Thurston Motor Lines, Inc.

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thurston Motor Lines, Inc. and Teamsters Freight Local 480, Affiliated With International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Cases 26-CA-2353 and 26-CA-2353-2. July 27, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On January 9, 1967, Trial Examiner Harold X. Summers issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, General Counsel and Respondent filed exceptions to the Trial Ex- aminer's Decision and supporting briefs. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modifications: We agree with the Trial Examiner that Respond- ent's discharge of employee Jackson was lawful, and that of employee Cripps was unlawful. The deliveries to the strike-bound Greer Stop Nut Company required the services of only one driver. In order to make a scheduled delivery, Respondent had the right to replace driver Jackson when he refused to cross the picket line at the Greer plant.' But in this case Respondent claims the right to replace not only Jackson, but a second driver, Cripps, who had indicated an unwillingness to sub- stitute for Jackson. Although an employer may replace employees who are engaging in a protected concerted activity, e.g., a lawful strike, the em- ployer's right to replace is no greater than its proven need to carry on its business.2 It is not a punitive right. In the present case , Respondent required the ser- vices of only a single driver to make the delivery of Greer's merchandise . It did not discharge Cripps until after the Greer delivery had been made by a supervisor substituting for Jackson. At the time of the discharge of Cripps, therefore , there was no need to hire a replacement for him to make a delivery which had already been made by Jackson's substitute. Moreover , Respondent knew that Cripps was a strong union adherent and thus would be a poor replacement choice for crossing the picket line of a sister labor organization.' Under these cir- cumstances , we find that the discharge of Cripps was not justified and violated Section 8 (a)(1) of the Act. CONCLUSIONS OF LAW Delete the third numbered paragraph of the Trial Examiner's Conclusions of Law and substitute therefor: "3. By terminating the employment of James Cripps on March 4, 1966, because he failed and refused to accept assignment as a substitute for the regular driver involving the crossing of a picket line at a location deliveries to or shipments from which were not necessary at the time of his termination, Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) thereof." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent Thurston Motor Lines, Inc., Nashville, Tennessee, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as herein modified. 1. Delete paragraph 1(a) of the Trial Examiner's Recommended Order and substitute therefor: "(a) Terminating the employment of any em- ployee for failing or refusing to accept assignment as a substitute for a regular driver involving the crossing of a picket line at a location deliveries to or shipments from which are not then necessary to the normal operation of the Respondent's business." 2. In paragraph 1(b) of the Trial Examiner's Recommended Order delete the words beginning with "except to the" and ending with "of the Act," and change the ending to a period. I Redwing Carriers, Inc , 137 NLRB 1545, enfd sub nom , Teamsters Local 79 v NLRB, 325 F 2d 1011 (C A DC), cert denied 377 U S 905 Y Ibed S Indeed, the membership of Local 327 of the Teamsters , the union striking at Greer, included Respondent 's employees until Local 480, Cripps' union, was chartered on January 12, 1966, to assume jurisdiction over area freight operations 166 NLRB No. 101 THURSTON MOTOR LINES, INC. 863 3. Delete the first indented paragraph of the Ap- pendix and substitute therefor: "WE WILL NOT discharge any employee for failing or refusing to accept assignment as a substitute for a regular driver involving crossing of a picket line at a location deliveries to or shipments from which are not necessary to the normal operation of our business." 4. In second indented paragraph of the Appen- dix delete the words in parenthesis. TRIAL EXAMINER' S DECISION HAROLD X. SUMMERS, Trial Examiner: This case was heard upon the consolidated complaint' of the General Counsel of the National Labor Relations Board, herein called the Board, alleging that Thurston Motor Lines, Inc., herein called Respondent, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Respondent's answer to the complaint admitted some of its allegations and denied others; in ef- fect, it denied the commission of any unfair labor prac- tices. Pursuant to notice , a hearing was held before me at Nashville, Tennessee, on August 17, 1966. All parties were afforded full opportunity to examine and cross-ex- amine witnesses , to argue orally , and thereafter to submit briefs. Upon the entire record of the case, including my evaluation of the reliability of the witnesses based upon the evidence and my observation of their deameanor, I make the following: FINDINGS OF FACT 1. COMMERCE Respondent , at all times material herein , is and has been a North Carolina corporation engaged in the busi- ness of the interstate transportation of motor freight. In the course and conduct of its business operations during the 12 months immediately preceding the issuance of the instant complaint, Respondent received gross revenues in excess of $1 million for the motor transportation of freight between the States of North Carolina, South Carolina, Virginia, and Tennessee. Respondent is an employer engaged in commerce within the meaning of the Act. II. THE UNION III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and the Issues Respondent operates an interstate transport system within and between North Carolina, South Carolina, Vir- ginia, and Tennessee . In its operations , it maintains 28 terminals throughout this area, one of which is located at Nashville, Tennessee. In a prior Board decision,2 issued on June 24, 1966, Respondent was ordered to reinstate seven discharged employees and to bargain with a predecessor of Local 480 3 with respect to the working conditions of all truck- drivers and warehousemen employed by Respondent at the Nashville terminal. Respondent here contends, and the General Counsel does not deny, that it has complied with the Board Order in that case. On March 4, 1966, the employment of Charles B. Jackson and James E. Cripps was terminated by Re- spondent. The General Counsel contends that the Respondent "discharged" the two (1) because they engaged in the protected concerted activity of refusing to cross a picket line, and/or (2) because they had engaged in union activities. Respondent, on the other hand, defends the terminations-which it labels "replace- ments"-on the ground that they were necessitated by Respondent's obligations to make deliveries. dictated both by a Government agency and by normal business considerations. B. The Circumstances of the Terminations On March 3, 1966, Greer Stop Nut Company of Smyr- na, Tennessee , was in the throes of a labor dispute with Local 327. On this date, and since February 14, Local 327 was maintaining and had maintained a picket line at the Greer Stop Nut plant. On or about February 14, 15, and 16, there were acts of force and violence , in the form of the threat of infliction and the actual infliction of per- sonal harm and bodily damage and of blocking plant in- gress and egress, which acts were attributed to Local 327.4 On February 15, Local 327 and its agents were ju- dicially enjoined from engaging in any acts of force and violence, and, thereafter , until the picketing ended on April 23,$ the conduct at the picket line was covered by this injunction. On or about February 11, 1966, a load of steel bars was received at the Nashville Terminal, consigned to Greer Stop Nut. (Having been received at Respondent's Charlotte, North Carolina, terminal, it had been re- shipped to Nashville for delivery.) Nine days later, a second shipment for Greer- a tube bender- was also received. This merchandise was loaded aboard the pickup truck scheduled for delivery February 21. The driver regularly assigned to the truck run covering The charging party, Teamsters Freight Local 480, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Local 480 , is a labor organization within the meaning of the Act. ' The consolidated complaint was issued May 4 , 1966. The charge in- itiating the proceeding was filed on March 15, 1966. 2 159 NLRB 1265. 3 Another local of the same International with which Respondent is af- filiated, herein called Local 327. Late in 1965, the International took steps to reorganize Local 327, and a new local , Local 480, was created for the purpose of taking over the "freight operations " in the area while Local 327 retained the "industrial or miscellaneous" operations. Local 480 was chartered on January 12, 1966. 4 See Teamsters, etc., Local Union No. 327 (Greer Stop Nut), 160 NLRB 1919 5 This fact is elicited from the Trial Examiner's Decision in yet another related case, 26-CA-2368 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smyrna, Tennessee-the so-called Murfreesboro run-was Charles Jackson. As he prepared to take his truck out on the morning of February 21, he noted that his bills called for a delivery at Greer Stop Nut, which he knew to be behind a picket line. Since the freight involved was near the bottom of the truck load, however, he neither said nor did anything about it. Pursuant to his schedule, he reached Greer Stop Nut in the afternoon, noted that a picket line was still there, and went on. Arriv- ing back at the terminal, he told Carl Mailer, assistant ter- minal managers that Greer was on strike and that the freight destined for Greer would have to be "pulled off me." Marler said , "Okay," and Jackson went home. The freight thereupon was stored in the warehouse. Between February 21 and March 3, Jackson had at least two conversations about Greer's stored merchan- dise with J.C. White, the terminal manager.7 In the course of one or another of these conversations, White made Jackson aware that several unsuccessful efforts had been made to "solve the problem": Greer had been asked, and had refused, to pick up the goods at the terminal; and another common carrier serving Smyrna had rejected Respondent's attempt to subcontract the delivery. In none of these conversations was Jackson directed or asked to make delivery to Greer. A third shipment addressed to Greer-six cartons of plastic stripping-reached the Nashville terminal on or about March 1. During the morning of March 3, Manager White received instructions from Respondent's home office at Charlotte to see that Greer's freight was delivered. He conveyed this information to Jackson when the latter, that morning, came into the dispatcher's office to make a telephone call before going out on his first trip. Among other things, White informed Jackson that the Interstate Commerce Commission had called Charlotte and had directed that the Greer delivery be made that morning, and he said that Jackson would have to make it. Jackson pleaded fear of violence, in response to which, I find, White pointed to the injunction which was in effect." Thereupon, Jackson made his telephone call and went out onto the dock. Shortly, White summoned Jackson and outlined a plan which, he said, would be "off the record." He proposed that Jackson take out the Greer shipment, accompanied by Donald (Ken) Richey, Respondent salesman; he (White) would not so instruct Richey, but it would be "up to Jackson" to convince Richey to take the truck across the picket line. Jackson agreed to this procedure. How- ever, the scheme was abandoned shortly: when Jackson mentioned the plan to Richey, Richey balked at taking over this part of Jackson's work, and when he complained to White, the latter called off the plan.9 He said he would report to Charlotte about Jackson's fear of crossing the picket line; meanwhile , he instructed, Jackson should make his earlier run (not covering Smyrna) While Jackson was away, Mike Walters, warehouse foreman,10 approached James Cripps, a-city driver" who was working on the platform that morning, and told him 6 And, 1 find, a supervisor for Respondent Also a supervisor " White did not testify (At the time of the hearing he was no longer em- ployed by Respondent) In this conversation, I credit Jackson's uncon- tradicted testimony to the extent that it does not strain my credulity In response to questions, Jackson testified that he did not remember if White mentioned the injunction, as noted, I am convinced, from the plausibility that White wanted him to take Jackson's Murfreesboro run. Cripps asked why-was Jackson sick? Walters ex- plained that there was a load for Greer Stop Nut which Jackson would not take. Thereupon, Cripps said that he would not refuse to take the run but that, because of fear, he would not cross the picket line. "A man could get hurt," he said. Walters went into the office, and Cripps resumed his dockwork. Not long thereafter, he was given an interchange (within-city) trip with instructions to call in at every stop. Jackson returned from his early run at or about midday, at which time he was called into the terminal office. Once again, he was asked if he would cross the line; once again, he said he was scared to do so. He asked whether, nevertheless, he would be permitted to take his regular run. No, he was told, there was no use in his going out. He said he felt obligated to take the run and, he said further, he would drive up to the Greer line. Suddenly, White took up this offer; he said that Jackson should take out the load and that someone would follow them, then drive the truck across the line. Jackson, accompanied by Ken Richey, took his truck to Smyrna. At Greer, they were met by a picket. Jackson asked if they could drive in, to which the answer was that only a supervisor could do that. Jackson said that neither he nor Richey was a supervisor but that a supervisor was on his way there. They waited. In 15 minutes , White and Walters drove up, and the latter, accompanied by Richey, took in the truck and made the delivery. White drove Jackson back to the terminal in his car. (In the course of their conversation, White told Jackson that Cripps too had refused to cross the picket line.) When they arrived at the terminal, Jackson asked ?f he was fired. Not yet, he was told-Call in the morning . As he left the premises, he asked someone on the dock where Cripps was; told that Cripps was on a truck run, he departed. Meanwhile, Cripps, pursuant to instructions, was calling in at each of his stops. During one such call, he was told to return to the terminal. Upon his arrival there, he checked out his bills until called into White's office. Clearly (I find), both White and Cripps knew what was about to occur. White told Cripps to sit down and cool off; Cripps said he was "not mad, if that's what you are referring to." Then, White said he "guessed" he was going to let Cripps go. When Cripps asked for a discharge slip and for his check, White said that the move would not be effectuated until he "heard from Charlotte"; they would know, he said, late that evening or next morning. Next morning, both Jackson and Cripps were informed they were through. Their separation notices contained the information that they had been discharged, with the nota- tion, "Refused to cross picket line ...," and (at the specific request of each man) the insertion, "Driver says he was afraid to cross." C. Conclusions as to the Terminations At the outset, several threshold questions must be resolved. implicit in the situation, that White did 'i I find that this constituted an attempt by White to comply with the home office's instructions to get the shipment delivered without jeopardiz- ing anyone's employment This is what he meant by labeling the plan "off the record " 10 And a supervisor within the meaning of the Act THURSTON MOTOR LINES, INC. 865 On this record, I am convinced, and I find, that neither Jackson nor Cripps, in refusing to cross the Greer Stop Nut picket line, was motivated by a fear of violence. The General Counsel failed to present testimony of any actual violence within the last 15 of the 18 days of picketing preceding their refusals to cross the line; there is no indi- cation of any violation of the injunction against violence issued on February 15, 1966; and, indeed, there is affir- mative evidence of a lack of violence during the period in question. Both Jackson and Cripps testified that they were aware that there had been violence during the first few days of picketing, but they were equivocal in testimony respecting their awareness of the issuance of the injunction and of the cessation of any violence; I find, under the circumstances, that they were just as aware of both these factors as they had been of the original acts of violence. Moreover, both Jackson and Cripps, in effect, said that they would not cross a picket line irrespective of the existence of violence. I find that they refused to cross the picket line because of their sympathy with the picket- ing union in particular, their sympathy with picketing unions in general, or both. To the extent that it may be relevant herein, I find that Respondent replaced Jackson and Cripps within a day or two of their respective separations. Prior to the time each was replaced, he had made no offer to return to work for Respondent and cross any picket line.' 1 We now proceed to the heart of the case. That an employee's refusal to cross a picket line either at his own workplace or at another employee's locations an exercise of concerted activities protected by Section 7 of the Act was established early in Board cases.12 In 1951, in its Rockaway News Supply case,13 the Board gave a hint of limitations to come when it said that "although [the employee's] refusal to cross the picket line was a protected activity, the Respondent, as a normal incident of its right to maintain its operations , could have required [him] to elect whether to perform all his duties or, as a striker, to vacate his job and make way for his replacement by the Respondent." 14 Eleven years later in Redwing Carriers, Inc. and Rockana Carriers, Inc.,15 the Board unequivocally declared that, although an em- ployee's refusal to cross a picket line constituted a pro- tected concerted activity, his employer had a correspond- ing right- the right to attempt to run his business - which must be balanced against the employee's. After declaring its intention to discontinue using the "discharge -replace- ment" distinction, the Board examined all the circum- stances of the case under consideration -for example, the absence of any evidence of union animus and the fact that the discharged employees , truckdrivers who refused to cross a particular picket line , were unavailable for the performance of any of their regularly assigned work - and concluded that the employer did not violate the Act by discharging and subsequently replacing the drivers. Now, clearly established was the principle that opposing legiti- mate interests must be weighed against each other.16 The subsequent cases, such as exist, are valuable for the light they may throw on the questions of the factors to be considered in balancing the opposing rights and the weight each factor deserves. In L.G. Everist, Inc.'' four out of nine truckdrivers were discharged when they refused to cross the picket line set up by another union at the construction site to which all their deliveries were being made. A few days later, the remaining five drivers struck in protest over the discharges. Three days of picketing ended with the drivers' unconditional request for reinstatement, in response to which Everist took back the five, but it refused to reinstate the four dischargees and it sub- sequently replaced them. The Board considered it un- necessary to pass on the lawfulness of the original discharges since it found a violation of Section 8(a)(1) of the Act in the employer 's refusal to reinstate the dischar- gees at a time when they were not yet replaced. I s In Cooper Thermometer,19 the employer had discharged a clerical employee who refused to obey an order to perform a task normally performed by produc- tion/maintenance employees who were on strike. The Board found no "overriding business interest" which would serve to justify removal of the normal protection against discharge afforded to employees exercising the rights guaranteed them under Section 7 of the Act. Citing Redwing and Everist, it pointed out that previous cases had most often involved a situation in which an employee, "usually a driver, decides to `refuse to obey the em- ployer'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,"+20 and it distinguished the instant case therefrom, pointing out, among other things, that the in- volved clerical had at no time refused to perform any part of "the regular daily [clerical} duties" for which she had been employed. 11 Perhaps the significance of this finding requires explanation. To the extent that their refusal to cross a picket line may be considered a "strike"- of which, more infra- neither Jackson nor Cripps had made an unconditional request for reinstatement before being replaced. 12 E.g., Illinois Bell Telephone Company, 88 NLRB 1171; Eustace de Cordova, dlbla Cyril de Cordova & Bro., 91 NLRB 1121. (Note that the order in the Illinois Bell case was denied enforcement by the Court of Ap- peals for the Seventh Circuit, in 189 F.2d 124, because (1) the Court, under the circumstances there, regarded the involved employees ' actions as "individual" rather than "concerted," and (2) at any rate , it regarded their conduct to be in derogation of the duty they owed their own bargain- ing agent.) 13 95 NLRB 336, 337. 14 Instead, said the Board, he was discharged, and thereupon it found a violation The Supreme Court (in N.L.R.B v. Rockaway News Supply Company, 345 U.S 71, 1953), taking the Board's quotation at its face value, could see no valid distinction between "discharge" and "replace- ment" under the circumstances ; and, in view of a no-strike commitment it found to exist, the Court affirmed the refusal of the Second Circuit (197 F 2d 11 1) to enforce the Board order. (It did not however, adopt that part of the Circuit Court's decision which held that an employee could not "dictate the terms of his employment" by refusing to cross picket lines.) 15 137 NLRB 1545, enfd sub nom Teamsters, etc., Local 79 v. N.L R.B., 325 F 2d 1011 (C.A.D.C.), cert. denied 377 U.S. 905. 16 An analogy may be found in the field of employer lockouts. In N.L.R.B. v. Truck Drivers Local Union No. 449, Teamsters (Buffalo Linen), 353 U.S. 87, 96, the Supreme Court noted that the right to strike "is not so absolute as to deny self-help by employers when legitimate in- terests of employees and employers collide ... The ultimate problem is the balancing of the conflicting legitimate interests ." Also, see N.L R.B v. Brown, et al., d/b/a Brown Food Store, 380 U.S. 278 ; and American Shipbuilding Co. v. N.L R.B., 380 U.S. 300. 17 142 NLRB 193, enforcement denied 334 F.2d 312 (C.A. 8). 11 The Circuit Court's refusal to enforce the Board's Order was based on its willingness to deal with the original discharges and its determination (without a discussion of the balancing of the opposing equities) that the employer, faced with a refusal to work, had indeed completely severed the employment relationship on the earlier occasion and that , therefore, the failure to replace was immaterial 19 154 N LRB 502. 20 The quotation, from Redwing Carriers and Rockana Carriers Circuit Court case, supra, appears at page 505 of Cooper Thermometer. The emphasis is supplied by the Board. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fifteen months ago, the Board found21 that Overnite Transportation Company had violated Section 8(a)(1) of the Act by discharging a truckdriver for refusing to cross a picket line. Wayne Styles, one of a number of city pickup-and-delivery drivers who were assigned no par- ticular route but who, during the course of the day, were dispatched to one place or another, was told, by radio, to make a pickup. Finding a picket line, Styles went on to his next customer. He then called in to say he wanted to honor the picket line, and he was sent elsewhere. Later in the day, he was again sent to the picketed plant and, again finding a picket line, he notified Overnite that he would not make the pickup Thereupon, another driver was dispatched who made the pickup without incident; and, subsequently, others of the drivers crossed the same picket line without incident. The Board, distinguishing Redwing, found that the "overriding employer interest" must present more than a mere showing that someone else may have to do the work.22 It cited the facts that Overnite's men were not assigned to regular routes; that another driver made the pickup immediately and without incident; that Styles continued to make other assigned stops; and it found that the discharge constituted an 8(a)(1) violation . Additionally, the Board found an 8(a)(3) violation in view of its inference, based on the employer's demonstrated union animus, that Styles' union sym- pathies-reflected only by his refusal to cross this picket line-entered into the discharge. 21 With respect to Jackson's discharge, I find the Redwing case to be most apposite. I believe there is no question but that Respondent's in- terest in maintaining its normal business operations clearly overrode Jackson's refusal to do a part of his regu- larly assigned work. Although, as argued by the General Counsel Greer Stop Nut was not a customer with whom Respondent did a substantial amount of business, I do not consider it my function to assess the relative importance of the various aspects of Respondent's operation. It is enough to find, as I do find, that Respondent's right to operate, either in fact or in its reasonable estimation, was in jeopardy. I do not believe that, under the circum- stances, Respondent was required to sit by idly24 while Jackson unilaterally curtailed his employment responsi- bilities. Nor does it help the General Counsel's case that Jackson was willing to do a part of the job and that Respondent was able to complete the task in question. Just as the argument that someone else may have to do the work is no defense to an otherwise unlawful discharge for refusing to cross a picket line,'' so it is of no con- sequence here that Respondent was able to make the delivery in question by a temporary, makeshift arrange- ment. In my view, a common carrier need not undergo the risk of repeated interruptions of his regular operation and need not be prepared to institute emergency procedures d1 In 154 NLRB 1271 That fact is inherent in every situation where employees fail to per- form a portion of their assigned tasks by respecting a picket line To ac- cept it alone as conclusive proof that their services were terminated solely to preserve efficient operation of the employer's business would be to render illusory any finding that the employees engaged in protected con- certed activity It would leave the refusal to cross a picket line without any protection at all (OtenureT,anspoiumon sup,a 1274) 21 It was on the latter theory (without passing on the former) that the Court of Appeals for the District of Columbia, on June 28, 1966, affirmed the Board's Order to reinstate Styles whenever such interruptions occur. But I reach a different conclusion in Cripp 's case. On the basis of the established precedents , I do not be- lieve that the "overndingness" of the employer 's interest need be, or should be , viewed in a vacuum . Vis-a-vis Jackson , I have found , Respondent's interest was over- riding: an uninterrupted operation was required , and the task in question was one regularly assigned to Jackson. But, no such reasoning is applicable to Cripps; this was not his task , and Respondent 's requirements were not compelling as to him. This, I believe, is the message of Cooper Thermometer and Overnite Transportation. Respondent was not entitled to discharge Cripps for the reason assigned. The General Counsel alternatively urges that, with respect to both Jackson and Cripps , Respondent's motive in discharging them was predicated on their union activi- ties. (It should go without saying26 that , where there has been a discharge for a refusal to cross a picket line, there is a violation of Section 8(a)(1) and (3) of the Act if the selection for the job (of crossing the picket line) arises out of a desire to get rid of a union sympathizer.) Granted that the two had been active on behalf of Local 480's prede- cessor and granted that a certain amount of Respond- ent's union animus is displayed in the recently issued Board decision earlier alluded to , I am not persuaded by the available evidence that (leaving aside the inhibitions on Section 7 rights above discussed ) Respondent, in discharging the two, was acting on the basis of union con- siderations . For one thing, it first sought to effect the delivery with no necessity to discharge ; for another, when it had to act , its designation of Jackson to make the delivery was a plausible one, since it fell within his area of responsibility; and, finally, I am unconvinced that the selection of Cripps to take over the task was based upon anything other than that he was in the best position at the moment to do so.27 I n sum , on what I am convinced is a fair preponderance of the available evidence , I find and conclude that Respondent discharged James E Cripps because Cnpps was engaged in a concerted activity guaranteed him under Section 7 of the Act; but that Respondent engaged in no other violation of the Act. Upon the foregoing factual findings and conclusions, I come to the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 480 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By terminating the employment of James Crippson March 4, 1966, because he failed and refused to accept a work assignment involving the crossing of a picket line at 24 In this respect. I take note that, whether it was required or not, Respondent (unsuccessfully) took steps designed to get its job done without discharging anyone 25 See footnote 22 and the text to which it refers 21 But it has been said Cone Brothers, et al , 135 N LRB 108, enfd 3I7 F 2d 3 (C A 5, 1963), cert denied 375 U S 945 21 I have taken into consideration that, in the past, there have been oc- casions in which Respondent's employees have refused to cross picket lines without being disciplined In my opinion, the disparateness here arises one of the ICC pressure THURSTON MOTOR LINES, INC. 1 867 a location deliveries to or from which were not a part of his normal employment requirements, Respondent inter- fered with, restrained, and coerced employees in the exer- cise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) thereof. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. Except for the foregoing, Respondent has com- mitted no unfair labor practices under the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent discriminated with respect to the hire and tenure of employment of James Cripps, I shall recommend appropriate action. I shall recommend that Respondent offer him full and immediate reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by him because of the discrimination by payment to him of a sum of money equal to the amount he would have earned from the date of his discharge to the date of Respondent's offer of reinstatement, less his net earnings during said period. Backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F.W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum computed quarterly. Because of the limited scope of the unfair labor prac- tices as found herein, I shall recommend a "narrow" cease-and-desist order. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Thurston Motor Lines, Inc., of Nashville, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Terminating the employment of any employee for failing or refusing to accept a work assignment involving the crossing of a picket line at a location deliveries to or from which are not part of that employee's normal em- ployment requirements. (b) In any like or related manner, interfering with, restraining, or coercing his employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist any labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that any such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer James E. Cripps reinstatement to his former position even though this may necessitate displacement of a present incumbent (or, if his former position no longer exists, to a substantially equivalent position), without prejudice to his seniority or other rights and privileges, in the manner set forth in the section entitled "The Remedy." (b) Make him whole for any loss of earnings suffered by reason of the discrimination against him, in the manner set forth in the section above entitled "The Remedy." (c) Notify him if he is presently serving in the Armed Forces of the United States of his right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Ser- vice Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, per- sonnel records and reports, and all other records necessa- ry to analyze the amount of backpay due and the right of reinstatement. (e) Post at its place of business at Nashville, Tennes- see, copies of the attached notice marked "Appendix."28 Copies of such notice, to be furnished by the Regional Director for Region 26, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 26, in writ- ing, within 20 days from the date of this Decision, what steps the Company has taken to comply herewith.29 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not heretofore remedied in this Recommended Order. 21 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 29 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT discharge any employee for failing or refusing to cross a picket line if the crossing of that picket line is not one of his regular duties. WE WILL NOT, in any like or related manner, inter- 868 DECISIONS OF NATIONAL fere with, restrain, or coerce our employees in the ex- ercise of their rights to organize; to form, join, or assist a labor organization; to bargain collectively through a bargaining agent chosen by themselves; to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion; or to refrain from any such activities (except to the extent that the right to refrain is limited by the lawful enforcement of a lawful union-security requirement). WE WILL offer James Cnpps his former or sub- stantially equivalent job (without prejudice to seniority or other employment rights and privileges), and WE WILL pay him for any loss suffered because of our discrimination against him. All our employees are free to become or remain mem- bers of any labor organization. LABOR RELATIONS BOARD THURSTON MOTORS, INC. (Employer) Dated By (Representative) (Title) NOTE: We will notify the above-named employee if presently serving in the Armed Forces of the United Sates of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Ten- nessee 38103, Telephone 534-3161.