Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Mar 13, 1974

209 N.L.R.B. 691 (N.L.R.B. 1974)

OVERNITE TRANSPORTATION CO.
Overnite Transportation Company and Joseph E.
Tingen . Case 5-CA-6264
March 13, 1974
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND
PENELLO
On November 30, 1973, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The complaint herein alleges that Respondent
violated Section 8(a)(1) of the Act by terminating the
employment of the Charging Party because he
refused to perform services for Respondent at the
premises of Wilson Trucking Corporation while the
latter was being picketed by a labor organization.
Respondent contends that it lawfully replaced
Tingen with another employee willing to perform the
work that Tingen refused in order to continue to
operate its business efficiently.
The facts are fully set forth in the attached
Decision. Respondent is a local and interstate motor
carrier. One of its terminals is located at Richmond,
Virginia, where the instant case arose. This terminal
operates on a 24-hour cycle. Over-the-road trucks
carrying freight for delivery in the Richmond area
begin arriving at the terminal at approximately
midnight. This freight is unloaded and then reloaded
on local trucks for delivery during the day. These
deliveries begin early in the morning and when
completed these local drivers start picking up freight
that is to be shipped out of the Richmond area. This
outbound freight is taken to the terminal and loaded
on over-the-road trucks for shipment to other
terminals. It is Respondent's objective to move all
such freight into and out of the terminal during the
24-hour cycle and it has established a separate
department to make up dispatch schedules which are
coordinated on a systemwide basis.
Wilson Trucking Company is Respondent's largest
interchange of freight customer in Richmond. On the
I It is undisputed that there had been neither actual violence nor the
threat of it on the picket line at Wilson.
2 Redwing Carriers, Inc, 137 NLRB 1545, enfd. sub nom Teamsters,
691
average between six and eight trailer loads of freight
are delivered to Wilson each day by Respondent.
These deliveries constitute the most difficult job
assignment given to Respondent's city drivers be-
cause all this freight must be unloaded by hand
without assistance from Wilson personnel. These
assignments require between 4 and 8 hours of work
and appear to be distributed among Respondent's
35-40 city drivers on a rotating basis since none of
these drivers have fixed, regular runs.
Tingen, the Charging Party, was employed by
Respondent as a city driver. On Monday, August 6,
1973, Tingen reported for work and was assigned one
of the nine loads destined for Wilson that day. Upon
arriving at the Wilson terminal, Tingen observed two
pickets. He then telephoned Respondent's city
dispatcher and offered to cross the picket line and
leave the trailer at the Wilson terminal; but refused
to work behind the picket line by unloading the
trailer, which was part of his job. The dispatcher
instructed him to return to Respondent's terminal
without dropping off the trailer.
After returning to Respondent's terminal, Tingen
reported to the terminal manager, Gulledge, in the
latter's office. In response to Gulledge's inquiry,
Tingen said that he would not cross the picket line
because of fear of retaliation' and out of "respect"
for the cause of the pickets. Gulledge replied, "I'm
sorry Joe, there's no place here at Overnite for you."
Tingen thereupon punched out and departed.
That same day Respondent filled Tingen's position
with another employee who had been working as a
warehouseman for Respondent while awaiting an
opportunity to become a city driver. This employee
took the load that earlier had been assigned to
Tingen to Wilson's terminal that same day and has
continued to fill Tingen's job.
In Redwing2 the Board held, with court approval,
that employees have a protected right to respect a
picket line set up at the premises of another
employer. However, in that decision the Board also
held:3
... We also recognize that the Respondents
had a corresponding right which must be bal-
anced against the right of the employees. That is,
Respondents had a right to attempt to run their
business despite the sympathetic activities of the
drivers here involved. In this context, the Board
has in the past drawn a distinction between
replacement and discharge of such employees
whose sympathies prevent them from performing
assigned work tasks.
Chauffeurs and Helpers Local Union No. 79, Teamsters v. N L R B, 325 F.2d
1011 (C A.D.C, 1963), cert. denied 377 U.S 905 (1964).
3 Id at 1547
209 NLRB No. 112
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In considering the continued validity of the
discharge-replacement distinction in this situa-
tion, we are convinced that substance, rather than
form, should be controlling. That is, where it is
clear from the record that the employer acted
only to preserve efficient operation of his busi-
ness, and terminated the services of the employees
only so it could immediately or within a short
period thereafter replace them with others willing
to perform the scheduled work, we can see no
reason for reaching different results solely on the
basis of the precise words, i.e., replacement or
discharge, used by the employer, or the chrono-
logical order in which the employer terminated
and replaced the employees in question.
In balancing these two competing rights in subse-
quent cases the Board has held that an employer
seeking to justify replacement of such employees
"must present more than a mere showing that
someone else may have to do the work" 4 but, on the
other hand, the employer is not required to institute a
"temporary, makeshift arrangement"5 or emergency
procedures in order to preserve the efficient opera-
tion of his business. The proper balance to be struck
between these conflicting rights necessarily depends
on the facts in each case.
In the instant case it is clear that although
Respondent's city drivers do not have fixed, regular
runs, they are frequently assigned runs to the Wilson
terminal that consume a substantial portion of that
particular workday. Tingen testified that he was
assigned to take loads of freight to Wilson two or
three times per week and that each of these runs
required 4 to 5 hours of work on his part. The
recurring nature and frequency of these assignments
compels the conclusion that they were part of
Tingen's regular duties. While the Board has stated
that undue emphasis should not be placed on the
distinction between temporary and permanent work
assignments, it is nonetheless a factor to be consid-
ered when determining whether or not the employer
could have substituted another driver to make the
particular delivery in question without any signifi-
cant disruption of the employer's business 6 Clearly,
the assignment Tingen refused herein was not "a
one-shot operation." 7
The evidence in the instant case concerning the 24-
hour cycle on which Respondent's terminal operates
and its systemwide coordination of freight dispatch-
ing is undisputed. The volume, frequency, and
duration of the work assignment involved herein and
the characterization of it as the most difficult that
Respondent's city drivers are called upon to perform
is substantially undisputed. The evidence is also
without contradiction that Respondent filled Tin-
gen's job that same day with one of its warehouse-
men who had been waiting for an opportunity to
become a city driver and this employee has contin-
ued in that position. Although there were 35-40 city
drivers employed by Respondent at the time it
terminated Tingen, there is no evidence in the record
before us that any of these other employees were
available to perform the work that Tingen had
refused, and Respondent's assertion that it had no
other city driving work available to assign to Tingen
when it replaced him is uncontradicted. The Admin-
istrative Law Judge appears to have inferred that
since Respondent employed 35-40 city drivers it
could have assigned the work Tingen refused to
another of these and given other city driving work to
Tingen. However, in view of the above facts there is
no reasonable basis for such an inference in the
instant case.
In view of the foregoing, and based on the entire
record herein, we find that Tingen was terminated
and replaced by Respondent in order to preserve the
efficient operation of its business. Accordingly, we
find that Respondent did not violate Section 8(a)(1)
of the Act, and we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
4 Overnite Transportation Company, 154 NLRB 1271, 1274,,enfd sub nom.
Truck Drivers and Helpers Local No 728, Teamsters v. N LR. B, 364 F 2d
682 (C.A.D C, 1966)
3 Thurston Motor Lines , Inc, 166 NLRB 862, 866
6 Swain and Morris Construction Co, 168 NLRB 1064, In 4 at 1065
7 Braswell Motor Freight Line, 189 NLRB 503, 506
DECISION
1. PRELIMINARY STATEMENT
STANLEY N. OHLBAUM, Judge: This proceeding' under
the National Labor Relations Act as amended, 29 U.S.C. §
151 et seq. ("Act"), was tried before me in Richmond,
Virginia, on October 30, 1973, with all parties participating
throughout and afforded full opportunity to present
evidence and contentions . Although given opportunity to
file briefs, on November 8 and 162 the parties indicated
they elected not to do so. The record has been carefully
considered.
Upon the entire record and my observation of the
testimonial demeanor of the witnesses , I make the
following:
i Upon complaint of the National Labor Relations Board 's Regional
Director for Region 5 issued October 1, 1973, growing out of charge filed
August 17, 1973, by the above Charging Party
2 Unless otherwise specified , all dates are 1973.
OVERNITE TRANSPORTATION CO. 693
FINDINGS AND CONCLUSIONS
II. JURISDICTION
At all material times, Respondent Overnite Transporta-
tion Company, a Virginia corporation, has been and is
engaged in operating freight terminals in several States
(including Virginia, at Richmond) and in interstate
transportation of freight by motor carrier. In the course
and conduct of that business during the representative year
immediately preceding issuance of the complaint, Respon-
dent derived revenue m excess of $50,000 from the
interstate transportation of freight.
I find that at all material times Respondent has been and
is an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
III. ALLEGED VIOLATION OF THE ACT
A. Issue
The complaint alleges and the answer denies that
Respondent violated Section 8(a)(1) of the Act by
discharging its employee Joseph E. Tingen for refusing to
perform services for it at the premises of a picketed
customer.
B. Facts as Found• Discussion
Respondent is a local and interstate motor carrier, with
terminals including one in Richmond, Virginia, at which its
manager is Robert Gulledge and its (city) dispatcher (Lou)
Werner. Various categories of personnel are employed at
the Richmond terminal, including warehousemen, helpers,
"city drivers" (operating either small radio-dispatched
trucks or tractor-trailers), and longer-run or interstate
"road drivers." "City drivers" operate within a radius of 50
miles of Richmond; of these, "bulk freight" drivers have
no regular route or assignment, but each day receive
miscellaneous runs with miscellaneous cargo.
Normal operations at the Richmond terminal consist of
a round-the-clock cycle of arrival and unloading by
warehousemen of incoming trailers (midnight to or
through morning) onto local delivery units (including
trailers): dispatch of the local delivery units, which are
assigned to Respondent's drivers each day (the drivers not
necessarily driving the same unit each day) for delivery by
Respondent's drivers, usually in the morning; pickup by
Respondent's drivers, usually in the afternoon (and
sometimes-as in the case of Respondent's customer as
well as freight forwarder Wilson Trucking Corporation
["Wilson" ])---at the very same place and from the same
source to which Respondent's driver has made the morning
delivery, after that delivery has been unloaded by Respon-
dent's driver; and dropoff at Respondent's Richmond
3 Although Gulledge denies he said anything like this, on comparative
demeanor observations I credit Tingen.
4 The foregoing account is based upon the uncontradicted credited
testimony of Tingen , a witness of impressive demeanor . Respondent chose
neither to produce its Dispatcher Werner as a witness, nor to explain why.
5 There was no violence or threat or fear of violence at the site of the
picketing itself Cf. A' L KB v Union Carbide Corporation, 440 F.2d 54
(C A. 4, 1971 ), cert. denied 404 U.S 826 ( 1971), wherein the Court held that
terminal, with loading by Respondent's drivers and
warehousemen onto outbound tractor-trailers. Respon-
dent's Richmond drivers are each day assigned to daily
designated, loaded tractor-trailers for deliveries, by its
Richmond Terminal Dispatcher Werner; unlike some
other dropoff points, dropoffs to Wilson may be made as
early as 8 a.m. Wilson is Respondent' s largest Richmond
dropoff point, receiving as many as 6 to 8 truckloads per
day.
Joseph E. Tingen was hired by Respondent's Richmond
Terminal Manager Gulledge in March or April, 1970, as a
"city driver" on bulk cargo, continuing in that capacity for
about a year and a half, when he was made a "road driver"
for around a year and a half, when he reverted to being a
bulk cargo "city driver" again. At the time he was hired by
Gulledge in 1970, Gulledge gave him the message that
there was no place for him there if he entertained union
ideas.3 Tingen did not become a union member.
On August 6, 1973 Tingen, reporting for work as usual,
was assigned by Dispatcher Werner to a tractor -trailer
consisting of bulk freight to be dropped off at the terminal
of Wilson Trucking Corporation. Like Respondent, Wilson
is a motor carrier, but serves areas not served by
Respondent and consolidates consignments for consolidat-
ed shipment into the areas served by Wilson; at times, if
the entire trailerload from Respondent is destined for a
Wilson area, it will not be unloaded at the Wilson terminal
but simply be hauled as a unit by Wilson into the Wilson
area. Wilson's terminal is approximately 12 miles from
Respondent's Richmond terminal.
When Tingen, with no regularly assigned run or vehicle,
was dispatched by Respondent's Dispatcher Werner to
take a bulk trailer load on the short run to Wilson on the
morning of August 6, Werner informed Tingen that there
was a strike going on at the Wilson terminal but to "go
down and see what it looked like . . . check it out" and to
"carry the freight across the line." Tingen arrived at the
Wilson terminal in about a half hour and observed two
ambulatory sign-carrying Teamsters Union pickets. Tingen
then telephoned Dispatcher Werner about the situation
and suggested to Werner that he would drop the trailer
(that is, cross the picket line and disconnect and leave the
loaded trailer) without unloading it (unloading being a part
of his job). Werner, however, instructed him to return with
the load, which Tingen did. When Tingen arrived, Werner
indicated Terminal Manager Gulledge wished to see
Tingen in Gulledge's office.4 There Gulledge demanded to
know of Tingen, "What's this, you're not going to cross the
picket line?" Tingen responded that he would not, among
other things because of apprehension of possible retaliation
against members of his family5 and out of "respect" for the
cause of the pickets. (At this time, Respondent's employees
were not unionized, nor was Tingen a Teamsters member.)
a nonstriking employee who refuses through physical fear to cross a picket
line is not entitled to the protection of the Act since he "does not act on
principle. He makes no common cause, and contributes nothing to mutual
aid or protection in the collective bargaining process " (id at 56). While
denying enforcement of the Board 's order for this reason, nevertheless at the
same time the Fourth Circuit Court of Appeals indorsed the Board's view
that nonstriking employees who refuse because of "principle" to cross a
picket line should be equated with economic strikers
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tingen was thereupon dismissed, Gulledge telling him,
"I'm sorry Joe, there's no place here at Overnite for you."
According to Respondent's Richmond Terminal Manag-
er Gulledge, testifying as its witness, he did not "fire,"
"terminate," or "discharge" Tingen but merely "replaced"
him later the very same day (August 6)- as well as
continuously since then-by another employee who was in
its employ as a warehouseman but qualified to drive a
truck and had expressed an interest in doing so. Tingen's
"replacement" then took the load to Wilson's that same
afternoon, and he still holds Tingen's job. According to
Gulledge, Respondent's records show Tingen as having
been "replaced," and Gulledge considers that Tingen "left"
Respondent's employ.6 It is conceded that Tingen was not
offered the job of the warehouseman (a lower-paying job)
who took Tingen's job, nor any other job-at the time in
question Respondent employed 35-40 "city drivers" alone
-nor is there indication that Tingen requested such other
assignment ; however, according to Gulledge-whom I do
not credit in view of the large number of rotating trucks
and assignments-it would have been "necessary" for
Tingen to continue to drop off and unload cargo at
Wilson's regularly after August 6.
Gulledge further testified that since an earlier NLRB
proceeding and court of appeals-enforced order against it
in 1966 involving its Atlanta terminal ,7 it has maintained
the policy of not discharging an employee for refusing to
cross a picket line. However, Gulledge conceded that at no
time has Respondent published or explained to its Richmond
drivers what its policy is regarding crossing a picket line. And
Gullege's explanation of his Company's alleged changed
policy since the earlier case went against it (Overnite # 1,
1966) is illuminating in appraising Respondent's conten-
tion that it did not "discharge" Tingen but merely
"replaced" him. Thus, Gulledge testified that Respondent's
"new" (since 1966) policy of not discharging an employee
for refusal to cross a picket line means no more than that if
there is a threat or violence the Company would not expect
the dnver to cross the picket line, but that if there is no
violence or threat the employee would be expected to cross
the picket line or "be subject to being replaced"; 8 and,
finally, that since there was no violence at Wilson's here,
Respondent's position was that Tingen should have crossed the
picket line and unloaded the freight.
Respondent's "new" policy of turning the legality of an
employee's refusal to cross a picket line on whether or not
there is violence or threat at the picket line sets a
requirement without basis in either the statute9 or the
cases. Indeed, as shown above, there is a basis, in the
Fourth Circuit at any rate,10 for rejecting such a hypothesis
on the theory that employee refusal to cross a picket line
out of personal fear-as distinguished from refusal to cross
6 Cf., e.g., Kut-Kwick Corporation, 176 N LRB 635, 647-651 (re employee
Goodyear ), for another case where an employer refused to permit an
employee to resume work by insisting he had "quit," although the
circumstances did not bear out this contention.
7 Overture Transportation Company, 154 NLRB 1271, enforced 364 F.2d
682 (C.A D.C , 1966) Respondent distinguishes Overnice #1 from the
instant case (Overnice #2 ) by urging that in Overnice #1 all it had to do in
the face of its employee's refusal to cross a picket line was merely to
dispatch another truck. This distinction, however, does not appear to be
compelling since, among other things , this is not unlike what Respondent
did here when it returned the same truck to Wilson's with another driver.
the picket line as a matter of "principle"-would notper se
insulate him from discharge.
As long ago as 1951 in Rockaway News Supply Company,
Inc., 95 NLRB 336 (enforcement denied on other ground
-no-strike provision in collective agreement , 197 F.2d 111
(C.A. 2), affd. 345 U. S. 71), as well as in succeeding cases
including Union Carbide Corp., 174 NLRB 989, enfd. 440
F.2d 54, 55 (C.A. 4, 1971), cert. denied 404 U.S. 826 (1971),
afd.Redwing Carriers, Inc., 137 NLRB 1545, enfd., 325
F.2d 1011 (C.A.D.C., 1963), the Board held that employees
who refuse to cross a picket line of other employees are
engaged in protected concerted activity. This, however,
does not mean that an employer must subsidize such
activities by his employees by continuing their pay while
they withhold their services, nor need the employer place
his business in the deep-freeze while his employees refuse
to cross the picket line. As the Board clearly explicated in
Redwing, supra, at 1547:
Although the Act . . . . prohibits any reprisal against
the . . . . Redwing drivers for engaging in the
protected activity of not crossing the . . . . picket line,
we also recognize that the [employer] had a corre-
sponding right which must be balanced against the
right of the employees. That is . . . . to attempt to run
[its] business despite the sympathetic activities of the
drivers here involved.
In that and later cases the Board evolved the principle that
while an employer may under certain circumstances
"replace" (not "discharge") such employees, he may not do
so for punitive reasons but "only to preserve efficient
operation of his business" (Redwing, supra 1547); see, also,
Thurston Motor Lines, Inc., 166 NLRB 862). "[T]he right
[of ] the employer . . . . is not to discharge employees, but to
run his business." Swain and Morris Construction Co., 168
NLRB 1064, 1065 (emphasis is the Board's). In Overnite
#1, supra, 154 NLRB 1274 (enfd. 364 F.2d 682
(C.A.D.C.)), the Board had pointed out that the employer
seeking to justify replacement of such employees:
must present more than a mere showing that someone
else may have to do the work. That fact is inherent in
every situation where employees fail to perform a
portion of their assigned tasks by respecting a picket
line. To accept it alone as conclusive proof that their
services were terminated solely to preserve efficient
operation of the employer' s business would be to
render illusory any finding that the employees engaged
in protected concerted activity. It would leave the
refusal to cross a picket line without any protection at
all. Clearly, what is required is the balancing of two
The question remains whether Respondent was here (Overnice #2 ), any
more than in Overnice #1, justified in discharging the dnver who refused to
cross or work behind the picket line.
8 Gulledge was careful to say "replace" but not "fire," and would not
commit himself on the length of the "replacement" other than that it would
"depend ... on the circumstances."
9 The proviso to Sec. 8(b)(4) of the Act states merely that nothing therein
"shall be construed to make unlawful" the refusal to cross a picket line of
employees of another employer
10 Union Carbide, supra, fn. 5.
OVERNITE TRANSPORTATION CO.
opposing rights, and it is only when the employer's
business need to replace the employees is such as
clearly to outweigh the employees' right to engage in
protected activity that an invasion of the statutory right
is justified.
No credibly persuasive evidentiary showing of this nature
has been made here. As shown above, Tingen did not drive
a regular or established route, being shifted from day to
day as one of 35-40 "city drivers"; another employee was
speedily assigned to substitute for him; there were other
jobs, including driving jobs and runs, to which Tingen
could readily have been interchanged or assigned"; and
Gulledge's prehire antiunion remarks to Tingen as well as
Gulledge's described exposition of Respondent's alleged
but undisclosed "new policy" since the earlier Board
proceeding (Overnite #1 ) against it further conduce to
establish that Respondent's action against Tingen was
punitive rather than "to preserve efficient operation of [its]
business" (Redwing, supra at 1547) or a "business need"
(Overnite # 1, supra at 1275) or because of "proven need to
carry on its business" (Thurston, supra at 862), or because
of " 'overriding employer interest' " (Braswell Motor
Freight Line, 189 NLRB 503, 506) or for "compelling
business reasons" (General Tire & Rubber Co. v. N.L. R.B.,
451 F.2d 257, 259 (C.A. 1, 1971); "[The employer's]
invocation of `business reasons' means only that it does not
like strikes" [Aldrich, C.J.]).
Respondent's current contention, as unconvincingly
advanced by its Richmond terminal manager, Gulledge-a
person with established antiunion views-that it did not
"discharge" Tingen but merely "replaced" him is, under all
of the circumstances, unpersuasive. That no particular
form of words need be used to constitute a discharge, see,
e.g., N.L.R.B. v. Trumbull Asphalt Company of Delaware,
327 F.2d 841 (C.A. 8, 1964); "The fact of discharge of
course does not depend on the use of formal words of
firing. It is sufficient if the words or action of the employer
`would logically lead a prudent person to believe his tenure
had been terminated' "; Blackmun, J.]); General Tire &
Rubber Company v. N.L.R.B., 451 F.2d 257, 258, fn. 1,
where the court characterized a similar employer conten-
tion that the employee had "quit voluntarily" as "too
frivolous to warrant discussion"): N.L.R.B. v. Central
Oklahoma Milk Producers Assn, 285 F.2d 495, 497-98 (C.A.
10, 1960); Kut-Kwick Corporation, 176 NLRB 635, 647-51.
Crediting employee Tingen's version of his terminal
employment discussion, as shown, I have found that he
was in fact discharged. But whatever the semantics of the
situation were, the fact is, as I find, that Gulledge's action
on August 6 separated, divorced, or weaned Tingen from
his job as well as all employment with Respondent since
then. At the conclusion of the trial, Respondent's counsel
conceded upon the record that if Respondent had
"discharged" Tingen on the date and occasion here, it
would have been unlawful under Overnite #1. Upon the
entire record finding that Tingen was indeed discharged,
on that basis I agree that it was unlawful. If, as repeatedly
declared by the courts and Board, it is unlawful under the
ii Even accepting Terminal Manager Gulledge's testimony that as many
as 6 to 8 "city" trucks were dispatched to Wilson daily, that would still leave
695
Act for an employer to discharge an employee for refusing
to cross a picket line, then the unlawfulness turns on
whether the employee has for that reason been in fact
discharged, regardless of the word or words used to effect
the discharge. An employee should not be held to a degree
of expertise in labor law semantics to which true experts in
that sometimes esoteric field cannot themselves legitimate-
ly lay claim. Labor law savants may engage in protracted
learned discussions over the supposed distinction, under
various refinements of circumstances, between "discharge"
and "replacement," without themselves reaching an agree-
ment or even common ground. But, under the circum-
stances here, even if a truckdriver were told he is being
"replaced" for refusing to cross a picket line, it would be
unreasonable to require him to have an instantaneous
intuitive understanding of the developing, less than wholly
clear philosophy hesitatingly hammered out in a genera-
tion of difficult cases. Unless we are simply to abandon
fairness , we must allow that the truckdriver is justified in
getting the message that he is losing his job, or being fired,
for his refusal, even if his employer uses the talismanic
expression "I am replacing you" rather than the verboten
words "You are fired." (This is particularly true where, as
here, the truckdriver does not have a specific run or
vehicle, is only one of 35 or 40 such drivers, and could for
aught that is credibly established be readily transferred to
another run or to across-the-road driving which he has
previously done.)
Under the total circumstances shown, including resolu-
tion of issues of credibility dependent upon testimonial
demeanor observations, I have found as a fact that Tingen
was discharged and lost his job because of his refusal to
cross the picket line. This finding is fortified by Respon-
dent's established "new," post-Overnite #1 policy (as
testified to by its own Terminal Manager Gulledge) of
requiring employees to cross picket lines except where they
are threatened or where violence exists-an improper
standard under the law. Under court and Board law in its
current state (cf., e.g., Braswell, supra ), that constitutes a
violation of the Act; indeed, as already stated, Respon-
dent's counsel conceded upon the record, near the close of
the hearing, that such a discharge would be a violation of
the Act. However, even were I to accept Respondent's
semanticism that Tingen was not "discharged" but merely
(permanently) "replaced," analogizing Tingen (as Respon-
dent's counsel in closing argument did) to an "economic
striker"-an analogy suggested by the Board and approved
by the court in N.L.R.B. v. Union Carbide Corp., 440 F.2d
54 (C.A. 4, 1971), cert. denied 404 U.S. 826 (1971)-I
would require that he be accorded the rights of a
"replaced" economic striker as instructed by the Supreme
Court in N.L.R.B. v. Fleetwood Trailer Co. Inc., 389 U.S.
375 (1967) and by the Board in The Laidlaw Corporation,
171 NLRB 1366, enfd., 414 F.2d 99 (C.A. 7, 1969), cert.
denied 397 U.S. 920 (1970); namely, to be reinstated when
his or a like job opens up. Thus, even were I to agree that
Tingen was "merely replaced" for refusing to cross and
work behind the picket line, I would still under Laidlaw
at least 27-32 other trucks dispatched elsewhere in the "city," to say nothing
of other trucks used on longer runs or interstate hauls.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
require that Respondent offer him reinstatement when he
is available for employment and a job opens up.
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By its conduct set forth and found in "III," supra,
Respondent has engaged and is continuing to engage in
unfair labor practices in violation of Section 8(a)(1) of the
National Labor Relations Act as amended.
3. Said unfair labor practices have affected, affect, and
unless permanently restrained and enjoined will continue
to affect, commerce within the meaning of Section 2(6) and
(7) of said Act.
the Act by terminating the employment of and failing to
reinstate its employee Joseph E. Tingen because he refused
to cross and perform services behind a picket line,
Respondent should be ordered to cease and desist from
that or like violations of the Act, and to offer reinstatement
to Tingen to his former (or, if no longer available, in that
case equivalent) job, together with backpay as appropriate,
less applicable interim earnings if any, computed as
delineated in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716, making
necessary records available for computation purposes.12
Respondent should further be required to post the usual
notice to employees to the effect that it will repair such
violation, and desist from further such or like violation and
interference with its employees' rights under the Act.
[Recommended Order omitted from publication.]
REMEDY
Having been found to have violated Section 8(a)(1) of
12 Although normally in the case of an employee withholding his services reinstatement (Roosevelt Roofing and Sheet Metal Works, Inc., 204 NLRB
or an employee discharged while on strike , backpay is tolled during the No. 110, fn 1 , and cases cited .) this is inapplicable here in view of the fact
period while he withholds his services , and the hackpay period is limited so that Respondent had numerous otherjobs available , not requiring working
as to commence 5 days from the date of the employee's unconditional behind the picket line, to which Tingen could have been transferred instead
application for reimtatement to the date of Respondent's offer of of being summarily terminated