G. L. Gibbons Trucking Service, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1972

199 N.L.R.B. 590 (N.L.R.B. 1972)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. L. Gibbons Trucking Service , Inc. and Teamsters Board in F. W. Woolworth Company, 90 NLRB 289,
Local Union No . 631, International Brotherhood of together with interest thereon at the rate of 6 percent
Teamsters, Chauffeurs, Warehousemen & Helpers per annum (Isis Plumbing & Heating Co., 138 NLRB
of America. Cases 31-CA-2817 and 31-CA-2944 716)."
October 10, 1972
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On June 21, 1972, Administrative Law Judge 1
Robert L. Piper issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief and the General Counsel
filed a brief in answer thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as herein modified.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, G. L. Gibbons Trucking
Service, Inc., South Point, Nevada, its officers, agents,
successors , and assigns , shall take the action set forth
in the said recommended Order as herein modified:
Delete paragraph 2(c) and substitute the follow-
ing:
"(c) Offer LeRoy Mason, Mark Vaughn, Ronnie
I. Jenkins, and Brian Fountain each immediate and
full reinstatement to his former job or, if this job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make each whole for any loss of pay
he may have suffered by payment to him of a sum of
money equal to that which he would normally have
earned from , in the case of Mason, December 28,
1971, as the date of his discharge; in the case of
Vaughn December 29, 1971, the date of his discharge;
and in the cases of Jenkins and Fountain, January 3,
1972, the date of their unconditional offer to return to
work, to the date of the above-required offer of rein-
statement by Respondent, less the net earnings of
each during said periods (Crossett Lumber Company,
8 NLRB 440), said backpay to be computed on a
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
1 we agree, for the reasons set forth by the Administrative Law Judge, that
Respondent had knowledge of Mason 's union activity, but find additional
support for this conclusion from the fact that although Respondent 's presi-
dent stated that he took no part in the hiring or firing of employees prior to
learning of the union activity, which he contended was as a result of the
strike, he concededly spoke with Struck concerning Mason 's discharge and
approved the hiring of a replacement for him a day before the strike began.
The Administrative Law Judge erroneously concluded that Vaughn was
entitled to backpay only from the date of his unconditional offer to return
to work. However, Vaughn was discriminatorily discharged on December 29,
1971, prior to his joining the strike. Vaughn, therefore, is entitled to reim-
bursement for backpay from the date of his discharge . Cf. Cone Brothers
Contracting Company, 161 NLRB 937.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT L. PIPER , Trial Examiner : This proceeding,
under Section 10(b) of the National Labor Relations Act, as
amended, was heard at Las Vegas, Nevada, on April 4 and
5, 1972, pursuant to due notice. The consolidated com-
plaint, which was issued on March 15, 1972 , upon a charge
filed January 18, 1972, and a charge filed February 29, 1972,
alleged in substance that Respondent engaged in unfair
labor practices proscribed by Section 8(a)(l), (2), and (3) of
the Act by: (1) various specified acts of interference, re-
straint , and coercion; (2) dominating and interfering with
the formation and administration of, and contributing fi-
nancial and other support to, Ash Haulers of Nevada, Inc.
(hereinafter called the Ash Haulers), a labor organization;
(3) on December 28, 197 1 , 1 discriminatorily discharging Le-
Roy Mason; (4) on December 29 discriminatorily dis-
charging three named employees because of their union or
protected concerted activities , namely, striking ; and (5) fail-
ing and refusing thereafter to reinstate said employees, al-
though the striking employees made an unconditional offer
to return to work . Respondent 's answer denied the alleged
unfair labor practices. The General Counsel and Respon-
dent filed briefs.
Upon the entire record in the case and from my obser-
vation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is an Arizona corporation engaged in
trucking services with its principal office and place of busi-
ness located in Tucson, Arizona, and with one of its fa-
cilities located at South Point , Nevada, where it is engaged
in providing ash hauling services pursuant to contract. Dur-
ing the past year, Respondent received gross revenues from
its ash hauling operation at its South Point facility in excess
quarterly basis in the manner established by the 1 All dates hereinafter refer to 1971 unless otherwise indicated.
199 NLRB No. 88
G. L. GIBBONS TRUCKING SERVICE 591
of $50,000, which revenues were derived from services ren-
dered to a firm directly engaged in interstate commerce.
Respondent admits , and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Teamsters Local Union No. 631, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America (hereinafter called Local 631) and the Ash
Haulers are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
During the latter part of 1970 Respondent commenced
its ash hauling services at the South Point generating plant
of Southern California Edison (hereinafter called Edison)
pursuant to contract with Edison. Edison and its various
contractors at the South Point plant employed approxi-
mately 1,000 employees, all of whom belonged to various
unions, including Local 631. At that time Respondent's
work force at its South Point facility consisted of one fore-
man and three employees, none of whom were unionized.
Their job consisted of hauling from the plant by truck ash
generated by Edison and dumping it in adjacent canyons on
Edison's property. Respondent's only supervisor was Wil-
liam Strunk, the foreman. He was the, son-in-law of G. L.
Gibbons, the president of Respondent as well as of Gibbons
Enterprises, of which Respondent was a wholly owned sub-
sidiary.
As a result of considerable pressure from Edison and
the unions representing its employees and its contractors'
employees, Respondent's three employees, under the guid-
ance and leadership of Strunk, decided to form their own
union, primarily in order to retain their jobs at the plant site.
During August, September, and October they formed the
Ash Haulers with the assistance of an attorney, and formal
articles of association were filed with the Secretary of State
of the State of Nevada. Strunk was one of the three "incor-
porators" or organizers of the Ash Haulers and was elected
an officer and director. During October Respondent hired
two additional employees. Ensuing bargaining negotiations
with Respondent were unsuccessful. As a result the four
working employees (one was on extended sick leave) decid-
ed to seek union representation elsewhere, and one of them
secured membership application cards from Local 631 and
distributed them at the jobsite to the others. All four signed
such cards on December 7 and 8 and delivered them to
Local 631.On December 20 Local 631 filed a representation
petition with the Board in Los Angeles. On December 28
Respondent fired the employee who had organized the oth-
er employees. On December 29 two of the remaining three
employees engaged in a strike and they and the dischargee
began picketing Respondent's South Point facility at
Edison's main gate. The other employee was at home on
sick leave that day. On December 29 Respondent dis-
charged the two striking employees and the employee who
was at home on sick leave. On December 30 that employee
joined the picketing. Various negotiations and proposals
between Respondent and the four striking and picketing
employees ensued. At various times between December 28
and 31, Respondent made various arrangements to secure
future replacements for the discharged and striking employ-
ees. On January 3, 1972, the two striking employees and the
employee discharged on December 29 while on sick leave
unconditionally offered to return to work. Respondent re-
jected their offer.
The issues as framed by the pleadings are: (1) on and
after August 29, Respondent's initiating, forming, sponsor-
ing, promoting, assisting, dominating, contributing to the
support of, and interfering with, the Ash Haulers; (2) on
December 28, discharging LeRoy Mason and thereafter
failing and refusing to reinstate him because of his union or
concerted activities; (3) on December 29, discharging Mark
Vaughn, Brian Fountain, and Ron Jenkins, and thereafter
failing and refusing to reinstate them, although they made
an unconditional offer to return to work on January 3, 1972,
because of their union or protected concerted activities,
including striking; and (4) interference, restraint, and coer-
cion by the aforesaid activities and by (a) threatening em-
ployees that future employment was conditioned upon their
abandoning support for Local 631; (b) interrogating an em-
ployee about his union membership and activities; and (c)
informing employees that Respondent would sign a con-
tract immediately with the Ash Haulers if the employees
withdrew their support from Local 631.
The complaint further alleged that the strike was
caused and prolonged by Respondent' s unfair labor prac-
tices, that Respondent engaged in the alleged discrimina-
tion and interference, restraint, and coercion to undermine
Local 631 and destroy its majority status, and that because
of such alleged unfair labor practices a bargaining order
should issue. Respondent's answer affirmatively alleged
that the strike was for recognition, that each of the striking
employees had voluntarily quit, and that the striking em-
ployees were permanently and lawfully replaced.
B. Chronology of Events
Respondent commenced operation of its ash hauling
and other services at the Edison plant in South Point, Ne-
vada, in September or October 1970. Until October of 1971
Respondent had only three employees at its South Point ash
hauling facility: Dwight Olson, truckdriver, Mark Vaughn,
heavy equipment (tractor) operator, and Brian Fountain,
ash dumping equipment operator and cleanup man.
Respondent's only supervisor at the facility was William
Strunk, foreman. During April Respondent was engaged in
some additional coal hauling services for Edison at the
South Point facility, and G. L. Gibbons, Respondent's pres-
ident, was present. Respondent's coal hauling truckdrivers
were not members of any union. A representative of Local
631 required Gibbons to have his trucks manned by mem-
bers of Local 631. Although Gibbons protested, he capit-
ulated, laid off his own drivers, and used members of Local
631 to drive his trucks at that time for a period of 5 or 6
weeks.
As previously noted, all of the approximately 1,000
employees of Edison and its contractors at the South Point
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant were union members and the only employees on the
entire facility who were not union members were
Respondent's three employees. During the summer of 1971
considerable pressure was brought by the various unions
representing the other employees at the facility, particularly
Local 631, upon Strunk and his employees, particularly Ol-
son, the truckdriver , to become unionized . Olson was
strongly opposed to Local 631. During July Edison and
others brought pressure on Respondent to discharge its
three nonunion employees, namely, all of its employees at
the facility. As a result Respondent did so, whereupon the
three employees filed charges with the Board , and Respon-
dent reemployed them approximately 3 days later. Howev-
er, Respondent and its employees continued to receive
pressure to become unionized.
Strunk told the employees that they should become
unionized in order not to lose their jobs. Strunk suggested
to Olson that it might be feasible for the employees to form
their own independent labor organization. The record es-
tablishes that Strunk was the instigator of the idea. Strunk
contacted Gibbons and he agreed that it would be a good
solution . Strunk and Olson then suggested this to the other
two employees. All three employees agreed that if possible
it would be a good idea in order to retain their jobs. At
Gibbons' suggestion, Olson, the senior employee, tried with-
out success to secure an attorney to form an independent
union. Olson told Strunk that Olson was unable to find an
attorney to handle such a matter and Strunk contacted Gib-
bons. Gibbons advised Strunk to call Gibbons' attorney to
request help in finding a Nevada attorney to set up an
independent union. Strunk did so. Gibbons' attorney refer-
red him to a Las Vegas law firm, Goodman & Snyder.
Strunk relayed this information to Olson who contacted
Goodman during late August or early September. Good-
man agreed to set up such a labor organization by drafting
articles of association under the Nevada law which were
filed with the Secretary of State of Nevada as "articles of
incorporation." The procedure required three "incorpora-
tors" or organizers, called directors , and the organizers and
directors were Strunk, Olson and Vaughn. As such on Sep-
tember 29 they signed the articles of association of the Ash
Haulers . On October 4 at a meeting of said directors they
elected Olson president and Strunk secretary-treasurer of
the Ash Haulers, its only officers , and adopted an initiation
fee of $100 for membership in the Ash Haulers , with dues
of $8 per month. The same day the articles of association
were filed with the Secretary of State of Nevada who issued
a charter to the Ash Haulers. Goodman was appointed
resident agent and his office became the Ash Haulers' prin-
cipal office.
On October 4, Respondent hired LeRoy Mason as
cleanup man in place of Fountain , who was out on sick
leave . On October 24, Respondent hired Ronnie I. Jenkins
as truckdriver to replace Olson, who was hospitalized and
remained on sick leave thereafter throughout the incidents
herein . On October 29, Respondent laid off Mason because
Fountain returned from sick leave and Respondent did not
need four employees at the time . On November 3, Respon-
dent recalled Mason to his job and thereafter continued
with four employees . During September, October, Novem-
ber, and December , Respondent engaged in "bargaining
negotiations" with the Ash Haulers as the representative of
its South Point employees without any agreement being
reached . Struck acted as the bargaining representative of
the Ash Haulers and dealt directly with Gibbons, who was
located at Respondent's principal office in Tucson. Thus the
"bargaining" took place between Respondent 's president
and his son-in-law, its only supervisor at the South Point
facility. At the first meeting of the members of the Ash
Haulers concerning its bargaining proposals, Strunk sug-
gested that they use the contract between Edison and its
employees' union as a guide to the type of contract they
should seek from Respondent. The member-employees
adopted some 20 proposals for improved wages and benefits
which Strunk later presented to Gibbons. Gibbons rejected
most of the proposals and counterproposed several items.
Various proposals and counterproposals continued for sev-
eral months into December without agreement. The em-
ployees became dissatisfied with the lack of progress and
the arrangement, particularly their inability to meet with
Gibbons, and wanted him to come to South Point so that
they could negotiate directly rather than through Strunk.
Sometime during October, Goodman presented the
Ash Haulers with a bill for $1000 plus costs for his services
in setting up the Ash Haulers and drafting the articles of
association . The bill was sent to Olson as president at Bull-
head City, Arizona, some 12 miles from the South Point
facility, where Strunk and the employees resided. Previously
thereto the employees had been concerned about how with
their limited income they would be able to pay for the
services of an attorney in setting up the Ash Haulers, and
Strunk assured them that Respondent would foot the bills.
During September and October, Respondent through
Strunk advanced Olson $800 for "car rental." The record
establishes that Olson used $700 of this "advance" to make
payments on account on Goodman's bill. While Goodman's
second bill was also sent to Olson on November 3, the
subsequent two bills on January 4, 1972, and March 10,
1972, were sent to Strunk. The record establishes that only
Strunk and Olson paid the $100 initiation fee to the Ash
Haulers. Thus the $800 paid Olson by Strunk from
Respondent's funds covered the $700 paid to Goodman and
the $100 initiation fee paid by Olson.
In late November Mason informed Strunk that Mason
was a member of a Teamsters local in Phoenix and asked
if he should continue his membership in the Teamsters.
Strunk advised him not to do so but to take a withdrawal
card because Respondent had no contract with the Team-
sters or Local 631. Because of the four working employees'
dissatisfaction with the lack of progress in bargaining with
Respondent through the Ash Haulers, and their inability to
meet directly with Gibbons, they decided it might be pref
erable to join an established labor organization. Mason,
Vaughn, Fountain , and Jenkins on numerous occasions,
while working at the jobsite, discussed the desirability of
joining an established union and as a result agreed to have
Mason contact Local 63l's steward, who was employed at
Edison's South Point plant by one of its contractors. On
December 5 Mason did so. On December 6 Local 63l's
steward, whom Strunk knew, delivered membership appli-
cation cards to Mason while he was working at the jobsite,
which he in turn presented to and discussed with his fellow
G. L. GIBBONS TRUCKING SERVICE 593
employees Fountain , Jenkins, and Vaughn , during working
hours . On December 7 and 8 all four of them signed the
cards which the other three returned to Mason on the job-
site . During working hours on December 8 Mason delivered
the signed cards on the project to Local 631's steward.
Strunk admitted that he was present on the jobsite every day
and frequently observed Respondent 's employees at work
every day, which would appear self -evident in view of the
limited nature of Respondent's South Point operation and
the small number of employees . On December 20 Local 631
filed a representation petition with the Board's regional of-
fice in Los Angeles . Either that day or the following day a
copy of the petition was air mailed by the Region to Re-
spondent at Tucson.
On several occasions during November and December,
Mason requested Strunk to try Mason as a truckdriver, in
order to improve his position from that of cleanup man. On
December 22 Strunk agreed to do so and instructed Jenkins
to take Mason with him on the truck, teach Mason its
operation and observe how Mason was able to drive the
truck. Jenkins did so and Mason drove the truck both with
and without Jenkins throughout that day . Mason continued
to operate the truck the following 2 working days , Decem-
ber 23 and December 27. On December 22 Strunk left the
South Point facility to spend the Christmas holidays in Tuc-
son with Gibbons . During this period they discussed the
operations at South Point . Strunk returned to the jobsite on
the morning of December 28 at which time Jenkins, whom
I credit, informed Strunk that Mason had driven the truck
almost all of the time while Strunk was gone, and that
Mason had done a good job, his only fault being that he was
a little careless , but that that was no problem and that
Mason would make Respondent a good truckdriver . Strunk
made no comment . Strunk, whom I do not credit unless
otherwise corroborated , denied that Jenkins had said that
Mason was a good driver and contended that Jenkins had
reported that Mason was a poor and careless driver. Al-
though Mason worked the entire day of December 28 and
was in personal contact with Strunk , Strunk admittedly said
nothing to Mason about his alleged poor truckdriving.
On the afternoon of December 28, John Knight, the
owner of a business in Bullhead City, visited Strunk at the
jobsite and observed Mason working . Knight informed
Strunk that Mason had injured his back while working for
Knight in the past and had cost him a lot of money by
bringing suit for Mason's injury . According to Strunk,
whom I do not credit , he replied that he was dissatisfied
with Mason in any event . Later that day in Bullhead City
Strunk talked to Olson who was at home on extended sick
leave and allegedly told Olson that Strunk was going to fire
Mason because he was worried about Mason claiming a
back injury against Respondent and bringing suit . Howev-
er, Strunk admitted that he knew all about Mason's prior
back injury and litigation before employing him, and that
in fact on October 15 had Mason sign a formal release
stating that Mason had received a release from his doctor
as being fit to work, that Respondent was not responsible
for any of his back injuries received prior to his employ-
ment, and that he would not at any time bring suit against
Respondent for such back injuries . The record fails to estab-
lish, and Respondent does not contend , that Mason had any
trouble with, or complaints about, his back while working
for Respondent . Nevertheless, Strunk claimed that the prin-
cipal reason for his discharge of Mason that evening was
because of Knight's report concerning Mason 's back injury
and his litigation against Knight's company . Olson told
Strunk that Mason had had a disagreement with a former
employer in Bullhead City. Strunk allegedly talked with
another friend in Bullhead City, who informed him that
Mason had had "trouble" at two other companies where he
had worked . Strunk also claimed that he was dissatisfied
with Mason's work performance as cleanup man from the
outset of his employment in October.
About 7 p.m. that evening Strunk called Mason and
told him not to report to work the following morning, that
he was fired , and that Strunk would give him the reason
when he brought his check to him the following morning.
Inasmuch as Mason had received no complaints or warn-
ings from Strunk whatsoever , he was of the view that his
discharge was the result of his organizing activities on the
job for Local 631 . Mason called Jenkins and told him what
had occurred . Jenkins agreed that the reason for Mason's
discharge was probably his distribution of the Local 631
cards on the jobsite . Jenkins called Strunk and asked why
he had fired Mason . According to Jenkins , whom I credit,
Strunk never told him why Mason was fired . Strunk admit-
ted that he did not tell Jenkins about the "information"
Strunk had received from Knight , allegedly the principal
reason for Mason's discharge . When Strunk asked Jenkins
why he had called , Jenkins replied that Strunk would learn
the following morning . Jenkins went to Mason's home. The
two men decided to picket Respondent's operation the fol-
lowing day and prepared picket signs reading : "Union or-
ganizer fired by scab Ash Haulers , Gibbons Trucking Co."
They agreed to meet the following day at the main gate of
the Edison plant at 6 : 30 a.m.
They did so and started picketing with their signs. A
number of union members of one or more of Edison's con-
tractors honored and joined the picket line. About 7 a.m.,
Fountain arrived for work , discussed the situation with Ma-
son and Jenkins, agreed that Mason had been fired for his
union activities and joined the picket line. Vaughn was at
home on sick leave December 28 and December 29. Strunk
appeared at the picket line about 8 a.m. and asked the men
what was occurring. They showed him the picket signs as
quoted above . He asked who their spokesman was and Jen-
kins agreed to be. Strunk and Jenkins proceeded in Struck's
truck to his office . During the drive in, Strunk told Jenkins
that the men should have waited another day because Gib-
bons was coming to South Point the next day to negotiate
a contract with the Ash Haulers. Jenkins asked Strunk why
he had fired Mason . Strunk replied that he would tell him
about it sometime . According to Strunk , Jenkins said that
the men wanted to see Gibbons that day in order to nego-
tiate a contract . Strunk admitted that he asked Jenkins why
the employees had gone over to Local 631 , and that Jenkins
replied that the Ash Haulers were useless and not doing the
employees any good and they wanted to join a union which
could accomplish something. Strunk then called Gibbons.
Strunk told Jenkins that Gibbons could not be there until
the next day and they returned to the picket line. During the
drive back to the picket line, Strunk complained about the
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees striking and wondered aloud what he could do
about it. Jenkins told Strunk that he knew what he could do
about it if he wanted . Strunk in substance replied that he
had no alternative but to give the men their final checks.
Jenkins and Strunk conceded that they both had reference
to discharging or terminating the striking employees. Strunk
informed Jenkins that Strunk was going to Bullhead City to
get Mason 's checks . Jenkins suggested that he pick up the
other employees' checks . The checks for the prior week had
been mailed from Tucson to Bullhead City . Jenkins in-
formed the other employees of his entire conversation with
Strunk.
As soon as Strunk learned about the picketing, he
called Gibbons at his home to inform him of it . According
to Gibbons , whom I do not credit unless otherwise corrobo-
rated, Strunk said he did not know why the men were strik-
ing, although he had just read the picket signs and been told
by the strikers, and had a conversation with Jenkins during
which Jenkins asked him why he had fired Mason, which
Strunk refused to answer. Gibbons called his attorney in
Phoenix . Gibbons then went to his office, where for the first
time he found in his mail a copy of Local 631's petition from
the Board . He again contacted his attorney who advised
him that he could hire permanent replacements for the strik-
ing employees and could not bargain with the Ash Haulers
or anyone else as long as the representation petition of
Local 631 was pending before the Board . Strunk was in
contact with Gibbons several times on December 29. Later
that day Gibbons informed Strunk that Gibbons could not
negotiate with the Ash Haulers or the men unless they with-
drew their support from Local 631 and Local 631 withdrew
its petition from the Board. Strunk admitted that Gibbons
mentioned both withdrawal of the cards by the men from
Local 631 and Local 631 's withdrawal of its petition. Gib-
bons also asked Strunk if he needed any replacements
whom Gibbons could immediately fly up. Strunk replied
that he did not because Edison was not producing much ash
and he needed no additional help at the time.
About 11 a.m. Jenkins called Local 631 , informed it of
Mason's discharge and the strike activity, and requested
support . Local 631 replied that it would look into it and see
what it could do to help, which Jenkins reported to the other
men. Strunk proceeded to Bullhead City, picked up the
checks of all four men for the prior week , and wrote person-
al checks for the two days of the current week for all four,
including Vaughn , who was at home on sick leave and knew
nothing about the strike activity. Struck then went to
Vaughn 's home . Strunk admittedly interrogated Vaughn
about his membership in Local 631 and whether or not he
had joined it with the others. Vaughn admitted that he had
signed a card for Local 631 and went along with the others
in supporting Local 631. Strunk said that he could not see
why Vaughn went along with Local 631 since he was a
director of the Ash Haulers . Vaughn replied that it was
because they had made no progress in bargaining through
the Ash Haulers . Although Vaughn was on sick leave and
knew nothing about Mason's discharge and the strike be-
fore Strunk told him, Strunk gave Vaughn both of his
checks, thereby terminating his employment.
Strunk returned to the picket line and presented Mason
and the two striking employees , Jenkins and Fountain, with
two checks each, one for the prior week and one for the two
preceding days, thereby terminating their employment as he
earlier had advised Jenkins he intended to do . Although
Strunk told Mason the evening before that Strunk would tell
Mason the reason for his discharge on the morning of De-
cember 29, Strunk did not do so . That same day Strunk
hired Wendell Hill to replace Mason . Allegedly on Decem-
ber 28, prior to the strike , Gibbons entered into an arrange-
ment with an employee to report to the jobsite in the future
when and if Strunk needed him.
There may have been some misunderstanding in the
minds of Gibbons and Strunk about the advice of
Respondent's attorney, but there is no confusion in the
record as to what Strunk told the employees . Strunk had
conversations with Jenkins and some of the other men on
practically a daily basis from December 29 through January
4, 1972. Strunk repeatedly told the strikers that they could
not return to work and that Gibbons would not negotiate
with them or the Ash Haulers until they arranged to have
Local 63 l's petition withdrawn from the Board. On the
evening of December 29, Strunk told Jenkins that Gibbons
was sorry that he had not gotten to South Point earlier and
would like to have the employees have Local 631 withdraw
its petition and that he then would negotiate a contract with
them. Jenkins reported this statement to the other employ-
ees.
On the morning of December 30 Vaughn joined the
others on the picket line after informing them that he had
been terminated at home by Strunk the previous day, and
after the strikers informed Vaughn about their picketing
because of Mason's discharge . At this point all of the em-
ployees except Olson, who was on extended sick leave, were
picketing. That morning, Jenkins again called Local 631,
and was advised that it could not sanction the strike and
could do nothing to help the employees until it had a ruling
from the Board. This resulted in dissatisfaction with Local
631 among the employees. Around noon that day Jenkins
and Fountain had two conversations with Strunk during
which they advised him all of the men were willing to come
back to work if they could get a contract signed by Gibbons
and if they could all return, including Mason . Strunk replied
that they could return to work but Mason could not. Foun-
tain answered that they would not return unless they all
returned. Fountain asked Strunk why he fired Mason and
Strunk refused to reply, stating that he had his own reasons
and maybe someday he would tell them. The record estab-
lishes that from the outset Strunk knew that the employees
were striking because of his discharge of Mason, in their
view because of his union activities . On the evening of De-
cember 30 Strunk called Jenkins again , told him that Strunk
had spoken with Gibbons and that he would be glad to have
them all except Mason come back to work if they would
have Local 63l's petition withdrawn from the Board. Jen-
kins replied that they might be able to work something out
if they could get some of the benefits they had previously
requested, including backpay for holidays they had worked,
paid vacations and certain hospitalization benefits. On the
evening of December 30 Strunk visited Fountain at his
home and told him that if the employees would have Local
631 withdraw its petition Gibbons would negotiate a con-
tract with the Ash Haulers and the men could return to
G. L. GIBBONS TRUCKING SERVICE 595
work . Strunk further informed Fountain that he should de-
cide whether to stick with Local 631 or go with the Ash
Haulers.
The picketing continued through December 30 and 31.
On the 31st, the men , stopped picketing about 2 p.m. There
was no picketing thereafter . On the 31st, Jenkins and Mason
talked with Strunk and told him the employees would be
willing to negotiate a contract with Gibbons through the
Ash Haulers .if Gibbons would agree to some of the de-
mands the employees had made. Strunk called Jenkins that
evening and said that if the strikers would arrange to have
Local 63 l's petition withdrawn Gibbons would be willing to
negotiate a contract with them or the Ash Haulers and that
they could return to work . Jenkins again repeated what the
men wanted and Strunk agreed that their requests were
good negotiable items . Strunk told Jenkins that all of the
men except Mason had a job as long as they wanted one and
Strunk wanted them to come back to work . Jenkins replied
that before the men had Local 631 withdraw its petition
they would have to have some assurance that Gibbons
would definitely negotiate and sign a contract . During all of
the conversations between Jenkins and Strunk it was always
the position of the employees that they would not return to
work unless all four, including Mason , returned . There were
many conversations back and forth between Jenkins and
Strunk because Strunk always had to check with Gibbons
before Strunk could reply to Jenkins' various proposals.
On January 1, 1972, Jenkins and Mason had another
conversation with Strunk at the plant . Jenkins told Strunk
that on Monday, January 3, 1972, the employees would go
to Local 631 in Las Vegas to get the petition withdrawn if
he would agree to some of their previously expressed de-
mands such as higher wages , medical insurance and the
payment of a portion of Olson's hospital bill. On the evening
of January 1 Strunk visited Vaughn at his home and told
him that if the employees had Local 631 withdraw its peti-
tion Strunk could put them back to work and that if they
didn't return to work Gibbons would replace them and even
if Local 631 won the election the replacements would re-
main and the striking employees would be out of jobs. The
record establishes that Strunk solicited each of the employ-
ees individually, except Mason , to have Local 631 withdraw
its petition, in which event Strunk would return them to
work and Respondent would negotiate a contract with the
Ash Haulers . That evening Strunk called Jenkins and said
that Gibbons was willing to negotiate all of the employees'
demands as long as they got Local 631 to withdraw its
petition. Strunk repeated that he wanted the employees to
return to work as soon as possible . When Jenkins advised
him that they were going to Local 631 in Las Vegas on
Monday to try to get the petition withdrawn, Strunk replied
that if they went early in the morning they should be back
about noon and be able to work that afternoon if they had
the petition withdrawn . On and after December 30, it is
apparent that the strikers were willing to negotiate through
the Ash Haulers once again, having become dissatisfied
with Local 631's refusal to support them, and that Respon-
dent was willing to do so and have them return to work if
they could get Local 631 to withdraw its petition. The same
situation prevailed on December 31 and January 1, when
Jenkins and the striking employees agreed to visit Local 631
on January 3 to try to get its petition withdrawn.
The four employees went to Local 63 l's office on Mon-
day morning, January 3, and requested it to withdraw its
petition . Local 631 refused . Local 63 l's business agent then
prepared an unconditional offer to return to work for Jen-
kins, Vaughn , and Fountain . The offer they signed was
addressed to Gibbons Trucking Company and read: "The
undersigned unconditionally hereby offer to return to
work." It was dated January 3 and signed by all three. Local
631's agent instructed them to deliver it to Strunk and un-
conditionally offer to return to work. He advised them that
such was not needed in Mason's case, because he had been
discharged and his situation was legally different than that
of the strikers . That evening the employees delivered their
signed unconditional offer to return to work to Strunk, but
he refused to permit their return to work unless and until
they had Local 631 withdraw its petition. They advised him
that Local 631 was unwilling to withdraw its petition.
Strunk then called Gibbons, who said that he did not believe
that Local 631 had tried to withdraw its petition from the
Board that day because January 3 was a Federal holiday
and the Board's office was not open . Later that evening
Strunk called Jenkins and relayed this statement to him.
The record establishes that as of that time Gibbons and
Strunk were still trying to get the employees other than
Mason to return to work, upon the condition that they had
Local 631 withdraw its petition from the Board. On January
4, 1972, Strunk called Jenkins again and asked him if he
thought it would do any good to have Respondent's lawyer
"shake up" Local 631 to try to get it to withdraw the peti-
tion. Strunk concluded the conversation by stating "I guess
it is going to wind up in court." This was the last contact
between Strunk and the striking employees.
According to Gibbons , whom I do not credit unless
otherwise corroborated, his attorney advised him to replace
the striking employees immediately. According to Gibbons,
he hired replacements for all the striking employees between
December 28 and December 31, although the record estab-
lishes that such employees were not in fact hired but only
that arrangements were made between them and Gibbons
for them to report to work at the South Point jobsite when
and if Strunk needed them in the event the strikers did not
return to work. On December 28, before the strike com-
menced and anyone knew anything about it, Gibbons en-
tered into an arrangement with David L. Drake to report in
the future when and if Strunk needed him. Apparently Gib-
bons made his arrangement with Drake in order to replace
Mason, because Gibbons' Tucson foreman had advised
Gibbons that day that Strunk had terminated one of the
South Point employees. However on December 29 Strunk
hired Hill to replace Mason. On December 29 Gibbons
entered into a similar arrangement with two other men,
Daniel Kirnerk and Michael Bates , the latter already em-
ployed by Gibbons at another location, to report to Strunk
at the South Point jobsite at a later date when and if he
needed them. On December 30 or 31, Gibbons entered into
a like arrangement with a former employee for future re-
porting to Strunk when and if needed . Respondent contend-
ed that it had thus hired permanent replacements for all of
the striking employees before January 3, 1972, the date of
their unconditional offer to return to work . However, the
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record establishes that Respondent had not in fact hired any
replacements but had merely entered into arrangements for
their future employment in the event that the strikers did
not return to work, and that at all times to and including
January 4, 1972, made clear to the discharged and striking
employees, except Mason, that it wanted them to return to
work as soon as possible when and if they had Local 631
withdraw its petition from the Board. Contrary to the testi-
mony of Gibbons that he had hired "permanent replace-
ments," Strunk admitted that at all times to and including
January 4 he wanted the strikers to return to work and was
willing to have them do so if they could get Local 631 to
withdraw its petition, patently an admission that they had
not been permanently replaced. Strunk admitted that prior
to January 4 Gibbons never told him that the striking em-
ployees had been replaced. Strunk admittedly knew that
Gibbons had "replacements" available when and if needed
if the strikers could not return to work, i.e., were unable to
persuade Local 631 to withdraw its petition.
At all times from the first day of the strike Gibbons
advised Strunk that he was "covered" by help which Gib-
bons could furnish whenever needed, and Strunk consis-
tently informed the striking employees that he wanted them
to return to work as soon as possible and would accept them
at any time if they could get Local 631 to withdraw its
petition from the Board. Strunk understood the distinction.
He testified that as of January 3, 1972 and prior thereto he
had not been advised that the striking employees had been
replaced, but that he had been advised that he was "cov-
ered," which he understood meant that Gibbons had men
available to replace the striking employees when and if they
failed to return to work. None of the so-called replacements
reported for work at the plant until January 7, 1972, after
it was clear that Local 631 would not withdraw its petition.
Respondent hired the four "replacements," thus, including
Hill, increasing its work force by one as of January 7, 1972,
because no further negotiations occurred between Strunk
and the discharged and striking employees and none of
them were permitted to return to work. Gibbons admitted
that he informed Strunk that the men could return to work
as long as they met his condition of having Local 631 with-
draw its petition. The record establishes and I find that at
all times Gibbons and Strunk were willing to negotiate with
the men individually or as the Ash Haulers and return them
to work, provided that they arranged to have Local 631
withdraw its petition from the Board. On January 6, 1972,
after all the incidents herein, Strunk finally told Mason at
the latter'sinsistence that he had been discharged because
of his unsatisfactory work and because of Strunk's conver-
sation with Knight about Mason's prior back injury and
litigation.
C. Domination and Interference with the Formation and
Administration of, and Financial and Other Support to, the
Ash Haulers
The complaint alleged that on and after August 29,
Respondent through Strunk initiated, formed, sponsored
and promoted the Ash Haulers, and assisted, dominated,
contributed to the support of, and interfered with, the ad-
ministration of the Ash Haulers . As hereinabove found,
after Respondent's problems at South Point because its em-
ployees were not unionized, Strunk, with the approval of
Gibbons, suggested to the employees that they form an
independent union. Strunk informed the employees that the
organization of an independent union would be a good idea
in order to prevent their loss of employment. The record
establishes that Strunk not only suggested but also initiated,
organized, and led the employees in the creation of the Ash
Haulers. He made the original suggestion to Olson and they
in turn persuaded the other two employees then employed.
When the employees were unable to secure an attorney to
set up such an organization, Strunk, with the assistance of
Gibbons, referred them to an attorney in Las Vegas who set
up the Ash Haulers. Strunk was one of its three organizers
and directors and one of its two officers. When the members
indicated their inability to pay the attorney 's fees of more
than $1,000 for organizing the Ash Haulers, Strunk assured
them that Respondent would take care of it. Thereafter
Respondent advanced Olson the money to pay most of such
fees. None of such fee was paid by any of the members. In
addition, only Strunk and Olson paid the required initiation
fee and Olson's payment was effectively refunded to him by
Respondent. At the first meeting of the Ash Haulers con-
cerning contract proposals to Respondent, Strunk was the
leader and furnished a form of contract which he suggested
that the members follow. Strunk handled all of the subse-
quent negotiations with Gibbons for the Ash Haulers.
Strunk led and actively participated in all of the meetings
at which the members considered their proposals and
Respondent's counterproposals. During the period after the
strike began and Respondent was aware of Local 63 l's peti-
tion to the Board, Respondent consistently made clear to
the employees that it would bargain with and enter into a
contract with the Ash Haulers if the striking employees
could get Local 631 to withdraw its petition. Strunk contin-
ued as secretary-treasurer of the Ash Haulers until after the
events herein. Thus the record establishes and I find that
Respondent initiated, organized, dominated, interfered
with, and contributed financial and other support to, the
Ash Haulers, thereby dominating and interfering with the
formation and administration of, and contributing financial
and other support to, the Ash Haulers in violation of Sec-
tion 8(a)(2) and (1) of the Act.
D. Interference, Restraint, and Coercion
The complaint alleged that on or about December 29
Respondent by Strunk threatened an employee that future
employment and a guarantee of future employment was
conditioned upon the employees' abandoning their support
for Local 631. As hereinabove found on December 29
Strunk, after telling Jenkins that Strunk wished the strikers
had waited one more day because Gibbons was planning to
come up and sign a contract with the Ash Haulers the
following day, and refusing to tell Jenkins why Strunk had
fired Mason, on their drive back to the picket line after
learning about the employees joining Local 631, com-
plained about the employees striking and wondered aloud
what he could do about it. Jenkins replied that Strunk knew
what he could do about it if he wanted. Strunk then said that
he had no alternative but to give the men their final checks.
G. L. GIBBONS TRUCKING SERVICE 597
Both men conceded that they had reference to Strunk's
terminating the employees. Clearly this constituted a threat
by Strunk to terminate the strikers because of their concert-
ed activity to protest Mason's discharge and/or their trans-
fer of allegiance to Local 631. Later the same day Strunk
carried out his threat by terminating not only the strikers
but also Vaughn. I conclude and find that such threat con-
stituted interference, restraint, and coercion in violation of
Section 8(a)(1) of the Act.
The complaint alleged that on or about December 29
Respondent by Strunk interrogated a unit employee at his
home concerning whether he had signed a card for Local
631. This allegation had reference to Strunk's conversation
with Vaughn on the morning of December 29 at his home
when Strunk admittedly interrogated Vaughn as to whether
he had signed an authorization card for Local 631 and was
in accord with the other employees in their support of Local
631, both of which Vaughn admitted. Until Strunk told him,
Vaughn knew nothing about Mason's discharge or the ensu-
ing strike. After ascertaining that Vaughn had joined Local
631 and was in accord with the other employees in support-
ing it, Strunk terminated Vaughn by giving him his final
check. I conclude and find that the aforesaid interrogation,
accompanied by Strunk's complaint concerning Vaughn's
decision to support Local 631 while he was a director of the
Ash Haulers, constituted interference, restraint, and coer-
cion in violation of Section 8(a)(1) of the Act.
The complaint alleged that between December 29 and
January 2, 1972, Respondent by Strunk at the South Point
facility told its employees that Respondent would sign a
contract immediately with the Ash Haulers if the employees
would withdraw their support from Local 631. As herein-
above found, Strunk made such statements to various of the
employees during that period of time. During their first
conversation on December 29 when Jenkins acted as
spokesman for the three picketing employees, Strunk stated
that he wished the -employees had not struck that day be-
cause Gibbons was planning to come up the following day
and sign a contract with the Ash Haulers. That evening
Strunk, after talking with Gibbons several times, told Jen-
kins that Gibbons wanted the employees to persuade Local
631 to withdraw its petition and that he would then nego-
tiate a contract with them. All of Strunk's statements to
Jenkins were reported by him to the other employees.
Again on the evening of December 30 Strunk told Jen-
kins that he had talked to Gibbons, who would be glad to
have all of the men except Mason return to work if they
would have Local 631's petition withdrawn from the Board.
This was after Local 631 had informed the employees that
it would not sanction their strike or assist them. Jenkins
replied that they might be able to work something out if
Respondent would grant some of the benefits the employees
had been requesting. Again on the evening of December 31
Strunk told Jenkins that if the strikers could arrange to have
Local 631's petition withdrawn Gibbons would negotiate a
contract with them and they could all return to work. Strunk
also told Jenkins that the contractual requests of the men
were good negotiable items, that Strunk wanted them to
come back to work and that they would all, except Mason,
have a job as long as they wanted. During all of these
conversations Strunk made clear that Respondent would
negotiate and sign a contract with the Ash Haulers for the
men if they withdrew their support from Local 631 and
persuaded it to withdraw its petition. As a result all four
employees did try to persuade Local 631 to withdraw its
petition.
On the evening of January 1 Strunk again told Jenkins
that Gibbons was willing to negotiate all of the employees'
demands as long as they got Local 631 to withdraw its
petition, and that Strunk wanted them to return to work as
soon as possible. When Jenkins informed Strunk that on
Monday they were going to Las Vegas to seek the withdraw-
al of the petition Strunk replied that if they were successful
they could return to work that afternoon. The record estab-
lishes and I find that Strunk -repeatedly told the employees
that Respondent would negotiate and sign a contract with
the Ash Haulers on their behalf if they would withdraw their
support from Local 631 and persuade it to withdraw its
petition, thereby interfering with, restraining, and coercing
its employees in violation of Section 8(a)(1) of the Act.
Moreover during these same conversations Strunk also
made clear that the employees would not be reinstated to
their positions unless they persuaded Local 631 to withdraw
its petition, thus coupling a threat of reprisal with a promise
of benefit.
E. Discrimination in Hire or Tenure, Terms or Conditions
of Employment
1. The discharge of Mason
The complaint alleged that on or about December 28
Respondent discharged Mason and since that date failed
and refused to reinstate him because of his union or concert-
ed activities. Mason was hired by Strunk on October 4 as
the cleanup man to replace Fountain, who was on extended
sick leave. The day before, Strunk informed Mason of the
existence of the Ash Haulers. On October 29, because of
Fountain's return, Mason was laid off but was recalled to
work on November 3. Respondent's entire complement at
South Point consisted of only four employees. Mason's job
duties were limited to a confined area where the ashes were
dumped from Edison's bins into Respondent's truck. As
hereinabove found, Strunk was present at this jobsite ev-
eryday and regularly observed the men, including Mason,
as they worked. In the latter part of November Strunk ad-
vised Mason to withdraw his membership in a Teamsters
local in Phoenix because it would serve no purpose to con-
tinue it inasmuch as Respondent had no contract with the
Teamsters, including Local 631. As a result of the employ-
ees' dissatisfaction with the Ash Haulers and the progress
of negotiations, they frequently discussed among them-
selves at the jobsite the desirability of seeking other union
representation. These conversations went on for some time
and in all probability were overheard by Strunk.
On December 5 the employees agreed to try to join
Local 631 and requested Mason to contact its steward on
the project site. Mason did so. On December 6 Local 631's
job steward, well known by Strunk, delivered to Mason at
his jobsite while working membership application cards to
2 N.L.R.B. v Exchange Parts Co., 375 U.S. 405 ( 1964), and Great Plains
Steel Corp, 183 NLRB No 96 (1970).
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be signed by the employees. Mason delivered these cards to
the others while working at the jobsite. The following day
the others returned the signed cards to Mason while work-
ing at the jobsite. Mason then delivered the four signed
cards to Local 63 I's steward. All of this occurred within the
confines of the project and substantially all at the jobsite
where Strunk was regularly present. The size of the unit and
the work site make it extremely improbable that Strunk
would not have been aware of these activities. He knew
Local 63 l's job steward from his prior contact and knew
that Mason had been a member of another local of the
Teamsters. Under the circumstances, I conclude and find
that Respondent through Strunk was aware of Mason's ac-
tivities on behalf of Local 631. The General Counsel also
argues that Respondent must have received Local 63l's
petition on or before December 28, inasmuch as it was air
mailed from Los Angeles to Tucson on December 20 or 21.
However, Gibbons testified unequivocally that he did not
receive the petition in the mail until the morning of Decem-
ber 29 after the strike had started. While it seems unlikely,
in view of the Christmas mail rush it is not impossible, that
.the petition was not delivered through the mail to
Respondent's Tucson office until December 29, and I con-
clude and find that the General Counsel has failed to sus-
tain his burden of proof with respect to that contention.
On December 22, Strunk's last day at the jobsite before
his Christmas holiday, Strunk promoted Mason to truckdn-
ver. Strunk directed Jenkins to instruct Mason and check
him out on the job. Mason drove the truck on December 22,
23, and 27, the 3 following workdays. Upon Strunk's return
to the job on the morning of December 28, Jenkins advised
him that Mason had done a good job driving the truck and
would make Respondent a good truckdriver. Although
Strunk was in personal contact with Mason that day, Strunk
made no statements to him. Allegedly as the result of a
conversation with Knight that morning, plus conversations
with Olson and Hill that afternoon, Strunk decided to fire
Mason that evening, primarily because of the "information"
he had obtained from Knight. The record establishes that
all of Respondent's reasons for discharging Mason were not
only without merit but contrary to fact. Thus Strunk testi-
fied that his principal reason for discharging Mason was
because Knight had informed him that day that Mason had
injured his back while working for Knight and had cost
Knight considerable money by bringing suit for such injury.
However, Strunk admitted that he was fully aware of
Mason's back injury and the litigation before employing
him, and in fact had Mason sign a release agreeing never to
sue Respondent for any back injuries occurred prior to his
employment by Respondent. Moreover the record estab-
lishes that Mason had no complaints about his back while
employed by Respondent. Thus Strunk's principal reason,
i.e., concern about possible litigation by Mason against Re-
spondent for such injury, was proven to be without sub-
stance.
An additional reason advanced by Strunk was dissatis-
faction with Mason's work performance from the outset of
his employment in October. The record demonstrates the
contrary. On October 29 Strunk laid Mason off because of
the return of Fountain, yet on November 3 when Strunk
needed additional help he reemployed Mason, thus demon-
strating Strunk's satisfaction with Mason's performance to
that date. As a result of Mason's requests, on December 22
Strunk decided to promote Mason to truckdriver and had
Jenkins instruct him and check him out. This further evi-
denced Strunk's satisfaction with Mason's prior perfor-
mance . Contrary to the credited testimony of Jenkins,
Strunk advanced as an additional reason for Mason's dis-
charge the claim that Jenkins had reported that Mason was
a poor and careless truckdriver. As hereinabove found, Jen-
kins reported to Strunk that Mason was a good truckdriver.
During Strunk's Christmas holiday visit with Gibbons,
they discussed the affairs of the Ash Haulers and
Respondent's operation at South Point. Immediately after
Strunk's return to the job, he fired Mason without any warn-
mg, allegedly for the above reasons which have been found
to be without merit. In addition, Strunk refused to tell Ma-
son why he was fired, and that evening and on succeeding
days refused to tell Jenkins and Fountain why Mason had
been fired, although Respondent was confronted with a
strike of all of its employees because of Mason's discharge.
During the ensuing discussions with the strikers, Strunk
consistently refused to consider Mason's reinstatement, al-
though he was never able to advance a reason . The record
establishes Respondent's animosity towards Local 631 as
the result of its contact with Gibbons in April and its subse-
quent contacts with Strunk and Olson during the summer
of 1971.
A preponderance of the reliable, probative, and sub-
stantial evidence in the entire record convinces me, and I
find, that Respondent's alleged reasons for discharging
Strunk were pretextual, and that its real reason was his
organizing activities on behalf of Local 631, thereby dis-
criminating against him in violation of Section 8(a)(3) and
(1) of the Act.
2. The discharge of Vaughn
The complaint alleged that on or about December 29
Respondent discharged Vaughn and thereafter failed and
refused to reinstate him because of his union activities and/
or because he had joined the strike. As hereinabove found
Vaughn was at home on sick leave on December 29, the day
the strike commenced. After the above-found conversation
with Jenkins, Strunk went to Bullhead City, secured the
prior week's checks for all four employees, and wrote per-
sonal termination checks for all four, including Vaughn.
Strunk then went to Vaughn's home, informed him of
Mason's discharge and the strike, of which Vaughn was not
previously aware, and interrogated him about his member-
ship in Local 631 and whether he agreed with the other
employees in supporting Local 631. After Vaughn admitted
that he had signed an authorization and membership card
and was in sympathy with the others in supporting Local
631, Strunk criticized him for not remaining loyal to the Ash
Haulers and presented him with his final check, thereby
terminating him. The following morning Vaughn joined the
others in picketing, after he had informed them of his dis-
charge and they had informed him of the purpose of the
strike. The record clearly establishes, and I find, that Strunk
terminated Vaughn because of his admitted membership in
Local 631 and his support of Local 631 with the other em-
G. L. GIBBONS TRUCKING SERVICE
ployees , thereby discriminating against him in violation of
Section 8(a)(3) and (1) of the Act.
3. The discharge of the strikers, Jenkins and Fountain
The complaint alleged that on or about December 29
Respondent discharged Vaughn, Fountain, and Jenkins be-
cause they had joined the strike and/or because of their
union activities, and thereafter refused to reinstate said em-
ployees to their former or substantially equivalent positions
although on January 3, 1972, they made an unconditional
offer to return to work. On December 29 three employees,
Mason, Jenkins, and Fountain, were picketing. On Decem-
ber 30 Vaughn joined the picketing. As hereinabove found,
Mason was discriminatorily discharged on December 28
and Vaughn on December 29, and hence neither of them
were strikers within the meaning of the Act, inasmuch as
they were not in a position to voluntarily withhold their
services. Both joined the picketing and apparently the Gen-
eral Counsel, as well as Local 631 as demonstrated by its
preparation of Vaughn's unconditional offer to return to
work, mistakenly viewed Vaughn as one of the striking em-
ployees. It is well settled that a discnminatonly discharged
employee is not required to make an unconditional offer to
return to work but on the contrary his employer is required
to offer him reinstatement to his former or substantially
equivalent position, whereas striking employees, whether
economic or unfair labor practice strikers, must make such
an unconditional offer to return to work before their em-
ployer is required to reinstate them. However, a discrimina-
torily discharged employee who subsequently joins a going
strike is not entitled to backpay until his strike activity
terminates.
After discharging Vaughn on the morning of Decem-
ber 29, Strunk proceeded to the picket line and, as he had
earlier threatened, terminated the striking employees, Jen-
kins and Fountain, by presenting them their final checks. At
the same time Strunk gave Mason his final check. As herein-
above noted, Respondent contended that the strike was for
recognition, that the striking employees voluntarily quit,
and that Respondent had permanently and lawfully re-
placed them. The record contains no evidence that the strike
was for recognition, nor is there any evidence that the strik-
ing employees voluntarily quit their employment, which Re-
spondent concedes. On the contrary the record clearly
establishes that from the outset the strike was in protest of
Mason's discharge. A consideration of the entire record
establishes, and I find, that Respondent discharged the
striking employees, Jenkins and Fountain, because of their
protected concerted activity, striking, and because of their
membership in Local 631, thereby discriminating against
them in violation of Section 8(a)(3) and (1) of the Act.
On January 3, 1972, Fountain, Jenkins, and Vaughn
presented Respondent with a written unconditional offer to
return to work, which Respondent rejected and refused un-
less they could persuade Local 631 to withdraw its petition.
Because Vaughn had joined the strike after his discriminato-
ry discharge, this also constituted notice to Respondent that
he was abandoning his strike activities and available for
immediate reinstatement. Inasmuch as I have found that
Mason's discharge was discriminatory and the strike was in
599
protest thereof, it follows, and I find, that from its inception
the strike was an unfair labor practice strike. Assuming
arguendo that Mason's discharge was not discriminatory,
the discriminatory discharge of Vaughn and/or the subse-
quent discriminatory discharges of the strikers would have
converted the strike to an unfair labor strike and tended to
prolong it. It is well settled that unfair labor practice strikers
are entitled to immediate reinstatement upon their uncondi-
tional offer to return to work regardless of the employment
of replacements? It follows and I find that Respondent's
refusal to reinstate the unfair labor practice strikers, Jenkins
and Fountain, upon their unconditional offer to return to
work constituted further discrimination against them in vio-
lation of Section 8(a)(3) and (1) of the Act.
Assuming arguendo that the strike was an economic
strike, it is well settled that such strikers are entitled to
reinstatement to their former positions upon their uncondi-
tional offer to return absent the employment of permanent
replacements and other considerations not pertinent herein.
As hereinabove found, the record establishes that Respon-
dent had not hired permanent replacements for the striking
employees, but had consistently, from the time of the strike
until after their unconditional offer to return to work, made
clear at all times that Respondent wanted them to return to
work and was willing to accept their return provided they
were able to persuade Local 631 to withdraw its petition
from the Board. Accordingly, even if they are assumed to
have been economic strikers, I conclude and find that
Respondent's refusal to reinstate them upon their uncondi-
tional offer to return to work constituted discrimination in
violation of Section 8(a)(3) and (1) of the Act.
F. Additional Issues
The complaint also alleged that Respondent engaged
in the above-found acts of interference, restraint, and coer-
cion, domination of, interference with and assistance to the
Ash Haulers, and discriminatory discharges and refusals to
reinstate, for the purpose of undermining Local 631 and
destroying its majority status in order to evade
Respondent's obligation to bargain with Local 631. As
found above, Respondent threatened its employees with
discharge for engaging in a strike and for supporting Local
631, interrogated an employee concerning his union activi-
ties and membership, informed the employees that Respon-
dent would sign a contract with the Ash Haulers if they
would withdraw their support from Local 631 and persuade
it to withdraw its petition, dominated and interfered with
the formation and administration of the Ash Haulers and
contributed financial and other support to it, discriminato-
rily discharged Mason and Vaughn, discriminatorily dis-
charged employees for engaging in a strike, and
discriminatorily refused to reinstate such strikers upon their
unconditional offer to return to work. The record estab-
lishes, and I find, that Respondent engaged in such unfair
labor practices for the purpose of destroying Local 631's
majority status and thereby evading Respondent's obliga-
tion to bargain with it.
The complaint alleged, Respondent admits and I find
3 Mastro Plastics Corp, 350 U S 270 ( 1956).
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the following to be a unit appropriate for the purposes of
collective bargaining within the meaning of the Act:
All ash haulers employed by Respondent at its
facility at South Point, Nevada, excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
The complaint further alleged that, to remedy the
above-found unfair labor practices under the above-found
circumstances, an order should issue requiring Respondent
to recognize and bargain with Local 631 as the exclusive
bargaining representative of the employees in the aforesaid
appropriate unit.
As hereinabove found, on December 7 and 8 four of
the five employees in the appropriate unit signed unambigu-
ous authorization cards as well as applications for member-
ship and delivered them to Local 631, all of which cards
were properly authenticated and received in the record. I
conclude and find, as alleged in the complaint but denied
by Respondent, that on December 8, Local 631 was desig-
nated by a majority of the employees in the appropriate unit
as their bargaining representative and was then and there-
after the exclusive bargaining representative of the employ-
ees in the aforesaid appropriate unit.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
within the meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action as pro-
vided in the Order recommended below, which I find neces-
sary to remedy and remove the effects of the unfair labor
practices and to effectuate the policies of the Act. Although
the complaint did not allege a refusal to bargain, and none
is found, Respondent, as alleged and hereinabove found,
engaged in the above-found unfair labor practices for the
purpose of destroying Local 631's majority status and there-
by evading Respondent's obligation to bargain collectively
with it. As further alleged in the complaint, it is now well
settled that under such circumstances a bargaining order is
warranted and indeed required as the only effective remedy
available." Accordingly, I shall recommend a bargaining
order. Because it has been found that Respondent dominat-
ed, interfered with, and assisted the Ash Haulers, I shall
recommend that Respondent completely disestablish the
Ash Haulers. Because of the character and scope of the
unfair labor practices found, I shall recommend a broad
cease and desist order.5
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
1. Respondent is an employer engaged in commerce,
and Local 631 and the Ash Haulers are labor organizations,
within the meaning of the Act.
2. By interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. By dominating and interfering with the formation
and administration of the Ash Haulers, and contributing
financial and other support to it, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(2) and (1) of the Act.
4. By discharging Mason and Vaughn because of their
union activities, by discharging Jenkins and Fountain be-
cause of their concerted activity, striking, and their union
activities, and by refusing to reinstate Jenkins, Fountain,
and Vaughn upon their unconditional offer to return to
work because of their concerted and union activities, Re-
spondent engaged in discrimination to discourage member-
ship in Local 631 and participation in protected concerted
activities, thereby engaging in unfair practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. All ash haulers employed by Respondent at its fa-
cility at South Point, Nevada, excluding all office clerical
employees, professional employees, guards and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
6. At all times on and after December 8, Local 631 has
been and now is the exclusive representative for the pur-
poses of collective bargaining of the employees in the above
unit within the meaning of Section 9(a) of the Act.
7. The aforesaid unfair labor practices affect commerce
ORDER6
G. L. Gibbons Trucking Service, Inc., its officers,
agents, successors and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge or refusal of
future employment because of their union or protected con-
certed activities, including striking.
(b) Interrogating coercively its employees concerning
their union activities or membership.
(c) Telling employees that it will negotiate or enter into
a contract with another labor organization if they will with-
draw their support from their chosen labor organization or
persuade such labor organization to withdraw its represen-
tation petition filed with the National Labor Relations
Board.
(d) Threatening striking employees that they will not be
reinstated to their fromer positions unless they persuade
their chosen labor organization to withdraw its representa-
tion petition filed with the National Labor Relations Board.
(e) Dominating or interfering with the administration
or formation of the Ash Haulers of Nevada, Inc., or any
4 N L.R B v Gissel Packing Co, Inc., 395 U.S. 575 (1969); and Great Plains
Steel Corp, 183 NLRB No. 96 (1970).
5 N.L.R.B. v. Express Publishing Company, 312 U.S 426 (1941); N.L.R.B.
v. Entwh,stle Mfg Co, 120 F 2d 532 (C A. 4, 1941); Consolidated Industries,
Inc., 108 NLRB 60 (1954), and cases cited therein.
6 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Section
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
G. L. GIBBONS TRUCKING SERVICE
other labor organization of its employees, or contributing
financial or other support to said Ash Haulers or any other
labor organization of its employees.
(f) Recognizing, or in any manner dealing with, said
Ash Haulers, or any reorganization or successor thereof, as
a representative of any of its employees for the purpose of
dealing with Respondent concerning grievances, labor dis-
putes, wages, rates of pay, hours of work or any other terms
and conditions of employment.
(g) Discouraging membership in Teamsters Local Un-
ion No. 631, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any
other labor organization of its employees, by discharging
employees because of their union or protected concerted
activities, including striking, or by failing and refusing to
reinstate unfair labor practice strikers to their former or
substantially equivalent positions after their unconditional
offer to return to work, or in any other manner discriminat-
ing against employees in regard to hire or tenure of employ-
ment or any term or condition of employment.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Withdraw all recognition from said Ash Haulers as
a representative of any of its employees for the purpose of
dealing with Respondent concerning grievances, labor dis-
putes, wages, rates of pay, hours of work, or any other terms
and conditions of employment, and completely disestablish
said Ash Haulers as such representative.
(b) Upon request, bargain collectively with the afore-
said Local 631 as the exclusive representative of its employ-
ees in the appropriate unit found herein with respect to rates
of pay, wages, hours, and all other terms and conditions of
employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(c) Offer LeRoy Mason , Mark Vaughn, Ronnie I. Jen-
kins and Brian Fountain each immediate and full rein-
statement to his former job or, if this job no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make each
whole for any loss of pay he may have suffered by payment
to him of a sum of money equal to that which he would
normally have earned from, in the case of Mason, Decem-
ber 28, 1971, the date of his discharge, and in the cases of
Vaughn, Jenkins, and Fountain, January 3, 1972, the date
of their unconditional offer to return to work, to the date
of the above-required offer of reinstatement by Respon-
dent, less the net earnings of each during said periods (Cros-
set Lumber Company, 8 NLRB 440), said backpay to be
computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289,
together with the interest thereon at the rate of 6 percent per
annum (Isis Plumbing & Heating Co., 138 NLRB 716).
(d) Immediately notify the above-named employees if
presently serving in the Armed Forces of the United States
of their right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
601
(e) Preserve and upon request make available to the
Board or its agents for examination and copying all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
determine the amount of backpay due under this Order.
(f) Post at its office in Tucson, Arizona and its facility
in South Point, Nevada copies of the attached notice mark-
ed "Appendix." 7 Copies of said notice, on forms provided
by the Regional Director for Region 31, after being duly
signed by Respondent's representative shall be posted by
Respondent immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced or covered
by any other material.
(g) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of receipt of this Decision
what steps Respondent has taken to comply herewith.8
7 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
8 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 31, in writing, within 20 days from the date
of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Teamsters
Local Union No. 631, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization of our em-
ployees, by discharging employees because of their un-
ion or protected concerted activities, including striking,
or by failing and refusing to reinstate unfair labor prac-
tice strikers to their former or substantially equivalent
positions after their unconditional offer to return to
work, or in any other manner discriminating against
our employees in regard to hire or tenure of employ-
ment or any term or condition of employment.
WE WILL NOT dominate or interfere with the forma-
tion or administration of, or contribute financial or
other support to, any labor organization of our employ-
ees.
WE WILL NOT recognize, or in any manner deal with,
the Ash Haulers of Nevada, Inc., or any reorganization
or successor thereof, as a representative of any of our
employees for the purpose of dealing with us concern-
ing grievances, labor disputes, wages, rates of pay,
hours of work or any other terms and conditions of
employment.
WE WILL NOT threaten our employees with dis-
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge or refusal of future employment because of their
union or protected concerted activities, including strik-
ing.
WE WILL NOT coercively interrogate our employees
concerning their union activities or membership.
WE WILL NOT tell our employees that we will nego-
tiate or enter into a contract with another labor organi-
zation if they will withdraw their support from their
chosen labor organization or persuade such labor or-
ganization to withdraw its representation petition filed
with the National Labor Relations Board.
WE WILL NOT threaten striking employees that they
will not be reinstated to their former positions unless
they persuade their chosen labor organization to with-
draw its representation petition filed with the National
Labor Relations Board.
WE WILL NOT in any other manner interfere with,
restrain or coerce our employees in the exercise of any
of the rights guaranteed them by the National Labor
Relations Act.
WE HEREBY completely disestablish the Ash Hau-
lers of Nevada , Inc., as a representative of any of our
employees for the purpose of dealing with us concern-
ing grievances, labor disputes , wages , rates of pay,
hours of work, or any other terms and conditions of
employment, and withdraw all recognition from said
Ash Haulers as such representative.
WE WILL, upon request, bargain collectively with
the aforesaid Local 631 as the exclusive representative
of our employees in the appropriate unit noted below
with respect to rates of pay, wages, hours and all other
terms and conditions of employment, and, if an under-
standing is reached , embody such understanding in a
signed agreement.
The appropriate unit is:
All ash haulers employed by us at our facility at
South Point , Nevada , excluding all office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act.
WE WILL offer LeRoy Mason, Mark Vaughn, Ron-
nie I . Jenkins, and Brian Fountain each immediate and
full reinstatement to his former job, or if this job no
longer exists , to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make each whole for any loss of pay he
may have suffered as a result of our discrimination
against him.
All of our employees are free to become , remain or
refrain from becoming or remaining , members of the above-
named or any other labor organization.
Dated By
G. L. GIBBONS TRUCKING SERVICE,
INC.
(Employer)
(Representative) (Title)
WE WILL notify immediately the above-named employees if
presently serving in the Armed Forces of the United States
of their right to full reinstatement , upon application after
discharge from the Armed Forces , in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office, Federal Building , Room 12100,
11000 Wilshire Blvd., Los Angeles, California 90024, Tele-
phone 213-824-7357.