Greyhound Lines, Inc.

SOUTHERN GREYHOUND LINES 627 Southern Greyhound Lines, Division of Greyhound Lines, Inc. and Virginia G. Anderson, an In- dividual.Case 12-CA-3829 February 2,1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On October 11, 1967, Trial Examiner Fannie M. Boyls issued her Decision in this proceeding, find- ing that the Respondent had engaged in certain un- fair 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. Thereafter, the Respondent filed excep- tions to the Trial Examiner's Decision and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. 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, Southern Greyhound Lines, Division of Greyhound Lines, Inc., its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner: Pursuant to a charge and amended charge filed by Virginia G. Ander- son, an individual, on April 21 and June 26, 1967, respec- tively, a complaint was issued on June 28, 1967, against Respondent, Southern Greyhound Lines, Division of Greyhound Lines, Inc., alleging that Respondent had discharged the Charging Party for engaging in a protected concerted activity, in violation of Section' 8(a)(1) of the Act. Respondent filed an answer, admitting the discharge but denying that it was unlawful. A hearing was held be- fore me on August 31, 1967, at Miami, Florida. At the conclusion of the hearing, the General Counsel argued orally, on the record and did not later ; file a I brief. i Rel- spondent waived oral argument but, thereafter filed, a brief. Upon the entire record and a careful consideration of the arguments of counsel and authorities cited by them, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, is primarily en- gaged in the business of interstate motor carriage of per- sons and freight over routes licensed by the Interstate Commerce Commission and has terminals in several States of the United States, including a terminal in Miami, Florida, which is operated by its operating division, Southern Greyhound Lines, Inc. During the 12-month period preceding the issuance of the complaint Re-) spondent, in the course and conduct of its business in Miami, had gross revenues in excess of $1 million of which more than $50,000 was derived from bus passen- gers traveling across State lines. It is conceded, and I find, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE UNFAIR LABOR PRACTICE The sole issue involved is whether Respondent vio- lated Section 8(a)(1) of the Act by discharging and thereafter refusing to reinstate employee Virginia G. An- derson, the personal secretary to Terminal Manager O. E. Rhoden, because she refused to cross a picket line and come to work during a strike called by Amalgamated Transit Union , AFL-CIO-CLC, which represented a unit of Respondent's employees composed of the porters, maids, and janitors. The strike, which occurred on March 31 , 1967, was a lawful economic strike caused by a breakdown in negotia- tions over a new contract. The striking union also represented another unit of Respondent 's employees not directly involved in the contract dispute - the drivers, ex- press agents, and ticket agents. Employees in the latter unit supported the strike by refusing to cross the picket line, but bus drivers drove their vehicles after supervisors drove them beyond the picket line. Respondent's office workers, who were represented by still another union, the Office and Professional Employees International Union, AFL-CIO, also supported the strike by refusing to cross the picket line during at least part of the duration of the strike. Respondent's contract with that union expressly excluded "Confidential Secretaries to Officials ." Ander- son was considered a confidential secretary and was not a part ofthe office workers unit.2 ' A motion to correct the transcript of record, which was filed by the General Counsel and unopposed, is hereby granted. The record will be corrected accordingly. 2 Although at the hearing, counsel for Respondent appeared to go to great parrs to prove that Anderson was a confidential secretary and coun- sel for the General Counsel to go to equally great pains to prove that she was not, each now concedes, and I agree, that whether Anderson was pro- 169 NLRB No. 148 tected in her right to refuse to cross the picket line to come to work is unaffected by any determination as to whether she is properly classified as a confidential secretary. Southern Colorado Power Co., 13 NLRB 699. There is no suggestion in the record that Anderson ever disclosed to any employee any matters of a confidential nature or that Respondent ever be- heved she would do so. 350-212 0-70-41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 30, Terminal Manager Rhoden, in anticipa- tion of the strike which was scheduled to take place at 12:01 a.m. on March 31, discussed with Anderson his plans for operating during the strike with the aid of super- visors and informed her that she would have to practically run the office by herself. She gave no indication at that time that she would not report to work the next morning. About 8 a.m. the next morning, however, she called Rhoden and told him that she would not be coming in to work that day because her conscience would not permit her to cross the picket line. When he insisted that she was a confidential secretary and had to report for work, she replied, "Well, I have thought it over and I understand the repercussions - that I will lose everything but my principles will just not allow me to cross the picket line." On the same day Rhoden made out a termination notice for her on which was written, inter alia, "Discharged for failing to report for work as ordered." Anderson received this termination notice through the mail on April 4. She has not since that time communicated with Respondent except in connection with the execution of annuity withdrawal papers which Rhoden mailed to her for her signature. The strike ended on April 10. Respondent had not replaced Anderson by that date and, for some time after the termination of the strike, operated with only tempora- ry help to perform the duties which she had been perform- ing. As Terminal Manager Rhoden testified, "The strike was on and it was almost physically impossible to inter- view people, so we got the Regional Sales Manager whose office is across the street to bring his secretary over to the terminal to work at my secretary's desk until such time as we could get a replacement.. . . She worked there until the 9th.... We started contacting the employ- ment offices during that week and we called the Kelly Girls and Man-Power, Inc., for temporary help and not getting anything from them, on Monday, April 10, we called the Olsen Temporary Employment Office and they furnished us at that time with a temporary employee on April 11 and we continued our efforts in trying to obtain a secretary." Respondent has never at any time offered Anderson reinstatement. To be sure, as Respondent's counsel says in its brief, Anderson did not apply for reinstatement, but having been discharged and sent her annuity withdrawal papers, she had every reason to believe that an applica- tion for reinstatement would have been futile. Indeed, even on the, witness stand Rhoden gave no hint that he would have reinstated her had she applied. He made it clear that he did not discharge her in order to replace her but that he had to replace her because he had discharged her. If an employee is unlawfully discharged, the em- ployer must remedy the wrong by seeking out the em- ployee and offering reinstatement. N.L.R.B. v. Cowell Portland Cement Co., 148 F.2d 237, 245 (C. 9), cert. de- nied 326 U.S. 735; Idaho Potato Growers v. N.L.R.B., 144 F.2d 295, 304-305 (C.A. 9), cert. denied 323 U.S. 769. It is found that Respondent did unlawfully terminate Anderson's employment when it discharged her for refus- ing to cross the picket line and come to work. In refusing to cross the picket line at her place of employment and come to work, Anderson was assisting the labor organiza- tion then on strike. It did not matter that she was not a member of the bargaining unit represented by that union or of any other bargaining unit. It is well settled that Sec- tion 7 of the Act protects an employee in his right to assist a labor organization regardless of whether he is eligible for membership in it and that his employer violates Sec- tion 8(a)(1) of the Act by discharging him for engaging in this protected activity. Canada Dry Corporation, 154 NLRB 1763, 1764, fn. 2; A. O. Smith Corporation, Granite City Plant, 132 NLRB 339, 400-401; Concrete Haulers, Inc., 106 NLRB 690, fn. 11, enfd. 212 F.2d 477 (C.A. 5); Texas Foundries, Inc., 101 NLRB 1642, 1683, enforcement denied on other grounds 211 F.2d 791 (C.A. 5); Montag Brothers, Inc., 51 NLRB 366, enfd. 140 F.2d 730 (C.A. 5); N.L.R.B. v. West Coast Casket Company, Inc., 205 F.2d 902, 908 (C.A. 9), enfg. 97 NLRB 820. And see Truckdrivers Union Local 413, Teamsters [Brown Transport Corp.] v. N.L.R.B., 334 F.2d 539, 542-543 (C.A.D.C.), cert. denied 379 U.S. 916. Respondent, in defending its discharge of Anderson as a lawful act, relies heavily upon the Board's Decision in Redwing Carriers, Inc., 137 NLRB 1545, enfd. 325 F.2d 1011 (C.A.D.C.), upon language in the Board's decision in L. G. Everist, Inc., 142 NLRB 193, 194-195, and upon the court's decision in denying enforcement of that deci- sion, 334 F.2d 321 (C.A. 8). Each of those decisions in- volved the discharge of drivers who, in the course of mak- ing deliveries, refused to cross the picket lines at the premises of employers other than their own. In those cases, the employees had not refused to perform all their duties for their employer. They had even transported materials to the situs of the struck employer, but had refused to perform any part of their duties which would require them to cross the picket line. In such a situation an employer may find it necessary to discharge the em- ployee who refuses to cross the picket line in order to try to replace him immediately or soon thereafter with someone who will perform all the employee's duties and thereby enable the employer to continue operating his business. This, according to those cases, he may lawfully do, for his legitimate right to attempt to continue operat- ing his business outweighs in importance the right of the employee to assist a labor organization in those circum- stances. Addressing itself to a similar factual situation in N.L.R.B. v. Rockaway News Supply Co., Inc., 197 F.2d 111, 113-114 (C.A. 2), affirmed on other grounds in 345 U.S. 71, the court stated: "But he [the employee] is not free to exercise the right [to refuse to cross a picket line] during his working time in violation of his employer's working rules by refusing to perform that part of his regu- lar duties which requires him to cross the picket line. To hold otherwise would be to permit an employee uni- laterally to dictate the terms of his employment which it is well settled he may not do." We do not have here the type of situation with which the Board and courts dealt in the Redwing, Everist, and Rockaway cases. In the instant case, Respondent's own premises were being picketed, and employees such as Anderson who were unwilling to cross the picket line were forced to remain away from work altogether during the period of the picketing. Since Anderson did not report for work at all during that period, it was not necessary for Respondent to discharge her in order to replace her with someone who would cross the picket line and perform her duties. Anderson, but for her discharge, would have been in a position equivalent to that of an economic striker. Respondent could have replaced her without discharging her; and if it had, without discharging her, replaced her prior to the termination of the picketing,,it would not have been required to discharge the replacement to make room for her when she later might desire to return to work. SOUTHERN GREYHOUND LINES 629 N.L.R.B. v. MacKay Radio & Telegraph Co., 304 U.S. 333, 345-346. Insofar as anything said by the Board or the courts in the Redwing and Everist cases may be in- terpreted as inconsistent with my finding herein that Respondent violated Section 8(a)(1) of the Act by discharging and refusing to reinstate Anderson because she refused to come to work through the picket line, I must respectfully decline to follow such a holding. I rely instead upon the Board's more recent decision in Canada Dry Corporation, 154 NLRB 1763, and the great weight of Board and court authorities cited therein at page 1764, In. 2. CONCLUSIONS OF LAW 1. By discharging and thereafter refusing to reinstate Virginia G. Anderson because she engaged in the pro- tected activity of assisting a labor organization, Respond- ent has interfered with, restrained, and coerced her in the exercise of her rights guaranteed by Section 7 of the Act and has engaged in and is engaging in an unfair labor practice -within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practice affects com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, my Recommended Order will require that Respondent cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. The unfair labor practice engaged in by Respondent was a very narrow one and was not shown to have been motivated by opposition to the labor organization con- ducting the strike or to unionism in general. It apparently stemmed solely from Respondent's mistaken view that the personal secretary to the terminal manager was not entitled to the Act's protection in refusing to cross the picket line to come to work and its desire not to have in its em oy un the responsible position she-hel anyone who in the future could not be depended upon to continue working during a strike at Respondent's premises. The remedial order therefore should be narrowly framed to cover only the violation found and any like or related act. To remedy Anderson's unlawful discharge, Respondent will be required to offer her reinstatement to her old or substantially equivalent position, without prejudice to her seniority or other rights and privileges, dismissing, if necessary, anyone who may have been hired to replace her, and to make her whole for any loss of earnings she may have suffered by reason of her unlawful discharge. Since it is a fair inference from Anderson's testimony and conduct that she would not have returned to work prior to the termination of the strike on April 10, 1967, even if she had not been discharged, Respondent will be required to make her whole for her loss of earnings by payment to her of the sum which she would normally have earned on and after April 10 to the date Respondent offers her rein- statement, less her net earnings during that period. The backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289, and shall include an allowance for in- terest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent, Southern Greyhound Lines, Division of Greyhound Lines, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or refusing to reinstate any employee because he has assisted a labor organization by refusing to cross a lawful picket line at his place of work. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to Virginia G. Anderson 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 pay suffered by reason of the unlawful discharge and refusal to reinstate her, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records helpful to analyze and deter- mine the amount of backpay due under the terms of this Recommended Order. (c) Post at its Miami, Florida, terminal copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's authorized representative, shall be posted by it im- mediately 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 Respondent to insure that-said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.4 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in a 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." 4 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in venting, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." 630 DECISIONS OF NATIONAL order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our em- ployees that: WE WILL NOT discharge or refuse to reinstate any employee for refusing to cross a picket line to come to work during a lawful strike at our terminal. WE WILL NOT in any like or related manner inter- fere with , restrain , or coerce any employee in the ex- ercise of his right , guaranteed under the National Labor Relations Act, to assist a labor organization. WE WILL offer to Virginia G. Anderson immediate and full reinstatement to her former or substantially equivalent position , without prejudice to any seniori- ty or other rights and privileges previously enjoyed by her, and make her whole for any loss of pay which she may have suffered by reason of her discharge. LABOR RELATIONS BOARD Dated By SOUTHERN GREYHOUND LINES, DIVISION OF GREYHOUND LINES, INC. (Employer) (Representative) (Title) 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, Room 826, Federal Office Building, 52 SW First Avenue, Miami, Florida 33130, Telephone 350-5391.