Int'l Brotherhood of Teamsters, Local 377

INT'L BROTHERHOOD OF TEAMSTERS, LOCAL 377 1313 WE WILL NOT change the employment status of employees by granting them full-time employment or changing their job duties so as to induce them to forgo union membership or activities. WE WILL NOT discourage membership in Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and helpers of America, or any other labor organization by discriminatorily discharging or laying off any of our employees. WE WILL NOT refuse to bargain collectively with Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of all the employees in the bargaining unit described above. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. THURSTON MOTOR LINES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele- phone 534-3161. International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local Union No. 377 and All- American Stamp and Premium Corporation of New York, Charging Party International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, Local Union No. 377 and Hath- away Bakeries Division, Seaboard Allied Milling Corporation, Charging Party International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local Union No. 377, and Ralph Lucente and National Tea Company, Charging Party. Cases 8-CC-230, 239, 231, and 058. June 24,1966 DECISION AND ORDER On April 14, 1966, Trial Examiner George L. Powell issued his Decision in the above-entitled proceeding, finding that Respondents 159 NLRB No. 86. 243-084-67-vol. 159-84 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had engaged in and were engaging in certain unfair labor practices within the "meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondents had not engaged in certain unfair labor practices. Thereafter, the General Counsel filed exceptions to the Decision and a brief. 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 [Chairman McCulloch and Members Fanning 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, the brief, and the entire record in this case, and hereby adopts the findings, conclusions,' and recom- mendations 2 of the Trial Examiner, with the following additions and modifications. Contrary to the Trial Examiner, we find that at all times herein material Lucente was the Respondent Union's agent and that the Respondent Union is responsible for all the strikes here involved.3 The Trial Examiner's reliance upon United Mine Workers of Amer- ica v. Gibbs 4 is misplaced. That case involved an action for dam- ages under Section 303 of the Labor Management Relations Act of 1947, as amended, and as a common law tort under State law. As the State claim was heard under the pendent jurisdiction doctrine in a Federal forum, the court could not, pursuant to Section 6 of the Norris-LaGuardia Act, fasten responsibility upon the labor organi- zation for the acts of its agents "except upon clear proof" of participation, authorization, or ratification. Our own Act, to the contrary, provides that a union's responsibility for the acts of its mem- bers and officers is to be measured by reference to ordinary doctrines of agency, rather than the more stringent standards of Section 6. As our Act establishes "a preponderance" as the standard of proof, the General Counsel's exceptions have merit, and we agree with him 'In the absence of exceptions , we adopt pro forma the finding of the Trial Examiner that the Respondents violated 8(b)(4)(1 ) and (ii ) (B) of the Act insofar as they were responsible for the picketing which occurred at the premises of the National Tea Com- pany and the Hathaway Bakeries. 2 The suggested remedial provision requiring disciplinary action to be taken against Lucente by the Respondent Union is without warrant in the statute , appears to us to be punitive , and is therefore not adopted. 3 The Trial Examiner found it unnecessary to decide other than that Respondent Union was responsible for the first strike and Respondent Lucente for the third On the record before us, however , we find sufficient evidence to hold both Respondents liable for the second and third strikes. 4 383 U.S. 715 (decided March 28, 1966). INT'L BROTHERHOOD OF TEAMSTERS, LOCAL 377. 1315 that responsibility of the Respondent Union for the acts of its agents is governed by the standards expressed in our decision in Interna- tional Longshoremen's and Warehousemen's Union (Sunset Line and Twine Company).5 The facts establish that Respondent Lucente participated actively in all three strikes and acted as Respondent Union's spokesman at the situs of the disputes. Though, as found by the Trial Examiner, Lucente was not specifically empowered to call a strike, this does not compel the conclusion that he was therefore not the Union's agent.° To the contrary, the evidence shows that Lucente was elected by the members in his bargaining unit to represent them, and did represent them at contract negotiations conducted at Youngstown, Ohio and Chicago, Illinois, making specific contract proposals. He also was empowered to appoint the members of the bargaining committee. Finally, he acted as the Union's representative in handling griev- ances for the drivers and garagemen. Additional evidence of the Union's responsibility for the acts of Lucente as agent is found in its active participation in all the strikes; its solicitation of strike sanction from the International Union for the second strike; its reluctance to take any disciplinary action against the purported culpable leaders of the "wildcatters"; and its failure strongly and affirmatively to disavow any of the strikes. From the foregoing, the conclusion is clear that Lucente's acts were within the scope of his general authority as agent and Respond- ent Union was therefore responsible for his conduct.' As, on the record before us, we are satisfied that the General Counsel has satisfied his burden in proving the acts of the agent to be the acts of the principal, we shall, to the extent indicated, hold both Respondents responsible for the second and third strikes. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Delete paragraph 2(a) and reletter the subsequent para- graphs accordingly, and delete the same from the notice attached to the Decision marked "Appendix A."] 5 79 NLRB 1487. ° Combustion Engineering, Inc., 130 NLRB 184, 200. 7 Ibid. ; and see Sunset Line and Twine Company, supra, 1509-10. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This consolidated case was tried in Youngstown, Ohio, before Trial Examiner George L. Powell on November 17 and 18, 1965. Respondent Union made oral argument and a brief from the General Counsel was received December 20, 1965. The question is did Respondent Union and Respondent Lucente violate Section 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b) (4) (i) and (u) (B) of the Act.' The four questions to be resolved in these proceedings are as follows: (1) Did Respondent Union picket National Tea, an employer with which it did not have a dispute, without displaying any signs show- ing with whom it had a dispute?; (2) Did Respondent Union order and request employees of neutral National Tea and Herriott, to cease working for their employ- ers in order to force then employers to cease doing work with McNicholas?; (3) Did Respondent Union in furtherance of its dispute with McNicholas, threaten and coerce Hathaway Bakeries by stating it would encounter trouble if it continued shipments to National Tea?, and (4) Is Respondent Union responsible for acts of its members and steward, Ralph Lucente. For the reasons set out below I find the answers to these questions to be in the affirmative for the first three questions and in the negative for the fourth. The complaint in the case was based upon charges filed against Respondent Union, on December 8, 1964, Cases 8-CC-230 and 231, on March 15, 1965, Case 8-CC- 239; and charges filed against Respondent Union and Respondent Lucente in Case 8-CC-258 on June 29, 1965. The latter charge was amended on September 10, 1965. The complaint and an order consolidating cases was issued by the Regional Director on September 17, 1965. Respondent Lucente did not file an answer to the complaint 'as required by Sec- tion 102.20 of the Board's Rules and Regulations nor did he appear at the trial. Accordingly the General Counsel moved for judgment on the pleadings, insofar as Respondent Lucente was concerned, which motion I granted. Therefore the scope of this Decison is limited to the allegations of the complaint relating in whole or part to the Respondent Union. The remedy section, order and notice will include Respondent Lucente. Upon the entire record including the oral argument of Respondent Union, the brief of General Counsel and my observation of the demeanor of the witnesses as they testified, I believe the General Counsel has proved the essential allegations of some of the complaint and I find Respondent Union has violated Section 8(b)(4)(1) and (ii) (B), of the Act for the reasons hereinafter set forth. FINDINGS OF FACT AND CONCLUSIONS OF LAW I find as facts the allegations of the complaint as to the nature and extent of the businesses of the various charging parties, admitted by the answer, summarized as follows: (1) J. V. McNicholas Transfer Company, herein called McNicholas, is an Ohio corporation engaged in interstate and intrastate transportation of freight from Youngstown, Ohio; (2) All-American Stamp and Premium Corporation of New York, herein called All-American, was a former New York corporation wholly owned by National Tea. Through National Tea's Youngstown Division, it operates a warehouse at Youngstown, Ohio, and several retail grocery stores in the States of Ohio, Pennsylvania, and West Virginia, under the trade name of "Loblaw's"; (3) National Tea Company, herein called National Tea, is an Illinois corporation which as of January 4, 1965, began operating that business formerly operated by All- American; (4) Hathaway Bakeries Division, herein called Hathaway, is an operat- ing division of Seaboard Allied Milling Corporation, a Delaware corporation pro- ducing baked goods at its plant in Youngstown, Ohio; and (5) Herriott Trucking Company, Inc., herein called Herriott, is an Ohio corporation trucking general commodities in interstate transportation. In the course of its business, McNicholas regularly transports baked goods from Hathaway Bakeries to National Tea's Youngstown Division warehouse. Consider- ing outflow, McNicholas and Herriott, in the course of their business, transport goods from National Tea's Youngstown Division warehouse to National Tea's retail grocery stores. 'Insofar as pertinent, Section 8(b) provides that it shall be an unfair labor practice for a labor organization or its agents- a s s * a s (4) (1) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike, . . . or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is- t E k s e i (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in products of any other producer, . . . or to cease doing busi- ness with any other. . . . INT'L BROTHERHOOD OF TEAMSTERS, LOCAL 377 1317 I find McNicholas, All-American, National Tea, Hathaway Bakeries, and Herriott to be at all times material herein persons engaged in commerce and/or in an indus- try affecting commerce within the meaning of Section 2(6) and (7) of the Act. I also find as a fact the allegations of the complaint, admitted by the answer, that Respondent Union is, and has been at all times material herein, a labor organi- zation within the meaning of Section 2(5) of the Act. National Tea 2 at its Youngstown Division warehouse, coordinates the flow of goods from the warehouse to its various retail stores in Ohio, Pennsylvania, and West Virginia. The property involved contains the warehouse and the administra- tive offices of National Tea. As this property is surrounded by a 10-foot high wire fence, gates are provided for ingress and egress. The General Counsel introduced into evidence, as General Counsel's Exhibit 2, a plat of the property showing the various gates which were given numbers at the hearing for identification only. For example, gate 1 is the only entrance to the shipping area through which motor vehicle traffic is possible. Accordingly, this is the gate used by trucks in delivering goods to the retail stores from the warehouse as well as by trucks making deliveries to the warehouse. National Tea's warehouse employees use gates 1 and 3 to enter the premises wheaeas the office employees use gate 2. But the gates are not solely for these persons. Although All-American was dissolved as a corporation on December 31, 1964, its owner National Tea continued the operations. Before December 6, 1964, all goods taken from the warehouse to the various retail stores were hauled by National Tea's own truckdrivers. It had approximately 108 drivers and 15 garage employees. These employees were represented by the Respondent Union which had a collective- bargaining agreement expiring on December 5, 1964. The parties stipulated that on or about November 12, 1964, each truckdriver employed by National Tea at the Youngstown warehouse received a letter from Nat Malt, vice president, informing him that "effective December 6, 1964, the J. V. McNicholas Transfer Company will handle delivery of products in the Loblaw's [National Tea's] Youngstown Warehouse, as well as performing garage services. Therefore, effective December 6, 1964, your employment with Loblaw's [National Tea] will be terminated, since your services will no longer be required. The J.V. McNicholas Transfer Company has agreed to employ Loblaw's [National Tea's] employees displaced from work in order of their seniority to the extent that addi- tional employees are needed by that company to perform necessary services for our company " The letter concluded with a statement that those who wished to apply for employment with McNicholas should do so as soon as possible. McNicholas began negotiating with Respondent Union for a collective-bargaining agreement in November 1964 with respect to the transportation business formerly done by National Tea. During the course of the negotiations, a dispute arose over the num- ber of former National Tea drivers McNicholas would take on. The latter agreed to hire as many of the former drivers as it felt was necessary to carry out the delivery operations. John Angelo, secretary treasurer, for Respondent Union stated to James McNicholas, vice president of McNicholas, at a meeting held on December 5, 1964, "You are going to use all of the people or none of them." McNicholas admitted that the Respondent Union had advised him that they were calling a [December] strike against him. Later in the evening of December 5, 1964, James Treiber, warehouse superintendent for National Tea, received a tele- phone call from Joe Sammartino, business agent for Respondent Union. Sammar- tino asked Treiber if he knew that there was going to be a strike at the National Tea warehouse. Treiber stated he had not heard of one and asked if there would be a problem with the warehouse employees working, to which Sammartino replied "they will not be crossing the picket lines." Treiber later asked Zerbonia, the ware- housemen's shop steward, if the warehousemen would be coming to work. Zer- bonia's reply was that he had been told that they were not to cross the picket line. Zerbonia told Treiber that he was going to notify as many of the warehousemen as were scheduled to report to work the next day that they should not come to work. On December 6, 1964, the McNicholas drivers began striking and picketing at gates 1, 5, 6, and 7. From 30 to 50 men gathered at gate 1 while 1 or 2 automobile carloads of pickets stationed themselves at the other entrances. Those picketing at gate 5 carried a sign bearing the caption "on Strike. Truckdrivers Local 377." 2 National Tea and its wholly-owned subsidiary, All-American are referred to herein as National Tea. References to National Tea in these proceedings relate only to operations at its Youngstown Division warehouse. 1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The strike spread to the plant of Hathaway, which is not located on the warehouse property, when McNicholas' drivers began driving back and forth in front of it on December 6, 1964. As noted earlier, all of Hathaway's baked goods goes to National Tea. John Morgan, plant manager for Hathaway, credibly testified that on the evening of December 5, they learned through one of their drivers that there was "grave danger" of the strike by McNicholas' drivers as of midnight. However, picketing did not commence until Sunday morning, December 6, when two cars holding approximately four men each commenced driving back and forth in front of the bakery. These cars were manned by former National Tea drivers. On the same Sunday morning Bill Gaw, business agent for Respondent Union, spoke to Morgan telling him (in Morgan's words) "We were all right as long as we didn't attempt to move any merchandise out." Morgan asked him what the real problem was and was told "it revolved around the failure to hire approximately 40 of the former Loblaw's drivers by McNicholas." He was told "If McNicholas would agree to take on the 40 drivers . they would immediately call off the strike." Later that afternoon Sammartino told Morgan substantially the same thing as had Gaw. On the following day, Monday, December 7, 1964, Morgan telephoned Angelo, secretary-treasurer of Respondent Union, asking for permission to ship the perishable merchandise to National Tea's stores by common carrier or by some- one other than McNichols' drivers. Angelo said he would take it under advisement but never called back. Picketing remained in front of Hathaway's until Wednesday noon. Morgan testified that Hathaway lost approximately $15,000 worth of baked goods which had been produced prior to the strike but which had not been moved out of the plant. John Ring, personnel manager for National Tea, credibly testified that he saw cars parked on Hathaway property on December 6 and 7, 1964, with signs which read "on strike." On Monday, December 7, about 9:30 a.m., Ring took pictures of the pickets at various entrances to the Youngstown warehouse of National Tea. At this time the picket signs stated "On strike, truck drivers Local 377." Later that afternoon, the signs were changed by the addition of lettering at the top of the signs with the following "J. V. McCo." or "McNicholas." Pickets remained at all entrances to the warehouse until December 11, 1964. During the strike, none of the ware- housemen employed by National Tea reported for work. Vice President Malt, of National Tea telephoned Sammartino, trustee and busi- ness agent of Respondent Union, during the strike asking why his premises were being picketed. According to Malt, Sammartino replied, "There was no problem between the Union and National Tea Company. Rather it was between the Union and McNicholas. We were going to be the victim of their dispute." Thus ended the first strike. The Second Strike On March 11, 1965, the McNicholas drivers again struck. This strike was in protest of the discharge of five drivers by McNicholas. Angelo Sammartino told McNicholas that he should put the discharged drivers back to work and then take the discharges through the grievance procedure which was one thing the negotiators had agreed to. And even before the strike started McNicholas was told by the Respondent Union's officers, Angelo, Schwartz, Sammartino, and Seidita, that if he did not rehire the drivers there would be trouble. McNicholas, however, testified that Respondent Union officers contended that this second strike was an unauthor- ized work stoppage, that they were unable to get the drivers to go back to work until the discharged drivers were put back on schedule and that they had been try- ing to get the men to go back to work. Angelo called it a "wildcat" or unauthor- ized . strike. Between March 11 and 16, 1965, the drivers stationed themselves at National Tea's warehouse gates 1, 5, and 6. They were, "Mainly sitting in their cars," but got out ` on occasion to go back and forth between cars." Ring, personnel man- ager of National Tea, took photographs of the pickets on March 11, 12, and 13, at various times of the day. These photographs indicate that no signs were carried by the pickets. None of the drivers reported to work during this strike. During the strike McNicholas did meet with officers of Respondent Union, Angelo, Sammartino, Schwartz, Seidita, O'Neill, and Brott, and Passalaqua, an officer of the International Union with which Respondent Union is affiliated. Respondent Lucente, the shop steward, and the drivers' committee were also pres- ent. During the course of the meeting both Angelo, "the spokesman for the group," and Passalaqua stated that McNicholas would have to, put the discharged drivers back to work in order to end the strike. Angelo testified that "It wasn't INT'L BROTHERHOOD OF TEAMSTERS, LOCAL 3 7 7 1319 that I was in accord as to what they were doing, I was trying to do everything within our power to get these people back to work. That is exactly what happened. I did not succeed in it." The drivers told him "Look, we are not going to work until these people go back." Angelo took Passalaqua and Schwartz from the Joint Council with him to the picket line and asked the strikers to go back to work in front of them. He first introduced them to the strikers as being from the Joint Council. The striking drivers said, "No dice." Passalaqua then said, "There is nothing we can do." They then went to the office and met with McNicholas, as set out above. McNicholas was earlier told by William Presser, an International officer, that Respondent Union had requested strike sanction. National Tea's warehousemen did not report to work on March 13, 1965, at the regular time of 7 a.m. Treiber telephoned Angelo telling him of the situation. Angelo pleaded ignorance. Treiber then asked the warehousemen's steward Zerbonia. Zerbonia told Treiber that he understood from Angelo that the men were not to cross the picket line. Later on Respondent Lucente and Zerbonia telephoned Angelo from inside the warehouse at Treiber's suggestion. After talk- ing with Angelo, the warehousemen continued to refuse to cross the picket line and did not report for work. During the March strike pickets were observed talking to truckdrivers seeking to make deliveries at the warehouse following which the drivers left the scene. On a normal day 60 trucks would make deliveries to the warehouse. Several of these incoming drivers did not make their, deliveries' after speaking with the pickets. The second strike ended on March 16 or 47, 1965, and thereafter on March 19, 1965, McNicholas ' and Respondent Union entered into a collective-bargaining agreement retroactive to December. 6, 1964. The Third Strike The third strike lasted 5 days from Friday, June 25, 1965, until Wednesday, June 30, 1965. The cause of the strike appeared to be the grievance pro- cedure in general and Respondent Lucente's dissatisfaction with the amount of time it took to have a grievance processed. McNicholas had no word from any of the officials of the Union prior to this work stoppage, but did receive a call from his dispatcher at the National Tea warehouse at 10 or 10:15 p.m. that Lucente had been out there commenting that "He wasn't sure that anyone was going to work that night." Later in the evening it became apparent to McNicholas that his drivers were not going to work that night so he telephoned Angelo to find out, "what this was all about." Angelo told McNicholas that he knew nothing about it at that time but later on that night Angelo did telephone McNicholas from the office at the warehouse about 1 or 1:30 a.m. of June 25, 1965, telling him that "The Com- mittee, Lucente, and several others were there." 3 Angelo asked McNicholas to come down to his office and settle all of the grievances that were pending. If McNicholas would comply with these wishes the men would go to work. McNich- olas refused the request and the drivers did not work. But McNicholas did meet with the Respondent Union on Monday or Tuesday of the following week at the union hall. Angelo, Schwartz, Sammartino, and Lucente were among those pres- ent. At that time Respondent Lucente took the position that if Employer McNich- olas would settle the grievances the men would go back to work. Angelo was not in accord with Respondent Lucente's demands. Angelo pointed out to the drivers, "That they were violating their contract." "They should return to work and follow the grievance procedure " McNicholas' position was that he would not take back the seven instigators of the work stoppage including Respondent Lucente. McNich- ols recalled that at all meetings in which they were carrying on collective-bargaining negotiations leading up to the contract with Respondent Union, Angelo, Schwartz, Sammartino, and the drivers committee headed by Respondent Lucente attended all of the meetings. During this June strike the pickets were observed mainly at gates 1 and 7 and no picket signs were observed. According to the testimony of one of the pickets, Richard M. Davison, as trucks would approach the entrance to National Tea's warehouse some of the pickets would stop them. According to the witness "the drivers asked us, what was going on. We merely told them, `we were on strike.' That was all that was said." s When Angelo arrived at the warehouse he told the drivers they were_ making a,mistake and were "subject to being aischarged." 1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 29 , 1965, the day before the strike ended , one of the picketing drivers at gate 1, Highan, told witness Steffan, a warehouse employee for National Tea who was working at the time , " . . . some of these drivers over here were pretty mad. That if I could leave maybe I should." At that time there was another striking driver at the gate and across the street were "30, maybe more." Steffan and the other three warehousemen decided to punch out and quit work. Also on the evening of June 29, 1965, Dutcher , a truckdriver employed by Her- riott, went to National Tea's Youngstown plant to pick up a load and bring it back to East Palestine for later shipment to Brownsville , Pennsylvania . As he approached gate 1, he noticed two men standing in front of it with the gate closed . He stopped the truck and got out . The pickets came up to him and asked him if he knew they were on strike . He replied that he knew that but that he understood it to be an unauthorized strike as there was an injunction against the strikers and it was all right to go in. However, the two strikers asked him "not to go." Dutcher, not acceding to the request of the strikers , went in and picked up his load and left. At that time there were around 20 men standing at the gas station across the road from gate 1. Shortly thereafter he stopped at a restaurant for supper. As he left the restaurant ready to proceed on his way , he noticed that the fifth wheel pin had been pulled out of the tractor. This is a coupling that hooks the tractor to the trailer. If this had not been noticed he would have driven the tractor out from underneath the trailer . He also found one of the tires leaking. Nevertheless, he hooked up the tractor and proceeded down the road to be stoned on two separate occasions by groups of persons unknown to him. The stones broke the windshield and one of the head lights on his tractor, and one hit his shoulder. Throughout this June strike no McNicholas driver reported for work. Respondent Lucentes' Duties Respondent Lucente was Respondent Union's shop steward who headed up the Drivers' Committee at the approximately 50 collective -bargaining meetings with McNicholas, officers of Respondent Union and representatives of the Joint Council and the International Union leading up to the December 6, 1964, agreement made on March 19, 1965.4 He attended every meeting but one and made proposals for contract language. He even went as far away as Chicago to attend a meeting. As shop steward he represented the Union on the jobsite . He was dealt with directly on minor grievances and represented the drivers in any grievance proce- dure. But only Angelo or the officers of Respondent Union had authority to call work stoppages. Angelo admitted the December strike was authorized by officers of Respondent Union but that the March and June strikes were "wildcat"-not called by Respondent Union. Analysis and Conclusions It is undisputed that Respondent Union's members struck McNicholas on three separate occasions. Respondent Union concedes it authorized the first strike in December 1964 but that it did not authorize the second and third strikes of March and June 1965, respectively. The General Counsel, on the other hand, maintains that Respondent Union should be held responsible for all of the strikes. With respect to the latter two strikes, he maintains there was merely a studied effort on the part of Respondent Union to maintain the appearance of noninvolvement while remaining nevertheless in a position to reap the benefits of its members' illegal secondary pressures. The theory of the General Counsel is that Respondent Union, in violation of Section 8(b)(4)(1) and (a) (B) of the Act, sought to bring pressure on employers other than the primary employer, McNicholas, by means of illegal picketing, patrol- ling, violence, and threats, in order to cause these employers to persuade McNich- olas to settle the dispute it had with its employees on terms more favorable to Respondent Union. The summary of the first strike of December 1964 is that warehouse employees of National Tea were induced not to work, Hathaway was picketed, and virtually all entrances to the National Tea warehouse were picketed although one entrance would normally be used by the employees of the primary employer McNicholas. * Angelo testified that there were "5 or 6" meetings. It is unnecessary to pinpoint the exact number of meetings and there is no serious credibility issue in the case. I was favorably impressed with both witnesses Angelo and McNicholas. INT'L BROTHERHOOD OF TEAMSTERS, LOCAL 377 1321 National Tea's vice president was told they were "victims" of the dispute with McNicholas. Also at the beginning of the strike the picket signs displayed by the striking drivers made no mention of the name of the employer with whom it had a dispute. Thereafter notations were scribbled on the signs , such as "J.V. McCo." or "McNickolas ." It is true that McNicholas' tractors and trailers were stored at the National Tea warehouse and hence it was a situs of its operation as well as a common situs of the neutral National Tea. But no effort by Respondents was made to picket only in the immediate vicinity of the McNicholas equipment. It does not follow automatically however that the inducement and encouragement found above of employees of neutrals is proscribed by the Act . In Moore Dry Dock Company (Sailors' Union of the Pacific, AFL), 92 NLRB 547, the Board recognized the right of a union to engage in traditional primary appeals at a com- mon situs despite the fact that some interference with the operations of neutral employers might ensue. To balance the right of a union to engage in traditional primary activity against the right of the neutral employers to be free from such interference, the Board prescribed four standards to be used as "aids in determin- ing the underlining question of statutory violation " 5 In the instant case the General Counsel contends that the Moore Drv Dock standards were breached when the picketing was not within the close proximity of the situs of McNicholas' tractors but rather were at each of the entrances leading into the warehouse and further that the picket signs themselves did not disclose the name of the struck employer. While the Moore Dry Dock rules are not to be mechanically applied (Millwrights Local Union No. 1102 (Dobson Heavy Haul, Inc. ), 155 NLRB 1305 ), the fact that large numbers of pickets were involved together with the fact that almost all of the gates were picketed without any indication whatsoever as to the name of the struck employer, leads me to the conclusion that the Respondent Union induced and encouraged employees of neutral employers National Tea and Hathaway to engage in a strike or a refusal to perform services in the December 1964 strike, and I so find. The requirements of Moore Dry Dock, above , were not met. Bill Gaw, business agent for Respondent Union told Plant Manager Morgan of Hathaway that the strike involved the drivers of McNicholas but for Hathaway not to move any merchandise out. Also Sammartino, trustee and business agent of Respondent Union told Vice President Malt of National Tea that there was no problem between Respondent Union and National Tea but rather it was a problem between the drivers and McNicholas . Thus during the first strike the General Coun- sel has established by a preponderance of the evidence that the Respondent Union did violate Section 8(b)(4) and (i) and (ii)(B) of the Act. The issue as to whether the second strike in March 1965 with its resulting picket- ing likewise violated Section 8(b) (4) (i ) and (ii ) (B) of the Act is to be considered before considering the question of who was responsible for it. Summarizing the salient facts I find that gates 1, 5, and 6 of neutral National Tea were picketed, between March 11 and 16, 1965 , with no signs showing the dispute was with McNicholas . National Tea's warehousemen refused to cross the picket line on March 13, 1965. Also truckdrivers delivering merchandise to the warehouse were stopped by the pickets and after conversations left without crossing the picket lines. For the same reasons as noted above under the facts of the December 1964 strike, I find the March 1965 strike to violate Section 8(b)(4)(i ) and (ii ) (B) of the Act. As for the responsibility of the March 1965 strike , the General Counsel main- tains that Respondent Union is responsible because McNicholas met with the Union's officers and the secretary-treasurer of Respondent Union was "spokesman." Also that there were virtually the same people with whom McNicholas has been negotiating for a contract. Respondent Union, in oral argument, claimed its officers never called the strike and presented credited evidence that its agents kept urging the men to go back to work. It pointed out that any actions it took with respect to handling grievances and telling McNicholas what was necessary to settle the strike were only actions it would naturally take by virtue of the fact that it was the collective -bargaining agent of the members and that this did not mean it called or was supporting the strike. On the other hand the General Counsel in his brief calls attention to the similarity between the three strikes, the fact that all of the employees of McNich- olas participated and refused to work, and that after the strike no action was taken against the strikers for "disobeying" the union officers. The General Counsel also 61nternationeZ Brotherhood of Electrical Workers, Local 861 (Plauche Electric, Inc.), 135 NLRB 250. 1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD noted that Respondent Union appealed the discharge by McNicholas of seven drivers and that as to the March strike Respondent Union officers predicted the strike, and sought strike sanction from the International Union. The General Counsel called attention to the fact that the driver shop steward, Respondent Lucente, participated actively in the strike acting as spokesman for the other drivers, and hence was acting as an agent of Respondent Union. On the other hand, Respondent Union pointed out that Lucente's normal duties merely included the handling of grievances with participation in contract negotiations but that he had no authority to call a strike. Under these conditions the position of the Respondent Union is that Lucente was not actually empowered to represent Respondent Union in the area in which he acted and was not an agent of Respondent Union under the rule in P. R. Mallory & Co, 237 F.2d 437 (C.A. 7). Upon the facts presented at the hearing with respect to the March strike, I find, for the reasons more fully set out below, insufficient evidence to establish just who it was that was responsible for the March strike. There is no question but that there was a strike and what it was over but as to whether it was caused by Respondent Union is another matter which will be discussed below. As to the third strike in June 1965, Respondent's oral argument called attention to the fact that Angelo himself acknowledged that this was a wildcat stoppage conducted contrary to the collective-bargaining agreement and to the direction of the officers of Respondent Union. Here, unlike the strike in March, Respondent Lucente is involved in calling the stt ike. Not only did he predict that the drivers "might not be coming to work" just prior to the June strike, but it is admitted in the pleadings by his failure to file an answer that he was responsible for the strike. It was called over the grievance procedure in general and because of Respondent Lucente's dissatisfaction with the amount of time it took to process a grievance. As far as the violations of the Act are concerned this strike was in violation of Section 8 (b)(4)(i) and (ii)(B) for the same reasons as set out in the strike of December 1964; particularly because; the McNicholas' drivers picketed at the National Tea warehouse from June 25 to 30 with no signs displayed by the pickets at any of the gates; Steffan, an employee of neutral National Tea, was warned by one of the pickets, Highan, to leave the premises because some of McNicholas' drivers were "pretty mad ." (After hearing this Steffan and the other National Tea warehouse employees attempted to leave the warehouse and go home), and on June 29, pickets at gate I appealed to Dutcher , an employee of neutral Herriott not to cross the picket line . When Dutcher did cross the picket line he had trouble with his truck and was stoned after he had left the vicinity of the National Tea ware- house. The identity of those who had damaged the truck or who were responsible for the stoning was not established by any precise evidence or testimony. It is unnecessary to further identify the participants in these acts as the above acts of attempting to induce the employees of a neutral employer are sufficient to establish the violation alleged. But further discussion is necessary with respect to establish- ing the question of the responsibility of both the March and the June strikes. The Supreme Court of the United States in a recent decision on March 28, 1966, held with respect to the evidence necessary to show liability for a union: National labor policy requires that national unions be encouraged to exercise a restraining influence on explosive strike situations ; when they seek to do so, they should not for these activities be made to risk liability for such harm as may already have been done . . . . Because of the dispute which sparked the violence will often continue, the union will feel a responsibility to take up the dispute as well as to curb its excesses There can be no rigid requirement that a union affirmatively disavow such unlawful acts as may previously have occurred. . . . What is required is proof, either that the union approved the violence which occurred or that it participated actively or by knowing tol- erance in further acts which were in themselves actionable under state law or intentionally drew upon the previous violence for their force. The concurring opinion of Mr Justice Harlan, whom Mr. Justice Clark joined, stated: For me, the gist of the statute is that in the usual instance a union's carrying on of its normal strike functions and its failure to take affirmative action to dispel misconduct are not in themselves proof of authorization or ratification of the wrongdoing. United Mine Workers v. Gibbs, 383 U.S. 715,.739, 743. In the cited case there was violence before the union tobk ' over as against strike action in the instant case, but this distinction is insufficient to change' the rule of law enunciated. Accordingly, based upon the rule in United Mine Workers v. INT'L BROTHERHOOD OF TEAMSTERS, LOCAL 377 1323 Gibbs, supra, I find that the General Counsel has not established by a preponder- ance of the evidence that Respondent Union was responsible for the second and third strikes in March and June, respectively.6 Responsibility for the third strike rests upon Respondent Lucente, who was charged in paragraph 30 of the complaint as being the one who "instructed, ordered, and requested the members of Respondent Union" to engage in the June strike. As Respondent Lucente admitted this allegation by his failure to answer the com- plaint (he also did not make an appearance at the hearing) the General Counsel did not adduce nor need he adduce evidence on this point. Finally the Board has a right, in constructing Section 8(b), to fasten independent personal liability on an agent of a labor union, or any other entity, just as it could in the case of an employer. National Marine Engineers Beneficial Association (S & S Towing Co.) v. N.L.R.B., 274 F.2d 167, 171 (C.A. 2). As for the second strike in March, there is no doubt the drivers of McNicholas engaged in a strike and while so engaged committed acts in violation of the law, but the acts of Angelo and other officers of Respondent Union, in view of Angelo's efforts to get the strikers to ieturn to work are not sufficient to meet the test laid down in United Mine Workers v. Gibbs, supra, that the Union approved the strike or "participated actively or by knowing tolerance in further acts which were in themselves' actionable." Apparently Angelo, the secretary-treasurer of Respondent Union, did what he could as a well-balanced leader deeply interested in the welfare and the legality of the conduct of his fellow members. In any event, the con- ventional cease and desist and notice-posting order, which will issue with respect to the first strike (as far as Respondent Union is concerned) and the third strike (as far as Respondent Lucente is concerned) will issue and it will be of no greater weight even if responsibility for the second strike were added to it. CONCLUSIONS OF LAW 1. By picketing at the entrances of National Tea's warehouse without identifying the name of the employer with whom Respondent Union had the dispute and by picketing Hathaway and by inducing an employee of Herriott not to cross the picket line under the circumstances of this case, I find Respondent Union, as to the strike in December 1964, and Respondent Lucente, as to the strike in June 1965, to have induced and encouraged individuals employed by neutrals National Tea Company, Herriott Trucking Company, All-American Stamp and Premium Corpo- ration of New York, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation, all persons engaged in commerce or affecting commerce, to engage in strikes or refusals in the course of their employment to use, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, with an object of forcing or requiring the above-named employers to cease doing busi- ness with the J.V.' McNicholas Transfer Company, and thereby having engaged in unfair labor practices affecting commerce within the meaning of Sections 8(b) (4)(i) and (ii)(B) and 2(6) and (7) of the Act. THE REMEDY I shall recommend the conventional cease and desist and notice-posting order, the apparent limits under this Act for remedying this conduct. Local 612, Interna- tional Brotherhood of Teamsters (Deacon Truck Lines, Inc.), 146 NLRB 489, 506. But I will add a provision that disciplinary action must be taken in order to dispel any doubts in the minds of the members of Respondent Union wherein lies the authority. This will tend to curtail future "wildcat" strikes. Accordingly, upon the foregoing findings and conclusions and upon the entire record, I recommend, pursuant to Section 10(c) of the Act, issuance of the following: RECOMMENDED ORDER Respondent, Local Union No. 377, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and repre- sentatives, and Respondent Ralph Lucente individually shall: 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by National Tea Company, Herriott Trucking Company, All-American Stamp and Premium Corporation of New York, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation, or any other employer, to engage in a strike 6 Failure to take disciplinary action may result - from much more than a desire to adopt the actions of a union steward . The remedy section will take care of this problem. 1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or a refusal in the course of such individual's employment to use, or handling any material or perform any, services, or threatening, coercing, or restraining National Tea Company, Herriott Trucking Company, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation by strike or picketing, where in either case an object thereof is to force or require the above-named employers to cease doing business with the J. V. McNicholas Transfer Company, or any other person. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Take effective disciplinary action against Ralph Lucente for engaging in such improper activity. (b) Post in conspicuous places at the separate business offices and meeting halls of the aforesaid Respondent Union, copies of the notice attached hereto as "Appendix." 7 Copies of said notice, to be furnished by the Regional Director for Region 8, shall after being duly signed by authorized representatives of Respondent Union and Respondent Lucente, be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (c) Sign and mail copies of said notice to the Regional Director for Region 8, for posting by National Tea Company, Herriott Trucking Company, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation, said companies willing, at all locations where notices to their employees are customarily posted. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of the receipt of this Decision what steps the Respondent has taken to comply herewith.8 7 In the event that this Recommended Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "pursuant to a Decision and Order" the words "pursuant to a Decision of the United States Court of Appeals, Enforc- ing an Order." 8 In the event that this Recommended Order Is 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 the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL UNION No. 377, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA NOTICE TO ALL EMPLOYEES OF NATIONAL TEA COMPANY, HERRIOTT TRUCKING COMPANY, AND HATHAWAY BAKERIES DIVISION, SEABOARD ALLIED MILLING CORPORATION Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our members, officers, and agents and all employees of National Tea Company, Herriott Trucking Company, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation, that: WE WILL NOT engage in or induce or encourage any individual employed by National Tea Company, Herriott Trucking Company, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation, or any other employer, to engage in a strike or a refusal in the course of such individual's employment, to use or handle any material, or to perform any services, or threaten, coerce, or restrain National Tea Company, Herriott Trucking Company, and Hatha- way Bakeries Division, Seaboard Allied Milling Corporation, or any other employer, by strike or picketing, where in either case an object thereof is to force or require any of these companies to cease doing business with the J. V. McNicholas Transfer Company, or any other person. WE WILL take effective disciplinary action against individual union members or agents who engage in such improper activity. LOCAL UNION No. 377, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------- .------ _----- (Representative ) ( Title) PEPSI-COLA BOTTLING CO. 1325 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621- 4465. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL UNION No. 377, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA NOTICE TO ALL EMPLOYEES OF NATIONAL TEA COMPANY, HERRIOTT TRUCKING COMPANY, AND HATHAWAY BAKERIES DIVISION, SEABOARD ALLIED MILLING CORPORATION 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, I hereby notify Brother Members, and all Employees of National Tea Company, Herriott Trucking Company, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation that: I WILL NOT induce or encourage any individual employed by National Tea Company, Herriott Trucking Company, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation, or any other employer, to engage in a strike or refusal in the course of such individual's employment to use or handle any material, or to perform any services, or threaten, coerce, or restrain National Tea Company, Herriott Trucking Company, and Hathaway Bakeries Division, Seaboard Allied Milling Corporation, or any other employer, by inducing a strike or picketing, where in either case an object thereof is to force or require any of these companies to cease doing business with J. V. McNicholas Transfer Company, or any other person. RALPH LUCENTE, Individual Respondent. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621- 4465. Pepsi-Cola Bottling Company of Alaska, Inc. and Teamsters Union Local 959, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Independent. Case 19-CA-3289. June 24, 1966 DECISION AND ORDER Upon charges duly filed by Teamsters Union Local 959, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, herein called the Union, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint dated January 24, 1966, against Pepsi-Cola Bottling Company of Alaska, Inc., herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the National Labor Relations Act, as amended. 159 NLRB No. 130.