Georgia Highway Express, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 514 (N.L.R.B. 1967)

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Georgia Highway Express, Inc. and Truck
Drivers and Helpers Local Union No. 728.
Case 10-CA-6581.
June 19, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On March 16, 1967, Trial Examiner A. Bruce
Hunt issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of Sections 8(a)(1) and
2(6) and (7) of the National Labor Relations Act, as
amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions and a supporting brief, and Truck
Drivers and Helpers Local Union No. 728, the
Charging Party, filed exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs of
the Respondent and of the Charging Party,
respectively, and the entire record in the case, and
hereby adopts the Trial Examiner's findings,
conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Georgia
Highway Express, Inc., Atlanta, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
IT IS FURTHER ORDERED that the complaint
herein, insofar as it alleges that the Respondent
violated Section 8(a)(3) of the Act, be, and it hereby
is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. BRUCE HUNT, Trial Examiner: This proceeding, in
which the charges were filed on June 13, July 19, and
September 22, 1966, and the complaint was issued on
October 5, 1966, involves allegations that the Respondent,
Georgia Highway Express, Inc., violated Section 8(a)(1)
and (3 ) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151, et seq . On November 28, 29, and 30,
1966 , I conducted a hearing at Atlanta , Georgia, at which
all parties were represented by counsel .' Thereafter, all
parties filed briefs. The Respondent ' s motion to dismiss
is disposed of in accordance with the determinations
below . Upon the entire record and my observation of the
witnesses , I make the following-
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Georgia corporation, is a common
carrier of interstate and intrastate freight by motor
vehicle. It operates a terminal at Atlanta, Georgia, and it
annually receives in excess of $50,000 from the
transportation of interstate freight. There is no dispute,
and I find, that the Respondent is engaged in commerce
within the meaning of the Act.
IT. THE UNION
Truck Drivers and Helpers Local Union No. 728 is a
labor organization which admits to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
On April 12, 1966, employees who worked on the dock
of the Respondent's Atlanta terminal commenced a strike.
It was not caused by unfair labor practices. Less than 18
hours later, the strike ended and the employees applied
unconditionally for reinstatement. The applications were
not granted until the following week or later, however, and
the principal question is whether the Respondent had
filled the jobs of the strikers with permanent
replacements, as the Respondent contends, or whether the
Respondent refused to reinstate strikers promptly because
of their concerted and union activities, as the General
Counsel and the Union contend. At this point it may be
noted that, when the strike began, no employee was a
member of the Union insofar as appears.
B. The Events
During late March 1966, approximately 75 employees on-
the Atlanta dock ceased work and sought a conference
with management. They talked with Charles Stewart, who
was then operations manager at the terminal, and he
suggested that they return to work and select several of
their number to present their grievances. A committee of
six, including Willie Hamm and Willie Dorsey, was
designated and it met twice with Stewart, Brown Wilder,
Stewart's assistant, and Richard J. Young, then Atlanta
division manager. At the initial meeting, members of the
committee asserted that some employees were being
underpaid, that the men were working long hours without
overtime, that job opportunities were limited, and that
there had been harassment by supervisors. At the second
meeting, which took place a few days before April 12,
' The transcript , at page 238 , line 18 , does not correctly identify
the speaker The transcript is hereby corrected so that line 18
will begin . "MR WILCOX."
165 NLRB No. 80
GEORGIA HIGHWAY EXPRESS, INC. 515
members of the committee expressed the view that
management had not remedied the grievances and said
that the employees remained dissatisfied.2
On April 12, the Respondent had 215 dock employees in
Atlanta who worked on three shifts, one starting at 1 a.m.,
another between 8:30 and 9:30 a.m., and the third at
6 p.m. Sometime after 6 p.m. on April 12, employees on
the dock started walking off the job without prearrange-
ment or notice to the Respondent, insofar as appears.
Hamm testified that he walked out and punched his
timecard at 7 p.m. Dorsey testified that he punched his
card between 6:30 and 7 p.m. Young testified for the
Respondent that some employees left their jobs about
8:45 p.m. A total of 49 ceased work. Somewhat later,
Hanim spoke with Young, saying that he did not know
why the men had done so and offering to attempt to
persuade them to return to work. According to Hamm,
he knew some of the reasons for the walkout, but
he did not know "what had triggered it." At 8:40 p.m.,
Young spoke to the strikers, saying that work would begin
at 8:45 p.m., that those men who wished to resume work
could do so, and, as to the remainder, that it had "been
nice seeing you."3 None of the men resumed work.
Instead, they made signs reading "On strike" and
"Georgia Highway Unfair to Labor," and began to picket.
The Respondent, in turn, began to seek replacements.
According to Young, he communicated with the
Respondent's counsel, Attorney Wilcox, who advised him
that night to replace the strikers. Young testified further
that he asked several persons to seek replacements, that
he asked supervisory employees to telephone other
terminals of the Respondent in efforts to obtain
replacements and to route freight around Atlanta, and that
some of the local pickup and delivery drivers were
assigned to dockwork for an undisclosed period of time.
The number of pickets at any time was limited, at the
request of local police, to five or six men at each of two
entrances to the Respondent's terminal. Within a few
hours, men on the 1 a.m. shift reported for work, and still
others reported for the shift beginning work about
8:30 a.m. A total of 66 men on these two shifts did not
cross the picket line on April 13. Other men on those two
shifts crossed the line and went to work.4
About 2 a.m. on April 13, two drivers for another carrier
passed the terminal and noticed the picketing and the
large number of men outside. They stopped and talked
with the committee of six who had been designated by the
employees during late March. Later during the night,
arrangements were made for the strikers to visit the union
hall after daybreak. About 9 a.m., a few more than 100
strikers went to the hall, leaving Hamm, another
committeeman, and a few strikers to maintain the picket
line. All or nearly all of the men signed authorization cards
or applications for membership, and Hamm signed an
authorization card later that morning. While at the hall,
the men were advised to apply for reinstatement, and
Albert J. Johnson, an official of the Union, dispatched by
telefax to Western Union a telegram for delivery to the
Respondent. In the telegram, Johnson asserted that the
Union represented a majority of employees in an
appropriate unit and requested a meeting at which to
bargain concerning the work stoppage and conditions of
employment. At 11:40 a.m., Western Union began to
process the telegram by sending it from an outlying office
to a downtown office as a step toward delivery to the
Respondent. At approximately the same time, the men,
accompanied by Johnson and another representative of
the Union, went to the site of the picketing where the men
discussed the matter of applying for reinstatement. As will
appear momentarily, the strikers sought reinstatement at
approximately noon, but there is no evidence that the
Respondent received the telegram prior to the request for
reinstatements or that anyone told the Respondent of the
Union's interest. In particular, the two representatives of
the Union did not make their presence at the site known to
the Respondent
Shortly before noon, across the street from the terminal,
the strikers decided to terminate the strike and to seek
reinstatement. By a show of hands, Hamm was selected to
make the request. Hamm then went to the terminal,
followed by the men. He talked with Young and Dillon
Winship, Jr., who was then the Respondent's vice
president. Hamm said, according to Young, "We are ready
to return to work unconditionally" and someone else said
"that 55 hours was too long for overtime." Young and
Winship conferred privately, following which Young told
the men that the Respondent's attorney was out of town,
that counsel would not return until that evening, and that
Young could not tell the men anything at that time.
Neither Young nor Winship said anything to the strikers
about their having been replaced, and Young testified that
he did not know whether a vacancy existed as of the time
of the applications for reinstatement. In respect to
Young's testimony that he told the men that the
Respondent's attorney was out of town, the Respondent's
brief recites twice that the member of Wilson, Branch,
Barwick & Wilcox who handles legal matters for the
Respondent is Wilcox, and Young testified that Wilcox
was indeed out of town on April 13 and did not return until
about 8:30 p.m. On the other hand, Young testified also
that at noon on that day he was advised by counsel not to
hire any more replacements. Young did not explain how he
had conversed with an attorney who was out of town or
whether, in the same conversation, anything had been said
concerning the reinstatement of strikers.
As will appear, the Respondent contends that as of noon
on April 13, when the strike ended and applications for
reinstatement were made, it had 174 dock employees, that
number being the sum of 75 replacements and 99
nonstrikers, that 174 represented a drop of 41 from the
number of dock employees at the time the strike began,
and that there was no need to fill any of the 41 jobs as of
noon on April 13.
On April 14, Wilcox responded to Johnson's telegram,
saying, inter alia, in a letter that he questioned the
appropriateness of the unit and the Union's majority
status, that there were "numerous questions concerning
the present status of employees or former employees who
[were] no longer working at the terminal," and that the
Respondent would not recognize the Union. There is no
allegation here that the Respondent refused to bargain
collectively.
2 These findings are based upon Hamm's uncontradicted they did not join the strike and that they refrained from crossing
testimony the picket line because of fear It is clear from their testimony,
3 Young acknowledged having so spoken to the strikers however, that they did not talk with any striking employee and
" Two employees who did not cross the picket line, Wilber that their fear was not based upon any invalid conduct by striking
Harris and Ralph Shropshire, testified for the Respondent that employees
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Within the next 3 days, the Respondent decided that it
needed additional dock employees. Letters were mailed,
and telephone calls were made, to employees who had not
worked during the strike, and such employees were
selected by the Respondent on the basis of length of
service in certain classifications. The record does not
contain any letter, or copy thereof, that was mailed to any
employee, but it is clear that on April 17, a Sunday, Hamm
received a telephone call from an office employee, a Miss
McKee or McGee. She said in substance that he was being
offered reinstatement on his regular shift for the next day
and that if he did not report for work the Respondent
would assume that he no longer wanted to work for it.5
Hamm reported for work and was reinstated. During the
period of April 18 through 21, 48 employees who had not
worked during the strike were reinstated. Adding 48 and
174 (the latter being the number of dockworkers at noon on
April 13, according to the Respondent's contentions),
gives a total of 222, 7 more than the 215 who were on the
payroll when the strike began.6
Upon the reinstatement of the last of the 48 employees
on April 21, the Respondent "had a full complement to
handle the freight," according to Young. Thereafter, as
vacancies occurred, reinstatements were offered to other
employees who had not worked during the strike. In
particular, such reinstatements were offered during the
period of July 7 through November 1, and Young testified
further that to "the best of [his] knowledge" all persons
who had not worked during the strike had "been offered
an opportunity to return if they could qualify for the job
that was open." As recited, the record does not contain an
original or copy of any letter offering reinstatement to
anyone, nor is there evidence to establish the number of
letters and the number of oral offers.7 On the other hand,
at an undisclosed time the Respondent decided that
reinstated employees would not suffer a loss of seniority or
other rights or privileges. Young testified concerning the
48 men who were reinstated on April 18 through 21 that
the Respondent "did not feel as though they had been out
long enough" to warrant any such loss. The General
Counsel, contending that there had been invalid refusals
to reinstate strikers on April 13 and questioning whether
offers of reinstatement fulfilled the Respondent's alleged
obligations, nevertheless does not contend that any
reinstated employee suffered any loss of accrued rights or
privileges.
C. The Respondent's Evidence That Most Strikers Had
Been Replaced Before Noon on April 13 and That There
Was No Work Then For The Remainder
As we have seen, the strike was an economic one, not
the result of unfair labor practices. Therefore, the
Respondent was free to replace the strikers at any time
prior to their unconditional applications for reinstatement,
N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333,
58 S.Ct. 904 (1938).On the other hand, if there was need for
their services at the time of such applications, the
5 Hamm so testified without contradiction. McKee or McGee
was not a witness
6 There is a suggestion in a question by Attorney Wilcox to
Young that between April 13 and 21 some dock employees quit or
were discharged, thereby giving a total less than 222. Young
answered, "That is true " The record, however, does not disclose
the names of employees who quit or were discharged during that
period Moreover, the Respondent's exhibits contain lists of
Respondent was not free to refuse or delay reinstatements
because the employees had engaged in the strike. The
Respondent contends that it replaced 75 strikers prior to
the time of the applications for reinstatement, that the
replacements coupled with 99 nonstriking dock employees
totaled 174, that the total was 41 less than the number of
dock employees when the strike began, and that, partly
because some freight was being routed around Atlanta,
there was no need to reinstate any of the strikers at the
time of their applications. These contentions constitute an
affirmative defense and the Respondent has the burden of
establishing it. New Orleans Roosevelt Corporation, 132
NLRB 248, 250. Additionally, the Respondent must show
that the men who replaced the strikers were regarded by
themselves and the Respondent as having received their
jobs on a permanent basis. Hot Shoppes, Inc., 146 NLRB
802, 804.
Of the 75 individuals whom the Respondent
characterizes as "permanent replacements hired for
Atlanta terminal dock on April 12, and prior to noon on
April 13, 1966," 21 were transferees from other operations
of the Respondent, and 2, Joe Gaston and D. L. Jones,
were hired before the strike began and, therefore , were not
hired as replacements. Subtracting 21 and 2 from 75
leaves 52, and the initial question is whether the
Respondent proved that none of the 52 men was hired
after noon on April 13. The exhibits contain the names of
the 52 men and a chart showing their inclusion with the
other 23 persons whom the Respondent calls "permanent
replacements." Wilder testified for the Respondent that
he prepared the exhibits with the aid of a typist and that
his preparation was based upon the personnel files of the
75 men. Those files were produced at the hearing for
examination by counsel for the General Counsel and the
Union. Wilder testified further that in preparing the
exhibits he did not examine any record which would show
the hour of hire of any man because no such record exists
and that, "[as] far as" he knew, a majority of the 75
replacements began work at the Atlanta terminal prior to
noon on April 13. Young testified for the Respondent that
no one was hired as a replacement after noon on April 13,
but he did not examine records and his testimony appears
to be based upon his other testimony that, upon advice of
counsel at noon on the 13th, he gave an order that no one
else be hired. There is no testimony by any supervisory
employee that he received such an order from Young, and
none of the replacements was a witness to testify to having
been hired before noon on April 13.
The Respondent possesses timecards for each of the
replacements, but the cards were not produced at the
hearing. According to the Respondent, the initial card for
each replacement was relevant to the hour he commenced
work, not to the hour of hire. This contention is not
persuasive. Wilder described the scene at the terminal
during the strike as "pretty furious," so much so that he
did not know what was "going on a lot of the time," and the
record is clear that the Respondent took various steps to
obtain replacements. A practice that each prospective
individuals who, according to the Respondent 's contentions, were
employed as of particular dates, but there is no list of all dock
employees as of April 21
Dorsey, a witness for the General Counsel, testified that
during July he received a registered letter from the Respondent
which said that, if he desired to return to work, he should notify
the Respondent within 7 days Dorsey accepted reinstatement.
GEORGIA HIGHWAY EXPRESS, INC.
employee must have a physical examination before
commencing work was suspended when the strike began,
and the suspension was intended to enable a newly hired
person to go to work without delay. Therefore, the initial
timecard of each replacement, if it had been produced,
would have had substantial probative value on the hour of
hire. For instance, the initial cards of all replacements who
worked on April 12 and before noon on the 13th would
have established their hire prior to that noon. The initial
timecards of replacements who began work after that
noon, if few in number, would have meant that the
Respondent needed few witnesses to establish its defense
that all were hired before that noon.
Turning to the 21 transferees, one of them, Gary
Chandler, was transferred from a job at the Atlanta
terminal to another job there, and the remaining 20 appear
to have been transferred from other terminals in the
Respondent's operations. On May 20, one transferee, Don
Arnold, quit. On July 18, approximately 3 months after the
strike, 16 of the transferees were transferred back to their
original terminals and on August 2 another transferee was
returned to his original terminal . Chandler and two other
transferees remained in Atlanta. The questions involving
the transferees are whether their transfers were arranged
prior to noon on April 13 and whether the transfers were
intended to be permanent. Wilder was asked to relate the
circumstances under which individuals were transferred
and he answered that he believed that the transfers had
been on a permanent basis. His belief has no probative
value, however, because he testified further that he had
nothing to do with any of the transfers. Young testified that
he asked the Respondent's personnel manager, one
Halsworth, to contact out-of-town terminals in an effort to
arrange transfers and that "[t]o the best of [Young's]
knowledge" nine terminals in Georgia, two in Alabama,
and one in Tennessee were contacted. Halsworth was not
a witness, however, nor was any of the 21 transferees, and
there is no evidence of probative value which will enable
me to determine the details surrounding any of the
transfers. Young testified further that some of the
transferees came from terminals in Albany and Macon but
that he did not know whether anyone had been hired in
either of those cities to replace a transferee. Indeed, there
is no evidence that any transferee was replaced at any
terminal . Finally, according to Young, he "would assume"
that the Respondent paid the room and board in Atlanta
for "around 20 or 22" transferees for a period of time, the
length of which he did not know, and that the facts were
known to Clint Packard, the Respondent's treasurer.
Packard did not testify. The above factual recital dictates
0 One of the Respondent 's exhibits is captioned "Tonnage in
Millions" and Wilder testified that certain figures "represent tons
in millions." On the other hand, the Respondent's brief says that
the figures represent "pounds of freight."
0 Young testified that after April 13 and before April 18 the
Respondent sought to determine (1) the effect which the stoke
would have upon its business and (2) the number of dock
employees it would need This testimony does not persuade me
that at noon on April 13 the Respondent's officials believed that
there already were enough dock employees at work Moreover,
Young impressed me unfavorably at times during his testimony.
10 There is reliable testimony by Hamm for the General
Counsel that he was present at the site of the picketing from about
9 15 p.m on April 12 to about 11 a in on the next day, that he
observed the entrance used by office employees and
dockworkers, and that he did not remember having seen anyone
whose face was unfamiliar to him enter the Respondent's
517
the conclusions that the Respondent has not established
that (1) a particular number of transfers were arranged
prior to noon on April 13 and (2) any definite number of the
transfers was made on a permanent basis.
We turn now to the Respondent's evidence concerning a
decrease in the amount of freight handled at the Atlanta
terminal. There is a graph showing tonnage handled in
Atlanta during most of 1966 as compared with a
corresponding period in 1965, and another graph showing
tonnage handled during a portion of 1966 at other
terminals as a means of routing freight around Atlanta.
There also is evidence that during certain weeks between
April 8 and October 28, 1966, the freight handled at the
Atlanta terminal varied from a high of approximately 28-
1/4 million pounds or tons for the workweek ending April 8
to a low of approximately 26 million pounds or tons at a
later date." I do not believe that this evidence need be
discussed further. This is so because, as we have seen,
regardless of the tonnage the Respondent's need for
additional employees was such that 48 men who had not
worked during the strike were reinstated within 8 days
after the strike ended.
D. Conclusions
I conclude that, when applications for reinstatement
were made at noon on April 13, there were vacancies for
dock employees and that the Respondent failed to fill such
vacancies promptly because of its hostility toward
employees who had gone on strike and its desire to
discipline them for having engaged in concerted activity.
The facts that, within 4 days after the end of the strike, the
Respondent began offering reinstatement to employees
who had not worked during the strike and that the number
of such reinstatements reached 48 by April 21 are very
persuasive that at noon on April 13 the Respondent's
officials knew that it did not have enough dock workers to
handle the volume of freight.9 Moreover, the Respondent's
evidence does not establish (1) that any particular number
of replacements had been hired before that noon, (2) that
arrangements had been made by that hour for any
particular number of transfers , and (3) that any particular
number of transfers were offered and accepted on a
permanent basis. 10 It is a reasonable inference that the
Respondent's failure to produce the timecards and to call
Halsworth and any transferee as witnesses was because
the timecards and the testimony would have been
inconsistent with the defense. Borg-Warner Controls, 128
NLRB 1035,1044-45.11 The Respondent's hostility toward
the strikers is shown by Young's ultimatum to them at
premises . Hamm's testimony has weaknesses in that he could not
see one entrance to the terminal and all parts of the dock, and it
may be unlikely that many persons hired as replacements would
have used an entrance which would have necessitated crossing
the picket line On the other hand , if the Respondent had brought
75 individuals to the terminal as dock employees , surely some of
that large number would have been observed by Hamm
11 In its brief, the Respondent contends that certain assertions
by counsel for the General Counsel "should not affect the weight
given to the Respondent 's Exhibits because he did not act on the
Trial Examiner 's repeated offers to have the documents produced.
." During the hearing I told counsel for the General Counsel
that, upon his request, I would direct counsel for the Respondent
to produce any and all documents upon which the Respondent's
graphs and chart had been based . Wilder testified , however, that
he had not used timecards in preparing any of the Respondent's
exhibits At another point during the hearing , it developed that the
299-352 0-70-34
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8:40 p.m. on April 12 that he would give them 5 minutes
within which to return to work and that, as to those who
did not return then, it had "been nice seeing" them.
Young's statement was clearly a threat that employees
who continued on strike could not return to work for the
Respondent.12 In summary, I conclude that the
Respondent, by refusing to reinstate strikers promptly
after their applications, interfered with, restrained, and
coerced them in the exercise of their section 7 rights,
thereby violating Section 8(a)(1). I need not reach the
question whether there also were violations of Section
8(a)(3) because any finding of such a violation, or the
absence thereof, would not alter substantially the remedy
set forth below. I note, however, that the factual recital
above shows that the Union's notification to the
Respondent of its interest came after the Respondent's
refusals to reinstate strikers at noon on April 13 and that I
doubt that any reinstatement of a striker was delayed
because of such notification.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices affecting commerce, I shall recommend
that it cease and desist therefrom and that it take
affirmative action to effectuate the policies of the Act.
Most of the striking employees have been reinstated, but I
have found that some reinstatements were delayed
invalidly because the men had engaged in concerted
activities. I shall recommend that the Respondent make
whole each of the reinstated employees for any loss of pay
he may have suffered as a result of the discrimination
against him, by payment to him of a sum of money equal to
that which he normally would have earned from the date of
the discrimination to the date of his reinstatement '13 less
his net earnings (Crossett Lumber Company, 8 NLRB 440,
497-498) during said period, the payment to be computed
on a quarterly basis in the manner established in N.L.R.B.
v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344
(1953), with interest at 6 percent per annum, Philip Carey
Manufacturing Company v. N.L.R.B., 331 F.2d 720
(C.A. 6, 1964). 14 Some employees have not been
reinstated, and the record does not disclose whether the
offers to them were proper or were similar to the 1 day's
notice given to Hamm that he could return to work. See
footnote 5 and accompanying text. I shall recommend that
Continued.
General Counsel had issued a subpoena duces tecum in an
unsuccessful effort to examine the timecards. I suggested that we
not discuss the subpena because, the hearing having been
underway , I would entertain a motion by counsel for any party
that I request counsel for another party to produce records.
Counsel for the General Counsel and the Union did not move that
I request the production of the timecards because it was their
position that such production was an essential element of the
defense.
12 Young's statement was established during cross - examination
of him by counsel for the Union. The statement was not alleged as
a violation of Section 8(a)(1) and I infer that it was not uncovered
during the General Counsel 's investigation of the case . I shall not
consider it in formulating the Recommended Order below. I
note , however , that "[ t]o threaten the striking employees with
discharge if they engaged in or refused to abandon lawful"
concerted activity is a violation of Section 8(a)(1), Cusano dlbla
American Shuffleboard Co., v.,N. L.R.B., 190 F .2d 898, 902, 28
LRRM 2489 , 2491 (C.A. 3,1951).
11 Harris and Shropshire, named in In . 4, are not to be included
the Respondent offer employees who have not been
reinstated immediate and full reinstatement to their
former or substantially equivalent positions (Chase
National Bank of the City of New York, 65 NLRB 827),
without prejudice to their seniority or other rights or
privileges , and that the Respondent make each of them
whole in the manner provided above, the backpay period
to be from the date of discrimination to the date of a proper
offer of reinstatement . 15 I shall recommend additionally
that the Respondent preserve and make available to the
Board or its agents , upon request , for examination and
copying, all payroll records , social security payment
records, timecards , personnel records and reports, and all
other records necessary to analyze the amounts of
backpay and the rights to reinstatement under the terms of
these recommendations.
In view of the nature of the Respondent ' s invalid
conduct and its underlying purpose and tendency, I find
that the unfair labor practices found are persuasively
related to the other unfair labor practices proscribed and
that danger of their commission in the future is to be
anticipated from the course of the Respondent 's conduct
in the past . Therefore, in order to make effective the
interdependent guarantees of Section 7 of the Act, I shall
recommend further that the Respondent cease and desist
from infringing in any manner upon the rights guaranteed
in said section . N.L.R.B . v. Entwistle Mfg. Co., 120 F.2d
532 (C.A. 4, 1941).
Upon the basis of the above findings of fact and upon the
entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. By interfering with , restraining, and coercing
employees in the exercise of their rights under the Act, the
Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended. I hereby recommend that the Respondent,
in this recommendation.
" Backpay for some employees will commence as of noon on
April 13, 1966 . Backpay for others may commence as of later
dates . Questions concerning who is entitled to backpay, and when
it shall commence and be tolled in any instance , are matters for
determination in the compliance stages of this case.
18 This provision is not intended to require the Respondent to
offer reinstatement to anyone to whom it already has made a
proper offer . During the compliance stages, the Respondent may
show the details of offers made by it . Questions concerning
backpay for anyone who has not been reinstated are to be
determined during those stages . Additionally, if any employee to
whom an offer of reinstatement is to be made should be serving in
the Armed Forces of the United States at the time of the
Respondent 's compliance with the Recommended Order below,
the Respondent shall notify him promptly of his right to full
reinstatement upon application after discharge from the Armed
Forces, in accordance with the Selective Service ' Act and the
Universal Military Training and Service Act, as amended.
Backpay to any such employee shall be tolled for the period of his
military service.
GEORGIA HIGHWAY EXPRESS, INC.
Georgia Highway Express, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Delaying reinstatement of, or refusing reinstatement
to, employees because they engage in a lawful strike, or
otherwise discriminating against them because of their
concerted activities for mutual aid or protection.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to unreinstated employees immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges, and make unreinstated and reinstated
employees whole, in the manner set forth in "The
Remedy" section of this Decision.
(b)' Preserve and make available to the Board or its
agents all payroll and other records, as set forth in "The
Remedy" section.
(c) Post at its terminal in Atlanta, Georgia, copies of the
attached notice marked "Appendix."is Copies of said
notice, to be furnished by the Regional Director for
Region 10, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.17
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision what steps the
Respondent has taken to comply herewith.["
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges that the Respondent
violated Section 8(a)(3) of the Act.
16 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
it When the Regional Director prepares the notices, if offers of
reinstatement are to be made to employees then serving in the
Armed Forces, the Regional Director shall insert in the notices a
519
provision whereby the Respondent notifies all employees that it
will comply with its obligation set forth in the next to last sentence
in fn 15
18 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read- "Notify the
Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT delay reinstatement or refuse to
reinstate emloyees because they engage in a lawful
strike.
WE WILL NOT otherwise discriminate against
employees because of their concerted activities for
mutual aid or protection.
WE WILL NOT violate any of the rights which you
have under the National Labor Relations Act to
engage in union or concerted activities or not to
engage in such activities.
WE WILL, to the extent required by the National
Labor Relations Board, reinstate employees who went
on strike on April 12, 1966, and pay employees
backpay to cover their losses because we did not
reinstate them promptly.
GEORGIA HIGHWAY
EXPRESS, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 528 Peachtree-
Seventh Building, 50 Seventh Street, N.E., Atlanta,
Georgia 30323, Telephone 526-5760.