United Rubber Workers, Loc. 796

UNITED RUBBER WORKERS , LOC. 796 165 United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO; and United Rubber Workers, Local 796 and Tennessee Wheel and Rubber Com- pany. Case 26-CB-342 June 28, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On April 20, 1967, Trial Examiner Alvin Lieberman issued his Decision in the above-entitled proceeding, finding that the Respondents had en- gaged in and were engaging 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 affirm- ative action, as set forth in the attached Trial Ex- aminer's Decision. He also found that the Respond- ents had not engaged in other unfair labor prac- tices alleged in the complaint and recommended dismissal of the complaint to that extent. Thereafter, the Respondents 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 Na .tional 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 this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and orders that Respondents, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO; and United Rubber Workers, Local 796, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order,' as herein modified. 1 Sec 2(a) is hereby amended by substituting the words "on forms pro- vided" for the words "to be furnished " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Trial Examiner: This case, with all parties except the Charging party represented. was tried before me in Nashville. Tennessee, on December 22 and 23, 1966,' upon a complaint2 of the General Counsel and Respondents' answer.' The issues litigated were whether Respondents violated Section 8(b)(1)(A) of the National Labor Relations Act, as amended (herein called the Act). More particularly, the questions for decision are as fol- lows: 1. Are Respondents liable for acts of restraint and coercion, within the meaning of Section 8(b)(I)(A) of the Act, committed by certain members, including officers and picket captains, of Respondent United Rubber Work- ers, Local 796 (herein called Local)? 2. Did Respondents violate Section 8(b)(1)(A) of the Act by threatening and assaulting employees?4 Upon the entire record,' upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the able briefs submitted by the General Counsel and Respondents, I make the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS The Company, a corporation. is engaged at Nashville, Tennessee, in the manufacture and distribution of indus- trial wheels. During the 12 months immediately preced- ing the issuance of the complaint, a representative period, the Company sold and shipped directly to customers located outside the State of Tennessee goods valued in excess of $50,000. Accordingly. I find that the Company is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the Board is warranted. Siemons Mailing Service, 122 LRB 81.85. II. THE LABOR ORGANIZATIONS INVOLVED Respondents are labor organizations within the mean- ing of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Briefly, this case concerns itself with the events which occurred during a strike against the Company. The 1 All dates mentioned in this Decision fall within 1966. The complaint was issued on charges filed by Tennessee Wheel and Rubber Company (herein called the Company) 3 During the trial Respondents admitted the allegations of paragraph 2 of the complaint, except with respect to the place of the Company's incor- poration, and the allegations of paragraphs I and 3 of the complaint 4 On motion of Respondents made at the conclusion of the General Counsel's case-in-chief paragraph 8(d) of the complaint, which alleges that Respondents "coerced [the Company's] employees, and supervisors" by recklessly driving an automobile, was dismissed for the reason that the General Counsel offered no evidence to establish that employees were present or involved in the incident. In his brief the General Counsel urges tha, I "reconsider [my] dismissal of paragraph 8(d) of the complaint," and I have done so Having reconsidered and having taken into account the General Counsel's arguments I find no convincing reason for changing my ruling. R. L. Zeigler, Inc., 123 NLRB 464, and E. J. Lavino & Company, 157 NLRB 1637, cited by the General Counsel in support of his conten- tion in this regard are, in my opinion, not in point. Thus, in the former, the assaults upon the persons in question were actually witnessed by em- ployees. In the latter the National Labor Relations Board (herein called the Board) made a point of noting that in the absence of exceptions it was adopting only "pro forma the Trial Examiner's holding that threats of violence directed against supervisors, with no employees present, violated the Act " 5 The General Counsel has moved to correct the transcript with respect to the spelling of the name of the Company's vice president which appears as John D. True whereas it should be John D. Trew. That motion is granted. Issued simultaneously herewith is a separate order correcting the Transcript in certain additional respects. 166 NLRB No. 33 308-926 0-70-12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel contends that in the course of this strike officers, picket captains, and pickets of Respondent Lo- cal, for whose conduct he asserts Respondents are liable. threatened, punched, shoved. stoned, and shot at non- striking employees, and that by this conduct Respondents violated Section 8(b)(l)(A) of the Act. For their part. Respondents maintain that it has not been established that the threats, punching, shoving, and stoning alleged by the General Counsel actually oc- curred. Reversing their field and assuming that the foregoing events did, in fact, take place Respondents make a three-pronged exculpatory argument. They con- tend, first, that their liability for the conduct of the per- sons involved has not been shown. Their second claim is that the General Counsel has not established that the commission of the acts in question was motivated by "an attempt to prevent non-striking employees from exercis- ing their rights as guaranteed by Section 7 of the Act." Finally. Respondents urge that their misconduct was quantitatively insufficient to warrant the entry of a remedial order. With respect to the shooting incident. Respondents offer alibis for the alleged participants. B. Facts Concerning Respondents' Liability for the Conduct Alleged in the Complaints In March. Respondent United Rubber, Cork. Linole- um & Plastic Workers of America, AFL--CIO-(herein called International), was duly certified by the Board (26-RC-2599) as the exclusive collective-bargaining representative of the Company's employees in an ap- propriate unit. Thereafter. Respondent Local was char- tered. Negotiations with the Company looking toward the ex- ecution of a collective-bargaining contract started in about April. Among the negotiators were James Temple and John Taylor, field representatives of Respondent In- ternational, and Alton Howell and James Walden. respec- tively president and vice president of Respondent Local. No agreement having been reached by July 8. the mem- bers of Respondent Local, on that date, authorized it to strike the Company. With the sanction of Respondent In- ternational, which also pays benefits to the Company's striking employees, and in accordance with its members' authorization Respondent Local struck the Company on September 8. and began to picket its premises.7 In connection with the strike, picket captains were ap- pointed by Respondent Local and instructions were given to the pickets by Howell and Temple. Among the picket captains appointed by Respondent Local was Wesley Givens, a trustee of Respondent Local, and, in addition, a member of its executive board.8 The instructions given to the pickets by Howell and Temple were, insofar as material, to picket in any orderly fashion; to refrain from violence; and to avoid obstructing ingress to, or egress from, the Company's premises. In- sofar as keeping employees from entering the Company's plant is concerned. Temple. field representative of Respondent International. testified that he instructed the pickets to "show ... people crossing the picket line their picket signs so that the people will be aware that there is a strike in progress." The pickets are supervised and directed by Howell, Walden, respectively president and vice president of Respondent Local, and by the picket captains. Although neither Howell nor Walden are at the picket lines at all times and sometimes both are simultaneously absent, there is always a picket captain on duty. If during Walden's presence at the picket line, pickets "do something [they are], not supposed to do," Walden, as Howell testified, "would be the one to correct them right then and there." Howell similarly testified that it is the duty of the picket captains to "correct" the pickets when "they get out of line."9 In addition to the presence of Howell, Walden. and the picket captains at the picket line, Temple, field represen- tative of Respondent International. is there two or three times a week. On each of his appearances he talks "to people on the picket line, our members, and continually [tells] them not to have violence."19 C. Contentions and Concluding Findings Concerning Respondents' Liability for the Conduct Alleged in the Complaint As noted above, Respondents argue that they are not liable for the misconduct alleged in the complaint. This argument is bottomed upon Respondents' contention that the General Counsel has not sustained his burden of proving that the conduct complained of was engaged in by their agents acting within the scope of their authority. In Sunset Line and Twine Company, 79 NLRB 1487, 1508-09, a leading case in this area, the Board laid down "fundamental rules of the law of agency which we believe must control our decision of the issue of responsibility in this and similar cases." Among those rules is one which, as Respondents contend, places the "burden of proof ... on the party asserting an agency relationship both as to the existence of the relationship and as to the nature and extent of the agent's authority." In disagreement with Respondents. I conclude that the General Counsel has met this burden. Insofar as the existence of the relationship is con- cerned, the General Counsel has shown that Respondent Local, in support of its strike against the Company. caused the Company's premises to be picketed; that it gave instructions to the pickets as to the manner in which the picketing should be conducted; and that it appointed picket captains, who together with its president and vice president, were charged with the duty of supervising the pickets and seeing to it that they complied with their in- structions. The president. vice president, and picket captains of Respondent Local were, thus, the instrumentalities through which its picketing policies were effectuated. They were, therefore, its agents. Perry Norwell Company, 80 NLRB 225, 244. The Board in Sunset Line laid down another fundamen- tal rule. This. dealing with the liability of a principal for the acts of his agent. is that: 6 In considering this branch of the case the truth of the allegations of misconduct set forth in paragraphs 8(a), (b), (c), and (e) of the complaint will be assumed. Whether these allegations were actually established by the evidence and whether the conduct constituted violations of Section 8(b)(1)(A) of the Act will be considered below ° The strike and picketing were still in progress at the time of the trial 8 The duties of a trustee consist of checking and auditing the business transactions of Respondent Local The responsibilities and duties of mem- bers of its executive board do not appear in the record. 0 In context I construe Howell's testimony with respect to the duty of the picket captains as being to "correct" the pickets whenever they vio- lated the instructions given them in any regard, and not merely to "cor- rect" them when they "got out of [the picket] line," as a literal reading of the transcript may suggest. 10 The findings of fact appearing in this section of this Decision, which in the main are undisputed , are based on a synthesis of the testimony given by Howell, president of Respondent Local , Temple, field representative of Respondent International, and Trew, vice president of the Company UNITED RUBBER WORKERS, LOC. 796 167 A principal may be responsible for the act of his agent within the scope of the agent's general authori- ty ... even though the principal has not specifically authorized or indeed may have specifically forbidden the act in question. It is enough if the principal ac- tually empowered the agent to represent him in the general area within which the agent acted.' i In determining whether the foregoing principle is ap- plicable in the instant case the general authority of the agents of Respondent Local must first be ascertained. This, I find encompassed the supervision and direction of the picketing in furtherance of the strike against the Com- pany. I further find that a purpose of the picketing is to withdraw the Company's labor force and thereby cause such a deterioration of its economic condition as would move the Company to come to terms with Respond- ents.12 Having ascertained that the general authority of the agents of Respondent Local consisted of supervising and directing the pickets it must next be determined whether the conduct of the agents, and those acting with them, al- leged in paragraphs 8(a), (b). (c). and (e) of the complaint, which for the purpose of this discussion I am taking as true (see fn. 6). fall within the scope of their general who participate in the strike. Instructions were given to the pickets by the president of Respondent Local and by a field representative of Respondent International, and the latter makes frequent appearances at the picket line to remind the pickets of their instructions. In view of the foregoing, I find that the strike against the Company is a joint venture by Respondent Local and Respondent International. This being so. Respondent In- ternational is responsible for the misconduct of Respond- ent Local and its agents in furtherance of the objective of their venture; i.e. to bring the Company to terms. Miami Plating Co., 144 NLRB 897, 903. In sum, I conclude that if upon consideration of the evidence it is found that the agents of Respondent Local actually engaged in the conduct set forth in paragraphs 8(a), (b). (c). and (e) of the complaint. liability for those acts attaches not only to Respondent Local, but also to Respondent International. D. Facts Concerning Respondents ' Alleged Unlawful Conduct 1. The punching, stoning, and threat authority. In this regard. as Sunset Lin_ e teaches, it is im- Before the strike Wesley Givens, who later became a material that the -acts complained o were not specifi- picket captain 13 asked Harold Pippin to sign a union catty aufIiezed or indeed may have [been] specifically authorization card. Pippin did not do so nor did he sup- forbidden." Considering the allegations of the complaint port Respondents in their strike against the Company. in this light I find that the conduct set forth was engaged During the morning of September 14, Wesley Givens in by the agents of Respondent Local to dissuade em- was in a picket line in front of the Company's premises. ployees from working for the duration of the strike, a pur- While this picketing was in progress Pippin approached pose for which the picket line which they directed and su- the plant on his way to work. As he reached a point about - -e The conduct complained of permi,sail--w~as--estal5liss-h was, therefore, wfn the general-` scope of the agents' authority:- A,__._ Accordingly, I conclude that Respondent Local is responsible for the acts of its agents as alleged in the para- graphs of the complaint here under discussion. Insofar as Respondent International is concerned, even though it did not appoint the agents of Respondent Local, I am satisfied that it, too, is liable for their conduct. Respondent International was certified by the Board as the bargaining representative of the Company's em- ployees. It then chartered Respondent Local and both en- gaged in unsuccessful contract negotiations with the Company. Although the strike against the Company upon the failure of the bargaining was initiated by Respondent Local, it was sanctioned by Respondent International and Respondent International pays benefits to the employees 11 In this connection, the Board pointed out that neither authorization to perform the acts in question , nor their subsequent ratification shall be controlling. 12 As Temple, field representative of Respondent International, testified in this regard, the pickets were instructed to display their signs so that "people crossing the picket line. . will be aware that there is a strike in progress " This instruction makes explicit in this case an implicit pur- pose of picketing in support of a strike ; i.e., to influence employees to refrain from working See N.L R B., v Dallas General Drivers , etc, 264 F.2d 642, 648 (C A 5), cert. denied 361 U.S. 814; Schultz Refrigerated Service, Inc., 87 NLRB 502, 505 13 The actual date of Wesley Givens' appointment as a picket captain is not clear. However, it is certain that he was a picket captain on September 14, and I so find 14 These findings are based on a synthesis at the testimony of Pippin and Bruce Williams, both of whom, especially Williams , impressed me by their demeanor as being truthful witnesses . Pippin was confused as to the place where the assault upon him occurred and was unsure of its date. Bruce Williams, who testified that he saw Wesley Givens "shove . and hit" Pippin , was able to fix the time and place of the event. Wesley Givens 50 yards from the place where Wesley Givens was picketing, Givens handed his sign to another person. rushed to meet Pippin, called him a scab, and punched and shoved him.'4 Two days later. September 16. while Fred Childress, a nonstriking employee of the Company. was at work, he was notified about 9 or 10 o'clock in the morning that his wife was sick and needed his attention. Upon receiving this information Childress started for home in his truck. The road on which he was driving crosses a series of rail- road tracks several hundred yards from the plant. When Childress arrived at the tracks Wesley Givens, one of the picket captains appointed by Respondent Local, Norris Givens, and Ronnie Fleming, 15 who were standing on the left side of the highway, threw rocks at him. Although Childress. himself. was not hit, several rocks struck his truck. 16 denied that he struck or shoved Pippin and denied, also, that he was at the picket line during the morning of September 14, Respondent, however, adduced no probative evidence to corroborate Wesley Givens ' testimony as to his absence from the picket line at the time in question . In view of this, and because of the credible testimony as to this incident given by Pip- pin and Bruce Williams , I do not believe Wesley Givens' denials. 11 Childress knew these people, having worked with them for 3 years, and had last seen them earlier that day on a picket line at the Company's premises. 16 The findings with respect to this matter are based on Childress' testimony. Wesley Givens and Ronnie Fleming both denied throwing rocks at Childress Norris Givens was not called as a witness by Respond- ents, perhaps because he was , at the time of the trial , under indictment al- leging his participation in an incident , discussed below, in which shots were fired at Sammy Powell , another nonstriking employee at the Com- pany My resolution of the conflicting testimony here under consideration given by Childress on one hand and Wesley Givens and Fleming on the other is based on my assessment of the demeanor , while testifying, of the witnesses in question, 168 DECISIONS OF NATIONAL In addition to testifying about having rocks thrown at him, as set forth above, Childress also testified that dur- ing the week of September 19, Wesley Givens told him "not to come into work because something could happen to [his] family." This testimony was received over Respondents' objection based on the fact that the com- plaint did not allege this threat. Although on cross-ex- amination several questions were put to Childress con- cerning this event, it was not further litigated by Respond- ents. The question arises as to whether I may consider this evidence in the absence of an allegation in the complaint that the threat to Childress constituted an unfair labor practice. It is settled law that when a matter "is fully litigated at a hearing, the Trial Examiner and the Board are expected to pass upon it even though it is not specifi- cally alleged to be an unfair labor practice in the com- plaint." Monroe Feed Store, 112 NLRB 1336, 1387. Here Respondents objected to the introduction of evidence relating to the threat on the very ground that it was not alleged in the complaint. In view of this objection I cannot find that the issue was "fully litigated" on the basis of the General Counsel's direct examination of Childress and the few questions concerning the threat put to him by Respondents on cross-examination. Associated Home Builders, etc. v. N.L.R.B., 352 F.2d 745, 754 (C.A. 9). Accordingly. I will make no findings based upon Childress' testimony that he was threatened by Wesley Givens. Although the complaint makes no mention of a threat to Childress it does allege a threat to another nonstriking employee. Sammy Powell. Concerning this, I find that on September 21. as Powell was driving out of the Com- pany's parking lot at the completion of his work shift Ronnie Fteming,i' who immediately prior to this had been picketing in front of the parking lot, left the picket line and stationed himself in Powell's path.18 In order to avoid hitting Fleming, Powell swerved and collided with a truck parked at the side of the driveway. After the collision Powell stopped and walked back to the truck to ascertain whether it had been damaged by the impact. Upon returning to his automobile Powell was fol- lowed by Fleming and James Walden, vice president of Respondent Local, who like Fleming had been picketing in front of the parking lot. While Powell was preparing to drive off Walden said to him "I'll get you."'9 19 It will be remembered that Fleming participated in Childress' ston- ing. 18 It is not alleged that Fleming's obstruction of the driveway in this manner constituted a separate violation of Section 8(b)(1)(A) of the Act Accordingly, I make no finding as to this. 19 These findings are based on testimony given y Powell, who im- pressed me favorably as a witness concerned with the truth. Fleming testified that he and Walden were picketing at the parking lot when Powell left the Company's premises on the day in question and that he saw the collision between Powell's car and the truck. However, he neither ad- mitted nor denied that he blocked Powell's path , stating, insofar as this is concerned, that he could not remember whether "there [ was] a person in front of Mr. Powell as he drove out of the plant." Notwithstanding his faulty recollection in this regard Fleming was able to remember, and testified, that neither he nor Walden approached Powell after the collision, and that he never heard Walden, "threaten" Powell. In view of Fleming's admittedly imperfect memory with respect to whether Powell's way was obstructed and his bearing while being examined I do not credit his testimony concerning this event Walden was called as a witness by the General Counsel. He refused to testify, however, invoking his constitu- tional privilege against self-incrimination because, like Norris Givens, he was at the, time of the trial under indictment for, allegedly, at a later time shooting at,Powell. LABOR RELATIONS BOARD 2. The shooting Powell and his wife were shot at on September 25. several days after Powell, as I have found, had been threatened by Walden, vice president of Respondent Lo- cal. That shots were fired at Powell and his wife is clear and is virtually admitted by Respondents. Unclear, how- ever, and sharply disputed is the identity of those who particpated in the shooting. Powell and his wife insist that the shots were fired by Walden who, at the time, was rid- ing in an automobile driven by Norris Givens, a striking employee of the Company. and that Norris Givens' wife was also in the car. Respondents, however, stoutly main- tain that neither Walden nor Norris Givens was involved in any way in the event, and, in support of its position. has interposed alibis on their behalf. On the date of the shooting Powell and his wife lived in the western part of Nashville several miles from the Com- pany's plant. which is located in the northern part of the city. Their house was on the northeast corner of Park Avenue, which is an east-west street. and 39th Street, which is a north-south street. Immediately north of Park Avenue is Charlotte Avenue. Behind the house is a public alley which parallels Park Avenue and extends in an east- erly direction from 39th Street for one block until it inter- sects with what I shall call 38th Street.20 Between the alley and Powell's house, and directly behind it. is a yard. access to which can be had only from the alley. There is a street light in the alley adjacent to the yard. Some distance north of the alley. but fronting on 39th Street is a "barbecue" restaurant and on the southwest corner of Charlotte Avenue and 39th Street is another restaurant known as Hardee's. Concerning the shooting. Powell testified21 that: on Sunday. September 25, about 5:45 p.m. he and his wife were in the yard behind their house'22 she sitting in the driver's seat of their car which was parked there about 15 feet from the alley23 and he standing outside. and to the right. of the car; although it was not yet dark, having "just . dimmed a little" the street light in the alley and the lights in the "barbecue" restaurant and Hardee's had been turned on; at the time in question (about 5:45 p.m.24) a 1961 tan Dodge automobile owned by Norris Givens25 entered the alley from 39th Street; as the car drew abreast of the yard behind his house it slowed almost to a stop; he recognized the occupants of the car as being Norris 20 The name or number of this street does not appear in the record. 21 Powell's wife also testified with respect to the shooting. Both also made pretrial affidavits . Insofar as there are material discrepancies between Powell's testimony and that given by his wife , or between their testimony and their pretrial affidavits the discrepancies will be set forth in footnotes 22 In her testimony Mrs. Powell stated that she went from her house to the car between 5:30 and 6 p in. and that her husband joined her in the yard a few minutes later In their pretrial affidavits, executed on Sep- tember 28, 3 days after the event , both stated that the time in question was 6 15 p.m. 23 In his pretrial affidavit Powell stated that his car was about 30 feet from the alley 24 I have already pointed out, in in. 22 above , the discrepancies with respect to the time between the testimony given by Powell and that given by his wife and between their testimony at the trial and their pretrial af- fidavits. 25 Patricia Givens, the wife of Norris Givens , testified that she and her husband had a 1961 Dodge automobile "between . brown and beige" in color, which they acquired about September 15, and that prior to this they owned a white Falcon. UNITED RUBBER WORKERS, LOC. 796 169 Givens, a striking employee of the Company, who was driving, Walden. vice president of Respondent Local, who sat on the right side of the car, and Norris Givens' wife who was seated between them;26 the car then went through the alley in the direction of 38th Street; after it drove off he and his wife remained in their yard, not ex- pecting the car to return; about 5 minutes later the car again entered the alley from39th Street and upon reaching the yard "gradually slowed down" or stopped; when it did so Walden pointed a pistol out of the right-hand window of the car and fired at his wife; the car was then driven off after which he picked up a chain to defend himself in case the car returned; the car did come back in about 5 minutes and. again. Walden fired the pistol out of the right-hand car window, this time, however, the shot was aimed in his (Powell's) direction; and after the second shot he and his wife ran back to their house and called the police. Respondents called Nevilla Williams to testify in sup- port of the alibi with respect to the shooting which they interposed on behalf of Walden. vice president of Respondent Local. Nevilla Williams testified that: she is regularly employed as a saleslady in a Nashville depart- ment store;27 she is a member of a singing group known as The Gospel Chords (herein called Chords)28 for which she does the "booking";29 the Chords were scheduled to give a performance in the Fifth Ward Baptist Church in Clarksville, Tennessee. at 8 p.m. on Sunday, September 25; to keep this engagement the Chords left Nashville about 4 p.m. in an automobile owned, and driven, by Walden 30 and arrived in Clarksville about 5:15 p.m 31; upon their arrival they were informed by "the sponsor of the program" that it had been cancled because it had rained in Clarksville that afternoon32 and that she had called Nashville to inform the Chords of the cancellation. but they had already set out for Clarksville; the Chords and Walden had dinner at the home of the program's "sponsor"; 33 the Chords left Clarksville about 8 p.m. in Walden's automobile and arrived in Nashville about an hour later; and Walden remained with the Chords in Clarksville "the full time." To establish Norris Givens' alibi Respondents called two witnesses, his wife, Patricia Givens. and her grand- mother, Ola Runions. Patricia Givens testified that: dur- ing the morning of Sunday, September 25. she, her husband, and their two children drove in their automo- bile, which, as already noted is a 1961 Dodge. "between . brown and beige" in color (see footnote 25), to the home of her grandmother located in a section of south Nashville known as Woodbine; about noon they had lunch at her grandmother's home, after which she drove her husband. Norris Givens, to the picket line at the Company's plant in their car and then she. alone, drove their car back to her grandmother's house where she remained all afternoon; when "it was already dark"34 she left her grandmother's house, drove to the picket line, picked up her husband and Fleming.35 another picket. returned with them directly to her grandmother's house which they reached between 6:30 and 7 p.m., retrieved her children and went home, arriving there "well before 8:00"; it took between 30 and 45 minutes to make the round trips between her grandmother's house and the picket line and from 5 to 10 minutes to drive from her grandmother's house to hers; and the route she followed between her grandmother's house and the picket line did not "pass [through or] even come close" to the neighbor- hood in the western part of Nashville in which Powell lived, nor did she go near Powell's house in traveling from her grandmother's home in the southern part of Nashville to her home, which is located in the eastern section of the city. Ola Runions. Patricia Givens' grandmother. cor- roborated the testimony given by Patricia Givens. In ad- dition. she testified that she remembered it was on Sep- tember 25 that she was visited by her granddaughter. her husband, and their children because "it was the night that 26 Powell knew Walden and Norris Givens , having worked with them. Powell was never introduced to Norris Givens ' wife, and testified that he had seen her on one occasion before September 25. On that day, Powell related, which was about the time the strike started (September 8) while looking through a window at the Company 's plant he saw her on the street approximately 35 feet away and was told by "one of the guys [that she] was [Noms Givens'] wife." Powell further stated that he saw this person and Norris Givens enter a white Corvair automobile and he "assumed it was [Norris Givens'] wife because ... [they] was sitting pretty close together." I am sure that Powell's identification of Mrs. Givens as being one of the occupants of the automobile which was driven through the alley was made in good faith. I cannot give it much weight, however, even ab- sent the factors discussed below , in view of the scanty foundation upon which Powell's knowledge that the person in question was, in fact, Mrs. Givens rests Mrs. Powell also named the occupants of the car as being Walden, Norris Givens and the latter's wife. She admitted, however, after some vacillating testimony that she did not learn the names of the people involved until after the shooting when she was given that information by her husband. 27 It does not appear that Nevilla Williams was ever employed by the Company, nor does it appear that she was ever a member of either Respondent 28 The Chords consists of four people. From time to time, usually on weekends, it performs for churches and similar organizations 29 During the course of her testimony Nevilla Williams related that she kept records of all engagements of the Chords and produced a book which she described as the Chords' engagement book. She stated, at first, that the book was new and that it was her belief that she began to use the book in June. Upon examination, however, it appeared that the first engage- ment listed in the book was for September 24 When this was called to her attention Nevilla Williams explained that the September 24th engagement listed in the book was the Chords' first during that month and that "as [she] stated before this was a new book and the performaces before this month were recorded in another book which [she didn't] have now [because she] didn't think it would be necessary." The General Counsel contends, in his brief, that this discrepancy and Nevilla Williams' admis- sion that Walden was a good friend of the Chords , about which I will com- ment later, "argue against her credibility." However, because the book recorded an engagement prior to the one on September 25, which is the one relied on, in part, by respondents to establish Walden's alibi, and many after that date , as is recognized by the General Counsel, and because the demeanor of Nevilla Williams impressed me as that of a truthful witness , I accept her explanation at face value I will, therefore, draw no adverse conclusion as to her credibility because she was, with ob- vious honesty, mistaken as to when she began to use the book 30 As Nevilla Williams credibly testified, although she was unable, with certainty to fix all dates and places, Walden had on previous and sub- sequent occasions driven the Chords to other "out of town engagements." 31 The distance between Clarksville and Nashville is approximately 45 miles. 32 In this respect, I take notice, as reported by the United States Weather Bureau, that it did, in fact, rain in Clarksville on September 25. 33 It appears to be the usual thing for an organization which engages the Chords to provide its members with food. 14 Official notice is taken of the fact that on September 25, sunset took place in Nashville at 5 40 p .m, and that the twilight period ended 28 minutes later. 35 The General Counsel would have me draw an adverse inference in- sofar as this portion of Patricia Givens' testimony is concerned from the fact that Fleming, who had testified earlier on behalf of Respondents, was not called by them to corroborate Mrs. Givens . This, I refuse to do, in view of the fact, as set forth below, that Patricia Givens ' testimony was corroborated in this regard and in all other respects by Ola Runions 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Norris Givens] was arrested" and because "the next day [she] had a dentist appointment and [she had] a record of that." On the basis of all the testimony concerning this phase of the case I conclude that respondents established the alibis they interposed on behalf of Walden, vice president of Respondent Local, and Norris Givens, insofar as their alleged involvement in the Powell shooting is concerned. With respect to Walden, I believe the testimony of Nevil- la Williams that Walden left Nashville with the Chords about 4 p.m. on September 25. and did not return until about 9 p.m. that night. Not only is she a disinterested witness having nothing to gain or lose by her testimony, for which reason I give it great weight, but also because of her demeanor while testifying, upon which I have al- ready commented.36 Believing her, I cannot find that Walden shot at the Powells on September 25, or that he was an occupant of the car from which the shots were fired on that day, as the Powells testified. Patricia Givens. the wife of Norris Givens, and her grandmother may not, by reason of their relationship to Norris Givens. be classed as witnesses having no interest in the outcome of this case. Because of their interest I ob- served them closely while they were testifying concerning the whereabouts of Norris Givens on September 25. Based on their attitude and behavior while on the witness stand I cannot conclude that they were lying when they gave their mutually corroborative testimony.37 I cannot find, therefore, that Norris Givens drove his automobile through the alley behind Sammy Powell's house during the early evening of September 25, nor can I find that he, accompanied by Patricia Givens. his wife, drove the car, whichever one it might have been, from which an occu- pant shot at the Powells. While, as I observed at the outset of this section of this Decision, it is clear and virtually undenied by Respond- ents, that during the early evening of September 25, an automobile was driven through the alley behind the house in which Sammy Powell and his wife lived and that they were fired upon from that car, Sammy Powell's testimony concerning his recognition of the occupants of the au- tomobile in question is suspect.38 Considering first the time at which the shooting is alleged to have occurred, Powell testified that the automobile first came through the alley at 5:45 p.m., and that it returned twice thereafter at 5-minute intervals and that the shots were fired during the car's second and third passes through the alley. Mrs. Powell was not as definite. She testified that she entered her own automobile which was parked in the yard between the alley and her house between 5:30 and 6 p.m. and that the shots were fired during that interval. In their pretrial affidavits, however, she and her husband both stated that she did not get into the Powell car until 6:15 p.m. Considering next the distances invoved. Powell testified that his automobile, in which his wife was sitting and next to which he was standing while the shots were fired, was parked about 15 feet from the alley. But, in his pretrial affidavit he stated that the distance between his parked car and the alley was 30 feet. Ordinarily, discrepancies such as these would not be significant They attain importance, however, when con- sidered in connection with Powell's claimed recognition of the occupants of the car from which the shots were fired. If the automobile had first come through the alley at 5:45 p.m. and the shots had been fired at 5:50 and 5:55 p.m., it would still have been twilight and perhaps from a 'distance of 15 feet Powell would have been able to recognize those in the car.39 Had the events in question. however, occurred a half hour later it would have been full dark and Powell's ability to identify the occupants in the car at that time from a distance of 30 feet would clearly have been deminished. The fact that the street, and other, lights may have been turned on do not in view of their distances from the alley and of the shadows which such lights are known to cast alter my conclusion as to Powell's capacity to recognize the occupants of the car from which the shots came if they were in fact fired at the later times and if Powell had actually been standing at the greater distance from the alley. Accordingly, considering the record as a whole, I find that the General Counsel has not sustained his burden of proving by a preponderance of the evidence that on Sep- tember 25, Walden, vice president of Respondent Local, while riding in an automobile driven by Norris Givens, a striking Company employee, shot at Powell and his wife as alleged in paragraph 8(e) of the complaint.4° I will, therefore, recommend that this paragraph and the relating portion of paragraph 9 of the complaint be dismissed. E. Contentions and Concluding Findings Concerning Respondents Alleged Unlawful Conduct The remaining portions of the complaint allege that Respondents committed unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act by punching, shoving, threatening, and stoning employees. Although Respondents deny having engaged in this conduct, they argue, by way of avoidance, that even if they did there is no evidence to support a finding that they were motivated by "an attempt to prevent non-striking employees from exercising their rights as guaranteed by Section 7 of the Act." Respondents finally contend, on the assumption that they did contravene Section 8(b)(1)(A) of the Act that the violative incidents in question should be regarded as mere isolated events not warranting the entry of a remedial order because they occurred during the course of a long strike. Notwithstanding Respondents' denials, I have found that persons for whose actions Respondents are liable punched, shoved, threatened, and stoned nonstriking em- ployees of the Company. It needs no citation of authority to establish that Respondents thereby violated Section 8(b)(1)(A) of the Act. 36 See in. 29 . In assessing the credibility of Nevilla Williams I have duly considered the fact that Walden is , as she stated "a very good friend of ours " 31 In view of the obviously advanced age of Mrs Runions I had some doubt concerning her ability to recall that the events concerning which she testified occurred on September 25. This was dispelled, however, when she gave her reasons for remembering the date. 38 Mrs Powell's identification of the occupants of the car is, as I have found, based on information given her after the shooting by her husband. Accordingly, her testimony in this regard suffers from the same infir- mities as her husband's. 31 It will be remembered, in this connection , that on September 20, the sun set at 5:40 p in. and that twilight continued after that for 28 minutes 40 This finding should not be construed as a reflection upon the credi- bility of either Powell or his wife. They appeared to be witnesses who were trying to tell the truth For the reasons which I have already stated, however, I conclude that their testimony with respect to the identity of the person who shot at them and of those who were in the car from which the shots were fired is overweighed by the testimony given by Nevilla Wil- liams , Patricia Givens, and Ola Runions UNITED RUBBER WORKERS , LOC. 796 Respondents' exculpatory arguments avail them little. With respect to their motive contention. it is well settled that the test of restraint and coercion within the meaning of the Act does not turn on the motive for the conduct. Russell-Newman Mfg. Co., Inc., 153 NLRB 1312, 1315; Exchange Parts Company, 131 NLRB 806, 807, 812, affd. 375 U.S. 405.41 Moreover, should motive for conduct be deemed to be an ingredient of a violation of Section 8(b)(a)(A)Section 8(b)(1)(A) of the Act. as Respondents contend, the acts which I have found they engaged in. loudly bespeak a motive to restrain and coerce employees in the exercise of rights guaranteed by Section 7. Respondents' argument respecting the isolation of the unfair labor practices found is likewise without merit. It is true, as Respondents point out in their brief, that the violations in question occurred "during a strike that has lasted [almost] four months." Also true, it must be re- membered. is that Respondents' three separate violations of Section 8(b)(1)(A) of the Act, which involved punching, shoving, stoning, and threatening nonstriking employees, took place during the first 2 weeks of the strike. It is precisely for this reason that they cannot be disregarded. In a like situation. presented in Local 542, International Union of Operating Engineers, AFL-CIO v. N.L.R.B., 328 F.2d 850, 852, cert. denied 379 U.S. 826, the Court of Appeals for the Third Circuit stated, in rejecting a contention similar to that made by Respond- ents here: The argument seems to overlook the setting in which the incidents occurred. It is significant that the in- cidents occurred in the early days of the strike and within the relatively short period of eleven days, when the Union was most active in its organizational effort; they were not spread over the ten weeks of the strike, as the Union here contends. Twin-Kee Manufacturing Co., Inc., 130 NLRB 614, cited by Respondents in support of their argument here under consideration is readily distinguishable on its facts from the instant case. There the Board found it unneces- sary to enter an order upon violations which consisted solely of two threats uttered on the first day of a strike. Here. as has already been pointed out the unfair labor practices involved were committed during a time span of 2 weeks and were composed not merely of threats, but in- cluded also, more flagrantly, punching. shoving, and ston- ing. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondents' activities set forth in section III. above, occurring in connection with the Company's operations as set forth in section I. above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. 4' The cases cited deal with Section 8(a)(1) of the Act. Nevertheless, they are equally applicable to Section 8(b)(1)(A), which was designed to extend to employees the same protection against restraining and coercive acts of labor organizations that Section 8(a)(1) provides against similar V. THE REMEDY 171 Having found that Respondents engaged in unfair labor practices within the meaning of Section 8(b)(I)(A) of the Act, my Recommended Order will direct Respondents to cease and desist thereupon and to take the affirmative ac- tion normally required in such cases to effectuate the poli- cies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case. I make the following: CONCLUSIONS OF LAW 1. The Company is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. Respondents are labor organizations within the meaning of the Act. 3. The president, vice president, and picket captains of Respondent Local are its agents within the meaning of Section 2(13) of the Act. 4. The conduct set forth in section III. D, 1, and III, E. hereof, constituted unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. Respondent Local and Respondent International are jointly and severally liable for the unfair labor prac- tices referred to in Conclusion of Law 4. above. 6. By the conduct referred to in Conclusion of Law 4. above. Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 7. Respondents did not violate Section 8(b)(1)(A) of the Act in the manner set forth in paragraph 8(e). and the related portion of paragraph 9, of the complaint. Upon the foregoing findings of fact. conclusions of law, and upon the entire record in this case, I hereby issue the following: RECOMMENDED ORDER United Rubber, Cork. Linoleum & Plastic Workers of America, AFL-CIO. and United Rubber Workers. Local 796. their officers, agents. and representatives. shall: 1. Cease and desist from: (a) Punching, shoving, throwing rocks at, or in any other manner inflicting bodily injury upon , or assaulting, any employee . or threatening to do so, because he has worked, or continues to work, for Tennessee Wheel and Rubber Company during any strike which was, is being, or may be in the future . carried on against Tennessee Wheel and Rubber Company by United Rubber. Cork, Linoleum & Plastic Workers of America, AFL-CIO; United Rubber Workers. Local 796; or any other labor organization (b) Damaging , or threatening to damage , any property owned by. or in the possession of, any employee because he has worked , or continues to work, for Tennessee Wheel and Rubber Company during any strike which was, is being, or may be in the future , carried on against conduct on the part of employers . S. Rep. No 105, 80th Cong., 1st Sess., p. 50 See also Capital Service, Inc., v. N L.R.B , 204 F 2d 848, 852 (C A. 9) 172 DECISIONS OF NATIONAL Tennessee Wheel and Rubber Company by United Rubber. Cork, Linoleum & Plastic Workers of America. AFL-CIO; United Rubber Workers, Local 796; or any other labor organization. (c) In any like or related manner interfering with, restraining, or coercing employees of Tennessee Wheel and Rubber Company in the exercise of their right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, or to engage in other concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities. 2. Take the following affirmative action which, it is found, will effectuate the policies of the National Labor Relations Act, as amended: (a) Post at their offices copies of the attached notice marked "Appendix A."42 Copies of said notice. to be furnished by the Regional Director for Region 26 of the National Labor Relations Board, after being signed by authorized representatives of Respondents, shall be posted by Respondents immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to en- sure that said notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Director for Region 26 of the National Labor Relations Board signed copies of said notice in sufficient number to be posted by Tennessee Wheel and Rubber Company, it being willing. (c) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith.43 IT IS FURTHER RECOMMENDED that the complaint be, and it hereby is. dismissed insofar as it alleges unfair labor practices not specifically found herein. 42 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 Umted States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 48 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 Re- spondent has taken to comply herewith." APPENDIX A NOTICE TO ALL MEMBERS Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor LABOR RELATIONS BOARD Relations Act, as amended, we, hereby notify our mem- bers and all other persons that: After a trial in which both sides had the opportunity to present their evidence it has been found that we violated the law by committing unfair labor practices and we have been ordered to post this notice and to keep the promises that we make in this notice. WE WILL NOT, nor will our officers, picket cap- tains, or anyone acting with them or under their con- trol or supervision, punch, shove, throw rocks at, or in any other way injure, attempt to injure, or threaten to mistreat. any employee because he has worked, or continues to work, for Tennessee Wheel and Rubber Company during our strike against that Company or because he has crossed, or in the future does cross, the picket lines which we have set up at that Com- pany. WE WILL NOT, nor will our officers, picket cap- tains, or anyone acting with them or under their con- trol or supervision, damage or threaten to damage any automobile or any other property owned by, or in the possession of, any employee because he has worked, or continues to work, for Tennessee Wheel and Rubber Company during our strike against that Company or because he has crossed, or in the future does cross, the picket lines which we have set up at that Company. WE WILL NOT in any similar way interfere with, restrain, or coerce any employees in the exercise of any rights guaranteed them by law which include the rights to self-organization, to form, join, or assist any union, to bargain collectively through any union or representative chosen by any employees as to wages, hours of work, and other terms or conditions of em- ployment. or not to do so. UNITED RUBBER, CORK, LINOLEUM & PLASTIC WOR- KERS OF AMERICA, AFL-CIO (Labor Organization) Dated By Representative Title UNITED RUBBER WORKERS, LOCAL 796 (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, 746 Federal Office Building, 167 North Main Street, Memphis, Ten- nessee 38103, Telephone 534-3161.