J. Ziak & Sons, Inc.

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE.-We will notify Strantz if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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, 614 ISTA Center, 150 West Market Street, Indianapolis , Indiana, Telephone No. Melrose 3-8921, if they have any questions concerning this notice or compliance with its provisions. J. Ziak & Sons, Inc. and Al Cantu Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (J. Ziak & Sons, Inc.) and Al Cantu Local No. 753, Milk Wagon Drivers' Union, International Brother- hood of Teamsters (Rueter's Dairy) and Peter J. Farrell Local No. 753, Milk Wagon Drivers' Union, International Brother- hood of Teamsters, Thomas J. Haggerty, Secretary-Treasurer (Hawthorn-Mellody Farms Dairy ) and Irving Sherman. Cases Nos. 13-CA-6056, 13-CB-1573, 13-CB-1540, and 13-CB-1547. May 5,1965 DECISION AND ORDER On September 21, 1964, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Union filed exceptions to the Trial Examiner's Decision' and a sup- porting brief, the Respondent Employer filed exceptions, and the General Counsel filed a brief in support of the Trial Examiner's De- cision, an addendum to this brief, and a brief in answer to the Re- spondent Union's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Jenkins]. 'The Respondent Union has excepted to the Trial Examiner's credibility resolutions, but the clear preponderance of all the relevant evidence does not persuade us that the Trial Examiner's credibility findings were incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A 3). We also find no merit in the Respondent Union's claim of bias and prejudice by the Trial Examiner nor in its exception to the Tiial Examiner's refusal to sever See Rules and Regulations of the National Labor Relations Board, Series 8, as amended, Sections 102.33 and 102.26. 152 NLRB No. 31. J. ZIAK & SONS, INC. 381 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent that they are consistent with this Decision. All four of the cases consolidated in this proceeding involve conduct by the Union's Secretary-Treasurer Haggerty, who, it is alleged, at- tempted to stifle dissident activity within the Union by unlawfully threatening members Farrell, Sherman, and others, and by causing or attempting to cause the discharge of members Sherman and Cantu. 1. Farrell, a route salesman and a shop steward at one of the dairies covered by the Union's multiemployer contract, was one of eight union members who, in June 1962, signed and sent a letter to several news agencies publicizing alleged improper conduct of Secretary-Treasurer Haggerty regarding use of union funds for political purposes. Hag- gerty read the letter and the names of the signers to the membership at a meeting in July 1962, with critical comments about the letter- writers. The subject of this letter was raised at subsequent meetings by inquiries from a member as to what had been done about the sign- ers, to which Haggerty would reply that "they will get theirs," or words to that effect. According to credited testimony of Farrell, Haggerty told him in February 1963 that he was "traveling the wrong road and if you don't stay away from these guys, one of these days, I might ruin you financially." 2 Early in the fall of 1963, Farrell was on sick leave from his milk route and had applied for sick benefits under the contract. During this time, he continued to work at night as a police officer and, on September 28, arrested a union member for a traffic violation. At the union meeting on October 10, Haggerty reported this arrest, identified Farrell as one of the eight letterwriters, and referred also to an in- cident in 1961 in which Farrell had been attacking certain union action when the then union president, who was defending this action, suffered a heart attack and died. According to the credited testimony of several witnesses, Haggerty said he would "take care of" or "get" Farrell, referring to him with profane epithets, and said he would also "take care of" the letterwriters. It is clear that Haggerty's re- marks were followed by a violent reaction by the members, and there were many shouts such as "throw him [Farrell] out." According to several witnesses, the meeting was brought under control by President 2 All the above incidents pertaining to Farrell occurred more than 6 months prior to the filing of the charges herein, and are considered only as background for the unfair labor practices alleged to have been committed within the Section 10(b) period. 3S2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McNulty, who told the members that no one would be thrown out of the hall, and that the Union had its own administrative procedures to deal with incidents of this kind. They testified further that Hag- gerty then affirmed McNulty's statement that Farrell would be taken care of in accordance with the regular union procedures. The Trial Examiner concluded that Haggerty "did realistically threaten Farrell and others with reprisals, either bodily or financial or both." He reasoned that this was so because Haggerty's remarks were designed to create a "dangerous" mood in his audience, that they "implicitly" contained a threat of harm to Farrell and others, and, further, that the threats by Haggerty and the membership were not neutralized by the subsequent statements of McNulty and Haggerty. We do not agree. Haggerty's remarks, as reported by credited witnesses, were ambiguous. Further, unlike the Trial Examiner, we are unable to infer from the testimony as to the mood of the audience and their comments that Haggerty's remarks constituted threats of either bodily or financial harm, or were designed to create an atmos- phere hostile to Farrell and the others. That nothing of the sort was intended appears from the ensuing remarks of McNulty and Haggerty himself that the matter would be handled in accord with established union procedures.3 We conclude, therefore, that the General Counsel has not established by a preponderance of the evidence that the Re- spondent Union and Haggerty unlawfully threatened Farrell and others on October 10, 1963. 2. Sherman had for several years been steward at Hawthorn- Mellody Farms Dairy, one of the dairies covered by the Union's con- tract. In 1961, Sherman had spoken out against the Union's policy of selecting only officers as convention delegates. In May 1962, he personally wrote a letter critical of union affairs to a local newspaper, and he was one of the eight who signed the June 1962 letter. Sherman testified that, at the meeting at which Haggerty commented to the membership about these letters, Haggerty singled out Sherman for special criticism because Sherman had written one letter, had signed the second one, and, in addition to putting his name and address on the June letter as the others had done, he had "the gall to put his tele- phone number down, too." In late September or early October 1963, Sherman announced his candidacy for the office of secretary-treasurer in opposition to Haggerty. In the early part of October, Sherman, in his capacity of steward, advised the drivers at his dairy not to cut ice for use on the trucks as that was work to be performed by employees who were members of another local. This resulted in a, work stoppage which ended in a 3 Charges alleging violation of the Union's bylaws were preferred against the eight letterwriters by the executive board of the Union on October 2, 1963 J. ZIAK & SONS, INC. 383 few moments, without management becoming aware that it had occurred. Later in the month, Haggerty telephoned McVeigh, divi- sion manager of Hawthorn-Mellody, in reference to this incident. According to McVeigh's credited testimony, Haggerty said that he had heard about the stoppage and that, "when the line was tied up, [McVeigh] should have fired [Sherman] . . ."; McVeigh investi- gated, waited a while to allow Haggerty, who had been very excited, to calm himself, and then called Haggerty back and said that the Sherman incident had occurred several weeks earlier and there was nothing he, McVeigh, could do about it; Haggerty replied that no one had a right to stop the work, that the stoppage was the equivalent of an unauthorized strike, and that McVeigh should not let it happen again and should warn Sherman that "he better not do it again." The Trial Examiner found that Haggerty attempted to cause Hawthorn-Mellody to discriminate against Sherman in violation of Section 8(b) (2) of the Act; that Haggerty's remarks to McVeigh, made with the intent that they be conveyed to Sherman, constituted a threat of economic and financial harm;' and that the asserted reason for Haggerty's action, the work stoppage, was pretextual, the actual reason being Sherman's opposition to Haggerty. We do not agree. McVeigh consistently denied, when questioned thereon by the Gen- eral Counsel, that Haggerty had demanded that Sherman be dis- charged. It is also apparent to us that Haggerty did not at any time request McVeigh to take "radical action" if Sherman caused another stoppage, as the Trial Examiner indicates in his Decision. Any com- ments by McVeigh to that effect were, as McVeigh himself testified, the result of his surmise from what Haggerty said. We therefore conclude, on the entire record, that the General Counsel has failed to sustain his burden of establishing that Haggerty unlawfully attempted to cause McVeigh to discriminate against Sherman. '3. Cantu had been referred to his job with the Respondent Em- ployer by Cesario, a business agent and a trustee of the Union, who had joined cause with, the dissident members of the Union in opposi- tion to Haggerty. For example, at a May 1962 union meeting, in reply to a question directed to him as a trustee, Cesario stated that he and the other trustees had refused to sign a financial report prepared by Haggerty on the ground that it contained irregularities. Soon after this meeting, Sherman, Farrell, and six others wrote their letter to the news media publicizing these same irregularities, which per- tained to Haggerty's use of union funds for political purposes. In * While "the Trial Examiner made a finding that Haggerty 's remarks to McVeieh con- stituted an' unlawful threat against Sherman , there is no specific allegation in the com- plaint that Haggerty , by these remarks , violated Section 8(b)(1)(A) of^the Act, and, in any event , we do not find that Haggerty's remarks to McVeigh constituted an unlawful threat against Sherman. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 1963, Cesario was the only incumbent trustee renominated for another term; the election was scheduled for December 18, 1963. Cesario testified that, sometime early in 1963, he asked Lanny Ziak, an officer of the Respondent Employer, whether Ziak needed a tem- porary driver to replace drivers while on vacation. Cesario further testified that Ziak replied that he had 26 weeks of work available for a replacement driver, who would be retained if there was more work at the end of that period. Cesario referred Cantu, who was a friend of his son but not known to Cesario personally, for this job. Cantu was hired on April 15, 1963. He became a union member in July. In September, according to Cantu's testimony, Ziak told Cantu he would be retained as a permanent employee, and in October, assigned Cantu to a permanent route. Cantu also described a conversation with Ziak in July 1963, in which Ziak said that he had informed the shop steward at his dairy that Cantu was Cesario's nephew, although there was no relationship, in order to see if that information would get back to the union officers. It is evident from the record that the union of- ficials did get this misinformation. Thereafter, on November 21, Ziak told Cesario, according to the latter's testimony, that Haggerty had demanded Cantu's discharge on the grounds that Ziak's hire of Cantu had violated the contract provision for preference in hiring to be given to laid-off employees,' and also that Cantu was Cesario's nephew. On November 23, Ziak gave Cantu a week's notice of discharge, and told Cantu, according to the latter's testimony, that Haggerty had demanded the discharge on contract grounds, but the contract had never been enforced before, and Haggerty was raising the contract issue at this time in order to "get back at" Cesario. There was no testimony as to any of the fore- going by Ziak. He was recuperating from an illness at the time of the hearing, and was not called as a witness. At the union meeting on December 12, Haggerty announced that he had taken care of the "Zink matter" involving Ziak's hire of a man sent by Cesario. Haggerty stated, according to the testimony of both Cesario and Cantu, that he had had Cantu, whom he identified as Cesario's nephew, replaced by a driver who had been laid off by an- 5 Prior to May 1 , 1963, the contract provided that, when hiring additional men, an employer would refer to a list of unemployed men maintained by the Union , and would give preference to men on the list who had been laid off by that employer within the previous year. After May 1, this provision was changed to read that preference would be given to unemployed drivers laid off within 2 years by any employer party to the contract. The record indicates that , prior to this change, the contract provision had not been enforced . Although the Union , in September 1963, sent a letter to all em- ployers in the unit indicating its intention of enforcing the new clause , the record indicates that in a number of instances the employers hired new employees who were not on a union laid-off list. J. ZIAK & SONS, INC. 385 other dairy. Haggerty also urged at this meeting that the sum which had been agreed upon for Cesario's pension be reduced, claiming that Cesario had arranged preferential pension treatment for himself dur- ing a period when Haggerty was ill. The Trial Examiner found that the Respondent Employer unlaw- fully discharged Cantu, and that the Respondent Union unlawfully caused the discharge. The Respondent Union has excepted to the Trial Examiner's findings that were based upon testimony of Cantu and Cesario as to what Lanny Ziak said he had been told by Haggerty, on the ground that such evidence was inadmissible hearsay.6 This testimony, which is clearly not hearsay as to the reasons that Ziak gave Cantu for discharging him, establishes Ziak's unlawful reason for the discharge. Thus, Ziak admitted to Cantu that he was discharging Cantu because Haggerty demanded it, that he recognized Haggerty's reliance on the contract as a pretext, and that he was aware that the real reason was Haggerty's animosity toward Cesario. We find, therefore, in agreement with the Trial Examiner, that the Re- spondent Employer has, by this discharge, violated Section 8 (a) (3) and (1) of the Act. We find further, without relying on the testimony in question re- garding the allegations against the Union, that there is sufficient in- dependent competent evidence to show that Haggerty demanded Ziak's discharge of Cantu for unlawful reasons? The facts show that, at the time of the events herein, Haggerty was facing a challenge in the upcoming election from Sherman, one of the dissident group; that all of the dissidents who had written the letter publicizing Hag- gerty's alleged misuse of union funds had been formally charged with violation of the Union's bylaws; and that Cesario, who had reported at a union meeting the refusal of the trustees to sign Haggerty's financial report, was the only one of those trustees seeking reelection. It appears, therefore, that all the known dissidents except Cesario either had had union charges filed against them or were not candidates in the forthcoming election. Furthermore, the credited testimony of Cantu and Cesario shows that Haggerty, at the December 12 meeting, coupled his announcement about getting Cantu discharged with im- plications of nepotism by Cesario. Finally, the evidence establishes that the contract provision asserted by Haggerty to require Cantu's discharge was not generally enforced. On the entire record, there- 6 The Trial Examiner admitted this testimony into evidence "for all purposes" but with the weight to be given it dependent upon "other competent evidence." ?Local 776, IATSE ( Film Editors ) ( Cascade Pictures of Calcfornia, Inc.), 124 NLRB 842, enfd . 303 F. 2d 513 ( C.A. 9), cert. denied 371 U.S. 826 ; 5 Wigmore, Evidence § 1361 (3d ed. 1940). 789-730-66-vol. 152-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore, we conclude that the real reason Haggerty demanded Cantu's discharge was to retaliate against Cesario, Cantu's supposed relative, who had long been a thorn in Haggerty's side in union matters and that the contract provision assertedly relied on was a pretextual reason for the discharge. Accordingly, we find, in agreement with the Trial Examiner, that Haggerty as an officer and agent of the Union, caused the Respondent Employer to discharge Cantu in violation of Section 8 (a) (3) and (1) of the Act, and that the Union thereby violated Section 8 (b) (2) and (1) (A) of the Act.' ORDER A. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order, in Case No. 13-CA-6056, the Order recommended by the Trial Examiner, and orders that Respondent J. Ziak & Sons, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the fol- lowing modification : Add the following paragraph immediately following subparagraph A, 2, (a), renumbering the subsequent subparagraphs accordingly: "(b) Notify Al Cantu if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." I B. Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders, in Case No. 13-CB-1573, that Respondent Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehouse- inen & Helpers of America, its officers, agents, and representatives, shall : 1. Cease and desist from : (a) Causing or attempting to cause Respondent J. Ziak & Sons, Inc., its officers, agents, successors, and assigns, to discriminate against employees in violation of Section 8(a) (3) and (1) of the Act. 8 In view of our disposition of this issue, we make no finding as to whether a demand for Cantu's discharge, if actually made pursuant to the contract, would, under the cir- cumstances of this case, be lawful 9 The following paragraph is to be added to Appendix A, immediately below the signa- ture line: NoTs -we will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. J. ZIAK & SONS, INC. 387 (b) In any like or related manner restraining or coercing employees of Respondent J. Ziak & Sons, Inc., in the exercise of rights guaranteed in Section 7 of the Act, except to the extent authorized in Section 8 (a) (3) of the Act, as amended. 2. Take the following affirmative action which will effectuate the purposes of the Act: (a) Notify J. Ziak & Sons, Inc., in writing, that it withdraws all objection to the employment of Al Cantu, with copy to Al Cantu in- dividually, and that it requests J. Ziak & Sons, Inc., to offer him im- mediate and full reinstatement to his former or substantially equiv- alent employment. (b) Post in the Respondent Union's business offices and meeting halls, copies of the attached notice marked "Appendix B." 10 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by an authorized representative of the Respondent Union, be posted 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 members are customarily posted. Reasonable steps shall be taken by the Re- spondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish to the Regional Director signed copies of the aforesaid notice for posting by J. Ziak & Sons, Inc., if willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by the Respondent Union, as indicated, be forthwith returned to the Regional Director for disposition by him. (d) Notify said Regional Director, in writing, within 10 days from the date of this Decision, what steps have been taken in compliance herewith. - 3. In addition, the Respondent Union shall take the following af- firmative action designed to effectuate the purposes of the Act : Jointly and severally with J. Ziak & Sons, Inc., make Al Cantu whole for any loss of pay he may have suffered by reason of the dis- crimination against him in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." It is further ordered that the complaint in Cases Nos. 13-CB-1540 and 13-CB-1547 be, and it hereby is, dismissed. loIn the event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order " 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO ALL MEMBERS OF MILK DRIVERS' UNION, LOCAL 753, INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREIIOUSE- MEN & HELPERS OF AMERICA, AND TO ALL EMPLOYEES OF J. ZIAK & SONS, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause J. Ziak & Sons, Inc., to discriminate against its employees in violation of Section 8 (a) (3) and (1) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of J. Ziak & Sons, Inc., in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent authorized in Section 8 (a) (3) of the Act, as amended. WE WILL notify J. Ziak & Sons, Inc., in writing, and furnish copies of such notification to Al Cantu, that we have no objection to his employment by said Employer, and that we request said Employer to offer him immediate and full reinstatement to his former or substantially equivalent employment. WE WILL jointly and severally with J. Ziak & Sons, Inc., make whole Al Cantu for any loss of pay he may have suffered because of the discrimination against him. MILK DRIVERS' UNION, LOCAL 753, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN & 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. Employees may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any questions concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges of unfair labor practices filed by Peter J. Farrell and Irving Sherman on October 14 and 21, 1963, against Milk Drivers' Union, Local 753, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, herein J. ZIAK & SONS, INC. 389 called the Respondent Union,' the General Counsel of the National Labor Relations Board issued a consolidated complaint and notice of hearing dated January 28, 1964. Upon charges of unfair labor practices filed by Al Cantu against J. Ziak & Sons, Inc., herein called Respondent Company, and the Respondent Union on December 2, 1963, the General Counsel issued a consolidated complaint and notice of hearing on January 31, 1964. Answers denying the commission of any unfair labor practices were filed by all Respondents and all of the cases were heard before Trial Examiner George J. Bott in a consolidated hearing at Chicago, Illinois, on March 31 and April 1, 2, 3, and 9, 1964. The General Counsel, Respondent Union, and Respondent Company were represented at the hearing. Subsequent to the hearing the Respondent Union and General Counsel filed briefs which I have considered. Upon the entire record 2 in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE JURISDICTION OF THE BOARD Rueter's Dairy and Hawthorn-Mellody Farms Dairy, during the calendar year 1963, each had a gross volume of retail sales in excess of $500,000 and each purchased goods valued in excess of $50,000 from points outside the State of Illinois. J. Ziak & Sons, Inc., is engaged in the sale and distribution of milk at wholesale from its terminal in Chicago, Illinois. During the year prior to the issuance of the complaint, Respondent Ziak sold and distributed from said terminal products valued in excess of $1 million , of which products valued in excess of $50,000 were shipped to States other than the State of Illinois. I find that Rueter's Dairy, Hawthorn-Mellody Farms Dairy, and Respondent Company are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IT. THE LABOR ORGANIZATION INVOLVED Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America is a labor organization within the mean- ing of Section 2(5) of the Act. IH. THE UNFAIR LABOR PRACTICES A. Short statement of the issues It is General Counsel's contention that a common thread of dissident union activity runs through the Farrell, Sherman, and Cantu cases and that there existed within the Union a group of members who questioned and criticized the official policies of the Union and Thomas J. Haggerty, its secretary-treasurer. Briefly, he contends that the Union, principally by Haggerty, engaged in conduct designed to smother dissent within the Union and that this conduct took the form of threats directed to eight men, including Farrell and Sherman, who had signed an anti-Haggerty letter to the press, and an attempt to cause the discharge of Sherman In addition, he claims that the Union caused the discharge of Al Cantu because he was suspected to be the friend or relative of another dissident spokesman. In short, it is the Union's position that in Cantu's case the Union was engaged in legally protected conduct in trying to protect employment opportunities of persons with greatest service in the industry pursuant to a legal contract provision; that no attempt was made to cause the discharge of Sherman and even if it had it would not have been discriminatory in the circumstances; and that no threats violative of the Act were made against the eight letterwriters, including Farrell and Sherman. B. Farrell's case 1. Farrell's activities The complaint alleged that on or about October 10 and 17, 1963, and on other occasions, Respondent Haggerty, the Union's secretary-treasurer, at meetings of the members of Respondent Union, threatened Peter Farrell, an employee of Rueter's Dairy, with economic, financial, and bodily harm because of his activities on behalf of and in support of a dissident faction of Respondent Union all in violation of Section 8 (b) (1) (A) of the Act. 1 Sherman's charge was amended on October 30, 1963, to add Haggerty as a Respondent. 2 Respondent Union's motion to correct record and General Counsel's are hereby granted. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Farrell has been a union member for more than 10 years. He testified without contradiction that he attended a contract ratification meeting in 1961 but was unable to vote because the door to the room in which the vote was taken was locked. At the next meeting of the Union he was recognized by the chair and inquired why the door was locked at the earlier meeting and why ". . . we were not allowed to vote ...." Peter Hoban was president of the Union at the time and chairman of the meeting. Hoban told Farrell he was out of order, but Farrell insisted that he wanted an explanation. President Hoban had no chance to explain for at that very moment he had a heart attack and died. As Hoban suddenly collapsed, Haggerty jumped to his feet and ". . . screamed ... at the top of his voice ..." to Farrell "... you see what you did, you started to do this and you finally accomplished it, you killed Pete." 3 In June 1962, Farrell, Sherman, and other members of the Union prepared, signed, and sent a letter to 13 news agencies. The letter referred to certain allegedly improper conduct of Secretary-Treasurer Haggerty in making a political contribution and criticised the news media for failure to accurately and fully report the union meeting at which the political contribution was discussed. The letter was clearly anti-Haggerty for the alleged inaccuracies and omissions complained of would reflect adversely on him, if true. During the July 1962 meeting of the Union, Haggerty read the letter, including the names of the signers, to the members. Farrell testified without contradiction that Haggerty told the membership that he . had received another poison pen letter ..." and referred to Farrell as that "... South-side Steward that stood here when our late Peter Hoban died ...... He was also critical of Sherman. Farrell testified that he had a conversation with Haggerty in the Rueter's Dairy parking lot sometime in February 1963, at which time Haggerty accused him of lying to him. Farrell explained to Haggerty that he was not coming around to Haggerty's "way of thinking" but was only "needling" Haggerty when he told him earlier that Haggerty had done a good job at a union meeting. Farrell said that Haggerty said, "Well listen, brother, you are traveling the wrong road and if you don't stay away from these guys, one of these days, I might ruin you financially." The letter to the press of June 1962, signed by Farrell, Sherman, and six others, was raised by someone in other meetings after July 1962. Farrell testified that some member would arise and inquire about what had been done ". . . with those guys that signed the letter." He said Haggerty's reply was always the same-"Don't worry, they will get theirs." 2. The union meetings of October 10 and 17, 1963 It was at the October 10 and 17 meetings of the Union at which the threats uttered within the Section 10(b) period are alleged to have occurred. It appears that on October 2, 1963, charges of having violated article 16, section (d), paragraphs 5 and 8, of the Union's bylaws, which deal with abuse of union officers and reporting private union business to outsiders, were filed against the eight men who had signed the June 1962 letter. During the October 10, 1963, meeting Haggerty made reference to the eight letter- writers and to Farrell specifically. Haggerty's references were in the context of his report about an incident involving Farrell and another union member which pre- cipitated a demonstration by the membership which was described by various wit- nesses as an "uproar" or "turmoil" in which the members were "very disturbed" or "excited" and "shouting and hollering" occurred. There is some dispute about what actually happened and specific denials by Haggerty and other witnesses for Respond- ent Union that illegal threats were made. Farrell was a route salesman for Rueter's Dairy and also the union steward. Some- time in early fall of 1963 he was on leave as a driver and had applied for sick benefits under the contract. He continued to work at the time as a police officer in Home- town, a Chicago suburb, and arrested a union member for a traffic violation. All witnesses were in substantial agreement that at the October 10 meeting Haggerty "Carmen Cesarlo, business agent and union trustee at the time and who figures prominently in Cantu's discharge case, corroborated Farrell. He said Haggerty said ". . . they killed him Now they are satisfied " He also recalled the then vice president of the Union, Al Krueger, now dead, saying, "This group has to be destroyed " Evidence of this nature relating to circumstances which occurred prior to the 6-month period of limitations (Section 10(b) of the Act) was offered and allowed in evidence to "shed light on the true character of matters occurring within the limitation period .11 Local Lodge No 1424, International Association of Machinists, AFL-CIO; et at. (Bryan Manu factui ing Co ) v. N L.R B , 362 U S 411, 416. J. ZIAK & SONS, INC. 391 told the members about Farrell arresting Vickers. Haggerty related that he had been telephoned at an early hour to assist Vickers and that he sent someone to post bail for him. As indicated, it is clear that some sort of commotion or "uproar" began and it is also clear from the testimony of the witnesses that there were many shouts of "throw him out," or "throw them out," and that president McNulty, chairman of the meeting, had to restore order. With respect to illegal threats, however, the testimony is substantially as follows: Farrell testified that Haggerty opened his speech by referring to Farrell as "one of our mislead South-side stewards . . ." who while on sick leave, drawing sick pay, stopped one of the members of the Union and gave him a ticket. According to Farrell, Haggerty in relating the details of the incident, said that Farrell was a ". . . no good bastard" and a "dirty son of a bitch, who sits and takes our money while being on sick leave, hurt a fellow member." Haggerty said that Farrell was the same person who was on the rostrum when Peter Hoban, former president, died, and the ". . . same guy that signed these letters." Farrell testified that Haggerty then stated that "this guy is going to get his one of these days." He added that Haggerty also said that 10 minutes after Farrell telephoned him he went to Rueter's Dairy Company and told Fred Rueter that Farrell was through. Alfred Hughes testified that Haggerty told the members about Farrell arresting Vickers and described Farrell in the choice language set forth above. He said that Haggerty pointed out that "these are the type of people we have as steward ... and the kind of people we have in the organization" and added that he ". . . was going to take care of him." Haggerty also said, according to Hughes, that Farrell was one of those who signed the letter to the press and that ". . . we have our ways of taking care of those fellows too." He told the men to ". . . watch these men ... watch everyone of them ..." for they would be taken care of. Frank Urso said Haggerty used "vulgar" language in describing Farrell in his account of the arrest and said that ". . . eventually he would get to him ... in due time." Haggerty then got on the subject of the letterwriters and it was this discussion, according to Urso, that triggered the commotion and the frenzied shouting of "throw him out of the hall." Ben Rosenberg attended both the October 10 and 17 meetings. He recalled Hag- gerty's talk about Vicker's arrest and described the epithets Haggerty used in referring to Farrell. He said Haggerty stated that ". . . we will get this guy." Farrell's partici- pation in the letterwriting was also mentioned by Haggerty. According to Rosenberg, Haggerty said essentially the same thing at the October 17 meeting but he did not recall whether the letterwriters were mentioned then. Irving Sherman testified that Haggerty called Farrell a "... little son of a bitch." Haggerty said that Farrell was on sick leave and he "would take care of him later." Haggerty also referred to the letterwriters and said he "... would take care of the group" that had signed the letter. A dozen or so Respondent Union witnesses testified that no threats of any kind were made at the meetings. Most of them were also sure that there was no profanity used, or at least that they heard none. Although they were unanimous in describing "turmoil," "uproar," "excitement," "hollering" and "shouting," "hoarseness" of voice, and a spontaneous surge of aroused members to their feet during Haggerty's speech, all gave the impression at the hearing that they themselves were calm, objective, and dispassionate through it all.4 Union President William McNulty presided at the October meetings. He said that after Haggerty finished talking about Farrell there were shouts of "throw him out" and a "lot of commotion." He admitted that there was some profanity used. He also stated that "the letter" had been read, that the Farrell arrest and the letter- writing were being discussed at the same time, and "that is when the hollering started." Most of the union witnesses testified that McNulty restored order and told the meeting that no one was going to be thrown out of the hall while he was president. McNulty said he told the members that there were other ways of handling a situa- tion such as had arisen. He said everyone had guaranteed rights and a right to be present and talk. He wanted order, he said, and insisted on it. He concluded that, "That was about the sum and substance of it, briefly." McNulty, asked if he recalled what Haggerty said to the membership after order was restored, said "Haggerty just about verified what I said to the extent that was no way to handle it." He said Haggerty was referring to the bylaws and so was he. A The unlikelihood of so much icy, detached, and dispassionate observation during the "turmoil" Is apparent, and I have taken it into consideration in considering the testimony of all witnesses for all sides. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McNulty denied that Haggerty threatened Farrell, Sherman, or the letterwriters with bodily harm, economic harm, or financial harm. He specifically denied that Haggerty told the meeting that he had asked Rueter's Dairy to fire Farrell, that he "would take care of" either man or "get" them. Charles Cunningham said everyone was "screaming and hollering" to "throw the member off sick leave payment," but they did not "threaten to hurt him." McNulty restored order and Cunningham could remember little else except that there was no profanity in his view. Francis X. Gorny said the men were "incensed" after Haggerty's talk. He said the word "suspend" was not used, but he heard "throw him out." McNulty restored order, saying no one would be thrown out and there were "proper channels" for such things. Regarding Haggerty, he said, "I believe he cooled off a little and ... (said) Brother McNulty was correct." Thomas Bugner, who Haggerty sent to Hometown to post a bond for Vickers release, said there was "quite a rumble" after Haggerty's talk and a "bunch of fellows hollered throw him out and stuff like that." Order was restored by McNulty who told the membership that ". . . we have regular parliamentary procedures." He tes- tified that Haggerty said nothing after the meeting was quieted by McNulty. Bugner testified that he "heard" no profanity. He denied that Haggerty said anything about telephoning Farrell's employer or that there were any threats directed to Farrell or Sherman. He specifically denied that Haggerty threatened to "take care" or "get" anyone Edward Horan testified that the meeting turned into a "turmoil" after Haggerty's report about Farrell and that the members wanted those "members thrown out that were causing this dissension." McNulty said no one would be thrown out of the union hall while he was president, and later Haggerty said "things would be taken care of in the proper way," according to the witness. Horan "heard" no profanity. He denied that Haggerty said he had asked for Farrell's discharge or threatened him, Sherman, or the eight letterwriters in any way. Ed Rummery denied that Haggerty made any threats to Farrell or Sherman and specifically denied that Haggerty said he had attempted to get Farrell discharged. His testimony about Haggerty's narration of Farrell's conduct as police officer-union member was essentially the same as the Respondent Union witnesses but he added an interesting note about the atmosphere of the meeting. He said, "It was a very crowded meeting. Elections were not too far off. There was a lot of interest. There was a lot of varying controversial things in the newspaper about that time which always stimulates attendance at meetings." Lotus Dalitto said "everybody in the hall jumped up" in an uproar after they heard from Haggerty about Farrell, but McNulty restored order and ". . . said there were proper procedures if the man had violated any of the union laws or by-laws or contract, that it would be done in the justifiable way through the union executive board and so forth." About the use of profanity, he admitted he couldn't say in a "mess like that" who had and had not sworn. He also denied threats by Haggerty and specifically that Haggerty said anything about getting Farrell fired. Dalitto recalled that the eight letterwriters were were also mentioned by Haggerty that night. Patiick McDermott remembered that there was "quite an uproar" and the men got "pretty hot" after Haggerty's report. Some said "throw him out," but he did not recall the statement, "suspend him." McNulty restored order and said "this would be handled in our democratic union way." He did not recall the bylaws being men- tioned. After McNulty finished Haggerty spoke, and, according to McDermott, he said the same thing McNulty said, "That they would be dealt with in the union manner." The witness denied specifically that Haggerty had mentioned Farrell's employer or job and denied the existence of any threats to Farrell. Sherman, or the letterwriters. He recalled that the latter were mentioned, however William Dunham testified that the members were "highly disturbed" after Hag- gerty's talk and that some men ". . . were hollering throw him out of the hall and other suspend him, and throw him out altogether." When order was restored, Hag- gerty said "about the same" as McNulty, he said, and used the phrase "proper proce- dures " Dunham did not recall the word "charges" beine used. He remembered that the letterwriters were mentioned and Haggerty said, "We have our way of tak- ing care of them." He added the interesting commentary that "there was one meet- ing where Tom Haggerty used profanity for the first time in his life that I ever heard him, at a meeting." He recalled the epithets used, as described earlier, but could not recall at which meeting they were uttered or to whom they were directed. William Boyce said Haggerty used no profanity, and he also denied that he made any threats to Farrell or Sherman He testified that McNulty, in bringing the meet- ing back to order, told the body that the Union, ". . . being a democratic organiza- J. ZIAK & SONS, INC. 393 tion , would be run according to union by-laws. And ... the man would go through the proper channel of being expelled or whatever is necessary," if there had been a violation of the bylaws. Boyce said Haggerty "reaffirmed" this position, " using probably different words," which he could not remember, however. He specifically denied that Haggerty said he had Farrell fired or that he was going to "take care of" or "get" him. Under cross-examination he added that McNulty, when he regained order, said, "as he always has ... there will be no violence or uncontrolled mob rule." Although witness John Misiera said that the "members got kind of upset and kind of shouted to have this man thrown out, suspend him ...... he added that McNulty said no one would be thrown out of the hall while he was running the meeting and that ". . . any procedure to be taken ... would be done in the regular way as far as bringing up charges and appearing before the Board." Under cross-examination he said he was not sure the word "charges" was used at the meeting. William Stiska went to both the October 10 and 17 meetings. Most importantly he contributed the fact that the October 17 meeting was quiet and orderly and that although the letterwriters were again mentioned by Haggerty, nothing untoward happened. With respect to the October 10 meeting, he said that McNulty in quiet- ing the members announced that ". . . no one is going to be expelled out of this meeting, unless he has a fair trial before the executive Board, and (that) ... nothing is going to be done until proper charges are brought." He recalled little of what Haggerty said in the field of threats, but stated that "about the only thing I can remember is that fellows like that should be taken care of and he is going to do the utmost in his power to take care of him." The witness added that he was positive that Haggerty did not say that he was going to take care of Farrell, personally. Anthony Christiano is presently recording secretary of the Union. He was at the October 10 meeting but he said he could not remember Haggerty's "exact words." The substance of Haggerty's remarks, however, was that Haggerty ". . . thought some action should be taken or words to that effect." After the men "busted out," as Christiano described it, McNulty got order and in doing so stated that "... if any action was going to be taken, it was gomg to be taken in a procedural way . . . , and nobody was going to be thrown out or no bodily harm was to be passed on to anyone." Christiano "thought" the word "charges" was mentioned by McNulty, but he was not sure. Haggerty, according to the witness, said he was in accord with McNulty and ". . . specifically stated that there would be no bodily harm or no one is going to be pushed around ... that these things would be handled in the right procedure or the right manner or through channels, through the executive board, or something on that order." Respondent Thomas J. Haggerty in his testimony stated that he reported the Farrell incident to the membership in October 1963. He denied that he said that he would "take care of" Farrell later; that he would take care of the group that had signed the letter or that they "would be taken care of", that, in reference to Farrell, we will "get" this guy, that he would "get his and they will get theirs"; that they would be "gotten to in due time"; that "we have our ways of taking care of those fellows"; that "just watch these men ... watch every one of them ....," and they would be "taken care of"; and that he would "take care of the letter writers, including Joe Farrell." He also denied that he threatened Farrell or Sherman with economic, bodily, or financial harm. Haggerty stated that what he did say at the meeting was, "That the board, as a regular routine position, proceeds and that if they done some- thing that was in violation of the rules of the organization, they would be dealt with by the executive board." He also recalled saying about Farrell that ". . . he would live up to the rules the same as everybody else ... that if he was well enough to work 8 and 10 hours as a policeman while he is on our sick benefits, then he was well enough to go back to work and he wouldn't be entitled to the benefits." This, he said, was all he said that could be construed as a threat of financial harm. Farrell had testified that Haggerty had told him in a conversation in February 1963 that he would ". . . ruin him financially" if he did not stay away from certain unnamed persons. Haggerty said he did not say it, as far as he could recall. He did not recall speaking with Farrell at all in the Rueter's Dairy parking lot as Farrell had testified, but he admitted it was a possibility. The witness also said that he may have used profanity at the October 10 meeting but not in reference to Farrell. He stated that he reserves the language attributed to him by earlier witnesses for "dealers" only, not members. 3. Concluding findings regarding threats to Farrell My reconstruction of the meeting of October 10, 1963, is as follows, and with one important exception ; namely, Haggerty's asserted telephone call to Farrell's employer testified to by Farrell, I resolve the important conflicts in the testimony in favor of Farrell and other General Counsel witnesses for the reasons given. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haggerty was noticeably agitated and aroused at the October 10 meeting and his emotional appeal was motivated in large measure by Farrell's participation with Sherman and others in the critical letter to the newspaper. Many witnesses, includ- ing Union President McNulty, mentioned Haggerty's reference to the letterwriters in the context of Haggerty's diatribe against Farrell, supposedly because he had given a traffic ticket to a union driver One witness said Haggerty was angry, another indicated his voice was hoarse, and all witnesses agreed that an "uproar" took place. Haggerty's appeal precipitated the uproar, and his reference to the letterwriters is evidence from which I infer it was designedly done. Haggerty insulted and reviled Farrell. McNulty said there was some swearing and another union witness said dirty language was used by Haggerty eight times I find, contrary to Haggerty and contrary to the testimony of others who denied it, that Haggerty called Farrell the names Farrell said he did, and I find that this coupled with the letter reference was also designed to arouse the members against the dis- senters at an opportune time before the election of officers.5 Farrell's arrest of Vickers was a convenient pretext. I was also impressed by Farrell's demeanor when testifying about Haggerty's insulting references to him and completely unimpressed when Haggerty said he couldn't recall calling Farrell a filthy name. The insult had almost indelibly impressed Farrell and he recounted the attack with apparent sincere emotion and as if it happened yesterday. Haggerty's statement that he reserves pro- fanity for dealers only was incredible. Ironically, one union witness testified that employers are not mentioned at union meetings, which statement was fantastic in the light of the testimony in the Cantu case, infra, about Capitol and other dairies being discussed at meetings. There remains the important question, however, of whether Haggerty threatened bodily, economic, and financial harm to Farrell as alleged, because all parties agree that even the intense use of profanity against an employee is not an unfair labor practice in itself. I find that Haggerty did realistically threaten Farrell and others with reprisals, either bodily or financial or both, within the real meaning of those terms, when the whole context of the meeting and the Farrell activities are con- sidered. In the first place, the audience reacted violently. Recall that Haggerty had tied an event (the arrest of a brother member) that would bring natural disapproval of Farrell, to Farrell as a dissident letterwriter, and did it with an appeal to passion by a personal attack on Farrell and a reference to his presence at President Hoban's death. Haggerty must be held responsible for the violent reaction he aroused, and violent it was, for a number of witnesses testified that not only were there cries of "throw them out," but that McNulty said no one would be thrown out of the hall, and, indeed, as one witness said, there would be no bodily harm as long as he was president. Violence was in the air, the mood was dangerous, but a strong chairman took control. Haggerty's talk, however, and the response and mood of the audience, which he carefully cultured, implicitly contained a threat of bodily or financial harm. Haggerty, as will be seen later in Cantu's case, also enforces contracts against employers, and the loss of Farrell's membership could mean loss of employment under the agreement. In any event, at least as far as Farrell was concerned, Hag- gerty's attack must have forcefully reminded him of Haggerty's earlier threat to "ruin him financially" if he stayed with the wrong crowd, a threat which I find Haggerty made. The argument that all Haggerty was doing at the meeting was objectively recount- ing the dereliction of a union member with a reminder of the parliamentary pro- cedures available to anyone who wanted to use them, I reject as unreal and almost absurd. In the first place, no witness was able to say positively that charges were mentioned by anyone. Although such procedure may have been in McNulty's mind when he assumed the chair, I do not believe the bareboned account of Haggerty and the other Respondent Union witnesses that Haggerty was "in accord with" or "agreed with" McNulty.e In any event, the damage had been done; Farrell and others had been coerced and restrained, and Haggerty's mere going along with McNulty's indica- tion of "procedural" relief could not so easily undo it. I find specifically that Haggerty stated on October 10, 1963, in reference to Far- rell and others, that he was "going to get him"; that "this guy is going to get his"; that he was "going to take care of him"; that he had "ways of taking care of these fellows"; to "watch these men ... watch everyone"; that he would "get to him in time"; that "we will get this guy"; that he would "take care of him later." I find that these somewhat obscure remarks, taken in the whole context of the union 5 Union witness Rummery, as set forth earlier, said it was a crowded meeting because there was much interest and elections were not far off. 9 Thomas Bugner, witness for the Union, testified that Haggerty said nothing after McNulty restored order. J. ZIAK & SONS, INC. 395 meeting and Farrell's dissident activities known to Haggerty, were intended as and were reasonably understood to be pronouncements of dire consequences. As such, they were threats of bodily, economic, and financial harm, as alleged. I find, however, contrary to Farrell's testimony, that Haggerty did not state at the October 10 meeting that he visited Rueter's Dairy where Farrell was employed and told Fred Rueter that Farrell was "through." This statement does not appear in the affidavit Farrell gave the Board shortly after the October 10 meeting, it was denied by Respondent Union witnesses and no other witness corroborated Farrell. The record is unclear about the October 17, 1963, meeting. There is some evi- dence that Haggerty again mentioned the letterwriters, but the evidence of threats is not substantial enough to warrant a finding that Haggerty threatened bodily, economic, or financial harm to anyone at this meeting. I find, therefore, that the complaint is not borne out in this respect. C. Sherman's case 1. The facts The complaint in Sherman's case also alleges that Respondent Haggerty threatened Irving Sherman at union meetings with economic, financial, and bodily harm because of his activities in support of a dissident faction of the Union and, in addition, that Respondent Haggerty attempted to cause Hawthorn-Mellody Farms Dairy to dis- -charge Sherman because of his activities on behalf of the dissident faction. Irving Sherman, a member of the Union for 35 years and a steward at his barn for 18 years, had been a long-time friend and political ally of Respondent Haggerty when he participated in writing and dispatching the letter to the news media mention- ing Haggerty, described in Farrell's case. Sherman ran against Haggerty for the -office of secretary-treasurer in the December 1963 elections. Sherman testified credibly that in a meeting of the Union in 1961 he spoke out against the Union's policy of electing only officers as delegates to the International Union's convention. Sherman's account of the meeting, which is corroborated by Carmen Cesario, is uncontradicted. Sometime in May 1962 Cesario refused to sign a report to the International Union in his capacity as union trustee because of asserted financial irregularities. Around the time of Cesario's action, Sherman wrote a letter about union business to the local press. The letter was not printed, but Haggerty obtained a copy of it and read it at a union meeting. The letter was unavailable at the hearing and there is no detail about it in the record. It clearly questioned union policy, however, because Haggerty accused Sherman of going "outside the local with stories... . He told Sherman that "it was a vicious bat- tle... . A union newspaper for June-July 1962, in evidence, contains an article written by Haggerty in which he states that "Charges made in a letter sent to news- papers by Irv. Sherman, were read and refuted item by item by your secretary- treasurer" As set forth in greater detail in Farrell's case, Sherman composed and sent a letter to the newspapers with Farrell and others in June 1962, and the letter was read by Haggerty at the July meeting of the Union. Haggerty mentioned Sherman by name saying that Sherman not only added his name and address to the letter, but had "the gall to put his telephone number down too." Haggerty accused Sherman of having slapped his cheek after he had turned it. Haggerty condemned all signers of the letter for "going outside the Union" to the press. The letter of June 1962, signed by Sherman, Farrell, and six others, was raised at other meetings after July 1962. Haggerty told the members, as I have found earlier, that the letterwriters would "get theirs." On October 2, 1963, long after the letter was sent, charges were preferred by the Union's executive board against the letterwriters. On October 10, 1963, Haggerty made his vitriolic attack on Farrell and included in it references to the letterwriters In late September or early October, Sherman announced his candidacy against Haggerty. Sometime in early October 1963, Sherman, in his capacity of steward, advised driver members of Local 753 not to go into ice trailers and cut ice because the work was within the jurisdiction of the inside workers, members of another local. The drivers were held up in their work for a few minutes until the ice was cut by others. Sherman understood and testified without contradiction that the work involved did belong to another bargaining unit. He said he had been so instructed by his business agent. Sometime in mid-October 1963, Haggerty telephoned John McVeigh, division manager of Hawthorn-Mellody Farms Dairy. McVeigh testified to the contents of Haggerty's call and one he made back to Haggerty a few minutes later. McVeigh was not sure when first examined about exactly what was said but after having his recol- 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lection refreshed by an affidavit he had given the Board about the call was able to testify in greater detail. The substance of McVeigh's testimony including that portion of it given after he looked at his affidavit is as follows, and I credit it. McVeigh said Haggerty telephoned him and after stating that he heard "the line had been hung up .. ... shouted over the phone and said, every time I say anything about Sherman, you take his part. I think you two are sleeping together . . in other words . . . when the line was tied up, I should have fired him, that is what he said . . . and he got mad and hung up the phone. . " 7 McVeigh testified that he knew Haggerty was "hot" and added, "Listen, when Tom calls you up and says the hell with you, and bangs his phone, you know it is no way to leave him." He telephoned Haggerty back, therefore, and told him that the Sherman incident had happened weeks ago and there was nothing he could do about it. Haggerty told McVeigh that nobody had a right to stop the work and it was like calling an unauthor- ized strike. McVeigh repeated that the incident was stale and Haggerty told him not to let it happen again. McVeigh testified that he was unaware of the stoppage of work when it hap- pened and had heard of it only through rumors. He also said his "superiors" did not know about it. McVeigh at first testified that Haggerty did not tell him to dis- charge Sherman but under cross-examination said that Haggerty said that Sherman "should be fired for tieing up the line.. . He repeated the words "should be" under further questioning, but added that when Haggerty found out that the incident had happened weeks before, he cooled off and told McVeigh to warn Sherman that he had better not do it again. McVeigh did so. His understanding of Haggerty's telephone call, he concluded, was that if Sherman ever did it again Haggerty would expect him to take "radical action " Haggerty recalled the conversation with McVeigh about Sherman. His only testimony, however, was a simple denial that he asked McVeigh to discharge Sherman. 2. Concluding findings regarding threats to Sherman and the attempt to cause his discharge I have found earlier in Farrell's case that Haggerty referred to the eight letter- writers, of which Sherman was one, and told the audience to "watch these men" and that "they would be taken care of." In the context of the meeting, as described above, and for basically the same reasons as given in Farrell's case, I find that, in all reality, Haggerty's words were designed to instill a sense of forebodying and fear of future reprisals in the minds of the listeners and, as such, constituted threats of bodily. economic, and financial harm. In addition, much like Haggerty's threat in Farrell's case, to "ruin (him) financially," Haggerty telephoned Sherman's employer in anger and told McVeigh to take drastic actions against Sherman if he repeated his action. This information was immediately communicated to Sherman and of itself was a threat of economic and financial harm because it was intended to be com- municated and its basis was clearly pretextual. Haggerty seized upon Sherman's alleged improper work stoppage as a pretext to show Sherman and others his extreme displeasure with Sherman's dissident activ- ities, including his campaign for Haggerty's office, and to cover an attempt to have Sherman discharged, presently or in the future, because of those dissident activities. The whole meaning of McVeigh's testimony, regardless of whether Haggerty said he "should have been" or "should be" fired, is that Haggerty was incensed and wanted reprisals against Sherman at some time. Haggerty's motive was discriminatory for the pretense of protecting the Union against unauthorized strikes will not stand up. First, Sherman testified that he was interpreting the contract properly and following union policy, and no one testified that he was in error or in bad faith. The stoppage itself was insignificant and happened many weeks before Haggerty's call. McVeigh instinctively knew that if he as an employer discharged a man in those circumstances, his motives would be suspect, as indeed they would and he turned Haggerty's immedi- ate course for the moment, but he knew Haggerty expected radical action in the future if the opportunity presented itself. As a union officer, Haggerty's actions and asserted motivations are unbelievable in the light of his long association and friendship with Sherman. Even if Sherman were in error, normal response at most, it seems to me, would be a reprimand (after some sort of investigation) or removal as a steward, not the supreme penalty of loss of employment, and this at the request of the Union and not the employer who, indeed, had not even known of the offense. Sherman's opposition to Haggerty is the only rational explanation of Haggerty's action toward Sherman. 7 Haggerty also accused McVeigh of letting Sherman run the dairy, referring to Sher- man in terms more insulting than those in Farrell's case. J. ZIAK & SONS, INC. 397 D. Legal analysis and conclusions in Farrell's and Sherman's cases Farrell, Sherman, and the other letterwriters have in their cases the common thread of criticism of their representatives' conduct by reason of their letter to the press, and Farrell and Sherman had, in addition, antagonized Haggerty, an admitted union agent, by other actions, statements, or conduct. Farrell, for example, according to Haggerty, associated with the wrong "guys" and traveled "the wrong road," and Sherman ran for office against Haggerty. These activities were a type of dissident protest which are protected under Section 7 of the Act against employer or union restraint or coercion.8 I have found that Respondent Haggerty threatened Farrell, Sherman, and others with reprisals and attempted to cause Sherman's employer to discriminate against him because of their activities on behalf of a dissident faction of the Union and in opposition to Haggerty. By such conduct Respondents Union and Haggerty violated Section 8(b)(2) and (1) (A) of the Act. E. Al Cantu's case 1. The testimony about Cantu's hiring and firing and the reasons therefor In early 1963, Carmen Cesario, then business agent and trustee of Respondent Union, telephoned Lanny Ziak, officer of Respondent Company with which the Union has a labor agreement on an association basis,9 and asked him whether he needed any one to run vacation routes. Ziak told Cesario that he had "26 weeks of work only . . ." available and to send over the man he was interested in for an interview. Ziak also told Cesario that "On the 14th of October, this man will be through." Cesario also testified, without contradiction, that Ziak said if the applicant proved competent and if Ziak "had the opportunity in September," the man would be retained if work were available. Cesario did not know Cantu at the time he made the telephone call for him but did so because his son, who was a friend of Cantu, had asked him to.10 The above facts are not in dispute and it is also agreed that Cantu was hired by Lanny Ziak on April 15, 1963, as a temporary employee on vacation routes. Cantu was inexperienced as a milk driver. Cantu paid his regular initiation fee and dues to the Union within the time allowed and was initiated in July or August 1963. There is no question about him being a member in good standing at the time of his discharge. Cesario met Cantu for the first time in July 1963 when he visited the Ziak Dairy and talked with Cantu. Cantu testified that after Cesario left he was approached by Union Steward Irving Pilarczyk who commented that he did not know that Cantu and Cesario were acquainted. Pilarczyk also spoke to Lanny Ziak and asked him if Cantu was a friend of Cesario. He said he was informed that he was. Cantu testified that he was called into Ziak's office a few days later and Ziak told him that the steward had asked him if he were aware that Cantu knew Cesario. Ziak said he told the steward that he knew it and that Cantu was Cesario's nephew in order to see if that information, which was not a tact, got back to the Union. Cantu also testified without contradiction, and I credit him, that he had another talk with Ziak in July 1963, in which Ziak said he had a telephone call from Haggerty who told him, "Lanny, you're not too clean yourself hiring a nephew of your ex-business agent." 11 8 Nu-Car Carriers, Inc., 88 NLRB 75, enfd. 189 F. 2d 756 (C.A. 3) ; Roadway Express, Inc, 108 NLRB 874, enfd. sub nom, N.L.R B. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 823, 227 F. 2d 439 (C.A. 10) ; Local 138, International Union of Operating Engineers, AFL-CIO (A. Crestone Com- pany), 118 NLRB 669, enfd. 254 F. 2d 958 (C.A. 2) ; Falstaff Brewing Corporation, 128 NLRB 294, 305, enfd. as modified sub nom. Brewers and Maltsters Local Union No. 6, International Brotherhood of Teamsters, Warehousemen and Helpers of America v. N.L.R.B., 301 F. 2d 216 (C.A. 8) ; Local Union No. 18, International Union of Operating Engineers, AFL-CIO and its agent, George E. Miller ( Earl D. Creager, Inc.), 141 NLRB 512; International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, Local No. 38 and Elmer Davidson, its Business Agent (Al Johnson Construction Co.), 146 NLRB 1627; United Sugar Workers Union, Local 9, affiliated with Interna^ tional Longshoremen's Association, AFL-CIO (American Sugar Company), 146 NLRB 154. 9 Associated Milk Dealers. 10 Lanny Ziak was in Florida recuperating from a heart attack at the time of the hearing in this case. He was not called as a witness and no party sought to take his deposition. "Although Cesarlo was a business agent at the time he helped Cantu get hired at Ziak, he did not have the Ziak Dairy under his jurisdiction. Peter Smith had succeeded Cesario as business agent for Ziak. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about September 10, 1963, Cantu was told by Lanny Ziak that he would be assigned to route 7 permanently. Route 7 was the route open to the last man hired after bidding, pursuant to terms of the contract, for other routes after 11 became vacant. Cantu started on his new route and finally "took over" on or about Octo- ber 15, 1963, from one Ed Lanahan who had been riding with him Company time- cards show that Cantu worked on route 11 through the week ending October 12, 1963, and began working route 7 on or about October 14. On November 21, 1963, Lanny Ziak telephoned Cesario and asked to see him. The two met that day in a restaurant near the plant. Cesario testified that Ziak appeared upset and told him that Haggerty had visited him and told him to fire Cantu. Cesario asked Ziak for the reason and Ziak told him Haggerty wanted Cantu dis- charged on "two counts": first, because of article 2 12 of the contract, and second, because Cantu was Cesario's nephew. Cesario told Ziak that Cantu was not his nephew. He said Ziak could not under- stand why he had been asked to discharge Cantu since he had another driver who he had hired shortly before Cantu and had not been asked to fire him. On November 23, 1963, Ziak told Cantu that Haggerty had demanded his dis- charge. Cantu testified that Ziak told him that ". . . Haggerty was using Article 2 of the contract to get me out" and that the article had never been enforced before. Ziak also stated that the contract was being enforced in this case by Haggerty in order to "get back at Carmen...." Cantu was given a week's notice and discharged on November 30, 1963. The Respondent Company admits that Cantu was dis- charged because the Union demanded it.13 Irving Pilarczyk, steward at the Ziak barn, visited Lanny Ziak in December 1963 at a hospital where Ziak was recovering from a heart attack. Ziak told him that he was told to fire Cantu by Haggerty. Ziak said, according to Pilarczyk, ". . . it was according to some Article in the contract that he was hired after May." The witness said there was some reference in the conversation about Cantu being Cesario's nephew, but he later appeared to change this testimony by stating that Ziak "didn't say anything about Carmen Cesario, he said he just wanted Al Cantu fired " Cesario, Sherman, and others had been nominated for office at the Novemebr 1963 meeting to run in the coming union election which was scheduled for December 18. At the December 12 meeting of the Union, Haggerty mentioned Al Cantu. According to Cesario, Haggerty said that "the previous business agent, ... Cesario put a man to work at Ziak. I went to see Ziak and told him to fire the man ... and I replaced him with a man from Capitol Dairy." Cesario testified that Haggerty also said that Al Cantu was Cesario's nephew.] 4 Cantu also testified about the December 12 meeting and substantially corroborated Cesario. He said that Haggerty told the members that he had taken care of the "Ziak matter" where a man "had been hired that had been sent there by Cesario." Hag- gerty also said, "I guarantee you that that man is not working there any more, I saw to that ... I put one of the Capitol drivers in there." Haggerty also mentioned the supposed relationship between Cantu and Cesario. Cantu, who was completely apolitical as far as union affairs were concerned prior to his discharge, was campaigning for Cesario at the Hawthorn-Mellody Chicago Avenue dairy in the middle of December 1963. Cantu testified that he was introduced to Union President William McNulty, who was also campaigning at the time, by Pete Smith, business agent. Cantu said that Smith told McNulty that Cantu was the man fired by Ziak and that Smith had mentioned it to McNulty before. McNulty said, "Al, I want you to know that this is not the feeling of the Board. This is one man's feeling. Haggerty did this. Nobody else. Just one man." Cantu said he understood and that McNulty commented that Haggerty was "vicious" or "something like that." Secretary-Treasurer Haggerty testified in effect, that Cantu's assignment by Ziak to a permanent route in September or October 1963, at a time when there were unemployed drivers in the unit, was a violation of contract which he brought to Lanny Ziak's attention. Haggerty sent one Gorski, an unemployed Capitol Dairy 12 Article 2 Is set forth in full and discussed below In short , it requires employers to refer to the Union's list of unemployed drivers before hiring new men. 111 permitted some testimony and cross -examination of Cantu about his competency as an employee but this was for credibility purposes because Respondent Company would not have discharged him when it did except for the request. There is nothing in Cantu's testimony or anyone else's about his work that affects his credibility in my opinion 14 Irving Sherman testified that Haggerty said he objected to the way Carmen Cesario had taken care of a "cousin" of his by placing him at Ziak. T. ZIAK & SONS, INC. 399 driver with greater seniority, to Ziak and Ziak's compliance with the agreement by hiring Gorski may have resulted in Cantu's discharge, but Haggerty did not demand it, he said. The clause in the contract allegedly used to implement Cantu's discharge (or Gorski's hire, as the Union would have it) is article 2. This article prior to May 1, 1963, read as follows: The Employer agrees when hiring additional men to refer to the Union's list of unemployed men laid off by the Employer within a period of one year from the date of the vacancy and shall hire eligible men from such list in preference to others. It is further agreed that no man shall be entitled to have his name on the eligible list who has been discharged for cause or who is incompetent in that he is not physically able to perform his duties, has not had at least one year's continuous experience with an employer party to this contract or who had an unsatisfactory performance record. After May 1, 1963, a new contract was executed, with article 2 now changed to read: The Employer agrees when hiring additional men to refer to the Union's list of unemployed men laid off by any Employer within a period of two years from the date of the vacancy, and shall hire eligible men, qualified for the job, from such list in preference to others. The important significant change in the agreement, as far as the issues in this case are concerned, is the addition of the word "any" before the word "Employer" in the May 1, 1963, agreement. In other words, simply stated, prior to May 1, 1963, an employing company had to give preference to its own laid-off drivers, but after May 1, 1963, an employer had to give preference in hire to employees laid off by any employer in the Association. Sometime in September 1963, the Union's executive board decided to issue a letter notifying all employers of the language change in article 2. On or about September 9, 1963, Haggerty sent to all stewards and employers the following letter which was posted in the dairies: In our current Union Contract, an addition to Article 2 reads as follows [At this point the letter sets out the relevant part of the new article 2 verbatim but capitalizes the word "any" before "employer."] When any employer has a vacancy, before filling same, he shall contact the Union office for members who are available for such openings. This protects any member who is bumped where a job or a route is eliminated because of seniority rating for two years in the re-hiring of employees. We hope, and it is MOST IMPORTANT, that this be strictly complied with ... or other action to enforce same will be necessary. Very truly yours, MILK DRIVERS UNION Thomas J. Haggerty Secy.-Treas. The record shows that a number of former Capitol Dairy wholesale drivers were in layoff status in October 1963. Haggerty first described his visit to Lanny Ziak on November 21, 1963, under adverse examination by the General Counsel. He said he asked Ziak to "live up to the contract ... (and) in accordance with Article 2 ... he should have some men who were dumped at Capitol Dairy in his employ in preference to a new man." Haggerty said he asked Ziak if he had any new men in his employ, but he also said that he had received a report earlier from Business Agent Smith (Smith did not testify) that "this man" (Cantu) had been hired. He said he had told Smith at the time to do something about it. Haggerty found out, he said, about 2 or 3 weeks later, that Smith had done nothing despite the fact that Capitol Dairy men with seniority were out of work, and that prompted his visit to Ziak. At first Haggerty could not remember whether Cesario's name was mentioned in his talk with Ziak but then said he thought Ziak brought up the fact that Cesario had brought "this particular individual" into employment. Haggerty then testified that he knew that Cantu had been referred to Ziak by Cesario because Business Agent Smith had told him so. He denied, however, that he told Ziak to fire Cantu because of his connection with Cesario. He also denied that Smith had told him Ziak had hired Ralph Cherne as a new driver and said he never heard of the man before. Haggerty also touched on the Ziak meeting in his testimony as a witness for the Respondent Union. He said he told the members at a December 1963 meeting that he had placed a Capitol driver at work at Ziak, but he denied that he told them 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he had Cantu fired or said that he was Cesario's nephew. Haggerty stated, so it seems, because the testimony is unclear, that at an earlier meeting he had told the members that Business Agent Smith had informed him that a new man was hired at Ziak and that he ordered Smith to "Take care of the situation," because he had Capitol men unemployed . He repeated this information at the December meeting adding that when Smith had not "taken care of the situation within a month, then I informed Mr. Lanny Ziak he wasn't in compliance with the contract and this Capitol man was entitled to get that employment." Under cross-examination Haggerty said that Business Agent Peter Smith had told him 30 days before he had his meeting with Lanny Ziak that Ziak Dairy had hired a man "not in conformity with the contract"; that Smith did not tell him when the man had been hired ; that Smith told him the man had been doing vacation work and was then made a "steady employee"; that Smith knew that men were unem- ployed at Capitol because that dairy was also under his jurisdiction as business agent; that Haggerty got in touch with Ziak when he "heard that the Capitol man was not put on the job"; that Haggerty did not know when Cantu had been initiated into the Union and it would have made no difference to him in the circumstances ; that Hag- gerty did not know whether Cantu had been a "vacation man" before he was given steady employment ; that Haggerty happened to be "visiting around the barn ..." as he visits "any other barn . . ." and while there asked Ziak if "Pete Smith had got him to comply with the agreement "; and that Ziak said "No," and nothing else was said except that the two might have discussed business conditions. Haggerty testified further that Lanny Ziak did not tell him that he would have to fire Cantu to get into compliance with the agreement , or tell him how long Cantu had been employed ; that when Haggerty brought article 2 of the contract to Ziak's attention, Ziak "knew he was in violation"; 15 and that he learned about Cantu's discharge sometime later from Business Agent Smith but that Smith did not tell him what happened to Cantu. Haggerty said that Smith never told him when Cantu was employed but did mention that Carmen Cesario had recommended him. Al Cantu had testified that Haggerty, in the December 12, 1963, meeting, had stated that he would entertain a motion from the floor to eliminate Carmen Cesario's pension and that ". . . he would see to it that Carmen would be kicked out of the union without a pension ." Haggerty denied that he had made such a statement but explained that he did bring to the attention of the membership the fact that Carmen Cesario, as well as another officer of the organization , were being given preferential treatment." President McNulty admitted to a conversation with Cantu at the Hawthorn-Mellody Dairy just prior to the union election, but denied that Haggerty was mentioned in the talk at all. He specifically denied that he told Cantu that his discharge was the action of Haggerty only and not the Union 's executive board. 2. Hiring practices in the industry and the alleged Union's list of unemployed In anticipation of and in an attempt to refute Respondent Union 's defense that Cantu lost his employment as a result of the Union's reliance on the May 1, 1963, agreement, which requires employers to hire from the Union's list of unemployed, General Counsel introduced evidence about employer hiring practices allegedly incon- sistent with the agreement, and evidence purporting to show the nonexistence of a union list. The ultimate purpose of this evidence was to demonstrate that Respond- ents' reliance on the contract in Cantu's case was pretextual. Irving Pilarczyk, union steward at Ziak, testified without contradiction that Ziak hired Ralph Cherne as a route driver in the spring of 1963 and that Cherne had not been a milk driver before hired . Pilarczyk reported to Business Agent Peter Smith that Ziak had hired Cherne and Cantu, and Smith gave the new employees the usual 30-day grace period before collecting their dues. Cherne was still working at the time of the hearing. Lee Hinrichsen , vice president of Respondent Ziak, testified that his practice was to hire drivers from a file of applicants, that said applicants might not be unem- ployed at the time and might actually be working for another dairy at the time. Carmen Cesario testified without contradiction that Lanny Ziak told him in their November 21, 1963, conversation , precipitated by Haggerty 's request to discharge se Lee Hinrichsen , officer of Respondent Ziak, testified that he had heard nothing about firing Cantu under article 2 of the contract before Haggerty visited Lanny Ziak on November 21. J. ZIAK & SONS, INC. 401 Cantu, that Cherne was also a new man and that he was Vice President Hinrichsen's son-in-law. Ziak said that he never had called the Union for men and that none of the 11 drivers employed by him at the time had been referred by the Union. Sherman, steward at Hawthorn-Mellody, testified that within the last 2 or 3 years two or three men were hired at his dairy but only one was referred by the Union. After the posting of the September 1963 letter from the Union, however, a laid-off Capitol driver was hired. James Farrell, steward at Rueter's Dairy, testified without contradiction that in the 3 years he was steward, ending in December 1963, 20 or 30 drivers were hired and only a few were union members. Carmen Cesario was a business agent and trustee until December 1963. He testi- fied without contradiction that 14 or 15 new members on an average were initiated into the Union each month all of whom had obtained employment in the industry before initiation. It also appears that at the November 1963 meeting about 17 new men were initiated. Application cards in evidence also indicate that in October and November 1963, shortly before Cantu's discharge was effected, the Union initiated about 23 new drivers, several of whom began work in October 1963. During October and November there were at least eight unemployed Capitol Dairy drivers. Patricia Harte, Haggerty's secretary and office manager, testified that there were always unemployed milk drivers actively seeking employment in the industry and there was no time in 1963 when there was no list of unemployed, available milk drivers. In regard to the existence of a union list of unemployed drivers as referred to in the contract, Cesario testified that in a meeting of the Union's executive board in June 1963, he suggested that, because of the new contract language, a list of unem- ployed drivers should be created. He said that in October he asked Patricia Harte for the list and was told that she had none. Harte testified that there was and is a list of unemployed and that it is kept and maintained by Donna Naughton, receptionist and switchboard operator at the union office. The mechanics of creating the list, Harte said, are that unemployed drivers "report either to the office or through the business agent that he is available for work That he is out of work We put this man's name and address and experience on a piece of paper, which is kept at the switchboard." Harte said that she herself had received telephone calls from dairies who needed men, from employees who wanted their names placed on the list, and from business agents who had places for men. The list is kept informally on a letter-size piece of paper, and when it is full and a substantial number of names have been scratched off as having been employed, a new list is started and the old one destroyed. She identified the list existing at the time of her testimony and it is in evidence. Harte said that the procedure she described had been in existence since July or August 1963, but that she had essentially the same system on an "informal" basis prior to that time. Her explanation was that prior to July or August 1963, the Union kept the list "on its own" but that after that it was "an article of contract " She said Haggerty told her to keep the list of all unemployed men looking for work because the new contract required a company to call the union office if it needed men. Before that time she said the list was kept as a "convenience." 16 3. Legal analysis, additional findings, and conclusions in Cantu's case A union which has a valid hiring arrangement with an employer may cause the discharge of an employee for securing his employment in violation of the agreement even though the request to discharge and the discharge is for reasons other than the failure to tender periodic dues and initiation fees 17 It may not, however, cause an employee's discharge for some "other" reason, such as his activities on behalf of a rival union or faction, even though its ostensible ground for requesting the discharge 16 Francis Gorny's knowledge of the list was based only on observation from January 1, 1964, when he assumed an office in the Union . Cuiiously enough , however, he indicated that the list sometimes contains the names of "new men seeking work in our organization " 17Loeal 357, International Brotherhood of Teamsters , Chauffeurs, Waieiioitsenien and Helpers of America (Los Angeles-Seattle Motor Express ) v. Al L R B., 365 U S 667 , Bricklayers, Masons and Plasterers' International Union of America, Bricklayers, Masons, Marble Masons, Tile Layers and Terrazza Workers Union No 28, AFL-CIO (Plaza Builders, Incorporated ), 134 NLRB 751 7 89-730-G G-vol 152--27 402 LECISIONS OF NATIONAL LABOR RELATIONS BOARI) is a lawful one, for the Act is violated if discrimination is the real motive for the discharge, and it is no defense that at the same time there existed a justifiable ground for discharge.ls The issue, therefore, is whether the Union invoked the contract 19 against Cantu because Respondent Haggerty wanted to suppress dissident activity in the Union and whether Respondent Ziak had reasonable grounds to believe that such was the case I find that article 2 was a pretext for the discharge of Al Cantu seized upon by Haggerty in order to suppress dissension and opposition to him and that Respondent Ziak knew it. I have found in the Farrell and Sherman cases that Haggerty reacted against them with threats and an attempt to discriminate because they opposed him in the Union. Cesario opposed Haggerty by refusing to sign a financial report and by running for office, and Haggerty reacted against Cesario. Although I do not find that he said he would cut Cesario off without a cent of pension, as Cantu said, I find that Haggerty did make efforts to reduce Cesario's pension. Haggerty's animus toward Cesario is also apparent in his marked references to Cesario in describing Cantu's discharge to the membership. Haggerty knew that Cesario had gotten Cantu his job with Ziak and he thought or pretended to think that Cantu was related to Cesario in some way. His actions in cutting Cantu off from employment and announcing it with implications of nepotism to the membership just before the union election was intended to be a reprisal against Cesario, a warning to other dissidents, and a show of power on Haggerty's part. Haggerty's description of what he told the December meeting of the Union about securing work for a Capitol driver and his account of his meeting with Lanny Ziak left me with the distinct impression based on the accounts themselves and Haggerty's demeanor that the whole truth was not contained in his story. The testimony was stilted and obscure. I do not believe Haggerty talks or acts as formally as he said he did, and, as a minimum, I find that he held back a substantial amount of informa- tion I credit Cantu's and Cesario's testimony that, in the December 12 meeting of the Union, Haggerty told the membership that Cesario had placed a man at Ziak and that Haggerty had him removed and replaced with an unemployed Capitol driver. I also find that Haggerty indicated, whether he used the word "nephew" or not, that there was a relationship between Cantu and Cesario. As set forth in greater detail above, Haggerty testified that his meeting with Ziak on November 21, 1963, was merely for the purpose of bringing him "into compli- ance" with the agreement. He denied that he told Ziak to fire Cantu because of his connection with Cesario, said the thought that Ziak first mentioned that Cesario had obtained employment for Cantu, whom he described as "this particular individual," implying that the employee's name escaped him because the whole incident was routine. Cesario testified that in a meeting on November 21, 1963, Lanny Ziak appeared upset and told him that Haggerty had asked him to fire Cantu because Cantu was Cesario's nephew and because of the contract I credit this testimony. Cantu testified that Ziak told him that Haggerty had demanded his discharge and was using article 2 as an excuse to get back at Cesario I credit this testimony. I find, therefore, that Haggerty asked Ziak to fire Cantu, that he mentioned both Cesario and Cantu by name in the conversation and referred to some relationship he thought existed between the two. Haggerty appears to have been the only union official interested in obtaining Cantu's discharge and this is some evidence to support an inference that his interest in Cantu's elimination was personal , not official . Peter Smith was business agent for the Ziak Dairy and he also had the nroblem of the unemployed Capitol drivers because they too were under his jurisdiction Haggerty said he learned from Smith that Ziak had hired a new man and he told Smith to enforce the agreement. Smith did nothing, however, and Haggerty took action on his own. Union President "'The Radio Officers Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) V. N L R.B., 347 U S 17, 41, 42, 43, N L R.B. v. Mechanics Educa- tional Society of America, Local 6 (Special Machine and Engsneertng Co ), 222 F 2d 429 (CA. 6) See also cases in footnote 8, supra 19 The complaint alleged that the execution and maintenance of the May 1, 1963. agreement was an unfair labor practice of itself. The theory seems to have been that since article 2 required employers to hire from the list of unemployed drivers and pro- vided that an unemployed driver must have had a year's experience to get on the list, union men were being preferred because the Union had had union -security contracts with the employers for many years. On the Union's motion at the close of General Counsel case. I dismissed this allegation, and it appears to have been abandoned by General Counsel. J. ZIAK & SONS, INC. 403 McNulty admitted to Cantu that Haggerty, and no one else on the Union's executive board, was responsible for Cantu's discharge Cantu's account of his conversation with McNulty while McNulty was campaigning for office had the ring of truth, and I credit it. McNulty knew much more about the A] Cantu case at the time he was talking with Cantu than he told us. He was vague about who told him that the man passing out cards was Al Cantu and, if it were Business Agent Smith, vague about what he said. He said, however, that as soon as Smith mentioned Cantu's name, McNulty knew he was the man "out at Ziak," but despite this positive knowledge he was obscure about details of the case. He had heard that Cantu was laid off and, although he had heard this at the union office, he could not remember who he had heard it from. It should be recalled that Cantu's discharge was announced by Haggerty at a union meeting only a few days before the McNulty-Cantu conversa- tion. All in all, as I have indicated, President McNulty appeared to be loyally cover- ing for his colleague, Haggerty. I found his comment, "I knew he didn't have a grievance against me," referring to Cantu and his talk with him, a pretty good indication that McNulty knew who Cantu had a grievance against and what its basis was. The article of the contract invoked, the Union's practice under the contract, and the treatment of other persons similarly situated indicate that Haggerty's reliance on the agreement was a pretext. Cantu was hired on April 15, 1963, prior to the effective date of the May 1, 1963, agreement. At the time Cantu was hired an employer was only required to refer to the Union's list of employees laid off by the hiring employer. There is no evidence that Cantu was hired improperly for there is no evidence that there were any laid-off Ziak drivers at the time In any event, the record is fairly clear that, at least before May 1, 1963, many employers, including Ziak, hired without reference to the Union's list, although Harte's testimony shows that there were always unemployed drivers available for work. Cantu, therefore, was hired legally and to apply the contract to him would be to make a retroactive application of new article 2. Not only would this be improper but there is no evi- dence of retroactive application in any other case. The Union contends, however, that Cantu was a temporary employee hired for vacation work, and that the language of the contract did not come into play until he was hired as a "permanent" employee in October 1963. A defect in this argument, however, is that the contract makes no distinction between temporary and permanent employees but states "when hiring addi- tional men." If Cantu were hired illegally, he was hired illegally before the May 1, 1963, agreement went into effect. But at that time, as indicated, there were no unemployed Ziak drivers on the Union's list, and the employment was proper. Moreover, if it were not, the very lapse of time before action was taken would make Haggerty's asserted reason suspect. Assuming Cantu's original employment was proper, the Union's argument that the violation of contract occurred when he was made permanent is vitiated not only by the failure of the contract to make this distinction, but also by the Union's treat- ment of employee Cherne. Ralph Cherne, the son-in-law of Ziak Vice President Hinrichsen, was hired by Ziak in February 1963 on Hinrichsen's recommendation. Cherne had no previous experience as a milk driver and, like Cantu, was hired for vacation work. Cherne was made a permanent driver about the same time as Cantu, and the Union has never requested his discharge. The record shows that there were unemployed milk drivers in addition to Gorski, who took Cantu's place, at this time. John Gerrity, senior foreman at Capitol Dairy, testified that 12 men were laid off in 1963. Of these, one man was laid off on November 16, another on November 24, and a third on November 26. In addition, Harte testified that there were always unemployed men on the list. It appears, therefore, that if Cantu was holding his job in violation of the contract, so was Cherne. The Union knew that Cherne and Cantu were employed for the steward reported it to Business Agent Smith and the men were initiated into the Union after the payment of dues and initiation fees. I do not credit Haggerty's statement that Cantu was the only new employee he knew had been hired at Ziak, that Cantu was the only person mentioned by Lanny Ziak in their conversa- tion, that Cantu was the only person reported to him by Business Agent Smith, and that he had never heard of Cherne. As far as the Union Respondent is concerned there is evidence that article 2 was not strictly complied with in other respects, even after May 1, 1963, when the con- tract was amended. Although I find there was some kind of a union list maintained on an informal basis after July or August 1963 at the union hall and also that Hag- gerty did write the September 9, 1963, letter to the employers and stewards urging strict enforcement of the agreement, the record shows the initiation into the Union of 23 or more new drivers in October and November 1963, shortly before Haggerty demanded Cantu's discharge, and at a time when there were a substantial number of 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unemployed Capitol drivers, who might, according to Harte, take retail jobs. The suggestion in Respondents' brief that there is a contract distinction between retail and wholesale jobs, the latter being more lucrative and more in demand, is not borne out by the contract which requires the employers to notify the Union before filling any job. The employers apparently have been hiring off the street with union aware- ness, at least in filling retail jobs, and if the Union wishes to exclude wholesale routes from this practice, it can seek amendment of the agreement. But without a contract clause, and in the presence of the practice of hiring new retail drivers when old drivers are unemployed, its contention that it was merely seeking compliance with the agreement in Cantu's case is weakened further. The Union had a legal right to secure strict compliance with the labor contract, and, although I have no reason to doubt that the September 1963 written instructions to employers and stewards was a serious, but belated, effort to tighten enforcement, in my opinion, based on the whole record, its enforcement in Cantu's case was discriminatorily motivated, and I so find. Respondent Employer Ziak knew or had reasonable basis for believing that Hag- gerty's reliance on the contract was a pretext. In addition to the facts set out above, such as Cantu's hire before the effective date of the May 1, 1963, agreement, and the retention of Cherne in a permanent job with union knowledge, Lanny Ziak told both Cesario and Cantu himself that article 2 was an excuse used by Haggerty to strike back at Cesario. In conclusion, I find that by discharging Al Cantu at the request of Secretary-Treas- urer Haggerty, agent of Respondent Union, the Respondent Company discriminated against him in violation of Section 8(a) (3) and (1) of the Act, and that by causing such discrimination by the Respondent Company, the Respondent Union violated Section 8(b) (2) and (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Respondent Company and other employers set forth in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent Haggerty , Respondent Union, and Respondent J. Ziak & Sons, Inc., have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As to Respondent Haggerty, who is a respondent in the Sherman case only (Case No. 13-CB-1547), it will be recommended that he cease and desist from threatening employees with economic , financial, and bodily harm because of their activities on behalf of a dissident faction of the Union , and cease and desist from attempting to cause employers to discharge employees or otherwise discriminate against them because they engage in activities in behalf of a dissident faction of the Union. It will also be recommended that the Union, which is a respondent in the Farrell and Sherman cases (Cases Nos. 13-CB-1540 and 13-CB-1547), also cease and desist as aforesaid. As to the Union, I shall, in addition, recommend that it cease and desist from causing or attempting to cause J. Ziak & Sons , Inc., or any other member of Associated Milk Dealers, to discharge employees because they are related to or allied, sympa- thetic, or friendly with a union dissident, or believed to be such, or in order to re- taliate against dissidents. As to Respondent Company, I shall recommend that it be ordered to cease and desist from discharging employees on the same basis. It will also be recommended that Respondent Company offer Al Cantu immediate and full reinstatement to his former of substantially equivalent position , without prejudice to seniority or other rights and privileges , and that the Respondent Union notify the Respondent Company, in writing , and furnish a copy to Cantu, that it has withdrawn its objections to his employment by the Respondent Company and requests the Company to reinstate him. Since it has been found that Respondent Union and Respondent Company are both responsible for the discrimination suffered by Al Cantu, it will be recommended that they jointly and severally make him whole for the loss of pay he may have suffered by reason of the discrimination against him , by payment to him of a sum of money equal to that which he would have earned from the date of the discrim- ination against him to the date of the Respondent Company's offer of reinstatement less net earnings, and in a manner consistent with Board policy set out in F. W. J. ZIAK & SONS, INC. 405 Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The Respondent Union shall not be liable for any backpay which may accrue for the period begin- ning 5 days after it notifies the Company and Al Cantu as aforesaid. It is also recommended that the Company make available to the Board, upon request, pay- roll and other records to facilitate computation of the amount of backpay due. On the basis of the foregoing findings, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. J. Ziak & Sons, Inc., Rueter's Dairy Company, Inc., and Hawthorn-Mellody Farms Dairy are employers engaged in commerce within the meaning of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Al Cantu, thereby encouraging membership in Respondent Union, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By causing the Respondent Company to discriminate against Cantu in violation of Section 8(a)(3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) and (1) (A) of the Act. 5. By threatening employees with bodily, economic, and financial harm and attempting to cause the discharge of another employee because said employee had engaged in activities protected by Section 7 of the Act, Respondent Union and Hag- gerty have engaged in and are engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and Section 8(b)(2) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above-findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, it is recommended that: A. Respondent Company, J. Ziak & Sons, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in Respondent Union by discharging employees or in any other manner discriminating in regard to the hire or tenure of employment or any term or condition, except to the extent permitted by the proviso to Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act 2. Take the following affirmative action which will effectuate the policies of the Act. (a) Offer Al Cantu immediate reinstatement to his former or substantially equiv- alent position without prejudice, and jointly and severally with Respondent Union make him whole for any loss of earnings suffered as a result of the discrimination against him in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to compute the amount of backpay and the right of reinstatement. (c) Post at its Chicago, Illinois, plant, copies of the attached notice marked "Appendix A." 20 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by the Respondent Company's repre- sentative, be posted by it 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 steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. 21 In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at the same places and under the same conditions as set forth in (c) above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's attached notice marked "Appendix B." [Board's Appendix B substituted for Trial Examiner's Appendix B.] (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of receipt of this Recommended Order, what steps it has taken to comply herewith.21 B. Respondent Union, Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, their officers, agents, and representatives, and Respondent Thomas J. Haggerty, shall: 1. Cease and desist from: (a) Threatening employees with bodily, economic, or financial harm, and causing or attempting to cause any employer member of Associated Milk Dealers under contract with the Union to discriminate against employees because said employees protest or oppose the conduct of the Union or its officers, or are believed to be re- lated to or associated, allied, or sympathetic with those opposing or protesting such conduct or otherwise engage in activities protected by Section 7 of the Act. (b) In any like or related manner restraining or coercing employees of Associated Milk Dealers in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Notify J. Ziak & Sons, Inc , in writing, that it withdraws all objection to the employment of Al Cantu, with copy to Al Cantu individually, and that it requests the Company to offer him immediate and full reinstatement to his former or substan- tially equivalent employment. (b) Post in the Respondent Union's business offices and meeting halls, copies of the attached notice marked "Appendix B." 22 [Board's Appendix B substituted for Trial Examiner's Appendix B.] Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by an authorized representative of Respondent Union and by Respondent Haggerty, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days there- after, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish to the Regional Director signed copies of the aforesaid notice for post- ing by each employer member of Associated Milk Dealers, who is willing, in places where notices to employees are customarily posted. Copies of said notice, to be fur- nished by the Regional Director, shall, after being signed by the Respondents, as indi- cated, be forthwith returned to the Regional Director for disposition by him. (d) Notify the Regional Director, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps they have taken to comply herewith.23 3. In addition, Respondent Union shall take the following affirmative action designed to effectuate the policies of the Act: Jointly and severally with Respondent Company make Al Cantu whole for any loss of pay he may have suffered by reasons of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." zi In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read* "Notify said Regional Director, in writing , within 10 days from the date of this Order , what steps Respondent has taken to comply herewith." 22 See footnote 20, supra. 23 See footnote 21, supra. APPENDIX A 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 you that. WE WILL NOT encourage membership in Milk Drivers' Union, Local 753, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, by discharging employees or in any other manner discriminating in regard to hire or tenure of employment or any MOLE OLDSMOBILE , INC. 407 term or condition of employment, except to the extent pemitted by the proviso to Section 8(a)(3) of the Act, as modified by the Labor-Management and Dis- closure Act of 1959. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with Milk Drivers' Union, Local 753, Interna- tional Brotherhood of Teamsters Chauffeurs, Warehousemen & Helpers of America, make whole Al Cantu for loss of pay suffered as a result of discrimina- tion against him. WE WILL reinstate Al Cantu to his former position without prejudice to his seniority or other rights and privileges he previously enjoyed. I. ZIAK & SONS, INC., 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, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any questions concerning this notice or com- pliance with its provisions. Mole Oldsmobile, Inc. and Local 868, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. Case No. 29-CA-41 (formerly Case No. 2-CA- 9675). May 5,1965 DECISION AND ORDER On August 14, 1964, Trial Examiner John F. Funke issued his Deci- sion in the above-entitled proceeding, finding that 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 Trial Examiner's Deci- sion. Thereafter, the Respondent and the General Counsel filed excep- tions as the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner except as modified herein.2 'In adopting the Trial Examiner's conclusion that Respondent violated Section 8(a) (5) of the Act, we rely additionally on the fact, as supported by the record, that Respondent is a successor to Murray Oldsmobile, Inc. See Rohtik, Inc., 145 NLRB 1236; Witham Buck, Inc., 139 NLRB 1209. 2 The Respondent's request for oral argument is hereby denied as the record , Including the exceptions and briefs , adequately presents the issues and the positions of the parties. 152 NLRB No. 36.