G & S Transportation

National Labor Relations Board - Board Decisions

Oct 26, 1987

286 N.L.R.B. 762 (N.L.R.B. 1987)

762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
G & S Transportation and Kenneth Fernandez. Case
32-CA-8418
26 October 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 21 April 1987 Administrative Law Judge
Clifford H. Anderson issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed limited excep-
tions and an answering brief in support of the
judge's decision and her exceptions. The Respond-
ent filed a reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings,' findings, 2
and conclusions and to adopt the recommended
Order.
In adopting the judge's findings, we note that the
judge's findings were based on the testimony of
certain witnesses whom the judge credited, based
on their demeanor. The Respondent did not file
timely exceptions to the judge's credibility resolu-
tions3 and, thus, the credibility issue is not before
us.
The judge credited the testimony of Kenneth
Fernandez and found that Fernandez was threat-
ened on 24 September 1986 by the Respondent's
i The judge, in the "Analysis and Conclusion" section of his decision,
states that "[W]here a driver honors a picket line at a customer location,
a primary employer may have sufficient business justification to terminate
that employee " Under Board law, an employer may have a sufficient
business justification to replace that employee, however, the employee's
status remains akin to that of an economic striker and therefore the em-
ployee remains entitled to reinstatement on an unconditional offer to
return to work if not permanently replaced Furthermore, if the employ-
ee has been permanently replaced , he remains entitled to reinstatement
upon the departure of the replacement Torrington Construction Co, 235
NLRB 1540, 1541 (1978).
The judge inadvertently stated that the conversations between Fernan-
dez and A J Sirianni Sr took place on 25 September 1986 and 26 Sep-
tember 1986 The record shows that the relevant conversations between
the two men took place on 24 September 1986
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S.C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
2 The Respondent raised a credibility issue in its brief in response to
the General Counsel's exceptions. The General Counsel moved to strike
the section of the Employer's brief raising the credibility issue as that sec-
tion does not address any issue raised by the General Counsel in her ex-
ceptions and therefore is not a proper subject for cross-exceptions We
agree with the General Counsel and grant her motion to strike the Re-
spondent's cross-exceptions See Sec 102 46(d)(2) of the Board's Rules
and Regulations
president, A. J. Sirianni Sr., with termination if he
failed to make deliveries to Toyota's San Francisco
Auto Center. Later that evening, Sirianni tele-
phoned Fernandez and again told him that he had
to make the deliveries to the Auto Center or be
terminated. When Fernandez refused, on the
ground that delivering to the Auto Center would
require him to cross a picket line, Sirianni replied
that they would have to let him go. Although the
judge credited Fernandez' account of the phone
call, even according to Sirianni's version of the
phone call, Sirianni did not notify Fernandez of the
alternate plan he had allegedly worked out with
Barry Beringer, the parts manager at the San Fran-
cisco Auto Center, to alleviate the need for Fer-
nandez to cross the picket line at the Auto Center.
In light of Sirianni's failure to relay that plan to
Fernandez, we find it of little relevance that Ber-
inger testified that he had agreed to a plan with
Sirianni which would have resulted in the parts
being delivered to the Auto Center while accom-
modating Fernandez' wishes not to cross the picket
line.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, G & S
Transportation, San Ramon, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Sharon Chabon, Esq., for the General Counsel.
H. Sanford Rudnick, Labor Consultant (H. Sanford Rud-
nick & Associates), of Newark, California, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on 7 January 1987 pursuant to a
complaint and notice of hearing issued by the Regional
Director for Region 32 of the National Labor Relations
Board on 28 October 1986 pursuant to a charge filed on
26 September 1986 by Kenneth Fernandez, an individual,
against G & S Transportation (Respondent or the Em-
ployer).
The complaint alleges and the answer denies that Re-
spondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) by constructively dis-
charging employee Kenneth Fernandez about 24 Septem-
ber 1986 because of that employee's refusal to cross a
labor organization picket line located at a customer's fa-
cility.
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to call, ex-
286 NLRB No. 76
G & S TRANSPORTATION
amine, and cross-examine witnesses, to argue orally, and
to file posthearing briefs.
On the entire record, including briefs from the General
Counsel and Respondent, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material Respondent has been a California
corporation with an office and place of business in San
Ramon, California where it is engaged in the business of
providing freight pickup and delivery services to Toyota
Motor Distributors, Inc., a wholly owned subsidiary of
Toyota Motor Sales, USA, Inc. (Toyota) for the pickup
and delivery of Toyota automobile parts to various
Toyota automobile dealers in northern California. At all
times material , Respondent, in the course and conduct of
its business operations, provided services valued in excess
of $50,000 annually directly to Toyota, which itself
meets one of the Board's jurisdictional standards, other
than direct inflow or indirect outflow. Accordingly,
there is no dispute, and I find, that Respondent is now,
and has been at all times material, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At all times material Respondent's president and chief
executive officer was A. J. Sirianni Sr., also known as
Gus. A. J. Sirianni, Jr., also known as A. J., was at all
times material a supervisor employed by Respondent.
There is no dispute and I find that these individuals were
supervisors within the meaning of Section 2(11) of the
Act and agents of Respondent at relevant times. Kenneth
Fernandez, the Charging Party here, had been an em-
ployee of Respondent for several years. During that
time , Fernandez was a pensioner under a pension for
services performed as a member of the International
Brotherhood of Teamsters, a labor organization. That
pension , although restricting the number of hours
worked under union contracts, allowed unlimited em-
ployment by nonunion employers. Respondent, insofar as
the record reflects, had at all times been such an employ-
er.
Respondent's sole customer is Toyota Motor Distribu-
tors that maintains a distributing center in San Ramon,
California. Respondent's function was to transport
Toyota parts and other materials as necessary between
and among the distribution center and other Toyota fa-
cilities. Kenneth Fernandez was employed as one of sev-
eral truckdrivers and drove a standard route, Route 2,
which involved taking parts from the distribution center
to locations within San Francisco and other cities. One
of the San Francisco locations is known as the San Fran-
cisco Auto Center on 16th Street•in San Francisco.
763
B. The General Counsel's Version of Events-The
Testimony of the Charging Party
Kenneth Fernandez, the General Counsel's sole wit-
ness, testified that during the course of his regular deliv-
eries to the San Francisco Auto Center in June or July
19861 he learned that there was to be a strike and picket
line at the Auto Center by a Teamsters Local.2 Fernan-
dez testified that he did not believe in crossing picket
lines as a truckdriver and, consistent with his past prac-
tice, he was determined not to cross such a picket line at
the Auto Center. Fernandez testified that soon after he
learned of the likelihood of a strike at the Auto Center,
he had a conversation with his supervisor, A. J. Sirianni
Jr., in which he told him that there might be a strike at
the Auto Center and, should that occur, he would not
cross the picket line. Fernandez testified that A. J. Sir-
ianni Jr. simply told him not to worry about it, that Re-
spondent would take care of it. Fernandez further testi-
fied that he had a similar conversation with A. J. Sir-
ianni Sr. who assured him that "A. J will take care of
it."
It is undisputed that a strike later commenced at the
Auto Center and that pickets were on patrol during it.
Initially during the strike, Auto Center personnel picked
up necessary parts at the San Ramon distribution center.
Thus deliveries to the Auto Center by Fernandez were
not necessary. Fernandez testified that Bill ,Vahl, the
Auto Center employee who made the daily pickup of
Auto Center parts at the San Ramon facility, continued
this pattern until approximately mid-September. At that
time Vahl told Fernandez and A. J. Sirianni Jr. that he
did not wish to continue to pick up parts at the distribu-
tion center. Fernandez testified that he told both Vahl
and A. J. that he would not cross a picket line at the
Auto Center whereon the two other individuals retired
into an office for approximately 10 minutes. When they
returned A. J. Sirianni Jr. gave Fernandez handwritten
directions to a location on Fourth Street in San Francis-
co that Fernandez was told would be an alternative site
for delivery of Auto Center parts should pickets be at
the Auto Center when Fernandez arrived in his truck.
Fernandez testified that he delivered parts to the Fourth
Street facility pursuant to this arrangement on 17, 18,
and 19 September without incident
Fernandez testified that he found no pickets at the
Auto Center on 22 and 23 September and consequently
delivered parts without incident. On Wednesday, 24 Sep-
tember, Fernandez testified that, because they were again
pickets at the Auto Center, he proceeded to the Fourth
Street alternative delivery site and there delivered the
Auto Center parts. He then proceeded to his remaining
San Francisco stop where he was told by staff to call
"home." Fernandez telephoned A. J. Sirianni Jr. who
told Fernandez he was "in trouble" because he should
have telephoned Respondent before delivering Auto
Center parts to the alternative facility on Fourth Street.
I Unless stated otherwise, all dates hereafter refer to 1986
2 Throughout the proceeding it was assumed and, based on the record
as a whole, I find that the labor organizations involved here fall within
the definition of labor organization as set forth in Sec 2(5) of the Act
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fernandez in some heat challenged A. J. Sirianni Jr.'s
assertion that he was obligated to call in asserting he had
encountered no difficulties in delivering the freight. Fer-
nandez further recalled that A. J. Sirianni Jr. told him
that Frank Luciano, the parts distribution manager for
Toyota, had informed Respondent that it had an obliga-
tion under its contract to deliver parts to the Auto
Center. Fernandez testified that the conversation became
heated, that he told A. J. Sirianni Jr. that he would not
under any circumstances cross a picket line, and that he
then hung up on A. J.
Fernandez completed his route that day and returned
to the San Ramon facility where he had a short conver-
sation with A. J. Sirianni Jr. Fernandez testified that
A. J. Sirianni Jr. repeatedly told him that he was "in big
trouble" and directed him to A. J. Sirianni Sr.'s office
that is located close by the distribution facility. Fernan-
dez went to the office and there had a conversation with
A. J. Sirianni Sr. Fernandez testified that he opened the
conversation with the remark "Gus, what is the bottom
line of all this." Fernandez recalled that A. J. Sirianni
Sr. told him that freight must be delivered to the 16th
Street facility. Fernandez responded that he was not
going to cross the picket line, "so what does that mean."
A. J. Sirianni Sr. told Fernandez that he had spoken
with Frank Luciano and that "we got to fulfill our con-
tract, you gotta deliver that freight."3 Fernandez re-
sponded that he had been delivering freight to the alter-
native site on Fourth Street and that, if the freight was
to go directly to the Auto Center, he simply was not
going to go through a picket line. Fernandez recalled
A. J. Sirianni Sr. responded: "Well, that's it, we'll have
to let you go." Fernandez answered, "Okay," and imme-
diately submitted his company gasoline card and turned
to walk out. Fernandez recalled that A. J. Sirianni Sr.
called to him: "Ken, you're a good driver, I'm gonna
talk this over. Maybe we can work something out and
I'll call you tonight." Fernandez then left.
Fernandez testified that A. J. Sirianni Sr. phoned him
at his home that evening. He recalled that A. J. Sirianni
Sr. told him that in the interim he had talked to Frank
Luciano and "they probably had it worked out." Fernan-
dez responded: "That's great, what are we going to do?"
A. J. Sirianni Sr. said that someone was going to ride in
the truck with Fernandez. Fernandez asked if he meant
the person was going to drive through the picket line, an
arrangement Fernandez had utilized with satisfaction
while employed under a Teamsters contract. A. J. Sir-
ianni Sr . said, "No, that they were simply going to sit
there with you, you're going to drive through." Fernan-
dez said that did not solve anything because he was still
in the truck going through a picket line and reiterated he
was not going to go through a picket line. A. J. Sirianni
Sr. then said, "Well, that's it, I'll have to let you go."4
3 The court reporter, in my view, unnecessarily colloquialized the
speech of all trial participants In the absence of a motion to correct the
transcript, however, I have not corrected the official transcript
* Fernandez called elsewhere in is testimony that at this point A J
Sinanm Sr told him that Toyota was demanding that freight be deliv-
ered to the 16 Street facility and that, if Fernandez would not go through
the picket line, Respondent would have to let him go
Fernandez answered: "Okay, I'll be in tomorrow to turn
in my uniform," and the conversation ended.
The following day Fernandez returned to the office to
turn in his uniform and conclude other final business.
There he had a very brief conversation with both A. J.
Sirianni Jr and A. J. Sirianni Sr A. J. Sirianni Sr. told
Fernandez that he was "sorry about the whole thing,
wished it had been different." Fernandez recalled that he
agreed but "that we just don't have any common
ground, and that I'm not going to go through any picket
line." The conversation then ended and Fernandez left.
There has been no subsequent contact between Respond-
ent and Fernandez.
C. Respondent's Version of Events
Both A. J. Sirianni Jr. and Sr. denied having had a
conversation with or otherwise learning that Fernandez
had an aversion to crossing a picket line while making
his deliveries until the week of his termination. A. J. Sir-
ianni Jr. testified that during the strike at the San Fran-
cisco Auto Center, Bill Vahl, the shipping and receiving
supervisor at the San Francisco Auto Center, came to
the San Ramon distribution center each morning pursu-
ant to special arrangements and picked up the parts
needed by the San Francisco Auto Center. This obviated
any need for Respondent to deliver parts to the Auto
Center during the strike. A. J. Sirianni Jr. further testi-
fied that on Friday, 19 September, Vahl complained to
him about the hours required to maintain the ad hoc
pickup arrangements. Vahl told him that because the
strike was "basically over" Vahl was going to speak to
his superiors regarding resuming deliveries by Respond-
ent to the Auto Center. A. J. Sirianni Jr. testified that he
told Vahl that until he received authorization he could
not change the then existing arrangements. Vahl indicat-
ed that he would have his superiors at the Auto Center
contact Toyota who would in turn authorize the neces-
sary changes. A. J. Sirianni Jr. testified that, later that
day, Frank Luciano, the parts distribution manager for
Toyota, spoke to him and in effect authorized the re-
sumption of deliveries as had occurred before the strike.
A. J. Sirianni Jr. testified that early on the morning of
22 September, the following Monday, he spoke to Vahl
on the telephone. He learned that there were two pickets
who patrolled at the Auto Center but that those two
pickets were usually gone from the facility by 10 a.m.,
before Fernandez would normally arrive. Vahl told
A. J. Sirianni Jr. that deliveries would be made to the
Auto Center, but that, in the event the pickets were on
patrol when Fernandez arrived, an alternative delivery
location on Fourth Street could be utilized. A. J Sir-
ianni Jr. testified that he then explained this procedure to
Fernandez and gave him a map locating the 4th Street
facility. He also testified that he told Fernandez that if he
saw pickets at the 16th Street facility he was to stop and
use a pay phone to call the San Ramon facility and
report these circumstances before dropping the freight at
the Fourth Street alternative site. There is no dispute by
any party that delivery was made in a timely fashion to
the 16th Street facility without incident on that day.
G & S TRANSPORTATION 765
Bill Vahl testified that on 23 September, while on the
dock at the Auto Center, he had occasion to see Re-
spondent's truck pass by the 16th Street facility without
stopping. He called ahead to the Fourth Street facility
and soon learned that the parts were being delivered
there. Vahl testified that at the time of the events he had
not noticed any pickets on duty although he had also tes-
tified that pickets sometimes remained in their parked
automobiles and were therefore not always obvious. In
any event, Vahl complained to Luciano regarding Fer-
nandez ' failure to deliver the parts to the 16th Street fa-
cility. A. J. Sirianni Jr. testified he learned of the failure
to deliver parts on 23 September from Luciano, who was
at the San Ramon distribution center at the time. Lu-
ciano , in A. J. Sirianni Jr.'s testimony, wanted to know
why the freight had been delivered to the 4th Street
rather than 16th Street facility. A. J. Sirianni Jr. testified
he had no answer to Luciano and indicated that he
would inquire. A. J. Sirianni Jr. testified that either later
that afternoon or on the next morning he asked Fernan-
dez why he had not called in before dropping the freight
at Fourth Street. He could recall only that Fernandez in-
formed him without further edification that he had
dropped the freight at the Foui,h Street facility.
On 24 September the freight was again delivered to
the Fourth Street facility. Vahl learned of this delivery
from the Fourth Street receiving agent who informed
him of the delivery after the fact. As a consequence of
the delivery at 4th Street rather than at 16th Street and
the lack of immediate notice of that fact, the Auto
Center was unable to reship the parts to other users that
day as would otherwise have occurred.5 Complaints
were put in train. A. J. Sirianni S r. testified that he re-
ceived telephone complaints from Barry Beringer, the
parts manager of Toyota in San Francisco, and Frank
Luciano, the parts manager of Toyota in San Ramon, ad-
dressed to Fernandez' failure to deliver parts to the 16th
Street facility.
A. J. Sirianni Jr. left a message for Fernandez to call
the office from his next delivery location. Fernandez in
due course returned the phone call and A. J. asked Fer-
nandez, in A. J. Sirianni Jr.'s recollection, why the parts
were not delivered to the 16th Street facility. At that
time , in A. J. Sirianni Jr.'s testimony, Fernandez stated
for the very first time that he would never cross a picket
line. A. J. Sirianni Jr. told Fernandez that he was not
being obligated to cross the picket line but that he had
been asked to call in before making alternative deliveries.
A. J. Sirianni Jr. specifically denied that in this phone
call or at any other time he told Fernandez "You're in
trouble, you're in trouble" or words to that effect
A. J. Sirianni Jr. testified that he had a very brief con-
versation with Fernandez on his return to the facility. He
testified simply that Fernandez was abusive and, in heat,
5 There was unchallenged testimony that the Auto Center's competi-
tive situation required that they be able to obtain their parts in a manner
that would allow reshipment to customers using Auto Center trucks on a
same day basis The loss of a day's delivery lime placed the Auto Center
at a severe competitive disadvantage Accordingly, the Auto Center was
adamant that deliver of parts occur as was required under Toyota's con-
tract with Respondent
told him he could "take his job and stick it" in somewhat
stronger terms.
A. J. Sirianni Sr. testified that he had a conversation
with Kenneth Fernandez in his office about 2:45 p.m.
A. J. Sirianni Sr. was on the phone at the time Fernan-
dez arrived and motioned Fernandez to wait until the
call was completed. At that time, in A. J Sirianni Sr.'s
recollection, Fernandez immediately pulled his fuel card
from his pocket, walked over to A. J. Sirianni Sr.'s desk,
deposited the card, and, said "It's been nice working for
you, Gus, but I can't work for you any longer " When
A. J. Sirianni Sr. asked what the problem was, Fernan-
dez responded, "It's against my principles to cross a
picket line, I 'm not gonna do it. It's not right." A. J. Sir-
ianni Sr . recalled he told Fernandez that no one had
asked him to cross a picket line. He told Fernandez that
he had been instructed to go to the 16th Street facility
and if he could not deliver the parts at that time to tele-
phone the office. He asked Fernandez why he had not
called in. Fernandez did not respond directly, merely
reasserting that crossing a picket line was against his
principles and that he refused to do so. A. J. Sirianni Sr.
recalled that at this point in the conversation Fernandez
became very upset , "very adamant about the whole situ-
ation," and that he gave A. J. Sirianni Sr. no chance to
learn what had occurred, "to the point where we could,
you know, we could solve the problem." Rather, Fer-
nandez simply angrily departed. A. J. Sirianni Sr specif-
ically denied telling Fernandez that he was terminated or
that he otherwise threatened him with termination.
A. J. Sirianni Sr. testified that he thereafter spoke
with the Auto Center parts manager and made an ar-
rangement with that individual, the specifics of which
were somewhat confused in Sirianni Sr.'s mind, to have
Fernandez drive the truck to the 16th Street facility and,
if pickets were there, to pull up to the entrance to the
facility where Toyota personnel would take possession of
the parts beyond the area patrolled by the pickets.
Later that evening, A. J. Sirianni Sr. telephoned Fer-
nandez at his home. A. J. Sirianni Sr. recalled that he
told Fernandez that he wanted him to reconsider and
come to work the following day and "I will have this
thing worked out." A. J. Sirianni Sr. recalled that Fer-
nandez became heated and asserted repetitively: "No,
I'm not gonna do it. It's not right. I refuse to cross the
picket line . . . I'm just not gonna do it." A. J. Sirianni
Sr. recalled that Fernandez was soon shouting and that
he attempted to reassure Fernandez, telling him to "slow
down, wait a minute, I am not asking you to cross the
picket line. I'll work things out tomorrow. All I'm telling
you is, I need you as a driver. I need you to come back
to work." A. J. Sirianni Sr. recalled that Fernandez per-
sisted in his adamant refusal to cross a picket line, con-
cluding: "I'm not gonna to do it. I don't want to hear
any more, I'm gonna call Charlie Mack."6 The conversa-
tion ended, in A. J . Sirianni Sr.'s memory, without his
being able to say more.
6 Charles Mack is apparently an official with International Brother-
hood of Teamsters or one of its constituent locals
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The following morning Fernandez did not report to
work as scheduled. Rather later in the morning he came
to the facility, returned certain company items, discussed
certain pay and expense matters, and departed.
A. J. Sirianni Sr. testified that during the events in
question , he had other drivers available who could have
taken Fernandez' delivery route, allowing Fernandez to
be assigned to other work.? In the event, however, a
warehouse supervisor was used for a period of days and
only later was a new driver hired.
D. Analysis and Conclusions
1. Narrowing the issue
The legal doctrines applicable to the instant case are
neither novel or recent in origin . It is clear that an em-
ployee who asserts a right to honor a picket line is en-
gaged in protected activities . Torrington Construction Co.,
235 NLRB 1540 (1978); Redwing Carriers, Inc., 137
NLRB 545 (1962).8 As Respondent notes on brief, where
a driver honors a picket line at a customer location, a
primary employer may have sufficient business justifica-
tion to terminate that employee . Overnight Transportation
Co., 154 NLRB 1271 (1965), enfd . in part 364 F.2d 682
(D.C. Cir . 1966). By Respondent 's own admission how-
ever , Fernandez' route, which was the only route involv-
ing the potential of crossing a picket line , could have
been assigned to another driver and Fernandez trans-
ferred to other productive work . Thus, there is no issue
in this case of a business justification for Fernandez' ter-
mination . Therefore , if Respondent terminated Fernandez
because he refused to cross a picket line at the Auto
Center, it violated Section 8(a)(1) and (3) of the Act.
Furthermore , if Respondent conditioned Fernandez' con-
tinued employment on crossing the picket line at the
Auto Center , knowing of his principled refusal to do so,
Fernandez ' abandonment of the employee relationship
was caused by Respondent and is legally equivalent to
discharging him for his protected activities . Wolff &
Munier, Inc., 262 NLRB 333 (1982 ). See also Cascade
Painting Co., 277 NLRB 926 (1985).
In the alternative, however, if Fernandez in a moment
of passion simply abandoned his employment before Re-
spondent could provide him with an alternative assign-
ment that did not require crossing the picket line, it may
not be fairly said that his cessation of employment was in
fact caused by Respondent . An employer does not
commit an unfair labor practice simply in initially assign-
ing an employee duties that may include crossing a
picket line . Further , if an employer attempts to make ad-
justments that would remove the need of the employee
A J Sirianni Sr. testified that he had attempted to tell Fernandez of
this fact in their phone conversation the previous evening but Fernandez'
passion made it impossible
B Respondent contends that because Fernandez' actions were those of a
single employee , that activity was not concerted within the meaning of
Act. The Board and the courts have found , however, that such activity is
an act of joining with the picketing employees for "mutual aid or protec-
tion" within the meaning of Sec 7 of the Act and is therefore protected
concerted activity irrespective of the fact that only a single employee is
asserting a right to honor the picket line of others See Southern Califor-
nia Edison Co, 243 NLRB 372 (1979), enfd 646 F 2d 1352 (9th Cir
1981)
to cross a picket line and the employee through indigna-
tion or through any other lack of understanding termi-
nates his employment before the employer is able to
make those arrangements , then the resulting employment
separation may not be held to have been caused by any
employer requirement that the employee cross a picket
line.
The General Counsel's version of events has Fernan-
dez terminated or, in the alternative, quitting his employ-
ment when faced with an employer directive giving him
no alternative but to cross the picket line at the Auto
Center. As noted above, such a factual scenario under
longstanding Board law violates Section 8(a)(1) and (3)
of the Act. On the contrary, Respondent's version of
events suggests that Fernandez, in apparent stubborn
temper, prevented all communication with Respondent
on the subject and refused to listen to any of the at-
tempts by Respondent to make arrangements that would
have allowed Fernandez to continue his duties without
crossing the picket line. In Respondent's version of
events, rather than hear out the employer, Fernandez im-
periously quit his employment before Respondent could
either understand his views or make reasonable arrange-
ments that were in fact available to Respondent and that
Respondent would have instituted if only given a fair op-
portunity. It is clear that, should Respondent's view of
the facts prevail, Fernandez simply acted too quickly in
quitting Respondent's employ and his termination must
be regarded as his own act and not in any way be attrib-
utable to Respondent. The resolution of these conflicting
versions of fact, in my view, turns the instant case.
2. Resolution of conflicting versions of events
The critical events in this case are: (1) the conversa-
tion between A. J. Sirianni Sr. and Kenneth Fernandez
on the afternoon of 25 September and (2) the telephone
conversation between those individuals that evening.
Before turning to the conversations themselves, it is ap-
propriate to consider evidence relevant to the motivation
and bias of the participants as is apparent from the
broader record. First, there was unchallenged evidence
introduced by Respondent that, as a general proposition,
Respondent does not seek to force its employees to cross
picket lines. Rather Respondent had a history of making
delivery arrangements that would avoid having its driv-
ers cross picket lines. Further the record is completely
without evidence of union animus by Respondent gener-
ally or A. J. Sirianni Sr. in particular who had during
earlier years been a member of the Teamsters Union. It
is also true, however, that just before the conversations
at issue here, A. J. Sirianni Sr. had been informed by
Toyota representatives, with Toyota being Respondent's
sole source of business, that it was important to Toyota
that deliveries be achieved at the 16th Street Auto
Center facility. A. J. Sirianni Sr. was surely vitally inter-
ested in preserving the goodwill of his sole customer.
A. J. Sirianni Sr. also knew, before the final telephone
conversation at issue here, that Fernandez had been re-
fusing to deliver the freight to the 16th Street facility and
it was his conduct that was the cause of Toyota's dissat-
isfaction.
G & S TRANSPORTATION 767
The record is also clear that Fernandez has a temper
that on occasion went beyond his control. Thus, there
was uncontradicted evidence that he hung up the phone
on A. J. Sirianni Jr. just before his conversations with
A. J. Sirianni Sr., and that he was actively displeased at
what he thought was the turn of events at his afternoon
meeting with A. J. Sirianni Sr. I also observed that
while in the courtroom during the trial of the instant
matter Fernandez had great difficulty controlling his in-
dignation during certain opposing testimony.
The uncontradicted portions of the conversations be-
tween the parties give further evidence of the motives
and actions of the two individuals. It is clear that A. J.
Sirianni Sr. did not wish to lose the services of Kenneth
Fernandez. This is obvious from the fact that he sought
to make arrangements with Toyota following his after-
noon conversation that would satisfy Fernandez' prob-
lem and that he described those arrangements, however
confusingly, to Fernandez by telephone that evening.
Further A. J. Sirianni Sr. testified directly that Fernan-
dez was a good driver and that he wanted to keep him.
So too, the evidence is clear both from Fernandez and
the testimony of his wife that Fernandez wanted to
retain his employment with Respondent and was willing
to undertake reasonable steps, such as he had undertaken
in the past, which would allow him to deliver parts to
the Auto Center without violating his principles against
crossing a picket line.
Having considered all the above, as well as other testi-
mony with its conflicting evidence regarding other con-
versations as well as the precise dates and locations of
Auto Center parts deliveries in the days before the
events in question,9 I am determined, even given the
burden of proof that the General Counsel bears, that
Fernandez' version of the conversations at issue should
be credited over the differing version of A. J. Sirianni
Sr. My decision turns heavily on demeanor. I also make
this finding because I believe that Fernandez' memory of
these events was substantially superior to that of A. J.
Sirianni Sr. Fernandez struck me as a witness who, de-
spite his clearly impulsive and short-fused nature, would
have remembered whether he was threatened with termi-
nation by Sirianni Sr. in these conversations and would
honestly recite his recollection of events. A. J. Sirianni
Sr.'s version of events was not convincing. I am simply
unable to accept his testimony that, but for Fernandez'
outbursts during these conversations, he would have told
Fernandez that he could be transferred to other duties
and that his route would be taken by another driver until
the difficulties resolved themselves. The undisputed evi-
dence that Fernandez was willing to listen to alternatives
in order to preserve his employment convinces me that,
if Fernandez had been given the slightest hint that other
alternatives were available, he would have paid close at-
9 Some of the unresolved questions include the place and dates of de-
liveries in the days preceding the termination and whether Fernandez
told the Siriannis early about his convictions respecting picket lines I
have found it unnecessary to resolve these questions because, even assum-
ing the factual resolutions were uniformly unfavorable to Fernandez, my
findings regarding the critical conversations would be unchanged
tention. i ° I am convinced on the basis of demeanor, the
evidence noted and the record as a whole that A. J. Sir-
ianni Sr., under the goad of his sole customer's need to
have deliveries made to 16th Street, became exasperated
with Fernandez' apparently rigid resistance to compro-
mising his principles. I find he initially threatened Fer-
nandez with termination on the afternoon of 26 Septem-
ber and, having been unsuccessful in his alternative pro-
posals to Fernandez by telephone later that day, again
told Fernandez he had to make the deliveries to the
Auto Center or be terminated. In response to this clear
command, Fernandez quit.
3. Conclusions
I have determined, as set forth above, that Kenneth
Fernandez, as a matter of trade union principles, refused
to cross a labor organization picket line at the San Fran-
cisco Auto Center and that he communicated that fact to
agents of Respondent. I have further found that Re-
spondent, after initially informing Fernandez that he
would be terminated if he refused to cross the picket
line, later proposed a somewhat confusing alternative
that Fernandez rejected as still compromising his trade
union principles. At that point Respondent again threat-
ened him with termination and directed him to return to
work under the described circumstances. Faced with this
ultimatum and the threats of termination, I find Fernan-
dez was constructively discharged when he refused to
acquiesce in the ultimatum. I further find, consistent with
Respondent's agents' uncontradicted testimony, that at
the time of the constructive discharge, Respondent had
no business reason for discharging and/or replacing Fer-
nandez. Rather, Respondent could have transferred an-
other employee to Fernandez' route and had Fernandez
do gainful work until the situation resolved itself. Given
these findings I further find, under the cases cited supra,
that Respondent in so doing violated Section 8(a)(1) and
(3) of the Act.
REMEDY
Having found that Respondent engaged in an unfair
labor practice, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
actions to effectuate the purposes of the Act, including
the posting of remedial notices in English and, should
the Regional Director determine the circumstances at the
time of the posting warrant, in additional languages.) i
Having found that Respondent constructively termi-
nated the employment of employee Kenneth Fernandez
in violation of Section 8(a)(1) and (3) of the Act, I shall
order Respondent to offer him immediate and full rein-
statement to his former position or, should that position
no longer exist, to a substantially equivalent position,
without prejudice to any seniority or other rights and
10 Although the evidence as to the proposal to Fernandez by A J
Sinanni Sr in the phone call is unclear, it seems ost likely that A J Sir-
tanm Sr recited a scenario that in fact involved conduct by Fernandez
that he could legitimately reject as compromising his principles regarding
the honoring of picket line
I 1 Laborers Local 383 (Arizona AFC), 266 NLRB 934, 939-940 fn 9
(1983)
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
privileges to which he may have been entitled, discharg-
ing, if necessary, any replacement hired after the date of
his discharge. I shall further order Respondent to make
Fernandez whole for any loss of earnings he may have
suffered by reason of Respondent's discrimination against
him by payment to him of a sum equal to that which he
would normally would have earned from the date of his
discharge to the date reinstatement was offered. Backpay
shall be calculated in the manner described in F. W.
Woolworth Co., 90 NLRB 289 (1950), together with inter-
est calculated in accordance with the policy of the Board
set forth in Florida Steel Corp., 211 NLRB 651 (1977).
See also Isis Plumbing Co., 138 NLRB 716 (1962). I shall
further order Respondent to expunge from its records
any reference to the illegal discharge and to notify Fer-
nandez in writing that this has been done and that his
conduct will not be later used against him. Sterling
Sugars, 261 NLRB 472 (1982). In the circumstances of
this case, however, I decline to include a visitatorial
clause in the Order.
On the foregoing findings and the entire record, I
make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent violated Section 8(a)(1) and (3) of the
Act by causing the termination of Kenneth Fernandez
because of that employee's protected concerted activity
in honoring a picket line.
3. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, G & S Transportation , San Ramon,
California, its officers , agents, successors , and assigns,
shall
1. Cease and desist from
(a) Terminating employees because of their protected
concerted union activities in refusing to cross a union
picket line.
(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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Kenneth Fernandez immediate and full rein-
statement to his previous position, or, if such position is
no longer available, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole with interest as in the
12 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
manner set forth in the remedy section of the decision
for any loss of earnings and other benefits he may have
suffered by reason of the unlawful discrimination against
him.
(b) Rescind and remove all reference to the above ter-
mination as well as all references to Fernandez' protect-
ed concerted union activities from Respondent's person-
nel records and notify him in writing that this has been
done and that such conduct will not be used as a basis
for future action against him.
(c) 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.
(d) Post at its San Ramon, California facility, copies of
the attached notice marked "Appendix."13 Copies of the
notice, and translations of the notice in other languages
as determined appropriate by the Regional Director,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that the notices are
not altered, defaced, or covered by other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
13 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 Nation-
al Labor Relations Board" shall 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT terminate employees because they
refuse to cross picket lines at customer locations.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act.
WE WILL offer Kenneth Fernandez immediate rein-
statement and shall make him whole, with interest, for all
losses of wages and other benefits he may have suffered
by virtue of our wrongful constructive discharge of him.
WE WILL remove all references in our personnel
records of Fernandez' discharge and shall notify him in
G & S TRANSPORTATION 769
writing that this has been done and that his discharge
will not be used as a basis for future actions against him.
G & S TRANSPORTATION