Whayne Supply Co.

National Labor Relations Board - Board Decisions

Jul 18, 1994

314 N.L.R.B. 393 (N.L.R.B. 1994)

393
314 NLRB No. 70
WHAYNE SUPPLY CO.
1 No exceptions were filed to the judge’s findings that the Re-
spondent violated Sec. 8(a)(1) of the Act by suspending Forrest
Jackson on June 7, 1993, and discharging him on June 8, 1993, be-
cause he refused to cross a lawful picket line at a customer’s prem-
ises to perform his regular work duties, and by Supervisor
Strattman’s statement to field technician Herschel Koller, during late
June 1993, that Jackson had been dismissed because he would not
cross a picket line. However, we decline to consider on the merits
the 8(a)(3) allegation raised in the General Counsel’s exceptions. We
find it unnecessary to find the 8(a)(3) violation because it would not
substantially affect the judge’s remedy for the 8(a)(1) violation that
he found and that we are adopting. We therefore deny the General
Counsel’s exception. Cf. American Transportation Service, 310
NLRB 294 fn. 2 (1993).
2 The General Counsel excepts to the description of Forrest Jack-
son’s work in the judge’s notice as being ‘‘work that would nor-
mally be done by employees of another employer then on strike.’’
The General Counsel contends that the subject work was always
done by the Respondent’s employees. We find merit in this excep-
tion and have accordingly substituted the attached notice for that of
the judge. 1 Respondent’s name is corrected as reflected in the answer.
Whayne Supply Company and Forrest Jackson.
Case 25–CA–22608
July 18, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On March 15, 1994, Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
General Counsel filed limited exceptions and a sup-
porting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Whayne Supply Company,
Evansville, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten our employees with dis-
cipline up to and including discharge if they cross a
picket line maintained by the United Mine Workers of
America, or any other union.
WE WILL NOT tell our employees that we discharged
an employee because he refused to cross a picket line
maintained by the above Union, or any other union.
WE WILL NOT terminate or suspend employees be-
cause they refuse to cross lawful picket lines at cus-
tomer locations.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to
employee Forrest Jackson to the position he would
have held, but for our wrongful suspension and dis-
charge of him on June 7 and 8, 1993, and, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify Forrest Jackson that we have re-
moved from our files any reference to his suspension
and discharge and that the discharge will not be used
against him in any way.
All of our employees are free to engage in concerted
activities for their mutual aid and protection within the
meaning of Section 7 of the Act or to refrain from
such activities.
WHAYNE SUPPLY COMPANY
John Petrison, Esq. and Ann Rybolt, Esq., for the General
Counsel.
Joseph Worthington, Esq. and W. Kevin Smith, Esq., of Lou-
isville, Kentucky, for the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. The unfair
labor practice charge was filed July 2, 1993, by Forrest Jack-
son, an individual, against his former employer, Whayne
Supply Company (the Respondent).1 On August 13, 1993,
the Regional Director issued a complaint alleging that Re-
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent, by its agent and manager, Michael Morris, violated
Section 8(a)(1) of the Act on about February 8, 1993, by
threatening employees with disciplinary action, up to and in-
cluding discharge, if they refused to cross United Mine
Workers of America (UMWA) picket lines at certain Pea-
body Coal, Inc. mines. It is also alleged that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by first suspending
on June 7, 1993, and then discharging on June 8, 1993, em-
ployee Forrest Jackson because he refused to cross the
above-named Union’s picket line at the Old Ben Company
coal mine 1 at Spurgeon, Indiana.
Respondent filed a timely answer which denied responsi-
bility for the threats and/or their coercive nature. Respondent
further answered that Jackson had been permanently replaced
for valid economic reasons because of his refusal to cross the
UMWA picket line.
The trial of this matter was held in Evansville, Indiana, on
November 9, 1993. At the trial, the General Counsel amend-
ed the complaint to add an additional violative threat of dis-
charge by Foreman Steve Stratman to employees on June 28,
1993, if they refused to cross UMWA picket lines. All par-
ties were given full opportunity to adduce relevant evidence
by way of examination of witnesses, or documentary exhib-
its, to argue orally, and to file posthearing briefs. Both par-
ties chose to file posthearing briefs, which were to be due
on December 15, 1993. However, because of a variety of
mishaps which plagued both parties, several extensions of
time were granted, and the briefs were not received by my
office until February 23, 1994.
On the entire record, including the briefs submitted by
both parties, and from my observation of the witnesses and
their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times Respondent, a corporation with a
place of business in Evansville, Indiana (Respondent’s facil-
ity and facilities in other States), has been engaged in selling,
leasing, and servicing construction equipment and industrial
engines and providing related products and services. During
the past 12 months, Respondent, in conducting its business
operations, derived gross revenues in excess of $100,000.
During the same period, Respondent, in conducting its busi-
ness operations, purchased and received at its Evansville fa-
cility goods valued in excess of $50,000 directly from points
outside the State of Indiana.
It is admitted, and I find, that at all times material Re-
spondent has been engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that at all times material the
United Mine Workers of America (the Union) has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent maintains its main office in Louisville, Ken-
tucky, and branch locations at six other locations in Ken-
tucky as well as one at Evansville, Indiana. At these loca-
tions, Respondent sells, leases, and services machinery manu-
factured by Caterpillar, Inc. That product line is variously
called caterpillar or CAT. The machinery varies from a wide
variety of trucks and earth-moving tractors, including ‘‘doz-
ers,’’ excavators, loaders, and scrapers. Some of the ma-
chines are humongous. For example, scrapers weigh 81,000
pounds, are 33 feet long and about 15 feet high and 15 feet
wide, and cost about $1 million each. Respondent also serv-
ices other brands of machinery as well as machinery pur-
chased from another source.
The natural clientele for Respondent’s products, among
many others, are coal mines. Two of those coal mine cus-
tomers, Peabody Coal, Inc. and Old Ben Company, account
for about 20 percent of Respondent’s parts business. Peabody
alone provides three times as much business as the next larg-
est customer. Respondent’s parts sales account for $4 million
annually.
The Peabody and Old Ben mines serviced by Respondent
are old locations which have millions of tons of coal reserves
and at which are located permanent facilities for the storage
and maintenance of machinery used by the mines. In total,
Respondent services from 40 to 50 coal mine sites from the
Evansville facility. In 1993, Respondent, at Evansville, serv-
iced three or four Peabody sites but only the Old Ben mine
1 site, which were the sites of UMWA strike activity and
picket lines.
Human Resources Vice President James Davis maintains
his office at the Louisville headquarters. Charles Campbell is
subordinate to him as a human resources manager. At Louis-
ville, Frank Applegate is the vice president of branch oper-
ations. Michael Morris is the branch manager at the Evans-
ville facility. Subordinate to him is Ron Skaggs, the branch
service manager. Subordinate to Skaggs is Steve Stratman,
field service foreman. Respondent admits that Morris,
Stratman, and Skaggs are ‘‘supervisors of Respondent’’ but
denies lack of authority to act as agents of Respondent with-
in the meaning of Section 2(13) of the Act with respect to
conduct alleged as violative in the complaint.
In early spring 1992, Respondent employed at Evansville
a total of 42 service technicians, of which 24 were assigned
to work in the shop. Of this group, Respondent also em-
ployed 14 field service technicians whose job was to render
diagnostic and other maintenance service at the customer’s
worksites as the need arose. Stratman dispatched all field
technicians. Some technicians serviced particular customers.
Others were assigned with deference to their own residence
locations which were spread far apart in that section of Indi-
ana. There are several other categories of service-related em-
ployees also at Evansville. Except for two branch locations,
Respondent’s employees, including those at Evansville, are
not represented by any labor organization.
It is the undisputed testimony of employee witnesses that
in prior years they were not obliged by the Respondent to
cross picket lines which had been established by the Union
at Respondent customers’ mines during periods of labor dis-
putes there. Forrest Jackson was one of those field techni-
cians who refused to cross picket lines with impunity.
B. The 1993 Peabody Mine Strike
On about February 1, 1993, the Peabody mines were sub-
jected to a short period of picketing by the mine employees
395WHAYNE SUPPLY CO.
in support of a union strike in a contractual labor dispute
with that employer, of which there is no contention of ille-
gality. After an indeterminate short period of picketing of
about 2 weeks, a ‘‘cooling off period’’ was effectuated. A
deadline for agreement was set for May 3, but the strike re-
sumed on about May 10, 1993. However, during that initial
period of the strike, Respondent became concerned as to how
it would satisfy the persistent demands of Peabody for con-
tinued service during picketing and yet accommodate the
concerns of its employees about crossing picket lines, par-
ticularly their concerns for their personal safety. Branch
Manager Morris testified that he and the Evansville managers
held at least two of a series of meetings in February with
all the mechanical service employees at the Evansville facil-
ity, i.e., two meetings each with the field technicians and
with the shop technicians. He testified that at the first meet-
ing with the field technicians he discussed Peabody’s de-
mands for uninterrupted service and sought to obtain some
sort of understanding with them about it, but the meeting be-
came essentially a question-and-answer session. About 500
questions were posed by field technicians which, according
to Morris, revolved around their desire to know what the
consequences would be if they refused to cross the union
picket line. He testified they voiced their ‘‘views’’ and ‘‘con-
cerns’’ at the meeting and elsewhere. He did not testify as
to what any particular employee said or did not say but con-
ceded that there may have been individual conversations.
Morris testified that Respondent thereafter explained to Pea-
body the field technicians’ reluctance to cross any union
picket line. Peabody was persistent and proposed a plan to
bus the Respondent’s field service technicians across the
picket line and to house them on the strikebound site in pre-
fabricated buildings for a prolonged period of time, i.e., 12–
14 days. Peabody intended to house a total complement of
34 vendor technicians at the site. Respondent refused to pro-
vide more than two technicians at a time.
Shortly after the foregoing meeting, according to Morris,
a second meeting was held between all 42 of the Respond-
ent’s Evansville field service technicians and mechanics and
the Evansville management team which, as it had earlier,
represented and spoke authoritatively for Respondent. Several
witnesses estimated that the meeting came only 2 days later.
Some place it on February 15, others on February 10. Morris
was not sure but thought it was possibly earlier on February
8 or 10. At one point, he placed it on February 15. Rep-
resenting Respondent were Morris, Skaggs, and Stratman as
well as Applegate and Steve Baylor from Louisville. Morris
testified that all the employees were unhappy with the pros-
pect of crossing a union picket line. Respondent’s agreed
plan with Peabody was explained, i.e., busing and onsite liv-
ing accommodations. The technicians raised questions, objec-
tions, and problems with respect to the plan, e.g., medical ac-
cess, religious obligations, and dietary limitations. Morris tes-
tified, in response to a Sabbath observance question, that Re-
spondent would use a helicopter to provide egress and in-
gress. According to Morris, Respondent ‘‘pushed Peabody so
hard’’ with respect to the employee concerns that it later ter-
minated Respondent’s services at least for that period of
time. Thus, no Respondent employee had any occasion to be
dispatched to a strikebound Peabody plant when the strike re-
sumed.
At issue is what Morris told Respondent’s employees in
answer to questions they asked at the first meeting, and
which he conceded were reiterated by them at the second
meeting, as to the consequences to them if they refused to
cross a picket line upon being dispatched to a strikebound
Peabody mine. It is the undisputed testimony of employee
witnesses that in past strike situations, they were instructed
to approach the picket line in an attempt to enter but were
not obliged to cross if they chose not to do so. According
to Morris’ testimony, at the second meeting in February
1993, i.e., ‘‘lottery meeting,’’ he instructed the employees
that they would be bused across the picket line when dis-
patched for service work at a strikebound Peabody mine.
However, he told them that the assignments would follow a
lottery system whereby each field service technician was as-
signed a number from 1 through 14 pursuant to a chance
drawing. The assignments would commence from the lowest
number upward, and the designee would work at the Pea-
body site on a 12-day rotation basis.
Several employees testified as to Morris’ response to in-
quiries as to what would be the consequence of an employ-
ee’s refusal to cross the Peabody picket line if dispatched
pursuant to the lottery. Forrest Jackson had been employed
by Respondent since July 1974 and for the last 5 years as
a field technician. According to Jackson, the busing plan and
the lottery were announced at the first meeting. He testified,
without contradiction, that at the first meeting, which he
placed on February 8, he announced his opposition to busing
across a picket line and that he openly solicited the opinion
of several other field technicians who also announced to
Morris some opposition. He also testified credibly, without
contradiction, that he and all the other field technicians had
discussed the issues privately among themselves prior to the
February 8 meeting and had agreed that they all did not want
to cross the Peabody picket line. Jackson testified that 10
minutes after the meeting he confronted Morris alone in
Morris’ office and asked him what would happen to an em-
ployee whose number came up but who refused to cross the
Peabody picket line and that Morris told him that the ‘‘dis-
ciplinary actions’’ would be taken ‘‘up to dismissal, if nec-
essary.’’ Jackson further testified that he protested that this
was contrary to Respondent’s past policy whereby a techni-
cian could, with impunity, refuse to cross a picket line after
having approached it but that Morris did not respond. Jack-
son testified that in that meeting he also told Morris that the
technicians would be willing to drive their trucks up to the
line to determine whether they would obtain entry, and that
Morris responded that he would check with his superiors at
Louisville. According to Jackson’s recollection, Morris had
announced at the February 8 meeting that he had already dis-
cussed the issue with Peabody and that the busing tactic and
lottery system had been decided on.
Jackson’s recollection of the sequence of meetings differs
somewhat from Morris’ testimony, which places the lottery
and busing decision as being at the second meeting. How-
ever, at a later point in testimony, Morris referred to the lot-
tery meeting as the last in a series of meetings. Jackson re-
fers to only one other meeting, i.e., on February 10 between
all the technicians, including the 14 field technicians, Morris,
Skaggs, Stratman, and Louisville Respondent Representatives
Applegate and Baylor. He did not place the latter two at the
February 8 meeting. According to Jackson, at the February
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 meeting, the employees raised questions and concerns
about their personal safety as well as their personal property
and the safety of their houses and families. He testified,
without contradiction, that he and at least 10 other field tech-
nicians supported an informal letter or petition by field tech-
nician Herschel Koller regarding questions of Respondent’s
liability for damage to their property and assurance of site
egress for religious purposes.
Koller essentially corroborated Jackson but explained that
the petition actually consisted of written questions put to Ap-
plegate because of Applegate’s failure to put his assurances
to these specific concerns in writing. Koller’s testimony is
confusing but suggests that there were two or three February
meetings. He recalled a meeting 2 weeks before the lottery
meeting. This could very well coincide with Morris’ descrip-
tion of the first meeting. Koller placed Baylor and Applegate
at the first meeting with the Evansville management team.
Koller, like Morris, recalled that employees at that first meet-
ing asked what the consequences would be if they refused
to cross a Peabody picket line. Morris’ testimony is silent as
to his response at that first meeting. Koller testified that
Morris answered that the employees would be subject to
‘‘disciplinary action up and through dismissal from the Com-
pany.’’ He testified that this was repeated at the lottery meet-
ing when the question was again raised ‘‘they would be sub-
ject to disciplinary action up and . . . including dismissal
from the Company.’’ He could not recall much of what was
discussed, but that response remained impressed upon him.
Field technician Daniel Blankenburger testified that he at-
tended a February field service technician meeting at which
the busing and lottery assignment plan was announced and
discussed and numbers drawn. He testified that he, Jackson,
Koller, and field technician Don Pugh all expressed opposi-
tion to crossing of picket lines at Peabody mines. Like Jack-
son, in direct examination he was silent as to the discussion
of consequences of a refusal to cross picket lines at the meet-
ing itself. However, like Jackson, he testified that he initiated
a personal conversation with Morris privately in Morris’ of-
fice. He asked Morris what would happen if he refused to
cross a picket line if he were dispatched pursuant to the lot-
tery in which he drew the number one assignment.
Blankenburger testified that Morris responded, ‘‘You would
be up for disciplinary reaction [sic], up to and including dis-
missal of your job, for refusing to do a job order.’’ In cross-
examination, Blankenburger testified that with respect to the
lottery discussion the employees were told it ‘‘boiled down
to either accepting the lottery dispatch or losing their jobs.’’
He admitted that Morris did not use the word ‘‘discharged.’’
Field technician Donald Pugh testified that he recalled two
meetings in February, a first meeting and, next, the lottery
discussion meeting at which picket line crossing refusal con-
sequences were discussed. However, he testified that he did
not recall the first meeting discussion but that the second
meeting ‘‘sticks out’’ in his memory. He testified that at the
meeting he asked Morris if the technicians would be fired if
they refused to cross the Peabody picket line and Morris an-
swered, ‘‘Yes.’’ He testified that he then asked if they all re-
fused, would they all be fired and Morris again answered
with a categorical ‘‘yes.’’
Field technician Arnold Winstead testified that he was
present at a February meeting of field service technicians
with Morris and other Respondent representatives a few days
before the lottery meeting, at which Morris discussed Re-
spondent’s situation whereby Peabody had called on it for
support during the strike. According to Winstead, Morris re-
sponded to inquiries of picket line cross refusal consequences
by saying that ‘‘disciplinary action . . . up to and including
dismissal’’ would be the consequence for a refusal to cross
the Peabody picket line. Although he testified that the same
subject was discussed at the lottery meeting, counsel ne-
glected to ask about it. On cross-examination, he conceded
that many other things were discussed but the discipline and
dismissal response was that kind of statement that ‘‘sticks in
your mind.’’ His demeanor was very convincing. He was
corroborated by field technician Phillip Dosher who also re-
membered Morris’ reference to Respondent’s work rules and
a statement by Morris that pursuant to those work rules, the
technicians would be required to cross the Peabody picket
line subject to discipline ‘‘up to and including dismissal.’’
Morris testified that during the February meetings there
was some ‘‘pretty blunt’’ conversation between himself and
the service technicians regarding the busing and lottery
scheme. He testified that he was under constant pressure
from Peabody and that their relationship with Respondent
had become strained. He testified that at the lottery meeting
the technicians again raised the question of consequences of
a picket line crossing refusal. He testified with a somewhat
generalized response that to all such questions, his answer
‘‘was never a threat’’; and that Respondent had to address
the customer’s demands and the employees’ safety. He testi-
fied that Respondent’s managers went into those employee
meetings ‘‘not making demands.’’ He testified, ‘‘I think the
exact words were, we would take appropriate action based on
our employee handbook guidelines, is I believe, our exact
wording.’’ He then again testified with a generalized denial
that he did not ‘‘threaten any employees’’ at the meetings,
which he characterized as very informal. He did not explic-
itly contradict the testimony of the foregoing witnesses con-
cerning individual confrontations. He did not categorically
deny the reference to ‘‘disciplinary action up to and includ-
ing dismissal.’’ When recalling his statements as to employ-
ment consequences of picket line crossing refusals, he was
hesitant and uncertain in demeanor. He admitted that if Jack-
son claimed that he had talked to him about picket line
crossing concerns, then he did so, although Morris could not
recall it. Finally, he admitted that the lottery was based on
pure chance but had Jackson’s number for dispatch been
drawn, he would have been obliged to go to the Peabody
site, cross the picket line by bus, and work there for 12 days.
He testified that all employees were obliged to perform work
at Peabody inasmuch as arrangements had been made for
their safety, and a refusal to do so would have been against
Respondent’s guidelines contained in the employee hand-
book. That handbook was never adduced with evidence, and
its substance was never explicated.
From the varying accounts of the witnesses, I conclude
that the meetings were not the most orderly functions, par-
ticularly after the announcement of the lottery stratagem.
Discussion ensued not only between Morris and individual
field technicians, but between the technicians themselves.
Thus it is possible that not every witness recalled everything
that was said by Morris because of the distractions of mul-
tiple conversations, but certain statements left a strong im-
397WHAYNE SUPPLY CO.
pression upon the memories at the point in time when they
heard it.
C. Old Ben and Forrest Jackson
The Union initiated a strike at the Old Ben Coal Company
facilities on May 10, 1993, including mine 1 at Spurgeon
near Lynchville, 35–40 miles from Evansville, which was
serviced by Respondent. It had not been serviced by Re-
spondent during the February events described above because
it had been inoperative. During the summer of 1993, it is ad-
mitted that Respondent assigned overtime work to its field
technicians at a variety of customers’ worksites. Morris testi-
fied that he informed Old Ben that Respondent was not con-
cerned about the strike and picketing at mine 1 but it would
attempt to service that facility. He testified that Respondent
did, in fact, service mine 1 daily as needed despite the picket
line. He failed to testify when the first dispatch was made
to Old Ben mine 1 after May 10. As an adverse witness
called and examined by the General Counsel, he testified that
on June 7, that Jackson was the field service technician
‘‘available’’ at the time when a call for service came in from
mine 1. Morris testified later in cross-examination as a Re-
spondent witness that Respondent intended to provide service
to Old Ben at mine 1 and a field technician’s availability was
obligatory and not dependent on that field technician’s will-
ingness to cross the picket line.
At the time of the June 7 and 8 events, Old Ben mine 1
had stationed there six CAT 657 E Scrapers, i.e., the million-
dollar behemoths described above. He testified that those ma-
chines were equipped with sophisticated electronic devices
related to the shifting of the transmission based on revolu-
tions per minute of the engine, of which certain application
of design problems was being experienced there. He testified
as a Respondent witness that Forrest Jackson, as a field tech-
nician, had been involved in those service problems. He fur-
ther testified that Old Ben had looked to Jackson for ‘‘hands
on experience’’ to resolve those problems, in most of which
Jackson had been involved. Thus, the emphasis in Morris’
testimony changed. At first, Morris’ testimony would lead us
to believe that on June 7 Jackson was the field technician
who was the field technician available and waiting for an in-
coming service call and, thus, assigned to it that day. In later
testimony, Morris suggests in generalized terms that Jackson
was an Old Ben mine 1 specialist. However, it is undisputed
that Morris did not make the daily assignments nor was he
involved in the decisional consequences of Jackson’s refusal
to cross the Old Ben picket line when sent there on June 8.
Jackson testified credibly and without explicit contradic-
tion that, although some field technicians serviced certain
customers exclusively, he did not and that further he, like
other technicians, serviced a variety of jobs that lasted from
1 day to 1 week, and even 1 month, pursuant to Stratman’s
dispatching. It is also Jackson’s uncontradicted testimony that
in the past his request to be relieved of certain assignments
for personal reasons had been granted without impunity and
also that he had been dispatched to relieve another field tech-
nician who had already been working at a service site.
Jackson testified, without contradiction, that he had been
aware of no service dispatch for Respondent to Old Ben
mine 1 between May 10 and June 7. He conceded on cross-
examination that he did spend 80 to 90 percent of his time
servicing the aforedescribed 675 E Scraper problem for the
six scrapers at Old Ben mine 1 as well as four scrapers at
mine 2 prior to the May 10 strike. Jackson explained that the
specific nature of the machine problems was such that the
manufacturer had sent its own engineers to the Old Ben sites,
and that at Old Ben’s request, Jackson had visited the manu-
facturing plant in Peoria, Illinois, in an attempt to resolve the
problem. He admitted that Old Ben had ‘‘at times’’ specifi-
cally requested his services and even communicated with
him at his home regarding the 657 E Scraper problems. He
testified that consequently, in order to resolve those prob-
lems, the manufacturer provided modifications in the form of
new controls which he installed in those machines. The dates
and duration of these prestrike events were not specified.
Jackson conceded on cross-examination that on Friday,
June 4, he received a telephone call from Old Ben mine 1
Supervisor James Jones and the shop foreman at Old Ben
mine 2, Chuck Vinnage, who were referred to him by
Stratman regarding some scraper problem. Jackson advised
them on what to check and how to check certain electric or
electronic switches. Jackson admitted that the next day he
had received a message at home that he had been again
called by the Old Ben supervisors but he was absent on a
job at another customer, the Amex Delta customer, which
had not been involved in a strike. Jackson admitted that on
June 7 Stratman ‘‘probably’’ told him that Jones had called
and asked for Jackson. He testified that it did not surprise
him because he had been told on Friday that one of the six
657 E Scrapers at mine 1 had been down. Stratman did not
testify.
Jackson testified, without contradiction, that prior to June
7 he had not been dispatched to the Old Ben site for 1 or
1-1/2 months. It is not established when Old Ben resumed
production but, from this testimony, it would appear that Old
Ben mine 1 had been in production at least by May 7 or mid
to late April 1993, at which time Jackson apparently tended
the 657 E problems. Jackson testified without contradiction
to the events of June 7 and 8, 1993. On June 7, Stratman
dispatched Jackson to the mine 1. At about 9 a.m., Jackson
reached the site. There were two entrances. Jackson neared
the main entrance and stopped his vehicle as pickets ap-
proached. He observed Old Ben employees cross the picket
line. He was aware that a Respondent supply vehicle had
‘‘probably’’ entered earlier without incident except for some
verbal abuse. He saw six or seven pickets sitting on lawn
chairs. He conceded that he did not feel unsafe at that mo-
ment. Jackson asked the pickets who had approached his ve-
hicle whether he could cross safely to do his job. Without
answering his question or assuring his safety, they told him
instead that they would rather that he not cross the picket
line. He testified that although he saw no sign of violence,
he, nevertheless, felt unsafe at that point. He drove away to
a nearby telephone location in Spurgeon where, by means of
mobile radio contact with Stratman, whom he had told that
he felt unsafe, Jackson talked by telephone to Skaggs. Jack-
son told Skaggs that he decided not to cross the picket line
because he felt it was unsafe. He admitted to Skaggs that he
saw no signs of any kind of weapon. Skaggs told Jackson
that he was sending him home without pay for the balance
of that workday but to report to the Evansville facility the
next day. No one replaced Jackson at mine 1 on June 7.
On June 8, Jackson arrived at the Evansville facility as
usual at 6:30 a.m. for dispatch. In answer to Jackson’s ques-
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion, Stratman told him that neither Morris nor Skaggs
wished to discuss with Jackson the events of June 7. How-
ever, Jackson was again dispatched to Old Ben mine 1.
Again, Jackson approached the main entrance and stopped.
He recognized and spoke to a picketing Old Ben mechanic,
Mike Cromer, whom he recognized. Jackson asked the same
question and received the identical response of June 7. He
similarly drove away and called Stratman by truck radio and
said he felt it was unsafe to cross the picket line. He again
arranged to talk to Skaggs by telephone at a nearby location.
He again told Skaggs he felt unsafe to cross the union picket
line. He admitted that Skaggs offered to come and ride in
the vehicle if he would drive across the picket line. Jackson
refused. Jackson admitted that there were no physical ob-
structions in the entrance road to the mine. Skaggs told Jack-
son to return to the Evansville facility at about 8:30 a.m.
Jackson entered Skaggs’ office to report to him. Skaggs was
talking to someone on the telephone. Jackson heard Skaggs
tell this person that he had to ‘‘fire’’ one of his men.
When Skaggs finished his conversation, he turned and
asked Jackson what was the problem at the Old Ben mine
1 picket line. Jackson said he felt unsafe. Skaggs asked
whether he would change his mind. Jackson replied that he
would not. Skaggs said Jackson would have to be ‘‘let go’’
by Skaggs and that Skaggs planned to ‘‘replace’’ him.
Skaggs refused Jackson’s request to drive Respondent’s vehi-
cle home and was ordered to unload his personal property at
the facility, to which he returned on June 9 to retrieve, as
well as to obtain, checks for pay, vacation pay, and other
incidentals. He subsequently returned to give back his uni-
form and to clear up insurance matters. He was never re-
called. On June 8, 1993, Jackson observed that after his re-
fusal, the dispatch to the Old Ben mine 1 was assigned to
and serviced by technician Kenney Schmitt.
Morris testified that after June 8 Respondent had dis-
patched shop and field technicians to the Old Ben mine 1,
which was serviced by them as they were needed without
any problems. However, he admitted that after June 8 the
dispatch to the Old Ben mine 1 was done on a volunteer
basis only and there was no need to order anyone to cross
the picket line. Morris testified that on and about June 8 and
thereafter Respondent’s technicians received heavy amounts
of overtime work and that the loss of Jackson’s services
thereafter increased the use of overtime. No new field techni-
cians were hired after June 8, and their number remained at
13 up to the time of the trial. No shop technician was pro-
moted to a field technician position, nor was any new shop
technician hired.
By interoffice memorandum, Davis ordered Morris and
Skaggs to ‘‘fully’’ document the events of June 7 and 8 re-
garding Jackson’s refusal to cross the picket line. Con-
sequently, such documentation in the form of memoranda
was placed in Respondent’s personnel records and introduced
into evidence by the General Counsel. Skaggs did not testify.
That memoranda set forth that Jackson was dispatched by
Skaggs to Old Ben on June 7 to ‘‘check on a problem’’
which had been discussed between Jackson and Old Ben on
June 4. It stated not that Old Ben expressly asked for Jack-
son, or Jackson exclusively, but, rather, that Stratman sent
Jackson because of his past familiarity with 657 E problems
at Old Ben. It also stated that all other field technicians were
unavailable and working at other sites. The memoranda,
phrased in the first person by apparently Skaggs, indicated
that Jackson was suspended without pay for the balance of
June 7 because of his refusal to cross the Old Ben picket line
to service the customer.
The June 8 memorandum indicates that Skaggs had told
Jackson that he was permanently replaced and that Skaggs
immediately instructed Stratman to dispatch another ‘‘field
technician’’ to Old Ben to attend this problem and that, in
consequence, technician Kenney Schmitt did so.
Inasmuch as neither Stratman nor Skaggs testified, I credit
the testimony of the flesh and blood witness over the ex post
facto file memoranda whenever it conflicts with the testi-
mony of Jackson. However, from that memoranda, we see no
evidence that Old Ben demanded the exclusive services of
Jackson, and we see that, unlike June 7, there was available
another technician who, in fact, did service Old Ben mine 1.
In fact, a June 7 memorandum recording a telephone con-
versation between either Skaggs or Morris and Jim Jones at
1:30 p.m. reveals that, upon being tendered an apology for
the inability to send any ‘‘servicemen’’ to Old Ben on Satur-
day, June 5, because of lack of availability of any, Jones re-
sponded ‘‘that it would be OK and that he heard that Forrest
[Jackson] had a problem with crossing the picket line.’’ This
is not the recordation of a serious problem with an irate, de-
manding customer who was supposedly severely frustrated
by the unavailability of Jackson’s physical presence at the
jobsite.
There is no evidence that the delay of 1 more day, sup-
posedly to respond to a longstanding inherent problem in the
657 E at Big Ben, seriously impacted Old Ben operations or
the relationship between Big Ben and Respondent. There is
no evidence that Schmitt did not satisfactorily solve the
problem of June 8. Neither the urgency, seriousness, nor
complexity of the Old Ben calls of June 5, 7, or 8 are dis-
closed in the record.
By letter dated July 21, 1993, and signed by Personnel
Manager Charles Campbell, Respondent represented to the
Indiana Division of Employment and Training Services,
wherein it also protested charges against its reserve account,
that:
It is our position that Mr. Jackson demonstrated unac-
ceptable behavior resulting in gross misconduct during
his employment. One June 8, 1993, Mr. Jackson re-
fused to perform assigned work at a union picketed
mine site. Consequently, he was permanently replaced
after refusing to perform available work.
Jackson had no communication with Respondent thereafter
except for a letter dated October 25, 1993, sent to Respond-
ent by him in which he offered to give Respondent ‘‘a
chance to resolve the matter of my being fired on June 8,
1993,’’ and stating, ‘‘I am still awaiting reinstatement to my
job now as I have been since the date of firing on June 8,
1993.’’ He received no reply.
D. The June 28, 1993 Conversation
Field technician Herschel Koller testified with respect to a
conversation with Stratman on June 25, 1993. Stratman did
not testify. Koller testified that he had been on medical leave
from June 7 and had returned to work the week of June 28,
on or about which date he engaged in a morning discussion
399WHAYNE SUPPLY CO.
with Stratman about Jackson’s nonemployment. The details
of that conversation were not given. Koller recalled that
Stratman told him that Jackson had been ‘‘dismissed’’ be-
cause he would not cross a picket line and also made some
kind of reference about Jackson refusing a job assignment.
On cross-examination, he was very certain that Stratman did
not use the words ‘‘replace Mr. Jackson.’’
Analysis
The only factual credibility resolutions to be made in this
case relate to the alleged threats of Branch Manager Morris
to the field service technicians at and about the time of the
February 1992 meetings regarding the Peabody strike.
Counsel for Respondent stresses the selective nature of the
recollection of the technician witnesses and the fact that
some testified to threats during individual confrontations but
not at the meetings, and others could recall little else of sub-
stance discussed at the meetings. I agree that such testimony
is vulnerable and ordinarily would seriously inhibit credi-
bility. However, as noted above, given the disorganized na-
ture of the meetings and the concurrence of ongoing con-
versations, it is understandable that some witnesses did not
hear what other witnesses heard Morris say with respect to
the consequences of a picket line crossing refusal. As to se-
lectivity of recollection, the witnesses’ demeanor dem-
onstrated a marked conviction that they remembered what
they heard as to that particular response to that particular
question because, by its nature, it literally grabbed their at-
tention and implemented itself in their memoirs inasmuch as
it affected their livelihoods. I conclude they honestly be-
lieved that Morris told them what they testified he told them.
Morris, on the other hand, was patently uneasy and not
forcefully certain in his demeanor when answering his coun-
sel’s question as to his responses to the employees. He did
not even contradict the testimony as to individual confronta-
tions. He did not categorically deny the specific statements
attributed to him except as to generalized disclaimers of
‘‘threats.’’ If Morris merely referred to the employee hand-
book guidelines when asked to tell the employees who asked
about explicit consequences, then that would have been a
most improbable, evasive, and obtuse response in a discus-
sion Morris himself described as pretty ‘‘blunt,’’ i.e., to the
point. I find it incredible that Morris would have been so
evasive in such a definitive discussion as to specific courses
of action to be taken during the Peabody strike. Morris ad-
mitted that Jackson (and any other technicians) would have
been obliged to cross the Peabody picket line to perform the
job inasmuch as Respondent provided for the technician’s
safety and even provided what it characterized as the fairest
means of selection, i.e., the lottery. Given the clear deter-
mination of Respondent’s intent toward its perceived em-
ployee obligation to perform the assigned job, I do not be-
lieve that Morris merely obliquely referred to the employee
handbook. Furthermore, given the context of the perceived
employee obligation to perform an assigned job, a reference
to the employee handbook, could necessarily only have been
perceived by employees as a reference to the consequences
that must necessarily have been set forth therein for refusing
to perform assigned work. It is a fair inference that the con-
sequences were undesirable. Respondent did not proffer the
handbook into evidence, and there is no other evidence that
the handbook set forth any mitigating circumstances for a job
order refusal, nor that it made allusion to an employee’s stat-
utory rights under the Act. Standing by itself, Morris’ testi-
mony can arguably be construed as having admitted to an
implied threat of discipline. However, it is unnecessary to so
find, because I credit the testimony of the field service tech-
nicians that Morris told them individually and in a group,
quite bluntly, that if they refused to cross the Peabody picket
line by bus to perform the assigned job in a 12-day shift they
would be disciplined up to and including dismissal. Even
Morris failed to testify that any qualification or explanation
was given to the employees as to replacement of workers
rather than discipline and or discharge. Respondent argues
that because Jackson subsequently refused to cross the Old
Ben picket line, no prior threat of dismissal could have been
made. However, the Peabody situation was different. Em-
ployee safety was assured by busing, and fairness of a
chance selection was used. Given those assurances, Respond-
ent perceived an employee obligation to cross the Peabody
picket line. At Old Ben, the employees were left to their own
devices to obtain entry as in past such situations.
The Peabody strike meeting, Morris’ testimony, the file
memoranda of June 7 and 8, and the communication to the
state agency thereafter regarding Jackson’s unemployment
compensation claim all form a context which reveal Re-
spondent’s mind-set toward an employee’s refusal to cross a
picket line to perform assigned work. The Respondent con-
cluded that the employee was obliged to do so if, from Re-
spondent’s viewpoint, there was no imminent threat to the
employee’s safety or to his property.
This attitude was a change from past practice, which Jack-
son attempted to follow on June 7 and 8, i.e., drive to the
jobsite and, on the employee’s discretion, cross or not enter
cross a picket line. Thus, in the July 21 letter to the state
agency, Jackson was accused of ‘‘gross misconduct.’’ In the
June 7 file memorandum, Skaggs sets forth that Jackson was
told by Stratman:
Go to the minesite and if there is no violence or any
sign of violence other than verbal abuse, go on into the
mine. If personnel say anything, tell them your job is
on the line if you don’t go in. [Emphasis added.]
In that same memo, Skaggs ‘‘suspended’’ Jackson for the
day and made no attempt to replace him at Peabody nor to
assign Jackson elsewhere. The June 8 memorandum reflects
that Skaggs claimed he told Jackson that refusing to cross a
picket line ‘‘when no threat existed constituted refusing a job
assignment . . . .’’
In all of Respondent’s file memoranda and in Morris’ tes-
timony, there is great emphasis on Respondent’s conclusion
that Jackson’s personal safety was not at risk. That factor is
strongly stressed in Respondent’s brief to justify Respond-
ent’s motivation. Thus, the implication is that if Jackson’s
personal safety had been at risk his obligation to cross the
picket line would have abated. But, because Respondent per-
ceived no threat to safety, it therefore perceived Jackson to
have allied himself with the pickets and the strike without a
motivation acceptable to the Respondent.
Given the foregoing background context, we now face Re-
spondent’s argument that Jackson was not discharged, but
rather he was replaced on June 8. Jackson had been fore-
warned by Morris previously that he would be subjected to
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Despite its answer, Respondent does not argue that the managers
herein are not agents within the meaning of the Act. They clearly
are: Stratman had the authority to assign work. Morris was superior
to him and had responsibility for branch operations as well as being
the spokesman for Respondent who set forth work policy to the
Evansville employees. Skaggs was superior to Stratman and made
decisions as to work assignments, supervisors and work terminations.
3 See also Redwing Carriers, supra at 1547, in which the Board
discusses the employer’s right to discharge sympathy strikers to pre-
serve the efficiency of its operations but only so it could ‘‘imme-
diately or within a short period thereafter replace them with others
willing to perform the scheduled work.’’
4 That Respondent was able to elicit sufficient volunteers is under-
standable given its prior threats of dismissal and the actual dismissal
of Jackson.
discipline and dismissal if he refused to be bused across the
picket line at the Peabody mine. However, he persisted in
following Respondent’s past practices at the Old Ben site
which did not involve entry by busing. He was suspended on
June 7 because he did so and was not replaced that day. He
again persisted on June 8. He was sent to Skaggs’ office. He
entered. On doing so, he heard Skaggs tell someone on the
telephone that he was about to ‘‘fire’’ an employee. When
Jackson refused to relent in his refusal to cross the Old Ben
picket line, he was told that he was ‘‘let go’’ and that
Skaggs intended to replace him. Nowhere in testimony or file
memoranda was Jackson ever told that there was a unique
need for his services at Old Ben rather than any other field
technician’s services. Jackson immediately had to clean out
his personal effects, and his paychecks were forthwith issued
the next day. Having been warned that a picket line refusal
would incur discipline up to dismissal at the Peabody site,
having heard the telephone reference to discharge at a point
in time when there was no evidence of anyone else being
fired, having been told he was ‘‘let go’’ and ordered to re-
move his personal property from his vehicle, Jackson must
necessarily have concluded that he was categorically and
quite clearly discharged, i.e., his employment relationship
completely severed without expectation of any future connec-
tion. Contrary to Respondent’s argument in the brief, this is
no semantical exercise. The meaning to Jackson was clear,
i.e., the employment relationship was permanently severed
without future residual rights. Thus he perceived it, and con-
tinued to perceive it through October, as evidenced by his
letter to Respondent in which the perception of discharge
was never subsequently challenged by any response.
The accuracy of Jackson’s perception of discharge was
confirmed by Stratman’s subsequent explanation to Koller of
Jackson’s absence, i.e., he had been ‘‘dismissed’’ because of
a refusal to cross the picket line and refusing to perform the
job assignment. It would have been futile for an employee
who had understood himself to be summarily discharged to
offer thereafter to return to work unconditionally.
As set forth in the briefs, the parties herein recognized that
when an employee refuses to cross a picket line of another
employer’s employees, which picketing constitutes concerted
protested activity under the Act, he allies himself and makes
common cause with that activity and thereby engages in ac-
tivity protected by the Act regardless of his motivation for
so doing, be it fear, business reasons, or ideology, and may
not be discharged lawfully because of it. Redwing Carriers,
137 NLRB 1545 (1962); ABS Co., 269 NLRB 774 (1984);
and American Transportation Service, 310 NLRB 294
(1993). The parties further recognize that an employer has,
for sufficient business justification, a right to replace an em-
ployee who allies himself with such stranger picketing. Thus,
the employee ‘‘becomes akin to an economic striker, and
thereafter the employee remains entitled to reinstatement
upon an unconditional offer to return to work if not perma-
nently replaced’’ and further entitled to reinstatement if and
when the permanent replacement departs. G & S Transpor-
tation, 286 NLRB 762 fn. 1 (1987). See also the distinction
between discharge and replacement discussed by the court in
NLRB v. Browning-Ferris Industries, 700 F.2d 385, 389 (7th
Cir. 1983).
In this case, there is no issue as to the protected nature
of the strike and picketing at Peabody and Old Ben
minesites, i.e., an economic strike arising from the expiration
of the National Bituminous Coal Wage Agreement and the
ensuing failure of agreement between the Union and the
mines.
Respondent argues that it did not discharge Jackson, re-
gardless of what it claims may be the inartful expressions of
its agents.2 However, as noted above, I find nothing ambig-
uous about the message to Jackson. He was told in clear
enough terms that his employment relationship was severed
completely, regardless of references to an expressed intent to
replace him. That, I find, is subsequently the substance of
what happened. He was told, in effect, that he was dis-
charged. Whether Jackson was discharged, Respondent ar-
gues that it was entitled to terminate Jackson because it had
to replace him for justifiable business reasons and was not
obliged to reshuffle its work force to accommodate Jackson’s
predilections, citing, inter alia, Con-Way Central Express,
305 NLRB 837 (1991).3 However, reshuffling, not replacing,
is exactly what Respondent did in this case on June 8 and
thereafter until the end of the strike.
The facts of this case demonstrate that Jackson was not re-
placed in his job temporarily or permanently. His job, like
many other field technicians, was to serve on ad hoc call,
any number of customers. That he concentrated his services
at Old Ben prior to the strike was due to a specific problem
with respect to six 657 E Scrapers that was in the process
of being resolved. Jackson’s job was not the exclusive Old
Ben service technician. Indeed, on June 5, he was unavail-
able to Old Ben because he was servicing another customer.
Although it is highly probable, it is not clearly demonstrated
that the June 7 and 8 Old Ben calls did, in fact, relate to
the 675 E problem previously discussed with Jackson. In any
event, there was no such thing as an exclusive Old Ben field
service technician position which was replaced by any par-
ticular service technician. No technician was transferred to a
different position. No one was promoted to field service
technician from a shop technician position. Stratman was told
to send another ‘‘field technician’’ to Old Ben. He sent
Schmitt. Morris testified that for the duration of the strike,
the Old Ben mine 1 was serviced on a volunteer basis by
which shop and field service technicians essentially serviced
that mine as calls were received.4 Thus, in fact, Respondent
did reshuffle its service technicians without any shown in-
convenience to itself nor to Old Ben. It did at Old Ben there-
after by volunteers—what it intended to do at Peabody by
lottery, i.e., chance availability. Not only is there no conclu-
sive evidence that the June 7 and 8 Old Ben service calls
related directly to the preexisting 657 E Scraper problem or
401WHAYNE SUPPLY CO.
that it necessarily entailed Jackson’s scrutiny, there is no evi-
dence that precise problem continued thereafter and was not
solved on or before June 8. The precise nature of the June
7 and 8 calls were never defined by any witness, but were
merely presumed to relate to prior problems with which
Jackson was familiar. They may or may not have related to
the switching problem discussed between Jackson and Old
Ben representatives on June 4. We do not know whether the
switching problem was an intermittent or constant problem
or whether it was disabling or merely inconvenient to Old
Ben. Finally, no new field technicians were hired thereafter
and there is no evidence that any shop technician was hired.
Respondent argues that it successfully coped with one less
employee by virtue of more overtime work or increased effi-
ciency is irrelevant. I find, however, that it is clear evidence
that Jackson’s position was never replaced with any other
technicians.
I therefore find that Jackson was not replaced on June 7
or 8. I find that he was suspended on June 7 and discharged
on June 8 because he refused to cross a picket line in order
to perform his job and thus made common cause with the
protected activity of Old Ben’s employees and was perceived
by Respondent to do so for reasons other than personal safe-
ty, i.e., ideological reasons. As a discharged employee, I con-
clude that Jackson was therefore not ‘‘akin’’ to replaced eco-
nomic strikers on whom it was incumbent to make an uncon-
ditional offer of reinstatement.
Respondent finally argues that even if Jackson is to be
considered as having been discharged and not replaced, Re-
spondent’s greater business interests must be balanced
against Jackson’s more tangential statutory rights to engage
in protected activity. Respondent cites, in support of this bal-
ancing of interests test, on a case-by-case basis, inter alia, the
opinion of the court in Business Services By Manpower v.
NLRB, 784 F.2d 442 (2d Cir. 1986). The General Counsel
responds that the Board expressly rejected that balancing test
in G & S Transportation, supra, fn. 1. Respondent argues
further that the Board has in recent cases followed the ration-
ale of the Second Circuit, citing Con-Way Central Express,
supra; Anaconda Insulation Co., 298 NLRB 1105 (1990);
and Western Stress, Inc., 290 NLRB 678 (1988).
In Western Stress, however, the Board merely observed
that ‘‘even under’’ the Business Services rationale, the West-
ern Stress employer failed to show prevailing business inter-
ests over the statutory right of discharged employees who re-
fused to cross a stranger picket line. The Board stated that
the employer completed the dischargee’s work with other
employees ‘‘in a couple of hours.’’ In this case, there is no
showing how long it took Schmitt, who is identified as a
shop technician, to complete the June 8 call, nor is there any
showing that a shop technician would not have done the
same on June 7. Because Respondent immediately after June
8 instituted a volunteer assignment to Old Ben on technician
availability, it can be reasonably inferred that there was no
need for an Old Ben specialist thereafter and that whatever
prompted the need for Jackson on June 8, if it existed at all,
was dissipated on June 8 by virtue of Schmitt’s services.
Further, in the Western Stress case, the Board distinguished
the facts of that case from Business Services where it was
found that ‘‘business was lost forever’’ because of the picket
line crossing refusal. In this case, there has been no showing
of even inconvenience to Old Ben, much less a loss of its
business. Rather, the evidence discloses that the volunteer
system worked well for the strike duration.
In the Anaconda case, the Board adopted the decision of
Judge Robertson. The judge found that the employee who
had refused to cross a stranger picket line had been dis-
charged, rather than quit as argued by his employer. The re-
spondent in Anaconda relied on Business Services, supra, in
arguing, inter alia, that the discharge was necessary for busi-
ness reasons. Judge Robertson analyzed at length the court’s
rationale in Browning-Ferris, supra. The judge then stated:
In Browning-Ferris, Judge Posner found that the em-
ployer did not discharge the employees, and for that
reason, the Board’s finding of a violation was reversed.
Here, I have difficulty rationalizing Respondent’s ar-
guments in light of Browning-Ferris. It appears to be
Respondent’s contention that it was forced to either dis-
charge or permanently replace Ralph Bruce Piper for
business reasons.
Judge Robertson went on to find that there was no business
justification, and that the dischargee had not been replaced
on the day after he was terminated. He found further that un-
like Business Services, supra, the dischargee’s absence from
his assigned job because of the picket line caused his em-
ployer no demonstrable inconvenience, as indeed neither did
his previous absences for other reasons, which had been tol-
erated. (In nonstrike situations, Jackson’s absence was simi-
larly excused.) In finding a violation, Judge Robertson went
on to recommend an order of reinstatement which the Board
adopted. There was no evidence that the discriminatee ever
offered to return to work unconditionally nor any finding that
he, as a dischargee, had to do so.
The Con-Way case also involved the adoption of an ad-
ministrative law judge’s decision by the Board. That case did
not involve a discharge but rather the replacement of a driver
who refused a dispatch because of his support for a non-
violent economic strike. The General Counsel argued that
there had been no permanent replacement of the driver.
Judge Schlesinger noted the Board’s analysis in G & S
Transportation, supra, in reference to equating a replaced
sympathy striker to an economic striker. He found that the
driver in question, a ‘‘peddle driver,’’ occupied a distinct po-
sition which required replacement either by a new driver or
another driver. Judge Schlesinger found that the distinct driv-
er position was permanently assigned to another driver and,
when that driver was injured, to another driver. There had
been no mere reshuffling of interchangeable drivers in that
case as occurred on and after June 8 in Respondent’s oper-
ations. In Con-Way, the replacement served a dedicated route
of the same customers. Further, Judge Schlesinger found that
the employer was put to more than a minor inconvenience
because it had to train the replacement and could not merely
shuffle the replaced driver route to other drivers who were
entitled to keep their own runs obtained under a bidding
process. The facts of the Con-Way case are thus distinguish-
able from this case.
Respondent recognizes that under the balancing test it had
the burden of demonstrating a legitimate business reason for
the dismissal of Jackson but argues that it had sustained that
burden and that the burden of proof shifted to the General
Counsel to establish That the Respondent’s motivation was
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
retaliatory for Jackson’s striker sympathies, citing in support
the court decision in NLRB v. William S. Carroll, Inc., 578
F.2d 1, 3–4 (1st Cir. 1978).
I do not agree that in the cases cited above the Board ex-
plicitly adopted the balancing test in clear discharge situa-
tions. Rather, the Board in Western Stress appears to have
stated that under either analysis the employer there did not
establish sufficient business justification. Similarly, in this
case, I find that even if the balancing test is appropriate Re-
spondent did not demonstrate a justifiable business reason
that outweighed Jackson’s statutory right to engage in activ-
ity protected under the Act from discipline or discharge. At
most, Respondent has demonstrated that certain assumptions
were made as to the particular usefulness of Jackson’s serv-
ices at the Old Ben mine on June 7 and 8. It has dem-
onstrated neither necessity nor convenience for his unique
abilities there on that date nor has it demonstrated any sig-
nificant inconvenience either to itself or Old Ben as a result
of Jackson’s refusal to cross the picket line. Accordingly, I
find that Respondent violated Section 8(a)(1) of the Act by
suspending Jackson on June 7 and discharging him on June
8, 1993, because of his activities protected by Section 7 of
the Act. I find it unnecessary to decide whether the discipline
and discharge also violated Section 8(a)(3) of the Act. Amer-
ican Transportation Service, supra, fn. 2.
With respect to the February 1993 threats of dismissal to
field technicians if they refused to cross the Peabody picket
line, I agree with the General Counsel that those statements
clearly tend to inhibit employees’ rights to engage in activi-
ties protected by the Act, despite the fact that they did not
deter Jackson. Savage Gateway Supermarket, 286 NLRB
180, 184 (1987); G & S Transportation, supra. I do not
agree that the threats should be ignored as trivial or isolated
or that, because they were not made in an overtly hostile
manner, they did not tend to be coercive. The uncontradicted
evidence in the record is that most of the technicians had
openly expressed opposition to crossing a picket line which
they had never previously been obliged to do. Yet, after
these threats, particularly in the context of Jackson’s dis-
charge, Respondent had no trouble eliciting volunteers to
cross the Old Ben picket line. I find the February threats of
discipline and dismissal to have clearly tended to be coercive
and violative of Section 8(a)(1) of the Act as alleged in the
complaint as amended.
With respect to the June 20 confrontation between Koller
and Stratman, the complaint alleges an explicit threat of dis-
charge. The evidence reveals that Stratman told Koller that
Jackson had been dismissed because he refused to cross a
picket line. That kind of statement, regardless of whether it
is characterized as an implied threat or not, given as it was
without mitigating explanation, clearly tends to discourage
employees from engaging in similar activities protected by
the Act. I find that it violated the Act.
CONCLUSIONS OF LAW
1. Respondent Whayne Supply Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening its employees with discipline up to and
including discharge if they refused to cross picket lines main-
tained by the United Mine Workers of America, Respondent
violated Section 8(a)(1) of the Act.
4. By telling its employee that it had discharged another
employee because he refused to cross the above Union’s
picket line, Respondent violated Section 8(a)(1) of the Act.
5. By suspending employee Forrest Jackson on June 7,
1993, and by discharging him on June 8, 1993, because he
refused to cross a picket line maintained by the above Union,
Respondent violated Section 8(a)(1) of the Act.
6. The foregoing unfair labor practices interfere with com-
merce within the meaning of the Act.
THE REMEDY
Having found Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found that Respondent terminated the employment
of Forrest Jackson and failed and refused to reemploy him
thereafter because he engaged in concerted activities for mu-
tual aid and protection guaranteed by the Act, I shall rec-
ommend the Board order Respondent to offer him immediate
reinstatement to his former position or, if it no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed,
and to make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him by mak-
ing payment to him of a sum of money equal to the amount
he normally would have earned from the date of his termi-
nation to the date of his reinstatement, less his interim earn-
ings, in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987); see also Florida Steel
Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138
NLRB 716 (1962).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Whayne Supply Company, Evansville,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discipline up to and in-
cluding discharge if they cross a picket line maintained by
the United Mine Workers of America, or any other union.
(b) Telling its employees that it had discharged an em-
ployee because he had refused to cross a picket line main-
tained by the above-named Union, or any other union.
(c) Suspending or discharging employees because of their
protected concerted activities protected under the Act.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
403WHAYNE SUPPLY CO.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Offer immediate and full reinstatement to employee
Forrest Jackson to the position he would have held, but for
Respondent’s wrongful suspension and discharge of him on
June 7 and 8, 1993.
(b) Make whole employee Forrest Jackson for any and all
losses incurred as a result of Respondent’s unlawful termi-
nation of him, with interest, as provided in the remedy sec-
tion of this decision.
(c) Expunge from its files any and all references to the
suspension and discharge of employee Forrest Jackson and
notify him in writing that this has been done and that the fact
of his wrongful suspension and discharge will not be used
against him in any way.
(d) Preserve and, on 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 Order and to
ensure that this Order has been fully complied with.
(e) Post at its Evansville, Indiana facility copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the notice, in
English and such additional languages as the Regional Direc-
tor determines are necessary to fully communicate with em-
ployees, on forms provided by the Regional Director for Re-
gion 25, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.