Newbery Energy Corp.

National Labor Relations Board - Board Decisions

Dec 20, 1976

227 N.L.R.B. 436 (N.L.R.B. 1976)

436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newbery Energy Corporation, Industrial Division' and
Allan Muggli. Case 28-CA-3533
December 20, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On May 19, 1976, Administrative Law Judge James
T. Barker issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in response to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The complaint alleges that Respondent unlawfully
discharged five strikers who refused to cross a picket
line at the entrance to Respondent's jobsite. The
Administrative Law Judge dismissed the complaint,
concluding that Respondent's actions were justified
by the need to continue the efficient operation of its
business. Contrary to the Administrative Law Judge
and for the reasons set forth below, we find that
Respondent's discharge of the striking employees
constitutes a violation of Section 8(a)(1) and (3) of the
Act.
On May 27 and 28, 1975,2 Respondent was engaged
as an electrical subcontractor to provide services at
the Anamax Twin Buttes Mine near Tucson, Arizona,
under the terms of an arrangement with Mountain
States Engineering, the general contractor at the
project. Respondent's employees were represented by
the International Brotherhood of Electrical Workers,
Local 570, hereinafter referred to as the Union.
On the morning of May 27, Respondent' s general
foreman, George Faccio, informed Respondent's
normal crew of nine employees (all members of the
Union) that the Teamsters had erected a picket line
pursuant to a dispute wholly with State Mining and
Construction, a separate contractor at the Anamax
project. He also advised them, relaying a message
1 The name of the Employer appears as amended at the hearing
2 Hereinafter , all dates refer to 1975.
3 The collective-bargaining agreement between Respondent and the
Union contained , inter aha, an exclusive referral provision , In order to insure
the availability of referrals for employment on May 28, Respondent was
required to place an order for replacements by 3 p.m. on the preceding day
4 Under the normal operation of the referral system when a referral would
227 NLRB No. 58
from the Union, that the Union's official position was
that they should continue to work. Employees
Erickson, McRaskle, Muggli, Muscutt, and Terwilli-
ger, however, were unwilling to work behind the
picket line and, consequently, refused to accompany
the rest of the crew to the jobsite.
Respondent's assistant manager , Horace Bounds,
was informed of the situation in the early morning
hours of May 27. Thereafter, at noon and again at
2:30 p.m., Bounds contacted Union Business Agent
Richard George in the hope of ascertaining the likely
duration of the picketing. George in effect stated that
he did not know. On both occasions, Bounds empha-
sized the necessity of maintaining a full crew in order
to achieve timely completion of Respondent's con-
tractual obligations. On the last occasion, Bounds
requested George to dispatch five journeymen to the
jobsite at 7 a.m. the following morning.3 Shortly
thereafter Bounds issued instructions to have termi-
nation slips prepared for Erickson, McRaskle, Mug-
gli, Muscutt, and Terwilliger.
On May 28, the five strikers arrived at the jobsite
prepared to begin work at 7 a.m. Also present were
four of the five journeymen who had been referred by
the Union and Respondent's four employees who had
decided to work the previous day. Upon arriving at
the jobsite Faccio presented the five strikers with
termination slips. The five subsequently departed the
premises and were not thereafter employed on the
Anamax project.
Respondent manned the job on May 28 with a crew
of eight rather than a crew of nine, its normal work
complement. The one-man shortage resulted from the
fact that the fifth man dispatched by the Union to the
job had returned his referral to the hall. For a period
of time on May 28, however, Faccio was unaware of
this fact and assumed, as frequently happened with
referrals, that the fifth man was merely late in
arriving at the jobsite. Faccio did, however, inform
Bounds later on the 28th that the fifth referral had not
reported as directed. He further informed Bounds
that the picketing had ceased. Bounds did not
thereafter request an additional referral until May 30,
apparently because he thought the Union would
automatically refer another employee .4 Another
journeyman was dispatched to the jobsite on Mon-
day, June 2.
All parties agree that the five alleged discriminatees
were engaged in protected activity when, on May 27,
they chose to honor the picket line. The Administra-
be returned to the hall, the Union would automatically refer to the next name
on the referral list for employment on the following day. The failure to abide
by the normal procedure on this occasion was due to an error on the part of
George's inexperienced assistant George was unaware of the failure of the
fifth man dispatched to report to work until Bounds' additional request of
May 30.
NEWBERY ENERGY CORPORATION
tive Law Judge, however, relying on the Board's
decision in Redwing Carriers, Inc. and Rockana
Carriers, Inc., 137 NLRB 1545 (1962), concluded that
Respondent's termination of its five striking employ-
ees was justified as necessary to preserve the efficient
operation of its business. We do not agree.
Redwing is distinguishable. There, the Board was
faced with the question of whether an employer
violates Section 8(a)(3) of the Act when it discharges
employees who engage in a partial refusal to work in
order to replace them with employees who are willing
to perform all job duties. The Board concluded that
the employer therein did not violate Section 8(a)(3)
by discharging drivers who refused to carry out
permanent assignments which required them to cross
a picket line at their delivery location at a customer's
place of business although they remained on the job
for the performance of all other work, since the
discharges therein were necessary to enable the
employer to operate its business. We are not here
presented with the type of situation with which the
Board dealt in Redwing. In the instant case, the picket
line was located at the common construction site
which constituted the employees' sole place of
employment. Consequently, the employees who were
unwilling to cross the picket line were forced to
remain away altogether during the period of the
picketing. Since the employees herein were engaged
in a total rather than a partial work stoppage,
Respondent was not faced with any business necessi-
ty to discharge its striking employees in order to
obtain replacements.
The Administrative Law Judge appears to con-
clude, however, that the situation herein is analogous
to that in Redwing. Thus, he concludes that since
Respondent's legitimate interest in timely completion
of its project was jeopardized by its employees who
engaged in a sympathy strike, Respondent was
entitled to discharge the strikers in order to replace
them with other employees who, by refraining from
such conduct, would present no threat to its estab-
lished time schedule. Employers are not entitled to
discharge employees merely to obtain a work comple-
ment less likely to engage in protected concerted
activities. The practical effect of the Administrative
Law Judge's holding would be the virtual abolition of
sympathy strikes since employees would be reluctant
to engage in such strikes where an employer could
lawfully terminate them therefor merely by establish-
ing a necessity to complete a job within a certain time
frame. We thus reject the Administrative Law Judge's
finding that business necessity justified the discharge
S The Laidlaw Corporation v N L R B, 414 F 2d 99, 104-105 (C A 7,
1969), rehearing denied and rehearing en banc denied September 2, 1969,
cert denied 397 U.S 920 (1970)
6 Sec 2 provides that : "The Union shall be the sole and exclusive source
of referrals of applicants for employment "
437
of the five strikers herein. Nor may an employer
terminate a striker solely because a replacement has
been hired.5 Accordingly, we conclude that Respon-
dent violated Section 8(a)(1) and (3) of the Act by
discharging employees for refusing to cross a picket
line at their place of employment.
THE REMEDY
Having found that Respondent's discharge of its
striking employees violated Section 8(a)(1) and (3) of
the Act, we shall order that they be reinstated to the
status they held at the time of their discharge.
The Administrative Law Judge concluded, and we
agree, that at the time of their discharge, the status of
the employees herein was that of strikers who had
been lawfully replaced on the previous day. The
General Counsel has excepted to this conclusion on
the ground that Respondent's hiring of replacements
did not occur until May 28 and thus occurred
subsequent to its discharge of the striking employees.
In support of his contention the General Counsel
relies on article VI of the parties' collective-bargain-
ing agreement which provides that: "The Employer
shall have the right to reject any applicant for
employment."6 The General Counsel argues that the
latter provision establishes that the five journeymen
referred by the Union pursuant to Respondent's May
27 request retained their status as "applicants" for
employment on May 28. Thus he contends that
Respondent's striking employees, by presenting
themselves as ready and willing to return to work on
May 28, unconditionally offered to return to work
prior to the hiring of permanent replacements. We
find no merit in General Counsel's contention. The
Board has uniformly held that where an employer
makes a commitment to an applicant for a striker's
job it will normally regard that commitment as a
legitimate replacement even though the striker re-
quests reinstatement before the replacement actually
begins to work.? Although those cases dealt with a
commitment extended directly by the employer to the
job applicant, we find the rationale of those cases to
be equally applicable to the facts herein.
Under the terms of the referral agreement, the
Union is delegated the authority to refer individuals
suited to the Respondent's needs subject only to a
provision permitting Respondent's rejection of those
referred. However, the existence of this right of
rejection does not ipso facto mean that no employ-
ment relationship can ever be established with
Respondent unless the latter first personally approves
those referred, or puts them to work. Conceivably,
7 Anderson, Clayton & Co Foods Division, 120 NLRB 1208, 1214 (1958),
H & F Binh Co Plant of the Native Laces and Textile Division of Indian
Head Inc, 188 NLRB 720, 723 (1971)
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
situations may arise where, due to the exigencies and
nature of the occasion, Respondent finds itself willing
to exercise its above contractual privilege. In such
situations , there is nothing to prevent Respondent
from doing so by informing the Union, either by
conduct, statement , or both, that a given request for
referral should be construed by all concerned as a
commitment of hire, which attaches upon referral of
the employees. We find that such a situation here
exists.
When the request for referrals was placed on the
afternoon of May 27, Respondent emphasized the
urgency which attended timely completion of the
project and thus informed the Union of the necessity
for immediate replacements willing to work behind
the picket line. In view of Respondent's fixed resolve
to meet its established time schedule in the face of
certain of its employees going on strike, we conclude
that in placing its request with the Union on May 27
the Respondent extended a firm commitment to hire
in advance any replacements referred through the
normal operation of the referral system. Such offer of
employment was accepted, therefore, when the indi-
viduals contacted by the Union accepted the referral.
Thus in this emergency situation, there not only
existed no realistic possibility that Respondent would
exercise its residual right to reject the referrals, but we
find that in effect it had waived that right because of
the unusual circumstances created by the strike.8
Indeed, this conclusion gains credence from the fact
that on May 28 there was no official present at the
jobsite who possessed the authority to reject any of
these referred. Accordingly, we find that the individu-
als referred were in fact legitimate replacements hired
prior to the strikers' application for reinstatement on
May 28.9
However, as noted above, one of the five replace-
ments failed to report for work, returning his referral
to the hiring hall. Respondent subsequently obtained
another referral. Thus, Respondent hired an addi-
tional employee after the May 28 offer of reinstate-
ment instead of recalling one of the five discrimina-
tees. Accordingly, we shall require Respondent to
reinstate at least one employee IO and any others
whose former positions have become vacant, dis-
charging if necessary any employees hired since May
28, 1975. The remaining strikers shall be placed on a
preferential hiring list. We shall further order that
Respondent make whole any discriminatorily dis-
charged striker improperly denied reinstatement by
8 Of course this does not mean that Respondent thereafter would be
precluded from severing the employment relationship with any of the
replacements in the event they turned out to be unsatisfactory in the
performance of their duties.
9 To hold otherwise in these circumstances unfairly signifies that a
referral, who has legitimate reason to believe he has been hired and therefore
cause to forgo other employment opportunities , may be deprived of a
paying him backpay and interest at 6 percent per
annum computed under the standards of the Board
as set forth in F W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). As we are unable to determine
from the state of the present record which strikers are
entitled to immediate reinstatement, we shall leave
the question of individual reinstatement rights for
resolution at the compliance stage of this proceeding.
ORDER
PL ,uant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Newbery Energy Corporation, Industrial Division,
Tucson, Arizona, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging its employees because they engage
in protected concerted activities or otherwise discrim-
inating against any of its employees by failing and
refusing to reinstate striking employees to properly
available positions after they have made an uncondi-
tional offer to return to work.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to such
of the strikers whose former positions have been
vacated after the strikers' offer to return to work,
without prejudice to any seniority or other rights and
privileges previously enjoyed. The remaining strikers
shall be placed on a preferential hiring list.
(b) Make whole those strikers who have been
improperly denied reinstatement for any loss of
earnings they may have suffered by reason of
Respondent's discriminatory failure to reinstate
them. Backpay and interest at the rate of 6 percent
per annum shall be computed as set forth in The
Remedy.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary and useful to determine the
rights to reinstatement and to analyze the amounts of
backpay due under the terms of this Order.
position by a last-minute decision of a striker to return to work As a result,
the individual referred would in all l ikelihood lose a day's pay (since he
probably could not be referred again that day) and perhaps , in addition,
opportunities for other referrals.
10 We leave to the comphancc stage of this proceeding the determination
as to which employee should havo been reinstated
NEWBERY ENERGY CORPORATION
(d) Post at its Tucson, Arizona, place of business
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the
Regional Director for Region 28, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
11 In the event that 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees because they
engage in union activities or otherwise discrimi-
nate against employees by failing and refusing to
reinstate economic strikers who have uncondition-
ally offered to return to work and whose former
positions are not filled by permanent replace-
ments.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed by Section 7 of the Act.
WE WILL offer immediate and full reinstatement
to those strikers whose former positions were or
became vacant after the strikers' offer to return to
work, without prejudice to any seniority or other
rights and privileges previously enjoyed, and make
them whole for any loss of earning they may have
suffered as a result of our failure to offer them
reinstatement . The remaining strikers shall be
placed on a preferential hiring list.
NEWBERY ENERGY
CORPORATION,
INDUSTRIAL DIVISION
DECISION
STATEMENT OF THE CASE
439
JAMES T. BARKER, Adminstrative Law Judge: This case
was heard before me at Tucson, Arizona, on January 29,
1976, pursuant to a complaint and notice of hearing issued
on November 21, 1975, by the Regional Director of the
National Labor Relations Board for Region 28.1 The
complaint alleges violations of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, hereinafter
called the Act. The charge giving rise to the complaint was
filed on June 2 by Allan Muggli, an individual. Respondent
denies the commission of any unfair labor practices. During
the course of the hearing the parties made opening
statements setting forth their respective positions. Respon-
dent and the General Counsel timely filed briefs with me.
Upon the entire record in this case, and based upon my
observation of the witnesses and the briefs of the parties, I
hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein,
a division of Newbery Energy Corporation, an Arizona
corporation.2 At all material times, Respondent has main-
tained its principal office and place of business at Tucson,
Arizona, where it has been engaged in business as an
electrical contractor in the building and construction
industry.
During the 12-month period immediately preceding the
issuance of the complaint herein, Respondent, in the course
and conduct of its business operations, purchased and
caused to be transported and delivered to its place of
business- in the State of Arizona electrical supplies and
other goods and materials valued in excess of $50,000, from
other enterprises within the State of Arizona, which the
aforesaid enterprises had received directly from States of
the United States other than the State of Arizona.
Upon these facts which are not in dispute,'I find that at
all times material herein Respondent has been an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
In its answer, Respondent concedes that Construction,
Building Materials & Miscellaneous Drivers, Local No. 83,
an affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
hereinafter called the Teamsters, has been at all times
material herein a labor organization within the meaning of
Section 2(5) of the Act. I so find.
Additionally, I find that at all material times, Internation-
al Brotherhood of Electrical Workers, Local 570, herein
called Local 570, has been a labor organization within the
meaning of Section 2(5) of the Act.3
1 Unless otherwise specified , all dates refer to the calendar year 1975
2 During the course of the hearing the style or caption of the case was
amended to conform to the correct spelling of the corporate name.
3 No evidence to this effect was introduced at the hearing but both the
(Continued)
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The ultimate issue in this case is whether Respondent
severed the employment of five journeymen electricians
represented by Local 570, comprising a portion of its work
complement at the Anamax Twin Buttes Mine worksite,
solely to preserve the efficient operation of its business; or
whether the severance action was undertaken in retribution
for the refusal of the five alleged discriminatees to work
behind a Teamsters picket line instituted in furtherance of a
labor dispute with an employer other than Respondent,
performing unrelated work tasks at the common jobsite.
The General Counsel contends that Respondent terminated
the employees in question and that Respondent 's action
was retaliatory or punitive in nature . On the other hand,
Respondent contends that replacements were timely ob-
tained for the five journeymen and this was done for the
sole purpose of assuring continuity of efficient operation
and to assist it in meeting deadline business commitments.
The parties agree that in withholding their services in
recognition of the Teamsters picket line the five alleged
discriminatees were engaging in protected , concerted activi-
ty.
1. The setting
On May 27 and May 28, Respondent was engaged as an
electrical subcontractor providing services at the Anamax
Twin Buttes Mine located near Tucson, Arizona, under the
terms of a time and materials arrangement with Mountain
States Engineering , the general contractor at the Anamax
project. Respondent's work related to the primary crusher
and conveyor system at the mine pit. Other contractors at
the project were Arizona Elevator and State Mining and
Construction. The latter company was engaged in work not
directly related to that being performed by Respondent,
and the situs of State Mining 's work was in an area
geographically remote from the pit area where Respondent
was performing services. In late May, and on May 27 and
May 28, specifically, Respondent was running tests on the
equipment preparatory to completing the service it had
contracted with Mountain States to perform. A portion of
Respondent's work complement was assigned to this work.
Also a portion of the crew was assigned to the related task
of pulling conductors and conduit. This was arduous work
and a full crew was desirable. Timely completion of these
tasks was significant to Mountain States for it was a last
preliminary to ' the transfer of the crusher by Mountain
States to Anamax, and the consequent realization by
Mountain States of the proceeds from its own contractual
arrangement with Anamax.
At all relevant times, Horace Bounds had served as
Respondent's assistant manager of industrial development,
with authority over manpower and labor relations. George
Faccio was Respondent 's general foreman at the Anamax
project. Both were statutory supervisors under the Act.
permissible inferences to be drawn from the record and decisional authority
justify such a conclusion . See, e.g. , Howard Electric Co. v. International
Brotherhood of Electrical Workers Local Union No 570, 423 F.2d 164 (C.A. 9,
1970).
Each had been a member of the IBEW. Bounds had served
as business agent of Local 570. Faccio was a member of the
executive board of Local 570 and Richard George was
business agent of Local 570. The five alleged discriminatees
were members of the IBEW on May 27 and May 28.
For a period of several years, Respondent and Local 570
had had contractual relations and were parties to a
collective-bargaining agreement at times pertinent herein.4
The agreement contained an exclusive referral provision
which, inter alia, permitted the Employer to reject individu-
als dispatched for work. The collective-bargaining agree-
ment also contained the following provisions:
ARTICLE II
Section 10. No employee shall be discharged or
disciplined for failing or refusing to cross or work
behind a picket line.
ARTICLE VI
Section 3 . The Employer shall have the right to reject
any applicant for employment.
The Anamax mine pit where Respondent was performing
services was situated a substantial distance from the
interstate highway providing a primary access to the
environs of the Anamax mine . Ingress to and egress from
the project is obtained by leaving the main highway,
traversing an arterial road to a point where an access gate
has been erected . At the point of the access gate, a relatively
crude and potentially hazardous access road commences,
leading to the mine pit . At material times, Respondent
provided a small bus for use by its employees in traveling to
the jobsite from the access gate . The bus departed the
access gate at approximately 7 a.m. each workday morning
and, at all times relevant , was driven by Cletus McRaskle, a
journeyman electrician, and an alleged discriminatee.
Respondent expected its employees to avail themselves of
the use of the bus for transportation from the access gate to
the jobsite, but this was not mandatory and employees who
were late in arriving at the access gate could call by
telephone from the gate area to the office of Faccio located
at the jobsite . Upon receipt of a call, the bus would be
dispatched to transport the caller to the jobsite . This had
occurred on occasions prior to May 27. Respondent was the
only Employer at the project providing bus service. The
employees of other employers traversed the access road by
private automobile.
2. The events of May 27
On May 27, Faccio arrived at the access gate at
approximately 6 a.m. Upon arriving he was met by Robert
Tanner, a foreman, who informed him that a Teamsters
picket line had been established at the gate. Faccio
immediately called Richard George to inquire. George told
Faccio he would check into the matter. George immediate-
ly placed a telephone call to the Teamsters office but the
telephone was not answered. After a passage of a few
4 It was stipulated that Respondent was bound by a collective-bargaining
agreement between National Electrical Contractors Association and Local
570
NEWBERY ENERGY CORPORATION
minutes he reached a representative of the Teamsters by
telephone and was informed that the Teamsters had no
dispute with Respondent. George thereupon called Faccio
and informed Faccio of his conversation, but advised
Faccio to speak directly with the Teamsters picket captain
at the access gate. George stated that if the picket captain
confirmed the information imparted to him, George, by the
Teamsters representative, Faccio should inform the Local
570 men that it was the official position of Local 570 that
they should go to work.
Pursuant to this conversation, Faccio spoke with the
picket captain who confirmed that no labor dispute existed
between Respondent and the Teamsters. Accordingly,
when the journeymen employed by Respondent on the
project arrived, Faccio spoke with them.
Thus, at approximately 6:45 a.m. on May 27, Erickson,
McRaskle, Muscutt, Muggli, and Terwilliger arrived at the
access gate in a timely fashion. When Erickson , McRaskle,
Muscutt,'and Terwilliger arrived, they noted some automo-
biles parked on the side of the road near the gate.5 They
alighted from their automobiles and joined a group
engaged in conversation . Muggli was present as were
Tanner and Faccio. Three other rank-and-file employees,
who together with Erickson, McRaskle, Muggli, Muscutt,
Terwilliger, 'and Faccio comprised the normal complement
of the crew performing services at the mine, were present.
In due course, Faccio informed the employees that the
Teamsters had erected a picket line and had a dispute with
State Mining, but that neither Mountain States nor the
Company was involved in the dispute. He further stated
that he had spoken with George and George had stated that
the official position of Local 570 was that the men should
go to work. McRaskle and Muscutt stated that they did not
wish to work behind a picket line. Faccio stated that he
understood their feelings, but noted that if they wished to
do so, they could enter the project through an alternate gate
which he specified. McRaskle and Muscutt observed that
they would still be working behind a picket line. In the
dialogue that transpired as the group spoke together,
Erickson, Muggli, and Terwilliger made known their
reluctance to work while the picket line was up. Faccio
asserted that it was essential that he get to the jobsite and he
requested all who wished to go to embark wth him on the
bus. Three journeymen noted their desire to accompany
him, but stated their preference for the alternate gate.
Faccio approved and they drove to the jobsite through the
alternate gate. The time was approximately 8 a.m. Erickson,
McRaskle, Muggli, Muscutt, and Terwilliger remained
behind. They did not work on May 27. Their work tools
remained at the jobsite.
In the meantime, Bounds had received a telephone call
from a representative of Mountain States Engineering, who
informed him that Respondent had no men on the job.
Bounds was instructed to take the steps necessary to
remedy the condition. Thereupon, Bounds called Faccio by
telephone and Faccio informed him of his conversation
with George and with the employees at the access gate.
5 Erickson and McRaskle rode together by arrangement and Muscutt and
Terwilliger carpooled together. The four employees arrived in two separate
automobiles but at approximately the same time
6 Bounds testified credibly that, between noon when he met with George
441
Faccio advised Bounds that five of the employees had
chosen not to work behind the picket lines , although they
had been offered the opportunity to travel to the jobsite
through an alternate gate . After speaking with Faccio,
Bounds consulted with his immediate superior, Jackson.
Bounds then called the Local 570 hall for George who was
not in. Bounds went to the hall some two hours later, at
approximately noon.
During the morning hours , while the foregoing events
were transpiring, George had been attending a meeting of
the Building Trades and at the meeting there was extensive
discussion of the Teamsters picket line . The Teamsters
representative was not in attendance. George could obtain
no information as to the likely duration of the picketing.
Upon returning to his office , at approximately noon,
George met with Bounds and for the first time learned that
the five Local 570 journeymen had not crossed the
Teamsters picket line . Bounds summarized for George's
benefit the events of the morning and informed George of
the status of the work in which Respondent was then
engaged at the jobsite . He emphasized the urgency which
attended its timely completion. Bounds stated that he
needed the services of the five journeymen and he inquired
if George knew how long the picket line would remain.
George stated that he had no information regarding the
likely duration of the picketing . The meeting ended on this
note.
Bounds returned to his office at approximately 2:30 p.m.
He called George and inquired if George had received any
further information as to the duration of the picketing.
George stated that he had not. Bounds thereupon requested
George to dispatch five journeymen to thejobsite at 7 a.m.
the following morning. In requesting the referrals , Bounds
reminded George of the status of the Company 's work at
the project and the necessity for having a full crew in order
to achieve timely completion of the Company 's contractual
obligations . Bounds urged George to inform the journey-
men eligible for dispatch to the job of these matters, and
Bounds emphasized the Company's desire not to engage in
the futility of having journeymen dispatched who would
refuse on arrival to work in the face of a Teamsters picket
line .6 Five men were dispatched by the IBEW.
In the interim, during the remaining hours of the
afternoon of May 27, Bounds issued instructions to have
termination slips and final paychecks prepared for Erick-
son, McRaskle, Muggli, Muscutt, and Terwilliger. He
contacted Faccio and directed him to deliver the termina-
tion slips to Jackson who lived near Faccio. Faccio
complied and the termination slips were delivered to
Jackson at approximately 7:30 p.m. on the evening of May
27.
3. The events of May 28
The following morning, May 28, Faccio arrived at the
access gate prior to 7 a.m. In like manner Erickson,
McRaskle , Muggli, Muscutt, and Terwilliger arrived prior
and 2:30 p.m when he placed the telephone call to George and requested the
dispatch, he had carefully evaluated the Company's position in the matter
and had reached the conclusion that the work on the project must be fully
manned the following day
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the normal departure time of the bus. They observed four
individuals who had not previously worked on the project.?
The bus departed the access gate with McRaskle driving,
and the passengers included the four "new" men as well as
Respondent's normal work complement, including Faccio.
When the bus reached the jobsite and after the passengers
had alighted, Faccio directed the four referrals to go to the
trailer office to complete W-2 forms. He summoned the five
alleged discriminatees to gather around him. When the
group had assembled, he presented each of the five with a
termination slip which had been prepared the previous day,
and with a paycheck. The termination slips had the
notation, "Quit" entered in the space specifying the reason
for termination. The date of the termination was specified
as May 27. Upon receiving their respective termination
slips, McRaskle and Muscutt each challenged the propriety
of the notation, "Quit." In varying manner, each of the five
vocalized his challenge to the entry. McRaskle averred, in
substance, that Faccio had not suggested on the previous
morning that the employees were placing their jobs in
jeopardy by refusing to cross the picket line or to work
behind the picket line. Indeed, McRaskle asserted that
Faccio had indicated his understanding of their plight.
Faccio responded that the termination notices in all
respects had been the decision of the Company and they
had no effective recourse through him. Muscutt expressed
his understanding of this and asserted that he would
explore the matter at a higher level of authority. The five
employees gathered their work tools and were transported
by bus back to the access gate. They were not thereafter
employed on the Anamax project.8
Respondent manned the job on May 28 with a crew of
eight rather than a nine-man crew judged by management
to be of optimum efficiency. The task of pulling wire into
terminal points - the work which the five alleged discrimi-
natees would have performed on May 28 - was work
entirely within the competence of the journeymen wiremen
who comprised the crew on that date. Ideally, however,
given a clear choice free from offsetting considerations
Respondent would have preferred a nine-man crew com-
posed of the complement existing prior to May 27. Bounds
testified that he was unwilling to risk use of the five alleged
discriminatees on May 28 for he had no reliable insight into
whether picketing would be resumed on May 28 and/or on
succeeding days. Bounds further testified that had he
known prior to 3 p.m. on May 27 that picketing would in
fact cease in time to permit manning of the job on May 28,
he would not have requested any referrals. At no time on
May 27 did Bounds receive any information as to whether
picketing would resume the following day. He had no
7 McRaskle knew three of them to be journeymen electricians. Muscutt
was acquainted with one of them.
s The General Counsel contends that although the instant complaint does
not raise issues of union hostility, such as are found in a typical 8(a)(3)
discharge, there were present in Respondent's decision purported elements
of antiunion motivation. To a limited extent, Respondent was permitted to
adduce evidence relating to the mechanics of the referral procedure and the
failure of McRaskle and Muscutt to seek referrals to jobs manned by
employees of Respondent at the Anamax and other projects. This was for the
avowed purpose of countering any claims of antiunion motivation or
retribution with respect to the discnnunatees.
9 Bounds testified that he did not become aware of the May 28 failure of
the fifth journeyman to report until May 30. Faccio's testimony is that he
information to the effect that the picketing would, in fact,
continue.
In the meantime, one of the men who had been
dispatched by Local 570 to the job returned his referral to
the hall. The referral was returned on May 28 but George's
inexperienced assistant did not follow the essentially
ministerial act of automatically referring ' for May 29
employment the next name on the referral list. For a period
of time on May 28, however, Faccio was unable to judge
whether the fifth man would report to work because
tardiness on the part of referrals in reporting to new job
assignments was not a unique phenomenon in Faccio's
experience . Bounds learned from Faccio on May 28,
however, that the picketing had ceased and that only four
of the five referrals had reported to work. However, Bounds
did not contact George, business manager of Local 570,
until the afternoon of May 30 and it was only by virtue of
Bounds' call that George became aware of the fact that the
fifth referral had not reported as directed. Anotherjourney-
man was dispatched who reported to the jobsite on
Monday, June 2. In order to accomplish this George had to
intercede with his assistant and point out to his assistant his
error in failing to properly implement or adhere to
established referral procedures.9
Both Bounds and Faccio were aware by reason of their
long experience as members and officials of the IBEW, and
from their labor relations experience otherwise, that spo-
radic picketing is a device sometimes employed by labor
organizations to further their labor relations objectives.
Moreover, Faccio credibly testified that on May 28, at the
commencement of the shift, he had no knowledge or insight
into whether or not the picketing would resume during the
course of the workday. He further testified that he made the
assumption that if, in fact, a Teamsters picket line were
again instituted at the jobsite the five alleged discrimina-
tees, if employed, would have honored the picket line.
Despite this conviction of Faccio, he conceded that the
ultimate authority with respect to the hire and retention of
journeymen resided with Bounds and he did not consider
himself to possess the necessary authority or discretion to,
in effect,' countermand the intent of Bounds' decision by
putting one of the former crewmembers to work at the
beginning of the workday on May 28 in order that the job
would be fully manned.
Conclusions
The parties agree that the five alleged discriminatees were
engaged in protected activity when on May 27 they chose to
honor the picket line erected by the Teamsters at the Twin
Buttes Mine. That the mine premises constituted a common
conveyed this information to Bounds on May 28 I credit Faccio, for I am
unable to conclude that in the circumstances prevailing on May 28 that
Bounds and Faccio would not have conversed together relating to the
progress of the work under the newly constituted crew and/or that Faccio
would not at a point in time on May 28 have conveyed to Bounds the
information that his crew was short one man. Additionally, in crediting
Faccio and rejecting Bounds' recollection as to the time when he learned of
the crew shortage, I have considered the testimony of George which adds
credence to Faccio's version. On the other hand, I also find that Bounds did
not seek a further referral from Local 570 until Friday, May 30. It is my
conclusion that Bounds knew the referral procedures and assumed incorrect-
ly that another referral would be forthcoming by virtue of the normal
operation of the referral system
NEWBERY ENERGY CORPORATION
work situs for the various crafts and contractors here
involved is not disputed. The record reveals very clearly
that the services being performed at the mine by Respon-
dent were not directly related to those being performed by
the contractor against which the Teamsters picket line was
directed.
It is the view of Respondent that the basic legal principle
underlying this case was enunciated by the Board in
Redwing Carriers, Inc., and Rockana Carriers, Inc., 137
NLRB 1545 (1962), wherein the Board held that where an
employer acts only to preserve the efficient operation of its
business, it may terminate the services of its employees who
refuse to cross a picket line established by other employees
so that it may immediately, or within a short period of time
thereafter, replace them with others willing to perform the
scheduled work. In reaching this determination, the Board
in Redwing held that the right of an employer to continue
his business operation must be balanced against the right of
employees to honor a picket line. Applying the Redwing
rationale to its conduct in this case, Respondent asserts that
it acted solely to preserve the efficient operation of its
business when it obtained replacement personnel to man
the job at the Twin Buttes Mine in lieu of the five alleged
discnminatees who decided to honor the Teamsters picket
line when it appeared. In effect, Respondent stresses the
necessity for realism in assessing the nature of the dilemma
confronting it on May 27, and earnestly contends that its
own conduct in seeking to insure a supply of craftsmen to
meet its needs on May 28 and thereafter must be measured
from the vantage point of May 27 when the operative
replacement decision was made, and not from the point of
view of the preshift morning hours of May 28, when the
referrals were accepted to the exclusion of the five journey-
men who had withheld their services the previous day.
Respondent urges upon the trier of fact not only the need
for a proper understanding of the nature of the business
exigency confronting it on May 27 to timely, complete its
contractual services to satisfy the demands of its own prime
or general contractor, but for a full comprehension also of
the degree of uncertainty which mantled the picketing,
including the absence of certitude on its part as to the
willingness of the five IBEW journeymen to continue to
work behind a Teamsters picket line should the picket line
reappear on May 28, or at any subsequent time during the
critical deadline period. Finally, Respondent alludes to the
long bargaining relationship between it and the IBEW, and
the asserted absence of any union hostility on the part of
management which, it is averred, precludes a finding of an
8(a)(3) violation.
The General Counsel advances a theory at odds with that
enunciated in defense by Respondent. It is the General
Counsel's contention that the Redwing principle is not
applicable to the facts of this case in that the instant matter
presents a common work situs situation and thus is
distinguishable in that particular from Redwing. It is the
General Counsel's view that, unlike the choice confronting
the employees in Redwing, for the five alleged discriniina-
tees herein to have exercised their Section 7 rights in
10 In denying enforcement of the Board's Order the court disagreed with
the Board's finding that the picket line clause in the party's bargaining
agreement did not cover the controversy which was the gravamen of the
443
seeking to observe the Teamsters picket line, it was essential
that the five withhold their services entirely and for the
duration of the picketing. Thus, notes the General Counsel,
the employees in question were in a position quite different
from the delivery drivers in Redwing who engaged in a
partial withholding of services by virtue of carrying out all
assigned duties except those requiring deliveries at the
premises of a particular employer being picketed. With this
distinction pertaining, avers the General Counsel, the five
electricians herein were essentially in the position of
economic strikers with all attendant rights and risks
associated with that, status. On the authority of N.L.R.B. v.
Mackey Radio & Telegraph Co., 304 U.S. 333, 345-346
(1938), contends the General Counsel, the strikers were
entitled to return to work so long as they had not been
permanently replaced. Stated otherwise, the General Coun-
sel notes that Respondent was free to replace but not to
terminate the five for honoring the Teamsters picket line. It
is the General Counsel's contention that the facts establish
that Respondent terminated the five alleged discriminatees
and asserts that an attitude of retribution legally equivalent
to unlawful motivation in a typical 8(a)(3) context is shown
by Respondent's resort to the use of replacement personnel
on May 28, at a time when the picket line had ceased, and
in the face of the manifest willingness and desire of the five
to return to work. The General Counsel notes that under
the collective-bargaining agreement, Respondent was enti-
tled to reject the referrals it had requested and that it had
both the option and the legal obligation to do so in light of
the availability of the five for immediate employment on
the project. Further, declares the General Counsel, the
hostility and retribution which assertedly accompanied
Respondent's decision is further disclosed by Respondent's
unwillingness to accept the proffered service of any of the
five in order to complete the numerical composition of the
work crew when it was disclosed that only four of the five
referrals had timely reported for duty, as requested.
The principles enunciated by the Board in Redwing have,
at this point in time, become well engrained precedential
concepts. The Board decision which in my view defines the
parameters of the legal principles applicable in the instant
matter are set out in Montana-Dakota Utilities Co., 189
NLRB 879, 882 (1971), enforcement denied 455 F.2d 1088
(C.A. 8, 1972), wherein-eight employees refused to cross a
picket line to perform their work even though the union
conducting the picketing was not their own bargaining
representative and the employer against whom the picket-
ing was directed was not their own employer.10 In Montana-
Dakota Utilities Co., supra, the Board adopted the following
observations of the trier of fact therein:
Nevertheless , as the Board held in Redwing Carriers,
Inc., 137 NLRB 1545, modifying 130 NLRB 1208,
affirmed sub nom. Teamsters, etc., Local Union No. 79 v.
N.L R.B., 325 F.2d 1011 (C.A.D.C.), such "employees
engage in protected concerted activity when they
respect a picket line established by other employees.
Such activity is literally for `mutual aid or protection,'
Montana-Dakota issue Here, unlike Montana-Dakota, Respondent has not
raised the picket line provision as a defense and the issues do not rest upon a
determination of the applicability of the clause
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as well as to assist a labor organization within the
meaning of Section 7." The Redwing decision, issued in
March 1961, has been consistently followed by the
Board, with court approval.
The Board, however, in Redwing Carriers and subse-
quent cases has also consistently held that this protected
right of the employees must be balanced against the
specific business interest of the employer and "it is only
when the employer's business need to replace the
employees is such as clearly to outweigh the employees'
right to engage in protected activity that an invasion of
the statutory right is justified" (Overnite Transportation
case , at 1274) [154 NLRB 1271]. In balancing these
opposing rights, the Board holds that the employer's
business interests are paramount and his termination or
suspension of employees isjustified where it is clear that
the employer "acted only to preserve efficient operation
of his business , and terminated the services of the
employees only so it could immediately or within a
short period thereafter replace them with others willing
to perform the scheduled work." (Redwing Carriers,
Inc., supra, at 1547.) This is not a right of the employer
to discharge, suspend, or discipline but only a right to
"run his business." (Swain and Morris Construction Co.,
168 NLRB 147, enfd. 431 F.2d 861 (C.A. 9).) [Footnote
citations deleted.]
In applying the foregoing rationale in light of the facts
herein, I conclude and find that the General Counsel failed
to establish by a preponderance of the evidence that
Respondent acted unlawfully in replacing the five strikers.
Basic to this conclusion is the finding, which I make, that
Respondent's actions must be viewed from the standpoint
of the afternoon of May 27 and not from any subsequent
time . In short, it is my view that, as it was entitled to do
under the principles of Mackey, applied in light of the
rationale adopted by the Board in Montana-Dakota, Re-
spondent reached a decision in mid-afternoon on May 27 to
obtain replacements for the strikers in order to assure the
continued efficient operation of its business, and to meet
the demands for expeditious and timely completion of its
comrrutment to Mountain States, its prime contractor It
gave practical effect to this decision by requesting the
referral of personnel willing to perform the scheduled work,
notwithstanding the presence of a Teamsters picket line.
The decision which Respondent reached for the purpose of
assuring efficient, timely, and continuing commitment to its
business obligation and work schedule was, for all intents
and purposes, fully implemented after the referral request
was submitted to the Union and when, in reliance thereon,
final paychecks were drawn for the strikers. At this point in
time, so far as the record reveals, Respondent was entitled
to. presume the proper functioning of the Union's referral
facilities and had no basis for accurately gauging the
duration of the strike or the future willingness of the five
11 In my view of this case, the burden had shifted at this point to the
General Counsel to adduce evidence revealing an absence of plausibility in
this evaluation of Respondent's agents, such as would have derived, for
instance , from evidence showing that the grievance which had given rise to
the picketing in the first instance had been resolved and that Respondent
knew of this No such testimony was adduced and the inference is required
that no resolution known to management, or readily available to it, had been
achieved or given currency prior to the morning hours of May 28
strikers to work if picketing should cease and then erupt
again.
The General Counsel makes much of the fact that
Respondent had the opportunity the following morning to
reject the journeymen referred by Local 570 and use the
services of the five alleged discriminatees. This overlooks
the reality that the replacement decision had been effectu-
ated the previous day and all that remained was the
ministerial act of presenting prepared termination slips and
final paychecks to the five. It is true that the pickets had
been removed prior to shift time on May 28, but there is no
evidence countering the credible and credited testimony of
Faccio and Bounds that even at that point in time they had
access to no information which, in their minds, would
reasonably foreclose the possible resumption of picketing
during the course of the workday on May 28.11 Indeed,
Bounds, who made the basic decision to obtain replace-
ments, did not learn until later in the day that picketing had
ceased. Thus, in the circumstances which pertained on the
morning of May 28, I find that the same business prudence
which had dictated the earlier decision mandated its
continued effectuation through the use of the journeymen
who had accepted referral with the tacit, if not explicit,
commitment to work behind the Teamsters picket line
should it appear. By adhering to its decision, Respondent
acted reasonably and in order to protect its legitimate
business interests . It is not enough, as the General Counsel
asserts, that Respondent conceded that it had no informa-
tion in its possession on May 27 when it sought referrals to
replace the five that the picketing was, in fact, going to
continue on May 28.12
This determination is not altered by the failure of
Respondent to use the services of any of the strikers to
formulate a full crew. Fivejourneymen had been requested
and Faccio acted reasonably in deciding to accept the four
who had reported and to abide the apparent late arrival of
the fifth. Faccio was an experienced journeyman himself
and knew the potentialities for less than optimum punctual-
ity of referrals in reporting to a new jobsite on the initial
day of work. As matters turned out, the fifth man did not
report, but Faccio had no basis for assuming this result
when he made arrangements to accommodate the late
arrival of the fifth man. Moreover, the circumstances
implicit in the use of the five alleged discriminatees -
picketing at this point in time being a distinct possibility -
more than offset the marginal advantage to accrue to
Respondent from the use of craftsmen fully conversant with
the tasks to be performed. It is to be remembered that the
referrals were journeymen electricians and the work to be
done was fully within their competence and range of skills.
As events emerged, by the afternoon of May 28 it was
entirely consistent with Respondent's avowed, and, I find,
genuine concern for the efficient manning of the job, for
Bounds and Faccio, both experienced craftsmen with
former IBEW affiliations, to assume that the regularity of
12 Again, this was not a case wherein an employer reaches a decision
affecting the tenure of employees and adheres to it despite changed
circumstances which render the decision clearly unreasonable or inherently
discriminatory Nor is there any warrant here for the application of the
principle of N LR B v Burnup and Sims, Inc, 379 U S 21 (1964), and
Standard Oil ofCaliiornia, 91 NLRB 783 (1950)
NEWBERY ENERGY CORPORATION
the referral process would work to assure the availability of
a full -crew on Friday, May 29. In retrospect, this did not
occur but George, the business manager of Local 570,
offered a credible explanation fully dispelling any sugges-
tion of an absence on Respondent's part of either a genuine
interest in or need for maintaining a full, efficient crew.
In sum, I find that in replacing the five discriminatees
with journeymen referred by the Union, Respondent acted
reasonably and solely with the objective of preserving the
efficient and continuous operation of its business. I find,
contrary to the General Counsel, that the Redwing defense,
as applied in a common work situs situation, is applicable
under the rationale of the Board in Montana-Dakota supra.
Additionally, I find that, acting within the permissible
parameters of Mackey, Respondent timely replaced the
strikers and did so without discriminatory motivation. Cf.
BMW AutoZentrum, 219 NLRB 98 (1975); Pacific Grinding
Wheel Co., Inc., 216 NLRB 529 (1975). I further find that
any "choice" or "opportunity" Respondent may have had
on May 28 to modify its replacement decision was a bogus
choice for Respondent had - no reliable information by
which to gauge the likelihood of a recurrence of the strike
445
which had caused the five to absent themselves from work
at the mine; and timely completion of the work tasks at
hand was a matter of business necessity.13 On this basis,
and for the reasons stated, I shall dismiss the complaint.
Upon the foregoing findings, of fact, and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Construction, Building Materials & Miscellaneous
Drivers, Local No. 83, an affiliate of International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, and International Brotherhood of Electri-
cal Workers, Local 570, are labor organizations within the
meaning of Section 2(5) of the Act.
3. Respondent engaged in no unlawful conduct as
alleged in the complaint and notice of hearing herein.
[Recommended Order for dismissal omitted from publi-
cation.]
13 An insight into the seriousness with which Montana States viewed the
matter is garnered from its May 27 admonition to Bounds to take action
necessary to man the project.