Food Store Employees Union, Local 347

National Labor Relations Board - Board Decisions

Jun 12, 1967

165 N.L.R.B. 264 (N.L.R.B. 1967)

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Food Store Employees Union , Local 347,
Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO and
Davis Wholesale Co., Inc. Case 9-CB-1281.
June 12, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 3, 1967, Trial Examiner Robert E.
Mullin issued his Decision in this 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 Trial Examiner's Decision. He also
found that Respondent had not engaged in certain
other unfair labor practices and recommended that
allegations of the complaint pertaining thereto be
dismissed. 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 and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the exception noted below. i
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Food Store
' The complaint alleges that Respondent must be held
responsible for certain actions attributed to three admitted agents
of Respondent and to nine named strikers The Trial Examiner
recommends that the Board dismiss the allegations pertaining to
agent Skaggs and four of the strikers, no exceptions having been
filed thereto, we adopt his recommendation in that regard pro
forma. In the absence of exceptions thereto, we also adopt pro
forma the Trial Examiner's findings with regard to Respondent's
responsibility for the acts of agents Gunnoe and Brooks. The Trial
Examiner further found Respondent responsible for certain acts
attributed to five strikers-Belcher, Valentine, Keenan, Sword,
and Christian We agree only with regard to one incident
attributed to Belcher, numbered by the Trial Examiner as III, B,
4, a, (b), and one attributed to Valentine, numbered as III, B, 4, b,
(b), as these two incidents took place in the presence of agent
Gunnoe We find it unnecessary to pass on Respondent's
responsibility for the remaining alleged misconduct of the five
named strikers, as any finding with respect thereto would not
affect our Order
Employees Union , Local 347, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, Huntington , West Virginia , its officers,
agents, and representatives , shall take the action set
forth in the Trial Examiner 's Recommended Order.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges
violations not found herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: On the basis of a
charge filed on December 28, 1965, by Davis Wholesale
Co., Inc., the General Counsel, on February 28, 1966,
issued a complaint against Food Store Employees Union,
Local 347, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO (herein called
Respondent or Union), alleging that the latter, through its
representatives and agents, had violated Section 8(b)(1)(A)
of the Act. The Respondent conceded the jurisdictional
facts alleged but denied the commission of any unfair
labor practices.
This proceeding was heard before Trial Examiner
Robert E. Mullin, in Huntington, West Virginia, on July 12
and 13, 1966. At the outset of the hearing, a motion by the
General Counsel to amend the complaint in certain
particulars was granted.
This case is a companion case to Davis Wholesale Co.,
Inc., Case 9-CA-3839 [165 NLRB 297], which the Trial
Examiner herein issued on the same date. At the outset of
the hearing in the last numbered case, a motion to
consolidate that proceeding with the instant matter was
denied, for reasons that are set forth in the Trial
Examiner's Decision in Case 9-CA-3839 [165 NLRB 297].
On the other hand- a motion by the General Counsel,
joined in by the parties, to incorporate by reference the
record of Case 9-CB-1281 [165 NLRB 264] in the record
of Case 9-CA-3839 [165 NLRB 297], where applicable,
was granted. At the hearing in Case 9-CB-1281 [165
NLRB 2641, a renewal of this motion by the General
Counsel joined in by the parties,' to incorporate by
reference the record in Case 9-CA-3839 [165 NLRB 297]
in that of Case 9-CB-1281 [165 NLRB 264], where
applicable, was granted.
Most of the allegations in the complaint involve
incidents which have been considered by this Trial
Examiner in Case 9-CA-3839 [165 NLRB 297]. Specific
findings as to credibility in each such instance appear in
the Trial Examiner's Decision issued in the last numbered
case. The ruling on the motion to incorporate by reference
the record of each case in that of the other was designed to
eliminate, insofar as possible, all unnecessary duplication
of trial time and all unnecessary expense involved in the
trial of two such closely related matters. In keeping with
that ruling, such incidents on which the Trial Examiner
has already made specific findings in his Decision in
9-CA-3839 [165 NLRB 297], and which are relevant to
the Decision in 9-CB-1281 [165 NLRB 264], will be
' The Respondent Union joined generally in this motion, but
objected to its renewal in Case 9-CB-1281 [165 NLRB 264]. on
the ground that since it had been ruled upon in Case 9-CA-3839
[165 NLRB 297], it was unnecessary and redundant that the
motion be reviewed in Case 9-CB-1281 [165 NLRB 264]
165 NLRB No. 42
FOOD STORE EMPLOYEES UNION, LOCAL 347 265
recited herein only as to the relevant conclusionary
findings set forth in the earlier case.
At the close of the hearing, the parties were given leave
to file briefs. On October 17, 1966, briefs were filed by the
Respondent Union and the General Counsel and on
October 26, 1966, the Charging Party submitted a
memorandum.2
Upon the entire record in Case 9-CB-1281 [165
NLRB 264], and that of Case 9-CA-3839 [165
NLRB 297], where applicable, the briefs and
memorandums of the parties, and from his observation of
the witnesses and their demeanor while testifying, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Employer, a West Virginia corporation, was
engaged at all times material herein, at Huntington and
Culloden, West Virginia, in the sale of wholesale grocery
items. During a representative 12-month period, it had a
direct outflow of products in interstate commerce, valued
in excess of $50,000 which were sold and shipped directly
from its warehouses in West Virginia to points outside that
State. Upon the foregoing facts, the Respondent Union
concedes, and the Trial Examiner finds, that the Employer
is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The period encompassed by the complaint in the
present matter extends from December 1965 through
February 1966. During those months the Respondent
Union was engaged in the conduct of a strike at the
warehouse of Davis Wholesale Co., Inc., which was then
located in Huntington, West Virginia.3 In an initial
proceeding involving the labor dispute between the Union
and the Employer herein, this Trial Examiner found, inter
alia, that the Union represented a majority of the Davis
employees in an appropriate unit and that the Employer
had unlawfully refused to bargain with it.4 In a subsequent
proceeding, involving these same parties, this Trial
Examiner found, inter alia, that a strike which began on
December 8, 1965, was an unfair labor practice strike and
that on April 7, 1966, when the Union requested
reinstatement on behalf of all the strikers, all were entitled
to such reinstatement with the exception of certain named
individuals who had engaged in misconduct and violence.5
The allegations against the Respondent Union in the
present proceeding are based on the actions and conduct
of three of its business agents and that of several striking
employees. Much of the activity by the latter group which
is relevant to the present case has already been considered
by this Trial Examiner in his Decision in 9-CA-3839 [165
NLRB 297], where it was found that the conduct of certain
strikers was such that it would justify their being denied
reinstatement at the conclusion of the strike.
The complaint alleges that Business Agents Jack
Brooks, Woodrow Gunnoe, and Ronald Skaggs and
striking employees James Belcher, Paul Christian, James
Gibson, Delano Kerman, David Napier, Dueird
Pennington," Clifford Sword, Thomas Templeton, and
John Valentine were agents and representatives of the
Respondent Union, acting on its behalf, and agents within
the meaning of Section 2(13) of the Act. The Respondent
Union concedes that this was true as to Brooks, Gunnoe,
and Skaggs, its duly appointed business agents, but it
denies any agency relationship or responsibility as to the
rest of the individual striking employees whose names are
enumerated above.
B. The Incidents and Individuals Involved Herein
1. Business Agent Jack Brooks
On the morning of December 10, a truck operated by
Thomas Gray and James Myers, two nonstrikers, left the
Davis warehouse in Huntington . Almost immediately after
leaving the company premises, a car filled with a number
of pickets began following the truck. Included in the latter
group were Business Agents Woodrow Gunnoe and Jack
Brooks and three strikers, Ottie Adkins, Keith Tomblin,
and John Valentine.7 When the truck arrived at Russell,
Kentucky, Gray and Myers sought to make a delivery at
the Davidson Food Market. Both of them entered the store
to ask the owner, Elbert Davidson, whether he wanted
them to unload their merchandise. When the latter gave
them an affirmative answer and the Davis employees were
about to leave the store, Gray noticed that Brooks was at
the back of the truck and engaged in what appeared to be
the process of tying a picket sign on the tailgate. On seeing
this, Gray rushed out of the store and, upon reaching the
rear of the truck, jerked the sign loose and threw it to the
ground. Gray testified, credibly and without contradiction,
that at this point Brooks struck him a blow with his fist and
declared, "Damn you, don't you star a sign off the truck
that belongs to me."
Gray's testimony was corroborated by the credible
testimony of Myers, his helper, and Davidson, the store
owner. When on the stand, Gunnoe and Adkins
endeavored to establish that the picket sign on the truck
actually had been placed there by Adkins before the truck
had reached the Davidson Market, that Brooks was merely
trying to remove it when Gray came upon him in the act,
and that the latter provoked Brooks into doing what he did.
They further testified that Brooks merely struck Gray a
light blow with the side of his hand. The Union, however,
did not choose to call Mr. Brooks himself, nor did it
explain why it did not put him on the stand. On the
The issue raised by the late filing of this memorandum is
discussed in fn 1, Trial Examiner's Decision in Case 9-CA-3839
[165 NLRB 2971
' In April 1966 the Employer moved its headquarters and
warehouse operations to a new site located in Culloden, West
Virginia
' Trial Examiner's Decision, Cases 9-CA-3599 and 9-CA-3742
[165 NLRB 2711 , issued this date
' Trial Examiner's Decision, Case 9-CA-3839 [165
NLRB 2971, issued this date
fi Named in the complaint as "Durk" Pennington
' There was testimony that Larry Blankenship and Thomas
Templeton were also in this group of pickets Blankenship,
however, credibly testified that he followed the Davis truck in his
own car for only a short distance on the morning in question and
then returned to the warehouse area Templeton likewise testified
credibly when he denied that he was at Russell, Kentucky, on the
morning here involved or at any other time
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credible testimony of Davidson, Gray, and Myers, it is the
conclusion of the Trial Examiner that whether Adkins or
Brooks had placed the sign on the truck initially, the act of
doing so was totally unprotected activity, that when Gray
discovered the sign on his truck he was free to remove it in
any way he desired, and that upon encountering Brooks at
the rear door of the truck he did not provoke him in any
way that would justify the assault and battery which the
business agent thereupon committed on him.
2. Business Agent Woodrow Gunnoe
Lewis Davis, president of the Employer, testified that on
the evening of December 10 a truck that was making a
delivery at the warehouse had a flat tire. At the time about
12 to 15 pickets were in the area. According to Davis, a
service station mechanic, called to the scene to fix the tire,
at first declined to remain in the presence of pickets, but
was finally persuaded to complete the repair of the tire.
Davis testified that thereafter he called the police and
while waiting for them to arrive, he and Foreman Ed
Frazier remained at the scene while the repairman worked
on the tire. According to Davis, during this interim period
Business Agent Gunnoe came up to him with a large
wooden club8 and with a menacing gesture declared
"Davis, you see how flat that tire is? ... You are going to
be as flat as that tire." Davis' testimony as to this incident
was credible and not contradicted or denied by Gunnoe.
After the strike had been in progress for about 2 months,
Gunnoe was involved in another incident that is alleged in
the complaint. Charles McCaw, a nonstriker, testified that
on about February 2 he and his helper, one Russell Wells,
were making a delivery with a Davis truck at Thompson's
Grocery, near Coal Mountain, West Virginia. According to
McCaw, there was heavy snow on the ground in the
vicinity of the store and both he and Wells were engaged in
shoveling some of it out of the way when Gunnoe and a
group of pickets that included John Valentine and Clifford
Sword surrounded the truck. McCaw testified that after
the exchange of some conversation about the strike,
Gunnoe told him that he (McCaw) should take the truck
back to the warehouse and tell Mr. Davis "that ... they
were through getting tires and cars and they were going to
start getting people and he pointed at me and he said you
are going to be first and he said whether you want it now or
later doesn't make any difference, some time today you
are going to get it." Gunnoe denied that he had engaged in
any such threatening conversation as McCaw attributed to
him. According to the business agent, he had had a
comparatively friendly discussion with McCaw and Wells
about the prospects of their joining forces with the
strikers, when suddenly, and without warning, McCaw's
helper became very menacing and threatened him and the
pickets with a snow shovel that he was using. Gunnoe's
version of this incident and the manner in which he
delivered it at the hearing were not convincing to the Trial
Examiner. McCaw, on the other hand, was credible.
Accordingly, his testimony is found to be the more
accurate account of what transpired on this occasion.
3. Business Agent Ronald Skaggs
The complaint alleged that Business Agent Skaggs
threatened bodily injury to an employee during the course
' Davis described this as a 2 by 4 about 3 or 4 feet long
" McCaw testified that he thought this incident occurred on
about December 22 Skaggs testified that it occurred on about
of the strike. This allegation arose out of an incident
involving Skaggs and McCaw, the same nonstriker
involved in the matter recited above. On about
December 27, a Davis truck, driven by McCaw and
proceeding to Charleston, West Virginia, was being
followed by Skaggs in his automobile and by another
automobile containing a number of pickets. According to
McCaw, at a point on the outskirts of Charleston, Skaggs
pulled around him`' and when the latter suddenly applied
his brakes, McCaw was forced to hit him from the rear.
McCaw testified that neither party stopped at that moment
and when Skaggs moved ahead the latter applied his
brakes again so that the Davis truck was forced to ram the
automobile a second time. According to McCaw, when he
drove the truck to a warehouse parking lot nearby, Skaggs
came up to the truck, cursed him violently, and threatened
him with a beating.
Skaggs' account of this incident was as follows: He had
been driving behind McCaw's truck, a tandem 10-wheeler,
for a short while when, on the outskirts of Charleston,
preparatory to leaving the four-lane highway on which he
was then traveling, he passed the Davis truck. Almost
immediately thereafter the latter collided with the rear of
Skaggs' automobile, a Ford passenger car, and when
Skaggs slowed down McCaw hit him again. After the
vehicles came to a halt, Skaggs went to the cab of the
Davis truck. He there endeavored to secure from McCaw
the number of his driver's license and the other data
customarily exchanged after a highway accident. McCaw,
however, refused to get out of the truck and refused to
open the window or answer any of Skaggs' questions.
Skaggs frankly conceded that he was angry at the time and
that he uttered some profanity during the course of his
efforts to engage McCaw in a discussion of the collision.
The General Counsel alleged that during the attempted
exchange with McCaw, Skaggs threatened to inflict bodily
injury on the nonstriker because McCaw had remained at
work during the strike. This, however, is not the
conclusion of the Trial Examiner. The allegation of the
General Counsel in this regard either assumes that the
collision resulted from a deliberate act on the part of
Skaggs, or that the collision had no connection with
Skaggs' outburst. Neither assumption has any validity. It
is incredible to the Trial Examiner that Skaggs, who was
driving a passenger automobile, would have deliberately
crossed into the path of a large truck and then applied his
brakes in such a manner as to cause his car to be rammed
from the rear by the Davis truck. The rear end collision
here involved almost certainly arose from gross negligence
on the part of McCaw. Skaggs' outburst of temper after the
collision was not dissimilar from many another which has
occurred as the aftermath of an automobile accident. It is
the conclusion of the Trial Examiner that on this record
and from the sequence of events set out above, Skaggs'
angry remarks were unrelated to McCaw's continued
employment with Davis, and were, instead, precipitated by
McCaw's negligent driving which had caused what could
have been a fatal collision.
In the Trial Examiner's Decision in Case 9-CA-3839
[165 NLRB 297], this Trial Examiner made the following
findings with respect to the strikers and pickets whose
names are set out below:
December 27 It is the conclusion of the Trial Examiner that the
recollection of the latter was more accurate as to the date in
question
FOOD STORE EMPLOYEES UNION, LOCAL 347
a. James Belcher
(1) On about December 9, Belcher told nonstrikers
Thomas Ball and Thurman Green, "if we don't get you ...
we will get your wives."
(2) On about December 12, in the presence of Business
Agent Gunnoe and several other pickets, he told William
Jones, a nonstriker, that Jones would be pursued to his
home and that he (Belcher) was "going to come out there
and stomp you in the mud of that ridge."
(3) On about December 30, he and several other
strikers waited at the rooming house where some of the
nonstrikers lived and as Melvin Gallimore, a nonstriker,
was leaving the house, Belcher struck and physically
assaulted Gallimore.
b. John Valentine
(1) On about December 10, Valentine threatened
nonstriker Charles McCaw, who was then on duty at the
warehouse, that if he caught him outside the gate he would
beat him up.
(2) On about December 10, while in the presence of
Business Agent Gunnoe and several other picketa, he
slashed and punctured a tire on the car of nonstriker
James Stanley when the latter was driving home after
completing a shift at the warehouse.
(3) On about January 28 at Paul's Grocery near Coal
Mountain, West Virginia, while in the presence of several
other pickets, he struck nonstriker Thomas Ball with his
fist and knocked him to the ground as Ball was attempting
to unload merchandise from a Davis truck.
(4) Early on the morning of February 3, and in the
vicinity of the warehouse, Valentine, along with several
other pickets, threatened and pursued nonstriker Melvin
Holstein as he was on his way to work.
c. Delano Keenan
On about December 9, Keenan visited the home of
nonstriker Thurman Green and threatened Green's wife
that her husband might be injured if he continued to work
during the strike.
d. Clifford Sword
(1) On December 11, while on the picket line, Sword
threw a brick at the car of Herman McCallister as
McCallister and William Jones, both nonstrikers, drove
away from the warehouse.
(2) Early one morning in the latter part of December,
and while with a group of pickets at the warehouse
entrance, Sword threatened nonstriker Donald Cummings
with a club as the latter endeavored to report for work.
(3) About 2 weeks after the strike began and while
engaged in ambulatory picketing with several other
strikers, Sword brandished a gun, or what appeared to be a
gun, at nonstrikers Thomas Gray and Larry Hill while the
latter were in a Davis truck near Milton, West Virginia.
e. Paul Christian
On about December 12, Christian threatened nonstriker
Donald Cummings with bodily injury if he continued to
work at the Davis warehouse, and further threatened
267
Cummings that an upholstery shop operated by
Cummings' father and mother might be damaged.
4. Additional incidents; conclusions with respect thereto
Other allegations in the complaint must be dismissed for
lack of evidence.
Subparagraph 6(b) alleged that on about December 9
Thomas Templeton threatened to inflict bodily injury on
an employee or to cause harm to the employee's family,
and that on about December 10 Templeton threatened
another employee with bodily injury. The testimony as to
both of these incidents was considered by this Trial
Examiner in his Decision in Case 9-CA-3839 [165
NLRB 297]. The first involved a visit to the home of
William W. Baker, a nonstriker, by Templeton and one
Gary Bias early in the strike. The second concerned the
testimony of James Myers, a nonstriker, who testified that
on December 10 Gibson threatened him with a burning
stick as he was leaving the warehouse area. After a
consideration of the testimony as to these incidents, it was
the conclusion of this Trial Examiner in his Decision in
Case 9-CA-3839 [165 NLRB 297], that Gibson; who
denied the threats and violence attributed to him, was the
more credible witness as to these events.
Subparagraph 6(i) attributed certain threats to a
"David" Napier. Whereas a "Ronnie" Napier was one of
the strikers and there was testimony in Case 9-CA-3839
[165 NLRB 297] about his activities during the strike,
there was no reference to a "David" Napier. On the other
hand, in Case 9-CB-1281 [165 NLRB 264], Business
Agent Gunnoe testified that strike benefits were paid to
the mother of one David Napier. Notwithstanding this
testimony, company payroll records list only a Ronnie
Napier. Under the circumstances, and in view of this state
of the record, there being no testimony that these two
names apply to one and the same individual, the allegation
in the complaint relating to David Napier will be
dismissed.
Subparagraph 6(j) alleges that Dueird Pennington
threatened an employee with bodily injury if he continued
working during the strike. This allegation relies for
support on the testimony of Garry Gallimore, one of the
nonstrikers. According to Gallimore, on the evening of
January 6, he and other nonstrikers were at a tavern some
distance from the warehouse when Pennington, Valentine,
and Belcher were there. Gallimore testified that prior to
this time he had seen Pennington on the picket line at the
warehouse and that on this occasion Pennington
questioned him as to whether he intended to continue
working. According to Gallimore, when he answered in the
affirmative, Pennington made a vulgar prediction as to
what would happen to Gallimore if he went back to work.10
The bartender who overheard the conversation called the
police, but by the time they arrived on the scene,
Pennington had departed. Gallimore's testimony was
credible and uncontroverted. On the other hand, it is
obvious from Gallimore's account that the incident
involved here was essentially an incipient barroom brawl
between a group of strikers and nonstrikers. Under the
circumstances, it is the conclusion of the Trial Examiner
that the Respondent Union cannot be held responsible for
a tavern incident which occurred at a considerable
distance from the picket line.
"' The language which Gallimore attributed it) Pennington
appears at page 1415 of the transcript in Case 9-CA-3839 [165
NLRB 297J.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subparagraph 6(l) alleged that in January James Gibson
threatened" two of the nonstrikers while they were at
Brotherton's Supermarket in Charleston, West Virginia.
This allegation found support in the testimony of Frank
Meehling, a nonstriker. In his Decision in Case 9-CA-3839
[165 NLRB 297], however, this Trial Examiner found that
Gibson's denial that he had made any such threats was
more credible than Meehling's testimony which attributed
these threats to him.
C. The Agency Issue and Concluding Findings
Business Agent Skaggs testified that at the meeting of
the employees in November when a strike vote was taken
and the employees voted to authorize a strike, Sherwood
Spencer, secretary-treasurer of the Respondent Union,
spoke to all present as to the importance of good conduct
and peaceful picketing throughout any strike which was
called. Estil Loftis, one of the strikers, also testified that,
on December 8, Business Agents Brooks and Gunnoe
spoke to all of the strikers on the necessity for abstaining
from any and all forms of violence while on the picket line.
According to Skaggs, at the outset of the strike, Spencer
appointed Brooks, Gunnoe, and him to be directly
responsible for the conduct and management of the strike.
Skaggs testified that throughout the period when the strike
was in progress these three agents remained in sole charge
with no intermediaries between them and the pickets. This
same witness further testified that all of the strikers
named in the complaint were merely strikers and had no
authority from the Union to engage in any activity other
than peaceful picketing. Skaggs also testified that
although he was among those designated to supervise the
conduct of the strike, it was not until February that he
spent much time on this matter in the Huntington area.''
Gunnoe, on the other hand, testified that he took an active
part in the direction of the strike at the Huntington
warehouse and that most of the time from December
through January he was in daily contact with the pickets.
The Respondent Union denied that it paid the strikers
themselves any strike benefits. However, it conceded that
a regular schedule of "donations"12 was provided to assist
the families of the strikers. Gunnoe testified that these
"donations" were made by check in a regular, specified
amount to the wives or dependents of the strikers. During
the first week of the strike, each family received $25 from
the Union in this manner. Thereafter, the amount paid was
raised to $45 per week. According to Gunnoe, at the time
of the hearing, the Union was still making these weekly
payments. He further testified that the aforesaid
"donations" were paid only to the families of "the
employees who was actively taking part on the picket line,
was actually on the picket line, or doing other things that
was asked of them." According to Gunnoe, the families of
all of the strikers named in the complaint received such
assistance. In so testifying, he specifically named, inter
alia, Christian, Keenan, Sword, and Valentine.
While conceding responsibility for the conduct of its
business agents, the Union denies any responsibility for
any violence or misconduct in which the pickets engaged.
It is the conclusion of the Trial Examiner that the Union
cannot avoid responsibility for the conduct of the pickets
which is in question here. The Respondent Union's
I According to Skaggs, from December to February, he spent
most of his time in Charleston, West Virginia, where the
Respondent Union was engaged in the conduct of a strike at
officers and agents planned and directed a well-organized
strike which extended over a 4-month period. At least 3
business agents were authorized to, and did, utilize their
full time, energy and attention in the management and
direction of a strike that involved an appropriate unit of
less than 75 employees. The Union preferred to avoid the
term "strike benefits" in describing any monetary
assistance provided the families of the strikers. On the
other hand, Business Agent Gunnoe conceded that an
average "donation" of $45 a week went only to the families
of those strikers "who was actively taking part on the
picket line ... or doing other things that was asked of
them."
Some of the violence, misconduct, and threats occurred
at or near the picket line at the Employer's warehouse in
Huntington, West Virginia. Most of the other incidents
here involved occurred at locations away from the
warehouse, and where, for the most part, trucks of the
Employer were in the process of making deliveries to
customers in various points in Kentucky, Ohio, and West
Virginia. In conformity with a well-organized plan for
ambulatory picketing, these trucks were followed to these
locations by either business agents and striking employees
together, or just by striking employees alone.
In several of the instances which figure in this case one
or more of the three above-named business agents was
present at the scene. Thus, Gunnoe was present when
James Belcher threatened nonstriker William Jones that
the latter would be pursued to his home and beaten, and
Gunnoe was again present when the car of nonstriker
James Stanley was surrounded by pickets and when John
Valentine, within a short distance from the business agent,
proceeded to puncture a tire on Stanley's car. In neither
instance is there evidence that Gunnoe made any effort to
disassociate the Union's strike efforts from the threats or
the vandalism.
On one of the very first days of the strike, Business
Agent Brooks, in the presence of Gunnoe and several
pickets, physically assaulted nonstriker Thomas Gray.
Three months later, Gunnoe told nonstrikers McCaw and
Wells when they were making a delivery to a Davis
customer that they should return their truck to the
warehouse and report back to Mr. Davis that the strikers
"were through getting tires and cars and they were going
to start getting people" and that sometime that day
McCaw and Wells, the two nonstrikers who were the
object of his immediate threat, were "going to get it."
It is significant that in both of the foregoing instances
Brooks and Gunnoe were with pickets who had followed
one of the Employer's trucks as it was making a delivery to
a Davis customer many miles removed from the picket line
at the Huntington warehouse. Thus, the Respondent
Union's business agents engaged in physical assaults and
threats of serious violence to nonstriking employees at
points away from the picket line. Under these
circumstances, the Respondent Union cannot now
disavow any other acts of misconduct by striking
employees at points away from the picket line and
especially where they were engaged in following the Davis
trucks. It is the conclusion of the Trial Examiner that here
the Union "is responsible because it instigated or fostered
the improper conduct." Local 888, International Union,
another warehouse of the Employer which is not involved in this
case
12 This word is taken from Gunnoe's testimony
FOOD STORE EMPLOYEES UNION, LOCAL 347
U.A.W. (Miami Plating Co.), 144 NLRB 897, fn. 3. Nor can
the Union here avoid the imputation of responsibility for
such incidents as occurred when no business agent was
present. In view of the record in this case, it is the
conclusion of the Trial Examiner that such instances
plainly represented "excursions in furtherance of the
purpose of the strike and extensions of conduct which took
place at the picket line. ..." District 50, United Mine
Workers of America (Tungsten Mining Corp.), 106 NLRB
903, 908, 922; International Longshoremen's and
Warehousemen's Union (Sunset Line & Twine Co.), 79
NLRB 1487,1510.
Some of the activity of the strikers here in question
occurred at or near the picket line at the Huntington
warehouse during the early days of the strike. It was
during the period that Business Agent Gunnoe, from his
own testimony, was regularly present at the scene almost
every day. Not only was he present, but, as found earlier
herein, on December 10, in the vicinity of the company
warehouse and in the presence of several striking
employees, Gunnoe threatened Lewis Davis with a club. In
the light of these facts, it is the conclusion of the Trial
Examiner that the Respondent Union must be held
accountable both for the picket line misconduct and for
the expansion of the unlawful activity at points away from
the picket line where further unlawful activity was a
foreseeable consequence of the Union's failure to subdue
or check the outbreak of such activity immediately.
International Union of Electrical, Radio and Machine
Workers (Sperry Rubber & Plastics Co.), 134 NLRB 1713,
1725.
In the Trial Examiner's Decision in Case 9-CA-3839
[165 NLRB 297], the Trial Examiner found that the
conduct of James Belcher, John Valentine, Delano
Keenan, Clifford Sword, and Paul Christian, all of which
has been considered, supra, constituted unprotected
concerted activity which justified the refusal of the Davis
Wholesale Company to reinstate them upon the
termination of the strike. It is the conclusion of the Trial
Examiner that the conduct of the five above-named
strikers, as described earlier in this Decision, is
attributable to the Respondent Union, as is the conduct of
its Business Agents Brooks and Gunnoe. International
Union of Electrical, Radio and Machine Workers (Sperry
Rubber & Plastics Co.), supra; United Steelworkers of
America, AFL-CIO (Vulcan-Cincinnati, Inc.), 137 NLRB
95, 96-98. Lastly, the Trial Examiner concludes and finds
that by such conduct on the part of Business Agents
Brooks and Gunnoe and the striking employees Belcher,
Valentine, Keenan, Sword, and Christian, the Respondent
Union violated Section 8(b)(1)(A) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent Union set forth in
section III, above, occurring in connection with the
Employer's operations described in section I, above, have
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
"Cf Teamsters Local 783, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America
(Coca-Cola Bottling Co of Louisville), 160 NLRB 1776 There, in
holding that the respondent union was responsible for repeated
acts of misconduct and violence by strikers, the Board stated that
commerce and the free flow thereof.
CONCLUSIONS OF LAW
269
1. The Employer is engaged in commerce and the
Respondent Union is a labor organization, all within the
meaning of the Act.
2. By restraining and coercing the employees of Davis
Wholesale Co., Inc., in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent Union
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent Union has engaged in
certain unfair labor practices, the Trial Examiner will
recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
The nature and variety of the unfair labor practices
committed by the Respondent Union indicate a general
purpose to limit the lawful rights of employees and
persuade the Trial Examiner that such practices are
potentially related to similar unfair labor practices, the
future commission of which may be reasonably anticipated
from the Respondent Union's conduct as found herein.
Consequently, the preventive purposes of the Act will be
thwarted unless the remedy is coextensive with the threat.
Pure Oil Company, 90 NLRB 1661, 1663. The Trial
Examiner, therefore, will recommend that the Respondent
Union be ordered to cease and desist from in any manner
restraining or coercing employees of Davis Wholesale
Company, Inc., in the exercise of their rights guaranteed
by the Act.
Upon the foregoing findings and conclusions, and
pursuant to Section 10(c) of the Act, the Trial Examiner
hereby issues the following:
RECOMMENDED ORDER
Food Store Employees Union, Local 347 Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, its officers , agents, and representatives , shall:
1. Cease and desist from:
(a) Restraining or coercing the employees of Davis
Wholesale Co ., Inc., by exerting force, or committing acts
of force and violence against said employees, or any of
them, or by using or threatening to use force or violence, or
by taking or threatening to take punitive action against any
of said employees , unless said employees join in the
concerted activities of the aforesaid Union.
(b) In any manner restraining and coercing said
employees or any of them in the exercise of their right to
refrain from any or all of the concerted activities
guaranteed them by Section 7 of the Act, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
it based this conclusion "on the fact that Respondent, which
authorized the strike, knew of the acts of misconduct and violence
but took no steps reasonably calculated effectively to stop such
acts "
270 DECISIONS OF NATIONAL
condition of employment as authorized in Section 8(a)(3) of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business office in Charleston, West
Virginia, copies of the attached notice marked
"Appendix." 14 Copies of said notice, to be furnished by
the Regional Director for Region 9, after being duly signed
by an official representative of the above-named Union,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained there by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Mail to the Regional Director for Region 9 signed
copies of the attached notice marked "Appendix," for
posting, if the Employer is willing, at its warehouse that is
now located in Culloden, West Virginia.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.'
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges any unfair labor practices,
other than as herein specifically found.
" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF FOOD STORE EMPLOYEES
UNION, LOCAL 347 AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO
Pursuant to the Recommended Order of a Trial
LABOR RELATIONS BOARD
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT restrain or coerce the employees of
Davis Wholesale Co., Inc., in the exercise by them of
the rights guaranteed to them in Section 7 of the
National Labor Relations Act, by using or threatening
them with force or violence, or by taking or
threatening to take punitive action against any of said
employees, unless said employees join in the
concerted activities of the undersigned union.
Further, WE WILL NOT in any manner restrain or
coerce said employees, or any of them, in the exercise
of their right to refrain from any or all of the concerted
activities guaranteed to them by Section 7 of the
National Labor Relations Act, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, executed in conformity with
Section 8(a)(3) of the Act.
FOOD STORE EMPLOYEES
UNION, LOCAL 347
AMALGAMATED MEAT
CUTTERS AND BUTCHER
WORKMEN OF NORTH
AMERICA, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3663.