Long Transportation Co.

National Labor Relations Board - Board Decisions

Jun 16, 1971

191 N.L.R.B. 202 (N.L.R.B. 1971)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Long Transportation Company and Charles J. Egen-
lauf. Case 6-CA-5100
June 16, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On Feburary 12, 1971, Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled pro-
ceeding, finding that 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 at-
tached Trial Examiner's Decision. Thereafter, Re-
spondent filed exceptions to the Trial Examiner's Deci-
sion together with a brief, and the General Counsel
filed a brief in answer to Respondent's exceptions. The
General Counsel also filed limited cross-exceptions to
the Trial Examiner's Decision supported by a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner' as modified herein.
Respondent contends, inter alia, that the conditions
set forth in the duration and retroactivity provisions of
its bargaining agreement had been satisfied and that the
agreement, therefore, did not terminate on its stated
expiration date of March 31, 1970, but instead con-
tinued in full force and effect until a new agreement had
been reached the following June. Based thereon, Re-
spondent further contends that the agreement's no-
strike clause also was in force during that interval when
Egenlauf, and others, participated in an unauthorized
strike in violation of that clause and, therefore, Egen-
lauf was subject to discharge for engaging in an un-
protected activity. We do not agree.
Respondent has not adduced, and the record does
not otherwise contain, affirmative evidence necessary to
a showing either that the duration and retroactivity
provisions of the foregoing agreement had become op-
erative, or that the agreement had been otherwise ex-
tended beyond its stated termination date. Moreover,
the existence of an extension cannot be assumed even
if, during the period of contractual hiatus, the parties
negotiated and subsequently executed an agreement
containing retroactive provisions.
We find, therefore, that the bargaining agreement
was not extended beyond its stated expiration date of
March 31, 1970, when it terminated, that the no-strike
clause thereof, together with the arbitration provisions
as they affect Egenlauf, also expired along with the
agreement,' and that, by participating in the strike
subsequent to the termination of the agreement, Egen-
lauf had engaged in an activity protected by Section 7
of the Act. We further find, in agreement with the Trial
Examiner, that his discharge therefor violated Section
8(a)(3) and (1) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Long Transportation Company, its officers,
agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's recommended Order.
See Marathon Electric Mfg. Corp., 106 NLRB 1171,1179-80, affd sub
nom. United Electric Radio and Machine Workers of America, Local 1113
v. N.L.R.B., 223 F.2d 338 (C.A D C.); Southwestern Wholesale Grocery
Company, 92 NLRB 1485, 1486-87; The Hilton-Davis Chemical Company,
Division of Sterling Drug; Inc., 185 NLRB No. 58
Chairman Miller would affirm the Trial Examiner and adopt all of his
findings, conclusions, and recommendations. For the reasons stated by the
Trial Examiner, he finds it unnecessary to reach the contractual issue which
his colleagues have seen fit to decide.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon a charge duly
filed on July 13, 1970, by Charles J. Egenlauf, an individual,
the General Counsel of the National Labor Relations Board,
herein referred to as the General Counsel' and the Board,
respectively, by the Regional Director for Region 6, Pitts-
burgh, Pennsylvania, issued its complaint dated September
29, 1970, against Long Transportation Company, hereinafter
referred to as the Respondent.
The complaint alleged that Respondent had engaged in and
was engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the Labor Management Relations Act, 1947, as
amended, herein referred to as the Act.
Respondent duly filed its answer admitting certain allega-
tions of the complaint but denying the commission of any
unfair labor practices.
Pursuant to notice a hearing thereon was held before me
in Pittsburgh, Pennsylvania, on November 24, 1970. All par-
ties appeared at the hearing, were represented by counsel, and
were afforded full opportunity to be heard, to produce and
cross-examine witnesses, and to introduce evidence material
and pertinent to the issues. At the conclusion of the hearing
' As the exceptions, briefs, and the entire record in this case adequately
present the issues and positions of the parties, Respondent's request for oral
argument is denied.
This term specifically includes the attorney appearing for the General
Counsel at the hearing.
191 NLRB No. 22
LONG TRANSPORTATION COMPANY 203
oral argument was waived . Briefs were received from Re-
spondent and General Counsel on December 30, 1970.
Upon the entire record in the case and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I there-
fore find: Long Transportation Company, a Michigan corpo-
ration with its principal office in Detroit, Michigan, is now,
and has been at all times material herein, engaged as a motor
carrier in the business of transporting goods throughout the
various States of the United States, including the Common-
wealth of Pennsylvania, under certificate of public conven-
ience and necessity issued to it by the Interstate Commerce
Commission. During the 12-month period immediately
preceding the issuance of the complaint herein, Respondent
received in excess of $500,000 in connection with services
performed in transporting goods across state lines.
Accordingly, I find that Respondent is now, and has been
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE UNIONS INVOLVED
Fraternal Association of Special Haulers,' herein called
FASH, and International Brotherhood of Teamsters are la-
bor organizations admitting to membership employees of Re-
spondent.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Respondent's principal office is in Detroit, Michigan. It is
a motor carrier engaged in the interstate shipment of goods
operating through 11 terminals located throughout the coun-
try at which it employs a total of between 150 and 170 drivers.
Each of these 11 terminals and the drivers stationed thereat
is under the immediate supervision and direction of a termi-
nal manager who reports directly to S. J. Clough, assistant to
the executive vice president in Detroit. Respondent maintains
a terminal at McKees Rocks, Pennsylvania, where 19 truck-
drivers are employed under the supervision of Terminal
Manager Ron Reinerth.
Respondent is a constituent member of a trade association
and, as such, a party to the National Master Freight Agree-
ment and the National Iron and Steel and Special Com-
modity Supplemental Agreement with the International
Brotherhood of Teamsters. The Master Agreement in effect
as of March 1970,' contained article 37 on "Duration" which
reads as follows:
Section 1. This Agreement shall be in full force and
effect from April 1, 1967, to and including March 31,
1970, and shall continue from year to year thereafter
unless written notice of desire to cancel or terminate
the Agreement is served by either party upon the other
at least sixty (60) days prior to date of expiration.
I Although Respondent argues in its brief that FASH is not a labor
organization, the evidence here proves that FASH is an organization in
which employees participate for the purpose of dealing with employers
concerning hours, wages , conditions of employment, etc.
In fact in Western Pennsylvania Motor Carriers Association, Inc., Case
6-RC-5244 decided December 21, 1970, 187 NLRB No. 45, the Board
decided some 40-odd petitions filed by FASH holding the units requested
were inappropriate.
' All dates herein are in the year 1970 unless otherwise specified.
Section 2. Where no such cancellation or termination
notice is served and the parties desire to continue said
Agreement but also desire to negotiate changes or
revisions in this Agreement, either party may serve
upon the other a notice at least sixty (60) days prior
to March 31, 1970, or March 31st of any subsequent
contract year, advising that such party desires to re-
vise or change terms or conditions of such Agreement.
Section 3. Revisions agreed upon or ordered shall be
effective as of April 1, 1970, or April 1st of any subse-
quent contract year. The respective parties shall be
permitted all legal or economic recourse to support
their requests for revisions if the parties fail to agree
thereon.
Section 4. In the event of an inadvertent failure by
either party to give the notice set forth in Sections 1
and 2 of this Article, such party may give such notice
at any time prior to the termination or automatic
renewal date of this Agreement. If a notice is given in
accordance with the provisions of this Section, the
expiration date of this Agreement shall be the sixty-
first (61st) day following such notice.
As of April 1, the various trade associations and the Team-
sters were still in negotiations for changes to be incorporated
into the succeeding agreement . In this record there is no
evidence in regard to how the 1970 negotiations came into
being, whether by notice to cancel or by notice to negotiate
changes.
However, in January 1970 the Fraternal Association of
Special Haulers (FASH) had filed with the Board petitions
for certification in some 200 different units of drivers. FASH
petitioned for certification in Case 6-RC-5349 to represent
Respondent's drivers at Respondent's McKees Rocks termi-
nal and in Case 6-RC-5346 for certification as the reprsenta-
tive of all Respondent's drivers at all Respondent's terminals.
On April 2, all Respondent's drivers at Respondent's
McKees Rock terminal ceased work -despite the efforts of
Respondent to keep the terminal operating.
Among Respondent's drivers who ceased work on April 2
was Charles J. Egenlauf. Egenlauf had been employed by
Respondent continuously as a truckdriver from the date of
his hire on August 7, 1969. In April 1970, Egenlauf joined
both Teamsters Local 261 and FASH.
After the work stoppage began, Respondent through Rein-
erth did its best to get the drivers to return to work. Reinerth
had the terminal dispatcher telephone all the drivers to come
back to work while Reinerth himself would urge individual
drivers to return when they congregated during the work
stoppage at the terminal. Reinerth unsuccessfully spoke to
Egenlauf in the same'vein . However, Reinerth was so unsuc-
cessful in his efforts that he placed ads in newspapers for
drivers from which he did succeed in hiring a few drivers.
Throughout the whole period Respondent did everything in
its power to keep in operation. At best it was only partially
successful.
During this period Clough instructed Reinerth that he was
to reinstate without question any driver who returned to
work before June 1 , 1970.° Under ordinary circumstances
Reinerth had authority to hire drivers as business required.
Such drivers were then sent with a load to Detroit where final
determination as to their hire was made.
' Respondent's brief indicates that this period of grace had been nego-
tiated with the Teamsters Union. But the evidence produced here only
indicates that apparently on its own Respondent extended this period of
grace to May 31, 1970.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to June 1 the McKees Rocks drivers held a meeting
and determined to return to work . Most of them did so.
Egenlauf remained out.
On May 12 a meeting of FASH attended by some 400
drivers was held in the Elks Hall on the northside of Pitts-
burgh . As the meeting broke up a J & L Steel Haulers truck
was disabled in front of the meeting hall. Tires had been
slashed and the tractor was on fire. A picture of the disabled
truck appeared in the newspaper . The picture included three
members of FASH including Egenlau f. The undisputed evi-
dence is that Egenlauf and the two others in the picture had
been busily engaged in putting out the fire and had nothing
to do with the vandalizing of the truck.
On May 12 also, Reinerth by telephone reported to Clough
the incident of the J & L truck in front of the FASH meeting
place, and the fact that Egenlauf had burned his Teamsters
card on television and that Egenlauf had been active in urging
the truckdrivers not to return to work.
Under date of May 12, 1970 , and over the signature of S.
J. Clough , Respondent sent the following letter to Egenlauf:
In view of your recent public denunciation [sic] of mem-
bership with the International Brotherhood of Team-
sters, please be advised that LONG TRANSPORTA-
TION COMPANY , as a party to the contract with the
International Brotherhood of Teamsters , can no longer
consider you as an employee.
You are hereby notified that you employment with
LONG TRANSPORTATION COMPANY is ter-
minated effective May 12, 1970.
Although on or before May 31 most , if not all, of the
Respondent's drivers had returned to work, Egenlauf did not.
On or about June 1 he did report to Reinerth and asked about
his job with Respondent . Reinerth told Egenlauf that he
would have to telephone Clough in Detroit. However, Egen-
lauf was unable to reach Clough as requested by Reinerth.
Sometime in early July Egenlauf again tried to contact
Reinerth in McKees Rocks but Reinerth would not speak to
him. About the middle of July Egenlauf saw Reinerth and
asked if he had heard anything about Egenlauf's getting his
job back . Reinerth again told Egenlauf that he would have to
call Detroit . Egenlauf was unsuccessful in his effort to contact
Clough in Detroit.
. On July 13 Egenlauf filed a charge alleging discrimination
in employment against Respondent.
Under date of October 1 and over the signature of S. J.
Clough , Respondent sent Egenlauf the following letter:
If [sic] you are undoubtedly aware, our company has
attempted for a considerable period of time to have you
return to work even though you were engaged in an
illegal and unauthorized work stoppage.
It has recently come to our attention through the Na-
tional Labor Relations Board that you may desire to
return to the employ of Long Transportation Co. If you
desire reemployment with the company please visit Mr.
Ronald Reinerth no later than Tuesday, October 6,
wherein we may make arrangements to consummate this
situation.
As Egenlauf was out of town, his wife wrote the following
letter to Respondent on October 5:
In answer to your letter received on October 5, 1970,
Mr. Egenlauf is out of town at the time your letter came,
but is expected in by October 6, 1970 . He is definitely
interested in your offer of reemployment with the com-
pany and will get in touch with Mr . Ronald Reinerth, as
instructed in your letter, as soon as he comes in.
I called Mr. Reinerth on the phone and informed him
Mr. Egenlauf will be in.
On October 6 Egenlauf reported to Reinerth and asked
what was going on. Reinerth inquired if Egenlauf was ready
to go to work . Egenlauf answered that he was ready to return
to work on suitable notice so that he could notify his then
employer . Egenlauf inquired when Reinerth wanted him to
report for work and Reinerth answered that he would contact
Detroit and let Egenlauf know.
Although Reinerth did not thereafter get in touch with
Egenlauf, Clough wrote Egenlauf on October 22 as follows:
Reference is made to my letter of October 5 [sic], 1970
wherein an offer of re-employment was made to you with
an existing job at that time. Subsequent to my conversa-
tions with Mr . Reinerth on October 7th it is my under-
standing that you did not desire to work for Long Trans-
portation Company , therefore any and all rights of
re-employment you may have had have now been ter-
minated as the result of your not making yourself availa-
ble as a qualified employee of Long Transportation Com-
pany.
Under date of October 26 Egenlauf answered as follows:
On receipt of your letter dated October 22 , I wish to
inform you that any information you received from Mr.
Reinerth stating that I did not desire reemployment with
Long Transportation is incorrect.
I went to the office in McKees Rocks to see Mr. Reinerth
on October 6, as instructed in your letter of October 1,
and at that time I told Mr . Reinerth I would be prepared
to return to work and asked if he would give me a date
when I could return to work so that I could notify my
present employer. Mr. Reinerth stated he would notify
the Detroit office. He gave me no other instructions as
to when I would return to work.
Please be advised that at no time have I been asked to
report to work and I have not at any time refused to do
so.
No reply has been forthcoming from Respondent since that
time. Egenlauf has not since been reinstated.
B. Conclusions
After an argument of many facets, Respondent states in the
"Conclusion " section of its brief:
The General Counsel has failed to meet its evidentiary
burden of proof by failing to present substantial evidence
that Long Transportation Company committed any un-
fair labor practice violative of Section 8(a)(1) and (3) of
the Act.
General Counsel has not proven by a preponderance
of the evidence that Charles Egenlauf has been in any
way deprived of the free exercise of his Section 7 rights
nor that his termination has in any way encouraged or
discouraged union membership such as to be discrimina-
tory.,
Unfortunately the undisputed facts of the instant case pre-
vent me from concurring therein . These facts prove:
On May 12, 1970 , while most of Respondent's drivers
attached to its McKees Rocks terminal were withholding
their services from Respondent despite Respondent's best
efforts to get them to return to work , Terminal Manager
Ronald Reinerth reported by telephone to Stanley J. Clough,
executive vice president in charge of terminals and terminal
personnel , that Charles Egenlauf, one of Respondent's em-
ployees engaged in the strike , had that day attended a meeting
of FASH, a labor organization of special haulers which had
in January filed some 200 R petitions with the Board, was
instrumental in keeping many of Respondent 's striking em-
ployees from returning to work , and had burned his Team-
sters union card on television.
LONG TRANSPORTATION COMPANY 205
Admittedly as a result of this telephonic report , Clough
that same day sent Egenlauf the following letter:
In view of your recent public denunciation [sic] of mem-
bership with the International Brotherhood of Team-
sters, please be advised that LONG TRANSPORTA-
TION COMPANY , as a party to the contract with the
International Brotherhood of Teamsters , can no longer
consider you as an employee.
You are hereby notified that your employment with
LONG TRANSPORTATION COMPANY is ter-
minated effective May 12, 1970.
Despite Respondent's argument to the contrary , the only
conclusion Egenlauf, the striking employee-or this Trial
Examiner-can draw from the terminology of Clough's
above letter is that Respondent had terminated Egenlauf's
employment, discharged and/or fired him as of May 12 be-
cause of his "recent public denunciation [sic] of membership
with the International Brotherhood of Teamsters." The
phraseology of Clough 's letter alone proves that Respondent
intended to encourage membership in the Teamsters and to
discourage membership in FASH , the organization appar-
ently responsible for the then strike. Discharging an em-
ployee for being a member of the employer 's disfavored union
and not of the employer 's favored union is the very most
rudimentary kind of discrimination covered by Section
8(a)(1) and (3) of the Act.
In addition the testimony and the admissions contained in
Respondent's brief indicate that, although not specifically
mentioned in Clough 's letter, the other matters reported to
Clough by Reinerth also played a significant role in Respond-
ent's determination to dismiss Egenlauf.
Page 3 of Respondent 's brief contains the following:
Not only did Complainant [Egenlauf] take part in a
wildcat strike and refuse to take advantage of the rein-
statement offer of the Respondent but he actively en-
couraged the employees to engage in the illegal stoppage
and actively discouraged the striking wildcatters from
returning to work In an attempt to "jar" Complainant
into returning to work and hopefully "break the back"
of the illegal stoppage a termination letter dated May 12,
1970, was mailed to Complainant. The intent of said
letter as clearly and unequivocally testified to was to get
Complainant and the other wildcatters to return to
work. [Emphasis supplied.]
In the next paragraph of Respondent 's brief Egenlauf is
referred to as "one of the leaders of the unauthorized work
stoppage."
Then as though to fully affirm the finding above made
Respondent on page 16 of its brief writes as follows:
The wildcat strike activity was very injurious to Re-
spondent's business operations . Every effort was made to
induce the striking employees to return to work . Pursu-
ant to its desire to maintain relations with the Teamsters
Union and reverse the prospects of significant financial
loss Respondent , through Mr . Clough , instructed Mr.
Reinerth to openly and automatically reinstate all em-
ployees who return to the job prior to June 1, 1970. All
employees who returned to work by the above-men-
tioned deadline were reinstated automatically . [Empha-
sis supplied.]
Obviously , therefore , Respondent dismissed Egenlauf on
May 12 , 1970 , by its own admission , in order to encourage
membership in the Teamsters and to discourage membership
in FASH whose strike was threatening Respondent with
financial loss as well as in order for Respondent "to maintain
relations with the Teamsters." This thus creates a rather
unassailable case of a violation of Section 8(a)(1) and (3).
Respondent's argument to the contrary is premised upon
the assumption that the Teamsters Master Contract which
had an expiration date of March 31, 1970 , remained in full
force and effect throughout all the time material here. At the
hearing counsel for Respondent stated that Teamsters and
the trade association of which Respondent was a constituent
part had executed a "retroactivity agreement" while continu-
ing negotiations of a Master Agreement which was to succeed
the 1967-70 Master Agreement . However by letter after the
conclusion of the hearing counsel informed the Trial Exam-
iner and the parties that no such "retroactivity agreement"
had in fact been executed but that section 37 of the 1967-70
Master Agreement , quoted supra, was the "retroactivity
agreement" to which he had referred .' The instant record
fails to disclose when the parties succeeded in agreeing upon
and executing the Master Agreement which succeeded the
one expiring on March 31, 1970 . However there was a hiatus
between the 1967-70 Master Agreement and the succeeding
Agreement which extended at least until June 1, 1970.
Despite this hiatus Respondent contends that by its terms
the 1967-70 Master Agreement continued in full force and
effect during all times material here . Legally this is a very
debatable proposition which , fortunately, under the facts of
this case need not be determined here. The cases on the point
indicate that certain portions of such collective agreement
appear to continue in effect during the hiatus whereas other
portions of such agreements do not . Among those which do
not continue through the hiatus would appear to be both the
arbitration and the union -security clauses.6
The May 12 discharge letter to Egenlauf implies that his
"denunciation" of the Teamsters (burning his Teamsters card
on television) required Respondent to terminate him under
the terms of the Master Agreement . There is no showing here
that the Teamsters Union ever revoked Egenlauf s member-
ship, accepted his resignation therefrom or, in fact, ever made
a move to request his dismissal under the union -security
provisions of that Agreement. Respondent apparently acted
unilaterally in this regard . The retention or revocation of
union membership by statute is a matter of internal union
concern and of no moment or concern to the employer.
Hence, even if the Master Agreement continued in effect,
Egenlauf's discharge is not justified by that Agreement.
At the hearing Respondent appeared to abandon this
"denunciation" theory in favor of the theory expounded by
Clough at the hearing as follows:
A. He has never presented himself as a qualified em-
ployee, by virtue of not being a member in good standing
of the Teamsters.
Q. [Mr. Leavitt] Has he ever to your knowledge pre-
sented himself and said I am here to work?
A. He has not, as a qualified employee.
TRIAL EXAMINER: By qualified, you mean that he is
disqualified because of the fact he is not a member of the
Teamsters in good standing?
THE WITNESS : In good standing at this particular
point.
Factually this theory is also erroneous in that the undis-
puted facts are that at the time of his receipt of the May 12
dismissal letter Egenlauf was a fully paid -up member of the
Teamsters Union in good standing. His dues were fully paid
up until May 31, 1970 . Hence as of the date that the Respond-
ent discharged him on May 12 Egenlauf was a fully paid-up
s I hereby order that Respondent 's letter to be dated December 1, 1970,
be marked as TX Exh 1 and Respondent 's letter of December 4 , 1970, be
marked as TX Exh . 2 and both admitted m evidence.
6 See The Hilton-Davis Chemical Company, Division of Sterling Drug
Inc., 185 NLRB No. 58, and cases there cited.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member of the Teamsters Union in good standing .' So even
if the Master Agreement remained in full force and effect
Respondent had no right to discharge Egenlauf on May 12
for the reason given . If Egenlauf became delinquent there-
after the fault lies with Respondent due to the dismissal letter.
Respondent's brief, still based upon this same assumption
that the 1967-70 Master Agreement remained in full force
and effect after March 31, 1970, refers to Egenlauf and the
other drivers who were withholding their services from Re-
spondent on and after April 2 as "wildcatters" engaged in a
"wildcat strike" and in "unprotected activities" and hence
subject to dismissal.
However when FASH filed its 200 R petitions in January
1970 a "real question concerning representation " arose. The
contending parties were the Teamsters Union and FASH.
The 1967-70 Teamsters Master Agreement would have been
no bar to a representation election between the two labor
organizations , FASH and the Teamsters. Under the Midwest
Piping doctrine' the existence of this "real question concern-
ing representation" may well have made it an unfair labor
practice and a violation of Section '8(a)(5) and (1) for the
Teamsters and the Trade Association of which Respondent
was a member to continue their negotiations until that ques-
tion of representation had been determined by the Board.
Under these conditions and with the 1967-70 Master Agree-
ment having expired by its terms on March 31, Respondent's
drivers may well have been engaged in a protected union
activity in withholding their services from Respondent and in
expressing their approval of FASH in that fashion. However
that is another legal question which need not be decided here.
This question need not be decided here for the simple
reason that, except for Egenlauf , Respondent reinstated all
such alleged "wildcat strikers ," engaging in such alleged "un-
protected activities" without question. In fact the record
shows that Clough gave orders to all terminal managers that
all such "wildcat striking" drivers be reinstated by Respond-
ent "without question" if they returned to work prior to May
31, 1970. Thus it appears that Respondent condoned any and
all such misconduct by its striking drivers-except for Egen-
lauf. It is worth noting here that by the aforesaid instructions
to his terminal managers Egenlauf unilaterally disregarded,
changed, amended, or rewrote the terms of the 1967-70
Master Agreementunder which Respondent is here purport-
ing to have acted. The brief implies that such amendment was
negotiated with the Teamsters but there is no evidence to that
effect in the instant record.
Respondent's brief also states, "complainant [Englauf] was
treated no differently than the other striking employees of
Respondent." This factually is inaccurate as,Egenlauf was the
only such striking employee who received a dismissal letter
such as the May 12 letter. This dismissal occurred during the
period when Clough',s instructions to his terminal managers
to reinstate all striking drivers "without question" was still in
effect. Despite the existence of these instructions from
Clough, Clough himself discharged Egenlauf on May 12 by
letter because, as both the testimony and the brief prove,
Egenlauf was considered to be a leader of the striking em-
ployees, a member of FASH and instrumental in preventing
the other strikers from returning to work; and because Re-
spondent desired "to maintain relations with the Teamsters
Union." Hence, Egenlauf was the only "wildcat striker" en-
Furthermore there is always a period of grace in which dues may be
delinquent without loss of membership. This record does not show what that
period was in the Teamsters Union.
9 63 NLRB 1060.
gaged in alleged "unprotected activities ," whose participation
therein was not condoned by Respondent.
The phraseology of the May 12 letter to Egenlauf is such
that it can only be interpreted as a letter of discharge. Despite
this Respondent in its brief says:
In an attempt to "jar" Complainant into returning to
work and hopefully "break the back" of the illegal stop-
page a termination letter dated May 12, 1970, was
mailed to Complainant . The intent of said letter as
clearly and unequivocally testified to was to get Com-
plainant and the other wildcatters to return to work.
It is true that Clough so testified . His testimony on the
point is refuted by the terminology of the letter itself. Fur-
thermore, Egenlauf was entitled, if not required, to under-
stand the verbage of that letter as Respondent chose to write
it-not as Respondent subsequently chose to subjectively in-
terpret it . Egenlauf was no mindreader . Nor was he required
to be.
However, the above quotation from Respondent's brief
constitutes an admission by Respondent that the letter of
May 12 was intended to "jar" Egenlauf into returning to
work (contrary to the terminology of that letter) and hope-
fully "break the back" of the illegal stoppage. Thus it is clear,
according to Respondent's testimony and brief, that one rea-
son Egenlauf was sent his dismissal letter of May 12 was to
make him return to the Teamsters Union and to force the
other striking employees into deserting FASH and also re-
turning to work as members of the Teamsters Union so that
Respondent could satisfy "its desire to maintain relations
with the Teamsters Union."
Under all the facts of the instant case, I am convinced and,
therefore, find that Respondent discharged Charles J. Egen-
lauf on May 12, 1970, because it knew he was a member of
a labor organization known as FASH and was a leader of that
labor organization and instrumental in keeping others of Re-
spondent's drivers from returning to work under a Teamsters
agreement and in order to encourage membership in the
Teamsters Union and to discourage membership in FASH in
violation of Section 8(a)(1) and (3) of the Act.
It is at this point that Respondent 's argument that Egen-
lauf had failed to present himself for work as a"qualified„"
i.e., a fully paid-up member of the Teamsters Union in good
standing, driver comes into play, if at all. On May 12, when
he was discharged , Egenlauf was withholding his services
from Respondent or striking in support of FASH. While he
remained on strike , Egenlauf is , of course, not entitled to
reinstatement and backpay.
According to the evidence here, Clough had unilaterally
set a period ending on May 31 during which all striking
drivers were to be reinstated by Respondent "without ques-
tion." The evidence indicates that all drivers who presented
themselves for work-and all or most of them except Egen-
lauf did-on or before May 31 were in fact reinstated "with-
out question." Thereby Respondent condoned the strikers for
both membership in FASH and/or striking in sympathy with
FASH.
Egenlauf, however, proved to be a unique case: He was the
only striker whom Respondent had discrminatorily dis-
charged during the strike. Egenlauf being an ordinary human
without, so far as this record indicates, the powers of ESP
(extrasensory perception) could only understand the May 12
letter from Clough according to its clear phraseology and not
in accordance with Clough' s subsequent and subjective intent
that the letter should be interpreted as an "invitation" to
return to Respondent's employ. Reading the May 12 letter as
written made it a futile gesture for Egenlauf to even seek
reinstatement with Respondent.
LONG TRANSPORTATION COMPANY
Theoretically, therefore, it would seem that because of Re-
spondent's unfair labor practice as it involved Egenlauf he
would be entitled to reinstatement as of the time the strike
ended which, according to the testimony here, was on or
before June 1 because by its letter of May 12 Respondent had
made his request for reinstatement futile.
However this issue fortunately does not have to be decided
on theory because, in fact, Egenlauf abandoned the strike
about June 1 with a request for his reinstatement made to
Reinerth at that time.
Knowing of the discharge letter of May 12 and recognizing
that Clough's period of amnesty had expired on May 31,
Reinerth merely referred Egenlauf to Clough in Detroit. At
this time Respondent knew that Egenlauf had abandoned the
strike and had requested reinstatement. Otherwise Respond-
ent reacted to Egenlauf s request not at all. The identical
process was repeated in the middle of July when Egenlauf
again requested reinstatement of Reinerth before a witness.
The result was exactly the same. Finally, reacting to the
formal notice of Egenlauf's charge filed with the Board on
July 13, Clough as of October 1 finally acknowledged that it
had "recently come to our attention through the National
Labor Relations Board" that Egenlauf "may desire" rein-
statement and instructed Egenlauf, if he desired to return to
Respondent's employ, to "visit" Reinerth "no later than"
October 6. With Egenlauf out of town on business, Mrs.
Egenlauf on October 5 answered Clough with a letter stating
that Egenlauf "is definitely interested" in reemployment and
would see Reinerth as soon as possible. On October 6 Egen-
lauf did see Reinerth asking him to set a date for his reinstate-
ment so that he could give his then employer notice. Reinerth
was to get in touch with Clough in Detroit and let Egenlauf
know. This charade ended, with a letter dated October 22 in
which Clough stated that "Subsequent to my conversation
with Mr. Reinerth on October 7 it is my understanding that
you did not desire to work" for Respondent. There is nothing
in this record which justified Clough in making the above
statement or in reaching that conclusion, unless it be that
Clough was endowed with ESP powers himself.
There can be no question but that Respondent had a posi-
tion available for Egenlauf as a driver because even at the date
of the hearing Respondent acknowledged that it was in dire
need of "qualified" drivers. As noted, Egenlauf was fully
"qualified" at the time of his discharge. If Egenlauf became
unqualified thereafter in the sense Respondent referred to at
the hearing that disqualification was a direct result of Re-
spondent's unfair labor, practice. In addition that alleged
"disqualification" is a matter between the Teamsters Union
and Egenlauf-not the Respondent.
Accordingly, in accord with the testimony, I must, and
hereby do, find that Egenlauf abandoned the strike and re-
quested reinstatement on or about June 1, 1970, and will,
therefore, order his reinstatement and backpay from that
date.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V THE REMEDY
207
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that Respondent cease
and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminated in regard to
the hire and tenure of employment of Charles J. Egenlauf by
discharging him while he was on strike and/or withholding
his services from Respondent on May 12, 1970, I will recom-
mend that Respondent offer him immediate and full rein-
statement to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to this
seniority or other rights and privileges, and make him whole
for any loss of pay he may have suffered by reason of said
discrimination against him on and after June 1, 1970, by
payment to him of a sum of money, equal to that which he
would have earned from June 1, 1970, the date of the dis-
crimination against him, to the date of his reinstatement less
his net earnings during such period in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB
289, with interest thereon at 6 percent per annum.
Because of the type of the unfair labor practices engaged
in by the Respondent, I sense an opposition by Respondent
to the policies of the Act in general and I deem it necessary
to order Respondent to cease and desist from in any manner
infringing upon the rights guaranteed its employees in Section
7 of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters and Fraternal
Association of Special Haulers are labor organizations within
the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of
employment of Charles J. Egenlauf by discharging him on
May 12, 1970, because of his concerted activities and his
membership and activities on behalf of FASH, and in order
to discourage such union membership and activities, Re-
spondent has engaged in and is engaging in unfair labor prac-
tices in violation of Section 8(a)(3) of the Act.
3. By so interfering with, restraining, and coercing its em-
ployees in the rights guaranteed them in Section 7 of the Act,
Respondent has interfered with, restrained, and coerced its
employees in violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and conclu-
sions of law and upon the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby 'issue the fol-
lowing recommended:9
ORDER
Respondent, Long Transportation Company, McKees
Rocks, Pennsylvania, and Detroit, Michigan, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
9 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discharging or otherwise discriminating in regard to
the hire and tenure of employment or of any term or condi-
tion of employment of its employees becuase of their member-
ship in and activities on behalf of FASH or any other labor
organization of their choice.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Offer to Charles J. Egenlauf immediate and full rein-
statement to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of pay he may have suffered on and after June
1, 1970, by reason of the discrimination against him in the
manner set forth in the sections of this Decision entitlted
"The Remedy" and "Conclusions, " with interest thereon at
6 percent per annum.
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its terminal in McKees Rocks, Pennsylvania,
and its office in Detroit, Michigan, copies of the attached
notice marked "Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 6, after being
duly signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith."
10 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to-read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD."
11 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
IT IS FURTHER RECOMMENDED that, unless the Respond-
ent notifies said Regional Director within 20 days from the
receipt hereof that it will take the action here recommended,
the Board issue an order directing Respondent to take the
action here recommended.
"Notify the Regional Director for Region 6, in writing , within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to Charles J. Egenlauf his former job
or, if that job no longer exists, a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, and we will pay him for any loss
of pay he may have suffered by reason of our discrimina-
tion against him on and after June 1, 1970, together with
interest thereon at 6 percent per annum.
WE WILL NOT discharge or otherwise discriminate in
regard to the hire and tenure of employment or of any
term or condition of employment of our employees be-
cause of their membership in and activities either consid-
ered or on behalf of FASH or of any other labor organi-
zation of their choice.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form, join, or assist labor
organizations, including FASH, to bargain collectively
through a bargaining agent chosen by our employees, to
engage in concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to
refrain from any such activities.
LONG TRANSPORTATION
COMPANY
(Employer)
Dated By
(Representative) (Title)
WE WILL notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1536
Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsyl-
vania 15222, Telephone 412-644-2977.