Honolulu Rapid Transit Co., Ltd.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1806 (N.L.R.B. 1954)

1806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pittsburgh cases, the Board 's rationale was centered upon the proscribed activity of
Section 8 (b) (4), which precedes the statement of objects in (A) and (B) thereof-
The Board 's determination that the conduct of the respondent labor organizations
there did not come within the proscribed activity, where the alleged violations were
of subsection (4) (A), is logically as applicable to an alleged violation of subsection
(4) (B), particularly since the latter subsection merely creates an exception to the
former. I conclude that article IX of the Cartage Agreement presents a meritorious,
defense to the alleged violations of both Section 8 (b) (4) (A) and (B).
There remains the alleged violation of Section 8 (b) (1) (A), which also is
based upon the same factual situation as the alleged violation of Section 8 (b) (4)
(A). According to the General Counsel and counsel for McAllister, the Re-
spondents , by inducing and encouraging employees of Freightways, Watson Bros.
and Red Ball not to handle McAllister freight , engaged in activity reasonably
calculated to diminish the hours of employment of McAllister's employees, and
thereby restrained and coerced the latter employees in the exercise of the right to
refrain from the activities guaranteed in Section 7 of the Act. No Decision of the:
Board in point is cited to support the contention , and it is not persuasive.15 In
National Maritime Union , 78 NLRB 971, the Board held that a limited construction,
of the term "restrain or coerce" in Section 8 (b) (1) (A) was envisaged by the
legislative scheme , and I do not believe that any of McAllister's employees was
restrained or coerced in the statutory sense . All strike activity, primary as well
as secondary , may have the effect of diminishing a dissenting employee's hours of
employment . Such is the normal consequence of all strikes which do not have com-
plete employee support and participation . Nevertheless , a minority strike is not
violative of Section 8 (b) (1) (A) because it is unsupported by a majority of
employees . U. A. W. v. O'Brien , 339 U. S. 454, 458, 70 S. Ct. 781, 783; Sue-Ann
Manufacturing Company, supra. Moreover , a strike by a labor organization for
the purpose of inducing nonmember employees to withdraw a decertification peti-
tion , which, in a sense , is "coercive" of the nonmembers , is not violative of Section,
8 (b) (1) (A). The Higbee Company, 97 NLRB 654. I conclude that the Re-
spondents' conduct was not violative of that section . Cf. Ferro-Co Corporation, 102
NLRB 1646.
Upon the basis of the above findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. The operations of McAllister Transfer, Inc. constitute trade , traffic, and com-
merce among the several States within the meaning of Section 2 (6) and (7) of
the Act.
2. The Respondents are labor organizations within the meaning of Section 2 (5),
of the Act. - --
3. The allegations of the complaint that the Respondents have engaged in unfair
labor practices have not been sustained.
[Recommendations omitted from publication.]
15 McAllister cites Captitai Service, Inc., et at. v. N. L. It. B., 204 F . 2d 848 ( C. A. 9),
in which a somewhat analogous Issue was Involved . That case , however, arose under un-
usual circumstances which did not involve a prior determination by the Board.
HONOLULU RAPID TRANSIT COMPANY , LIMITED and TRANSrr WORKERS-
UNION OF HAWAII , INDEPENDENT . Case No. 37-CA-77. December
16,195.
Decision and Order
On March 3, 1954, Trial Examiner James R. Hemingway issued his.
Intermediate Report in the above-entitled proceeding, sustaining cer-
tain portions of the complaint alleging violations of Section 8 (a) (3)
and (1) of the Act by the Respondent, Honolulu Rapid Transit Com-
pany, Limited, and dismissing other portions of the complaint alleg-
110 NLRB No. 244.
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1807
ing such violations. He recommended, as to the unfair labor prac-
tices found, that the Respondent cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs. Briefs amici curiae were filed, with permission of the Board,
by (1) Hawaii Employers Council, (2) Federated -Employers of San
Francisco, San Francisco Employers Council and California Metal
Trades Association, and (3) Safeway Stores, Inc.'
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case,' and finds merit in the Respondent's exceptions to the extent
set forth below.
The main issue of this case arose from certain incidents occurring-
between May 3, 1953, when the Union's last contract with the Re-
spondent expired, and July 17, when the parties came to terms on a
new one. During this 21/2-month period, while there took place con-
tinuous negotiations aimed at resolving the economic issues, the Union
resorted to an intermittent and part-time strike technique based upon
the Union's unilateral determination of work schedules in violation of
the Company's established, and governmentally imposed continuous,
and uninterrupted operation of its public bus transportation service.
The Company attempted to compel the various intermittent strikers.
to work full time or not at all, and it is this action on its part which
the complaint alleges to have been unlawful. The General Counsel
does not claim that the Respondent was otherwise motivated by any-
opposition to collective bargaining with the Union or to its employees'
union activities.
The essential facts, set out in detail in the Intermediate Report, are
not in dispute. Because negotiations immediately preceding expira-
tion of the old contract proved fruitless, the union membership met
early on May 4 to discuss a strike to conform to the union policy of
"no contract-no work." Instead, at the last minute, it was decided
to continue to work, but only 5 days each week, and to refuse to report
for duty Saturdays and Sundays. This scheme was, in the Union's
own words, designed to "turn the tables on the [Respondent]," by-
depriving it of some income while allowing the employees to em-
barrass the Company without serious economic loss to themselves.
As early as April 30, Union Business Representative Rutledge had
intimated to Rinehart, the head of the Company's union-and-employee
' We hereby grant the motion of Safeway Stores , Inc., for leave to file its amicus brief.
The other requests have already been granted.
I Respondent 's request for oral argument is denied because in the opinion of the Board_
the record and briefs adequately set forth the positions of the parties.
1808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relations department, that the Union might engage in weekend strikes,
which Rutledge called, "an entirely new gimmick." In any event, it
is clear that the Company was advised of the Union's new strategy
bef ore its first application on May 9, and of the Union's continued
determination, until the new contract was made on July 17, not to
abandon that course of conduct.
Beginning with the weekend of May 9 and 10, and for four consecu-
tive weekends, those employees scheduled to do weekend work did riot
report for duty. They did work on Sunday, May 24, at the request of
a church group, and on Memorial Day (Saturday), May 30, as a con-
cession to a veterans' association. In each instance, however, the
Union made it clear that it was not thereby retreating from its deci-
sion to designate the workdays. Rather, it took occasion to add fur-
ther uncertainty to the Company's operating schedule. Before work-
ing on May 24, the Union's executive board decided to "reserve another
day from next week for our week-end installment strike," and before
Memorial Day, Rutledge indicated through the press that the
executive board had been authorized to designate other "days off" not
to exceed 2 days a week and that the 2 days would not necessarily be
consecutive or over the weekend period.
As was to be expected, and as the Union fully intended, bus service
became seriously disorganized. Through the first month of the part-
time strike, the Company, deeply concerned over its disrupted opera-
tions, brought the problem to the attention of each employee by
letter, reviewed the status of the current negotiations, and urged the
employees to "think" about the matter. Its efforts were unavailing.
In consequence, the Company advised all employees, on May 26, that
because the "installment strike" had disrupted service, all workmen
who did not report for "scheduled assignment at the regular time"
would be laid off not only that same day but also for another full day.
It added unequivocally that the action was a necessary measure to
"enforce regular operations." Despite this personal appeal, a con-
siderable number of employees failed to report as assigned for runs
the following Sunday, and, on a staggered basis, the Company re-
quired each of them to lay off an additional day starting on June 2.
Its second attempt to achieve regular operations also failing, on
June 5 the Company announced that thereafter employees refusing
to work as scheduled would be compelled to quit entirely for a 15-day
period. Again the Union ignored the Company's insistence that the
strike be continuous or not at all, and it struck again on June 6 and 8.
As a result, 214 employees who refused to take their runs on June 7
were told to remain away from work for 2 weeks, and 38 more were
similarly laid off after the 8th.
With a major portion of its employees now off duty completely, the
Company operated with a skeleton force, including a number of
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1809
maintenance workers. The Union, however, still persisted in its
intermittent strike technique, and on Friday, June 12, picketed the
Respondent's premises. As a result, not only did those employees
scheduled to report during the period of picketing refuse to work at
all that day, but it was also necessary to call in busses already out
because of the absence of relief riders. In view of the picketing. ap-
parently carried on by the employees in laid-off status, the Company
permitted the Friday strikers to resume working on their next shift,
but required that they give individual assurance of intention to work
as scheduled.
Again the following Saturday and Sunday, June 20 and 21, the
Union reestablished its picket line. And again the employees refused
to report for work through the line, or drove their busses back from
the routes after the picketing started, in some instances in the middle
of their shifts. As it had done 2 weeks earlier, the Company instructed
those employees who had refused to work the week before-and who
had given assurance of continued adherence to schedules-to remain
away from work for a continuous 15-day period. As to others, who
had not been involved in the weekend strike of June 12, it permitted
them to work on their next shift only on assurance of full performance
of their work assignments. The only assurance offered by these em-
ployees was a willingness to work only if it did "not interfere with
Union rules and regulations." Upon their refusal to agree to work as
scheduled, they too were told to lay off 15 consecutive days.
The record does not indicate that there were any work stoppages
after the weekend of June 20 and 21. On June 26 a local newspaper
quoted the union officials as declining to say "whether they will form
new picket lines tomorrow or Sunday." It does not appear that the
Union ever advised the Respondent of any change in its strike strategy,
or gave any assurance of deviating from its resolve to engage in part-
time work stoppages. As stated above, the entire labor dispute was
settled with a new contract on July 17.
The decision of the employees in this case, implemented in their
part-time weekend strike, can only be described as an arrogation of
the right to determine their schedules and hours of work. The sched-
ule long established by the Company, as indeed it had no choice, called
for 7-day round-the-clock assignments. The employees chose to work
only 5 days weekly. Quite apart from the particular necessities of
this Company's obligation to the public, an employer is not required,
at the risk of prosecution, to alter and adjust his operating schedules
and hours to the changing whim which may suit the employees' or a
union's purpose. Establishment of work schedules is a responsibility
[and prerogative] of the employer which may, of course, be the sub-
ject of bargaining. Employees may not, however, simultaneously ac-
338207-55-vol. 110-115
1810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cept and reject them, and thereby in effect establish and impose upon
the employer their own chosen conditions of employment.' It follows
that the employer may lawfully insist that the employees choose either
of the two avenues available to them-either quit work or discharge
the obligations for which they are hired and paid.
The employees, however, chose neither of these courses, but instead
chose to engage in a form of strike action which has generally been
held to be unprotected. The Court of Appeals for the Eighth Circuit,
for example, held that employees' refusal to process orders from a
struck plant of their employer constitutes an unprotected strike 4 The
court there stated :
While these employees had the undoubted right to go on a strike
and quit their employment, they could not continue to work and
remain at their positions, accept the wages paid them, and at the
same time select what part of their allotted tasks they cared to per-
form of their own volition, or refuse openly or secretly, to the
employer's damage, to do other work.
Furthermore, the United States Supreme Court,' in finding that
intermittent work stoppages did not fall within the protection of
Section 7 of the Act and could therefore be enjoined by the State
courts of Wisconsin, stated that :
... We find no basis for denying to Wisconsin the power in gov-
erning her internal affairs, to regulate a course of conduct neither
made a right under federal law nor a violation of it and which
has the coercive effect obvious in this device.
Like the courts, the Board has likewise held both intermittent 6 and
partial' strikes to be unprotected activity. Indeed, in the Valley
3 In C C Conn, Ltd. v. N. L. R. B , 108 F. 2d 390 ( C. A. 7), the employees were willing
to work only the regular hours, but refused to work overtime hours established by the
employer. The court stated :
. . . Undoubtedly, when the petitioner [the company] refused to comply with [the
employees'] request [for an increase in overtime rates], there were two courses open.
First, they could continue work, and negotiate further with the petitioner , or second,
they could strike in protest. They did neither , or perhaps it would be more accurate
to say they attempted to do both at the same time . . . It seems that this might
properly be designated as a strike on the installment plan
We are aware of no law or logic that gives the employee the right to work upon terms
prescribed solely by him . That is plainly what was sought to be done in this instance.
It is not a situation in which employees ceased work in protest against conditions im-
posed by the employer , but one in which the employees sought and intended to continue
work upon their own notion of the terms which should prevail. If they had a right to
fix the hours of their employment , it would follow that a similar right existed by which
they could prescribe all conditions and regulations affecting their employment.
4 N L R B. v. Montgomery Ward & Co , 157 F 2(1 486. See also to the same effect
Home Beneficial Life Ins. Co. v. N. L. R B , 159 F. 2d 280 (C. A. 4).
5 Auto Workers v. Wisconsin Employment Relations Board, 336 U. S 245. (Citing the
aforementioned Conn case , favorably , supra.)
6 Pacific Telephone and Telegraph Company, 107 NLRB 1547 ; Personal Products Corp-
oration , 108 NLRB 743.
7 Valley City Furniture Company, 110 NLRB 85; Kohler Co, 108 NLRB 207.
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1811
City Furniture Company case, the Board characterized a regular daily
strike of 1-hour duration as an unprotected strike. In that case, the
Board said :
... The vice in such a strike derives from two sources. First,
the Union sought to bring about a condition that would be neither
strike nor work. And, second, in doing so, the Union in effect
was attempting to dictate the terms and conditions of employ-
ment. Were we to countenance such a strike, we would be al-
lowing a union to do what we would not allow any employer
to do, that is to unilaterally determine conditions of employment.
Such a result would be foreign to the policy objectives of the Act.
The instant situation appears to come clearly within this formulation
of the Board's rule. For if the participants in a regular daily strike
are outside the protection of Section 7 of the Act, there is no reason-
able basis for holding that the participants in a regular weekend
strike can be in any better position.
We find, accordingly, that the part-time weekend strikes in which
the employees engaged did not constitute protected concerted activity
within the meaning of Section 7 of the Act. Accordingly, the Re-
spondent's conduct in suspending the strikers because of their unpro-
tected activity did not violate Section 8 (a) (3) and (1) of the Act
Under well-established Board and court precedent, the fact that the
employees have engaged in unprotected activity is determinative of
the result in this case. Our decision goes no further. Accordingly,
we do not subscribe to the additional comments of Chairman Farmer
and Member Peterson. And, inasmuch as their comments are not
necessary to the disposition of this case, we do not feel called upon to
advert to the "intimations" which they seek to draw from our refusal
to agree with them.
In view of the agreement of the majority that the Respondent did
not violate the Act, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
CHAIRMAN FARMER and MEMBER PETERSON, concurring :
We agree with the conclusion of our colleagues in the majority that
the activities of the Union in this case were unprotected and that the
Respondent therefore did not violate Section 8 (a) (3) of the Act. We
are of the opinion, however, that the question presented in this case
involves a balancing of the broad statutory right of employees to
engage in concerted activities against the employer's right to carry
on his business.
8 For the reasons set forth in their separate opinion, Chairman Farmer and Member
Peterson concur in the result.
1812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the outset, it is important to stress that this is a case directed
against the Employer, and not an indictment of the Union's conduct.
The complaint charges that by its action, aimed at maintaining opera-
tion as business interests and governmental franchise obligations ne-
cessitated, the Respondent Company committed an unfair labor prac-
tice in violation of Section 8 (a) (3) of the Act. We are called upon,
therefore, to assess the legality only of the Respondent's conduct, and
need not fit the Union's particular strike action within the scheme of
the statute as a whole.
The facts show without question, that from the very start the Com-
pany was concerned solely with a desire to maintain uninterrupted
bus service, and, to this end, to require its employees either to work-
and, while working, carry out their regular work assignments-or to
strike, and withhold their services, if they chose. Not only does the
record reveal no proof of opposition to employee union activity or
to the right of employees to strike, but there is affirmative evidence of
the Respondent's acceptance of the principle of concerted activity as
such. The May 4 union meeting ended at 3: 30 a. m., and a number
of employees were therefore late for work without permission. De-
spite a union official's concern over possible disciplinary action, the
Company was not disturbed about the matter. During the first 3
weeks of intermittent strikes, the Respondent sought only to per-
suade the workmen to make a further attempt to settle their differ-
ences with the Company. And then, after 3 weekend stoppages, it
took pains to warn all employees that the Company could not continue
to operate on a piecemeal basis. Finally, by June 8, when it compelled
252 employees to choose between working and not working, by its own
action it forced a strike against itself. Its operations were than vir-
tually paralyzed. We deem it significant that no one was discharged
throughout these events and that there is not the slightest indication
of antiunion animus by any of the Respondent's officers or represen-
tatives.
It is true that not all concerted activities by employees are protected.
It does not follow, however, that by finding particular activities to
be unprotected we are necessarily required to label them unlawful.'
Thus, we deem it unnecessary to decide, as Members Rodgers and
Beeson intimate, that any given form of unprotected strike activity
gives the employer license to engage in any and all forms of retalia-
0 for example, Valley City Furniture Company, supra, where, despite the union's
earlier unprotected strike action, a majority of the Board held the employer nevertheless
to have been obligated to bargain with that union as a majority representative, once the
improper foam of strike action had been permanently abandoned.
Member Peterson dissented in that case, being of the view that a 1-hour strike
coupled with a mere threat that the strike would become intermittent and partial was
not unprotected against the retaliatory action there taken. He regards the facts here as
.clearly distinguishable.
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1813
tory or unlawfully motivated discrimination.10 Our position is
especially warranted in the instant case, where we are dealing with a
twilight zone of "unprotected" conduct, which is not defined in specific
language in the statute, and this makes it incumbent upon the Board
to accommodate the rights of employees to engage in concerted action
to the right of the employer to continue his business." We exonerate
the Respondent here because his "response" to the "unprotected"
strike activity was reasonably calculated to protect his right to carry
on his business and could not fairly be characterized as retaliatory in
motivation or effect. At the same time, in so holding, we do not, as
Member Murdock suggests, say that strikers who engage in protected
conduct subject themselves to employer discipline. We are dealing
here with conduct which the Board and the courts have long charac-
terized as outside the pale of protection. We hold only that, faced
with the partial strike tactics of the Union in this case, the Respond-
ent was privileged to insist upon full-time work by its employees. It
had a right to do this and this was the sum total of its action, both in
deed and in motivation. The Respondent, therefore, did not discrimi-
nate against its employees in violation of the Act.
MEMBER MURDOCK, dissenting :
I cannot agree with my colleagues in the majority that the Re-
spondent in this case did not violate Section 8 (a) (3) and (1) of the
Act. The facts are undisputed. After an impasse in collective bar-
gaining the Union engaged in weekend strikes to achieve its economic
objective. To restrain and discourage this concerted activity the
Respondent disciplined its employees who participated in the strikes
by imposing 1 and 15-day suspensions on those employees when they
returned to duty. The majority takes the position that this type of
concerted activity is unprotected against discrimination by an
employer.
Section 7 of the Act, as amended, provides : "Employees shall have
the right to self organization to form, join or assist labor organiza-
tions . . . and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection." Section 8
(a) (1) forbids an employer to interfere with, restrain, or coerce
employees in the exercise of these rights. Section 8 (a) (3) forbids
discrimination against employees by their employer to encourage or
discourage union membership. These sections of the Act together
with Section 13 constitute Congress' specific guarantee to employees
of a statutory right to strike against their employer without fear of
reprisal so long as their strike is lawful in form and objective.
10 See Jefferson Standard Broadcasting Co., 94 NLRB 1507, affd. 346 U S. 464; N. L. R. B.
v. Thayer Company , 213 F. 2d 748 (C. A. 1), cert. denied 348 U. S. 883.
"Compare Republic Aviation v. N. L. R. B.; N. L. R. B. v. LeTourneau Company of
Georgia, 324 U. S. 793, rehearing denied, 325 U. S. 894.
1814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no contention here, nor can there be, that these strikes
were in any degree unlawful, that the striking employees engaged in
violence or sabotage or seizure of property in their preannounced and
peaceful strike activities.12 Chairman Farmer and Member Peterson
cite Jefferson Standard Broadcasting Company, supra, which did not
involve an actual strike. There a Board majority held that Section 7
of the Act "does not embrace concerted activity- undertaken for an
unlawful objective, or protect employees against discharge for resort-
ing to `indefensible' means (such as sit-down strikes, sabotage,
`violence or similar conduct') in pursuit of their collective bargaining
ends, however lawful." As indicated below, I cannot believe that a
regular weekend strike for stated and lawful objectives, peacefully
conducted, is so "indefensible" and so like sabotage and violence that
employees should be deprived of their guaranteed protection under
Section 7 of the Act to engage in concerted union activity. The
majority further relies upon other cases most of which, again, did not
involve an actual strike but rather disobedience to company rules and
work stoppages by employees who were accepting pay for time not
worked. Thus, the court held in N. L. R. B. v. Montgomery Ward
& Co., 157 F. 2d 486 (C. A. 8), that employees who remained at work
were not engaged in a protected activity when they refused to handle
products from a struck plant. In Home Beneficial Life Insurance
Co. v. N. L. R. B., 159 F. 2d 280 (C. A. 4), the disobedience consisted
of the refusal of employees to report to their employer's office each
morning before undertaking to service their customers, after the em-
ployer had refused their demand that the reporting requirement be
dropped. Similarly, in C. G. Conn, Ltd. v. N. L. R. B., 108 F. 2d
390 (C. A. 7), the court held that a refusal to work overtime was a
flagrant invasion of the employer's right to regulate working time.
These cases are distinguishable and, unlike the instant case, are partial
work stoppages in that within any given working day the employees
refused to perform part of their assigned duties or to work the full
day. The Supreme Court of the United States, faced with the prob-
lem of intermittent stoppages in Auto Workers v. Wisconsin Employ-
ment Relations Board, 336 U. S. 260, held that Congress had not legis-
lated with regard to employee activities involving 26 surprise work
stoppages in the form of special union meetings during working hours
over a period of 5 months. The Wisconsin Board was therefore free
to enjoin such activities under a State law which forbade employees
to interfere with production except by "leaving the premises in an
orderly manner for the purpose of going on strike." The Supreme
Court in that case specifically pointed out that it was impossible to
schedule production because of the surprise character of these stop-
12 Cf. N. L. R. B. v . Fam.teel Metallurgical Corp., 306 U . S. 240; N. L. R. B. v. Draper
Corp., 145 F. 2d 199 ( C. A. 4), setting aside, 52 NLRB 1477.
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1815
pages, that they were for unstated ends, and that the employer had
"resorted to no retaliatory measures," but had merely invoked the
processes of the Wisconsin law. I therefore find this case also
distinguishable.
The two recent Board decisions, Pacific Telephone and Telegraph
Company, 107 NLRB 1547 and Valley City Furniture Company, 110
NLRB 85, upon which the majority further relies, are both cases
in which I have expressed my dissenting views. Those cases, in my
opinion, incorrectly interpret and extend the exceptions that have been
engrafted upon Section 7 of the Act.
The Respondent in the instant case does not contend that it was
impossible or even impractical to operate its bus service for the re-
maining 5 days of the week, which was the apparent basis of the
majority's holding in the Pacific Telephone and Telegraph case, cited
above. Certainly, the public interest here was better served by a
limitation of strike activity to nonessential weekend travel rather than
continuing the strike throughout the week with serious disruption to
the entire economic life in the city. The effect of the majority's de-
cision in this case will be to serve notice on transportation unions that
they must strike continuously, without regard to the paralyzing con-
sequences of their strike, to receive the protection of the Act.
Chairman Farmer and Member Peterson assert that it is incumbent
on the Board in defining unprotected concerted activity "to accom-
modate the rights of employees to engage in concerted action to the
right of the employer to continue his business." No such issue exists
in this case. The Respondent's conduct consisted of punishing its em-
ployees by laying them off the job to discourage them from engaging
in weekend strikes. This deliberate, affirmative, and disciplinary ac-
tion on the part of the Respondent cannot, in my opinion, be charac-
terized as nothing more than the right "to continue his business."
The issue here, simply stated, is whether the Respondent did or did
not have the right to punish its employees for engaging in concerted
activity. That certainly was not the issue in the Republic Aviation
case, cited by Chairman Farmer and Member Peterson. There the
Supreme Court held that an employer's discharge of employees who
disobeyed a no-solicitation rule was a violation of Section 8 (a) (3)
of the Act. The conflict in that case arose because the employer
exercised a right independent of the statute, i. e. the right to pub-
lish rules to govern its business. That rule conflicted with the right
of employees to engage in organizational activity. In holding that
the latter right took precedence over the former, the court, of course,
recognized the existence of both rights. The Board and the courts
have long recognized that an employer in the face of an economic
strike may exercise his "right to continue his business" by perma-
nently replacing the economic strikers, as this Respondent could law-
1816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully have done during any economic strike. But the Respondent in
this case was not satisfied to continue its business under those lawful
terms. Instead, it embarked upon a course of conduct specifically for-
bidden by Section 8 (a) (3) of the Act; it resorted to acts of discrimi-
nation in the form of layoffs as a means of discouraging the concerted
activity of its employees. Under these circumstances, there can be no
talk of "accommodation," or "balancing" of rights. If, as the ma-
jority has found, these economic weekend strikes are unprotected un-
der this statute, the employees can have no recourse to this Board for
the Board is powerless to help them. If, on the other hand, the week-
end strikes are, as I would find, protected under Section 7 of the Act,
no form of discrimination because of this activity can be lawful on a
Board-administered "balance of rights" test. In this respect, I agree
with Members Rodgers and Beeson that there is no middle ground.
I must point out that Sections 7 and 8 of the Act, set forth above,
make no distinction between different forms of concerted activity.
Statutory construction, however, permits the modification of express
language in a statute where its literal application would lead to ab-
surd results or results inconsistent with the intent of the legislature.13
This is the principle upon which every exception to the literal appli-
cation of Sections 7 and 8 of the Act must be bottomed. Is it absurd
to find that employees who engage in peaceful weekend strikes rather
than a continuous strike are entitled to the protection of Sections 7
and 8 of the Act? Have these employees engaged in such indefensible
conduct that Congress could not possibly have intended to protect
them? These are the questions, in my opinion, that must be answered
in determining the legality of the Respondent's conduct. I agree, of
course, that this is the sole issue posed by the complaint. Admittedly,
Respondent's conduct consisted of discriminating against employees
to discourage union activity. In enacting Section 8 (a) (3) of the
Act Congress forbade all forms of employer discrimination, however
slight, aimed at discouraging such activity. The Respondent's con-
duct in this case, therefore, is a clear violation of Section 8 (a) (3)
and (1) of the Act unless it can show as a defense that the particular
union activity for which its employees were punished does not come
within the statutory protection of Section 7 of the Act. In a very real
sense, therefore, a finding that this activity is unprotected, which the
majority has made in the instant case, is, contrary to Chairman Farm-
er and Member Peterson's statement, "an indictment of the Union's
conduct." It must be an indictment if any of the cases upon which
the majority relies is precedent for finding weekend strikes unpro-
tected. Contrary to Chairman Farmer and Member Peterson, the
Board must "fit the Union's particular strike action within the scheme
Is Sutherland , Statutory Construction , Vol. II, pp. 333-4.
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1817
of the Statute as a whole." In no other way can the Board determine
whether the action was intended by Congress to be protected under
Section 7 of the Act or is so indefensible that it is not entitled to be
placed .in that category.
Citing the Jefferson Broadcasting case, Chairman Farmer and
Member Peterson state that they need not decide that unprotected
strike activity gives the employer license "to engage in any and all
forms of retaliatory or unlawfully motivated discrimination." I can
only take this statement to mean that the Respondent in this case was
privileged to lay these employees off, but may not have been privileged
to discharge them for the same concerted activity. In other words, a
small amount of discrimination to discourage union activity converts
what would otherwise be protected activity into unprotected activity !
These statements of Chairman Farmer and Member Peterson, which
I must consider obiter dicta, present a new and dangerous concept in
the interpretation of Section 8 (a) (3) of the Act. In effect, they add
up to the conclusion that discrimination by an employer will be exon-
erated by this Board if the Board believes such discrimination is
"reasonable." This is to change the language of Section 8 (a) (3) to
make it an unfair labor practice for an employer "By [unreasonable]
discrimination in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership
in any labor organization." In my opinion, the addition of the word
"unreasonable" to the word "discrimination" used by Congress in this
section of the Act amounts to an obvious form of administrative legis-
lation.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act, as amended, 61 Stat. 136, is based upon a charge duly filed by Transit Workers
Union of Hawaii, Independent, herein called the Union, against Honolulu Rapid
Transit Company, Limited, herein called the Respondent. Pursuant thereto, the
General Counsel of the National Labor Relations Board issued a complaint dated
September 22, 1953, alleging that the Respondent had engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) and (3) of the Act. Copies of the
charge, complaint, and notice of hearing thereon were duly served upon the
Respondent.
In substance the complaint alleged that following unsuccessful negotiations on a
new contract, the Union announced that it would engage in strikes over the weekend,
but would report for regular duty 5 days a week, and pursuant to this announce-
ment, the Union did strike on succeeding Saturdays and Sundays on specified dates
beginning on May 9, 1953; that on about May 26, 1953, the Respondent announced
to its employees that thereafter employees not reporting for scheduled weekend
assignments would be suspended for a full working day, and on or about June 5,
it further announced to its employees that employees failing to report for scheduled
weekend assignments thereafter would be suspended for 15 working days, and that
pursuant to this announcement the Respondent did suspend employees failing to
report for various scheduled weekend strike dates because of their membership and
activity on behalf of the Union and particularly because.of their participation in
the strike by failing to report for their regularly scheduled weekend shifts; and fur-
ther that the Respondent laid off other employees who usually would have worked
1818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had it not been for the absence of suspended employees from their jobs by reason of
such suspensions.
The Respondent's answer admitted certain facts, denied others, and supplemented
the complaint with further factual details; it then admitted having made the sus-
pensions alleged but denied that such suspensions were imposed by virtue of the
membership and activity on behalf of the Union or because of employees' partici-
pation in the strike, but alleged that such suspensions were imposed because of
insubordination of the employees who continued to work instead of going on strike
but refused to work the days and hours assigned them by the Respondent.
Pursuant to notice, a hearing was held at Honolulu, Hawaii, from October 20
through 23, 1953, before me as the duly designated Trial Examiner. All parties
were represented by counsel who participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
relevant evidence. At the opening of the hearing the General Counsel moved to
amend the complaint with respect to allegations of details with respect to the work
stoppages. And the motion was granted. The Respondent moved to amend an
allegation of its answer so as to delete the reference to a certain date, and this motion
was likewise granted. The Respondent then moved to dismiss the complaint on
the ground that the action alleged is not protected by the Act. Ruling thereon was
reserved until after the evidence was in. At the close of the General Counsel's case,
the Respondent moved to amend its answer by adding that the Union's conduct
was a violation of certain laws of the Territory of Hawaii and that the Union had
failed to comply with Section 8 (d) of the Act. At the close of the hearing, the
Respondent renewed its motion to dismiss, and ruling was further reserved, and is
denied in part and granted in part as is hereinafter shown. The General Counsel
moved to conform the pleadings to the evidence with respect to formal matters,
and the motion was granted. Counsel waived oral argument, and counsel for
the General Counsel and counsel for the Respondent requested and were granted
permission to file briefs with the Trial Examiner. Such briefs were received and
have been considered. The Respondent also filed proposed findings of fact and
conclusions of law. The Respondent's proposed findings of fact are accepted with
the exception of the following, which are rejected: Nos. 12, 17, 20, 24, 25, 26, 37,
43, 54, 56, 60, and 67, which are disallowed because of the fact that they differ
to some degree from the findings which I make hereinafter. The Respondent's
proposed conclusions of law are rejected.
Upon the entire record in the case, and from my observation of the witnessses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation existing under the laws of the Territory of Hawaii,
with its principal place of business in Honolulu in that Territory, operates as a com-
mon carrier, furnishing public transportation by trolley coach and motor bus to in-
habitants of the city of Honolulu, Territory of Hawaii. As the Board has plenary
jurisdiction in the Territories,' jurisdiction is not questioned, and I find that the
Respondent is engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act .2
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; discrimination
1. Chronology of events preceding the strikes
Since 1946, the Union has been the statutory representative of the Respondent's
bus operators and maintenance employees. On May 24, 1952, the Union and the
Respondent entered into a collective-bargaining agreement which by its terms ex-
' De Diego Taxi Cabs, Inc., 107 NLRB 1026; Panaderia Sucesion Alonso, 87 NLRB 877.
z The Board in 1949 accepted jurisdiction over the Respondent in a representation case,
85 NLRB 1077.
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1819
pired on May 3, 1953. Negotiations for a new contract commenced in March 1953.3
As a result of a number of negotiating meetings, no agreement was reached. On
April 27 the Union met and voted to strike. The next day the Union by Arthur
Rutledge, its business representative, wrote to the Respondent as follows:
This is to advise you that [at] a meeting of your employees last night the
Executive Board of our Union was instructed to enforce our Union's position
of no contract-no work!
This means that in the event our Negotiating Committee is unable to reach
an Agreement by Midnight May 3rd there will be no work performed beginning
Monday, May 4th. The Negotiating Committee was instructed to request con-
tinuous negotiations in an effort to reach Agreement with you before Midnight,
Sunday, May 3rd.
We hope you will exert every effort to avoid a work stoppage.
The principal spokesman for the Respondent in its contract negotiations was
Edwin Rinehart, director of the union-and-employee relations department of the
Hawaii Employers Council. On April 30, Rutledge had an informal meeting with
Rinehart at which he intimated that the Union might engage in weekend strikes,
which Rutledge referred to as "an entirely new gimmick." Rinehart reported this to
the Respondent.
At a negotiating meeting on Saturday, May 2, the Respondent submitted to the
Union a complete proposal for a contract which contained certain changes from
the previous proposal. After the union committee had examined the changes, it
expressed the opinion that the proposals therein contained would be unacceptable
but that the committee would submit them to the membership at a meeting to be held
later. The Union commenced this meeting after midnight, at about 12: 30 a. in. on
May 4. Some operators and maintenance men who were members of the Union quit
work early to attend the meeting. At this meeting, the membership voted to reject
the Respondent's proposals, and Rutledge recommended the weekend strike as
against an all-out strike. After the matter was debated at considerable length, the
Union finally decided to engage in weekend strikes and the meeting ended at about
3: 30 a. m. At this time, pursuant to a promise made at the, conclusion of the May
2 negotiating meeting, Rutledge telephoned Frank Judd, the Respondent's personnel
director, notified him that the employees would be at work that morning, and re-
quested that they not be penalized for tardiness in view of the lateness of the hour
at which the meeting adjourned. The evidence is in dispute as to whether or not
Rutledge informed Judd of the Union's intention to conduct weekend strikes; but in
any event newspapers, to the Respondent's knowledge, carried the stories concerning
such intention during the week of May 4 to 8.
On May 4, the Union, by letter, notified the Respondent that its proposal of May
2 was rejected, and the Union requested a resumption of negotiations. On May 6
Rinehart acknowledged the receipt of the Union's letter, stated that the Respondent's
proposal represented the maximum amount of concessions that it felt it could make
and that it had no further proposals to offer. His letter concluded: "If you now
feel that further negotiations within the limits of our proposal will be productive,
we will be very glad to resume negotiations with you at any time you wish."
On May 8 Rutledge again met informally with Rinehart and two others in an
effort to explore possible solutions. At this meeting, the Respondent made certain
propositions in an effort to settle the dispute, but apparently the Union did not
accept them.
2. The weekend strikes
On Saturday and Sunday, May 9 and 10, the Union went out on strike. Only 2
employees, maintenance men, reported to work, 1 on Saturday and 1 on Sunday.
One of the two was a union member, who was later disciplined by the Union. On
Monday, May 11, the employees returned to work and operations were normal
through Friday, May 15.
On May 14, 1953, George Voorhees, the Respondent's president at that time,
sent a letter to each employee commenting on the fact that there had been one
weekend strike and that there was a threat of another. The letter reviewed the
8 There is reference in the evidence to March 1 as the date of a letter written by the
Union to the Respondent, which inferentially is the notice of intention not to renew the
existing contract. No claim is made that the Union struck within 60 days of this date,
although the Respondent contends that the strike was illegal because of the Union's failure
to notify the Federal Mediation and Conciliation Service, as required by Section 8 (d) (3)
of the Act.
1820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's position and the Respondent 's offers to the Union . In substance he indi-
cated that the Union's requirements of some kind of union shop stood in the way of a
settlement . He did not ask the employees to do anything except to think about the
matter.
On weekends , the Respondent normally used only a portion of its maintenance
crew, and for the weekend of May 16 and 17 the Union requested those maintenance
men who would normally be on duty to report for work so that the Respondent
would not be in a position to say that they could not operate busses on Monday for
lack of servicing. These employees did report for duty and were permitted to work.4
All other employees again went out on strike that Saturday and Sunday, May 16
and 17. Although the Union did not formally notify the Respondent of its intention
to strike on that weekend, the Respondent believed that the Union meant what it
had said with respect to conducting weekend strikes , and therefore anticipated the
stoppage.
On Monday , May 18, service resumed and continued normal through May 22.
On May 19, the Union wrote a letter to the Respondent , which after criticizing "the
company's self-serving statements and advertisements in the daily papers," continued:
Therefore , we suggest arrangements be made to have present during negotia-
tions the Coordinating Committee of Honolulu Rapid Transit Company com-
posed of Messrs . Beck, Bush , and Voorhees . We feel certain that if this Com-
mittee sits in negotiations , a speedy agreement can be reached and uninter-
rupted service will be reinstated as a result . Should you be unable to make
these arrangements , we suggest you join with the union in asking the Gover-
nor to appoint a fact-finding board composed of public members to the end that
the public be given an opportunity to know the truth about our differences.
Rinehart telephoned Rutledge about a meeting on May 20 and the Union and Re-
spondent met on May 21. Apparently no progress was made at this meeting.
In a radio interview on May 22, Rutledge was asked and explained the Union's
reason for the so-called installment -plan strike . One was to give service to the public
during the week so that children could get to school and others could get to work.
The other reason he explained as a turning of the tables on the employer to "see how
he likes a part-time income ." 5 Rutledge also mentioned the fact that the Territorial
governor had agreed to set up a fact-finding board. On about May 22 the Union
received a request from a Catholic church or school , known as the Star of the Sea, to
operate a feeder line on Sunday to help people reach a bazaar which it was holding
that day, and in his radio interview Rutledge said that he was meeting with the
Union's executive board that evening to recommend "that this Sunday that they man
the busses if the company will let them go out." A similar intimation appeared in
the Saturday morning newspaper . The executive board of the Union met Friday
evening and decided to work on Sunday, May 24, and "reserve another day from
next week for our week-end installment strike." A Saturday afternoon newspaper
carried an announcement that busses would operate on Sunday . As a result of the
Union's decision , the Respondent 's operations ceased on Saturday , May 23, but
operated normally on Sunday, May 24.
On May 22, the Union received from the veterans association of the Territory of
Hawaii a request that the Union do everything possible to operate the busses on
Memorial Day , May 30, from 8 a. m. to 2:30 p. in., so that relatives and friends of
those who had died in the service of their country would be able to attend Memorial
Day exercises at the National Cemetery. Rutledge suggested to the veterans associ-
ation that this request be directed to the Respondent , but promised to take the mat-
ter up with the Union. After consideration of this request, the Union on May 25
replied , stating that it would offer to operate the busses during the hours requested.
A copy of this letter was sent to the Respondent. The Respondent refused to oper-
ate for less than a full day. Rutledge indicated through the press that the Union
might yet agree to work the full day, but added that the executive board had been
given authority to designate "days off" not to exceed 2 days a week and that the 2
days wouldn't necessarily be consecutive nor over the weekend.
On Monday , May 25, in a telephone conversation with Rinehart, Rutledge told him
that there were three possibilities-that the Union might continue weekend strikes,
4 Edward deHarne , the Respondent 's executive vice president , testified that all but 2
maintenance men worked on May 16, and all but 1 on May 17.
5 On cross -examination , Rutledge admitted that the tactics were designed to turn the
tables on the Respondent by depriving the Respondent of some income while the employees
could use some force and still have income. And the objective, he testified , was to force
the Respondent " to bargain in good faith , to loosen up. . . .
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1821
that they might have strikes during the week, or that they might go out completely
on the following weekend. Rinehart also heard rumors that the Union might work
only during the peak hours in the morning and afternoon as an alternative to taking
a day off in the middle of the week to make up for the work done on Sunday , May 24.
On May 25, representatives of the Respondent met to decide upon its course of
action. As a result of this meeting , the Respondent , on May 26, issued the following
notice to employees:
The action of the leaders of the Transit Workers Union in calling "install-
ment strikes" and disrupting regular service necessitates the company taking
measures to enforce regular operations.
Therefore , any employee who does not report for his scheduled assignment
at the regular time will be laid off for that day and will in addition receive a
suspension of one full working day , such suspension to be put into effect at such
time as will interfere to a minimum extent with normal operations.
Following the appointment of a fact-finding board by the Territorial governor,
the Union and the Respondent met with that board on Friday , May 29.
On Memorial Day, Saturday , May 30, the Respondent operated the full day, all
employees who were scheduled to work reporting . However, on Sunday, May 31,
the Union again was out on strike .6 The maintenance employees reported for duty
but were not permitted to work.
On June 1 the Union wrote the Respondent stating that it understood that several
employees were notified that they were to be suspended for 1 day commencing with
June 2 ( the Respondent intended to give the suspensions on staggered days in order
to cause the least disruption of service ). In this letter the Union stated:
We are sincerely desirous of providing continuous non-interrupted service
week days until the conclusion of the current school year. This desire is based
upon the recognition of the fact that school children should not be penalized
because of a labor-management dispute. We hereby request that you post-
pone the suspensions until after the cessation of this current school term.?
On the evening of June 1, the parties met for the second time with the fact-finding
board. There was some discussion about holding off the suspensions , but the
Respondent did not accede to the Union 's request , and the suspensions became effec-
tive beginning on June 2 when 30 employees were suspended for 1 day.8 A sub-
stantial number of employees were given 1-day suspensions on a staggered basis
thereafter.9
On the afternoon of June 5 the parties again met with the fact-finding board.
The board said that it wished to place a proposal before the parties that the Union
give assurance of uninterrupted service and that the Respondent cease all suspensions
under the May 26 order . At this time the Respondent did not know whether or not
there would be a stoppage the next day . The Respondent refused to cease suspen-
sions at that time. The Union stated that the proposal would have to be taken up
at a membership meeting to be held that night and that the result thereof would
be reported to the fact -finding board at a further meeting to be held that night after
the union meeting. At the appointed time, the Union reported back to the fact-
finding board that it had voted to go out on strike on Saturday and Sunday, thus
rejecting the proposal . On the afternoon of June 5 the Respondent posted the
following notice to employees:
Despite the efforts of the company to insure uninterrupted service by imposing
one-day suspensions upon employees for failure to report for scheduled assign-
ments at regular times , the threat has been made that no service will be rendered
on Saturday and Sunday , June 6 and 7. The company is called upon to take
sterner measures to prevent further disruptions.
Therefore , any employee who hereafter does not report for his scheduled
assignment at the regular time will be laid off for the day or days that he fails
9 Rutledge testified that the Union ' s attitude toward the May 26 notice was "to hell
with the company . . . we considered that our week -end strikes were successful because
the company was being hurt and they were trying to retaliate in this manner."
7 The school term ended on June 5. The Union had previously decided to start an all-
out strike on June 6, but Rutledge testified that after the fact -finding board came into the
picture the Union decided to restrict its strikes to weekends.
s The charge in this case was filed by the Union on June 3.
Twenty -six on June 3; 25 on June 4; 31 on June 5; 39 on June 7; 11 on June 8; 1
on each of the days June 12, 16, 17, 18 , and 19, and July 23.
1822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to report and for an additional period of 15 days effective commencing upon the
next day that employee is scheduled to work.
This notice supercedes [sic] the notice to all employees dated May 26, 1953.
Judd testified that this notice was posted before the afternoon meeting with the fact-
finding board. There is no evidence that this notice was mentioned at the afternoon
meeting. But it was known to the Union before it took its strike vote that night.
The Union again struck on June 6 and 7. Although the maintenance employees
reported for work, the Respondent laid them off for those 2 days because their
services were not necessary, the busses having already been serviced on June 5. On
June 7 the Respondent, pursuant to its June 5 notice, suspended 214 employees who
had failed to report for regularly scheduled duty on June 6, and on June 8 it sus-
pended an additional 38 employees who had failed to report for their regularly
scheduled shifts on June 7. I find nothing to establish that the strikes on June 6
and 7 were other than the customary weekend strikes in support of the Union's con-
tract demands. The attitude of the Union appears to have been not that it was
striking because of unfair labor practices involved in the 1-day suspensions but
rather that it was not going to be deterred by the suspensions from carrying out
its primary objective.
At a meeting of the fact-finding board on Monday, June 8, the Union offered to
give uninterrupted service on condition that the suspensions be lifted and that the
expired contract be reinstated for 30 days unless a new agreement were sooner
reached.10 The Respondent took this offer under consideration but thereafter failed
to give any reply although the fact-finding board again met on June 9. Because
of the large number of suspensions, the Respondent gave verbal notice to the Public
Utilities Commission of a change in schedules. It operated on a skeleton service
until about June 22 when the majority of the 15-day suspensions expired. During
May and June, the Respondent had about 340 bus operators 11 and 112 maintenance
employees. During March, the Respondent had 281 runs (a run is the work done
by 1 man per 8-hour day) including 46 relief runs. On Saturdays it had 254 runs
and on Sundays 207 runs. I infer that the number of runs remained substantially
the same until the 15-day suspensions were given. For the week commencing June 8
(after the suspensions went into effect) the Respondent had about 40 runs, using
39 operators who, because not scheduled to work on June 6 and 7, were not
suspended. For the week beginning June 15 the Respondent had 50 runs. Because
of the suspensions and reduced operations, the Respondent laid off all but about
one-fifth of its maintenance staff. The Union wrote a letter to the Public Utilities
Commission about the cancellation of runs, apparently to induce that commission
to compel the Respondent to give full service. There is no evidence that the com-
mission took any steps against the Respondent.
3. The picket lines
On Friday morning, June 12, the Union's policy committee met and, following a
discussion, its executive board "ordered a picket line to be established protesting
the 15-day suspensions starting this afternoon but no longer than the suspensions." 12
As a result of this decision, the Union formed a picket line just before noon that
day. Two picket signs claimed a lockout, one read, "We are ready to work," and
another read, "HRT says public be damned." The picket line continued for a period
of from 11/2 to 21/2 hours. Operators scheduled to report during that period refused
to cross the picket line, in accordance with the Union's expectation, and the Re-
spondent had to call in the busses for lack of relief drivers.13 None of the operators
scheduled to report during the period of the picket line reported after its removal
that day. In addition to the announced purpose of the picket line as a protest of the
suspensions, Rutledge admitted that the picket line was "in a round-about way" to
put pressure on the Respondent. The Respondent did not suspend any employees
10 The fact-finding board was expected to make its report by June 27.
11 This number presumably includes standby or substitute drivers, for that number would
not actually be required for the number of busses being operated each day.
as This is quoted from minutes of the policy committee meeting. Other matters con-
sidered at this meeting were : "PUC hearing at 2: 30 this afternoon on the HRT service
curtailment. Opinion from Attorney General's office re : HRT charter violation."
13 For the skeleton service, 41 drivers were scheduled for duty that day ; 20 of these
failed to report. The other 21 had started to work before the picket line started.
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1823
for failure to report for duty as a result of the June 12 picket line, but that afternoon
it posted the following notice to employees:
Certain employees scheduled to work on the afternoon shift today failed to
report because suspended employees established a picket line . Because of this
unusual condition, the Company will not impose suspensions on those em-
ployees pursuant to the notice of June 5, 1953 provided that those employees
who desire to work on the next scheduled workday report to the Chief Dis-
patcher or foreman on duty that day and give their individual assurance that
they will continue to perform their work as scheduled and without interruption.
On June 13, the Union wrote the Respondent a letter, referring to this notice and
the employees to whom it was directed , and saying:
As the lawfully constituted bargaining agent, we hereby inform you
that the men concerned are perfectly willing to go on shift at their scheduled
times and to perform their jobs as they always have. However, any such
undertaking on their part is in no way to be interpreted as a waiver of any
rights these men may have to engage or assist in activities for their mutual
aid and protection. In no event will these men be coerced into becoming a
party to the Employers' Council version of the Yellow Dog Contract.
The evidence does not indicate any form required by the Respondent in which the
assurance was to be given pursuant to the June 12 notice, and there is no direct evi-
dence that such assurance was given by each of the employees scheduled to work
on June 13 and 14. However, there was no work stoppage that Saturday and Sun-
day and the 54 employees scheduled for duty were permitted to work.
On Friday night, June 19, the Union held a meeting and decided to establish
another picket line on Saturday and Sunday, June 20 and 21.14 The time for the
Saturday picket line was set for 11:59 a. in. At the same meeting Rutledge was
instructed to notify the press that union members would respect the picket line,
that the Union's executive board was authorized "to pull out the picket line at any
time," and that the members would continue to work until the fact-finding hearings
were over and the governor had made the findings public. Pursuant to the decision
reached, the Union posted pickets Saturday and Sunday noon.15 Bus operators,
aware of the picket line, brought their busses in without being called in. Some even
came in before the end of the shift. The Respondent did not operate Saturday or
Sunday afternoon, following the picket line interruption.
On Sunday afternoon, June 21, the Respondent posted another notice. This one
read:
Certain employees have again established a picket line and as a result em-
ployees scheduled to work on the afternoon shift today failed to report to work.
Some of these employees were relieved of suspensions for failure to report to
work last Saturday because they gave their individual assurance that they
would continue to perform work as scheduled. Since they have again failed
to take their regularly scheduled assignments , they will be suspended for 15
days pursuant to the Company notice of June 5.
Employees who failed to report for their scheduled assignments today, and
who had not assured the Company that they would perform their scheduled
work, will be permitted to work on their next scheduled work day provided
they report to the Chief Dispatcher or foreman on duty on that day and give
their individual assurance that they will continue to perform work as scheduled
and without interruption.
On the same day that this notice appeared, Rutledge prepared for signatures of
employees the following statement:
In the absence of a Union contract I will give continuous and uninterrupted
service in so far as it will not interfere with union rules and regulations and
does not involve the crossing of a legitimate picket line approved or established
by the Transit Workers Union of Hawaii.
14 A newspaper story on Friday reported during the day that the Union would meet that
night to decide whether to work that weekend.
1s Vice-President deHarne, using someone else's notes, testified that the picket line was
posted twice on Saturday, once from 11 : 45 a. in. to 1 : 15 p. in. and again from 3: 10 to
3: 45 p. in. His testimony was rather confused and I am not convinced that the picket
line actually was posted the second time. However, if it was, it did not have any effect,
for no one worked that afternoon on the relief shift.
1824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This document, signed by 13 employees, was presented by Rutledge to the assistant
traffic superintendent and to deHarne, who refused to accept it because it was not
an unqualified individual assurance. On Sunday, Rutledge furnished the same type-
written statement for signature of each employee reporting for duty. Each signed
the statement and handed it to the chief dispatcher, who refused it and required a
yes-or-no answer to the question, "Are you willing to give continuous and uninter-
rupted service?" For failure to give an affirmative answer when reporting for a
scheduled assignment the employee was not permitted to work and was suspended
for 15 days.is Also suspended were those who had given individual assurances of
continuous and uninterrupted work following the June 12 notice and who had failed
to cross the picket line on the weekend of June 20.
On June 22, the operators who were suspended on June 7 and 8 became available
for work on June 22 and 23, and by Tuesday, June 23, operations were substantially
normal again.17 The record does not indicate whether or not individual assurances
were required of those returning from suspensions.
On June 26 a local newspaper carried a story under the headline, "Transportation
Picture Remains Uncertain For This Weekend." It said that "union officials de-
clined to say whether they will form new picket lines tomorrow or Sunday" and
quoted Rutledge as saying, "The Company doesn't announce their plans . I don't
see why we should announce ours." The story went on to say:
Late last week Rutledge said the Union had decided against further tieups
ai least until five days after the Governor's emergency fact finding board makes
its recommendations. The report is due by midnight tomorrow.
"That promise was made on the assumption that the company would not
suspend any more drivers, and they have done just that," Mr. Rutledge said
today.
No further work stoppages, occurred, however. The fact-finding board made its
report on June 27, and on July 17 the Union and the Respondent reached a new
agreement.
4. Conclusions
The principal issue in the case is whether or not the Respondent's act in suspend-
ing employees who were on strike or who refused to give personal assurance of
uninterrupted performance constitutes a violation of Section 8 (a) (1) and (3) of
the Act. If the employees were acting within the scope of their rights guaranteed
in the Act, the penalty obviously would be an interference therewith. But if they
were engaged in unprotected, albeit concerted, activities, the Respondent could have
discharged them. That the penalty meted out was less than a discharge would not
affect the result. In justifying the suspensions, the Respondent relies upon four
grounds for treating the work stoppages as unprotected concerted activities: (1) The
employees' attempt to assume a dual and inconsistent roll of working employees and
strikers; (2) the harassing character of the work stoppages; (3) the failure of the
Union to notify the Federal Mediation and Conciliation Service of a dispute as re-
quired by Section 8 (d) (3) of the Act; and (4) striking in violation of the Hawaii
Public Utility Labor Act of 1949. To this date the Board and courts have not
passed on such contentions in connection with facts identical with those here in-
volved. The Respondent apparently urges the last two grounds more as make-
weight than as a primary defense, for it did not include them in its answer as orig-
inally drawn. The fourth ground is brought in incidentally in the evidence and in
the Respondent's brief. The Respondent had ascertained in June that the Union
had not notified the Federal Mediation and Conciliation Service of the existence of
a dispute but it made no point of it then and only added it in its answer at the
hearing; so it apparently had not valued this ground of defense in its original ap-
praisal of the case. I shall dispose of the third and fourth contentions first as less
room appears for doubt.
I find that the strike was not rendered illegal by the failure of the Union to comply
with Section 8 (d) (3) of the Act. Section 13 of the Act provides: "Nothing in this
Act, except as specifically provided for herein, shall be construed so as either to in-
terfere with or impede or diminish in any way the right to strike, or to affect the
16 Twenty operators scheduled to work on Saturday were suspended beginning June 21.
On that day, therefore, a total of 272 operators were in suspension. Nine operators, sched-
uled to work on Sunday, June 21, were suspended beginning June 22.
"I On June 22, 188 operators reported for duty. The following day there were 265 on
duty.
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1825
limitations or qualifications on that right." Section 8 (d) of the Act provides, so far
as is material hereto:
... the duty to bargain collectively shall also mean that no party to such con-
tract shall terminate or modify such contract, unless the party desiring such
termination or modification-
(3) notifies the Federal Mediation and Conciliation Service within thirty
days after such notice [the 60-day notice to the other party to the contract]
of the existence of a dispute ...18 provided no agreement has been reached by
that time... .
It will be noticed that in Section 8 (d) (3) nothing is "specifically provided," as re-
quired in Section 13, to "interfere with or impede or diminish in any way the right
to strike." The reference to refraining from strikes and lockouts in Section 8 (d) (4)
does not refer to the 30-day notice required by Section 8 (d) (3); it refers only
to the 60-day notice required by Section 8 (d) (1). Even if a strike is deemed il-
legal when it precedes the end of the 60-day period contrary to Section 8 (d) (4),19
which is not contended by the Respondent to have happened in this case, I find
nothing in the Act that renders a strike illegal merely because the Union failed to
give the 30-day notice called for under Section 8 (d) (3). At most, such failure may
be found to be a refusal to bargain.20
Assuming, for the purposes of passing on the Respondent's fourth contention, that
the strike was contrary to the provisions of the Hawaii Public Utility Labor Act of
1949 and that it was not otherwise illegal, that contention cannot avail here, since
the rights guaranteed in the National Labor Relations Act are paramount to Terri-
torial law. Where the enforcement of a State statute impairs, qualifies, or in any
other respect subtracts from any of the rights guaranteed by the Act, such provi-
sions are ineffective to the extent of such conflict.21
I turn now to the principal contention of the Respondent that the concerted activ-
ities here involved were unprotected by the Act. A strike or other concerted work
stoppage may be unprotected because its objective conflicts with Federal law or
policy or because it is conducted in an illegal manner. The objective of the stop-
pages here was not contrary to either law or policy, and this the Respondent con-
cedes. Hence, if the concerted activities are found to be unprotected, it must be on
the ground contended by the Respondent that the manner of conducting the stop-
pages was contrary to law or the policy of the law. The Act, itself, does not pro-
scribe installment strikes or work stoppages. Are such strikes then contrary to the
policy of the law? The difficulties attendant upon deciding the policy of the law in
a given case are obvious. In the sense here used, "policy" does not mean a settled
course preconceived, announced, and followed thereafter. If it did, the application
of that policy would simply be a matter of deductive reasoning. Rather, until the
first pronouncement, it signifies an ex post facto application of a human concept of
the manner in which conflicting interests should be adjusted. Although ignorance
of the law (which excuses no one) becomes, in cases like this, inability to forecast
with certainty what diverse human minds may decide to be the policy of the law,
nevertheless the conduct of the parties must be passed on and one must be found to
have acted improperly. Fortunately, a few cases have been decided which, although
not directly in point, will serve as a basis for inductive reasoning.
18 No contention is made that the Union had failed to comply with the requirement of
this section, omitted in the quotation, of notice to the Territorial agency established to
mediate and conciliate disputes. There is evidence that a Territorial mediator attended
negotiation meetings in May 1953
19 See Wagner Iron Works, 104 NLRB 445; Wilson it Co. Inc., 105 NLRB 823
20 See Intermediate Report in Retail Clerks International Association, Local No. 1179,
AFL, and Esther Luther, Agent, 109 NLRB 754. The legislative history of the Act tends
to substantiate the conclusion that only for failure to give the 60-day notice is a penalty
provided. See Senate Report No. 105 on S 1126, p 25, and comments of Senator Taft,
93 Cong. Rec. 3955.
21lnternational Union of United Automobile etc. Workers v. O'Brien, 339 U. S. 454 and
cases there cited ; Amalgamated Association of Street, Electric Railway etc v W. E. R. B.,
340 U. S 383; Hamilton v. N. L. R. B., 160 F. 2d 465 (C. A. 6) During the early part
of May 1953, the Respondent sought to have the attorney general of the Territory of
Hawaii invoke the Hawaii Public Utility Labor Act of 1949, but be refused to do on the
ground that it was in conflict with the Federal Act.
338207-55-vol. 110-116
1 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent, in support of its contention that the manner in which the work
stoppages were caused to occur was contrary to the policy of the law, in its brief
.cites decisions holding that an employee may not with immunity remain at work but
refuse to perform duties assigned to him or refuse to perform them in a manner
consistent with his duty as an employee. In most of such cases the employees who
subjected themselves to discipline were not found to be strikers at all. In some of
.such cases, the employees involved continued to perform a portion of their services,
for which they apparently expected full compensation.22 Underlying the policy
.enunciated in many of these cases is the basic moral concept that no one should be
permitted to enrich himself wrongfully at the expense of another. But in the case at
hand the employees, paid on an hourly basis, would receive no compensation for the
time that they were out on weekend strikes. I do not believe that any will dispute
that the work stoppages here involved resulted in no unjust enrichment. But, the
Respondent contends, the conduct of its employees who devised to work 5 days a
week and to be off for 2 days amounted to insubordination, and it cites a number of
cases in support of its contention. In practically all of the cited cases, however, the
-interruptions in work or the refusal to do the work assigned was found not to be a
strike as that term is customarily understood and the employees did not purport to
.be out on strike.
In C. G. Conn, Ltd. v. N. L. R. B., 108 F. 2d 390 (C. A. 7), the employees de-
manded a higher rate of pay for overtime work and refused to work overtime if they
Aid not receive it; the employer discharged those who refused to sign a statement
that they would work overtime at the prevailing rate. At the time that this action
was taken the employees were not on strike. After quoting a definition of the term
"strike," the court found that the employees were not on strike-they "did not cease
work in consequence of such [labor] dispute."
In Home Beneficial Life Ins. Co., Inc. v. N. L. R. B., 159 F. 2d 280 (C. A. 4),
.employees who, among other duties, collected premiums at homes of policy holders
were required by rule of the employer to report in person to their offices each morn-
ing, Monday to Friday, to turn in their collections, make reports, and receive in-
structions. The union representing those employees sought a contract modification
of this reporting rule. The dispute was before the War Labor Board, which noti-
fied the union that, if a strike occurred, it would suspend action upon the dispute.
To avoid this consequence, the union decided to and did merely notify the employer
that the employees in one city would temporarily report only on Wednesday and
Thursday. At a conference on that Thursday the employer refused to modify its
-rule and announced that those who failed to report on Friday would be discharged.
Before this Thursday conference, the union had authorized a strike as of Friday if
agreement were not reached. Although some of the employees actually went on
strike that Friday, the union's attorney avoided the term in notifying the employer
,and made it appear merely that the employees were refusing to report according to
the rule. Some of the employees in fact worked on Friday but did not report accord-
ing to the rule. The employer discharged all. The court held that, when the strike
was terminated, those who in fact struck were entitled to reinstatement if their
positions had not been filled but that those who had worked on Friday without re-
porting were properly discharged.23 Thus, a distinction is drawn between cases
-where employees strike and those where the employees continue to work on their
own terms without striking. Is it to be said that the employees of the Respondent
were not in fact on strike because they limited their concerted work stoppage to
-weekends? Attempts to define "strike" are not too satisfactory. Thus, in the Conn
case, above, the court quoted the definition of "strike" given in an encyclopedia:
The term "strike" is applied commonly to a combined effort on the part of a
body of workmen employed by the same master to enforce a demand for
higher wages, shorter hours, or some other concession, by stopping work in a
22N L R. B v. Montgomery Ward & Co, 157 F. 2d 486 (C A 6) ; Home Beneficial
Life Ins. Co v. N L R B, 159 F. 2d 280 (C A. 4) ; N L. It. B v. Rockaway News Supply
Company, Inc., 197 F. 2d 111 (C. A. 2) ; affd. 345 U. S 71 (only one employee, of a num-
ber of the union members, refused to cross a picket line at another employer's plant and
there was a union agreement against work stoppages) , Elk Lumber Company, 91 NLRB
333 (slowdown).
22 See also N. L. R B v. Montgomery Ward & Co., 157 F. 2d 486 (C. A. 8), where em-
ployees continued to work on all except orders from a struck plant. Some of the cases
,cited by the Respondent are inapposite because they involve no concerted activity for the
mutual benefit;oftheemployees involved
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1827
body at a prearranged time, and refusing to resume work until the demanded
concession shall have been granted.
If the last clause stated a necessary element, no unsuccessful strike would be a
strike. But cases may be found where employees are held to have struck even
though they go out only temporarily with no real expectation of a concession before
they return to work 24
Of course, the fact that a work stoppage is called a strike does not necessarily
mean that it is a protected concerted activity under the Act. But, on the other hand,
the mere fact that the work stoppage is temporary does not mean that it is unpro-
tected. As the court said in N. L. R. B. v. Kennametal, Inc., 182 F. 2d 817 (C. A. 3) :
The language of the Act does not require and its purposes would not be served
by holding that dissatisfied workmen may receive its protection only if they
exert the maximum economic pressure and call a strike.25
The Respondent relies heavily on the case of United Automobile Workers, A. F.
of L. v. Wisconsin Employment Relations Board, 336 U. S. 245, where, in a 5 to 4
decision, the United States Supreme Court held that the State board's act of en-
joining intermittent and unannounced work stoppages during working hours or en-
gaging in other concerted effort to interfere with production except by leaving the
premises in an orderly manner for the purpose of going on strike did not conflict
with the Federal Act, because, the court stated, the conduct involved, to gain un-
stated ends, was neither protected nor proscribed by the Federal Act.26 The one
point of similarity between the facts in that case and the one at hand, at least until
the union utilized the device of the picket line, is that the stoppages were recurrent.
Here the Employer had notice of the Union's intent to engage in weekend strikes and
the strikers left the premises. Furthermore, the ends sought by the Union were
known. Although the Union here did not reiterate its demands constantly, the Re-
spondent knew what the Union's demands were on which a bargaining impasse had
been reached. There is no doubt that the purpose of the strikes was to gain those de-
mands or, at least, a further concession respecting them. The fact that on Sunday,
May 24, and Saturday, May 30, the Union interrupted its pattern of 2-day strikes in
order to provide requested transportation to meet special requirements of the public
hardly brings this case within the facts of the UAW case with respect to irregularity
and uncertainty, because in each instance the Respondent had advance notice of the
intent to work on those days, the purpose of working on those days was for the pub-
lic convenience, and the Respondent acquiesced by permitting the employees to work.
The Respondent does not contend that the picket lines, considered apart from the
entire course and pattern of the Union's activities, were unprotected concerted ac-
tivities. Rather, it points to them merely as aggravating the difficulties of operations
because of the added uncertainty created thereby. And it is the uncertainty created
by the Union's tactics and the disruptive effect on the Respondent's operations of
the repeated stoppages that is the basis of the Respondent's contention that the con-
certed activities involved should be held to be unprotected. Uncertainty as to
whether or not a strike will occur is not, in itself, a ground for holding a strike or
concerted work stoppage to be illegal. No language in the Act can be found that
affords any more warranty for holding that the work stoppages occasioned by the
picket lines were unprotected concerted activity than that a strike is unprotected.
Section 7 of the Act guarantees the right of employees to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual aid or protection. As
I interpret the decisions which hold that certain types of work stoppages are unpro-
tected, that result stems from the fact that the conduct is tainted by some form of
illegality or immorality, such as the sitdown strike (seizure of the employer's prem-
PAN L R. B v Buzza-Cardozo, 205 F 2d 889 (C A. 9), cert. denied 346 U. S 923 (1-
day protest strike) ; N. L R. B V. Southern Silk Mills, Inc., 209 F. 2d 155 (C. A. 6), enfg.
101 NLRB 1; N. L. R. B. v. J. I. Case Co, 198 F. 2d 919 (C. A. 8) (temporary work stop-
page in protest over discharge of union steward)
0 The court in this case distinguished its decision in N. L. R B v Condenser Corp., 128
F. 2d 67 (C A 3), cited by the Respondent in its brief, where the employees had accepted
an arrangement offered by their employer under which the discussion of their grievance
was postponed to the end of the working day and then walked out anyway, without wait-
ing until the appointed time In the Ifennannetal case, the court noted the absence of
the "promissory element" which was present in the Condenser case. See also N. L. R. B.
v. American Manufacturing Co., 106 F. 2d 61 (C. A. 2), affd. as mod. in 309 U. S. 629.
= Cf. Automobile Workers Union, CIO v. O'Brien, 339 U. S. 454.
1828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ises), strikes involving violence, slowdowns (involving an element of cheating),
breach of contract, and the like.27
The fact that such activity may be "protected" does not, of course, mean that the
Respondent is obliged to conform its own conduct to the desires of the Union. The
protection is merely that the employees shall not be discharged or otherwise dis-
criminated against because of their collective action. It does not mean that the em-
ployer must supinely abide the whims of the employees. It is well settled that, al-
though an employer may not discharge an economic striker, he may replace him at
any time before the striker makes an unconditional application for reinstatement.28
And where an employer finds that further operation would be uneconomical in the
prospect of recurrent work stoppages, he would be justified in ceasing to operate.29
Here, the Respondent, in suspending strikers, chose neither course. Rather, it chose
to disregard the concerted refusal to work and dealt with strikers as insubordinate
individual employees. The result was to impose exclusively on the individual opera-
tors who were scheduled to work on the days of the strike a penalty for the con-
certed action of all. This is precisely what is proscribed by the Act.30 That the
Respondent was a public utility required by its charter to give the best service pos-
sible to the public does not give the Respondent the privilege of disregarding the
rights of employees guaranteed by the Act. If Congress had deemed it advisable to,
make an exception of public utilities, the Act would have so provided.31 Further-
more, such reason for the Respondent's reluctance to take the initiative in suspending
operations instead of employees is specious in view of the fact that the suspension
of employees all but suspended operations completely anyway. If the Respondent
felt a need for certainty of future operations, it was at liberty to require the em-
ployees to remain on strike until the Union terminated it fully and gave assurance
of uninterrupted operations.32 Since the strikes were not per se illegal, the Respond-
ent was not justified in suspending employees for striking, and to the extent that it
did so, I find that it violated Section 8 (a) (1) and (3) of the Act.
However, although I have found the picket lines and the refusal of the employees
to cross them to be protected concerted activity, the Respondent did not impose
suspensions for failure to cross the picket line as such. This penalty was grounded
on the failure of employees to give assurance of continued performance. In view
of the pendency of the principal labor dispute concerning the contract, the un-
certainty of the Union's future intent with respect to use of work stoppages reason-
ably induced in the Respondent's mind, and the uncertainty concerning the Union's
true motivation in establishing the picket line-whether in fact merely to protest
the suspensions or to utilize a new device for continuing to exert pressure in support
of its economic demands-the Respondent appears to have been amply warranted
in requiring the employees to take a position with respect to whether they wished to
be strikers or workers 33 The fact that the request was directed to the individuals
reporting for work rather than to the Union does not, in my opinion, bring this case
within the decision of the Board in Paterson Steel ct Forge Company, 96 NLRB 129,
where the employer discharged returning strikers, who, although refusing to give
assurance of working beyond the remainder of the day, requested the employer to
speak with the union representative with respect to the period following that day.
In that case, unlike the situation in the present case, the employees were denied a
reasonable time in which to answer through their bargaining representative. Here,
17 An exception has been made in cases where employees have work tasks involving the
responsibility of taking reasonable precautions to protect the employer's physical plant
from foreseeable damage which might result from it sudden cessation of work Charles
Albrecht at al v . N L R B , 181 F. 2d 652 (C A 7) ; Marshall Car Wheel and Foundry
Co., 107 NLRB 314 The case at hand does not fall within this exception
3 "Although Section 13 provides, `Nothing in this Act shall be construed so as to inter-
fere with or impede or diminish in any way the right to strike,' it does not follow that an
employer, guilty of no act denounced by the statute, has lost the right to protect and con-
tinue his business by supplying places left vacant by strikers." N L R B v Mackay
Radio & Telegraph Co, 304 U. S. 333.
20International Shoe Company, 93 NLRB 907: Betts Cadillac Olds , Inc., 96 NLRB 268.
10 Marshall Car Wheel and Foundry Co, 105 NLRB 57, 107 NLRB 314.
3 See Amalgamated Association of Street, Electric Railway etc. v. N. L. R. B ., 340 U S.
383, footnotes 15, 16, 20-25
12 International Shoe Company, 93 NLRB 907.
3 International Shoe Company, supra ; and see Globe Wireless, Ltd., 88 NLRB 1262,
where the Board , although finding the discharge of strikers to be a violation of the Act,
recognized the right of an employer to put its employees to a choice of working or striking.
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1829
the Union apparently knew of the posted notice calling for individual assurance, and
had an opportunity to state its position , for on the very next day, June 13 , it wrote to
the Respondent expressing that position , as previously quoted herein . Had this
letter of the Union announced that the intermittent strike over the contract had
been abandoned, it might well be that the Respondent should have accepted the
Union 's statement in lieu of individual assurances . But the Union 's stated position
was not free of all ambiguity. After saying that the employees were-- willing to go
on shift at their scheduled times and to perform their jobs as they always have" (a
phrase in itself permitting the inference that they were willing to go on shift for 5
days a week, as had occurred before), the Union stated that "any such undertaking
on their part [to work] is in no way to be interpreted as a waiver of any rights these
men may have to engage or assist in activities for their mutual aid or protection."
In this language, it is not clear whether the Union is referring to concerted activities
in connection with the current dispute or only in connection with future disputes.
Of course , the Respondent 's request for assurance was not limited in form to the
pendency of the current dispute either, but, in view of the pendency of that dispute,
I would construe the language of each party as applying to the period that such
dispute was current. So I do not construe the Union's letter as necessarily announcing
an abandonment of the work stoppages so as to place it upon a par with an uncondi-
tional application for reinstatement of strikers. At this time the Respondent pre-
sumably received individual assurances when employees next reported for their
shifts, if it insisted upon having them , because it permitted the employees to work
until the following weekend when the next interruption of work occurred.
The Union's repetition, on June 20 and 21, of the device of interrupting operations
by means of picket lines gave appearance of being an attempt, in different form, to
exert pressure on the Respondent in support of the Union 's economic demands.
Although the pickets carried the same signs as they had on June 12 when protesting
the suspensions , the evidence as a whole indicates that the June 20 and 21 stoppages
occasioned by the picket lines were not divorced from the general dispute regarding
contract terms. I note that the minutes of the Union's meeting of June 19, when
the decision was made to picket on the following 2 days, make no mention that they
were to protest suspensions . In fact no reason at all was stated . Rutledge testified
that the Union had decided not to have any more of the weekend strikes, as such,
until the fact-finding board made its report, but he conceded that the executive
board was authorized to call out the picket line at any time during the 15-day sus-
pensions. And he admitted that the picket lines, although "primarily intended to
advertise our grievance [respecting the suspensions]" were also "to, in a round-about
way, put some pressure on the company [by stopping the service]," to "continue the
sustained pressure." It is likewise significant that after the picket lines were removed
on each of those days, no move was made by the operators to report for work. The
fact that the June 20 and 21 work stoppages fell on Saturday and Sunday also bring
these stoppages within the pattern of the original weekend strikes. The evidence
shows, too, that the stoppages on these days did not alone result from a refusal to
cross picket lines, for some of the busses were brought in by operators at the time
of the picket line although their shift-time had not expired. All such facts convince
me and I find that the June 20 and 21 work stoppages were primarily in support of
the Union's economic demands. But if the June 20 and 21 work stoppages were
entirely divorced from the economic strike, I can see no reason for saying that the
Respondent might not, even then, determine the future intent of the employees and
require them to decide whether they wished to be workers or strikers.
Unlike the penalties imposed earlier , the suspensions given by the Respondent on
and after June 21 were for the stated reason that the employees had failed to give
assurance of uninterrupted work . True, some were suspended for having given such
assurance and then having broken their promise, but that breach of promise was a
sufficient indication that their stated intentions gave no basis for future reliance. It
indicated that they chose to be strikers rather than workers,
A question may still remain as to whether or not the Respondent , in suspending
nonreporting employees, utilized the proper form of self help. If the Respondent
had, instead of giving definite 15-day suspensions, merely told the employees that
they should make their election to work uninterruptedly (in the absence of a new
and distinct labor dispute) or to remain on strike until they were ready to abandon
it, the Respondent' s position would be clearly justified. Although the word "sus-
pension" might to some people imply a penalty rather than merely a status, I be-
lieve that if motive and effect are considered , the suspensions for refusal to give
assurance of uninterrupted work appear less as a penalty than as a means of pro-
tecting the Respondent's interests. Is this conclusion affected by the fact that the
Respondent fixed a definite period of suspension for those who refused to give assur-
1830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance of uninterrupted performance-a period which might not have elapsed before
a complete termination of the installment strike either by an earlier settlement of
the labor dispute or by an abandonment of the cause of the strike by the Union?
If either of these events had occurred during the period of 15 days after the latest
suspensions , the question might be more than an academic one. But it does not
appear that the cause for the repeated strikes was abandoned or even suspended by
the Union in either of those ways within that period. The- fact that a majority of the
operators-those who had been suspended on June 7 and 8-returned to work on
June 22 and 23 cannot, in view of the prior conduct of the Union, be taken to, be
an abandonment of the cause underlying its work-stoppage tactics. That the Union,
did not decide to abandon the objective of the strike, to the Respondent's knowledge,
is indicated by the fact that, as late as June 26, a newspaper carried a story that the
Union declined to state whether or not new picket lines would be formed on that
weekend. Rutledge was quoted as saying that the Company did not announce its
plans and he saw no reason why the Union should announce its plans. So far as
the evidence shows, the uncertainty of work stoppages continued until agreement
was finally reached in mid-July. Hence, the 15-day suspension period expired before
abandonment of the cause of the intermittent strike. Accordingly I find no unfair
labor practice because of the Respondent 's act of suspending employees who refused
to give assurance of uninterrupted performance.
The employees, mostly maintenance and service employees, who were required
to be laid off because of curtailed service resulting from the 15-day suspensions are
not necessarily to be considered merely innocent bystanders who suffered as a con-
sequence of the unfair labor practices. The majority of them were strike supporters,
as appears from their actions on the first weekend of the strike.34 Their being at
work thereafter was not evidence of an abandonment by them of the purpose of
the strikes, since they were induced to report for work as a tactical move by the
Union to deprive the Respondent of a possible excuse for keeping operators from
working after the weekend strikes. But in any event, because of the uncertainty as
to how long the employees who were absent from work because of the strike on
June 6 and 7 would have remained out, following the announced suspensions, be-
cause of the strike or because of the suspensions , as discussed in the section entitled,
"The Remedy," below, I find the evidence inconclusive to prove that the employees
laid off for lack of work between June 7 and 22, were laid off as a consequence of
the unfair labor practice found.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent described in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce within the
Territory of Hawaii and between the Territory of Hawaii and the several States, and
such of them as have been found to constitute unfair labor practices tend to lead to-
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
As it has been found that the Respondent engaged in unfair labor practices by
suspending employees in punishment for engaging in concerted activities within the
meaning of the Act, it will be recommended that it cease and desist therefrom.
The circumstances of this case are unusual enough to require special consideration
of the question as to whether or not the customary affirmative remedy is here appro-
priate to effectuate the policies of the Act. Had the Union engaged in a continuous
strike, obviously the employees would have been entitled to no compensation for
the period they were out on strike. Instead, the employees tendered their services
for week days and on 2 days on weekends without abandoning the cause of the
strike. Although the Respondent was under no obligation to accept the tender in
the absence of an unconditional offer to return to work ( that is, an abandonment
of the objective of the strike), it did accept the tender for the 5 weekdays beginning
in the weeks of May 11 and May 18, and the 6 days in the week of May 25-30.
The Respondent's notice of May 26 clearly indicated that the 1-day suspension it
purposed to impose for future interruption of service by strikes was not to require
the strikers to remain on strike but was by way of reprisal and the selection of the
34 The General Counsel did not distinguish nonunion employees from union members in
this group . So far as appears , only one nonunion employee was involved.
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1831
day of suspension was to be fixed by the Respondent for its own operating con-
venience . As previously related, these suspensions were staggered on different days.
In no manner of viewing the Respondent 's action could it be taken to be an exercise
of its right to reject a tender of services for the duration of the labor dispute which
occasioned the strikes. On this state of the facts, I believe it would effectuate
the policies of the Act to require that the Respondent pay to the employees so af-
fected ( those named in Appendix A, sections 1 to 12 inclusive , attached to the com-
plaint ) the loss of pay suffered as a result of the 1-day suspensions , and I shall so
recommend.
On June 5, the Respondent gave notice of intent to suspend for 15 days employees
who failed thereafter to report for scheduled assignments . This suspension the
Respondent put into effect as of June 7 and 8 , immediately following the absence on
strike of the affected employees . As I have found that the Respondent imposed
these suspensions because the employees struck and because I have found that
this was an unfair labor practice, the Respondent should be required to cease and
desist therefrom . But under all the circumstances I am not convinced that an
affirmative remedy should be recommended . Although the Respondent was not
entitled to treat the strike as individual rather than protected concerted action, it
did have a right to reject a conditional tender of services. The difference between
what the Respondent did and what it should have done was largely a matter of
form under the circumstances involved. Two factors may be argued to make the
difference more than a matter of form: first, the suspensions were for a definite
period rather than an indefinite one running to the time when an unconditional offer
to return to work should be made; and second, only employees scheduled to work
were to be suspended although, presumably, other employees , not scheduled, were
supporting the strike . With respect to the first of these, I note that the Union chose
to strike in the face of the threatened suspensions and thereafter did not make an
unconditional offer to return to work. It did make a conditional one on June 8-
to return to work uninterruptedly if the suspensions were lifted and if the terms
of the expired contract were reinstated for 30 days. The first condition, that the
suspensions be lifted, was one which should have followed as a consequence of an
offer to return to uninterrupted work and does not, therefore , impair the Union's
offer; but the condition that the terms of the expired contract be reinstated , however
reasonable that condition may have been, was not a consequence that necessarily
should follow an offer to return to uninterrupted work. Therefore, that require-
ment made the Union's offer conditional . The second point, that all strikers rather
than just those employees scheduled to work should have been excluded from work
by the Respondent should not be given weight , for if this were found to be a deter-
mining factor the result would be to impose on the Respondent the burden of prov-
ing that those not scheduled to work were in fact strikers, a burden which the
Respondent might justifiably have been reluctant to assume 35 Furthermore , although
it is not unlikely that those who withheld their services , in strike , on June 6 and 7
would have returned to work on June 8 (but for the suspensions ) as they had done
on preceding Mondays, there is no evidence that they did in fact report for work
on June 8 even on a conditional basis; so it is not established beyond doubt that
they did not remain out on strike. Upon these considerations , I find that it would
not effectuate the policies of the Act to recommend back pay for the period of the
15-day suspensions and I shall not recommend any.
The Respondent 's commission of the unfair labor practices heretofore found do
not, in my opinion , suggest any danger of the commission in the future of other types
of unfair labor practices . Although the broad cease and desist order is generally
used in cases of violation of Section 8 (a) (3) of the Act, I believe that the Re-
spondent 's conduct here appears to have been motivated not by a purpose to flout
the provisions of the Act so much as by an effort to find a permissible means of
self help in unusual circumstances where no legal precedent existed to assist it.
It is not to be forgotten that the Respondent apparently had satisfactory relations
with the Union for a number of years before the incidents here involved and I am
aware of no prior unfair labor practice charges against it. Therefore , I shall not
recommend the broad cease and desist order.36
3 The Board 's decision in Marathon Electric Mfg . Corp., 106 NLRB 1171 ( in which the
Board held that members of the union were permissibly discharged although they were
absent from work for some reason other than striking when the strike in violation of con-
tract started ) was not rendered until September 29, 1953, sometime after the occurrence
of the incidents here.
36 See Western Can Company , 83 NLRB 489
1832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since I have found that the allegations of the complaint have not been sustained
with respect to the employees suspended for failure to give assurance of uninter-
rupted service and with respect to those laid off for lack of work during the period
of June 7 to 22 (paragraph VIII of the complaint ) 37 I shall recommend that the
complaint be dismissed with respect to them.
Upon the basis of the foregoing 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 suspending certain of its employees because they concertedly engaged in
work stoppages the Respondent discriminated in regard to the hire and tenure of
'employment of employees (including those named in the appendix attached hereto),
thereby discouraging membership in the Union, in contravention to the provisions
,of Section 8 (a) (3) of the Act.
3. By the conduct aforesaid the Respondent has interfered with , restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, in contravention to the provisions of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Although this paragraph of the complaint was not limited to the period stated, Gen-
eral Counsel ' s Exhibit No. 25 indicates that this was the period intended to be covered.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Transit Workers Union of Hawaii,
Independent , or in any other labor organization, by suspending any of our
employees for striking or engaging in a concerted work stoppage, or in any
other manner discriminating in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of the right to self-organization , to form labor
organizations , to join or assist any labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid or protec-
tion , or to refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a labor organ-
ization as a condition of employment as authorized in Section 8 (a) (3) of
said Act.
WE WILL make whole , for any loss of pay suffered on the respective dates
.of the discrimination herebelow shown, the following-named employees:
(1) Those suspended on June 2, 1953, for 1 day:
Bell, K. Jones , E. Mapa, W.
Book , C. Martin, D.
Buckley, P. Kaaloa, E. Miner, J.
Kekiwi , B. Moriwaki, M.
Camara, G. Kim, S. M.
Klein , P. Nagano, M.
Flores, E. Koa, D.
Freitas, G. Komata , M. Pieper, M.
Haraguchi, T. Labor , M. Shiroma, B.
Higa, C. Leong, B. Souza, J. B.
Hindemith , P. Lopez, N.
Honda, H. Lyman, W. Tappen, M.
HONOLULU RAPID TRANSIT COMPANY, LIMITED 1833•
(2) Those suspended on June 3, 1953, for 1 day:
Ahuna, R. Hirayama, M. Nakashima, H.
Alapai, J. Hirayasu, R.
Hookala, D. Peralta, R.
Camarao, F.
Carter, H. Isobe, W. Racines, L.
Castello, J. Kai, R.
Kainoa R
aino
Sakurai, N.
Downey, T. , . Seda, M.K i I. Shimizu, K.
Fraga, J. Lung, R. Stewart, W.
Gonsalves, A. Maki, R.
Makakoa, J.
Molina, M.
(3) Those suspended on June 4 , 1953, for 1 day:
Alfonso, A. Izawa, T. Nahooikaika, J.
Alvarez, D.
Kaya, M. Pater, P.
Boskie, M . Keaukulani, G.
Kuahine, S. Spencer, W.
Corriea, C.
Laboy, F. Watanabe, M.
Downey, S. Williams, E.
Dutro, B. Makaawaawa, S. Wong, J.
Makii, M.
Hatori , H. Meguro, M. Yoshimura, I.
Mina, A.
Iha, G. Mukawa, S.
(4) Those suspended on June 5 , 1953, for I day:
Ah Sing, J. Hattori, H. Shigekane, A.
Ah Yo, O. Holokahi, J. Siders, C.
Anduha, M. Hoopii, W. Spencer, D.
Sumandal, E.
Burke, S. Inn, E.
Taira, K.
Cup Choy, R. Ledward, R. Takeuchi, M.
Copelan, J. Liu, G.
Uno, D.
De Conte, G. Moe, W.
Morinaga, M. Vierra, E.
Espiritu, E. Villanova, J.
Oshima, I.
Furushima, T. Wakakua, F.
Paakaula, D.
Gonsalves, D. Pedro, P.
(5) Those suspended on June 7, 1953, for 1 day:
Akee, L. Kahalehau, C. Naki, A.
Kalei, W.
Cheong, W. Kamai, E. Richardson, O.
Contrades, A. Kepaa, J. Robello, V.
Kepaa, R.
Dunston , J. Kim, Stanley Simmons, J.
Gaud, W.
Koga, G. Switzer, R.
Gonsalves, Jos. Leong, A. Tamayoshi, I.
Goya, K. Lewis, H.
Griep, M. Lua, G. Vanderford, W.
Hiram , D. Makuakane, G.
Velardo, B.
Hoomana, J. Matsuda, G. Watson, J.
Meguro, N.
Idouchi, T. Miranfuentes, P. Yabiku, T.
Mitsutomi, T. Yoshikawa, H.
Moreira, G.
Muller, C.
1834 DECISIONS OF NATIONAL LABOR RELATIONS
(6) Those suspended on June 8 , 1953, for 1 day:
Aihara, A. Takeuchi, S.
Hirano, E.
Kashiwa, I.
Miyasato, J.
Sumida, A.
Temashiro, M.
Teruya, T.
Tuando, F.
Wahinehookae, C.
Waipa, J.
BOARD
(7) Suspended on June 12 , 1953 , for 1 day:
R. Okubo
'(8) Suspended on June 16 , 1953 , for 1 day:
J. Smith
•(9) Suspended on June 17 , 1953 , for 1 day:
W. Kam
(10) Suspended on June 18 , 1953 , for 1 day:
I. Kekuewa
(11) Suspended on June 19, 1953, for 1 day:
N. Kekoolani
(12) Suspended on June 23 , 1953, for 1 day:
C. Jamile
HONOLULU RAPID TRANSIT COMPANY , LIMITED,
Employer.
Dated---------------- By----------------------= -----------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced, or covered by any other material.
,CASA GRANDE COTTON OIL MILL and UNITED PACKINGHOUSE WORKERS
OF AMERICA , CIO. Case No. 21-CA-1897 . December 16, 1954
Decision and Order
On July 14, 1954, Trial Examiner Maurice M. Miller issued his
Intermediate Report in this proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended that such allegations be dismissed.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a brief in support of the exceptions; the Respondent filed
a brief in support of the Intermediate Report.'
I The Respondent's request for oral argument is hereby denied as the record and the ex-
ceptions and briefs, in our opinion, adequately present the issues and the positions of the
parties.
110 NLRB No. 236. -1