Before: FRIENDLY, CARDAMONE and WINTER, Circuit Judges.
Petition by an employer for review and cross-application by the National Labor Relations Board for enforcement of an order of the Board, 272 N.L.R.B. 827 (1984), finding that the employer, a provider of temporary employees, had violated § 8(a)(1) of the National Labor Relations Act by discharging two employees because of their failure to report for an assignment after having encountered a picket line at the plant of the business to which they had been assigned. Petitioner for review granted; cross-application for enforcement denied.
FRIENDLY, Circuit Judge :
This petition for review and cross-application for enforcement of an order of a divided panel of the National Labor Relations Board (the Board), 272 N.L.R.B. 827 (1984), raises close questions with respect to the application of the National Labor Relations Act to a case where employees honor stranger picket lines without adequate advance notice to their employer.
The Facts and the Proceedings before the Board
The facts, as developed at a hearing before an Administrative Law Judge (ALJ), on the General Counsel's complaint charging a violation of § 8(a)(1) of the National Labor Relations Act, are as follows: Petitioner, Business Services by Manpower, Inc. (Manpower), is in the business of furnishing employees to business requiring industrial and clerical help on a temporary basis. It does this by maintaining a pool of individuals who have notified it that they would be available to accept temporary assignments on short notice. Kathy Taylor, who was in charge of Manpower's office in Binghamton, New York at the time of the incidents here in question, testified:
Punctuality and dependability are an absolute must because obviously we're supplying a service to a business, a company that needs the help. And if we can't depend on our company, therefore, the company cannot depend on us, therefore, we lose the account.
In order that its employees should realize the importance of these considerations, Manpower distributed a two-page policy statement to its employees at the time of their enlistment. First on the list of the employee's responsibilities was the following:
CALL IF YOU CAN'T REPORT OR IF YOU WILL BE LATE
If you can't report for work, you MUST phone us early. This is very important!! As your employer, it is necessary that you keep us informed.
Included at the close of the statement, under the heading "IMPORTANT," was the following warning:
IF YOU DO NOT REPORT AS SCHEDULED AND HAVE NOT CALLED OUR MANPOWER OFFICE, YOU HAVE RESIGNED.
These policies were also stressed in the initial interviews with new employees.
The practice was for employees desiring an assignment to call Manpower's office in Binghamton to check for job assignments and confirm their availability and for Manpower to call them during the day if an assignment developed. Between 5 P.M. and 8 A.M. communication could be had only through an answering service.
Richard Cordes had worked for Manpower in 1979 and, after a period when he was in school, had his file reactivated and began receiving assignments early in 1981. Craig Monroe started working for Manpower on April 15, 1981, and worked approximately two days a week during the five weeks of his employment until the events here in issue. The men lived in the same rooming house and, whenever possible, requested the same work assignment so that they could ride together to the customer's premises. Neither was a union member.
One of Manpower's largest accounts was Spaulding Bakery (Spaulding), which had a plant in Conklin, New York, near Binghamton. On May 20, 1981, Monroe received a call from Esther Nui of Manpower stating that she had a two-day assignment for him and Cordes at the Spaulding plan, starting at 9 P.M. on May 21; Monroe accepted on behalf of both.
Cordes and Monroe arrived at the plant around 8:30 P.M. on May 21. They observed five or six individuals carrying or wearing picket signs advertising a labor dispute between Spaulding and the Bakery and Confectionary Workers Union.*fn1 The picketers made no attempt to block cars from entering the plant, and neither the signs nor the men carrying them requested anyone to refrain from doing so. Cordes and Monroe stopped to talk with picketers and learned that there was a labor dispute at Spaulding's plant at Hazelton, Pennsylvania, over 100 miles away, resulting in a strike, and that the picketers claimed that Spaulding had moved to Conklin some of the work previously performed at Hazelton. Although they were not asked to do so, and although Cordes "could well believe" he had been told that if he did not report ...