Int'l Union of Operating Engineers, Local 513

National Labor Relations Board - Board Decisions

Dec 23, 1963

145 N.L.R.B. 554 (N.L.R.B. 1963)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its facility in Kansas City, Missouri, copies of the attached notice
marked "Appendix.' 12 Copies of said notice, to be furnished by the Regional Di-
rector for the Seventeenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt thereof, and
maintained by it for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that such notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Seventeenth Region, in writing, within
20 days from the date of receipt of this Decision, what steps the Respondent has
taken to comply herewith?
2 If 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 "
'If 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, as to what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, you are notified that:
WE WILL NOT refuse to bargain collectively in good faith with American
Federation of Television and Radio Artists, Kansas City Local, as the exclu-
sive bargaining representative of all our announcers and newsmen, by refusing
to furnish to said Union exact copies of contracts entered into by us with individ-
ual employees within the unit represented by said Union, including the names
of said employees and the consideration provided in each of said contracts.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their rights guaranteed in the Act.
WE WILL furnish to the above-named Union or its agents, upon request, exact
copies of contracts entered into by us with individual employees within the unit
represented by said Union, including the names of said employees and the
consideration provided in each of asid contracts.
KCMO BROADCASTING,
Employer.
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
Employees may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Balti-
more 1-7000, Extension 2732, if they have any question concerning this notice or
compliance with its provisions.
International Union of Operating Engineers , Local 513, and its
agent, Lester Straughan and Long Construction Company.
Case No. 14-CB-100J. December 23, 1963
DECISION AND ORDER
On March 27, 1963, Trial Examiner Phil W. Saunders issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
145 NLRB No. 57.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 513 555
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondents and the General
Counsel filed exceptions to the Intermediate Report, and the General
Counsel filed a, supporting brief.
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
Intermediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner except as herein modified.
TILE REMEDY
The Trial Examiner recommended, inter alia, that the Board order
Respondent Union to make whole employees James Battles, Jr., D. E.
Denham, Willie Turner, Roy Garrett, and Hobson Garrett for loss
of wages resulting from their inability to work because of the injuries
suffered as a result of the unlawful acts of Respondent and those for
whose conduct Respondent is responsible.' We do not adopt this
recommendation for the following reasons.
Existing Board precedent goes counter to the Trial Examiner's
recommendation. Where, as here, a union in violation of Section
8 (b) (1) (A) interferes with an employee's right of ingress to his place
of employment, the Board in the past has not included a provision
for backpay as part of its remedial order, as it 'customarily does in
situations where a union has caused an employer to discriminate with
respect to an employee's terms of employment.' Without now decid-
ing whether such a result is or is not required by any lack of statutory
authority, we nevertheless believe it would not effectuate the policies
of the Act for the Board to award back-pay or other compensatory
relief in such situations.
We are dealing here with conduct which, though violative of the
Act, is not beyond the reach of State power. The Act generally
preempts State authority with respect to conduct within its purview.
However, it does not preempt State authority to deal with breaches
of the peace stemming from the use of force and violence in labor
disputes.' The States can act to enjoin such conduct,4 and they can
remedy the consequences of such conduct 5 It is thus apparent that
I He recommended against including medical expenses in such order on the basis of his
belief that such items of recovery are beyond the scope of present Board remedial orders.
3 Colonial Hardwood, 84 NLRB 563; West Kentucky Coal Co., 92 NLRB 916; Bitner
Fuel Co, 92 NLRB 953; Harry Griffen Trucking, 114 NLRB 1494; International Terminal
Operating Co, 114 NLRB 1563; Local 983, United Brotherhood of Carpenters, 115
NLRB 1123.
8 United Construction Workers v . Laburnum, 347 U S. 656 ; United Automobile Workers
v. Russell, 356 U.S. 634. And see Building Trades Council v. Garmon, 359 U S. 236.
4 Youngdahl v. Rainfair, 355 U.S. 131.
i United Construction Workers v. Laburnum , supra; United Automobile Workers v.
Russell, supra.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the lack of a Board order, awarding backpay to employees unable to
work because of injuries resulting from this unlawful conduct, will
not leave such employees without redress against those responsible for
their injuries.
In these circumstances we conclude that it best effectuates the policies
of the Act not to extend the scope of our remedial order beyond that
of the traditional cease-and-desist order for the following reasons :
(1) The cease-and-desist order, in conjunction with the utilization of
the contempt procedures provided in the Act, is well designed to
prevent the recurrence of the unfair labor practices and to vindicate
public rights; (2) to the extent that the Board has power to award
backpay to employees injured by Respondent's violent conduct, such
power derives from the effect of such conduct on the employee's
employment relationship; yet the employee's loss of pay may be only
a small part of the total required to make him whole, which total
may well include medical expenses as well as compensation for physi-
cal injury and pain and suffering; (3) to the extent that satisfaction
of individual claims which are primarily private in nature may also
serve to further the public interest in obtaining the peaceful resolu-
tion of labor disputes, such interest is equally well served by the in-
dividual's resort to those remedies traditionally used to process claims
resulting from another's tortious conduct; (4) the numerous and com-
plicated factual questions involved in settling such claims are not such
questions as fall within the Board's special expertise, but do fall within
the special competence of judge and jury; and (5) in our opinion, our
exercise of such authority as may reside in the Board to award com-
pensatory relief might well exert an inhibitory effect on the exercise
of State authority, and would, in any event, complicate and confuse
the issue, to the possible detriment of the employees whose rights we
seek to protect.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the following modifications :
(1) Substitute for the first paragraph therein the following
paragraph:
Upon the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that Respondent,
International Union of Operating Engineers, Local 513, its offi-
cers, agents, and representatives, successors, and assigns, including
Lester Straughan, shall :
(2) Delete paragraph 2(b).e
6In the notice attached to the Intermediate Report marked "Appendix ," delete the last
paragraph , beginning with the words "WE WILL make whole," and add a space for the
separate signature of Respondent Lester Straughan.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 513 557
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The unfair labor practice charges in this proceeding were filed on September 10
and 27, 1962, and the complaint was issued October 31, 1962.
This case was heard by Trial Examiner Phil W. Saunders in Farmington, Mis-
souri, on January 15 and 16, 1963. The General Counsel and Long Construction
Company, herein called the Company or Charging Party, and International Union
of Operating Engineers , Local 513 , and its agent, Lester Straughan , herein called
the Respondents or the Union , were represented by counsel and all parties par-
ticipated fully in the hearing . The General Counsel and the Charging Party sub-
mitted briefs, and they have been given due consideration by me in arriving at my
findings and recommendations . Reserved rulings are disposed of in accordance
with the following findings of fact and conclusions of law.'
In substance the complaint alleges that the Respondents restrained and coerced
employees of the Company in that on July 14, 1962,2 a group of men came to the
Company's work project with Respondent Straughan and there assaulted , inflicted
bodily injury on, threatened , and intimidated employees of the Company. It is
alleged that by such conduct the Respondents attempted to cause the Company to
discriminate in regard to terms or conditions of employment or hire or tenure of
its employees because of their nonmembership in the Respondent Union, or because
of failure to obtain approval of their employment with the Company from the
Respondents . The above is alleged to be unfair labor practices within the meaning
of Section 8(b)(1)(A ) and Section 2(6) and ( 7) of the Act . The complaint
further alleges that on or about July 9 and 14 , the Respondents attempted to cause
the Company to discharge , lay off, or otherwise discriminate against employees
of the Company because they had failed to obtain the approval of their employ-
ment from the Respondents , or because of their lack of membership in the Respond-
ent Union . It is therefore alleged that the Respondents attempted to cause the
Company to discriminate against its employees in violation of Section 8(a)(3) of
the Act, and engaged and are engaging in unfair labor practices within the meaning
of Section 8(b) (2) of the Act.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Charles L. Long is and has been at all times material herein an individual
proprietor doing business under the trade name of "Long Construction Company."
At all times material herein the Company has maintained its principal office and
place of business in the city of Memphis , State of Tennessee , and is and has been at
all times material herein continuously engaged at said place of business in the busi-
ness of providing road construction and earthmoving and related services . Anually,
the Company in the course and conduct of its business operations performs services
valued in excess of $50,000 in States of the United States other than the State of
Tennessee . The parties admit the foregoing facts and concede that the Company
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and
I so find.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local 513, is conceded to be a
labor organization within the meaning of the Act , and I so find .3
III. THE UNFAIR LABOR PRACTICES
A. Background and initial events
The record reveals that the Company was the low bidder on a levee repair job
at a river project in the vicinity of Advance , Missouri, and a contract was let to the
Company by the U .S. Corps of Engineers on November 1, 1961 . The credible
testimony shows that within 30 to 40 days thereafter Lester Straughan , acting as
agent of the Union , talked to Charles Long, head of the Company involved herein.
Straughan then wanted to know when the Company would start the levee job, and
1 General Counsel's motion to correct the transcript , which Is unopposed by Respondents,
Is hereby granted
2 All dates are 1962 unless specifically stated otherwise
' It was also stipulated and admitted that the Respondent , Lester Straughan , Is a busi-
ness representative of the Union , and as such is authorized to speak and act on its behalf.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
how Long was planning on getting his employees Straughan was informed that
the Company would like to get the men at the jobsite, but when informed that
the work would start in July, Straughan then told Long that all his operators would
be working at this time, and the conversation was terminated by Straughan telling
Long to bring all the men he could, and the Union would try to furnish what they
could
This record further shows that in the last weeks in June or in early July, as the
preliminary clearing at the jobsite began, Straughan visited the jobsite on two oc-
casions. Straughan introduced himself on the first occasion to Robert Lewellen.
who was then in charge of the company operations, and Straughan then mentioned
to Lewellen "about using some of his men out there." On the second occasion.
Straughan stated to Lewellen that he wanted some of his men on the job, that
Lewellen could also contact Mr. Below, a steward of the Union, told Lewellen
that he wanted a contract, that the Company was not to hire anyone unless it did
so through the Union, and further informed Lewellen that he wanted control of
the men that were hired, and that Local 513 had reputation of being "tough "
Lewellen informed Straughan that he had no authority to make any contract with
him, and that Straughan should contact Charles Long.
James Battles, who replaced Lewellen as the Company's job foreman on the
project during the first week in July, credibly testified that Straughan again ap-
peared at the jobsite and inquired of Battles if he had hired any men. Upon being
informed that he had, Straughan then asked Battles if the men were out of Local 513,
and also suggested that the machines working on the project be stopped to ascertain
if the employees were from his union Battles then informed Straughan that he
had no such authority and for him to contact Mr Long .4 The record establishes
that about this time employee Willie Turner walked up, and Straughan then asked
Battles if Turner was working for the Company, and upon being informed that he
was, Straughan then stated, "Well, somebody will get him inside of 24 hours." At
the time Battles and Straughan engaged in the above conversation the Company
had six or seven employees working at the jobsite Battles further stated that he
then hired other employees, but did not call or contact the Union in so doing. In
this respect the record shows that prior to July 14, the Company hired about 40
employees, and it further appears that at least some of these men were union mem-
bers. It was established, however, that these employees were hired without going
through the Union, and there is no credible testimony that the Company or any of
its agents asked Straughan to refer men to the job or agreed that he should do so,
and Straughan was not entitled to exercise any control over the jobs The most
that can be said from the credited testimony is that Straughan made an initial offer
to the Company to supply some men, but certainly this offer was most indefinite and
uncertain. and was never accepted or ratified, nor did the Company ever make any
further efforts in respect to this proposal.
B The events on July 14
The clear preponderance of credited testimony in the record establishes that about
7:15 on the morning of July 14, 75 to 100 men including Straughan, and herein
referred to as the group, appeared at the jobsite near Advance, Missouri. This
group of men then proceeded from the highway where their cars were parked, to
the immediate vicinity or area where some employees of the Company were work-
ing, and the following events then took place.
Straughan, the leader of the group, initially walked over to employee Ray Garrett
and "grabbed" him, and with 40 or 50 men of the group following, Garrett was taken
down by the equipment shop where he was assaulted and knocked unconscious.5
Employee Denham was told to come out from under the machine he was working on,
and when he did so he was struck. Denham then started for a house trailer parked
near the project but was again struck or hit two or three times, and when he reached
the trailer Denham was then assaulted by several men in the group and was knocked
unconscious.6 Foreman Battles attempted to assist Denham when he was assaulted
near the trailer, but about this time employee Seabaugh came up and hit Battles
with a pair of "knuckles." 7 After this encounter Battles joined his father who was
4 Straughan was unable to contact Long, and admittedly had only the initial conversa-
tion with Long, as aforestated
5 As a result of this beating Ray Garrett spent 4 days in the hospital, sustained a broken
jaw in two places, had to have false teeth, and could not return to his job until September 9
° See General Counsel's Exhibit No 4, as to Denham's facial appearance after his beating
7 Seabaugh had been hired by the Company as an employee, but on July 14, lie joined
the group that inflicted the assaults. Seabaugh was it member of the Union Battles
INT'L UNION OF OPERATING ENGINEERS, LOCAL 513 559
a short distance from the trailer, and who was at this time being shot at by some
men of the group. After Battles warned his father not to shoot at the group with
the shotgun, he then returned to the trailer, and after telling someone in the group
to leave his wife and children alone, he was struck, and as Battles stated, "He
knocked the devil out of me and that put me under the weather " Battles further
testified that at this time there were 40 or 50 of the group around the trailer, and the
others were scattered around the equipment. At one stage during the fighting em-
ployee Willie Turner attempted to escape from the scene of violence, but as he was
about to reach the road Straughan said, "Catch him, don't let him get away."
Straughan's instructions were carried out and Turner was then "beat up," 8 and told
not to come back. The record also shows that during this encounter between the
group and company employees, Hobson Garrett ran up to the scene where his boy
Ray Garrett was being assaulted, as aforestated, and about the time he arrived to
help his son Hobson Garrett was struck and knocked out.9
C The Union's defense
The sole defense put forth by the Union and Straughan is that there is no
liability for the incidents of July 14 because Lester Straughan was not present at the
scene of the fighting. In short, the Respondents knew nothing about the whole
affray. In support of this contention the Respondents offered several witnesses
who testified that Straughan was in Farmington, Missouri, on the morning in question,
and, therefore, could not have been at the project site near Advance, Missouri.
Chief of Police Saling of Farmington testified that about 8 o'clock on the morning
of July 14, he had noticed Straughan at Barwick's filling station in Farmington, and
that Straughan had "shouted" at him when he had driven by in the police car.
Saling stated that he then waved at Straughan, but "wondered what he was sounding
off at." Sating fixed the time of 8 o'clock on the basis of his usual functions and
habits which he generally performs at this time of the day. Oliver Barwick testified
that at 7:15 a in. on July 14 Straughan was at his filling station in Farmington to
have his pickup serviced. On cross-examination Barwick admitted that it probably
was 8 o'clock when Straughan came into his filling station. The Respondents then
produced testimony through Bill Tinker to the effect that shortly after 7 a.m., on
July 14, he had a conversation with Straughan at Barwick's station in Farmington.
Cecil Santoyo, who works at the filling station, testified that Straughan's car was
on the grease rack about 7.30 a.m. on July 14. Straughan himself testified that he
arrived at the station on July 14 a few minutes after 7 to have his car serviced, and
that he stayed there for about an hour until the car was finished. On the basis
of my observations of the witnesses, their demeanor, and for the reasons given
below, I reject the testimony of the Respondent's witnesses.
General Counsel's witnesses Battles, Denham, Turner, Ray Garrett, and James
all credibly testified that they had specifically observed Straughan at the worksite on
July 14.10 And, as aforestated, the reliable evidence showed that Ray Garrett was
grabbed by Straughan himself when the group initially entered the work area, and
it should also be noted that Battles and Denham had seen Straughan at the project
a few days earlier.ii Chief of Police Saling testified as to no unusual circumstances
which caused him to recall either the date or the exact time he allegedly saw
Straughan at the filling station. Saling's testimony showed that he had a very
flexible and variable time schedule for his morning rounds in dealing with traffic
matters, and especially so on a Saturday morning. Attention is further called to the
fact that Saling saw Straughan only after Straughan shouted at him, and Saling then
admittedly wondered what he was "sounding off at." From this record it appears
clear to me that Straughan was thereby attempting to establish an alibi, and that
the actual time of this incident was somewhat later in the morning than the original
estimate by Chief Saling. The operator of the filling station, Oliver Barwick, gave
stated in his testimony that practically all of the men in the group had brass knuckles
and pistols.
8 See General Counsel's Exhibit No. 5
9 Hobson Garrett lost 30 days from work due to this incident, and also had doctor bills
10 Melvin James was called as a rebuttal witness, and lie also credibly testified that
Straughan was present at the project on July 14 James and Battles stated that they also
saw Bill Tinker at the site on July 14
"It was admitted that Strauglian did not actually inflict any of the physical beatings
himself, and it is also admitted that on July 14, he was not continually observed through-
out each and every assault It is further noted that Straughan has a physical appearance
easily recognized-from my observation lie is about 6 feet 3 inches tall, and weighs at
least 250 pounds.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an affidavit to the Board,12 and by his statements in the same he could not remember
the specific Saturday in which Straughan was at his station, but further stated that
the time was about 8 a m.13 In Barwick's testimony at the hearing before me he
then specifically recalled and stated that Straughan was at his station about 7:15
a.m. on the Saturday of July 14. In cross-examination he then placed the time at
8 a.m. It appears clear to me that Barwick's numerous inconsistent statements
discredit his testimony, and it further appears to me from this record that the
financial aspects of Straughan's continued goodwill and his business at the filling
station also played some part in Barwick's most recent recollections. On cross-
examination, Cecil Santoyo-one of Barwick's helpers at the filling station-did not
recall the date or the month that Straughan came into the station. This record
shows that the Respondent's witness, Bill Tinker, a member of Local 513, testified
in a previous Board hearing and admitted that his testimony of the time element
therein involved was 2 hours in error.14 Tinker also testified that as an equip-
ment superintendent for another construction company he hires men through
Straughan, and my overall evaluation and observation is that their amicable and
mutual business interests had a considerable bearing as to Tinker's testimony. In
addition to the above I credit the testimony of Battles and James that Tinker was
also a participant in the violence at the jobsite on July 14.15
From the total aspects of this record it appears clear to me that Straughan also
attempted to establish his alibi through Barwick, Tinker, and Santoyo. However,
as I pointed out, their testimony lacks certain elements of authenticity when closely
examined, and all three of them have some financial or other motive or reason to
be biased in favor of Straughan. Attempts were made also to establish the distance
between Farmington and the jobsite near Advance where the violence on July 14
took place. Saling stated that the distance between Farmington and Advance was
about 45 miles. Straughan placed the approximate distance at 85 miles.16 Regard-
less of the exact mileage between the two places, and assuming that the testimony
given by the Respondents' witnesses does refer to July 14, it is still entirely possible,
from the events in this record, for Straughan to have been at the jobsite at 7:15 a.m.,
to have left immediately after the group violence, and then to have arrived in
Farmington later the same morning. As previously stated, the testimony that
Straughan was in Farmington as early as 7:30 or 8 a.m. on July 14 was completely
discredited, and I have rejected the same.
In accordance with the above, I find that Straughan was present at the jobsite
when the violence took place. In short, Straughan functioned in his capacity as a
business representative; he thus maintained a position of authority as the on-the-job
representative and agent of the Union. In these circumstances, the Union is re-
sponsible for the conduct and misconduct of its agent whose power it has created,
and whom it has clothed with at least apparent authority, if not actual authority,
to represent it at the job level.17 The Union, having created the agent's power in this
regard, must take the responsibility when this power is wrongly used. The presence
of Straughan, his grabbing and leading of Ray Garrett to be assaulted, his direction
or instruction to the group not to let Turner get away, his presence near the assault
on Denham, his presence during the whole affray where he could not help but see
the beatings on the others, and his failure to take any disciplinary action against
anyone in the group,18 all can be analogized to the numerous cases establishing
union responsibility for violence committed in the presence of, or at the direction of,
or ratified by, agents of a union.
'2 General Counsel's Exhibit No 6
13 Barwick also stated in his affidavit that he thought Chief of Police Saling drove by
about 9 am
14 0 T page 165
15 It is noted also in Straugban's testimony that he had an alleged argument at the fill-
ing station on July 14 with a local man by the name of Ranson The Respondents did not
call Ranson to testify.
16 The distance recorded on road maps between Farmington and Advance is about 78
miles.
17 N L R B v Brewery and Beer Distributor Drivers, etc, Local 830, IBT (Delaware
Beer Distributor Assn.), 281 F 2d 319, 321-322 (C A 3) ; NLRB v. International Long-
shoremen's & Warehousemen's Union, Local 10 (Pacific Maritime Assn.), 283 F. 2d 558,
563-565 (C.A 9) ; Truck Drivers and Helpers Local 728, IBT v. N L R.B. (Genuine Parts
Co ), 265 F. 2d 439, 443 (CA. 5), cert denied, 361 U S 917.
11 There is no evidence in this record to indicate that Straughan did anything at any
time to discourage the violence.
INTEL UNION OF OPERATING ENGINEERS, LOCAL 513 561
D. Final conclusions
Under the provisions of Section 8(b)(1)(A) of the Act, it is an unfair labor
practice for a labor organization or its agents to restrain or coerce employees in
the exercise of the rights to refrain from engaging in a strike or other concerted
activities. In this case the record shows that Straughan's statements to Lewellen
and Battles, that he wanted to control the jobs, and that the Company was not to
hire anyone unless the Union approved, establishes that Straughan was attempting
to discriminate against employees, or applicants for employment, on the basis of
whether or not the employees had been referred to the job through the Union and
Straughan. From the latter part of June until July 14 Straughan tried, unsuccessfully,
to establish control over the jobs. Unable to accomplish his aims peaceably through
Lewellen, Battles, and Charles Long, Straughan resorted to force on July 14. The
mass assault by the Union's agent, Straughan, and the group who accompanied him
on July 14 as aforestated, was coercion and restraint in a futile and extreme form on
the company employees because they had exercised their Section 7 rights to obtain
employment without clearance from or memberships in the Union.19 This conduct
was the clearest possible demonstration and warning of the type of physical violence
the Respondents would exert against anyone-employees as well as employers-
refusing to cooperate with the Respondents. Having found that Agent Straughan
was present at the jobsite and the scene of the assaults on July 14, with no evidence
of any attempt on his part to counter or prevent the incidents, or to protest against
them, I find that the Respondents are liable, and that their conduct was clearly vio-
lative of Section 8 (b) (1) (A) of the Act 20
Under the provision of Section 8(b) (2) it is an unfair labor practice for a labor
organization or its agents to cause or attempt to cause an employer to discriminate
against an employee in violation of Section 8(a)(3) of the Act. It is not required
that the attempted discrimination be directed against specific employees. Neither
is the finding of a violation of Section 8(a)(3) by the employer a prerequisite for
finding that a labor organization has violated Section 8(b) (2) by attempting to cause
the employer to discriminate in violation of Section 8(a)(3). The test is whether
the discrimination, if consummated by the employer, would have been a violation
of Section 8(a)(3)21 To find an 8(b)(2) violation there is also no requirement of
any existing hiring agreement, contract, or understanding between the parties,22
although the Union here, in the course of its initial contacts with the employer, er-
roneously proceeded under the impression that the Union had some legitimate interest
in the selection of employees.
The record is clear that shortly after work began on the project, Straughan, the
Union's business agent, arrived on the site and demanded of Foreman Lewellen
that his, Straughan's, workers be placed on the job, that Straughan wanted control
of the employees, and that there was to be no hiring unless the Union was first
contacted. Lewellen then stated to Straughan that he had no such authority and for
him to contact Charles Long. Straughan then again visited the worksite after Battles
had taken over as foreman and further inquired whether the Company was hiring
employees. Straughan also attempted to ascertain if the employees then working
were from Local 513, and when he found out that Willie Turner was an employee,
stated, "Well, somebody will get him inside of 24 hours." The Company's work on
the project was then interrupted on July 14 when Straughan led a group of his men
to the site and inflicted the brutal assaults and beatings heretofore described. From
the above facts it is obviously apparent that this type of conduct by the Respondent
was specifically designed and calculated to bring pressure or coercion against the
Company to force or require it to hire members of Local 513. Had the Company
yielded to this pressure and coercion brought against it, and discharged any of its
employees already hired, or refused to hire others in order to favor members of the
Union, such conduct would have been, under the circumstances here, an unfair
labor practice by discrimination in regard to hire or tenure of employment, or other
terms and conditions of employment, to encourage membership in a particular labor
organization.
19 It is clear from the Board' s decision and the language of Section 8(b) (1) (A) that the
Act regards violence in any form as coercive.
20 The record shows that at the time in question at least employees Denham, Turner,
Payton. and Battles' father, who was a watchman, were nonunion company employees.
21 United Association of Journeymen, etc (Carrier Corporation), 112 NLRB 1385, 1398.
See footnotes 4, 5, and 6
"2 Plumbers and Steamfitters Union Local 100, etc (Beard Plumbing Company), 128
NLRB 398.
734-070-64-vol. 14 5--3 7
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It might be argued here that the initial contact by Straughan with the Company
was merely a request of an employer to engage in the Union's proposal to hire their
men, and, therefore, amounts to no more than an attempt to persuade, and hence
not violative. However, when a union implements such a request by resorting
to pressure with mob assaults upon working employees, it constitutes, in my
opinion, the clearest kind of a direct attempt to cause discrimination within the
meaning of Section 8(b) (2). We have here in at least one instance a specific state-
ment to Foreman Battles by Straughan that nonunion employee Willie Turner would
be soon taken care of, and then subsequent physical violence on several employees
including Turner to make certain that the Union's prior demands in hiring through
Straughan would be complied with. Certainly the earlier demands made by
Straughan at the jobsite to Lewellen and Battles to hire through him established the
motives for the violence that occurred on July 14, as absolutely no other evidence
of motives appears in this record. In the concluding aspects of this case it appears
clear to me that the Union's objective was not simply to encourage the Company
to hire its members, but in the final analysis to seek the ouster of nonunion employees.
I find from a preponderance of the evidence, and upon the entire record in this
case, that Respondents engaged in unfair labor practices violative of Section 8(b) (2)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Employer 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 Union and Respondent Straughan have engaged
in unfair labor practices, it will be recommended that they cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
Having found that the said Respondents attempted to cause the Charging Com-
pany to discriminate against its employees engaged in the levee repair project in
the vicinity of Advance, Missouri, I shall recommend that the Respondents notify,
in writing, the Charging Company that it has no objections to their hiring and
employing workmen without regard to membership or nonmembership in the Union,
or any other labor organization. Since the unlawful conduct of the Respondents,
found herein, indicates a purpose to limit the lawful rights of employees, and that
the danger of their further commission is reasonably foreseeable, it will be recom-
mended that the Respondents cease and desist from in any manner restraining and
coercing employees in the exercise of rights guaranteed by the Act.
Since, as has been found, the Respondents were responsible for the violence on
July 14 at the worksite resulting in personal injuries to employees Roy Garrett, D. E.
Denham, James Battles, Jr., Willie Turner, and Hobson Garrett, thereby incapacitat-
ing and so depriving these individuals of their employment, it will be recommended
that the Respondents make whole the above five for any loss of pay they may have
suffered by reason of the Respondents' illegal conduct, during the period from July
14, 1962, to the day or date on which these said individuals were physically able to
be reinstated to their former or substantially equivalent positions. The method of
computing backpay shall be in the manner consistent with Board policy set out in
F. W. Woolworth Company, 90 NLRB 289, Crossett Lumber Company, 8 NLRB
440, and interest as computed in the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.23
In addition to the above the General Counsel asks that the five discriminatees,
and the victims of the Union's assaults, be reimbursed for their medical expenses
incurred in the treatment of their injuries. Being unaware of any Board precedent
at this time awarding such expenses, I reject the General Counsel's proposal in this
respect. As far as I can determine, Section 10(c) of the Act, which gives Board
23I am fully aware that the complaint in this case did not specifically name the above
five discriminatees However, as aforestated, the incidents involving these individuals were
fully explored and litigated at the bearing, and under such circumstances there needs no
citation of authority to demonstrate that the Respondents are, therefore, responsible to
them. This record shows that due to his injuries Roy Garrett did not resume his employ-
ment until September 9, and because of injuries received Hobson Gariett lost 30 days of
employment
INT'L UNION OF OPERATING ENGINEERS, LOCAL 513 563
authority to award backpay to employees where necessary to effectuate the purposes
of the Act , is not an express grant of exclusive jurisdiction superseding common
law actions , by either an employer or an employee , to recover damages caused by
tortious conduct. The Board's power to award affirmative relief under Section 10(c)
is merely incidental to the primary purpose of the Act to prevent unfair labor
practices , and is certainly not intended to award full compensatory damages for
injuries caused by wrongful conduct. Furthermore , it has been well established that
the employee 's right to recover in a State court for all damages caused him by such
tortious conduct is readily available , and is not preempted by any recovery under this
Act.24 In short , the employees involved herein can recover under State laws for
medical expenses , pain and suffering , and also property damages, if any. As far as
I am able to determine such items of recovery are now beyond the scope of present
Board remedial orders.
Upon the foregoing findings of fact , and the entire record in this case , I make the
following:
CONCLUSIONS OF LAW
1. Long Construction Company is an employer within the meaning of the Act.
2. International Union of Operating Engineers, Local 513, is a labor organization
within the meaning of Section 2(5) of the Act; and Lester Straughan is its business
agent.
3. By restraining and coercing employees in the exercise of rights guaranteed by
Section 7 of the Act the Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
4. By attempting to cause Long Construction Company to discriminate in regard
to the hire or tenure of employment or other terms or conditions of employment
of company employees in violation of Section 8(a)(3) of the Act, Respondent
Union and Respondent Lester Straughan , its agent , have engaged in unfair labor
practices within the meaning of Section 8 (b) (2) of the Act
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
hereby recommended that International Union of Operating Engineers , Local 513,
and its officers , representatives , successors, assigns, and agents, including Lester
Straughan , shall:
1. Cease and desist from:
(a) Causing or attempting to cause, in any manner , Long Construction Com-
pany, its officers , agents, successors , and assigns , to discriminate against employees
or applicants for employment in violation of Section 8(a) (3) of the Act.
(b) Physically assaulting employees or threatening them with physical assault
for exercising their right to refuse to engage in union activities.
(c) In any manner restraining or coercing the employees of or applicants for
employment with Long Construction Company in the exercise of their right to en-
gage in or refrain from engaging in any or all of the activities guaranteed by Sec-
tion 7 of the Act, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment
as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which I deem necessary to effectuate
the policies of the Act:
(a) Notify Long Construction Company, in writing , that it has no objections to
the hiring and employment of workmen by the Company , including Roy Garrett,
Denham, Turner , Battles, and Hobson Garrett, to perform the job on projects of
Long Construction Company without regard to membership or nonmembership in
International Union of Operating Engineers , Local 513, or any other labor organiza-
tion, and furnish copies of such notification to the respective five individuals named
above.
24 It might well be argued to the Board , with some authority , that equitable principles
under the aggravated circumstances in this particular case demand a remedy of medical
expenses for Injuries inflicted . Apparently the General Counsel also bases his contention
on the principles that the Board has a right to draw on "enlightenment gained from ex-
perience" in fashioning remedies ( N.L.R.B v. Seven-Up Bottling Co. 344 U.S. 344), that
the remedy involving backpay factors is entrusted to the Board's discretion , and the re-
covery asked for here is not speculative in that the medical expenses for each individual
involved can be specifically ascertained and determined.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole James Battles, Jr., D. E. Denham, Willie Turner, Roy and
Hobson Garrett for any loss of pay each may have suffered because of the discrimi-
nation against them, in the manner set forth in the section of this report entitled
"The Remedy."
(c) Post in conspicuous places at the office, hiring hall, and meeting places of
the Respondent Union in Farmington, Missouri, copies of the attached notice marked
"Appendix." 25 Copies of said notice to be furnished by the Regional Director
for the Fourteenth Region, shall, after being duly signed by official representatives
of the Respondent, be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter in conspicuous places, includ-
ing all places where notices to its members are customarily posted. Reasonable
steps shall be taken by the Respondent labor organization to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Mail signed copies of the notice to the Regional Director for the Fourteenth
Region, for posting by Long Construction, said Company willing, at all locations
where notices to the Company's employees are customarily posted.
(e) Notify the Regional Director for the Fourteenth Region, in writing, within
20 days from the date of receipt of this Intermediate Report, what steps it has taken
to comply herewith.26
It is further recommended that unless within 20 days from the date of receipt
of this Intermediate Report, the Respondent notifies said Regional Director, in
writing, that it will comply with the foregoing recommendations, the Board issue
an order requiring the Respondent to take the aforesaid action.
25 In the event 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 be 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 "
2e If this Recommended Order is adopted by the Board, this provision shall be modified
to read. "Notify the Regional Director for the Fourteenth Region, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
To ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 513,
AND TO ALL EMPLOYEES OF LONG CONSTRUCTION COMPANY
Pursuant to the Recommended Order of a Trial 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 physically assault employees or threaten them with physical
assault when they exercise their right to refrain from joining the Union or any
other labor organization.
WE WILL NOT cause or attempt to cause Long Construction Company to
discriminate against employees or applicants for employment in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT in any manner restrain or coerce employees in the exercise
of the rights guaranteed them in the National Labor Relations Act, as amended,
except as a condition of employment as provided for in Section 8 (a) (3) of the
Act.
WE WILL notify Long Construction Company, in writing, that we have no
objections to the Company hiring and employing workmen on projects of Long
Construction Company without regard to membership or nonmembership in
International Union of Operating Engineers, Local 513, or any other labor
organization.
WE WILL make whole employees Roy Garrett, D. E. Denham, James Battles,
Jr., Willie Turner, and Hobson Garrett for any loss of pay they may have
suffered from July 14, 1962, until their reinstatement.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 513,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
INTERNATIONAL HOD CARRIERS, ETC., LOCAL 916 565
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, 4459
Federal Building , 1520 Market Street , St. Louis, Missouri , Telephone No. Main
1-8100, Extension 2142, if they have any question concerning this notice or compli-
ance with its provisions.
International Hod Carriers , Building and Common Laborers
Union of America , Local 916, AFL-CIO and Owen Langston.
Case No. 14-CB-998. December 03, 1963
DECISION AND ORDER
On December 20, 1962, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that the
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 Inter-
mediate Report. Thereafter, the General Counsel and the Charging
Party filed exceptions to the Intermediate Report and supporting
briefs. The Respondent filed no exceptions.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications.
THE REMEDY
The Trial Examiner recommended, inter alia, that the Board order
the Respondent to reimburse the victims of Respondent's assault for
medical expenditures incurred in the treatment of their injuries, but
declined to recommend that the nonstriking employees be made whole
by Respondent for the loss of pay they incurred during the period they
remained -away from work because of fear generated by the Respond-
ent's illegal conduct. For the reasons set out in International Union of
Operating Engineers, Local 513, and its agent, Lester Straughan
(Long Construction Company), 145 NLRB 554, issued this day, we
concur in the Trial Examiner's recommendation that backpay not
be awarded in this case, and we further find it inappropriate for like
reasons to award reimbursement for medical expenses resulting from
Respondent's illegal activity. We therefore do not adopt the Trial
Examiner's recommendation relating to the medical expense remedy.
145 NLRB No. 58.