The Cooper Thermometer Co.

National Labor Relations Board - Board Decisions

Aug 16, 1965

154 N.L.R.B. 502 (N.L.R.B. 1965)

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Cooper Thermometer Company and Mary L. Kraucalis. Case
No. 1-CA-/630. August 16,1965
DECISION AND ORDER
On December 18, 1964, Trial Examiner Horace A. Ruckel issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the exceptions and briefs, and
hereby adopts the findings,' conclusions, and recommendations of
the Trial Examiner, only to the extent that they are consistent with
the Decision herein.
Respondent's Pequabuck, Connecticut, operation consists of a
plant employing about 80 production and maintenance employees
and of offices across the street from the plant where. 6 clerical em-
ployees work. Mary Kraucalis had been employed as a clerical
employee since 1958. The Union, which represented the plant, but
not the clerical employees, called an economic strike on April 22,
1964, and the striking production and maintenance employees estab-
lished a picket line at the plant's entrance. On April 23, Respondent
instructed several clerical employees, Kraucalis among them, to cross
the strikers' picket line and perform certain production work in the
plant which, but for the strike, would be performed by production
workers. Employee Kraucalis, although willing to continue her
clerical duties, refused to cross the picket line to do the production
work. She was immediately discharged. Respondent did not hire
a replacement for Kraucalis until after the strike had ended.
The Trial Examiner found that Kraucalis' refusal to cross the
picket line to perform production work had not been an absolute one
and that she had merely refused to be one of the first to cross. He
also found that Kraucalis was not motivated by sympathy with the
1 The Trial Examiner found that the strike lasted about 2 weeks The record shows
the duration of the strike to have been about 3i/ weeks.
154 NLRB No. 37.
THE COOPER THERMOMETER COMPANY 503
Union; that her refusal to be among the first to cross the picket line
had constituted, in effect, an attempt to set her own terms and condi-
tions of employment; and that Respondent, in discharging her, had
not been motivated by opposition to its employees' union affiliation
or sympathies, but solely by a desire to carry on its business during
the strike. The Trial Examiner concluded that Kraucalis' discharge
did not violate either Section 8(a) (3) or 8(a) (1) of the Act.
We agree with the Trial Examiner that Respondent's discharge of
Kraucalis was not ,motivated by antiunion considerations and,
accordingly, leave undisturbed his finding that the discharge was
not violative of Section 8(a) (3).2 We find, however, contrary to
the Trial Examiner, that Respondent's conduct did violate Section
8 (a) (1) of the Act.
The law is settled that an employee's refusal to cross a, picket line
to perform work is an exercise of Section 7 rights 3 and, of course,
Section 8(a) (1) ordinarily protects employees exercising such rights
against employer retaliation. The Trial Examiner, although not
disputing this principle, was apparently of the view that Kraucalis
was not exercising her protected right to refuse to do work behind
the picket line. He stresses that Kraucalis merely refused to cross
the picket line when Respondent wanted her to rather than flatly re-
fusing to cross, and states that this position was not taken out of
sympathy with the strikers. From this he concludes that she "sought
to dictate the terms of her employment."
The Trial Examiner's view that Kraucalis was not engaged in
protected activity in refusing to cross the picket line to perform the
work of striking fellow employees derives, it is apparent, from por-
tions of Kraucalis' testimony where she stated that "I have no feel-
ings with them" and that "I don't know what the ends or motives
were of the UEW. I wasn't familiar with them," together with other
portions of her testimony disclosing that she did not interpose an
absolute objection to doing the production work, but that "I didn't
feel that I would want to be one of the first to go." These extracts,
2In the 8(a) (1) posture in which we view this case, we consider wholly irrelevant the
Trial Examiner's finding with regard to the absence of antiunion motivation. If an em-
ployee is discharged for conduct arising out of a protected activity, Section 8(a)(1)
may be violated regardless of the employer's good or bad faith. "Defeat of those [Sec-
tion 7] rights by employer action does not necessarily depend on the existence of an
antiunion bias." N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21, 23.
3 Redwing Carriers, Inc and Rockana Carriers, Inc., 137 NLRB 1545, enfd. eub nom.
Teamsters, Chauffeurs and Helpers Local Union No. 79, International Brotherhood of
Teamsters, etc. v. N.L.R B., 325 F. 2d 1011 (CA.D C ), cert. denied 377 U S. 905. Accord:
Truck Drivers Union Local No. 413, International Brotherhood of Teamsters, etc, et al.
(Patton Warehouse, Inc. and Brown Transport Corp ) v. N L.R B., 334 F. 2d 539, 542-
543 (C.A.D.C) , N.L R B. v. Rockaway News Supply Company, Inc., 197 F. 2d 111, 113
(C.A. 2), affd. 345 U.S. 71.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, do not reflect her testimony as a whole on this subject. In
response to the question, "Why did you refuse to go over across the
street?" she answered :
Well, for one thing, I felt that my being one of the first and
going alone, there was a sort of danger involved. With a group,
it would have been a little more protective. And another thing,
I felt I was hired for the office and I was forced to go over and
be a strikebreaker-one of the first-which I thought was dan-
gerous for me too. [Emphasis supplied.]
And on cross-examination, in response to the question, "You had no
sympathy [with the pickets] one way or another?" her answer was,
"I knew if I went across the street, I would be taking jobs away
from them."
From the whole of Kraucalis' testimony, it is apparent, and we
find, that, although she may well have lacked information concern-
ing, and hence sympathy with, the purposes and objectives of the
striking employees, her refusal to comply with the Respondent's
demand upon her to cross the picket line to perform struck work
nevertheless took into account the objective implications of such
compliance; i.e., that for her to do the strikers' work would be inim-
ical to the interests of the strikers. The whole of Kraucalis' testi-
mony, we believe, supports the finding that she refused to obey the
Respondent's instruction, at the time and in the manner in which it
was made, because of reluctance to perform an act that would have
the obvious effect of frustrating to some extent the strikers' economic
action. Moreover, the focal point of inquiry in determining whether
Kraucalis' refusal to cross the picket line to perform production
work was a protected activity must of course be the nature of the
activity itself rather than the employee's motives for engaging in
the activity. And Kraucalis' conduct was not ambiguous : she de-
clined to cross the picket line established by fellow employees to do
their work. Employees' habitual unwillingness to cross the picket
lines 4 is a basic form of protected activity, and the guarantees of
Section 7 certainly are no less applicable where the work to be done
behind the line is not the objecting employee's usual work but that
of a striker. Kraucalis' refusal to cross the picket line to perform a
striker's work constituted, in our view, assistance to a labor orga-
nization and was "in a broad, but very real sense directed to mutual
aid or protection." 5 Her refusal to cross the picket line was there-
fore activity protected by Section 7 of the Act.
4N.LR.B . v. Rockaway News Supply Company, Inc, 197 F. 2d 111, 113 ( C.A 2), deny-
ing enforcement to 95 NLRB 336, affd. 345 U S. 71.
5 Ibid.
THE COOPER THERMOMETER COMPANY 505
Nor does Kraucalis' failure to interpose an absolute objection to
doing production work dictate a different conclusion. Her reluc-
tance to bear the opprobrium of being the first to cross the picket
line-action which might expectably produce a snowballing effect
upon other office employees who might similarly be unwilling to
serve in effect as strikebreakers-tends to support rather than destroy
the finding that she was engaged in protected activity within the
compass of Section 7. In any event, the specific refusal for which
Kraucalis was immediately discharged must be assessed in the light
of whether she had a protected right to refuse to cross the picket
line at the paDticular time she did. Her indication of possible will
ingness to perform strike work at a later time, or under different
conditions, reflects on the depth of her resolve to refrain from con-
duct inimical to the strikers, but not on the protected character of
her conduct. It does not alter the fact that her refusal at that par-
ticular time to cross the picket line to perform struck work consti-
tuted a protected activity under Section 7.8
We recognize, as we have in earlier cases, that Kraucalis' right
to engage in sympathetic activity must be balanced against the Re-
spondent's right to continue to run its business despite such activity..
In the context of the instant case, however, we have no hesitation in
concluding that the Respondent had no overriding business interest
that would justify removing from Kraucalis the normal protection
against discharge which the statute affords employees exercising
their Section 7 rights. The situation we have here far more compels
that conclusion than that present in previous "picket line" cases
where the Board has been confronted with the same question.
Previous cases' have most often involved a situation where an
employee, usually a driver, decides to "refuse to obey the employer's
orders to perform that part of his regular daily duties which involve
his crossing the picket line of another union than his own at another
plant than that of his employer." [Emphasis supplied.] 8 In such
a situation, the employee interest in the primary labor disputes is
clearly less than in one, where, as here, the same employer and fellow
employees are involved and where the possibility is more proximate
that improved conditions for the production employees might lead to
'The Trial Examiner's finding that Kraucalis "sought to dictate the terms of her em-
ployment" resolves nothing in itself. It simply reflects the Trial Examiner 's conclusion,
with which we disagree , that Kraucalis ' noncompliance with the Respondent's instruc-
tion was unprotected and hence an act of unjustifiable insubordination . The fact that
the Respondent in good faith may have viewed Kraucalis ' refusal to perform the pro-
duction work assigned to her as an act of insubordination is not, of course , determinative
of the issue here. Eustace de Cordova, at at., Co -partners doing business as Cyril de
Cordova & Bro., 91 NLRB 1121, 1135.
7 See, a g., Redwing Carriers , Inc. and Rockana Carriers, Inc., supra ; L. G. Everist,
Inc., 142 NLRB 193, enforcement denied 334 F. 2d 312 (C.A. 8).
81N.L.R.B. v. Rockaway News Supply Company, Inc ., supra, at 113.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- a reciprocal effect on the office employees' own conditions.9 In such
a situation, moreover, the employer interest to be considered may
well be a substantial one. For a driver's refusal to cross a picket
line of another employer to perform in full the specific duties for
which he has been hired may actually prevent the driver's employer
from engaging in his normal operations. Thus, in previous cases
where it has appeared that a retention of the employee engaging in
sympathetic activity might be incompatible with uninterrupted
normal operations, the Board has recognized that the employee's
protected right must be accommodated to the legitimate employer
interest involved, and has held that the employer may lawfully dis-
charge the employee who refuses to cross a picket line if the dis-
charge is effected for the purpose of replacing him with another who
will."'
This case is basically unlike the previously decided cases adverted
to above. Here, Kraucalis at no time refused to perform any part
of the "regular daily [clerical] duties" for which she had been em-
ployed. The Respondent's normal operations were interrupted not
because of anything Kraucalis did or did not do, but solely because
of the strike of the production workers. The Respondent had no
need to replace Kraucalis, an office employee, to enable it to resume
normal operations; its need was to replace the production employees
who were on strike." In these circumstances, there clearly can be
no basis for finding that the Respondent was justified by legitimate
business considerations of an overriding nature in discharging
Kraucalis, or in replacing her as an office employee (as it did after
the strike), because she refused to comply with the Respondent's
instruction to cross the picket line to serve as a replacement for a
striking fellow employee.
We do not mean to intimate by what has been said above that the
Respondent was obliged to retain Kraucalis in a pay status notwith-
standing her refusal to perform the production work it chose to
assign to her. If in the circumstances the Respondent did not wish to
continue Kraucalis during the period of the strike in an exclusively
clerical position, or to lay her off if the strike temporarily elimi-
nated the need for her clerical services, it was free to treat her as
a striker-a status which in legal effect, we find, she, herself, assumed
0 Cf. N.L.R .B. v. Peter Caroller Kohler Swiss Chocolates Company, Inc, 130 F. 2d 503,
505 (C.A 2).
io Redwing Carriers , Inc and Rockana Carriers , Inc., supra.
n The Supreme Court has indicated that in determining whether a discharge is neces-
sary to continue normal business operations, it is significant whether or not the dis-
charged employee is "replaced either by a new employee or by a transfer of duties to
some nonobjecting employee . . . .. N.L.R B. v. Rockaway News Supply Company, Inc.,
345 U.S. 71 , 75. In the instant case it is clear that Kraucalls ' discharge was not
effected in order to replace her with an employee who would be willing to do the struck
work. Indeed, the record shows that Kraucalis was not replaced until after the strike.
THE COOPER THERMOMETER COMPANY 507
when she refused to comply with the Respondent's instruction to
cross the picket line to do strikers' work.12 But the Respondent could
not, we hold, punish her for exercising her statutory rights by per-
manently severing her employment 13
Accordingly, we find that by discharging Kraucalis on April 21",
1964, Respondent violated Section 8(a) (1) of the Act.14
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
2. Local 233, International Union of Electrical, Radio and
Machine Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Mary L. Kraucalis, because she assisted the
Union and engaged in employee activities for mutual aid and pro-
tection, Respondent has interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in Section 7 of
the Act and has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in and is engag-
ing in certain unfair labor practices affecting commerce, we shall
recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the purposes of the Act.
19 Kraucalis ' failure to express herself in terms of going on strike is not determinative,
for, as the courts have held, with Board concurrence , the technical terms used by parties
are not to override the reality of the relationship created in fact by the employees' con-
duct. See, e g., N.L.R.B. v. Rockaway News Supply Company, Inc ., supra, 197 F. 2d at
113, and 345 U.S. at 75; Redwing Carriers, Inc. and Rockana Carriers , Inc., supra.
13 Pinaud, Incorporated, 51 NLRB 235.
14 The Trial Examiner did not resolve a conflict between the testimony of Kraucalis and
that of Respondent Secretary -Treasurer Jackson as to whether , after some of Kraucalis'
fellow office employees had gone into the plant , Kraucalis then offered to cross the picket
line and enter the plant to perform production work . Kraucalis testified that she made
such an offer , while Jackson testified that Kraucalis sought merely to remain at her
clerical work. We find it unnecessary to resolve the conflict. In either event, the dis-
charge was unjustified when made , and whether there was an unjustified refusal to
reinstate Kraucalis when she made an unconditional offer to return to work within min-
utes of her discharge would not add to the violation found In the special circumstances
of this case-bearing particularly in mind that ( 1) Respondent by its discharge action
made it plain that it would be futile for Kraucalis to apply for reinstatement at the end
of the strike , and (2 ) Kraucalis ' strike activity did not relate to her regular clerical
duties-we further find that Kraucalis was not required to apply for reinstatement
following the end of the strike to preserve her employee status as an office employee, and
that Respondent was obliged to offer her reinstatement as an office employee once it
again required her services exclusively in that capacity.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Respondent violated Section 8(a) (1) of the
Act by discharging Mary L. Kraucalis on April 23, 1964, we shall
order that Respondent offer her immediate and full reinstatement
to her former or substantially equivalent position, without prejudice
to her seniority or other rights and privileges, and make her whole
for any loss of earninges she may have suffered as a result of afore-
said unfair labor practice, by payment to her of a sum of money
equal to that which she normally would have earned from the date
of her discharge to the date of Respondent's offer of reinstatement,
less her net earnings during such period,15 with interest thereon to
be computed in the manner prescribed by the Board in F. W. 1 Vool-
worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.18
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, The Cooper Thermometer Company, Waterbury, Con-
necticut, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interfering with, restraining, or coercing employees in the
exercise of their right to assist labor organizations or engage in con-
certed activities for their mutual aid and protection by discriminat-
ing in regard to their hire, tenure of employment, or any term or
condition of employment.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Mary L. Kraucalis immediate and full reinstate-
ment to her former or substantially equivalent position, without preju-
dice to her seniority or other rights and privileges.
15 No backpay shall be computed , however, for the period during the strike, or any
portion thereof , when Respondent did not require Kraucalis ' full-time services exclusively
as an office clerical employee.
36 The record indicates that the Respondent may have made ^a valid unconditional offer
of reinstatement effective August 26, 1964, and that Kraucalis refused because it did not
include an offer of backpay . If, upon further proceedings , it is determined that such
an offer was made, Respondent 's backpay liability will ( subject to the qualification in
footnote 15 above) be limited to the period from April 23, 1964, the date of Kraucalis'
discriminatory discharge , to August 26, 1964, the date on which the Respondent offered
her reinstatement , and from the date 5 days after the date of this Order to the date on
which the Respondent offers her reinstatement pursuant thereto. Cf. National Screen
Products Co., 147 NLRB 746.
THE COOPER THERMOMETER COMPANY 509
(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of her right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
(c) Make Mary L. Kraucahs whole for any loss of pay she may
have suffered as a result of her unlawful discharge, in the manner
set forth in the section of this Decision and Order entitled "The
Remedy."
(d) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its plant, in Middlefield, Connecticut, copies of the
attached notice marked "Appendix." 17 Copies of said notice, to be
furnished by the Regional Director for Region 1, shall, after being
duly signed by the Company's representative, be posted by the Com-
pany immediately upon receipt thereof, and be maintained by it for
60 consecutive clays thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Company to insure that said notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 1, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
17 In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and Order" the
words "a Decree of the United States Court of Appeals , Enforcing an Order".
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discharge any of our employees or otherwise dis-
criminate in regard to their hire, tenure of employment, or any
term or condition of employment because they have assisted any
labor organization or engaged in concerted activities for mutual
aid or protection.
WE WILL NOT in any like or related manner interfere with, re-
strailn, or coerce employees in the exercise of their rights guar-
antee by Section 7 of the Act.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AVE WILL offer Mary L. Kraucalis immediate and full reinstate-
ment to her former or substantially equivalent position , without
prejudice to her seniority or other rights and privileges.
AVE WILL make Mary L. Kraucalis whole for any loss of pay she
may have suffered as a result of the discrimination against her.
THE COOPER THERMOMETER COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-SVe will notify the above-named employee if presently
serving in the Armed Forces of the United States of her right to
full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional
Office, Boston Five Cents Savings Bank Building, 24 School Street,
Boston, Massachusetts, Telephone No. 523-8100, if they have any
questions concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on June 5, 1964, by Mary Kraucalis, an individual, the
General Counsel for the National Labor Relations Board , herein called the General
Counsel and the Board, by the Regional Director for Region 1 (Boston, Massachu-
setts ), issued a complaint dated August 20, 1964, against The Cooper Thermometer
Company, herein called Respondent , alleging that Respondent had engaged in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act, by
discharging Kraucalis on April 22, 1964, for refusing to cross a picket line and per-
forming the work of strikers . Respondent filed an answer denying that it had
engaged in any unfair labor practices.
Upon the record as a whole, and from observations of the witnesses , Trial Ex-
aminer Horace A. Ruckel makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Connecticut corporation , having its principal office and place of
business in Pequabuck , Connecticut , where it is engaged in the manufacture, sale,
and distribution of thermometers and related products . During the 12 months
prior to the issuance of the complaint , Respondent , in the course of its business
operations, manufactured , sold , and distributed at said plant products valued in
THE COOPER THERMOMETER COMPANY 511
excess of $50,000, of which products valued in excess of $50,000 were shipped
from said plant directly to States of the United States other than the State of
Connecticut.
H. THE LABOR ORGANIZATION INVOLVED
Local 233, International Union of Electrical, Radio and Machine Workers,
AFL-CIO, hereinafter called the Union, is a labor organization admitting employ-
ees of Respondent to membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent 's production and maintenance employees, approximately 80 in num-
ber, are represented by the Union. On April 22, 1964, the Union went on an
economic strike and established a picket line at Respondent's plant. Kraucalis had
been employed since 1958 as an office clerical employee. She was not within the
unit represented by the Union nor a member of the Union. The office is directly
across the street from the building in which most of the production work is done.
On the day before the strike R. Everett Jackson, secretary-treasurer of Re-
spondent in charge of office operations and personnel matters, convened a meet-
ing of the office employees, told them that a strike would take place the next day,
that there would be a picket line, that they would be expected to perform some
production work during the strike, and that Respondent would provide them with
transportation. On the following day, Kraucalis was driven to work by another
employee, and after work she was driven home by her husband. She testified
that she was not threatened or called names by anyone on the picket line, and
there is an entire absence in the record of any coercion, or any illegal or improper
conduct by the strikers.
On the following morning, April 23, Kraucalis reported for work again without
incident. Later in the morning Jackson told her that he was going outside to
"pay the payroll" to the pickets and that when he returned he was going to take
her and two other office workers across the street to help with certain special
orders which had to be filled. Kraucalis replied, according to her own testimony,
that she did not want to be one of the first ones to go but that if the other clericals
were going she would go too.' Jackson replied that the six available office girls
were going in two groups, and that she would be in the first group. His further
credited account is that when Kraucalis insisted that she be among the last to -go,
she added that it seemed to her that she "always came first in everything, or, last
where I should be first." While testifying she gave as the reason for her insistence
that "there was a sort of danger involved," and that with a group it would-be "a
little more protective," although she at no time maintained that Jackson asked her
to go alone.
Jackson told her to think it over. After he had paid the pickets, about 75 in
number, thus automatically reducing the picket line to about 15 employees, he
returned to the office and announced that he was ready to take Kraucalis and 1
other clerical worker across the street.2 Kraucalis, according to Jackson, repeated
her insistence that she be among the last to go. Jackson then told her, "If you
insist that you are going to be the last and I insist you are going to be with the
first half, we might as well call it quits." Kraucalis then asked for a discharge slip.
After Jackson had returned from accompanying two other employees across the
street Jackson gave her a slip stating that she was discharged for refusing to do
work assigned her. When Jackson handed it to her she said, according to her
own account, that she would go across the street. Jackson's account is that she
asked if she could stay and perform her usual work to which he answered that
1 Kraucalis ' testimony on this point was as follows:
Q. What did you say?
A. I said I was sorry I didn't feel I wanted to be one of the first to go. I feel
that if the other clerical employees were going , I would be able to go . He said be
would have to take them over one by one , or words to that effect-that they would
all be going over eventually . I said I was sorry, I didn ' t feel that I would want
to be one of the first ones to go. He said you refuse to go? I said , "Yes, . .
2 One of the first scheduled group of three had already gone across on her own.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she could not because he did not know how long the strike would last 3 and while
it lasted there would be no office work . Kraucalis accepted the discharge slip and
left the plant.
Conclusions
The General Counsel contends the discharge of Kraucalis was violative of the
Act in that her refusal to cross the picket line was protected concerted activity,
citing among other cases Cone Brothers Contracting Company, 135 NLRB 108,
and Redwing Carriers , Inc. and Rockana Carriers , Inc, 137 NLRB 1545. I dis-
agree. In the Cone case the Board found that the employer engaged in a scheme
of placing three employees in the position of either crossing the picket line or being
placed on a "quit" status, and when they in fact refused to cross the picket line
they were discharged for the purpose of discouraging union membership. In the
case at bar there was no such purpose . There is not a scintilla of evidence in the
record that Respondent was opposed to the union affiliation or sympathies of any
of its employees . In fact, Kraucalis had no such sympathy . She testified when
asked if she had been requested by the union employees not to cross the picket
line, that she had "no feelings with them ," and did not know what were the.ends
or motives of the Union . There is, moreover , no contention that Respondent re-
quired Kraucalis to cross the picket line in the belief or hope that this would force
her quitting or place her in line for discharge . She was asked to do nothing that
the other five or six clerical workers were not asked to do. It is clear that Respond-
ent required this work from them so that it could carry on its business , and for
no other purpose . Crossing the street involved no danger to Kraucalis and the
fear which she implied that she had was without foundation . It should be empha-
sized that Kraucahs at no time refused to cross the picket line because of any
feeling of identity with the strikers , or because of any fear of violence or threats
of violence , or for any other reason. On the contrary , she expressed to Jackson
her willingness to do so and to do production work. She sought only to schedule
her own time for it instead of the time scheduled for her by her employer.
Nor do I find the Redwing decision helpful to the General Counsel . There, the
Board held that "insofar as Respondent may actually have discharged eight truck-
drivers for refusing to cross a picket line, it did so for the purpose of continuing
its business operations ." The Board specifically recognized this right , as it had
in previous cases, saying that the employer had a right to attempt to run its busi-
ness "despite the sympathetic activities of the drivers here involved ," and all the
more so, one would think, where , as here, no "sympathetic" activities took place.
I do not find it determinative that in the case at bar , unlike in the Redwing case,
Respondent did not hire a replacement for Kraucalis . As I view it , there is no
requirement that the employer hire a replacement if, after the termination, it is
found not to be necessary . The basic question is whether the discharge is for
legitimate business reasons or in reprisal against the Union.
It is clear from this record that Respondent sought no reprisal against the
Union as to which it entertained no hostility , so far as the record reveals. Krau-
calis, by attempting to pick and choose the time and the order of her crossing the
picket line rather than complying with Respondent 's schedule which placed her in
the first group, sought to dictate the terms of her employment . Her insistence that
she be among the last to cross the picket line rather than the first does not con-
stitute collective activity with the strikers , with whom or with whose interests she
did not identify herself. Her discharge by Respondent was not violative of the Act.
CONCLUSIONS OF LAW
1. The operations of Respondent occur in commerce within the meaning of
Section 2 ( 6) and ( 7) of the Act.
2. Local 233 , International Union of Electrical , Radio and Machine Workers,
AFL-CIO , is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent has not committed unfair labor practices within the meaning of
Section 8 (a) (1) and ( 3) of the Act.
RECOMMENDED ORDER
IT IS ORDERED that the complaint herein be, and it hereby is, dismissed.
8 The strike lasted about 2 weeks