order, rather than a broad order, is appropriate to
remedy the violations found herein.
with Richie angrily describing the strike as an "all out
war" and telling Mrs. Henry that "if Walt goes on the
run there will be trouble for you."
In concluding that Richie's remarks constituted se-
rious strike misconduct, the Administrative Law
Judge, in effect, concluded that the vice in Richie's
statements was that they were directed to Mrs. Henry
rather than Mr. Henry. The Administrative Law
Judge recognized that the term "trouble" is ambigu-
ous and that Richie's remarks were unaccompanied
by any threat of physical violence or assault.4
The Board has long held that "not every impropri-
ety committed in the course of a strike deprives an
employee of the protective mantle of the Act." In
past cases, the Board has found that a single isolated
threat, unaccompanied by any physical violence, is
not of a sufficiently serious character as to remove an
employee from the protection of the Act.6
Here, Richie's remarks were unaccompanied by
any threat of physical assault or violence. The conver-
sation with Mrs. Henry was brief and was not marked
with vulgar invective. Richie's statements, at worst,
constituted an isolated threat not followed by any ac-
tions meant to implement that threat.
Further, we cannot agree with the Administrative
Law Judge's conclusion that Richie's remarks rose to
a level of serious misconduct because they were di-
rected to Mrs. Henry. Admittedly, Mrs. Henry's en-
counter with Richie made her distraught. However, it
is quite significant that Mr. Henry was present for the
entire conversation and was standing only a few feet
from his wife. We do not condone Richie's having
directed his remarks to Mrs. Henry-or, indeed, that
he found it necessary to make any remarks at all-
but strikes frequently cause hard and bitter feelings
and are not normally accompanied by chivalry on the
part of strikers.7 Mrs. Henry was not so isolated that
Richie's "trouble for you" remark, without more, can
be found, under all the circumstances present, to con-
stitute serious strike misconduct. 8
4 Mrs. Henry testified that Richie made no gestures during the conversa-
tion, but, rather, kept his hands in his pockets.
Coronet Casuals, Inc., 207 NLRB 304 (1973).
6 See MP Industries, Inc., and its Subsidiaries, Micro Alloy of Missouri, Inc.
and Midwest Precision Castings Company, 227 NLRB 1710 (1977); Hartmann
Luggage Company, 183 NLRB 1246 (1970). enfd. in part 453 F.2d 178
(1971).
See Terry Coach Industries, Inc., 166 NLRB 560, 564 (1967).
Some courts of appeal have disagreed with the Board's reliance-in de-
termining the seriousness of strike misconduct-on the absence or presence
of physical threats. See, e.g.. N.LR.B. v. W C. McQuaide, Inc., 552 F.2d 519
(3d Cir. 1977), and Associated Grocers of New England Inc. v. N.LR.B., 562
F.2d 1333 (st Cir. 1977). In McQuaide, the Third Circuit applied the follow-
ing test for determining whether misconduct loses the protection of Sec. 7:
·. .whether the misconduct is such that, under the circustances existing, it
may reasonably tend to coerce or intimidate employees in the exercise of
rights protected under the Act. [552 F.2d at 528, quoting Operating Engineers
Local 542 v. N.L.R.B., 328 F.2d 850, 852-853 (3d Cir. 1964)]
245 NLRB No. 179
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ARROW INDUSTRIES, INC.
Accordingly, as we agree with the Administrative
Law Judge's rejection of Respondent's other reasons
for denying reinstatement to Richie, we find that
Richie did not engage in serious strike misconduct so
as to forfeit the Section 7 protection accorded em-
ployees who participate in lawful strikes. We shall
therefore order that Respondent reinstate Richie.9
2. The Administrative Law Judge found that Re-
spondent violated Section 8(a)(3) of the Act by em-
ploying lease drivers rather than recalling the eco-
nomic strikers. '° He also found that the strikers were
available for recall on and after April 29, 1977, and
that Respondent did not show legitimate and sub-
stantial business justification for denying the strikers
preferential treatment in filling job openings. We fully
agree.
In his cross-exceptions, the General Counsel asks
the Board to find specifically that Respondent's fail-
ure to reinstate the economic strikers upon the depar-
ture of the permanent replacements violated Section
8(a)(3) and (1) of the Act. Though such a finding is
implicit in the Administrative Law Judge's Decision,
we shall, lest there be any confusion, make the finding
sought by the General Counsel.
It is well settled that economic strikers who have
made unconditional offers to return to work are enti-
tled to full reinstatement unless their jobs have been
filled by permanent replacements, and that even after
such replacement the strikers are entitled to reinstate-
ment when the replacements leave unless the em-
ployer can show a legitimate and substantial business
justification for not reinstating them. N.L.R.B. v.
Great Dane Trailers, Inc., 388 U.S. 26 (1967);
N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375
(1967); The Laidlaw Corporation, 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969). It is clear
that after April 29, 1977-when the strikers applied
unconditionally for reinstatement-many of Respon-
dent's strike replacements, found to be permanent re-
placements by the Administrative Law Judge, left Re-
spondent's employ, but their jobs were not offered to
strikers. Accordingly, absent legitimate and substan-
In this case, were we to apply the court's test to Richie's remarks, the result
would be the same. Richie's isolated and ambiguous "trouble for you" state-
ment-made in the presence of Mrs. Henry's husband and unaccompanied
by any physical threats or vulgar invective-was not such as would reason-
ably tend to coerce or intimidate. The court's test is an objective one, and
thus the fact that Mrs. Henry became distraught is not determinative
Rather, under all the circumstances existing, Richie's conduct, under the
court's test, did not remove from him the protection of the Act.
I Consistent with this finding, we shall direct that the challenge to Rlchie's
ballot be overruled.
10 Respondent excepted to the Administrative Law Judge's finding that it
did not utilize lease drivers after December 1977. Respondent contends that
the record shows only that the use of leave drivers continued at least through
December. However, we need not resolve the issue raised by Respondent's
exception because, assuming arguendo, that Respondent used leave dnvers
after December 1977. we would nonetheless reach the same results In this
case.
tial business justifications for its actions, Respon-
dent's failure to offer strikers reinstatement upon the
permanent replacements leaving its employ violated
Section 8(a)(3) and (1) of the Act.
3. Respondent excepts to the Administrative Law
Judge's failure to rule on the challenge to the ballot of
Charles Schwemmer. The record reflects-as con-
tended by Respondent-that "Charles Clack" and
"Charles Schwemmer" are the same person and that
"Clark-Schwemmer" was hired as a permanent re-
placement by Respondent. Accordingly, we shall
overrule the challenge to Charles Schwemmer's bal-
lot.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Ar-
row Industries, Inc., Carollton, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in a labor organiza-
tion by discriminating against employees with respect
to terms and conditions of employment because they
had engaged in a strike and other protected concerted
activities.
(b) Discouraging membership in a labor organiza-
tion by employing lease drivers rather than recalling
economic strikers, who had terminated the strike
against Respondent and on whose behalf an uncondi-
tional application to return to work had been made
and by denying reinstatement to those economic
strikers upon the departure of their permanent re-
placements.
(c) Interfering with, restraining, and coercing em-
ployees by threatening to treat them as insubordinate
employees because they have filed charges with the
Board.
(d) Failing and refusing to reinstate Bobby D.
Richie, who unconditionally offered to return to his
job, for having engaged in a lawful strike or other
concerted activity protected under the provisions of
Section 7 of the National Labor Relations Act, as
amended.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer to Lee R. Crowley the use of a new rather
than an old tractor: permit him to "have say" in the
selection of his runs; apply the 24-hour layover rule
in a lenient rather than a strict manner; schedule
physical examinations for Lee R. Crowley at intervals
normally required unless Respondent has reasonable
1377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grounds for believing that such an examination is
necessary prior thereto; pay Lee R. Crowley the bo-
nus denied him in 1977; and make him whole for all
losses suffered by him as a result of the discrimination
against him, with interest, in accordance with the for-
mulas set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). (See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).)
(b) Make whole Wheeler Atkins, Kyle Brammer,
Charlie Bryant, Earl Butler, Edward Cordero, Lee R.
Crowley, O. E. Kirkland, William Lebo, Jesse Penn,
Lonnie Rand, Will Ray, Sam Rutledge, and Don
Worley for all losses in wages suffered by them as a
result of Respondent's discriminatory conduct in de-
laying reinstating them to their jobs by employing
lease drivers on and after April 29, 1977, when an
unconditional offer to return to work was made on
behalf of the above-named strikers, and by not rein-
stating them upon the departure of their permanent
replacements, with interest in accordance with the
formulas in the cases cited in 2(a) above.
(c) Offer Bobby D. Richie immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges
previously enjoyed and make him whole for any
losses caused by the failure to reinstate him in a
timely fashion, with interest in accordance with the
formulas set forth in the cases cited in 2(a) above.
(d) Post at its place of business in Carollton, Texas,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Re-
gional Director for Region 16, after being duly signed
by an authorized representative of Respondent, shall
be posted by Respondent immediately upon receipt
thereof, and 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 Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(f) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
" In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be dis-
missed with respect to the allegation that Respondent
violated Section 8(a)(3) and (1) of the Act by failing
to reinstate Joe Waldrop.
IT IS FURTHER ORDERED that Case 16-RC-7448 be,
and it hereby is, severed from this consolidated com-
plaint and remanded to the Regional Director; that
the ballots of the employees found herein 2 to be valid
be opened and counted by the Regional Director in
accordance with the Board's Rules and Regulations
and a revised tally of ballots issued and served on the
parties. In the event the Petitioner has received a ma-
jority of the valid ballots cast, the Regional Director
shall issue the appropriate certification of representa-
tive. In the event the Petitioner has not received a
majority of the valid ballots cast, IT IS HEREBY OR-
DERED that the election conducted on August 20,
1977, be, and it hereby is, set aside. The Regional
Director shall conduct a new election when, in his
discretion, a fair and free election can be held.
" In accordance with our Decision, the Regional Director shall open and
count, in addition to those challenged ballots overruled by the Administra-
tive Law Judge, the ballots of Bobby D. Richie and Charles Schwemmer.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Ar-
row Industries Transportation Union, or any
other labor organization, by discriminating
against our employees with respect to terms or
conditions or employment because they have en-
gaged in a strike or other protected concerted
activities.
WE WILL NOT discourage membership in the
above-named labor organization or any other la-
bor organization by employing lease drivers
rather than recalling economic strikers who have
terminated a strike against us and on whose be-
half an unconditional offer to return to work has
been made, and by denying reinstatement to
those economic strikers upon the departure of
their permanent replacements.
WE WILL NOT interfere with, restrain, and co-
erce our employees by threatening to treat them
as insubordinate employees because they have
filed charges with the National Labor Relations
Board.
WE WILL NOT fail or refuse to reinstate any
employee, upon his unconditional offer to return,
because he engaged in a strike.
1378
ARROW INDUSTRIES, INC.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the rights guaranteed them in Section 7 of the
Act.
WE WILL offer Lee R. Crowley the use of a
new tractor rather than an old tractor; permit
him to "have a say" in the selection of runs; ap-
ply the 24-hour layover rule in a lenient rather
than a strict manner; schedule physical examina-
tions for Lee R. Crowley at intervals normally
required unless we have reasonable grounds for
believing that such an examination is necessary
prior thereto; pay Lee R. Crowley the bonus de-
nied him in 1977; and make him whole for all
losses suffered by him as a result of our discrimi-
nation against him with interest.
WE WILL make whole Wheeler Atkins, Kyle
Brammer, Charlie Bryant, Earl Butler, Edward
Cordero, Lee R. Crowley, O. E. Kirkland, Wil-
liam Lebo, Jesse Penn, Lonnie Rand, Will Ray,
Sam Rutledge, and Don Worley, for all losses in
wages suffered by them as a result of our dis-
criminatory conduct in delaying reinstating them
to their jobs by employing lease drivers on and
after April 29, 1977, when an unconditional offer
to return was made on behalf of the above-
named strikers, and in not reinstating them upon
departure of their permanent replacements, with
interest.
WE WILL offer to Bobby D. Richie immediate
and full reinstatement to his formerjob or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or
other rights and privileges previously enjoyed,
and WE WILL make him whole for any losses
caused by our unlawful conduct against him,
plus interest.
ARROW INDUSTRIES. INC.
DECISION
ABRAHAM FRANK, Administrative Law Judge: The origi-
nal charges in this consolidated case were filed on July 12,
1977,' August 17 and 22. The original complaint issued on
August 24 and the consolidated complaint, alleging viola-
tions of Sections 8(a)(3) and (I) of the Act, issud on October
11. The hearing was held from May 22-24, 1978, in Dallas.
Texas. All briefs filed have been duly considered.
The litigated issues in this case relate to the Respondent's
alleged disparate treatment of a returning striker, its delay
in reinstating certain strikers upon their unconditional offer
to return to work, the status of strike replacements, Respon-
dent's refusal to reinstate one striker because of alleged mis-
conduct, alleged objectionable conduct of Respondent's
agent prior to a Board election, and the validity of chal-
All dates are in 1977 unless otherwise indicated.
lenges to the ballots of certain strikers and strke replace-
ments in the election of August 20.
I. FINDINGS OF FA(I AND (CONCLUSIONS OF LAW
A. Preliminary Findings and Conclusions
The Respondent, a Texas corporation with its plant lo-
cated in Carollton, Texas, is engaged in the business of pro-
cessing and packaging food and food related products. Re-
spondent admits and I find that it is engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the Act.
The Petitioner, hereinafter called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
B. The Strike of March 20
On February 27 officials of the Respondent including its
president, Marcus Rosenberg, and its general manager,
Tarland Beauchamp, met with the over-the-road drivers for
a "brunch" at the Columbian Country Club. At this meet-
ing Respondent was presented with a document listing a
number of demands of its drivers for improved working
conditions and an increase in pay. Respondent was notified
that the employees had come together to form a union that
would be known as Arrow Industries Transportation
Union. The president of the Union, Bobby D. Richie. was
the spokesman for the group of employees at this meeting.
The various demands of the Union were discussed at that
time. Rosenberg agreed to some of the items. As to other
items, Rosenberg indicated that he would need a couple of
weeks to think about them. The meeting ended on that
note.
On Sunday, March 20, the over-the-road drivers struck
and established a picket line at Respondent's plant. The
strike lasted until April 29 when the strikers uncondition-
ally requested reinstatement.
C. The Respondent's Operations
At its Dallas plant Respondent packages and processes
various food and food related items. Food, such as dried
beans, rice, and popcorn are bought in bulk in hopper cars
ranging in size from 180,000 to 190.000 pounds per car. The
food is packaged in plastic bags and delivered by Respon-
dent to food chains and customers throughout the United
States, generally by truck and trailer. Respondent also re-
winds aluminum foil to various lengths of rolls. It produces
charcoal lighter fluid and plastic film for various types of
produce bags. These items too may be shipped by truck to
Respondent's customers.
Respondent employs several categories of over-the-road
truck drivers.
Historically, it has preferred to employ its own perma-
nent drivers to drive equipment owned or leased by Re-
spondent. At the time of the strike these employees, when
driving singly, were paid at the rate of 11-1/4 cents per mile
plus an unloading fee. Driving in teams of two, they were
paid 18 cents per mile, divided between the lead driver and
his codriver, with the former receiving a fraction more than
the latter. These employees also received a benefit package,
1379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which includes insurance, profit-sharing, and medical bene-
fits, the total comprising from 20-25 percent of an employ-
ee's total cost.
Respondent also utilizes owner-operators or "broker"
drivers, who haul loads for Respondent one-way with their
own equipment. These drivers are hired either individually
or through "brokers." In the latter event Respondent pays
the broker rather than the individual operator. Generally,
such drivers haul only products that are exempt from ICC
regulated freight rates. Products of this type are those that
have not been processed such as dried beans, rice, and pop-
corn. ICC regulations apply if the load comprises more
than 5 percent of nonexempt items. Nonexempt items are
those that have been processed such as sugar, pepper, foil,
and plastic film. The exemption of certain products from
ICC regulations permits Respondent to negotiate the cost
of transportation more freely. Broker drivers and owner-
operators are paid on the basis of hundred weight measure-
ments rather than mileage. In addition to the economic ad-
vantage of using such drivers for exempt commodities, Re-
spondent finds it necessary to use short term temporary
drivers because of the peaks and valleys in its business op-
erations. However, with respect to nonexempt products, un-
der ICC cost structures Respondent can operate its own
equipment more economically with its own drivers than
outside drivers.
The Respondent has also utilized a category of driver
known as a "lease" driver. These drivers, employees of a
leasing company, provide driving services only. They are
hired and processed by the leasing company in compliance
with all Department of Transportation (DOT) regulations
and report to the Respondent without the necessity for fur-
ther processing or examinations. Respondent pays the leas-
ing company for the services of the lease drivers on a mile-
age basis. Nationwide Driver Service is the leasing
company from which Respondent has secured at least 90
percent of its lease drivers. Respondent pays Nationwide 16
cents per mile for a lease driver driving singly. The driver is
paid from 10 cents to 12 cents per mile by Nationwide.
Lease drivers, driving in teams of two, are paid 15 cents per
mile by Nationwide. Nationwide pays for the original phys-
ical examination of its lease drivers, social security taxes,
workmen's compensation insurance, hospitalization insur-
ance and, for some drivers, vacation benefits.
As distinguished from owner-operators and broker driv-
ers, lease drivers use Respondent's equipment and make
backhauls for Respondent with that equipment. They carry
the same products and perform the same service for Re-
spondent as that performed by Respondent's own perma-
nent employees.
Outside drivers are used by Respondent on an ad hoc
basis. A driver might be utilized for a single load or a num-
ber of loads over a period of several months. Such drivers
form a labor pool which can be utilized by Respondent to
take care of week-to-week problems. A temporary surge in
business might result in an increase in loads to be hauled
from 50 one week to 70 the next week. There is some sea-
sonal fluctuation in Respondent's business. The charcoal
season starts in May and runs through August. Demand for
beans and rice starts in September and continues through
February. The number of multidrops may vary from week
to week and results in the use of additional equipment.
During the strike Respondent had a problem in obtaining
railroad cars, resulting in a greater than usual number of
loads of charcoal. The need for additional drivers might
result from the increased use of team drivers. Driving dou-
ble, these drivers cover more miles with the same piece of
equipment.
Prior to the strike Respondent owned 23 tractors. Re-
spondent also leased four tractors, two of them on a 6-
month lease ending in October. Two tractors were leased on
a week-to-week basis. In addition. Respondent purchased
five more tractors, delivered in October or November.
Normally, Respondent does not utilize lease drivers.
However, for a time beginning several weeks before the
strike of March 20 and continuing until sometime in De-
cember, Respondent leased a number of such drivers.
Respondent also permits customers to pick up merchan-
dise at the plant with their own drivers and equipment.
D. The Disparate Treatment of Lee R. Crowley
Crowley, an employee of Respondent for I I years, par-
ticipated in the March 20 strike and was active in subse-
quent picketing activities at Respondent's plant. He and
Richie were observed stepping on the running boards of
trucks to persuade the drivers not to enter Respondent's
plant.
Following the April 29 offer of the Union to return the
strikers to work Crowley was offered reinstatement and be-
gan driving the week ending May 18.
Prior to the strike it had been the practice of Respondent
to assign tractors on the basis of seniority with the under-
standing that the driver would use his tractor for at least
two years. However, the newer tractors were licensed for
long distances and it is the policy of the Respondent to use
new tractors for long distances, such as the East and West
Coasts. Crowley preferred shorter runs, such as St. Louis
and Denver, Colorado. Seniority was also the basis upon
which the drivers were assigned their runs. The senior driv-
ers, such as Crowley, were permitted to participate in the
selection of runs.
Before he became an active striker Crowley had been
assigned a new tractor, No. 119. When he returned to work
in May he was assigned an older piece of equipment, No.
87. This tractor was badly in need of repairs and on one
occasion caught fire. Moreover, Crowley no longer had a
say in the selection of his runs. Crowley also noted that his
stop appointments were later after the strike than they had
been before the strike. The ideal stop appointment is 7.
After the strike his stop appointments were 10 o'clock or II
o'clock and sometimes as late as 12 o'clock. Crowley com-
plained to management through channels. At one point Ro-
senberg said the appointments would be run by seniority,
but this did not happen at that time. Crowley also believed
that he was receiving multiple stops for his loads, which
resulted in loss of driving time. Before the strike Crowley
believed his stops per load were two or less. However. with
respect to this issue, the record shows that for the month of
June (rowley had nine runs, of which seven were two stop
loads, one was a three stop load, and one was a five stop
load. These stops compare favorably to stops assigned to
Barnett, an employee senior to Crowley.
1380
ARROW INDUSTRIES, INC.
Respondent also had a policy of paying drivers a $15
layover fee if they were delayed for a 24 hour period
through no fault of their own. Crowley testified that before
the strike he was always paid for his layovers even if he
lacked 3 or 4 hours; that there was a special or friendlier
atmosphere. After the strike he was paid on some occasions
and not paid on others. Beauchamp testified that Crowley
was not paid for certain layovers because they did not ex-
tend to the 24 hour period.
On Friday, July I., Crowley returned from a run and
found a note to the effect that his medical card had expired
and he was to take a physical examination. Medical cards
are normally good for 2 years. Crowley called Joe Thomas,
the traffic manager, and told him that something was
wrong, that Crowley's medical card was dated December 6,
1976, and was only 6 months old. Thomas told Crowley to
call Beauchamp. Beauchamp told Crowley that Beau-
champ thought Crowley's card had expired. Crowley
pointed out that his card was only 6 months old and Beau-
champ said, "Well, you'll have to come in Tuesday and
we'll straighten it out."
Beauchamp's decision to require Crowley to take a phys-
ical examination was made after Beauchamp had discussed
with an insurance agent the number of accidents and Re-
spondent's liability.
On Tuesday, July 5, Crowley met with Beauchamp in the
dispatch office. Crowley asked why he had to take another
physical examination. Beauchamp said, "You have a haz-
ardous condition." Crowley asked what it was, and Beau
champ replied, "You, wear a hearing aid." Crowley agreed,
but pointed out that Respondent's doctor had prescribed
the hearing aid some years ago. However, Beauchamp said,
"Well, you're going to have to take a physical before you
get back out. I'll set the appointment up." Crowley pro-
tested that there had to be a reason for it, that he had never
had a ticket or bodily injury driving a truck for the Respon-
dent. Nevertheless, Beauchamp insisted the Crowley would
have to see Dr. Sikora, Respondent's doctor.
Later that afternoon Crowley had a second meeting with
Beauchamp in the presence of Rosenberg. At this meeting
Crowley informed Beauchamp and Rosenberg that Crow-
ley had been instructed by an attorney and the U.S. De-
partment of Labor to inform Respondent that Crowley had
filed charges with respect to Beauchamp's order that Crow-
ley take a physical examination. At the conclusion of the
meeting Rosenberg told Crowley that "if they can't do you
any good, I'll take this as insubordination and you know
what that means." Crowley's formal charges were, in fact,
filed with the Board on July 12.
On November 25 Beauchamp wrote to Crowley that Re-
spondent would again assign him to runs if Crowley could
produce written evidence of physical fitness. On November
29 Crowley took a physical examination with Dr. James R.
Jeter and was pronounced physically fit. The original ex-
amination did not indicate that Crowley wore a hearing aid
and Crowley testified that he took it without a hearing aid.
However, after a call from Beauchamp, Dr. Jeter corrected
his physical certification of Crowley to add the use of a
hearing aid. Crowley provided Beauchamp with a copy of
the results of the examination and was dispatched several
weeks later.
Under DOT regulations a motor carrier is not restricted
to the Department's minimum requirements for medical ex-
aminations of drivers. If it is believed necessary, a motor
carrier may impose more stringent or additional require-
ments. Beauchamp testified that he became suspicious of
Crowley's hearing ability because Crowley required the use
of a hearing aid. Beauchamp's suspicions were heightened
when Crowley resisted the idea of taking a physical exami-
nation.
Crowley's medical card prior to the card dated December
6, 1976, is dated April 15, 1974. The medical card of Will
Ray, a driver employed by Respondent in 1974 and em-
ployed at the time of the March 20 strike, is dated Septem-
ber 3, 1974. The medical record of driver Edward Cordero,
employed by Respondent from 1970, shows physical exami-
nations on January 1, 1977, January 19, 1972, December
22, 1974, and November 13, 1970.
Crowley testified that he refused to take a physical ex-
amination to be given by Dr. Sikora for two reasons. First,
he disliked going to doctors and, second, he had been told
by the then dispatcher, Bob Wilson, that Crowley was
being set up to be fired.
For the first time during his employment with Respon-
dent Crowley did not receive a Christmas bonus in 1977.
Beauchamp testified that there is no standard policy with
respect to Christmas bonuses: that such bonuses are deter-
mined by Mark and David Rosenberg. Employees em-
ployed for a year are considered. There have been occasions
when employees other than Crowley did not receive a
Christmas bonus.
E. The Refusal To Reinstate Bobby D. Richie
As indicated above, Richie was the president of the
Union and the chief spokesman for the drivers in negotiat-
ing terms and conditions of employment.
He began his employment with Respondent on March 5,
1976. Prior to the alleged misconduct in the instant case
there is no evidence that Richie engaged in any acts of
violence or other misconduct. During the summer of 1976
he was awarded a bonus by Respondent as a result of his
good record with respect to shortages and equipment.
After the termination of the strike Richie asked officials
of Respondent on 4 or 5 occasions about being recalled. On
each occasion he was told there were no openings for him.
During the summer of 1977 Beauchamp told Richie in a
telephone conversation that Richie was no longer needed at
Arrow: that there had been some misconduct on his part in
the form of mischief or threats. Richie was never officially
terminated.
Richie's "Employee's Status Change" record shows, as of
May 18, that he was "subject to reemployment based on a
preferential recall list established by seniority of L. D. Driv-
ers." The document, signed by a member of Respondent's
personnel department, was approved by Beauchamp. Beau-
champ was instructed by Respondent's cocounsel in this
case, William R. Keller, to put this notation in the files of
all the strikers after the Union's unconditional offer to re-
turn to work. Beauchamp specificall3 discussed Richie's
case with Keller. Beauchamp told Keller that Respondent
was not interested in returning Richie to work and asked
Keller's opinion. At that time charges were pending with
1381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board with respect to alleged unlawful conduct of the
Union involving Richie. Respondent was also investigating
Richie's conduct shortly before the strike in leaving a truck
and returning to Dallas, a dischargeable offense. Keller ad-
vised Beauchamp that Richie was the president of the
Union and Beauchamp should be somewhat careful as to
what he did in Richie's case. Keller testified in corrobora-
tion of Beauchamp.2 Keller also testified that in the course
of his discussions with Board agents he advised them that
Richie would not be returned to work.
Respondent relies essentially upon three incidents with
respect to Richie's alleged misconduct.
As to one incident, the evidence adduced by Respondent
is hearsay. Three witnesses for Respondent testified to con-
versations about a week after the beginning of the strike
with strike replacements Darvin Baker or his brother,
Arllen. Thomas testified that he was called by one of the
Baker brothers and informed that they had been pulled
over on Beltline Road by two, three, or four individuals:
that these individuals pulled the Baker brothers out of their
car and beat them up; that there was a weapon involved;
and that one of the individuals otherwise unidentified wore
a "Lincoln-like" beard. Beauchamp testified that he was
told by Darvin Baker that the Baker brothers had been
pulled over by two individuals, one of whom had a "Lin-
coln-like" beard; that there was a fight; that one of the
individuals threatened the Baker brothers with a gun. Bill
R. Cannon, a security official, testified that he was told by
one of the Baker brothers that they were stopped by several
people maybe three, on Beltline Road, including a man
with a "Lincoln-like" beard; that a fight ensued during the
course of which one of their interceptors produced a gun;
that, to the best of his recollection he was not told that the
individual with the "Lincoln-like" beard produced the gun.
The record shows that Respondent made a serious effort
to obtain the testimony of Darvin and Arllen Baker. How-
ever, neither of the Baker brothers testified.
Richie wears a "Lincoln-like" beard.
Richie denied participating in such an incident and de-
nied threatening to shoot a strike replacement. Beauchamp
never questioned Richie with regard to this incident.
A second incident, alleged by the Respondent as ground
for refusing to reinstate Richie, occurred during the week
prior to the March 20 strike. Richie and his codriver Earl
Butler were dispatched on Sunday, March 13, to Detroit. A
Board hearing in relation to the Union's pending petition
for an election was scheduled for March 16. Richie did not
complete the trip, but left the truck somewhere outside of
St. Louis and returned to Dallas early on Tuesday. Butler
completed the run to Detroit and returned alone to Dallas.
Neither Richie nor Butler reported to Beauchamp that
Richie had left the truck en route to Detroit. Richie was
paid for the run to Detroit and half of the unloading fee.
Some time during that week Beauchamp had a discussion
with Richie about the incident. Richie informed Beau-
2 At the close of the heanng Keller offered to testify and did, in fact, testify
as to matters relating to Richie's alleged misconduct. Much of this testimony
is hearsay and some of it of questionable relevance. I reserved judgment on
the receipt of Keller's testimony. Upon further consideration I have decided
to, and do, accept his testimony to permit full consideration by me and
perhaps others of every possible aspect of Respondent's defense.
champ that Richie had returned to Dallas without complet-
ing his run so that he could attend the Board hearing. Beau-
champ told Richie that the situation was under
investigation. Butler was not disciplined for his participa-
tion in the incident and was offered reinstatement along
with other strikers on October 28. Butler did not inform
Beauchamp that Richie had left the truck in St. Louis until
a few days before the hearing in this case.
A third incident relates to Richie's alleged threat to
Verna Henry, the wife of Walt Henry, a strike replacement.
Shortly after the commencement of the strike Richie and
Will Ray, another striker, observed a Wilco truck, driven
by Henry, pulling out of Respondent's plant. Henry drove
to his wife's place of employment. Richie and Ray followed.
Mrs. Henry had gathered clothes and funds for Ray's trip.
The testimony is sharply in conflict as to what ensued.
Mrs. Henry was standing by Henry's truck when Richie
and Ray arrived. Richie testified that he told Mrs. Henry,
"Mrs. Henry, do you know that we're on strike?" And she
said, "Yes, I do, but Walt is not a truck driver." And Richie
said, "Yes, ma'am, but we are, we're trying to better our-
selves. Please don't let Walt leave town." Richie testified
that the conversation was friendly, but that Mrs. Henry was
distraught at the close of it and crying.
Mrs. Henry testified that Richie approached her and
said, "Ask your husband not to take this trip." She said,
"What are you talking about?" Richie replied, "Tell him he
better not take this trip." She said, "Well, why?" Richie
said, "Well, because we are on strike." Mrs. Henry re-
sponded, "Walt's not on strike, he works in the garage."
Richie then said, "This is not just a strike. It's all-out war."
Mrs. Henry said, "Well, you know he's not a driver and if
he wants to take it he can take it." Richie replied, "Well.
I'm telling you to ask him not to take this trip because if
you do, it might cause some trouble for you and your chil-
dren."
Mrs. Henry became frightened because the drivers knew
her husband and had some idea where the Henrys lived and
knew that they had three children.
Henry testified that Richie told Mrs. Henry to tell her
husband not to go out of town, that it would mean trouble
for her and the family if Henry took the trip.
Mrs. Henry filed a charge with the Board with respect to
this incident and gave an affidavit to a Board agent (G.C.
Exh. 25). The affidavit states, in part, that Richie said,
"Well if Walt goes on the run there will be trouble fbr you,"
but does not mention a threat to her children.
Richie is also alleged to have engaged in misconduct dur-
ing the picketing activities at Respondent's plant. During
the first day of picketing there was considerable excitement
at the picket line. The strikers' families were present and
there was screaming at trucks and officials. Richie at times
called drivers scabs. There is evidence that Richie told a
driver that it would be a long, dark trip back home.
F. The Failure To Reinstate the Strikers Upon Their
Unconditional Offer To Return to Work
On April 29 the Union made an unconditional offer to
return all strikers to work.
The following 16 drivers participated in the strike:
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ARROW INDUSTRIES. INC.
Wheeler Atkins Dale Kidd
Kyle Brammer William Lebo
Charlie Bryant Jesse Penn
Earl Butler Lonnie Rand
Edward Cordero Will Ray
Bobby C. Richie Sam Rutledge
Lee R. Crowley Joe Waldrop
O. E. Kirkland Don Worley
Kidd returned to work the week ending April 6, before
the end of the strike.3 Crowley returned initially in the week
ending May 18. Kirkland returned the week ending May 25
and Lebo the week ending June 6. Ray returned the week
ending October 12. On October 18 Respondent offered rein-
statement to Rand and Adkins. On October 28 Respondent
offered reinstatement to Waldrop, Butler, Penn, Rutledge,
Bryant, Cordero, Worley, and Brammer. With respect to
Cordero, he had indicated to Respondent previously that he
did not wish to return to work until the entire dispute was
resolved.
Respondent refuses to offer reinstatement to Richie on
the ground that he had engaged in misconduct before and
during the strike.
When the strike commenced on March 20 the Respon-
dent's initial need was to get drivers wherever it could so
that the trucks could be dispatched. Lease drivers were the
quickest and surest source of supply at that time. Although
it was possibly cheaper to operate Respondent's equipment
during the strike with lease drivers, after a few days Re-
spondent's officials determined that they needed a labor
force of permanent drivers at least equal to the number they
had had before the strike.
To secure replacements for the strikers Respondent ad-
vertised and contacted several leasing companies, including
Nationwide. The latter company was not in the business of
providing permanent drivers for other companies. How-
ever, Rosenberg called Ben Madill, President of Nation-
wide, and the two entered into a verbal agreement whereby
Nationwide would act as an employment agency for Re-
spondent to recruit, receive applications from drivers, and
process them on behalf of Respondent. Respondent agreed
to compensate Nationwide with a fee amounting to 5 per-
cent of the first year's gross pay of each permanent driver
sent by Nationwide to Respondent.
Nationwide advertised for drivers through newspaper ads
and word of mouth without indicating that the drivers were
being hired for Respondent. In addition to hiring new driv-
ers Nationwide permitted its own lease drivers to transfer to
Respondent, if they so desired. Drivers hired for Respon-
dent by Nationwide filled out application forms to which
Respondent's name was appended.' Nationwide processed
the applicants in accordance with DOT requirements.
When the applicants reported to Respondent their medical
cards were in order and they had passed written and driving
tests and were qualified to drive Respondent's trucks. Gen-
erally, these new drivers were interviewed by Beauchamp
)G.C. Exh. 5 lists Williams, Barnett, Howe, McKenzie, and Patrick as
strikers who returned to work on or before the week ending Apnl 21. How-
ever, the complaint does not allege that these employees participated in the
strike.
'The parties stipulated that strike replacements, other than those hired
through Nationwide, used Respondent's normal application form.
or another company official before being dispatched. They
were informed that their jobs were permanent jobs and
were advised that they would receive the benefits offered by
Respondent to all permanent employees. These benefits in-
cluded insurance, hospitalization, holidays, and profit shar-
ing after the first 90 days of employment. They filled out
forms normally filled out by new employees.' They were not
given polygraph tests, which Respondent gave all new em-
ployees, in view of Nationwide's screening procedures and
verification of the driver's character.
In December Madill received a check from Respondent
for $4,659.69. This check represented the 5 percent fee due
Nationwide for its employment service in providing perma-
nent drivers to Respondent for the period March 26
through November 19 minus one-half the shortages of lease
drivers provided by Nationwide for the months of August,
September. and October.
The record is somewhat confused with respect to the
identification of permanent drivers supplied by Nationwide
and lease drivers over the same period. For example,
Charles Schwemmer, not listed as a permanent replacement
on General Counsel Exhibit, 5, became a permanent re-
placement at the same time as Mary Ann Schwemmer on
March 24, according to Madill. Don Hurd is listed by
Madill as a lease driver for the period from March 28 to
October 28. One-half of D. Hurd's shortages were charged
by Respondent to Nationwide for the period noted above.
But Donald Hurd is listed on General Counsel Exhibit 5 as
a permanent replacement beginning on March 26. A driver
named "Hurd" is listed as a new hire loss for the week
ending April 6.
At the time of the strike Respondent had 24 permanent
drivers. During the period from March 21 to April I I Re-
spondent hired at least 29 and possibly 31 permanent re-
placements. Of these all but 6 were supplied Nationwide.
During the period from the week ending March 23 to the
week ending October 26 Respondent employed from 22 to
32 permanent employees. During this period Respondent
offered reinstatement to 4 strikers. Of these, for reasons
stated below. Crowley was refused employment from July 5
to about the middle of December.
During the period from January 6 to March 17 outside
drivers were used by the Respondent to carry 340 loads, an
average of 30.90 loads per week. During the same period
Respondent used its own permanent employees to carry 375
loads, an average of 34.09 loads per week. With respect to
the outside drivers during this period, the record does not
show a break-down between owner-operator, broker driv-
ers, and lease drivers. During the period from March 24 to
December 31 Respondent used outside drivers for 1069
loads, an average of 26.07 loads per week, and its own per-
manent employees for 1248 loads, an average of 30.44 loads
per week.
The record shows that for the period from the week end-
ing February 28 to the week ending December 10 Respon-
dent utilized 90 lease drivers, some of them for single runs
5 Forms used for the sinking employees when they were first employed by
Respondent, such as employee status change, employee withholding exemp-
tion certificate, and termination notice were the same forms used by Respon-
dent to process employees hired as stnke replacements from March 24
through April II.
1383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and others for multiple runs. Between the dates of February
28 and December 13 Nationwide billed Respondent for 58
lease drivers, some of them for single runs and others for
multiple runs. For the period after April 29, the date the
strikers unconditionally offered to return to work, begin-
ning with the week ending May 9 to the week ending Octo-
ber 28, when all remaining strikers, except Richie, were of-
fered reinstatement, Respondent utilized 48 lease drivers,
some of them for one or two loads and others to carry loads
from week to week over a period of months.
At the time of the hearing Respondent employed no lease
drivers.
Respondent utilized all of its equipment from the time of
the strike to the end of the year.
G. The Remarks of Joe Berman
Berman, a labor relations consultant, met with Rosen-
berg and Beauchamp on August 2 and was asked by them
to explain to the drivers the procedures involved in the
Board election, scheduled for August 20. Berman met with
the employees the following Sunday at the Holiday Inn.
The meeting lasted less than an hour. Berman showed them
a sample ballot and explained how to vote for or against the
Union. He then asked for questions. One of his listeners
asked if the new drivers would lose their jobs to the old
drivers if the Union were voted in. Berman testified that he
responded, that he just didn't know, that he had not been
involved in a case as complex as Respondent's.
Peggy Shaver, a strike replacement, testified that she had
asked Berman something to the effect, if the Union is voted
in, we'll lose our jobs, won't we? Berman responded, "Well,
I really can't say."
O. E. Kirkland, a striker, testified that Berman told
Shaver, in response to her question, that she would prob-
ably lose her job if the Union won the election. However,
Kirkland conceded that his memory was not good and. in-
consistently, that Berman did not talk about the election;
that Berman's remarks were made during the strike be-
tween the middle of March and the middle of April.
II. ANALYSIS AND FINAL CONCLUSIONS OF LAW
A. The Disparate Treatment of Lee B. Crowleiy
I find that Respondent engaged in the following disparate
treatment of Crowley to discourage union activity following
his return to work on May 18, thereby violating Sections
8(aX3) and (I) of the Act.
(I) Depriving Crowley of the use of tractor No. 119 to
which he had been assigned before the strike on the basis of
seniority and requiring him to use an older piece of equip-
ment, tractor No. 87. Although the newer tractors were li-
censed for long distances and Crowley preferred shorter
runs, this situation had existed before as well as after the
strike. Before the strike Respondent's policy of seniority
took precedence, at least with respect to Crowley, a senior
driver with an excellent driving record for more than II
years. He was entitled to reinstatement in the same job un-
der the same conditions of employment. Obviously, the use
of a new tractor rather than a tractor in need of repairs is
an important and substantial condition of employment.
Nor is the fact that Crowley's tractor had been assigned
during the strike to a strike replacement a defense to such
disparate treatment. Seniority is a recognized fact of indus-
trial life. The junior employee yields to his senior, all other
factors being equal, until the former, in turn, earns a fa-
vored status.
(2) Depriving Crowley of his right. as a senior employee,
to "have a say" in the selection of runs, a right he had
enjoyed prior to the strike. I make no finding with respect
to discrimination as to runs with multiple stops. The record
does not show actual discrimination against Crowley in this
respect.
(3) Applying a strict construction to Respondent's 24-
hour layover policy. Prior to the strike this policy had been
applied by Respondent in a lenient fashion so that the
$15.00 layover fee was paid a driver even if he lacked a few
hours to comply with the 24-hour rule.
(4) Requiring Crowley to take a new physical examina-
tion solely on the ground that Crowley wore a hearing aid,
which he had worn for several years. Beauchamp's suspi-
cion of Crowley's physical fitness for this reason has a hol-
low ring. In the context of Respondent's discriminatory
conduct toward Crowley and Crowley's impeccable record
as a safe and careful driver it is not believable. Never before
had Crowley been required to take physical examinations
on a 6-month basis. There is no evidence that any other
driver had been subjected to such a requirement and, in-
deed, at least one other driver had been permitted to con-
tinue driving without complying with the normal 2-year in-
tervals between physical examinations. Crowley's own
suspicion that he was the object of Respondent's discrimi-
nation was enforced by the dispatcher's comment to him
that Crowley was being set up for discharge and the implied
threat of Rosenberg on the afternoon of July 5 that Crowley
would be discharged if his charges against Respondent were
not sustainable. I conclude that Respondent's purpose in
requiring Crowley to take a new physical examination on
July 5 was to harass and intimidate him because of his
union and protected concerted activities.
(5) Denying Crowley a bonus in 1977 which he had
regularly and customarily received prior to the strike. The
complaint does not allege this conduct to be an unfair labor
practice. Respondent claimed surprise when Crowley testi-
fied to this effect on May 23. The General Counsel indi-
cated that he would not amend the complaint to include
this conduct as a violation of Section 8(a)(3). I would make
no finding as to this issue if the matter rested there. How-
ever, on May 24 Respondent, with time to investigate and
prepare its defense, adduced the testimony of Beauchamp,
set forth above. It is Board law that an issue, fully litigated,
related to, but not included in the complaint, is before me
for resolution. I conclude that the matter was fully litigated
and Respondent's defense is without merit. Crowley is an
excellent employee with no blemish on his record. Never
before had he been denied a bonus. I find that he would
have received a bonus in 1977 but for his activity on behalf
of the Union and this conduct, like the conduct set forth
above. constitutes unlawful discrimination against Crowley.
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ARROW INDUSTRIES. INC.
B. The Refusal To Reinstate Bohhlv D. Richie
It is the position of the General Counsel that Richie did
not engage in such serious misconduct as to warrant a de-
nial of reinstatement and that, in any event, Respondent's
records show that Richie was considered eligible for rein-
statement on May 18, well beyond the period of the alleged
misconduct.
Addressing first the issue of condonation, I find, despite
the comment on Richie's May 18 status change form, that
Respondent at no time intended to forgive and forget
Richie's conduct during this strike. Beauchamp told Keller
that Respondent did not want to return Richie to work, but
was advised by Keller that the safest legal course was to
hold in abeyance disciplinary action against the president
of the Union. Keller also advised agents of the Board that
Respondent did not intend to reinstate Richie. In these cir-
cumstances the mere statement on Richie's status change
form that he was subject to reemployment on a seniority
basis is insufficient to establish that Respondent, in fact.
condoned charges against him of serious misconduct then
in the process of investigation.
I turn now to the alleged serious misconduct.
As to the incident involving the Baker brothers, the evi-
dence in the record implicating Richie is hearsay, some of it
double hearsay. Even as to such testimony, there are incon-
sistencies. The witnesses were told that there were two,
three, or four agressors and that one or another of these
individuals produced a gun or a weapon of some kind.
While they agreed that they were told that a man with a
"Lincoln-like" beard was inolved, Beauchamp never ques-
tioned Richie as to his involvement. Richie denied engaging
in such conduct. Neither he nor any other striker was iden-
tified as a participant. I conclude that the evidence is insuf-
ficient to find that he did, in fact, engage in the Baker
brothers incident or that Respondent had reasonable
grounds for so believing.
Respondent also relies upon Richie's violation of Com-
pany rules in leaving his truck with his codriver enroute to
Detroit during the week preceding the strike. Although
Richie was scheduled to appear at a Board hearing on
March 16, it was error on his part to believe he could make
the trip to Detroit and return in time for the hearing. He
also engaged in improper conduct by claiming mileage pay
for the entire trip to Detroit and half the unloading fee. It
was, however, equally improper conduct for his codriver,
Butler, to conceal from the dispatcher or Beauchamp that
he had driven alone from St. Louis to Detroit. Butler failed
to inform Beauchamp of this critical bit of information un-
til a few days before the hearing. Yet, so far as the record
shows, Butler was not disciplined or even warned with re-
spect to his conduct. There is no evidence in this record that
Richie had previously engaged in misconduct with respect
to his duties as a driver. As indicated above, he received a
bonus for his good driving and shortage record. The inci-
dent cited above thus appears to be a first offense for
Richie. Taking into consideration the above factors,
Richie's status as the president of the Union and its most
outspoken champion, Respondent's hostility to the Union.
as evidenced by its discrimination toward Crowley and
other conduct cited below, and the absence of evidence that
any other driver was discharged for a similar offense. I find
that Respondent would not have refused to reinstate Richie
on the basis of the above conduct but for his union and
concerted activities.
With respect to Richie's conduct on the picket line, cred-
iting Respondent's witnesses that Richie told at least one
driver it would be a long, dark trip back home, I conclude
that his misconduct was not so serious as to justify Respon-
dent's denial of reinstatement on this ground. The use by
strikers of imprecations, ambiguous threats, shouting, and
fist waving is part of the "animal exuberance" that accom-
panies a strike. Such misconduct is not so flagrant or egre-
gious to require subordination of an employee's right to
reinstatement following the termination of a strike.
The incident involving the Henrys requires. initially, a
resolution of credibility. I do not believe Richie's testimony
that he politely and genteely asked Mrs. Henry to tell her
husband not to take a run during the strike. Richie's "Lin-
coln-like" beard gives him an air of distinction. but not one
of saintliness. Mrs. Henry would not have been distraught
and crying at the conclusion of their conversation if it had
been friendly and without and conceivable threat. On the
other hand. I do not credit Mrs. Henry that Richie explic-
itly threatened trouble for her children if her husband took
the trip. Her affidavit to the Board does not mention a spe-
cific threat to her children and surely she would have in-
cluded that allegation at that time if such a threat had been
made. I find that Richie angrily told Mrs. Henr, during the
course of their conversation that the strike was "all-out
war" and that he also said, "Well if Walt goes on the run
there will be trouble for you."
With respect to the statement of Richie that the strike
was "all-out war," I conclude that it did not constitute seri-
ous misconduct to justify a denial to him of the protection
of the Act.
In my opinion, however, the threat to Mrs. Henry that
there would be trouble for her if her husband took the trip
falls into another category.
I have considered the threat to Mrs. Henry at some
length. In so doing I have considered the personalities in-
volved, the fact that the threat was made to Mrs. Henry,
not Henry, the fact that the strikers followed Henry to his
wife's place of employment, the fact that Mrs. Henry was a
nonemployee, that she had children and Richie knew it,
that she was a female, and that Richie is a big, forceful
male. My impression of Mrs. Henry is that of a highly emo-
tional and fearful woman. I recognize that the term "trou-
ble" is ambigous, that it was, at most, an isolated threat
unaccompanied by an assault other than that which may be
implied from Richie's angry tone. Nevertheless. I am per-
suaded in the context of this case that it was a threat of a
serious nature, which Mrs. Henry could reasonably believe
extended not only to her. but to her children. An entirely
different inference would be warranted if the threat had
been made to Henr, but Richie saw fit to use the added
impact of a threat to Henry's wife. Without impugning the
equality of the sexes, there are obvious biologic differences
between men and women which all must concede and some
applaud. A mother of children, confronted b a big, stern-
visaged. angry striker, and told that there would be "trouble
for her" if her husband took the striker's job, could reason-
1385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ably suffer extreme concern and fear. The record shows that
Mrs. Henry did, in fact, react in that manner.
I am cognizant of the Board's and the courts' concern
that strikers are entitled to the full protection of the Statute
even when their conduct during a strike may be character-
ized as minor misconduct which in and if itself cannot be
condoned. It may well be that Richie acted impulsively in
the heat of economic combat without intending the full
consequences of his conduct. The line is sometimes difficult
to draw between minor and major strike misconduct. I con-
clude however, that Richie's threat to Mrs. Henry falls into
the latter category.
I therefore find that Respondent did not violate Sections
8(a)(3) and (1) of the Act by failing to reinstate Bobby D.
Richie.
C. The Refusal To Reinstate the Strikers Upon Their
Unconditional Offer To Return to Work
As of April 29 only one striker, Kidd, had returned to
work. Fourteen other strikers were eligible and available for
employment as over-the-road drivers. After April 29 up to
October 28 Respondent offered reinstatement to six strikers
on various dates. Of these, Crowley's reinstatement was
abruptly terminated on July 5 by an unlawful demand that
he take a new physical examination.
Under long established law the status of a striker as an
employee continues until he has obtained "other regular
and substantially equivalent employment." He is entitled to
full reinstatement when a job for which he is qualified be-
comes available. This right can only be defeated if the em-
ployer can show "legitimate and substantial business justifi-
cation." The Laidlaw Corporation, 171 NLRB 1366 (1968);
enfd. 414 F.2d 99 (7th Cir. 1969); N.L.R.B. v. Fleetwood
Trailer Company, Inc., 389 U.S. 375 (1967); Brooks Re-
search & Manufacturing, Inc., 202 NLRB 634 (1973).
Respondent began hiring permanent replacements for
the strikers within a few days after the strike began and
continued to hire such replacement until April II, the day
before the end of the eligibility period for the August 20
Board election. Respondent hired such replacements, as in-
dicated above, primarily through Nationwide, a leasing
company not normally engaged in the business of providing
permanent drivers for other carriers.
The General Counsel argues that these replacements
were not, in fact, permanent replacements, although he
concedes that six replacements, hired through other
sources, including leasing companies, were permanent re-
placements. The issue has given me some concern. The
facts are fully set forth above and will not be repeated here.
The law is clear that an employer has a right to perma-
nently replace economic strikers. This rule is bottomed on
the proposition that an employer has a right to continue his
business and may find it difficult, if not impossible, to hire
competent temporary employees during the course of a
strike. In the instant case, however, it was at the Respon-
dent's insistence, not that of the employees, that they be-
came permanent. They were not hired from Respondent's
normal source of employees; nor were they processed by
Respondent in the normal manner. Nevertheless, all of the
employees so hired were told that their jobs were perma-
nent and they were given all of the benefits normally given
to permanent employees. I see no substantial distinction
between the drivers hired through Nationwide as perma-
nent employees and those hired through other leasing com-
panies. Another question would be presented if the evi-
dence were sufficient to warrant the conclusion that
Respondent, rather than using lease drivers on a temporary
basis, hired permanent replacements for the purpose of
punishing the strikers and defeating the Union in the forth-
coming election. While the evidence in this case is some-
what suspicious, it is not enough to warrant such a conclu-
sion. Respondent is entitled to the exercise of its own
business judgment that permanent drivers, subject to its
own direct control, are preferable to lease drivers in piloting
and caring for Respondent's expensive equipment and car-
go. Accordingly, I find, contrary to the General Counsel,
that drivers hired as permanent replacements through Na-
tionwide and other sources were, in fact, permanent re-
placements for the strikers.
I nevertheless conclude that jobs for which the strikers
were qualified were available on and after April 29 and that
Respondent has not shown legitimate and substantial busi-
ness justification in denying the strikers preferential treat-
ment in filling such jobs. Respondent has thereby violated
Sections 8(a)(3) and (1) of the Act.
Defending its failure to recall the strikers in a timely fash-
ion, Respondent argues that it did not need additional per-
manent employees at times when the strikers were not, in
fact, recalled to work. Respondent points to statistics show-
ing a decline in loads of 13 percent for the period March 24
to December 31 as compared to the pre-strike period of
January 6 to March 17. During this period Respondent
maintained the same relative balance between "Outside
Drivers" and Arrow drivers. This defense has no merit. His-
torically, outside drivers were owner-operators or broker
drivers, who used their own equipment rather than Respon-
dent's and were paid on a hundred-weight basis rather than
mileage. The record shows that lease drivers, who drove
Respondent's equipment and were paid on a mileage basis,
as were the permanent employees, were not used by Re-
spondent until several weeks prior to the strike, during the
strike, and during the critical period of election eligibility
after the strike. No lease drivers were employed by Respon-
dent at the time of the hearing.
Nor is there merit to Respondent's defense that lease
drivers were preferable to the strikers after April 29 because
of the peaks and valleys in Respondent's business and the
comparable cost. Lease drivers and permanent employees
carry the same cargo, use the same equipment, perform the
same duties, and are paid on a mileage basis. Permanent
employees receive about 11 to 12 cents per mile with a
benefit package of 20 percent to 25 percent more. The cost
to Respondent of a lease driver is 16 cents per mile, a rough
equivalence. Dispositive of the issue, however, is the Re-
spondent's time-tested business judgment that permanent
employees are preferable to lease drivers in driving Respon-
dent's equipment and handling its cargo. I have, above,
given preponderant weight to this judgment in rejecting the
General Counsel's contention that the strike replacements
hastily hired by the Respondent after the strike were not
bona fide permanent replacements. The Respondent cannot
have it both ways. If Respondent preferred to replace the
1386
ARROW INDUSTRIES, INC.
strikers with permanent replacements when lease drivers
were easily available it cannot argue with persuasive logic
that lease drivers were preferable to its own permanent em-
ployees when the latter unconditionally applied for rein-
statement on April 29.
The record shows that lease drivers made 15 trips in May
and 15 in June. In July they made 35 trips. In August they
made 41 trips. In September they made 43 trips. In October
they made 58 trips. For the month of June the average
number of trips made by Respondent's permanent drivers.
driving singly or in teams of two, was 5.32. Thus, for the
month of June there were two or three available jobs which
the strikers were qualified to perform. Jobs were available
in May and in the months after June up to and including
October. Under the cases cited above the strikers were enti-
tled to be recalled to these jobs and no legitimate and sub-
stantial business justification has been shown by the Re-
spondent in failing to do so.
D. The Alleged 8(a)(1) Conduct
I find that Respondent violated Section 8(a)(1) of the Act
by Marcus Rosenberg's comment to Crowley on the after-
noon of July 5, referring to Crowley's statement that he had
filed charges against the Respondent, that "if they can't do
you any good, I'll take this as insubordination and you
know what that means." Crowley could reasonably inter-
pret Rosenberg's statement as a threat of discharge in the
event the Board failed to issue a complaint on his charges.
I find that the Respondent did not violate Section 8(a)(1)
with respect to the comments made by Berman to Respon-
dent's employees prior to the election of August 20. Kirk-
land, the only witness to testify that Berman said a strike
replacement would lose her job if the Union won the elec-
tion, appeared to be confused and conceded that his mem-
ory was not good. I credit Berman and Silver, both of
whom testified that Berman responded to a question of this
nature by saying that he did not know.
E. Ancillary Findings
The unfair labor practices found above are unfair labor
practices within the meaning of Sections 2(6) and (7) of the
Act.
I make no finding with respect to Joe Waldrop as no
evidence was presented that he was unlawfully denied rein-
statement, as alleged in the amended complaint.
F. Objections to the Election and Challenged Ballots
The objections allege the Respondent interfered with the
election of August 20 by Berman's comments to the em-
ployees prior to the election; Respondent's discriminatory
treatment of Crowley: Respondent's method in recalling
strikers following their unconditional offer to return to
work. In view of my conclusion with respect to Berman's
comments, I find that objection without merit. In view of
my conclusions with respect to the latter objections, they
are sustained.
The appropriate unit is:
All over-the-road truck drivers employed at Arrow In-
dustries. Inc.. Carollton, Texas, plant; excluding all
other employees, office clerical employees, dispatchers,
shop personnel, local delivery drivers, guards, watch-
men, and supervisors as defined in the Act.
Respondent challenged the ballots of Wheeler Atkins,
Kyle Brammer, Charles Bryant, Edward Cordero. Lee
Crowley, William Lebo. Lonnie Rand. Will Ray. Bobbie
Richie, and Donnie Worley.
In view of my conclusions with respect to Lee Crowley,
the challenge to his ballot is overruled
In view of my conclusions with respect to Bobbie D.
Richie. the challenge to his ballot is sustained, but only on
the ground that his misconduct disqualifies him for rein-
statement.
With respect to the challenges to the ballots of the re-
maining eight above-named employees, these challenges are
overruled.
Respondent's reliance upon the decisions in The Martin
Bros. Container & Timber Products Corp., 127 NLRB 1086
(1960) and Wagner Electric Corp., 127 NLRB 1082 (1960) is
misplaced. Those decisions have been overruled implicitly.
L.E.M., Inc.. d/b/a Southwest Engraving Co. and Towell
Printing Co., 198 NLRB 694, 696, 704-705 (1972). See. also,
C. H. Guenther & Son, Inc., d/b/a Pioneer Flour Mills, 174
NLRB 1202 (1969), enfd. 427 F.2d 983 (5th Cir. 1970). De-
spite the termination of a strike, strikers who have uncondi-
tionally requested reinstatement remain members of the
unit until they have obtained other regular and substan-
tially equivalent employment and under Section 9(c)(3) are
entitled to vote in a Board election within the 12-month
period from the beginning of the strike. Ibid.
The Petitioner challenged the ballots of Hubert Allen,
Charles R. Anderson, David Beard, Gene Croker, Nancy
Doephe, Jimmie Hill, Gerald Hopper, Tommie Light,
Wayne Roth, Wendolyn Roth, Charles Schwemmer, Mary
Ann Schwemmer. Milford Shaver, Peggy Shaver, Lucille
Varner, Russell Varner, and Richard Zafavaro.
I make no finding with respect to the challenges to the
ballot of Charles Schwemmer since the record is unclear
with respect to his status as a permanent replacement.
With respect to the challenges to the ballots of the re-
maining above-named employees, those challenges are over-
ruled in view of my conclusion that they were permanent
replacements for the strikers.
[Recommended Order omitted from publication.]
1387