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National Labor Relations Board v. W. C. McQuaide Inc.

argued: January 11, 1977.

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
W. C. MCQUAIDE, INC., RESPONDENT



ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.

Gibbons and Garth, Circuit Judges, and Mitchell H. Cohen, District Judge.*fn*

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge:

The National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. ยง 151 et seq., petitions for enforcement of its order issued against W. C. McQuaide, Inc.*fn1 We enforce in part and remand for further findings.

I.

W. C. McQuaide, Inc. (Company) is a family-held corporation which operates a trucking business from its terminal at Johnstown, Pennsylvania. Before the commencement of the strike, the Company employed approximately 300 employees.*fn2 On April 1, 1974, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Local 110 (the Union) served on the Company a letter in which it claimed to represent a majority of the drivers and warehousemen. When the Company refused recognition, the Union filed a representation petition with the Board seeking an election. On April 17, 1974, between 120-150 employees struck. The strikers picketed the various entrances to the McQuaide terminal and utilized roving pickets at delivery points. The purpose of the strike was to obtain recognition of the Union, to get a prompt election, and to secure improvements in wages and working conditions.

The strike, which lasted four months, seriously disrupted the Company's business and was marked by considerable damage to Company property. Truck windshields were smashed, air hoses were cut and a warehouse, airplane, and hangar were burned, but the responsibility for these acts could not be attributed to anyone. During the course of the strike, the Company sent letters to striking employees and held meetings encouraging them to return to work.

A week after the strike began, the Company obtained a broad temporary restraining order from the Court of Common Pleas of Cambria County.*fn3 A modified consent order was entered five days later. On May 1, 1974, the Company petitioned the Court of Common Pleas to have certain named strikers adjudged in contempt of the consent order and a hearing (the Ebensburg hearing) was held on May 6 and 7, 1974. No specific findings of fact were made, but seven strikers were found in contempt. Frank Petrosky, Harry Lavely, Robert Lesnak, Dennis Patterson, Dennis Albert, and Lawrence Gindelsperger were each fined $50. John Geisel was fined $100.*fn4

The strike continued and the Company transferred ten employees from other departments to the dock and hired fourteen new employees. On May 17, 1974, nineteen striking dockworkers were notified that they had been permanently replaced. Two days later the Company discharged the seven strikers who were found in contempt at the Ebensburg hearing.

On August 8, 1974, the Company, the Union and their attorneys met at a hearing before the Pennsylvania Unemployment Compensation Board of Review. The Company's attorney, Stephen Cabot, stated that the Company was "ready, willing and able" to take back any employee who wanted to come back. The statement was made privately to Union President Adams as well as in response to the Referee's questions. On the same date, the Union sent a letter to the Company stating that the strikers were "unconditionally ready, willing and able to return to work immediately." The Union terminated all pickets except those at the main entrance to the terminal.*fn5

Upon receipt of the Union's letter on August 12, 1974, Company President L. McQuaide sent the following letter to a large number of employees:

"Today, for the first time, I have received information which leads me to believe that you may be willing to return to work unconditionally, and to do so at once.

If you desire to return to work unconditionally, please notify me of your:

1. Intention to return to work, and

2. The earliest available date you can return to work.

If you want your previous job which is available, contact me as soon as possible."

On August 15, 1974, L. McQuaide wrote two additional letters to employees. To the dockworkers who had received the replacement letter, he wrote:

As you know on May 17, 1974 I wrote a letter informing you that you were permanently replaced. I would appreciate hearing from you no later than Friday, August 23, 1974, if you have any desire to work for W. C. McQuaide, Inc.

If you are currently available and desire to fill a vacancy should one occur, please notify me of your intention no later than August 23, 1974. If possible, please convey this information to me at my office.

The following letter was sent to the other strikers:

Today, for the first time, I have received information that leads me to believe that you may be willing to return to work unconditionally and to do so at once.

If you desire to return to work unconditionally, please notify me of your:

1. Intention to return to work, and

2. The earliest available date you can return to work.

If I do not hear from you by Friday, August 23, 1974, I will assume that you have no desire to return to work. If possible, please see me at my office to discuss this matter.

During this period of time, Cabot again told Adams that jobs were available to employees who requested them. He complained to Adams that the continuation of a picket line was inconsistent with the Union's letter of August 8. Adams replied that he would do what he could about eliminating the picket line and about having strikers notify McQuaide concerning reinstatement.

On August 29, 1974, L. McQuaide wrote to all strikers who had responded to the Company's August 15 letter. Appointments were scheduled for them to see him in his office. To those who had not responded, L. McQuaide sent letters stating his assumption that they no longer desired to work for the Company and that he would have their personnel records marked accordingly.

Between September 3 and 5, 1974, L. McQuaide interviewed about thirty to forty strikers. In general, he asked them whether they wanted to come back to work and when they would be available. He questioned many of them about strike violence and vandalism.

Between August 18 and November 11, 1974, the Company hired ten new drivers and thirty new dockworkers in addition to the strikers who were reinstated in August.*fn6

The Board filed unfair labor practice charges in October 1974, alleging that the Company violated Section 8 (a)(1) and (3) of the Act*fn7 by discharging seven named strikers*fn8 and by failing to reinstate certain named dockworkers*fn9 as well as unnamed striking employees, and that the Company violated Section 8(a)(1) of the Act by coercively interrogating ...


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