South Central timber Development, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1977

230 N.L.R.B. 468 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
South Central Timber Development, Inc. and Interna-
tional Longshoremen's and Warehousemen's
Union. Cases 19-CA-8587 and 19-RC-7857
June 24, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On February 4, 1977, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, South Central
Timber Development, Inc., Anchorage, Alaska, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election held on
April 26, 1976, in Case 19-RC-7854 be, and it hereby
is set aside, and that Case 19-RC-7854 be, and it
hereby is, remanded to the Regional Director for
purposes of conducting a second election.
Direction of Second Election and Excelsior foot-
note omitted from publication.]
i The Administrative Law Judge's finding that the appearance of a
winch-operator known as Freddie had significant bearing on the employees'
decision to walk out is unsupported by the record. However, for the other
reasons set forth in his Decision, we agree with the Administrative Law
Judge's finding that the walkoffwas a protected economic strike.
2 We agree with the Administrative Law Judge's finding that the
employees who participated in the protected economic strike were not
acting under union auspices. We therefore find it unnecessary to consider
the Administrative Law Judge's further finding that the employees' action
constitutes protected conduct under Sec. 502 of the Act.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me on October 6, 1976,1 pursuant to
a complaint in Case 19-CA-8587 issued on July 8, by the
Regional Director for the National Labor Relations Board
for Region 19, based on a charge filed on May 19. By order
dated August 26, the Acting Regional Director ordered
that the complaint be consolidated with an objection to an
election in Case 19-RC-7584, as he had determined that
the issues involved in the objection and those involved in
the unfair labor practice complaint raised similar issues of
fact and law. The complaint alleges that South Central
Timber Development, Inc. (herein called Respondent), has
engaged in and is engaging in certain violations of Section
8(a)(l) and (3) of the National Labor Relations Act, as
amended. Likewise, the objection to the election alleges
that Respondent terminated or denied further employment
to certain employees because of their union activities, and
that such conduct interfered with the outcome of the
election.
Issues
The principal issue is whether or not Respondent, in
April and thereafter, was privileged to refuse longshoring
employment to its employees William Stark, Richard
(Bumpo) Bremicker, and Gregory Christen, who had all
engaged in March in a concerted refusal to load logs
aboard a ship.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGs OF FACT
I. THE BUSINESS OF THE EMPLOYER
At the hearing Respondent admitted, and I find, that at
all material times it has been an Alaska corporation with
corporate headquarters in Anchorage, Alaska. It is engaged
in the business of milling, processing, and selling timber
and, in furtherance of this business, it operates a sawmill,
together with related woods facilities on Kachemak Bay on
the south coast of the Kenai Peninsula in an area near the
Kasitsna and Jakalof Bays. Respondent annually sells and
ships logs, valued in excess of $50,000, to Japanese
purchasers. Accordingly, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Hereinafter all dates are in 1976 unless otherwise noted.
230 NLRB No. 70
468
SOUTH CENTRAL TIMBER DEVELOPMENT
1I. THE LABOR ORGANIZATIONS INVOLVED
Respondent admitted, and I find, that the International
Longshoremen's and Warehousemen's Union (herein
called the ILWU), the Charging Party herein and represen-
tation case Petitioner, is a labor organization within the
meaning of Section 2(5) of the Act.
At the hearing it developed that another organization,
the Kachemak Bay Longshoring Union (herein called the
KBLU), was also involved to some extent in the transac-
tions described below. It appears that the KBLU consists
of a group of Respondent's employees which was formed in
October 1975. At the time of its formation, the employees
in the group signed a document proclaiming themselves
members of the KBLU and they signed ILWU pledge
cards. According to its president, William Stark, the KBLU
exists for the purpose of obtaining a collective-bargaining
contract with Respondent covering a unit of Respondent's
longshoremen and it sought recognition from Respondent
during the loading of a ship during November 1975. In
December 1975 it elected officers and, although as of
October 1976 it had not conducted any recent membership
meetings, its officers had met several times on an
intermittent ad hoc basis. Moreover, as will be seen, during
the spring of 1976, it sent at least two letters to Respondent
in an effort to obtain employment on behalf of certain of
its members. Stark testified that although he was not clear
as to the procedural details the ILWU intended to grant
the KBLU a charter and permit it to affiliate with the
ILWU. Based on the foregoing, I conclude that the KBLU
is a labor organization within the meaning of Section 2(5)
of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Participants and Background Evidence
As noted above, Respondent is engaged in logging,
milling, and selling timber in interstate and foreign
commerce. In general, it harvests timber during the
nonwinter months. Approximately once a month, during
the 8-month season, log rafts are boomed to a ship at
anchor in the bay. Prior to 1976, Respondent's practice had
been to hire Northern Stevedoring Company of Seward,
Alaska, to operate the ship's winches. It had also directly
hired other persons, usually employees other than those
employed by its own sawmill, to be linemen, slingmen,
holdmen, and signalmen - the longshoremen. It is this
group of employees which is involved in the instant
dispute.
In October 1975, according to Stark, the KBLU was
formed. During the loading of the November ship, the
KBLU attempted to persuade Respondent to recognize it
as the representative of its employees engaged in shipload-
ing. Respondent refused to do so, and the KBLU asked to
2 The usual way individuals sought and obtained longshore work from
Respondent was to notify either Beach or his various designated agents of
their availability. Often one applicant spoke for several others. Stark, in
calling Beach that day, was merely follownng the established practice, except
for his reference to the KBLU.
3 It should be noted that on January 16 the ILWU had filed its petition
for a representation election, Case 19-RC-5784. The Regional Director on
March 16 issued his Decision and Direction of Election directing that an
election be conducted in the following unit:
have a meeting among its members to determine whether
or not they should strike for recognition. A meeting was
held in the lunchroom at Respondent's mill. Although the
KBLU decided not to strike, its members, who were not
mill employees, because of the lateness of the hour, spent
the night at the mill. During the evening at least two near-
violent confrontations occurred.
Respondent's mill employees were not and are not
represented by any union. Some of them, according to
Stark, are strongly opposed to union representation.
During the evening some of those employees, including one
whose first name was Freddie, threatened to cut Bumpo
Bremicker's hair, and he defended himself with a knife.
Other employees baited the KBLU members and attempt-
ed to pick fights. However, no serious violence occurred
and on the following day the ship was loaded.
During the November strike meeting, according to Stark,
the Northern Stevedoring employees represented by the
ILWU advised the KBLU members that, in the event the
KBLU decided to strike, the ILWU employees would
honor their strike and would not operate the ship's
winches.
Although it is not clear from the record, Respondent
apparently severed the employment relationship of Stark,
Bumpo Bremicker, and Christen on October 10, 1975, and
Stark thereafter filed an unfair labor practice charge
against the Company, Case 19-CA-8088. On December 31,
1975, the Regional Director for Region 19 approved an
informal settlement agreement in that case in which
Respondent agreed, inter alia, to offer Stark, Bumpo
Bremicker, and Christen reinstatement and to make them
whole for any loss of wages they had suffered as the result
of their October 10, 1975, termination. The parties
stipulated that the next ship for which there would be
loading work was the one scheduled for mid-March, and it
is apparent that Respondent intended to carry out its
remedial obligation under the settlement agreement by
hiring those three to work the March ship.
B. The March Walkoff
Stark, who has worked as a longshoreman and slingman
for Respondent since October 1970, testified that on March
16 or 17 he spoke to Respondent's sawmill manager, Floyd
Beach, by telephone. According to Stark, he asked Beach if
he knew who Respondent was going to use to load the
March ship, and Beach replied that it had not yet been
determined. Stark asked Beach if he wanted "us" (meaning
the KBLU) to provide him with a list of people who
wanted to work.2 According to Stark, Beach replied "yes."
Stark told Beach that he would see to it that Otto Kilcher,
the KBLU communications officer, would send him a list.
Stark testified that such a list was sent.3 In addition to
telling Beach that Kilcher would send him a list, Stark also
stated that he told Beach that the available employees
All employees employed by [Respondent I in its log loading operations
at its Jakalof Bay, Alaska, facility, excluding office clerical employees,
professional employees, guards, and supervisors as defined in the Act.
The election was not held until April 26.
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would include himself, Bumpo Bremicker, Christen, Doug-
las Bremicker, George Ripley, Dave Casey, Kilcher, and
Bob Phillips. Beach advised that the shiploading date
would be March 20.
On the evening of March 19, five individuals joined Stark
and his wife at their property located on Little Tutka Bay,
approximately 3 miles from the mill and shiploading site at
Jakalof Bay.4 The individuals who joined the Starks that
evening were Bumpo Bremicker, his brother Doug, Chris-
ten, Phillips, and Bob Seville. Although Stark testified
credibly that the discussion which ensued was not a KBLU
meeting, nonetheless, he and Bumpo Bremicker were
KBLU officers. Stark testified that during the day he had
heard a rumor on CB radio from an individual named
Peter Roberts that Respondent did not intend to hire
Northern Stevedoring Company as the stevedore contrac-
tor and that it was unlikely that the winchmen would be
ILWU-represented employees. Stark related the rumor to
those who were present, and they discussed the situation in
some detail. The discussion centered on two principal
matters. First, since there was snow on the logs, it was
likely that the loading operation would be particularly
dangerous, for when snow drifts over the log rafts it
becomes impossible for the workmen on the rafts to
determine where to step safely. This unsafe condition was
compounded by the likelihood that Respondent would use
inexperienced winchmen to operate the loading cranes.
The group decided that it would take the inexperienced
winchmen some time to learn to operate the cranes safely
and to avoid another dangerous condition known as
"whip." 5 Second, they discussed the fact that, during the
previous November, the Northern Stevedoring employees
represented by the ILWU had told them they would honor
any KBLU strike. Bumpo Bremicker and Stark concluded
that Respondent had decided to avoid utilizing Northern
Stevedoring's services because their employees had ex-
pressed sympathy with the KBLU. As a result, they
believed the ILWU employees were being maltreated by
Respondent, and they decided that, since the ILWU
members had supported the KBLU in November 1975, the
KBLU should return the favor and support the ILWU. The
result of the discussion was an agreement by Stark, Bumpo
Bremicker, and Christen that they would not work if
Northern Stevedoring was not assigned the operation of
the winches.
In my view, the evidence shows that the agreement
reached that evening was based on two related considera-
tions: safety and the desire to assist the ILWU employees
in retaining their work. 6 Christen decided to join Stark and
Bumpo Bremicker in this decision. It is not clear what
Doug Bremicker, Phillips, and Seville decided to do,
4 Although the record does not clearly show it, Respondent's mill as well
as the residences of the longshoremen are located in a remote area of the
Kenai Peninsula. Although accessible by motor vehicle, the principal means
of transport between the mill area and the nearest town, Homer, is by an air
taxi company known as Homer Air Service, which operates single-engine
float planes. As telephone service is not available in Jakalof Bay, the
principal means by which residents of that area communicate with each
other is citizens band radio.
5 Testimony shows that "whip" occurs when the crane boom moves
laterally, swinging the hook in a dangerous fashion. "Whip" is avoided by
"damping the hook"-either by dropping the hook into the water or by
hoisting the hook to such an extent that the cable is shortened and its arc
although later they joined Stark, Bumpo Bremicker, and
Christen when they left the ship.
On the following morning, Stark, Bumpo Bremicker, and
Christen, who had all been promised jobs, together with
Doug Bremicker, Phillips, and Seville, who were all hoping
to be hired, took Bumpo's skiff to a nearby dock where
they were picked up by a crewboat and taken to the ship
which lay in the bay. A second crewboat, which came
directly from the mill, had not yet arrived, and Stark's
group waited and speculated about what would happen.
When it arrived, Stark and the members of his group did
not see any Northern Stevedoring employees. They did,
however, recognize some of the mill employees, including
the same Freddie who had threatened violence against the
KBLU members the preceding November. The knowledge
that Freddie might be one of the winch drivers alarmed
both Stark and Bumpo Bremicker because they believed
Freddie could not be trusted. Thus, in addition to the
foreseen hazards of snow on the log rafts and inexperi-
enced winch operators, they now perceived that one of the
winch operators was one who had demonstrated in the past
that he was capable of doing them intentional harm.
At that point, Bumpo Bremicker decided that he would
not work for Respondent that day, told the group "Let's
go," and proceeded to get his belongings. However, Stark,
upon hearing that a safety meeting was to be held, decided
to attend, and proceeded to that section of the ship where
the meeting was held.
In the meantime, Bumpo Bremicker began getting his
equipment, saying to anyone who would listen, "Well, let's
get out of here ... I'm not going to work with these guys,
it's not safe ... it's not safe working with these guys ... I
don't trust these guys, I'm not going to work under them."
Shortly thereafter he saw Manager Floyd Beach and told
him that he was going home because he did not think it was
safe to work with the inexperienced winchmen. According
to Bumpo, Beach replied, "Fine, glad to hear it," and had a
big smile on his face. Bumpo said, "I thought you'd feel
that way." And Beach replied, "Oh, I do, I do." Later,
Beach asked him if there were any others, and Bumpo
replied that he didn't know. Bumpo then boarded the
crewboat, which Beach had held, and awaited the others.
Stark, however, attended the safety meeting. Beach
introduced an individual named Tom Wise, presumably a
safety officer, who conducted the meeting. Wise told the
men that they should all be very careful and to stay out of
the way until the new winch operators learned to operate
the gear. At that point, Stark decided that he had heard
enough. In his opinion Wise had conceded that the
winchmen were not experienced and that it was unsafe. He
reduced. "Whip" endangers workmen not only because of the hook but also
because of the heavy bells attached to the line.
6 Although Respondent argues that the safety consideration was a sham,
and the real consideration was to protest Respondent's failure to use ILWU-
represented employees, I believe the evidence clearly shows that Stark and
Bumpo Bremicker had both reasons in mind when they reached their
agreement. There is no evidence to show that safety was a sham. In fact, a
slingman working the log rafts was injured the following day in an accident
involving a winchman. In fairness, however, I must note that the matter is
based on hearsay testimony, and there is no evidence regarding whether the
accident was the fault of the inexperienced winchman or the negligence of
the injured slingman.
470
SOUTH CENTRAL TIMBER DEVELOPMENT
left the meeting, got his belongings, and went to the
crewboat.
At that point he saw Respondent's assistant vice
president, Andy Okimitsu. Both Stark and Okimitsu are in
general agreement regarding what was said. Consolidating
their two versions, it appears that Okimitsu wanted to
know why Stark and the others were leaving. Stark replied,
angrily, that the combination of hazards was too great and
that they were leaving because the winchmen were unsafe.
Shortly thereafter all of the individuals who had been at
Stark's place the night before left on the crewboat.7 Within
30 minutes after their departure, Okimitsu reported to
Beach that they had left because they believed that
conditions were not safe. At no time did any of the
employees who walked off tell any of Respondent's
representatives that one of the reasons for the walkoff was
to protest Respondent's failure to use the ILWU contrac-
tor, Northern Stevedoring Company. It appears therefore
that Respondent was not aware that the walkoff was in
part motivated by such a protest. As far as Respondent
knew, the employees' only purpose in the walkoff was to
protest safety conditions - and even that purpose was not
fully articulated to Respondent's representatives, for
neither Stark nor Bumpo Bremicker told anyone that they
were concerned with the employee named Freddie who
had been involved in the November incident. However,
Respondent either did or should have known that the
employees were concerned with the inexperience of the
winch drivers and the safe footing on the log rafts.8
C. Events Following the Walkoff
The next ship scheduled to be loaded by Respondent was
in mid-April. On April 8 Otto Kilcher, KBLU's vice
president and communications officer, wrote Respondent a
certified letter in which he listed those employees who
desired to be hired to work on the April ship. He listed the
names of 11 people, including Stark, Bumpo Bremicker,
and Christen. The return receipt shows that Homer Air
Service picked it up from the post office on April 9. It is
reasonable to assume that it was actually delivered to
Respondent that same day. (See discussion of mail delivery
in this remote area, infra.)
Stark testified that his next conversation with Beach was
in April by CB radio. Beach said that he believed Stark was
mistaken about the date, saying that he recalled the
conversation occurred in May. Whatever the date, it is
clear that the receipt of Kilcher's April 8 letter preceded
the CB conversation.
According to Stark, Beach was having a conversation
with one of Respondent's supervisors, Ed Strait. Stark
waited for them to finish their conversation, then broke in
and asked Beach if he knew who was being hired for the
April ship. Stark said that Beach replied that they were not
hiring Stark, Bumpo Bremicker, or Christen because they
had walked off, and the Company wasn't going to hire
them anymore. Stark asked Beach if the Company was
using the same crew that it had used on the March ship,
and Beach replied "yes." Stark also recalls Beach saying
I Of the three who were looking for work, only one appears to have been
hired. The other two would have left anyway.
8 In the past. Stark and others had made similar safety complaints
that they had everyone they needed and that there wasn't
any room - and Respondent wasn't hiring them anyway.
Stark conceded that he could not remember the exact
words of the conversation. Yet he testified, "I really do feel
that he said something specifically to the effect that the
three of us were not going to be hired again and .. . I do
not remember the words exactly, so I. . . but I definitely
remember having thought that Floyd [Beach] didn't want
us to be hired again and I got that from more than just an
inference from this line of talk."
Beach testified that Stark broke into the CB conversation
he was having with Strait and asked if the three could be
reinstated on the ship. Beach says that he told Stark that he
had made up the list just the day before, that he was using
the same people who had worked before on the ships, and
there were no openings at that time. He recalls Stark asking
if there were "any exceptions" and he replied "no." He
specifically denied saying that the three were fired. He did,
however, concede that he had been angry when they
walked off the ship in March, leaving him in a bind
because they left him three employees short. He testified
that he did not consider them to be fired, but he "figured
that they had quit."
Strait testified that, although he did not hear the entire
CB conversation, he did hear Beach tell Stark that Beach
had already made up his crew. He said he did not hear any
discussion regarding firing or not being hired, only that
Beach had already picked the crew. Pete Reid, who lives on
Strait's property, also heard the conversation. He testified
that Stark asked Beach if there were any openings on the
April ship, that Beach replied they were using the same
people as the last time, that Stark asked if there were any
exceptions, and that Beach said there were not. Reid
testified he was satisfied he had heard the entire conversa-
tion.
In view of Stark's inability to recall the words used in the
conversation and because Strait and Reid testified consis-
tently with Beach, I doubt that Beach made any reference
to having fired the three. It is clear, however, that despite
the KBLU's earlier letter advising Beach that those three,
as well as others, wished to work, Beach had decided not to
rehire them for they had "quit."
Since the CB radio conversation, the only communica-
tions between Stark and Respondent were two letters,
which Beach denies having received. Stark's first letter,
dated May 6, was a request that Respondent hire Stark,
Christen, and the Bremicker brothers to work the May
ship, "if you have skilled and competent winch drivers."
The second, dated June 15, is written on behalf of Stark,
Christen, and Richard Bremicker and, like the May letter,
was a request to hire them for the June ship. It omitted the
reference to "skilled and competent winch drivers" and
was an unconditional offer to return to work. Stark's June
letter shows that a copy was mailed to the Board's
Anchorage office.
Stark testified that he placed both letters, either on the
date they were written or the following day, in a U.S.
Postal Service mail pouch near his home, which was the
regarding inadequate lighting at night and the absence of catwalks on one
side of the ship. In Stark's view, the Company's responses to these past
complaints had been desultory, at best.
471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
normal manner of posting letters in his area. He said that
the pouch, which is open, is picked up twice a week by
Homer Air Service and taken to the Homer post office for
processing. Beach testified that Respondent received
neither letter, and for that reason did not act upon them.
He said that Respondent's mail is brought to the mill from
Homer by Homer Air Service and, at the time these letters
were mailed, Respondent's practice was for the person who
picked up the mail at the airplane, who might have been
any of Respondent's mill employees, to distribute the
letters by placing them in the appropriate pigeonholes
maintained at the mill. He conceded that Respondent had
had problems with this system, and said that in June or
July the system was changed. Now Respondent's book-
keeper is responsible for pickup and distribution.
I do not deem it necessary to decide whether or not Stark
mailed the letters or whether Respondent received them,
although I am reasonably certain that Stark did mail them
and Respondent did receive them.9 I reach this conclusion
because Kilcher's KBLU letter of April 8 unconditionally
told Respondent that the three wished to return to work.
IV. ANALYSIS AND CONCLUSIONS
Although Stark and Bumpo Bremicker admitted that
their walkoff had two objects - to protest safety
conditions and to protest Respondent's failure to hire an
ILWU stevedore company, only the safety protest was
communicated to Respondent. Bumpo Bremicker told
Beach and Stark told Okimitsu that they were leaving
because of unsafe conditions. Thus, Respondent's motive
for its later decision not to rehire them must be measured
by its knowledge at that time, not by what it learned at the
hearing. The second motive may have a bearing on the
remedy available, but not on the issue of whether
Respondent committed an unfair labor practice.
It is well settled that a walkoff to protest working
conditions is a protected concerted activity. N.L.R.B. v.
Washington Aluminum Co., 370 U.S. 9 (1962). It is
protected even if the employer was unaware of its purpose,
for as the Court said at 14:
We cannot agree that employees necessarily lose
their right to engage in concerted activities under §7
merely because they do not present a specific demand
upon their employer to remedy a condition they find
objectionable. The language of §7 is broad enough to
protect concerted activities whether they take place
9 A copy of Stark's June letter was apparently sent to the Board's
Anchorage office. I doubt that Stark would have sent the Board a copy to
the Board without also sending one to the addressee. Moreover, Beach's
testimony that Respondent's mail system had had problems and had to be
changed suggests that Stark's letters may have gone awry after receipt at the
mill.
'o See also Combustion Engineering, Inc., Power Systems Division, 224
NLRB 542 (1976), which found such a protest to be protected despite
breach of a no-strike clause, because of the application of Sec. 502 of the Act
regarding "abnormally dangerous" conditions. There the abnormally
dangerous conditions included violence, a possibility present here.
II Even Beach's testimony tends to support Bumpo Bremicker's assertion
that the practice was not consistent. Beach said:
We have generally tried to hire from a prior list of a ship and we always
tried to do this. Willy Stark worked for many years for us never missed
before, after, or at the same time such a demand is
made.
Thus, it is clear that, even if the purpose of the walkoff is
not clearly communicated to the employer at the time, if
from surrounding circumstances the employer should
reasonably see that improvement of working conditions is
behind the walkoff, it may not penalize the employees
involved without running afoul of Section 8(aX)(). Electro-
mec Design and Development Co., Inc., 168 NLRB 763, 764-
765 (1967), enfd. 409 F.2d 631 (C.A. 9, 1969). Here,
however, Respondent knew that the employees were
protesting safety conditions, for both Bremicker and Stark
had so told two different management officials. Likewise, a
walkoff to protest unsafe working conditions is also clearly
protected. Union Boiler Company, 213 NLRB 818 (1974),
enfd. 530 F.2d 970 (C.A. 4, 1975).10 Thus, when Beach
considered Stark, Bumpo Bremicker, and Christen as
having "quit," he penalized them for having engaged in
protected concerted activity, and violated Section 8(aX)(1).
Okla-lnn, d/b/a Holiday Inn of Henryetta, 198 NLRB 410
(1972), enfd. 488 F.2d 498 (C.A. 10, 1973); Kelso Marine,
Inc., Kel Stress Division, 199 NLRB 7, 12 (1972); cf. ABC
Prestress & Concrete, 201 NLRB 820, 825 (1973).
More than this, however, I have grave doubts that
Beach's continuing justification for refusing to rehire the
protesters is credible. He said he did not hire them to work
the April ship because Respondent had a consistent
practice of hiring employees who had worked the previous
ship. Aside from whether or not that was the practice
(Bumpo Bremicker testified that it was not a consistent
practice),l the fact is that Stark with 6 years' experience
and Bremicker with 3 years' experience were ignored. The
record does not show Christen's experience, but it is fair to
presume that he was sufficiently experienced to warrant
rehire. Thus, if it is Respondent's practice, as it was, to
choose experienced loaders over inexperienced ones, the
three protesters must have been among the most, if not the
most, desirable employees. The only factors making them
undesirable were their 1975 KBLU involvement and
NLRB settlement and their March 1976 walkoff. Thus, at
least one of these considerations, most likely the latter,
must have affected Beach's decision not to rehire them. In
either case, the decision was unlawful.
In any event, Respondent has not advanced any
legitimate or substantial business justification for ignoring
the strikers' request for rehire. Absent such justification,
conduct such as that engaged in by Respondent clearly
a ship unless he was off doing something else. I have always hired the
men that worked the prior ship. The men that we used in March, we
used in April with the exceptions, I think, of two men that we didn't use
at that time. Some of these guys are hard to get a hold of and by using
the prior list, this year we have run a pretty steady crew all the way
along. In the middle of summer you have a turnover, but in the Spring
people are hungry and they want to work and they search for all of the
work they can, so I use the prior list.
Thus, Beach says that Respondent tried to hire from a list of those hired to
work the previous ship. Yet, the three strikers must have been on that list,
but were not selected. Even if Respondent can successfully claim the list
contained the names of only those who actually worked the previous ship,
Beach has conceded that two employees who worked the March ship did not
work the April ship. Yet there was no reason to ignore the strikers for those
two openings.
472
SOUTH CENTRAL TIMBER DEVELOPMENT
constitutes a violation of Section 8(aX)(). As the Supreme
Court said in N.LR.B. v. Fleetwood Trailer Co., Inc., 389
U.S. 375, 378-380 (1967):
Section 2(3) of the Act (61 Stat. 137, 29 U.S.C.
§152(3)) provides that an individual whose work has
ceased as a consequence of a labor dispute continues to
be an employee if he has not obtained regular and
substantially equivalent employment. If, after conclu-
sion of the strike, the employer refuses to reinstate
striking employees, the effect is to discourage employ-
ees from exercising their rights to organize and to strike
guaranteed by §§7 and 13 of the Act (61 Stat. 140 and
151, 29 U. S. C. §§157 and 163). Under §§8(aXl) and
(3) (29 U.S.C. §§158(1) and (3)) it is an unfair labor
practice to interfere with the exercise of these rights.
Accordingly, unless the employer who refuses to
reinstate strikers can show that his action was due to
"legitimate and substantial business justifications," he
is guilty of an unfair labor practice. N.L.R.B. v. Great
Dane Trailers, 388 U.S. 26, 34 (1967). The burden of
provingjustification is on the employer.
In some situations, "legitimate and substantial
business justifications" for refusing to reinstate employ-
ees who engaged in an economic strike have been
recognized. One is when the jobs claimed by the strikers
are occupied by workers hired as permanent replace-
ments during the strike in order to continue operations.
N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S.
333, 345-346 (1938); N.L.R.B. v. Plastilite Corp., 375
F.2d 343 (C.A. 8th Cir. 1967); Brown & Root, 132
NLRB 486 (1961) .... [Fn. omitted.]
A second basis for justification is suggested by the
Board-when the striker's job has been eliminated for
substantial and bona fide reasons other than considera-
tions relating to labor relations: for example, "the need
to adapt to changes in business conditions or to
improve efficiency." [Fn. omitted.] We need not
consider this claimed justification because in the
present case no changes in methods of production or
operation were shown to have been instituted which
might have resulted in eliminating the strikers' jobs.
The Court of Appeals emphasized in the present case
the absence of any antiunion motivation for the failure
to reinstate the six strikers. But in N.LR.B. v. Great
Dane Trailers, supra . . . we held that proof of
antiunion motivation is unnecessary when the employ-
er's conduct "could have adversely affected employee
rights to some extent" and when the employer does not
meet his burden of establishing "that he was motivated
by legitimate objectives." Id, at 34. Great Dane Trailers
determined that payment of vacation benefits to
nonstrikers and denial of those payments to strikers
carried "a potential for adverse effect upon employee
rights." Because "no evidence of a proper motivation
appeared in the record," we agreed with the Board that
the employer had committed an unfair labor practice.
12 It is unnecessary to determine if Respondent also violated Sec. 8(aX3).
In any event, it does not appear that the employee walkoff was a union
activity, or that Respondent regarded it as such.
Id, at 35. A refusal to reinstate striking employees,
which is involved in this case, is clearly no less
destructive of important employee rights than a refusal
to make vacation payments. And because the employer
here has not shown "legitimate and substantial business
justifications," the conduct constitutes an unfair labor
practice without reference to intent. [Emphasis supplied.]
Of the two examples cited by the Court as "legitimate
and substantial business justifications," only the first has
any application here. Beach testified that he regarded the
strikers as "quits" and said that he did not hire them after
March because he was hiring those who had been hired to
work on the previous ship. While I can understand the
need to obtain a steady crew, it appears to me, from his
testimony in footnote 12, supra, that Beach thought Stark
was among the steadiest. The only factor making Stark
undesirable was his having engaged in a protected strike.
The same can no doubt be said of the other two. Under
these circumstances, it appears to me that obtaining a
steady crew does not fall within the first category of
"legitimate and substantial business justifications" con-
templated by the Court. No doubt every business needs a
steady crew, but if the crew engages in a protected strike, it
is not rendered "unsteady," thereby privileging the struck
employer not to rehire the crew. Accordingly, I find that
Respondent's treatment of the strikers herein constitutes a
violation of Section 8(aX 1) of the Act.1 2
V. THE REMEDY
The normal remedy for discharging, or refusing to rehire,
economic strikers is immediate reinstatement with back-
pay. N.LRB. v. International Van Lines, 409 U.S. 48
(1972); Michael Muldoon Ekler, d/b/a Vorpal Galleries, 227
NLRB 446 (1976). Before recommending that remedy, I
must first determine whether or not the strikers engaged in
conduct depriving them of that right.
Respondent contends that the protesters were engaged in
conduct prohibited by Section 8(bX4)(B), and it is true that
one of their objects, albeit uncommunicated to Respon-
dent, was to force Respondent to resume business with
Northern Stevedoring Company because it was an ILWU
employer. Assuming that such an object is unlawful,
Section 8(bX4XB) makes it unlawful for a "labor organiza-
tion" to engage in such conduct. Here there is no evidence
that the KBLU was involved in the walkoff. True, Stark
was the KBLU president and Bumpo Bremicker was its
secretary-treasurer, but there is no evidence that the KBLU
as an entity did anything at all regarding the walkoff. The
evidence only shows that a group of employees, faced with
rumors of changed working conditions, decided to protest
concertedly those conditions by refusing to work under
them if the rumors proved to be true. Thus, I cannot
conclude that the protesters were engaged in 8(bX4)(B)
conduct, for they were not acting as a labor organization.
Accordingly, I see no reason to deprive them of reinstate-
ment. See Local Union No. 707, Highway and Local Motor
Freight Drivers, etc., Teamsters (Claremont Polychemical
Corporation, 196 NLRB 613 (1972).
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even if it should be determined that the employees were
acting under KBLU auspices and thus were engaged in
8(b)(4)(B) conduct, I would not deprive them of reinstate-
ment because it was reasonable for them to wish to avoid a
direct confrontation with Freddie. The Board has held, in
Combustion Engineering, Inc., supra, that workmen need
not remain on the job in the face of possible violence and
that walking off to avoid violence is protected by Section
502 of the Act' 3 even if it constitutes a breach of a no-
strike clause. I recognize that the intent of Section 8(b)(4)'s
prohibitions differs from that of a no-strike clause, but
there seems to be no difference in application. Certainly
Section 502 uses the word "strike" in the same sense as
does Section 8(b)(4). Thus, I conclude that Section 502 was
intended to override any considerations raised by any
other section of the Act, such as Section 8(bX4). Cf.
Gateway Coal Co. v. United Mine Workers of America, 414
U.S. 368 (1974). Thus, I find the strikers' conduct, if
engaged in under KBLU auspices, to be protected by
Section 502, and they did not thereby lose their right to
reinstatement.
I shall, therefore, recommend that Respondent immedi-
ately restore Stark, Richard Bremicker, and Christen to
their former jobs, displacing if necessary any replacements,
and make them whole for any loss of pay suffered by
reason of the discrimination against them. Backpay shall
be computed in accordance with the formulas set forth by
the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
VI. THE ELECTION
In view of my finding that Respondent violated Section
8(a)(1) of the Act by severing the employment connection
of economic strikers during the preelection critical period
in Case 19-RC-7854 I shall also recommend that the
election results be set aside and a new election conducted 14
at a time when the Regional Director determines that a fair
second election, untainted by unfair labor practices, may
be held.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, South Central Timber Development,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The International Longshoremen's and Warehouse-
men's Union and the Kachemak Bay Longshoring Union
are labor organizations within the meaning of Section 2(5)
of the Act.
13 In pertinent part, Sec. 502 provides: "nor shall the quitting of labor by
an employee or employees in good faith because of abnormally dangerous
conditions for work at the place of employment of such employee or
employees be deemed a strike under this Act."
14 "Conduct violative of Section 8(aXl) is, a fortiori, conduct which
interferes with the exercise of a free and untrammeled choice in an election."
Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786 (1962).
'S In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
3. By refusing to consider employees William Stark,
Richard Bremicker, and Gregory Christen for further
employment as log loaders after receipt of the April 8,
1976, application for reinstatement, Respondent violated
Section 8(aXi) of the Act.
4. By engaging in conduct violative of Section 8(a)(1)
Respondent interfered with the representation election in
Case 19-RC-7854 to such an extent as to deprive the
employees of their ability freely to select a collective-
bargaining representative.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER15
The Respondent, South Central Timber Development,
Inc., Anchorage, Alaska, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Taking employment-related reprisals against employ-
ees who engage in the protected concerted activity of
striking to protest unsafe working conditions by regarding
such employees as having quit, discharging such employ-
ees, or otherwise depriving them of employment.
(b) In any other manner threatening, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act to engage in or refrain from
engaging in protected concerted activity for their mutual
aid or protection.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Immediately offer William Stark, Richard Bremicker,
and Gregory Christen full reinstatement to their former
jobs, without prejudice to their seniority or other rights and
privileges, and make them whole for lost earnings in the
manner set forth in that portion 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 Kasitsna and Jakalof Bays facility copies of
the attached notice marked "Appendix." 16 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
16 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
474
SOUTH CENTRAL TIMBER DEVELOPMENT
Respondent to insure that notices are not altered, defaced,
or covered by any other material.
(d) Because of the remoteness of Respondent's facility,
the lack of adequate communications, and because of the
intermittent nature of the log loading employees' employ-
ment, signed copies of the notice marked "Appendix" shall
also be disseminated to Respondent's log loading employ-
ees by Respondent in the same manner as was the notice of
election in Case 19-RC-7854.
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election in Case 19-RC-
7854 be set aside and the matter be remanded to the
Regional Director for the purpose of conducting a new
election at a time when he deems that a fair election can be
held.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act
and we have been ordered to post this notice to our
employees.
The National Labor Relations Act, as amended, gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining
representative and employer have a collective-
bargaining agreement which imposes a lawful
requirement that employees become union mem-
bers.
WE WILL NOT in any manner interfere with any of
your rights set forth above which are guaranteed by the
National Labor Relations Act.
WE WILL NOT take employment-related reprisals
against any employee who engages in the concerted
activity of striking to protest unsafe working condi-
tions, such as regarding them as "quits," discharging
them, or otherwise depriving them of employment.
WE WILL offer immediate reinstatement to William
Stark, Richard (Bumpo) Bremicker, and Gregory
Christen their former jobs as longshoremen without
loss of seniority or other rights and privileges, and we
will make them whole for any loss of pay they may
have suffered by reason of our discrimination against
them, together with interest thereon.
SounT CENTRAL TIMBER
DEVELOPMENT, INC.
475