Swain and Morris Construction Co.

National Labor Relations Board - Board Decisions

Dec 29, 1967

168 N.L.R.B. 1064 (N.L.R.B. 1967)

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swain and Morris Construction Co. and
International Brotherhood of Electrical Workers,
AFL-CIO, Local Union 185 . Case 19-CA-3461
December 29,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On June 13, 1967, Trial Examiner Allen
Sinsheimer, Jr., issued his Decision in the above-
entitled proceeding, finding that Respondent had
not engaged in any unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision and supporting
briefs. The Respondent filed a brief in support of
the Trial Examiner's Decision and an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
Relying on the Board's decision in Redwing,' the
Trial Examiner found, contrary to the allegations of
the complaint, that Respondent did not violate Sec-
tion 8(a)(1) of the Act by discharging employees
Bauer and Mitchell because they refused to cross a
picket line at the Northern Timber Company mill.
Based substantially on the Trial Examiner's
findings of fact, we arrive at a contrary conclusion,
because of our different interpretation of the law ap-
plicable to those facts.
Respondent is engaged in the construction of
power arid' telephone facilities in the State of Mon-
tana, and its chief customer, Montana Power Com-
pany, accounts for 90 to 95 percent of its business.
As detailed more fully in the Trial Examiner's
Decision, the record shows that about June 30,
1966, Respondent dispatched a crew to the Philips-
burg area to complete several jobs under contract
with Montana Power. The work included the erect-
ing of a pole, stringing of wire and installation of a
I Redwing Carriers, Inc., 137 NLRB 1545, enfd. sub nom Teamsters,
Chauffeurs and Helpers Local Union No. 79, Teamsters v. N L.R B.,
325 F.2d 1011 (C.A.D.C.), cert. denied 377 U.S. 905,
transformer at the Pintlar Forest Products mill, the
erection of poles and installation of service to one
or more homes, the installation of two poles and
five yard lights at the Northern Timber Company
mill, herein referred to as Northern, and miscellane-
ous jobs.
The various job priorities were lined up by Mon-
tana Power's area engineer, Dick Johnson, and
were to be performed under the direction of Harold
Corbin, the Philipsburg manager for the power
company. The record shows that Montana Power
did not charge Northern for the work to be per-
formed at its mill, and it appears that Johnson ac-
cordingly scheduled this job last.
Part of the crew started work immediately at Pin-
tlar while some men spent part of the first day in-
stalling service to a home and performing miscel-
laneous work. Thereafter, the full crew concen-
trated on the Pintlar job until it ran out of supplies
about July 7. The Trial Examiner appears to have
found that some time before July 8 the crew moved
to Northern for 1 day and then returned to Pintlar
until it completed the latter job on July 8, or shortly
thereafter. However, the record clearly shows that
the crew was shifted to Northern on July 8 to do
fill-in work while the Pintlar job was being resup-
plied. This apparently occurred forthwith because
the crew was moved back to Pintlar the same day,
July 8, and remained there until completion of the
job on July 14.
As the crew was winding up its work at Pintlar on
the morning of July 14 in anticipation of returning
to complete the Northern job later that day, Corbin
advised them that there was a picket at Northern.
Robert Delong, the crew's foreman and apparently
a member of the Union, told Corbin that he did not
think that the crew should cross the picket line.
Whereupon, Johnson moved the crew to a job at
Deer Lodge which originally was scheduled to be
performed after the work in the Philipsburg area
had been completed.
The work was not finished at Deer Lodge until
July 21. According to DeLong's uncontradicted
testimony, on the preceding day, Vaughn Morris,
Respondent's vice president, "told us that the
power company ... had informed him that we were
to go back to Philipsburg and cross that line. And if
we didn't, he had to discharge us." On completion
of the Deer Lodge job, Morris accompanied the
crew to the Northern mill where DeLong requested
permission to cross the line. The Butte Building
Trades Council picket, who was stationed at the en-
trance to the site, refused DeLong's request. After
satisfying themselves that the picket line was legiti-
mate, DeLong and the two crew members refused
to cross the line to complete the job. Morris
testified that he then went to Philipsburg and called
168 NLRB No. 147
SWAIN AND MORRIS CONSTRUCTION CO. 1065
Montana Power "to see if anything had changed
since I talked to them a day or two previous, and
was told that nothing had changed, that they ex-
pected us to go in and complete the job." Morris
testified further that he thereafter told the crew
" .. that was it, that we had to go in and complete the
job, and if they didn't see their way clear to do that,
I would have to discharge them." When the crew
again refused to cross the picket line on July 21,
Morris told the men that they were discharged.
The work at Northern was not completed until
August 4, after the picketing had ceased. The
record shows that on the day the crew was
discharged, Respondent had no other crew which
it could use to complete the job2 and could not hire
new employees to perform the work because of an
acute shortage of unemployed linemen in the area.
Indeed, Morris testified that he had no way of
knowing whether another crew, even if available,
would have crossed the picket line, and admitted
that Respondent would have been confronted with
having to discharge them also. The record shows
further that Mitchell was rehired 2 days after his
discharge because he was in the apprenticeship
training course sponsored by the National Electri-
cal Contractors Association. Morris testified that
he and the training manager, Dan White, went to
Butte and met with Montana Power regarding
Mitchell's discharge, and "it was perfectly agree-
able with them [Montana Power] for us to re-em-
ploy Mr. Mitchell, and we re-employed him."
In Redwing the Board held, with court approval,
that employees have a protected right to respect a
picket line established at the premises of another
employer. Accordingly, as a general rule, em-
ployees may not be discharged for engaging in such
protected concerted activity. However, in that deci-
sion the Board recognized, as an exception to the
aforestated rule, the right of an employer to run his
business despite this protected activity. Thus, the
Board held in Redwing that the employer did not
violate the Act by terminating employees who
refused to cross a picket line, but established two
conditions which the employer must meet in order
to come within this exception. The employer must
act "only to preserve efficient operation of his busi-
ness, and - . . only so it could immediately or within
a short period thereafter replace them with others
willing to perform the scheduled work. .. .
[Emphasis supplied.]"3 It should be noted, however,
that the right which the employer has in this in-
stance is not to discharge employees, but to run his
business. The proper balance to be struck between
these competing rights necessarily depends on the
facts in each case.4
Turning to the instant case, we note one fact
which stands out boldly on this record. By Respond-
ent's own admission, if DeLong's crew did not
cross the picket line and complete the work at
Northern, Respondent could not perform the work
efficiently or expediently, either with another crew
or by hiring new employees. Moreover, although
Thomas Van Noy, Montana Power's Butte Divi-
sion manager, testified as to the urgency of the
Northern job, the record discloses facts which show
the contrary. Thus, the Northern job was scheduled
last by Montana Power's engineer for the apparent
reason that it was being performed without charge
to Northern. Despite the fact that the job could
have been completed in 6 to 7 hours, Montana
Power ordered the crew back to Pintlar as soon as
materials became available. Further, it is un-
disputed that, after the crew had been discharged,
Ed House, Northern' s manager , told Morris that
immediate completion was not imperative even
though Morris testified, as found by the Trial Ex-
aminer, that House did request that the job be done
as soon as possible. Although this conversation oc-
curred around July 21, Respondent did not
complete the job until August 4. In these circum-
stances, the crew's refusal to cross the picket line
emerges as the motivating cause for their
discharges. We find, therefore, that Respondent
discharged the crew, not for the purpose of preserv-
ing efficient operation of its business and in order to
replace them with others who were willing to per-
form the work, but because they refused to cross
the picket line.
Our decision would be the same even if we
agreed with the Trial Examiner's finding that
Respondent discharged the crew in order to comply
with Montana Power's request that Respondent get
the job done. The record clearly shows that Mon-
tana Power, in making this request, knew that De-
Long's crew was the only one available to do the
work. Montana Power made this certain when it
refused Respondent permission to use the crew at
Butte. Indeed, according to DeLong's testimony,
Montana Power ordered Respondent to discharge
the crew if they refused to cross the picket line, and
this is supported and corroborated by Morris' own
testimony concerning his action in contacting Mon-
2 According to Morns' testimony, Montana Power would not allow
Respondent to use the crew working nearby at Butte because it had con-
sidered that job critical.
3 Redwing Carriers, Inc, supra, 1547.
4 Thus, in Overrate Transportation Company, 154 NLRB 1271, enfd.
sub nom . Truck Drivers and Helpers Local No. 728, IBT v. N.L R B ,
364 F.2d 682 (C A.D C ), the Board, in finding that the employer's
discharge of an employee who refused to cross a picket line did not come
within the Redwing exception, relied on the fact that the discharge was not
made to preserve efficient operation of the employer's business.
The Trial Examiner places unwarranted emphasis on the distinction
drawn in Overrate between temporary and permanent work assignments.
The Board merely contrasted the permanent work assignments in
Redwing with the flexible nature of the employees' work assignments in
that case in concluding that it was possible for the employer to substitute
another deliveryman to make the particular delivery in question without
any significant disruption of the employer's business.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tana Power on July 21 after the crew refused to
cross the picket line and his statement to the men
thereafter that if they didn't see their way clear to
going in , he would have to discharge them. In this
connection, we note further that Morris deemed it
necessary to make a special trip to Butte with the
manager of the apprenticeship training program in
order to obtain Montana Power's approval of
Mitchell's reemployment. Thus, on this record, we
would find that Respondent discharged the crew as
a direct result of pressures exerted by Montana
Power. Contrary to the Trial Examiner, we con-
clude that this was pressure to do an illegal act,
since it was based solely, on the employees' par-
ticipation in protected activity. It is the failure to re-
sist this kind of pressure which the Board inter-
dicted in Ref-Chem Company, 153 NLRB 488.
The Board there adopted the Trial Examiner's
statement which quoted from the court's decision
in N.L.R.B. v. Goodyear Tire & Rubber Company,
129 F.2d 661 (C.A. 5), that it was the Respondent's
duty to resist pressure to discharge its employees
for unlawful reasons and that the Respondent "can-
not escape responsibility [f] or the consequences of
its failure to discharge that duty."5
Accordingly, we conclude that Respondent, by
discharging employees Bauer and Mitchell in the
circumstances of this case, violated Section 8(a)(1)
of the Act.
THE REMEDY
Having found that the Respondent interfered
with the right of Basil Mitchell and Ed Bauer to en-
gage in protected concerted activity by discharging
them on July 21, 1966, for refusing to cross the
picket line at the Northern Timber Company, Inc.,
we shall order it to cease and desist therefrom and
take certain affirmative action to effectuate the poli-
cies of the Act. As the parties stipulated that
Mitchell was reinstated to his former or substan-
tially equivalent position after losing 2 working
days and that Bauer was unconditionally offered,
but refused, reemployment about September 17,
1966, and that the loss of earnings they suffered by
reason of their discharges amounted to $60 and
$158.88, respectively, we shall order the Respond-
ent to pay Mitchell and Bauer the stipulated
amounts, with interest at the rate of 6 percent per
annum ,-as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
As the record shows that Respondent would
possibly have discharged other crews if they had
refused to cross the picket line at Northern Timber
Ref-Chem Company, supra, 493.
In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Company, Inc., and that these crews are engaged in
work throughout the State of Montana, we shall
order Respondent to mail copies of the attached
notice marked "Appendix" to the Union and to
each of these employees. We shall also order
Respondent to mail a copy of the notice to Ed
Bauer.
AMENDED CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact
and the entire record in this case, we do not adopt
the Trial Examiner's Conclusion of Law 3, and
adopt new Conclusions of Law 3 and 4 as follows:
"3. Respondent, by discharging Basil Mitchell
and Ed Bauer on July 21, 1966, for engaging in pro-
tected concerted activity, has violated Section
8(a)(1) of the Act."
"4. The aforesaid unfair labor practices found to
have been committed by the Respondent are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Swain and Morris Construction Co., Billings,
Montana, its officers, agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Interfering with right of employees to engage
in protected concerted activity in violation of Sec-
tion 8(a)(1) of the Act by discharging them for
refusing to cross a picket line established at the
premises of another employer.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the exer-
cise of their rights under Section 7 of the Act.
2. Take the following affirmative action which
is necessary to effectuate the policies of the Act:
(a) Make Basil Mitchell and Ed Bauer whole for
any loss of earnings they may have suffered as a
result of their discharges, as provided in the section
of this Decision entitled "The Remedy."
(b) Post at its place of business in Billings, Mon-
tana, copies of the attached notice marked "Append-
ix."6 Copies of said notice, on forms provided by
the Regional Director for Region 19, after being
duly signed by the Respondent's representative,
shall be posted by the Respondent 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
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
SWAIN AND MORRIS CONSTRUCTION CO.
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(c) Inasmuch as the posting of the above notice
would be inadequate to inform all of its employees,
the Company shall mail an exact copy of the at-
tached notice marked "Appendix" to the Union, to
Ed Bauer, and to each employee in its employ on
July 21, 1966. Copies of said notice, on forms pro-
vided by the Regional Director for Region 19, after
being duly signed by an authorized representative
of the Company, shall be mailed immediately after
receipt thereof.
(d) Notify the Regional Director for Region 19,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to sa Decision and Order of the Na-
tional Labor Relations Board and in order to effec-
tuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees
that:
WE WILL NOT interfere with right of em-
ployees to engage in protected concerted ac-
tivity by discharging them for refusing to cross
a picket line established at the premises of
another employer. -
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their rights under
Section 7 of the Act.
WE WILL make Basil Mitchell and Ed Bauer
whole for any loss of earnings they may have
suffered as a result of their discharges.
SWAIN AND MORRIS
CONSTRUCTION CO.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 327 Logan Building, 500 Union Street,
Seattle, Washington 98101, Telephone 583-4532.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
1067
ALLEN SINSHEIMER , JR., Trial Examiner: This case
was heard at Butte, Montana, on January 5, 1967, upon
a complaint , issued on October 14, 1966, 1 and amended
at the hearing, alleging that the Respondent , Swain and
Morris Construction Co. (hereafter called Swain and
Morris), had violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended. In their answer,
the Respondent denied the commission of any unfair
labor practices. The issue presented is whether or not the
Respondent violated the Act by discharging two em-
ployees for refusing to cross a picket line of another labor
organization at premises where work was to be performed
on certain facilities of Respondent 's customer , Montana
Power Company.
Upon the entire record, including my observations of
the witnesses, and consideration of the briefs filed by the
General Counsel and the Respondent, I make the follow-
ing:
FINDINGS AND CONCLUSIONS2
1. The Alleged Unfair Labor Practices
A. The Facts
Swain and Morris is engaged in construction of power
and telephone facilities throughout the State of Montana.
Its largest customer , accounting for 90 to 95 percent of its
business, is the Montana Power Company, herein called
Montana Power. The latter is a public utility operating
under control of the Montana Railroad & Public Service
Commission.
Swain and Morris obtains its labor force from three
local unions of the International Brotherhood of Electri-
cal Workers located in Montana, pursuant to a Statewide
labor agreement . It employs no nonunion electrical wor-
kers. Personnel obtained from Local 185, are normally
assigned to crews headquartering out of Butte to work in
the western part of the State. Company policy is to assign
a crew to a job and have that crew complete the job unless
some emergency would arise requiring its use elsewhere.
At the times involved, Respondent employed 12 to 14
persons in crews working out of Butte and about 30 to 35
in crews working out of Billings, 240 miles away.
On or about June 3, 1966, Montana Power received an
order for installation of "yard" or "securiity" lights on the
premises of Northern Timber Co., Inc. (herein called
Northern), near Philipsburg, Montana.3
Sometime in the latter part of June, Montana Power
gave Swain and Morris a verbal order to install the lights
at Northern and to perform certain other work at Pintlar
i Based upon a charge filed on July 27, 1966, and an amended charge
filed on September 12, 1966.
Z No issue of commerce is presented. The complaint alleges and the
answer admits facts which establish that Swain and Morris Construction
Co. is an employer engaged in commerce within the meaning of the Act.
I find such facts to be as pleaded. I further find that International Brother-
hood of Electrical Workers , AFL-CIO, Local Union 185 (herein called
Local 185), is a labor organization within the meaning of the Act. .
3 There was some confusion concerning authority to sign for Northern
and as to amount of work to be done but this was ultimately rectified after
the work was completed.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Forest Products Mill (about one-half mile from Northern
herein called Pintlar) near Philipsburg, and some small
jobs in the area.4
About June 30, Swain and Morris sent a crew to work
in the Philipsburg area on the Northern, Pintlar, and other
jobs. The crew originally assigned consisted of Robert
DeLong, foreman; Basil Mitchell, apprentice; Edward
Bauer, and another lineman who was removed prior to
material developments herein. Their work at Pintlar,
Northern, et al., was lined out by a Montana Power en-
gineer , Dick Johnson,5 and conducted under supervision
of Montana Power's manager at Philipsburg, Harold Cor-
bin.
Work first started at Pintlar and continued until the
crew was out of necessary supplies. It then moved to the
Northern mill for 1 day where two poles were erected.6
Northern had recently acquired the mill and was in
process of renovation for its uses.
The crew returned to Pintlar to complete work there.
Then about July 8 or shortly thereafter when the Pintlar
job was complete and the crew was preparing to return to
Northern for completion of work there, they were told by
Corbin that there was a picket at Northern. The crew
foreman told Corbin that he didn't feel they should cross
the picket line. The crew was thereupon moved by John-
son of Montana Power from the Philipsburg area to a job
at Deer Lodge? upon which Swain and Morris was the
contractor.8
After the work had stopped at Northern, Ed House,
manager of the Company, telephoned Thomas Van Noy,
manager of Montana Power, Butte Division, and asked
why the work had stopped. According to Van Noy,
House "wanted to know why, that these lights were a
security measure and he was very much put out that we
hadn't continued with our construction." This call ap-
parently occurred shortly after the work at Pintlar ended
about July 8 but the exact date was not specified.9 Van
Noy checked, following House's call, and ascertained
that the Swain and Morris crew had not reentered the site
4 Subsequently after work commenced, written orders were issued.
5 The jobs were on a cost-plus basis and such work was normally lined
out and supervised by an engineer for the Montana Power Co.
6 Two poles and five yard lights were to be installed at Northern.
7 About 25 miles distant.
8 It is not clear exactly when Corbin informed the crew of the picket ex-
cept that it was apparently on or after July 8 and prior to the crew being
sent to the job at Deer Lodge from which they returned about July 21.
0 The General Counsel refers to Van Noy's placing this conversation
after July 21 in response to a question from the Trial Examiner in which
the date appears. He points out that Van Noy's quote of House would be
out of context that much later and contends therefore Van Noy should not
be credited in his testimony as to House insisting that the work be
promptly completed. I agree that the date is out of context with the record
as a whole as to the course of events but do not consider this affects Van
Noy's credibility. Rather his response to a date in a question where its sig-
nificance was not apparent and could have been assumed correct (without
further check) may not be a fully considered response but it is not a sur-
prising one. Moreover (although the General Counsel contends other-
wise), the substance of his response concerning House's position appears
to be substantially corroborated by Morris' testimony relative to a conver-
sation he had with House (placed after July 21).
The General Counsel in his brief asserts that House informed Morris
"that he was interested in having the work done but immediate completion
was not imperative." (Emphasis supplied.) Moms testified as follows:
Q. Isn't it a fact that in the course of your conversation with Mr.
House he told you it was not imperative that the job be done im-
mediately?
A. No, not exactly. As I remember it, he said that it wasn't im-
perative that it had to be done that particular day and that possibly,
of Northern Timber due to the picket sign and was not
working on that job, but instead had been sent to Deer
Lodge. Van Noy testified that he disagreed with the deci-
sion of his engineer (Johnson) to move the Swain and
Morris crew from the Northern job at Philipsburg to the
contract job at Deer Lodge.10 Van Noy or someone
evidently informed higher officials of Montana Power of
the situation for a subsequent discussion occurred
between Vaughn Morris, vice president of Swain and
Morris, and George O'Conner, a vice president of Mon-
tana Power. According to Morris, he had a discussion of
this incident with O'Conner during which O'Conner
made a general statement to the effect that if Swain and
Morris wouldn't do the work they (Montana Power)
"asked us to do, they would find another contractor who
would."
The picketing at Northern as set forth was being con-
ducted by the Butte Building Trades Council (of which
Local 185 was not a member), for the reason that union
members were not employed there. Between the date of
first picketing and July 19, Morris contacted Buckley,
business agent of Local 185, and also the International of-
fice of I.B.E.W. in Billings and requested assistance from
them. ii According to Morris, their representative sought,
but was unable to obtain , permission from the Butte
Building Trades Council for Swain and Morris' crew to
cross the picket line so they could complete their work. 12
On July 19 according to DeLong, Morris came out to
the men at Deer Lodge and told them that when they
finished the work they were to go back to Philipsburg to
go out and talk to the pickets to see whether they could
get permission to cross the line or not, and if they could,
to go in and finish the job and if they couldn't, they were
to just turn around and leave. Further, according to De-
Long, on the following day, Morris returned and told the
men that the Montana Power Co. had informed him they
were to go back to Philipsburg and cross that line and that
Morris then said that if they didn't, he had to discharge
them.
due to the fact that I had explained the predicament I was in, crew-
wise, to complete the job.
And he did say that he would like to have it done as soon as possi-
ble for security reasons. [Emphasis supplied ]
If there is any inconsistency which I do not find, I would still credit Van
Noy's testimony as set forth.
10 According to Foreman DeLong, there was milling equipment lying
about Northern's yard awaiting installation. The yard was open and at
some distance from any concentration of housing with not too abundant or
adequate police protection and the "yard" lights might serve to protect
against pilferage.
11 According to Moms, he first learned of the picketing from Montana
Power's Philipsburg manager, Corbin, about a day or two after the men
had first declined to work at Northern upon learning of a picket and after
they had been assigned to Deer Lodge. The testimony of DeLong (set
forth post), as to what Morris said on the 19th about contacting Montana
Power and on the 20th as to what Morris stated he was told, corroborates
Morris' testimony Morris said he had been informed by the I.B.E.W.
representative, Buterack, that he had been unable to secure permission to
cross the picket line at Northern (from the Building Trades Council) Ac-
cording to Morris, he told the men they were obligated to perform the
work they had a right to do and if they refused he "would be forced to
discharge them." Morris also testified that after he and the crew were at
the entrance to Nor-them where the picket was stationed, he called Mon-
tana Power to "see if anything had changed since I talked to them a day or
two previous and was told that nothing had changed, that they expected us
to go in and complete the job."
12 According to Foreman DeLong, the picket sign read "This place is
unfair to labor" and was posted by the Butte Building Trades Council.
SWAIN AND MORRIS CONSTRUCTION CO. 1069
On the 21st the men completed the job at Deer Lodge
in the morning and went back to Philipsburg where Mor-
ris met them.13 The crew consisting of DeLong, Mitchell,
and Bauer went out to the Northern job and talked to the
picket who had a picket sign bearing the legend substan-
tially as set forth in footnote12.14 They talked to the
picket who was unable to give them any detailed informa-
tion as to whether they could or could not cross the picket
line and was unable to tell them who they could contact
to obtain an explanation. The crew then refused to cross
the picket line and told this to Morris. He said that he was
sorry that it had come up that way. The crew wondered
if talking to the Montana Power Co. would clarify the
situation. Morris then went back to Philipsburg, checked
again with the Montana Power Co., and was informed
that matters were the same as they had been the day be-
fore when they had told him what to do.15 The men were
not terminated right away but brought the trucks back
into the shop at Anaconda (which is near Butte). They
were then terminated.16 At that time, the work remaining
to be done at the mill was the installing of three more yard
lights on existing poles that were already in the yard, an
intermediate pole to be set, a transformer to install, and
wire to be run. DeLong estimated about 2 more days of
work. Actually, the work was completed by four men in
7 hours at a later date.
At the time involved, there was no dispute between
Morris and the crew and no apparent dispute between
Swain and Morris and Local 185. There was no antiunion
feeling or animus manifested by Swain and Morris and
the relationship between Swain and Morris and Local 185
appears to have been good. The exact date upon which
the picketing by Butte Building Trades was terminated
was not established. During the time of the picketing,
neither Swain and Morris nor Montana Power had any
labor disputes with either Local 185 or the Building
Trades Council, which latter Union represented no em-
ployees of either. The picketing appears to have been
directed solely against Northern Timber because it was
not employing union men. Following the termination,
none of the members of the crew sought reinstatement
with Swain and Morris. However, Mitchell, an apprentice,
was reinstated after 2 days at the request of the National
Electrical Contractors Association because of his in-
volvement in the apprenticeship training program, with
approval of his rehiring by Montana Power. Bauer ob-
tained other employment after about 6 days. He was sub-
sequently unconditionally offered reemployment by
Swain and Morris about September 17, 1966, but
declined to accept the offer. No new employees were
hired to replace Bauer and DeLong after their termina-
tion. Actually, personnel were not available to replace
them because of an acute shortage of linemen during the
summer of 1966. It also was not possible to immediately
place a substitute crew on the Northern job since all of
the crews based at Butte were involved in other work.
One was 200 miles away at Alberton and the other work-
ing on a substation at Butte 45 miles from Philipsburg.
Also, it was not then certain whether a crew would be
obtainable that would be willing to cross the picket line in
any event. Until other commitments were met, it did not
appear practical therefore to seek to complete the job at
Northern. This was in part because of the work to be
done elsewhere, in part because of added cost to moving
a crew before completion of a job, and in part because of
lack of assurance that a particular crew would cross the
picket line.'7 Morris had also indicated in his testimony
he might have been confronted with having to discharge
the crews at Butte and Alberton if they (after completing
their jobs) had been sent to Northern and refused to cross
the picket line.
About August 1, Morris made arrangements with one
of Swain and Morris' Butte-based crews's that was then
just completing a job at Drummond 19 to go to Philipsburg
and complete the work at Northern whether or not it was
necessary to cross a picket line. On August 4, the crew,
composed of four men, went to the Northern site to
complete the work. There was no picket line and they
completed the work in about 7 hours. 20
B. Argument and Law
The Board has held that an individual employee's
refusal in the course of his employment to cross the
picket line of a union other than his own at a place of em-
ployment of another employer constitutes protected con-
certed action on his part. 21 The Supreme Court has held
that an employer and the union representing its em-
ployees may enter into contractual provisions providing
that any employee or employees who refuse to cross such
a picket line may be terminated by the employer. 22 It also
appears that an employer and the union representing its
employees may enter into contract clauses providing in
effect that absent demonstrated secondary intent, em-
ployees may refuse to cross a lawful primary picket line
during the course of their employment.23
The question is under what circumstances may an em-
ployer require his employees to cross such a picket line
under penalty of discipline or termination absent a con-
tract clause requiring such conduct on their part. The rule
applicable appears to be that the employer may require
the employee or employees to cross such a picket line
under penalty of termination where it is necessary for the
efficient operation of his business (and he is not otherwise
motivated). The issue, however, is when does such neces-
sity exist. Under a recent pronouncement of the Board,
"The events leading to terminations related herein are based on
testimony of DeLong, in part supplemented by Moms.
14 According to Moms, the sign read, "Unfair, Butte Building Trades
Council."
15 See also fn. 11.
16 At time of termination there was apparently no immediate job to
which the crew could have been assigned but work elsewhere would have
become available.
17 It had also, as stated supra, been company policy not to move a crew
but complete a job except in an emergency
18 The one that had been at Alberton on July 21.
19 Twenty-five miles from Philipsburg.
20 The testimony where set forth is generally uncontradicted or cor-
roborated and unless otherwise indicated, I have credited same.
21 Redwing Carriers, Inc., 137 NLRB 1546, 1547. See particularly fn.
5 thereof, and cases cited (including court decisions) The Board's deci-
sion in Redwing dismissing the case was affirmed in Teamsters , Chauf-
feurs and Helpers Local Union No. 79 v. N.L.R.B, 325 F.2d 1011
(C.A.D.C ), without discussing the point other than to refer to the Board's
holdings. See also L. G. Everist, Inc., 142 NLRB 193, enforcement de-
nied without deciding this issue in N.L.R.B v. L G. Everest, 334 F.2d 312
(C.A. 8); Overnite Transportation Company, 154 NLRB 1271, enfd
without passing on same in Truck Drivers and Helpers Local No 728,
Teamsters v. N.L R.B., 364 F.2d 682 (C A.D.C.). For another case hold-
ing such to be protected activity see Truck Drivers, Union Local No. 413,
Teamsters v. N.L.R.B., 334 F.2d 539, 545 (C.A.D.C )
22 N.L.R.B. v. Rockaway News Supply Company, 345 U S 71, 80.
23 See Truck Drivers Local413 v N.L.R.B., supra, fn. 21.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its resolution would appear to rest on a balancing of in-
terests; i.e., the interest of the employer in efficiently con-
ducting his business as against the right of employees to
engage in such concerted activity.24
The General Counsel appears to take the position that
such is permissible on the part of the employer only in the
event of an emergency or in the event that he has to do so
"immediately" and it is necessary for him to obtain new
employees as replacements for the employees who refuse
to cross the picket line. The General Counsel argues,
"Thus an employer may be justified in discharging em-
ployees who refuse to cross a picket line at another em-
ployer's premises if it is necessary to replace said
employees so that the work may be immediately
completed. Respondent cannot defend his actions herein
on such a basis however, since the employees involved
were in fact never replaced. [Emphasis supplied.]" He
argues further that "the work in question was not
completed until August 4th, 13 days later at a time when
the picketing in question had ceased." The General
Counsel appears to put great stress on the necessity to
"replace" employees and on the fact that in the instant
case, no new employees were hired to replace them. He
is using the word "replacement" in the sense of employ-
ment of new persons rather than the use of other em-
ployees.
Respondent argues that it was under compulsion to
complete the job at Northern pursuant to its agreement
with Montana Power and that Montana Power was under
compulsion as a public utility to promptly furnish services
to customers of Montana Power. Respondent contends
that as a result it was under like compulsion to perform
the work for Montana Power. Were the employees of
Montana Power directly involved, Montana Power might
argue such compulsion in support of a "business necessi-
ty" justification in terms of urgency of performance, but
even so, it would be dependent on all the facts. Whether
or not there is a basic difference bwtween what Swain and
Morris might have to do for Montana Power and its per-
formance for another employer is a question I do not be-
lieve necessary to resolve herein. However, I think that
essentially the test for Swain and Morris would be sub-
stantially the same, namely what was necessary for the ef-
ficient operation of its business under the circumstances.
Accordingly, the basic issue herein, is what was required
by Swain and Morris in order to perform the work for
Montana Power at Northern.
A consideration of the cases and particularly the posi-
tion of the Board reflects the following: In Redwing Car-
riers, supra, a majority of the Board, upon reconsidera-
tion of its original decision,25 following remand from the
United States Court of Appeals for the District of
Columbia,26 concluded that certain employees who had
refused to cross a picket line at the premised of another
employer were engaged in protected, concerted activity
in so doing.27 Although in the earlier opinion the Board
had found that the employees' action was unprotected,
upon reviewing the matter it held that protected, con-
certed activity was involved.26 The Board then pointed
out that, although the Act prohibits reprisal against the
drivers involved for engaging in the protected activity of
24 See Overnite Transportation Co., supra, fn 21.
25 130 NLRB 1208.
26 Remanded for further consideration on Board 's motion , granted per
curiam
not crossing the second employer's picket line, the em-
ployer also had a corresponding right which was to be
balanced against the right of the employees. The Board
stated that the Respondent had a "right to attempt to run
their business despite the sympathetic activities of the
drivers here involved." The Board added: "That is,
where it is clear from the record that the employer acted
only to preserve efficient operation 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." The Board further stated: "We
have reexamined the record in this case, and find it clear
that, insofar as Respondents may actually have
`discharged' the eight drivers, they did so entirely for the
purpose of continuing their business operations.
Redwing's president, Charles Mendez, testified that on
June 2, when the drivers refused to cross the V-C line, he
transferred other men from their normal jobs to make
these deliveries, and in addition hired new men to replace
them, both on June 2 and 3. [Emphasis supplied.]" The
Board then concluded that, in view of the above and the
absence of any evidence of union animus, it was con-
vinced that the Respondents terminated the services of
the drivers not in reprisal for honoring the picket line but
solely to continue their business. The Board thereupon
dismissed the complaint.
In Teamsters, Chauffeurs and Helpers Local Union
No. 79, Teamsters v. N.L.R.B., 325 F.2d 1011
(C.A.D.C.), the court affirmed the Board's decision in the
Redwing case.
In L. G. Everist, Inc., 142 NLRB 193, 195, several em-
ployees were terminated for refusing to cross a picket line
of another union and another employer. The Trial Ex-
aminer had found that the four discharges did not violate
the Act since they were prompted by Respondent's need
to continue operations and further found that the Respond-
ent did not violate Section 8(a)(3) of the Act by refusing
to reinstate the complainants even though they had not
been permanently replaced. The Board said that it was
unnecessary to decide whether the complainants were un-
lawfully discharged but concluded that Respondent vio-
lated Section 8(a)(1) by refusing to reinstate the four com-
plainants upon their unconditional application for rein-
statement. The Board, citing Redwing, supra, said that
"an employee's refusal to cross a picket line was pro-
tected activity." It said further: " Redwing holds, in ef-
fect, that a `discharge' for refusal to cross a picket line is
an exception to the general rule that employees may not
be discharged for engaging in protected concerted activi-
ty. It is therefore not a discharge for cause, but merely a
permissible act in furtherance of the employer's overrid-
ing right to keep his business going by replacing such em-
ployees. To this extent, at least, the employees involved
herein are similar to economic strikers, who may also be
replaced by an employer to permit continued operation of
the business but who, if not permanently replaced, are en-
27 These employees had been permanently assigned to make deliveries
to the other employer
2' Redwing Carriers , supra , 1547, 1548 . See p 1546, fn. 5, for cases
referred to by the Board in so holding.
SWAIN AND MORRIS CONSTRUCTION CO.
titled to reinstatement upon unconditional application."
In the Everist case, the deliveries were made by five
other drivers together with three supervisors and a stu-
dent driver. Under the circumstances, the Board found
that "where, as here, no permanent replacement has oc-
curred at the time the claimants unconditionally apply for
reinstatement so that their jobs are still available, the em-
ployer is obligated to return them to work."
This decision of the Board was appealed to the United
States court of appeals which in a two to one opinion29
reversed the Board, holding that the discharges were for
cause. The court found that the uncontradicted testimony
was "that the contract between respondent and the prime
contractor provided that continued and uninterrupted
deliveries were essential; that the aggregate piles were
low; that interrupted deliveries could cause respondent to
lose its contract; and that at least some of the drivers
were informed when they were hired that deliveries could
not be interrupted by strikes." It also said, "The Board,
by its decision, did not disturb the Examiner's findings in
this regard or that the discharges `were prompted by
Respondent's need to continue operations and were not
in reprisal for the claimants having refused to cross the
picket line."' The court added, "The Examiner found that
the four drivers had been `discharged' and such finding
was not disturbed by the Board. The discharges were not
premised on any other happenstance or occurrence ex-
cept refusal to work. They were not conditional in any
way. The drivers were discharged and respondent had a
policy of not rehiring any employee who had once been
discharged. The respondent had a right to the main-
tenance of such policy and it proceeded, promptly, to
replace the discharged drivers with other of their em-
ployees who would perform the work expected of them -
delivering aggregate to the prime contractor even if it did
mean crossing a picket line of another union against
another employer. [Emphasis supplied.]"
In the latest case that appears to deal with this problem,
the Board in Overnite Transportation Co., 154 NLRB
1271, found-that the termination of an employee for refus-
ing to cross the picket line of the same union which had
been attempting to organize the Respondent's employees
but was picketing at another employer was a violation of
Section 8(a)(1) and (3) of the Act. The Board distinguish-
ing the Redwing case, supra, said "The record contains
no evidence of a replacement for Styles [the dischargee]
beyond mention of the driver who was dispatched to the
Warren Company when Styles refused to cross the picket
line. There is further testimony to the effect that five
other employees subsequently crossed the picket line
when they were dispatched to the Warren Company."
The Board, after stating that it recognized the right of an
employer to run his business despite the fact that an em-
ployee's refusal to cross a picket line at the premises of
another employer involves a protected activity,
emphasized its position as follows:
. the Board has held that an employer does not
violate the Act in terminating such employees if the
employer acts " only to preserve the efficient opera-
tion of his business, and ... only so [that he] could
immediately or within a short period thereafter
replace them with others willing to perform the
scheduled work.... [Emphasis supplied.]" At the
same time, however, it is the Board's view that if the
1071
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 in-
terest must present more than a mere showing that
someone else may have to do the work.. . . Clearly,
what is required is the balancing of two opposing
rights, and it is only when the employer's business
need to replace the employees is such as clearly to
outweigh the employees' right to engage in protected
activity that an invasion of the statutory right is
justified. [Latter emphasis supplied.]
The Board distinguished the Redwing case as follows:
In that case, the Board upheld as lawful the termina-
tion of employees who had been permanently
assigned to certain projects of the employer's
customer and who refused to cross a picket line
established at the customer 's premises . After ob-
serving that it was necessary for the employer to
reassign other employees from their normal jobs and
also hire new men to do the work, the Board found
that the employer's action was taken entirely for the
purpose of continuing business operations. The
Board also found that these events occurred in a con-
text totally devoid of union animus. [Latter emphasis
supplied.]
The Board then proceeded to otherwise distinguish the
Redwing case by pointing out that Respondent's pickup
and delivery men were not assigned to regular routes but
received their assignments by radio continually during the
course of their day's work; when Styles refused to cross
the picket line the Respondent's dispatcher sent another
driver who made the pickup immediately and without in-
cident; adjustments in the assignment of trucks "would
seem commonplace;" Styles continued to make his other
assigned stops; and his conduct was not shown to have
rendered him incapable of performing his job or that it
disrupted the Respondent's business in any significant
respect.
The Board accordingly found that the Respondent's in-
terference with Styles' right to respect the picket line out-
weighed whatever business justification the Respondent
urged as its reason for discharging him. It further found
that the Respondent's demonstrated union animus as
evidenced by the Trial Examiner's findings of coercive in-
terrogation and threats of economic reprisal warranted an
inference that Styles' indication of union sympathy, by
his refusal to cross a picket line, was a contributing con-
sideration in the Respondent's decision to discharge him.
The court of appeals in Truck Drivers and Helpers
Local No. 728 v. N.L.R.B., supra, 684, affirmed the
Board decision without passing on whether the refusal to
cross the picket line of another employer deployed by the
same union that was organizing Respondent 's plant was
protected or nonprotected activity. The court rested on
the basis that the Board, independent of its finding that
Section 8(a)(1) was violated, also found that the discharge
was discriminatorily motivated in violation of Section
8(a)(3). It said: "The Board thought it reasonable to con-
clude, in light of Respondent's other anti-union actions
and the frailty of the asserted business justification for the
discharge, that this indication of sympathy for the Union
colored the decision to discharge him."
A brief consideration of contractual provisions relating
to work stoppage herein may be in order.
L4 N.L.R B. v. Everist , supra , 315,317.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The contract between Swain and Morris and the
Union, in article XI headed "Disputes," section 11.1,
provides: "There shall be no stoppage of work by strike
or lockout or any subterfuge thereof because of any
dispute relating to the application of this agreement...."
The provision then goes into detail as to procedure to be
followed culminating in ultimate resolution through final
submission if necessary to "The Council of Industrial
Relations for the Electrical Contracting Industry of the
United States and Canada." No party has urged the
above provision as having any specific bearing herein.
Neither is it clear what impact, if any, said provision
could or should have on the instant case.
While there may be some arguable comparability to the
provisions in N.L.R.B. v. Rockaway News, supra, the
provisions are not identical. There is no evidence herein
such as in Rockaway News as to prior bargaining history
re a picket line clause referred to post, nor is there a
clause such as in Rockaway requiring employees to obey
the foreman and follow a grievance procedure, nor did the
discharges proceed to arbitration as therein.
In Rockaway News, the Board of Adjustment (pro-
vided for by the contract) found:
Under section 4 of the agreement between the
parties it is the obligation of an employee to comply
with orders of the foreman and if such orders are ob-
jectionable to him personally to have the issues
discussed and brought to arbitration in accordance
with the procedures set forth therein. He may not in
the first instance refuse to obey the order merely
because it is personally distasteful to him... .
The court discussed the no-strike clause which read, "No
strikes, lockouts or other cessation of work or inter-
ference therewith shall be ordered or sanctioned by any
party thereto during the terms hereof except as against a
party failing to comply with a decision award or order of
the Adjustment Board." The court stated that "If this be
considered ambiguous in meaning, respondent offered
... to prove that during the negotiations, one of the de-
mands made by the union was a clause ... which would
have said `No man shall be required to cross a picket
line,' that this clause was rejected by respondent and the
union acquiesced in the rejection and consented to the no-
strike clause as above recited." The court then added that
the arbitrators' interpretation of the contract was in har-
mony with the offer of proof, with arbitrators stating: "In
addition the contract between the parties does not specifi-
cally permit the refusal by the employee to comply with
such an order although other contracts in the industry do
contain such a provision."
In any event,'the foregoing not only is different, in
those respects enumerated, from the contract provision
here involved, but in view of my resolution as set forth
hereafter, it appears unnecessary to determine whether
such clause should or could be the basis for resolving the
employer's right to terminate the employees herein.
30 This is not pressure to perform an illegal act as in Ref-Chem Com-
pany, 153 NLRB 488, cited by the General Counsel. The pressure here
was not to discharge specified employees (nor directly any employees) but
rather to get the job done. The latter was a legitimate business request by
Montana Power. The action to be taken to accomplish such was a matter
In analyzing the foregoing cases, the situation here ap-
pears most comparable to that in Redwing. There was no
union animus involved there nor is there any here. In
fact, the record indicates that Respondent had sought to
avoid any problems with respect to the picket line by
requesting the Union to assist in obtaining permission to
cross the line from the Building Trades Council. Its men
had been moved from Philipsburg to Deer Lodge by a
subordinate representative of Montana Power. It was not
until then, and after the Montana Power Company told
Morris it "expected us to go and complete the job," that
he took the action set forth, supra. Like Redwing, the em-
ployees were permanently assigned to the work at
Northern as distinct from nonassignment to regular
routes and continual adjustments in assignments as in
Overnite. In addition, although the Respondent did not
have other men immediately available to perform such
work since all of its crews were busy elsewhere, it was
necessary shortly thereafter for Respondent to bring men
from another location to perform the work - to replace
the dischargees with other crews. Also, it should be noted
that the apprentice was taken back in 2 days and that an
offer of reinstatement was made to Bauer on September
17, so that there is not involved any question of refusal to
reemploy. This is not a case where the employer could
readily obtain someone else to do the work as in Overnite,
supra. Nor were there involved highly flexible assign-
ments nor work that could be done anytime. Rather, the
men had been assigned to do this job, there was pressure
upon Respondent from the main contractor to complete
the work under potential threat of loss of its main business30
and it did not have extra men whom it could readily
substitute to perform the work. Under all the circum-
stances, I conclude that the employer was justified in
discharging Mitchell and Dauer in order to carry on its
business and that the latter outweighs the employees'
right to engage in the concerted action of refusing to cross
a picket line. Accordingly, I shall recommend that the
complaint herein be dismissed.
CONCLUSIONS OF LAW
1. Respondent , Swain and Morris , is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate Section 8 (a)(3) or (1) of
the Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
I recommend that the complaint be dismissed in its en-
tirety.
for the businessjudgement of Respondent, provided that such action, under
all the circumstances was necessary for the efficient performance of its
business obligations when balanced against the employees' nght to engage
;n such protected activity.