General Truckdrivers, Local No. 5

GENERAL TRUCKDRIVERS, LOCAL NO. 5 493 Regional Director for Region 25, after being duly signed by an authorized repre- sentative of the Respondent , shall be posted immediately upon receipt thereof, and be maintained by it for 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 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 25, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith .5 6In 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 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 Relations Act, as amended, we hereby notify our employees that: WE WILL pay Robert Bruning, James Bunker, Charles Cowan, Max Gallo- way, and Robert Sumrall for wages they lost between October 14, 1965, and January 11, 1966. All our employees have the right to join or assist Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, or any other union. WE WILL NOT discharge or discriminate against employees , or interfere with them in any way, because of their union activity. HESMER FOODS, 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 633-8921. General Truckdrivers, Warehousemen and Helpers of America, Local No. 5, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (Ind.) (Ryder Truck Lines, Inc.) and Joseph D. Albin. Case 15-CB-754. October 26, 1966 DECISION AND ORDER On June 9, 1966, Trial Examiner Stanley Gilbert issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices Within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended they be 161 NLRB No. 35. 494 DECISION'S OF NATIONAL LABOR RELATIONS BOARD dismissed . Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner 's Decision , and the General Counsel filed it brief. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three -member panel [Chairman McCulloch and Mem- bers Brown and Zagoria]. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner , as modified herein.' [The Board adopted the Trial Examiner 's Recommended Order with the following modifications: [1. Add the following as paragraph 1(b), and reletter the present paragraph as 1(c) : ["(b) Threatening employees for engaging in activities protected by the Act." [2. In the relettered paragraph 1(c), delete the words "like or related" and substitute therefor the word "other." [3. Insert the following as the second inclended paragraph of the notice : [AVE WILL NOT threaten employees for engaging in activities protected by the Act. [4. In the present second indented paragraph of the notice , delete the words "like or related" and substitute therefor the word "other."] [The Board dismissed the complaint insofar as it alleges unfair labor practices not found herein by the Board.] I We agree with the Trial Examiner that the Respondent violated Section 8(b) (1) (A) and (2) by attempting to cause the Employer, Ryder Truck Lines, Inc , to deny Albin employment in May and June 1965, and thereafter preventing his reinstatement by aa- sembhng a mob on lty der's premises and threatening to kill Albin on August 24 and 25, 1965, because of Albin's opposition to the leadership of Secretary-Treasurer and Busine.1 , Manager Partin in the Respondent. We also find, contrary to the Trial Examiner that Partin's threat to kill Albin with a gun on June 29, 1965, was caused by Albin's opposition to Partin's leadership of the Respondent and, therefore, is a further violation of Section 8(b) (1) (A). Moreover, in all the circumstances of this case, we find that it will effectuate the policies of the Act to require the Respondent to cease and desist from restiaining and coercing employees in any manner Entwistle Manufacturing Company, 23 NLRB 1058, enfd. as modified 120 F.2d 532 (C.A. 4). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Based on a charge filed by Joseph D. Albin on August 31, 1965, the complaint herein was issued on January 26, 1966. The complaint alleges that General Truck- GENERAL TRUCKDRIVERS, LOCAL -NO. o 495 drivers, Warehousemen and Helpers of America, Local No. 5, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Ind ),i hereinafter referred to as Local 5 or Respondent, violated Section 8(b)(1)(A) and (2) of the Act. Respondent, by its answer, as amended during the course of the hearing,2 denies that it committed the unfair labor practices alleged in said complaint. Pursuant to notice, a hearing was held in Baton Rouge, Louisiana, on March 22 and 23, 1966, before Trial Examiner Stanley Gilbert. Briefs were received from General Counsel and Respondent within the time designated therefor. Upon the entire record in this case and upon observation of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED Ryder Truck Lines, Inc., hereinafter referred to as Ryder, a Florida corporation with its principal office located in Jacksonville, Florida, is a certified common car- rier of general commodities in interstate commerce by motor vehicle. Ryder main- tains a truck terminal in Baton Rouge, Louisiana, the only one of its terminals which is directly involved in this proceeding. During the 12 months prior to the issuance of the complaint herein, which period is representative of all times mate- rial herein, said terminal derived gross revenues in excess of $50,000 for services performed in connection with the transportation of goods in interstate commerce. As is admitted by Respondent, Ryder is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, it is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and summary of events Albin, the Charging Party herein, commenced working for Respondent in the latter pant of 1960 as an organizer and was put on its payroll in December of that year. In March or April of 1961, he left the employ of Local 5 and entered the employ of Ryder in Baton Rouge. At that time he was a member of Local 5. His membership therein, however, ceased in October 1961. In September 1961, Albin and A. G. Kline, another member of Local 5, filed charges against Edward G. Par- tin, secretary-treasurer and business manager of Local 5, with the Local's execu- tne board, and, in turn, Partin filed charges against Albin and Kline. Also during September 1961, Albin and Kline obtained the signatures of approximately 300 members of the Local on a petition requesting an investigation of the Local and the activities of Partin, which petition was presented to James Hoffa in Washington, D.C. The Local's executive board found Albin and Kline guilty and Partin not guilty of the respective charges. The membership books of Albin and Kline were taken from them. Kline and Albin appealed to Joint Council 93 and, after a hear- ing, all parties were found not guilty. Albin and Kline then appealed to the Inter- national Union which sent a panel to hear the matter in 1962. Just prior to the start of the hearing, Emmett Tucker, one of the Local's agents, stated to Albin that he and Kline "were going to get the hell stomped out" of them when they left the union hall. After the hearing he and Kline were physically attacked by seven or eight "people." Albin never received any word as to the results of the hearing before the International panel. Prior to said hearing, in January 1962, Albin was laid off by Ryder. Albin attempted to file a grievance on his layoff through Local 5 and the Southern Con- ference of Teamsters but "nothing ever came of it." Albin then commenced court action for reinstatement and in 1963 he received word from the business manager 1 The complaint was amended at the hearing to reflect the correct name of the Respond- ent which Is as It appears in the title as amended hereinabove 2 Respondent amended its answer by admitting the allegations contained in paragraphs 2 and 3 of the complaint. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Teamsters Local 270, which has jurisdiction over the area around New Orleans, that the Company would reinstate him with full seniority rights in its New Orleans terminal. In May 1963, he was put to work by Ryder in its New Orleans terminal without any loss of seniority. Prior thereto, in June 1962, Albin was subpenaed before a Federal grand jury in New Orleans by the Department of Justice and testified with respect to Partin's activities in Local 5. In February 1964, Albin was subpenaed to testify in behalf of the defense at a trial of James R. Hoffa in Chattanooga, Tennessee. Pursuant to a decision to change its method of operations, Ryder, in April 1965, filed with the Teamsters' Southwest Joint Area Committee a proposed change of operations. Ryder proposed to redomicile all employees in its New Orleans shop (with certain exceptions) and to create three additional mechanics jobs in Baton Rouge. All mechanics in the New Orleans shop, of which Albin was one, were to be given the opportunity to transfer to either the available jobs in Baton Rouge or to Houston. The Committee approved the change of operations with the provision that the redomiciling would be posted for bid in New Orleans and the employees would be permitted to bid based on their seniority within their classifications. Albin had the least seniority among the mechanics, but, since only two other mechanics bid to go to Baton Rouge, he was allowed to claim the third available mechanic's job in Baton Rouge. Albin, who had been a member of Local 270 during his employment in New Orleans, was a member in good standing of Local 270 at the time of his transfer to Baton Rouge. Ryder's operations in Baton Rouge were under the jurisdiction of Local 5 and its operations in New Orleans were under the juris- diction of Local 270. On June 28, 1965, Albin and the two other mechanics who had bid for the jobs in Baton Rouge reported for work at Ryder's Baton Rouge terminal, as instructed by Ryder. On June 29, Partin and C. D. McBride, assistant business manager of Local 5, were present in the terminal at which time an incident occurred involving Albin and Partin as principals which incident is the subject of one of the allegations of an unfair labor practice. On the following day, June 30, Albin engaged in a fight with a man identified as one Jerry or Jimmy Sylvester, who had been hired as a casual laborer for that day. Both of them were immediately discharged. Thereafter Albin requested Local 270, of which he was at the time and still is a member, to file a grievance for him with respect to his discharge. It appears that the usual practice followed when an employee transfers from the jurisdiction of one Teamsters local to that of another is that the local to whose jurisdiction the employee is transferred requests that his membership be transferred to it. No such request was ever made by Local 5 for Albin's transfer to it. At the beginning of July, Local 270 filed a grievance on behalf of Albin. Ray- mond Lapino, a business representative of Local 270, met with Robert Begeman, Ryder's director of maintenance, to work out a settlement of Albin's grievance, but without success. In the next step of the grievance procedure, a meeting was held of the grievance committee in the middle of July, at which point, Local 5, by tele- gram and through McBride, protested that the grievance was improperly filed by Local 27Q, since Albin was working under the jurisdiction of Local 5. The Commit- tee resolved the problem by ruling that Albin had properly filed the grievance and could prosecute it on his own behalf, which he proceeded to do. The Committee was deadlocked in its decision and the matter was then referred to the Southern Com- mittee which met on or about August 24, 1965. The decision at that level was that Albin be reinstated by Ryder and made whole for loss of pay. Albin was notified by Ryder to report to work at 3 p.m., August 25, 1965, at its Baton Rouge terminal. That day, August 25, Partin met with representatives of Ryder's management with respect to Albin's reinstatement, and a group of approxi- mately 200 men, who were not employees of Ryder, assembled in front of Ryder's terminal. Albin was then instructed by Ryder not to report to work. The follow- ing day, Local 5 obtained an injunction from a State court restraining Ryder from reinstating Albin. It appears that the injunction proceedings were removed to Fed- eral court before which it is still pending. The record is not clear as to the period in which the injunction remained in force. About the middle of January 1966, Ryder informed Albin that it would abide by the decision on his grievance by rein- stating him and making him whole. On January 24 he returned to work at Ryder's Baton Rouge terminal and received backpay. The record is not clear, however, as to the period for which he received backpay. GENERAL TRUCKDRIVERS , LOCAL NO. 5 497 The above findings of fact are based upon uncontradicted testimony which is credited. B. The issues Whether Respondent violated Section 8(b)(1)(A) and (2) of the Act by the following alleged conduct: 1. It is alleged in paragraph 6 of the complaint that during May and June 1965, Respondent by threats of strikes, work stoppages and related means, attempted to cause Ryder to discriminate against Albin and to deny him his seniority rights under a collective-bargaining agreement and to deny him employment at Ryder's Baton Rouge terminal. 2. It is alleged in paragraph 7 that Respondent's agent, Partin, on or about June 29, 1965, at the Ryder terminal in Baton Rouge, Louisiana, in the presence of an official of Ryder, drew a pistol, pointed it at Albin, and threatened to kill him. 3. It is alleged in paragraph 8 that Respondent attempted to cause and caused Ryder to discharge Albin on June 30, 1965. 4. It is alleged in paragraph 9 that on or about August 24 and 25, Respondent threatened to call a strike against Ryder if Ryder reinstated or permitted Albin to return to work at its Baton Rouge terminal. 5. It is alleged in paragraph 10 that on or about August 25, 1965, Respondent massed and/or caused a group of 100 to 200 men to be massed at the location of Ryder's Baton Rouge terminal with an object of preventing Albin from returning to work for Ryder and the further object of forcing and requiring Ryder to refuse to reinstate and/or reemploy Albin. 6. It is alleged in paragraph 11 that on or about August 25, 1965, Respondent warned an official of Ryder that some of the men in the aforesaid group would kill Albin if he came to work. 1. Re paragraph 6 of the complaint Partin testified that in 1963, at the time Albin went to work for Ryder in New Orleans, James Schwehm, secretary-treasurer of Local 270, consulted him about Albin's application for membership in said Local. Partin testified that he told Schwehm that he had no desire to keep Albin from working; that he had no objec- tion to Albin becoming a member of Local 270; and that he stated to Schwehm that "We didn't intend to give him [Albin] his book in Baton Rouge." Schwehm's testimony with respect to their conversation was not inconsistent with that of Partin which is credited. Schwehm testified without contradiction, which testimony is credited, that 2 or 3 weeks prior to June 28, 1965, the date of Albin's transfer to Baton Rouge, he had a conversation with Partin who had called him; Partin asked him to tell Albin that he, Partin, "didn't want him to transfer into his local or work under his jurisdic- tion;" he delivered the message to Albin; Albin told him that Baton Rouge was his home and that he was going to transfer there; Albin asked him about his union status; and he informed Albin that he could stay in Local 270 until Local 5 requested his transfer. Begeman, Ryder's director of maintenance, testified that in the first part of May 1965 he had a conversation with McBride, Local 5's assistant business man- ager, in which McBride informed him that there was no objection to the transfer of personnel to Baton Rouge except in the case of Albin; that McBride stated to him that Albin "would not be allowed to go back to work in Baton Rouge because he was not a member of Local 5.113 McBride denied that he had any knowledge of an attempt on the part of Respondent, during the months of May and June 1965, to cause Ryder "to discriminate against the hiring or continued hiring" of Albin. He did not, however, deny making the statement attributed to him by Begeman. Begeman's testimony as to the said statement is credited. Begeman further testified that during the month preceding Albin's transfer to New Orleans from Baton Rouge he had a series of conversations with Partin in which Partin repeatedly took the position that Albin "could not work under Local 5 3 The record discloses that Albin was a member in good standing of Local 270 at the time and that the Respondent does not contend as a defense that Albin's membership in Local 5 would have been a requirement. Furthermore, there was no communication to Ryder that Albin had been expelled from membership for failure to pay dues or contention herein that he had been. 264-188-67-vol. 161-33 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jurisdiction." Begeman further testified that in the course of his conversations with Partin, Partin informed him that, if Albin were transferred to Baton Rouge, Ryder's "operations could be shut down in Baton Rouge, that there could be slowdowns, that on some of the places that our trucks would be sent to load and unload, they would not be loaded or unloaded." Begeman's testimony as to the statements made to him by Partin during the month preceding Albin's transfer to Baton Rouge on June 28 was uncontradicted 4 and is credited. During the course of the hearing, Respondent's counsel indicated that it was Respondent's position that Albin was not entitled, as a matter of seniority, to be transferred to Baton Rouge. There is no reference in Respondent's brief with respect to such contention, nor is there anything in the record which would support it. The above credited testimony discloses that Respondent attempted to cause Ryder to deny Albin employment in Baton Rouge and that, through McBride, it stated as its reason therefor the fact that Albin was not a member of Local 5. The entire record reveals that its motive was in reprisal for Albin's prior activities in the Union in opposition to Partin and in order to prevent Albin from resuming his attempts to persuade members of Local 5, the representative of the bargaining unit of which Albin as a Ryder employee in Baton Rouge was a member, to remove Partin from his position of leadership in the Local, which activities are protected under Section 7 of the Act. In commenting on Begeman's testimony in his brief, Respondent's counsel pointed out that Begeman used the term "could," as distinguished from "would," in answer- ing the question as to what action Partin said the Union would take if Albin were employed in Baton Rouge. Respondent's counsel argued that the fact that Local 5 would shut down Ryder "was a matter of common knowledge between the parties involved." It is my opinion that such a reminder of Local 5's power to affect Rydei's operations was clearly a threat to take such action in the event Albin was transferred to Baton Rouge and constituted an attempt to cause Ryder to deny Albin employment in Baton Rouge for the reasons stated hereinabove. It is concluded from the above findings that Respondent engaged in conduct violative of Section 8(b)(1)(A) and (2) of the Act as alleged in paragraph 6 of the complaint. 2. Re paragraph 7 of the complaint Albin's transfer to Ryder's Baton Rouge terminal became effective on June 28, 1965. The following day, Partin and McBride were in the terminal engaged in con- versation with Begeman when Albin passed by them in the course of his duties. Considerable testimony was elicited from Albin, Partin, Begeman, and McBride as to what occurred at that point. In my judgment the testimony of all but Begeman was colored by their partisanship. Therefore, Begeman's version of what occurred is credited. Begeman's testimony is as follows: Mr. Albin walked by several feet away from us, I'd say four feet, coming into the shop in the normal course of his duties. And I do not know who spoke the first word, truthfully I do not know. The first word I remember hearing, but I do know there was a couple before, was, "What's going on?" And I heard Mr. Partin call Mr. Albin a punk. Do you want me to continue? Q. Yes. A. At that time I turned around. I was standing rather close to Mr. Partin, Mr. McBride was on the other side of him, as I recall. Albin in turn facing Mr. Partin. Mr. Partin said, "If you take one step closer to me, I will kill you." It happened almost simultaneously. He had on a loose sport shirt out- side of his trousers, and almost simultaneously he pulled up the left side of his sport shirt, I could see the handle of an automatic pistol sticking in the waist- band of his pants. I took him by the arm and told him that we couldn't have anything like that going on inside the shop. Mr. McBridge [sic] took him by the other arm, or at least helped me to persuade him to leave the shop. Albin testified that as he walked by Partin, Partin called him a "God damn punk," and that he answered him in kind. This part of his testimony is not incon- sistent with that of the testimony of the other three witnesses and is credited. The contradictions in the testimony are with respect to Partin's use of a gun. Albin * Although Partin was questioned by Respondent 's counsel with respect to this aspect of Begeman's testimony, his answers were not responsive thereto, but referred to subsequent conversations in August with regard to Albin's reinstatement in compliance with the decision in the aforementioned grievance proceedings. GENERAL TRUCKDRIVERS, LOCAL NO. 5 499 testified that Partin pulled a gun and threatened him with it; McBride testified that he didn't see any gun; and Partin testified that he didn't have a gun on his person, that, if he had, he would have used it. Albin did admit that it is possible that he might have taken a step back toward Partin. It is my opinion that this incident, as disclosed by Begeman's credited testimony and the admission by Albin that he might have taken a step back toward Partin, did not constitute an attempt on the part of Respondent through its agent, Partin, to restrain or coerce Albin within the meaning of Section 8(b)(1)(A) of the Act, or an attempt to cause his discharge within the meaning of Section 8(b)(2) of the Act. The incident was an outgrowth of the hostility between the two men, the exchange of insults between them, and Albin's movement toward Partin which could reasonably have been interpreted by Partin as a threatening move .5 Therefore, it is concluded that the General Counsel has not sustained the burden of proof that Respondent violated the Act by the conduct alleged in paragraph 7 of the complaint. 3. Re paragraph 8 of the complaint On June 30, the third day after his transfer to Baton Rouge, Albin was dis- charged by Ryder. The circumstances which led up to this action were described only by Albin. His testimony, being uncontradicted and credible, is credited, and is as follows: I am sitting up on the fender of the Mack truck working when some fellow, who I didn't know at that time, whose name is Jerry Sylvester, I believe, walked up to me and asked me where the restroom was at and I told him and he asked me a second time and when I told him the second time and when I turned my head back around to attempt to finish working on the truck, well, he cursed me and knocked me off the fender of the truck. There was a fight which I tried to defend myself and Mr. Begeman then appeared and told me that we were both fired. I immediately called the sheriff's office and called the Local Union 270 in New Orleans and told them what had happened. It appears that no one was present to observe the start of the fight. Begeman's credited testimony as to the action he took after the fight started is as follows: . . . About noon, shortly before noon, I was up on the dock talking to some of the terminal people, and I heard a yell or a noise back in the shop. Now the shop at our Baton Rouge terminal is attached to the end of the dock, and there's a doorway through the center whereby standing in the middle of the dock you can turn and see down into the shop. I turned as I heard this yell or noise, whatever you want to call it, and could see two people rolling over and over on the floor. I ran back there and it was Mr. Albin and another man obviously fighting. I got them separated, separated them, told them that they were both fired, told J. D. to go punch out, J. D. Albin to punch out in the shop where the time clock was, and I took the other boy by the arm and took him by the dispatch office and told the terminal people he was fired for fighting. At that time I found out he was one of the casuals. Q. Did you find out what his name was? A. I was told it was Jimmy Sylvester. The credited testimony of Richard Wilson, Ryder's terminal manager, as to the hiring of Sylvester is summarized as follows: that on the day Albin was fired he had called Local 5 for two casual laborers; that thereafter two men reported; that he asked them for their "referrals," to which they replied that they did not have any; that one of the men was named Sylvester; and that he could not recall to whom he spoke when he called Local 5 for the casual laborers. Although he had testified on direct examination that, when they reported, the two laborers stated they were from Local 5, on cross-examination he testified, when asked whether he had a firm recollection that they said were from Local 5, that he thought so, but "wouldn't definitely say so." None of the witnesses who testified to seeing Sylvester apparently had ever seen him before the incident or thereafter, including McBride, who testified he knew 5 Thus evoking the warning about taking one step closer to him. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "nothing" about him. Partin was not specifically questioned about Sylvester, but denied the allegation in paragraph 8 of the complaint.6 In order to conclude that the allegation in paragraph 8 of the complaint has been sustained, it would be necessary for me to find that Local 5 sent Sylvester to Ryder, in response to its request for casual laborers, with instructions to provoke a fight with Albin so as to cause Albin's discharge. The circumstances surrounding the incident which precipitated the discharge are such as to cause one to suspect that the above-mentioned necessary finding might be consistent with the truth. The cir- cumstances surrounding the incident which precipitated the discharge are such as to cause one to suspect that the above-mentioned necessary finding might be con- sistent with the truth. The circumstances are the timing of the incident, the obvious desire on the part of agents of Local 5, particularly Partin, to prevent Albin from working for Ryder in Baton Route, and Sylvester's conduct in starting the fight without any apparent reason. However, suspicion is not proof, and it is my opinion that the record does not contain a sufficient quantum of probative evidence to warrant the above-mentioned necessary finding of Respondent's responsibility for Sylvester's conduct. Therefore, it is concluded that the General Counsel has not sustained the burden of proof as to the allegation in paragraph 8 of the complaint. 4. Re paragraphs 9 and 10 Inasmuch as the evidence relating to the allegations in paragraphs 9 and 10, is to a large extent , applicable to both, the allegations in said paragraphs will be con- sidered together hereinbelow. On August 24, 1965, the Southern Conference Area Committee rendered its deci- sion on Albin's grievance, which was that he be returned to work and be made whole for his loss of earnings. In accordance therewith he was instructed by Ryder to report to work at its Baton Rouge terminal at 3 p.m. on August 25. On both August 24 and 25, officials of Ryder had conversations with Partin with regard to its reinstatement of Albin. Louis Creekmur, Ryder's director of labor relations, testified that, when he arrived in Baton Rouge on August 24, there was a message for him to call Partin; that he called Partin; and that Partin told him that he had heard of the decision on Albin's grievance and stated that "if Albin went back to work he had no choice but to put the Ryder Truck Line on strike." Creekmur further testified that on the following day, August 25, he met with Partin .• His testimony in that regard was as follows: The following day, on the morning of the 25th, Mr. Partin asked if Mr. Brown, the terminal manager in Baton Rouge, and I would come by the Hoffa Hall and talk to them about the Albin incident and his return to work. We agreed . Mr. Brown and I drove by the Hoffa Hall. When we went in the Hoffa Hall, why, Mr. Partin showed us some placards that he was having prepared to put Ryder on strike. They said something, Ryder On Strike, in big, bright, red letters. I complimented Mr. Partin on his artistry. Creekmur also testified to conversations with Partin in the office of Ryder in the early afternoon of August 25. His testimony in regard thereto was as follows: ... Later that day, about 1:00 or 1:30 in that area, Mr. Partin came over again and reiterated the fact that if Albin came into work at 3:00 o'clock, he would definitely put us on strike. Well, the company, still not sure whether Mr. Partin was sincere in statement, in his statement, or we still planned on having Albin come in at his regular work shift. However, by 2:00 o'clock, approximately 200 or 250, somewhere between 200 and 300 construction work- ers and drivers and all types of workmen started showing up around the ter- minal, showing up in the trucks and card [cars] and lining up all up and down the entrance to the terminal. At this time we asked Mr. Partin what was going on here. He said , "Well, I told you, and I am sincere in what I told you, I am going to put you on strike. I declared a national holiday in Baton Rouge and we are going to come around here and have a little march around Ryder's terminal." At that time I knew he was sincere in what he was trying to do and what he was going to do. I called Albin, and told Albin his work assignment for 6 Although Partin did not categorically deny the allegation in paragraph 8, a denial is inferred from his response to the question of whether he admitted any of the allegations in the complaint of unfair labor practices GENERAL TRUCKDRIVERS, LOCAL NO. 5 501 this day would be to stay at home and plan on coming in the next day, his regular time to start , 3:00 o'clock. After we told Mr. Partin that we would keep Albin off we requested that he disperse the group. Mr. Partin said, "Wait a little while . No sense having two discussions." He had 20 to 30 people coming down from St. Francisville and will be showing up in a little while and at this time he could disperse the entire crowd. About 3:00, 3:15, he did go out, called all the people into the parking lot, got up on top of the car where he could be seen and heard, and dispersed the entire group. Begeman testified he was present during some of the conversation between Partin and Creekmur, and testified that he observed the assembly of the group outside the terminal and estimated the number reached approximately 200. He further testified that he overheard Partin state to Creekmur that, "There wasn't going to be any trouble if Mr. Albin didn't come to work." Harvey M. Cooper, southwest regional manager of Ryder, testified that he was also present during part of the meeting between Creekmur and Partin in Ryder's office; that after he "noticed a large number of people out in the street milling around," he asked Partin who they were and that Partin replied it is "of no conse- quence," that he could disperse them; that he asked Partin why he did not do it immediately, to which Partin replied, "Well, when I get ready in a few minutes, I will do so"; that about 1/2 hour later, 15 or 20 more people joined the group out- side; and that at that point Partin went outside to talk to the group and they dis- persed about 10 or 15 minutes thereafter. All three of the above witnesses testified that a number of the men in the group were wearing clothes of construction workers including helmets, and that some of them were carrying "lumber" or "sticks" in their hands , which two of the witnesses described as being of the size of a "2 x 4." Their testimony is not clear as to how many or what proportion of the group carried them . Cooper corroborated Creek- mur's testimony that Partin stated that he expected additional men to join the group. Cooper's testimony on that point is as follows: . when I asked Mr. Partin when these people would be dispersed , he said in approximately fifteen minutes there would be some more people he was. expecting. After they did come, it was about another half hour, he did go out and talk to all of the group at once. I would say another fifteen or twenty minutes they were gone. None of General Counsel 's witnesses was in a position to testify as to what Partin stated to the group before they dispersed . However, McBride testified he was present and that Partin said , "Fellows, there's no trouble here now. Go on back home or go on back to your job." He further testified that he did not see any of them carrying anything ; that none of the men assembled were Ryder employees; and that he was unable to state whether they were or were not members of Local 5. Partin testified as to the incident . A careful study of his testimony does not reveal that it can be construed to contain a denial of any of the above testimony of Creek- mur, Begeman , or Cooper, except with respect to their testimony that some of the men assembled were carrying sticks or lumber. Further, Partin testified that no one "from the Union hall caused" the group to assemble at Ryder's plant and that he learned why they were there when he went out to talk to them. His testimony on this point was as follows: A. They told me they heard that we were going to have a work stoppage at Ryder Truck Lines. There was a rumor, some of the drivers put out and they came down to see if they could be of assistance in walking the picket lines. A. I asked them what the occasion was for the visit and that's when they said they understood that we were figuring to picket Ryder and one pipe-fitter spoke up and said , "Mr. Albin done the same thing to him, that he done to us, went to the International and tried to have him removed from office." A painter spoke up and said that Albin hit my buddy in the head too I am not here to help that rotten S. 0. B. because everywhere he goes there's trouble. That's the purpose we are here to be on the picket line. I said, "We are not going to have a strike." I said , "We don't know legally how we stand on the interpretation of the contract. We can't afford to strike them. I appreciate your coming by. I appreciate your offer of help but you can 't do anything but hurt yourself here. I'd appreciate it if you go, if you would go." Which , they did. Some of them didn't want to, but they left. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record reveals that Partin's statements to representatives of Ryder on August 24 and 25, expressing his insistence that Albin not be reinstated was predi- cated on the position that the decision in grievance procedure was not binding on Local 5 because it was not filed by Local 5 as required, according to its interpreta- tion of the contract. This position appears to be the defense on which Respondent relies in support of its denial of the allegations in paragraphs 9 and 10 of the complaint. It is my judgment that the above testimony of Creekmur, Begeman, and Cooper should be credited. As above indicated, none of it was contradicted by Partin except as to whether some of the men were carrying sticks or lumber, which denial was corroborated by McBride. However, their said denials are not credited. Bege- man, Creekmur, and Cooper are not partisans in this proceeding and certain of their credited testimony from which I infer that Local 5 did cause the group to assemble was not contradicted by Partin and reveals that Partin was not a credible witness. Partin denied that the Respondent caused the men to assemble . However, the credited testimony reveals that when he was asked why the group had assembled, he replied, "Well, I told you, and I am sincere in what I told you, I am going to put you on strike. I declared a national holiday in Baton Rouge and we are going to come around here and have a little march around Ryder's terminal " Further- more, when he indicated that he was going to disperse the group, he stated that he had to delay doing so until another contingent arrived, which it did a short while later. Obviously, he could not have known of their expected arrival had it not been prearranged. While I have concluded that Partin did state to Ryder that his statements and actions on August 24 and 25 were predicated on his position that the reinstatement of Albin was inappropriate because the grievance had not been filed by Local 5, it does not appear that the fact that he stated this position, constitutes a meritorious defense. No purpose would be served in attempting to analyze the contract in order to determine whether this position was or was not a correct interpretation of the union contract. It is clear from all the circumstances in this case (particularly the evident intent on the part of Local 5 and Partin to keep Albin from working for Ryder at its Baton Rouge terminal or in the area under the jurisdiction of Local 5) that the reliance of Respondent and Partin on their interpretation of the contractual grievance procedure was merely pretextual. It is further concluded that in the cir- cumstances that Ryder officials must have reasonably understood that said intent was the motive for Respondent's conduct on August 24 and 25, rather than the interpretation of the contractual grievance procedure. It is concluded from the above credited testimony that the allegations in para- graphs 9 and 10 of the complaint were sustained by a preponderance of the evidence and that Respondent's conduct was violative of Section 8(b)(1) (A) and (2) of the Act. 5. Re paragraph 11 Creekmur testified that in the course of his conversation with Partin on the afternoon of August 25, Partin told him, after Albin was notified not to report to work, that "I was smart in telling Mr Albin not to come in, because some of these hotheads out there conceivably would kill Mr. Albin if he intended to come back to work." Partin did not deny making such a statment and said testimony of Creekmur is credited. In view of the above findings with respect to the allegations in paragraph 10, that Local 5 caused the assembly of the group, and in view of the further finding that Creekmur, from the statements made to him by Partin, rea- sonably must have understood that Partin was responsible for the group being there, the warning that some of the hotheads "conceivably would kill" Albin was a threat which constituted restraint and coercion within the meaning of Section 8 (b) (1) (A) of the Act and was an attempt to cause Ryder to refrain from employing Albin in Baton Rouge within the meaning of Section 8(b)(2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with the operations of Ryder described 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 of commerce. GENERAL TRUCKDRIVERS, LOCAL NO. 5 503 V. THE REMEDY It having been found that Respondent caused Ryder to discriminate against Albin, on August 25, 1965, by refraining from employing Albin at its Baton Rouge terminal, it will be recommended that Respondent be ordered to inform Ryder, in writing, that it has no objection to Albin's continued employment in said terminal. It appearing that Albin was not reinstated by Ryder until January 24, 1966, it will be further recommended that Respondent make Albin whole for any loss of earnings he may have suffered by reason of the aforementioned unfair labor practices of Respondent on August 24 and 25 for the period between August 25, 1965, and January 24, 1966, together with interest thereon as provided below.7 The loss of pay should be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and the interest, payable in accordance with Isis Plumbing & Heating Co., 138 NLRB 716, should be computed at the rate of 6 percent per annum on the amount due for each calendar quarter (under the Woolworth formula) beginning with the end of the first calendar quarter and continuing with each succeeding calendar quarter until payment of such amount is properly made. It having been found that Respondent caused approximately 200 men to assemble in front of Ryder's terminal, in violation of the Act, and it appearing that many, if not all of them, were members of Local 5, it will be recommended that Respondent mail copies of the Appendix to each of its members, inasmuch as the posting of the notice in the union hall may not be an adequate method of communicating the contents thereof to said members as well as to the other mem- bers of Local 5. It may well be that many of Respondent's members may not have the occasion to visit the union hall during the customary posting period and the contents of the notice should be communicated to all members in order to remedy the effects of Respondent's unfair labor practices found herein which would tend to discourage its members from engaging in activities protected under Section 7 of the Act. In view of this, the notice will include a reassurance not only to members who are employees of Ryder, but also to those who are employ- ees of other employers, that Respondent will not restrain and coerce them in the exercise of their rights under Section 7 of the Act. In view of the major role played by Partin in the conduct of Respondent which has been found to be violative of the Act, it will be further recommended that said Partin sign said Appendix as the representative of Respondent.8 Southern Athletic Co., Inc., 157 NLRB 1051. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent violated Section 8(b)(1) (A) and (2) of the Act by the follow- ing conduct, in reprisal for Albin's prior exercise of rights protected under Sec- tion 7 of the Act and to prevent his further exercise of said rights: (a) During May and June 1965, Respondent, by threats of strikes, work stop- pages, and related means, attempted to cause Ryder to discriminate against Albin and to deny him his seniority rights under a collective-bargaining agreement and to deny him employment at Ryder's Baton Rouge terminal. (b) On August 24 and 25, 1965, Respondent threatened to strike Ryder if Ryder reinstated or permitted Albin to return to work at its Baton Rouge terminal. (c) On August 25, 1965, Respondent caused a group of approximately 200 men to be massed at the location of Ryder's Baton Rouge terminal, some of whom were carrying sticks, with an object of preventing Albin from returning to work for Ryder at said terminal and with a further object of forcing Ryder to refrain from employing him there. 7 Although the record shows that Albin received "backpay" from Ryder, the record does not disclose whether he was, in fact, made completely whole for said period. 8It is noted that in a somewhat related case, Edward G Partin, 148 NLRB 819, Partin, the Respondent, was found to have engaged in conduct violative of Section 8(b)(1)(A) and (2 ) of the Act with respect to an employee of Ryder, the Employer involved herein, and was ordered to sign the notice required as business agent of Local 5. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) On August 25, 1965, Respondent warned an official of Ryder at its Baton Rouge terminal that some of the men in the aforesaid group "conceivably would kill" Albin if he came to work. 2. General Counsel has failed to sustain the burden of proof that Respondent violated the Act by the conduct alleged in paragraphs 7 and 8 of the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, it is ordered that Respondent, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause Ryder Truck Lines, Inc., to discriminate against employees in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees of Ryder Truck Lines, Inc., in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment in accordance with Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Notify Ryder Truck Lines, Inc., in writing, that it has no objection to the continued employment of Joseph D. Albin at Ryder's Baton Rouge terminal. (b) Make Joseph D. Albin whole for any loss of pay he may have suffered during the period from August 25, 1965, to January 24, 1966, as provided in the section of this Decision entitled "The Remedy." (c) Post in its office in Baton Rouge, Louisiana, copies of the attached notice marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for Region 15, after having been duly signed by Edward G. Partin as the representative of Respondent, shall be posted immediaely upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where it customarily posts notices to members of Local No. 5. Copies of said notice shall also be mailed by Respondent to each of its members. (d) Deliver to the Regional Director for Region 15, signed copies of said notice in sufficient number to be posted by Ryder Truck Lines, Inc., the Company being willing. (e) Notify the Regional Director for Region 15, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to com- ply herewith.10 IT IS FURTHER ORDERED that the complaint herein be dismissed insofar as it relates to the allegations of unfair labor practices set forth in paragraphs 7 and 8 of said complaint. 'In the event that this Recommended Order is 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 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." 101n 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 NOTICE TO ALL MEMBERS OF GENERAL TRUCK DRIVERS, CHAUFFEURS, WARE- HOUSEMEN & HELPERS OF AMERICA, LOCAL No. 5, AFFILIATED WITH INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, IND. 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 Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Ryder Truck Lines, Inc., to dis- criminate against any employee in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. NITRO SUPER MARKET, INC. 505 WE WILL NOT in any like or related manner restrain or coerce employees of Ryder Truck Lines, Inc., or of any other employer, in the exercise of their rights guaranteed in 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 a condition of employment in accordance with Section 8(a)(3) of the Act. WE WILL notify Ryder Truck Lines, Inc., that we have no objection to its employment of Joseph D. Albin at its Baton Rouge terminal. WE WILL make Joseph D. Albin whole for any loss of pay he may have suffered by reason of our discrimination against him. GENERAL TRUCKDRIVERS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 5, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA (IND.), 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal Office Building, 701 Loyola Avenue, New Orleans, Louisiana. Telephone 527-6361. Nitro Super Market, Inc. and Food Store Employees Union, Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO Nitro Super Market , Inc. and Food Store Employees Union, Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and Retail Clerks Union Local 1059, Retail Clerks International Association, Party to the Contract. Cases 9-CA-3468 and 3652. October 26, 1966 DECISION AND ORDER On July 1, 1966, Trial Examiner Alvin Lieberman issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent and Retail Clerks Union filed exceptions to the Trial Examiner's Decision and supporting briefs; and the General Counsel filed an answering 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 [Members Fanning, Brown, and Zagoria]. 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 161 NLRB No. 46.