Teamsters Local 115 (Gross Metal)

TEAMSTERS LOCAL 115 (GROSS METAL) Teamsters Local 115, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Gross 'Metal ' Products Inc. Cases 4-CB-4845 and 4-CB-4845-2 27 August 1985 - DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS ' On 22 January 1985 Administrative Law Judge Robert A. Giannasi issued the attached decision. The Respondent filed exceptions and a supporting brief, the Charging Party filed cross-exceptions, and the Respondent filed a response to the cross- exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. Our dissenting colleague "would approve the settlement upon which "the Respondent and the General Counsel agreed." For the reasons set forth by the judge and those cited below, we cannot ap- prove the settlement. The proffered settlement contains a standard order, a notice to employees, and a provision for a court decree. It also is limited in its scope to the Charging Party's employees. It contains a "narrow" cease-and-desist order and specifically provides that the Respondent admits no wrongdo- ing. The settlement was not advanced until the close of the hearing at which -the Respondent pre- sented no witnesses and limited its defense to cross- examination of two witnesses and " a challenge to witnesses' use of notes. The unfair labor practices it purports to "settle" are set forth by the judge in 71 separate paragraphs detailing picket line misconduct and violence. The detailed incidents occurred over a 5-month period and ceased only after a District Court injunction was obtained.2 During that 5-month" period the Employer's facility - was subjected to mass picket- ing. Police presence was almost a daily occurrence i The Respondent has requested oral argument . The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 As stated by the judge, however, less than 2 weeks after the judge was informed of a potential settlement offer, new charges alleging re- newed picket line misconduct were filed against the Respondent We have also been informed administratively that the Region has initiated contempt proceedings against the Respondent in the District Court be- cause of continued picket line violence 1547 and the effects were felt by' neutrals, employees, and company officials. On almost a'daily basis the pickets blocked in- gress and egress at the facility . Many deliveries and pickups could not be made while others. were de- layed for as long as 4 hours. Often, the delivery of goods or the arrival of employees required a police escort. Company 'officials were slapped, punched, kicked, spat upon, pelted with rocks, and, in at least one incident, effectively held captive inside the facility for 45 minutes by mass pickets. Em- ployees were repeatedly -shoved, punched, threat- ened, and subjected to racial slurs. Neutrals were forced to leave the facility without making pickups or deliveries. They were threatened with serious violence and told that the pickets would shut down their facilities as well. Nails were driven into truck tires. A radiator was -smashed by an iron bar. A picket jumped onto a neutral's truck, ripping off the side view mirror. Hydraulic brake lines were cut. Truck strapping was'cut. Bottles were thrown at neutrals' "drivers: - Another netrual's driver was felled by a blow to the head' with a board. As the judge noted, this Respondent is not a stranger to picket line violence . In at least four other cases, the Board has found similar violations against this' Respondent.3 In addition; the judge cites three other pending proceedings that allege similar misconduct. See judge's decision footnote 2.4 Against this background, the judge rightly re- jected the Respondent's eleventh hour settlement offer.5 In his view, approval of a posthearing set- tlement containing a nonadmission clause in the face of virtually uncontested findings of serious, widespread, and violent strike misconduct "would make a mockery of law enforcement." We agree. In addition, he noticed that the settlement would s Teamsters Local 115 (E. 3. Lavtho & Co), 157 NLRB 1637 (1966), Teamsters Local 115 (Continental-Wirt Electronics), 186 NLRB 56 (1970); Teamsters Local 115 (Martin 3 Sobol), 238 NLRB 1070 (1978), Teamsters Local 115 (Carol Lines, Inc) (Case 4-CB-4649, j udge's decision dated 19 March 1984, adopted by Board in absence of exceptions). 4 In Teamsters Local 115 (Oakwood Chair Mfg Co) (Case 4-CB-4583) [277 NLRB No 68 (Nov 25, 1985)], the administrative law judge found that the Respondent engaged in unlawful strike violence that included threats, property damage, and-at least one beating of a supervisor That case is now before the Board on the Respondent's exceptions In Team- sters Local 115 (Greenmount Cemetery) (Case 4-CB-4863) the judge found similar violations including the brandishing of baseball bats, crowbars, boards, and bottles s We recognize that the General Counsel's representative also joined in the offer. This fact, in'bther circumstances, might give us pause in reject- ing the offer Nonetheless, a settlement offer is not insulated from rejec- tion simply because the General Counsel 's representative finds it to be adequate Indeed, in this case, the General Counsel's representative's ac- ceptance of the offer is tainted by a misperception of law corrected by the judge, i e , that the Respondent's latest strike misconduct case cannot be considered in determining whether a broad order is necessary because the Respondent filed no exceptions See Operating Engineers Local 12 (As- sociated Engineers), 270 NLRB 1172 (1984) 275 NLRB No. 220 1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preclude reliance on this case in determining the breadth of remedy appropriate in other pending cases, against the Respondent. We agree. Finally, he concluded that a narrow order addressed only to the Employer's employees was inappropriate in view of the Respondent's established proclivity for such unlawful actions and the,fact that the violence and threats. here went beyond-the Employer's em- ployees and were directed at neutral employers and employees as well. We agree., , , In view of the foregoing, our colleague's willing-, ness to simply accept this settlement is disturbing. As we have -repeatedly stated, we--encourage. the peaceful and nonlitigious settlement of unfair labor practices. Yet the laudable goal, of encouraging voluntary settlements ought not be slavishly pur- sued at all costs to, the exclusion of all .other con- siderations. Here we see nothing of meaning to be gained by approval of this settlement offer (except, of course, the Respondent's avoidance of liability). The hearing has been completed and, in.view of the Respondent's minimal defenses, any subsequent enforcement actions will most likely-be swift. Conversely, acceptance of the settlement would make` a mockery of law enforcement. Surely, we should- not debase the, goal of encouraging settle- ments by, virtually inviting -parties to engage in egregious unfair labor, practices, insist on - a full hearing where they present only a minimal defense, and then walked away unscathed by signing- a piece of-paper that refuses to admit any wrongdo- ing. Finally, 'acceptance of this settlement would provide little solace, to the individuals who were beaten, cursed, and threatened; After- all, it is those individuals whom we are charged to protects 'ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Teamsters Local 115; _ a/w -International Brotherhood of 6 We agree with our dissenting colleague that a settlement should,not be rejected simply because it contains a nonadmission clause and is sub- mitted after the hearing is closed As noted above , these are but two of several factors that must be considered As for her reliance on our. ap- proval of the J P Stevens settlements, it is - well known in the labor-man- agement community that those settlements , approved by all parties, unlike- the situation here, were a peace , treaty ending a substantial and protracted labor management conflict In view of the long and tortured history. of those disputes, it would have been a virtual dereliction Hof duty to reject the comprehensive settlements provided in those cases Our action in those unique and special circumstances , however,'do-not require us to adopt the dissent 's implicit view that ' the Board is compelled' to accept any proffered ' settlement .just because it approved a settlement_ _ m- volving J P. Stevens Unlike the dissent, we shall continue to view each case on its particular facts and assess the efficacy of,any proposed settle- ment in terms of the purposes and policies of the Act For although a blanket rule accepting virtually any proposed settlement would doubtless- ly ease our decisional burden, the resulting injustices of such a rule simply extract too high a price Teamsters, Chauffeurs, Warehousemen and Helpers of America, . Philadelphia, Pennsylvania, its officers, agents, and representatives, shall take the action set forth in the Order. ' • MEMBER DENNIS, dissenting. This case should have never reached the Board because, before the judge entered his decision, the General- Counsel and the Respondent- agreed on a formal settlement. The settlement stipulation pro- vided for a comprehensive Board cease-and-desist order, the posting' of a notice, and the entry of court judgment -enforcing the Board's Order. The settlement' stipulatioii also contained a standard clause stating' that the Respondent does not admit violating the Act. - The Charging Party, however, opposed the set- tlement, and the judge, affirmed-now by the major- ity, refused to approve it. My colleagues' object to the settlement basically because they find the Re- spondent guilty, the agreement was executed after the close of the hearing, and 'the settlement con- tained a• nonadmission clause . According to the ma- jority, approving the settlement agreement in these circumstances "would make a' mockery of law en- forcement." - • I would approve the settlement on which the Respondent and the General Counsel agreed. I find that the settlement effectuates the policies of the Act, -and that- the majority's - objections to it are without merit. 1 - First, it may be, as' the majority holds, that the Respondent is guilty. But that .judgment is one that should only be made after,' not before, deciding whether- to- approve the 'settlement. The' majority's decision to approve or reject a settlement agree- ment based on the guilt or innocence of a respond- ent removes any incentive for a respondent to enter into such an agreement, because now settlements i I agree with the-General Counsel that the settlement agreement sub- stantially remedies all of the unfair labor practice allegations A compari- son of the settlement's Order and the majority's Order reveals that they are essentially the same, the main difference is that the majority's Order extends to conduct occurring at facilities other than the Employer's In - my view, this difference does not warrant rejection of the settlement, which allows for immediate contempt action in the event future miscon- duct should occur at the Employer's facility In these circumstances, no basis exists for the majority's conclusory assertions that under the settle- ment the Respondent - would avoid "liability" and "walk away un- scathed,"'while affected individuals would receive "little solace " The settlement fully protects the Charging Party's interests The ma- jority errs in characterizing the settlement agreement as providing "a narrow ordei addressed only to the-Employer's employees" In fact, the cease-and-desist order enjoins- the • Respondent from "[i]n any other manner, restraining,or.coercing employees of Gross Metal Products, Inc or of any other employer doing business with Gross Metal Products, Inc at the facility of, Gross Metal Products, Inc, 221 West Glenwood Avenue, Philadelphia, Pennsylvania" The General Counsel accurately characterizes the settlement as providing "a broad remedy with respect to conduct at the Employer's facility " TEAMSTERS LOCAL 115 (GROSS METAL) will be accepted only if the respondent would oth- erwise be acquitted. Second, the majority's reliance on the timing of the settlement negotiations and the inclusion of the nonadmission clause is misplaced. 'It is well settled that such factors are not a valid basis for rejecting a settlement that otherwise effectuates the policies of the Act. Mine Workers (James Bros. Coal Co.), 191 NLRB 209, 210 (1971); NLRB Casehandling Manual (Part One), Unfair Labor Practice Pro- ceedings, Section 10164.4 ("[A]n admission [of guilt] is unnecessary where entry of a court judg-' ment' is provided for. This is often an important factor in persuading a respondent to consent to the. entry of a judgment."). Indeed, in J. P. Stevens &. Co., 268 NLRB 11 (1983), Chairman Dotson and Member Hunter joined me in, approving a formal settlement that included a nonadmission clause and was entered into after issuance of the judge's deci Sion. Settlements are the lifeblood of this Agency. In my view, settlement efforts by the General Counsel and a respondent should be encouraged, by this Board, particularly in view of the staggering- case backlog. I regret that the majority's decision will have precisely the opposite effect. DECISION - STATEMENT OF THE CASE ROBERT A GIANNASI, Administrative Law Judge. This case was tried in Philadelphia; Pennsylvania, on Oc- tober 1, 2, and 3, 1984. The complaint alleges that Re= spondent violated Section 8(b)(1)(A) of the Act by nu-• merous acts of blocking the egress and ingress. of em- ployees and vehicles at Charging Party's premises and by numerous other acts of threats, violence, and coercion in connection with picketing by Respondent at the'preniises from March through August 1984. Respondent's answer denies the substantive allegations of the complaint. Three witnesses testified for the General Counsel. - In addition, video tapes covering some- of the incidents of alleged unlawful conduct were received into evidence without serious objection. Respondent offered no wit- nesses. At the close of the hearing, - I ruled , that briefs should be' filed by November 5,A984.- On request of counsel for Respondent, an extension of time"for' the' filing of briefs was granted to November, 26, 1984. Thereafter, on November' 19, -1984, • I was notified by telephone of a possible settlement in this matter' By'tele- gram dated November 20,, 1984, 'I notified the ' pai ties that they should submit their briefs on the-merits as,well as their positions on whether I should approve•'the_pro- posed settlement by December 10, 1984. I have' received' the briefs of'the parties as well as then posmons on the proposed settlement and I am also in 'receipt of the pro- posed settlement itself. The Charging-Party opposes the proposed settlement. 1. 1 -1 1, ' ' ` ' 1549 On the entire record,' including the testimony of the witnesses and my observation of their demeanor,' I make the following ' FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING PARTY The Charging Party is a Pennsylvania corporation which is engaged in the metal' fabrication business. at its facility located at 221 West Glenwood Avenue, Philadel- phia, Pennsylvania During a representative 1-year period, the Charging Party performed services valued in excess of $50,000 for customers located outside the Com- monwealth of Pennsylvania. Accordingly, I find that the Charging- Party is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II. THE LABOR ORGANIZATION Respondent is a labor organization -within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. -The Facts The Charging Party's facility is located in a one- to two-story building, 40 • percent of which is occupied by two other tenants. The principal access to Charging Party's- facility is through a main entrance-a steel door which is 40- inches 'wide-fronting on Glenwood Avenue Also fronting on Glenwood' Avenue is another entrance of 10 overhead bay doors; 2 are exterior loading dock bays- and- 8 are interior loading dock bays. In Feb- ruary 1984, Charging Party''employed approximately' 50 employees and its president was Sheldon Gross. On February 24, .1984, Gross received a letter from Respondent ,requesting recognition as the bargaining agent of Charging Party's' employees. That same day, two. representatives of Respondent, Business Agent Jim Oliver and Organizer Rick Hart, called' on Gross at his office -and requested recognition, in person.- Oliver told Gross that he would have •5 days within which to sign a recognition agreement or the: employees would go on strike and Charging Party, would. be put "out of busi- ness." After a return visit 5 days later by Oliver and Hart, Gross declined to accord Respondent recognition and notified Respondent' that he had, in the meantime, filed 'a petition for a representation election with the Board. OnMarch'1; 1984; Respondent struck Charging Party. Some .30 to 35. people, including 25 fo 30 employees of Charging Party, appeared in-front-of-the facility and picketed:'The picket signs referred to Charging Party by name, and '"contained the notations "unfair labor practice" and,"on strike, Union Local "115." Hart, was present on the first day. of picketing wearing a Local -115 jacket. From March 2 until .August' 30, 1984, picketing contin- ued at the Glenwood" Avenue facility. Officials of Re- spondent-Oliver, Hart, and Organizer Robert Hen- ninger-were- present ion many of these occasions. From March 2 through 28, Hart was present on the picket. line 1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on all, but 1 or 2 days. Henninger was present every day. He testified, on, March 28, 1984, in a state court proceed- ing involving the picketing, that "lately, I've been there 12 hours a day." Oliver was present about half the time. Strike benefits were paid by Respondent to picketing em- ployees of Charging Party and several other nonem- ployees who engaged in picketing were members of Re- spondent. Beginning on March 9, Charging Party advertised for, and thereafter hired, replacements for the striking em- ployees. The following events were observed by Sheldon Gross who testified about them in a clear, straightforward, and credible manner. His testimony was strengthened by his confirmation of certain details on cross-examination and corroborated to some extent by video tapes of some of the incidents which were received in evidence and viewed by me i He used notes while on the witness stand but he did not read from his notes. Respondent's counsel was permitted to inspect the notes before cross- examination. However, both on direct and on cross, Gross showed a remarkable ability to testify about details with only minimal reference to his notes. Gross' testimo- ny stands uncontradicted because Respondent put on no witnesses of its own. The major incidents, which do not purport to be complete but involve the more serious and clearly explicated events, are as follows: (1) March 2-As nonstriking employee Luis Salgado tried to enter Charging Party's main entrance, some 15 to 20 pickets massed in front of the door. Despite several attempts by Salgado to pass through the pickets, which included , Respondent Organizer Hart, Salgado was unable-to enter until, after about 10 minutes, a police of- ficer escorted him through the picket line. (2) March 9-Gross was waiting at the main entrance to usher in employees reporting for work when he was accosted, by a person who, identified himself as "Jose" .and a former employee of Oakwood Chair-an employer which had been involved in another dispute with Re- spondent. Jose informed Gross that he and others with him were trying to organize that employer and that we "had to put them ' out of business."? He said -that they would do the same to Gross unless he signed an agree- ment "with us" He, also threatened that Gross' suppliers would be picketed and that his situation would be the same as that at Oakwood where the owners "physically i Respondent's counsel did not object to the authenticity or relevance of the tapes His only objection to receipt of the tapes in - evidence was that they were cumulative , His comments were as follows- we already have countless testimony about the incidents, and its just redundant testimony through ' video tape, some of which is hear- say, because he didn't take the video tapes , his wife -may have taken ,the.video tapes I'll be frank with you, Your Honor, I've seen some of they video tapes, and they do recount some -of these incidents Others don't and I don't seethe relevance since we already have -Mr Gross' testimony ` ' - t 2 Respondent's dispute with,Oakwood Chair is,the subject of a pro- ceeding involving similar .unfair labor practices against Respondent which is pending before an administrative law judge Oakwood Chair Mfg Co (Case 4-CB-4583) Respondent has'also been charged with similar viola- tions , in 'Greenmount Cemetery (Case 4-CB-4863 ) and Turf Maintenance Corp (Case 4-CA-14330))• which is also pendmg .before an administrative law judge. - got hurt pretty bad." Several replacement employees were present during this confrontation. . (3) March 12-About 12:15 p'm. about seven pickets entered the building through the front door and chased two employees. Organizer Hart was standing outside the front door. Earlier, Gross had gone outside and observed Harr-with a bloody nose. Gross asked Hart what had happened and Hart replied,' "I told you you were start- ing a fucking war. That's okay, we know how to deal with this -wahoo shit; and we'll put you out of fucking business." (4) March 13-In the morning Gross had great diffi- culty opening the door to the main entrance to allow employees to enter because of the mass of pickets in front of it. Gross was kicked in the shin by one of the nonemployee pickets. It took 15 minutes before the door could be opened. Shortly thereafter Jim Oliver told Gross'not to come out on "my" picket line and said if he came outside one more,time "you are going to get it." Oliver then took two. steps back, clenched his fists, and gestured for Gross to come out. Oliver said, "Come out I am going to kick your ass." At this time employ- ees were trying to' come in to the building to report for work. (5) March 13-A number of pickets including Hart and Oliver massed in front of the front entrance and pre- vented employees Falcon, Gusman, Stevens, and Cephas from entering for periods of from 5 to 20 minutes. Some of the employees were bumped by the pickets and Gusman was hit on the head. Employee Rodriguez was grabbed by a picket and struck in the middle of the back while trying to enter. The police intervened and helped him get through the pickets and into the plant. (6) March 13-The massed pickets prevented employ- ees Flores, Iricarry, Montenez, and Perez from entering. The pickets were standing four or five deep at the door. When the police assisted Rodriguez, these four employ- ees entered. Iricarry was bumped by a_picket. (7) March 13-Several pickets chased employee Weaver, who had attempted to enter the building to go to work, down the block. Gross had to,drive his car out of the facility to pick up Weaver. Gross reached Weaver who jumped into the car whereupon one, picket struck the car window and said, "You no good mother fucking- nigger scab." Oliver and Hart observed this incident. (8) March 13-A group of job applicants tried to get into the facility but were prevented from doing so by pickets massed 4 to 5 feet deep at the main entrance. They chanted in unison, "go home." Hart led the cheers. (9) March 13-In the afternoon, about 1.30, as a sup- plier's truck.was attempting to enter the plant, a picket stood in.front of it, preventing it from entering Another picket came-over and jumped on to the running board and hit his fist on the window calling the driver a "no good mother fucking scab." Hart was present during this incident. (10) March 14-During the morning, as employee Falcon attempted to enter the building, he was pushed and bumped by a'picket who was blocking the doorway. Several other employees also tried to enter through one of the bay doors but could not do so because they were TEAMSTERS LOCAL' 115 (GROSS METAL) blocked by pickets who were massed in front of the door. Hart was present during these incidents (11) March 14-The company truck" attempted to make a delivery at one of the bay doors but six pickets prevented it from doing so Gross then spoke to Hart and asked if the pickets would move aside in accordance with an agreement made between Respondent's counsel and Charging Party's counsel in connection with a local court suit over the picketing. Hart refused.: The truck was unable to enter until the police arrived 25 minutes later whereupon the pickets dispersed (12) March 15-Employees Cephas and Stevens at- tempted to enter the building through a bay door but were prevented from doing so for about 5 minutes be- cause of pickets who moved back and forth blocking their way. Hart was present (13) March 15-Employees Rischow and Weaver at- tempted to enter the building but Rischow was bumped, blocked, and pushed away by pickets and Weaver was blocked from entering a bay door. Hart and Henninger were present. (14) March 15-A trash removal truck-came to one of the bay doors to remove trash but was prevented access to the bay by pickets who stood in front of the door. The driver asked the pickets to move but Hart toldithe driver to come back another day The driver left. ' - (15) March 19-The trash truck again tried .to pick-up the trash but was prevented from backing into the bay door area The driver asked Hart to move the pickets but Hart did not reply The driver left again-and did not._ make a pickup. - (16) March 19-A Daily Tube truck approached the facility to make a delivery but was prevented from doing so by a group of pickets. The truck could not gain entry until the police arrived some 30 minutes later- - - (17) March 20-Pickets prevented a trash truck',fro'm SCA Trash Removal from making a pickup at the prem- ises Hart was present. The driver left and returned but was again blocked by pickets. Hart and Henninger were present at this time. The police arrived and, the pickets dispersed. (18) March 22-A Bonnell tractor-trailer': truck. at- i tempted to make a delivery at the facility. The truck was surrounded by pickets which prevented it from moving for about 4 hours when the police-arrived. The truck backed into one of the bays and the trailer was un- hitched and the tractor left. The trailer was unloaded by Charging Party employees About 3.30 p.m the tractor returned to pick up the empty trailer. -Hart and Hen- ninger instructed the pickets to line up along the bay-en- trance to prevent the tractor from. hitching on to ,the trailer. The massed pickets prevented- the -tractor :from being hitched for about an hour. When the trailer .was hooked to the tractor the pickets prevented the i truck I from moving for about a half hour :until the! police- ar- rived. - x: 3 Because suppliers and others who had tb make pickups and deliveries encountered difficulties with the picketing at the Glenwood facility, Charging Party found it necessary to rent trucks and make its own deliv- eries to the facility These rental trucks are referred to collectively as the company truck 1551 (19) March 24-A group of pickets blocked the com- pany truck and prevented it from entering a' bay door. The pickets did not allow the truck to enter until the police arrived. (20) March 24-Replacement employee Scott was pre- vented from entering through the main entrance after a break because of the obstruction of a group of pickets. After 10 minutes he was able to enter through a large bay door. •(21) March 26-Pickets prevented the company truck from entering the bay door to make deliveries Union Of- ficials Hart and Henninger were present. After about 30 minutes the truck left. The truck returned later but was again ' blocked. Union Official Oliver directed the pickets twstand behind the truck and refused a specific request from Gross to allow the truck to enter. The truck tried unsuccessfully to enter the premises to make a delivery for over 4 hours. . (22) March 26-Pickets obstructed replacement em- ployees Samuels, Garr; Thompson, and Patraza and pre- vented them from 'entering the premises for varying amounts of time. Employee Samuels was blocked for 2 hours Patraza got through but was slapped on the side of, the head by a picket., Henninger,, Oliver,; and 'Hart were present during all or some-of these incidents '(23) March 26-During the `lunch- hour pickets massed in front of replacement employees'Cottler and Richard Smith. • Smith entered although • he was jostled and pushed by pickets •Cottler' tried unsuccessfully to get through the picket line several times (24) March' 26-About 5:30'p'.m' replacement employ- ees went outside -and attempted to unload the company truck which had been prevented from entering into the bay area. On instructions from Oliver and Hart the pick- ets massed in front of the entrance area. One of the pick- ets grabbed a skid being used by replacements forcing a brief 'altercation. t As ,the replacements tried to carry boxes out to the truck they were pushed and harassed by the pickets -' ' - ` (25) 'March -27--A °gioup of pickets blocked' the, en- tranceway and delayed the' entry of anumber of replace- ment employees who were bumped- and 'shoved -before forcing their way through'the picket line. Henninger and Oliver were present. While replacement, employees were waiting to enter, striking employee Liiis Pena challenged several replacements- to a fight' -'The police came on the scene and ordered Pena to leave. (26) March 27 -and 28-On' three separate, occasions pickets' prevented the company truck from entering or exiting Respondent 's premise's. On one of `these occa- sions, Hart specificall Y,, refused Gross'. requests to permit the truck-•to' go'throughr the, picket line' ' F-(27)`March'29-The company truck was -backed up to one, of.the bay, doors aiid was surrounded by pickets, who let it pass About 50 feet from the building, it was dis- covered that pieces of wood with- nails -had been ' driven into tle'frbnt"'tires and had'punctuiedthem.4 4 On March 29, 1984, a local court entered a preliminary injunction again t "Respondent • pfofiibiting- certain- picket line misconduct The in- junction remained in effect until July 16, 1984 I 1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (28) April 13 and 19-Several pickets obstructed a Black and Decker truck and prevented it from moving into one of the bays. On April 13, the pickets moved aside after the arrival of police and, on April 19, they dispersed after obstructing the truck for 25 to 30 minutes when the state court injunction was read to them. (29) April 24-Pickets, including Hart, blocked a Black and Decker truck from entering the premises Gross read the state court injunction to the pickets but they did not move until the police intervened. (30) April 26-On three separate occasions, trucks from Black and Decker, Koski, and Bard were prevented from entering the premises by massed pickets -for varying periods of from a half hour to over an hour The police were called on one occasion to help obtain entry. (31) April 26 and 27-On two separate occasions, massed pickets prevented a Florida-Texas truck and the company truck from entering the bay doors. The pickets did not disperse until the police arrived (32) April 27-Pickets prevented a Koski truck from entering the premises and later prevented the company truck from entering for about 45 minutes until the police arrived. (33) April 30-Several pickets prevented the entry onto the premises of a Cardinal Trucking truck. Gross asked them to move aside and a striker, Luis Martinez, spit at Gross twice, picked up a rock and taunted Gross. Several replacement employees were present during this incident. Later pickets prevented a Black and Decker truck from entering the premises and Martinez spit at the driver of the truck. (34) Several occasions in May-Striking employees stood in the bay doorway at the end of the day and pre- vented Gross from leaving the facility. He was blocked for an average of about 45 minutes each time. On one occasion Gross was spit upon. On several occasions, re- placement employees were present and observed the in- cidents. (35) May 1 and 2-On two occasions pickets prevent- ed the company truck from entering the premises. The pickets did not disperse until the police arrived. (36) May 21-Two pickets obstructed the entry of the company truck into one of the bays. Henninger was present. After about 45 minutes the police arrived and the pickets permitted the truck to enter. (37) May 21-About 8:45 a.m pickets massed in front of a Bonnell Company truck and prevented it from en- tering a bay. The leader of the pickets was Bill Riley who claimed that the state court injunction had been lifted. Gross disagreed and the police were called. Hen- ninger arrived about 11 a.m. About this time the compa- ny truck also arrived and was prevented: from entering the premises. Both trucks remained blocked until about noon. -(38) May 23 and 24-On two occasions, pickets pre- vented the company truck from entering the premises. (39) June 22-At approximately 10 a.m. while-replace- ment employees were leaving the building on -break, striking employee and picket Cruz yelled, "Wait until next week, we'll be able to get you then" and he told Gross to tell the employees what would happen the next week when the injunction was no longer in effect. (40) June 22-While the company truck was being loaded at one of the bays, nonemployee picket Jones walked around to the front of the truck carrying a metal bar. An argument ensued between a security guard and a picketer away from Jones and there was a loud noise and the truck began to shake. Jones ran off with the-metal bar It was later discovered that the truck's radiator had been smashed. It cost $450 to repair the radiator. (41) July 3 and 9-Pickets stood in front of the compa- ny truck and prevented it from leaving for about 20 min- utes on July 3. A similar incident occurred on July 9 when Hart was present. (42) July 10-After a Bonnell truck made a delivery at the premises pickets obstructed its movement after it had moved onto Glenwood Avenue in front of the-premises The truck was blocked for about 25 minutes- until the police arrived. (43) July 16-Twice the company truck attempted to enter the premises Both times picketers prevented the truck from entering. On the second occasion in the after- noon, Union Official Hart initially refused to permit the truck to enter but after the police arrived the pickets dis- persed. (44) July 16-At approximately 7 p.m. two supervisors and two replacement employees attempted to exit one of the bays and-Gross attempted to exit from another. Pick- ets blocked the egress of both vehicles and they contin- ued to block the first vehicle until 8:30 and the second until 10.30 p.m. after the arrival of counsel for the Charging Party who called the state court judge who had issued the injunction and the judge talked to striking employee picket Del Valle. (45) July 18-Pickets prevented the company truck from leaving the premises from 8.45 until 10:30 a.m. Union Officials Hart and Henninger were present. A vendor's truck from Lynpack was prevented from enter- ing the premises at the same time The truck finally was permitted' to enter about 12.30 p.m after the police inter- vened. However, the pickets positioned themselves in such a way behind the truck that they prevented replace- ment employees from unloading the truck by use of the forklift and the truck left without completing its unload- ing. (46) July 20-Pickets obstructed the company truck and blocked the unloading of the truck The truck was eventually unloaded by hand but it took 30 minutes rather than the normal 10 minutes to accomplish this had a skid and forklift been used. (47) July 24-Pickets prevented a vendor's truck from making a delivery at the -premises about 11:30 a.m. The truck again attempted to make the delivery at 3:35 p.m. and did so despite some difficulties. However, as the driver was attempting to leave, several of the pickets stood in front of the bay door to prevent its egress. After a delay of about a half hour, the truck was permitted to leave when the police arrived on the scene. (48) July 27-Pickets prevented the company truck from entering the premises. Union Official Henninger was present and instructed the pickets. After Charging Party's counsel arrived on the scene, Henninger mo- tioned to the pickets to disperse. Later the same day two TEAMSTERS LOCAL 115 (GROSS METAL) pickets again prevented the company truck from entering the premises. (49) July 30-Pickets prevented the company truck from entering the premises for over an hour. Later about 6:05 p in. pickets again obstructed the entry of the truck Replacement employees were then sent outside to unload the truck by hand. (50) July 31-At approximately 8 am. a Spano trash truck arrived at the premises. A trash container was about to be loaded on to the truck when nonemployee picket Gaines, who wore a union button, approached the Spano driver and said, "If you pull that container on the truck, we're going to hold you in here all fucking day " The driver unhooked the container and drove away. (51) August 1-Pickets prevented the company truck from entering the premises. Gross walked over to the. driver to give him instructions As Gross walked away, striking employee Martinez spit at Gross. Gross spit back and . Martinez. then hit Gross on the side of the face Three or four other pickets ran over to the area and the police intervened. (52) August 2-On two occasions trucks were prevent- ed from entering the premises by pickets for a period of time. During the first occasion, Gross walked up to the truck and attempted to unload some small cartons. He was pushed and bumped by striking employees. Replace- ment employees were present. (53) August 3-Pickets blocked the entry of three trucks into the bay areas In the first incident, striking employee DelValle brandished a metal object in his hand but left after a security guard approached him. In the second incident, striking employee Cruz grabbed an alu- minum part and threw it into the work area where a re- placement employee was working In the third incident, a repairman tried twice to pull his truck into one of the bays but was prevented from doing so and had to leave his truck on the street. (54) August 6-Pickets prevented the company truck from entering the premises for over an hour until police arrived to disperse the pickets. (55) August 7-Pickets prevented Gross from entering the premises for about 10 minutes and prevented the company truck from entering the premises shortly there- after When Gross asked the pickets to move, striking employee Martinez spit at Gross and, when Gross walked away, another striking employee, DeJesus, threw a rock at Gross which struck him on the leg. A number of replacement employees witnessed this incident. (56) August 7-Pickets obstructed the company truck as it was attempting to leave about 9 a m. Striking em- ployee Cruz grabbed the side view mirror on the truck, bent it, and broke it off. The mirror had to be replaced. Replacement employees observed the incident (57) August 8-Pickets obstructed the egress of the company truck. Gross intervened. Striking employee Martinez spit at Gross several times and striking employ- ee Ayala threw a rock at Gross Several replacement employees 'were present. Thereafter, Ayala and Martinez slid underneath the truck. Shortly thereafter, it was de- termined that the truck's hydraulic break line had been cut. The truck had to be towed away for servicing I 1553 (58) August 9-Pickets prevented the company truck from leaving the premises for about an hour until the police arrived. The truck parked in the street, the police left, and pickets again massed around the truck to pre- vent it from moving. The police were again called and dispersed the pickets. (59) August 14-Pickets prevented a SCA trash truck from access to an entranceway where it was to pick up a trash container. The pickets refused to move. As a result the pickup was not made and the truck left. SCA refused to perform trash removal for the Charging Party thereaf- ter (60) August 15-Pickets prevented the egress and in- gress of several • trucks. Striking employees DelValle and Ayala were observed handling certain straps on a Premi- um Palate truck which were thereafter determined to have been cut DelValle and Ayala also threw beer bot- tles at the truckdriver. Striking employee Cruz also hit the Premium driver across the back of the head with a board and knocked him to the ground Security guards had to intervene to stop the assault (61) August 20-Pickets prevented the company truck from entering the premises for about an hour until the police arrived. (62) August 22-Pickets prevented the company truck from leaving the premises for about an hour until police arrived. Later the truck returned to the facility and was prevented from entering by pickets until the police ar- rived. When the truck again attempted to leave the pick- ets blocked it until the police arrived. (63) August 24-Two pickets carrying union signs pa- raded in front of the company truck thereby preventing it from entering the premises. The police arrived and the truck was permitted to enter (64) August 30-Pickets prevented a customer's truck from leaving the premises. A nonemployee picket named Gaines verbally harassed the driver and threatened to fight him. Gaines was restrained by police and the truck was permitted to leave In addition to the above incidents, Plant Manager Royack testified about several incidents he observed. His testimony was also clear, straightforward, and uncontra- dicted The incidents are as follows (1) March 27-Pickets prevented a truck from entering the bay area. They shouted verbal abuses at Royack and replacement employees and threatened them with bodily harm. Striking employee DeJesus slapped Royack in the face twice and said that he would get him later. (2) August 15-Pickets prevented a supplier's truck from backing into the bay area. When the pickets refused Royack's request to move, he ordered the replacement employees to . come outside and unload the truck by hand. The pickets interfered with the unloading by step- ping -in front of the employees and grabbing pieces of material and throwing them on the ground (3) August 17-Pickets prevented a supplier's truck from entering two separate bays. (4) August 23-Pickets prevented the company truck from entering the premises. When Royack went over to speak to the truckdriver, one of the strikers attempted to draw Royack into a fight He said that the next day he 1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and others would "'get" him and put him in the hospital. Charging Party's guard and truckdriver were present during the incident. - In addition, Patrick. Cram testified about several inci= dents during the picketing. He. was employed by the se- curity guard company utilized by Charging, Party to keep order during the picketing until June 2, 1984,-and he thereafter went to work as a foreman for the Charg- ing. Party for 3 months. He was not, cross-examined ,and his testimony was not disputed The incidents he report- ed are as follows: - - (1) April 13-Cram, as a guard, and the driver of the company truck left the. Gross Metals premises to make some pickups at the Florida-Texas terminal. Union Offi- cial Hart followed the truck in his automobile. After the truck was ready to -leave the Florida-Texas terminal, Hart stood in front of the truck, and would not leave until the . terminal - manager came out and asked :him to move. The truck was detained for about a half hour., (2) May 5-As Cram was riding in the company truck along Glenwood Avenue a bottle was thrown against the side,of the truck. Cram then.observed _ a picket named O'Neill throw a brick-against the side of the truck. (3) May. 21-Cram was in street. clothes and driving the company truck. He attempted to back the truck into one of the bays. Several , pickets'stood behind the truck and prevented it from, moving for about a half hour' Other replacement employees were present. On August 30,-;1984,- the United States , District. Court for the Eastern District 'of Pennsylvania entered a tempo- rary injunction under -Section 10(1) of the Act. against Respondent , its officers, agents, and employees The, in- junction prohibits certain conduct alleged, in this-'c om- plaint pending the, final disposition of the' matter :by-the Board. The injunction expires 6 months from the entry of the order.; B. Respondent's Defense on. [he tNe'rits As I have indicated; ,Respondent offered no witnesses or other evidence at trial and did not-seriously object to the introduction of the, video tapes. Nor was Respond- ent's counsel able, to articulate any specific defense to. the charges when asked to-do so at trial. . Respondent's, defense as set forth _in its eight-page brief on the merits is a's'follows: (1) Some of the incidents in- volved spitting of beer or trespassing and do- not neces- sarily violate, Section 8(b)(1)(A), of the Act. No specific reference is made td the record and no cases -are, cited; (2) as to incidents .involvingthreats ,or assaults against sul pervisors, employees. must be,,; present. -No. specific inci= dents are cited where such threats, or ;assaults were,made but, employees were not; present; (3) ,there' is no testimony from witnesses who were not,-supervisors; or guards;, (4) Royack's testimony about, the March i27 incident did not identify striking- employers and did not establish, their agency status; (5) : Cram's ;testimony did;not link the pres- ence of employees.wtth the-mcidents,of coercion, and-he himself was a security guard and not an employee under the Act; (6) with reference to Cram's testimony about the.May 23 incident,, there, was, no showing that the indi- vidual -"employee'!' who engaged in.the misconduct was an agent of Respondent; (7) Gross" testimony should not be accepted because he referred to his notes while testi- fying. Reference is made to the rule (Fed.R.Evid. 612) that if a witness uses a writing "while testifying . . the adverse party-is entitled to inspect the writing and use it on cross-examination." In this connection , Respondent also argues that, before Gross could refer to his notes, it was incumbent upon the General Counsel to demonstrate that Gross', recollection had been exhausted. Several cases are cited in this regard , but all are inapposite. Respondent's contentions are without merit. First of all, none of the numbered findings of fact are restricted to simply spitting and trespassing. All involved more- physically preventing egress or access or additional acts of coercion Second, in all findings dealing with threats or assaults against supervisors, employees were present- either the truckdriver of a neutral employer, the truck- driver of the company truck, or replacement employees Third, the fact that there was not additional testimony from other individuals does not detract from the reliabil- ity of the witnesses who did testify, especially since they were not contradicted. Fourth, Royack's testimony about the March 27 incident identifies pickets generally and DeJesus in particular. DeJesus was a picket paid by Re- spondent. Respondent sanctioned ,the picketing . This tes- timony is sufficiently precise to establish responsibility and agency. Fifth, two of,the three findings based on Cram's testimony involve incidents where another em- ployee was present. the truckdriver. The third finding-in- volves Cram only who-was on that occasion in street clothes and- driving the company truck. Although Cram was a security guard he was still an employee within the meaning of the Act. However, even as to this incident; Cram's testimony indicates that other replacement em- ployees were present. Sixth, I have not included in my findings any reference to a May 23 incident as I consider Cram's testimony on that incident to have been confus- ing. Nor have I made any findings with respect to his testimony about a threat allegedly made to him by an un- named-picket during the May 21 incident. The latter in- cident -involved' a blocking, of ingress by pickets who were obviously authorized and paid by Respondent. c !The last remaining defense offered by Respondent in brief- is - that Gross should not' have been permitted to refer to his notes while • on -the witness stand. I consider this -contention, basically ,an attack on. Gross' credibility. As I have indicated I was very impressed with Gross' re- liability' as, a witness. First of all,, contrary to Respond- ent'.s contention,- Gross did. not read from his notes He impressed,-me as having a surprising knack for recalling even details of the incidents with only minimal reference to his notes. Second, Respondent's objection at the hear- ing-was not made specifically.in"terms of Gross' recollec- tion having to be., exhausted before referring. to* his notes. It Was 'a general objection which I resolved by permit- 'tirfg Respondent to use the notes on cross-examination- •fu& compliance` with Rule 612 cited by Respondent in its brief. Use of the notes during Gross' testimony was an implicit recognition that the incidents about which he was to testify were numerous and covered a period of about 6, months. :It is -understandable- that a witness would 'not''have total recall of all of the incidents with- TEAMSTERS LOCAL 115 (GROSS METAL) 1555 out some aid Respondent was adequately protected by full compliance with Rule 612 and.my consideration of all of the circumstances surrounding Gross' testimony, including the fact that he referred to notes which, inci- dentally, were taken contemporaneously with the events, convinces me of his reliability as a witness. After all, he testified only about incidents which he personally ob- served, confirmed his testimony on cross-examination, was not contradicted by any other -witness, and was indeed corroborated to some extent by the video tapes. In short, Respondent has failed to impugn-Gross' reliabil- ity either at trial or in brief. C. Summary In sum, I find without merit Respondent's defenses dis- cussed in section B above, reaffirm my findings of fact in section A, and conclude that Respondent is responsible for the incidents of picket line misconduct set forth. IV THE PROPOSED SETTLEMENT The proposed settlement in this case provides for an agreed-upon cease-and-desist order and the posting of a notice. It also provides for the entry of a court decree. It prohibits certain unlawful conduct addressed to employ- ees of the Charging Party and to other employees at the Charging Party's facility-a so-called narrow order. The General Counsel and Respondent argue that a broad order' prohibiting unlawful conduct against other em- ployers at other locations is not warranted. The pro- posed settlement also provides that the agreement of Re- spondent does not constitute an admission that it has vio- lated the Act As I have indicated, the Charging Party opposes the settlement Indeed, I have been notified that on November 30, 1984-less than 2 weeks after I was notified of a possible settlement-new charges of viola- tions of Section 8(b)(1)(A) have been filed by the Charg- ing Party against Respondent. The General Counsel has not yet acted on the charges as of the date of this deci- sion. Notwithstanding the filing of new charges, the General Counsel takes the position that the proposed set- tlement should be approved. I cannot approve the proposed settlement. It fails to adequately resolve the instant case in two major respects. First of all, the violations herein are clear, overwhelm- ing, and unrebutted. They are also pervasive and serious. There is no question that the General' Counsel has pre- vailed in showing widespread and massive violations -in this case. In these circumstances, a -settlement after close of hearing which includes a so-called nonadmissions clause would make a mockery of law enforcement. Moreover, the use of a nonadmissions clause in-resolving this case would preclude any reliance on this case as showing proclivity to violate the Act in considering rem- edies in the two other pending cases against Respondent listed at footnote 2, supra. See Carpenters, Local 1622 (Robert Wood & Associates), 262 NLRB 1211, 1219-20 (1982), and cases there cited. - Second, the proposed settlement's failure to provide for the entry of a broad order renders it ineffective as a matter of public policy. The evidence in this case estab- lishes violations which are not only massive but also touch the employees of many neutral employers aside from the Charging Party. The truckdrivers of many neu- trals were stopped and coerced. Moreover, one of the pickets identified himself as an employee of Oakwood Chair. He 'mentioned that Respondent would picket Gross' suppliers and suggested, that Respondent would engage in violence in an effort to shut down Gross as it had Oakwood Chair. This theme of shutting down the employer was also mentioned to Gross by Union official Hart who also carried his activities-on one occasion to the terminal of a neutral employer. More importantly, there have been four other cases where the Board has found similar conduct by Respondent to have been un- lawful. See Teamsters Local 115 (E. J. Lavino & Co.), 157 NLRB 1637 (1966); Teamsters Local 115 (Continental- Wirt Electronics), 186 NLRB 56 (1970); Philadelphia Am- bulance Service, 238 NLRB 1070 (1978); Teamsters Local 115 (Carol Lines) (Case 4-CB-4649, ALJ decision March 19, 1984, adopted by the Board in the absence of excep- tions April 24, 1984). The General Counsel argues against use of these prior decisions because some are remote in time and the fourth one is an unappealed judge's decision which, although it is strikingly recent, according to the General Counsel, is also unusable to show proclivity to violate the Act. In this respect, the General Counsel has made a serious error. The General Counsel states that the Board has "refused to base a finding establishing proclivity based upon an Administrative Law Judge's decision to. which no exceptions were taken," citing several Board cases. However, those cases were specifically overruled in Op- erating Engineers Local 12 (Associated Engineers), 270 NLRB 1172 (1984). It is thus clear that the Board may rely on such decisions to show a proclivity to violate the Act. (See also ALJ decision in Tri-State Building_& Con- struction Trades Council, 257 NLRB 295 (1981).)5 In view of the record evidence in this case and the prior violations against Respondent which are made more relevant by the fact that they show an unabated pattern with extensive violations repeated as recently as 1976 and 1983, I find that Respondent has demonstrated a proclivity to violate the Act. In this context, a narrow order is inappropriate. In rejecting the settlement I have given full consider- ation to the strength of the General Counsel's case, the fact that the settlement came after the end of the trial, when the resources of the Agency had already been ex- pended 'to a great degree; and the propriety of the pro- posed remedy. In view of respondent's utter failure to provide a meaningful defense in this case or to present any witnesses to contest the evidence of the General Counsel, I 'find it quite impossible to sanction a settle- ment after a full trial which would have been no differ- ent from 'what could'' have been secured before trial. Indeed, 'the' matter had been litigated to a certain extent before August 30, 1984; when the District Court entered a temporary injunction against Respondent. Accordingly, S I do not rely on the formal settlement-much like the one proposed in this case-which was approved by the Board in 1972 in Teamsters Local 115 (J L Popowich & Sons), Case 4-CB-1875, because that settle- ment contains a nonadmissions clause - 1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that the settlement of the General Counsel- and the Respondent does not- meet the requirement, that settle- ments should effectuate the policy of the Act; it does not adequately recognize the strength of the General Coun- sel's case; nor does it save the time and effort of the Government. See • Farmers Co-Operative Gin Assn, 168 NLRB 367 (1967) Indeed, in Farmers Co-Operative, it was cautioned that the "Board must- evaluate the legal and factual merits . . to-determine whether the allega- tions of violations in the complaint can be so clearly- proved that no remedy, less than the maximum, can be accepted." Any-analysis of this case on that basis coin= pels me to reject the settlement and issue my decision on the record as presented to me.6 In accordance with the factual findings set forth in section III of this decision I make the following - CONCLUSIONS OF LAW 1. The Respondent has restrained and coerced employ-' ees in-the exercise of their rights guaranteed under Sec- tion 7 of the Act, in violation of Section 8(b)(1)(A) of the Act, by the following acts and conduct. - - - (a) By obstructing, blocking, and preventing ingress and egress of 'vehicles, employees, and other persons to and from the facilities of.Gross Metal Products, Inc. and, in one instance, the facilities of Florida-Texas where Gross Metal employees were making pickups or deliv= eries, in order to prevent such vehicles, employees, or in- dividuals from crossing Respondent's picket line. (b) By threatening employees` and other persons with violence and other reprisals if they crossed picket lines or -because they ' crossed picket lines. set up by Respond- ent. • . (c) By assaulting or striking employees or"other"per; sons, throwing objects or brandishing objects of employ- ees or other `persons because they c'rossed' or attempted to cross Respondent's picket line. • • (d) By causing damage or attempting to cause. damage to vehicles 'or other property because employees or other- persons crossed or • attempted, to, cross; Respondent's picket line. . . . " . - - . (e) ,By mass picketing, pushing, shoving, chasing, or spitting at employees. Pr other persons because they crossed or attempted to.-cross Respondent's picket line. 2. .The aforesaid unfair labor practices affect commerce within the ' meaning , of Section 2(6) and (7) of the Act. THE'REMEDY " " . I shall order- that the Respondent. cease and desist-from the conduct found to have been unlawful and post an ,ap- propriate. notice. For the, reasons,stated in, section IV 'of 6, The provision in' the proposed settlement , fort the entryi,of a court decree to enforce the narrow order set forth therein does not make the proposed settlement any more effective than the issuance of an order after litigation because the Board may, petition for enforcement of its order in either case In the meantime, an-injunction is,in effect which pre- vents the misconduct and, although the injunction terminates on a date certain, should Respondent continue to contest this matter, the General Counsel would be warranted in seeking an extension of the 100)-injunc- tion until the Board acts on the merits Protection is also afforded by Sec 10(e) of the Act in obtaining a temporary injunction after the Board's de- cision but before court enforcement this decision, the order herein will be a broad one pro- hibiting specified unlawful conduct against any employer in connection with picketing authorized by Respondent and also prohibiting Respondent from restraining or co- ercing employees in violation of Section 8(b)(1)(A) in any other manner. Such a broad order is permissible where, as here, the Respondent has demonstrated a pro- clivity to violate the Act. See NLRB v. Union National de Trabajadores, 540 F 2d 1, 11 (1st Cir. 1976), enfg Board orders reported at 219 NLRB 405, 414, 429, and 862 (1975). See-also Carpenters Local 1622, supra, 262 NLRB 1211 fn. 1 and 1219-20; Electrical Workers IBEW Local 3 (L. M. Ericsson Telecommunications), 257 NLRB 1358, 1373 (1981); General Service Employees Local 73 (Andy Frain, Inc.), 239 NLRB 295 (1978). - I shall also include in the.order a provision-which appears in a "somewhat different form in the proposed settlement and which seems to me to be necessary to ef- fectuate the purposes of the Act-that Respondent mail copies of the notice to all striking employees of Gross Metal and all other members or individuals who partici- pated in the picketing at the Gross Metal facility. It is clear from this record that Respondent utilizes and pays individuals to picket on its behalf. These individuals should be made aware that threats, violence, and coer- cion are not to be tolerated as part of their picketing ac- tivities Such notification is reasonably related to preven- tion of similar unlawful conduct in the future and is therefore an appropriate remedial device. Because . the 'Respondent offered no - witnesses and seemed not to have articulated ,a defense at the hearing, I asked the parties to brief the issue of whether litigation expenses ought to be imposed on Respondent 'Generally speaking, the Board awards such expenses where a re- spondent's defenses are deemed "frivolous" or taken in "bad faith." See Autoprod, Inc, 265 NLRB 331. (1982), J. P Stevens & Co., 239 NLRB 738, 772-773 (1978), re- manded 'on- this issue 623 F 2d 322, 329 (4th Cir. 1980); Heck's Inc., 215 NLRB ' 765 (1974); King Terrace Nursing Home, 227 NLRB 251 (1976). The 'question of litigation expenses in this case_ is a close one. Here, although Respondent did cross-examine two of the General Counsel's three witnesses, it agreed to' the introduction of the video tapes which essentially corroborated .some of the testimony offered at, the hear- ing, and Respondent waited, -almost 2, months after the close of the; trial ,before agreeing to a settlement which could have been obtained prior to the hearing,, When Re- spondent was pressed to, articulate a defense by filing a brief'on the merits, it simply attacked credibility, focused on only a few of the numerous allegations, or argued that there was no coercion because employees were not present during some of the incidents. Respondent has not contestedthat in most instances employees were present and that the incidents did occur- as related in the tapes. Moreover; the'defense that Gross should not be credited because-he used his notes without- specifically, being asked whether he had exhausted his memory seems aw- fully close to a frivolous argument. On the other hand, the Board has apparently declined 'to take, the position that litigation expenses are to be I TEAMSTERS LOCAL 115 (GROSS METAL) awarded where a respondent simply puts the General Counsel to his proof and puts on no defense . See Kings Terrace Nursing Home, supra I suppose Respondent's cross-examination of witnesses and its arguments about credibility in its brief provide just enough substance to avoid a charge of proffering frivolous defenses . Respond- ent did accept the weight of the evidence by agreeing to the entry of an order against it after the evidence was presented and presumably analyzed . It also argued that the violations were not so serious that a settlement with a nonadmissions clause and a narrow order would be ac- ceptable. It actually convinced the General Counsel of the persuasiveness of this position. These arguments were based to a great extent on the weight and character of the evidence. Nor is there any evidence of bad faith which I can detect Accordingly, although, as I have in- dicated , the issue presents a close question, I believe, that, on balance, litigation expenses should not be award- ed in this case I therefore decline to do so at this point. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed17 ORDER The Respondent, Teamsters Local 115, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, Philadelphia, Pennsylva- nia,,its officers, agents, and representatives, shall 1 Cease and desist from (a) Restraining or coercing employees of Gross Metal Products, Inc. or any other employer by (1) obstructing, blocking, and preventing ingress and egress of vehicles, employees and other persons from the premises of Gross Metal Products or of any other employer; (2) threatening employees or other individuals with violence or other re- prisals; (3) assaulting or striking employees or other indi- viduals or throwing or brandishing objects at them; (4) causing damage to vehicles or other, property; (5) mass picketing, pushing, shoving, chasing,-or spitting at em- ployees or other individuals-because employees or other individuals have crossed or attempted to cross Re- spondent's picket lines. (b) In any other manner restraining or coercing em- ployees of Gross metal Products, Inc or any other em- ployer in violation of Section 8(b)(l)(A) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Post at its offices and meeting halls in Philadelphia, Pennsylvania, copies of the attached notice marked "Ap- pendix."" Copies of notice, on forms provided by, the 17 If no exceptions are filed as provided by Sec 102 4 6 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 8 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the' notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 1557 Regional Director for Region 4, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (b) Sign and mail sufficient copies of the notice to the Regional Director for Region 4, for posting by Gross Metal Products, Inc., should it wish to do so, at all loca- tions where notices to employees are customarily posted. (c) Mail to all individuals who were engaged in picket- ing at the Gross Metal Products, Inc facility copies of the notice set forth in subsection (b) above. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice Section 7 of the National Labor Relations Act guaran- tees all employees right to join and assist labor unions and also the right with certain exceptions, to refrain from joining and assisting labor unions, and to refrain from participating in union activities, including strikes and the support of strikes. , WE WILL NOT restrain or coerce-employees of Gross Metal Products, Inc., or any other employer by (1) ob- structing, blocking, and preventing ingress and egress of vehicles, employees, and other persons from the premises of the above-named Company or any other employer, (2) threating employees or other individuals with violence or other reprisals, (3) asaulting or. striking employees, or other individuals or throwing or brandishing objects at them; (4) causing damage to vehicles or other property; and (5) mass picketing, pushing, shoving, chasing, or spitting at employees or other individuals-because em- ployees or other individuals have crossed or attempt to cross Respondent's picket lines.' ' WE WILL NOT in any other manner restrain or coerce employees of Gross Metal Products, Inc or any other employer in violation of Section 8(b)(1)(A) -of the Act TEAMSTERS LOCAL, 115, A/W INTERNA- TIONAL ' BROTHERHOOD 'OF 'TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELP- ERS OF AMERICA U.S. GOVERNMENT PRINTING OFFICE:1986-1 6 5 -8 0 5 / 4 0 0 0 1