G & P Trucking Co., Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1975

216 N.L.R.B. 620 (N.L.R.B. 1975)

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G & P Trucking Company, Inc. and General Drivers,
Warehousemen & Helpers Local Union 28 , affiliat-
ed with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America.
Case 11-CA-5670
February 18, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND KENNEDY
On October 21, 1974, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, G & P Trucking
Company, Inc., Greenville, South Carolina, its
officers, agents , successors, and assigns , shall take the
action set forth in the said recommended Order.
The Respondent has excepted to certain credibility findings made by
the Administrative 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 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
JOSEPH I . NACHMAN, Administrative Law Judge: This
proceeding tried before me at Greenville, South Carolina,
on August 15 and 16,1 with all parties present and duly
represented by counsel, involves a complaint2 pursuant to
Section 10(b) of the National Labor Relations Act, as
i All dates herein mentioned are 1974, unless otherwise indicated.
2 Issued May 14, on a charge filed March 11 , and amended March 15.
3 No issue of commerce or labor organization is presented. The
complaint alleges and the answer admits facts which establish said elements.
I find those facts to be as pleaded.
4 Terminal Manager Davis testified that Respondent averaged from 5 to
12 trips a day to Pilot's terminal to interline freight, mostly in broken loads,
and a driver might be required to go to Pilot's premises several times in a
workday, and might not be required to go there again for days or even
weeks.
amended (herein the Act), which alleges that G & P
Trucking Company, Inc. (herein Respondent or Compa-
ny), discharged Fleming C. Adair, Jr., on March 7, and
James Dunn on March 14, and thereafter refused to
reinstate them, because they assisted or supported General
Drivers, Warehousemen & Helpers Local Union 28,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America (herein
Union or Local 28), or engaged in other union or concerted
activities for the purposes of collective bargaining or other
mutual aid or protection. The chief issues litigated are (1)
were Adair and Dunn discharged, or replaced; and (2) did
Respondent have adequate justification under the circum-
stances, for requiring Adair and Dunn to clock out because
of their refusal to cross a picket line established by the
Union at the premises of Pilot Freight Lines (herein Pilot)
at Greenville, and with whom Respondent there interlined
freight. For reasons hereafter more fully stated I find that
Adair and Dunn were discharged by Respondent, that the
circumstances involved did not justify such discharges, and
that Respondent thereby violated not only Section 8(axl),
but Section 8(aX3) of the Act as well.
All parties were afforded full opportunity to participate
in the trial, to introduce relevant and material evidence, to
argue orally on the record, and to submit briefs. Oral
argument was waived. Briefs submitted by the General
Counsel and Respondent, respectively, have been duly
considered. Upon the entire record, including the plead-
ings, stipulations of counsel, the evidence, including my
observation of the demeanor of the witnesses while
testifying, I make the following:
FINDINGS OF FACT 3
Background
Respondent is an intrastate carrier of motor freight, with
a terminal at Greenville and other points in South
Carolina. At Greenville, Respondent interlines freight with
some 25 to 30 interstate carriers, including Pilot Freight
Lines, which is one of the more important carriers with
whom Respondent does business. At the time in question,
Respondent had approximately 38 drivers employed at the
Greenville terminal, who would as part of their duties
deliver to or pick up freight at the Pilot terminal, as
business might require .4 At time of the events here
involved the Union was not the collective-bargaining
representative of Respondent's employees, but it was
engaged in a campaign to achieve that status, and a
number of its employees had become members of the
Union, of which fact Respondent was admittedly aware.5
The evidence leaves no room for doubt that Respondent
was opposed to the organization of its employees. Thus, on
5 On January 25, the Union sent a telegram to Respondent advising that
three men, including Adair, had formed a committee to organize
Respondent 's employees and requesting that they not be discriminated
against . A few days later a copy of this telegram was observed by Adair
posted on the bulletin board in the drivers room . Respondent makes no
contention that it did not receive this telegram . By letter dated January 28,
the Union advised Respondent that 30 additional employees , including
Dunn, had joined the organizing committee, or had signed cards designating
the Union as their bargaining representative . A copy of this letter, the
receipt of which is likewise uncontested by Respondent, was also posted
216 NLRB No. 114
G & P TRUCKING CO.
January 31 , Company President Byrd addressed a meeting
of his supervisors at the Greenville terminal saying he had
to keep the Union out, and the best way to do this was to
get rid of the "trouble makers" whom he identified as the
three employees mentioned in the Union's telegram of
January 25. Byrd then stated that the way to get rid of the
"trouble makers" was to send them home early so that they
would have insufficient hours to earn meaningful wages;
give them undesirable loads; and to try to get something on
them that would be grounds for firing them. Byrd then
commented on the Union's letter of January 28, saying that
the fact that a great number of men supported the Union
was no problem, because they would "back out" if
Respondent could get the three who started the movement,
and that , if the supervisors would assist him in achieving
his purpose, he would make it "worth their while."6
On March 4, the Union, which represents the employees
of Pilot Freight Lines at the latter's Greenville plant, went
on strike against Pilot in support of contract demands. On
that day pickets began to patrol Pilot's Greenville
premises , located about one-half block from Respondent's
premises , which picketing was continuing when the trial of
this case concluded . When the picketing of Pilot com-
menced that fact immediately became known to Terminal
Manager Davis , and to Respondent's employees generally.
THE UNFAIR LABOR PRACTICES ALLEGED
A. Discharge of James Dunn
Respondent 's driver James Dunn reported for work on
March 4 at his then scheduled starting hour of 1 p.m. His
first assignment was to pick up freight at the J . P. Stevens
plant, and on his return trip , deliver that freight to Pilot for
transportation to Steven's customer . When Dunn got to
Pilot's premises , he observed the pickets , and instead of
going into Pilot, continued on to Respondent 's premises
where he reported the situation to dispatcher Cehan.
Although Cehan told Dunn that Pilot was not on strike,
Dunn, after checking with the pickets, insisted that they
were. Cehan then told Dunn to back his truck up to the
dock. There the freight was unloaded from his truck and
placed on another. What happened to this freight is not
shown by the record. However, Dunn was never repri-
manded nor otherwise disciplined 7 for this incident.
Although Dunn worked each workday after March 4, the
next occasion he had to go to Pilot was on March 14.8 On
that day Dunn completed a number of assigned tasks,
returning to Respondent's premises about 3 : 30 p.m., and
was in the drivers room doing his paper work when he was
called by dispatcher Cehan and given a manifest which
required him to take a tractor to Pilot where he would pick
several days after its date on the employees ' bulletin board in the drivers
room . The record further shows that on January 29, the Union filed a
representation petition ; a hearing thereon was held on February 20, which
was attended by Adair; a Decision and Direction of Election issued on
April 29; and on May 28, the Union withdrew its petition.
e The foregoing findings are based on G .C. Exh. 2 and 3, and the
credited testimony of Adair and Pace , which in this area is uncontradicted.
7 The evidence also shows that on March 6, driver Gilstnp returned to
Respondent's premises with freight destined for Pilot, saying he was afraid
to cross the picket line . Terminal Manager Davis then delivered this freight
to Pilot, and upon returning told Gilstnp that there was no violence and
621
up an empty trailer and deliver it to the premises of a
shipper. Dunn saw only the words "bobtail to Pilot," on his
manifest, and promptly told Cehan that he could not do
that, that a man could get killed crossing a picket line.
Cehan then told Dunn to punch out, and when Dunn
indicated some reluctance to do so, dispatcher Wright got
Dunn's card and went to the office with it. Dunn followed
Wright to the office and repeated to him the same
statement he had made to Cehan, and also asked to see
Terminal Manager Davis. Although Davis was in his
office, Wright told Dunn that he could see Davis the
following morning. Davis then left the premises. Cehan
admitted that when he told Dunn to clock out, he meant
for Dunn to quit work, and that he was acting pursuant to
instructions from Davis that, if any driver failed to
complete an assignment, he was to be told to clock out and
see Davis. Davis admitted that it is Respondent's "sta-
ndard practice" to fire any employee who refuses to
perform an assigned task. The evidence also shows that
when Cehan required Dunn to clock out, it had 35 drivers
in its employ who had not refused to cross the picket line at
Pilot, and that within 2 hours after Dunn refused to cross
the picket line at Pilot, driver Wiley performed the work
Dunn had refused to perform.9
The following morning Dunn, as directed by Cehan,
talked with Davis in the latter's office. The conversation
opened by Dunn asking Davis if he wanted him to begin
work at Dunn's then normal starting hour of 1 p.m. Davis
replied in the negative. According to Dunn there followed
some discussion about his pay, but he did not recall
whether he or Davis raised the subject. In any event, Davis
told Dunn that he could pick up his check that afternoon,
but Dunn requested that it be mailed to his home. When
Dunn received the check several days later, it included his
vacation pay and his accrued safety bonus, neither of
which was yet due. There was, however, a deduction of $78
for uniforms which Respondent apparently had provided
for Dunn.10 At no time was Dunn given a notice of
termination . During his conversation with Davis that
morning, Dunn asked the latter for a letter of recommen-
dation, but Davis refused saying it was not his policy to
give such. Davis did not tell Dunn that he was being
replaced, nor did he ask Dunn if he was now willing to
make deliveries to Pilot. Dunn did tell Davis that he was
afraid to cross the picket line at Pilot, and Davis replied
that he had been watching the picket line but saw no
danger in crossing it. Although fear was the only reason
Dunn gave Davis for refusing to cross the picket line, he
testified that he in fact entertained no such fear, and that
his real reason was that he respected what the men at Pilot
were striking for and did not wish to do anything that
might hurt them. Since March 14, Dunn has not requested
that he was expected to deliver to Pilot . Gilstnp agreed to do so. This
incident is not involved in this case.
9 Dunn testified that this was on March 13, but the great weight of the
evidence shows that he was mistaken, a fact which Respondent does not
question.
8 The findings up to this point are based on the credited testimony of
Dunn , which in this area is not in material dispute , and on the admissions of
Davis and Cehan.
10 There is no evidence in the record of the precise arrangement between
Respondent and its employees regarding uniforms.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor has Respondent offered him employment."
B. Discharge of Fleming C. Adair, Jr.
Adair began working for Respondent as a driver in
September 1972, and continued in that employment until
the events of March 7, as hereafter detailed. It was Adair
who on January 25, solicited the Union to represent
Respondent's employees, and he was one of the three
employees mentioned in the Union's telegram of January
25 to Respondent . Adair was active in soliciting Respond-
ent's employees to sign authorization cards for the Union,
and attended the representation hearing on February 20.
For some time prior to about March 4, Adair's work day
started at 8 a .m., and he worked irregular hours.12
Beginning a few days before March 7, Adair's reporting
hour was changed from 8 a.m., to 1 p.m., and he reported
at 1 p.m., on the crucial date of March 7. Adair learned of
the strike and picketing by Local 28 against Pilot when the
picketing began on the morning of March 4, but until
March 7, he had not been assigned to deliver to or pick up
at Pilot's premises . Between 2 :30 and 3 of the afternoon of
March 7, Adair was dispatched to deliver interline freight
to Smith Transfer, Johnson Motor Lines, and Pilot. Adair
made no comment about the assignment and left Respond-
ent's premises , apparently to perform those duties . He went
first to Smith where , while unloading, he' attempted to
identify and segregate the freight destined for Johnson, but
was unable to locate it. After completing delivery at Smith,
Adair talked by phone with dispatcher Cehan to advise
that he had completed his delivery at Smith, but was
unable to find the parcels destined for Johnson, and was
proceeding to Pilot. Cehan said, O.K. Shortly before
reaching Pilot's premises , Adair called Cehan again on the
phone in his cab, and asked about the picket line at Pilot.
Cehan replied that driver Wylie as well as Terminal
Manager Davis had crossed the line, and that there had
been no problem. About this time Adair amved at Pilot's
premises and started to turn in, but observing two pickets
with "on strike" signs , and being so close to his own
terminal , concluded that he would go there and discuss the
matter further with Cehan. There Cehan again referred to
the fact that Wylie had crossed the picket line without any
i 1 Based on the credited testimony of Dunn as to which there is no real
dispute . Davis claimed that in his conversation with Dunn on March 15, he
did not tell the latter that he was not to perform his duties that day, but
merely stated that unless Dunn could perform all duties assigned him,
Respondent had nothing for him. He admitted that he did not ask Dunn if
the latter was willing to go to Pilot , and claims that Dunn did not volunteer
to do so . He did not deny that he caused Dunn to be fully paid for his
services to that date , including his vacation pay and safety bonus.
i2 Regulation of the Interstate Commission , prohibits employment of
drivers for more than 60 hours in a week . Apparently there is no
requirement for the payment of overtime.
13 Based on the credited testimony of Adair which is in most respects not
in conflict with that of Cehan . The one area in which there is a material
conflict is that according to Cehan when he told Adair that if he refused to
make the delivery at Pilot as he (Cehan) had directed , Adair would have to
punch out and see Davis the following morning , and that he did not tell
Adair that refusal meant that he would be fired, because he did not know at
that point what the result of Adair 's refusal would be. Although Adair did
not attribute such a statement to Cehan in the affidavit he gave the Board
agent, I have credited his testimony in that regard , rather than the contrary
testimony of Cehan , because of the admission by Terminal Manager Davis
that it was standard company practice to discharge an employee who
refused to perform an assigned task , and Cehan 's admission that he had
problem. Adair replied, "that doesn't mean that I won't get
hurt," and stated that he would not cross the picket line at
Pilot. Cehan then told Adair to put the trailer in the yard
and detach his tractor. After doing so, Adair went to the
drivers' room to await another assignment. At the time
three other drivers were in the drivers' room awaiting
assignments . Shortly thereafter Cehan called Adair from
the drivers' room to the platform. There Cehan, who had a
manifest in his hand, told Adair that he had just talked to
Plant Manager Davis and that the latter had instructed
that Adair should be required to deliver the freight to Pilot,
and that if he refused, he should be required to clock out.
Adair asked if this meant that he had to cross the picket
line. Cehan replied "that is what it means." Adair then
asked, "if I don't go, am I fired?" Cehan again replied,
"that is what it means ." Adair then announced that he
would not go. Cehan told Adair to punch out and see
Davis the next morning. Adair did so, leaving the premises
about 5 p.m. At that time the trailer Adair had left in the
yard that afternoon was still there, and the evidence shows
that within about an hour thereafter, it was delivered to
Pilot by driver Chafin. At that time, Respondent had in its
employ 36 other drivers none of whom had refused to
deliver to Pilot.13
During the evening of March 7, Adair telephoned Davis
at his home, and asked whether he (Adair) was fired. Davis
replied that Adair had refused to perform an assigned task,
having refused to carry out a load; and that he had nothing
further to say to him.14 The following morning Adair met
with Davis at the latter's office. What was said at this
meeting is somewhat in dispute. According to Adair, the
meeting opened with his asking if he were fired; this
question was repeated several times , but Davis would tell
him only that he (Adair) had refused to perform an
assigned duty, and that Respondent had nothing further
for him; he then asked for a termination notice, but Davis
refused, saying that it was not his policy to give such; he
then asked what his record would show, and Davis replied
that it would just show that he (Adair) had refused to
perform an assigned task; he (Adair) then asked if his
record would show that he had refused to cross a picket
line, and Davis replied in the negative; he then told Davis
been instructed by Davis to require any employee who refused to perform
an assigned task to clock out and see Davis . Cehan's testimony that he was
unaware what action Davis might take against Adair for his refusal to
deliver to Pilot, I reject as incredible.
14 There is a conflict in the evidence as to whether Davis was aware of
what had happened when he spoke that evening with Adair. The latter
testified that while he did not ask the question of Davis, the latter seemed to
know what had happened. Davis , on the other hand , testified that he was
not aware when he spoke with Adair the evening of March 7, that the latter
refused to take freight to Pilot, and that he learned what happened when he
telephoned Cehan after he spoke with Adair. Cehan testified that he talked
to Davis about an hour after he required Adair to punch out, to inform
Davis of what had occurred . Cehan, however , did not fix the time of that
call, but said that based on his conversation with Davis , he assumed that
Davis had not yet talked with Adair. Adair fixed the time of his punch out
about 6 p.m., but did not fix the time of his call to Davis. Although I deem it
unnecessary to resolve the conflict , were I required to make a finding in that
regard, I would find that Davis was fully informed concerning what had
occurred when he spoke with Adair during the evening of March 7. 1 think
this is made evident by the fact that Davis told Adair that he had refused to
deliver at Pilot . If he did not get this information from Cehan, the evidence
fails to explain where he got it.
G & P TRUCKING CO.
that he assumed he was fired, and asked about the pay due
him; Davis telephoned the main office and directed that
Adair's pay be computed, and to include what might be
due Adair for vacation pay and safety bonus; he picked up
his check the next day , and it included the aforementioned
items.
Davis admitted that on the morning of March 8, Adair
did ask if he were fired and all he would tell him was
Respondent had a duty to perform service for its customers
or it would lose them , and unless Adair was willing to
perform all work assigned to him, Respondent had nothing
for him . I have the definite feeling that Davis deliberately
evaded an answer to Adair's question . Admittedly, Davis
did not at this time ask Adair if he would be willing to
deliver to Pilot . Davis also admitted that delivering to Pilot
was the only duty Adair refused to perform, and that it was
because of such refusal that he told Adair that he had
nothing further for him . Davis further admitted that at the
time Adair refused to deliver to Pilot, Respondent had 36
other drivers whom he had no reason to believe would
refuse to cross the picket line at Pilot . The evidence, of
course, shows , as Davis admitted and as above indicated,
that within an hour after Adair refused to go to Pilot,
driver Chafin made the delivery that Adair refused to
make . There is no evidence that, except for Adair on
March 7 and Dunn on March 14, any of the Respondent's
drivers refused to cross the picket line at Pilot.
With respect to his reasons for refusing to cross the
picket line at Pilot, Adair testified that in his conversation
with Cehan, he gave the latter no reason for refusing to
cross the line, but that his reasons were two fold; first his
fear that he might get hurt , and, secondly, that as one of
the leaders in the effort to get the employees to support the
Union, he could not cross the Union 's picket line at Pilot,
and that he had made up his mind not to do so, when the
picketing at Pilot started . In his testimony before an
appeals referee of the South Carolina Employment
Security Commission , on May 8 , Adair testified that his
reason for refusing to cross the picket line at Pilot on
March 7 was fear for his personal safety.
On May 21 , and at another time not fixed by the record,
Adair returned to Respondent's terminal and told Davis
that he was there to "get me a job." Davis replied that there
were no openings available for Adair-15
Contentions and Conclusions
In support of the contention that the facts do establish a
violation of the Act, Respondent contends (1) that Adair
and Dunn were merely "replaced," and that neither was
"discharged," as the complaint alleges , and (2) that in any
event Respondent's action against Adair and Dunn was
required by the necessity of maintaining the proper
operation of its business.
Turning to the first question , I must and do fmd and
conclude that both Adair and Dunn were discharged by
Respondent for refusing to cross the picket line at Pilot. I
do so based on the following considerations:
15 Based on the credited and uncontradicted testimony of Adair.
le Enfd., as modified in respects not here material sub nom . Truck Drivers
623
1. As the Board made plain in Overnight Transportation
Company, 212 NLRB 515 (1974), relying on Redwing
Carriers, Inc., 137 NLRB 1545 (1962), ". . . in distinguish-
ing between `replacement' and `discharge ,' substance rather
than the precise wording is important."
2. On March 7, when Adair asked Dispatcher Cehan if
his refusal to cross the picket line at Pilot meant that he
would be fired, Cehan replied that Adair's statement was
correct.
3. Davis admitted that it was Respondent's "standard
practice" to discharge any employee who refused to
perform an assigned task.
4. On the morning of March 8, when Adair asked
Davis whether he was fired, Davis did not answer the
question directly, but instead gave Adair a lecture about
the nature of Respondent's business and that it required
the prompt forwarding of freight it interlined with other
carriers.
5. Respondent promptly paid Adair in full for wages
due him, without requiring the latter to wait for his next
regular payday, and included in such payment appropriate
allowances for vacation benefits and safety bonus, none of
which was payable at the time.
6. When all of this is added to the fact that Respond-
ent, as I have heretofore found, had deliberately embarked
on a campaign to invent reasons to dismiss those
employees responsible for the attempt to organize Re-
spondent's employees , which it well knew included Adair,
the attempt to completely terminate the latter's employ-
ment status, seems clear . It is true that Dunn does not fall
in exactly the same category as Adair so far as union
activity is concerned, but the record shows that Respond-
ent was aware that Dunn had authorized the Union to act
as his collective-bargaining representative. Moreover,
having discharged Adair for refusing to cross the picket
line at Pilot, consistency required it to treat with Dunn in
the same way when he later engaged in the same conduct.
Based on the totality of the foregoing I fmd that Adair
and Dunn were discharged by Respondent on March 7
and 14, respectively . This conclusion , however, does not
dispose of the central issue presented by this record,
because as the Board held in Overnight Transportation
Company, 154 NLRB 1271, 1274 (1965),16 an employer
who terminates an employee that has engaged in protected
concerted activity by respecting a picket line established at
the premises of another employer, does not violate the Act
by such termination if he acts "only to preserve efficient
operation of his business , and . . . only so [that he] could
immediately or within a short period thereafter replace
them with others willing to perform the scheduled work
" What such a situation requires is a balancing of thg
right of the employees to engage in protected concerted
activity with the right of the employer to continue his
business operations, "... and it is only when the
employer's business need to replace the employee is such as
clearly to outweigh the employee's right to engage in
protected activity that an invasion of the statutory right' is
justified." Overnight Transportation, supra. The burden of
and Helpers Local No. 728 v. N.LRB., 364 F.2d 682 (C.A. D.C., 1966).
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establishing such facts rests with Respondent , and in my
view that burden has not been met in the instant case.
Just as in Overnight Transportation, supra, the drivers
here are not basically assigned to a particular route.
Although Pilot is a carrier with whom Respondent does a
large volume of interlining, as Davis made clear in his
testimony, a particular driver may go to Pilot's premises
several times during a day , and may not go there again for
days or even weeks . In such a situation adjustments ip the
schedules of particular employees must be commonplace.
Davis admitted that on March 7 , when he discharged
Adair, there remained 36, and on March 14, when he
discharged Dunn , there remained 35 other drivers out of a
total driver force of 37 , who had not refused to cross the
picket line at Pilot , and whom he had no reason to believe
would engage in such refusal . Indeed, as the pvi4ence
shows, the duties which Adair and Dunn refused to
perform at Pilot were within an hour or so thereafter
performed by another driver to whom Respondent as-
signed such tasks. As indicated above , the picketing at
Pilot was continuing at the time of the trial , and there is no
evidence that any driver refused to cross the picket line in
the 5-month period between March 14 and August 16. The
availability of other drivers to do the work which those
who refused to cross a picket line failed to perform, has
been considered by the Board in passing on the merits of
an issue of "business necessity." See Overnight Transporta-
tion Company, 212 NLRB 515 (1974), where Braswell
Motor-Freight Lines, 1$9 NLRB 503 (1971 ), was cited with
approval . The most that Respondent has shown is that it
was put to some inconvenience in rearranging schedules in
order to get its work done . But as the Board stated in
Overnight, supra, 154 NLRB at 1274:
... if the protected right of employees is to have any
meaning at all, then the employer who would justify a
discharge on the basis of an overriding employer
interest must present more than a mere showing that
someone else may have to do the work . That fact is
inherent in every situation where employees fail to
perform a portion of their assigned tasks by respecting
a picket line. To accept it alone as conclusive proof that
their services were terminated solely to preserve
efficient operation of the employer's business would be
rendered illusory any finding that the employees
engaged in protected concerted activity . It would leave
the refusal to cross a picket line without any protection
at all.
Respondent additionally argues , based on NLRB. v.
Union Carbide Corporation, 440 F.2d 54 (C.A. 4, 1971);
opinion modified and rehearing denied 440 F .2d, 58, cert.
denied 404 U.S. 826, that as Adair and Dunn both told
Respondent (and Adair also so testified at the unemploy-
ment hearing), that their reason for not crossing the picket
line at Pilot was fear for their personal safety, the
complaint must be dismissed because neither of them
engaged in concerted activity. I find the argument without
merit . In the first place, as hereafter set forth, I fmd that
the discharge of Adair and Dunn violated not only Section
8(axl), but was at leasit in part, discriminatorily motivated,
and therefore violated Section 8(aX3) of the Act, as well.
Thus, even assuming that the conduct of Adair and Dunn
did not constitute protected concerted activity , this case is
distinguishable from Union Carbide, supra, on that ground.
Secondly , even assuming that Union Carbide is not so
distinguishable , the Board has made it clear that it does not
agree that Union Carbide represents a correct statement of
the law . See Overnight Transportation Company, 212 NLRB
515, fn . 6, and Congoleum Industries, Inc., 197 NLRB 534,
546-548 ( 1972). As an agent of the Board , it is my duty "to
apply established Board precedent which the Board or the
Supreme Court has not reversed ," regardless of the views I
may entertain on the subject . Insurance Agents' Internation-
al Union, 119 NLRB 768, 773 ( 1957); Iowa Beef Packers,
Inc., 144 NLRB 615, 616 (1963); S.N.C. Manufacturing Co.,
Inc., 147 NLRB 809, 821 ( 1954). Accordingly, on the facts
of this case I find without merit Respondent 's contention
that Union - Carbide, supra, requires dismissal of the
complaint in this case.
On the basis of the foregoing , I find and conclude that
Respondent's interference with the protected right of Adair
and Dunn to respect the picket line at Pilot, outweighs the
business justification which Respondent urges as its
reasons for discharging them . Accordingly, I find and
conclude that by discharging Adair and Dunn, Respond-
ent violated Section 8 (axl) of the Act.
Additionally , in view of Respondent 's union animus
herein above set forth, I further ford and conclude that it is
reasonable to infer, as I do, that the union sympathy of
Adair and Dunn , as evidenced by their assistance to and
support of the same union in seeking to gain organization
of Respondent's employees, was a contributing factor in
Respondent's decision to discharge them . Conduct even in
part so motivated tends to discourage union membership.
For these reasons, and having heretofore found that
Respondent did not discharge Adair and Dunn for
justifiable business purposes, I fmd and conclude that by
such discharges Respondent violated not only Section
8(axl) of the Act, but also Section 8 (aX3). Overnight, supra,
1275-76.
H. THE REMEDY
Having found that Respondent interfered with the right
of Adair and Dunn to engage in protected concerted
activity by discharging them for refusing to cross the picket
line at Pilot, I shall recommend that it be required to cease
and desist from such conduct, and that it be required to
offer Adair and Dunn immediate, full and unconditional
reinstatement to their respective former or substantially
equivalent positions , without prejudice to their seniority or
other rights and privileges, and make each of them whole
for any loss of pay suffered by reason of their discharge by
Respondent . Loss of pay , as aforesaid , shall be computed
in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and shall bear
interest at the rate of 6 percent per annum , as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
The record showing, as I have found , that Respondent
maintains an attitude in opposition to the purposes of the
Act with respect to the protection of employee rights, an
order requiring it to cease and desist from in any manner
G & P TRUCKING CO.
infringing on rights guaranteed employees by Section 7 of
the Act, is appropriate.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Adair and Dunn on March 7 and 14,
respectively , for engaging in protected concerted activity,
Respondent engaged in unfair labor practices proscribed
by Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case , and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 17
Respondent G & P Trucking Company , Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with the rights of employees to engage in
protected concerted activity or discourage membership in
any labor organization by discharging employees for
refusing to cross a picket line at the premises of another
employer , without justifiable business reasons, in violation
of Section 8(aXl) and (3) of the Act.
(b) Discouraging membership in General Drivers Ware-
housemen & Helpers Local Union 28, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousilmen & Helpers of America, or any other labor
organization of its employees by discharging or in any
other manner discriminating in regard to their hire or
tenure of employment , or any other term or condition
thereof.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of the rights to self-
organization , to form, join, or assist the aforementioned, or
any other labor organization , to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
2. Take the following affirmative action found neces-
sary and designed to effectuate the policies of the Act:
(a) Offer Fleming C. Adair, Jr., and James Dunn
immediate , full, and unconditional reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them each whole for any loss of pay suffered as a
result of his discharge, as provided in the section hereof
entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its authorized agents, for examination and
copying, all payroll records, social security payment
records, timecards , personnel records and reports, and all
625
other records necessary or useful in determining compli-
ance with this Order, or in computing the amount of
backpay due under the terms hereof.
(c) Post at its terminal in Greenville , South Carolina,
copies of the attached notice marked "Appendix." 18
Copies of said notice , on forms provided by the Regional
Director for Region 11 of the Board (Winston-Salem,
North Carolina) shall, after being duly signed by an
authorized representative of Respondent, be posted by, it
immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter , in conspicu-
ous places, including all places where notices to employees
are customarily posted . Reasonable steps shall be taken to
insure that said notices are not altered , defaced, or covered
by any other material.
(d) Notify the aforesaid Regional Director , in writing,
within 20 days from the date of receipt of this Order, what
steps it has taken to comply herewith.
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.
Is In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present their evidence, it has been decided that we, G & P
Trucking Company , Inc., violated the National Labor
Relations Act, and we have been ordered by the National
Labor Relations Board to post this notice . We intend to
carry out the order of the Board , the Judgment of any
court enforcing the same, and abide by the following:
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other mutual
aid or protection
To refrain from any such activities.
WE WILL NOT in any manner interfere with our
employees in the exercise of those rights. All our
employees are free to become or remain members of
Teamsters Local 28, or not to become or remain a
member of that or any other union.
WE WILL OFFER Fleming C. Adair, Jr., and James
Dunn immediate , full, and unconditional reinstatement
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to their former or substantially equivalent position, pay suffered by reason of their discharge, respectively,
without prejudice to their seniority or other rights and together with 6-percent interest.
privileges, and make each of them whole for any loss of
G & P TRUCKING
COMPANY, INC.