Local 612, Int'l Brotherhood of Teamsters, Etc.

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable measures shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twentieth Region , in writing, within 20 days of the date of receipt of this Trial Examiner 's Decision, what steps the Respondent has taken to comply herewith.? It is further recommended that unless the Respondent shall within 20 days from the date of receipt of this Trial Examiner's Decision notify said Regional Director, in writing, that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring the Respondent to. take the action aforesaid. 7 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the said Regional Director, In writing, within 10 days from the date of this Order , what steps have been taken in compliance." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT assist, dominate, contribute financial or other support to, or interfere with the administration of the Employee Relations Committee or any other labor organization of our employees. WE WILL NOT in any like manner interfere with the representation of our employees by or through any labor organization of their choosing. WE HEREBY disestablish the Employee Relations Committee as the representa- tive of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or condi- tions of work, and we will not recognize it or any successor thereto for any of the foregoing purposes. AMERICAN PRESIDENT LINES, LTD., Employer. Dated ------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 830 Market Street , San Francisco, California, Telephone No. Yukon 6-3500, Extension 3191 , if they have any question concerning this notice or compliance with its provisions. Local 612, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Deaton Truck Line, Inc.] and M. L. Taliaferro. Case No. 10-CB-1391. March 26, 1964 DECISION AND ORDER On January 9, 1964, Trial Examiner A. Bruce Hunt issued his De- cision in the above -entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, the Charging Party filed exceptions, with a supporting brief, prin- 146 NLRB No. 63. LOCAL 612, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 499 cipally to the refusal of the Trial Examiner to recommend that Re- spondent take certain additional affirmative action to remedy the viola- tions found. The Respondent and the General Counsel did not file exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Jenkins]. The Board 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 Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts the Recommended Order of the Trial Examiner with the following modification : Substitute for the first paragraph therein the following paragraph : Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board hereby orders that Respondent, Local 612, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall : TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The charge in this proceeding was filed on April 17, 1963, by M. L. Taliaferro, attorney for Deaton Truck Line, Inc. The complaint was issued on July 19, 1963. Involved are allegations that the Respondent, Local 612, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, violated Section 8(b)(1)(A) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq. On September 19 and 20, 1963, Trial Examiner A. Bruce Hunt conducted a hearing at Birmingham, Alabama, at which all parties were represented by counsel. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE RESPONDENT UNION Local 612, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America is a labor organization which admits to membership em- ployees of Deaton Truck Line, Inc. (herein called the Company). If. THE COMPANY'S BUSINESS Deaton Truck Line, Inc., an Alabama corporation, has its principal place of business in Birmingham and is engaged in the transportation of freight as a common carrier. During a representative 12-month period, the Company received more than $50,000 for the transportation of interstate freight. There is no dispute, and I find, that the Company is engaged in commerce within the meaning of the Act. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The issues On January 12, 1963, the Respondent called a strike against the Company. Our issues are whether agents and pickets of the Respondent : ( 1) battered a nonstriker, Floyd M. Moody, at the picket line near the Company's Birmingham terminal on February 5, and (2) threatened another nonstriking employee, Bobby Langley, and sought to force off the road a truck being driven by still another nonstriker, Billy Wallace, when those employees were traveling on Route 11 southwest of Birming- ham on April 15. B. Background It is unnecessary to discuss here the details of the labor dispute between the Respondent and the Company . The reader's attention is directed to Deaton Truck Lines, Inc., 143 NLRB 1372, decided August 15, 1963, in which the Company is alleged to have refused to bargain collectively with the Respondent. C. The battery of Floyd Moody On February 5, Moody, a nonstriker, went to a point near the Company's terminal where pickets and strikers were gathered . He received a cruel beating. Before the details are set forth , certain facts must be recited about two union members, A. R. Evans and his son , Robert. The latter participated in the beating ; the former, if not a participant , stood by and watched. As is explained in Deaton Truck Lines, Inc., supra , the Company has a fleet of approximately 263 trucks which it owns or leases. A. R. Evans was an owner- operator of a truck in the fleet ; that is, he leased his truck to the Company and worked as its driver. Evans also was the chairman of a union committee , selected by the employees, which negotiated with management on various matters. During July 1962, Evans obtained a leave of absence from the Company in order, so he testified, "to do a little business for the union , negotiating a contract," following which he suffered an illness, and it does not appear that he has resumed work for the Company. He characterized himself as a leader in the Respondent during 1962, and he also testified that when the strike began during January 1963 , he engaged in picketing, he acted as a "roving picket" (following trucks that left the Company's terminal), he conveyed instructions to pickets, and as chairman of the committee he designated another committeeman to assign pickets to shifts. I find that at the time of the battery of Moody, A . R. Evans was the Respondent's principal agent and representative among the striking employees. Robert Evans works for another employer as a freight handler. He is 24 years of age, 5 feet 9 inches in height , and weighed about 152 pounds. As will appear, he was merciless in beating Moody. He testified as a witness for the Respondent: I have a bad complex of being small . . . . When I was going to school, I didn't let nobody run over me, and I never have . Nobody has ever run 'over me . .. . Robert Evans is a bellicose young man who derives pleasure from participating in fisticuffs. As his testimony reveals, he is quick to accept challenges and quick to issue them. He has had no training in the "art " of boxing, and, if be has any knowledge of the rules of boxing which are intended to assure an element of fair play, he scorns them. - The Respondent explains Robert Evans' presence among the pickets on the night that Moody was battered by saying , in the testimony of father and son, that the son had come to the picket line to bring his father a telephone message. Although it is not essential that I decide whether this explanation is true , I make certain com- ments about it in the footnote .' Whatever may have been the reason for Robert 1 Robert Evans and his parents have separate residences in Pleasant Grove , Alabama, on the outskirts of Birmingham . Robert testified that he was with his mother during the evening of February 5 when a long-distance call came for his father , and that he drove a distance of 10 or more miles to deliver a message to his father outside the Company's terminal. The record does not disclose the nature of the message or who had sought to talk with A. R. Evans by telephone , but it is clear that the message was not an urgent one. This is so because , according to Robert , when he arrived among the pickets he learned that his father was at the union hall about 6 blocks away „ but he did not continue to the ball , instead he awaited his father's return to the picket line, when he observed that his father had returned he did not deliver the message promptly because his father LOCAL 612, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 501 Evans' presence among the pickets that night, there is no evidence against the Re- spondent that he ever engaged in the picketing. In an affidavit which he executed before the hearing, however, he said that "from time to time" he visited the picket line, and his father testified that the night of the battery is not the only occasion when Robert Evans was in the company of the pickets. Now we turn to the testimony concerning the battery of Moody. For 6 or 7 months before the strike began in January 1963, Moody had been a member of the Respondent. He decided not to go on strike, however, and with that decision he ceased paying dues. On February 5 Moody worked at the Company's terminal. In the late afternoon, he and another employee, one Bice, left the terminal and met Moody's wife after she left her place of employment. The three persons had dinner at a restaurant, following which they went to the terminal where Moody left Bice. Moody and his wife then went to their home about 3'/2 blocks away. Their landlady said to them that someone had been seated in an automobile watching the house. This was not,the first occasion that the house had been under surveillance by persons in automobiles, and the landlady told Moody that something had to be done about the matter or she would insist that Moody and his wife obtain other lodging. Moody assumed that striking employees had been watching his home, and, having seen A. R. Evans at the picket line only a few minutes before, Moody decided to return to the terminal and to talk with Evans .2 Moody drove the short distance in an automobile . He parked it near a tent which had been erected for use by the pickets. The area was illuminated by a street light and the lights of a service station. Too, Moody did not turn off the lights of the automobile. He walked to the front of the vehicle and there he talked with A. R. Evans. Within moments, Moody was lying on his back in the street, unconscious. While lying there, he received a ferocious beating. He was hospitalized, and it was 21/2 days before he regained full consciousness. While hospitalized, he was photographed in color by a professional photographer. Several photographs were received in evi- dence. They and other evidence establish that stitches were taken in Moody's chin and both his lips, that his nose was badly damaged, that both eyes were blackened, and that there was substantial swelling in portions of his face. In addition, Moody testified that there were bruises elsewhere on his body. The evidence is conflicting with respect to whether Robert Evans inflicted all the injuries . Moody could shed no light on that subject because he became unconscious when hit. Nevertheless, we shall start a discussion of the testimony with that given by Moody. According to Moody, he drove to a point near the tent where he saw A. R. Evans in the street, alighted from the automobile, moved to the front of the automobile where he promptly spoke to Evans, asking who owned a 1953 Chevrolet from which someone had observed his home, and saying that he could have the observers "locked up" although he did not want to do so Moody testified further that Evans said, "What the hell do you come and ask me something like that for?" at which point someone approached Moody from the direction of the tent saying, "Let me take care of him," and that Moody was knocked unconscious without knowing the identity of his as- sailant. Additional testimony in support of the General Counsel's case was given by two persons, Thurman Childers and Teller Boggan , Jr., who were at work in the service station mentioned above, the lights from which illuminated the scene. Boggan testified that he saw Moody talking with A. R. Evans, and, as Boggan recalled, Moody had both hands in his pockets Boggan looked elsewhere, but when his attention was was engaged in conversation with someone , and he did not deliver it until after the battery of Moody. Although there is no evidence to contradict that of the father and son that the latter had come to the picket line to deliver a message to the father , I need not credit their testimony . As will appear , they were unworthy of belief. I am not required to credit the uncontradicted portions of the testimony of unreliable witnesses N L.R B. v Howell Chevrolet Company, 204 F. 2d 79 , 86 (CA. 9) ; N.L.R.B. v Walton Manufacturing Company et al, 369 U.S. 404, 408 2 The Respondent asserts in its brief that Moody was "under the influence of alcoholic beverages" when he went to see A R Evans This assertion is based upon Moody's testi- mony that before eating dinner, and about 2 hours before going to see Evans , he and his wife had drinks from a half pint bottle of whiskey, that she had one drink and that lie had three, and that thereafter Mrs. Moody put the 'bottle in her purse . The record does not disclose the quantity of whiskey that Moody drank or whether the entire half pint was consumed by his wife and him. He denied that he was under the influence of whiskey when he went to see Evans , and there is no testimony to the contrary . I credit Moody's testimony because I believe that he was an honest witness. Moreover, it may be noted that the Respondent does not contend that anyone at the picket line thought that Moody was under the influence of alcohol. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attracted by noise, he looked again and, so he testified, saw Moody lying on his back in the street with Robert Evans "kneeling alongside" and hitting Moody about "six or seven" times with "little short punches." There were men standing about, accord- ing to Boggan, and he saw someone whom he could not identify kick Moody once in the stomach or groin. Childers, unlike Boggan, did not see Moody until the latter was lying in the street, and Childers could not identify anyone. According to Childers, his attention was attracted by "a lot of people hollering ...., he "saw guys beating" a man and also "kicking him," and one man "was on top of' another. Childers testified further that he did not see the man on the bottom hit his assailant even one "lick," and that one or more men kicked the victim several times in the face "and in the lower section, too." According to Childers, the victim was kicked after his assailant resumed a standing position, and, if only one man kicked Moody, that man had a couple of "extra feet." We turn to the Respondent's testimony which was given by A. R. and Robert Evans. No other person at the scene was a witness. As will appear, the Respond- ent's version is that Moody was armed with a knife, but it may be noted at this point that Moody denied having been armed and that both Childers and Boggan testified that they did not see a knife. According to A. R. and Robert Evans, when Moody arrived at the scene he engaged in conversation with a striker, Odie Compton, about his belief that his home had been under surveillance, and he mentioned the name of A. R. Evans, at which point A. R. Evans walked over to Moody and Compton, saying that he, Evans, had not watched anyone's house, and suggesting that Moody leave because the men there wanted no trouble and intended to conduct peaceful picketing. Continuing with the Respondent's version, Moody placed a hand upon each shoulder of A. R. Evans, and shoved, Robert Evans intervened by saying "Don't shove my daddy," Moody placed his right hand in his trousers' side pocket, A. R. Evans exclaimed that Moody had something in his pocket, and Robert Evans attacked. At this point we consider inconsistencies in the Respondent's testimony. Accord- ing to A. R. Evans, Moody and Robert Evans "went together. They Tasseled, and scuffled, and exchanged blows, and wound up [lying] in the street." On the other hand, Robert Evans testified that he hit Moody with a left, followed by a right which had such force that Moody was knocked down and "but." Insofar as Robert could recall, Moody did not hit him. Robert's testimony that when Moody "hit the ground, he was-he was out," while in accord with Moody's testimony, was repudiated by Robert. The repudiation was essential if Robert was to adhere to other portions of his testimony, namely, that he alone inflicted the brutal beating of Moody, that he acted first in defense of his father, and later in self-defense because Moody was armed with a knife. Both Robert Evans and his father testified that when they observed Moody lying in the street, Moody had in his right hand a knife which he had removed from his trousers' pocket. A. R. Evans described the knife as "a paring knife" and as "a kitchen knife, a small maybe butcher knife, something similar to a steak knife," which he estimated as about 10 inches in length, but which I estimated from his illustration as about 7 inches. Robert Evans de- scribed the knife as "a steak knife, just an ordinary like steak knife, only a sharp point on it, more or less like a beef cutting knife. I mean, roast cutting knife," with a handle of 31/a or 4 inches and a blade of 5 inches. Robert testified further that as Moody held the knife in his hand, lying in the street on his back, not unconscious, Robert was "inspired" by the knife "to get on him," that Robert placed his left knee on Moody's right arm in order to make that arm and the knife useless to Moody, that Robert had his right foot firmly on the street, and that while Robert was in such kneeling position, and using his right fist only, he inflicted all the injuries which Moody suffered .3 A. R. Evans testified that when Moody's fingers ceased to grip the knife, A. R. Evans told his son, "That's enough, get up." Robert Evans' testimony differs. He testified that he did not know when Moody's grip on the knife was loosened because he was not looking. He contradicted himself by a In Robert Evans' affidavit the following appears . . . This guy [Moody] then shoved my daddy and put his hand in nis pocket and went to pull something out of his pocket. I told this man that I would break him in to [sic] and not to push my daddy He got his hand out but he was laying on his back before he could do anything. I then bent down beside him and pinned him down and went to work on him-hitting him about four or five times or more as I didn't count them I heard my daddy say that was enough and I got up. When I got up is when I saw the knife It was a paring knife or steak knife. I knocked him out . . The fight only lasted 30 or 40 seconds . . . (Emphasis supplied 1 LOCAL 612, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 503 testifying twice that the grip was loosened after he had hit Moody two or three times on the ground, and that he continued to batter Moody until his father said, "That is enough" and told him to stop. Both A. R. Evans and Robert Evans denied that anyone kicked Moody, and Robert testified also that he hit Moody only in the face. It is clear from their testimony, however, that a group of strikers and pickets gathered near Robert and Moody. Both A. R. Evans and Robert referred to a "crowd." I cannot credit much of the Respondent's testimony. I do not believe that Moody initiated a fight by shoving A. R. Evans. I credit Moody's testimony that just before he was knocked out he heard someone say, "Let me take care of him," and I believe that the speaker was the bellicose Robert Evans. Moreover, I believe that Moody fell to the street insensible, not knowing who had hit him. I am convinced that Robert Evans was not motivated by a desire to defend his father, but instead was motivated by a desire to inflict injury upon a nonstriker who was complaining about the alleged conduct of strikers. When Moody fell to the street he was defenseless and incapable of aggressive actions. Robert Evans so testified, but changed his testimony as recited above. Moody was not a threat to anyone when Robert Evans knelt in the street to beat him mercilessly. Moreover, I do not believe that Moody brought a knife to the scene or sought to use one. Moody denied having done so, and he impressed me as truthful.4 Finally, I conclude that Robert Evans did not inflict all of Moody's injuries. Robert testified that he hit Moody only in the face, but Moody testified credibly that there were bruises on other parts of his body. Too, Childers and Boggan, disinterested witnesses, testified credibly that Moody was kicked in the face and torso. Although Robert Evans' punching power is doubtless substantial, as is his zest for fisticuffs, I credit the testi- mony of Childers and Boggan that Moody was kicked. I find that the Respondent is responsible for the blows delivered by Robert Evans and the kicks by unidentified persons. With respect to the latter, it is well settled that a labor organization is responsible for violence in which its pickets engage at a picket line. With respect to the conduct of Robert Evans, we have seen that he is a member of the Respondent who visited the picket line from time to time. There is no doubt that his sympathies were with the strikers, and I have found that he attached Moody because Moody was a nonstriker who complained of alleged acts of strikers, not because Moody shoved Robert's father. In attacking Moody, Robert identified himself completely with the pickets and, in effect, became one of them. It is immaterial whether Robert may be classified as the Respondent's agent. The Respondent's responsibility flows from Robert's union membership and his actions upon identifying himself with the pickets. Local No. 888 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, etc. (Miami Plating Co.), 144 NLRB 897. The Respondent is also responsible for Robert's conduct on another ground. The battery occurred in the presence of pickets and A. R. Evans, the Respondent's principal agent among the Company's employees, none of whom sought to restrain Robert before or after Moody lay unconscious and defendless in the street. Such inaction results in the Respondent's responsibility for Robert Evans' conduct. Local 5881, United Mine Workers of America (Grundy Mining Company), 130 NLRB 1181, 1182; Inter- national Ladies' Garment Workers Union, AFL-CIO (F. R. Knitting Mills, Inc.), 145 NLRB 10. I find that, by the battery of Moody, the Respondent violated Section 8(b)(1)(A). D. The question whether A. R. Evans' relationship to the Respondent was so altered before April 1963 that the Respondent is not responsible for his conduct during that month Hereafter in this Decision all references to "Evans" are to A. R. Evans. Above I referred to the case in which the Company is alleged to have refused to bargain 4 After the battery of Moody, policemen arrived at the scene and removed him to a hospital Both A. R. Evans and Robert Evans testified that a policeman examined a knife and that all persons present, including Moody, denied ownership of it. Robert Evans testified also that one of the policemen took the knife from the scene Moody was unable to testify about events following the arrival of the police because he had no recollection of them, but A R Evans and Robert Evans testified that Moody told the police that he did not know what had happened, and Robert testified also that Moody, in speaking to the police, was "talkieg crazy like " No party to the case called any policeman as a witness and, therefore, I do not have disinterested testimony that a policeman examined a knife I am convinced, however, that if a knife in the street was pointed out to a policeman, as A. R. Evans testified, the knife was placed there by someone other than Moody, 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collectively with the Respondent. The Trial Examiner's Intermediate Report in that case, Case No. 10-CA-5055, was issued on February 4, 1963, the day before the battery of Moody. The Trial Examiner found (but was later reversed by the Board) that owner-drivers, such as Evans, are independent contractors, not employ- ees. On February 7, a local court, in a suit brought by the Company, enjoined the Respondent from: (1) Using as a picket any individual described in the Intermediate Report in Case No. 10-CA-5055 before the National Labor Relations Board . as a[n] . . . "owner-driver" . . . at any terminal of complainant, or at the premises of any person or corporation doing business with complainant. (2) Encouraging or conspiring with any such individual to picket any of the complainant's terminals or of any premises of any person or corporation doing business with complainant by interfering or restraining the freedom of trade between complainant and any such person or corporation so engaged in business with complainant. The Respondent asserts that, whatever may have been Evans' relationship to it before February 7, after issuance of the injunction he was relieved of all authority to act in its behalf. In this connection, Evans testified that upon notice to the Respondent of the injunction, the Respondent's president, G. S. Webb, told Evans and a group of persons at the union hall of the injunction and said that certain individuals, including owner-drivers, were not to participate further in the picketing. Evans "testified also that Webb said that Evans should not act as job steward any longer, that Evans assumed that he no longer was a union committeeman although Webb said nothing about his continuing as a committeeman, that a new committee was elected, but that be was never voted "out" as a committeeman, and that no one was ever elected to serve in his place on the committee. The record does not disclose the number of persons on the new committee, nor their identities, and Evans testified that he did not know when the new committee was elected. It is clear from the foregoing that neither the injunction nor the acts of the Respondent and its members removed Evans as an agent of the Respondent. Evans testified further, however, that since February 7 he has had nothing to do with the strike, the picket- ing, or the labor dispute, and that during February Webb requested that he not "even hang around across the street" from the picket line at the Company's terminal. As will appear, Evans' testimony that since February 7 he has had nothing to do with the strike is untrue. Too, he rejected the request which he testified that Webb made. This is so because Evans, who resides 10 miles or so from the Company's terminal, testified that "several times" after February 7 he visited a cafe located at the street intersection at which Moody was battered and that on April 13, 2 days before the events discussed below, he spoke with a picket and was simultaneously threatened by a nonstriker, Bobby Langley. E. The events of April 15 on Route 11 Route 11 is a principal highway from northeastern New York State to New Orleans. We are concerned with events on a portion of it from Birmingham south- west through Tuscaloosa to Knoxville, Alabama. On April 15, four nonstriking drivers left Birmingham in four trucks. Those drivers are Billy Wallace, Erkin Boatman, Bobby Langley, and Bruce Langley. Each truck was loaded with 32,000 pounds of steel. About the time that the last truck left Birmingham, A R. Evans, who acknowledged that he had'followed trucks during the early part of the strike, left that city in his automobile, accompanied by his wife and W. J. Henderson, a striker, going in the same direction as the trucks. At the junction of Route 11 and State Route 5, about 30 miles from Birmingham, the truckdrivers stopped for coffee at Baggett's Truck Stop.5 When the Evans party passed Baggett's, they saw the trucks.6 They continued on Route 11 for about 5 miles to a point near a com- munity named Vance where they stopped at a truck stop called "Nick and Buddy's," which obtained its name from two owner-operators who formerly drove for the Company. Within a short while, the four trucks approached the point on the highway at which "Nick and Buddy's" is located. The trucks being driven by the 5 The mileage figures recited herein are based partly upon the testimony of witnesses and partly upon roadmaps of the American Automobile Association 6 Evans acknowledged having seen the trucks there, saying that his attention naturally would be attracted by the sight of the Company's trucks. On the othet hand, Henderson, also it witness for the Respondent, testified that he did not recall having seen the trucks and that as a striker he "would just rather not see" company trucks on the road, "just rather ignore them " I cannot credit Henderson' s denial LOCAL 612, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 505 two Langleys passed without incident. The next truck was being driven by Wallace. Boatman was behind him. Darkness was approaching , and Wallace had turned on the lights of his truck when he left Baggett 's. "Nick and Buddy's" is located on the southern side of Route 11; that is, on Wallace's left. The highway is only two lanes at that point. As Wallace came within about 200 yards of "Nick and Buddy's," Evans' station wagon came onto the highway, headed west, directly in front of Wallace, and came to a stop or a crawl.? Wallace applied his brakes, but there was insufficient distance in which to stop his heavily loaded truck. He could not pull off onto the right hand side of the road because of a bank. In order to avoid running into the station wagon, Wallace had to pass on its left. There was a curve ahead, but there was no oncoming vehicle, and Wallace passed successfully.8 The station wagon then picked up speed and followed closely behind Wallace's truck with the lights of the station wagon on bright and with its left wheels across the center of the two-lane highway except when eastbound vehicles ap- proached. Wallace, bothered by the reflection of the station wagon's lights in the truck's rear view mirror, was unable to adjust the mirror to avoid the reflection. After traveling several miles, Wallace signaled with the lights of his trailer for Boatman, who was following behind the station wagon, to pass Boatman passed both vehicles. The station wagon remained close behind Wallace, with its lights on bright, until Wallace and Boatman were on the bypass around Tuscaloosa, then the station wagon slowed its speed. Wallace and Boatman stopped on the bypass at a well-illuminated shopping area.9 As the station wagon passed , Wallace noticed that there were three persons in the front seat, Evans behind the steering wheel, Henderson on the right , and a woman between them.lo Knoxville, Alabama, is on Route 11 about 22 miles southwest of Tuscaloosa. John's Truck Stop is located there. Bruce and Bobby Langley, ahead of the Evans party, stopped there. Evans, his wife, and Henderson also stopped there, as did Wallace and Boatman. The issue now is whether Evans threatened Bobby Langley. The relevant testimony was given by the two Langleys for the General Counsel, and by Evans and Henderson for the Respondent. All the witnesses agree that, when Evans and, Henderson entered the restaurant at John's Truck Stop, they approached the place at which the Langleys were seated, and Evans initiated a very brief con- versation by asking Bobby Langley whether he had his "gun" or "pistol" with him. All witnesses agree that Bobby Langley replied that he did not carry one. The question is whether Evans, in asking whether Langley had a pistol, and without awaiting the reply, threatened that: "You may need it." The Langleys testified that Evans made that statement. I credit their testimony and find accordingly. The testimony to the contrary is set out in the footnote." ° Wallace testified for the General Counsel that the station wagon stopped Boatman, following Wallace, testified that the station wagon was traveling "real slowly." 8 The above findings are based upon the credible testimony of Wallace and Boatman. On the other hand, both Evans and Henderson denied that the station wagon had been operated in a careless or unlawful manner and that there had been any danger of an accident Henderson testified that he could not recall whether a vehicle was approaching as the station wagon entered the highway from "Nick and Buddy 's " Evans testified that if a vehicle was approaching, it was "a safe distance back " Mrs. Evans was not a witness 9 The distance from Vance to the bypass is 14 miles . The bypass is 6 miles long 10 The above findings are based upon the testimony of Wallace and Boatman. On the other hand , Evans and Henderson denied that they 'had followed close behind a truck between Vance and the Tuscaloosa bypass, and they testified that they overtook a company truck at the beginning of the bypass , drove carefully , and passed it on the bypass. Evans and Henderson also denied that Evans was driving the station wagon, it being their testi- mony that Evans was not feeling well and that Henderson drove . I credit Wallace's testimony that Evans was the driver "There is testimony by the Respondent that about 2 days earlier, at the picket line in Birmingham, Bobby Langley had a pistol with which he threatened Evans and another striker. Bobby Langley denied having done so It is unnecessary that I resolve this con- flict in testimony because, assuming the threat by Langley, the threat would not have justified Evans' threat that Langley might need a pistol the night when he was traveling on Route 11 According to Evans, when he entered the restaurant of John's Truck Stop that night and saw Langley, he promptly inquired whether Langley was armed because he wanted to be sure that the man who had threatened him a few days before was un- armed.. Evans and Henderson testified that when Langley replied in the negative to Evans' question, Evans said that Langley had had a pistol "convenient" the preceding Saturday I cannot credit Evans' testimony that his motive in asking whether Langley was armed was that he feared for his safety in Langley's presence. If the Respondent's testimony concerning Langley's conduct a few days earlier reflects the truth, Evans would have had 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I conclude that Evans sought to intimidate Wallace by the reckless manner in which Evans operated his station wagon while following Wallace's truck. I conclude also that Evans sought to intimidate Bobby Langley and Bruce Langley when Evans said that the former might have need for a pistol . It is clear that the intimidation in each instance resulted from the nonstrikers' engaging in their Section 7 night to refrain from joining the strike. I find that, in view of Evans' relationship to the Re- spondent, described above, the Respondent is responsible for Evans' conduct and, because of that conduct, violated Section 8 (b) (1) (A). IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom . The Charging Party, urging a broad cease-and-desist order, cites cases in which it asserts that the Respondent engaged in "many score incidents of violence" and "much serious vio- lence." He asserts too that the Respondent entered into settlement agreements in those cases, thereby obviating decisions by the Board. Contrary to the Charging Party's contention, it is the Board's view that cases involving settlement agreements do "not establish any proclivity on the part of the Respondents to engage in conduct violative of the Act," Local No. 92, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (R. W. Hughes Construction Co., Inc.) 138 NLRB 428 , footnote 2, at 429. On the other hand, Taxicab Drivers Union, Local 777, etc. (Crown Metal Manufacturing Company ), 145 NLRB 197, is authority for a broad order in this case, and I recommend its issuance . This recommendation has no assurance of effectiveness , however, unless the Board should obtain court enforcement of its order in this case and thereafter seek contempt citations whenever the Respondent engages in conduct from which the Respondent has been ordered by a court of appeals to cease and desist. With respect to affirmative action to be taken by the Respondent, I shall recommend that it post a notice to employees , but I have been unable to envision affirmative action which I can appropriately recommend as more likely to rectify the effects of the unfair labor practices upon all employees , particularly the nonstrikers . Certain precedents over the years are collected in the footnote.12 Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 612 is a labor organization within the meaning of the Act. 2. The Company is engaged in commerce within the meaning of the Act. no reason to believe, and to be reassured by, a negative answer by Langley With respect to the denials by Evans and Henderson that Evans said that Langley might need a pistol, I am persuaded that the two Langleys told the truth about the point Moreover, as we have seen, earlier that night Evans drove his station wagon recklessly in an effort to harass Wallace and to interfere with Wallace's duty and right to operate a vehicle in a safe manner. ClOarly, Evans was intent that night upon threatening nonstrikers. When Evans entered John's Truck Stop, knowing from the presence of parked trucks outside that nonstrikers were Inside, and when he Initiated a conversation with Bobby Langley, he had the same intent, and I conclude that he said to Langley that the latter might have need for a pistol. , is I cannot appropriately recommend that the Respondent reimburse Moody for the hos- pital and other medical expenses incurred as a result of the battery, Crown Metal Manu- facturing Company, supra; International Hod Carriers, Building and Common Laborers Union of America, Local 916, AFL-CIO (Owen Langston), 145 NLRB 197. I cannot appropriately recommend that the Respondent give Moody backpay to cover earnings that he lost because of his Inability to work for some time after the battery. International Union of Operating Engineers, Local 513, et at. (Long Construction Company), 145 NLRB 554; United Mine Workers, et at. (West Kentucky Coal Company, et at ), 92 NLRB 916, footnote 4, at 918; Local 983, United Brotherhood of Carpenters, et at (0 W. Burke Company), 115 NLRB 1123. I cannot appropriately recommend an award of monetary damages Cf. National Maritime Union of America, et at (The Texas Com- pany), 78 NLRB 971, 989-991. I cannot appropriately recommend that the Respondent be barred from initiating any proceeding under Section 9(c) and Section 10(b) for a reasonable period of time, Crown Metal Manufacturing Company, supra. On the other hand, I add parenthetically that in a recent case involving employer unfair labor practices (Herbert Bernstein, et at, d/b/a Laura Modes Company, 144 NLRB 1592), a union's violence caused the Board to refuse to issue its usual order against employers who had refused to bargain collectively. LOCAL 612, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 507 3. By restraining and coercing employees in the exercise of their rights under the Act, Local 612 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Pursuant to Section 102.45 of the Board's Rules and Regulations, I recommend that the Respondent, Local 612, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, representatives suc- cessors, and assigns, shall: 1. Cease and desist from restraining or coercing employees of any employer in the exercise of the employees' rights guaranteed in Section 7 of the Act (including the right to refrain from joining or assisting Local 612), by (a) threatening or inflict- ing bodily harm, (b) interfering in any way with the right of any employee to operate a motor vehicle properly and safely, or (c) any other means. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post in its offices and meeting halls, copies of the attached notice marked "Ap- pendix." 13 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by an official of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Promptly after receipt of unsigned copies of said notices from the Regional Director, return to him signed copies for posting (Deaton Truck Line, Inc., willing) at all places where notices to the Company's employees are customarily posted. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.14 13 If this Recommended Order should be adopted by the Board, the words "As Ordered by" shall be substituted for "As Recommended by a Trial Examiner of" in the notice In the further event that the Board's Order be enforced by a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order of" shall be substituted for "As Ordered by." 14 In the event that this Recommend Order should be adopted by the Board, this pro- vision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL OUR MEMBERS, OFFICERS, AND AGENTS; TO ALL EMPLOYEES OF DEATON TRUCK LINE, INC.; TO ALL WORKERS IN INDUSTRIES IN WHICH LOCAL 612 ORGANIZES As recommended by a Trial Examiner of the National Labor Relations Board and in order to conduct the business of Local 612 as required by the National Labor Relations Act, we notify you that: WE WILL NOT threaten or inflict bodily harm upon any employee because he exercises rights guaranteed to him by the Act. WE WILL NOT interfere in any way with the right of any employee to operate ,a motor vehicle properly or safely. WE WILL NOT, in any way, restrain or coerce employees of any employer in the exercise of the employees' rights guaranteed in the Act. All our members in Alabama, and all other workers in the industries in which we organize in Alabama, are free to join or remain members of our Union, and they also are free to refrain from membership and other union activities. LOCAL 612, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If employees have any questions about this notice or whether Local 612 is com- plying with its provisions, the employees may communicate with the Board's Re- gional Office at 1203 City Federal Building, 2026 Second Avenue, N., Birmingham, Alabama, Telephone No. 323-8011. Climax Molybdenum Company and Office Employees Inter- national Union, Local No. 5, and Local No. 410, AFL-CIO, Petitioners. Case No. 30-RC-1037. March 26, 1964 DECISION AND ORDER AMENDING CERTIFICATION OF REPRESENTATIVES On June 15, 1955, pursuant to a stipulation for certification upon consent election, a representation election was held among the Em- ployer's plant clerical and office clerical employees at its Climax, Colorado, plant. As a result of this election, the Board on June 23, 1955, certified Office Employees International Union, Local No. 5, AFL-CIO, as the exclusive bargaining representative of the aforemen- tioned employees. 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 McCulloch and Members Leedom and Brown]. On December 1, 1963, Local 5 and Local 410, Office Employees In- ternational Union, AFL-CIO, Joint Petitioners herein, filed the in- stant request to amend the certification to designate Local 410 in place of Local 5 as the certified representative of the above employees. In this request, Local 5 and Local 410 allege, in substance, that : (1) the Employer currently recognizes Local 5 as representative of its em- ployees and there is a collective-bargaining agreement now in effect between the Employer and Local 5, effective from January 1, 1963, to November 1, 1965; (2) the impassable terrain in winter makes it dif- ficult to reach the Employer's plant from the Denver, Colorado, head- quarters of Local 5 and because of this factor and the relative fre- quency of grievances, a gradual autonomy has been achieved by the employees in the Climax unit and they have elected their own officers and executive board members and have adopted a constitution; (3) in August 1963, a separate local at the Climax plant was chartered as Local 410 by the International; and (4) Local 410 has the same officers as the Climax unit of Local 5. In its objections, filed on December 20, 1963, to the above request to amend the certification,, the Employer contends that Local 410 is a new and separate legal entity from Local 5, and that the request to amend presents a question concerning representation which can be resolved only by the filing of a representation petition. We find no merit in the Employer's objections to the Petitioners' request which is 146 NLRB No. 61.