Food Store Employees Union, Local 347

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Food Store Employees Union , Local 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and Davis Wholesale Co., Inc. Case 9-CB-1281. June 12, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On January 3, 1967, Trial Examiner Robert E. Mullin issued his Decision in this proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices and recommended that allegations of the complaint pertaining thereto be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting 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. 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 recommendations of the Trial Examiner with the exception noted below. i ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Food Store ' The complaint alleges that Respondent must be held responsible for certain actions attributed to three admitted agents of Respondent and to nine named strikers The Trial Examiner recommends that the Board dismiss the allegations pertaining to agent Skaggs and four of the strikers, no exceptions having been filed thereto, we adopt his recommendation in that regard pro forma. In the absence of exceptions thereto, we also adopt pro forma the Trial Examiner's findings with regard to Respondent's responsibility for the acts of agents Gunnoe and Brooks. The Trial Examiner further found Respondent responsible for certain acts attributed to five strikers-Belcher, Valentine, Keenan, Sword, and Christian We agree only with regard to one incident attributed to Belcher, numbered by the Trial Examiner as III, B, 4, a, (b), and one attributed to Valentine, numbered as III, B, 4, b, (b), as these two incidents took place in the presence of agent Gunnoe We find it unnecessary to pass on Respondent's responsibility for the remaining alleged misconduct of the five named strikers, as any finding with respect thereto would not affect our Order Employees Union , Local 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Huntington , West Virginia , its officers, agents, and representatives , shall take the action set forth in the Trial Examiner 's Recommended Order. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations not found herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Trial Examiner: On the basis of a charge filed on December 28, 1965, by Davis Wholesale Co., Inc., the General Counsel, on February 28, 1966, issued a complaint against Food Store Employees Union, Local 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (herein called Respondent or Union), alleging that the latter, through its representatives and agents, had violated Section 8(b)(1)(A) of the Act. The Respondent conceded the jurisdictional facts alleged but denied the commission of any unfair labor practices. This proceeding was heard before Trial Examiner Robert E. Mullin, in Huntington, West Virginia, on July 12 and 13, 1966. At the outset of the hearing, a motion by the General Counsel to amend the complaint in certain particulars was granted. This case is a companion case to Davis Wholesale Co., Inc., Case 9-CA-3839 [165 NLRB 297], which the Trial Examiner herein issued on the same date. At the outset of the hearing in the last numbered case, a motion to consolidate that proceeding with the instant matter was denied, for reasons that are set forth in the Trial Examiner's Decision in Case 9-CA-3839 [165 NLRB 297]. On the other hand- a motion by the General Counsel, joined in by the parties, to incorporate by reference the record of Case 9-CB-1281 [165 NLRB 264] in the record of Case 9-CA-3839 [165 NLRB 297], where applicable, was granted. At the hearing in Case 9-CB-1281 [165 NLRB 2641, a renewal of this motion by the General Counsel joined in by the parties,' to incorporate by reference the record in Case 9-CA-3839 [165 NLRB 297] in that of Case 9-CB-1281 [165 NLRB 264], where applicable, was granted. Most of the allegations in the complaint involve incidents which have been considered by this Trial Examiner in Case 9-CA-3839 [165 NLRB 297]. Specific findings as to credibility in each such instance appear in the Trial Examiner's Decision issued in the last numbered case. The ruling on the motion to incorporate by reference the record of each case in that of the other was designed to eliminate, insofar as possible, all unnecessary duplication of trial time and all unnecessary expense involved in the trial of two such closely related matters. In keeping with that ruling, such incidents on which the Trial Examiner has already made specific findings in his Decision in 9-CA-3839 [165 NLRB 297], and which are relevant to the Decision in 9-CB-1281 [165 NLRB 264], will be ' The Respondent Union joined generally in this motion, but objected to its renewal in Case 9-CB-1281 [165 NLRB 264]. on the ground that since it had been ruled upon in Case 9-CA-3839 [165 NLRB 297], it was unnecessary and redundant that the motion be reviewed in Case 9-CB-1281 [165 NLRB 264] 165 NLRB No. 42 FOOD STORE EMPLOYEES UNION, LOCAL 347 265 recited herein only as to the relevant conclusionary findings set forth in the earlier case. At the close of the hearing, the parties were given leave to file briefs. On October 17, 1966, briefs were filed by the Respondent Union and the General Counsel and on October 26, 1966, the Charging Party submitted a memorandum.2 Upon the entire record in Case 9-CB-1281 [165 NLRB 264], and that of Case 9-CA-3839 [165 NLRB 297], where applicable, the briefs and memorandums of the parties, and from his observation of the witnesses and their demeanor while testifying, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Employer, a West Virginia corporation, was engaged at all times material herein, at Huntington and Culloden, West Virginia, in the sale of wholesale grocery items. During a representative 12-month period, it had a direct outflow of products in interstate commerce, valued in excess of $50,000 which were sold and shipped directly from its warehouses in West Virginia to points outside that State. Upon the foregoing facts, the Respondent Union concedes, and the Trial Examiner finds, that the Employer is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The period encompassed by the complaint in the present matter extends from December 1965 through February 1966. During those months the Respondent Union was engaged in the conduct of a strike at the warehouse of Davis Wholesale Co., Inc., which was then located in Huntington, West Virginia.3 In an initial proceeding involving the labor dispute between the Union and the Employer herein, this Trial Examiner found, inter alia, that the Union represented a majority of the Davis employees in an appropriate unit and that the Employer had unlawfully refused to bargain with it.4 In a subsequent proceeding, involving these same parties, this Trial Examiner found, inter alia, that a strike which began on December 8, 1965, was an unfair labor practice strike and that on April 7, 1966, when the Union requested reinstatement on behalf of all the strikers, all were entitled to such reinstatement with the exception of certain named individuals who had engaged in misconduct and violence.5 The allegations against the Respondent Union in the present proceeding are based on the actions and conduct of three of its business agents and that of several striking employees. Much of the activity by the latter group which is relevant to the present case has already been considered by this Trial Examiner in his Decision in 9-CA-3839 [165 NLRB 297], where it was found that the conduct of certain strikers was such that it would justify their being denied reinstatement at the conclusion of the strike. The complaint alleges that Business Agents Jack Brooks, Woodrow Gunnoe, and Ronald Skaggs and striking employees James Belcher, Paul Christian, James Gibson, Delano Kerman, David Napier, Dueird Pennington," Clifford Sword, Thomas Templeton, and John Valentine were agents and representatives of the Respondent Union, acting on its behalf, and agents within the meaning of Section 2(13) of the Act. The Respondent Union concedes that this was true as to Brooks, Gunnoe, and Skaggs, its duly appointed business agents, but it denies any agency relationship or responsibility as to the rest of the individual striking employees whose names are enumerated above. B. The Incidents and Individuals Involved Herein 1. Business Agent Jack Brooks On the morning of December 10, a truck operated by Thomas Gray and James Myers, two nonstrikers, left the Davis warehouse in Huntington . Almost immediately after leaving the company premises, a car filled with a number of pickets began following the truck. Included in the latter group were Business Agents Woodrow Gunnoe and Jack Brooks and three strikers, Ottie Adkins, Keith Tomblin, and John Valentine.7 When the truck arrived at Russell, Kentucky, Gray and Myers sought to make a delivery at the Davidson Food Market. Both of them entered the store to ask the owner, Elbert Davidson, whether he wanted them to unload their merchandise. When the latter gave them an affirmative answer and the Davis employees were about to leave the store, Gray noticed that Brooks was at the back of the truck and engaged in what appeared to be the process of tying a picket sign on the tailgate. On seeing this, Gray rushed out of the store and, upon reaching the rear of the truck, jerked the sign loose and threw it to the ground. Gray testified, credibly and without contradiction, that at this point Brooks struck him a blow with his fist and declared, "Damn you, don't you star a sign off the truck that belongs to me." Gray's testimony was corroborated by the credible testimony of Myers, his helper, and Davidson, the store owner. When on the stand, Gunnoe and Adkins endeavored to establish that the picket sign on the truck actually had been placed there by Adkins before the truck had reached the Davidson Market, that Brooks was merely trying to remove it when Gray came upon him in the act, and that the latter provoked Brooks into doing what he did. They further testified that Brooks merely struck Gray a light blow with the side of his hand. The Union, however, did not choose to call Mr. Brooks himself, nor did it explain why it did not put him on the stand. On the The issue raised by the late filing of this memorandum is discussed in fn 1, Trial Examiner's Decision in Case 9-CA-3839 [165 NLRB 2971 ' In April 1966 the Employer moved its headquarters and warehouse operations to a new site located in Culloden, West Virginia ' Trial Examiner's Decision, Cases 9-CA-3599 and 9-CA-3742 [165 NLRB 2711 , issued this date ' Trial Examiner's Decision, Case 9-CA-3839 [165 NLRB 2971, issued this date fi Named in the complaint as "Durk" Pennington ' There was testimony that Larry Blankenship and Thomas Templeton were also in this group of pickets Blankenship, however, credibly testified that he followed the Davis truck in his own car for only a short distance on the morning in question and then returned to the warehouse area Templeton likewise testified credibly when he denied that he was at Russell, Kentucky, on the morning here involved or at any other time 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credible testimony of Davidson, Gray, and Myers, it is the conclusion of the Trial Examiner that whether Adkins or Brooks had placed the sign on the truck initially, the act of doing so was totally unprotected activity, that when Gray discovered the sign on his truck he was free to remove it in any way he desired, and that upon encountering Brooks at the rear door of the truck he did not provoke him in any way that would justify the assault and battery which the business agent thereupon committed on him. 2. Business Agent Woodrow Gunnoe Lewis Davis, president of the Employer, testified that on the evening of December 10 a truck that was making a delivery at the warehouse had a flat tire. At the time about 12 to 15 pickets were in the area. According to Davis, a service station mechanic, called to the scene to fix the tire, at first declined to remain in the presence of pickets, but was finally persuaded to complete the repair of the tire. Davis testified that thereafter he called the police and while waiting for them to arrive, he and Foreman Ed Frazier remained at the scene while the repairman worked on the tire. According to Davis, during this interim period Business Agent Gunnoe came up to him with a large wooden club8 and with a menacing gesture declared "Davis, you see how flat that tire is? ... You are going to be as flat as that tire." Davis' testimony as to this incident was credible and not contradicted or denied by Gunnoe. After the strike had been in progress for about 2 months, Gunnoe was involved in another incident that is alleged in the complaint. Charles McCaw, a nonstriker, testified that on about February 2 he and his helper, one Russell Wells, were making a delivery with a Davis truck at Thompson's Grocery, near Coal Mountain, West Virginia. According to McCaw, there was heavy snow on the ground in the vicinity of the store and both he and Wells were engaged in shoveling some of it out of the way when Gunnoe and a group of pickets that included John Valentine and Clifford Sword surrounded the truck. McCaw testified that after the exchange of some conversation about the strike, Gunnoe told him that he (McCaw) should take the truck back to the warehouse and tell Mr. Davis "that ... they were through getting tires and cars and they were going to start getting people and he pointed at me and he said you are going to be first and he said whether you want it now or later doesn't make any difference, some time today you are going to get it." Gunnoe denied that he had engaged in any such threatening conversation as McCaw attributed to him. According to the business agent, he had had a comparatively friendly discussion with McCaw and Wells about the prospects of their joining forces with the strikers, when suddenly, and without warning, McCaw's helper became very menacing and threatened him and the pickets with a snow shovel that he was using. Gunnoe's version of this incident and the manner in which he delivered it at the hearing were not convincing to the Trial Examiner. McCaw, on the other hand, was credible. Accordingly, his testimony is found to be the more accurate account of what transpired on this occasion. 3. Business Agent Ronald Skaggs The complaint alleged that Business Agent Skaggs threatened bodily injury to an employee during the course ' Davis described this as a 2 by 4 about 3 or 4 feet long " McCaw testified that he thought this incident occurred on about December 22 Skaggs testified that it occurred on about of the strike. This allegation arose out of an incident involving Skaggs and McCaw, the same nonstriker involved in the matter recited above. On about December 27, a Davis truck, driven by McCaw and proceeding to Charleston, West Virginia, was being followed by Skaggs in his automobile and by another automobile containing a number of pickets. According to McCaw, at a point on the outskirts of Charleston, Skaggs pulled around him`' and when the latter suddenly applied his brakes, McCaw was forced to hit him from the rear. McCaw testified that neither party stopped at that moment and when Skaggs moved ahead the latter applied his brakes again so that the Davis truck was forced to ram the automobile a second time. According to McCaw, when he drove the truck to a warehouse parking lot nearby, Skaggs came up to the truck, cursed him violently, and threatened him with a beating. Skaggs' account of this incident was as follows: He had been driving behind McCaw's truck, a tandem 10-wheeler, for a short while when, on the outskirts of Charleston, preparatory to leaving the four-lane highway on which he was then traveling, he passed the Davis truck. Almost immediately thereafter the latter collided with the rear of Skaggs' automobile, a Ford passenger car, and when Skaggs slowed down McCaw hit him again. After the vehicles came to a halt, Skaggs went to the cab of the Davis truck. He there endeavored to secure from McCaw the number of his driver's license and the other data customarily exchanged after a highway accident. McCaw, however, refused to get out of the truck and refused to open the window or answer any of Skaggs' questions. Skaggs frankly conceded that he was angry at the time and that he uttered some profanity during the course of his efforts to engage McCaw in a discussion of the collision. The General Counsel alleged that during the attempted exchange with McCaw, Skaggs threatened to inflict bodily injury on the nonstriker because McCaw had remained at work during the strike. This, however, is not the conclusion of the Trial Examiner. The allegation of the General Counsel in this regard either assumes that the collision resulted from a deliberate act on the part of Skaggs, or that the collision had no connection with Skaggs' outburst. Neither assumption has any validity. It is incredible to the Trial Examiner that Skaggs, who was driving a passenger automobile, would have deliberately crossed into the path of a large truck and then applied his brakes in such a manner as to cause his car to be rammed from the rear by the Davis truck. The rear end collision here involved almost certainly arose from gross negligence on the part of McCaw. Skaggs' outburst of temper after the collision was not dissimilar from many another which has occurred as the aftermath of an automobile accident. It is the conclusion of the Trial Examiner that on this record and from the sequence of events set out above, Skaggs' angry remarks were unrelated to McCaw's continued employment with Davis, and were, instead, precipitated by McCaw's negligent driving which had caused what could have been a fatal collision. In the Trial Examiner's Decision in Case 9-CA-3839 [165 NLRB 297], this Trial Examiner made the following findings with respect to the strikers and pickets whose names are set out below: December 27 It is the conclusion of the Trial Examiner that the recollection of the latter was more accurate as to the date in question FOOD STORE EMPLOYEES UNION, LOCAL 347 a. James Belcher (1) On about December 9, Belcher told nonstrikers Thomas Ball and Thurman Green, "if we don't get you ... we will get your wives." (2) On about December 12, in the presence of Business Agent Gunnoe and several other pickets, he told William Jones, a nonstriker, that Jones would be pursued to his home and that he (Belcher) was "going to come out there and stomp you in the mud of that ridge." (3) On about December 30, he and several other strikers waited at the rooming house where some of the nonstrikers lived and as Melvin Gallimore, a nonstriker, was leaving the house, Belcher struck and physically assaulted Gallimore. b. John Valentine (1) On about December 10, Valentine threatened nonstriker Charles McCaw, who was then on duty at the warehouse, that if he caught him outside the gate he would beat him up. (2) On about December 10, while in the presence of Business Agent Gunnoe and several other picketa, he slashed and punctured a tire on the car of nonstriker James Stanley when the latter was driving home after completing a shift at the warehouse. (3) On about January 28 at Paul's Grocery near Coal Mountain, West Virginia, while in the presence of several other pickets, he struck nonstriker Thomas Ball with his fist and knocked him to the ground as Ball was attempting to unload merchandise from a Davis truck. (4) Early on the morning of February 3, and in the vicinity of the warehouse, Valentine, along with several other pickets, threatened and pursued nonstriker Melvin Holstein as he was on his way to work. c. Delano Keenan On about December 9, Keenan visited the home of nonstriker Thurman Green and threatened Green's wife that her husband might be injured if he continued to work during the strike. d. Clifford Sword (1) On December 11, while on the picket line, Sword threw a brick at the car of Herman McCallister as McCallister and William Jones, both nonstrikers, drove away from the warehouse. (2) Early one morning in the latter part of December, and while with a group of pickets at the warehouse entrance, Sword threatened nonstriker Donald Cummings with a club as the latter endeavored to report for work. (3) About 2 weeks after the strike began and while engaged in ambulatory picketing with several other strikers, Sword brandished a gun, or what appeared to be a gun, at nonstrikers Thomas Gray and Larry Hill while the latter were in a Davis truck near Milton, West Virginia. e. Paul Christian On about December 12, Christian threatened nonstriker Donald Cummings with bodily injury if he continued to work at the Davis warehouse, and further threatened 267 Cummings that an upholstery shop operated by Cummings' father and mother might be damaged. 4. Additional incidents; conclusions with respect thereto Other allegations in the complaint must be dismissed for lack of evidence. Subparagraph 6(b) alleged that on about December 9 Thomas Templeton threatened to inflict bodily injury on an employee or to cause harm to the employee's family, and that on about December 10 Templeton threatened another employee with bodily injury. The testimony as to both of these incidents was considered by this Trial Examiner in his Decision in Case 9-CA-3839 [165 NLRB 297]. The first involved a visit to the home of William W. Baker, a nonstriker, by Templeton and one Gary Bias early in the strike. The second concerned the testimony of James Myers, a nonstriker, who testified that on December 10 Gibson threatened him with a burning stick as he was leaving the warehouse area. After a consideration of the testimony as to these incidents, it was the conclusion of this Trial Examiner in his Decision in Case 9-CA-3839 [165 NLRB 297], that Gibson; who denied the threats and violence attributed to him, was the more credible witness as to these events. Subparagraph 6(i) attributed certain threats to a "David" Napier. Whereas a "Ronnie" Napier was one of the strikers and there was testimony in Case 9-CA-3839 [165 NLRB 297] about his activities during the strike, there was no reference to a "David" Napier. On the other hand, in Case 9-CB-1281 [165 NLRB 264], Business Agent Gunnoe testified that strike benefits were paid to the mother of one David Napier. Notwithstanding this testimony, company payroll records list only a Ronnie Napier. Under the circumstances, and in view of this state of the record, there being no testimony that these two names apply to one and the same individual, the allegation in the complaint relating to David Napier will be dismissed. Subparagraph 6(j) alleges that Dueird Pennington threatened an employee with bodily injury if he continued working during the strike. This allegation relies for support on the testimony of Garry Gallimore, one of the nonstrikers. According to Gallimore, on the evening of January 6, he and other nonstrikers were at a tavern some distance from the warehouse when Pennington, Valentine, and Belcher were there. Gallimore testified that prior to this time he had seen Pennington on the picket line at the warehouse and that on this occasion Pennington questioned him as to whether he intended to continue working. According to Gallimore, when he answered in the affirmative, Pennington made a vulgar prediction as to what would happen to Gallimore if he went back to work.10 The bartender who overheard the conversation called the police, but by the time they arrived on the scene, Pennington had departed. Gallimore's testimony was credible and uncontroverted. On the other hand, it is obvious from Gallimore's account that the incident involved here was essentially an incipient barroom brawl between a group of strikers and nonstrikers. Under the circumstances, it is the conclusion of the Trial Examiner that the Respondent Union cannot be held responsible for a tavern incident which occurred at a considerable distance from the picket line. "' The language which Gallimore attributed it) Pennington appears at page 1415 of the transcript in Case 9-CA-3839 [165 NLRB 297J. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subparagraph 6(l) alleged that in January James Gibson threatened" two of the nonstrikers while they were at Brotherton's Supermarket in Charleston, West Virginia. This allegation found support in the testimony of Frank Meehling, a nonstriker. In his Decision in Case 9-CA-3839 [165 NLRB 297], however, this Trial Examiner found that Gibson's denial that he had made any such threats was more credible than Meehling's testimony which attributed these threats to him. C. The Agency Issue and Concluding Findings Business Agent Skaggs testified that at the meeting of the employees in November when a strike vote was taken and the employees voted to authorize a strike, Sherwood Spencer, secretary-treasurer of the Respondent Union, spoke to all present as to the importance of good conduct and peaceful picketing throughout any strike which was called. Estil Loftis, one of the strikers, also testified that, on December 8, Business Agents Brooks and Gunnoe spoke to all of the strikers on the necessity for abstaining from any and all forms of violence while on the picket line. According to Skaggs, at the outset of the strike, Spencer appointed Brooks, Gunnoe, and him to be directly responsible for the conduct and management of the strike. Skaggs testified that throughout the period when the strike was in progress these three agents remained in sole charge with no intermediaries between them and the pickets. This same witness further testified that all of the strikers named in the complaint were merely strikers and had no authority from the Union to engage in any activity other than peaceful picketing. Skaggs also testified that although he was among those designated to supervise the conduct of the strike, it was not until February that he spent much time on this matter in the Huntington area.'' Gunnoe, on the other hand, testified that he took an active part in the direction of the strike at the Huntington warehouse and that most of the time from December through January he was in daily contact with the pickets. The Respondent Union denied that it paid the strikers themselves any strike benefits. However, it conceded that a regular schedule of "donations"12 was provided to assist the families of the strikers. Gunnoe testified that these "donations" were made by check in a regular, specified amount to the wives or dependents of the strikers. During the first week of the strike, each family received $25 from the Union in this manner. Thereafter, the amount paid was raised to $45 per week. According to Gunnoe, at the time of the hearing, the Union was still making these weekly payments. He further testified that the aforesaid "donations" were paid only to the families of "the employees who was actively taking part on the picket line, was actually on the picket line, or doing other things that was asked of them." According to Gunnoe, the families of all of the strikers named in the complaint received such assistance. In so testifying, he specifically named, inter alia, Christian, Keenan, Sword, and Valentine. While conceding responsibility for the conduct of its business agents, the Union denies any responsibility for any violence or misconduct in which the pickets engaged. It is the conclusion of the Trial Examiner that the Union cannot avoid responsibility for the conduct of the pickets which is in question here. The Respondent Union's I According to Skaggs, from December to February, he spent most of his time in Charleston, West Virginia, where the Respondent Union was engaged in the conduct of a strike at officers and agents planned and directed a well-organized strike which extended over a 4-month period. At least 3 business agents were authorized to, and did, utilize their full time, energy and attention in the management and direction of a strike that involved an appropriate unit of less than 75 employees. The Union preferred to avoid the term "strike benefits" in describing any monetary assistance provided the families of the strikers. On the other hand, Business Agent Gunnoe conceded that an average "donation" of $45 a week went only to the families of those strikers "who was actively taking part on the picket line ... or doing other things that was asked of them." Some of the violence, misconduct, and threats occurred at or near the picket line at the Employer's warehouse in Huntington, West Virginia. Most of the other incidents here involved occurred at locations away from the warehouse, and where, for the most part, trucks of the Employer were in the process of making deliveries to customers in various points in Kentucky, Ohio, and West Virginia. In conformity with a well-organized plan for ambulatory picketing, these trucks were followed to these locations by either business agents and striking employees together, or just by striking employees alone. In several of the instances which figure in this case one or more of the three above-named business agents was present at the scene. Thus, Gunnoe was present when James Belcher threatened nonstriker William Jones that the latter would be pursued to his home and beaten, and Gunnoe was again present when the car of nonstriker James Stanley was surrounded by pickets and when John Valentine, within a short distance from the business agent, proceeded to puncture a tire on Stanley's car. In neither instance is there evidence that Gunnoe made any effort to disassociate the Union's strike efforts from the threats or the vandalism. On one of the very first days of the strike, Business Agent Brooks, in the presence of Gunnoe and several pickets, physically assaulted nonstriker Thomas Gray. Three months later, Gunnoe told nonstrikers McCaw and Wells when they were making a delivery to a Davis customer that they should return their truck to the warehouse and report back to Mr. Davis that the strikers "were through getting tires and cars and they were going to start getting people" and that sometime that day McCaw and Wells, the two nonstrikers who were the object of his immediate threat, were "going to get it." It is significant that in both of the foregoing instances Brooks and Gunnoe were with pickets who had followed one of the Employer's trucks as it was making a delivery to a Davis customer many miles removed from the picket line at the Huntington warehouse. Thus, the Respondent Union's business agents engaged in physical assaults and threats of serious violence to nonstriking employees at points away from the picket line. Under these circumstances, the Respondent Union cannot now disavow any other acts of misconduct by striking employees at points away from the picket line and especially where they were engaged in following the Davis trucks. It is the conclusion of the Trial Examiner that here the Union "is responsible because it instigated or fostered the improper conduct." Local 888, International Union, another warehouse of the Employer which is not involved in this case 12 This word is taken from Gunnoe's testimony FOOD STORE EMPLOYEES UNION, LOCAL 347 U.A.W. (Miami Plating Co.), 144 NLRB 897, fn. 3. Nor can the Union here avoid the imputation of responsibility for such incidents as occurred when no business agent was present. In view of the record in this case, it is the conclusion of the Trial Examiner that such instances plainly represented "excursions in furtherance of the purpose of the strike and extensions of conduct which took place at the picket line. ..." District 50, United Mine Workers of America (Tungsten Mining Corp.), 106 NLRB 903, 908, 922; International Longshoremen's and Warehousemen's Union (Sunset Line & Twine Co.), 79 NLRB 1487,1510. Some of the activity of the strikers here in question occurred at or near the picket line at the Huntington warehouse during the early days of the strike. It was during the period that Business Agent Gunnoe, from his own testimony, was regularly present at the scene almost every day. Not only was he present, but, as found earlier herein, on December 10, in the vicinity of the company warehouse and in the presence of several striking employees, Gunnoe threatened Lewis Davis with a club. In the light of these facts, it is the conclusion of the Trial Examiner that the Respondent Union must be held accountable both for the picket line misconduct and for the expansion of the unlawful activity at points away from the picket line where further unlawful activity was a foreseeable consequence of the Union's failure to subdue or check the outbreak of such activity immediately. International Union of Electrical, Radio and Machine Workers (Sperry Rubber & Plastics Co.), 134 NLRB 1713, 1725. In the Trial Examiner's Decision in Case 9-CA-3839 [165 NLRB 297], the Trial Examiner found that the conduct of James Belcher, John Valentine, Delano Keenan, Clifford Sword, and Paul Christian, all of which has been considered, supra, constituted unprotected concerted activity which justified the refusal of the Davis Wholesale Company to reinstate them upon the termination of the strike. It is the conclusion of the Trial Examiner that the conduct of the five above-named strikers, as described earlier in this Decision, is attributable to the Respondent Union, as is the conduct of its Business Agents Brooks and Gunnoe. International Union of Electrical, Radio and Machine Workers (Sperry Rubber & Plastics Co.), supra; United Steelworkers of America, AFL-CIO (Vulcan-Cincinnati, Inc.), 137 NLRB 95, 96-98. Lastly, the Trial Examiner concludes and finds that by such conduct on the part of Business Agents Brooks and Gunnoe and the striking employees Belcher, Valentine, Keenan, Sword, and Christian, the Respondent Union violated Section 8(b)(1)(A) of the Act.13 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the Employer's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing "Cf Teamsters Local 783, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Coca-Cola Bottling Co of Louisville), 160 NLRB 1776 There, in holding that the respondent union was responsible for repeated acts of misconduct and violence by strikers, the Board stated that commerce and the free flow thereof. CONCLUSIONS OF LAW 269 1. The Employer is engaged in commerce and the Respondent Union is a labor organization, all within the meaning of the Act. 2. By restraining and coercing the employees of Davis Wholesale Co., Inc., in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent Union has engaged in certain unfair labor practices, the Trial Examiner will recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The nature and variety of the unfair labor practices committed by the Respondent Union indicate a general purpose to limit the lawful rights of employees and persuade the Trial Examiner that such practices are potentially related to similar unfair labor practices, the future commission of which may be reasonably anticipated from the Respondent Union's conduct as found herein. Consequently, the preventive purposes of the Act will be thwarted unless the remedy is coextensive with the threat. Pure Oil Company, 90 NLRB 1661, 1663. The Trial Examiner, therefore, will recommend that the Respondent Union be ordered to cease and desist from in any manner restraining or coercing employees of Davis Wholesale Company, Inc., in the exercise of their rights guaranteed by the Act. Upon the foregoing findings and conclusions, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following: RECOMMENDED ORDER Food Store Employees Union, Local 347 Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, its officers , agents, and representatives , shall: 1. Cease and desist from: (a) Restraining or coercing the employees of Davis Wholesale Co., Inc., by exerting force, or committing acts of force and violence against said employees, or any of them, or by using or threatening to use force or violence, or by taking or threatening to take punitive action against any of said employees , unless said employees join in the concerted activities of the aforesaid Union. (b) In any manner restraining and coercing said employees or any of them in the exercise of their right to refrain from any or all of the concerted activities guaranteed them by 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 it based this conclusion "on the fact that Respondent, which authorized the strike, knew of the acts of misconduct and violence but took no steps reasonably calculated effectively to stop such acts " 270 DECISIONS OF NATIONAL condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its business office in Charleston, West Virginia, copies of the attached notice marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for Region 9, after being duly signed by an official representative of the above-named Union, shall be posted by the Respondent immediately upon receipt thereof, and be maintained there 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 9 signed copies of the attached notice marked "Appendix," for posting, if the Employer is willing, at its warehouse that is now located in Culloden, West Virginia. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges any unfair labor practices, other than as herein specifically found. " 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 " ' 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF FOOD STORE EMPLOYEES UNION, LOCAL 347 AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO Pursuant to the Recommended Order of a Trial LABOR RELATIONS BOARD 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 restrain or coerce the employees of Davis Wholesale Co., Inc., in the exercise by them of the rights guaranteed to them in Section 7 of the National Labor Relations Act, by using or threatening them with force or violence, or by taking or threatening to take punitive action against any of said employees, unless said employees join in the concerted activities of the undersigned union. Further, WE WILL NOT in any manner restrain or coerce said employees, or any of them, in the exercise of their right to refrain from any or all of the concerted activities guaranteed to them by Section 7 of the National Labor Relations 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, executed in conformity with Section 8(a)(3) of the Act. FOOD STORE EMPLOYEES UNION, LOCAL 347 AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO (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 members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3663.