Greyhound Lines, Inc.

National Labor Relations Board - Board Decisions

Feb 2, 1968

169 N.L.R.B. 627 (N.L.R.B. 1968)

SOUTHERN GREYHOUND LINES 627
Southern Greyhound Lines, Division of Greyhound
Lines, Inc. and Virginia G. Anderson, an In-
dividual.Case 12-CA-3829
February 2,1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 11, 1967, Trial Examiner Fannie M.
Boyls issued her Decision in this proceeding, find-
ing that the Respondent had engaged in certain un-
fair labor practices, 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 excep-
tions to the Trial Examiner's Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Southern Greyhound
Lines, Division of Greyhound Lines, Inc., its of-
ficers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner: Pursuant to a
charge and amended charge filed by Virginia G. Ander-
son, an individual, on April 21 and June 26, 1967, respec-
tively, a complaint was issued on June 28, 1967, against
Respondent, Southern Greyhound Lines, Division of
Greyhound Lines, Inc., alleging that Respondent had
discharged the Charging Party for engaging in a protected
concerted activity, in violation of Section' 8(a)(1) of the
Act. Respondent filed an answer, admitting the discharge
but denying that it was unlawful. A hearing was held be-
fore me on August 31, 1967, at Miami, Florida. At the
conclusion of the hearing, the General Counsel argued
orally, on the record and did not later ; file a I brief. i Rel-
spondent waived oral argument but, thereafter filed, a brief.
Upon the entire record and a careful consideration of
the arguments of counsel and authorities cited by them,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a Delaware corporation , is primarily en-
gaged in the business of interstate motor carriage of per-
sons and freight over routes licensed by the Interstate
Commerce Commission and has terminals in several
States of the United States, including a terminal in Miami,
Florida, which is operated by its operating division,
Southern Greyhound Lines, Inc. During the 12-month
period preceding the issuance of the complaint Re-)
spondent , in the course and conduct of its business in
Miami , had gross revenues in excess of $1 million of
which more than $ 50,000 was derived from bus passen-
gers traveling across State lines. It is conceded, and I
find, that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
It. THE UNFAIR LABOR PRACTICE
The sole issue involved is whether Respondent vio-
lated Section 8(a)(1) of the Act by discharging and
thereafter refusing to reinstate employee Virginia G. An-
derson , the personal secretary to Terminal Manager O. E.
Rhoden , because she refused to cross a picket line and
come to work during a strike called by Amalgamated
Transit Union , AFL-CIO-CLC, which represented a
unit of Respondent's employees composed of the porters,
maids, and janitors.
The strike, which occurred on March 31 , 1967, was a
lawful economic strike caused by a breakdown in negotia-
tions over a new contract. The striking union also
represented another unit of Respondent 's employees not
directly involved in the contract dispute - the drivers, ex-
press agents, and ticket agents. Employees in the latter
unit supported the strike by refusing to cross the picket
line, but bus drivers drove their vehicles after supervisors
drove them beyond the picket line. Respondent's office
workers, who were represented by still another union, the
Office and Professional Employees International Union,
AFL-CIO, also supported the strike by refusing to cross
the picket line during at least part of the duration of the
strike. Respondent 's contract with that union expressly
excluded "Confidential Secretaries to Officials ." Ander-
son was considered a confidential secretary and was not
a part of the office workers unit.2
' A motion to correct the transcript of record, which was filed by the
General Counsel and unopposed, is hereby granted. The record will be
corrected accordingly.
2 Although at the hearing, counsel for Respondent appeared to go to
great parrs to prove that Anderson was a confidential secretary and coun-
sel for the General Counsel to go to equally great pains to prove that she
was not, each now concedes, and I agree, that whether Anderson was pro-
169 NLRB No. 148
tected in her right to refuse to cross the picket line to come to work is
unaffected by any determination as to whether she is properly classified as
a confidential secretary. Southern Colorado Power Co., 13 NLRB 699.
There is no suggestion in the record that Anderson ever disclosed to any
employee any matters of a confidential nature or that Respondent ever be-
heved she would do so.
350-212 0-70-41
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 30, Terminal Manager Rhoden, in anticipa-
tion of the strike which was scheduled to take place at
12:01 a.m. on March 31, discussed with Anderson his
plans for operating during the strike with the aid of super-
visors and informed her that she would have to practically
run the office by herself. She gave no indication at that
time that she would not report to work the next morning.
About 8 a.m. the next morning, however, she called
Rhoden and told him that she would not be coming in to
work that day because her conscience would not permit
her to cross the picket line. When he insisted that she was
a confidential secretary and had to report for work, she
replied, "Well, I have thought it over and I understand
the repercussions - that I will lose everything but my
principles will just not allow me to cross the picket line."
On the same day Rhoden made out a termination notice
for her on which was written, inter alia, "Discharged for
failing to report for work as ordered." Anderson received
this termination notice through the mail on April 4. She
has not since that time communicated with Respondent
except in connection with the execution of annuity
withdrawal papers which Rhoden mailed to her for her
signature.
The strike ended on April 10. Respondent had not
replaced Anderson by that date and, for some time after
the termination of the strike, operated with only tempora-
ry help to perform the duties which she had been perform-
ing. As Terminal Manager Rhoden testified, "The strike
was on and it was almost physically impossible to inter-
view people, so we got the Regional Sales Manager
whose office is across the street to bring his secretary
over to the terminal to work at my secretary's desk until
such time as we could get a replacement.. . . She worked
there until the 9th.... We started contacting the employ-
ment offices during that week and we called the Kelly
Girls and Man-Power, Inc., for temporary help and not
getting anything from them, on Monday, April 10, we
called the Olsen Temporary Employment Office and they
furnished us at that time with a temporary employee on
April 11 and we continued our efforts in trying to obtain
a secretary."
Respondent has never at any time offered Anderson
reinstatement. To be sure, as Respondent's counsel says
in its brief, Anderson did not apply for reinstatement, but
having been discharged and sent her annuity withdrawal
papers, she had every reason to believe that an applica-
tion for reinstatement would have been futile. Indeed,
even on the, witness stand Rhoden gave no hint that he
would have reinstated her had she applied. He made it
clear that he did not discharge her in order to replace her
but that he had to replace her because he had discharged
her. If an employee is unlawfully discharged, the em-
ployer must remedy the wrong by seeking out the em-
ployee and offering reinstatement. N.L.R.B. v. Cowell
Portland Cement Co., 148 F.2d 237, 245 (C. 9), cert. de-
nied 326 U.S. 735; Idaho Potato Growers v. N.L.R.B.,
144 F.2d 295, 304-305 (C.A. 9), cert. denied 323 U.S.
769.
It is found that Respondent did unlawfully terminate
Anderson's employment when it discharged her for refus-
ing to cross the picket line and come to work. In refusing
to cross the picket line at her place of employment and
come to work, Anderson was assisting the labor organiza-
tion then on strike. It did not matter that she was not a
member of the bargaining unit represented by that union
or of any other bargaining unit. It is well settled that Sec-
tion 7 of the Act protects an employee in his right to assist
a labor organization regardless of whether he is eligible
for membership in it and that his employer violates Sec-
tion 8(a)(1) of the Act by discharging him for engaging in
this protected activity. Canada Dry Corporation, 154
NLRB 1763, 1764, fn. 2; A. O. Smith Corporation,
Granite City Plant, 132 NLRB 339, 400-401; Concrete
Haulers, Inc., 106 NLRB 690, fn. 11, enfd. 212 F.2d 477
(C.A. 5); Texas Foundries, Inc., 101 NLRB 1642, 1683,
enforcement denied on other grounds 211 F.2d 791 (C.A.
5); Montag Brothers, Inc., 51 NLRB 366, enfd. 140 F.2d
730 (C.A. 5); N.L.R.B. v. West Coast Casket Company,
Inc., 205 F.2d 902, 908 (C.A. 9), enfg. 97 NLRB 820.
And see Truckdrivers Union Local 413, Teamsters
[Brown Transport Corp.] v. N.L.R.B., 334 F.2d 539,
542-543 (C.A.D.C.), cert. denied 379 U.S. 916.
Respondent, in defending its discharge of Anderson as
a lawful act, relies heavily upon the Board's Decision in
Redwing Carriers, Inc., 137 NLRB 1545, enfd. 325 F.2d
1011 (C.A.D.C.), upon language in the Board's decision
in L. G. Everist, Inc., 142 NLRB 193, 194-195, and upon
the court's decision in denying enforcement of that deci-
sion, 334 F.2d 321 (C.A. 8). Each of those decisions in-
volved the discharge of drivers who, in the course of mak-
ing deliveries, refused to cross the picket lines at the
premises of employers other than their own. In those
cases, the employees had not refused to perform all their
duties for their employer. They had even transported
materials to the situs of the struck employer, but had
refused to perform any part of their duties which would
require them to cross the picket line. In such a situation
an employer may find it necessary to discharge the em-
ployee who refuses to cross the picket line in order to try
to replace him immediately or soon thereafter with
someone who will perform all the employee's duties and
thereby enable the employer to continue operating his
business. This, according to those cases, he may lawfully
do, for his legitimate right to attempt to continue operat-
ing his business outweighs in importance the right of the
employee to assist a labor organization in those circum-
stances. Addressing itself to a similar factual situation in
N.L.R.B. v. Rockaway News Supply Co., Inc., 197 F.2d
111, 113-114 (C.A. 2), affirmed on other grounds in 345
U.S. 71, the court stated: "But he [the employee] is not
free to exercise the right [to refuse to cross a picket line]
during his working time in violation of his employer's
working rules by refusing to perform that part of his regu-
lar duties which requires him to cross the picket line. To
hold otherwise would be to permit an employee uni-
laterally to dictate the terms of his employment which it
is well settled he may not do."
We do not have here the type of situation with which
the Board and courts dealt in the Redwing, Everist, and
Rockaway cases. In the instant case, Respondent's own
premises were being picketed, and employees such as
Anderson who were unwilling to cross the picket line
were forced to remain away from work altogether during
the period of the picketing. Since Anderson did not report
for work at all during that period, it was not necessary for
Respondent to discharge her in order to replace her with
someone who would cross the picket line and perform her
duties. Anderson, but for her discharge, would have been
in a position equivalent to that of an economic striker.
Respondent could have replaced her without discharging
her; and if it had, without discharging her, replaced her
prior to the termination of the picketing,,it would not have
been required to discharge the replacement to make room
for her when she later might desire to return to work.
SOUTHERN GREYHOUND LINES 629
N.L.R.B. v. MacKay Radio & Telegraph Co., 304 U.S.
333, 345-346. Insofar as anything said by the Board or
the courts in the Redwing and Everist cases may be in-
terpreted as inconsistent with my finding herein that
Respondent violated Section 8(a)(1) of the Act by
discharging and refusing to reinstate Anderson because
she refused to come to work through the picket line, I
must respectfully decline to follow such a holding. I rely
instead upon the Board's more recent decision in Canada
Dry Corporation, 154 NLRB 1763, and the great weight
of Board and court authorities cited therein at page 1764,
In. 2.
CONCLUSIONS OF LAW
1. By discharging and thereafter refusing to reinstate
Virginia G. Anderson because she engaged in the pro-
tected activity of assisting a labor organization, Respond-
ent has interfered with, restrained, and coerced her in
the exercise of her rights guaranteed by Section 7 of the
Act and has engaged in and is engaging in an unfair labor
practice -within the meaning of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice, my Recommended Order will require that
Respondent cease and desist therefrom and take certain
affirmative action necessary to effectuate the policies of
the Act.
The unfair labor practice engaged in by Respondent
was a very narrow one and was not shown to have been
motivated by opposition to the labor organization con-
ducting the strike or to unionism in general. It apparently
stemmed solely from Respondent's mistaken view that
the personal secretary to the terminal manager was not
entitled to the Act's protection in refusing to cross the
picket line to come to work and its desire not to have in its
em oy un the responsible position she-hel anyone who
in the future could not be depended upon to continue
working during a strike at Respondent's premises. The
remedial order therefore should be narrowly framed to
cover only the violation found and any like or related act.
To remedy Anderson's unlawful discharge, Respondent
will be required to offer her reinstatement to her old or
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, dismissing, if
necessary, anyone who may have been hired to replace
her, and to make her whole for any loss of earnings she
may have suffered by reason of her unlawful discharge.
Since it is a fair inference from Anderson's testimony and
conduct that she would not have returned to work prior
to the termination of the strike on April 10, 1967, even if
she had not been discharged, Respondent will be required
to make her whole for her loss of earnings by payment to
her of the sum which she would normally have earned on
and after April 10 to the date Respondent offers her rein-
statement, less her net earnings during that period. The
backpay shall be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Co., 90 NLRB 289, and shall include an allowance for in-
terest at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, it is hereby ordered that Respondent, Southern
Greyhound Lines, Division of Greyhound Lines, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or refusing to reinstate any employee
because he has assisted a labor organization by refusing
to cross a lawful picket line at his place of work.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Virginia G. Anderson immediate and full
reinstatement to her former, or substantially equivalent
position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of pay
suffered by reason of the unlawful discharge and refusal
to reinstate her, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records helpful to analyze and deter-
mine the amount of backpay due under the terms of this
Recommended Order.
(c) Post at its Miami, Florida, terminal copies of the
attached notice marked "Appendix."3 Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by Respondent's
authorized representative, shall be posted by it im-
mediately 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. Reasonable steps shall be taken by
Respondent to insure that-said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.4
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
a 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
4 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director,
in venting, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
630 DECISIONS OF NATIONAL
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL NOT discharge or refuse to reinstate any
employee for refusing to cross a picket line to come
to work during a lawful strike at our terminal.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce any employee in the ex-
ercise of his right , guaranteed under the National
Labor Relations Act, to assist a labor organization.
WE WILL offer to Virginia G. Anderson immediate
and full reinstatement to her former or substantially
equivalent position , without prejudice to any seniori-
ty or other rights and privileges previously enjoyed
by her, and make her whole for any loss of pay which
she may have suffered by reason of her discharge.
LABOR RELATIONS BOARD
Dated By
SOUTHERN GREYHOUND
LINES, DIVISION OF
GREYHOUND LINES, INC.
(Employer)
(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, Room 826,
Federal Office Building, 52 SW First Avenue, Miami,
Florida 33130, Telephone 350-5391.