P.B.&S. Chemical Co.

National Labor Relations Board - Board Decisions

Jun 21, 1996

321 N.L.R.B. 525 (N.L.R.B. 1996)

525
321 NLRB No. 75
P.B.&S. CHEMICAL CO.
1 The Respondent asserted in its exceptions that its business
would have been jeopardized if it had not discharged Kenneth
Seagrave and Charles Beaver for their refusal to cross the picket line
and make deliveries to customer Union Camp. The evidence con-
cerning the Respondent’s actions after their discharge does not, how-
ever, support this claim. The Respondent was able to make the
Union Camp deliveries throughout the strike by using employees
from its nearby Nitro Branch. It made no effort to hire new employ-
ees at Proctor branch, where Seagrave and Beaver had worked, until
after the strike was over. We therefore reject the Respondent’s con-
tention that in discharging Seagrave and Beaver it acted only to pre-
serve the efficient operation of it business. Compare Redwing Car-
riers, Inc., 137 NLRB 1545, 1546, 1548 (1962), enfd. sub nom.
Teamsters Local 79 v. NLRB, 325 F.2d 1011 (D.C. Cir. 1963), cert.
denied 377 U.S. 905 (1964).
We also note that in Board decisions subsequent to Redwing Car-
riers, the Board held that the distinction made between discharge
and replacement in economic striker cases was equally applicable in
sympathy striker cases, i.e., that an employer could protect his right
to continue business operations in the face of a sympathy strike only
by replacing, rather than discharging, the strikers. Torrington Con-
struction Co., 235 NLRB 1540, 1541 (1978). Because the Employer
had no evident necessity either to replace or discharge Seagrave and
Beaver during the strike, however, the distinction is not critical in
this case.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
4 In ABS Co., 269 NLRB 774, 774–775 (1984), the Board stated:
It is well established that nonstriking employees who refuse
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 be lawfully discharged for these activities. According to
Board policy, it is not material that the employee who refuses
to cross the picket line . . . is motivated solely by personal fear.
Accord: Whayne Supply Co., 314 NLRB 393, 400 (1994).
5 See, e.g., NLRB v. Union Carbide Corp., 440 F.2d 54 (4th Cir.
1971).
P.B.&S. Chemical Company, Inc. and Kenneth
Seagrave and Charles Beaver. Cases 6–CA–
27107 and 6–CA–27265
June 21, 1996
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND FOX
On October 20, 1995, Administrative Law Judge
Stephen J. Gross issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief in opposition
to the Respondent’s exceptions as well as limited
cross-exceptions and a supporting brief. The Respond-
ent filed an answering brief to the General Counsel’s
limited cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions, except as modified below, and to adopt
the recommended Order as modified and set forth in
full below.3
The judge found that on December 19, 1993, the
Respondent unlawfully discharged its drivers, Kenneth
Seagrave and Charles Beaver, for their refusal to cross
the picket line and make deliveries at Union Camp,
one of its customers. In doing so, the judge correctly
observed that the Board has held that the motive of
employees who refuse to cross a lawful picket line is
irrelevant to whether the refusal is protected under the
Act.4 The judge also correctly stated that some Circuit
courts of appeal have not adopted the Board’s position
in this respect.5 The judge therefore made findings
concerning the motivation of Kenneth Seagrave and
Charles Beaver for their refusal to cross the lawful
picket line and make deliveries to customer Union
Camp. The judge found that neither Seagrave nor Bea-
ver expressed direct support for the strikers, but rather
had sought to avoid giving the appearance of taking
sides and had communicated this to the Respondent.
The judge found, however, that Seagrave and Beaver
did not express this objective very clearly. He found
that Seagrave and Beaver were primarily motivated by
their fear of being physically harmed.
After carefully reviewing the record, we disagree
with the judge’s findings pertaining to Seagrave’s and
Beaver’s motivation. Although we agree that the
record shows that Seagrave and Beaver were con-
cerned about their personal safety in refusing to cross
the picket line, we find, as discussed below, that the
record also establishes that Seagrave and Beaver were
equally concerned about remaining neutral in the labor
dispute. We further find that the Respondent was
aware of both concerns.
The record shows that sometime after the first week
of December 1993 Seagrave credibly told Charles
Duncan, the Respondent’s Proctor branch manager,
that he would not cross the picket line at Union Camp.
He gave Duncan two reasons: (1) he was concerned
about his personal safety, and (2) he also felt that he
should not get involved. On December 19, he again re-
peated to Duncan his twin concerns of personal safety
and noninvolvement. When he spoke to Duncan on the
telephone before returning to the plant without making
the Union Camp deliveries that day, Seagrave ex-
pressed anxiety about getting a rock through the
truck’s windshield. Then, back at the plant, Seagrave
later told Duncan that crossing the picket line ‘‘put
[him] in a bad position with the employees up there
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Seagrave variously testified:
(i) . . . I did not feel it was right that I be put in a position
with the employees at Union Camp, but I had nothing directly
involved with them and my personal safety was involved in it.
(ii) . . . this made me feel like—it put me in a bad position
with the employees and I had nothing to be—I shouldn’t be in-
volved with what was going on over there. That was between
Union Camp and their employees.
I just—I didn’t want to cross the picket line in fear of my life,
too, because you never know what happens in situations like
that.
(iii) . . . That [fear for my life] is the main reason, yes, and
that it put me in the middle of something and I felt that I did
not have nothing there, I shouldn’t be involved in what’s going
on over there.
(iv) . . . I told Mr. Duncan that I felt uneasy about going
across the picket line, going in and out of there, getting dirty
looks and stuff from the people on the picket line . . . I told
him that I didn’t, that I was not crazy about crossing the picket
line. I didn’t feel right about it.
7 Sec. 7 protects the right of an employee to remain neutral in a
labor dispute to the same extent that it protects an employee’s right
to participate in the dispute. See Texaco, Inc. v. NLRB, 700 F.2d
1039, 1043 (5th Cir. 1981).
8 We find this case factually distinguishable from the situation pre-
sented in Union Carbide, supra. In that case, the court determined
that because employee Mullins’ refusal to cross a lawful picket line
was based solely on fear, his conduct was not protected under Sec.
7 of the Act. See 440 F.2d 54, 56 fn. 1. Here, unlike Mullins, both
Seagrave and Beaver refused to cross a lawful picket line based on
principle as well as fear.
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
and [he] would not do it.’’6 Like Seagrave, Beaver
also credibly told Duncan several times that he would
not cross the picket line at Union Camp. On those oc-
casions when this topic was discussed at the plant in
early December 1993, Beaver told Duncan that he had
two reasons for not crossing picket lines—(1) these sit-
uations were ‘‘dangerous and [his] life could be
harmed,’’ and (2) ‘‘[he] didn’t believe in messing with
another man’s job.’’
Contrary to the judge, we find that both drivers were
equally concerned with remaining neutral in the labor
dispute and with their personal safety. We thus find
that Seagrave and Beaver, who were motivated not
only by a fear of physical harm but also by a desire
to avoid giving the appearance to the Union Camp
strikers of siding with management against the strikers,
were engaged in protected concerted activity within the
meaning of Section 7 of the Act.7 Therefore, we adopt
the judge’s conclusion that the Respondent’s termi-
nation of Seagrave’s and Beaver’s employment vio-
lated Section 8(a)(3) and (1) of the Act.8
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, P.B.&S. Chemical Company, Inc., Proc-
tor, West Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Terminating the employment of employees be-
cause of their protected concerted activities in refusing
to cross lawful picket lines maintained by a union at
customer locations.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Kenneth Seagrave and Charles Beaver full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Kenneth Seagrave and Charles Beaver
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in
the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility in Proctor, West Virginia, copies of the
attached notice marked ‘‘Appendix.’’9 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since March 9, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
527P.B.&S. CHEMICAL CO.
1 The General Counsel has filed an unopposed motion to correct
the transcript, which is granted.
2 Tr. 29.
3 Tr. 25 and 26.
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT terminate the employment of our em-
ployees because of their protected concerted activities
in refusing to cross lawful picket lines maintained by
a union at customer locations.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Kenneth Seagrave and Charles
Beaver full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Kenneth Seagrave and Charles Bea-
ver whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharges of Kenneth Seagrave and
Charles Beaver, and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done
and that the discharges will not be used against them
in any way.
P.B.&S. CHEMICAL COMPANY, INC.
Janice Anne Sauchin, Esq., for the General Counsel.
C. Laurence Woods III, Esq. (Westfall, Talbott & Woods), of
Louisville, Kentucky, for the Respondent.
DECISION
I. INTRODUCTION
STEPHEN J. GROSS, Administrative Law Judge. The Re-
spondent, P.B.& S. Chemical Company, Inc. (P.B.&S.), pur-
chases chemicals in bulk and then resells them to manufac-
turers and mine operators. (As P.B.&S. agrees, the Company
is an employer engaged in commerce within the meaning of
the National Labor Relations Act (the Act)). P.B.&S.’s head-
quarters are in Kentucky. The Company has a number of
branches. The branch we are concerned about here is in
Proctor, West Virginia. The employees at the Proctor branch
are not represented by a union. (Hereafter when I refer to
PBS without designating a particular facility, I will be refer-
ring to P.B.&S.’s Proctor facility.)
The Charging Parties, Charles R. Beaver and Kenneth
Seagrave, were employed as tractor-trailer drivers by
P.B.&S. until December 19, 1994. The General Counsel al-
leges that PBS violated Section 8(a)(3) and (1) of the Act
by firing Beaver and Seagrave, and thereafter refusing to re-
hire them, because they refused to cross a picket line main-
tained by the employees of one of P.B.&S.’s customers.1
P.B.&S. agrees that it fired Seagrave on December 19, but
contends that the Company did so for reasons other than
Seagrave’s refusal to cross a picket line. (All events to which
this decision refers occurred in 1994 unless otherwise speci-
fied.) As for Beaver, PBS contends that it did not fire him.
Rather, says the Company, Beaver quit.
I will discuss PBS’s discharge of Seagrave on December
19 in section II of this decision; then, in section III, the ter-
mination of Beaver’s employment on that same day.
II. SEAGRAVE
A few background facts ought to be considered in placing
the events of December 19 in context.
1. As of December, Seagrave had worked for P.B.&S. for
about 9 years. P.B.&S. considered Seagrave to be good a
employee.
2. In 1993 the employees of a major P.B.&S. customer,
Koppers Company, went out on strike and set up a picket
line. Seagrave told his supervisors that he did not want to
make deliveries across the Koppers picket line. Charles Dun-
can is the branch manager of P.B.&S.’s Proctor facility (and,
therefore, the senior P.B.&S. official in Proctor). Duncan re-
sponded by telling Seagrave that the only work that P.B.&S.
had for Seagrave were the runs to Koppers. Seagrave opted
to make the runs, but told Duncan that he did remained un-
comfortable about crossing the Koppers picket line and
would not cross it if the pickets gave him ‘‘any hassle.’’2 No
hassles developed, and Seagrave made the runs uneventfully.
3. In early December Seagrave and fellow P.B.&S. truck-
driver Beaver learned about the possibility of a strike by the
employees of an important new customer of PBS, Union
Camp Chemical Company. At an impromptu meeting with
Duncan, the two employees spoke about this possibility and
said that they would not cross any picket line that the Union
Camp employees might establish. Seagrave gave two reasons
for that position. One was his ‘‘personal safety’’—that he
feared for his life. The other was that he did not want to ‘‘be
involved with what was going on over there; that was be-
tween Union Camp and their employees.’’3 Duncan re-
sponded by saying that: (a) someone from Union Camp
would call him if there was to be a strike and that he would
pass the information on to Beaver and Seagrave; (b)
P.B.&S.’s policy was to make deliveries to customers during
strikes unless there was a threat of violence; and (c) Beaver
and Seagrave should understand that if there was a strike at
Union Camp and if they refused to make deliveries there,
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Tr. 82.
5 Tr. 33.
6 Tr. 33.
7 Tr. 80.
8 Tr. 91.
that would affect the number of hours per week that P.B.&S.
could employ them (and, therefore, their pay).
4. Union Camp’s production and maintenance employees
are represented by Local 20 of the Chemical Workers which,
the record shows, is a labor organization within the meaning
of the Act. (In its answer to the complaint, P.B.&S. denied
that to be the case. P.B.&S. did not pursue that contention
on brief.) That Union called the employees out on strike on
December 16. The Union Camp employees remained out on
strike until mid-February 1995. An official of Local 20, Jim
Bealer, testified that throughout that time a picket line was
in place at Union Camp’s facility in Dover, Ohio (the only
Union Camp facility with which P.B.&S. did business). But
Bealer often was elsewhere, and it is thus entirely possible
that there were occasions when pickets were not present.
Bealer credibly testified that the pickets were instructed to
request truckdrivers not to complete their deliveries to Union
Camp but otherwise were not to obstruct traffic into or out
of Union Camp’s facility.
5. Ed Ankrom is P.B.&S.’s plant manager and dispatcher
at Proctor. (Ankrom reports to Duncan.) On Friday, Decem-
ber 16, he ordered Seagrave to deliver a tank load of caustic
soda to Union Camp by 8 a.m. on Monday, December 19.
Seagrave left Proctor early Monday morning, in accordance
with Ankrom’s instructions.
No one at P.B.&S. knew about the strike at Union Camp
until early Monday morning. Seagrave accordingly arrived in
Dover at about 7 a.m. not realizing that a strike was under-
way. But as Seagrave got within about 4 blocks of Union
Camp, he received a call on his truck’s citizens’ band radio
from someone who described himself as a Union Camp em-
ployee, said that the employees were on strike, that a picket
line was up, and that the Union Camp employees were ask-
ing drivers not to cross the picket line. Seagrave then turned
his truck around (without getting within view of the Union
Camp facility), pulled onto the parking lot of a nearby fast
food restaurant, and, at about 7:30 a.m., called Ankrom.
Seagrave told Ankrom that the Union Camp employees
were on strike and that he was unwilling to cross the picket
line. Ankrom told Seagrave that he was not asking Seagrave
to attempt to drive through the picket line, that Seagrave
should stay put, and that someone would telephone him
about what to do next.
Duncan arrived at P.B.&S. a few minutes after Seagrave’s
telephone call. Ankrom gave Duncan the news. Duncan
called Union Camp, spoke to several different people there,
and was told that, while there had been no pickets earlier,
some were there now. Notwithstanding the pickets, Duncan
was informed, trucks were entering and leaving Union
Camp’s plant freely. A Union Camp security guard advised
Duncan that if P.B.&S.’s trucks used Union Camp’s main
gate, they could enter the plant without having to stop. Dun-
can then called P.B.&S.’s headquarters to report on the situa-
tion at Union Camp. Two senior P.B.&S. officials told Dun-
can that, unless there was a risk of violence, they wanted
Duncan to do whatever was necessary to ensure that
P.B.&S.’s deliveries to Union Camp be made as scheduled.
In the meantime, a Union Camp official called Seagrave
(at the restaurant) to say that Union Camp needed the load
that Seagrave had hauled into Dover and that guards were
available to protect Seagrave as he entered and exited the fa-
cility. But Seagrave said he would not make the delivery.
Seagrave then telephoned Duncan. Duncan told Seagrave that
trucks were entering and leaving the Union Camp plant with-
out difficulty and that guards were at the plant to protect
him. Duncan then ordered Seagrave to make the delivery.
According to Duncan, Seagrave responded that he would
not cross the picket line. Duncan reminded Seagrave that
P.B.&S. had promised to make the delivery and that the only
work that P.B.&S. had for Seagrave were the runs to Union
Camp. But Seagrave, said Duncan, again refused to make
what Seagrave called ‘‘the God damn delivery’’ (that is Dun-
can purportedly quoting Seagrave)4 and said that he was
bringing the truck back to Proctor. Seagrave then hung up
and did indeed drive back to the P.B.&S.
Seagrave, however, testified that when Duncan ordered
him to cross the picket line, he expressed concern for his
safety. But Duncan presented an ultimatum: either make the
delivery or have his employment terminated. Seagrave hung
up the telephone and returned to P.B.&S..
On arriving at P.B.&S., Seagrave told Ankrom that he had
been fired by Duncan. Ankrom, who had been working with
Seagrave for many years, brought Seagrave into Duncan’s
office so that the matter could be discussed further. Seagrave
testified that he told Duncan that he wanted to continue to
drive for P.B.&S. but that he was unwilling to cross the
picket line at Union Camp because it put Seagrave ‘‘in a bad
position with the employees’’ at Union Camp.5 According to
Seagrave, Duncan then said that although he was sorry to
lose Seagrave, Seagrave ‘‘no longer [had] a job’’ with
P.B.&S.6 On the witness stand Seagrave denied using any
expletives or profanity during this conversation.
Duncan painted a somewhat different picture of this meet-
ing. According to Duncan, the position he expressed was that
Seagrave would remain an employee of P.B.&S. even if
Seagrave refused to cross the picket line at Union Camp. But
since the only work that P.B.& S. had for Seagrave were the
runs to Union Camp, P.B.&S. might not have ‘‘anything . . .
for him to do.’’7 Duncan testified that he had told this first
to Ankrom, then to Seagrave in the course of his earlier tele-
phone conversation with Seagrave, and then again to
Seagrave when Ankrom brought Seagrave into his office.
Duncan went on to testify that in that meeting with Seagrave
and Ankrom, Seagrave cursed at Duncan. Only then, accord-
ing to Duncan, did Duncan fire Seagrave. He did so, said
Duncan, because of Seagrave’s ‘‘total uncooperativeness . . .
not willing to work [with] me on resolving the problem . . .
plus, you know, cussing me out.’’8
For a number of reasons, I credit Seagrave’s version, not
Duncan’s, of his telephone conversation with Duncan and his
meeting with Duncan and Ankrom.
First, a separation report prepared by Duncan on Decem-
ber 19 supports Seagrave’s version of the events that day. It
states that Seagrave was discharged for ‘‘insubordination’’ in
that Seagrave
Refused to make a delivery to a customer. Kenneth
Seagrave was to make a delivery to Union Camp
Chemical in Ohio OH. Upon arriving at the customer
529P.B.&S. CHEMICAL CO.
9 G.C. Exh. 6. The above quotation is everything that the report
has to say about P.B.&S.’s discharge of Seagrave.
10 Tr. 35.
11 E.g., G & S Transportation, 286 NLRB 762, 766 (1987).
12 E.g., Whayne Supply Co., 314 NLRB 393, 400 (1994).
13 E.g., G & S Transportation, supra.
14 Redwing Carriers, 137 NLRB 1545, 1547 (1962),
15 The quotations are from Tr. 49.
16 Tr. 50.
he found that they were on strike and had set up a pick-
et line. He called in [and] said he was not making the
delivery. After checking with the plant and being in-
formed that everything was [quiet] and other trucks
were entering and leaving the plant without problems,
I instructed Kenny to make the delivery which he again
refused to do.9
Second, Duncan testified that he told Ankrom as well as
Seagrave that one of his concerns about Seagrave’s unwill-
ingness to cross the Union Camp picket line was that, apart
from the Union Camp runs, P.B.&S. had no work for
Seagrave. But Ankrom, on the witness stand, did not remem-
ber Duncan saying anything like that to him.
Third, no one asked Ankrom about the Duncan-Ankrom-
Seagrave meeting on December 19. That seems strange to
me. Ankrom was, and is, a P.B.&S. supervisor. He was in-
disputably present at that meeting. He testified at the hearing.
Under these circumstances one would expect P.B.&S. to
have asked him to describe what happened at the meeting.
Because P.B.&S. did not, I infer that, had Ankrom been
questioned about the meeting, his testimony would have been
inconsistent with Duncan’s. See Champion Rivet Co., 314
NLRB 1097, 1098 fn. 8 (1994); accord: Iron Workers (J. W.
Reinforcing), 317 NLRB 817, 818 (1994); Top Gun, Inc.,
313 NLRB 185, 189 (1993); and Chevron U.S.A., 309 NLRB
59, 61 (1992).
Fourth, Seagrave testified that on December 20 P.B.&S.’s
manager of human resources, Kenneth Curry, telephoned
Seagrave to ask Seagrave what had happened between him
and Duncan. Seagrave responded by saying that Duncan fired
him because he refused to cross a picket line at Union Camp.
Curry replied, according to Seagrave, that ‘‘it was company
policy to make deliveries to our customers and to serve our
customers.’’10 That, of course, suggests that that Seagrave’s
refusal to cross the picket line was in fact the reason that
Duncan fired Seagrave. Curry did not testify and thus this
testimony by Seagrave is undenied.
There is a P.B.&S. branch in Nitro, West Virginia. (The
caustic soda that Seagrave and Beaver had been delivering
to Union Camp originated at the Nitro branch.) Later, on De-
cember 19 a P.B.&S. driver based in Nitro completed the run
without incident to Union Camp that Seagrave had been as-
signed.
Drivers from the Nitro branch continued to make the de-
liveries to Union Camp throughout the duration of the strike
that the Proctor branch otherwise would have handled. The
record does not tell us whether the Nitro branch had to hire
any additional drivers to handle the extra runs. The record
does tell us that P.B.&S.’s Proctor branch did not hire any
drivers until February 20, 1995, when it hired one.
I conclude that P.B.&S.’s termination of Seagrave’s em-
ployment violated Section 8(a)(3) and (1) of the Act.
A driver employed by one employer who refuses to make
an assigned delivery across a picket line set up by the em-
ployees of a second employer is thereby engaged in protected
activity,11 whatever the driver’s motivation for that refusal.12
Accordingly, an employer violates Section 8(a)(3) and (1) of
the Act by firing the driver because of that refusal to cross
the picket line13 unless the employer
. . . acted only to preserve the efficient operation of his
business, and terminated the services of the employee
only so it could immediately or within a short period
thereafter replace [him] with [another] willing to per-
form the scheduled work.14
Here, I have found that Duncan fired Seagrave, in the
course of a meeting with Seagrave at the P.B.&S. facility,
because Seagrave refused to cross a picket line at Union
Camp. As for whether that action by P.B.&S. was necessary
‘‘to preserve the efficient operation of [the] business,’’ that
was for P.B.&S. to show. The Company failed to carry that
burden. On the one hand, the record affirmatively shows that
P.B.&S.’s Proctor branch did not hire another driver for 2
months after Seagrave’s departure. On the other, there has
been no showing that P.B.&S. replaced Seagrave by adding
another driver to the work force of any of its other branches
in order to handle the work that Seagrave had been doing.
III. BEAVER
Turning first to the relevant pre-December 19 cir-
cumstances and events involving Beaver:
1. As of December (1994) Beaver had been employed by
P.B.&S. for more than 15 years. P.B.&S. considered Beaver
to be a good employee.
2. As discussed earlier, in 1993 the employees of P.B.&S.
customer Koppers Company went out on strike. Beaver re-
fused to drive his truck across the picket line. P.B.&S. hon-
ored that refusal, switching him to non-Koppers runs.
P.B.&S. did not discipline Beaver in any way.
3. Beaver made a run to Union Camp on December 8.
While he was at Union Camp a ‘‘union employee’’ and a
‘‘company man’’ (in Beaver’s words) angrily shouted at one
another about matters relating to the unloading of Beaver’s
truck.15 The union man threatened the other with physical
harm. A few days later Beaver made another run to Union
Camp. When he arrived there, some ‘‘union people’’ (to
quote Beaver again)16 asked Beaver for his name and address
so that they could call on Beaver as a witness in support of
their union brother. When Beaver refused to provide his
name, one of the employees asked Beaver to telephone him.
Beaver never did. The incident left Beaver feeling uncom-
fortable about his relationship with Union Camp’s unionized
employees.
4. Shortly after that incident, Beaver (along with Seagrave)
met with Duncan. As discussed in section II, above, they
spoke of the possibility of a strike at Union Camp. Beaver
said that if the strike occurred, he would not make deliveries
to Union Camp. Duncan said that he would be informed if
there was to be a strike at Union Camp and he would pass
that information on to Beaver and Seagrave.
Turning now to December 19, Beaver was at P.B.&S. pre-
paring for a run to a P.B.&S. facility in Nitro, West Virginia,
when Seagrave first telephoned P.B.&S. that morning and
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Tr. 42.
18 Tr. 48.
19 Tr. 51.
20 G.C. Exh. 5.
21 Id.
spoke to Ankrom. After the call, Ankrom, passing on the in-
formation that Seagrave had just provided, told Beaver that
Union Camp’s employees were on strike and that Seagrave
‘‘wasn’t crossing the picket line.’’17 Beaver got upset, in part
because Duncan had not fulfilled what Beaver considered to
be a promise by Duncan to give Seagrave and Beaver ad-
vance notice of any strike at Union Camp. Beaver nonethe-
less continued his preparations for his run to Nitro. He then
returned to Ankrom’s office to find out if there was any
more information about Seagrave. Duncan had preceded Bea-
ver to Ankrom’s office.
As Beaver entered the office he overheard Duncan tell
Ankrom that P.B.& S.’s headquarters had demanded that the
delivery to Union Camp be made as scheduled notwithstand-
ing the strike there. Duncan, seeing Beaver in the office, then
turned to Beaver.
Duncan and Beaver both testified about what happened
next, and their testimony differs. In most respects I credit
Beaver, not Duncan, because Beaver’s testimony is more
consistent with two reports that Duncan later wrote (and
which will be discussed below) and because, as in the case
of the Duncan-Seagrave confrontation discussed earlier,
Ankrom was present at the exchange between Duncan and
Beaver but did not testify about it.
As touched on in section II, minutes earlier a Union Camp
official had told Duncan that trucks were making deliveries
through Union Camp’s main gate without difficulty. Duncan
asked Beaver whether he knew the location of that main gate
and then said something on the order of, ‘‘that’s the gate
you’ll be using to make deliveries to Union Camp.’’ Beaver,
having in mind that he told Duncan earlier that month that
he was unwilling to cross a picket line at Union Camp, as-
sumed that Duncan’s remark was the equivalent of an ulti-
matum. Beaver either had to make deliveries to Union Camp
or had to leave P.B.&S.’s employ.
Beaver left Ankrom’s office. Then, when Duncan left
Ankrom’s office, Beaver returned and asked Ankrom:
‘‘should I clean my stuff out of [the] truck today, or should
I wait ’till tomorrow and be fired?’’ Ankrom had no re-
sponse. Beaver went out to the truck he was scheduled to
drive to Nitro, removed his belongings, returned to the office
area, tossed the keys to the truck onto Duncan’s desk, and
demanded that P.B.&S. pay him his pension money and
whatever else the Company owed him as soon as possible.
Beaver then turned, left the plant, and went home (without
undertaking that run to Nitro).
Later that day Ankrom, on Duncan’s orders, telephoned
Beaver and asked that Beaver return to P.B.&S. Beaver did
so, meeting with Duncan and Ankrom. Again, while Duncan
and Beaver testified about this meeting, Ankrom did not. The
following description of the meeting accordingly relies pri-
marily on Beaver’s testimony.
Duncan wanted Beaver to continue to drive for P.B.&S.
He told Beaver that. But he also insisted that Beaver be will-
ing to cross the picket line at Union Camp to make deliv-
eries. P.B.&S.’s headquarters was demanding that deliveries
to Union Camp continue, Duncan said. Beaver responded
that he had had ‘‘trouble’’ at Union Camp (referring to his
refusal to be a witness for the union regarding the incident
at Union Camp),18 that the employees there did not like him.
Duncan assured Beaver that he would not be asked to endan-
ger himself. But Beaver continued to make it plain that he
would not cross the Union Camp picket line. Somewhere in
the course of this conversation Beaver pointed out that back
in 1993 he had refused to cross the picket line at Koppers.
Duncan retorted that ‘‘you should have been fired for that
. . . we let that one go.’’19 Finally, after hearing that
Seagrave had been fired, Beaver said that he considered him-
self fired. Duncan responded that Beaver had not been fired,
that he had quit. Beaver then left the P.B.&S. facility.
Duncan wrote a separation report on Beaver that same
day. According to that report:
At 8 a.m. Chuck Beaver turned in his keys to our
[truck] #60702. He did this because he was scheduled
to make a delivery to Union Camp Chemical who is on
strike. Chuck has said he was not going to cross a pick-
et line.20
In a separate ‘‘Termination Record,’’ also dated December
19, Duncan wrote:
At 8 a.m. on Dec. 19th Chuck Beaver walked into
my office and placed his keys to company trucks and
office on my desk. Chuck was scheduled to make a de-
livery on Dec. 20th to Union Camp Chemical who is
on strike. At this time there had not been any discus-
sion with Chuck on this matter. Chuck has stated that
he would not cross a picket line in the past.21
As indicated in section II, P.B.&S.’s Proctor branch re-
placed neither Seagrave nor Beaver for 2 months, at which
time that branch hired one driver. As also indicated in sec-
tion II, as a result of the departures of Seagrave and Beaver,
P.B.&S.’s Nitro branch handled deliveries to Union Camp
that it otherwise would not have. But the record is silent
about whether that required the Nitro branch (or any other
P.B.&S. branch) to hire any additional drivers.
Unlike the case with Seagrave, no P.B.&S. official told
Beaver that he was fired. Rather, what happened was that
Duncan, within a week or so after Beaver had said that he
would not cross a picket line at Union Camp, told Beaver
that Beaver was going to be assigned runs to Union Camp.
(That occurred on the morning of December 19, when Dun-
can told Beaver that the main gate at Union Camp’s Dover
facility was ‘‘the gate you’ll be using to make deliveries to
Union Camp.’’) Moments earlier, Beaver had heard Duncan
say that P.B.&S.’s headquarters demanded that deliveries to
Union Camp be made as scheduled notwithstanding the
strike there.
Beaver thereupon undertook actions signifying that he quit
the employ of P.B.&S.
Even at this point, P.B.&S.’s management had to have rec-
ognized that Beaver, a 15-year employee of the Company
who had long been clear about his unwillingness to make de-
liveries across picket lines, had quit only because he had
been told he would be assigned runs to Union Camp.
531P.B.&S. CHEMICAL CO.
22 G & S Transportation, supra at 766.
23 Id.
24 See Whayne Supply Co., supra.
25 See, in this connection, Blue Circle Cement Co., 311 NLRB
623, 624, 634 (1993) (discussing dual motivation on the part of an
employee).
In any case, Duncan sought to have Beaver continue as an
employee of P.B.&S. and, to this end, met with Beaver later
in the day on December 19. On Beaver’s part, he made it
clear that he wanted to continue to drive for P.B.&S. so long
as that did not entail crossing the Union Camp employees’
picket line. But Duncan insisted the Beaver be willing to
cross that picket line. Beaver, who knew that Seagrave had
already been fired for refusing to cross the picket line, stated
that he considered himself fired and left the premises.
The employer of driver who quits when faced with a di-
rective giving him no alternative but to cross the picket line
at another employer whose employees are on strike violates
Section 8(a)(3) and (1) of the Act).22 Duncan’s communica-
tions to Beaver caused Beaver reasonably to come to the be-
lief probably accurately—that continuing to work for
P.B.&S. unavoidably meant crossing the picket line at Union
Camp to make deliveries. Thus those communications by
Duncan were ‘‘legally equivalent to discharging [Beaver] for
his protected activities.’’23 I therefore conclude that
P.B.&S.’s actions toward Beaver violated Section 8(a)(3) and
(1) of the Act.
IV. SEAGRAVE’S AND BEAVER’S REASONS FOR REFUSING
TO CROSS THE PICKET LINE
I have not heretofore discussed why Seagrave and Beaver
did not want to cross the picket line at Union Camp—what
their motivations were in refusing Duncan’s order to make
deliveries to Union Camp—because, from the Board’s point
of view that is beside the point.24 But not all Federal courts
of appeal are of the same view. See Kellogg Co. v. NLRB,
457 F.2d 519 (6th Cir. 1972); NLRB v. Union Carbide Corp.,
440 F.2d 54 (1971). In the event of review, therefore, I find
as follows about the two drivers’ motivations.
One of Seagrave’s and Beaver’s concerns about crossing
a picket line was, clearly, their fear of being badly injured.
Beaver’s witnessing, on December 8, the altercation between
a prounion employee and a ‘‘company man’’ added to that
concern. (Beaver, it should be noted, discussed that incident
with Seagrave.) Both Beaver and Seagrave communicated
this concern to P.B.&S.’s management, and both indicated to
management that fear of being physically harmed was their
primary reason for refusing to cross the Union Camp picket
line.
Both Beaver and Seagrave also wanted to avoid giving the
appearance to strikers of siding with management against the
strikers. Both employees also communicated this to
P.B.&S.’s management, albeit less clearly.25
Finally, based on the overall impression I got of the two
employees while they were testifying, it seems to me to be
entirely possible that both did in fact support, as a matter of
principle, the efforts of employees on strike to gain improve-
ments in the terms and conditions of their employment. But
neither testified to that effect. And in view of the lack of
supporting evidence, I am not in a position to make any find-
ing about either Seagrave or Beaver wanting to support the
goals of the strike. In any event, neither so informed
P.B.&S.’s management.
REMEDY
P.B.&S., in violation of Section 8(a)(3) and (1) of the Act,
terminated the employment of its employee Kenneth
Seagrave and constructively terminated the employment of
its employee Charles Beaver. The recommended Order ac-
cordingly requires P.B.& S. to offer to reinstate Seagrave and
Beaver and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]