Newbery Energy Corp.

436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newbery Energy Corporation, Industrial Division' and Allan Muggli. Case 28-CA-3533 December 20, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On May 19, 1976, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in response to the General Counsel's exceptions. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint alleges that Respondent unlawfully discharged five strikers who refused to cross a picket line at the entrance to Respondent's jobsite. The Administrative Law Judge dismissed the complaint, concluding that Respondent's actions were justified by the need to continue the efficient operation of its business. Contrary to the Administrative Law Judge and for the reasons set forth below, we find that Respondent's discharge of the striking employees constitutes a violation of Section 8(a)(1) and (3) of the Act. On May 27 and 28, 1975,2 Respondent was engaged as an electrical subcontractor to provide services at the Anamax Twin Buttes Mine near Tucson, Arizona, under the terms of an arrangement with Mountain States Engineering, the general contractor at the project. Respondent's employees were represented by the International Brotherhood of Electrical Workers, Local 570, hereinafter referred to as the Union. On the morning of May 27, Respondent's general foreman, George Faccio, informed Respondent's normal crew of nine employees (all members of the Union) that the Teamsters had erected a picket line pursuant to a dispute wholly with State Mining and Construction, a separate contractor at the Anamax project. He also advised them, relaying a message 1 The name of the Employer appears as amended at the hearing 2 Hereinafter, all dates refer to 1975. 3 The collective-bargaining agreement between Respondent and the Union contained, inter aha, an exclusive referral provision , In order to insure the availability of referrals for employment on May 28, Respondent was required to place an order for replacements by 3 p.m. on the preceding day 4 Under the normal operation of the referral system when a referral would 227 NLRB No. 58 from the Union, that the Union's official position was that they should continue to work. Employees Erickson, McRaskle, Muggli, Muscutt, and Terwilli- ger, however, were unwilling to work behind the picket line and, consequently, refused to accompany the rest of the crew to the jobsite. Respondent's assistant manager, Horace Bounds, was informed of the situation in the early morning hours of May 27. Thereafter, at noon and again at 2:30 p.m., Bounds contacted Union Business Agent Richard George in the hope of ascertaining the likely duration of the picketing. George in effect stated that he did not know. On both occasions, Bounds empha- sized the necessity of maintaining a full crew in order to achieve timely completion of Respondent's con- tractual obligations. On the last occasion, Bounds requested George to dispatch five journeymen to the jobsite at 7 a.m. the following morning.3 Shortly thereafter Bounds issued instructions to have termi- nation slips prepared for Erickson, McRaskle, Mug- gli, Muscutt, and Terwilliger. On May 28, the five strikers arrived at the jobsite prepared to begin work at 7 a.m. Also present were four of the five journeymen who had been referred by the Union and Respondent's four employees who had decided to work the previous day. Upon arriving at the jobsite Faccio presented the five strikers with termination slips. The five subsequently departed the premises and were not thereafter employed on the Anamax project. Respondent manned the job on May 28 with a crew of eight rather than a crew of nine, its normal work complement. The one-man shortage resulted from the fact that the fifth man dispatched by the Union to the job had returned his referral to the hall. For a period of time on May 28, however, Faccio was unaware of this fact and assumed, as frequently happened with referrals, that the fifth man was merely late in arriving at the jobsite. Faccio did, however, inform Bounds later on the 28th that the fifth referral had not reported as directed. He further informed Bounds that the picketing had ceased. Bounds did not thereafter request an additional referral until May 30, apparently because he thought the Union would automatically refer another employee .4 Another journeyman was dispatched to the jobsite on Mon- day, June 2. All parties agree that the five alleged discriminatees were engaged in protected activity when, on May 27, they chose to honor the picket line. The Administra- be returned to the hall, the Union would automatically refer to the next name on the referral list for employment on the following day. The failure to abide by the normal procedure on this occasion was due to an error on the part of George's inexperienced assistant George was unaware of the failure of the fifth man dispatched to report to work until Bounds' additional request of May 30. NEWBERY ENERGY CORPORATION tive Law Judge, however, relying on the Board's decision in Redwing Carriers, Inc. and Rockana Carriers, Inc., 137 NLRB 1545 (1962), concluded that Respondent's termination of its five striking employ- ees was justified as necessary to preserve the efficient operation of its business. We do not agree. Redwing is distinguishable. There, the Board was faced with the question of whether an employer violates Section 8(a)(3) of the Act when it discharges employees who engage in a partial refusal to work in order to replace them with employees who are willing to perform alljob duties. The Board concluded that the employer therein did not violate Section 8(a)(3) by discharging drivers who refused to carry out permanent assignments which required them to cross a picket line at their delivery location at a customer's place of business although they remained on the job for the performance of all other work, since the discharges therein were necessary to enable the employer to operate its business. We are not here presented with the type of situation with which the Board dealt in Redwing. In the instant case, the picket line was located at the common construction site which constituted the employees' sole place of employment. Consequently, the employees who were unwilling to cross the picket line were forced to remain away altogether during the period of the picketing. Since the employees herein were engaged in a total rather than a partial work stoppage, Respondent was not faced with any business necessi- ty to discharge its striking employees in order to obtain replacements. The Administrative Law Judge appears to con- clude, however, that the situation herein is analogous to that in Redwing. Thus, he concludes that since Respondent's legitimate interest in timely completion of its project was jeopardized by its employees who engaged in a sympathy strike, Respondent was entitled to discharge the strikers in order to replace them with other employees who, by refraining from such conduct, would present no threat to its estab- lished time schedule. Employers are not entitled to discharge employees merely to obtain a work comple- ment less likely to engage in protected concerted activities. The practical effect of the Administrative Law Judge's holding would be the virtual abolition of sympathy strikes since employees would be reluctant to engage in such strikes where an employer could lawfully terminate them therefor merely by establish- ing a necessity to complete a job within a certain time frame. We thus reject the Administrative Law Judge's finding that business necessity justified the discharge S The Laidlaw Corporation v N L R B, 414 F 2d 99, 104-105 (C A 7, 1969), rehearing denied and rehearing en banc denied September 2, 1969, cert denied 397 U.S 920 (1970) 6 Sec 2 provides that: "The Union shall be the sole and exclusive source of referrals of applicants for employment " 437 of the five strikers herein. Nor may an employer terminate a striker solely because a replacement has been hired.5 Accordingly, we conclude that Respon- dent violated Section 8(a)(1) and (3) of the Act by discharging employees for refusing to cross a picket line at their place of employment. THE REMEDY Having found that Respondent's discharge of its striking employees violated Section 8(a)(1) and (3) of the Act, we shall order that they be reinstated to the status they held at the time of their discharge. The Administrative Law Judge concluded, and we agree, that at the time of their discharge, the status of the employees herein was that of strikers who had been lawfully replaced on the previous day. The General Counsel has excepted to this conclusion on the ground that Respondent's hiring of replacements did not occur until May 28 and thus occurred subsequent to its discharge of the striking employees. In support of his contention the General Counsel relies on article VI of the parties' collective-bargain- ing agreement which provides that: "The Employer shall have the right to reject any applicant for employment."6 The General Counsel argues that the latter provision establishes that the five journeymen referred by the Union pursuant to Respondent's May 27 request retained their status as "applicants" for employment on May 28. Thus he contends that Respondent's striking employees, by presenting themselves as ready and willing to return to work on May 28, unconditionally offered to return to work prior to the hiring of permanent replacements. We find no merit in General Counsel's contention. The Board has uniformly held that where an employer makes a commitment to an applicant for a striker's job it will normally regard that commitment as a legitimate replacement even though the striker re- quests reinstatement before the replacement actually begins to work.? Although those cases dealt with a commitment extended directly by the employer to the job applicant, we find the rationale of those cases to be equally applicable to the facts herein. Under the terms of the referral agreement, the Union is delegated the authority to refer individuals suited to the Respondent's needs subject only to a provision permitting Respondent's rejection of those referred. However, the existence of this right of rejection does not ipso facto mean that no employ- ment relationship can ever be established with Respondent unless the latter first personally approves those referred, or puts them to work. Conceivably, 7 Anderson, Clayton & Co Foods Division, 120 NLRB 1208, 1214 (1958), H & F Binh Co Plant of the Native Laces and Textile Division of Indian Head Inc, 188 NLRB 720, 723 (1971) 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD situations may arise where, due to the exigencies and nature of the occasion, Respondent finds itself willing to exercise its above contractual privilege. In such situations, there is nothing to prevent Respondent from doing so by informing the Union, either by conduct, statement, or both, that a given request for referral should be construed by all concerned as a commitment of hire, which attaches upon referral of the employees. We find that such a situation here exists. When the request for referrals was placed on the afternoon of May 27, Respondent emphasized the urgency which attended timely completion of the project and thus informed the Union of the necessity for immediate replacements willing to work behind the picket line. In view of Respondent's fixed resolve to meet its established time schedule in the face of certain of its employees going on strike, we conclude that in placing its request with the Union on May 27 the Respondent extended a firm commitment to hire in advance any replacements referred through the normal operation of the referral system. Such offer of employment was accepted, therefore, when the indi- viduals contacted by the Union accepted the referral. Thus in this emergency situation, there not only existed no realistic possibility that Respondent would exercise its residual right to reject the referrals, but we find that in effect it had waived that right because of the unusual circumstances created by the strike.8 Indeed, this conclusion gains credence from the fact that on May 28 there was no official present at the jobsite who possessed the authority to reject any of these referred. Accordingly, we find that the individu- als referred were in fact legitimate replacements hired prior to the strikers' application for reinstatement on May 28.9 However, as noted above, one of the five replace- ments failed to report for work, returning his referral to the hiring hall. Respondent subsequently obtained another referral. Thus, Respondent hired an addi- tional employee after the May 28 offer of reinstate- ment instead of recalling one of the five discrimina- tees. Accordingly, we shall require Respondent to reinstate at least one employee IO and any others whose former positions have become vacant, dis- charging if necessary any employees hired since May 28, 1975. The remaining strikers shall be placed on a preferential hiring list. We shall further order that Respondent make whole any discriminatorily dis- charged striker improperly denied reinstatement by 8 Of course this does not mean that Respondent thereafter would be precluded from severing the employment relationship with any of the replacements in the event they turned out to be unsatisfactory in the performance of their duties. 9 To hold otherwise in these circumstances unfairly signifies that a referral, who has legitimate reason to believe he has been hired and therefore cause to forgo other employment opportunities, may be deprived of a paying him backpay and interest at 6 percent per annum computed under the standards of the Board as set forth in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As we are unable to determine from the state of the present record which strikers are entitled to immediate reinstatement, we shall leave the question of individual reinstatement rights for resolution at the compliance stage of this proceeding. ORDER PL ,uant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Newbery Energy Corporation, Industrial Division, Tucson, Arizona, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging its employees because they engage in protected concerted activities or otherwise discrim- inating against any of its employees by failing and refusing to reinstate striking employees to properly available positions after they have made an uncondi- tional offer to return to work. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to such of the strikers whose former positions have been vacated after the strikers' offer to return to work, without prejudice to any seniority or other rights and privileges previously enjoyed. The remaining strikers shall be placed on a preferential hiring list. (b) Make whole those strikers who have been improperly denied reinstatement for any loss of earnings they may have suffered by reason of Respondent's discriminatory failure to reinstate them. Backpay and interest at the rate of 6 percent per annum shall be computed as set forth in The Remedy. (c) 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 and useful to determine the rights to reinstatement and to analyze the amounts of backpay due under the terms of this Order. position by a last-minute decision of a striker to return to work As a result, the individual referred would in all likelihood lose a day's pay (since he probably could not be referred again that day) and perhaps, in addition, opportunities for other referrals. 10 We leave to the comphancc stage of this proceeding the determination as to which employee should havo been reinstated NEWBERY ENERGY CORPORATION (d) Post at its Tucson, Arizona, place of business copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's authorized representative, shall be posted by it immediately 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 11 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge employees because they engage in union activities or otherwise discrimi- nate against employees by failing and refusing to reinstate economic strikers who have uncondition- ally offered to return to work and whose former positions are not filled by permanent replace- ments. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL offer immediate and full reinstatement to those strikers whose former positions were or became vacant after the strikers' offer to return to work, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earning they may have suffered as a result of our failure to offer them reinstatement. The remaining strikers shall be placed on a preferential hiring list. NEWBERY ENERGY CORPORATION, INDUSTRIAL DIVISION DECISION STATEMENT OF THE CASE 439 JAMES T. BARKER, Adminstrative Law Judge: This case was heard before me at Tucson, Arizona, on January 29, 1976, pursuant to a complaint and notice of hearing issued on November 21, 1975, by the Regional Director of the National Labor Relations Board for Region 28.1 The complaint alleges violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, hereinafter called the Act. The charge giving rise to the complaint was filed on June 2 by Allan Muggli, an individual. Respondent denies the commission of any unfair labor practices. During the course of the hearing the parties made opening statements setting forth their respective positions. Respon- dent and the General Counsel timely filed briefs with me. Upon the entire record in this case, and based upon my observation of the witnesses and the briefs of the parties, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a division of Newbery Energy Corporation, an Arizona corporation.2 At all material times, Respondent has main- tained its principal office and place of business at Tucson, Arizona, where it has been engaged in business as an electrical contractor in the building and construction industry. During the 12-month period immediately preceding the issuance of the complaint herein, Respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered to its place of business- in the State of Arizona electrical supplies and other goods and materials valued in excess of $50,000, from other enterprises within the State of Arizona, which the aforesaid enterprises had received directly from States of the United States other than the State of Arizona. Upon these facts which are not in dispute,'I find that at all times material herein Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED In its answer, Respondent concedes that Construction, Building Materials & Miscellaneous Drivers, Local No. 83, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called the Teamsters, has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. I so find. Additionally, I find that at all material times, Internation- al Brotherhood of Electrical Workers, Local 570, herein called Local 570, has been a labor organization within the meaning of Section 2(5) of the Act.3 1 Unless otherwise specified, all dates refer to the calendar year 1975 2 During the course of the hearing the style or caption of the case was amended to conform to the correct spelling of the corporate name. 3 No evidence to this effect was introduced at the hearing but both the (Continued) 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Issues The ultimate issue in this case is whether Respondent severed the employment of five journeymen electricians represented by Local 570, comprising a portion of its work complement at the Anamax Twin Buttes Mine worksite, solely to preserve the efficient operation of its business; or whether the severance action was undertaken in retribution for the refusal of the five alleged discriminatees to work behind a Teamsters picket line instituted in furtherance of a labor dispute with an employer other than Respondent, performing unrelated work tasks at the common jobsite. The General Counsel contends that Respondent terminated the employees in question and that Respondent 's action was retaliatory or punitive in nature . On the other hand, Respondent contends that replacements were timely ob- tained for the five journeymen and this was done for the sole purpose of assuring continuity of efficient operation and to assist it in meeting deadline business commitments. The parties agree that in withholding their services in recognition of the Teamsters picket line the five alleged discriminatees were engaging in protected , concerted activi- ty. 1. The setting On May 27 and May 28, Respondent was engaged as an electrical subcontractor providing services at the Anamax Twin Buttes Mine located near Tucson, Arizona, under the terms of a time and materials arrangement with Mountain States Engineering, the general contractor at the Anamax project. Respondent's work related to the primary crusher and conveyor system at the mine pit. Other contractors at the project were Arizona Elevator and State Mining and Construction. The latter company was engaged in work not directly related to that being performed by Respondent, and the situs of State Mining 's work was in an area geographically remote from the pit area where Respondent was performing services. In late May, and on May 27 and May 28, specifically, Respondent was running tests on the equipment preparatory to completing the service it had contracted with Mountain States to perform. A portion of Respondent's work complement was assigned to this work. Also a portion of the crew was assigned to the related task of pulling conductors and conduit. This was arduous work and a full crew was desirable. Timely completion of these tasks was significant to Mountain States for it was a last preliminary to ' the transfer of the crusher by Mountain States to Anamax, and the consequent realization by Mountain States of the proceeds from its own contractual arrangement with Anamax. At all relevant times, Horace Bounds had served as Respondent's assistant manager of industrial development, with authority over manpower and labor relations. George Faccio was Respondent's general foreman at the Anamax project. Both were statutory supervisors under the Act. permissible inferences to be drawn from the record and decisional authority justify such a conclusion. See, e.g., Howard Electric Co. v. International Brotherhood of Electrical Workers Local Union No 570, 423 F.2d 164 (C.A. 9, 1970). Each had been a member of the IBEW. Bounds had served as business agent of Local 570. Faccio was a member of the executive board of Local 570 and Richard George was business agent of Local 570. The five alleged discriminatees were members of the IBEW on May 27 and May 28. For a period of several years, Respondent and Local 570 had had contractual relations and were parties to a collective-bargaining agreement at times pertinent herein.4 The agreement contained an exclusive referral provision which, inter alia, permitted the Employer to reject individu- als dispatched for work. The collective-bargaining agree- ment also contained the following provisions: ARTICLE II Section 10. No employee shall be discharged or disciplined for failing or refusing to cross or work behind a picket line. ARTICLE VI Section 3. The Employer shall have the right to reject any applicant for employment. The Anamax mine pit where Respondent was performing services was situated a substantial distance from the interstate highway providing a primary access to the environs of the Anamax mine. Ingress to and egress from the project is obtained by leaving the main highway, traversing an arterial road to a point where an access gate has been erected. At the point of the access gate, a relatively crude and potentially hazardous access road commences, leading to the mine pit. At material times, Respondent provided a small bus for use by its employees in traveling to the jobsite from the access gate . The bus departed the access gate at approximately 7 a.m. each workday morning and, at all times relevant, was driven by Cletus McRaskle, a journeyman electrician, and an alleged discriminatee. Respondent expected its employees to avail themselves of the use of the bus for transportation from the access gate to the jobsite, but this was not mandatory and employees who were late in arriving at the access gate could call by telephone from the gate area to the office of Faccio located at the jobsite. Upon receipt of a call, the bus would be dispatched to transport the caller to the jobsite . This had occurred on occasions prior to May 27. Respondent was the only Employer at the project providing bus service. The employees of other employers traversed the access road by private automobile. 2. The events of May 27 On May 27, Faccio arrived at the access gate at approximately 6 a.m. Upon arriving he was met by Robert Tanner, a foreman, who informed him that a Teamsters picket line had been established at the gate. Faccio immediately called Richard George to inquire. George told Faccio he would check into the matter. George immediate- ly placed a telephone call to the Teamsters office but the telephone was not answered. After a passage of a few 4 It was stipulated that Respondent was bound by a collective-bargaining agreement between National Electrical Contractors Association and Local 570 NEWBERY ENERGY CORPORATION minutes he reached a representative of the Teamsters by telephone and was informed that the Teamsters had no dispute with Respondent. George thereupon called Faccio and informed Faccio of his conversation, but advised Faccio to speak directly with the Teamsters picket captain at the access gate. George stated that if the picket captain confirmed the information imparted to him, George, by the Teamsters representative, Faccio should inform the Local 570 men that it was the official position of Local 570 that they should go to work. Pursuant to this conversation, Faccio spoke with the picket captain who confirmed that no labor dispute existed between Respondent and the Teamsters. Accordingly, when the journeymen employed by Respondent on the project arrived, Faccio spoke with them. Thus, at approximately 6:45 a.m. on May 27, Erickson, McRaskle, Muscutt, Muggli, and Terwilliger arrived at the access gate in a timely fashion. When Erickson , McRaskle, Muscutt,'and Terwilliger arrived, they noted some automo- biles parked on the side of the road near the gate.5 They alighted from their automobiles and joined a group engaged in conversation. Muggli was present as were Tanner and Faccio. Three other rank-and-file employees, who together with Erickson, McRaskle, Muggli, Muscutt, Terwilliger, 'and Faccio comprised the normal complement of the crew performing services at the mine, were present. In due course, Faccio informed the employees that the Teamsters had erected a picket line and had a dispute with State Mining, but that neither Mountain States nor the Company was involved in the dispute. He further stated that he had spoken with George and George had stated that the official position of Local 570 was that the men should go to work. McRaskle and Muscutt stated that they did not wish to work behind a picket line. Faccio stated that he understood their feelings, but noted that if they wished to do so, they could enter the project through an alternate gate which he specified. McRaskle and Muscutt observed that they would still be working behind a picket line. In the dialogue that transpired as the group spoke together, Erickson, Muggli, and Terwilliger made known their reluctance to work while the picket line was up. Faccio asserted that it was essential that he get to the jobsite and he requested all who wished to go to embark wth him on the bus. Three journeymen noted their desire to accompany him, but stated their preference for the alternate gate. Faccio approved and they drove to the jobsite through the alternate gate. The time was approximately 8 a.m. Erickson, McRaskle, Muggli, Muscutt, and Terwilliger remained behind. They did not work on May 27. Their work tools remained at the jobsite. In the meantime, Bounds had received a telephone call from a representative of Mountain States Engineering, who informed him that Respondent had no men on the job. Bounds was instructed to take the steps necessary to remedy the condition. Thereupon, Bounds called Faccio by telephone and Faccio informed him of his conversation with George and with the employees at the access gate. 5 Erickson and McRaskle rode together by arrangement and Muscutt and Terwilliger carpooled together. The four employees arrived in two separate automobiles but at approximately the same time 6 Bounds testified credibly that, between noon when he met with George 441 Faccio advised Bounds that five of the employees had chosen not to work behind the picket lines , although they had been offered the opportunity to travel to the jobsite through an alternate gate. After speaking with Faccio, Bounds consulted with his immediate superior, Jackson. Bounds then called the Local 570 hall for George who was not in. Bounds went to the hall some two hours later, at approximately noon. During the morning hours, while the foregoing events were transpiring, George had been attending a meeting of the Building Trades and at the meeting there was extensive discussion of the Teamsters picket line . The Teamsters representative was not in attendance. George could obtain no information as to the likely duration of the picketing. Upon returning to his office, at approximately noon, George met with Bounds and for the first time learned that the five Local 570 journeymen had not crossed the Teamsters picket line . Bounds summarized for George's benefit the events of the morning and informed George of the status of the work in which Respondent was then engaged at the jobsite. He emphasized the urgency which attended its timely completion. Bounds stated that he needed the services of the five journeymen and he inquired if George knew how long the picket line would remain. George stated that he had no information regarding the likely duration of the picketing . The meeting ended on this note. Bounds returned to his office at approximately 2:30 p.m. He called George and inquired if George had received any further information as to the duration of the picketing. George stated that he had not. Bounds thereupon requested George to dispatch five journeymen to thejobsite at 7 a.m. the following morning. In requesting the referrals, Bounds reminded George of the status of the Company 's work at the project and the necessity for having a full crew in order to achieve timely completion of the Company's contractual obligations. Bounds urged George to inform the journey- men eligible for dispatch to the job of these matters, and Bounds emphasized the Company's desire not to engage in the futility of having journeymen dispatched who would refuse on arrival to work in the face of a Teamsters picket line .6 Five men were dispatched by the IBEW. In the interim, during the remaining hours of the afternoon of May 27, Bounds issued instructions to have termination slips and final paychecks prepared for Erick- son, McRaskle, Muggli, Muscutt, and Terwilliger. He contacted Faccio and directed him to deliver the termina- tion slips to Jackson who lived near Faccio. Faccio complied and the termination slips were delivered to Jackson at approximately 7:30 p.m. on the evening of May 27. 3. The events of May 28 The following morning, May 28, Faccio arrived at the access gate prior to 7 a.m. In like manner Erickson, McRaskle, Muggli, Muscutt, and Terwilliger arrived prior and 2:30 p.m when he placed the telephone call to George and requested the dispatch, he had carefully evaluated the Company's position in the matter and had reached the conclusion that the work on the project must be fully manned the following day 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the normal departure time of the bus. They observed four individuals who had not previously worked on the project.? The bus departed the access gate with McRaskle driving, and the passengers included the four "new" men as well as Respondent's normal work complement, including Faccio. When the bus reached the jobsite and after the passengers had alighted, Faccio directed the four referrals to go to the trailer office to complete W-2 forms. He summoned the five alleged discriminatees to gather around him. When the group had assembled, he presented each of the five with a termination slip which had been prepared the previous day, and with a paycheck. The termination slips had the notation, "Quit" entered in the space specifying the reason for termination. The date of the termination was specified as May 27. Upon receiving their respective termination slips, McRaskle and Muscutt each challenged the propriety of the notation, "Quit." In varying manner, each of the five vocalized his challenge to the entry. McRaskle averred, in substance, that Faccio had not suggested on the previous morning that the employees were placing their jobs in jeopardy by refusing to cross the picket line or to work behind the picket line. Indeed, McRaskle asserted that Faccio had indicated his understanding of their plight. Faccio responded that the termination notices in all respects had been the decision of the Company and they had no effective recourse through him. Muscutt expressed his understanding of this and asserted that he would explore the matter at a higher level of authority. The five employees gathered their work tools and were transported by bus back to the access gate. They were not thereafter employed on the Anamax project.8 Respondent manned the job on May 28 with a crew of eight rather than a nine-man crew judged by management to be of optimum efficiency. The task of pulling wire into terminal points - the work which the five alleged discrimi- natees would have performed on May 28 - was work entirely within the competence of the journeymen wiremen who comprised the crew on that date. Ideally, however, given a clear choice free from offsetting considerations Respondent would have preferred a nine-man crew com- posed of the complement existing prior to May 27. Bounds testified that he was unwilling to risk use of the five alleged discriminatees on May 28 for he had no reliable insight into whether picketing would be resumed on May 28 and/or on succeeding days. Bounds further testified that had he known prior to 3 p.m. on May 27 that picketing would in fact cease in time to permit manning of the job on May 28, he would not have requested any referrals. At no time on May 27 did Bounds receive any information as to whether picketing would resume the following day. He had no 7 McRaskle knew three of them to be journeymen electricians. Muscutt was acquainted with one of them. s The General Counsel contends that although the instant complaint does not raise issues of union hostility, such as are found in a typical 8(a)(3) discharge, there were present in Respondent's decision purported elements of antiunion motivation. To a limited extent, Respondent was permitted to adduce evidence relating to the mechanics of the referral procedure and the failure of McRaskle and Muscutt to seek referrals to jobs manned by employees of Respondent at the Anamax and other projects. This was for the avowed purpose of countering any claims of antiunion motivation or retribution with respect to the discnnunatees. 9 Bounds testified that he did not become aware of the May 28 failure of the fifth journeyman to report until May 30. Faccio's testimony is that he information to the effect that the picketing would, in fact, continue. In the meantime, one of the men who had been dispatched by Local 570 to the job returned his referral to the hall. The referral was returned on May 28 but George's inexperienced assistant did not follow the essentially ministerial act of automatically referring ' for May 29 employment the next name on the referral list. For a period of time on May 28, however, Faccio was unable to judge whether the fifth man would report to work because tardiness on the part of referrals in reporting to new job assignments was not a unique phenomenon in Faccio's experience. Bounds learned from Faccio on May 28, however, that the picketing had ceased and that only four of the five referrals had reported to work. However, Bounds did not contact George, business manager of Local 570, until the afternoon of May 30 and it was only by virtue of Bounds' call that George became aware of the fact that the fifth referral had not reported as directed. Anotherjourney- man was dispatched who reported to the jobsite on Monday, June 2. In order to accomplish this George had to intercede with his assistant and point out to his assistant his error in failing to properly implement or adhere to established referral procedures.9 Both Bounds and Faccio were aware by reason of their long experience as members and officials of the IBEW, and from their labor relations experience otherwise, that spo- radic picketing is a device sometimes employed by labor organizations to further their labor relations objectives. Moreover, Faccio credibly testified that on May 28, at the commencement of the shift, he had no knowledge or insight into whether or not the picketing would resume during the course of the workday. He further testified that he made the assumption that if, in fact, a Teamsters picket line were again instituted at the jobsite the five alleged discrimina- tees, if employed, would have honored the picket line. Despite this conviction of Faccio, he conceded that the ultimate authority with respect to the hire and retention of journeymen resided with Bounds and he did not consider himself to possess the necessary authority or discretion to, in effect,' countermand the intent of Bounds' decision by putting one of the former crewmembers to work at the beginning of the workday on May 28 in order that the job would be fully manned. Conclusions The parties agree that the five alleged discriminatees were engaged in protected activity when on May 27 they chose to honor the picket line erected by the Teamsters at the Twin Buttes Mine. That the mine premises constituted a common conveyed this information to Bounds on May 28 I credit Faccio, for I am unable to conclude that in the circumstances prevailing on May 28 that Bounds and Faccio would not have conversed together relating to the progress of the work under the newly constituted crew and/or that Faccio would not at a point in time on May 28 have conveyed to Bounds the information that his crew was short one man. Additionally, in crediting Faccio and rejecting Bounds' recollection as to the time when he learned of the crew shortage, I have considered the testimony of George which adds credence to Faccio's version. On the other hand, I also find that Bounds did not seek a further referral from Local 570 until Friday, May 30. It is my conclusion that Bounds knew the referral procedures and assumed incorrect- ly that another referral would be forthcoming by virtue of the normal operation of the referral system NEWBERY ENERGY CORPORATION work situs for the various crafts and contractors here involved is not disputed. The record reveals very clearly that the services being performed at the mine by Respon- dent were not directly related to those being performed by the contractor against which the Teamsters picket line was directed. It is the view of Respondent that the basic legal principle underlying this case was enunciated by the Board in Redwing Carriers, Inc., and Rockana Carriers, Inc., 137 NLRB 1545 (1962), wherein the Board held that where an employer acts only to preserve the efficient operation of its business, it may terminate the services of its employees who refuse to cross a picket line established by other employees so that it may immediately, or within a short period of time thereafter, replace them with others willing to perform the scheduled work. In reaching this determination, the Board in Redwing held that the right of an employer to continue his business operation must be balanced against the right of employees to honor a picket line. Applying the Redwing rationale to its conduct in this case, Respondent asserts that it acted solely to preserve the efficient operation of its business when it obtained replacement personnel to man the job at the Twin Buttes Mine in lieu of the five alleged discnminatees who decided to honor the Teamsters picket line when it appeared. In effect, Respondent stresses the necessity for realism in assessing the nature of the dilemma confronting it on May 27, and earnestly contends that its own conduct in seeking to insure a supply of craftsmen to meet its needs on May 28 and thereafter must be measured from the vantage point of May 27 when the operative replacement decision was made, and not from the point of view of the preshift morning hours of May 28, when the referrals were accepted to the exclusion of the five journey- men who had withheld their services the previous day. Respondent urges upon the trier of fact not only the need for a proper understanding of the nature of the business exigency confronting it on May 27 to timely, complete its contractual services to satisfy the demands of its own prime or general contractor, but for a full comprehension also of the degree of uncertainty which mantled the picketing, including the absence of certitude on its part as to the willingness of the five IBEW journeymen to continue to work behind a Teamsters picket line should the picket line reappear on May 28, or at any subsequent time during the critical deadline period. Finally, Respondent alludes to the long bargaining relationship between it and the IBEW, and the asserted absence of any union hostility on the part of management which, it is averred, precludes a finding of an 8(a)(3) violation. The General Counsel advances a theory at odds with that enunciated in defense by Respondent. It is the General Counsel's contention that the Redwing principle is not applicable to the facts of this case in that the instant matter presents a common work situs situation and thus is distinguishable in that particular from Redwing. It is the General Counsel's view that, unlike the choice confronting the employees in Redwing, for the five alleged discriniina- tees herein to have exercised their Section 7 rights in 10 In denying enforcement of the Board's Order the court disagreed with the Board's finding that the picket line clause in the party's bargaining agreement did not cover the controversy which was the gravamen of the 443 seeking to observe the Teamsters picket line, it was essential that the five withhold their services entirely and for the duration of the picketing. Thus, notes the General Counsel, the employees in question were in a position quite different from the delivery drivers in Redwing who engaged in a partial withholding of services by virtue of carrying out all assigned duties except those requiring deliveries at the premises of a particular employer being picketed. With this distinction pertaining, avers the General Counsel, the five electricians herein were essentially in the position of economic strikers with all attendant rights and risks associated with that, status. On the authority of N.L.R.B. v. Mackey Radio & Telegraph Co., 304 U.S. 333, 345-346 (1938), contends the General Counsel, the strikers were entitled to return to work so long as they had not been permanently replaced. Stated otherwise, the General Coun- sel notes that Respondent was free to replace but not to terminate the five for honoring the Teamsters picket line. It is the General Counsel's contention that the facts establish that Respondent terminated the five alleged discriminatees and asserts that an attitude of retribution legally equivalent to unlawful motivation in a typical 8(a)(3) context is shown by Respondent's resort to the use of replacement personnel on May 28, at a time when the picket line had ceased, and in the face of the manifest willingness and desire of the five to return to work. The General Counsel notes that under the collective-bargaining agreement, Respondent was enti- tled to reject the referrals it had requested and that it had both the option and the legal obligation to do so in light of the availability of the five for immediate employment on the project. Further, declares the General Counsel, the hostility and retribution which assertedly accompanied Respondent's decision is further disclosed by Respondent's unwillingness to accept the proffered service of any of the five in order to complete the numerical composition of the work crew when it was disclosed that only four of the five referrals had timely reported for duty, as requested. The principles enunciated by the Board in Redwing have, at this point in time, become well engrained precedential concepts. The Board decision which in my view defines the parameters of the legal principles applicable in the instant matter are set out in Montana-Dakota Utilities Co., 189 NLRB 879, 882 (1971), enforcement denied 455 F.2d 1088 (C.A. 8, 1972), wherein-eight employees refused to cross a picket line to perform their work even though the union conducting the picketing was not their own bargaining representative and the employer against whom the picket- ing was directed was not their own employer.10 In Montana- Dakota Utilities Co., supra, the Board adopted the following observations of the trier of fact therein: Nevertheless, as the Board held in Redwing Carriers, Inc., 137 NLRB 1545, modifying 130 NLRB 1208, affirmed sub nom. Teamsters, etc., Local Union No. 79 v. N.L R.B., 325 F.2d 1011 (C.A.D.C.), such "employees engage in protected concerted activity when they respect a picket line established by other employees. Such activity is literally for `mutual aid or protection,' Montana-Dakota issue Here, unlike Montana-Dakota, Respondent has not raised the picket line provision as a defense and the issues do not rest upon a determination of the applicability of the clause DECISIONS OF NATIONAL LABOR RELATIONS BOARD as well as to assist a labor organization within the meaning of Section 7." The Redwing decision, issued in March 1961, has been consistently followed by the Board, with court approval. The Board, however, in Redwing Carriers and subse- quent cases has also consistently held that this protected right of the employees must be balanced against the specific business interest of the employer 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" (Overnite Transportation case, at 1274) [154 NLRB 1271]. In balancing these opposing rights, the Board holds that the employer's business interests are paramount and his termination or suspension of employees isjustified where it is clear that the employer "acted only to preserve efficient operation 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." (Redwing Carriers, Inc., supra, at 1547.) This is not a right of the employer to discharge, suspend, or discipline but only a right to "run his business." (Swain and Morris Construction Co., 168 NLRB 147, enfd. 431 F.2d 861 (C.A. 9).) [Footnote citations deleted.] In applying the foregoing rationale in light of the facts herein, I conclude and find that the General Counsel failed to establish by a preponderance of the evidence that Respondent acted unlawfully in replacing the five strikers. Basic to this conclusion is the finding, which I make, that Respondent's actions must be viewed from the standpoint of the afternoon of May 27 and not from any subsequent time. In short, it is my view that, as it was entitled to do under the principles of Mackey, applied in light of the rationale adopted by the Board in Montana-Dakota, Re- spondent reached a decision in mid-afternoon on May 27 to obtain replacements for the strikers in order to assure the continued efficient operation of its business, and to meet the demands for expeditious and timely completion of its comrrutment to Mountain States, its prime contractor It gave practical effect to this decision by requesting the referral of personnel willing to perform the scheduled work, notwithstanding the presence of a Teamsters picket line. The decision which Respondent reached for the purpose of assuring efficient, timely, and continuing commitment to its business obligation and work schedule was, for all intents and purposes, fully implemented after the referral request was submitted to the Union and when, in reliance thereon, final paychecks were drawn for the strikers. At this point in time, so far as the record reveals, Respondent was entitled to. presume the proper functioning of the Union's referral facilities and had no basis for accurately gauging the duration of the strike or the future willingness of the five 11 In my view of this case, the burden had shifted at this point to the General Counsel to adduce evidence revealing an absence of plausibility in this evaluation of Respondent's agents, such as would have derived, for instance, from evidence showing that the grievance which had given rise to the picketing in the first instance had been resolved and that Respondent knew of this No such testimony was adduced and the inference is required that no resolution known to management, or readily available to it, had been achieved or given currency prior to the morning hours of May 28 strikers to work if picketing should cease and then erupt again. The General Counsel makes much of the fact that Respondent had the opportunity the following morning to reject the journeymen referred by Local 570 and use the services of the five alleged discriminatees. This overlooks the reality that the replacement decision had been effectu- ated the previous day and all that remained was the ministerial act of presenting prepared termination slips and final paychecks to the five. It is true that the pickets had been removed prior to shift time on May 28, but there is no evidence countering the credible and credited testimony of Faccio and Bounds that even at that point in time they had access to no information which, in their minds, would reasonably foreclose the possible resumption of picketing during the course of the workday on May 28.11 Indeed, Bounds, who made the basic decision to obtain replace- ments, did not learn until later in the day that picketing had ceased. Thus, in the circumstances which pertained on the morning of May 28, I find that the same business prudence which had dictated the earlier decision mandated its continued effectuation through the use of the journeymen who had accepted referral with the tacit, if not explicit, commitment to work behind the Teamsters picket line should it appear. By adhering to its decision, Respondent acted reasonably and in order to protect its legitimate business interests. It is not enough, as the General Counsel asserts, that Respondent conceded that it had no informa- tion in its possession on May 27 when it sought referrals to replace the five that the picketing was, in fact, going to continue on May 28.12 This determination is not altered by the failure of Respondent to use the services of any of the strikers to formulate a full crew. Fivejourneymen had been requested and Faccio acted reasonably in deciding to accept the four who had reported and to abide the apparent late arrival of the fifth. Faccio was an experienced journeyman himself and knew the potentialities for less than optimum punctual- ity of referrals in reporting to a new jobsite on the initial day of work. As matters turned out, the fifth man did not report, but Faccio had no basis for assuming this result when he made arrangements to accommodate the late arrival of the fifth man. Moreover, the circumstances implicit in the use of the five alleged discriminatees - picketing at this point in time being a distinct possibility - more than offset the marginal advantage to accrue to Respondent from the use of craftsmen fully conversant with the tasks to be performed. It is to be remembered that the referrals were journeymen electricians and the work to be done was fully within their competence and range of skills. As events emerged, by the afternoon of May 28 it was entirely consistent with Respondent's avowed, and, I find, genuine concern for the efficient manning of the job, for Bounds and Faccio, both experienced craftsmen with former IBEW affiliations, to assume that the regularity of 12 Again, this was not a case wherein an employer reaches a decision affecting the tenure of employees and adheres to it despite changed circumstances which render the decision clearly unreasonable or inherently discriminatory Nor is there any warrant here for the application of the principle of N LR B v Burnup and Sims, Inc, 379 U S 21 (1964), and Standard Oil ofCaliiornia, 91 NLRB 783 (1950) NEWBERY ENERGY CORPORATION the referral process would work to assure the availability of a full -crew on Friday, May 29. In retrospect, this did not occur but George, the business manager of Local 570, offered a credible explanation fully dispelling any sugges- tion of an absence on Respondent's part of either a genuine interest in or need for maintaining a full, efficient crew. In sum, I find that in replacing the five discriminatees with journeymen referred by the Union, Respondent acted reasonably and solely with the objective of preserving the efficient and continuous operation of its business. I find, contrary to the General Counsel, that the Redwing defense, as applied in a common work situs situation, is applicable under the rationale of the Board in Montana-Dakota supra. Additionally, I find that, acting within the permissible parameters of Mackey, Respondent timely replaced the strikers and did so without discriminatory motivation. Cf. BMW AutoZentrum, 219 NLRB 98 (1975); Pacific Grinding Wheel Co., Inc., 216 NLRB 529 (1975). I further find that any "choice" or "opportunity" Respondent may have had on May 28 to modify its replacement decision was a bogus choice for Respondent had - no reliable information by which to gauge the likelihood of a recurrence of the strike 445 which had caused the five to absent themselves from work at the mine; and timely completion of the work tasks at hand was a matter of business necessity.13 On this basis, and for the reasons stated, I shall dismiss the complaint. Upon the foregoing findings, of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Construction, Building Materials & Miscellaneous Drivers, Local No. 83, an affiliate of International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, and International Brotherhood of Electri- cal Workers, Local 570, are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent engaged in no unlawful conduct as alleged in the complaint and notice of hearing herein. [Recommended Order for dismissal omitted from publi- cation.] 13 An insight into the seriousness with which Montana States viewed the matter is garnered from its May 27 admonition to Bounds to take action necessary to man the project.