Blasingame Well Service

National Labor Relations Board - Board Decisions

Mar 12, 1969

174 N.L.R.B. 1126 (N.L.R.B. 1969)

1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blasingame Well Service and Oil Field Workers of
Louisiana , a Division of Local 692. Case
15-CA-3232
M arch 12, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On November 5, 1968, Trial Examiner John G.
Gregg issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending dismissal of the
complaint in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting brief. The
Respondent filed cross-exceptions together with a
supporting brief.
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 connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner 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,
cross-exceptions, briefs, and the entire record in this
case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
In adopting the Trial Examiner's Decision , the Board attaches no
weight to his findings with respect to the nature of the strike and picketing
which began on August 31, 1967 We find it unnecessary to decide the
Respondent ' s contention that employees who engage in a strike and
picketing violative of Section 8(b)(7) are engaged in unprotected activity,
since we agree with the Trial Examiner that the Respondent 's discharge of
Landry and Trahan was not shown to have been for discriminatory
reasons
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN G. GREGG, Trial Examiner : This trial was
conducted at Lake Charles , Louisiana , on June 25 through
28, 1968, upon allegations in the complaint of the General
Counsel issued on March 20, 1968, in Case 15-CA-3232,
based upon charges filed on January 15 , 1968, and the
duly filed answer of the Respondent to the aforesaid
complaint
The General Counsel alleges essentially that the
Respondent committed unfair labor practices in that it
discriminatorily failed to reinstate or employ and
discriminatorily terminated the employment of certain
employees in violation of Section 8(a)(3) and (I) of the
Act The Respondent denies the commission of any unfair
labor practices
During the trial witnesses Robert J Daily and James
Vincent, named in the complaint as alleged discriminatees,
admitted on cross-examination that they had given false
statements to the National Labor Relations Board during
the investigation of the charges herein According to Daily
they had agreed to do this in advance of statements
Following the close of the trial the General Counsel,
finding that further proceedings with respect to Daily and
Vincent would not effectuate the purposes of the Act,
moved to dismiss those portions of the complaint
pertaining to Daily and Vincent The Respondent joined in
this motion The Charging Party opposed essentially on
the grounds that there is no authority for such dismissal,
that the false statements were made subsequent to the
events which were the basis for the charge, and are
separate from the violations alleged in the complaint and
that dismissal of the complaint as to these individuals
would not effectuate the purposes of the Act
I have carefully considered the motions of the General
Counsel, the Respondent and the Charging Party, and the
record herein, and I am convinced that there is merit in
the motion of the General Counsel and hereby grant the
motion to dismiss those portions of the complaint
pertaining to Robert J Daily and James Vincent as
effectuating the purposes of the Act. General Maintenance
Engineers, Inc, 142 NLRB 295
Subsequent to the trial the Respondent moved the Trial
Examiner to accept as additional evidence a copy of a
petition for workman's compensation, filed with the 14th
District Court of Cameron Parish, Louisiana, by counsel
for Norman Trahan, an alleged discriminatee herein
According to the Respondent the petition alleges that
Trahan is totally and permanently disabled and unable to
perform the work of his trade The Charging Party objects
on the grounds that the filing is an allegation by counsel
to meet requirements of Louisiana law in order to protect
the rights of Trahan, and that under the Louisiana law
Trahan could be entitled to benefits for permanent
disfigurement such as permanent scars to the face which
injury Trahan allegedly sustained An examination of the
petition offered into evidence reveals the following
allegation "Solely on account of the accident set out
above, petitioner is unable to perform the work of his
trade, as indicated herein, and because of this capacity is
totally and permanently disabled, or in the alternative is
totally partially disabled, or in the alternative is otherwise
disabled under the Workmen's Compensation Laws of this
State, and that his injury has been medically described in
part as a severe laceration of the chin with resulting
damages to the jaw and permanent scarring " In view of
the alternative nature of the allegations and the sense of
the paragraph in total context, I am not disposed to view
this as an unqualified or unconditional allegation by
Trahan that he was totally disabled so as to be
unemployable at the times material herein. Accordingly I
hereby deny the Respondent's Motion for Acceptance of
Additional Evidence
Upon the entire record in this case, from my
observation of the demeanor of the witnesses as they
testified, and after careful consideration of the briefs of
174 NLRB No. 166
BLASINGAME WELL SERVICE
those parties filing briefs herein, I make the following.
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
The Respondent is a Louisiana partnership composed
of Rex A Blasingame, Thomas Blasingame, Lynn R
Jones, Lynn R. Jones, Jr., Rex R Jones, William D.
Jones, and Franklin Jones, engaged in the drilling and
workover business on oil fields in southern Louisiana, with
its principal office at Lake Charles, Louisiana
During the past 12 months, which period is
representative of all times material herein, the
Respondent, in the course and conduct of its business
operations, purchased materials valued in excess of
$50,000 which were shipped directly to the Respondent
from points outside the State of Louisiana
The Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Oilfield Workers of Louisiana, a division of Local 692,
is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the
Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that on or about August 28,
1967, and thereafter certain of the Respondent's
employees ceased work concertedly and went on strike:
That by letter of October 12, 1967, and by personal visits
at the times specified; Norman Trahan, on October 16,
1967; C W. Clement, on October 16, 1967, Clyde Landry,
on October 17, 1967, each made unconditional application
for reinstatement and/or employment in their former or
substantially equivalent positions of employment, that
from on or about December 6, 1967, the Respondent
failed to reinstate and/or employ the employees named
above, and that on or about December 6, 1967, the
Respondent notified said employees that it had terminated
their employment, and at all times thereafter the
Respondent failed and refused and continues to refuse to
employ and/or reinstate them to their former or
substantially equivalent positions of employment. The
General Counsel alleges that the Respondent failed to
reinstate or employ, and terminated the employment of
the employees named above, for the reason that the said
employees had joined or assisted the Union and had
engaged in other concerted activities for the purpose of
collective bargaining or mutual aid or protection and to
discourage union and other concerted activities of its
employees, and that by the foregoing acts the Respondent
has committed unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (I) of the Act.
In its answer the Respondent denied the commission of
any unfair labor practices, denied that any of its
employees ceased work and went on strike on August 28,
1967, admitted that after August 28, 1967, certain of its
employees engaged in recognitional picketing which
according to the Respondent evolved into an illegal strike
accompanied by severe violence The Respondent admits
the receipt of a letter of October 12, 1967, requesting
reinstatement, and that certain employees may have made
personal visits to the Respondent's office pertaining to
1127
applications for employment. The Respondent alleges that
Clyde Landry, C W. Clement, and Norman Trahan
voluntarily terminated their employment with the
Respondent prior to August 28, 1967, and that the said
employees had no expectancy of rehire on August 28,
1967, nor at any time thereafter The Respondent argues
essentially that Trahan, Clement and Landry were not
employees of the Respondent at anytime material herein
that since the union engaged in unlawful picketing the
Respondent is under no duty to reinstate Trahan,
Clement, and Landry, that Trahan, Clement, and Landry
engaged in gross misconduct, and that the Respondent did
not condone such misconduct.
The record indicates that the Union requested to meet
with the Respondent by letter of July 1, 1967, and was
refused an appointment by telegram of July 6, 1967,
stating that the Respondent had a serious and good-faith
doubt of the Union's majority in an appropriate unit
Subsequently on August 18, 1967, the Union notified the
Respondent by letter that the Union represented a
majority of the Respondent's employees in a unit
consisting of all employees working at drilling and
workover sites, and demanded recognition as the exclusive
bargaining agent for the employees in the said unit In this
notice the union also requested that the Respondent
bargain with the Union and stated that the Union was
prepared to prove majority status by a third party check
of authorization cards against current payroll The
Respondent replied by telegram of August 21, 1967,
reiterating its good-faith doubt and suggesting recourse by
the Union to Board election procedures.
Picketing at the Edgerly Field site, where the
Respondent was working for the Pan American Petroleum
Corporation, commenced on August 31, 1967, and
continued almost daily until October 7, 1967, when the
picket lines were withdrawn Ample credible testimony
and other evidence of this record establishes the fact and
it was freely conceded by the General Counsel that the
picketing was recognitional, and that it was conducted
without a petition being filed within a reasonable period of
time not to exceed thirty days from the commencement of
the picketing. Such recognitional picketing is clearly
,yiolative of the Act. Butchers Union, Local No 120,
Meat Cutters, (Moniz Portugese Sausage Factory), 160
NLRB 1465.
In reaching this finding I have disregarded and given no
weight to exhibits of record covering a settlement
agreement which was effected between the Union and the
Respondent and approved by the Board's Regional
Director, as I view this evidence as not constituting an
adjudication of the legality of the strike and picketing and
being no admission by the Union concerning the activity
in question
There was also ample credible testimony on this record
to establish the fact and I find that Clement, Trahan, and
Landry participated in the unlawful picketing at various
times during the period August 31 through October 7,
1967
As I view it, the threshhold question in this case is
whether or not Clement, Trahan, and Landry, at the times
material herein, were employees of the Respondent within
the meaning of the Act.
Norman Trahan testified that he worked for the
Respondent starting somewhere around December 26,
1965, and worked for about 2 weeks: He worked again for
the Respondent starting about June 1966 and worked for
about 6 months, subsequently worked for the Respondent
starting around June 1967 and worked for about 3 weeks
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the Cameron job until the Cameron job closed
According to Trahan he was told that the workers on the
Cameron job would be called back when the rig started up
again Subsequently, according to Trahan when a derrick
hand was needed on the Edgerly site job on August 1,
1967, Trahan was called out to Edgerly and worked a day
helping to rig up, taking the place of the missing derrick
hand At that time he was asked by Hill, a supervisor, if
he would stay on if the derrick hand failed to report and
he told Supervisor Hill that he would have to take the
next day off to go to the doctor to get stitches taken out
of his hand According to Trahan, it the other derrick
hand did not show up Trahan was to be called to return to
the job Trahan stated that he was not recalled to the
Edgerly job, that he had never quit the job and that he
waited to be called back and intended to go back with the
Respondent. Trahan testified that he participated in the
picketing at Edgerly on several occasions, that he joined
in the October 12 request for reinstatement, and that he
subsequently on October 16, 1967, together with Cooley
and Clement went to speak to Mr. Blasingame to request
reinstatement According to Trahan at that time
Blasingame said that he had plenty of jobs but he was
"scared to take us because he couldn't afford to be shut
down anymore, he would be willing to put us back to
work, if we wouldn't walk off and shut him down again "
According to Trahan, "we told him that we would go
back to work again but we wasn't going to cross any
picket lines." Trahan testified additionally to receiving a
letter of December 8, 1967, from the Respondent stating
"we are refusing your application for reinstatement
because your job was eliminated while you were out on
strike." Trahan testified that from 1965 until August 1967
he worked for other contractors besides the Respondent;
working about 3 or 4 weeks for the Brownie Drilling
Company; 7 or 8 months for Luke Fruge, about 9 months
at the Bethlehem Steel Shipyard in Beaumont and
occasionally at odd jobs in the rice fields
Trahan testified further that after working at the
Respondent's Edgerly site on August I, and after going to
the doctor's on August 2, he next worked for about 2
weeks starting August 15 on a drilling rig for Otis Russell
as a derrick hand. According to Trahan on August 150
when he went to work for Otis Russell he still anticipated
recall by the Respondent. Trahan testified that he left Otis
Russell because of a problem with transportation, that
following his employment with Russell, he was employed
with Laughlin Brothers starting about November 1967,
that after 3 weeks there the job finished Following this
Trahan stated he was called by Laughlin Brothers but the
job required him to move to New Iberia, so he did not
take it
Charles %V Clement testified that he first went to work
for the Respondent in 1966 and worked for 3 or 4 months,
subsequently worked for the Respondent in 1967 starting
around the middle of July 1967 until August 22. On
August 22, while working at the Edgerly Field site he
went to Mr Hill, a supervisor, and told him that he was
going to take a week or so off to take his family on a
vacation Clement stated that he had asked Hill to either
get someone to take his place or let him get someone to
take his place, that there were members of the crew who
were off and were available. According to Clement, Hill
stated that he would arrange for an employee to take
Clement's place According to Clement, he did not
specifically advise Hill as to when he was going to return
to work, but merely told him he was going to take a week
or so off. Clement testified that he returned on the
evening of August 29 to his home and on the morning of
August 30, 1967, went out to the Edgerly site He stated
that he found that there would be a picket line out, so
consequently he did not try to go to work, that he let his
substitute work that day According to Clement, he was
subsequently notified that a picket line would be set up
the next morning, the morning of August 31, 1967 He
went out to the Edgerly site on the morning of the 31st
and participated in the picketing According to Clement,
he did not quit his job when he took off on his vacation
and he had expectations of working for the Respondent
when he returned as he considered that his job Clement
testified that he sought reemployment with the
Respondent after August 22 through the letter dated
October 12, 1967, to the Respondent and by a personal
visit to Mr Blasingame in the company of Norman
Trahan and Sidney Cooley Clement testified that they
asked Blasingame about employment
Q As close as you can recall, what was said'?
A We asked about employment and he said that at
the present time he didn't have anything going He
thought in a few days he might have a rig to kick off
and he would see about it
Clement testified to receiving a letter dated December 6
from Mr. Blasmgame-saying "we are refusing to reinstate
you due to your misconduct on the picket line during the
strike of Blasingame Well Service " However, Clement
himself testified that it was common knowledge that while
he was working for the Respondent at the Edgerly site he
was out on strike from another employer at Lake Charles
Clement testified that he was working for Blasingame
only until such time as the strike was over and then he
was going to go back to F. Miller & Son, that is, if he
had a job there Clement testified that when the AGC
strike was over, at the end of September, he went back to
work for F Miller & Son and was employed with them
since then He testified that on the date that he signed the
letter of October 12 requesting reemployment with the
Respondent he was not working for F Miller & Son, but
he had worked for F Miller the day before and returned
to work there several days later
Clyde Landry testified that he had been employed by
the Respondent before October 1966 and that the last fob
he had worked on was the Cameron job, and that he had
not been employed by any other employer during this
period According to Landry, when the job ended at
Cameron, he spoke to Hill who told him that there was
no more work in the yard or in the rig According to
Landry, nothing was said about future employment
Landry stated that he did not quit his job, but that he
expected to work for the Respondent again when he was
called he would be ready to go According to Landry
when he finished the Cameron job he signed up for
unemployment. According to Landry, someone signed the
letter requesting reinstatement dated October 12 on his
behalf, and subsequently, on October 17, 1967, together
with several others, he went to see Blasingame According
to Landry, Blasingame said "if this mess will stop, we will
go back to work " Landry stated that he asked
Blasingame for a job, and that Blasingame replied that as
soon as he would get one he would call
Rex Blasingame, Respondent's president, testified that
when Landry came to his office with several others on
October 17, 1967, to seek reinstatement or reemployment
they came in as a group Blasingame stated that at that
time he had the letter of October 12, 1967, seeking
reinstatement but was awaiting advice of counsel
BLASINGAME WELL SERVICE 1129
Blasingame also testified to a visit by Trahan who came
with Cooley and Clement as a group around the same
time Blasingame stated he was "scared" when the groups
came into his office, as they "came in like maniacs, rush
in, don't knock, came right in the office "
Blasingame testified that the misconduct for which
Landry was refused reinstatement included Landry's
alleged visit, together with Chesson, to the home of Albert
East where Chesson allegedly told East that Chesson
"would shoot him out of his automobile if he worked for
Blasingame "
Blasingame testified further that he had no work and
no vacancies on October 12, 1967, and on October 16 and
17, 1967, but that he had hired and replaced employees
since October 12, 1967.
Thomas Ray Hill testified that he was in the employ of
the Respondent since 1960 and was a tool pusher for the
Respondent Hill testified that on August 22, C W
Clement came by and said that he was going to Mexico
on a vacation Clement had started working with the crew
at 7 that morning and he informed Hill of his intention to
go to Mexico at 10 o'clock that morning His normal shift
would have ended at 5 o'clock in the afternoon.
Q Do you recall the words he used when he told you
that he was leaving"
A He said that he was going to Mexico on a
vacation, probably would not be back because his other
job was suppose to be started up
Hill stated that he did not have a conversation with
Clement before Clement walked off the job about his
going on vacation and that he did not tell Clement that he
would get someone to work in his place. Hill denied that
Clement had previously told him he would go on vacation
and that Hill should get someone to work for him while
he was on vacation and that Clement would get his job
back when he got back off his vacation According to
Hill, Clement told him that he was going back to his old
job, they would have been off strike, and he would get his
old job back
Of the conflicting versions given by C. W Clement and
Thomas Ray Hill, I credit the testimony of Thomas Ray
Hill I do not credit the version of Clement I am
convinced by ample credible testimony of record that
Clement took off at 10 o'clock in the morning without
prior notice and that in fact he had at that point indicated
that he would not return to work for the Respondent but
would resume his employment at F Miller which had
been interrupted by a strike Accordingly, I find that
Clement voluntarily terminated his employment with the
Respondent and at the times material herein he was not
an employee of the Respondent It is significant that when
Clement returned from his vacation on August 30, 1967,
he did not resume his employment with the Respondent
even though he visited the work site the next day. On
balance, I find that Clement was not an employee of the
Respondent within the meaning of the Act at the times
material herein. In fact, at the termination of the strike
Clement returned to his former employer where he has
continued in employment It appears to me that the
guidelines set forth by the Board in Hondo Drilling
Company, 164 NLRB No. 67, although provided in
connection with a voter eligibility question have
considerable relevance here There the Board stated "the
employment practices in the oil well drilling industries
differ substantially from those found elsewhere. For this
reason particular care must be taken to insure that our
determination of voter eligibility takes into account the
special pattern of employment evidenced here ." The
Board went on to fashion an eligibility formula which
excluded from voting those who have quit voluntarily,
those who have been terminated for cause prior to the
completion of the job for which they were employed, and
those who did not have a recent history of substantial
employment with the Employer On the basis of ample
credible testimony of the record herein I am convinced
and I find that Clement voluntarily quit his employment
before the completion of the particular job on which he
was employed and accordingly was not an employee of the
Respondent at the time of the picketing and at the times
of his request for reinstatement by letter of October 12,
1967, and his subsequent personal request to Blasingame
While the Respondent's act of notifying him in December
of its refusal to reinstate him because of his conduct on
the picket line might indicate by implication that the
Respondent considered him to have retained employee
status, I am convinced that he did not I credit Hill's
statement that Clement said he would not return to the
Respondent's employ at the end of his vacation While
Clement maintained a continued interest in general future
employment with the Respondent he had no anticipation
of continuing his employment with the Respondent at the
end of his vacation and accordingly did not retain
employee status While the General Counsel argues
persuasively and not without merit that Clement should be
considered a part of the labor pool available for
intermittent future employment I do not view this as
providing him with employee status within the meaning of
the Act.
Turning to Trahan, the record establishes a history of
prior employment with the Respondent and a break in
temporary employment for the purpose of visiting the
doctor, following which he was not recalled by the
Respondent I credit the testimony of record by Trahan in
which he states that he was given to understand by Hill
that if the derrick hand whom he was temporarily
replacing did not return to work Trahan would be recalled
after visiting the doctor. Under these circumstances I view
Trahan as an employee of the Respondent in a temporary
layoff status and I find that he was an employee of the
Respondent within the meaning of the Act at the time of
the picketing and the subsequent requests for
reinstatement by letter of October 12, 1967, and his
subsequent personal request for reemployment made to
Rex Blasingame, the Respondent's president
Considering the testimony of record concerning Landry,
while Supervisor Hill could not remember whether he had
told Landry and the other members of his crew at the end
of the Cameron job that he would call them as soon as he
had anything, he did so state in his pretrial statement to
the Board and he did testify that he probably told them
that "we would go to work later on " It is clear from the
record that Landry did not voluntarily quit his
employment with the Respondent and had not been
terminated by the Respondent In view of the foregoing, I
am convinced and I find that Landry was an employee of
the Respondent on temporary layoff status within the
meaning of the Act at the times material herein
While the General Counsel urges that Clement retained
his employment status, I do not view this as supported by
the evidence of record In Universal Insulation
Corporation, 149 NLRB 1397, 1399, the Board stated,
"There is no evidence that by working for other employers
the employees were not following the usual practice of
employees in the building and construction trades of
working for whatever contractor had work available.
Thus, such employment for other employers, even at a
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
higher rate of pay, cannot be viewed in the circumstances
herein as indicating the employees' abandonment of their
employee status with Respondent or their intent to refuse
work from Respondent in the event such work were
offered to them " In the circumstances of the case at hand
there is ample evidence to persuade me that Clement was
not following the normal pattern outlined in Universal but
had indicated his intent to abandon employee status with
the Respondent to return to his former employer, and did
in fact abandon such employment at the time he
summarily terminated work on the Respondent's going
project for the stated purpose of taking off on a vacation
prior to returning to his former employment
As for Landry and Trahan I find that they retained
employee status with the Respondent A worker not
currently working but on a temporary layoff status
remains an employee, and when inquiring about
reinstatement is an applicant for employment and
employee under the Act K & M Machine Co., 162
NLRB No 9.
I find therefore that at the time of the commencement
of picketing on August 31, 1967, Clement was not an
employee of the Respondent within the meaning of the
Act. Trahan and Landry however enjoyed employee status
at that time.
Turning to the question of whether or not Trahan and
Landry lost their status as employees because of their
mere participation in the strike and picketing activities
herein, I am convinced that they did not Wallick and
Schwalm Company, 95 NLRB 1262 The General Counsel
argues that although Trahan and Landry participated in
an unlawful strike which became violative of the Act, the
Respondent condoned such unprotected activity and thus
waived its right to discipline these employees, citing
Wallick and Schwalm, supra, wherein the Board stated
"An employee who engages in unprotected activity
becomes subject to discharge, but does not lose his status
under the Act An employer may waive his right to
discharge an employee for this reason Once he has made
the waiver, an employer cannot later assert it as a valid
reason for discharge or refusal to reinstate. Similarly,
although employee participation in such unprotected
activities gives an employer the right to discharge for such
conduct, the employer may act for entirely different
reasons If the employer in fact discharges an employee
for discriminatory reasons, the circumstances that the
employer might have discharged him for a valid reason,
for example, participation in unprotected activities, is not
subsequently available as a defense to the discriminatory
discharge."
The General Counsel argues that the Respondent
condoned the unprotected activity of Trahan and Landry
in that at no time herein prior to the Respondent's answer
to the complaint did the Respondent raise the defense that
Trahan and Landry were engaged in an illegal strike or
unprotected activity, pointing out that in its notice to
these employees the Respondent refused them
reinstatement on other grounds and only raised this as an
afterthought in its answer, also citing Atlas Linen and
Industrial Supply, 130 NLRB 761, where the defense was
raised for the first time at the hearing With this I cannot
agree
In finding a waiver in Wallick and Schwalm, supra, the
Board noted that "in the present case the defense that the
employees had engaged in unprotected activities was not
made in the Respondent's answer to the complaint or at
the hearing before the Trial Examiner. It was raised for
the first time almost 2 years after the event in the
Respondent's brief to the Board . " However unlike
Wallick and Atlas in the case before us the defense was
raised in the answer and at the hearing, and additionally
the actions of the Respondent, on balance, were not
consistent with any inference of condonation
Most significantly I find in this record clear and
uncontroverted evidence establishing the fact that on
August 31, 1967, the Respondent had petitioned the 14th
Judicial District Court, Parish of Calcasieu, State of
Louisiana for a temporary restraining order and rule for
preliminary injunction complaining of the picketing
activities starting on August 31, 1967 and alleging
criminal acts, unlawful entry, threats, possible violence,
wrongful seizure of private property and obstruction of
access, among others, and identifying Clement and Landry
as participants in such activity. Subsequently, the
Respondent filed charges with the Board's Regional Office
alleging unlawful picketing within the meaning of the Act.
As indicated hereinabove no probative weight was
accorded this evidence insofar as the question of the
legality of the strike and picketing is concerned but in my
opinion the fact of the filing of the petition for injunction
in the State Court and the filing of the charges relative to
the strike and picketing activity before the Board are
actions clearly inconsistent with any theorizing that the
Respondent condoned such unprotected activity during
that time
Turning to the actions of Blasingame at his meeting
with Landry and Trahan subsequent to the letter of
October 12, requesting reinstatement, while the record
indeed indicates that he did not specifically raise the
question of unprotected activity the record nevertheless
provides ample grounds for persuading me that
Blasingame, with no intent to condone, and placing
discretion before valor, chose to avoid a direct rejection of
the request for reinstatement pending further consultation
and advice of his counsel Nor do I find condonation in
the dispatch of the letters of December 6, 1967, to Landry
and December 8, 1967, to Trahan. Since the reason
ascribed for the refusal to reinstate Landry was
misconduct on the picket line I do not infer a condonation
of unprotected activity from this alone As for Trahan, the
reason ascribed was the elimination of his job while he
was out on strike. While there is some implication of
condonation in this,, I do not find this sufficient to
overcome other preponderant testimony and evidence of
record convincing me to the contrary Upon consideration
of all the conduct on the record herein I find that the
Respondent at no time indicated a desire to "wipe the
slate clean" and at no time condoned or waived the
unprotected activity of Trahan and Landry.
Since I have found that the Respondent did not
condone the activities of Trahan and Landry in
participating in the unlawful picketing as indicated
hereinabove, it is clear that the Respondent was free to
discharge them or to refuse to reinstate or employ them
for that reason or for that matter for any reason providing
it is not motivated by a desire to discriminate against
employees because of their union or other concerted
activities protected by the Act. Under circumstances
where the discharge is not discriminatorily motivated the
Respondent has no burden to justify such discharge.
N L R B v Ace Comb Co., 342 F.2d 940
The written reasons advanced by the Respondent for its
refusal to reinstate them was, in the case of Trahan on
December 8 because "your job was eliminated while you
were out on strike," and in the case of Landry on
December 6, 1967, because of his misconduct on the
BLASINGAME WELL SERVICE 1131
picket line
Turning to the refusal to reinstate or employ Landry,
the record contains testimony by Albert East who testified
that he went to work for the Respondent on September
10, 1967, that 2 days before this Chesson and Landry
came to his home. According to East, Chesson "they said
if I would go to work I might get killed, might get shot,
my boy would get shot, so the best thing I could do would
be to go on the picket line." East identified Chesson as
making the statement with Landry "there with him " I
credit this testimony of East and find that the incident
took place as indicated. Insofar as this record is concerned
there was additional credible testimony linking Landry
specifically with another act of violence covering his
participation in an attempt by pickets to overturn a truck
entering the jobsite The question is whether or not this
conduct by Landry rendered him "unemployable" by the
Respondent so as to justify its refusal to reinstate or
employ him. Bonnar-Vawter, Inc., 129 NLRB 127 In this
connection I find the conduct of Landry, against the
background of violence in connection with the picketing
activities indicated on this record, to have constituted a
real threat, and unlike the situation in National Packing
Company, Inc , 147 NLRB 446, I find Landry's conduct
of violence on the picket line and in his visit to East a
flagrant threat of ' physical harm to East under
circumstances in which East could have reasonably
believed that the threats wert, seriously intended, and the
nature of the threat so grave as to render Landry's action
not only improper and not to be condoned but also
rendering him unfit for further employment with the
Respondent
Turning finally to Trahan, while he was identified in
testimony by Wold, whom I credit, as participating with
Landry and others in an attempt to block the entrance
and prevent deliveries to the jobsite by attempting to
overturn a trailer entering the site, the reason advanced
for the refusal by the Respondent to reinstate or employ
Trahan was that his job was eliminated while he was out
on strike The validity of this reason was not established
on this record. However, based on a preponderance of the
credible testimony and evidence on the record as a whole
herein I am convinced and I find that the refusal to
reinstate and employ Trahan and Landry was not based
on a discriminatory desire to discourage any of their
activities protected by the Act While an analysis of the
written reasons advanced by the Respondent herein may
reveal weakness they appear to have a reasonable basis in
fact and nevertheless do not appear to me to be obviously
pretextual so as to provide the basis for an inference that
the true motivation was discriminatory and violative of
the Act I find therefore that the refusal by the
Respondent to reinstate and employ Trahan and Landry
was not violative of the Act.
Accordingly I recommend dismissal of the complaint in
its entirety. Based on the preponderance of the credible
evidence on the record as a whole I am convinced and I
find that the Respondent did not refuse to reinstate or
employ Trahan and Landry because of a discriminatory
reason, that is, because of or in order to discourage their
union or other concerted activity protected by the Act or
because they joined or assisted the Union
Aware of the caveat in Bonnar-Vawter relating to clear
language of Section 13 of the Act I am convinced that the
finding herein will not render the right of employees to
strike illusory. Accordingly, I recommend dismissal of the
complaint in its entirety.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1 At all times material herein, the Respondent has
been engaged in commerce as an employer within the
meaning of Section 2(6) and (7) of the Act
2 At all times material herein, the Union has been a
labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the complaint herein be dismissed in its
entirety.