United Transportation Union

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Transportation Union, Local 1023, AFL-CIO and Capitol Bus Company. Case 5-CC-472 December 22, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On January 16, 1970, Trial Examiner Paul C. Weil issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed excep- tions, together with a brief, to the Trial Examiner's Decision and the Respondent filed an answering brief to the exceptions of the Charging Party. 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 made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modification.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 Recommend- ed Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. CHAIRMAN MILLER, dissenting in part:2 I cannot agree with my colleagues' adoption of the Trial Examiner's Decision that certain incidents alleged to be violative of Section 8(b)(4)(ii)(B) should be dismissed either because the conduct cannot be attributed to the Union or that such conduct was de minimis in nature. The incidents in question occurred at the Washing- ton and Philadelphia bus terminals owned or operat- ed by Safeway or its subsidiaries and utilized by i In dismissing the allegations of the complaint regarding the June 13 incident at the Washington, D C, terminal, we do not adopt the Trial Examiner's conclusion that American allied itself to Safeway by providing Capitol with its franchise and authority However, we agree with the Trial Examiner that responsibility of Respondent for the offending conduct cannot be inferred on the basis of the present record 8 On the basis of credibility resolutions by the Trial Examiner, I agree Capitol Bus in its operations. Two incidents occurred at the Washington terminal. In one, McGuire, the president of Capitol who was riding on a Capitol bus, told pickets that they should stop annoying customers and intimidating employees with their remarks and indicated he would get an injunction to stop such activity if necessary. There was credited testimony that King, one of the pickets replied that "we will put 50 people on the sidewalk without picket signs to take care of you" and to "keep Capitol out." 3 The second Washington incident occurred on June 13, 1969, when picket Hawkins approached Van Atta, Capitol's vice president, and told him to tell McGuire that "I am going to punch him in the nose, that I'm captain of this picket line." The same picket cursed Van Atta in obscene terms a few days later and threatened to mop up the sidewalk with him. The picket later apologized to Van Atta for this latter conversation. There were three separate incidents at the Philadel- phia terminal on August 21, 1969, when Capitol buses driven by supervisors were prevented for 5 to 10 minutes from entering the terminal by pickets who massed in front of the buses. Special policemen stationed at the terminal during the course of the strike were called upon to remove the pickets so the buses could enter. The Trial Examiner recommended dismissing these incidents on the ground, inter alia, that responsibility of the Respondent could not be inferred for the conduct since no representative or agent of Respon- dent was at the scene when the unlawful conduct took place, and there was no showing that the Respondent Union adopted or ratified the pickets misconduct. This rationale, in my opinion, leads to condonation of picket line misconduct in many 8(b)(4) situations and overlooks the realities involved, particularly in this case. Contrary to my colleagues and the Trial Examiner, I have no difficulty concluding that Respondent was responsible for the conduct in which its pickets engaged and the record supports such a conclusion. Thus, Respondent has admitted that it authorized the strike against Safeway and that it established these picket lines at places where it was aware that other employers did business. Additionally, in Washington, the Respondent was in close touch with its picket lines-so close in fact that its union hall was just across the street and two doors down from the terminal where the pickets were engaged in their picket duties. Not only did the union vice chairman with the majority that allegations of violations of Section 8(b)(i)(B) should be dismissed along with other Section 8(b)(4XiXB) allegations purported to have occurred at the Philadelphia terminal in early April d Van Atta, Capitol's vice president, testified that picket King employed the phrase "to keep Capitol out" Besides McGuire and Van Atta, other executives and employees of Capitol were present Capitol, of course, was not on strike 187 NLRB No. 61 UNITED TRANSPORTATION UNION 407 visit the picket line daily, but individuals in charge of the union hall visited the picket line hourly. The union officials scheduled pickets for picket duty, the pickets were paid to picket by the Respondent, and the pickets were wearing authorized picket signs. Appar- ently, the situation was the same at Philadelphia, except that the Respondent's strike headquarters were in a restaurant near the terminal, and picket captains were on the picket line at times. Furthermore, the record establishes that buses were blocked in Phila- delphia on enough occasions that it became necessary to have a labor policeman constantly stationed at that terminal. Inasmuch as the unlawful activity did recur, it is reasonable to infer that the Union would have to have had some knowledge of the activity on its picket line there. All of the above factors lead me to conclude, as my colleagues did, in adopting the Trial Examiner's Decision in Pellitteri Trucking, 4 that "a union which calls a strike and authorizes picketing must retain control over the pickets in whatever manner it deems necessary, in order to insure that they do not act improperly. If a union is unwilling, or unable, to take the necessary steps to control its pickets, it must then bear the responsibility for their misconduct." This is especially true in situations where neutrals are involved and innocent persons become the victims of the union's unlawful conduct.5 In finding these incidents unlawful, I conclude that an object of the Union's conduct in this case was an object prohibited by Section 8(b)(4)(n)(B) of the Act, i.e., forcing or requiring Capitol to cease doing business with Safeway. Illustrated by the words and actions of the pickets themselves, the object was obviously "to keep Capitol out." The venom of the pickets' verbal attack on Van Atta, and threatening Capitol's president, is particularly noteworthy since Van Atta was the Capitol official driving buses through Respondent's picket lines, as he had every right to do. Blocking the entry of the buses at the Philadelphia terminal is an obvious example of the Union's object-to keep Capitol from doing business with Safeway. Nor can Respondent take legal refuge in its alternative position that Capitol and Safeway were allies, and that therefore the actions of the pickets would not be violations of Section 8(b)(4) since those actions occurred in the course of picketing which was in the nature of a primary dispute. Such a contention is without merit since the facts establish that Capitol and Safeway are separate independent companies with no common ownership or managerial control.6 When Safeway employees struck, Capitol simply made alternate arrangements in order to carry on its business,' and those alternate arrangements did not include Capitol's employees performing work which, but for the dispute, would customarily be performed by the employees of Safeway. Furthermore, even had Capitol continued its lease arrangement with Safe- way, an ally relationship would not have been created since such a relationship is not created simply by continuing a prestrike business arrangement.8 In view of the five incidents found to have occurred and discussed previously, any argument that such conduct was de minimis is clearly without merit. Respondent, nevertheless, claims that since only a few incidents of unlawful conduct took place and since the strike has long ago been settled, there is no reason to issue an order. However, it seems clear that the pickets' conduct, in each instance, was a violation and deserving of a cease-and-desist order. Since Section 10(c) requires such an order when a violation has occurred, I would issue such an order here.9 4 Drivers, Salesmen, Warehousemen, Cannery, Local 695, IBT, and its agents Donald Eaton and Eugene Machkovitz (Tony Pellitteri Trucking Service Inc), 174 NLRB No. 115 5 This view of union responsibility for results of actions which it sets in motion would appear to be supported by the plain words of Section 2(13) of the Act, which states- " In determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." 6 See Seymour Transfer, Inc, 176 NLRB No 169 r Compare, N LR.B v Business Machine and Office Appliance Mechanics Conference Board Local 459, International Union of Electrical Radio and Machine Workers, CIO (Royal Typewriter Co), 228 F.2d 553 (C.A 2), setting aside 1 I I NLRB 317, cert denied 351 US 962, and Patton Warehouse, 140 NLRB 1474, 1483, enfd. in part 334 F.2d 539, 546-547 (C A.D C ) 8 Friden, Inc, 134 NLRB 598, 607-608 9 Auto Workers v N L.R B, 427 F 2d 1330 (C A 6), remaining Omni Spectra, Inc, 176 NLRB No 24; International Woodworkers Local 3-10 v NLRB, 380 F 2d 626 (C.A.D C) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: On a charge filed June 18, 1969, and thereafter amended on July 10, 1969, by Capitol Bus Company, hereinafter called Capitol, against United Transportation Union, Local 1023, AFL-CIO, hereinafter called Respondent, the General Counsel, by the Regional Director for Region 5 (Baltimore, Maryland), issued a complaint on July 17, 1969, alleging that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, by various acts and conduct during a strike by Respondent against Safeway Trails, Inc., herein called Safeway. By its duly filed answer Respondent admitted various allegations in the complaint but denied the commission of any unfair labor practices and affirmatively alleged that Capitol was and is an ally of Safeway and has performed work that but for the strike would have been performed by Safeway's sinking employ- ees. On the issues thus joined a hearing was held before me at Washington, D.C., on September 30, 1969, and on October 30, 1969. At the hearing the General Counsel was permitted to amend the complaint in various particulars and 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's denial of the allegations added thereby was noted on the record. All parties were represented and were afforded full opportunity to participate and examine witnesses and to introduce relevant evidence. Following the hearing briefs were received from each of the parties. Upon the entire record in this proceeding and in contemplation of the excellent briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION It is alleged and admitted that Capitol is a Pennsylvania corporation engaged in providing interstate and intrastate bus transportation for the public in the area between Elmira, New York, and Washington, D.C.; Safeway is a corporation engaged in providing interstate and intrastate bus transportation for the public between Washington, D.C., and New York, New York, and intermediate points. Safeway also owns and operates the Trailways bus terminals in Baltimore, Maryland, and Philadelphia, Pennsylvania. Trailways Terminal of Washington, D.C., Inc., herein called Terminal, is a corporation engaged in the operation of the Trailways bus terminal in Washington, D.C. Capitol and Safeway each annually derives income in excess of $50,000 from the interstate aspects of their operations. Terminal annually derives income in excess of $50,000 for services to bus companies whose interstate operation meet the Board's jurisdictional standards. Both Safeway and Terminal are subsidiaries of Continental Trailways Inc. Capitol, Safeway, and Terminal are each of them engaged in commerce within the meaning of Section 2(6) of the Act and Safeway and Terminal are persons engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent is and at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background Capitol and Safeway are both members of a trade association operating under the name of The National Trailways Bus System which consists of some 40 independ- ent bus transportation companies operating as a group to provide through bus service in and among the United States. Safeway is a subsidiary of Continental Trailways Inc., as are American Bus Lines, hereinafter called American, and Terminal. Safeway's drivers are represented by Respondent. Capitol's drivers are represented by Amalgamated Transit Union. Commencing on April 1 t Respondent engaged in a strike in support of a labor dispute with Safeway during the course of which Respondent caused picketing to take place at the terminals used by both Safeway and Capitol located i All dates hereinafter are in the year 1969 unless otherwise specified 2 The record does not disclose why Capitol sought and obtained the in Philadelphia, Pennsylvania, Baltimore, Maryland, and Washington, D.C. The strike continued until August 27 and the employees returned to work on August 28. According to its certificate issued by the Interstate Commerce Commission, Capitol's route of service into Washington, D.C., is via Routes 15 and 70 through Harrisburg, Gettysburg, and Frederick, Maryland. In order to provide through bus service south of Washington, D.C., for passengers originating at Harrisburg and the various other points serviced by Capitol north of Baltimore, Capitol at some time in the past through its membership in the Trailways Bus System agreed with Safeway that its equipment could operate over Safeway's certificated route between Baltimore, Maryland, and Washington, D.C., and thereon to points south of Washington. This arrangement took the form of a leasing of the equipment to Safeway. The driver, for the period of time he operated over the Safeway route, became Safeway's employee and Safeway assumed responsibility for the transportation and safety of the passengers. For this service Safeway was compensated by Capitol at a certain price per mile plus the cost of the driver. This arrangement enabled Capitol to serve passengers north from Washington, D.C., either by way of Baltimore over Safeway's franchise or by way of Gettysburg or Harrisburg over its own. When the strike commenced Safeway's operation was completely shut down. Capitol thereupon entered into an identical agreement with American which also was a certificated interstate motor carrier between Baltimore and Washington. This arrangement continued until July 3 at which time Capitol received temporary authority from the Interstate Commerce Commission to operate between Baltimore and Washington over the Baltimore-Washington Expressway. This authorization, however, was restricted against local service between Baltimore and Washington; that is to say, Capitol could not carry passengers that originated either in Baltimore or Washington destined for either Washington or Baltimore, respectively.2 When the strike was concluded the operations were resumed as they had taken place prior to the strike. Capitol again leased equipment to Safeway for the run between Washington and Baltimore in providing through service north of Baltimore and south of Washington. Capitol operated out of Trailways bus terminals located in Washington, Baltimore, and Philadelphia. The Baltimore and Philadelphia terminals were owned by Safeway; the Washington terminal is operated by another subsidiary of Continental Trailways. In each of the three terminals Capitol is a tenant under agreements which provided for the sale of tickets for the Capitol lines and the docking and dispatching of Capitol's equipment. The Capitol drivers did not cross the picket lines at any of the terminals. They would park their buses on adjoining public streets and alleys where passengers were loaded and unloaded except when supervisors drove their buses into and out of the terminals. This took place in Washington and Philadelphia. During the course of the picketing four incidents took place which the General Counsel contends violated Section 8(b)(4xi) and (ii)(B) of the Act. temporary operating authority from the Interstate Commerce Commission rather than continuing to operate on American 's franchise and certificate UNITED TRANSPORTATION UNION The Alleged Violations The strike commenced on April 1, 1969 Capitol drivers did not cross the picket lines at any of the terminals About 2 weeks later at the Philadelphia terminal, Capitol began to bring its buses across the picket line into the terminal, using supervisors to drive them Safeway operated the Philadel- phia terminal Its supervisor, John Wirth, testified that when supervisors began to bung equipment into the terminal, pickets, including five whom he named, accosted the Capitol drivers who turned their buses over to supervision, warning them not to go into the terminal, nor to use the terminal telephone which drivers ordinarily used to report their arrival, nor use the terminal restaurant According to Wirth's testimony similar instructions were given the drivers from other bus lines about the same time Two of the pickets who were identified were Richard Dole and Edward Seng Dole and Seng were both called as witnesses by Respondent They both denied making any of the statements attributed to them by Wirth Both testified that they had no occasion for making such statements because the Capitol drivers uniformly honored Respondent's picket line, no further action was called for on their part Both admitted talking to Capitol drivers but only to exchange pleasantr.es and greetings Dole testified that the only occasion he had to talk to anyone from Capitol with regard to drivers crossing the line was a conversation with Capitol Vice President Van Atta who asked if it was all right for his drivers to cross the line and use the telephone to call in their accounts Dole testified that he answered "We cannot stop them but if he remembered the strike they had we had seven drivers fired for honoring one of their picket lines of Capitol Trailways What would you want your drivers to dog" John Lowe, the president of the Amalagamated Transit Union Division 1195 which is the representative of Capitol's drivers and maintenance employees, testified that his local had a policy that the drivers would not cross picket lines and that he had no knowledge of any member crossing the picket line in the instant situation Lowe on cross- examination testified that although in a discussion with Attorney Ortman he had mentioned a threat of bodily harm if the operators crossed the picket line, he had no knowledge of anyone ever having been threatened He explained his mention simply on common knowledge that bodily harm has been inflicted upon people crossing picket lines Wirth's story in its original form appears incredible to me He testified in effect that each of five pickets made identical statements to each of three drivers over a period of 35 minutes Common experience suggests that this is highly improbable On cross-examination he reiterated that each of the five said exactly the same thing to each of the three drivers and testified further that they spoke to the drivers as they got out of their buses, turning them over to supervision, and as they were walking away from the picket line It appears incredible to me that this would have occurred Admittedly no driver attempted to cross the picket line at anytime If because of the fact supervision had started driving buses across the picket line at this time there was a need in the mind of Respondent's pickets to 409 inform the arriving drivers that the situation had not changed with regards to their crossing the picket line, it does not seem probable that this information would have had to be reiterated to the already cooperative driver five times The General Counsel argues that "no mortal, when pressed can accurately give a precise verbatim recitation of what five men said to three men in a span of 30 minutes But that is not to say that a credible account of essential elements cannot be given " He is quite right but the point is that a credible account was not given and I cannot assume that what Wirth meant to testify was anything different from what he did testify Accordingly I cannot credit his testimony The General Counsel further points out that Dole and Seng were "not models of credibility" and criticizes Seng's testimony that Respondent at no time gave any instructions to the pickets other than to carry the picket signs and march around the terminal I agree that this too sounds improbable But it does nothing to enhance the credibility of Wirth General Counsel's burden is to establish the fact and in order to do this he has to establish the credibility of his own witness This he has not done Of course I can infer that one or more of the pickets said something similar to Wirth's testimony, but the inference is equally available that none of them did In the absence of a compelling reason to do so I decline to draw an inference of illegal conduct from Wirth's incredible testimony Accord- ingly I find that the General Counsel has not sustained his burden of proof with regard to this incident and I shall recommend that the complaint be dismissed insofar as it is alleged to be violative On the evening of June 13 a bus owned by Capitol was loaded on the street adjoining the Washington terminal When the bus was filled the driver advised additional prospective passengers that they would have to stand if they wanted to take that coach As additional passengers commenced boarding the bus two pickets started a conversation in loud tones intimating that it was unsafe to permit passengers to stand on the bus One of the drivers stated "Capitol is so hungry for money, it will take chances with people's lives " The last person to board the bus was Richard J Maguire, the president of Capitol Bus Company As the pickets continued their remarks Maguire came to the door of the bus and identified himself and one of the pickets said "Don't you care about the chances you are taking with people's lives9" Maguire rejoined "If necessary I'm going to get an injunction to have you stop annoying our customers and intimidating our employees with these remarks " One of the pickets answered "Go ahead and get an injunction We don't care If necessary we will put 50 people on the sidewalk without picket signs to take care of you" The General Counsel contends that the above incident constitutes verbal harassment of the driver, the passengers, and members of Capitol management, and characterizes the picket's statements as "threat to keep Capitol out of the terminal " The bus in question was on route to Harrisburg, Pennsylvania, by way of Baltimore At this point in time the bus was operating under the authority of American Bus Lines and accordingly under the lease arrangement entered into by Capitol the bus was under lease to American and the driver was an employee of American There is no 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegation in the complaint regarding either appeals to employees of American or threats to representatives of American. Further, I see nothing in the quoted language that constitutes inducement of employees of any employer. The only conceivable threat was that of striker King to put 50 people on the sidewalk without picket signs in the event Maguire got an injunction . But then I don't see anything in the testimony that would have warranted an injunction in the first place. Even assuming that something in this incident might constitute a violation directed at American , on the record before me I could only conclude that American by providing its franchise and authority to Capitol to continue the Washington-Baltimore leg of its through trip in place of Safeway allied itself to Safeway to such an extent that activity directed against it or its employees would be primary rather than secondary. I shall recommend that this allegation be dismissed. On June 13 after President Maguire had left Washington, a picket named Hawkins approached Russell Van Atta, vice president of Capitol , and asked him if Capitol's president was in Washington Van Atta replied that Maguire had left whereupon Hawkins said, "Well you tell him I am going to punch him in the nose , that I'm captain of this picket line." A few days later Hawkins identified Van Atta as a person who had driven two buses across the picket line on a previous occasion and challenged him to come out of the terminal and offered to "mop up the sidewalk" with him. Hawkins also cursed at Van Atta with vulgar and obscene terms. A few days later Hawkins came to Van Atta and apologized for the "conversation" of June 16. It appears that on at least one of these occasions that Van Atta drove buses out of the Washington terminal the bus was under the control of Capitol heading north via Gettysburg on Capitol's authority and franchise. Inasmuch as it was clearly Van Atta's driving activities that set Hawkins off, it would appear that the physical threats directed to him had as their purpose causing Capitol to cease operating their buses out of the Washington, D C., terminal, and are therefore violative under the terms of Section 8(b)(4)(i)(B) of the Act. Whether in view of the fact that Hawkins shortly thereafter apologized to Van Atta and no activity of this nature was ever repeated , at least as far as the record reveals, an order is warranted, remains to be considered in the light of all the other activities alleged. On August 21 at the Philadelphia terminal on three occasions Capitol buses being driven across the picket line by Frank Birmingham, assistant operations manager of Capitol, and a supervisor, were held up by pickets standing on the sidewalk or walking in front of the bus at the point at which it would have had to cross the sidewalk to enter the terminal. On each occasion a police officer was called who ordered the pickets away from the front of the bus and the bus moved into the terminal. Each bus was held up from 5 to 8 minutes according to the estimate of Birmingham and Wirth, who also testified about the incident . It is undenied that these were not the only occasions in which buses were blocked by the pickets but over what period of time this occurred is not revealed by the record . At each of the three occasions concerning which we have testimony , one of the pickets, Mason Bradly, came to the driver's window of the bus and asked Birmingham to honor the picket line. In each case Birmingham told him that he was a supervisor and it was his job to take the bus across the line. Keeping in mind that Capitol is the lessee of space in Safeway's Philadelphia terminal , the interruption by Respondent's pickets of Capitol's entry into the terminal is potentially violative . As in the last preceding incident a determination with regard to the alleged violation requires a determination as to whether the Union is liable for the acts of the pickets . In Hawkins' case the General Counsel argues that Hawkins identified himself as captain of the picket line. This of course is not dispositive of his agency nor indeed of the fact that he was a captain at the time or at any time. There is no evidence corroborating this assertion and it is a well-known rule that agency cannot be shown by the alleged admissions of the agent . However General Counsel also contends that, since the strike headquarters at Washington were situated across the street from the terminal and an official of the Union regularly visited the strike headquarters and the picket line, the conduct of the pickets on the line so well supervised is attributable to Respondent . General Counsel further contends that even in the absence of a supervised picket line the conduct of pickets may be attributed to the Union when it conforms to a position established by the local, citing International Woodworkers of America (W. T Smith Lumber Co.), 116 NLRB 507, enfd . 243 F .2d 745 (C.A. 5). In the Philadelphia picketing the record reveals that pickets were assigned on a scheduled basis and were paid by the Union for their effort. Business agents and picket captains were regularly on the line. There can be no real doubt that Respondent's position in this strike was that the Capitol equipment should not be driven into the terminals. This is clear from all the testimony in the case, that of Respondent's witnesses as well as General Counsel's. But whether Respondent was prepared to engage in secondary activity to achieve this goal thereby supporting the assertion of agency on behalf of the pickets is quite another matter . With regard to Hawkins' activity in Washington nothing of the sort had ever taken place before, nothing of the sort took place thereafter, and Hawkins apologized for the name calling and threats in which he indulged. There is no pattern from which it can be assumed that the Union acquiesced in his activity. On the contrary, the pattern would seem to reveal that the Union did not. Similarly with regard to the Philadelphia incidents they were apparently not repeated after the one day in which they took place. All of the substantial evidence reveals only that three incidents took place within the space of some 35 minutes. The fact that such activity did not recur raises an inference that Respondent was not prepared to engage in such activity in support of its "hope" that Capitol buses would not enter the Philadelphia terminal. I conclude that I cannot infer the responsibility of Respon- dent for the offending conduct. In the absence of a showing that the Union was responsible for the acts of the pickets I cannot find either the Hawkins incident or the interference with the buses at the Philadelphia terminal to constitute violations of the Act by Respondent. Even if the Union were responsible, UNITED TRANSPORTATION UNION 411 however, I would not recommend an order based upon these two incidents.3 It does not seem to me that the conduct which I have found to have occurred warrants an issuance of an order. I do not agree with Respondent that the case is moot. Clearly, although the strike is over, future strikes may occur and the conditions which gave rise to the conduct complained of herein are still existent. But it does seem to me that Respondent in the face of a lengthly strike appears quite successfully to have maintained the discipline among the strikers necessary to keep within the law. In the light of my findings and conclusions above I do not deem it necessary to consider the defense put forward by Respondent that Capitol has so allied itself with Safeway that Respondent could interfere with its operations with immunity. I do not reach this issue. engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Safeway and Trailways terminals are each and at all times material herein have been persons engaged in commerce or in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. 3. Respondent is and at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. 4. Respondent has not by any acts or conduct alleged and litigated herein violated Section 8(b)(4)(i) and (n)(B) of the Act RECOMMENDED ORDER I recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Capitol is and at all times material herein has been 3 Of course there were really five incidents, two occasions in which three occasions in Philadelphia in which buses were stopped during a 35- Hawkins threatened members of Capitol's management on June 13 and minute period on August 21 The strike lasted from April I until August 27