Brotherhood of Locomotive Firemen, Etc.

BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC. 1147 3. By interfering with , restraining, and coercing its, employees in the exercise of rights guaranteed to them by Section 7 of the Act, as set forth above, the Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act. [Recommendations omitted from publication.] Brotherhood of Locomotive Firemen and Enginemen; and Brotherhood of Railroad Trainmen and Phelps Dodge Cor- poration, Morenci Branch Brotherhood of Locomotive Firemen and Enginemen and Phelps Dodge Corporation, Copper Queen Branch Brotherhood of Locomotive Firemen and Enginemen; and Brotherhood of Railroad Trainmen and Phelps Dodge Cor- poration, New Cornelia Branch Brotherhood of Locomotive Firemen and Enginemen; - and Brotherhood of Railroad Trainmen and Phelps Dodge Cor- poration, Morenci Branch. Cases Nos. 21-CB-1488, 21-CB- 1489, 21-CB-1490, and 21-CB-1492. March 3, 1961 DECISION AND ORDER On August 11, 1960, Trial Examiner Howard Myers issued his In- termediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel, the Respondents, and the Charging Party filed exceptions to the In- termediate Report and the General Counsel and the Respondents filed supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in these cases and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the, modifications, additions, and ex- ceptions indicated below. For the reasons set forth in the Intermediate Report we agree with the Trial Examiner that the Respondent's failure to notify the Indus- 130 NLRB No. 94. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trial Commission of the State of Arizona of the existence of a dispute as required by Section 8(d) (3) and the failure to comply with the requirements of Section 8 (d) (4) constituted a violation of Section 8 (b) (3) of the Act.' We also agree with the Trial Examiner that the Respondents violated Section 8(b) (1) (A) of the Act. In doing so we rely upon the following acts, all of which were committed at the jointly struck Morenci plant by, or in the presence of, union agents. 1. The stopping and lifting of Foreman Chleo Riley's car at the mill gate on February 13 in the presence of BLFE Chairman Frank Essex. 2. The stopping of Mahan's car on February 13 as he entered the plant and the threat to him of bodily harm by Essex. 3. The blocking of the mill gate on February 13 by BLFE Vice Chairman Stewart to prevent the entry of the truck belonging to Louis Villalante; the disconnecting of the tailhoses on Villalante's truck by Organizer Ward and member Molz; and the jumping on the truck by Member Pugh. 4. The stopping, and violent rocking of the car of Shift Foreman" V. O. Loose on February 13 in the presence of Union Officer T. L. Chapman. 5. The blocking of the car of Paul Austin and the threat to turn over his car on February 13 in the presence of T. L. Chapman. 6. The rocking of the car of Joe Armijo and the threat to turn it over on February 13 in the presence of T. L. Chapman. We also do not adopt the wording of the Trial Examiner's conclu- sions Nos. 4 and 5, which we shall revise to read : (4) By striking without serving the notice required by Section 8(d) (3) of the Act, upon the Arizona State Labor Department under the Industrial Commission of Arizona, the Brotherhoods have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (3) of the Act. (5) By failing to continue in full force and effect, -without resorting to strike, all the terms and conditions of the existing contracts for a period of 30 days after giving the notice required in Section 8(d) (3), as provided by Section 8(d) (4) of the Act, the Brotherhoods have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (3) of the Act.2 I We do not, however, adopt the Trial Examiner's characterization of the Respondent's strikes as "unfair labor practice strikes" since the phrase is ordinarily used to denote strikes caused by the unfair labor practices of an employer . Nor do we find it necessary to adopt the Trial Examiner's comment with respect to the right of the Employer to discipline or reinstate his employees as the status of the employees is not in issue in this proceeding. 8 In the portion of the Intermediate Report entitled "The Remedy," the Trial Examiner found that the Brotherhoods had violated Section 8 (b)(4)(A) rather than Section 8(b) (1) (A ). The error is hereby corrected. BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC. 1149 The recommended order by the Trial Examiner fails to provide a remedy for the violation of Section 8(b) (3) nor does it enjoin spe- cifically the types of behavior found violative of Section 8 (b) (1) (A). We shall therefore revise the order and notice to conform more closely to the violations found herein. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Brotherhood of Locomotive Firemen and Enginemen, and Brotherhood of Railroad Trainmen, and each of them, and their respective officers, agents, rep- resentatives, successors, and assigns, shall : 1. Cease and desist from: (a) Restraining and coercing employees of Phelps Dodge Corpo- ration by rocking automobiles of employees and of other persons desiring to enter the plant; by blocking the ingress and egress of employees and others desiring to enter or leave the plant; by threaten- ing physical violence to the persons and property of employees or other persons desiring to enter or leave the plant; in any other man- ner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. (b) Refusing to bargain collectively with Phelps Dodge Corpora- tion concerning the termination or modification of a collective- bargaining agreement with the said Phelps Dodge Corporation, by failing to notify, before striking, the Arizona State Labor Department under the Industrial Commission of Arizona of the existence of a dis- pute within 30 days after service of notice upon Phelps Dodge Corpo- ration that the Respondents seek or desire modification or termination of a collective-bargaining contract. (c) Refusing to bargain collectively with Phelps Dodge Corpora- tion by failing to continue in full force and effect, without resorting to strike, all the terms and conditions of the existing contracts for a period of 30 days or until the expiration date of the contract, which- ever occurs later, after giving the notice required by Section 8(d) (3) of the Act, as provided by Section 8 (d) (4) of the Act. (d) Engaging in, or causing or instructing the employees of Phelps Dodge Corporation to engage in, a strike, for the purpose of modifying or terminating a collective-bargaining contract, without first having complied with the requirements of Section 8 (d) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . (a) Post at their respective offices in Morenci, in Ajo, and in Bisbee, Arizona, copies of the notice attached hereto marked "Appendix."' Copies of said .notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the repre- sentatives of the Brotherhoods, be posted immediately upon receipt thereof, and maintained for a period of 60 consecutive days there- after in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Brotherhoods to insure that such notices are not altered, defaced, or covered by any other material. (b) Mail or deliver to the Regional Director for the Twenty-first Region copies of the notice attached hereto marked "Appendix," duly signed by the proper and qualified officers of each Brotherhood, for posting by Phelps Dodge Corporation, it being willing, in places where it customarily posts notices to employees. Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being signed as provided for above, be forthwith returned to, the said Regional Director for Phelps Dodge's permissive posting. (c) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. 8 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 BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN AND BROTHERHOOD OF RAILROAD TRAINMEN AND TO ALL EMPLOYEES OF PHELPS DODGE CORPORATION 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 give notice that : WE WILL NOT rock automobiles of employees or of other persons desiring to enter the plant. WE WILL NOT block the entrances to employees and others de- siring to enter or leave the plant. WE WILL NOT threaten physical violence to the persons and property of employees or other persons desiring to enter the plant. WE WILL NOT in any other manner restrain or coerce employees of Phelps Dodge Corporation in the exercise of-their rights guar- anteed in Section V of the Act, as amended, including the right to refrain from any or all concerted activities as guaranteed by the Act. BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC. 1151 WE WILL NOT refuse to bargain collectively with Phelps Dodge Corporation by (1) failing to notify the appropriate State agency, within 30 days of the notice to the corporation, that a dispute exists, provided no agreement has been reached by that time; and (2) failing to continue in full force and effect, without resort to a. strike; all the terms and conditions of an existing con- tract for a period of 30 days after such notice is given, or until the expiration date of such contract, whichever occurs later. WE WILL NOT engage in, or cause or instruct the employees of Phelps Dodge Corporation to, engage in, a strike, for the purpose of modifying or terminating a collective- bargaining contract, without first having complied with the requirements of Section 8(d) of the Act. BROTHEvHOOD OF LOCOMOTIVE FIREMEN AND ENOINEMEN, Labor Organization. Dated- --------------- By------------------------------------- (Representative) (Title) BROTHERHOOD- OF RAILROAD TRAINMEN, Dated ------- =--------• By-=----------------------------------- (Representative ) ' (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 AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed by Phelps Dodge Corporation , the General Counsel of the National Labor Relations Board , herein respectively called the General Counsel 1 and the Board, through the Regional Director for the Twenty-first Region (Los Angeles, California), issued a consolidated complaint , dated April 11, 1960, against Brotherhood of Locomotive Firemen and Enginemen, herein called BLFE, and against the Brotherhood of Railroad Trainmen ,' herein called BRT,2 alleging that each had engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1) (A) and (3 ) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, as amended from time to time, herein called the Act. Copies of the charges, the consolidated complaint, and notice of hearing thereon were duly served upon each Brotherhood and copies of the consolidated complaint and. notice of hearing thereon,were duly served upon'Phelps Dodge: _Specifically,, the consolidated complaint alleged that:, ( 1) Since about May 15; 1942, on which date the Board certified BRT as the exclusive bargaining representa- tive of Phelps Dodge. in a certain appropriate unit, Phelps Dodge has recognized and has bargained with BRT as such representative ; (2) since the Board's April 7, 1954, certification of BLFE as the exclusive collective-bargaining representative of Phelps Dodge employees in a certain appropriate unit, Phelps Dodge has recognized and has bargained with BLFE as such representative;,- (3) on or about February 12, 1960,3 the Brotherhoods instituted a strike at certain Arizona branches of Phelps Dodge without first giving the notices-required by Section 8(d) (3) of the Act and since said 1 This term specdfically includes counsel for the General Counsel appearing at the hearing. 2 Conjointly BLFE and BRT ' are referred to as the Brotherhoods. _$ Unless otherwise noted all dates hereinafter mentioned refer to 1960. . 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date has failed to continue in full force and effect , without resorting to any strike activity, all the terms and conditions of the then-existing collective-bargaining con- tracts for a period of 60 days after the giving of such notice as required by Section 8(d) (4) of the Act; and (4) the Brotherhoods, through certain named officers and certain named members and strikers , engaged in certain stated unlawful picket-line activities. On April 20, the Brotherhoods duly filed a joint answer denying the commission of the unfair labor practices alleged. 1 Pursuant to due notice, a hearing was held at Safford , Arizona, from May 23 through 27, before the duly designated Trial Examiner. The General Counsel, the Brotherhoods, and Phelps Dodge were represented by counsel and participated in the hearing . Full opportunity was afforded all parties to be heard , to examine and cross-examine witnesses , to introduce relevant evidence, to argue orally at the con- clusion of the taking of the evidence, to file briefs or proposed. findings of fact and conclusions of law, or both, on or before June 27 .4 A brief has been received from counsel for each party and each has been carefully considered. Counsel for Phelps Dodge also filed, after having served copies thereof upon counsel for the other parties, proposed findings of fact and conclusions of law. These proposed findings and conclusions are disposed of in accordance with the findings, conclusions, and recommendations hereinafter set forth. After the close of the hearing counsel for the Brotherhoods filed, after having served copies thereof upon counsel for the other parties , a motion to correct certain inaccuracies appearing in the stenographic report of the hearing . The motion is hereby granted and the motion papers are received in evidence and are marked "Trial Examiner's Exhibit No. 1." After the close of the hearing counsel for Phelps Dodge filed, after having served copies thereof upon counsel for the other parties, a motion to correct certain inac- curacies appearing in the stenographic report of the hearing. The motion is hereby granted and the motion .papers are received in evidence and are marked "Trial Ex- aminer's Exhibit No. 2." Upon the record as a whole and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS Phelps Dodge Corporation is engaged in the mining and processing of copper ore at its Morenci Branch , located at Morenci , Arizona, at Copper Queen Branch, located at Bisbee, Arizona, and at New Cornelia Branch, located at Ajo, Arizona. During 1959, each of these three branches shipped finished products valued in excess of $50,000 to points located outside the State of Arizona. Upon the above admitted facts, the Trial Examiner finds that during all times material Phelps Dodge was, and now is, engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS . INVOLVED The Brotherhoods are labor organizations admitting Wmembership• employees of Phelps Dodge. III. THE UNFAIR LABOR PRACTICES A. Prefatory statement The issues raised by the pleading are (1 ) whether the Brotherhoods' failure to give the proper agency of the State of Arizona the notice required under Section 8 (d) (3) of the Act before they struck the several installments of Phelps Dodge'was violative of the Act, and (2) whether or not the Brotherhoods are, and each is, accountable for the threats, coercion, and other misconduct which took place during the strike. Each of these issues will be dealt with seriatim. B. The issue regarding the failure to serve the required notice In its pertinent provisions, after defining generally the obligations of collective bargaining, Section 8(d) specifically provides: That where there is in effect a collective-bargaining contract covering em- ployees in an industry affecting commerce , the duty to bargain collectively shall & At the request of counsel, the time to Me briefs was extended to and including July 15. BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC . 1153 also mean that no party to such contract shall terminate or modify such con- tract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to. the time it is proposed to make such termination or modifi- cation; (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; ,(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies 'any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and ,(4) continues in full force and effect, without resorting to strike or lock- out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later. The credited evidence, coupled with the several admissions of the Brotherhoods, establishes that: Since May 15, 1942, Phelps Dodge has recognized and dealt with BRT as the statutory representative of Phelps Dodge Morenci and New Cornelia employees in the units for which BRT had been certified; that since April 7, 1954, Phelps Dodge has recognized and dealt with BLFE as the statutory representative of the Phelps Dodge Copper Queen installation employees for which BLFE had been certified; the Brotherhoods jointly struck the Copper Queen, Morenci, and New Cornelia installations of Phelps Dodge on February 12, at a time when the Brother- hoods and Phelps Dodge were in joint negotiations for new contracts or for a re- newal or for a modification of the then-existing contracts; on the same day, February 12, BLFE called a strike at the Copper Queen Branch of Phelps Dodge, at a time when BLFE were in contract negotiations with Phelps Dodge for new contracts, or for a modification or renewal of the then-existing contracts; these strikes were called, and the said installations picketed by the Brotherhoods without first giving the re- quired Section 8(d)(3) notices; on February 16, the Brotherhoods withdrew the pickets from the New Cornelia installation; the pickets were withdrawn from the Copper Queen installation on February 17; and the pickets withdrawn from the Morenci installation on February 18. The Brotherhoods concede that they failed to give the required Section 8(d)(3) notice to the proper Arizona agency. In an effort to absolve itself of any liability under the Act, the Brotherhoods averred in their answer to the consolidated com- plaint and at the hearing and in their brief contended that since there is "no agency within the State of Arizona functioning in regard to mediation or conciliation" it would have been an idle gesture for them to give notice to any agency of the State of Arizona. In support of their positions, the Brotherhoods point to the fact that the Arizona State Labor Department under the Industrial Commission of Arizona (the agency which the General Counsel contends the required Section 8(d)(3) notice should have been given), does not do any conciliation or mediation work nor does it have any appropriation or funds to carry out any such'work. The Arizona Revised Statutes (section 23-107) gave the Industrial Commission of Arizona under the title "General Powers," among other things, "full power, juris- diction and authority to: . (3) Promote the voluntary arbitration, mediation and conciliation of, disputes between employers and employees." The Brotherhoods, in effect, argue in their brief that they could with impunity ignore the requirements of Section 8(d)(3) and (4) of the Act with respect to the State of Arizona because there is a distinct legal difference between the "naked grant of power to 'promote' voluntary conciliation and mediation" and the nonfunctioning of the agency established by the Arizona legislature.. Whatever may be, said of that argument the fact remains that under the express terms of Section 8(d) Congress has provided a conduct to which a party to a collective-bargaining contract, be it em- ployer or union, wishing to terminate or modify a collective-bargaining contract, must adhere. The law requires that party to do four things; namely, first, serve a notice "sixty days prior to the expiration date thereof"; secondly, offer to meet and confer; thirdly, notify the Federal and. State mediation services within 30 days of the service of the 60-day notice, if "no agreement has been reached by that time"; and finally, continue "in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of 60 days after 5 9 7254-G 1-v o I. 130--74 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such notice is given or until the expiration date of such contract, whichever is later." Reading these requirements in the light of the objective sought, the conclusion be- comes inescapable that Congress intended to deny to any party to a collective- bargaining contract the right to resort to economic warfare, instead of collective bargaining, unless the party seeking to modify or to terminate the contract first comply with the requirements of Section &(d). The Trial Examiner therefore finds that since the Brotherhoods failed to give the Arizona State Labor Department under the Industrial Commission of Arizona the required 8(d)(3) notice, the Brother- hoods' strikes were unfair labor practice strikes and were violative of Section 8 (b) (3) of the Act .5 The Trial Examiner further finds that the employees who had engaged in such unprotected strike activities forfeited their rights under the Act, and there- fore Phelps Dodge had the unquestionable right to discipline some and to reinstate some as it saw fit .6 C. The 8(b) (1) (A) issue 1. The pertinent facts In the light of the Trial Examiner's observation of the conduct and deportment at the hearing of all the persons who testified thereat, and after a very careful scrutiny of the entire record, all of which has been very carefully read, and parts of which have been reread and rechecked several times, and being duly mindful of the contentions of the parties with respect to the credibility problems here involved, of the fact that in most instances testimony was given about events which took place several months prior to the opening of the hearing, of the fact that very strong feelings have been generated by the circumstances in this case which might have lead some witnesses to slant their testimony to some extent in favor of one party and to the detriment of the others, and of the fact that it would needlessly protract this report greatly to summarize all the testimony or to spell out the confusion and inconsistencies therein, the following is a composite picture of all the factual issues involved? The contracts between Phelps Dodge and the Brotherhoods at the four Phelps Dodge installations here involved were continuing agreements and each by its terms ran until August 1, 1959.. Thereafter, by reason of their terms, each of said contracts remained in full force until the following February 12. From time to time, between August 1, 1959, and February 11, 1960, the Brotherhoods and Phelps Dodge were in joint negotiations looking toward a modi- fication of the aforementioned agreements: On the latter date, the parties met at Douglas, Arizona, after which meeting Frank Essex, the general chairman of the Clifton local of BLFE a and who attended the said February 11 meeting, and A. M. Masterman,9 chairman of the BRT Morenci local, called. a strike at the said three Phelps Dodge Arizona installations commencing at 6 a.m. the following day. In fact, on February 11, Essex, who was in Douglas, telephoned Phillip Stewart, vice president of BLFE and who later became a picket captain in Morenci, and informed Stewart of the impending strike and then instructed him to arrange for the neces- sary pickets at the appointed hour. The strike, as scheduled, commenced at Morenci, the installation where this controversy is mainly concerned, at 6 a.m. on February 12, with pickets being placed at its two main gates.'() 'International . Union. of Operating Engineers v. Dahlen Construction Co., 193 F. 2d 470 (C.A. 6) ; Schneid v. District 50, United Mine Workers of America, 40 LRRM 2529 (D.C. Ill.) ; Elliott, Reg. Dir. v. Local Union No. 49, Sheet Metal Workers' International Association, AFL-CIO, 42 LRRM 2100 (D.C. N. Mex. ) ; United Mine Workers v. Arkansas Oak Flooring, 351 U. S. 62; N.L.R.B. v. Lion Oil Company, 352 U. S. 282; Herzog, et at. v. Parsons, 181 F. 2d 781 (C.A.D.C.) ; J. C. Penney Company, 109 NLRB 754 ; West Virginia Pulp ' and Paper Co., 118 NLRB 220; Local No. 156, United Packinghouse Workers of America, et at. (Du Quoin Packing Company), 117 NLRB 670. . 9 See California Cotton Cooperative Association Ltd., 110 NLRB 1494. P It is true that at times some witnesses were . confused on certain matters and that there were variations in their objectivity and convincingness , but, on the whole the wit- nesses upon whose testimony the factual summary herein set out is based , particularly impressed the Trial Examiner as- being persons who are careful with the truth and meticulous in not enlarging their testimony beyond their actual memory of what occurred. 6 This local asserts jurisdiction over certain classifications of Phelps Dodge. Morenci installation employers. . . . 9 Also known . as Sid Masterman. . ' . . 10 The Brotherhoods' activities about which- we are concerned 'took place at the Morenci Open Pit gate (referred to In the record as the Mine gate) 'and at , the Morenci Reduction BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC. 1155 The picketing'on first two shifts of February 1211 -were. peaceful and orderly except that the pickets would approach the employees' cars as they came up to the gates with one of the pickets placing himself in front of the car and when the driver indicated that he was going to work, the picket would step aside and the car would proceed through the gate. The only incident to mar the peaceful and orderly picket- ing of the first two shifts of February 12 was one involving Yardmaster Roy Mahan, a former BLFE member and who worked during the strike. The facts regarding this incident are: When Mahan drove up to the gate about 7:15 a.m. to go to work on the 1st shift the road was full of men and C. J..Roberts, a member of BRT, stood in front of the car and thus Mahan was prevented from immediately going to work. While thus blocked, Lloyd Martin, a BLFE member and a picket, told Mahan to roll down his window or he would bust it open. Mahan complied with Martin's demand and rolled down the window next to him. Martin then asked Mahan if he was going to work. When Mahan replied in the affirmative, Martin told Mahan that they had been brothers 'in more ways than one, but not anymore. Mahan then started his car and, as he was easing his way through the gate, Martin and the group of men who were-in close proximity to-Mahan's car called Mahan indecent and vulgar names, such as "dirty son-of-a-bitch scab." When Mahan finished his shift that afternoon and was about to pass through the gate, his car was stopped and about 15 or 20 men 12 gathered around or near the car and asked Mahan to respect the picket line., When Mahan indicated he intended to cross the picket line and work behind it, the men again called him indecent and vulgar names. Whereas there were 2 or 3 pickets at each gate during the morning and the early afternoon of February 12, there were 10 or more pickets in the latter part of the evening. The pickets, Brotherhoods members, and spectators in the immediate area of the gates increased to about 200. Thus was the situation when Superintendent James Foard drove up to the mill gate about 8:45 that night. As Foard attempted to leave the plant, the pickets refused to move and he was therefore forced to stop his car. Then one of- the car windows was smashed; an unidentified man opened the driver's door and grabbed Foard's arm and attempted to pull him out of the car; and this person called Foard vile names. When Foard inquired who the pickets were, he was told, "We are the Brotherhood"; and after succeeding in closing the car door and as Foard was proceeding out of the gate he was told by some unidentified men, in the presence :of the pickets and Brother- hoods members, to quote- from Foard's credible testimony, "He would open up my head with his lantern [in] the -same manner in which they broke the window .. . [I was also told] not [to] try to get back. in the gate _again." At the time of the graveyard shift change on February 12,' large crowds of men stood in front of the mill gate thus preventing cars from temporarily going into or out of the plant. The people on.and around the picket line (1). rocked the non- strikers' cars, (2) struck the nonstrikers" cars, (3) 'threatened the car occupants with bodily harm if they crossed the picket line,-(4) told the car occupants that if they crossed the picket line' their cars would be damaged, "and. (5) cursed the car occu- pants for crossing the picket line. - Because of the demonstrations described immediately above, only in the cases where the drivers "showed that they were determined to enter the plant' would the pickets step aside and allow the cars to- enter the plants. In all other cases the drivers turned the cars away from the gate and left the area.: When General Foreman Chleo Riley, accompanied by a nonsupervisory employee, drove' up to the mill gate, he was forced to stop his"car because the large crowd in the area had stopped the -cars immediately! ahead. of Riley's. Thereupon, several persons took hold of the" front of. Riley's car and raised it about 18, inches. When employees drove up to • either gate about the : change of `the first shift of February 13, pickets crowded around the approaching' cars; rocked some cars; and the occupants of the cars were sworn at, abused,' threatened with bodily harm for crossing or attempting to' cross the picket lines. Also some cars crossing the picket lines were damaged. When Mahan reported for work on the February 13. first shift, his car was stopped by Martin and the pickets and Mahan was again cursed for wanting to: cross'the Works gate (referred to in the record as the Mill' gate). These gatesar6 opposite each other on the highway between Morenci. and the neighboring town of Clifton, Arizona. 11Phelps Dodge; during all times material, operated on-a' 24-hour three-shift basis. The first shift started between 7 and 7:30 .a-•m:,'the .afternoon, shift 'started between 3 and 3:30 p.m., and the third shift started betweeh 11'and11:30"p.m. ' ' U Among these, men, were 'Roberts, Martin; "BRT Chairman A. M: Masterson, and BLFE Organizer Beuran Ward:::: 1156 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD picket line. As Martin was finishing his abusive remarks to Mahan, Essex joined the group, and when Mahan pleaded to be permitted to go to work, Essex, in front of a group of pickets and others, said to Mahan, "God damn son of a bitch scab. If you go in, I will cut your God damn throat." As Mahan was leaving the plant that afternoon, after working February 13, the group on the picket line called him a _ scab,,.and BLFE Organizer Ward, in the presence of the pickets and others, took a picture of Mahan and then told Mahan that it would be placed in all the labor papers. Likewise on the first shift of February 13, a foreman was detained at the gate for about 5 or 8 minutes by the pickets and when he was permitted to drive through the gate, the pickets made menacing gestures with their trainmen's lanterns indicating probable damage to the car. When Virginia Smith and her sister Elizabeth Jentry, two Phelps Dodge clerical -employees, drove up to the gate on-the morning of February 13, Martin walked up to her stopped car and told Smith that the : union could hurt the local automobile business which she and her husband owned if she crossed the picket line. In furtherance of its plant to operate the Morenci installation despite the strike, Phelps Dodge arranged with Louis Villalante, a nonemployee, to transport in his trucks food, bedding, kitchen equipment, and other supplies to the mill installation for the use of the nonstrikers. As Villalante trucks approached the mill gates about 5 p.m. on February 13, most of the approximately 200 persons then in the area, including officers, pickets, picket captains, and members of the Brotherhoods, some of whom had been alerted that the trucks would arrive that afternoon, walked into the highway and forced the trucks to stop amid the heavy highway traffic. BLFE Vice Chairman Stewart then drove his pickup truck into the entrance of the mill gate and parked lengthwise in such a fashion as to fill up as much of the gate as possible thereby making it impossible for any of the Villalante's trucks to enter the plant. However, Stewart removed his truck when instructed to do so by the undersheriff then on duty at the Morenci installation. While the Villalante trucks were stopped in the road, BLFE Organizer Ward pulled the tailhoses of the lead truck trailer, in which Villalante himself was sitting, thereby setting the brakes on the semitrailer so that the truck could not move. After the hoses had been reconnected by either the driver of the truck or by one of the undersheriffs, Henry Molz, a BLFE member, pulled the airhoses on two separate occasions. The crowd's action, during the approximately 15 or 20 minutes the Villalante trucks were stopped, so unnerved the driver of the-lead truck that he abandoned-it and Villalante, who is a one=armed man of about 60 years of age, was forced to take over as driver: As Villalnnte was driving the lead truck toward the mill gate, Quanah Pugh, a member of one" of the Brotherhoods, jumped on the truck's running- board, thrust -the;tipper half of his body inside the cab thereby causing a deputy sheriff and a`Stafe- highway 'patrolman to -jump on the runningboard and remove Pugh from the vehicle. The Villalante trucks then proceeded through the mill gate. About 10:30 p.m. on February 13, Shift Foreman V. O. Loose drove up to the mill gate to go to work. He was stopped by the pickets and told that he could not go through the gate. When Loose attempted to proceed through the gate, his car was rocked, by, the pickets. In fact, his car- was so . violently rocked that it was almost upset. Finally Loose, by greatly accelerating the car's engine, was able to go through the gate. When Paul Austin and 4-fellow worker attempted to go to work on the late, or graveyard,' shift on February. 13, the pickets were lined up shoulder to shoulder across the gate so that -Austin was unable to drive through- the gate, and was told by the pickets that if he did not leave the area immediately they would turn Austin's car over. Austin then attempted to back his car onto the road in order to leave the vicinity but was unable to do so because cars which had arrived while the pickets were talking to him blocked him. Thereupon, through the intercession of a friend of the coworker who was in Austin' s car, Austin was permitted to go to work. Austin remained in the plant until the picket line was lifted on February 18. When Joe Armijo drove up, to the gate about 10:30 p.m. on February 13, there were about a dozen men at the„gate and they told him if he did not go home they would turn his car over. When the men commenced to rock his car, Armijo said he would go home and he immediately left the plant area. It would serve no useful purpose to set forth here the many other incidents of mass picketing, threats by. pickets, the abusive and threatening statements made to nonstrikers by certain officers- of the Brotherhoods, the abusive and threatening statements made to nonstrikers;. by the pickets and members of the Brotherhoods, and the threats of damage,to, nonstrikers' automobiles by the pickets and members BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC. 1157 appearing in. the. record, for. to do so would unduly protract this report. Suffice to say such acts and conduct were of a similar nature as those set forth above. 2. Concluding findings The Brotherhoods have set forth many arguments in their brief why the con- solidated complaint herein should be dismissed for lack of substantial credible evidence. The Trial Examiner has fully considered each and every one of the arguments and finds each of them, including the argument that BRT Deputy Presi- dent V. C. Barnett, Essex, and other officials of the Brotherhoods urged the pickets, the strikers, and the spectators to conduct themselves in an orderly fashion, to be without merit or substance. The total lack of substance or merit to the Brother- hood's arguments that they should be absolved- from liability of any wrong or illegal conduct can best be illustrated by the argument that the Brotherhoods' officials on several occasions pleaded with their members, the pickets, the strikers, and the spectators not to engage in any misconduct. It is true that some officials did so and that Essex told Undersheriff Wood that he would gladly arrange to have the members of the Brotherhoods' female auxiliary escort Phelps Dodge's female em- ployees past the pickets when Wood told Essex that the women were "scared" to go through the picket line. It is likewise true that Essex, Ward, Masterman, BRT Official T. L. Chapman engaged in acts of violence and made abusive and threat- ening statements to nonstrikers in the presence of pickets, strikers, members of the Brotherhoods, and the spectators. In short, the officials of the Brotherhoods, were Just giving lipservice to their pleas for law and order while engaging in, encouraging, or acquiescing in, the very. things that they asked the crowds not to do. The credible evidence, as epitomized above, also clearly discloses, and the Trial Examiner finds, that the Brotherhoods permitted their officers, their pickets, and their members ( 1) to engage in mass .picketing, (2) to use profane, vile, and in- decent language to nonstrikers, (3) to prevent or attempt to prevent supervisory and nonsupervisory personnel to leave or go into the Morenci installation, (4) to -damage or threaten to damage nonstrikers' automobiles, (5) to rock and to threaten to tip over nonstrikers' automobiles, and (6) to threaten nonstrikers with bodily harm if they did not respect the picket lines. ' The Trial Examiner finds that by so doing the Brotherhoods have, and each of them has,-restrained and coerced the em- ployees of Phelps Dodge in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (b) (1) (A) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Brotherhoods set forth in section III, above, occurring in connection with the business operations of Phelps Dodge Corporation set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor. disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Brotherhoods have violated Section 8(b)(4)(A) and 8(b)(3) of the Act, it will be recommended that they be ordered to cease and desist therefrom and that they 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. Phelps Dodge Corporation is engaged in, and during all times material was engaged in, commerce within the meaning of Section 2(6) and (7) of the Act. 2. Brotherhood of Locomotive 'Firemen and Enginemen and Brotherhood of Railroad Trainmen are labor organizations within the meaning of Section 2(5) of the Act. 3. -By engaging in picket line activities, as found above, and-by otherwise restrain- ing and coercing the employees of Phelps Dodge Corporation in the exercise of rights guaranteed in Section 7 of the Act, the Brotherhoods have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. By failing to serve the notice, required by Section 8 (d) (3) of the Act upon the Arizona State Labor Department under the Industrial Commission of Arizona, the 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhoods have engaged in and are engaging in unfair labor .practices within-the meaning of Section 8(b) (3) of the Act. 5. By failing to continue in full force and effect, without resorting to strike, all the terms and conditions of the existing - contracts for a period of 60 days after the giving of the notice required in Section 8(d)(3) as provided by Section 8(d)(4) of the Act, the Brotherhoods have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2( 6) and (7) of the Act. [Recommendations omitted from publication.] Federal Dairy Company, Inc. and Local Union 64, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 1-CA-3116. March 3, 1961 DECISION AND ORDER On August 9, 1960, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had.engaged in and was engaging in unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs.' The Board 2 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications.' 1. For the reasons set forth in the Intermediate Report, we agree that the strike by the Respondent's employees which began at midnight on February 21, 1960, was from its inception an unfair labor practice strike. We also agree with the General Counsel's contention that even if the strike were economic in its inception, it thereafter was converted to an unfair labor practice strike. The evidence shows that on Febru- ary 22, 1960, the first day of the strike, and continuing to on or about 1 The Respondent's request for oral argument is denied as the record, including the exceptions and briefs, adequately sets forth the issues and the positions of the parties. 8 Pursuant to the provisions of section 3(b) of the Act, the Board has delegated its , powers in connection with this case to a three-member panel [ Chairman Leedom and Members Rodgers and Jenkins]. 8 Respondent, among other things, takes exception to the amending of the charges, the service thereof, the amending of the complaint, the manner of recall of witnesses and their examination after the complaint was amended , the extent of the participation in the hear- ing by counsel for the Charging Party , and to the conduct of the hearing, charging the Trial Examiner with bias and prejudice. We find the various rulings on these issues made at the hearing by the Trial Examiner to the proper and not prejudicial to'Respond- ent. In regard to the charge of bias and prejudice made against the Trial Examiner in his conduct of the bearing, we find no support in the record for this charge . To the con- trary, the record shows Respondent was afforded every reasonable opportunity to present its case and make its record. 130 NLRB No. 85.