South Central timber Development, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD South Central Timber Development, Inc. and Interna- tional Longshoremen's and Warehousemen's Union. Cases 19-CA-8587 and 19-RC-7857 June 24, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On February 4, 1977, Administrative Law Judge James M. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. 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, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, South Central Timber Development, Inc., Anchorage, Alaska, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election held on April 26, 1976, in Case 19-RC-7854 be, and it hereby is set aside, and that Case 19-RC-7854 be, and it hereby is, remanded to the Regional Director for purposes of conducting a second election. Direction of Second Election and Excelsior foot- note omitted from publication.] i The Administrative Law Judge's finding that the appearance of a winch-operator known as Freddie had significant bearing on the employees' decision to walk out is unsupported by the record. However, for the other reasons set forth in his Decision, we agree with the Administrative Law Judge's finding that the walkoffwas a protected economic strike. 2 We agree with the Administrative Law Judge's finding that the employees who participated in the protected economic strike were not acting under union auspices. We therefore find it unnecessary to consider the Administrative Law Judge's further finding that the employees' action constitutes protected conduct under Sec. 502 of the Act. DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me on October 6, 1976,1 pursuant to a complaint in Case 19-CA-8587 issued on July 8, by the Regional Director for the National Labor Relations Board for Region 19, based on a charge filed on May 19. By order dated August 26, the Acting Regional Director ordered that the complaint be consolidated with an objection to an election in Case 19-RC-7584, as he had determined that the issues involved in the objection and those involved in the unfair labor practice complaint raised similar issues of fact and law. The complaint alleges that South Central Timber Development, Inc. (herein called Respondent), has engaged in and is engaging in certain violations of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended. Likewise, the objection to the election alleges that Respondent terminated or denied further employment to certain employees because of their union activities, and that such conduct interfered with the outcome of the election. Issues The principal issue is whether or not Respondent, in April and thereafter, was privileged to refuse longshoring employment to its employees William Stark, Richard (Bumpo) Bremicker, and Gregory Christen, who had all engaged in March in a concerted refusal to load logs aboard a ship. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGs OF FACT I. THE BUSINESS OF THE EMPLOYER At the hearing Respondent admitted, and I find, that at all material times it has been an Alaska corporation with corporate headquarters in Anchorage, Alaska. It is engaged in the business of milling, processing, and selling timber and, in furtherance of this business, it operates a sawmill, together with related woods facilities on Kachemak Bay on the south coast of the Kenai Peninsula in an area near the Kasitsna and Jakalof Bays. Respondent annually sells and ships logs, valued in excess of $50,000, to Japanese purchasers. Accordingly, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Hereinafter all dates are in 1976 unless otherwise noted. 230 NLRB No. 70 468 SOUTH CENTRAL TIMBER DEVELOPMENT 1I. THE LABOR ORGANIZATIONS INVOLVED Respondent admitted, and I find, that the International Longshoremen's and Warehousemen's Union (herein called the ILWU), the Charging Party herein and represen- tation case Petitioner, is a labor organization within the meaning of Section 2(5) of the Act. At the hearing it developed that another organization, the Kachemak Bay Longshoring Union (herein called the KBLU), was also involved to some extent in the transac- tions described below. It appears that the KBLU consists of a group of Respondent's employees which was formed in October 1975. At the time of its formation, the employees in the group signed a document proclaiming themselves members of the KBLU and they signed ILWU pledge cards. According to its president, William Stark, the KBLU exists for the purpose of obtaining a collective-bargaining contract with Respondent covering a unit of Respondent's longshoremen and it sought recognition from Respondent during the loading of a ship during November 1975. In December 1975 it elected officers and, although as of October 1976 it had not conducted any recent membership meetings, its officers had met several times on an intermittent ad hoc basis. Moreover, as will be seen, during the spring of 1976, it sent at least two letters to Respondent in an effort to obtain employment on behalf of certain of its members. Stark testified that although he was not clear as to the procedural details the ILWU intended to grant the KBLU a charter and permit it to affiliate with the ILWU. Based on the foregoing, I conclude that the KBLU is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Participants and Background Evidence As noted above, Respondent is engaged in logging, milling, and selling timber in interstate and foreign commerce. In general, it harvests timber during the nonwinter months. Approximately once a month, during the 8-month season, log rafts are boomed to a ship at anchor in the bay. Prior to 1976, Respondent's practice had been to hire Northern Stevedoring Company of Seward, Alaska, to operate the ship's winches. It had also directly hired other persons, usually employees other than those employed by its own sawmill, to be linemen, slingmen, holdmen, and signalmen - the longshoremen. It is this group of employees which is involved in the instant dispute. In October 1975, according to Stark, the KBLU was formed. During the loading of the November ship, the KBLU attempted to persuade Respondent to recognize it as the representative of its employees engaged in shipload- ing. Respondent refused to do so, and the KBLU asked to 2 The usual way individuals sought and obtained longshore work from Respondent was to notify either Beach or his various designated agents of their availability. Often one applicant spoke for several others. Stark, in calling Beach that day, was merely follownng the established practice, except for his reference to the KBLU. 3 It should be noted that on January 16 the ILWU had filed its petition for a representation election, Case 19-RC-5784. The Regional Director on March 16 issued his Decision and Direction of Election directing that an election be conducted in the following unit: have a meeting among its members to determine whether or not they should strike for recognition. A meeting was held in the lunchroom at Respondent's mill. Although the KBLU decided not to strike, its members, who were not mill employees, because of the lateness of the hour, spent the night at the mill. During the evening at least two near- violent confrontations occurred. Respondent's mill employees were not and are not represented by any union. Some of them, according to Stark, are strongly opposed to union representation. During the evening some of those employees, including one whose first name was Freddie, threatened to cut Bumpo Bremicker's hair, and he defended himself with a knife. Other employees baited the KBLU members and attempt- ed to pick fights. However, no serious violence occurred and on the following day the ship was loaded. During the November strike meeting, according to Stark, the Northern Stevedoring employees represented by the ILWU advised the KBLU members that, in the event the KBLU decided to strike, the ILWU employees would honor their strike and would not operate the ship's winches. Although it is not clear from the record, Respondent apparently severed the employment relationship of Stark, Bumpo Bremicker, and Christen on October 10, 1975, and Stark thereafter filed an unfair labor practice charge against the Company, Case 19-CA-8088. On December 31, 1975, the Regional Director for Region 19 approved an informal settlement agreement in that case in which Respondent agreed, inter alia, to offer Stark, Bumpo Bremicker, and Christen reinstatement and to make them whole for any loss of wages they had suffered as the result of their October 10, 1975, termination. The parties stipulated that the next ship for which there would be loading work was the one scheduled for mid-March, and it is apparent that Respondent intended to carry out its remedial obligation under the settlement agreement by hiring those three to work the March ship. B. The March Walkoff Stark, who has worked as a longshoreman and slingman for Respondent since October 1970, testified that on March 16 or 17 he spoke to Respondent's sawmill manager, Floyd Beach, by telephone. According to Stark, he asked Beach if he knew who Respondent was going to use to load the March ship, and Beach replied that it had not yet been determined. Stark asked Beach if he wanted "us" (meaning the KBLU) to provide him with a list of people who wanted to work.2 According to Stark, Beach replied "yes." Stark told Beach that he would see to it that Otto Kilcher, the KBLU communications officer, would send him a list. Stark testified that such a list was sent.3 In addition to telling Beach that Kilcher would send him a list, Stark also stated that he told Beach that the available employees All employees employed by [Respondent I in its log loading operations at its Jakalof Bay, Alaska, facility, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. The election was not held until April 26. 469 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would include himself, Bumpo Bremicker, Christen, Doug- las Bremicker, George Ripley, Dave Casey, Kilcher, and Bob Phillips. Beach advised that the shiploading date would be March 20. On the evening of March 19, five individuals joined Stark and his wife at their property located on Little Tutka Bay, approximately 3 miles from the mill and shiploading site at Jakalof Bay.4 The individuals who joined the Starks that evening were Bumpo Bremicker, his brother Doug, Chris- ten, Phillips, and Bob Seville. Although Stark testified credibly that the discussion which ensued was not a KBLU meeting, nonetheless, he and Bumpo Bremicker were KBLU officers. Stark testified that during the day he had heard a rumor on CB radio from an individual named Peter Roberts that Respondent did not intend to hire Northern Stevedoring Company as the stevedore contrac- tor and that it was unlikely that the winchmen would be ILWU-represented employees. Stark related the rumor to those who were present, and they discussed the situation in some detail. The discussion centered on two principal matters. First, since there was snow on the logs, it was likely that the loading operation would be particularly dangerous, for when snow drifts over the log rafts it becomes impossible for the workmen on the rafts to determine where to step safely. This unsafe condition was compounded by the likelihood that Respondent would use inexperienced winchmen to operate the loading cranes. The group decided that it would take the inexperienced winchmen some time to learn to operate the cranes safely and to avoid another dangerous condition known as "whip." 5 Second, they discussed the fact that, during the previous November, the Northern Stevedoring employees represented by the ILWU had told them they would honor any KBLU strike. Bumpo Bremicker and Stark concluded that Respondent had decided to avoid utilizing Northern Stevedoring's services because their employees had ex- pressed sympathy with the KBLU. As a result, they believed the ILWU employees were being maltreated by Respondent, and they decided that, since the ILWU members had supported the KBLU in November 1975, the KBLU should return the favor and support the ILWU. The result of the discussion was an agreement by Stark, Bumpo Bremicker, and Christen that they would not work if Northern Stevedoring was not assigned the operation of the winches. In my view, the evidence shows that the agreement reached that evening was based on two related considera- tions: safety and the desire to assist the ILWU employees in retaining their work. 6 Christen decided to join Stark and Bumpo Bremicker in this decision. It is not clear what Doug Bremicker, Phillips, and Seville decided to do, 4 Although the record does not clearly show it, Respondent's mill as well as the residences of the longshoremen are located in a remote area of the Kenai Peninsula. Although accessible by motor vehicle, the principal means of transport between the mill area and the nearest town, Homer, is by an air taxi company known as Homer Air Service, which operates single-engine float planes. As telephone service is not available in Jakalof Bay, the principal means by which residents of that area communicate with each other is citizens band radio. 5 Testimony shows that "whip" occurs when the crane boom moves laterally, swinging the hook in a dangerous fashion. "Whip" is avoided by "damping the hook"-either by dropping the hook into the water or by hoisting the hook to such an extent that the cable is shortened and its arc although later they joined Stark, Bumpo Bremicker, and Christen when they left the ship. On the following morning, Stark, Bumpo Bremicker, and Christen, who had all been promised jobs, together with Doug Bremicker, Phillips, and Seville, who were all hoping to be hired, took Bumpo's skiff to a nearby dock where they were picked up by a crewboat and taken to the ship which lay in the bay. A second crewboat, which came directly from the mill, had not yet arrived, and Stark's group waited and speculated about what would happen. When it arrived, Stark and the members of his group did not see any Northern Stevedoring employees. They did, however, recognize some of the mill employees, including the same Freddie who had threatened violence against the KBLU members the preceding November. The knowledge that Freddie might be one of the winch drivers alarmed both Stark and Bumpo Bremicker because they believed Freddie could not be trusted. Thus, in addition to the foreseen hazards of snow on the log rafts and inexperi- enced winch operators, they now perceived that one of the winch operators was one who had demonstrated in the past that he was capable of doing them intentional harm. At that point, Bumpo Bremicker decided that he would not work for Respondent that day, told the group "Let's go," and proceeded to get his belongings. However, Stark, upon hearing that a safety meeting was to be held, decided to attend, and proceeded to that section of the ship where the meeting was held. In the meantime, Bumpo Bremicker began getting his equipment, saying to anyone who would listen, "Well, let's get out of here ... I'm not going to work with these guys, it's not safe ... it's not safe working with these guys ... I don't trust these guys, I'm not going to work under them." Shortly thereafter he saw Manager Floyd Beach and told him that he was going home because he did not think it was safe to work with the inexperienced winchmen. According to Bumpo, Beach replied, "Fine, glad to hear it," and had a big smile on his face. Bumpo said, "I thought you'd feel that way." And Beach replied, "Oh, I do, I do." Later, Beach asked him if there were any others, and Bumpo replied that he didn't know. Bumpo then boarded the crewboat, which Beach had held, and awaited the others. Stark, however, attended the safety meeting. Beach introduced an individual named Tom Wise, presumably a safety officer, who conducted the meeting. Wise told the men that they should all be very careful and to stay out of the way until the new winch operators learned to operate the gear. At that point, Stark decided that he had heard enough. In his opinion Wise had conceded that the winchmen were not experienced and that it was unsafe. He reduced. "Whip" endangers workmen not only because of the hook but also because of the heavy bells attached to the line. 6 Although Respondent argues that the safety consideration was a sham, and the real consideration was to protest Respondent's failure to use ILWU- represented employees, I believe the evidence clearly shows that Stark and Bumpo Bremicker had both reasons in mind when they reached their agreement. There is no evidence to show that safety was a sham. In fact, a slingman working the log rafts was injured the following day in an accident involving a winchman. In fairness, however, I must note that the matter is based on hearsay testimony, and there is no evidence regarding whether the accident was the fault of the inexperienced winchman or the negligence of the injured slingman. 470 SOUTH CENTRAL TIMBER DEVELOPMENT left the meeting, got his belongings, and went to the crewboat. At that point he saw Respondent's assistant vice president, Andy Okimitsu. Both Stark and Okimitsu are in general agreement regarding what was said. Consolidating their two versions, it appears that Okimitsu wanted to know why Stark and the others were leaving. Stark replied, angrily, that the combination of hazards was too great and that they were leaving because the winchmen were unsafe. Shortly thereafter all of the individuals who had been at Stark's place the night before left on the crewboat.7 Within 30 minutes after their departure, Okimitsu reported to Beach that they had left because they believed that conditions were not safe. At no time did any of the employees who walked off tell any of Respondent's representatives that one of the reasons for the walkoff was to protest Respondent's failure to use the ILWU contrac- tor, Northern Stevedoring Company. It appears therefore that Respondent was not aware that the walkoff was in part motivated by such a protest. As far as Respondent knew, the employees' only purpose in the walkoff was to protest safety conditions - and even that purpose was not fully articulated to Respondent's representatives, for neither Stark nor Bumpo Bremicker told anyone that they were concerned with the employee named Freddie who had been involved in the November incident. However, Respondent either did or should have known that the employees were concerned with the inexperience of the winch drivers and the safe footing on the log rafts.8 C. Events Following the Walkoff The next ship scheduled to be loaded by Respondent was in mid-April. On April 8 Otto Kilcher, KBLU's vice president and communications officer, wrote Respondent a certified letter in which he listed those employees who desired to be hired to work on the April ship. He listed the names of 11 people, including Stark, Bumpo Bremicker, and Christen. The return receipt shows that Homer Air Service picked it up from the post office on April 9. It is reasonable to assume that it was actually delivered to Respondent that same day. (See discussion of mail delivery in this remote area, infra.) Stark testified that his next conversation with Beach was in April by CB radio. Beach said that he believed Stark was mistaken about the date, saying that he recalled the conversation occurred in May. Whatever the date, it is clear that the receipt of Kilcher's April 8 letter preceded the CB conversation. According to Stark, Beach was having a conversation with one of Respondent's supervisors, Ed Strait. Stark waited for them to finish their conversation, then broke in and asked Beach if he knew who was being hired for the April ship. Stark said that Beach replied that they were not hiring Stark, Bumpo Bremicker, or Christen because they had walked off, and the Company wasn't going to hire them anymore. Stark asked Beach if the Company was using the same crew that it had used on the March ship, and Beach replied "yes." Stark also recalls Beach saying I Of the three who were looking for work, only one appears to have been hired. The other two would have left anyway. 8 In the past. Stark and others had made similar safety complaints that they had everyone they needed and that there wasn't any room - and Respondent wasn't hiring them anyway. Stark conceded that he could not remember the exact words of the conversation. Yet he testified, "I really do feel that he said something specifically to the effect that the three of us were not going to be hired again and .. . I do not remember the words exactly, so I. . . but I definitely remember having thought that Floyd [Beach] didn't want us to be hired again and I got that from more than just an inference from this line of talk." Beach testified that Stark broke into the CB conversation he was having with Strait and asked if the three could be reinstated on the ship. Beach says that he told Stark that he had made up the list just the day before, that he was using the same people who had worked before on the ships, and there were no openings at that time. He recalls Stark asking if there were "any exceptions" and he replied "no." He specifically denied saying that the three were fired. He did, however, concede that he had been angry when they walked off the ship in March, leaving him in a bind because they left him three employees short. He testified that he did not consider them to be fired, but he "figured that they had quit." Strait testified that, although he did not hear the entire CB conversation, he did hear Beach tell Stark that Beach had already made up his crew. He said he did not hear any discussion regarding firing or not being hired, only that Beach had already picked the crew. Pete Reid, who lives on Strait's property, also heard the conversation. He testified that Stark asked Beach if there were any openings on the April ship, that Beach replied they were using the same people as the last time, that Stark asked if there were any exceptions, and that Beach said there were not. Reid testified he was satisfied he had heard the entire conversa- tion. In view of Stark's inability to recall the words used in the conversation and because Strait and Reid testified consis- tently with Beach, I doubt that Beach made any reference to having fired the three. It is clear, however, that despite the KBLU's earlier letter advising Beach that those three, as well as others, wished to work, Beach had decided not to rehire them for they had "quit." Since the CB radio conversation, the only communica- tions between Stark and Respondent were two letters, which Beach denies having received. Stark's first letter, dated May 6, was a request that Respondent hire Stark, Christen, and the Bremicker brothers to work the May ship, "if you have skilled and competent winch drivers." The second, dated June 15, is written on behalf of Stark, Christen, and Richard Bremicker and, like the May letter, was a request to hire them for the June ship. It omitted the reference to "skilled and competent winch drivers" and was an unconditional offer to return to work. Stark's June letter shows that a copy was mailed to the Board's Anchorage office. Stark testified that he placed both letters, either on the date they were written or the following day, in a U.S. Postal Service mail pouch near his home, which was the regarding inadequate lighting at night and the absence of catwalks on one side of the ship. In Stark's view, the Company's responses to these past complaints had been desultory, at best. 471 DECISIONS OF NATIONAL LABOR RELATIONS BOARD normal manner of posting letters in his area. He said that the pouch, which is open, is picked up twice a week by Homer Air Service and taken to the Homer post office for processing. Beach testified that Respondent received neither letter, and for that reason did not act upon them. He said that Respondent's mail is brought to the mill from Homer by Homer Air Service and, at the time these letters were mailed, Respondent's practice was for the person who picked up the mail at the airplane, who might have been any of Respondent's mill employees, to distribute the letters by placing them in the appropriate pigeonholes maintained at the mill. He conceded that Respondent had had problems with this system, and said that in June or July the system was changed. Now Respondent's book- keeper is responsible for pickup and distribution. I do not deem it necessary to decide whether or not Stark mailed the letters or whether Respondent received them, although I am reasonably certain that Stark did mail them and Respondent did receive them.9 I reach this conclusion because Kilcher's KBLU letter of April 8 unconditionally told Respondent that the three wished to return to work. IV. ANALYSIS AND CONCLUSIONS Although Stark and Bumpo Bremicker admitted that their walkoff had two objects - to protest safety conditions and to protest Respondent's failure to hire an ILWU stevedore company, only the safety protest was communicated to Respondent. Bumpo Bremicker told Beach and Stark told Okimitsu that they were leaving because of unsafe conditions. Thus, Respondent's motive for its later decision not to rehire them must be measured by its knowledge at that time, not by what it learned at the hearing. The second motive may have a bearing on the remedy available, but not on the issue of whether Respondent committed an unfair labor practice. It is well settled that a walkoff to protest working conditions is a protected concerted activity. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9 (1962). It is protected even if the employer was unaware of its purpose, for as the Court said at 14: We cannot agree that employees necessarily lose their right to engage in concerted activities under §7 merely because they do not present a specific demand upon their employer to remedy a condition they find objectionable. The language of §7 is broad enough to protect concerted activities whether they take place 9 A copy of Stark's June letter was apparently sent to the Board's Anchorage office. I doubt that Stark would have sent the Board a copy to the Board without also sending one to the addressee. Moreover, Beach's testimony that Respondent's mail system had had problems and had to be changed suggests that Stark's letters may have gone awry after receipt at the mill. 'o See also Combustion Engineering, Inc., Power Systems Division, 224 NLRB 542 (1976), which found such a protest to be protected despite breach of a no-strike clause, because of the application of Sec. 502 of the Act regarding "abnormally dangerous" conditions. There the abnormally dangerous conditions included violence, a possibility present here. II Even Beach's testimony tends to support Bumpo Bremicker's assertion that the practice was not consistent. Beach said: We have generally tried to hire from a prior list of a ship and we always tried to do this. Willy Stark worked for many years for us never missed before, after, or at the same time such a demand is made. Thus, it is clear that, even if the purpose of the walkoff is not clearly communicated to the employer at the time, if from surrounding circumstances the employer should reasonably see that improvement of working conditions is behind the walkoff, it may not penalize the employees involved without running afoul of Section 8(aX)(). Electro- mec Design and Development Co., Inc., 168 NLRB 763, 764- 765 (1967), enfd. 409 F.2d 631 (C.A. 9, 1969). Here, however, Respondent knew that the employees were protesting safety conditions, for both Bremicker and Stark had so told two different management officials. Likewise, a walkoff to protest unsafe working conditions is also clearly protected. Union Boiler Company, 213 NLRB 818 (1974), enfd. 530 F.2d 970 (C.A. 4, 1975).10 Thus, when Beach considered Stark, Bumpo Bremicker, and Christen as having "quit," he penalized them for having engaged in protected concerted activity, and violated Section 8(aX)(1). Okla-lnn, d/b/a Holiday Inn of Henryetta, 198 NLRB 410 (1972), enfd. 488 F.2d 498 (C.A. 10, 1973); Kelso Marine, Inc., Kel Stress Division, 199 NLRB 7, 12 (1972); cf. ABC Prestress & Concrete, 201 NLRB 820, 825 (1973). More than this, however, I have grave doubts that Beach's continuing justification for refusing to rehire the protesters is credible. He said he did not hire them to work the April ship because Respondent had a consistent practice of hiring employees who had worked the previous ship. Aside from whether or not that was the practice (Bumpo Bremicker testified that it was not a consistent practice),l the fact is that Stark with 6 years' experience and Bremicker with 3 years' experience were ignored. The record does not show Christen's experience, but it is fair to presume that he was sufficiently experienced to warrant rehire. Thus, if it is Respondent's practice, as it was, to choose experienced loaders over inexperienced ones, the three protesters must have been among the most, if not the most, desirable employees. The only factors making them undesirable were their 1975 KBLU involvement and NLRB settlement and their March 1976 walkoff. Thus, at least one of these considerations, most likely the latter, must have affected Beach's decision not to rehire them. In either case, the decision was unlawful. In any event, Respondent has not advanced any legitimate or substantial business justification for ignoring the strikers' request for rehire. Absent such justification, conduct such as that engaged in by Respondent clearly a ship unless he was off doing something else. I have always hired the men that worked the prior ship. The men that we used in March, we used in April with the exceptions, I think, of two men that we didn't use at that time. Some of these guys are hard to get a hold of and by using the prior list, this year we have run a pretty steady crew all the way along. In the middle of summer you have a turnover, but in the Spring people are hungry and they want to work and they search for all of the work they can, so I use the prior list. Thus, Beach says that Respondent tried to hire from a list of those hired to work the previous ship. Yet, the three strikers must have been on that list, but were not selected. Even if Respondent can successfully claim the list contained the names of only those who actually worked the previous ship, Beach has conceded that two employees who worked the March ship did not work the April ship. Yet there was no reason to ignore the strikers for those two openings. 472 SOUTH CENTRAL TIMBER DEVELOPMENT constitutes a violation of Section 8(aX)(). As the Supreme Court said in N.LR.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378-380 (1967): Section 2(3) of the Act (61 Stat. 137, 29 U.S.C. §152(3)) provides that an individual whose work has ceased as a consequence of a labor dispute continues to be an employee if he has not obtained regular and substantially equivalent employment. If, after conclu- sion of the strike, the employer refuses to reinstate striking employees, the effect is to discourage employ- ees from exercising their rights to organize and to strike guaranteed by §§7 and 13 of the Act (61 Stat. 140 and 151, 29 U. S. C. §§157 and 163). Under §§8(aXl) and (3) (29 U.S.C. §§158(1) and (3)) it is an unfair labor practice to interfere with the exercise of these rights. Accordingly, unless the employer who refuses to reinstate strikers can show that his action was due to "legitimate and substantial business justifications," he is guilty of an unfair labor practice. N.L.R.B. v. Great Dane Trailers, 388 U.S. 26, 34 (1967). The burden of provingjustification is on the employer. In some situations, "legitimate and substantial business justifications" for refusing to reinstate employ- ees who engaged in an economic strike have been recognized. One is when the jobs claimed by the strikers are occupied by workers hired as permanent replace- ments during the strike in order to continue operations. N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346 (1938); N.L.R.B. v. Plastilite Corp., 375 F.2d 343 (C.A. 8th Cir. 1967); Brown & Root, 132 NLRB 486 (1961) .... [Fn. omitted.] A second basis for justification is suggested by the Board-when the striker's job has been eliminated for substantial and bona fide reasons other than considera- tions relating to labor relations: for example, "the need to adapt to changes in business conditions or to improve efficiency." [Fn. omitted.] We need not consider this claimed justification because in the present case no changes in methods of production or operation were shown to have been instituted which might have resulted in eliminating the strikers' jobs. The Court of Appeals emphasized in the present case the absence of any antiunion motivation for the failure to reinstate the six strikers. But in N.LR.B. v. Great Dane Trailers, supra . . . we held that proof of antiunion motivation is unnecessary when the employ- er's conduct "could have adversely affected employee rights to some extent" and when the employer does not meet his burden of establishing "that he was motivated by legitimate objectives." Id, at 34. Great Dane Trailers determined that payment of vacation benefits to nonstrikers and denial of those payments to strikers carried "a potential for adverse effect upon employee rights." Because "no evidence of a proper motivation appeared in the record," we agreed with the Board that the employer had committed an unfair labor practice. 12 It is unnecessary to determine if Respondent also violated Sec. 8(aX3). In any event, it does not appear that the employee walkoff was a union activity, or that Respondent regarded it as such. Id, at 35. A refusal to reinstate striking employees, which is involved in this case, is clearly no less destructive of important employee rights than a refusal to make vacation payments. And because the employer here has not shown "legitimate and substantial business justifications," the conduct constitutes an unfair labor practice without reference to intent. [Emphasis supplied.] Of the two examples cited by the Court as "legitimate and substantial business justifications," only the first has any application here. Beach testified that he regarded the strikers as "quits" and said that he did not hire them after March because he was hiring those who had been hired to work on the previous ship. While I can understand the need to obtain a steady crew, it appears to me, from his testimony in footnote 12, supra, that Beach thought Stark was among the steadiest. The only factor making Stark undesirable was his having engaged in a protected strike. The same can no doubt be said of the other two. Under these circumstances, it appears to me that obtaining a steady crew does not fall within the first category of "legitimate and substantial business justifications" con- templated by the Court. No doubt every business needs a steady crew, but if the crew engages in a protected strike, it is not rendered "unsteady," thereby privileging the struck employer not to rehire the crew. Accordingly, I find that Respondent's treatment of the strikers herein constitutes a violation of Section 8(aX 1) of the Act.1 2 V. THE REMEDY The normal remedy for discharging, or refusing to rehire, economic strikers is immediate reinstatement with back- pay. N.LRB. v. International Van Lines, 409 U.S. 48 (1972); Michael Muldoon Ekler, d/b/a Vorpal Galleries, 227 NLRB 446 (1976). Before recommending that remedy, I must first determine whether or not the strikers engaged in conduct depriving them of that right. Respondent contends that the protesters were engaged in conduct prohibited by Section 8(bX4)(B), and it is true that one of their objects, albeit uncommunicated to Respon- dent, was to force Respondent to resume business with Northern Stevedoring Company because it was an ILWU employer. Assuming that such an object is unlawful, Section 8(bX4XB) makes it unlawful for a "labor organiza- tion" to engage in such conduct. Here there is no evidence that the KBLU was involved in the walkoff. True, Stark was the KBLU president and Bumpo Bremicker was its secretary-treasurer, but there is no evidence that the KBLU as an entity did anything at all regarding the walkoff. The evidence only shows that a group of employees, faced with rumors of changed working conditions, decided to protest concertedly those conditions by refusing to work under them if the rumors proved to be true. Thus, I cannot conclude that the protesters were engaged in 8(bX4)(B) conduct, for they were not acting as a labor organization. Accordingly, I see no reason to deprive them of reinstate- ment. See Local Union No. 707, Highway and Local Motor Freight Drivers, etc., Teamsters (Claremont Polychemical Corporation, 196 NLRB 613 (1972). 473 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Even if it should be determined that the employees were acting under KBLU auspices and thus were engaged in 8(b)(4)(B) conduct, I would not deprive them of reinstate- ment because it was reasonable for them to wish to avoid a direct confrontation with Freddie. The Board has held, in Combustion Engineering, Inc., supra, that workmen need not remain on the job in the face of possible violence and that walking off to avoid violence is protected by Section 502 of the Act' 3 even if it constitutes a breach of a no- strike clause. I recognize that the intent of Section 8(b)(4)'s prohibitions differs from that of a no-strike clause, but there seems to be no difference in application. Certainly Section 502 uses the word "strike" in the same sense as does Section 8(b)(4). Thus, I conclude that Section 502 was intended to override any considerations raised by any other section of the Act, such as Section 8(bX4). Cf. Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368 (1974). Thus, I find the strikers' conduct, if engaged in under KBLU auspices, to be protected by Section 502, and they did not thereby lose their right to reinstatement. I shall, therefore, recommend that Respondent immedi- ately restore Stark, Richard Bremicker, and Christen to their former jobs, displacing if necessary any replacements, and make them whole for any loss of pay suffered by reason of the discrimination against them. Backpay shall be computed in accordance with the formulas set forth by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). VI. THE ELECTION In view of my finding that Respondent violated Section 8(a)(1) of the Act by severing the employment connection of economic strikers during the preelection critical period in Case 19-RC-7854 I shall also recommend that the election results be set aside and a new election conducted 14 at a time when the Regional Director determines that a fair second election, untainted by unfair labor practices, may be held. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, South Central Timber Development, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The International Longshoremen's and Warehouse- men's Union and the Kachemak Bay Longshoring Union are labor organizations within the meaning of Section 2(5) of the Act. 13 In pertinent part, Sec. 502 provides: "nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this Act." 14 "Conduct violative of Section 8(aXl) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election." Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786 (1962). 'S In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, 3. By refusing to consider employees William Stark, Richard Bremicker, and Gregory Christen for further employment as log loaders after receipt of the April 8, 1976, application for reinstatement, Respondent violated Section 8(aXi) of the Act. 4. By engaging in conduct violative of Section 8(a)(1) Respondent interfered with the representation election in Case 19-RC-7854 to such an extent as to deprive the employees of their ability freely to select a collective- bargaining representative. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER15 The Respondent, South Central Timber Development, Inc., Anchorage, Alaska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Taking employment-related reprisals against employ- ees who engage in the protected concerted activity of striking to protest unsafe working conditions by regarding such employees as having quit, discharging such employ- ees, or otherwise depriving them of employment. (b) In any other manner threatening, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act to engage in or refrain from engaging in protected concerted activity for their mutual aid or protection. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Immediately offer William Stark, Richard Bremicker, and Gregory Christen full reinstatement to their former jobs, without prejudice to their seniority or other rights and privileges, and make them whole for lost earnings in the manner set forth in that portion 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 Kasitsna and Jakalof Bays facility copies of the attached notice marked "Appendix." 16 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent 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 conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 16 In the event that the Board's 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." 474 SOUTH CENTRAL TIMBER DEVELOPMENT Respondent to insure that notices are not altered, defaced, or covered by any other material. (d) Because of the remoteness of Respondent's facility, the lack of adequate communications, and because of the intermittent nature of the log loading employees' employ- ment, signed copies of the notice marked "Appendix" shall also be disseminated to Respondent's log loading employ- ees by Respondent in the same manner as was the notice of election in Case 19-RC-7854. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election in Case 19-RC- 7854 be set aside and the matter be remanded to the Regional Director for the purpose of conducting a new election at a time when he deems that a fair election can be held. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and we have been ordered to post this notice to our employees. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity except to the extent that the employees' bargaining representative and employer have a collective- bargaining agreement which imposes a lawful requirement that employees become union mem- bers. WE WILL NOT in any manner interfere with any of your rights set forth above which are guaranteed by the National Labor Relations Act. WE WILL NOT take employment-related reprisals against any employee who engages in the concerted activity of striking to protest unsafe working condi- tions, such as regarding them as "quits," discharging them, or otherwise depriving them of employment. WE WILL offer immediate reinstatement to William Stark, Richard (Bumpo) Bremicker, and Gregory Christen their former jobs as longshoremen without loss of seniority or other rights and privileges, and we will make them whole for any loss of pay they may have suffered by reason of our discrimination against them, together with interest thereon. SounT CENTRAL TIMBER DEVELOPMENT, INC. 475