Brewers Local 6

National Labor Relations Board - Board Decisions

Aug 30, 1971

192 N.L.R.B. 1263 (N.L.R.B. 1971)

BREWERS LOCAL 6 1263
Brewers & Maltsters Local 6, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America (Custom
Packaging Corporation) and William B. Wilkerson.
Case 14-CB-2129
8(b)(IXA) of the Act. See Teamsters & Chauffeurs Local Union No. 729
(Penntruck Co, Inc.), 189 NLRB No. 83.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
August 30, 1971
DECISION AND ORDER
-BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 26, 1971, Trial Examiner Samuel Ross
issued his Decision in the above-entitled proceeding,
finding that- Respondent had engaged in and was
engaging' in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain' affirmative action, as set - forth in the
attached F. Trial Examiner's Decision. Thereafter,
Respondent filed, exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant; to the provisions of Section 3(b) of, the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case, and hereby adopts the
findings,,' conclusions,2 and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Brewers and Maltsters Local 6,
affiliated with International Brotherhood of Team-
sters , Chauffeurs, Warehousemen & Helpers of
America, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
recommended Order.
1 These findings are based , in park upon credibility determinations of
the Trial Examiner to which the Respondent has excepted . After careful
review of the record, we conclude that these credibility findings are not
contrary to the clear preponderance of all relevant evidence . Accordingly,
we find no basis for disturbing these findings . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3).
2 In adopting the Trial Examiner's Decision , we do not rely on his
finding that Wilkerson was engaged in protected concerted activity.
Assuming, arguendo, that his conduct was unprotected within the meaning
of Section 7 of the Act, we would , nonetheless, find that the Respondent's
resort to violence in the circumstances set forth herein violated Section
SAMUEL Ross , Trial Examiner : Upon a charge filed-on
October 6, 1970, by William B. Wilkerson , an-individual,
the General Counsel of the National Labor ' Relations
Board `issued a complaint on November 20, 1970, which
alleges that Brewers & Maltsters Local 6 , affiliated with
International Brotherhood of Teamsters, ` Chauffeurs,
Warehousemen & Helpers of America (herein called the
Union or Respondent), has engaged in and is engaging in
unfair labor practices within the meaning of Sections
8(b)(IXA) and 2(6) and (7) of-,the Act. The specific
violation alleged in the complaint is,that on or about
October 5, 1970, Union Secretary-Treasurer- Robert
Lewis threatened Wilkerson with physical harm "to -force
or coerce" him "to cease, discussing wages, hours and
working conditions" with his employer,`Custom Packaging
Corporation. The Respondent filed an answer , to - the
complaint which denies the substantive allegations of the
complain and the commission of unfair labor practices.
Pursuant to due notice, a hearing -on the complaint was
conducted before me at St . Louis, Missouri, on February 8,
1971. Upon the entire record , and my observation of the
witnesses and their demeanor, and after due consideration
of the briefs filed by the-- Respondent and the General
Counsel, I make the following:
FINDINGS OF FACT
1. COMMERCE
Custom Packaging Corporation (herein .called Custom),
a company organized under the laws of the State of
Missouri, is engaged in St. Louis County, Missouri, its
principal place of business , in the manufacture , sale, and
distribution of soft drinks and related products . During the
fiscal year ending October 31, 1970 ,- a representative
period , Custom purchased goods and materials valued in
excess of $50,000 which were shipped ' to its plant in
Missouri directly from places located- outside the said
State . On the foregoing stipulated facts, ` I find that Custom
is engaged in commerce within the meaning of ,Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material herein, the Respondent Union has
been and is a labor organization within the meaning of
Section 2(5) of the Act:
III. THE UNFAIR LABOR PRACTICES
A. Background Facts -
Charging Party ' Wi kerson has been employed by
Custom in the maintenance department since , June 6, 1967.
Custom's employees were then represented by Teamsters
Local -618, a sister local of Respondent Union , pursuant to
a collective-bargaining agreement which expired on 'Octo-
192 NLRB No. 149
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber' 1, ' 1970. In the latter part of 1968 or early 1969, the
Teamsters parent International Union ceded jurisdiction
over all canning units to the Respondent, Local 6, and it
took over the servicing of Local 618's contract with
Custom. Wilkerson was then assistant shop steward of the
employees for Teamsters Local 618, and later was
designated as chief shop, -steward by Respondent. On
September 8, 1970, after a Board election, Respondent was
certified as the exclusive collective-bargaining representa-
tive of Custom's production and maintenance employees.'
B.ti The Events, Leading to the-, Current, Charge
Against Respondent2
After its certification by the ° Board but before the
expiration date of Local 618's contract with Custom,- the
Respondent and Custom met= on several occasions to
negotiate a 'collective-bargaining agreement. Wilkerson
''participated in ' those- negotiations as a member of Respon-
dent's negotiating committee which also included Robert
F. Lewis,,, the Union's secretary-treasurer and principal
official, Carl H. Weber, assistant' business agent, and
Raymond E. Patterson, an employee of Custom., In late
September -1970,3 Respondent's top`'man, Robert Lewis,
instructed Wilkerson-that he was not to discuss contract
proposals with 'Don R. Schneeberger, Custom's president,
unless he, or, his assistant, -Carl Weber, was present: In
addition, Lewis told Schneeberger that he did not want
him to talk to either Wilkerson or Patterson unless the
entire union bargaining committee was present .4
The negotiation meetings between the Union and
Custom failed to result in agreement on the terms of a
contract. On September 30, on the recommendation of an
urging by Wilkerson, Lewis instructed his assistant, Weber,
to "shut down" Custom's plant, and at midnight that night
the Respondent struck Custom and established picket lines
at the latter's premises`.-5' ,So far as the record discloses, all
of `Custom's 25 or 26 "employees in the unit represented by
Respondent participated in the strike and the picketing
which ensued.
O. October`, 5 about 10:30 a.m., Wilkerson and four
other employees of ` Custom were' on the; picket line at
Custom's premises when President Schneeberger came out
of the plant and' engaged the pickets in conversation.
Schneeberger told ,them that' he had just' made a new
contract proposal" to Lewi'and Weber which had been
rejected by them, and he wanted the employees to know
the terms,of the offer which had been rejected. Schneeber-
ger then `told the five pickets the terms of the proposal
which-Lewis and Weber, had rejected.eHe then went back
into the plant. After he left, the five pickets discussed
Schneeberger's proposal, and one of them not Wilkerson
or Patterson-suggested that a meeting should be called so
that the remaining employees could- be apprised of this
latest development. Accordingly, Wilkerson and Patterson
1 Case 14-RG6516.
2 Fxcept when otherwise noted, the findings below are based on the
uncontrovertedand credited testimony of Charging Party Wilkerson, and of
employee Raymond E.'Patterson.
3 All dates hereafter refer to 1970 unless otherwise noted.
4 This ^ latter , finding is based , on • the uncontroverted and credited
testimony of President Schneeberger.
went to the former's home and Wilkerson4 then proceeded
to, telephone all the employees in the unit and askthem to
attend a meeting at the picket lines from ,1 to 1:30 that
afternoon to consider the latest company proposal that had
been rejected' by the Union.' In these conversations,
Wilkerson admittedly told some of the employees that he
thought the offer was a good one, that "the strike had gone
on just about long enough," and that it was "time we got a
contract negotiated."
About 1:30 p.m. that same day, 22"of Custom's 25 or 26
employees in the unit attended the meeting at the picket
line. Wilkerson described to the assembled employees the
nature of Custom's latest contract proposal which had
been rejected by Lewis and Weber. One of the benefits
which Custom had offered was an additional paid holiday.
Don Socco, one of the employees present at the meeting,
asked Wilkerson to inquire of ,President Schneeberger
whether, instead of the extra ,paid holiday, he would be
willing tb give them an additional wage increase of-, a
"nickel or dime." Wilkerson replied that he could not
present that question to Mr. Schneeberger because that
was out of his "realm" and was "up to Mr.; Weber and Mr.
Lewis," and because if he did, it would "put his head-on a
chopping block." However, a 'substantial number of the
employees then said that they would "back [Wilkerson] up
100 percent," and employee David Owen said, "We'll take
a vote right now on whether you and Ray Patterson go and
talk to Mr. Schneeberger and ask him to forego the holiday
for more money on the hour." A vote was then taken by
the raising of hands, 21 of the 22 employees present voted
in favor of having Wilkerson and Patterson present the
employees' request to•Schneeberger, and they agreed to do
so.
A few minutes later, in accordance with a' message sent
to him through "one of the office girls," Schneeberger
came out of the plant and met with' Wilkerson and
Patterson "on the grass" about 15 to 20 feet from," and in
full view of, the rest of the employees at the picket line.
Pursuant to the instructions of Custom's employees,
Wilkerson, in Patterson's presence, asked Schneeberger if
he would give the employees an increase in their hourly
wage rate instead of the proposed additional paid holiday,
and Schneeberger agreed.? ,Wilkerson then told Schneeber-
ger that he would notify ,,the men of Schneeberger's
agreement, and that he would call, Lewis and Weber "and
inform them." Schneeberger then reentered'the plant, and
Wilkerson and Patterson rejoined the other employees at
the picket ' line. There, they told the, employees of
Schneeberger's agreement'to^ the proposed substitution of
additional wages- for the extra holiday, and Wilkerson
agreed to call the Union "and see if a meeting could beset
up." That concluded the meeting of thee, employees at, the
picket line.
Wilkerson and, Patterson then went to the former's home
and' Wilkerson called Lewis ' on the telephone. He told
'- 5 This latter finding is based on the uncontroverted testimony of Lewis
which is, credited in this regard.'
6 The record does not disclose the nature of the proposal other than that
it included an increase in the amount of wages which Custom previously
had offered, and an additional paid holiday.
7 The record does not disclose the amount of the wage increase thus
requested to which Schneeberger agreed.
BREWERS LOCAL 6 1265
Lewis that the men wanted a meeting . Lewis replied that
there was no need for a meeting, and "that, "if the men
weren't satisfied with the way he was handling the
operation that they could go to hell." Lewis then turned the
telephone over to Weber who asked Wilkerson whether he
had heard about the contract proposal. Wilkerson an-
swered, "Yes." Weber then' said that the proposal had been
rejected, and he told Wilkerson to notify Patterson that a
bargaining ' session with Custom was -scheduled for 10 a.m.
the following morning, October 6: Weber also -told
Wilkerson that he would,be out to the picket line later. The
conversation then ended without any mention by Wilker-
son, either of his conversations that day with Schneeberger
or of the meeting of the employees which had just
occurred." After this conversation with Lewis and Weber,
Wilkerson returned to the ,picket line and reported to the
employees that he had asked Lewis for a meeting and that
his request for a meeting had been refused.
Alittle later that day, Respondent's officials, Weber and
Lewis, were: notified by Custom's - employee, -James B.
Brunts, Jr., of Wilkerson's "negotiations" with Schneeber-
ger and of his meeting with the employees at the picket
line .9 Accordingly,, on that same day, Lewis attempted to
contact Wilkerson, by telephoning, his home,, and he was'
told by Wilkerson's wife, Barbara, that her husband was
not home and that he was at the picket line at Custom's
plant . Lewis` then said, "What in the hell is he doing on the
picket line?" Mrs. Wilkerson replied that she did not know,
but that she "woul"d be glad to go get her husband and
have him -on the phone in approximately 20 minutes."
Lewis said "that would be fine." Mrs. Wilkerson then
drove to the plant and notified her husband that Lewis
wanted to speak with him on the telephone. Wilkerson and
his wife promptly drove back to his home.10
Upon arrival at his house, Wilkerson's daughter had the
telephone receiver in her hand, and told him that Lewis
was on the telephone and wanted, to speak with him.
Wilkerson then took the phone and, according to his
credited testimony, Lewis said to him, "You no good son
of a bitch, just what are you trying to do?" Without waiting
for Wilkerson to answer, Lewis then accused Wilkerson of
"trying to undermine [the] contract negotiations," and of
"trying to get the people to go back for substandard
wages." Without stopping, Lewis then told Wilkerson that
he "was a no good jack-off," that he "was no good" and
"would accept bribes," and "that he was going to have me
killed and shipped back to the country in,a pine box where
I came from." Lewis further told Wilkerson that"I would
have my head mashed in, be beat up," that "I was no
8 The findings in the foregoing paragraph are based on the testimony of
Wilkerson which I credit . Lewis, although a witness for Respondent, was
not asked and thus did not deny, either engaging in this conversation with
Wilkerson, or making the statements attributed to him therein. Weber
testified only that he did not "believe" or "think" he talked to Wilkerson on
October 5 before 5 p.m., when a later conversation upon which the
complaint is based undisputedly occurred. I regard Wilkerson's positive and
affirmative testimony in respect to this conversation as more reliable than
Weber's uncertainty . In any event, I was favorably impressed by
Wilkerson's demeanor while testifying and by his frankness and candor in
conceding matters which might be regarded as unfavorable to his charge, as,
for example, his ready admission on cross-examination that Lewis had
instructed him not to deal separately with Schneeberger . I therefore regard
Wilson as a witness whose testimony is generally reliable, and I credit him.
longer a shop steward and no longer a member of the
negotiating committee," and "that I was never to step foot
on Custom Packaging grounds again?' 11 1
While Lewis was speaking to Wilkerson, his-wife, hearing
Lewis' loud and admittedly angry voice, picked up the
extension phone in the bedroom of their house. According
to Mrs. Wilkerson's testimony, which I credit, =she' heard -
Lewis say that "he would have my husband's head mashed
in," "he would have my husband shipped back in a pine
box from where he came from," that "he [Wilkerson] was
never to set foot on Custom ;Packaging Corporation's
property again," and "he [Lewis] was accusing my
husband of taking bribes." " '
Lewis' version of the reason for, and `the nature -of, this
telephone conversation with Wilkerson, was as follows:
Lewis authorized the strike against Custom- to begin on
October 1, and not later as he preferred, only because of
Wilkerson's insistence . Thereafter, within the next few
days,' and not later than October 3,, Lewis assertedly
received -three telephone, calls in which he was informed
that Wilkerson was "negotiating" with "management
"behind the scenes." Two of the calls, one of which was
from " a lady," were "anonymous"; that-is, from persons
who refused to identify themselves although they were
asked. The third- such call was from "Jim Brunts. " 11 After
receiving these calls, and without investigating 'the merits
of the charges assertedly spade to him, "Lewis admittedly
called Wilkerson in the late afternoon of October 5. Lewis
denied that he threatened Wilkerson with "physical harm"
during this conversation.- He further, denied that he'made
any reference to "a pine box," or that-he said that' he, or
someone on his behalf, would "mash" Wilkerson's head. '
According to Lewis, he said the following to Wilkerson.
Haven't I repeatedly told you to stop negotiating
behind the-scenes? This is an! act of treache`ry` "if I even
seen [sic] one . You are undermining our position. What
we are trying to do is bring about uniform wages, hours
and conditions with Schneeberger's competitor down
the road a mile and a half away. We have already
completed negotiation of that contract. There is no way
this can be done if you are dealing behind the scenes
with Schneeberger. I want to know what is going on.
You can let Carl [Weber] know and Carl will let me
know. If these country boys out there ever find out that
you are dealing behind their back, they will run your
ass back down where you came from.
Lewis admitted that when he spoke to Wilkerson, he was
"very angry" and that he spoke in a loud tone of voice. He
also , admitted that he gets angry "often," and that he
in this and most respects.
9 Brunts had been called by Wilkerson to attend the meeting but could
not go because his wife had his car. According to Brunts , Wilkerson had
told hjni, in response to his inquiry regarding the-purpose of the-meeting,
that a new contract offer had been made and that a vote would be taken to
see if it should be accepted.
10 71e, findings above are based on the testimony of Mrs. Barbara
Wilkerson which I regard as reliable and credit.
ii Lewis' testimony that Brunts telephoned him not later than October 3
clearly is erroneous. Contrary to Lewis, his assistant , Weber, testified that
Brunts called the Union on October 5 about 4 p.m. Moreover, Brunts'
testimony disclosed no knowledge of any "negotiating" by Wilkerson until
the latter called him on October 5 to attend the meeting at the picket line.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
makes "no excuses for that, [he] was born that way." Lewis
further, admitted that he used profanity to Wilkerson,
including calling him "a smack." 12 Lewis finally admitted
that she. told Wilkerson, that he, was going to speak to his
assistant, Weber, regarding removing Wilkerson as shop
steward, and that he -"was no longer a member of the
contract [negotiating] committee."
For the reasons hereinafter stated, I do not believe
Lewis' version of this, conversation, and I credit it only to
the extent that it -accords with that of Wilkerson and his
wife . In,the first place, I regard Lewis' testimony regarding
the anonymous calls he assertedly received about Wilker-
son as implausible and unworthy of belief. So far as the
record 'discloses,., after the strike at Custom started on
October 1, and at least until October 5, Wilkerson
supported the -strike, participated in the picketing, and
engaged , in no contract discussions with the Company.
There was thus no, basin' for any complaints to Lewis
regarding dealings by Wilkerson "with management"
"behind the scenes,"„and I do not believe that any, such,
were received by Lewis before Brunts called him on
October 5 ,about 4 p.m.13 I similarly regard as incredible
and do not believe Lewis' testimony that he personally did
not, threaten Wilkerson with physical harm, but merely
warned him -of possible reprisals by the employees if they
found out,that Wilkerson was "dealing behind their back."
Everything that Wilkerson had done in connection with the
"negotiating" with Schneeberger had occurred on October
5 in the presence- of employees, with their knowledge and
consent, and indeed, pursuant to their request and promise
to "back him up 100 percent." There was thus no reason
for Lewis either, to say or even imply that Wilkerson was
"dealing behind the back" of the employees, and there
clearly was no reason for Lewis to warn Wilkerson of
possible reprisals by the employees unless Lewis intended
to falsely -report to, the employees that Wilkerson was so
dealing . However, there was reason for Lewis to be angry
with Wilkerson, as he admittedly was. Wilkerson had
called a meeting, of the employees on October 5 without
notifying Lewis or obtaining his consent. At that meeting
and, while calling it, Wilkerson had recommended that the
employees accept contract terms which Lewis, already had
rejected.. In so doing, Wilkerson had acted "behind the
back" of Lewis (not the employees), and this constituted
an, affront to and attack on Lewis' authority and control of
his members. To a man like Lewis, whose arrogance was
12 I have ' been unable -to find any dictionary definition of this
appellation, and do not understand its connotation.
13 In tins regard it is significant that Weber's so-called notes of Lewis'
conversation with Wilkerson on October 5, assertedly made directly after
the conversation but erroneously dated "10/4/70" (G.C. Exh. 3), refers to
Brunts' call but., -contains no reference to any prior or anonymous
complaints about Wilkerson.
14 In reaching the foregoing credibility resolution, I have considered the
testimony of , Anthony J. Schmitz and Carl Weber adduced by the
Respondent to support Lewis' version of his conversation with Wilkerson,
but regard it as unreliable as that of Lewis. In this regard, Schmitz, the
secretary-treasurer of Teamsters 'Local 367, a sister local of Respondent,
and Weber, Lewis' assistant , both testified that they were present and heard
Lewis speak to Wilkerson , and they denied that Lewis uttered any threats to
Wilkerson of physical harm . As to Schmitz , I was not impressed with the
veracity of his explanations, either of the fortuitous manner by which he
heard and assertedly remembered ' this conversation which had no relation
to him or his -local, or of the coincidence which resulted in his being called
clearly displayed at the hearing in this case , this -was
unpardonable, and not to be tolerated. I therefore,-believe
that in his admitted anger, he uttered the threats attributed,
to him- by Wilkerson and his wife, whose testimony -I
regard as reliable in these and most respects.14
During the above-described conversation between Lewis,
and Wilkerson, Lewis,had said, that Weber was going out
to Custom's. plant that evening at -7:30 p.m. Accordingly,
after the conversation ended, Wilkerson, mindful of - the
promise of Custom's employees "to back him up 100 per
cent" if he got in trouble with the Union over talking-to
Schneeberger, telephoned about 15 to 20 of the employees, ,
told them "what had happened," and asked, for, and
obtained their agreement to be_ at the picket line that night
at 7:30:p.m. when Weber would be there.
That night Wilkerson went to the plant and arrived there
about 7:15 p.m. About 15 or, 20 of Custom 's employees
also came to the plant at that tune ' and Wilkerson told,
them of his conversation with Lewis, the threats he had
received, and of his removal by Lewis from the positions of
shop steward and member of the negotiating committee. ,
Weber arrivedat 7:30 or 7:45 p.m. and told the employees
that Wilkerson was no longer a shop steward or a member
of the negotiating committee,, that he would "be, brought
up on charges of accepting bribes and negotiating in bad,
faith," and that' he was not to "come on the ,[Company]
property any more." 15 A number of the employees spoke
up and said that Wilkerson had acted in their behalf and at
their request.16 Weber replied that what Wilkerson had
done was nevertheless wrong, and that the decision had
been made, and that he had no control over it whatsoever.
At this point, Patterson, who felt that he "had done the
same thing that Mr. Wilkerson had done," told Weber that
he was resigning from the negotiating committee . There-
upon, the employees present at the picket line, after rejecting
Weber's two selections for negotiating committeemen, one
of which was James Brunts, elected two other to' replace
Wilkerson and Patterson..
C. Contentions and Concluding Findings ,
The only violation charged against the Respondent in
this case is that in contravention of Section 8(b)(1XA) of
the Act, Secretary-Treasurer Lewis threatened Wilkerson
"with physical harm on October 5, because he had
engaged in union or protected concerted activities.17 The
Respondent in its brief, contends: (1) that no such threat
to testify in this case. Moreover, Schmitz testified that he only "supposed"
he overheard "the entire conversation," and he conceded that he could not
recollect all of it. Weber's demeanor persuaded me that his testimony' was
dictated not by considerations of truth, but by what was most favorable to
the 'interest of Respondent, and his chief, Lewis. For all these reasons, and
because as' noted above, I believe the testimony of Wilkerson and his wife in
respect to this conversation, and do not believe Lewis' version , I likewise do
not credit the so called corroborative testimony of Schmitz and Weber.
15, These quotes are from Patterson's uncontroverted and credited
testimony.
15 Wilkerson mentioned the names of at least nine employees who thus
spoke in his defense.
17 There is no allegation in the complaint that the Respondent also
violated the Act by its removal of Wilkerson from--the positions of chief
steward and negotiating committeeman . Indeed, during the hearing, the
General Counsel specifically disclaimed reliance thereon as a violation of
the Act. , ' ,
BREWERS LOCAL 6 1267
was made; (2) "that the circumstances in this case cannot
be categorized as a protected activity"; (3) that "what the
union did to Wilkerson is an internal [union] matter .. .
not within the statutory province or jurisdiction of the
Board.18 These contentions will be considered seriatim.
1. In view of my credibility determinations in this case,
the Respondent's contention that no threat of physical
harm was made by Lewis to Wilkerson is of course without
merit and must be rejected.
2. The Respondent's second contention is that the
activity of Wilkerson for which he was threatened by Lewis
is not one that is protected by the Act. I regard that
contention as equally devoid of merit.
Section 7 of the Act guarantees to employees not only
the right to engage in concerted activities for mutual aid or
protection, but also the right to refrain from such activities.
Section 8(b)(1)(A) of the Act prohibits labor organizations
or their agents from restraining or coercing employees "in
the exercise of the rights guaranteed in section 7."
The activities in which Wilkerson engaged and for which
he was threatened consisted of: (a) listening, together with
four other employees, to a contract proposal of Custom
which Lewis and Weber had rejected; (b) at the request of
employees, calling a meeting to notify the rest of the
employees of the proposal which Custom had thus offered;
(c) suggesting to employees that the offer was a good one
and that it should be accepted and the strike ended; (d)
presenting to Custom a counterproposal at the specific
request and vote of almost all the employees in the unit;
and (e) attempting to get Lewis and Weber to call a
meeting of the employees to reconsider the contract
proposal which they had rejected. Clearly, the activity thus
engaged in by Wilkerson was both Union and "concerted,"
and for the "mutual aid or protection" of employees.
Indeed, it was participated in and was engaged in by
Wilkerson with the approval of most of his fellow
employees. Accordingly, I regard the activities in which
Wilkerson thus engaged as within the rights guaranteed by
Section 7 of the Act, notwithstanding that it was contrary
to the wishes of Lewis and Weber.
3. As noted above, the Respondent's final contention,
based on its reliance on N.L.R.B. v. Allis-Chalmers, supra,
is that "what the Union did to Wilkerson is an internal
matter" outside of the Board's jurisdiction "to even
investigate, much less to file a formal Complaint." This
contention clearly has no merit, and the Respondent's
reliance on the Allis-Chalmers decision obviously is
misplaced. The Allis-Chalmers case involved the question
of whether a labor organization violated Section 8(b)(I)(A)
of the Act by imposing fines on members who crossed its
picket lines and worked in a plant against which it was
engaged in an authorized strike. The Supreme Court held
that in the light of the first proviso to Section 8(b)(1)(A),19
the imposition by the labor organization of a fine for such
a strike-breaking conduct did not violate Section 8(b)(1)(A)
of the Act. However, unlike Allis-Chalmers, the instant case
involves no crossing of a picket line or strike-breaking by
18 In the latter respect the Respondent relies on the Supreme Court's
decision in N.L.R.B. v. Allis-Chalmers, 388 U.S. 175.
19 The proviso states:
Provided, that this paragraph shall not impair the right of a labor
Wilkerson. The most that he can be said to have done was
to attempt to persuade a majority of his fellow strikers to
accept the contract proposal of the Company and to vote
to end the strike. Even assuming that under the proviso to
Section 8(b)(1)(A), the Respondent was privileged (and
there is no contention to the contrary) to remove
Wilkerson from his positions as steward and member of
the negotiating committee, nothing in Allis-Chalmers
suggest that the proviso also sanctions union discipline in
the form of physical harm or the threats thereof. To the
contrary, the legislative history of Section 8(b)(1)(A)
clearly discloses that it was enacted to protect employees
from physical violence or threats thereof by unions.20
Thus, in the case cited supra, the Supreme Court said at
p. 290:
Rather it seems clear, and we hold, that .. .
§ 8(b)(1)(A) is a grant of power to the Board limited to
authority to proceed against union tactics involving
violence, intimidation, and reprisals or threats there-
of-
All of the foregoing persuade me that none of the
Respondent's contentions in this case has any merit, and
that by Lewis' threat of physical violence to Wilkerson on
October 5 because he engaged in union and concerted
activity protected by the Act, the Respondent engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Custom described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Custom Packaging Corporation is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent, Brewers & Maltsters Local 6, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening William B. Wilkerson with physical
organization to prescribe its own rules with respect to the acquisition or
retention of membership therein; ....
20 Cf. N.LR.B. v. Drivers, Chauffeurs, Helpers, Local 639, 362 U.S. 274,
285-290.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
harm because he engaged in union and concerted activities
protected, by'-the- Act, the Respondent has restrained and
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act, and has engaged in and is engaging in
unfair labor practices,, within the meaning of -Section
8{b)(1)(A) of the Act. , • I
4. The aforesaid unfair labor practices are unfair labor
practices affecting- commerce 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: 21
ORDER
Respondent, Brewers- ,& Maltsters Local 16, affiliated
with International Brotherhood,, of Teamsters, -Chauffeurs,
Warehousemen & Helpers of America, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a), Threatening William B. Wilkerson, or any other
employee or member, with bodily harm because Wilkerson
or such other employee or member, engages in union or
other -,concerted activities guaranteed to employees by
Section 7 of the Act.
(b) In any like or other manner restraining or coercing
employees in the exercise of their rights to self-organiza-
tion, to form labor organizations, to join or assist any other
labor organization, to bargain collectively-through repre-
sentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other , mutual aid or protection, or to refrain from
engaging in such activities, except to the extent that such
,rights may be affected by an agreement' requiring member-
ship in a labor organization as a condition of'employment,
as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act.
(a) Post at its offices. and at all other places where it
customarily posts notices to its members copies of the
notice, marked "Appendix." 22 Copies of said notice, on
forms provided by the Regional; Director for= Region 14,
after being duly signed by Respondent's secretary-treasur-
er,.' shall be posted by it fora period of,60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, "defaced, or covered by any
other material.
(b) Deliver to the Regional Director for' Region 14,
signed` copies of the said notice in sufficient number to be
posted by 'Custom `Packaging Corporation and other
employers, if willing, in places where notices to employees
are customarily posted.
(c) Notify the 'Regional 'Director' for Region 14, in
writing, within 20 days from the date of the receipt of this
Decision , 'what steps have been 'taken to comply
herewith.23
21' In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions,' recommendations, and recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations,
automatically become the findings, conclusions, decision and order of the
Board, and all objections thereto shall be deemed , Waived for all purposes.
22 In the event that the Board's Order is enforced by a.judgment of a
United States Court of Appeals, the words in the notice , reading "Posted by
Order oL the, National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
23 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be ' modified to read:
"Notify said Regional Director for Region: 14, in writing, wither 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 trial, at which all, sides had the opportunity to
present their evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated the
National Labor Relations Act, and has ordered'us to post
this notice and we intend to carry : out the Order of the
Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join,.or help unions
To bargain collectively, through a representa-
tive of their own choosing ,
To act together for collective bargaining or
other mutual aid or protection
To refrain from - any and all these things
WE WILL NOT do anything that interferes with'these
rights. More specifically,
WE WILL NOT threaten William B. Wilkerson, or any
other employee or member, with bodily or physical
harm because .4e engaged in union or,other concerted
activities guaranteed to employees by Section 7 of the
Act.
WE WILL NOT in any like or other manner restrain or
coerce members or employees in the exercise of their
rights guaranteed in Section 7 of the Act.
BREWERS & MALTSTERS
"LOCAL '6, AFFILIATED WITH
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS
OF AMERICA
(Labor Organization)
Dated By
(Representative)(Secretary-Treasurer)
BREWERS LOCAL 6 1269
This, is an official notice and must 'not be defaced by Any questions cone, 6rhing this notice or compliance with
anyone " -its' provisions, may be directed to the - Board's Office, 210
This notice must remain ., for 60 consecutive days from North 12th Boulevard ,`' Room 448, St.-Louis; Missouri
the date of postingtandrmust not be altered, defaced, or 63101, Telephone 314-622-4174.
coveredby any other material.