United Packinghouse Workers of America, AFL-CIO

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men electricians and the Employer has no apprenticeship or formal training program for them. They work the same hours, under work- ing conditions and with benefits and interests similar to that of pro- duction and other maintenance employees. Based on all the foregoing, we are unable to find that the skills and duties of the Employer's electricians are such as to justify a conclusion that they constitute a distinct and homogenous group of skilled journeymen craftsmen, working as such, or that their in- terests differ materially from those of other employees. As the record does not show that the electricians constitute an appropriate de- partmental group or that they meet requirements for craft status, we find, upon reconsideration of the entire record, that the unit sought by the IBEW does not constitute a separate appropriate unit, and that they are properly a part of the production and main- tenance unit found appropriate herein.6 Upon the entire record herein, we now find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Employer's mines, mill, and auxiliary departments at its operations near Grants, New Mexico, including electricians, helpers, electrical repairmen, and plant clerical employees, but excluding office clerical and profes- sional employees, guards, and all supervisors as defined in the Act. [The Board dismissed the petition in Case No. 33-RC-710.] [Text of Amended Direction of Election omitted from publica- tion.] 6 See American Brass Company, 120 NLRB 1276 ; E. I. DuPont de Nemours & Company, 119 NLRB 723 ; Precision Castings Corporation, 114 NLRB 63. United Packinghouse Workers of America, AFL-CIO and M. L. Taliaferro Thomas H. Vincent, As Agent of United Packinghouse Workers of America, AFL-CIO and M. L. Taliaferro Local No. 680, United Packinghouse Workers of America, AFL- CIO and R. L. Zeigler, Inc. Cases Nos. 10-CB-849, 10-CB-85?, and 10-CB-854. March 31, 1959 DECISION AND ORDER On January 6, 1959, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices in violation of Section 8(b) (1) (A) of the 123 NLRB No. 53. UNITED PACKINGHOUSE WORKERS OF AMERICA, AFL-CIO 465 Act and recommending -that they cease and desist therefrom and take, certain affirmative action, as set forth in a copy of the Intermediate Report attached hereto. Thereafter, the Respondents, the Charging Party, and the'General Counsel filed exceptions to the Intermediate Report together with supporting briefs. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has, considered the Intermediate Report, the exceptions and briefs, and the entire record in the cases and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the additions and modifica- tions noted below.2 We agree with the Trial Examiner that the Respondents violated Section 8(b) (1) (A) of the Act. In doing so, however, we find that that the Respondents engaged in the unlawful conduct, not only on the occasion set forth in the Intermediate Report, but on other occasions as well. Moreover, we find that this unlawful conduct consisted of inciting, encouraging, and participating in mass picketing of the Employer's premises ; threatening to assault and ' assaulting non- striking employees; permitting pickets to carry heavy sticks and clubs; interfering with ingress and egress at the Employer's prem- ises; threatening employees of the Employer's Selma plant when they approached the picket line; and physically preventing super- visors from entering upon the company premises. The Trial Examiner also found that it was unnecessary to reach an ultimate conclusion with respect to the assaults upon Taliaferro and Stelzenmul.ler, company attorneys. We do not agree. Such assaults, we find, restrained and coerced employees within the mean- ing of Section 8(b) (1) (A) of the Act because they demonstrated to both striking and nonstriking employees, who witnessed the assaults or were likely to learn of them, that they, too, would suffer similar reprisals if they did not support the strike. ORDER Upon the entire record in these cases and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, United Pack- inghouse Workers of America, AFL-CIO, and its Local No. 680, their respective officers, representatives, agents, successors, and as- 'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 2Con,trary to the assertions made in the "Affidavit of Personal Bias," filed by C. V. Stelzeninuller, we find no evidence of bias and prejudice by the Trial Examiner in this proceeding. 508889-60-vol. 123 31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signs, and Thomas H. Vincent, as agent for United Packinghouse Workers of America, AFL-CIO, shall: 1. Cease and desist from : (a) Engaging in mass picketing of the premises of R. L. Zeigler, Inc. ; assaulting and threatening to assault employees and agents of the Employer; permitting their pickets to carry sticks and clubs during picketing of the said Employer's plant; threatening em ployees of other plants of the Employer who approach the picket line; physically preventing supervisors or employees from entering upon the premises of the Employer; and-assaulting company attor- neys for crossing the picket line. (b) In any other manner restraining or coercing the employees of R. L. Zeigler, Inc., in the exercise of the rights guaranteed in Section 7 of the Act, including the right to refrain from any or all concerted activities as guaranteed by the Act. 2.' Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in their business offices and meeting halls, in conspicuous places, including all other places where notices to their members are customarily posted, copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after being duly signed by official representatives of the Respondents, shall be posted by the Respond- ents immediately upon receipt thereof and maintained by them for' 60 consecutive days thereafter. Reasonable steps shall be ' taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail signed copies of the notice to the Regional Director for the Tenth Region for posting, R. L. Zeigler, Inc., willing, at all locations where notices to this Employer's employees are customarily posted. (c) Notify the Regional Director for the Tenth Region in writing, within 10 days from the date of this Order, what steps the Respond- ents have taken to comply herewith. 3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" -the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL MEMBERS OF UNITED PACKINGHOUSE WORKERS OF AMERICA, AFL-CIO, AND ITS LOCAL 680, AND TO ALL EMPLOYEES OF R. L. ZEIGLER, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : UNITED PACKINGHOUSE WORKERS OF AMERICA, AFL-CIO 467 WE WILL NOT engage in mass picketing of the premises of R. L. Zeigler, Inc.; assault or threaten to assault employees or agents of the said Employer; permit pickets to carry sticks or clubs during picketing of the plant; threaten employees of other plants of the Employer who approach our picket lines ; physi- cally prevent supervisors or employees from entering upon the premises of the Employer; or assault company attorneys for crossing the picket line. WE WILL NOT in any other manner restrain or coerce em- ployees of R. L. Zeigler, Inc., in the exercise of the rights guar- anteed in Section 7 of the Act, as amended, including the right to refrain from any or all concerted activities as guaranteed by the Act. UNITED PACKINGHOUSE WORKERS OF AMERICA, AFL-CIO. Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) LOCAL No. 680, UNITED PACKINGHOUSE WORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) THOMAS H. VINCENT, AS AGENT OF UNITED PACKINGHOUSE WORKERS OF AMERICA, AFL-CIO, Dated---------------- By------------------------------------- (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been filed in each of the above-entitled cases, an order con- solidating said cases, a complaint, and notice of hearing thereon were issued and served by the General Counsel of the National Labor Relations Board on October 17, 1958. Hearing was set for December 2, 1958. On November 5, 1958, the above-named Charging Parties sent the following letter to the Regional Director, Tenth Region: We respectfully request you to dismiss the charges filed by us against United Packing (sic) Workers of America, AFL-CIO, its Local No. 680, Thomas H. Vincent, as Agent, and any individual members of the United Packing (sic) Workers of America. Those cases are numbered 10-CB-849, 10-CB-852 and 10-CB-584 (sic). It appears that the Regional Director declined to permit the withdrawal of said charges. (The complaint was not withdrawn, and although the Regional Director's reply, if any, to the above-quoted request was not offered in this record, General Counsel stated at the hearing that "the cases have long held that it is within the 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discretion of the Regional Director as to whether to accept the withdrawal of the charges once they have been filed....") Pursuant to said notice a hearing was held .in Tuscaloosa, Alabama, on December 2, 195 .8, before the duly, designated . Trial Etaminer. All parties were present and represented , and were afforded'full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues . At the opening of the hearing all parties stipulated that, in lieu of calling the same witnesses to testify before the Trial Examiner , there be placed in evidence testimony and exhibits taken on September 25 and 26, 1958, before Judge Reuben H. Wright, Circuit Court of Tuscaloosa County, Alabama, in Case No. 12,167. Opportunity to argue orally and to file briefs was waived by all parties. The Respondents' motion to dismiss the complaint, upon which ruling was reserved at the conclusion of the hearing, is disposed of by the following findings, con- clusions, and recommendations. Upon the entire record, and from his observation of those witnesses who were called before him, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF R. L. ZEIGLER, INC. Said Employer, a Charging Party, is an Alabama corporation , maintaining places of business in Tuscaloosa , Bessemer , and Selma, Alabama , where it is engaged in the business of slaughtering livestock and processing meat products. .Only the Tuscaloosa plant is here involved. At this plant, during the year preceding issuance of the complant , Zeigler sold and shipped products valued at more than $500,000 directly to customers located outside the State of Alabama. R. L. Zeigler , Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED United Packinghouse Workers of America, AFL-CIO, and its Local 680 are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and issues After Charging Party Zeigler , through its counsel , Charging Party Taliaferro, agreed on July 14, 1958 , to recognize and to bargain with the Respondent Unions, a number of negotiating conferences were held. They' broke down on the morning of August 19 and shortly before noon most of the employees in the plant walked out and a strike began. That the ensuing strike was conducted by and was the joint responsibility of both the Respondent United and the Respondent Local is established by substantial evidence. Both Thomas H. Vincent, admitted by the answer to be an international representative of the Respondent United, and Robert Vaughn , president of Local 680 , actively participated in strike action and at various times were present on the picket line. The Respondents offered no evidence that at any time during the strike did Vincent, Vaughn , or any other responsible official of the Respondent Unions disavow any of the conduct described below. It is therefore here found that all of the named Respondents , including Vincent as agent of the United, ` must be held accountable for conduct engaged in by the pickets , as noted below.' Conduct of the pickets and strikers is the major issue. The complaint alleges and the answer denies that the Respondents , through pickets and agents, on August 19 and thereafter engaged in mass picketing and violence, and made threats of violence, against nonstriking employees , supervisors , and two attorneys representing Zeigler, and that the purpose of such conduct was to force nonstriking .employees to join the strike and to deter them from abandoning the strike and returning to work.2 Findings below are based upon undisputed testimony . The Respondents called no witnesses in defense, resting upon the fact that both parties to the dispute, out 1 Sunset Line and Twine Company , 79 NLRB 1487 at 1507. 2 The complaint alleges that the "automobile of an employee of the Tuscaloosa News" was "struck and damaged" by the Respondents . The Trial Examiner finds no testimony from any such employee in either record. UNITED PACKINGHOUSE WORKERS OF AMERICA, AFL-CIO 469 of which the claimed misconduct arose , had settled matters amicably before the hearing, had entered into a 2-year collective-bargaining agreement containing a no-strike clause, and desired that the charges be dismissed. B. Events in issue Since all testimony on major points lacks contradiction , it appears unnecessary to describe each of the following incidents in exhaustive detail . They are there- fore summarized , chronologically. August 19: Shortly after most of the other employees had left the premises on strike several of them, including President Robert Vaughn , came back and by force tried to pull out of the plant employee Wesley Coleman . Manager John Bell interceded and they left, but later returned and again tried to drag Coleman out with them. Later the same day , when H. F. Yager, a nonstriking employee, left the plant he was threatened by employee pickets that if he came back the next morning he was "liable to wind up" in a funeral home . Attempts were made to reach into his car for him. Picketers followed him from the plant to his home , 7 miles away. Rocks were thrown at him, breaking his windshield and a door window. August 20: On the morning of this day a crowd of 35 or 40 strikers gathered on a small road leading into the plant premises , blocking ingress . In the presence of many striking employees Manager Bell was warned by President Vaughn that "only salaried employees would be allowed to go in." On the same occasion a mass gathering of pickets halted the car of Assistant Shipping Clerk Danny Price, a supervisor, and Vincent came up to-him and told him to "back out and get out." August 21 : When Guy Lamb, in charge of beef sales for Charging Party Zeigler, attempted to enter the plant premises this morning his approach was blocked by six or eight pickets and he was told that he would not be recognized as a foreman and "couldn't go in and go to work." Lamb and his companion in the same car turned around to leave, and as they did so Vincent came up and , in the presence of striking employees , told him they didn't want him to come down there again. At about the same point of approach , on the same morning, similar treatment was accorded W. E. Scott, cattle buyer for Zeigler . Later the same morning, at a. location away from the picket line, both Lamb and Scott were warned by Vincent: that there "would be trouble either at the picket line or somewhere else" if they tried to get into the plant. August 23: Early in the morning of this day, a car occupied by Assistant Manager Knox Boteler and Sausage Foreman Grady Parsons was blocked while attempting to enter plant _ property by a massed gathering of 25 to 30 pickets.. Vincent was present, and told Boteler that he would rather they not go in. They left. Later the same day a local sheriff came to the scene and served each of some 50 individuals with an injunction issued that or the preceding day by a local court. (The precise nature of that injunction is not revealed by the record and is not believed to be material to these proceedings.) August 27: So far as the record shows no strike action of a serious nature occurred following service of injunction papers until August 27 . According to the testimony of Counsel Taliaferro and his associate , Attorney Stelzenmuller , they were severely beaten by pickets in the vicinity of the plant that day. Their testimony, being undisputed , establishes beyond question that they were attacked and were the victims of violence on this occasion , and that President Robert Vaughn was one of the participants in acts of violence. C. Conclusions The foregoing findings as to events between August 19 and 23, inclusive, amply sustain the allegations of the complaint that by such conduct, for which they are accountable, the Respondents violated Section 8 (b) (1) (A ) of the Act. The Board's interpretation of the law, set forth in W. T. Smith Lumber Company, 116 NLRB 1756, requires this conclusion . As to the acts of violence against Attorneys Taliaferro and Stelzenmuller on August 27, however , the Trial Examiner considers it unnecessary to reach an ultimate conclusion . It appears that the appropriate remedy would in no way be affected by omission of such conclusion . Primarily, however, the Trial Examiner considers that circumstances described by the attor- neys themselves raise certain questions to which the record before him does not contain reasonable and credible answers. Such circumstances include: (1) Al- though they had made previous visits to the plant , until August 27 it does not appear that either of them had been seriously molested by the pickets ; ( 2) neither attorney was molested or threatened when coming into the plant on the 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD morning of that day, although Stelzenmuller was told, when he stopped to take pictures of individuals and cars along the road, "Don't be taking those pictures"; (3) both attorneys returned to the plant that afternoon, with a number of super- visors, without molestation; (4) Taliaferro then had a Zeigler truck "loaded," as he described it, with a single ham, and with Assistant Manager Boteler beside him drove the truck by the pickets; (5) according to Stelzenmuller he followed the truck in another car with instructions from Taliaferro "to take pictures" if any- thing occurred; (6) the truck and Stelzenmuller in the car he was driving were followed to a hospital where they made what Stelzenmuller called a "small delivery" of the one ham, and then returned toward the plant; (7) Taliaferro and Stelzenmuller returned to the plant in the same order, the latter following the former; (8) as they neared the plant, Taliaferro stopped the truck near Robert Vaughn and others, not being sure the truck could pass between two cars parked on either side of the narrow road; (a) Taliaferro was dragged from the truck by Robert Vaughn and his brother, as well as others, and knocked to the ground and beaten; (10) Stelzenmuller, following not far behind, got out of his car to take a picture of Taliaferro being dragged from the truck, whereupon someone shouted "get that camera" and he himself was set upon; (11) both Taliaferro and Stelzen- muller identified Robert Vaughn as having beaten them, although how this indi- vidual could have been in two places at once is not explained; (12) Assistant Manager Boteler, sitting beside Taliaferro in the truck, was unharmed and accord- ing to his testimony no "effort to hit me whatsoever" was made; (13) while Taliaferro was on the ground Robert Vaughn told him to "Get the hell out of Tuscaloosa and don't come back"; (14) although Taliaferro testified that he was "in a state of shock" as a result of mistreatment and so bady injured that he had to stay for 2 days in a hospital, nevertheless he left the scene with his associate and both went promptly to the local courthouse, where he visited with the judge who had issued the injunction, called a local newspaper and had a photographer come down to take pictures of himself and Stelzenmuller, and only then departed for the hospital; and (15) according to Taliaferro's testimony, he had had his associate follow him that day to take pictures of whatever happened, and there- after filed a personal damage suit against the Respondents in this case for $100,000. Under the circumstances set forth above, the Trial Examiner views with some reservation Taliaferro's claim that he loaded the one ham into a truck and went through the picket lines "to see if we could operate a truck or not." It would appear to be questionable judgment to thrust one's hand into a hornet's nest to see if the hornets are at home. In any event, the fact that only the attorneys were assaulted on this occasion, and not the assistant manager, who was with them, raises doubt in the mind of the Trial Examiner as to the real purpose of the attack, and does not permit, in the opinion of the Trial Examiner, the con- clusion sought by General Counsel that it was designed to force "nonstriking employees to join or support Respondents in said strike and of deterring striking employees from abandoning the strike and returning to work." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of Charging Party Zeigler described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, the Trial Examiner will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Packinghouse Workers of America, AFL-CIO, and its Local No. 680 are labor organizations within the meaning of Section 2(5) of the Act. 2. By engaging in mass picketing, by threatening violence, and by engaging in acts of violence the Respondents restrained and coerced employees within the meaning of Section 8(b) (1) (A) of the Act. [Recommendations omitted from publication.]