District 34, International Association of Machinists

DECISIONS OF NATIONAL LABOR RELATIONS BOARD District 34, International Association of Machinists and Aerospace Workers, AFL-CIO, and its Lodge No. 162 and The Wolf Machine Compa- ny. Cases 9-CB-4375 and 9-CB-4438 January 14, 1981 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND ZIMMERMAN On August 27, 1980, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondents filed ex- ceptions and a supporting brief, the General Coun- sel filed limited exceptions, a supporting brief, and a brief in support of parts of the Administrative Law Judge's Decision. Respondents filed a brief in answer to the General Counsel's limited exceptions and the Charging Party filed a statement adopting the position taken by the General Counsel.' 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and statement of the Charging Party, and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order, as herein modi- fied. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respon- dents, District 34, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, and its Lodge No. 162, their officers, agents, and repre- sentatives, shall take the action set forth in said rec- ommended Order, as so modified: Substitute the following for paragraph 1: "1. Cease and desist from: "(a) Littering the Company's parking lot and en- trances with tire damaging nails, threatening to in- flict bodily injury upon strike replacements and I Respondents and the General Counsel have excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolu- tions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We will modify the Administrative Law Judge's recommended Order to conform to his findings. 254 NLRB No. 25 employees, or physically assaulting and injuring re- placement employees, for the purpose of restrain- ing them in the exercise of the rights guaranteed in Section 7 of the Act. "(b) In any other manner restraining or coercing any employees in the exercise of their rights to self- organization, or to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities." DECISION STATEMENT OF THE CASE THOMAS A. RIccI, Administative Law Judge: A hear- ing in this proceeding was held at Cincinnati, Ohio, on June 10 and 11, 1980, on complaint of the General Coun- sel against District 34, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, and its Lodge No. 162, herein called the Respondent or the Union. The complaint issued on June 4, 1980, upon charges filed on October 11, 1979 (Case 9-CB-4375), and on January 3, 1980 (Case 9-CB-4438), by the Wolf Ma- chine Company, herein called the Charging Party or the Company. The issues presented are whether the Union was responsible for acts of violence, threats of physical injury to persons, and picket line misconduct in violation of Section 8(b)(1)(A) of the Act. 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 I. THE BUSINESS OF THE COMPANY The Wolf Machine Company, an Ohio corporation, is engaged in the manufacture of electrical and air-operated cutting machines at its Blue Ash, Ohio, facility. During the 12 months preceding issuance of the complaint, a representative period, from this one location it sold goods and materials valued in excess of $50,000 which were shipped directly to out-of-State locations. I find that the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On June 27, 1979, there was a strike at the Company's Blue Ash, Ohio, plant; it was an economic strike follow- ing failure of negotiations towards renewal of a collec- tive-bargaining contract. The approximately 76 produc- tion and maintenance employees, all of whom ceased work, were represented by IAM District 34 and its sub- ordinate organization called Lodge No. 162. The strike was still in progress at the time of the hearing in this case, 11 months later. Towards the latter part of Septem- ber 1979 the Company started to hire replacements. Be- 282 DISTRICT 34, INTERNATIONAL ASSOCIATION OF MACHINISTS ginning then and continuing into the following January there occurred a number of acts of violence and threats of violence on and off the picket line for which, accord- ing to the complaint, the Union was responsible. The Re- spondent denies responsibility for anything untoward that may have happened. A. Agency-Union Responsibility A principal defense by the Union is that no one who can be called an agent of the Union had anything to do with whatever the witnesses talked about. It simply dis- putes the complaint allegation that four men there listed-Carl T. Caldwell, William Eppeaids, Bill Rogers, and Fred Linville-were its agents within the meaning of the Act. But the Respondent does admit that Caldwell was chief steward of its Lodge 162 and that Eppeards was both a member of the Union's bargaining and griev- ance committees and a picket line captain. John Nickell, a business representative of IAM District 34, testified for the Union on this subject. He said that as a business representative he is in charge of 35 shops, i.e., separate employers, and that District 34 has two other business representatives like him, each also responsible for 30 to 35 other shops. It was Nickell's assertion that no one but he has, or ever had, any authority over the pickets involved in this case. The strikers picketed in assigned shifts and there were always a number of them there. They were paid strike benefits when they picketed. Nickell's office is in Cincin- nati and, as he said, during the 7-month period from June to January he visited the Wolf plant "in the neighbor- hood of twenty times, it could be less, it could be more." He added that only he gives anybody any orders or any instructions.' To cover the gap appearing obvious from such infrequent visits to the picket line, Nickell said ev- erybody is under orders to phone him about any prob- lems that might arise, and that he, "was called on several occasions." In September a State court restraining order was issued against the Union because of strike miscon- duct; Nickell was in Washington on business that day. Asked who was responsible for supervising the picket line during his absence, Nickell said it was David Patter- son, the director of IAM District 34. Nickell was not a convincing witness. Caldwell, the chief steward, and Eppeards, a picket captain, are also on the Union's grievance committee. They each have authority to settle grievances at different levels. They were elected by the membership to both the grievance and the bargaining committees. Nickell's argu- ment, at the hearing, that because it was the employees who selected these men for such representative status they may not be deemed agents of the "Union," merits no comment at all. What is a union if not the employees acting together? General Teamsters, Chauffeurs and Help- ers Local Union 298 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 236 NLRB 428 (1978). Testimony by Picket Captain Eppeards. intended to support that of Nickell, is very unpersuasive. He said: "Nobody's in charge; nobody's boss." But his prehearing affidavit reads: "As a committee member I wasn't assigned picket duty but I often went out to the line to give the men signs and instructions." I find that both Caldwell and Eppeards were agents of the Respondent, throughout the events, and that any unfair labor practice committed by them is chargeable to the Union. This also means, of course, that any miscon- duct by plain employee pickets, consistent with the ex- ample set by the agents themselves, or committed in their presence and therefore with their approval, is also conduct for which the Union is responsible. B. Nails All Over the Place On the Company's property, there is a parking area, a very large one, for use by the employees. To the right of the building it borders on the street, the front perhaps as much as 150 feet. There is no gate or fence of any kind, indeed, it appears, no sidewalk at all separating the pri- vate property from the thoroughfare. Cars go on and off at every point along the entire length of the frontage. The pickets walked up and down and often parked their own cars on the Company's lot. No one told them to get off the premises, There is clear testimony that a great number of times, from October through December, nails appeared along the front of the parking lot and even on the lot itself; nails -inch long and with 3/8-inch wide heads, some- times attached to pieces of shingle so they could be stood up. There was much damage to tires. David Smith, the Company's vice president of operations, testified that during the 4-month period September to January the Company paid 51,500 to repair and replace tires on the cars of the employees who were hired as strike replace- ments. His statement is uncontradicted, but then I hardly suppose the Union was in a position to prove otherwise. But even given some exaggeration the testimony of all witnesses-both replacements and strikers-tells a consis- tent story of nails found repeatedly and picked up by car owners to avoid flats. A lot of damage there had to be. One of the culprits, according to company witnesses, was Caldwell, the chief steward, who without question was very frequently on the picket line. Counsel for the Respondent makes much of the fact the witnesses ad- mitted being too far away from Caldwell, or other pick- ets, to see each nail clearly when those men kept drop- ping "something," or "things" on the edge of the parking area. Smith, whose office window is closest to the park- ing lot, said that on October 11, after seeing Caldwell drop "something," he went out to look closely and saw the nails where Caldwell had just stood. Smith said he saw other pickets do the same thing almost daily. An ex- ample of Smith's testimony: I seen him drop an object . . . I could see that it was some black square object. Q. And what did you do after you saw him drop this object, if anything? A. Walked out and picked it up. Q. Immediately after you saw him? A. Yes, I did. Q. And what was this object? A. A shingle cut into a -inch square with a nail stuck through it. 283 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith testified to similar nail dropping activities by other men acting as pickets; among them he saw Larry Legner, Walt Smith, and Jim Billings, and particularly Fred Linville more than once on December 10 and De- cember 12. Again, from the testimony of Donald Ward, a security guard hired during the strike: "You couldn't see them drop the nails because the nails blended in with the park- ing lot. But you could see them standing there with their feet, moving their feet around like they were standing them up. I didn't actually see them drop a nail." Ward, too, identified Fred Linville, among others, as repeatedly engaged in nail dropping. Clifford Covert, another guard, gave like testimony as to Caldwell: "Well, I went out there and I was picking up the nails. And at this time I turned around and I saw Carl Caldwell dropping some- thing by his feet and I went over to where he was stand- ing at and picked up tacks." Significantly, Caldwell did not testify. He was a regu- lar picket, a captain, in fact; the record shows clearly he was very frequently on the line. Does this kind of testi- mony, in the circumstances, suffice to prove it was the pickets-with Caldwell prominent among them-who dropped the nails all over the place? I think yes. Quite apart from the fact years of experience have taught us that the highest probability is that the pickets did this and not the people coming to work there! The following is a revealing comment by Nickell, the Union's business representative: Q. Did you, in your own mind, form a belief as to who had put the nails there? A. I would have to say that the area they was in that it would be advantageous, you would have to say it looked like it would be the pickets, you know, if you want to draw a conclusion . . . I im- mediately went to the pickets and told them, I said, hey, if you're putting those out here you're only going to get somebody come down on you, you're going to get a tougher injunction ... ." Some things are proved one way, some another. In light of all the testimony, I find that Chief Steward Cald- well deliberately and repeatedly placed tire-damaging nails at the entranceway to, and upon, the Company's parking lot as a deterrent to employees coming to work across the picket line. By his conduct the Respondent violated Section 8(b)(1)(A) of the Act. Local 248, Meat & Allied Food Workers, affiliated with Amalgamated Meat Cutters and Butchers and Butcher Workmen of North America, AFL-CIO (Milwaukee Independent Meat Packers Association), 222 NLRB 1023 (1976). By their picket cap- tain's example to the ordinary, assigned pickets of unfair labor practices committed in their presence the union agents encouraged and approved like misconduct by all the pickets, making their widespread placing of damag- ing nails on the Company's premises further unfair labor practices for which the Respondent is accountable. I find particularly that by the repeated such conduct by Fred Linville the Respondent violated Section 8(b)(1)(A). C. Threats of Personal Injury to Replacement Employees When the Company started to hire replacements, on September 24, there developed, understandably, an an- tagonism between the two groups-pickets versus stri- kerbreakers. As the Union's business representative expe- rienced in these matters said the pickets would naturally try to keep would-be employees from crossing the picket line. While not every resultant shout or gesture-in either direction-could be called an unfair labor practice, some things did happen that must be considered seriously here. In a house in a nearby town, Norwood, there lived four young men who worked as replacements. Custer, the lady of the house, and mother of two of these em- ployees, and one of her sons, Danny Miles, testified that on the evening and during the night of October 8, a car with four or five persons drove back and forth in front of their house shouting obscenities and yelling threats at its occupants. Miles said clearly he recognized Caldwell sitting next to the driver on the front seat, and his mother said she learned it was Caldwell who sat there the next day when after seeing him in the car several times she saw him on the picket line. According to Custer, the car came by and circled the block about six or seven times between 6 p.m. and about 2 a.m.: They started yelling out vulgarities and screaming out scab, scab, scab, scab, scab, scab, and then a lot of other-they threatened to kill us; they pulled the car into the drive the first time and they threatened to kill us . . . They said "we're going to kill you Norwood punks," but there was a vulgar word in before the punks. They threw beer bottles out toward our driveway. Far enough out of the way that they could keep circling the block and not damage their own car . . . They threw it toward the house, in that direction . . . They woke up ev- erybody in our neighborhood. Every neighbor was out there listening. Miles got home that evening about 10 p.m. As he re- called it: [A] light Cutlass Supreme started circling the house with five people inside of it yelling obscenities, throwing bottles and breaking glass . . . I recog- nized one person in the passenger front seat. I rec- ognized Carl Caldwell . . . the first couple of times it was just driving by on the street yelling obsceni- ties . . . throwing glass and bottles . . . it was about the second or third time . . . that the car ac- tually pulled up into the driveway onto our prem- ises. And at that time Mr. Caldwell was leaning out of the passenger front window with a baseball bat yelling "we're going to kill you Norwood punks." Custer and Miles said they had to call the police sever- al times, that neighbors came out to their porches alarmed, and that the entire neighborhood was awakened by the threats. 284 DISTRICT 34, INTERNATIONAL ASSOCIATION OF MACHINISTS As already stated, Caldwell chose not to appear as a witness at the hearing. Instead the Respondent called a striker named Billings. He said it was he, in the blue Cut- lass, who went to that house that day and night with two other strikers-not Caldwell-because "there was a few scabs that lived there in Norwood," and "we . . . was going to aggravate them a while . . . and harass them a little . . . we was just trying to let the neighbors know there was scabs that lived there. We hollered out the number of the house and called them scabs." Billings denied throwing bottles, carrying baseball bats, or enter- ing the driveway. He said it was the occupants of the house who threw eggs at his car and shot at it with BB pellets. His story is that it all started at about "I or 2 o'clock in the afternoon" when he was drinking in a bar with some other strikers and, because he knew four "scabs" lived at that house, they decided to do what they did. The following is part of his testimony, "Q. How much did you have to drink that night? A. I had too much to be out driving. I couldn't tell you just how much." I do not credit Billings about Caldwell's presence in that car that day and his participation in what went on, I find, as the two other witnesses testified, the chief ste- ward was there in the front seat and voiced the threats to inflict personal injury upon the strike replacements who lived there. By such conduct on his part the Re- spondent again violated Section 8(b)(1)(A) of the Act. D. The Attack Upon the Janitor Early in the morning on January 8, 1980, an elderly man, a replacement employee working as a janitor, was assaulted on the concrete walk leading from the front en- trance of the building to the street. There was no imme- diate third party witness to the incident of violence and, whatever the reason, the janitor himself, Delbert Jacobs, only identified his assailant by reference to the outer clothing he wore. Within minutes after being hurt, his face bloodied and his arm and hand cut, he was in the manager's office and pointed out the window to a man wearing, he said at the hearing, a "green coat . . . with orange . . . inside the coat." Smith, the manager, also testifying, quoted Jacobs as telling him, when he asked who had hit him, "it's the man with the green jacket on and the orange lining." Smith added that as soon as Jacobs pointed at the person so clothed, Smith recog- nized Eppeards, the Union's picket captain, still in front of the building. He added that Jacobs then asked what was the man's name and that he told the janitor it was Eppeards. One other witness for the General Counsel spoke of this incident. Carolyn Stanton, the receptionist, whose desk is just inside the front door and who could look outside through the glass panels, said that not long before Jacobs came in hurt, she saw him with Eppeards standing on the concrete in front of the door. Stanton said she looked at Jacobs' back, with Eppeards, whom she knew, facing her directly. She also said she heard Eppeards say, "What's the matter with you, man." Other than this Stanton said she neither saw nor heard anything else. Eppeards, who remembered the day well, swore he never went near Jacobs that day. His total story is that beginning quite some time before the incident happened and continuing well after it, he was always just sitting in a friend's car on the parking lot and playing with a child's computer football game. He said he never left that car, or stopped playing the children's game, until about 20 minutes after somebody had yelled, "They're fighting," and that even then he only walked away from the car because some emerging "scabs" were threatening to make trouble at the lunch hour. There was another witness, James Daniel, who was never an employee here and whose two sons were then striking pickets. He said he came to the plant to bring coffee to his son and to talk to Caldwell, the steward, about the outlook for jobs for his sons. His story is that as he walked along the front of the building and saw Jacobs sweeping refuse near the office entrance, he called out, "you ought to be proud of yourself for keep- ing these boys out on-crossing the picket line and keep- ing these boys on the street." With this, still according to Daniel, Jacobs twice called him a "son-of-a-bitch" and then drew a knife from his pocket. "And when he did I grabbed the broom and swapped him over the head. And he kind of came around like that and I think I hit him two or three times, I don't know which. But the broom handle was breaking every time I hit him. I think after about the third time then he turned around and went back into the building here ... ." It is purely a question of credibility. Jacobs swore he never had a knife with him, and I certainly believe him. He is an old man, rather infirm, and he absolutely did not have reason to pick a fight with anyone. Smith said that when the old janitor pointed to the man who had just struck him, Smith recognized Eppeards, whom he certainly knew. (Eppeards was wearing a camouflage jacket that day and his version of his participation, or nonparticipation, is absolutely unbelievable.) Daniel said he just started a fight; why should he do that with an old man, decrepit, worn in appearance, and, it would appear, mentally hesitant? The thing happened at or about 8 o'clock in the morning. Late that night, Daniel contin- ued, he went to the police and signed a statement that it was he who had assaulted the man. If his conscience bothered him why did he wait all day? When these ques- tions are considered together with Eppeards' incredible details of how he behaved during the day, one must wonder: What really happened here? The only fact that cannot be doubted is that Jacobs was hit, deliberately and with malice, and that however the violence came about it had its genesis in the striker versus worker situa- tion. We start with Eppeards' statement that he had been sitting alone in his car playing a game for quite some time, when "somebody yelled, 'they're fighting."' He was the picket captain. According to Nickell, the busi- ness representative, it was the captain's duty to report immediately by phone to Nickell anything disturbing that might happen on the picket line. If anything, "a fight" called for the picket captain's attention. Right there his story rings false. Not only did Eppeards not communi- cate with any supervisor, but he never even got out of his car. Instead, to make his insistence that he was not 285 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the attacker more convincing, he repeated easily a dozen times, that he sat, played, and never moved. His very de- meanor on the witness stand helped to discredit him. He said he continued to play the game for 20 minutes. A policeman approached, asked him if his name was Eppeards, then searched and handcuffed him, and took him to jail. He was kept in a local jail until 5 p.m. and then transferred to the county jail. He said directly, a number of times, that although he asked why was he being held, not once, from 10 a.m. until 11 p.m., when he was released, did any police officer or any retaining offi- cial give him a hint as to why they were holding him, an absolutely incredible story. If he is to be believed, the police never asked him a single question. More, he did not ask to use the phone, or for permission to communi- cate with anyone, until he was taken to the second place at 5 p.m. Then, for the first time, he asked could he use the phone and was given permission. He called his wife. And, finally, Eppeards admitted that even then he did not ask her to get in touch with Nickell or anyone on behalf of the Union, nor even any lawyer. If there is one thing a picket captain jailed directly from the picket line would have done at that moment, indeed throughout the day, it would have been to try and turn to the Union for help. But the most revealing part of his story is that he told his wife at 5 p.m. to call Daniel. This is the old family friend who, if he is to be believed, then went to the police to confess! Eppeards cannot be believed at all. Daniel, who testified it was he who assaulted the jani- tor, said that he is an old friend of the Eppeards family and that during the day he learned Eppeards had been arrested for the offense. He said he talked to Eppeards' father, to Caldwell, and to Nickell, and that he then went to the police and confessed to having been the guilty party. He added he too wore a camouflage hood that day. At 11 o'clock that night the police released Ep- peards with the statement, according to Eppeards' com- pletely uncorroborated testimony, that someone else had confessed. I deemed it very significant that this record contains no indication of what happened after that. No one from the police department was called to support anyone's oral testimony. Was Daniel arrested? Was he indicted, or tried as a criminal? Did his lawyer plea-bargain during the evening, before he admitted the offense, so as to assure his friend his freedom from any incarceration? Daniel is not a young man and, in all probability having a clean record, may well have helped Eppeards without too much danger to himself. He did discuss the matter with the union official before stepping forth. I think the credible evidence sufficient to prove it was Eppeards who assaulted the strike replacement for the reason he was working across the picket line. He lied, without question, at this hearing. Daniel's story simply does not ring true and leaves too many very pertinent questions unanswered. In contrast, the office secretary saw the picket captain in conversation with Jacobs just at or about the time of the assault. And when Jacobs, only minutes after being hit, pointed to Eppeards as the man who did it, Smith, the manager, who knew Ep- peards very well, became the perfectly acceptable wit- ness in this case. I find it was Eppeards who committed the physical assault and that it was an unfair labor prac- tice, of course, chargeable to the Respondent. D. Roughhouse or a Tea Party? Beginning in September, when striker replacements started to come to work, there was continuing name-call- ing and hateful looks exchanged back and forth between the pickets and the "scabs," as the pickets loudly named the new employees. As already explained, there is no fence, or other physical enclosure separating the large parking lot from the street that runs in front of the com- pany land. The pickets were there all the time and they walked along the entire periphery of the private proper- ty. This means the cars that came and went, whether driven by strikebreakers or pickets-who also left their personal cars on the lot-entered at any point along the 150-foot frontage. That a purpose of the pickets was to make it a little uncomfortable for the replacements is a fact of life in the industrial world that should not surprise anybody. And that the newly hired employees-if only in normal reac- tion to the name-calling and offensive looks-should themselves try to needle the pickets, was also to be ex- pected, if only because all of these people are only human. One way for the pickets to do this would be to walk along the street in such a way as to make it diffi- cult for the replacements to find a wide enough open area between them to enter the lot without hesitation. In turn the replacements, when leaving at the end of their shift, could give the appearance of heading directly toward a picket while intending no more than putting a little trepidation in them. There is a particular allegation in the complaint that one day Caldwell "drove dangerously close" to the guards whom the Company had hired to see that the re- placements came and went safely. Three guards testified about this; whether the essential purpose of their testimo- ny was to say that Caldwell, coming to and going from the parking lot, in fact intended to hit them, is not clear. Their words seem as much to indicate they really meant to say that Caldwell deliberately drove "dangerously close" to them only to scare them, not really to run them over. How close is too close? How close is dangerously close? Security guard Ward said that on September 24, as he and another guard, Clifford Covert, were standing on the edge of the parking lot, a picket, whom he identified as Caldwell, drove out of the lot "so close that I grabbed the other guard and pulled him out of the way." He said the car missed him "by about a foot," and was driving at a speed "excessive for a parking lot," about 20 miles an hour. The witness continued that that same day the same thing happened again during the morning: [He] just missed again by a foot. It was too close for comfort. Q. And did you jump out of the way? A. I don't think I did at that time. I was watch- ing him close enough though that I would had if he'd have gotten any closer. He veered away from me at the last minute . . . In order not to hit me. 286 DISTRICT 34, INTERNATIONAL ASSOCIATION OF MACHINISTS Ward's testimony continued that later that day Cald- well again drove past him, from 30 or 40 feet away: "I heard tires screeching in the parking lot and gravel scat- tering and I turned around and looked and he was coming at me again . . . at the time that I turned around and looked he was spinning around. And after he spun around he headed towards me, towards the west en- trance . . . I jumped out of the way though that time. Another guard, Gregory Kasarcik, was offered as a corroborating witness to the scene about Caldwell's ac- tivities: [He] veered up onto the parking lot and headed at Mr. Ward. I'd say his speed was probably 20, 25 miles an hour at the time. It wasn't an excessive rate of speed. I saw him head up that way and he in turn, you know, hit his brakes causing them to squeak and, you know, like rubber on asphalt, and it caused it to make a squeaking loud noise. Causing Mr. Ward to jump up, look and jump out of the way. To make his story more convincing, Ward added that Caldwell drove his car from and to the parking lot only to go talk to pickets at the other side of the company property, about 300 feet away. His implication here is that the business agent could just as well have walked and that therefore it must be inferred his purpose in driv- ing at all was to endanger the life of the guards. This tidbit did not enhance the witness' credibility, given par- ticularly its vague generalities and conclusionary flavor. Against this, there is the testimony of Nickell, a no less partisan witness: "And they would come up to the picket line and when they'd get close to the line they would make a beeline and burn gravel going in . . . They would come up off of Creek Road and get up close to them [the pickets] . . . and if you were in their way they're going to run you over!" Eppeards, the picket captain, testified that when a re- placement drove out of the lot towards three or four pickets; "He pulled up to the driveway . . . and he's stopping and starting and stopping and starting, all the time, you know, he's just starting and stopping and start- ing and stopping . . . This man [a replacement] turns out and takes a right turn and he's coming up and he's stop- ping and starting and stopping and starting." "I think we might have yelled 'scab' or something like this, that's very possible, you know because we do that." "And then a bottle of some kind came flying past my head. And that pissed me off because it almost hit me in the head." Again, still from Eppeards' testimony: "The ... guy got out of his car after you pass . . . he stopped right there and he was out of the car yellin, you know, screaming at us . . . He wasn't in the middle of the street, he was on his side of the road." The most obvious truth about all this testimony, by the witnesses on each side, is that they were embroidering their stories to reflect the continued conflict that marked everything that was happening at and near the picket line during that turbulent period. How fast is too fast? Unfair labor practices must be proved by definitive, posi- tive, and affirmative evidence. I can make no findings of 8(b)(1) violations on all this confused and vague testimo- ny. The only clear thing is that nobody was hit by a car; nobody was hurt. As the Board long ago said, unfair labor practices must be proved by a preponderance of the affirmative evidence on the record as a whole. Plenn Raven Silk Mills, Inc., 101 NLRB 239 (1952). I do not think this record suffices to support the com- plaint allegation that by driving "dangerously close" to other people an agent of the Respondent committed unfair labor practices. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set out in section III, above, occurring in connection with the operations of the Wolf Machine Company, described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce upon the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. CONCLUSIONS OF LAW I. By littering the Company's parking lot and en- trances with tire damaging nails, by threatening to inflict bodily injury upon strike replacements and employees, and by physically assaulting and injuring a replacement employee, the Respondent has violated, and is violating, Section 8(b)(1)(A) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 The Respondent, District 34, International Association of Machinists and Aerospace Workers, AFL-CIO, and its Lodge No. 162, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from littering the Company's park- ing lot and entrances with tire-damaging nails, threaten- ing to inflict bodily injury upon strike replacements and employees, or physically assaulting and injuring replace- ment employees, for the purpose of restraining them ill the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its office and meeting halls copies of the at- tached notice marked "Appendix."3 Copies of said 2 In the event no exceptions are filed a provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived lor all purposes. 1 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in he notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted ursu- ant to a Judgment f the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 287 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for Region 9, after being duly signed by its authorized repre- sentative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, including all places where no- tices to members are customarily posted. Reasonable steps shall be taken by it to ensure that said notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Director for Region 9, signed copies of said notices in sufficient numbers for posting by the Wolf Machine Company, the Employer being willing, at all locations inside its place of business where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL NOT litter the Wolf Machine Compa- ny's parking lot and entrance with tire-damaging nails. WE WILL NOT threaten to inflict bodily injury upon strike replacement employees. WE WILL NOT physically assault and injure re- placement employees. WE WILL NOT in any other manner restrain or coerce any employees in the exercise of the rights to self-organization, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. DISTRICT 34, INTERNATIONAL ASSOCI- ATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, AND ITS LODGE No. 62 288