Business Services By Manpower, Inc

BUSINESS SERVICES BY MANPOWER 827 Business Services by Manpower, Inc and Richard Cordes and Craig Monroe Cases 3-CA-10505 and 3-CA-10505-2 17 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 3 February 1983 Administrative Law Judge James L Rose issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The National Labor Relations Board has consid ered the decision and the record in light of the ex ceptions and brief and has decided to affirm the judge s rulings, findings,' and conclusions and to adopt his recommended Order, 2 as modified The judge concluded that the conduct of Rich ard Cordes and Craig Monroe of honoring a picket line at Spaulding Bakery, where the Respondent, Business Services by Manpower, Inc (Manpower), had referred them for employment, was protected by the Act, and therefore the Respondent s dis charge of them for pursuing such activity violated Section 8(a)(1) of the Act We fully agree with his conclusion The Board has consistently held that the right to honor a union s picket line is a right created and protected by the Act 3 In this connection, the Board has not distinguished between picket lines at the facilities of the employee's own employer and picket lines at other facilities where the employee may be required to work ( stranger picket lines) In contrast to the dissent we continue to find that under Section 7 of the Act no such distinction is warranted In Eastex Inc v NLRB 4 the Supreme Court stated 1 The Respondent has excepted to some of the judge s credibility find ings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings 2 We shall modify the judge s recommended Order to require the Re spondent to expunge from its files any reference to the discharges of Richard Cordes and Craig Monroe and to notify them in writing that It has taken this action and that evidence of its unlawful conduct will not be used as a basis for future personnel actions against them See Sterling Sugars 261 NLRB 472 (1982) 3 See e g Torrington Construction Co 235 NLRB 1540 (1978) New bery Energy Corp 227 NLRB 436 (1976) Redwing Carriers 137 NLRB 1545 (1962) enfd sub nom Teamsters Local 79 v NLRB 325 F 2d 1011 (D C Or 1963) cert denied 377 U S 905 (1964) 4 437 U S 556 564-565 (1978) In that case the Court found protected a union s chstnbution of a newsletter urging employees to support it and The employees' who may engage in concert ed activities for mutual aid or protection are defined by § 2(3) of the Act, 29 U S C § 152(3) to include any employee, and shall not be limited to the employees of a particular employer, unless [the Act] explicitly states oth erwise This definition was intended to protect employees when they engage in other wise proper concerted activities in support of employees of employers other than their own In recognition of this intent the Board and the courts long have held that the 'mutual aid or protection clause encompasses such activity We also find no warrant for petitioner s view that employees lose their protection under the mutual aid or protection" clause when they seek to improve terms and condi tions of employment or otherwise improve their lot as employees through channels out side the immediate employee employer rela tionship The 74th Congress knew well enough that labor s cause often is advanced on fronts other than collective bargaining and grievance settlement within the immediate employment context It recognized this fact by choosing, as the language of §7 makes clear, to protect con certed activities for the somewhat broader pur pose of mutual aid or protection as well as for the narrower purposes of self organiza tion and collective bargaining More recently, the United States Court of Appeals for the Seventh Circuit stated But it does not strain the language of section 7 to regard the two drivers as having engaged in a concerted activity that consisted of picket ing on the part of some workers and refusing to cross the picket line on the part of others, and that was at least in part, for the drivers own aid or protection and therefore satisfied the mutuality requirement The drivers may have felt that strengthening the union movement by honoring a union s picket line would promote their own economic interests as workers "[T]he solidarity so established [by aiding another employee s grievance against his employer] is 'mutual aid in the most literal sense NLRB v Peter Collier Kohler Choco lates Go, 130 F 2d 503, 505-506 (2d Cir 1942) (L Hand, J) 5 unions in general opposing incorporation of a state right to work law into the State s constitution and criticizing the President for vetoing a Federal minimum wage bill 5 NLRB v Browning Ferris Industries 700 F 2d 385 387 (7th Or 1983) 272 NLRB No 119 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Similarly, the Court of Appeals for the Ninth Cir cult reasoned as follows An integral part of any strike is persuading other employees to withhold their services and join in making the strike more effective It cannot be denied that respect for the integrity of the picket line may well be the source of strength of the whole collective bargaining process in which every union member has a le gitimate and protected economic interest NLRB v Union Carbide Corp, 440 F 2d 54, 56 (4th Cir ) cert denied, 404 U S 826 (1971) Employees who honor a primary picket line in effect join the strike NLRB v West Coast Casket Co, 205 F 2d 902 908 (9th Cm 1953) Such activity is assistance to a labor organization for mutual aid or protec tion ' Although reciprocity may be Ind' rect respect for another union s picket line leads to a stronger labor movement Activities for mutual aid or protection within the meaning of section 7 are not limited to those within the employer employee rela tionship or those aimed at changing terms and conditions of employment 6 These decisions persuasively refute the dissent s contention that Section 7 only minimally protects the Charging Parties' activity The suggestion that mutual aid or protection is confined to narrow workplace concerns derives no support from the express language of the Act, nor is it based in case law or logic Moreover, in this case Cordes and Monroe had reason to be personally concerned with Spaulding s personnel policies and employ ment conditions because they expected to be work mg for Spaulding, albeit for a limited time The dissent suggests that Cordes and Monroe re fused to cross the picket line for vague ideological reasons rather than because of any interest in the particular issues in the dispute Such reasoning misses the point 7 A longstanding tactic of the American trade union movement, rooted in cardi nal union principles, is honoring picket lines Sec lion 7 strongly protects such conduct, and the pro tection is not contingent on an employee s ability to demonstrate a detailed understanding of the 8 NLRB v Southern California Edison Co 646 F 2d 1352 1363-64 (9th Cir 1981) Several other circuit courts of appeals have also held that the Act protects employee refusals to cross stranger picket lines NLRB v Gould Inc 638 F 2d 159 (10th Co 1980) NLRB v Alamo Express Inc 430 F 2d 1032 (5th Or 1970) Teamsters Local 657 v NLRB 429 F 2d 204 (DC Or 1970) 7 It is also Incorrect The record indicates that before leaving the Spaulding facility Cordes and Monroe spoke to the picketers and ascer tamed their purpose They thus made an informed decision to support the picketers position issues involved in a specific dispute 8 Thus it is im material whether Cordes and Monroe were familiar with the issues involved in the Spaulding dispute, or whether they refused generally to cross union picket lines Our dissenting colleague finds the Respondent s action proper after balancing the Employer's busi ness interest and the employees' interests From his reasoning, however, it appears that he accords the employees interests only minimal weight, indeed it is difficult to envision circumstances in which the dissent s balancing test would result in a decision favorable to employees The balancing test thus effectively renders nonexistent an essential Section 7 employee protection The dissent also errs in finding that business ne cessity" required the Respondent to remove Cordes and Monroe from its referral list perma nently This removal was tantamount to discharge and an employer may not discharge employees who refuse to cross lawful picket lines Such em ployees are akin to economic strikers and are enti tled to the reinstatement rights normally accorded economic strikers Torrington Construction Co 235 NLRB 1540 1541 (1978) 9 The Respondent to protect its business interests, could lawfully have refrained from referring Cordes and Monroe to Spaulding or to any other company known to be involved in a labor dispute It violated the Act, however, by discharging them ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Business Services by Manpower, Inc Binghamton New York its officers agents succes sors and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 2(b) and re letter the subsequent paragraphs ` (b) Remove from its files any reference to the unlawful discharges of Richard Cordes and Craig Monroe on 22 May 1981, and notify them in writ mg that it has taken this action and that the dis charges will not be used against them in any way 2 Substitute the attached notice for that of the administrative law judge 8 Indeed we recently held in ABS Co 269 NLRB 774 775 (1984) that the Act protects an employee s refusal to cross a picket line even where the employee s sole reason is a fear of personal bodily injury We stated [The focal point of the Board s inquiry is the nature of the activity Itself the employee s motives for engaging in the activity are irrelevant 9 See also Newbery Energy Corp 227 NLRB 436 437 (1976) BUSINESS SERVICES BY MANPOWER 829 CHAIRMAN DOTSON, dissenting I disagree with my colleagues as I believe that under a balanced construction of the Act the type of conduct engaged in by Richard Cordes and Craig Monroe; while protected, is outweighed by the Respondent s business considerations and there fore the Respondent did not violate Section 8(a)(1) of the Act by discharging them The Respondent operates a temporary employ ment agency in Binghamton, New York Cordes and Monroe were listed on the Respondent's file of individuals to be contacted and offered work at the facilities of its various customers During the evening of 21 May 1981, Cordes and Monroe were offered jobs by the Respondent for 2 nights at the Respondent's largest customer, Spaulding Bakery, in Conklin New York, to begin at 9 p m They accepted the assignment At ap proximately 8 30 p m, they arrived at the Spauld ing plant and noticed five or six picketers in the parking lot carrying signs 1 Cordes and Monroe spoke to the picketers and learned that they were on strike at Spaulding s Hazelton, Pennsylvania fa cility because they feared that Spaulding planned to transfer work from the Hazelton facility to the Conklin facility At this, Cordes and Monroe de cided not to report to work Monroe testified, in explaining the basis for this decision Well, we de cided we were going to refuse to cross the picket line I don t think there was any extensive discus sion or argument about it We decided more or less immediately that we would refuse to do that" Cordes stated simply We recognized it was a picket line and weren t going to cross it They drove away from the plant and at approxi mately 8 55 p m 5 minutes before they were scheduled to begin work, telephoned the Respond ent s answering service 2 and stated that they re fused to cross the picket line and therefore would not report Spaulding s president informed the Re spondent the next day that the Company had been short two employees on the night shift because Cordes and Monroe had not reported Thereafter, the Respondent did not refer Cordes and Monroe to any other jobs pursuant to its policy of removing from its referral list any indi vidual who fails to report to a job that he or she had previously accepted without providing the Re spondent with adequate notice to secure a replace ment The judge found (sec II,B, par 12) that 1 The record does not indicate the exact wording of the signs but the evidence suggests that the signs identified the name of the picketers union and stated that the employees were on strike 2 The Respondent s office was closed at the time [Tin honoring the picket line and not reporting for work Cordes and Monroe engaged in ac tivity protected by the Act And the Respond ent having terminated their employment for this reason violated Section 8(a)(1) Cases cited by the Respondent (e g, NLRB v Rockaway News Supply Co 345 U S 71 (1953)) holding that in certain situations an employee may be discharged for honoring a picket line at other than his own employer s place of business are inapposite The picket line was at the place where Cordes and Monroe were assigned to work And they had a protected right to honor it notwithstanding they were not in the bargaining unit of those employees picketing Southern Greyhound Lines, supra 3 It is settled that an employee's refusal to cross a legal picket line established by employees in an other bargaining unit at the facility of the employ ee's own employer is protected by the Act 4 As stated by the Court of Appeals for the Fifth Cir cuit [W]e think it obvious that when an employee, as a matter of principle, refuses to cross a picket line at his own employer's place of bust ness, the employee, even though he is not a member of the striking union, has in effect plighted his troth with the strikers, joined in their common cause and has thus become a striker himself 5 In such cases it is highly significant that the picket ing union s dispute is with the same employer as the individuals who honor the picket line The em ployees although in different bargaining units, are certain to share working conditions and have common grievances against their employer In sup porting the picketers by refusing to cross the picket line employees seek to improve conditions for the picketing employees hoping to produce a recipro cal effect on their own conditions of employment 6 The mutual aid or protection clause of Section 7 of the Act 7 guarantees employees the right to engage 3 Southern Greyhound Lines 169 NLRB 627 (1968) enfd 426 F 2d 1299 (5th Or 1970) 4 See Newbery Energy Corp 227 NLRB 436 (1976) NLRB v Union Carbide Corp 440 F 2d 54 (4th Cir 1971) 5 NLRB v Southern Greyhound Lines 426 F 2d 1299 1301 (5th Cu- 1970) 6 Cooper Thermometer Co 154 NLRB 502 (1965) 2 Sec 7 of the Act reads Employees shall have the right to self organization to form join or assist labor organizations to bargain collectively through repre sentatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected Continued 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in such activities since there is a clear and prom mate connection between the concerted activity of the employees and their wages hours, and working conditions The above described principles are inapposite to the instant case however because Cordes and Monroe did not refuse to cross a picket line at the facility of their own employer, Manpower, but at the facility of a customer of their employer, Spaulding In this regard, the record indicates that Manpower is solely responsible for hiring the indi viduals that it refers and also pays them and deter mines where and when they will work In contrast, their connection with Spaulding and other compa nies to which Manpower refers them is tenuous Cordes and Monroe were scheduled to work at Spaulding for only 2 nights certainly they had little in common with Spaulding's permanent em ployees and little stake in Spaulding's labor rela tions policies 8 Thus the judge erred in distinguish ing the instant case from cases in which employees refuse to cross stranger picket lines There is no coherent body of case law settling the issue of whether employee refusals to cross stranger picket lines are protected by the Act 9 The Board has held that such activity is protect ed 10 However, the Federal courts of appeals have not unanimously agreed with this determination " and the Supreme Court has yet to render a defini tive decision on the question 12 I would find that the refusal to cross a stranger picket line while protected, is entitled to less weight when balanced against valid employer business considerations than refusal to cross a picket line at an employee s own place of employment Compared to picket lines directed against an em ployee s own employer, an employee s interest in refusing to cross a stranger picket line is highly at tenuated Such interest is based essentially on broad ideological grounds rather than immediate con cerns related to the employee s own job The em by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [Emphasis added ] 9 In Manpower Inc of Shelby County 164 NLRB 287 (1967) the Board held that a temporary employment agency and one of its customers were Joint employers of individuals referred from the agency s list Regardless of whether that issue was correctly decided it was a representation case and has little bearing on the Instant matter 9 Gorman Labor Law at 324 (1976) states that the cases stand rather in disarray The concurring opinion of Judge Coffey in NLRB v Brown ing Ferris Industries 700 F 2d 385 (7th Cu- 1983) denying enf of 259 NLRB 60 (1981) agrees with this assessment ' 0 Torrington Construction Co 235 NLRB 1540 (1978) Redwing Cam ers 137 NLRB 1545 (1962) enfd sub nom Teamsters Local 79 v NLRB 325 F 2d 1011 (DC Cir 1963) cert denied 377 US 905 (1964) " See e g NLRB v William S Carroll Inc 578 F 2d 1 3 (1st Cir 1978) NLRB v L G Everist Inc 334 F 2d 312 316-318 (8th Or 1964) " But see NLRB v Rockaway News Supply Co 345 U S 71 (1953) in which the Court found a limitation placed on such activity in a collec live bargaining agreement to be valid and enforceable ployee cannot reasonably expect that concessions granted to the members of the picketing union by the picketed employer will have a reciprocal effect upon his or her own conditions of employment In fact, he is unlikely even to be familiar with the issues in dispute 13 Rather, the employee is likely to be motivated by a vague, generalized desire to support union members engaged in a dispute with an employer in order to promote union solidarity" Thus Cordes and Monroe both suggested that they invariably will refuse to cross any picket line, regardless of its participants or its purpose 14 An employee s refusal to cross a stranger picket line inherently requires that he flout his responsibil ity to his own employer The employer pays the employee in exchange for the performance of his job and the failure to perform even if ideologically grounded, is a violation of the ordinary and im plied obligations of employment 15 The Act does not reflexively protect any con certed interest of an employee, no matter how re motely connected to his own job interests or poten tially harmful to his employer s valid business con cerns Rather it requires that we balance the legiti mate interests of employees and employers An em ployer may not unduly restrict employee pursuit of union activity but may make and enforce reasona ble rules governing the conduct of employees at work 16 13 The United States Supreme Court in evaluating another Sec 7 right viz trespassory area standards picketing has indicated that protec non for such right is less compelling than that accorded organizational picketing Sears Roebuck & Co v Carpenters San Diego District Council 436 U S 180 (1978) 14 They refused to cross the picket line at Spaulding although It was crossed by the employees at the Conklin facility It is clear from the record that the picketing in this case was an attempt to inform the gener al public as to the issues rather than to discourage the Conklin employ ees from \ working Thus the interests of Cordes and Monroe in refusing to cross the picket line were so attenuated from the dispute that the con nection was nearly nonexistent In addition to the portions of Eastex Inc v NLRB 437 U S 556 567- 568 (1978) cited by the majority the Supreme Court stated therein It is true of course that some concerted activity bears a less im mediate relationship to employees interests as employees than other such activity We may assume that at some point the relationship be comes so attenuated that an activity cannot fairly be deemed to come within the mutual aid or protection clause It is neither nec essary nor appropriate however for us to attempt to delineate pre cisely the boundaries of the mutual aid or protection clause The task is for the Board to perform in the first instance as it considers the wide variety of cases that come before it [Republic Aviation Corp v NLRB 324 US 793 798 65 S Ct 982 985 89 L Ed 1372 (1945) Phelps Dodge Corp v NLRB 313 U S 177 194 61 S Ct 845 852 85 L Ed 1271 (1941) ] In my view the employees activities went beyond the boundaries of Sec 7 s mutual aid and protection clause is NLRB v L G Everist Inc 334 F 2d 312 (8th Cir 1964) '8 Republic Aviation Corp v NLRB 324 U S 793 803 (1945) citing Peyton Packing Co 49 NLRB 843-844 (1954) BUSINESS SERVICES BY MANPOWER 831 , In this type of case, we must weigh the employ ee s less compelling interest in expressing support for picketers at another company against the em ployer s interest in the employee s job performance I believe, in this case, that the employer s interest in ensuring that work assignments are performed reliably far outweighs the vague and attenuated in terests of individual employees in promoting union solidarity The Act does not prohibit em ployees from refusing to cross picket lines as their consciences may dictate However, it also does not provide them with a carte blanclie invitation to refuse to work when they wish without, expectation of reasonable disciplinary action by their employ ers i The nature of the Respondent s business demand ed that it maintain a strict rule requiring its em ployees to report to work or to provide adequate notice when they could not report An employ ment agency obviously cannot long survive if the individuals it refers do not report to their jobs and its customers are left with sudden deficits in their employee contingents Viewed in this light, the Re spondent's removal of Cordes and Monroe from its referral list is especially understandable since refer rals to Spaulding constituted a significant portion of the Respondent's business 17 The record indicates that the Respondent was neutral in the dispute between Spaulding and its Haze1ton employees The cause of industrial peace is not furthered by permitting unions to force oth erwise unconcerned companies into disputes be tween themselves and their employees Such ac tions do not help to ameliorate labor disputes but serve to expand them The Respondent's conduct was a reasonable response to the failure of two of its employees to fulfill their employment obliga tions and it was based on legitimate business con siderations that were untainted by unlawful motiva don In these circumstances, the finding of a viola don is unreasonable and unjust The touchstone for determining whether a termination is lawful is the employer s business necessity and each case must be examined to determine whether the employer's actions are justified by legitimate business con cerns In this case, it is clear that the Respondent's busi ness requires that it refer only individuals who the agency can be certain will report to their assigned jobs The Respondent could not risk maintaining Cordes and Monroe on its referral list because they had demonstrated that in the event of a picketing situation they could not be relied on to report to work Such failure was on short notice in this case '7 There is no evidence that the Respondent was aware of the picket line at Spaulding Bakery when It referred Cordes and Monroe to the job giving the Respondent no opportunity to replace Cordes and Monroe with other employees There fore, the Respondent had to remove their names from its referral list in furtherance of a valid busi ness interest Longstanding Board law permits employers to replace employees who refuse to cross picket lines if the employer finds such action necasary to pre serve efficient operations 18 A temporary agency, however cannot permanently replace individuals it refers for employment because its assignments are not permanent jobs removal from its referral list is equivalent to permanent replacement Thus, even if the activity of Cordes and Monroe were deemed protected the statutory interests shielded by that protection are of a far less compelling nature Accordingly, the Respondent s removal of their names from its referral list did not violate the Act 18 Redwing Carriers supra at 1547 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT discharge our employees because they honor picket lines established at the premises of an employer where they have been given job as signments WE WILL NOT in any like or related manner interfere with restrain, or coerce you in the exer cise of the jights guaranteed you by Section 7 of the Act WE WILL offer full and complete reinstatement to Richard Cordes and Craig Monroe to their former jobs or if those jobs no longer exist to sub stantially equivalent positions without prejudice to their seniority or any other rights or privileges pre viously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge less any net interim earnings plus interest WE WILL remove from our files any reference to the disciplinary discharges of Richard Cordes and Craig Monroe on 22 May 1981 and WE WILL notify them that we have done so and that evi dence of the discharges will not be used against them in any way BUSINESS SERVICES BY MANPOWER INC 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE JAMES L ROSE Administrative Law Judge This matter was tried before me on December 13 and 14 1982 at Binghamton New York on the General Coun sel s complaint as amended which alleges in substance that about May 20 1981 the Respondent terminated the employment of Craig Monroe and Richard Cordes in violation of Section 8(a)(1) of the National Labor Rela tions Act 29 U S C § 151 et seq The Respondent generally denied that it has commit ted any unfair labor practices and affirmatively contends that the two terminated former employees did not engage in any concerted activity protected by the Act and f that in any event they were not terminated for having done so On the record as a whole including my observation of the witnesses briefs and arguments of counsel I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION The Respondent is a New York corporation engaged in the business of supplying temporary help to business firms In the conduct of its business the Respondent an nually supplies services valued in excess of $50 000 to firms located in the State of New York which in turn ship directly to points outside the State of New York goods and products valued in excess of $50 000 The Respondent admits and I find that it is an em ployer engaged in commerce within the meaning of Sec tion 2(2) (6) and (7) of the Act , II THE ALLEGED UNFAIR LABOR PRACTICES A The Facts In order to service its customers who need temporary employees the Respondent has a pool of individuals who are available for assignment to particular types of jobs Each such individual who is available for work has an active file kept by the Respondent When the Re spondent has an order these individuals are contacted according to their particular desires and skills and are of fered the opportunity to take the particular assignment Richard Cordes worked for the Respondent in 1979 and then on returning to school went inactive In 1981 he contacted the Respondent s office and indicated that he was interested in having his file reactivated and he began receiving assignments almost immediately Craig Monroe first started working for the Respondent on April 15 1981 and from then until May 20 worked for the Respondent approximately 2 days a week Generally Cordes and presumably Monroe as well as other employees of the Respondent contacted the Re spondent daily to check for Jobs and to confirm their availability If such a contact was made between the hours of 8 a m and 5 p m they would talk to some office employee of the Respondent typically either a secretary a service representative or Cathy Taylor who at the time was in charge of the Binghamton office Both Taylor as well as Esther Nui then a service representa live are admitted to have been supervisors and agents of the Respondent within the meaning of Sections 2(11) and 2(13) of the Act If an employee contacted the Respondent after 5 p m then whatever message he had was left with the Re spondent s answering service presumably then to be re layed a to responsible official at some later time Monroe and Cordes lived in the same rooming house According to both their testimony whenever possible they would request to have the same work assignment and would ride together Thus it was that on May 20 Monroe received a call from Nui stating that she had a 2 day assignment at the Conklin New York Spaulding Bakery for him and Cordes to begin at 9 p m on May 21 Cordes and Monroe testified that they arrived at the plant about 8 30 p m on May 21 and at that time ob served five or six individuals carrying and/or wearing picket signs announcing a labor dispute between Spauld ing Bakery and the Bakery and Confectionary Workers Union They learned the picketers were employees of the Spaulding facility at Hazelton Pennsylvania and had come to the Conklin facility to advertise their dispute (The dispute apparently involved the opening of the Conklin facility and the preceived transfer of work from Hazelton ) According to Cordes and Monroe they determined to honor the picket line and they left the jobsite before re porting to work They drove back to town and then Cordes called the Respondent and reported to the an swering service According to his testimony he said they were not going to go to work inasmuch as there were pickets at the Spaulding Bakery but they were available for employment elswhere Taylor and Nui both testified they did not learn until the following day that Cordes and Monroe had not re ported for work and then learned only that they had called the answering service to announce their availibi lay Both disclaim they knew that the premises were being picketed on the evening of May 21 or that the reason Cordes and Monroe gave for not reporting to work was the picket line Cordes and Monroe called in several times in the evening but did not receive subsequent job assignments Thus on June 10 Monroe called the Respondent s office and talked to Nui In essence Nui told Monroe that the Respondent considered that he and Cordes had quit Inas much as they had failed to show up for an assignment they had agreed to take Monroe told Nui that the reason they had not gone to work was because of the picket line Nui told him something to the effect the while you may have your principles so did the Corn pany and it was the Company s policY to consider as having quit any employee who did not show up for an agreed to assignment without contacting the Company some reasonable time in advance Monroe reported his conversation with Nui to Cordes who on June 11 also called Nui The same general con BUSINESS SERVICES BY MANPOWER 833 versation took place with Cordes advising Nui that the reason they had not gone to work on May 21 was be cause they had honored the picket line Nui said that it was the Company s policy to consider as having quit any employee who did not show up for any agreed to assign ment without giving reasonable advanced notice so that a replacement could be found Taylor testified at length concerning the business ne cessity for this policy and that this was the reason why Cordes and Monroe were terminated She stated that the Company must be able to rely on individuals whom it contacts for employment because in turn the customers rely on the Respondent to furnish employees when needed She further noted that Spaulding Bakery was one of the largest customers of the Respondent at that time She testified that she did not realize that Cordes and Monroe had claimed to have honored the picket line until Monroe called on June 10 But she testified such made no difference inasmuch as it was their failure with out sufficient notification to the Company to show upt for the job assignment that was the cause of their termina lion B Analysts and Concluding Findings To honor a picket line at one s place of employment is clearly activity protected by the Act E g Southern Greyhound Lines 169 NLRB 627 (1968) The Respondent s principal defense is that the precipi tating event did not occur The Respondent contends that there was in fact no picketing of the Spaulding Bakery on the evening of May 21 Therefore the story told by Cordes and Monroe was a fabrication and the Respondent did not violate the Act by terminating their employment In support of this contention the Respondent called Steven Artim Jr who is no longer an employee of Spaulding but who in May 1981 was president of the Company Artim stated that they were quite busy at the newly opened Conklin facility and that he spent essen tially 24 hours a day at the plant during the entire month of May When pickets would show up he would be noti fled and he saw pickets practically every day but they arrived at different times The pickets always left by midafternoon and he never observed pickets at the plant in the evenings Kenneth Ulsh was another Manpower employee at the time who worked on May 21 from 9 p m to 8 a m on May 22 He stated that he arrived about 9 p m and did not observe any pickets in the parking lot at that time Eugene P Trencansky who also is no longer em ployed by Spaulding was an assistant office manager in May 1981 He testified that he never saw any pickets at the plant and that he worked various hours from 8 or 9 pm to 7 or 8 a m the next day Finally Cathy Taylor testified that she spent much time at the Spaulding facility and she never saw any pickets there after 3 p m She testified that she was at the plant on the morning of May 22 when she learned that Monroe and Cordes had not shown up for work the night before She denied having been told that they had honored the picket line and stated that she did not learn this until June 10 Thus there is some circumstantial evidence including testimony from witnesses with no apparent stake in the outcome of this proceeding tending to prove there were no pickets at the Spaulding facility about 8 30 p m on May 21 But there is no direct evidence And to find there were no pickets at that time I would have to0 con dude that both Cordes and Monroe engaged in deliber ate acts of perjury on a matter of critical importance to the outcome of this proceeding I do not believe the record justifies such a conclusion To conclude that Cordes and Monroe made up the story about pickets being present on May 21 would indi cate that they had both determined sometime during the evening of May 21 not to go to work There is howev er no evidence that these two individuals are willfully irresponsible even though Taylor did indicated that they had had some problems with Cordes as an employee and Monroe did testify about one occasion when he was unable to go to work because of car trouble Monroe first talked to a management person stating they had honored the picket line on June 10 or well before litigation of this case Further they both contin ued to call in for jobs—reporting six times between May 26 and June 7 according to a letter from a staff attorney for the Respondent There is nothing inherently inconsistent in the story that either Cordes or Monroe relayed concerning the pickets and there is nothing in the demeanor of either which would indicate that beginning on June 10 they en gaged in a willful he concerning this matter Thus I am not inclined to discredit their testimony or conclude that in fact there were no pickets present at the Spaulding Bakery about 8 30 p m on May 21 It is noted that none of the testimony of Respondent s witnesses is actually in direct conflict with the testimony of Monroe and Cordes That is none of the witnesses called by the Respondent testified that he or she was present in the parking lot at 8 30 p m on May 21 and did not observe any pickets On balance I conclude that in fact there were pickets present at the Spaulding parking lot in the evening of May 21 1981 and that it was the presence of these pick ets which caused Cordes and Monroe not to go to work Thus in honoring the picket line and not reporting for work Cordes and Monroe engaged in activity protected by the Act And the Respondent having terminated their employment for this reason violated Section 8(a)(1) Cases cited by the Respondent (e g NLRB v Rockaway News Supply Co 345 U S 71 (1953)) holding that in cer tam situations an employee may be discharged for honor ing a picket line at other than his own employer s place of business are inapposite The picket line was at the place where Cordes and Monroe were assigned to work And they had a protected right to honor it notwithstand ing they were not in the bargaining unit of those employ ees picketing Southern Greyhound Lines supra There is some question as to when management offi dais of the Respondent became aware that Cordes and Monroe had not reported on May 21 because of the picket line Nui credibly testified that she was not aware of this until Monroe called on June 10 Taylor also credi 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bly testified that she did not learn they had claimed to have honored a picket line until Monroe called Nui though she learned on the morning of May 22 that they had not reported Cordes testified that he told the answering service about the picket line but Taylor testified that she saw the answering service note and on it there was no men tion of the picket line In evidence is a statement of position dated July 9 1981 submitted by a staff attorney for the Respondent (not tnal counsel) which states among other things It is undisputed that both Mr Cordes and Mr Monroe re ported to Spaulding for the May 20 [sic] assignment (for evening shifts commencing to 9 00 p m) and they both refused to cross the picket line to perform their assign ment He went on to note that Taylor learned from Artim the next morning of their failure to report due to the picket line She admitted learning about the failure to report She denied that Artim said it was because of the picket line—a denial which is credible and is supported by Artim s testimony that he knew of no pickets on the evening of May 21 In the letter counsel further stated that the answering service note referred only to the availability of Cordes and Monroe—no mention being made of the picket line the refusal to report or even Spaulding On balance I credit Taylor whose testimony is sup ported by Nui a now disinterested witness and Artim I believe that she did not learn the reason Cordes and Monroe did not report until June 10 notwithstanding that Cordes told the answering service about the picket line (Although lack of any reference to the picket line on the answering service note might indicate that Cordes did not mention it when he called in such a conclusion is not required absent further information Of itself such is not enough to discredit Cordes ) In any event whether management officials knew on May 22 or not until June 10 that Cordes and Monroe had honored the picket line affects this case only with respect to the amount of backpay due The critical fact is that even after management knew that Cordes and Monroe had honored the picket line they continued to treat them as having quit and continued not to assign them to jobs for which they were qualified and available This is not a case of strikers being permanently replaced It is rather a case of the Respondent considering termi nated individuals who engaged in protected activity Assume the Respondent did not know until June 10 that Cordes and Monroe had honored the picket line and further assume that knowledge of protected activity is necessary in order to establish an 8(a)(1) violation for their terminations Walls Mfg Co 137 NLRB 1317 (1962) Marathon Oil Co 195 NLRB 365 (1972) Diag nostic Center Hospital Corp 228 NLRB 1215 (1977) Still the Respondent s failure to put them back on the avail ability roster on June 10 was tantamount to refusing to rehire them because they engaged in activity protected by the Act and therefore a violation of Section 8(a)(1) 1 This testimony was heard over the General Counsel s probably well taken best evidence objection especially since the note is still in the pos session of the Respondent E g NLRB v Whitfield Pickle Co 374 F 2d 576 (5th Cir 1967) I However I believe that Cordes call to the answering service on May 21 was sufficient to deem the Respond ent had notice even if the message was not relayed A company acts only through its agents and for purposes of after hours communications the answering service was such an agent It was this number employees were given Accordingly I conclude that the Respondent terminat ed the employment of Richard Cordes and Craig Monroe from and after May 22 1981 because they had engaged in protected concerted activity and therefore 'violated Section 8(a)(1) of the Act III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices found occurring in connec non with the Respondent s business outlined above have a close intimate and substantial relationship to trade traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing com merce and the free flow thereof within the meaning of Section 2(6) and (7) of the Act IV THE REMEDY Having concluded that the Respondent terminated Richard Cordes and Craig Monroe in violation of Sec tion 8(a)(1) of the Act I shall recommend that it be or dered to reinstate them to their former jobs or if those jobs no longer exist to substantially equivalent positions of employment and to make them whole for any loss of wages or other benefits they may have lost as a result of their termination from and after May 22 1981 in accord ance with the provisions set forth in F W Woolworth Co 90 NLRB 289 (1950) with interest as provided for in Florida Steel Corp 231 NLRB 651 (1977) 2 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed 3 ORDER The Respondent Business Services by Manpower Inc Binghamton New York its officers agents succes sors and assigns shall 1 Cease and desist from (a) Terminating employees because they honor a picket line estabished at places where they have been as signed to work (b) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 4 2 See generally Isis Plumbing Co 138 NLRB 716 (1962) If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 4 Notwithstanding that termination of employment is generally consid ered a substantial unfair labor practice this record does not establish the Respondent has such a proclivity to engage in violations of the Act so as to justify a broad remedial order See Hickmott Foods 242 NLRB 1357 (1979) BUSINESS SERVICES BY MANPOWER 835 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Richard Cordes and Craig Monroe reinstate meat to their former jobs or if those jobs no longer exist to substantially equivalent positions of employment and make them whole for any loss of wages and other benefits according to the remedy section above (b) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (c) Post at its place of business in Binghamton New York copies of the attached notice marked Appen dix 5 Copies of the notice on forms provided by the Regional Director for Region 3 after being signed by the Respondent s authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus tomanly posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered de faced or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 5 If 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 Na tonal Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board i ; , ,