Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Jul 23, 1974

212 N.L.R.B. 515 (N.L.R.B. 1974)

OVERNITE TRANSPORTATION COMPANY
Overnite Transportation Company and Bynum Paul
McKinney and Larry N. Freeman. Cases 5-
CA-6370 and 5-CA-6385
July 23, 1974
DECISION AND ORDER
By CHAIRMAN MILLER and MEMBERS FANNING AND
JENKINS
On March 29, 1974, Administrative Law Judge Eu-
gene George Goslee issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Ad-
ministrative Law Judge's Decision in light of the ex-
ceptions and brief and has decided to affirm the
Administrative Law Judge's rulings, findings, and
conclusions and to adopt his recommended Order
only to the extent consistent herewith.
The Administrative Law Judge concluded that the
five drivers terminated by Respondent following their
refusal to cross a picket line at the premises of
Respondent's customer, Leon Ferenback, Inc., were
engaged in concerted activity. Nevertheless, based on
his conclusion that Respondent's action was justified
by business necessity, the Administrative Law Judge
recommended that the complaint be dismissed in its
entirety.
With respect to this conclusion the Administrative
Law Judge relied on evidence that Leon Ferenback,
Inc., is a substantial customer of Respondent and that
Respondent sought, although unsuccessfully, to sub-
stitute other drivers in its employ for those drivers
who refused to make the Ferenback deliveries. More-
over, in view of Respondent's statement to each driver
concerning the necessity of "replacing" him, coupled
with Respondent's conduct in immediately hiring new
drivers to make the Ferenback deliveries, the Admin-
istrative Law Judge asserted that there was no evi-
dence that any driver was "discharged."
Contrary to the Administrative Law Judge, we find
that Respondent discharged driver Larry Freeman on
October 5,1973, and that such discharge violated Sec-
tion 8(a)(1) of the Act.
In his Decision the Administrative Law Judge ade-
quately summarized the law applicable to cases of this
kind. Although we agree with the Administrative Law
Judge's statement of the law, we disagree with his
application of the relevant legal principles to the ter-
515
mination of driver Freeman's employment.
In this regard we think it significant that Freeman,
who was the first driver to refuse to cross the picket
line at the Ferenback plant, was terminated by Re-
spondent several days before the refusal of the other
drivers to make the Ferenback deliveries and at a time
when Respondent had apparently no knowledge or
reason to believe that other drivers would follow
Freeman's lead. Accordingly, and although there may
be merit to Respondent's argument that the refusal of
several drivers on October 10 to cross the Ferenback
picket line placed it in a position where the efficient
operation of its business necessitated replacing these
drivers with others who would make the deliveries, it
is difficult to see how these considerations could have
prompted Respondent's conduct on October 5. Thus
we note that Freeman testified without contradiction
that on the morning of October 5, when he was given
the Ferenback assignment and informed the dilspatch-
er of his reluctance to cross the Ferenback picket line,
he also requested that the assignment be offered to
another driver. Although there were 8 or 10 drivers
available at the terminal, Respondent declined to
change the assignment or to ask other drivers if they
would take it.' In fact, had Respondent acceded to
Freeman's request there is reason to believe that there
would have been little difficulty in finding a driver to
take Freeman's place. 2 Thus, following Freeman's
telephone call to the dispatcher indicating that he was
parked outside the Ferenback plant but would not
cross the picket line, Respondent was able to send out
a driver from the terminal who made the delivery
forthwith?
We find additional and strong support for our con-
clusion that Freeman was discharged in contraven-
tion of Section 8(a)(I) in the conduct of Respondent's
terminal manager, Ernest Bullock. Although the Ad-
ministrative Law Judge concluded that there was no
evidence that any employee was "discharged" rather
that "replaced," we are satisfied that the record evi-
dence of Bullock's conduct on October 5 warrants the
opposite conclusion insofar as driver Freeman is con-
cerned. Thus, when Freeman spoke to Bullock by
telephone on October 5, and informed him that we
would not enter the Ferenback plant, he also asked if
this refusal would cause Bullock to "fire" him. Bul-
i In passing on the merit of a "business necessity" defense in similar cases
the Board has often considered the availability of other drivers. Braswell
Motor Freight Line 189 NLRB 503 (1971)
2 It is well settled that evidence that employees may have to be transferred
or reassigned to do the work in issue is not sufficient to establish an
employer's business justification for replacing employees in cases of this
kind Overmte Transportation Company. 154 NLRB 1271, 1274,(1965).
3 In finding that Respondent's conduct was motivated by business necessi-
ty, the Administrative Law Judge noted that Respondent attempted to substi-
tute drivers for those who refused to make the deliveries to Ferenback. This
is true, however, only with respect to the events of October 10.
212 NLRB No. 84
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lock replied that Freeman would have to be "replaced
altogether." Apparently Bullock's use of the word "re-
placed" persuaded the Administrative Law Judge that
Freeman's termination did not constitute a "dis-
charge."
As we have often noted, in distinguishing between
"replacement" and "discharge," substance rather
than precise wording is important. Redwing Carriers,
Inc., 137 NLRB 1545(1962). We are satisfied after
reviewing all of the record evidence that Freeman was
discharged because of his refusal to cross the picket
line and because this refusal angered Respondent's
terminal manager. Thus, when Freeman returned to
the terminal on October 5, Bullock refused Freeman's
request to discuss the matter further. He also told
Freeman that he did not want to catch him back on
the property. Bullock did not even want to give Free-
man time to pick up his belongings at the terminal.
Bullock acknowledged in his testimony that he never
explained to Freeman or to any other driver the dif-
ference between replacement and discharge." Finally,
Freeman alone among the drivers subsequently re-
ceived a slip from Respondent for purposes of the
state employment security office stating that he had
been "discharged" because of his refusal to "carry out
instructions."5
As for the four drivers terminated on October 10,
although we believe there is reason to be suspicious of
Respondent's motives in ending their employment,
we are not prepared on the basis of this record to
disturb the Administrative Law Judge's findings and
conclusions with respect to them. We note in this
regard that there are numerous factual differences
between their situation and that of employee Free-
man.'
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice in violation of Section 8(a)(1) of
the Act, we shall order it to cease and desist therefrom
and take certain affirmative action designed to effec-
tuate the policies of the Act, including the offer of
reinstatement of Larry N. Freeman, with backpay'
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest added
Bullock also testified that it was Respondent 's "policy" to discharge a
driver who refused to cross a picket line. Although Respondent 's counsel
thereafter denied that this was the policy, Bullock 's testimony, particularly
in view of all the surrounding circumstances , tends to support the conclusion
that Freeman 's discharge was not motivated by business necessity.
5 Compare Overrate Transportation Company, supra
6 Our action in adopting the Administrative Law Judge ' s Decision as mod-
ified herein should not be construed as endorsing his observations with
respect to the views on concerted activities expressed by the Court of Appeals
for the Fourth Circuit in N L R B v Union Carbide Corporation, 440 F 2d 54.
56 (C.A 4, 1971)., cert. denied 404 U S 826 (1971)
thereto in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
ORDER
Respondent, Overnite Transportation Company,
Bristol, Tennessee, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interfering with the rights of employees to en-
gage in protected concerted activity by discharging
them in violation of Section 8(a)(1) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist any labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Larry N. Freeman immediate and full
reinstatement to his former fob or, if that fob no lon-
ger exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and
privileges previously enjoyed, and make him whole
for any loss he may have suffered by reason of his
unlawful discharge in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this recommended
Order.
(c) Post at its Bristol, Tennessee, terminal copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 5, after being duly signed by
Respondent's representative, shall be posted for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with. -
' In the event that this 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 read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
9
OVERNITE TRANSPORTATION COMPANY 517
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with the right of employ-
ees to engage in protected concerted activity by
discharging them for refusing to cross a lawful
picket line established at the premises of another
employer.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights under Section 7 of the
Act.
WE WILL offer to Larry N. Freeman immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority and
other rights and,privileges, and make him whole
for any loss or earnings he may have suffered as
a result of his discharge. -
All our employees are free to engage in concerted
activities for their mutual aid and protection within
the meaning of Section 7 of the Act or to refrain from
such activities.
OVERNITE TRANSPORTATION
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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 compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, Room 1019, Charles
Center, Baltimore, Maryland 21201, Telephone 301-
9462-2822.
idated complaints I issued by the General Counsel of the
National Labor Relations Board and answers filed by Over-
nite Transportation Company, hereinafter called the Re-
spondent. The issues raised by the pleadings in these
consolidated proceedings relate to whether the Respondent
violated Section 8(a)(1) of the National Labor Relations
Act, as amended, by terminating the employment of 5 em-
ployees because they engaged in protected concerted activi-
ties as defined in Section 7 of the Act.
On February 28, 1974, Administrative Law Judge Asher
died, thus invoking the procedures specified in Section 5(c)
of the Administrative Procedure Act (5 U.S.C. 554(d))2 and
Section 102.36 of the Board's Rules and Regulations, Series
8, as amended. Thereafter all parties consented to waive a
hearing de novo and agreed to the designation of another
Administrative Law Judge in his place. Effective March 20,
1974, the undersigned Chief Administrative Law Judge des-
ignated himself to write the decision in these consolidated
proceedings. No objection has been received to such desig-
nation.
Upon consideration of the record, including the brief
filed by the General Counsel, I hereby make the following:
FINDINGS OF FACT AND CONCLUCIONS
1. PRELIMINARY MATTERS
(COMMERCE, JURISDICTION, AGENCY, AND THE STATUS OF THE LA-
BOR ORGANIZATION)
The complaints allege, the answers admit, and I find that
(1) the Respondent is engaged in the local and interstate
transportation of freight by motor carrier; (2) the
Respondent's operations and revenues satisfy the Board's
standards for the assertion of jurisdiction over interstate
freight carriers; (3) the Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act; (4)
Ernest Bullock and John Cole, who are, respectively, the
Respondent 's terminal manager and assistant terminal
manager at Bristol, Tennessee, are supervisors and agents of
the Respondent Company within the meaning of Section
2(11) of the Act; and (5), the United Textile Workers of
America, AFL-CIO, Local 532, herein called Textile
Workers, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II THE UNFAIR LABOR PRACTICES ALLEGED
In the consolidated complaints the General Counsel has
alleged that the Respondent violated Section 8(a)(1) of the
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge: This
case was heard before Administrative Law Judge Sydney S.
Asher at Bristol , Tennesse, on January 3, 1974, upon consol-
1 The complaint in Case 5-CA-6370 was issued on November 21, 1973, a
charge filed on October 16, 1973, and served on the Respondent on said date,
and the complaint in Case 5-CA-6385 was issued on November 21, 1973, a
charge filed on October 23, 1973, and served on the Respondent on October
24, 1973 On November 21, 1973, the Regional Director for Region 5 issued
and served the parties an order consolidating , cases , thereby consolidating
said cases for hearing
2 Section 554(d) provides, in relevant part, that "The employee who pre-
sides at the reception of evidence pursuant to Section 556 of this title shall
make the recommended decision or initial decision as required by Section
557 of this title , unless he becomes unavailable to the Agency."
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act when it terminated' the employment of Bynum Paul
McKinney , Billy M. Benfield , Grayson Street , Jerry W.
Tibbs, and Larry N. Freeman because the named employ-
ees engaged in protected concerted activities by refusing to
cross picket lines established by'the United Textile Workers
of America, AFL-CIO, Local 532, hereinafter called the
Union, at the premises of Leon Ferenback, Incorporated, at
Johnson City, Tennessee. The Respondent's answers deny
the allegation of terminations , but the Respondent admits
that the 5 employees were separated from their employment
when they refused to cross the picket line in order to permit
the Company to hire replacements who would make freight
deliveries to the Ferenback plant.
A. The Facts
The facts in this proceeding) are little in dispute. The
Respondent, as a part of its overall interstate operations,
maintains a terminal at Bristol, Tennessee, from where it
employs both over-the-road and local drivers. At times ma-
terial to these cases the Respondent employed 25 to 30 local
drivers out of the Bristol terminal, who reported on various
shifts, and who generally made local deliveries within a
50-mile radius of Bristol, including deliveries of freight peri-
odically made to the Leon Ferenback plant at Johnson City.
On September 27, 1973,4 employee Freeman reported to
work on the 9 a.m. shift and about lunchtime was dis-
patched with a load of freight to the Ferenback plant. When
given the order Freeman questioned the dispatcher, Curtis
Milhorne, about the strike at the Ferenback plant, indicated
to Milhorne that he was aware that some trouble had oc-
curred, and asked what he should do if he encountered
difficulty in making the delivery. Milhorne replied that
Freeman should take the load, but if trouble ensued Free-
man should call Milhorne or the terminal manager.
When Freeman attempted to deliver his load at one gate
at the Ferenback plant he was met with 8 to 10 pickets, and
he was threatened that he would be sorry if he tried to cross
the picket line. Apparently at the suggestion of the pickets
Freeman tried another entrance to the plant, but Freeman
was told by a picket along the way that if he went through
the'gate the picket would bust his head. Freeman encoun-
tered similar resistance and threats at the second gate, so he
parked his truck and entered the Ferenback premises to call
the Bristol terminal. Freeman called the terminal manager,
Ernest Bullock, told Bullock of the resistance and threats,
and was instructed by Bullock to bring his load back to the
Bristol terminal.
When Freeman returned to the terminal he was given a
3 The General Counsel's use of the term "terminated," as opposed to
"discharged," leaves some doubt as to whether the contention is that the
employees were irrevocably separated from their employment as proscribed
by case law expressed in Rockaway News Supply Company, 95 NLRB 336, or
replaced under conditions where the Respondent has not shown the requisite
necessity dictated by overriding business consideration as promulgated by
the Board 's rule in Redwing Carriers, Inc, 137 NLRB 1545 The General
Counsel's brief, relying in major part on the decision of the Administrative
Law Judge in Overnite Transportation Company, 209 NLRB No 112, further
confuses the issue , but on the whole record, and particularly upon the Gener-
al Counsel 's reliance on a certain antiunion expression of one of the
Respondent's agents, I am inclined to the belief that it is the General
Counsel 's contention that the employees were discharged
4 All dates hereinafter are in 1973, unless specified to the contrary
message by Milhorne that Bullock had left instructions that
Freeman was to report for work at 8 a.m. the following
morning to take the load of freight back to the Ferenback
plant.
After work on September 27, Freeman met with approxi-
mately 15 to 20 other drivers in the company parking lot.
Employees Tibbs and McKinney were among the drivers
who attended the meeting. Freeman explained what had
happened at the Ferenback plant and informed the employ-
ees of Bullock's order to return with the load on the follow-
ing morning, and the employees agreed that if Freeman was
fired they would back him 100 percent by having a meeting
with Bullock to have Freeman reinstated.
Freeman, whose regular reporting time was 9 a.m., re-
ported to work at 8 a.m. on September 28, but was dis-
patched with a load to another location, and not to the
Ferenback plant. On October 5, however, Dispatcher Kelly
Terry directed Freeman to take another load of freight to
the Ferenback plant. Freeman informed Terry that he had
previously been warned and threatened about crossing the
picket line at the Ferenback plant, and argued with Terry
about the assignment. Terry called the assistant terminal
manager, John Cole, and Freeman renewed his argument
that he had previously been warned of a busted head and
did not want to return to the Ferenback plant. Freeman did
not prevail in the argument, however, and drove the load of
freight to Johnson City, but with the warning that he would
not cross the picket line.
Freeman was met by the pickets before he arrived at the
gate at the Ferenback plant. He stopped at the first gate,
explained to the pickets that he did not want any trouble,
but was reminded by the pickets that he had been warned
before. Freeman parked his truck, walked to the second
gate, and was again reminded by the pickets that he had
previously been warned as to the consequences of crossing
the Ferenback picket line. Freeman parked his truck, en-
tered the premises, called Dispatcher Terry, told Terry that
he did not want his truck or his head torn up, and would
not cross the picket line. Terry replied that there was noth-
ing he could do, and transferred Freeman's call to Terminal
Manager Bullock.
Freeman explained to Bullock that he had already stated
that he would bring the load to Ferenback, but would not
cross the picket line. Bullock replied that there was nothing
left to do but replace Freeman. Freeman asked if Bullock
intended to fire him because he wouldn't cross the picket
line with a chance of getting his head busted, getting the
truck torn up, or being run off the road. Bullock answered
that he was sorry, but had no alternative but to replace
Freeman.
At Bullock's request, nevertheless, Freeman agreed to
remain with his equipment until another employee could be
sent out. Later a company salesman , Bob Mullins, appeared
at the site with another driver, Gene O'Neil. Freeman ex-
plained what had happened, Mullins directed O'Neil to pro-
ceed to make the delivery, and Freeman returned to the
terminal with Mullins.I
At the terminal Freeman reported to Bullock's office, but
Bullock refused to discuss the matter and directed Freeman
to leave the premises and not to return. At a later time
Freeman received a slip, filed by the Respondent with the
OVERNITE TRANSPORTATION COMPANY 519
Tennessee Department of Employment Security, which re-
cited that Freeman was separated because he "did not carry
out instructions."
On cross-examination Freeman was questioned as to the
reason he refused to cross the picket line at-the Ferenback
plant. Freeman replied that he was scared, that he had been
threatened with a busted head, and that he was fed up with
Leon Ferenback and afraid to cross the picket line. Free-
man also admitted on cross-examination that his prehearing
affidavit given to the Board's agent contained no mention
of the meeting of drivers which he testified took place after
his assignment to the Ferenback run on September 27.
Bynum Paul McKinney, like Freeman, was employed by
the Respondent at Bristol, and operated a tractor-trailer rig
on local deliveries in the tri-state area within a 50-mile
radius of the terminal. Also like the other drivers named in
the complaints, McKinney had customarily made freight
deliveries to the Ferenback plant at Johnson City before
events occurred in September and October which caused
him to refuse to enter the Ferenback premises.
On September 24, McKinney was dispatched with a com-
bination load to Johnson City. After several stops he ob-
served a picket line at the Ferenback plant, and because a
part of his load was destined for that customer he called
Assistant Terminal Manager John Cole. McKinney ex-
plained that all he had left to deliver was the Ferenback
freight, and asked if Cole wanted him to cross the picket
line. Cole replied, "No," but instructed McKinney to stop
at another location and pick up some freight which employ-
ee John Boozer had failed to deliver to Ferenback because
of unwillingness to cross the picket line. McKinney picked
up Boozer's freight and returned it to the terminal together
with his undelivered consignment for Ferenback.
On October 9, McKinney reported for work at 9 a.m. and
was dispatched with a load for Ferenback's plant No. I at
Johnson City. When McKinney arrived at Johnson City no
pickets were visible, and after talking with a Ferenback
foreman he entered the premises and made the delivery. The
pickets had arrived by the time McKinney departed, but
apparently nothing was said.
On the following day, October 10, McKinney was sent to
a pharmacy in Johnson City to drop a trailer to be unload-
ed. While at the pharmacy McKinney called Dispatcher
Kelly Terry, and was instructed to go to the K-Mart parking
lot to pick up a load from employee Billy Benfield.
Benfield's load was destined for Ferenback, but Benfield
had refused to cross the picket line. McKinney arrived at
the K-Mart parking lot, talked to Benfield, and then took
Benfield's tractor-trailer to the Ferenback plant. When he
arrived McKinney observed 8 or 9 pickets stationed across
the entryway at both Ferenback gates. At this juncture
salesman Bob Mullins drove up and asked McKinney if he
intended to cross the picket line. McKinney replied that he
could not afford to endanger his family or himself, and
refused to cross. McKinney waited while Mullins called the
terminal, and then drove the tractor-trailer back to the ter-
minal, while'Mullins and Benfield returned in the former's
automobile.
Back at the terminal, McKinney reported to Dispatcher
Milhorne, and was instructed to see Terminal Manager Bul-
lock. Bullock, with Cole present, asked McKinney what his
problem was, and McKinney replied that he was afraid for
-himself and his family to cross the picket line. Bullock asked
if McKinney's problem was with the pickets at Johnson City
or with employees Benfield and Street. McKinney replied
that the problem did not involve any of Overnite's employ-
ees, and refused Bullock's request that he reconsider and
deliver the consignment to the Ferenback plant. Bullock
answered that he would have to replace McKinney, and
shut off all further argument by McKinney concerning the
danger in crossing the picket line.
McKinney also testified that he attended the meeting of
drivers in the company parking lot, previously described in
the testimony of Larry Freeman. According to McKinney,
20 or 30 employees attended the meeting, but he was unable
to recall who the employees were or who spoke, and only
generally recalled some conservation about not crossing the
picket line at Leon Ferenback.
McKinney further testified that on an undisclosed day,
which he approximated as a month or two before his separa-
tion, he had a conversation with Assistant Terminal Manag-
er John Cole, at which Cole asked if McKinney knew of any
drivers available for hire. McKinney mentioned his wife's
cousin, and Cole asked who the individual drove for. Mc-
Kinney was unable to provide an answer, and Cole asked
if the proposed candidate was driving for a union outfit.
McKinney assured him that he had no such knowledge and
Cole stated, "We don't want none of that damn stuff around
here, we have enough bitching and griping the way it is."
On cross-examination McKinney admitted to knowledge
that Ferenback was a very good customer of the Respon-
dent, that McKinney had repeatedly made deliveries to that
location, and there was nothing unusual about his dispatch
on the Ferenback run. McKinney agreed that his reason for
not crossing the picket line was fear for what might happen
to his family and himself. Like Freeman, McKinney admit-
ted that his prehearing affidavit contained no mention of
the drivers' meeting held in the company parking lot. He
also admitted that he is not a member of, or represented by,
the United Textile Workers.
Billy Benfield, unlike Freeman and McKinney, was em-
ployed as both an over-the-road and a local driver out of the
Bristol terminal. As related above in conjunction with Mc-
Kinney's testimony, Benfield refused to cross the picket line
at Leon Ferenback's, and he was afraid for his own safety
and that of his family to cross the picket line. Terry replied
that Benfield was to call Bullock if he did not make the
delivery.
Benfield stopped on the outskirts of Johnson City, called
Ferenback, and was told that there were pickets at plant No.
1, but not at plant No. 2. He proceeded to plant No. 2, but
stopped at the entrance where 4 pickets were stationed. The
pickets explained that it was a legal strike and they did not
want Benfield to cross the picket line. A Ferenback shipping
clerk came out and told Benfield to enter and that the
pickets would not bother him: Benfield replied again that he
was concerned with the safety of himself and his family, and
was told by the clerk to proceed to the south gate.
The clerk accompanied Benfield to the south gate where
2 or 3 pickets were present. The pickets again informed
Benfield that a legal strike was in process and he was not
to cross the picket line. Benfield moved the truck to the
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K-Mart parking lot, called Bullock and told him that there
was a strike and a picket line at Ferenback 's. Bullock ex-
pressed awareness of these facts , and Benfield told him that
he feared for his safety and that of his family if he crossed
the picket line. Bullock replied that he had no alternative
but to replace Benfield , but told him to stay where he was
and someone would be sent to pick him up.
When Benfield returned to the terminal he met with Bul-
lock and again expressed fear about crossing the picket line.
Bullock answered that if Benfield would take the assign-
ment back and deliver it to Ferenback he could keep hisjob,
otherwise Bullock would replace him . Benfield refused and
left the terminal.
Upon cross-examination Benfield admitted that there
was nothing unusual about his dispatch to deliver freight to
Leon Ferenback, and that his only reason for refusing to
cross the picket line at Ferenback was that he was afraid for
himself and his family. Benfield also admitted that this was
the singular and sole reason he gave the Respondent's
agents when he refused the delivery assignment given him.
Grayson Street was initially employed by the Respondent
as an over-the-road driver , but from October 1973 until the
date of his separation he was employed as a local driver out
of the Bristol terminal. On October 10, Street was dis-
patched , at the same time as Benfield , to take a consignment
of freight to Leon Ferenback . Also like Benfield, Street was
given a telephone number to call when he reached Johnson
City. At the outskirts of Johnson City, Street stopped while
Benfield made a telephone call, and he then proceeded to
Ferenback 's plant No. 1, where he met pickets at the en-
trance . The pickets asked Street not to cross the picket line
and he contacted Assistant Terminal Manager John Cole.
Cole told Street to deliver the freight and to ignore the
pickets, but Street replied that he was afraid to make the
delivery. Cole transferred the call to Bullock , who repeated
the instruction to Street to take the freight into the Feren-
back plant and deliver it. Street refused on grounds of fear
and Bullock asked if Street knew what the consequences
would be . Street countered that he understood Bullock
would fire him , but Bullock replied , "No, I will dust replace
you." Street expressed his unwillingness to cross the picket
line and was told by Bullock to remain where he was and
someone would be sent to replace him.
Jerry Tibbs, another local driver , subsequently appeared
at the scene with salesman Mullins, and Street engaged
Tibbs in a conversation to the effect that Street did not want
to influence Tibbs' choice about crossing the picket line.
Tibbs in turn told Mullins that he would not cross the picket
line to enter the Ferenback premises , but Mullins persisted
in the argument that one employee or the other should
deliver the Ferenback freight. Mullins did not persist and
left to make a telephone call. When Mullins returned he
instructed Tibbs to drive Street 's truck back to the terminal.
Street accompanied Mullins to the K -Mart parking lot while
Mullins instructed McKinney to take the truck assigned to
Benfield to Leon Ferenback.
Street subsequently returned to the terminal with Mullins
and Benfield, with McKinney following in Benfield 's truck.
At the terminal Street was instructed to report to Bullock,
who asked Street to reconsider and deliver the freight to
Ferenback . Street refused and Bullock informed him that
there was no choice but to replace him.
On further direct examination Street testified that he had
been a member of the Textile Workers Union, but admitted
that his former membership in the Union had nothing to do
with his refusal to cross the picket line at the Ferenback
premises. On cross-examination Street admitted that he was
never threatened about crossing the picket line , but also
admitted that when he called Cole after refusing to make the
delivery he gave as his reason , " Because I was afraid to cross
the picket line." Street further admitted that in his later
conversation with Bullock , he told Bullock he "was afraid
to go in there." Street further admitted that neither in his
statement to company officials, nor in the information he
provided to the Board , did he mention any reluctance about
crossing the picket line because he was concerned "about
running over men trying to help themselves ." Street finally
admitted that there was nothing unusual about his dispatch
to Ferenback, and that he had made both pick ups and
deliveries from this customer before.
In further examination the Administrative Law Judge
posed the following questions to the witness Street:
JUDGEASHER Mr. Street , you testified that at one time
you were a member of the Textile Workers Union?
WITNESS Yes
JUDGE ASHER Were you a member of the Textile
Workers Union at the time you refused to cross their
picket line?
WITNESS No.
JUDGE ASHER Do I understand-I do not want to put
words in your mouth , Mr. Street , but I just want to
make sure that I understand your testimony If I have
misunderstood it, you are to correct me. Do I under-
stand that one of the reasons you refused to cross the
picket line was a matter of principle?
WITNESS Yes.
JUDGE ASHER And the other reason was that you were
scared?
WITNESS That is right.
JUDGE ASHER And there were two reasons?
WITNESS Yes.
JUDGE ASHER And both of these reasons contributed
to your decision not to cross the picket line
WITNESS Yes.
JUDGE ASHER That is what I thought you testified but
I wanted to be sure.
In furtherance of the foregoing questions and answers
Street was further cross-examined by the Respondent. In
this examination Street admitted that his motive of sympa-
thy with the Ferenback strikers was never mentioned to the
Respondent as a reason for refusing to cross the picket line,
was never furnished to the Board 's agents in any prehearing
interview of correcpondence , and was advanced by Street
for the first time during the course of the hearing.
Much of the evidence of the background events leading
to the separation of employee Jerry Tibbs has been outlined
above. In capsulization , Tibbs was dispatched on October
10 with a consignment of freight for Leon Ferenback. Tibbs
OVERNITE TRANSPORTATION COMPANY 521
was told by Cole that Grayson Street had refused to cross
the picket line at Ferenback plant, but Cole only repeated
his instructions. Salesman Mullins drove Tibbs to
Ferenback's plant No. 1. Tibbs then conversed with the
pickets, and was asked if he had figured out the conse-
quences of what would happen if he crossed the picket line.
Tibbs was also warned that there were ways of getting peo-
ple who ran frieght across a picket line. Tibbs conferred
with Street, and then informed Mullins that he would not
take the consignment across the picket line. Mullins made
a call and directed Tibbs to take the truck back to the
terminal. Back at the terminal Tibbs saw Bullock, who
asked him to reconsider. Tibbs refused on grounds that he
could-not take the chance of involving himself or his family,
and that he didn't want to hurt anyone else. Bullock replied
that he was left with no choice but to replace Tibbs.
On direct examination Tibbs related that he attended the
meeting of drivers held in the company parking lot in late
September. According to Tibbs' version several employees
gathered in the parking lot and had a discussion about the
ordeal Freeman had suffered when he attempted to deliver
freight to the Ferenback plant. Freeman told the group that
he did not want to cross-the picket line because he had been
threatened. According to Tibbs he stated to the drivers that
he did not want to cross because the Ferenback employees
were trying to help themselves, and several other employees,
including Freeman and McKinney, joined in this expression
and agreed not to cross the picket line.
On cross-examination Tibbs acknowledged that he made
no mention of the drivers' meeting in the affidavit of facts
previously furnished to the Board' s agents. Tibbs similarly
admitted that in the information he provided to the Board
he had given as his reason for not crossing the picket line,
"I'did not want to go because there had been a lot of
violence on that picket line and I had children and I asked
him to send another driver." Finally, Tibbs also admitted on
cross that when he approached the picket line on October
10, he observed men in a car with rifles and shotguns, was
threatened by the pickets, and returned to the terminal to
tell Bullock he would not cross for fear that something
might happen to his family or himself.
B. The Respondent's Defenses
It is a defense of the Respondent that an employee who
refuses to cross a picket line because of physical fear is not
engaged in concerted activity because he does not act on
principle, makes no common cause, and contributes noth-
ing to mutual aid or protection in the collective-bargaining
process.5 It is an alternative defense of the Respondent that
the five employees named in the complaints were not dis-
charged, but rather replaced because of the Company's
overriding business necessity to serve a customer and, ac-
cordingly, the five employees have status only as replaced
economic strikers who have not applied to return to work .6
In support of its alternative defense, the Respondent elic-
ited the testimony of Terminal Manager Bullock, who testi-
fied, as is otherwise well established in the record , that Leon
Ferenback, Incorporated, is a regular and substantial cus-
tomer of the Respondent 's Bristol terminal. Freight pickups
and deliveries from Fer enback's Johnson City plants consti-
tuted an established portion of the Respondent 's business
before the strike called by the Textile Workers, and has
continued as a substantial portion of its Bristol business
during the strike. According to Bullock , the Respondent's
business records reflect that during the 4-month period of
September through December , 1973, the Respondent sent or
received approximately 30 to 32 trailer loads of freight each
month from the Ferenback plants. Bullock also testified
that Respondent's local drivers are assigned to regular runs,
and that 8 to 12 local drivers are required to service Feren-
back out of the Bristol terminal.
The Respondent operates under an ICC certificate, and
after the strike by the Textile Workers began the Respon-
dent received a call from Ferenback to the effect that legal
action would be instituted if the Respondent did not contin-
ue to service its customer . When the five employees persist-
ed in their refusals to cross the picket line , Bullock replaced
the employees , and, according to his uncontradicted testi-
mony, the replacements are still employed and the replaced
employees have not applied to return to work . Although the
strike has continued , the Respondent has also continued to
make pickups and deliveries at Ferenback's plants.
The General Counsel conducted a very limited cross-
examination of Bullock , touched only peripherally on
Bullock's direct testimony concerning the Respondent's
business necessity , and the hiring and continued employ-
ment of replacements. The General Counsel offered no re-
buttal evidence to refute or alter the evidence established by
Bullock 's testimony.
C. The Conclusions
Some fundamental legal principles involved in this pro-
ceeding are well established under a substantial body of
legal precedent, and can be disposed of at the outset. Non-
striking employees who refuse as a matter of principle to
cross a picket line maintained by their fellow employees
have made common cause with the strikers, are engaged in
protected concerted activities as defined in Section 7 of the
Act, and may not lawfully be discharged.7 It is not material
that the employee who refuses to cross the picket line is not
a member of the picketing union, is not represented as part
of the collective-bargaining unit, or that the picketing is
directed at another employer!
It is a contention of the General Counsel, relying on the
testimony of Bynum Paul McKinney, that the Respondent's
motive in terminating the 5 employees was dictated by an-
tiunion considerations, and that the issue of the replacement
of the employees has simply been interjected by the Respon-
dent as a subterfuge masking its discriminatory motive. Mc-
Kinney's testimony concerning the remarks made by
5 N.L R.B. v. Union Carbide Corporation, 440 F 2d 54, 56 (C.A. 4,197 1),
cert denied 404 U.S 826, 1971.
6 N.L.RB. v. Southern Greyhound Lines, Division of Greyhound Lines, Inc.
426 F.2d 1299 (C A. 5, 1970).
N L R B v. Southern Greyhound Lines, supra; N L R B v Difco Laborato-
ries, Inc . 427 F 2d 170 (CA 6, 1970).
8 Nuodex Division of Tenneco Chemicals, Inc , 176 NLRB 611, Braswell
Motor Freight Line, 189 NLRB 503.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assistant Terminal Manager Cole during a conversation
about candidates for drivers' jobs was not contradicted or
rebutted by the Respondent, and I credit McKinney's testi-
mony. I find, nevertheless, that a single expression of union
animus, made at a time substantially in advance of all
events material to this case, and spoken in a context totally
unrelated to the separations, is too isolated and remote to
warrant a finding that the Respondent's motive was that
proscribed by Section 8(a)(1) and (3) of the Act. The Gener-
al Counsel's contention is rejected
It is the General Counsel's further contention that the
termination of the five employees for refusing to cross the
Ferenback picket line, and irrespective of whatever motive
impelled them to refuse to make the freight deliveries, is per
se a violation of Section 8(a)(I) of the Act. The General
Counsel argues that the focal point of the inquiry is the
activity itself, that is the employees' act in making common
cause with the Ferenback strikers by refusing to cross their
picket line, and that the employees' motives for engaging in
the activity are totally irrelevant.
As support for her contention that motive is irrelevant,
the General Counsel relies on language in Administrative
Law Judges' decisions in the Cooper Thermometer 9 and
Nuodex 10 cases, and particularly on the language that the
focal point of the inquiry is the nature of the activity, not
"the employee's motives for engaging in the activity." There
is no doubt the cases relied on by the General Counsel
contain, in haec verba, the quoted language, but in my view
both cases are clearly distinguishable on the facts from the
situation here. In Cooper Thermometer the employee's justi-
fications for refusing to cross a picket line were (I) the
danger involved, (2) the reluctance to be a strikebreaker,
and (3) knowledge that she would be depriving the strikers
of their jobs. Here, I find that the sole motivation of the
employees was physical fear
The Nuodex case, moreover, did not turn on any evidence
of the employee's subjective motive in refusing to cross the
picket line, albeit the issue of motive was injected into the
Administrative Law Judge's decision. The Board's decision
in Nuodex simply denied the employer's contentions that an
employee is not engaged in concerted activity when she is
not a member of the bargaining unit, or refuses individually
to cross, as opposed to refusing in concert with others.
Although not cited by the General Counsel, I find that the
Board's decision in the Congoleum Industries case,' 1 on a
factual situation which closely parallels the facts of these
cases, is diapositive of the issue of whether the five employ-
ees named in these complaints were engaged in concerted
activity. In Congoleum the sole .reason advanced by the
discharges for refusing to cross a picket line, maintained by
a union which they were neither members of nor repre-
sented by in the bargaining unit, was physical fear. The
Administrative Law Judge, without relying on the
employer's antiunion motives expressed in other aspects of
the case, found that the discharges constituted per se viola-
tions of Section 8(a)(1). The Board adopted the finding as
to both the protected and concerted nature of the employ-
9 The Cooper Thermometer Company, 154 NLRB 502, 504
10 Nuodex Division of Tennesco Chemicals, Inc, 176 N LRB 611
11 Congoleum Industries, Inc, 197 NLRB No 52
ees' activities.
As related above, the Respondent relies on the decision
of the Court of Appeals for the Fourth Circuit in Union
Carbide Corporation, supra, for the proposition that an em-
ployee who refuses to cross a picket line solely for reasons
of physical fear is not engaged in concerted activities be-
cause he does not act on principle, makes no common cause,
and contributes nothing to mutual aid and protection in the
collective-bargaining process. 12 In my view much is to be
said to the Fourth Circuit' s rationale in Union Carbide, par-
ticularly under circumstances, as the credited testimony re-
veals here, where the physical fear which caused the
employees to act was unattended by any mixed motive con-
ducive to a finding of intent to engage in a common cause.
Put blindly, an act undertaken because of physical fear is
the very antithesis of the assertion of a principle to make
common cause, or "plight one's troth with the strikers."
I am bound, nevertheless, by Board law until the Supreme
Court has overruled that law, or until the Board has adopted
a contrary rule. Inasmuch as the Board cited the Fourth
Circuit's Union Carbide decision in Congoleum Industries,
albeit in support of another proposition, Congoleum obvi-
ously rejects the courts' view and constitutes the controlling
law for purpose of this decision. I find, accordingly, that the
five employees named in the complaints were engaged in
protected concerted activity when they refused to cross the
picket line at the Ferenback plants.
With regard to the Respondent's alternative defense, the
General Counsel argues that the Company did not seriously
attempt to establish an "overriding employer interest" re-
quiring "termination" of the five drivers except by oblique
reference to its ICC certification and possible "action
through their lawyers" by Ferenback The General Counsel
also argues against the Respondent's contention that the
separated employees are economic strikers who have an
obligation to make an unconditioned application if they
wish to return to work. In support of her arguments, coun-
sel for the General Counsel relies on the decision of the
Administrative Law Judge in an earlier case involving one
of the Respondent's other terminals.13 I find that the Gen-
eral Counsel's arguments on the replacement issue lack
merit both factually and legally.
In the second Redwing case 14 the Board, while acknow-
ledging that the' act prohibits reprisals against employees
who engaged in protected activity, by refusing to cross a
picket line, acknowledged the employer's corresponding
right to attempt to run its business, which must be balanced
against the right of the employees. In distinguishing be-
tween replacement ahd discharge, the Board held:
In considering the continued validity of the dis-
charge-replacement distinction in this situation, 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 oper-
li Union Carbide, supra at p 56
13 Overnice Transportation Company, 209 NLRB No 112
14 Redwing Carriers, Inc.and Rockana Carriers, Inc, 137 NLRB 1545; affd
sub nom Teamsters, Chauffeurs and Helpers Local Umon No 79 v N. L R B ,
325 F 2d 101 1 (C A D C , 1963 ), cert denied 377 U S 905 (1964)
OVERNITE TRANSPORTATION COMPANY 523
ation of his business, 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 chronological order in which the
employer terminated and replaced the employees in
question.
In a subsequent case,15 the Board expanded on its ratio-
nale in Redwing, supra, by holding:
... if the protected right of employees is to have any
meaning at all, then the employer who would justify a
discharge on the basis of an overriding employer inter-
est must present more than a mere showing that some-
one else may have to do the work. . . . and it is only
when the employer's business need to replace the em-
ployees is such as clearly to outweigh the employees'
right to engage in protected activity that invasion of the
statutory right is justified.
It is essential, of course, that the business need of the
employer constitute more than a slight inconvenience,16 as
it is equally essential that the employer prove that replace-
ments were hired to perform the work, and not merely that
the work was transferred to other employees on the pay-
roll. 17
Upon the whole record before me, I find that the Respon-
dent has met the "stringent"18 burden to prove that it re-
placed the employees who refused to cross the picket line for
valid reasons dictated by business necessity. There is, in the
first instance, no evidence that the employees were dis-
charged. Each employee was told at the time of his separa-
tion that he would have to be replaced, and there is no
realistic evidence that the Respondent was engaging in a
subterfuge to hide an antiunion motive, or to discourage
other; employees from engaging in concerted activity. The
replacements were hired, did deliver freight to Ferenback
during the continuation of the strike, and were still em-
ployed on the date these cases were heard.
As to the Respondents' business need, I find that Leon
Ferenback, Inc., is a substantial customer of the
Respondent's Bristol terminal, and that pickups and deliv-
eries of freight from Ferenback's 'plants at Johnson City
were a substantial portion of the work assigned to the local,
and some over-the-road drivers, at the Bristol terminal. Al-
though I find that the Respondent's drivers were not as-
15 Overnice Transportation Company, 154 NLRB 1271, 1274
16 Braswell Motor Freight Line, 189 NLRB 503, 506
17 Montana-Dakota Utilities Co., 189 NLRB 879; Congoleum Industries,
supra.
is Braswell Motor Freight, supra
signed to fixed and regular runs, pickups and deliveries, at
the Ferenback plants constituted a substantial portion of
the regular work of all drivers at the Bristol Terminal, in-
cluding the five drivers whose status is here in contest.19 I
find no evidence in the record to substantiate the contention
that the Respondent could have assigned other drivers to
take the place of those who refused to cross the picket line.
On the contrary, the evidence is that the Respondent did
attempt to substitute other drivers on Ferenback deliveries,
but with the same result that the substitutes also refused to
cross the picket line. As the Board has held, the employer
is obligated to "present more than a mere showing that
someone else may have to do the work," but this does not
mean that the employer is required to institute a "tempo-
rary, makeshift arrangement" or emergency procedures in
order to preserve the efficient operation of his business 20
I find and conclude that the Respondent met its burden
of proof of its business necessity, that the employees were
replaced, not discharged, that replacements 21 were hired to
perform the work which the separated employees refused to
perform in the exercise of their right to engage in concerted
activity, and that the replacements did perform the work
and have continued to be employed. As the Respondent
established the requisite evidence to meet its burden of
proof under Redwing, Braswell, and related cases, the bur-
den of going forward shifted back to the General Counsel
to prove that the facts were not as proffered by the
Respondent's evidence. Having failed to meet this burden,
I find and conclude that the General Counsel has not
proved by a preponderance of the evidence that the Respon-
dent violated the Act, and I shall recommend that the com-
plaint be dismissed in its entirety.
CONCLUSIONS OF LAw
1. The Respondent, Overnite Transportation Company,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, United Textile Workers of America,
AFL-CIO, Local 532, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not violated the National Labor
Relations Act as alleged in the complaint.
[Recommended Order omitted from publication.]
19 Overnite Transportation Company, 209 NLRB No. 112 at p. 4.
20 Overrate Transportation, Ibidd, at p 4, citing Overnite Transportation Com-
pany, 154 NLRB 1271, 1274, and Thruston Motor Lines, Inc, 166 NLRB 862,
866
21 The General Counsel appears to contend that even if the employees were
replaced on grounds of the Respondent's business need, they have no obliga-
tion to apply for reinstatement. Employees who refuse to cross a picket line
in the exercise of their sec. 7 rights are economic strikers and entitled to
reinstatement upon request. M/G Transport Services, Inc , 204 NLRB No 59.
The record reveals that none of the employees have applied for reinstate-
ment The General Counsel's reliance on Braswell, supra, Overnice Transpor-
tation Company„ 154 NLRB 1271, and Nuodex, supra, is misplaced because
of those case, unlike here, the employees were discharged, not replaced, and
here it would not be a futility for them to apply to return to work.