Overnite Transportation Co.

OVERNITE TRANSPORTATION CO. Overnite Transportation Company and Joseph E. Tingen. Case 5-CA-6264 March 13, 1974 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO On November 30, 1973, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint herein alleges that Respondent violated Section 8(a)(1) of the Act by terminating the employment of the Charging Party because he refused to perform services for Respondent at the premises of Wilson Trucking Corporation while the latter was being picketed by a labor organization. Respondent contends that it lawfully replaced Tingen with another employee willing to perform the work that Tingen refused in order to continue to operate its business efficiently. The facts are fully set forth in the attached Decision. Respondent is a local and interstate motor carrier. One of its terminals is located at Richmond, Virginia, where the instant case arose. This terminal operates on a 24-hour cycle. Over-the-road trucks carrying freight for delivery in the Richmond area begin arriving at the terminal at approximately midnight. This freight is unloaded and then reloaded on local trucks for delivery during the day. These deliveries begin early in the morning and when completed these local drivers start picking up freight that is to be shipped out of the Richmond area. This outbound freight is taken to the terminal and loaded on over-the-road trucks for shipment to other terminals. It is Respondent's objective to move all such freight into and out of the terminal during the 24-hour cycle and it has established a separate department to make up dispatch schedules which are coordinated on a systemwide basis. Wilson Trucking Company is Respondent's largest interchange of freight customer in Richmond. On the I It is undisputed that there had been neither actual violence nor the threat of it on the picket line at Wilson. 2 Redwing Carriers, Inc, 137 NLRB 1545, enfd. sub nom Teamsters, 691 average between six and eight trailer loads of freight are delivered to Wilson each day by Respondent. These deliveries constitute the most difficult job assignment given to Respondent's city drivers be- cause all this freight must be unloaded by hand without assistance from Wilson personnel. These assignments require between 4 and 8 hours of work and appear to be distributed among Respondent's 35-40 city drivers on a rotating basis since none of these drivers have fixed, regular runs. Tingen, the Charging Party, was employed by Respondent as a city driver. On Monday, August 6, 1973, Tingen reported for work and was assigned one of the nine loads destined for Wilson that day. Upon arriving at the Wilson terminal, Tingen observed two pickets. He then telephoned Respondent's city dispatcher and offered to cross the picket line and leave the trailer at the Wilson terminal; but refused to work behind the picket line by unloading the trailer, which was part of his job. The dispatcher instructed him to return to Respondent's terminal without dropping off the trailer. After returning to Respondent's terminal, Tingen reported to the terminal manager, Gulledge, in the latter's office. In response to Gulledge's inquiry, Tingen said that he would not cross the picket line because of fear of retaliation' and out of "respect" for the cause of the pickets. Gulledge replied, "I'm sorry Joe, there's no place here at Overnite for you." Tingen thereupon punched out and departed. That same day Respondent filled Tingen's position with another employee who had been working as a warehouseman for Respondent while awaiting an opportunity to become a city driver. This employee took the load that earlier had been assigned to Tingen to Wilson's terminal that same day and has continued to fill Tingen's job. In Redwing2 the Board held, with court approval, that employees have a protected right to respect a picket line set up at the premises of another employer. However, in that decision the Board also held:3 ... We also recognize that the Respondents had a corresponding right which must be bal- anced against the right of the employees. That is, Respondents had a right to attempt to run their business despite the sympathetic activities of the drivers here involved. In this context, the Board has in the past drawn a distinction between replacement and discharge of such employees whose sympathies prevent them from performing assigned work tasks. Chauffeurs and Helpers Local Union No. 79, Teamsters v. N L R B, 325 F.2d 1011 (C A.D.C, 1963), cert. denied 377 U.S 905 (1964). 3 Id at 1547 209 NLRB No. 112 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In considering the continued validity of the discharge-replacement distinction in this situa- tion, we are convinced that substance, rather than form, should be controlling. That is, where it is clear from the record that the employer acted only to preserve efficient operation of his busi- ness, and terminated the services of the employees only so it could immediately or within a short period thereafter replace them with others willing to perform the scheduled work, we can see no reason for reaching different results solely on the basis of the precise words, i.e., replacement or discharge, used by the employer, or the chrono- logical order in which the employer terminated and replaced the employees in question. In balancing these two competing rights in subse- quent cases the Board has held that an employer seeking to justify replacement of such employees "must present more than a mere showing that someone else may have to do the work" 4 but, on the other hand, the employer is not required to institute a "temporary, makeshift arrangement"5 or emergency procedures in order to preserve the efficient opera- tion of his business. The proper balance to be struck between these conflicting rights necessarily depends on the facts in each case. In the instant case it is clear that although Respondent's city drivers do not have fixed, regular runs, they are frequently assigned runs to the Wilson terminal that consume a substantial portion of that particular workday. Tingen testified that he was assigned to take loads of freight to Wilson two or three times per week and that each of these runs required 4 to 5 hours of work on his part. The recurring nature and frequency of these assignments compels the conclusion that they were part of Tingen's regular duties. While the Board has stated that undue emphasis should not be placed on the distinction between temporary and permanent work assignments, it is nonetheless a factor to be consid- ered when determining whether or not the employer could have substituted another driver to make the particular delivery in question without any signifi- cant disruption of the employer's business 6 Clearly, the assignment Tingen refused herein was not "a one-shot operation." 7 The evidence in the instant case concerning the 24- hour cycle on which Respondent's terminal operates and its systemwide coordination of freight dispatch- ing is undisputed. The volume, frequency, and duration of the work assignment involved herein and the characterization of it as the most difficult that Respondent's city drivers are called upon to perform is substantially undisputed. The evidence is also without contradiction that Respondent filled Tin- gen's job that same day with one of its warehouse- men who had been waiting for an opportunity to become a city driver and this employee has contin- ued in that position. Although there were 35-40 city drivers employed by Respondent at the time it terminated Tingen, there is no evidence in the record before us that any of these other employees were available to perform the work that Tingen had refused, and Respondent's assertion that it had no other city driving work available to assign to Tingen when it replaced him is uncontradicted. The Admin- istrative Law Judge appears to have inferred that since Respondent employed 35-40 city drivers it could have assigned the work Tingen refused to another of these and given other city driving work to Tingen. However, in view of the above facts there is no reasonable basis for such an inference in the instant case. In view of the foregoing, and based on the entire record herein, we find that Tingen was terminated and replaced by Respondent in order to preserve the efficient operation of its business. Accordingly, we find that Respondent did not violate Section 8(a)(1) of the Act, and we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 4 Overnite Transportation Company, 154 NLRB 1271, 1274,,enfd sub nom. Truck Drivers and Helpers Local No 728, Teamsters v. N LR. B, 364 F 2d 682 (C.A.D C, 1966) 3 Thurston Motor Lines, Inc, 166 NLRB 862, 866 6 Swain and Morris Construction Co, 168 NLRB 1064, In 4 at 1065 7 Braswell Motor Freight Line, 189 NLRB 503, 506 DECISION 1. PRELIMINARY STATEMENT STANLEY N. OHLBAUM, Judge: This proceeding' under the National Labor Relations Act as amended, 29 U.S.C. § 151 et seq. ("Act"), was tried before me in Richmond, Virginia, on October 30, 1973, with all parties participating throughout and afforded full opportunity to present evidence and contentions. Although given opportunity to file briefs, on November 8 and 162 the parties indicated they elected not to do so. The record has been carefully considered. Upon the entire record and my observation of the testimonial demeanor of the witnesses , I make the following: i Upon complaint of the National Labor Relations Board's Regional Director for Region 5 issued October 1, 1973, growing out of charge filed August 17, 1973, by the above Charging Party 2 Unless otherwise specified, all dates are 1973. OVERNITE TRANSPORTATION CO. 693 FINDINGS AND CONCLUSIONS II. JURISDICTION At all material times, Respondent Overnite Transporta- tion Company, a Virginia corporation, has been and is engaged in operating freight terminals in several States (including Virginia, at Richmond) and in interstate transportation of freight by motor carrier. In the course and conduct of that business during the representative year immediately preceding issuance of the complaint, Respon- dent derived revenue m excess of $50,000 from the interstate transportation of freight. I find that at all material times Respondent has been and is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. III. ALLEGED VIOLATION OF THE ACT A. Issue The complaint alleges and the answer denies that Respondent violated Section 8(a)(1) of the Act by discharging its employee Joseph E. Tingen for refusing to perform services for it at the premises of a picketed customer. B. Facts as Found• Discussion Respondent is a local and interstate motor carrier, with terminals including one in Richmond, Virginia, at which its manager is Robert Gulledge and its (city) dispatcher (Lou) Werner. Various categories of personnel are employed at the Richmond terminal, including warehousemen, helpers, "city drivers" (operating either small radio-dispatched trucks or tractor-trailers), and longer-run or interstate "road drivers." "City drivers" operate within a radius of 50 miles of Richmond; of these, "bulk freight" drivers have no regular route or assignment, but each day receive miscellaneous runs with miscellaneous cargo. Normal operations at the Richmond terminal consist of a round-the-clock cycle of arrival and unloading by warehousemen of incoming trailers (midnight to or through morning) onto local delivery units (including trailers): dispatch of the local delivery units, which are assigned to Respondent's drivers each day (the drivers not necessarily driving the same unit each day) for delivery by Respondent's drivers, usually in the morning; pickup by Respondent's drivers, usually in the afternoon (and sometimes-as in the case of Respondent's customer as well as freight forwarder Wilson Trucking Corporation ["Wilson" ])---at the very same place and from the same source to which Respondent's driver has made the morning delivery, after that delivery has been unloaded by Respon- dent's driver; and dropoff at Respondent's Richmond 3 Although Gulledge denies he said anything like this, on comparative demeanor observations I credit Tingen. 4 The foregoing account is based upon the uncontradicted credited testimony of Tingen , a witness of impressive demeanor. Respondent chose neither to produce its Dispatcher Werner as a witness, nor to explain why. 5 There was no violence or threat or fear of violence at the site of the picketing itself Cf. A' L KB v Union Carbide Corporation, 440 F.2d 54 (C A. 4, 1971 ), cert. denied 404 U.S 826 ( 1971), wherein the Court held that terminal, with loading by Respondent's drivers and warehousemen onto outbound tractor-trailers. Respon- dent's Richmond drivers are each day assigned to daily designated, loaded tractor-trailers for deliveries, by its Richmond Terminal Dispatcher Werner; unlike some other dropoff points, dropoffs to Wilson may be made as early as 8 a.m. Wilson is Respondent' s largest Richmond dropoff point, receiving as many as 6 to 8 truckloads per day. Joseph E. Tingen was hired by Respondent's Richmond Terminal Manager Gulledge in March or April, 1970, as a "city driver" on bulk cargo, continuing in that capacity for about a year and a half, when he was made a "road driver" for around a year and a half, when he reverted to being a bulk cargo "city driver" again. At the time he was hired by Gulledge in 1970, Gulledge gave him the message that there was no place for him there if he entertained union ideas.3 Tingen did not become a union member. On August 6, 1973 Tingen, reporting for work as usual, was assigned by Dispatcher Werner to a tractor-trailer consisting of bulk freight to be dropped off at the terminal of Wilson Trucking Corporation. Like Respondent, Wilson is a motor carrier, but serves areas not served by Respondent and consolidates consignments for consolidat- ed shipment into the areas served by Wilson; at times, if the entire trailerload from Respondent is destined for a Wilson area, it will not be unloaded at the Wilson terminal but simply be hauled as a unit by Wilson into the Wilson area. Wilson's terminal is approximately 12 miles from Respondent's Richmond terminal. When Tingen, with no regularly assigned run or vehicle, was dispatched by Respondent's Dispatcher Werner to take a bulk trailer load on the short run to Wilson on the morning of August 6, Werner informed Tingen that there was a strike going on at the Wilson terminal but to "go down and see what it looked like . . . check it out" and to "carry the freight across the line." Tingen arrived at the Wilson terminal in about a half hour and observed two ambulatory sign-carrying Teamsters Union pickets. Tingen then telephoned Dispatcher Werner about the situation and suggested to Werner that he would drop the trailer (that is, cross the picket line and disconnect and leave the loaded trailer) without unloading it (unloading being a part of his job). Werner, however, instructed him to return with the load, which Tingen did. When Tingen arrived, Werner indicated Terminal Manager Gulledge wished to see Tingen in Gulledge's office.4 There Gulledge demanded to know of Tingen, "What's this, you're not going to cross the picket line?" Tingen responded that he would not, among other things because of apprehension of possible retaliation against members of his family5 and out of "respect" for the cause of the pickets. (At this time, Respondent's employees were not unionized, nor was Tingen a Teamsters member.) a nonstriking employee who refuses through physical fear to cross a picket line is not entitled to the protection of the Act since he "does not act on principle. He makes no common cause, and contributes nothing to mutual aid or protection in the collective bargaining process " (id at 56). While denying enforcement of the Board's order for this reason, nevertheless at the same time the Fourth Circuit Court of Appeals indorsed the Board's view that nonstriking employees who refuse because of "principle" to cross a picket line should be equated with economic strikers 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tingen was thereupon dismissed, Gulledge telling him, "I'm sorry Joe, there's no place here at Overnite for you." According to Respondent's Richmond Terminal Manag- er Gulledge, testifying as its witness, he did not "fire," "terminate," or "discharge" Tingen but merely "replaced" him later the very same day (August 6)- as well as continuously since then-by another employee who was in its employ as a warehouseman but qualified to drive a truck and had expressed an interest in doing so. Tingen's "replacement" then took the load to Wilson's that same afternoon, and he still holds Tingen's job. According to Gulledge, Respondent's records show Tingen as having been "replaced," and Gulledge considers that Tingen "left" Respondent's employ.6 It is conceded that Tingen was not offered the job of the warehouseman (a lower-paying job) who took Tingen's job, nor any other job-at the time in question Respondent employed 35-40 "city drivers" alone -nor is there indication that Tingen requested such other assignment ; however, according to Gulledge-whom I do not credit in view of the large number of rotating trucks and assignments-it would have been "necessary" for Tingen to continue to drop off and unload cargo at Wilson's regularly after August 6. Gulledge further testified that since an earlier NLRB proceeding and court of appeals-enforced order against it in 1966 involving its Atlanta terminal ,7 it has maintained the policy of not discharging an employee for refusing to cross a picket line. However, Gulledge conceded that at no time has Respondent published or explained to its Richmond drivers what its policy is regarding crossing a picket line. And Gullege's explanation of his Company's alleged changed policy since the earlier case went against it (Overnite # 1, 1966) is illuminating in appraising Respondent's conten- tion that it did not "discharge" Tingen but merely "replaced" him. Thus, Gulledge testified that Respondent's "new" (since 1966) policy of not discharging an employee for refusal to cross a picket line means no more than that if there is a threat or violence the Company would not expect the dnver to cross the picket line, but that if there is no violence or threat the employee would be expected to cross the picket line or "be subject to being replaced"; 8 and, finally, that since there was no violence at Wilson's here, Respondent's position was that Tingen should have crossed the picket line and unloaded the freight. Respondent's "new" policy of turning the legality of an employee's refusal to cross a picket line on whether or not there is violence or threat at the picket line sets a requirement without basis in either the statute9 or the cases. Indeed, as shown above, there is a basis, in the Fourth Circuit at any rate,10 for rejecting such a hypothesis on the theory that employee refusal to cross a picket line out of personal fear-as distinguished from refusal to cross 6 Cf., e.g., Kut-Kwick Corporation, 176 N LRB 635, 647-651 (re employee Goodyear ), for another case where an employer refused to permit an employee to resume work by insisting he had "quit," although the circumstances did not bear out this contention. 7 Overture Transportation Company, 154 NLRB 1271, enforced 364 F.2d 682 (C.A D.C , 1966) Respondent distinguishes Overnice #1 from the instant case (Overnice #2 ) by urging that in Overnice #1 all it had to do in the face of its employee's refusal to cross a picket line was merely to dispatch another truck. This distinction, however, does not appear to be compelling since, among other things, this is not unlike what Respondent did here when it returned the same truck to Wilson's with another driver. the picket line as a matter of "principle"-would notper se insulate him from discharge. As long ago as 1951 in Rockaway News Supply Company, Inc., 95 NLRB 336 (enforcement denied on other ground -no-strike provision in collective agreement , 197 F.2d 111 (C.A. 2), affd. 345 U. S. 71), as well as in succeeding cases including Union Carbide Corp., 174 NLRB 989, enfd. 440 F.2d 54, 55 (C.A. 4, 1971), cert. denied 404 U.S. 826 (1971), afd.Redwing Carriers, Inc., 137 NLRB 1545, enfd., 325 F.2d 1011 (C.A.D.C., 1963), the Board held that employees who refuse to cross a picket line of other employees are engaged in protected concerted activity. This, however, does not mean that an employer must subsidize such activities by his employees by continuing their pay while they withhold their services, nor need the employer place his business in the deep-freeze while his employees refuse to cross the picket line. As the Board clearly explicated in Redwing, supra, at 1547: Although the Act . . . . prohibits any reprisal against the . . . . Redwing drivers for engaging in the protected activity of not crossing the . . . . picket line, we also recognize that the [employer] had a corre- sponding right which must be balanced against the right of the employees. That is . . . . to attempt to run [its] business despite the sympathetic activities of the drivers here involved. In that and later cases the Board evolved the principle that while an employer may under certain circumstances "replace" (not "discharge") such employees, he may not do so for punitive reasons but "only to preserve efficient operation of his business" (Redwing, supra 1547); see, also, Thurston Motor Lines, Inc., 166 NLRB 862). "[T]he right [of ] the employer . . . . is not to discharge employees, but to run his business." Swain and Morris Construction Co., 168 NLRB 1064, 1065 (emphasis is the Board's). In Overnite #1, supra, 154 NLRB 1274 (enfd. 364 F.2d 682 (C.A.D.C.)), the Board had pointed out that the employer seeking to justify replacement of such employees: must present more than a mere showing that someone else may have to do the work. That fact is inherent in every situation where employees fail to perform a portion of their assigned tasks by respecting a picket line. To accept 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 concerted activity. It would leave the refusal to cross a picket line without any protection at all. Clearly, what is required is the balancing of two The question remains whether Respondent was here (Overnice #2 ), any more than in Overnice #1, justified in discharging the dnver who refused to cross or work behind the picket line. 8 Gulledge was careful to say "replace" but not "fire," and would not commit himself on the length of the "replacement" other than that it would "depend ... on the circumstances." 9 The proviso to Sec. 8(b)(4) of the Act states merely that nothing therein "shall be construed to make unlawful" the refusal to cross a picket line of employees of another employer 10 Union Carbide, supra, fn. 5. OVERNITE TRANSPORTATION CO. opposing rights, and it is only when the employer's business need to replace the employees is such as clearly to outweigh the employees' right to engage in protected activity that an invasion of the statutory right is justified. No credibly persuasive evidentiary showing of this nature has been made here. As shown above, Tingen did not drive a regular or established route, being shifted from day to day as one of 35-40 "city drivers"; another employee was speedily assigned to substitute for him; there were other jobs, including driving jobs and runs, to which Tingen could readily have been interchanged or assigned"; and Gulledge's prehire antiunion remarks to Tingen as well as Gulledge's described exposition of Respondent's alleged but undisclosed "new policy" since the earlier Board proceeding (Overnite #1 ) against it further conduce to establish that Respondent's action against Tingen was punitive rather than "to preserve efficient operation of [its] business" (Redwing, supra at 1547) or a "business need" (Overnite # 1, supra at 1275) or because of "proven need to carry on its business" (Thurston, supra at 862), or because of " 'overriding employer interest' " (Braswell Motor Freight Line, 189 NLRB 503, 506) or for "compelling business reasons" (General Tire & Rubber Co. v. N.L. R.B., 451 F.2d 257, 259 (C.A. 1, 1971); "[The employer's] invocation of `business reasons' means only that it does not like strikes" [Aldrich, C.J.]). Respondent's current contention, as unconvincingly advanced by its Richmond terminal manager, Gulledge-a person with established antiunion views-that it did not "discharge" Tingen but merely "replaced" him is, under all of the circumstances, unpersuasive. That no particular form of words need be used to constitute a discharge, see, e.g., N.L.R.B. v. Trumbull Asphalt Company of Delaware, 327 F.2d 841 (C.A. 8, 1964); "The fact of discharge of course does not depend on the use of formal words of firing. It is sufficient if the words or action of the employer `would logically lead a prudent person to believe his tenure had been terminated' "; Blackmun, J.]); General Tire & Rubber Company v. N.L.R.B., 451 F.2d 257, 258, fn. 1, where the court characterized a similar employer conten- tion that the employee had "quit voluntarily" as "too frivolous to warrant discussion"): N.L.R.B. v. Central Oklahoma Milk Producers Assn, 285 F.2d 495, 497-98 (C.A. 10, 1960); Kut-Kwick Corporation, 176 NLRB 635, 647-51. Crediting employee Tingen's version of his terminal employment discussion, as shown, I have found that he was in fact discharged. But whatever the semantics of the situation were, the fact is, as I find, that Gulledge's action on August 6 separated, divorced, or weaned Tingen from his job as well as all employment with Respondent since then. At the conclusion of the trial, Respondent's counsel conceded upon the record that if Respondent had "discharged" Tingen on the date and occasion here, it would have been unlawful under Overnite #1. Upon the entire record finding that Tingen was indeed discharged, on that basis I agree that it was unlawful. If, as repeatedly declared by the courts and Board, it is unlawful under the ii Even accepting Terminal Manager Gulledge's testimony that as many as 6 to 8 "city" trucks were dispatched to Wilson daily, that would still leave 695 Act for an employer to discharge an employee for refusing to cross a picket line, then the unlawfulness turns on whether the employee has for that reason been in fact discharged, regardless of the word or words used to effect the discharge. An employee should not be held to a degree of expertise in labor law semantics to which true experts in that sometimes esoteric field cannot themselves legitimate- ly lay claim. Labor law savants may engage in protracted learned discussions over the supposed distinction, under various refinements of circumstances, between "discharge" and "replacement," without themselves reaching an agree- ment or even common ground. But, under the circum- stances here, even if a truckdriver were told he is being "replaced" for refusing to cross a picket line, it would be unreasonable to require him to have an instantaneous intuitive understanding of the developing, less than wholly clear philosophy hesitatingly hammered out in a genera- tion of difficult cases. Unless we are simply to abandon fairness, we must allow that the truckdriver is justified in getting the message that he is losing his job, or being fired, for his refusal, even if his employer uses the talismanic expression "I am replacing you" rather than the verboten words "You are fired." (This is particularly true where, as here, the truckdriver does not have a specific run or vehicle, is only one of 35 or 40 such drivers, and could for aught that is credibly established be readily transferred to another run or to across-the-road driving which he has previously done.) Under the total circumstances shown, including resolu- tion of issues of credibility dependent upon testimonial demeanor observations, I have found as a fact that Tingen was discharged and lost his job because of his refusal to cross the picket line. This finding is fortified by Respon- dent's established "new," post-Overnite #1 policy (as testified to by its own Terminal Manager Gulledge) of requiring employees to cross picket lines except where they are threatened or where violence exists-an improper standard under the law. Under court and Board law in its current state (cf., e.g., Braswell, supra ), that constitutes a violation of the Act; indeed, as already stated, Respon- dent's counsel conceded upon the record, near the close of the hearing, that such a discharge would be a violation of the Act. However, even were I to accept Respondent's semanticism that Tingen was not "discharged" but merely (permanently) "replaced," analogizing Tingen (as Respon- dent's counsel in closing argument did) to an "economic striker"-an analogy suggested by the Board and approved by the court in N.L.R.B. v. Union Carbide Corp., 440 F.2d 54 (C.A. 4, 1971), cert. denied 404 U.S. 826 (1971)-I would require that he be accorded the rights of a "replaced" economic striker as instructed by the Supreme Court in N.L.R.B. v. Fleetwood Trailer Co. Inc., 389 U.S. 375 (1967) and by the Board in The Laidlaw Corporation, 171 NLRB 1366, enfd., 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970); namely, to be reinstated when his or a like job opens up. Thus, even were I to agree that Tingen was "merely replaced" for refusing to cross and work behind the picket line, I would still under Laidlaw at least 27-32 other trucks dispatched elsewhere in the "city," to say nothing of other trucks used on longer runs or interstate hauls. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD require that Respondent offer him reinstatement when he is available for employment and a job opens up. Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. By its conduct set forth and found in "III," supra, Respondent has engaged and is continuing to engage in unfair labor practices in violation of Section 8(a)(1) of the National Labor Relations Act as amended. 3. Said unfair labor practices have affected, affect, and unless permanently restrained and enjoined will continue to affect, commerce within the meaning of Section 2(6) and (7) of said Act. the Act by terminating the employment of and failing to reinstate its employee Joseph E. Tingen because he refused to cross and perform services behind a picket line, Respondent should be ordered to cease and desist from that or like violations of the Act, and to offer reinstatement to Tingen to his former (or, if no longer available, in that case equivalent) job, together with backpay as appropriate, less applicable interim earnings if any, computed as delineated in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, making necessary records available for computation purposes.12 Respondent should further be required to post the usual notice to employees to the effect that it will repair such violation, and desist from further such or like violation and interference with its employees' rights under the Act. [Recommended Order omitted from publication.] REMEDY Having been found to have violated Section 8(a)(1) of 12 Although normally in the case of an employee withholding his services reinstatement (Roosevelt Roofing and Sheet Metal Works, Inc., 204 NLRB or an employee discharged while on strike , backpay is tolled during the No. 110, fn 1 , and cases cited.) this is inapplicable here in view of the fact period while he withholds his services, and the hackpay period is limited so that Respondent had numerous otherjobs available , not requiring working as to commence 5 days from the date of the employee's unconditional behind the picket line, to which Tingen could have been transferred instead application for reimtatement to the date of Respondent's offer of of being summarily terminated