Overnite Transportation Co.

OVERNITE TRANSPORTATION COMPANY Overnite Transportation Company and Bynum Paul McKinney and Larry N. Freeman. Cases 5- CA-6370 and 5-CA-6385 July 23, 1974 DECISION AND ORDER By CHAIRMAN MILLER and MEMBERS FANNING AND JENKINS On March 29, 1974, Administrative Law Judge Eu- gene George Goslee issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the Ad- ministrative Law Judge's Decision in light of the ex- ceptions and brief and has decided to affirm the Administrative Law Judge's rulings, findings, and conclusions and to adopt his recommended Order only to the extent consistent herewith. The Administrative Law Judge concluded that the five drivers terminated by Respondent following their refusal to cross a picket line at the premises of Respondent's customer, Leon Ferenback, Inc., were engaged in concerted activity. Nevertheless, based on his conclusion that Respondent's action was justified by business necessity, the Administrative Law Judge recommended that the complaint be dismissed in its entirety. With respect to this conclusion the Administrative Law Judge relied on evidence that Leon Ferenback, Inc., is a substantial customer of Respondent and that Respondent sought, although unsuccessfully, to sub- stitute other drivers in its employ for those drivers who refused to make the Ferenback deliveries. More- over, in view of Respondent's statement to each driver concerning the necessity of "replacing" him, coupled with Respondent's conduct in immediately hiring new drivers to make the Ferenback deliveries, the Admin- istrative Law Judge asserted that there was no evi- dence that any driver was "discharged." Contrary to the Administrative Law Judge, we find that Respondent discharged driver Larry Freeman on October 5,1973, and that such discharge violated Sec- tion 8(a)(1) of the Act. In his Decision the Administrative Law Judge ade- quately summarized the law applicable to cases of this kind. Although we agree with the Administrative Law Judge's statement of the law, we disagree with his application of the relevant legal principles to the ter- 515 mination of driver Freeman's employment. In this regard we think it significant that Freeman, who was the first driver to refuse to cross the picket line at the Ferenback plant, was terminated by Re- spondent several days before the refusal of the other drivers to make the Ferenback deliveries and at a time when Respondent had apparently no knowledge or reason to believe that other drivers would follow Freeman's lead. Accordingly, and although there may be merit to Respondent's argument that the refusal of several drivers on October 10 to cross the Ferenback picket line placed it in a position where the efficient operation of its business necessitated replacing these drivers with others who would make the deliveries, it is difficult to see how these considerations could have prompted Respondent's conduct on October 5. Thus we note that Freeman testified without contradiction that on the morning of October 5, when he was given the Ferenback assignment and informed the dilspatch- er of his reluctance to cross the Ferenback picket line, he also requested that the assignment be offered to another driver. Although there were 8 or 10 drivers available at the terminal, Respondent declined to change the assignment or to ask other drivers if they would take it.' In fact, had Respondent acceded to Freeman's request there is reason to believe that there would have been little difficulty in finding a driver to take Freeman's place. 2 Thus, following Freeman's telephone call to the dispatcher indicating that he was parked outside the Ferenback plant but would not cross the picket line, Respondent was able to send out a driver from the terminal who made the delivery forthwith? We find additional and strong support for our con- clusion that Freeman was discharged in contraven- tion of Section 8(a)(I) in the conduct of Respondent's terminal manager, Ernest Bullock. Although the Ad- ministrative Law Judge concluded that there was no evidence that any employee was "discharged" rather that "replaced," we are satisfied that the record evi- dence of Bullock's conduct on October 5 warrants the opposite conclusion insofar as driver Freeman is con- cerned. Thus, when Freeman spoke to Bullock by telephone on October 5, and informed him that we would not enter the Ferenback plant, he also asked if this refusal would cause Bullock to "fire" him. Bul- i In passing on the merit of a "business necessity" defense in similar cases the Board has often considered the availability of other drivers. Braswell Motor Freight Line 189 NLRB 503 (1971) 2 It is well settled that evidence that employees may have to be transferred or reassigned to do the work in issue is not sufficient to establish an employer's business justification for replacing employees in cases of this kind Overmte Transportation Company. 154 NLRB 1271, 1274,(1965). 3 In finding that Respondent's conduct was motivated by business necessi- ty, the Administrative Law Judge noted that Respondent attempted to substi- tute drivers for those who refused to make the deliveries to Ferenback. This is true, however, only with respect to the events of October 10. 212 NLRB No. 84 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lock replied that Freeman would have to be "replaced altogether." Apparently Bullock's use of the word "re- placed" persuaded the Administrative Law Judge that Freeman's termination did not constitute a "dis- charge." As we have often noted, in distinguishing between "replacement" and "discharge," substance rather than precise wording is important. Redwing Carriers, Inc., 137 NLRB 1545(1962). We are satisfied after reviewing all of the record evidence that Freeman was discharged because of his refusal to cross the picket line and because this refusal angered Respondent's terminal manager. Thus, when Freeman returned to the terminal on October 5, Bullock refused Freeman's request to discuss the matter further. He also told Freeman that he did not want to catch him back on the property. Bullock did not even want to give Free- man time to pick up his belongings at the terminal. Bullock acknowledged in his testimony that he never explained to Freeman or to any other driver the dif- ference between replacement and discharge." Finally, Freeman alone among the drivers subsequently re- ceived a slip from Respondent for purposes of the state employment security office stating that he had been "discharged" because of his refusal to "carry out instructions."5 As for the four drivers terminated on October 10, although we believe there is reason to be suspicious of Respondent's motives in ending their employment, we are not prepared on the basis of this record to disturb the Administrative Law Judge's findings and conclusions with respect to them. We note in this regard that there are numerous factual differences between their situation and that of employee Free- man.' THE REMEDY Having found that Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act, we shall order it to cease and desist therefrom and take certain affirmative action designed to effec- tuate the policies of the Act, including the offer of reinstatement of Larry N. Freeman, with backpay' computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest added Bullock also testified that it was Respondent's "policy" to discharge a driver who refused to cross a picket line. Although Respondent 's counsel thereafter denied that this was the policy, Bullock's testimony, particularly in view of all the surrounding circumstances , tends to support the conclusion that Freeman's discharge was not motivated by business necessity. 5 Compare Overrate Transportation Company, supra 6 Our action in adopting the Administrative Law Judge 's Decision as mod- ified herein should not be construed as endorsing his observations with respect to the views on concerted activities expressed by the Court of Appeals for the Fourth Circuit in N L R B v Union Carbide Corporation, 440 F 2d 54. 56 (C.A 4, 1971)., cert. denied 404 U S 826 (1971) thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Respondent, Overnite Transportation Company, Bristol, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with the rights of employees to en- gage in protected concerted activity by discharging them in violation of Section 8(a)(1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Larry N. Freeman immediate and full reinstatement to his former fob or, if that fob no lon- ger exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss he may have suffered by reason of his unlawful discharge in the manner set forth in the sec- tion 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 records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Bristol, Tennessee, terminal copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 5, after being duly signed by Respondent's representative, shall be posted 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 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. - ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 9 OVERNITE TRANSPORTATION COMPANY 517 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with the right of employ- ees to engage in protected concerted activity by discharging them for refusing to cross a lawful picket line established at the premises of another employer. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL offer to Larry N. Freeman immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and,privileges, and make him whole for any loss or earnings he may have suffered as a result of his discharge. - All our employees are free to engage in concerted activities for their mutual aid and protection within the meaning of Section 7 of the Act or to refrain from such activities. OVERNITE TRANSPORTATION COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Telephone 301- 9462-2822. idated complaints I issued by the General Counsel of the National Labor Relations Board and answers filed by Over- nite Transportation Company, hereinafter called the Re- spondent. The issues raised by the pleadings in these consolidated proceedings relate to whether the Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by terminating the employment of 5 em- ployees because they engaged in protected concerted activi- ties as defined in Section 7 of the Act. On February 28, 1974, Administrative Law Judge Asher died, thus invoking the procedures specified in Section 5(c) of the Administrative Procedure Act (5 U.S.C. 554(d))2 and Section 102.36 of the Board's Rules and Regulations, Series 8, as amended. Thereafter all parties consented to waive a hearing de novo and agreed to the designation of another Administrative Law Judge in his place. Effective March 20, 1974, the undersigned Chief Administrative Law Judge des- ignated himself to write the decision in these consolidated proceedings. No objection has been received to such desig- nation. Upon consideration of the record, including the brief filed by the General Counsel, I hereby make the following: FINDINGS OF FACT AND CONCLUCIONS 1. PRELIMINARY MATTERS (COMMERCE, JURISDICTION, AGENCY, AND THE STATUS OF THE LA- BOR ORGANIZATION) The complaints allege, the answers admit, and I find that (1) the Respondent is engaged in the local and interstate transportation of freight by motor carrier; (2) the Respondent's operations and revenues satisfy the Board's standards for the assertion of jurisdiction over interstate freight carriers; (3) the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act; (4) Ernest Bullock and John Cole, who are, respectively, the Respondent's terminal manager and assistant terminal manager at Bristol, Tennessee, are supervisors and agents of the Respondent Company within the meaning of Section 2(11) of the Act; and (5), the United Textile Workers of America, AFL-CIO, Local 532, herein called Textile Workers, is a labor organization within the meaning of Sec- tion 2(5) of the Act. II THE UNFAIR LABOR PRACTICES ALLEGED In the consolidated complaints the General Counsel has alleged that the Respondent violated Section 8(a)(1) of the DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: This case was heard before Administrative Law Judge Sydney S. Asher at Bristol, Tennesse, on January 3, 1974, upon consol- 1 The complaint in Case 5-CA-6370 was issued on November 21, 1973, a charge filed on October 16, 1973, and served on the Respondent on said date, and the complaint in Case 5-CA-6385 was issued on November 21, 1973, a charge filed on October 23, 1973, and served on the Respondent on October 24, 1973 On November 21, 1973, the Regional Director for Region 5 issued and served the parties an order consolidating , cases, thereby consolidating said cases for hearing 2 Section 554(d) provides, in relevant part, that "The employee who pre- sides at the reception of evidence pursuant to Section 556 of this title shall make the recommended decision or initial decision as required by Section 557 of this title, unless he becomes unavailable to the Agency." 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act when it terminated' the employment of Bynum Paul McKinney, Billy M. Benfield, Grayson Street, Jerry W. Tibbs, and Larry N. Freeman because the named employ- ees engaged in protected concerted activities by refusing to cross picket lines established by'the United Textile Workers of America, AFL-CIO, Local 532, hereinafter called the Union, at the premises of Leon Ferenback, Incorporated, at Johnson City, Tennessee. The Respondent's answers deny the allegation of terminations , but the Respondent admits that the 5 employees were separated from their employment when they refused to cross the picket line in order to permit the Company to hire replacements who would make freight deliveries to the Ferenback plant. A. The Facts The facts in this proceeding) are little in dispute. The Respondent, as a part of its overall interstate operations, maintains a terminal at Bristol, Tennessee, from where it employs both over-the-road and local drivers. At times ma- terial to these cases the Respondent employed 25 to 30 local drivers out of the Bristol terminal, who reported on various shifts, and who generally made local deliveries within a 50-mile radius of Bristol, including deliveries of freight peri- odically made to the Leon Ferenback plant at Johnson City. On September 27, 1973,4 employee Freeman reported to work on the 9 a.m. shift and about lunchtime was dis- patched with a load of freight to the Ferenback plant. When given the order Freeman questioned the dispatcher, Curtis Milhorne, about the strike at the Ferenback plant, indicated to Milhorne that he was aware that some trouble had oc- curred, and asked what he should do if he encountered difficulty in making the delivery. Milhorne replied that Freeman should take the load, but if trouble ensued Free- man should call Milhorne or the terminal manager. When Freeman attempted to deliver his load at one gate at the Ferenback plant he was met with 8 to 10 pickets, and he was threatened that he would be sorry if he tried to cross the picket line. Apparently at the suggestion of the pickets Freeman tried another entrance to the plant, but Freeman was told by a picket along the way that if he went through the'gate the picket would bust his head. Freeman encoun- tered similar resistance and threats at the second gate, so he parked his truck and entered the Ferenback premises to call the Bristol terminal. Freeman called the terminal manager, Ernest Bullock, told Bullock of the resistance and threats, and was instructed by Bullock to bring his load back to the Bristol terminal. When Freeman returned to the terminal he was given a 3 The General Counsel's use of the term "terminated," as opposed to "discharged," leaves some doubt as to whether the contention is that the employees were irrevocably separated from their employment as proscribed by case law expressed in Rockaway News Supply Company, 95 NLRB 336, or replaced under conditions where the Respondent has not shown the requisite necessity dictated by overriding business consideration as promulgated by the Board's rule in Redwing Carriers, Inc, 137 NLRB 1545 The General Counsel's brief, relying in major part on the decision of the Administrative Law Judge in Overnite Transportation Company, 209 NLRB No 112, further confuses the issue, but on the whole record, and particularly upon the Gener- al Counsel's reliance on a certain antiunion expression of one of the Respondent's agents, I am inclined to the belief that it is the General Counsel's contention that the employees were discharged 4 All dates hereinafter are in 1973, unless specified to the contrary message by Milhorne that Bullock had left instructions that Freeman was to report for work at 8 a.m. the following morning to take the load of freight back to the Ferenback plant. After work on September 27, Freeman met with approxi- mately 15 to 20 other drivers in the company parking lot. Employees Tibbs and McKinney were among the drivers who attended the meeting. Freeman explained what had happened at the Ferenback plant and informed the employ- ees of Bullock's order to return with the load on the follow- ing morning, and the employees agreed that if Freeman was fired they would back him 100 percent by having a meeting with Bullock to have Freeman reinstated. Freeman, whose regular reporting time was 9 a.m., re- ported to work at 8 a.m. on September 28, but was dis- patched with a load to another location, and not to the Ferenback plant. On October 5, however, Dispatcher Kelly Terry directed Freeman to take another load of freight to the Ferenback plant. Freeman informed Terry that he had previously been warned and threatened about crossing the picket line at the Ferenback plant, and argued with Terry about the assignment. Terry called the assistant terminal manager, John Cole, and Freeman renewed his argument that he had previously been warned of a busted head and did not want to return to the Ferenback plant. Freeman did not prevail in the argument, however, and drove the load of freight to Johnson City, but with the warning that he would not cross the picket line. Freeman was met by the pickets before he arrived at the gate at the Ferenback plant. He stopped at the first gate, explained to the pickets that he did not want any trouble, but was reminded by the pickets that he had been warned before. Freeman parked his truck, walked to the second gate, and was again reminded by the pickets that he had previously been warned as to the consequences of crossing the Ferenback picket line. Freeman parked his truck, en- tered the premises, called Dispatcher Terry, told Terry that he did not want his truck or his head torn up, and would not cross the picket line. Terry replied that there was noth- ing he could do, and transferred Freeman's call to Terminal Manager Bullock. Freeman explained to Bullock that he had already stated that he would bring the load to Ferenback, but would not cross the picket line. Bullock replied that there was nothing left to do but replace Freeman. Freeman asked if Bullock intended to fire him because he wouldn't cross the picket line with a chance of getting his head busted, getting the truck torn up, or being run off the road. Bullock answered that he was sorry, but had no alternative but to replace Freeman. At Bullock's request, nevertheless, Freeman agreed to remain with his equipment until another employee could be sent out. Later a company salesman, Bob Mullins, appeared at the site with another driver, Gene O'Neil. Freeman ex- plained what had happened, Mullins directed O'Neil to pro- ceed to make the delivery, and Freeman returned to the terminal with Mullins.I At the terminal Freeman reported to Bullock's office, but Bullock refused to discuss the matter and directed Freeman to leave the premises and not to return. At a later time Freeman received a slip, filed by the Respondent with the OVERNITE TRANSPORTATION COMPANY 519 Tennessee Department of Employment Security, which re- cited that Freeman was separated because he "did not carry out instructions." On cross-examination Freeman was questioned as to the reason he refused to cross the picket line at-the Ferenback plant. Freeman replied that he was scared, that he had been threatened with a busted head, and that he was fed up with Leon Ferenback and afraid to cross the picket line. Free- man also admitted on cross-examination that his prehearing affidavit given to the Board's agent contained no mention of the meeting of drivers which he testified took place after his assignment to the Ferenback run on September 27. Bynum Paul McKinney, like Freeman, was employed by the Respondent at Bristol, and operated a tractor-trailer rig on local deliveries in the tri-state area within a 50-mile radius of the terminal. Also like the other drivers named in the complaints, McKinney had customarily made freight deliveries to the Ferenback plant at Johnson City before events occurred in September and October which caused him to refuse to enter the Ferenback premises. On September 24, McKinney was dispatched with a com- bination load to Johnson City. After several stops he ob- served a picket line at the Ferenback plant, and because a part of his load was destined for that customer he called Assistant Terminal Manager John Cole. McKinney ex- plained that all he had left to deliver was the Ferenback freight, and asked if Cole wanted him to cross the picket line. Cole replied, "No," but instructed McKinney to stop at another location and pick up some freight which employ- ee John Boozer had failed to deliver to Ferenback because of unwillingness to cross the picket line. McKinney picked up Boozer's freight and returned it to the terminal together with his undelivered consignment for Ferenback. On October 9, McKinney reported for work at 9 a.m. and was dispatched with a load for Ferenback's plant No. I at Johnson City. When McKinney arrived at Johnson City no pickets were visible, and after talking with a Ferenback foreman he entered the premises and made the delivery. The pickets had arrived by the time McKinney departed, but apparently nothing was said. On the following day, October 10, McKinney was sent to a pharmacy in Johnson City to drop a trailer to be unload- ed. While at the pharmacy McKinney called Dispatcher Kelly Terry, and was instructed to go to the K-Mart parking lot to pick up a load from employee Billy Benfield. Benfield's load was destined for Ferenback, but Benfield had refused to cross the picket line. McKinney arrived at the K-Mart parking lot, talked to Benfield, and then took Benfield's tractor-trailer to the Ferenback plant. When he arrived McKinney observed 8 or 9 pickets stationed across the entryway at both Ferenback gates. At this juncture salesman Bob Mullins drove up and asked McKinney if he intended to cross the picket line. McKinney replied that he could not afford to endanger his family or himself, and refused to cross. McKinney waited while Mullins called the terminal, and then drove the tractor-trailer back to the ter- minal, while'Mullins and Benfield returned in the former's automobile. Back at the terminal, McKinney reported to Dispatcher Milhorne, and was instructed to see Terminal Manager Bul- lock. Bullock, with Cole present, asked McKinney what his problem was, and McKinney replied that he was afraid for -himself and his family to cross the picket line. Bullock asked if McKinney's problem was with the pickets at Johnson City or with employees Benfield and Street. McKinney replied that the problem did not involve any of Overnite's employ- ees, and refused Bullock's request that he reconsider and deliver the consignment to the Ferenback plant. Bullock answered that he would have to replace McKinney, and shut off all further argument by McKinney concerning the danger in crossing the picket line. McKinney also testified that he attended the meeting of drivers in the company parking lot, previously described in the testimony of Larry Freeman. According to McKinney, 20 or 30 employees attended the meeting, but he was unable to recall who the employees were or who spoke, and only generally recalled some conservation about not crossing the picket line at Leon Ferenback. McKinney further testified that on an undisclosed day, which he approximated as a month or two before his separa- tion, he had a conversation with Assistant Terminal Manag- er John Cole, at which Cole asked if McKinney knew of any drivers available for hire. McKinney mentioned his wife's cousin, and Cole asked who the individual drove for. Mc- Kinney was unable to provide an answer, and Cole asked if the proposed candidate was driving for a union outfit. McKinney assured him that he had no such knowledge and Cole stated, "We don't want none of that damn stuff around here, we have enough bitching and griping the way it is." On cross-examination McKinney admitted to knowledge that Ferenback was a very good customer of the Respon- dent, that McKinney had repeatedly made deliveries to that location, and there was nothing unusual about his dispatch on the Ferenback run. McKinney agreed that his reason for not crossing the picket line was fear for what might happen to his family and himself. Like Freeman, McKinney admit- ted that his prehearing affidavit contained no mention of the drivers' meeting held in the company parking lot. He also admitted that he is not a member of, or represented by, the United Textile Workers. Billy Benfield, unlike Freeman and McKinney, was em- ployed as both an over-the-road and a local driver out of the Bristol terminal. As related above in conjunction with Mc- Kinney's testimony, Benfield refused to cross the picket line at Leon Ferenback's, and he was afraid for his own safety and that of his family to cross the picket line. Terry replied that Benfield was to call Bullock if he did not make the delivery. Benfield stopped on the outskirts of Johnson City, called Ferenback, and was told that there were pickets at plant No. 1, but not at plant No. 2. He proceeded to plant No. 2, but stopped at the entrance where 4 pickets were stationed. The pickets explained that it was a legal strike and they did not want Benfield to cross the picket line. A Ferenback shipping clerk came out and told Benfield to enter and that the pickets would not bother him: Benfield replied again that he was concerned with the safety of himself and his family, and was told by the clerk to proceed to the south gate. The clerk accompanied Benfield to the south gate where 2 or 3 pickets were present. The pickets again informed Benfield that a legal strike was in process and he was not to cross the picket line. Benfield moved the truck to the 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD K-Mart parking lot, called Bullock and told him that there was a strike and a picket line at Ferenback's. Bullock ex- pressed awareness of these facts , and Benfield told him that he feared for his safety and that of his family if he crossed the picket line. Bullock replied that he had no alternative but to replace Benfield , but told him to stay where he was and someone would be sent to pick him up. When Benfield returned to the terminal he met with Bul- lock and again expressed fear about crossing the picket line. Bullock answered that if Benfield would take the assign- ment back and deliver it to Ferenback he could keep hisjob, otherwise Bullock would replace him . Benfield refused and left the terminal. Upon cross-examination Benfield admitted that there was nothing unusual about his dispatch to deliver freight to Leon Ferenback, and that his only reason for refusing to cross the picket line at Ferenback was that he was afraid for himself and his family. Benfield also admitted that this was the singular and sole reason he gave the Respondent's agents when he refused the delivery assignment given him. Grayson Street was initially employed by the Respondent as an over-the-road driver, but from October 1973 until the date of his separation he was employed as a local driver out of the Bristol terminal. On October 10, Street was dis- patched , at the same time as Benfield , to take a consignment of freight to Leon Ferenback . Also like Benfield, Street was given a telephone number to call when he reached Johnson City. At the outskirts of Johnson City, Street stopped while Benfield made a telephone call, and he then proceeded to Ferenback 's plant No. 1, where he met pickets at the en- trance. The pickets asked Street not to cross the picket line and he contacted Assistant Terminal Manager John Cole. Cole told Street to deliver the freight and to ignore the pickets, but Street replied that he was afraid to make the delivery. Cole transferred the call to Bullock , who repeated the instruction to Street to take the freight into the Feren- back plant and deliver it. Street refused on grounds of fear and Bullock asked if Street knew what the consequences would be. Street countered that he understood Bullock would fire him, but Bullock replied , "No, I will dust replace you." Street expressed his unwillingness to cross the picket line and was told by Bullock to remain where he was and someone would be sent to replace him. Jerry Tibbs, another local driver, subsequently appeared at the scene with salesman Mullins, and Street engaged Tibbs in a conversation to the effect that Street did not want to influence Tibbs' choice about crossing the picket line. Tibbs in turn told Mullins that he would not cross the picket line to enter the Ferenback premises , but Mullins persisted in the argument that one employee or the other should deliver the Ferenback freight. Mullins did not persist and left to make a telephone call. When Mullins returned he instructed Tibbs to drive Street 's truck back to the terminal. Street accompanied Mullins to the K -Mart parking lot while Mullins instructed McKinney to take the truck assigned to Benfield to Leon Ferenback. Street subsequently returned to the terminal with Mullins and Benfield, with McKinney following in Benfield 's truck. At the terminal Street was instructed to report to Bullock, who asked Street to reconsider and deliver the freight to Ferenback . Street refused and Bullock informed him that there was no choice but to replace him. On further direct examination Street testified that he had been a member of the Textile Workers Union, but admitted that his former membership in the Union had nothing to do with his refusal to cross the picket line at the Ferenback premises. On cross-examination Street admitted that he was never threatened about crossing the picket line, but also admitted that when he called Cole after refusing to make the delivery he gave as his reason , "Because I was afraid to cross the picket line." Street further admitted that in his later conversation with Bullock , he told Bullock he "was afraid to go in there." Street further admitted that neither in his statement to company officials, nor in the information he provided to the Board , did he mention any reluctance about crossing the picket line because he was concerned "about running over men trying to help themselves." Street finally admitted that there was nothing unusual about his dispatch to Ferenback, and that he had made both pick ups and deliveries from this customer before. In further examination the Administrative Law Judge posed the following questions to the witness Street: JUDGEASHER Mr. Street, you testified that at one time you were a member of the Textile Workers Union? WITNESS Yes JUDGE ASHER Were you a member of the Textile Workers Union at the time you refused to cross their picket line? WITNESS No. JUDGE ASHER Do I understand-I do not want to put words in your mouth, Mr. Street, but I just want to make sure that I understand your testimony If I have misunderstood it, you are to correct me. Do I under- stand that one of the reasons you refused to cross the picket line was a matter of principle? WITNESS Yes. JUDGE ASHER And the other reason was that you were scared? WITNESS That is right. JUDGE ASHER And there were two reasons? WITNESS Yes. JUDGE ASHER And both of these reasons contributed to your decision not to cross the picket line WITNESS Yes. JUDGE ASHER That is what I thought you testified but I wanted to be sure. In furtherance of the foregoing questions and answers Street was further cross-examined by the Respondent. In this examination Street admitted that his motive of sympa- thy with the Ferenback strikers was never mentioned to the Respondent as a reason for refusing to cross the picket line, was never furnished to the Board's agents in any prehearing interview of correcpondence , and was advanced by Street for the first time during the course of the hearing. Much of the evidence of the background events leading to the separation of employee Jerry Tibbs has been outlined above. In capsulization , Tibbs was dispatched on October 10 with a consignment of freight for Leon Ferenback. Tibbs OVERNITE TRANSPORTATION COMPANY 521 was told by Cole that Grayson Street had refused to cross the picket line at Ferenback plant, but Cole only repeated his instructions. Salesman Mullins drove Tibbs to Ferenback's plant No. 1. Tibbs then conversed with the pickets, and was asked if he had figured out the conse- quences of what would happen if he crossed the picket line. Tibbs was also warned that there were ways of getting peo- ple who ran frieght across a picket line. Tibbs conferred with Street, and then informed Mullins that he would not take the consignment across the picket line. Mullins made a call and directed Tibbs to take the truck back to the terminal. Back at the terminal Tibbs saw Bullock, who asked him to reconsider. Tibbs refused on grounds that he could-not take the chance of involving himself or his family, and that he didn't want to hurt anyone else. Bullock replied that he was left with no choice but to replace Tibbs. On direct examination Tibbs related that he attended the meeting of drivers held in the company parking lot in late September. According to Tibbs' version several employees gathered in the parking lot and had a discussion about the ordeal Freeman had suffered when he attempted to deliver freight to the Ferenback plant. Freeman told the group that he did not want to cross-the picket line because he had been threatened. According to Tibbs he stated to the drivers that he did not want to cross because the Ferenback employees were trying to help themselves, and several other employees, including Freeman and McKinney, joined in this expression and agreed not to cross the picket line. On cross-examination Tibbs acknowledged that he made no mention of the drivers' meeting in the affidavit of facts previously furnished to the Board' s agents. Tibbs similarly admitted that in the information he provided to the Board he had given as his reason for not crossing the picket line, "I'did not want to go because there had been a lot of violence on that picket line and I had children and I asked him to send another driver." Finally, Tibbs also admitted on cross that when he approached the picket line on October 10, he observed men in a car with rifles and shotguns, was threatened by the pickets, and returned to the terminal to tell Bullock he would not cross for fear that something might happen to his family or himself. B. The Respondent's Defenses It is a defense of the Respondent that an employee who refuses to cross a picket line because of physical fear is not engaged in concerted activity because he does not act on principle, makes no common cause, and contributes noth- ing to mutual aid or protection in the collective-bargaining process.5 It is an alternative defense of the Respondent that the five employees named in the complaints were not dis- charged, but rather replaced because of the Company's overriding business necessity to serve a customer and, ac- cordingly, the five employees have status only as replaced economic strikers who have not applied to return to work .6 In support of its alternative defense, the Respondent elic- ited the testimony of Terminal Manager Bullock, who testi- fied, as is otherwise well established in the record, that Leon Ferenback, Incorporated, is a regular and substantial cus- tomer of the Respondent's Bristol terminal. Freight pickups and deliveries from Fer enback's Johnson City plants consti- tuted an established portion of the Respondent 's business before the strike called by the Textile Workers, and has continued as a substantial portion of its Bristol business during the strike. According to Bullock , the Respondent's business records reflect that during the 4-month period of September through December, 1973, the Respondent sent or received approximately 30 to 32 trailer loads of freight each month from the Ferenback plants. Bullock also testified that Respondent's local drivers are assigned to regular runs, and that 8 to 12 local drivers are required to service Feren- back out of the Bristol terminal. The Respondent operates under an ICC certificate, and after the strike by the Textile Workers began the Respon- dent received a call from Ferenback to the effect that legal action would be instituted if the Respondent did not contin- ue to service its customer . When the five employees persist- ed in their refusals to cross the picket line , Bullock replaced the employees, and, according to his uncontradicted testi- mony, the replacements are still employed and the replaced employees have not applied to return to work . Although the strike has continued , the Respondent has also continued to make pickups and deliveries at Ferenback's plants. The General Counsel conducted a very limited cross- examination of Bullock , touched only peripherally on Bullock's direct testimony concerning the Respondent's business necessity, and the hiring and continued employ- ment of replacements. The General Counsel offered no re- buttal evidence to refute or alter the evidence established by Bullock's testimony. C. The Conclusions Some fundamental legal principles involved in this pro- ceeding are well established under a substantial body of legal precedent, and can be disposed of at the outset. Non- striking employees who refuse as a matter of principle to cross a picket line maintained by their fellow employees have made common cause with the strikers, are engaged in protected concerted activities as defined in Section 7 of the Act, and may not lawfully be discharged.7 It is not material that the employee who refuses to cross the picket line is not a member of the picketing union, is not represented as part of the collective-bargaining unit, or that the picketing is directed at another employer! It is a contention of the General Counsel, relying on the testimony of Bynum Paul McKinney, that the Respondent's motive in terminating the 5 employees was dictated by an- tiunion considerations, and that the issue of the replacement of the employees has simply been interjected by the Respon- dent as a subterfuge masking its discriminatory motive. Mc- Kinney's testimony concerning the remarks made by 5 N.L R.B. v. Union Carbide Corporation, 440 F 2d 54, 56 (C.A. 4,197 1), cert denied 404 U.S 826, 1971. 6 N.L.RB. v. Southern Greyhound Lines, Division of Greyhound Lines, Inc. 426 F.2d 1299 (C A. 5, 1970). N L R B v. Southern Greyhound Lines, supra; N L R B v Difco Laborato- ries, Inc . 427 F 2d 170 (CA 6, 1970). 8 Nuodex Division of Tenneco Chemicals, Inc , 176 NLRB 611, Braswell Motor Freight Line, 189 NLRB 503. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assistant Terminal Manager Cole during a conversation about candidates for drivers' jobs was not contradicted or rebutted by the Respondent, and I credit McKinney's testi- mony. I find, nevertheless, that a single expression of union animus, made at a time substantially in advance of all events material to this case, and spoken in a context totally unrelated to the separations, is too isolated and remote to warrant a finding that the Respondent's motive was that proscribed by Section 8(a)(1) and (3) of the Act. The Gener- al Counsel's contention is rejected It is the General Counsel's further contention that the termination of the five employees for refusing to cross the Ferenback picket line, and irrespective of whatever motive impelled them to refuse to make the freight deliveries, is per se a violation of Section 8(a)(I) of the Act. The General Counsel argues that the focal point of the inquiry is the activity itself, that is the employees' act in making common cause with the Ferenback strikers by refusing to cross their picket line, and that the employees' motives for engaging in the activity are totally irrelevant. As support for her contention that motive is irrelevant, the General Counsel relies on language in Administrative Law Judges' decisions in the Cooper Thermometer 9 and Nuodex 10 cases, and particularly on the language that the focal point of the inquiry is the nature of the activity, not "the employee's motives for engaging in the activity." There is no doubt the cases relied on by the General Counsel contain, in haec verba, the quoted language, but in my view both cases are clearly distinguishable on the facts from the situation here. In Cooper Thermometer the employee's justi- fications for refusing to cross a picket line were (I) the danger involved, (2) the reluctance to be a strikebreaker, and (3) knowledge that she would be depriving the strikers of their jobs. Here, I find that the sole motivation of the employees was physical fear The Nuodex case, moreover, did not turn on any evidence of the employee's subjective motive in refusing to cross the picket line, albeit the issue of motive was injected into the Administrative Law Judge's decision. The Board's decision in Nuodex simply denied the employer's contentions that an employee is not engaged in concerted activity when she is not a member of the bargaining unit, or refuses individually to cross, as opposed to refusing in concert with others. Although not cited by the General Counsel, I find that the Board's decision in the Congoleum Industries case,' 1 on a factual situation which closely parallels the facts of these cases, is diapositive of the issue of whether the five employ- ees named in these complaints were engaged in concerted activity. In Congoleum the sole .reason advanced by the discharges for refusing to cross a picket line, maintained by a union which they were neither members of nor repre- sented by in the bargaining unit, was physical fear. The Administrative Law Judge, without relying on the employer's antiunion motives expressed in other aspects of the case, found that the discharges constituted per se viola- tions of Section 8(a)(1). The Board adopted the finding as to both the protected and concerted nature of the employ- 9 The Cooper Thermometer Company, 154 NLRB 502, 504 10 Nuodex Division of Tennesco Chemicals, Inc, 176 N LRB 611 11 Congoleum Industries, Inc, 197 NLRB No 52 ees' activities. As related above, the Respondent relies on the decision of the Court of Appeals for the Fourth Circuit in Union Carbide Corporation, supra, for the proposition that an em- ployee who refuses to cross a picket line solely for reasons of physical fear is not engaged in concerted activities be- cause he does not act on principle, makes no common cause, and contributes nothing to mutual aid and protection in the collective-bargaining process. 12 In my view much is to be said to the Fourth Circuit's rationale in Union Carbide, par- ticularly under circumstances, as the credited testimony re- veals here, where the physical fear which caused the employees to act was unattended by any mixed motive con- ducive to a finding of intent to engage in a common cause. Put blindly, an act undertaken because of physical fear is the very antithesis of the assertion of a principle to make common cause, or "plight one's troth with the strikers." I am bound, nevertheless, by Board law until the Supreme Court has overruled that law, or until the Board has adopted a contrary rule. Inasmuch as the Board cited the Fourth Circuit's Union Carbide decision in Congoleum Industries, albeit in support of another proposition, Congoleum obvi- ously rejects the courts' view and constitutes the controlling law for purpose of this decision. I find, accordingly, that the five employees named in the complaints were engaged in protected concerted activity when they refused to cross the picket line at the Ferenback plants. With regard to the Respondent's alternative defense, the General Counsel argues that the Company did not seriously attempt to establish an "overriding employer interest" re- quiring "termination" of the five drivers except by oblique reference to its ICC certification and possible "action through their lawyers" by Ferenback The General Counsel also argues against the Respondent's contention that the separated employees are economic strikers who have an obligation to make an unconditioned application if they wish to return to work. In support of her arguments, coun- sel for the General Counsel relies on the decision of the Administrative Law Judge in an earlier case involving one of the Respondent's other terminals.13 I find that the Gen- eral Counsel's arguments on the replacement issue lack merit both factually and legally. In the second Redwing case 14 the Board, while acknow- ledging that the' act prohibits reprisals against employees who engaged in protected activity, by refusing to cross a picket line, acknowledged the employer's corresponding right to attempt to run its business, which must be balanced against the right of the employees. In distinguishing be- tween replacement ahd discharge, the Board held: In considering the continued validity of the dis- charge-replacement distinction in this situation, 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 oper- li Union Carbide, supra at p 56 13 Overnice Transportation Company, 209 NLRB No 112 14 Redwing Carriers, Inc.and Rockana Carriers, Inc, 137 NLRB 1545; affd sub nom Teamsters, Chauffeurs and Helpers Local Umon No 79 v N. L R B , 325 F 2d 101 1 (C A D C , 1963), cert denied 377 U S 905 (1964) OVERNITE TRANSPORTATION COMPANY 523 ation of his business, and terminated the services of the employees only so it could immediately or within a short period thereafter replace them with others willing to perform the scheduled work, 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 chronological order in which the employer terminated and replaced the employees in question. In a subsequent case,15 the Board expanded on its ratio- nale in Redwing, supra, by holding: ... if the protected right of employees is to have any meaning at all, then the employer who would justify a discharge on the basis of an overriding employer inter- est must present more than a mere showing that some- one else may have to do the work. . . . and it is only when the employer's business need to replace the em- ployees is such as clearly to outweigh the employees' right to engage in protected activity that invasion of the statutory right is justified. It is essential, of course, that the business need of the employer constitute more than a slight inconvenience,16 as it is equally essential that the employer prove that replace- ments were hired to perform the work, and not merely that the work was transferred to other employees on the pay- roll. 17 Upon the whole record before me, I find that the Respon- dent has met the "stringent"18 burden to prove that it re- placed the employees who refused to cross the picket line for valid reasons dictated by business necessity. There is, in the first instance, no evidence that the employees were dis- charged. Each employee was told at the time of his separa- tion that he would have to be replaced, and there is no realistic evidence that the Respondent was engaging in a subterfuge to hide an antiunion motive, or to discourage other; employees from engaging in concerted activity. The replacements were hired, did deliver freight to Ferenback during the continuation of the strike, and were still em- ployed on the date these cases were heard. As to the Respondents' business need, I find that Leon Ferenback, Inc., is a substantial customer of the Respondent's Bristol terminal, and that pickups and deliv- eries of freight from Ferenback's 'plants at Johnson City were a substantial portion of the work assigned to the local, and some over-the-road drivers, at the Bristol terminal. Al- though I find that the Respondent's drivers were not as- 15 Overnice Transportation Company, 154 NLRB 1271, 1274 16 Braswell Motor Freight Line, 189 NLRB 503, 506 17 Montana-Dakota Utilities Co., 189 NLRB 879; Congoleum Industries, supra. is Braswell Motor Freight, supra signed to fixed and regular runs, pickups and deliveries, at the Ferenback plants constituted a substantial portion of the regular work of all drivers at the Bristol Terminal, in- cluding the five drivers whose status is here in contest.19 I find no evidence in the record to substantiate the contention that the Respondent could have assigned other drivers to take the place of those who refused to cross the picket line. On the contrary, the evidence is that the Respondent did attempt to substitute other drivers on Ferenback deliveries, but with the same result that the substitutes also refused to cross the picket line. As the Board has held, the employer is obligated to "present more than a mere showing that someone else may have to do the work," but this does not mean that the employer is required to institute a "tempo- rary, makeshift arrangement" or emergency procedures in order to preserve the efficient operation of his business 20 I find and conclude that the Respondent met its burden of proof of its business necessity, that the employees were replaced, not discharged, that replacements 21 were hired to perform the work which the separated employees refused to perform in the exercise of their right to engage in concerted activity, and that the replacements did perform the work and have continued to be employed. As the Respondent established the requisite evidence to meet its burden of proof under Redwing, Braswell, and related cases, the bur- den of going forward shifted back to the General Counsel to prove that the facts were not as proffered by the Respondent's evidence. Having failed to meet this burden, I find and conclude that the General Counsel has not proved by a preponderance of the evidence that the Respon- dent violated the Act, and I shall recommend that the com- plaint be dismissed in its entirety. CONCLUSIONS OF LAw 1. The Respondent, Overnite Transportation Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, United Textile Workers of America, AFL-CIO, Local 532, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not violated the National Labor Relations Act as alleged in the complaint. [Recommended Order omitted from publication.] 19 Overnite Transportation Company, 209 NLRB No. 112 at p. 4. 20 Overrate Transportation, Ibidd, at p 4, citing Overnite Transportation Com- pany, 154 NLRB 1271, 1274, and Thruston Motor Lines, Inc, 166 NLRB 862, 866 21 The General Counsel appears to contend that even if the employees were replaced on grounds of the Respondent's business need, they have no obliga- tion to apply for reinstatement. Employees who refuse to cross a picket line in the exercise of their sec. 7 rights are economic strikers and entitled to reinstatement upon request. M/G Transport Services, Inc , 204 NLRB No 59. The record reveals that none of the employees have applied for reinstate- ment The General Counsel's reliance on Braswell, supra, Overnice Transpor- tation Company„ 154 NLRB 1271, and Nuodex, supra, is misplaced because of those case, unlike here, the employees were discharged, not replaced, and here it would not be a futility for them to apply to return to work.