Business Services By Manpower, Inc

National Labor Relations Board - Board Decisions

Oct 17, 1984

272 N.L.R.B. 827 (N.L.R.B. 1984)

BUSINESS SERVICES BY MANPOWER

827
Business Services by Manpower, Inc and Richard
Cordes and Craig Monroe Cases 3-CA-10505
and 3-CA-10505-2
17 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 3 February 1983 Administrative Law Judge
James L Rose issued the attached decision The
Respondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The National Labor Relations Board has consid
ered the decision and the record in light of the ex
ceptions and brief and has decided to affirm the
judge s rulings, findings,' and conclusions and to
adopt his recommended Order, 2 as modified
The judge concluded that the conduct of Rich
ard Cordes and Craig Monroe of honoring a picket
line at Spaulding Bakery, where the Respondent,
Business Services by Manpower, Inc (Manpower),
had referred them for employment, was protected
by the Act, and therefore the Respondent s dis
charge of them for pursuing such activity violated
Section 8(a)(1) of the Act We fully agree with his
conclusion
The Board has consistently held that the right to
honor a union s picket line is a right created and
protected by the Act 3 In this connection, the
Board has not distinguished between picket lines at
the facilities of the employee's own employer and
picket lines at other facilities where the employee
may be required to work ( stranger picket lines)
In contrast to the dissent we continue to find that
under Section 7 of the Act no such distinction is
warranted
In Eastex Inc v NLRB 4 the Supreme Court
stated
1 The Respondent has excepted to some of the judge s credibility find
ings The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We shall modify the judge s recommended Order to require the Re
spondent to expunge from its files any reference to the discharges of
Richard Cordes and Craig Monroe and to notify them in writing that It
has taken this action and that evidence of its unlawful conduct will not
be used as a basis for future personnel actions against them See Sterling
Sugars 261 NLRB 472 (1982)
3 See e g Torrington Construction Co 235 NLRB 1540 (1978) New
bery Energy Corp 227 NLRB 436 (1976) Redwing Carriers 137 NLRB
1545 (1962) enfd sub nom Teamsters Local 79 v NLRB 325 F 2d 1011
(D C Or 1963) cert denied 377 U S 905 (1964)
4 437 U S 556 564-565 (1978) In that case the Court found protected
a union s chstnbution of a newsletter urging employees to support it and
The employees' who may engage in concert
ed activities for mutual aid or protection are
defined by § 2(3) of the Act, 29 U S C §
152(3) to include any employee, and shall
not be limited to the employees of a particular
employer, unless [the Act] explicitly states oth
erwise This definition was intended to
protect employees when they engage in other
wise proper concerted activities in support of
employees of employers other than their own
In recognition of this intent the Board and the
courts long have held that the 'mutual aid or
protection clause encompasses such activity
We also find no warrant for petitioner s
view that employees lose their protection
under the mutual aid or protection" clause
when they seek to improve terms and condi
tions of employment or otherwise improve
their lot as employees through channels out
side the immediate employee employer rela
tionship The 74th Congress knew well enough
that labor s cause often is advanced on fronts
other than collective bargaining and grievance
settlement within the immediate employment
context It recognized this fact by choosing, as
the language of §7 makes clear, to protect con
certed activities for the somewhat broader pur
pose of mutual aid or protection as well as
for the narrower purposes of self organiza
tion and collective bargaining
More recently, the United States Court of Appeals
for the Seventh Circuit stated
But it does not strain the language of section
7 to regard the two drivers as having engaged
in a concerted activity that consisted of picket
ing on the part of some workers and refusing
to cross the picket line on the part of others,
and that was at least in part, for the drivers
own aid or protection and therefore satisfied
the mutuality requirement The drivers
may have felt that strengthening the union
movement by honoring a union s picket line
would promote their own economic interests
as workers "[T]he solidarity so established [by
aiding another employee s grievance against
his employer] is 'mutual aid in the most literal
sense NLRB v Peter Collier Kohler Choco
lates Go, 130 F 2d 503, 505-506 (2d Cir 1942)
(L Hand, J) 5
unions in general opposing incorporation of a state right to work law
into the State s constitution and criticizing the President for vetoing a
Federal minimum wage bill
5 NLRB v Browning Ferris Industries 700 F 2d 385 387 (7th Or
1983)
272 NLRB No 119
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Similarly, the Court of Appeals for the Ninth Cir
cult reasoned as follows
An integral part of any strike is persuading
other employees to withhold their services and
join in making the strike more effective It
cannot be denied that respect for the integrity
of the picket line may well be the source of
strength of the whole collective bargaining
process in which every union member has a le
gitimate and protected economic interest
NLRB v Union Carbide Corp, 440 F 2d 54, 56
(4th Cir ) cert denied, 404 U S 826
(1971) Employees who honor a primary
picket line in effect join the strike NLRB v
West Coast Casket Co, 205 F 2d 902 908 (9th
Cm 1953) Such activity is assistance to a
labor organization for mutual aid or protec
tion ' Although reciprocity may be Ind'
rect respect for another union s picket line
leads to a stronger labor movement
Activities for mutual aid or protection
within the meaning of section 7 are not limited
to those within the employer employee rela
tionship or those aimed at changing terms and
conditions of employment 6
These decisions persuasively refute the dissent s
contention that Section 7 only minimally protects
the Charging Parties' activity The suggestion that
mutual aid or protection is confined to narrow
workplace concerns derives no support from the
express language of the Act, nor is it based in case
law or logic Moreover, in this case Cordes and
Monroe had reason to be personally concerned
with Spaulding s personnel policies and employ
ment conditions because they expected to be work
mg for Spaulding, albeit for a limited time
The dissent suggests that Cordes and Monroe re
fused to cross the picket line for vague ideological
reasons rather than because of any interest in the
particular issues in the dispute Such reasoning
misses the point 7 A longstanding tactic of the
American trade union movement, rooted in cardi
nal union principles, is honoring picket lines Sec
lion 7 strongly protects such conduct, and the pro
tection is not contingent on an employee s ability
to demonstrate a detailed understanding of the
8 NLRB v Southern California Edison Co 646 F 2d 1352 1363-64 (9th
Cir 1981) Several other circuit courts of appeals have also held that the
Act protects employee refusals to cross stranger picket lines NLRB v
Gould Inc 638 F 2d 159 (10th Co 1980) NLRB v Alamo Express Inc
430 F 2d 1032 (5th Or 1970) Teamsters Local 657 v NLRB 429 F 2d
204 (DC Or 1970)
7 It is also Incorrect The record indicates that before leaving the
Spaulding facility Cordes and Monroe spoke to the picketers and ascer
tamed their purpose They thus made an informed decision to support the
picketers position
issues involved in a specific dispute 8 Thus it is im
material whether Cordes and Monroe were familiar
with the issues involved in the Spaulding dispute,
or whether they refused generally to cross union
picket lines
Our dissenting colleague finds the Respondent s
action proper after balancing the Employer's busi
ness interest and the employees' interests From
his reasoning, however, it appears that he accords
the employees interests only minimal weight,
indeed it is difficult to envision circumstances in
which the dissent s balancing test would result in a
decision favorable to employees The balancing test
thus effectively renders nonexistent an essential
Section 7 employee protection
The dissent also errs in finding that business ne
cessity" required the Respondent to remove
Cordes and Monroe from its referral list perma
nently This removal was tantamount to discharge
and an employer may not discharge employees
who refuse to cross lawful picket lines Such em
ployees are akin to economic strikers and are enti
tled to the reinstatement rights normally accorded
economic strikers Torrington Construction Co 235
NLRB 1540 1541 (1978) 9
The Respondent to protect its business interests,
could lawfully have refrained from referring
Cordes and Monroe to Spaulding or to any other
company known to be involved in a labor dispute
It violated the Act, however, by discharging them
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent Business Services by Manpower, Inc
Binghamton New York its officers agents succes
sors and assigns, shall take the action set forth in
the Order as modified
1 Insert the following as paragraph 2(b) and re
letter the subsequent paragraphs
` (b) Remove from its files any reference to the
unlawful discharges of Richard Cordes and Craig
Monroe on 22 May 1981, and notify them in writ
mg that it has taken this action and that the dis
charges will not be used against them in any way
2 Substitute the attached notice for that of the
administrative law judge
8 Indeed we recently held in ABS Co 269 NLRB 774 775 (1984) that
the Act protects an employee s refusal to cross a picket line even where
the employee s sole reason is a fear of personal bodily injury We stated
[The focal point of the Board s inquiry is the nature of the activity
Itself the employee s motives for engaging in the activity are irrelevant
9 See also Newbery Energy Corp 227 NLRB 436 437 (1976)
BUSINESS SERVICES BY MANPOWER 829
CHAIRMAN DOTSON, dissenting
I disagree with my colleagues as I believe that
under a balanced construction of the Act the type
of conduct engaged in by Richard Cordes and
Craig Monroe; while protected, is outweighed by
the Respondent s business considerations and there
fore the Respondent did not violate Section 8(a)(1)
of the Act by discharging them
The Respondent operates a temporary employ
ment agency in Binghamton, New York Cordes
and Monroe were listed on the Respondent's file of
individuals to be contacted and offered work at the
facilities of its various customers
During the evening of 21 May 1981, Cordes and
Monroe were offered jobs by the Respondent for 2
nights at the Respondent's largest customer,
Spaulding Bakery, in Conklin New York, to begin
at 9 p m They accepted the assignment At ap
proximately 8 30 p m, they arrived at the Spauld
ing plant and noticed five or six picketers in the
parking lot carrying signs 1 Cordes and Monroe
spoke to the picketers and learned that they were
on strike at Spaulding s Hazelton, Pennsylvania fa
cility because they feared that Spaulding planned
to transfer work from the Hazelton facility to the
Conklin facility At this, Cordes and Monroe de
cided not to report to work Monroe testified, in
explaining the basis for this decision Well, we de
cided we were going to refuse to cross the picket
line I don t think there was any extensive discus
sion or argument about it We decided more or less
immediately that we would refuse to do that"
Cordes stated simply We recognized it was a
picket line and weren t going to cross it
They drove away from the plant and at approxi
mately 8 55 p m 5 minutes before they were
scheduled to begin work, telephoned the Respond
ent s answering service 2 and stated that they re
fused to cross the picket line and therefore would
not report Spaulding s president informed the Re
spondent the next day that the Company had been
short two employees on the night shift because
Cordes and Monroe had not reported
Thereafter, the Respondent did not refer Cordes
and Monroe to any other jobs pursuant to its
policy of removing from its referral list any indi
vidual who fails to report to a job that he or she
had previously accepted without providing the Re
spondent with adequate notice to secure a replace
ment
The judge found (sec II,B, par 12) that
1 The record does not indicate the exact wording of the signs but the
evidence suggests that the signs identified the name of the picketers
union and stated that the employees were on strike
2 The Respondent s office was closed at the time
[Tin honoring the picket line and not reporting
for work Cordes and Monroe engaged in ac
tivity protected by the Act And the Respond
ent having terminated their employment for
this reason violated Section 8(a)(1) Cases cited
by the Respondent (e g, NLRB v Rockaway
News Supply Co 345 U S 71 (1953)) holding
that in certain situations an employee may be
discharged for honoring a picket line at other
than his own employer s place of business are
inapposite The picket line was at the place
where Cordes and Monroe were assigned to
work And they had a protected right to
honor it notwithstanding they were not in the
bargaining unit of those employees picketing
Southern Greyhound Lines, supra 3
It is settled that an employee's refusal to cross a
legal picket line established by employees in an
other bargaining unit at the facility of the employ
ee's own employer is protected by the Act 4 As
stated by the Court of Appeals for the Fifth Cir
cuit
[W]e think it obvious that when an employee,
as a matter of principle, refuses to cross a
picket line at his own employer's place of bust
ness, the employee, even though he is not a
member of the striking union, has in effect
plighted his troth with the strikers, joined in
their common cause and has thus become a
striker himself 5
In such cases it is highly significant that the picket
ing union s dispute is with the same employer as
the individuals who honor the picket line The em
ployees although in different bargaining units, are
certain to share working conditions and have
common grievances against their employer In sup
porting the picketers by refusing to cross the picket
line employees seek to improve conditions for the
picketing employees hoping to produce a recipro
cal effect on their own conditions of employment 6
The mutual aid or protection clause of Section 7 of
the Act 7 guarantees employees the right to engage
3 Southern Greyhound Lines 169 NLRB 627 (1968) enfd 426 F 2d
1299 (5th Or 1970)
4 See Newbery Energy Corp 227 NLRB 436 (1976) NLRB v Union
Carbide Corp 440 F 2d 54 (4th Cir 1971)
5 NLRB v Southern Greyhound Lines 426 F 2d 1299 1301 (5th Cu-
1970)
6 Cooper Thermometer Co 154 NLRB 502 (1965)
2 Sec 7 of the Act reads
Employees shall have the right to self organization to form join
or assist labor organizations to bargain collectively through repre
sentatives of their own choosing and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection and shall also have the right to refrain from any or all
such activities except to the extent that such right may be affected
Continued
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in such activities since there is a clear and prom
mate connection between the concerted activity of
the employees and their wages hours, and working
conditions
The above described principles are inapposite to
the instant case however because Cordes and
Monroe did not refuse to cross a picket line at the
facility of their own employer, Manpower, but at
the facility of a customer of their employer,
Spaulding In this regard, the record indicates that
Manpower is solely responsible for hiring the indi
viduals that it refers and also pays them and deter
mines where and when they will work In contrast,
their connection with Spaulding and other compa
nies to which Manpower refers them is tenuous
Cordes and Monroe were scheduled to work at
Spaulding for only 2 nights certainly they had
little in common with Spaulding's permanent em
ployees and little stake in Spaulding's labor rela
tions policies 8 Thus the judge erred in distinguish
ing the instant case from cases in which employees
refuse to cross stranger picket lines
There is no coherent body of case law settling
the issue of whether employee refusals to cross
stranger picket lines are protected by the Act 9
The Board has held that such activity is protect
ed 10 However, the Federal courts of appeals have
not unanimously agreed with this determination "
and the Supreme Court has yet to render a defini
tive decision on the question 12 I would find that
the refusal to cross a stranger picket line while
protected, is entitled to less weight when balanced
against valid employer business considerations than
refusal to cross a picket line at an employee s own
place of employment
Compared to picket lines directed against an em
ployee s own employer, an employee s interest in
refusing to cross a stranger picket line is highly at
tenuated Such interest is based essentially on broad
ideological grounds rather than immediate con
cerns related to the employee s own job The em
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in section 8(a)(3) [Emphasis
added ]
9 In Manpower Inc of Shelby County 164 NLRB 287 (1967) the Board
held that a temporary employment agency and one of its customers were
Joint employers of individuals referred from the agency s list Regardless
of whether that issue was correctly decided it was a representation case
and has little bearing on the Instant matter
9 Gorman Labor Law at 324 (1976) states that the cases stand rather
in disarray The concurring opinion of Judge Coffey in NLRB v Brown
ing Ferris Industries 700 F 2d 385 (7th Cu- 1983) denying enf of 259
NLRB 60 (1981) agrees with this assessment
' 0 Torrington Construction Co 235 NLRB 1540 (1978) Redwing Cam
ers 137 NLRB 1545 (1962) enfd sub nom Teamsters Local 79 v NLRB
325 F 2d 1011 (DC Cir 1963) cert denied 377 US 905 (1964)
" See e g NLRB v William S Carroll Inc 578 F 2d 1 3 (1st Cir
1978) NLRB v L G Everist Inc 334 F 2d 312 316-318 (8th Or 1964)
" But see NLRB v Rockaway News Supply Co 345 U S 71 (1953) in
which the Court found a limitation placed on such activity in a collec
live bargaining agreement to be valid and enforceable
ployee cannot reasonably expect that concessions
granted to the members of the picketing union by
the picketed employer will have a reciprocal effect
upon his or her own conditions of employment In
fact, he is unlikely even to be familiar with the
issues in dispute 13
Rather, the employee is likely to be motivated
by a vague, generalized desire to support union
members engaged in a dispute with an employer in
order to promote union solidarity" Thus Cordes
and Monroe both suggested that they invariably
will refuse to cross any picket line, regardless of its
participants or its purpose 14
An employee s refusal to cross a stranger picket
line inherently requires that he flout his responsibil
ity to his own employer The employer pays the
employee in exchange for the performance of his
job and the failure to perform even if ideologically
grounded, is a violation of the ordinary and im
plied obligations of employment 15
The Act does not reflexively protect any con
certed interest of an employee, no matter how re
motely connected to his own job interests or poten
tially harmful to his employer s valid business con
cerns Rather it requires that we balance the legiti
mate interests of employees and employers An em
ployer may not unduly restrict employee pursuit of
union activity but may make and enforce reasona
ble rules governing the conduct of employees at
work 16
13 The United States Supreme Court in evaluating another Sec 7
right viz trespassory area standards picketing has indicated that protec
non for such right is less compelling than that accorded organizational
picketing Sears Roebuck & Co v Carpenters San Diego District Council
436 U S 180 (1978)
14 They refused to cross the picket line at Spaulding although It was
crossed by the employees at the Conklin facility It is clear from the
record that the picketing in this case was an attempt to inform the gener
al public as to the issues rather than to discourage the Conklin employ
ees from \ working Thus the interests of Cordes and Monroe in refusing
to cross the picket line were so attenuated from the dispute that the con
nection was nearly nonexistent
In addition to the portions of Eastex Inc v NLRB 437 U S 556 567-
568 (1978) cited by the majority the Supreme Court stated therein
It is true of course that some concerted activity bears a less im
mediate relationship to employees interests as employees than other
such activity We may assume that at some point the relationship be
comes so attenuated that an activity cannot fairly be deemed to
come within the mutual aid or protection clause It is neither nec
essary nor appropriate however for us to attempt to delineate pre
cisely the boundaries of the mutual aid or protection clause The
task is for the Board to perform in the first instance as it considers
the wide variety of cases that come before it [Republic Aviation
Corp v NLRB 324 US 793 798 65 S Ct 982 985 89 L Ed 1372
(1945) Phelps Dodge Corp v NLRB 313 U S 177 194 61 S Ct 845
852 85 L Ed 1271 (1941) ]
In my view the employees activities went beyond the boundaries of Sec
7 s mutual aid and protection clause
is NLRB v L G Everist Inc 334 F 2d 312 (8th Cir 1964)
' 8 Republic Aviation Corp v NLRB 324 U S 793 803 (1945) citing
Peyton Packing Co 49 NLRB 843-844 (1954)
BUSINESS SERVICES BY MANPOWER 831
, In this type of case, we must weigh the employ
ee s less compelling interest in expressing support
for picketers at another company against the em
ployer s interest in the employee s job performance
I believe, in this case, that the employer s interest
in ensuring that work assignments are performed
reliably far outweighs the vague and attenuated in
terests of individual employees in promoting
union solidarity The Act does not prohibit em
ployees from refusing to cross picket lines as their
consciences may dictate However, it also does not
provide them with a carte blanclie invitation to
refuse to work when they wish without, expectation
of reasonable disciplinary action by their employ
ers i
The nature of the Respondent s business demand
ed that it maintain a strict rule requiring its em
ployees to report to work or to provide adequate
notice when they could not report An employ
ment agency obviously cannot long survive if the
individuals it refers do not report to their jobs and
its customers are left with sudden deficits in their
employee contingents Viewed in this light, the Re
spondent's removal of Cordes and Monroe from its
referral list is especially understandable since refer
rals to Spaulding constituted a significant portion
of the Respondent's business 17
The record indicates that the Respondent was
neutral in the dispute between Spaulding and its
Haze1ton employees The cause of industrial peace
is not furthered by permitting unions to force oth
erwise unconcerned companies into disputes be
tween themselves and their employees Such ac
tions do not help to ameliorate labor disputes but
serve to expand them The Respondent's conduct
was a reasonable response to the failure of two of
its employees to fulfill their employment obliga
tions and it was based on legitimate business con
siderations that were untainted by unlawful motiva
don In these circumstances, the finding of a viola
don is unreasonable and unjust The touchstone for
determining whether a termination is lawful is the
employer s business necessity and each case must
be examined to determine whether the employer's
actions are justified by legitimate business con
cerns
In this case, it is clear that the Respondent's busi
ness requires that it refer only individuals who the
agency can be certain will report to their assigned
jobs The Respondent could not risk maintaining
Cordes and Monroe on its referral list because they
had demonstrated that in the event of a picketing
situation they could not be relied on to report to
work Such failure was on short notice in this case
' 7 There is no evidence that the Respondent was aware of the picket
line at Spaulding Bakery when It referred Cordes and Monroe to the job
giving the Respondent no opportunity to replace
Cordes and Monroe with other employees There
fore, the Respondent had to remove their names
from its referral list in furtherance of a valid busi
ness interest
Longstanding Board law permits employers to
replace employees who refuse to cross picket lines
if the employer finds such action necasary to pre
serve efficient operations 18 A temporary agency,
however cannot permanently replace individuals
it refers for employment because its assignments
are not permanent jobs removal from its referral
list is equivalent to permanent replacement Thus,
even if the activity of Cordes and Monroe were
deemed protected the statutory interests shielded
by that protection are of a far less compelling
nature Accordingly, the Respondent s removal of
their names from its referral list did not violate the
Act
18 Redwing Carriers supra at 1547
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT discharge our employees because
they honor picket lines established at the premises
of an employer where they have been given job as
signments
WE WILL NOT in any like or related manner
interfere with restrain, or coerce you in the exer
cise of the jights guaranteed you by Section 7 of
the Act
WE WILL offer full and complete reinstatement
to Richard Cordes and Craig Monroe to their
former jobs or if those jobs no longer exist to sub
stantially equivalent positions without prejudice to
their seniority or any other rights or privileges pre
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge less any net interim earnings
plus interest
WE WILL remove from our files any reference to
the disciplinary discharges of Richard Cordes and
Craig Monroe on 22 May 1981 and WE WILL
notify them that we have done so and that evi
dence of the discharges will not be used against
them in any way
BUSINESS SERVICES BY MANPOWER INC
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JAMES L ROSE Administrative Law Judge This
matter was tried before me on December 13 and 14
1982 at Binghamton New York on the General Coun
sel s complaint as amended which alleges in substance
that about May 20 1981 the Respondent terminated the
employment of Craig Monroe and Richard Cordes in
violation of Section 8(a)(1) of the National Labor Rela
tions Act 29 U S C § 151 et seq
The Respondent generally denied that it has commit
ted any unfair labor practices and affirmatively contends
that the two terminated former employees did not
engage in any concerted activity protected by the Act
and f that in any event they were not terminated for
having done so
On the record as a whole including my observation of
the witnesses briefs and arguments of counsel I make
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I JURISDICTION
The Respondent is a New York corporation engaged
in the business of supplying temporary help to business
firms In the conduct of its business the Respondent an
nually supplies services valued in excess of $50 000 to
firms located in the State of New York which in turn
ship directly to points outside the State of New York
goods and products valued in excess of $50 000
The Respondent admits and I find that it is an em
ployer engaged in commerce within the meaning of Sec
tion 2(2) (6) and (7) of the Act
,
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
In order to service its customers who need temporary
employees the Respondent has a pool of individuals who
are available for assignment to particular types of jobs
Each such individual who is available for work has an
active file kept by the Respondent When the Re
spondent has an order these individuals are contacted
according to their particular desires and skills and are of
fered the opportunity to take the particular assignment
Richard Cordes worked for the Respondent in 1979
and then on returning to school went inactive In 1981
he contacted the Respondent s office and indicated that
he was interested in having his file reactivated and he
began receiving assignments almost immediately Craig
Monroe first started working for the Respondent on
April 15 1981 and from then until May 20 worked for
the Respondent approximately 2 days a week
Generally Cordes and presumably Monroe as well as
other employees of the Respondent contacted the Re
spondent daily to check for Jobs and to confirm their
availability If such a contact was made between the
hours of 8 a m and 5 p m they would talk to some
office employee of the Respondent typically either a
secretary a service representative or Cathy Taylor who
at the time was in charge of the Binghamton office Both
Taylor as well as Esther Nui then a service representa
live are admitted to have been supervisors and agents of
the Respondent within the meaning of Sections 2(11) and
2(13) of the Act
If an employee contacted the Respondent after 5 p m
then whatever message he had was left with the Re
spondent s answering service presumably then to be re
layed a to responsible official at some later time
Monroe and Cordes lived in the same rooming house
According to both their testimony whenever possible
they would request to have the same work assignment
and would ride together Thus it was that on May 20
Monroe received a call from Nui stating that she had a
2 day assignment at the Conklin New York Spaulding
Bakery for him and Cordes to begin at 9 p m on May
21
Cordes and Monroe testified that they arrived at the
plant about 8 30 p m on May 21 and at that time ob
served five or six individuals carrying and/or wearing
picket signs announcing a labor dispute between Spauld
ing Bakery and the Bakery and Confectionary Workers
Union They learned the picketers were employees of the
Spaulding facility at Hazelton Pennsylvania and had
come to the Conklin facility to advertise their dispute
(The dispute apparently involved the opening of the
Conklin facility and the preceived transfer of work from
Hazelton )
According to Cordes and Monroe they determined to
honor the picket line and they left the jobsite before re
porting to work They drove back to town and then
Cordes called the Respondent and reported to the an
swering service According to his testimony he said they
were not going to go to work inasmuch as there were
pickets at the Spaulding Bakery but they were available
for employment elswhere
Taylor and Nui both testified they did not learn until
the following day that Cordes and Monroe had not re
ported for work and then learned only that they had
called the answering service to announce their availibi
lay Both disclaim they knew that the premises were
being picketed on the evening of May 21 or that the
reason Cordes and Monroe gave for not reporting to
work was the picket line
Cordes and Monroe called in several times in the
evening but did not receive subsequent job assignments
Thus on June 10 Monroe called the Respondent s office
and talked to Nui In essence Nui told Monroe that the
Respondent considered that he and Cordes had quit Inas
much as they had failed to show up for an assignment
they had agreed to take Monroe told Nui that the
reason they had not gone to work was because of the
picket line Nui told him something to the effect the
while you may have your principles so did the Corn
pany and it was the Company s policY to consider as
having quit any employee who did not show up for an
agreed to assignment without contacting the Company
some reasonable time in advance
Monroe reported his conversation with Nui to Cordes
who on June 11 also called Nui The same general con
BUSINESS SERVICES BY MANPOWER 833
versation took place with Cordes advising Nui that the
reason they had not gone to work on May 21 was be
cause they had honored the picket line Nui said that it
was the Company s policy to consider as having quit any
employee who did not show up for any agreed to assign
ment without giving reasonable advanced notice so that
a replacement could be found
Taylor testified at length concerning the business ne
cessity for this policy and that this was the reason why
Cordes and Monroe were terminated She stated that the
Company must be able to rely on individuals whom it
contacts for employment because in turn the customers
rely on the Respondent to furnish employees when
needed She further noted that Spaulding Bakery was
one of the largest customers of the Respondent at that
time She testified that she did not realize that Cordes
and Monroe had claimed to have honored the picket line
until Monroe called on June 10 But she testified such
made no difference inasmuch as it was their failure with
out sufficient notification to the Company to show upt for
the job assignment that was the cause of their termina
lion
B Analysts and Concluding Findings
To honor a picket line at one s place of employment is
clearly activity protected by the Act E g Southern
Greyhound Lines 169 NLRB 627 (1968)
The Respondent s principal defense is that the precipi
tating event did not occur The Respondent contends
that there was in fact no picketing of the Spaulding
Bakery on the evening of May 21 Therefore the story
told by Cordes and Monroe was a fabrication and the
Respondent did not violate the Act by terminating their
employment
In support of this contention the Respondent called
Steven Artim Jr who is no longer an employee of
Spaulding but who in May 1981 was president of the
Company Artim stated that they were quite busy at the
newly opened Conklin facility and that he spent essen
tially 24 hours a day at the plant during the entire month
of May When pickets would show up he would be noti
fled and he saw pickets practically every day but they
arrived at different times The pickets always left by
midafternoon and he never observed pickets at the plant
in the evenings
Kenneth Ulsh was another Manpower employee at the
time who worked on May 21 from 9 p m to 8 a m on
May 22 He stated that he arrived about 9 p m and did
not observe any pickets in the parking lot at that time
Eugene P Trencansky who also is no longer em
ployed by Spaulding was an assistant office manager in
May 1981 He testified that he never saw any pickets at
the plant and that he worked various hours from 8 or 9
pm to 7 or 8 a m the next day
Finally Cathy Taylor testified that she spent much
time at the Spaulding facility and she never saw any
pickets there after 3 p m She testified that she was at the
plant on the morning of May 22 when she learned that
Monroe and Cordes had not shown up for work the
night before She denied having been told that they had
honored the picket line and stated that she did not learn
this until June 10
Thus there is some circumstantial evidence including
testimony from witnesses with no apparent stake in the
outcome of this proceeding tending to prove there were
no pickets at the Spaulding facility about 8 30 p m on
May 21 But there is no direct evidence And to find
there were no pickets at that time I would have to0 con
dude that both Cordes and Monroe engaged in deliber
ate acts of perjury on a matter of critical importance to
the outcome of this proceeding I do not believe the
record justifies such a conclusion
To conclude that Cordes and Monroe made up the
story about pickets being present on May 21 would indi
cate that they had both determined sometime during the
evening of May 21 not to go to work There is howev
er no evidence that these two individuals are willfully
irresponsible even though Taylor did indicated that they
had had some problems with Cordes as an employee and
Monroe did testify about one occasion when he was
unable to go to work because of car trouble
Monroe first talked to a management person stating
they had honored the picket line on June 10 or well
before litigation of this case Further they both contin
ued to call in for jobs—reporting six times between May
26 and June 7 according to a letter from a staff attorney
for the Respondent
There is nothing inherently inconsistent in the story
that either Cordes or Monroe relayed concerning the
pickets and there is nothing in the demeanor of either
which would indicate that beginning on June 10 they en
gaged in a willful he concerning this matter Thus I am
not inclined to discredit their testimony or conclude that
in fact there were no pickets present at the Spaulding
Bakery about 8 30 p m on May 21
It is noted that none of the testimony of Respondent s
witnesses is actually in direct conflict with the testimony
of Monroe and Cordes That is none of the witnesses
called by the Respondent testified that he or she was
present in the parking lot at 8 30 p m on May 21 and did
not observe any pickets
On balance I conclude that in fact there were pickets
present at the Spaulding parking lot in the evening of
May 21 1981 and that it was the presence of these pick
ets which caused Cordes and Monroe not to go to work
Thus in honoring the picket line and not reporting for
work Cordes and Monroe engaged in activity protected
by the Act And the Respondent having terminated their
employment for this reason violated Section 8(a)(1)
Cases cited by the Respondent (e g NLRB v Rockaway
News Supply Co 345 U S 71 (1953)) holding that in cer
tam situations an employee may be discharged for honor
ing a picket line at other than his own employer s place
of business are inapposite The picket line was at the
place where Cordes and Monroe were assigned to work
And they had a protected right to honor it notwithstand
ing they were not in the bargaining unit of those employ
ees picketing Southern Greyhound Lines supra
There is some question as to when management offi
dais of the Respondent became aware that Cordes and
Monroe had not reported on May 21 because of the
picket line Nui credibly testified that she was not aware
of this until Monroe called on June 10 Taylor also credi
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bly testified that she did not learn they had claimed to
have honored a picket line until Monroe called Nui
though she learned on the morning of May 22 that they
had not reported
Cordes testified that he told the answering service
about the picket line but Taylor testified that she saw
the answering service note and on it there was no men
tion of the picket line
In evidence is a statement of position dated July 9
1981 submitted by a staff attorney for the Respondent
(not tnal counsel) which states among other things It
is undisputed that both Mr Cordes and Mr Monroe re
ported to Spaulding for the May 20 [sic] assignment (for
evening shifts commencing to 9 00 p m) and they both
refused to cross the picket line to perform their assign
ment He went on to note that Taylor learned from
Artim the next morning of their failure to report due to
the picket line She admitted learning about the failure to
report She denied that Artim said it was because of the
picket line—a denial which is credible and is supported
by Artim s testimony that he knew of no pickets on the
evening of May 21 In the letter counsel further stated
that the answering service note referred only to the
availability of Cordes and Monroe—no mention being
made of the picket line the refusal to report or even
Spaulding
On balance I credit Taylor whose testimony is sup
ported by Nui a now disinterested witness and Artim I
believe that she did not learn the reason Cordes and
Monroe did not report until June 10 notwithstanding
that Cordes told the answering service about the picket
line (Although lack of any reference to the picket line
on the answering service note might indicate that Cordes
did not mention it when he called in such a conclusion
is not required absent further information Of itself such
is not enough to discredit Cordes )
In any event whether management officials knew on
May 22 or not until June 10 that Cordes and Monroe
had honored the picket line affects this case only with
respect to the amount of backpay due The critical fact is
that even after management knew that Cordes and
Monroe had honored the picket line they continued to
treat them as having quit and continued not to assign
them to jobs for which they were qualified and available
This is not a case of strikers being permanently replaced
It is rather a case of the Respondent considering termi
nated individuals who engaged in protected activity
Assume the Respondent did not know until June 10
that Cordes and Monroe had honored the picket line
and further assume that knowledge of protected activity
is necessary in order to establish an 8(a)(1) violation for
their terminations Walls Mfg Co 137 NLRB 1317
(1962) Marathon Oil Co 195 NLRB 365 (1972) Diag
nostic Center Hospital Corp 228 NLRB 1215 (1977) Still
the Respondent s failure to put them back on the avail
ability roster on June 10 was tantamount to refusing to
rehire them because they engaged in activity protected
by the Act and therefore a violation of Section 8(a)(1)
1 This testimony was heard over the General Counsel s probably well
taken best evidence objection especially since the note is still in the pos
session of the Respondent
E g NLRB v Whitfield Pickle Co 374 F 2d 576 (5th
Cir 1967)
I However I believe that Cordes call to the answering
service on May 21 was sufficient to deem the Respond
ent had notice even if the message was not relayed A
company acts only through its agents and for purposes of
after hours communications the answering service was
such an agent It was this number employees were given
Accordingly I conclude that the Respondent terminat
ed the employment of Richard Cordes and Craig
Monroe from and after May 22 1981 because they had
engaged in protected concerted activity and therefore
'violated Section 8(a)(1) of the Act
III THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found occurring in connec
non with the Respondent s business outlined above have
a close intimate and substantial relationship to trade
traffic and commerce among the several States and tend
to lead to labor disputes burdening and obstructing com
merce and the free flow thereof within the meaning of
Section 2(6) and (7) of the Act
IV THE REMEDY
Having concluded that the Respondent terminated
Richard Cordes and Craig Monroe in violation of Sec
tion 8(a)(1) of the Act I shall recommend that it be or
dered to reinstate them to their former jobs or if those
jobs no longer exist to substantially equivalent positions
of employment and to make them whole for any loss of
wages or other benefits they may have lost as a result of
their termination from and after May 22 1981 in accord
ance with the provisions set forth in F W Woolworth
Co 90 NLRB 289 (1950) with interest as provided for
in Florida Steel Corp 231 NLRB 651 (1977) 2
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed 3
ORDER
The Respondent Business Services by Manpower
Inc Binghamton New York its officers agents succes
sors and assigns shall
1 Cease and desist from
(a) Terminating employees because they honor a
picket line estabished at places where they have been as
signed to work
(b) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act 4
2 See generally Isis Plumbing Co 138 NLRB 716 (1962)
If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
4 Notwithstanding that termination of employment is generally consid
ered a substantial unfair labor practice this record does not establish the
Respondent has such a proclivity to engage in violations of the Act so as
to justify a broad remedial order See Hickmott Foods 242 NLRB 1357
(1979)
BUSINESS SERVICES BY MANPOWER 835
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Richard Cordes and Craig Monroe reinstate
meat to their former jobs or if those jobs no longer
exist to substantially equivalent positions of employment
and make them whole for any loss of wages and other
benefits according to the remedy section above
(b) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(c) Post at its place of business in Binghamton New
York copies of the attached notice marked Appen
dix 5 Copies of the notice on forms provided by the
Regional Director for Region 3 after being signed by
the Respondent s authorized representative shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus
tomanly posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered de
faced or covered by any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
5 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tonal Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
i
;
,
,