General Truck Drivers, Local No. 5

GENERAL TRUCK DRIVERS , LOCAL NO. 5 137 General Truck Drivers, Warehousemen & Helpers of America, Local Union No. 5 and Union Tank Car Company. Case 15-CB-827 June 24, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 12, 1967, Trial Examiner Thomas A. Ricci issued his Decision in the above -entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Deci- sion. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that those allega- tions be dismissed. Thereafter, both the Respon- dent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 briefs, and the entire record in the case , and hereby adopts the findings, conclusions , and recommenda- tions of the Trial Examiner insofar as they are con- sistent herewith. 1. With respect to the events prior to May 1, 1967, taking place at the Employer's plant, we agree with the Trial Examiner that the proof of- fered by the General Counsel is insufficient to establish a violation of Section 8(b)(1)(A) of the Act. Without here documenting each of the sup- porting incidents , most of which are set forth in detail in the Trial Examiner's Decision, we are satisfied that the General Counsel, as found by the Trial Examiner , has in some cases failed to establish adequate proof of responsibility;' in other cases has not shown the existence of threats ; and, in the remaining instances, has failed to show a relation- ship to rights guaranteed in Section 7 of the Act.2 In view of these findings, which are based largely on the facts of the incidents as appear from the Trial Examiner's credibility resolutions , we do not find it necessary to pass on the General Counsel's general contention that violence by union represen- tatives in day-to-day situations at a plant could, in circumstances not found to be present here, con- stitute violations of Section 8(b)(1 )(A). 2. We find, contrary to the Trial Examiner, that the Respondent , through its agent and steward, Emile Verbois, coerced the Employer's employees on May 1 , 1967, in the course of causing them to walk out of the Employer's plant. The Trial Examiner observed that "Baton Rouge is in the bayous of Louisiana, the land of trappers and woodsmen , where life is hard and a man is still said to pack a gun."3 Against such a background, he was unable to find violations in certain com- ments and actions by Verbois when, on May 1, he caused employees to walk out of the plant to protest his own discharge. We agree with the Trial Examiner that in the strike-call situation a tense moment is presented in which a certain amount of prodding is the normal thing, and that "[t]he statute does not require him [Verbois] to say `please' in the circumstances." Nevertheless, there is a line which we feel has been passed in this case. Thus, the record discloses some uncertainty among the employees as to whether they should or should not strike on this occasion. But Verbois made it clear that the statutory right of refraining from union activity was one alternative not open to employees at that time. At the outset, he grabbed the torch out of the hand of employee Palozola and told him to get his "damn ass" out of the shop. Further, when told by Herman Porrier, an employee, that "there was a bunch of us wouldn't walk out" Verbois replied that they "had better walk out if ... [they wanted] to know something good for ... [them]." Upon being told by Alton Guidry, another employee, that "he would follow the majority ... ," Verbois answered that he would "get ... [them] out one way or the other." Ver- bois' attitude was further reinforced when em- ' Teamsters Local #115, etc. (E. J Lavino & Company), 157 NLRB 1637,1638,fn.I I Millwrights' Local Union 1102 Carpenters, etc (Planet Corporation), 144 NLRB 798; Brewers and Maltsters Local Union No. 6 Teamsters (Fal- staff Brewing Corporation ), 141 NLRB 448. 3 The General Counsel excepts on the ground, inter aha , that "Baton Rouge is a large, industrial city, with a population of approximately 166,000 ... the Capital of the State of Louisiana, and the home of the State 's largest university .... Men 'packing guns' must still conform to City, Parish and State firearm regulations Annie Christmas died in the early 19th century , Bill Sedley fled the Baton Rouge-New Orleans area at approximately the same time , and Mike Fink was never reported south of St. Louis, in fable or fact, contrary to the insinuations of the Trial Ex- aminer's Decision; and, in any event, none of them was involved in this un- fair labor practice hearing." 172 NLRB No. 11 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee Musson said to Verbois in the presence of other employees that " if they don't want to go out . .. we will get them as they come out the gate. We will mash their heads down if that 's what it takes." There is no evidence that Verbois sought to dis- avow this threat or otherwise reject the course of action proposed by Musson ." Musson 's threat was a natural outgrowth of Verbois ' own intemperate statements and was clearly in aid of Verbois' at- tempts to force employees to strike in protest of his discharge. Accordingly , we find that the above statements and acts of Verbois, and the failure of Verbois to disavow the threat uttered by Musson, constituted threats of bodily harm by Respondent and were reasonably calculated to, and did , coerce the employees in the exercise of their rights under Section 7 of the Act , in violation of Section 8(b)(1)(A) of the Act. 3. We do not find that the acts and statements of Edward Partin , the Respondent's business agent, and the statements of employees Mulkey and Du- vall, all made at the union meeting of May 15, 1967, violated Section 8(b)(1)(A) of the Act. While we agree with the Trial Examiner that there was a dispute among the employees as to whether or not to return to work , we find no evidence in the record that the meeting of May 15 was called for the purpose of preventing a back-to- work movement. The statements of Duvall and Musson , while expressing their personal intention to use force to prevent other employees from crossing the picket line, cannot, in the circum- stances, fairly be attributed to Partin and the Respondent. The credited testimony establishes that the meeting hall was crowded , and that com- ments came from many directions. While, as the Trial Examiner found, members Duvall and Musson spoke of intimidating employees not to cross the picket line, there was also talk of the illegality of the strike ; of a sister local; of the personal feud between Partin and Albin, an official of the sister local; and of Partin having been stabbed and shot at. But the testimony does not establish the sequence in which events at the meeting occurred or any other positive evidence that would furnish some basis for finding a ratification or approval by Partin of those coercive statements made by Duvall or Musson.' ' That a union agent has such a duty is clear. See Teamsters Local #115, etc (E J Lavino & Company), supra, at 1643, and cases cited therein. See also Local 5881. United Mine Workers of An,erna (Grundy Mining Com- pany), 130 NLRB 1181, enfd 296 F.2d 734 (C.A. 6) ' Duvall 's comments were shown to have been made while he was stand- ing in close proximity to Partin, but there is no showing that Duvall's posi- tion next to Partin had any particular significance In the circumstances, we do not believe that Duvall 's proximity to Partin , in itself, is sufficient to establish Respondent's responsibility for Duvall's remarks The record does not indicate where Musson was standing In Building and Construction Trades Council of Tampa ( Tampa Sand & Material), 132 NLRB 1564, the Board stated at page 1566: While it is true that the remarks were made in the presence of Business Agent Collins, who presided, and were not repudiated by him or any union official, we do not think that each and every remark made from the floor which goes unrenounced by the pressiding officer can be held to be a statement of union policy. When a subject is thrown open for discussion from the floor the discussion is often free and unrestrained . It would put an impossible bur- den upon a presiding officer to impose an obligation to disavow, in the midst of open and frequently clamorous discussion , each and every suggestion which might entrench upon the restraints of the Act . Union members are frequently fervent in their espousal of union causes and strike situations breed emotion. In such circumstances, and in any atmosphere charged with anger, members may well lose their sense of restraint and urge unlawful con- duct, including physical violence . To hold the union responsible, absent any positive evidence of ratification or approval, for every course of conduct suggested from the floor goes beyond any reasonable presumption of acquiescence by silence. [Emphasis supplied.] We view the above statement as appropriate to this case. The record contains no evidence that any responsible union official, including Partin, made any statements which can be said to have indicated to the employees that they should not cross the picket line.' Absent any connection between the statements of Duvall and Musson and those of Par- tin, we cannot agree with the Trial Examiner that Partin's talk of "guts" and "yellow streaks" was calculated to coerce and restrain the employees in the exercise of their Section 7 rights. Nor can we conclude , in light of the above, that Partin's display of guns at this meeting was in- tended to prevent a back-to-work movement. Rather, we find that the display of guns appeared to have a closer connection with the running personal feud between Partin and Albin . It was during Par- tin's comments about Albin, according to the credited testimony of employee Paxton , that the ' The cited testimony reveals that Partin , at least ostensibly , disavowed the pickets, and, when asked by certain employee -members about crossing the picket line, he replied that he had no power to remove the pickets; that "[ i 1f you get that yellow streak from behind your back, you might can cross it", that "if we wanted to go back to work, all we had to do was to be man enough and have guts enough, we could go back to work ", and that "he didn't have anything to do with the picket line and ... [i]f we had guts enough , we will go through the picket line and go back to work " GENERAL TRUCK DRIVERS , LOCAL NO. 5 guns were brought into the meeting room .7 We find that there is insufficient basis in the record for con- cluding that Partin called the May 15 meeting to stop, by means of threats of physical harm , a back- to-work movement, or that Respondent at that meeting threatened, by word or deed, the em- ployees of the Employer in violation of Section 8(b)(1)(A). THE REMEDY In view of the Board's recent decision in the Ryder Truck Lines case,' in which Respondent was also found to have engaged in threats of violence in violation of Section 8(b)(1)(A), we deem a broad order appropriate in this case. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent, General Truck Drivers, Warehousemen & Helpers of America, Local Union No. 5, its officers, agents, and representatives, shall: 1. Cease and desist from restraining and coerc- ing employees by acts and threats of physical violence for the purpose of compelling them to en- gage in a walkout, or in any other manner restrain- ing or coercing them in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at the offices and meeting halls of the Respondent Union copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Respondent's representative , shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in con- spicuous places, including all places where notices to its members are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (b) Mail signed copies of the notice to the Re- gional Director for Region 15 for posting, the Charging Party willing, at all locations where notices to its employees in the plant are customarily posted. (c) Notify the Regional Director for Region 15, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 139 Insofar as the complaint alleges unfair labor prac- tices not found above, it is hereby dismissed. ' Paxton testified that "after he [Partin [ was getting quite agitated talk- ing about Mr Albin and Black Boy,[sic ) Martinez, he spoke to one of his men next to him and said, 'Go into the next office bring that bag in here The Trial Examiner found that the paper bag contained the guns. Palazola, also credited by the Trial Examiner, testified that Partin said that "he has some men out looking for him [Albin ) and anywhere they found him, they was going to jerk his head off." Also according to Palazola, Partin said that Albin "was one of the men that he despised the most in Baton Rouge. He didn't have any use for him." " General Truckdrivers, Warehousemen and Helpers of America, Local No. 5, Teamsters (Ryder Truck Lines, Inc.), 161 NLRB 493, enfd . 389 F 2d 757 (C.A 5) " In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order." APPENDIX To ALL UNION MEMBERS AND EMPLOYEES OF UNION TANK CAR COMPANY Pursuant to a Decision and Order 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 employees by acts or threats of physical violence for the purpose of compelling them to engage in a walkout. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act. GENERAL TRUCK DRIVERS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL UNION No. 5 (Labor Organization) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If members or employees have any question con- cerning this notice or compliance with its provi- sions, they may communicate directly with the Board's Regional Office, T6024 Federal Building, (Loyola) 701 Loyola Avenue, New Orleans, Loui- siana 70113, Telephone 527-6391. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before the duly designated Trial Examiner on October 10, 11, and 12, 1967, at Baton Rouge, Louisiana, on com- plaint of the General Counsel against General Truck Drivers, Warehousemen & Helpers of Amer- ica, Local Union No. 5, herein called the Respond- ent, or the Union. The charge was filed on May 9, 1967, and the complaint issued on August 2. The issue litigated is whether the Respondent Union violated Section 8(b)(1)(A) of the Act. After the close of the hearing briefs were filed by the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY strike and October two other unions began or- ganizational campaigns-the "Iron Workers" and Teamsters Local 270, whose office is in New Or- leans, Louisiana. One of these filed a representa- tion petition with the Board's Regional Director, and in consequence an election for the employees to choose among the three unions was scheduled to be conducted by Board agents on October 21, only 9 days after the close of the hearing on this com- plaint. The charge was filed by the Company on May 9, and the essential allegation of the complaint is that Local 5, the Respondent Union, forced the em- ployees into striking and thereafter compelled them, by direct threat of physical violence, to con- tinue to stay away from work. There are further al- legations that before May 1, Verbois, and eight other employees, loosely called agents of Local 5, misbehaved towards supervisors and towards other employees, and that they carried on such a continu- ing roughhouse that the whole bunch of them must be found to have violated the Taft-Hartley Act. As expanded by the Government witnesses at the hear- ing, and later in the General Counsel's brief, the theory of this part of the case becomes that when virtually all the employees in a shop cease behaving properly and orderly towards the employer and towards one another, they somehow coerce em- ployees within the meaning of Section 8(b)(1)(A). For such a finding the brief even quotes a principle of law purportedly enunciated by the Board in an earlier decision that "employees restrain and coerce themselves through their commission of violent and forceful acts against supervisors in the presence of each other."2 The Respondent denies the commission of any unfair labor practices. Section 8(b)( I )(A) of the statute reads, in pertinent part: "It shall be an un- fair labor practice for a labor organization or its agents ... to restrair or coerce . . . employees in the exercise of the rights guaranteed in Section 7 )1 A preliminary issue requires resolution. Emile Verbois was for many years leader of an unaf- filiated union which represented these employees. He was appointed assistant business agent of Local 5 by Edward Partin, business manager of the Local, when it became bargaining agent in 1961. He has been in that position at all times since , and the record is replete with evidence, both in testimony by many employees and by affirmative protestation to that effect by himself, that Verbois is the shop steward and a very effective spokesman in the processing of grievances on behalf of the Union. He signed the last contract, dated 1964, on behalf of Local 5. The answer denies the assertion Verbois is an agent of the Union within the meaning of Sec- tion 2 of the Act, and Partin, as a witness , presisted sidered is not clear on the record Y This quotation is from the brief, and not from the Board decision, W T Smith Lumber, 116 NLRB 507 Union Tank Car Company, an Illinois corpora- tion with its principal office in Chicago, Illinois, operates a plant in Baton Rouge, Louisiana, where it is engaged in the service and maintenance of rail- road cars. This is the only facility directly involved in this proceeding. During the past 12 months, a representative period, the Company purchased and received materials and supplies valued in excess of $50,000 which were shipped directly to its Baton Rouge plant from points outside the State of Loui- siana. I find that the Company is engaged in com- merce within the meaning of the statute and that it will effectuate the policy of the Act to exercise ju- risdiction herein. II. THE LABOR ORGANIZATION IVOLVED General Truck Drivers, Warehousemen & Help- ers of America, Local Union No. 5, is a labor or- ganization within the meaning of the statute.' III. THE UNFAIR LABOR PRACTICES On May 1, 1967, the employees in the Respon- dent's railroad car repair shop in Baton Rouge went out on strike. The unanimous action, by all 50 of them, followed immediately upon the discharge at noon, of one Emile Verbois, shop steward and assistant business agent of Local 5, which functions in and around Baton Rouge, and which for 6 years has been the contract bargaining agent. The strike was still 100 percent effective at the time of the hearing in October, with no rank-and-file em- ployees in the plant at all throughout the long period. Sometime between the inception of the ' The last contract executed between Local 5 and this Company shows that at that time Local 5 was affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Whether such affiliationwas still in effect at the time of the events here con- GENERAL TRUCK DRIVERS , LOCAL NO. 5 141 in the denial. This, while admitting in the same breath that again after the strike he personally reaf- firmed Verbois' status as assistant business agent. The answer also challenges the complaint allegation that Partin, himself, is a union agent; in the light of the evidence this denial is frivolous and merits no further comment . I find that Emile Verbois and Ed- ward Partin were at all times, and now still are, agents of the Union and that the Respondent is responsible for their acts. The Strike Joseph Caldwell first came to Baton Rouge when he assumed top responsibility for this plant at the start of January 1967. Between then and the end of April he became greatly annoyed with Verbois. The steward's highhanded antics and his crude ways gave the manager ample reason to dislike the man and to want to rid the shop of him, both for per- sonal comfort and for necessary production tranquility . The straw that broke the limit of Cald- well's patience came on Friday, April 29, although it seems clear that were it not for earlier irritations that particular incident alone would not have provoked what happened the following Monday. Paula Russel was the young lady office clerk, the sole woman employed in this plant full of men. There was a ladies' room, used by no one else, of course . There was also Lawerence, the janitor, whose cleanup duties necessarily brought him into the exclusive sanctuary at times. On Friday morn- ing Mrs. Russel, unconcernedly going about her normal duties, had occasion to enter the ladies' room, where she found "a crumbled, dirty box of sanitary napkins" on the floor. Her sensibilities were offended and she inferred this must have been Lawerence's doing. When later in the morning the janitor saluted her with "How is my favorite girl today?," she answered him "Don't you speak to me, you louse. If you are going to play dirty jokes, play them on somebody else." His joviality unruf- fled, Lawerence threw her a gay "Okie doakie," and went on about his business. In an ordinary National Labor Relations Board proceeding, testimony of this type, notwithstanding the sincerity of the witnesses and of the lawyers who call them, does not warrant comprehensive re- porting in the Trial Examiner's Decision. The details, and their nuisances , serve a purpose here, however, because this incident is one of several of the same kind spanning several months and proved in repetitive detail on the record, because it is illus- trative of the sort of conduct in this plant which the Government prosecutor says must stop, and because the General Counsel argues that in a matter of minutes thereafter the Union-Local 5- committed an out-and-out unfair labor practice centering on the word "louse." Be that as it may, an hour or two later Verbois was up from the work floor area into the second floor office space where Mrs. Russel works. He was accompanied by Lawrence and another employee named Flory. Lawrence asked the girl to repeat what she had said , and she did, that he was "a louse." At this point Verbois and Flory said only that they had heard, and all three left. In very little time Verbois was back again coming up the stairs, this time accompained by a very large group of production workers. As he approached he called for Mr. Cassey, Mrs. Russel's supervisor, to come into the room . In the foreman's presence, and in a voice of authority , he demanded, more than once, that she tell why she had called the janitor a louse. Verbois made it a "damn louse," but the girl testified she did not go quite that far. Now she became somewhat ashamed and began to cry. Not satisfied yet, Verbois asked that Cassey make the girl say why she had used such a terrible word to the janitor. And then he had one of the men, Alton Ard, go out and call the manager . Caldwell came, sized up the situation, and told the girl to say nothing and leave everything to him. With this, Verbois told the men to leave and quiet was restored. At one point, Verbois said to Mrs. Russel that she could not say such things "because you are management and we can talk to you that way, but we are union and you can 't talk to us that way." At noon on Monday, while the men were eating in the lunchroom , Verbois was called to the office and discharged , according to his testimony, "for harassment." He went directly from there to the lunchroom, informed all the employees of his discharge, and advised everybody to strike. There was considerable discussion among the men and no doubt argument. Understandably some were more enthusiastic than others, some were reluctant, and one man thought they should all pray instead of striking. A few wanted to wait and see what the rest did; some were vehement, and said they would force others out. In the end, after no more than 10 or 15 minutes, everybody quit, and none has returned since. It is here, at the moment of strike , that one of the substantive allegations against the Union justifies close examination . Herman Porrier testified he was with six or seven men when Verbois told them that "we had to walk out," and that when he, Porrier, said "there was a bunch of us wouldn't walk out," the steward replied "we had better walk out if we want to know-let's see , we had better if we want to know something good for us ." B. J. Porrier also heard Verbois say "we had to walk out"; he asked the steward why, and the answer was "because they fire him." This Porrier also heard another em- ployee , James Musson, say "let's get out of here and the ones don't come out, we are going to come and drag them out." Joseph Palozola was at work when the strike started . He testified Verbois "took the torch out of my hand and put it down and he said, `Get you damn ass out of here , we are going to meet Mr. Partin at the gate."' Palozola added he and other employees talked about what to do and 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decided it was best to walk out. Palozola also testified that in the general hubbub, he asked Dave Talbot [presumbably an employee, because he is not otherwise identified on the record] what they should do and Talbot answered: "Well, you know if you don't go that they are going to make you go sooner or later. You might have wished you had of gone." Alton Guidry also asked Verbois why the strike, and was told it was because the steward had been discharged . His expressed position then was he would follow the majority, and he quoted Ver- bois as saying: "I get you all out one way or the other." Guidry also testified there was one man who did not want to quit, and that Musson, the same employee mentioned above , said, in the presence of Verbois, "Well, Emile, if they don't want to go out ... we will get them as they come out the gate . We will mash their heads down if that's what it takes." Against all of this Verbois insisted at the hearing he told the men they could leave or stay, as they wished, and that his argument to them was that "if a company could fire a steward with a 23 years' ser- vice for representing his people , then, we have nothing here to keep us here ." Someone suggested the group first communicate with Partin , the union chief, and Verbois said it was unnecessary to wait, they would meet the business manager at the gate after they left the shop. Verbois disclaims any threats to anyone. He was corroborated by three other employees-Randel Sanchez, Ard, and Mus- son. Clearly, to these three, words to the effect that they "had" to leave work fell far short of intimida- tion; their's is not drawing room English. One clear finding must be made at the outset on this record: Local 5 was responsible for the strike at its inception. Verbois has been the union represen- tative here for more than 20 years, he was the literal spokesman for everybody at all times, and in the normal course of events it is to be expected that the bargaining agent would react in this fashion to the unannounced and summary discharge of the chief union agent in the shop. He ordered the men out. I do not credit his testimony that he merely suggested and left the decision to them; such a mild attitude would have been out of character for him. He got word to his supervisor, Partin, by telephone and the business manager sent two other business agents to the scene-Jones and Bennett. At the hearing Partin said he sent his representatives so they could tell the men to return to work, but that is not what they did. Instead they spoke to Plant Manager Caldwell and urged him to reinstate Ver- bois immediately and file a grievance instead. Cald- well refused to yield, and there is no evidence any- one urged the men to abandon the strike. Neither Jones nor Bennett appeared as witnesses. There was a contract in effect, apparently with a no-strike clause. Partin wrote letters to the Com- pany a week or so later, told the men at two meetings-one on the evening of the strike and another 2 weeks later, and kept repeating at the hearing, in precise words, that Local 5 did not "sanction" the strike , that maybe it was "illegal" to strike . He even advised the members on May 15 they could be discharged for honoring any "illegal picket line." But he did nothing, at any time, to remove the pickets, and at the later meeting even brandished a gun, if not two, in the faces of the men when they were talking about going back to work. Partin 's disclaimer of responsibility on behalf of Local 5 loses all persuasion in the light of his at- tempt to place the blame for it upon Teamster Local 270, from New Orleans. While it is true that that Local came on the scene later in an attempt to win the shop away from Partin's Union, there is no probative evidence such activities were going on before May 1. Partin spoke about one Chuck Win- ters, president of Local 270, and a certain Albin, Winters' sidekick , as the real instigators , but the record as a whole shows convincingly all this refers to a running feud on a broader scale . At one point Partin said "Black Joe," whom he called a crony of Albin, was the real culprit at Union Tank Com- pany . But Musson , a witness called by Local 5, said that while Verbois was telling the employees in the lunchroom on May 1 that "the conditions would get worse and not better" if they did not strike, and some men hesitated to leave , employee Martinez (this was Black Joe ), standing next to Verbois, gave the steward support with a "Let 's go." At that time, at least, Black Joe was on the Local 5 team. It is doubtful the complete complement of an en- tire shop ever went on strike on such short notice and in a matter of minutes without some of the men holding back in hesitation and even protesting against the will of the majority . It is always a tense moment , and a certain amount of prodding, even roughhouse quarreling by the more insensed work- men against the lukewarm , is the normal thing. At what point do the urgings of the more militant, or of the shop steward himself, add up to violations of the statute chargeable to the Union ? In the heat and confusion no doubt intimidating things are said; the few who go out alone fear economic reprisal at the hands of the employer , and strongly seek the protection of mass unity. After all, that is what col- lective action means, that all together enjoy the protection denied the individual actor. Most of the threats that were voiced here were uttered by rank- and-file workmen , themselves exposed to danger if some went and some stayed . Verbois heard much of it, but this fact alone cannot serve to make all the employees agents of the Union as the General Counsel apparently contends in his brief. You do not prove an agent did wrong by arguing that because he committed the wrong it follows he is the agent . Nor does it help that "a real agent was stand- ing nearby and heard . There must be something GENERAL TRUCK DRIVERS , LOCAL NO. 5 143 more.3 Verbois had good reason to call the men on strike, for his personal position, as well as the standing of the Union, stood to suffer in con- sequence of the discharge of the shop steward. It is argued that because it was common knowledge Verbois threw his weight around, had a shotgun in his car, and successfully processed grievances in a highhanded manner, what might be excused in a more effete union agent must be viewed as unlawfully coercive coming from him. But there is another side to this coin. All the shoot- ing of firecrackers for months instead of working, slashing of automobile tires by persons unknown, alleged pouring of molasses in somebody's crank- case, playful shooting at the backsides of super- visors with sling shots, even breaking of windshields, to say nothing of very ungentlemanly language in the shop, were the everyday manners of the work force as a whole. If Verbois was discour- teous in belaboring the office girl about the busi- ness of the sanitary napkins and the to him so in- delicate a word as "louse," the 20 employees who stood with him to help humble both the clerk and the supervosors were no less uncouth. Against this background, it would be difficult to find that em- ployees struck against their will because somebody said "get your damn ass out of here." The General Counsel requests a conclusion that on May 1, the Respondent Union and its agents coerced employees into striking in violation of Sec- tion 8(b)(1)(A) of the Act. I make no such finding. Musson threatened to "drag" the employees out, and promised to await the laggards outside the gate and mash their heads if necessary. Talbot-not really identified at all-said "they"-also a dan- gling pronoun in the witness' mouth-"will make you sooner or later." Two supervisors found all four tires on their parked cars cut and flat after the men had left the premises. Nobody knows who did this. None of this is proof of misconduct by the Respondent, for there is no evidence these men were union agents. Verbois said the men "had to strike." The statute does not require him to say "please," in the circumstances. And yet it may well be some few workmen left because they were afraid not to. Despite the evidence of widespread disregard by the group generally of any sense of proper behavior, there must have been some to whom the "humbug" con- duct-as one employee called it-by Verbois was offensive. A finding that even that day the Union, acting through Verbois, by his tacit acceptance of the bad language of rank-and-file workmen, coerced employees in violation of the statute, would add nothing meaningful to the case as a whole. Two weeks later Partin, the unquestioned leader of Local 5, put the fear of his guns in them at the 7 a.m. meeting in the union hall. The a Randal Sanchez' name appears frequently in the testimony of witnesses offered in support of the complaint. He is called an agent of the Union by the General Counsel, but the sole evidence in support is that after the strike restraining order must be to stop threatening em- ployees with bodily harm in order to force them into line with union policy. The remedial order would be not different were it concluded there was also unlawful intimidation on May 1. Just what lan- guage a union officer may use when urging strike, exactly how forceful he may be in tone or gesture at such a moment, must necessarily remain un- defined, with the imprecise language of the statute continuing to serve as guide. The Union Meeting of May 15 At or about 1 1 o'clock on the night of May 13, Saturday, Partin sent a telegram to each of the striking employees calling them to a meeting with him the following Monday morning at 7 a.m. Just about every one of them was there, with the signifi- cant exception of Verbois. In the course of the meeting, as he stood in front of everyone, Partin sent one of his business agents, Jones, into the next room to bring in a certain paper bag. From it, on the table before him, he drew a revolver. He also brought forth from the bag what Palozola described as a machine gun, and what Paxton, another em- ployee, said was a carbine with an extra long clip. At the hearing Partin said he has never had any machine gun, or carbine, unless it might have been the one that "got stole from out at the hearing hall the other day." Sanchez and Ard, called to support his testimony, said they saw no machine gun. As to the revolver, Sanchez said he saw only "the but of a gun out of a brown paper bag," and Ard added "the gun didn't come all of the way out of the bag .... " Musson, also testifying in defense, said: "I seen some handles that could have been handles on guns." In his version of the meeting, its purpose, what was said by him and by the employees, and the reason for displaying the weapon, or weapons at that moment, Partin 's testimony is less convincing than that of the General Counsel's employee wit- nesses. It was at this point in his story that Partin at- tempted to place responsibility for the strike upon his denigrators from New Orleans , an assertion completely at variance with the entire record. He said some of the strikers were afraid to come to the hall, or to voice their views, and that his purpose was to reassure them by showing how he would protect them with his arms. But there is no testimony by any of the employees that they feared anyone, unless, of course, it was what the officials of Local 5 might do in response to any desire on their part to abandon the strike. In the teeth of this justification-about wishing to make the union members feel safe , Partin then switched and said he showed a gun because of threats made against him- self-about someone stabbing him in the stomach he appeared with two others in bargaining sessions with the Company I find the evidence as a whole insufficient to prove he was an agent in any misbehavior towards management or towards other employees in the plant 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and ambushing him-and that he wanted the em- ployees present to pass the word to his enemies that he was ready for any future assaults. He even said he named the persons the union members should advise of his defiance. Towards the close of the hearing, after all this testimony of two guns, not one, shown the employees, and the unpersuasive denials by the union witnesses , the Respondent called Ard, who testified that during the meeting Duvall spoke up to say that an employee named Jarreau had once made a statement that Partin should have his "head blown off." If this was in- tended to explain away Partin's display of shooting irons, it will not do. Partin even said "They (the union members present ) weren't mad at me, I as- sume." This is one of those rare cases which vin- dicates the Board 's expertise . It has long been held, correctly it must now be conceded, that you pay no attention to a partisan 's professed indifference to his leader's sword rattling when the event speaks eloquently without words. There was disagreement among the employees that day and, as clearly shown by testimony on both sides, the dispute was whether to continue the strike or not. On Partin's own admission, some em- ployees said they wanted to return to work and de- manded that the pickets be removed . Local 5 was not identified on the picket signs and Partin said the entire strike was perhaps . illegal, perhaps not, and that he had no right to remove the pickets. Ac- cording to Palozola , when employee Aucoin asked why could they not cross the line if it was illegal, Partin replied: "If you get that yellow streak from behind your back, you might can cross it." In the course of this talk employee Mulkey spoke up to say that "as soon as this meeting was over that he would be down at the picket line and if anybody wanted to cross it, tell them to come on ." Another employee , Duvall , added "... there was a Christ- mas tree put out there ... he intended to keep it there until Christmas, if necessary." Partin stood by while these men were talking next to him and said nothing to contradict . Paxton, who was also present, recalled Duvall saying: "I just hope that they do try to go through the picket line." Paxton also quoted Partin himself as saying : "If we had guts enough , we will go through the picket line and go back to work." All this talk while the guns were on the table. I credit the General Counsel's employee wit- nesses and am not persuaded by Partin's constant harping, both at the meeting and again at the hear- ing, that the strike was not "sanctioned" by his Lo- cal, that it was "perhaps" illegal, and that he told the men they could return to work so far as he was concerned. Verbois' planned absence from the meeting fooled nobody; the guns and talk of "guts" and "yellow streaks" in support of the pickets were what really counted. I find that Partin called the early morning meet- ing in order to stop a back-to-work movement by resort to direct threat of physical harm , that he told the men they would be hurt if they tried to cross the picket line, and that he displayed his guns to them to give substance to his words , all in direct violation of Section 8(b)(1 )(A) of the statute. Horseplay in the Shop: Unfair Labor Practice or Just Roughhouse? I shall recommend dismissal of these portions of the complaint. Baton Rouge is in the bayous of Louisiana, the land of trappers and woodsmen , where life is hard and a man is still said to pack a gun. Work in this Company's shop is not easy; the repair of railroad cars calls for heavy materials, blow torches, pneu- matic tools, protective goggles, and tin headgear. The hammer and pounding means much noise throughout the day, and the play that goes with it is no less jarring. One day Plant Manager Caldwell found a possum in his car. It was very much alive and he had to kill it to get it out. While telling the story as evidence intended to prove violations of a Federal statute by Local 5 , Caldwell seemed amused in the recollec- tion. Shop Steward Verbois keeps a wire cage at the edge of the shop, where he has had coons, foxes, squirrels , and skunks-a lover of animals. Quite apart from the difficulty of theorizing how the possum could coerce employees into joining or not joining a union-the matter of concern to Sec- tion 8 (b)(1)(A)-I find nothing in this incident to support the complaint. The roughhouse-whoever it is that plays in this fashion-was rougher in another area. There is much testimony of auto tires on both employee and company cars made flat by deliberate vandalism. How many times that happened there is no know- ing, but it occurred all too often , with emphasis on the day of the strike and at times when certain grievances were not settled to the satisfaction of the employees . Just who did this is one of those per- tinent questions that on this record remains signifi- cantly obscure. A conclusion that Local 5 was responsible cannot be grounded on the fact someone saw Verbois touch a tire , or that he was seen in close proximity of certain employees who shortly thereafter acted suspiciously at or near the parking lot. And then there were the firecrackers. Offseason celebration is an old story in this shop, going back for many years, according to some em- ployees. Again, while many crackers were heard to shoot, there is an uncanny paucity of identification. The star witness anent this business was the plant manager, who testified at great length about all the noise, but he never saw who did it. Once he asked the shop steward to use his influence to stop it; Verbois said he would try but could not control the men. Another witness for the complaint, presumably one of those coerced by the Union, was Herman Porrier, who said he saw Verbois and GENERAL TRUCK DRIVERS , LOCAL NO. 5 145 Sanchez shoot firecrackers , but also added he had shot them himself, that he had engaged in practical jokes, that this had been going on for "2 or 3 years," and that "when the Company would hired different ones [managers ] in the office upstairs that we wouldn't like and we would go to shooting firecrackers." The story grew in the telling. In an effort to draw Verbois as the ringleader, the man who set a tone of violence, Caldwell told of how, after the strike, the employees' lockers were searched by the sheriff's men. He started by saying "bazookas- cannons" were found in the steward's locker. This surprised counsel for Local 5 , who objected because the complaint said nothing about such heavy armament. The General Counsel explained the phrase "noise making devices" in the pleadings were meant to include these things. As Caldwell continued to talk the bazookas became pieces of 1-1 /2 inch pipe afoot and a half long; two were seen in Sanchez' locker and one lying on the floor near that of the steward . Porrier supported Caldwell; he said he would call the bazooka he saw in Verbois' hand a "mortar." He then added Verbois used to send firecrackers up with it, although he, Porrier, never saw the steward do this. Finally , the witness said he really knew nothing about all this , only that it was a pipe with a hole in the bottom, with two open ends . If any kind of raw material abounds in this heavy duty shop devoted to the repair of rail- road cars , it must be loose pieces of pipe of every size and description. Rather than belabor the record, mention of two more of the endless incidents related will end the matter. There are two methods of payment , straight time and piecework, depending upon the particular operation . The foremen make assignments, and can transfer people during the shift from one job to another . Piece rates are determined by very com- plex timestudy methods, and only Verbois, as steward, keeps a complete set of current work pay measurements. I have no reason to discredit his claim that he is the only one who can understand the standards . One day DiMattia, who normally does piecework, was shifted by his foreman to cer- tain maintenance work, which is hourly rated and pays more than piecework . Word got to Verbois, who, with notice to his foreman, went to in- vestigate . He started by checking DiMattia's card and saw that it had not been marked for the higher rate ; this was a violation of the collective-bargain- ing agreement. He asked DiMattia how much he was being paid , and the employee evaded. Soon Verbois and Caldwell were arguing, and, according to the manager's testimony, Verbois then told Di- Mattia "he didn't want him assisting management any more ... if there was any more of this assisting management that he would get his card taken away from him and get him fired both ." If this quotation, by the plant manager , like his talk about the "can- nons," be viewed in isolation, one impression is created. If it is considered together with the rest of the story, a different picture emerges . Verbois testified that when he learned the man was being underpaid contrary to the agreement with the Union, he told DiMattia "Do you know that one of the members could go and file a complaint against you at the union hall? ... they would try you and if you were found guilty, they would tear your book up-withdraw your book." I believe the steward at this point, because what immediately followed was that the foreman , after the steward "yelled"-as DiMattia said-changed the employee 's card and paid him the correct and agreed-upon rate. Can it be said here that Verbois was threatening the em- ployee to wean him away from the Company and towards the Union? Or was he making crystal clear to DiMattia that he had better not work for less than the contract called for, else the Union would have something to say about it? In April the Company decided to have guards about the premises. They carried guns, and here is where the steward 's shotgun enters the picture. Like the other vignettes, this too starts with Cald- well, the narrator. He said some kind of a dispute arose and Verbois highhandedly told him to "get rid of those guards or we strike you." This time Caldwell was independent and said "go ahead." They soon had Partin on the telephone and a three- cornered conversation ensued . Caldwell's testimony is that Partin said "that these guards must be removed from the plant area," and Verbois then called him a "Communist " and said to Partin "he needs to be strapped across a hood and whipped." The manager also quoted Partin as saying "that if I didn't remove the guards, he would walk through the plant with guns." We now know that Partin did have guns. The Company removed the guards from its payroll. This salty conversation can be better understood in the light of what happened earlier that day. Some men got into a heated quarrel with the guards because they were near the employees ' cars and ap- peared to be searching them. Verbois was nearby, one word led to another , and what with the guns being readily at hand , one guard, Patterson , started to shoot-in the direction of the employees, among whom there was also Verbois . By this time, of course , without delay , there was a rush to get as far as possible from Patterson, and one man , Duvall, was trampled in the stampede. Fortunately, no one was hit. The shooting provoked Verbois, who pos- sesses a highly developed sense of responsibility for the men. He returned to the area of the guards with his brother, also an employee, Duvall, and Foreman McLaren and asked Patterson directly had he shot real bullets? The guard said: "Hell, Yeah , they are real bullets .... I meant to kill you if I could catch anybody destroying property or throwing at me." Patterson did not testify and Verbois , as a witness, was not entirely disinterested or lacking imagina- tion. I therefore take with a grain of salt his further 354-126 O-LT - 73 - pt, 1 - 11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD detail that the guard at that moment "backed off in a quick draw stance," with his hand on the holster. Apart from the frills, it is clear the guard had really fired bullets close to the men, and I must believe he held firm to his determination . Whatever was said, Verbois then told Duvall to go to his car for the steward's rifle, a shotgun , which Duvall then brought close to the group and held in his hands. Verbois said he would use his gun if necessary. McLaren ordered Patterson to go out to the distant gate where he belonged , and it was after this that Partin on the telephone said he , too, had a gun that could be used. Conclusion Apart from the events at the moment of strike on May 1, and at the union meeting of May 15, what is set out here represents the essentials of the General Counsel's theory of the case. Other things were told, but, aside from their repetitive nature, the probative evidence of just who did what and par- ticularly of how responsibility could conceivable be pinned on the Union, is so weak that recital here is unwarranted . The work complement as a whole was a rough and violent crew. Verbois pressed the Company in their interests to infinitesimal detail, constantly , loudly, and arrogantly . At times it seemed he owned the plant and not the Company. To the Union's credit, there is no claim he did not deserve to be discharged. The complaint criticism of this sort of conduct is that when a bargaining agent uses violence against the employer to win its day-to-day demands, when it demonstrates after loss of grievances instead of arbitrating, when it harrasses management for pure devilry, it passes a message to the employees that like treatment is in store for them if the occasion should arrise. And this threat of violence is said to flow to any who at the moment are, or might later be, thinking of disaffecting , and to all employees in the bargaining unit as well, even if they are 100 percent behind the Union, because it precludes any freedom later to change union or have none at all. For precedent support, this argument leans on the picket line violence cases, where the pressing and sole question in the minds of the employees is to work or not work, and the union agents either restrain them physically or do such violence to others present-be it reluctant strikers or company representatives-as to leave no doubt anyone trying to cross the picket line will be similarly mistreated. While these cases are certaintly applicable to Busi- ness Manager Partin 's display of guns on May 15 when the employees were divided on the question of continuing the strike , they are inapposite here otherwise. The General Counsel's contention to the contra- ry, there was no division of sentiment among the employees concerning Local 5 until after the strike. The word "factions" alone out of Verbois' mouth, hardly proves union activity of any sort. It was later that the competing Teamster Local from New Orle- ans came on the scene . Rather, the total picture suggests persuasively that the employees as a group were of the same stripe, that apart from any who at the moment were themselves the victims of exces- sive practical jokes, what harassment and miscon- duct occurred was universal . The General Counsel therefore proceeds to the logical extension of his position, stating unequivocally in his brief: "How- ever, it is contended that even had all employees been in accord, the actions divulged in the record are of such magnitude and intensity that the em- ployees would have been restrained and coerced by the very nature of their actions from exercising the rights guaranteed in Section 7 of the Act." I find no merit in the thought that employees can coerce themselves within the meaning of Section 8(b)(1)(A) of the statute . I find the analogy to picket line cases equally unpersuasive in this case. Assuming, contrary to the fact, that all this roughhouse conduct could be attributed to union agents, and assuming further that half the em- ployees resented too tough and crude an attitude towards the Employer, the remedy for misbehavior of this kind must be sought elsewhere than under this statute. If Verbois did this thing, threw a firecracker by slingshot in Caldwell 's direction, and if Sanchez and Ard, had they in fact been agents of Local 5 , put molasses or sugar in parked cars, these were not nice things for them to do . They should stop behaving like that . Rather than seek support in picket line cases for an unfair labor practice find- ing, here one can look back to a now discredited theory to support dismissal instead . Merely because a union does what hurts somebody or offends singu- lar predilection , it does not follow necessarily that it violated this statute . Something more must be shown, and that something is lacking in this case." Suppose a ruffian of an employer were to mistreat the help, push them around physically, and yet so manage things that because of their economic needs the employees nevertheless remained on the job. Could it be said that because such an employer thereby reveals the kind of man, or organization, it is, the employees necessarily understand it would be futile to organize , that their employer would act the same way towards a union, or bargaining com- mittee? If bad, violent, offensive behavior by a union inherently coerces employees in violation of this statute, does not the same reasoning apply to an employer's behavior? IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the Company's operations described in section I, ' Local 357, Teamsters v. N.L.R.B., 365 U.S. 667: " We cannot assume that a union conducts its operations in violation of law ... " GENERAL TRUCK DRIVERS , LOCAL NO. 5 147 above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated Section 8(b)(1)(A) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By threatening employees with bodily harm by use of firearms for the purpose of compelling them to engage in a strike and for the purpose of preventing them from entering the premises of their employer, the Respondent has restrained and coerced employees of the Charging Party Employer in the exercise of rights guaranteed by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices affecting commerce 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. [Recommended Order omitted from publica- tion. ]