Jimmy Ray Rush

National Labor Relations Board - Board Decisions

Mar 16, 1959

123 N.L.R.B. 216 (N.L.R.B. 1959)

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we find that he is not a supervisor. However, as he has the power
to pledge the Employer's credit in ordering parts, we find that he
is a managerial employee, and will exclude him.17
Upon the entire record in this case, we find that the following
employees of the Employer constitute an appropriate unit within
the meaning of Section 9(b) of the Act : All shop employees at the
Employer's garage at Galesburg, Illinois, including mechanics, car
polishers, the lubrication man, and the car washer, but excluding
office clerical employees, professional employees, salesmen, the part-
time janitor, guards, the parts manager, the service manager, and
all other supervisors as defined in the Act.
[The Board dismissed the petition in Case No. 13-RM--413.]
[Text of Direction of Elections omitted from publication.]
17 Sunnyland Packing Co., etc., 113 NLRB 162, 165.
Jimmy Ray Rush, An Agent of Local Union 5367 of the United
Steelworkers of America, AFL-CIO ; Sam Dixon, Jr., An Agent
of Local Union 5367 of the United Steelworkers of America,
AFL-CIO; Windol Atchison , An Agent of Local Union 5367
of the United Steelworkers of America, AFL-CIO ; James
Mitchell, An Agent of Local Union 5367 of the United Steel-
workers of America, AFL-CIO; Local Union 5367 of the
United Steelworkers of America , AFL-CIO and Mark Louis
Taliaferro , Attorney [Cosper Manufacturing Company, Inc.]
Local Union 5367 of the United Steelworkers of America, AFL-
CIO and C. V. Stelzenmuller , Attorney. Cases Nos. 10-CB-577,
10-CB-578, 10-CB-579, 10-CB-580, 10-CB-581, and 10-CB-611.
March 16, 1959
DECISION AND ORDER
On February 20, 1958, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Respondents filed exceptions to the Intermediate Report.' Subse-
quently, the Respondents filed a motion to reopen the record.2 The
1 After the issuance of the first Intermediate Report, the Respondents also requested
oral argument . This request is hereby denied as the record , exceptions, and brief ade-
quatoly present the issues and the positions of the parties.
2 The Respondents excepted to the denial by the Trial Examiner of requests to compel
the General Counsel to produce certain written statements of witnesses who testified.
By order of September 10, 1958, the Board sustained the exception and ordered the
123 NLRB No. 27.
LOCAL UNION 5367 , UNITED STEELWORKERS 217
Board granted the motion and ordered the record reopened for a
further hearing. After conducting a further hearing, Trial Examiner
Buchanan issued a Supplemental Intermediate Report on January
12, 1959. A copy of the Supplemental Intermediate Report is at-
tached to this Decision and Order. The respondents filed exceptions
to the Supplemental Intermediate Report, together with a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers
in connection with this case to a three-member panel [Members
Rodgers, Bean, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the two hearings and finds that no preducial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the Supplemental Intermediate Report, the
exceptions, the brief, and the entire record in the case and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the modification noted below.3
ORDER
Upon the entire record in the case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders the Respondents, Local Union 5367
of the United Steelworkers of America, AFL-CIO, its officers, rep-
resentatives, agents, successors, and assigns, including its agents,
Jimmy Ray Rush, Sam Dixon, Jr., Windol Atchison, and James
Mitchell shall:
1. Cease and desist from in any manner restraining or coercing
employees of Cosper Manufacturing Company, Inc., in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
General Counsel to make available to the Respondents such pretrial written statements of
witnesses as the Respondents designated . The Board order also provided that the Re-
spondents could move to reopen the record and have the case remanded to the Trial
Examiner for the purpose of further examining any witnesses whose pretrial statements
had been made available . The Respondents designated the witnesses whose pretrial
statements they desired and the General Counsel furnished copies of any such statement
in his possession . Thereafter , pursuant to the provisions of the Board order and as set
forth above, the Respondents moved to reopen the record.
3 We agree with the Trial Examiner that the Respondents engaged in recognition
picketing at a time when the Respondent Union did not represent a majority of employees
in the appropriate unit and that the Respondents thereby violated Section 8 (b) (1) (A).
Local 1922 , International Brotherhood of Electrical Workers, AFL-CIO ( Mid -Island
Sales Corp .; Mid -Island Lighting Fixtures Co., Inc. ), 122 NLRB 850 . In view of this
finding, we consider it unnecessary to decide whether minority picketing for organizational
purposes is also violative of Section •8(b)(1)(A). We therefore do not adopt the Trial
Examiner ' s finding to that effect.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post in conspicuous places in the Respondent Local's business
offices, meeting halls, and all places where notices to its members are
customarily posted, copies of the notice attached hereto marked
"Appendix." 4 Copies of said notice, to be furnished by the Regional
Director for the Tenth Region, shall, after being duly signed by the
Local's representative and by Jimmy Ray Rush, Sam Dixon, Jr.,
Windol Atchison, and James Mitchell, as agents of the Local, be
posted by the Respondent Local immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to its members
are customarily posted. Reasonable steps shall be taken by the
Local to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Mail to the Regional Director for the Tenth Region signed
copies of the notice attached hereto marked "Appendix" for posting,
by Cosper Manufacturing Company, Inc., the employer willing, at
locations where notices to employees are customarily posted. Copies
of said notice, to be furnished by the Regional Director for the
Tenth Region, shall, after being duly signed as indicated above, be
forthwith returned to said Regional Director for such posting.
(c) Notify the Regional Director for the Tenth Region in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
MEMBER FANNING, concurring in part and dissenting in part :
I concur in the majority's decision finding that the Respondent
Union violated Section 8(b) (1) (A) by threatening nonstriking em-
ployees with physical violence.
For the reasons stated in my dissenting opinions in Andrew Brown
Company, 120 NLRB 1425 and Machinery Overhaul Company, Inc.,
121 NLRB 1176, and noting that the Curtis decision, upon which the
majority relies, has recently been reversed by the Court of Appeals
for the District of Columbia,-5 I dissent from the majority's finding
that picketing by a minority union for recognition is violative of
Section 8(b) (1) (A).
4In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
Drivers, Chauffeurs and Helpers Local Union No. 639, etc. v. N.L.R . B., 43 LRRM
2156 (C.A., D.C.).
APPENDIX
NOTICE TO ALL MEMBERS
Pursant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our members that :
LOCAL UNION 5367, UNITED STEELWORKERS 219
NVE WILL NOT in any manner restrain or coerce the employees
of Cosper Manufacturing Company, Inc., in the exercise of the
rights guaranteed in Section 7 of the Act.
JI.MIM1 RAY Rum, AN AGENT OF LOCAL
UNION 5367 OF THE UNITED STEEL-
WORKERS OF AMERICA, AFL-CIO.
SAM DIXON, JR., AN AGENT or LOCAL
UNION 5367 OF THE UNITED STEEL-
WORKERS OF AMERICA, AFL-CIO.
«TINDOL ATCHISON, AN AGENT or LOCAL
UNION 5367 OF THE UNITED STEEL-
WORKERS or AMERICA, AFL-CIO.
JAMES MITCHELL, AN AGENT OF LOCAL
UNION 5367 or THE UNITED STEEL-
WORKERS OF AMERICA, AFL-CIO.
LOCAL UNION 5367 Or THE UNITED STEEL-
WORKERS or AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The consolidated complaint herein , as amended , alleges that the Respondents
have violated Section 8(b) (1) (A) of the National Labor Relations Act, as
amended, 136 Stat. 61 , by threats and violence to, and pursuit of, nonstriking
employees of Cosper Manufacturing Company, Inc .; threat to a company super-
visor; threats and abusiveness to employees of other companies ; and picketing
Cosper, an object being to obtain recognition as the exclusive collective -bargaining
representative although it did not represent a majority of the Company's employees
in an appropriate unit; all of this being in furtherance of the Local's strike against
Cosper and to force nonstriking employees to join the Local or support the strike.
The answer to the amended complaint denied the various allegations , admitting
only that the charges were filed and served, that the Local is a labor organiza-
tion, that certain individuals are union officers, and that the Respondents engaged
in a strike and picketing against the Company.
A hearing was held before me at Birmingham , Alabama, on December 10, 17,
and 18, 1957. The General Counsel and counsel for the Charging Party were
heard in oral argument and, pursuant to leave granted to all parties, briefs were
thereafter filed by the General Counsel and the Charging Party, the time to do so
having been extended.
Prior to the hearing, the Respondents made three motions, each of which was
referred to the Trial Examiner by the Regional Director for the Tenth Region. The
first was a motion to dismiss the complaint on the grounds that the Regional
Director unlawfully consolidated these cases , and that application hereto of the
law as recently declared by the Board in Curtis Brothers, Inc.,' is unlawful. In
denying this motion in its entirety, I stated on the record that, as to the first
ground, I will not question the Board 's Rules and Regulations or action taken in
compliance therewith . As to the second ground, it was pointed out that there has
been no retroactive change in the statute : to deny the Board's power to interpret
the law in this case as it did in Curtis Brothers would require denial of such power
1119 NLRB 232.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Curtis itself; indeed, it would suggest that the Board could never declare a new
or different interpretation and finding of violence under an existing statute. I
stated further that, to the extent that the complaint alleges organizational picket-
ing, I would not dismiss at that point. (The General Counsel's brief does not
cite this aspect.) Whether or not it would be necessary in this Report to consider
the legality of organizational picketing under the circumstances herein set forth,
the Board may want to employ this case to broaden the rule laid down by its
decision in the Curtis Brothers case and to include the aspect of organizational
picketing, there specifically left open. The issue was thus retained in this case.
As for the objection that the picketing has here been alleged as both organiza-
tional and for recognition, I pointed out that these purposes are not mutually
exclusive.
The second motion was to compel the General Counsel and the Regional Direc-
tor to surrender, to counsel for the Respondents, all statements by the General
Counsel's prospective witnesses. Counsel for the Respondents had not applied for
such documents as provided in the Board's Rules and Regulations. As stated on
the record, for that reason and under the Board's decision in the Great Atlantic
and Pacific Tea Company case,2 this motion was denied.
The third motion consisted of a petition to revoke a subpoena ad testificandum,
this petition being an attack on the method followed in such situations for issuing
subpenas under the Board's procedures and its Rules and Regulations. The pro-
cedure here apparently followed in issuing the subpena has for a long time been
employed by the Board and its representatives. The General Counsel in his re-
sponse in opposition to the petition persuasively cited various cases as authority.
I will not ignore those authorities, or undertake to modify them or the Board's
procedure. Since the subpoena here is one ad testificandum, I also cited the recent
Duval Jewelry case,3 to which the General Counsel also pointed in his response.
Nor does it appear that the subpoena "does not relate to any matter ... in question
in the proceedings." For these reasons, stated on the record, the petition was
denied. Counsel for the Respondents thereupon stated that the witness so sub-
penaed would decline to attend the proceedings until and unless he was ordered to
do so by a United States District Court judge.
These motions disposed of, counsel for the Charging Party and the Company
moved to revoke a subpoena duces tecurn served on the Company by the Re-
spondents. Referring to the material generally described and requested in the
subpena, I ruled that statements of apparently prospective witnesses, in the posses-
sion of counsel, need not be produced. (To that point it had not been shown
that there were such statements, or what they contained.) I referred also to the
volume of papers indicated and the extreme burden imposed by the subpena, as
indicated by the statement of counsel for the Charging Party that certain volumes
and records produced by the Company, as he viewed their bulk from a distance,
could clearly be only a small fraction of the material which he had subpenaed.
It was further at that time pointed out that it had not been shown that records
requested which pertain to costs, prices, values, or the number of persons who failed
to report for work on certain days are material: the subpena to that extent did
not relate to matters here in question. Under the Curtis Brothers decision, such
picketing as was here alleged is violative without consideration of the actual
economic effect on wages, hours, and working conditions, and regardless of the
alleged economic conditions of which the Union complains. This was also stated
as the reason for rejecting the offer of proof then made on behalf of the Re-
spondents to show that the Company's prices for its products and the wages which
it pays are lower than those in shops which the Union has organized, and that
working conditions and hours are here "substandard." The petition to revoke
this subpoena duces tecum was granted.
To permit,the Respondents to test my ruling on their subpena (and at the same
time providing an opportunity to appeal from my ruling on the materiality of proof
of the alleged economic conditions which the Respondents claimed were an essential
part of their case), I recessed the hearing at that point for I week. Thereafter,
by petition verified December 11, the Company, "out of an abundance of caution"
as it declared, petitioned the Board for revocation of the subpoena duces lecum
served upon it and which I had revoked. On December 12, counsel for the
Respondents notified me that the Company had so petitioned the Board, and re-
quested a further continuance until the Board ruled on such petition and to permit
an appeal to the Circuit Court of Appeals in the event that the Board's ruling
2118 NLRB 1280.
3 N.L.R.B. v. Duval Jewelry Company of Miami, Inc., 243 F. 2d 427 (C.A. 5).
LOCAL UNION 5367) UNITED STEELWORKERS 221
were unfavorable to the Respondents . I received this request from the Respondents
for continuance on December 13, and immediately notified counsel for the respec-
tive parties that the hearing would proceed on December 17, as scheduled. Later
that day I received a copy of the Company's petition to the Board for revocation.
On the afternoon of December 16, already in Birmingham for the hearing set for
the following morning, I received the following teletype message from the Board:
Re: Cosper Manufacturing Company , Inc., 10-CB-577 et al. Board has
granted request of counsel for General Counsel for special permission to
appeal from Trial Examiners postponement of hearing to December 17. Upon
consideration of appeal the Board hereby orders that the Trial Examiners
said ruling be reversed as the Board believes that continuances should not in
general be granted to parties for the purpose of seeking District Court review
of rulings on motions to revoke subpoenas . Charging Parties petition for
revocation of subpoenas obtained by Respondents has not been acted upon by
Board because the Board believes that the Trial Examiner properly enter
tained the petition.
As I stated on the record , my rulings are not made "in general "; they are
governed by the circumstances of the specific case. I had not, prior to the re-
sumption of the hearing , been favored with a copy of the General Counsel's appeal
on which the Board had thus acted , or of his statement , if any, of reasons
attributable to counsel for the Respondents or to me. ( After the close of the
hearing, when I read for the first time the General Counsel's appeal on which the
Board acted , I noted the presumptuous anticipatory statement that , although all
necessary arrangements had already been made for the hearing on December 17,
he "desire (d) reversal of Trial Examiner to avoid possibility of further delay on
same basis ." I would state that such a remark, however it impressed the Board,
was quite out of character , as I observed him, of the General Counsel's repre-
sentative who actively and competently tried the issues in the case .) Nor do I
know whether the Board considered the questions involved in the issuance of the
subpena and my revocation thereof.
Whatever counsel for the Respondents declared as his intention , he was of
course not limited to an appeal to the Federal court, noted in the Board 's decision
on the General Counsel's appeal : the continuance which I granted provided the
Respondents with an opportunity, whether or not they took it, to exhaust their
administrative remedy of a special appeal to the Board . It became unnecessary
for the Respondents , whatever their intention , to initiate an appeal to the Board
when the Company submitted to the Board its precautionary motion to revoke:
the Respondents ' telegram to the Board and their answer to said motion presented
the issues , which were then passed on by the Board to the extent of consideration
of the Trial Examiner 's authority to revoke . I do not "in general " grant con-
tinuances for review , whether in the District court or elsewhere , of rulings, as the
Board may know. I do not recall another case of mine in which the circumstances
seemed to me to warrant such action . The opportunity was also here presented
to the Board to test my ruling on the Respondents ' offer of proof . Until the Board
ruled as noted above on the General Counsel 's appeal from my ruling granting
the continuance , I did deem it proper to give the Respondents that single oppor-
tunity ( as noted, I denied their further request of December 12) to test before
the Board or elsewhere the materiality of proof of the alleged economic conditions
which they cited, particularly since the objection to the recess as stated to me by
one of the General Counsel's representatives before the continuance was granted,
was based primarily on his concern over the availability of a reporter during the
week of December 16. (He also objected to a greater recess.) A 1-day recess,
proposed at one time by the General Counsel, seemed pointless in view of the slow
pace of the hearing up to that time and the number of witnesses to be called. We
could not then expect to finish within 2 more hearing days, so that the hearing
would then have been carried over the weekend . We did not expect or foresee
that 2 additional days would be sufficient-after the Respondents withdrew from the
hearing: as the hearing developed there was no cross-examination of witnesses
(with one exception ), and, in the absence of contradictory testimony , no corrobo-
rating testimony.
Without attempting to guess at all objections to the recess which may yet be
considered , I declared further on resumption of the hearing that, as far as expense
for witnesses is concerned , the recess was taken at 3:30 p .m. on December 10; a
roomful of witnesses had appeared ( on motion , all prospective witnesses were
excluded from the hearing room ) but none had yet been called ; and it did not
seem more expensive to have these apparently local residents appear on December
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
17 than on December 11. In fact, although this did not prompt the recess, the
additional time would and apparently did permit additional reflection and did lead
to an awareness that it was unnecessary for all of the witnesses to attend on the
next hearing date. In any event, the hearing was resumed on December 17 as set
down on December 10 and as confirmed by the Board on December 16.
On the morning of December 17, prior to resumption of the hearing, the Re-
spondents and the Company were before Honorable Seybourn H. Lynne, judge of
the United States District Court for the Northern District of Alabama, Southern
Division, on the Respondents' petition for enforcement of their subpena. The
court declined to rule on that petition, declaring that, although the Trial Examiner
had no authority to revoke the subpena, the court was without jurisdiction because
the Company's petition to revoke was still before the Board; not acted upon, it
was still pending before the Board.
Counsel for the Respondents thereupon, on resumption of the hearing on
December 17, requested a further continuance so that he might be enabled to seek
a writ of prohibition directed against the Trial Examiner or a writ of mandamus
directed to the Board. I denied the request. The Respondents and their counsel
withdrew from the hearing at that point, in apparent protest against my rulings,
and unwillingness to proceed without the material which had been subpenaed;
counsel stated their intention to pursue their remedies, but elsewhere. The hearing
proceeded in the absence of the Respondents.
Late that afternoon one of the attorneys for the Respondents returned to the
hearing room with a copy of the memorandum opinion of Judge Lynne, noted
above. He explained at this point that he had been working on papers for the
court, connected with this matter, and that he expected to resume such labors
the next day. I did not presume to inquire concerning the nature of such papers,
whether they could have been prepared after our -hearing, or whether the Re-
spondents and one of their attorneys could have remained with us. Counsel for
the Respondents then moved for the production of statements in the possession of
the General Counsel by or in regard to the 11 witnesses who had testified to that
point and in his absence, and then for production of the statement of the twelfth
witness who was then about to be called. (Here again the existence of statements
was assumed.) These motions were denied. Counsel remained to cross-examine
the twelfth witness, then withdrew again.
Counsel for the Respondents did not thereafter return to the hearing (nor did
their clients), which was concluded shortly before noon on December 18. An
hour after the close of the hearing, I was served with a summons and complaint
in a civil action entitled Jimmy Ray Rush, et al., Plaintiffs, vs. Lloyd Buchanan,
Defendant, in the United States District Court for the Northern District of Ala-
bama, Southern Division. In that action, the Plaintiffs, the Respondents herein,
requested a temporary restraining order and a permanent injunction enjoining me
"from proceeding further in any respect in [this] National Labor Relations Board
proceeding." The application for a restraining order was thereafter that day
denied by Honorable Hobart H. Grooms, U. S. District Judge, who set that case
for hearing before himself on January 20, 1958. After hearing on the latter date,
Judge Grooms dismissed the action by order dated January 21, 1958.
There is a natural trichotomy, procedurally and temporally, in the various steps
with respect to dismissal of the court proceeding, statements of witnesses, and
subpenas: first, rulings made at the hearing; then, steps taken before the Board
and the district court for immediate reversal or stay of the proceedings before the
Trial Examiner; and finally, later applications to question the Trial Examiner's
authority and to review the rulings made. The first two groups have been de-
scribed above; I shall not, nor is it my function to anticipate or attempt to reply
to arguments which question the Board's rules and the procedure thereunder.
Disclaiming wisdom, occult or the more obvious, I can express gratification that
these "preliminaries" have been determined for the present at least and that we
can proceed without stay to a decision (again, only for the present, this being but
an intermediate report and recommendation).
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
I find that the Company, an Alabama corporation with principal office and
place of business and a plant at Birmingham, Alabama, manufactures and sells cast
iron pipe fittings and plumbing specialties; that during the fiscal year ending
LOCAL UNION 5367, UNITED STEELWORKERS 223
November 30, 1957, it sold products valued at approximately $950,000, more than
85 percent of which were sold and shipped to points outside the State of Alabama;
and that, as the Board recently found,4 the Company is engaged in commerce
within the meaning of the Act.
It was admitted and I find that the Local is a labor organization within the
meaning of the Act.
II. THE ALLEGED VIOLATION OF SECTION 8(b)(1)(A)
As recited in the Board's Decision and Direction of Election dated July 18,
1957,5 United Steelworkers of America, AFL-CIO, the Local's parent organization,
certified as the representative of the production and maintenance employees at the
Company's plant at Birmingham, executed with the Company a collective-bargain-
ing contract which expired on June 14, 1957. The Company, in April 1957,
questioned the International's representative status and filed a decertification petition
with the Board. At the hearing on the petition, counsel for the International (and
the Respondents herein) declared that it no longer claimed to represent any of the
employees in the unit and announced that the Local herein was demanding recogni-
tion. The Local was not in compliance with the Act's filing requirements. At the
election, held on October 10, 1957, the tally of ballots read 19 votes cast against
the International, none for it (the Local was not on the ballot), and the Board
certified that a majority was not cast for any labor organization. It further
appears, from the number of employees in the unit whose dues were checked off,
that of 18 eligibles on June 14, 1957, the dues of only 6 were at that date still
being checked off; and again, from the testimony of employees on the stand, that
the Local has never represented a majority since June 14, 1957.
On the morning of June 15, 1957, a picket line was set up at the plant although
only five employees (and one supervisor) struck; such picketing was still being
-carried on at the time of the hearing although the plant continued in operation.
The first picket sign posted on June 15 read: "Local On Strike." A
second sign appeared that morning, which read: "Local 5367-On Strike." A
third sign, appearing first on June 17, read: "United Steelworkers of America,
Local 5367 On Strike; No Contract-No work." The three signs were used until
the afternoon of June 24. Thereafter there was no picketing until July 1, when a
new sign appeared: "Local 5367, United Steelworkers of America, CIO-AFL,
Wants All Employees To Join Them To Gain Union Wages, Hours, And Working
Conditions. This Plant Is Now Non-Union." (We do not have the actual setup
or arrangement of these signs; the descriptions are as testified to at the hearing.)
This latter sign has been used on the picket line continuously since July 1, except
,on July 15, when for that day only it was replaced by a sign which read: "United
Steelworkers of America, Local 5367, On Strike."
There is no evidence to contradict the International's statement, noted above,
that the Local was seeking recognition. While the answer denies that the picketing
has been for recognition, and the sign most recently used urges employees to join,
recognition and organizational picketing are not mutually exclusive; the Local's
desire for recognition has not been abandoned .6 Recognition picketing by the
Local when it has not represented the employees, is violative of Section 8 (b) (1) (A)
of the Act under the Curtis Brothers decision?
Atchison, Dixon, and Mitchell have been respectively president, vice president,
and treasurer of the Local. They and Rush and Franklin joined in the picketing
and thereby, as agents of the Local, likewise violated Section 8 (b) (1) (A).
There is basis for finding that under the circumstances here present, the picketing
was also organizational, and a finding may therefore be made that the Act was
also violated by such organizational picketing.
We also have testimony of direct or more immediate interference with employees.
After work on June 17, employees Hendking and Craig in the former's pickup
truck, at or near a turn in the road as they were going home some 6 or 8 miles
from the plant, saw Mitchell wave his arm in what appeared to be a signal. As
they proceeded past that point, their progress was slowed by an automobile in
front of them which zigzagged along the road. This automobile was a late model
Buick or Oldsmobile in two-tone red but bore a license plate which had been
issued for Atchison's dark green or black 1953 Ford coupe. On the right shoulder
.of the road another automobile was parked, with Atchison in the driver's seat.
* Cosper Manufacturing Company , Inc., 118 NLRB 751.
5 Ibid.
9 I.L.G.W.U. (Packard Knitwear, Inc.), 118 NLRB 577.
7 Curtis Brothers, Inc., 119 NLRB 232.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This automobile got in behind Hendking with its horn blowing. A few blocks
further along, the zigzagging car slowed down and 7 or 8 men on each side, Rush
among them, jumped out of the reeds and bushes which border the road, and
threw brickbats and rocks at Hendking's truck, some hitting it and some of them
landing in it. By this time Atchison had stopped and two of the men in the road
ran to him and joined him in his car, one from each side. Hendking then managed
to pass the car which had been zigzagging in front of him and which now followed
him for a short distance until he managed to elude it. The connection among
Atchison, Mitchell, Rush, the zigzagging automobile, and the rock throwers, and
between these and the Local is clear.
On the first morning of the strike, June 15, as employee King got to the plant,
Atchison told him that they were on strike, and when he replied that he was
going to work, Franklin, a striker, pointed a finger at him and said in a harsh
voice, "If you go in there, you gotta come out." This was an unlawful threat and
interference.
On the morning of June 17, as several employees met in their home community
to go to the plant together, a group of employees of another company cornered
them. One asked employee Allen to sign a union card, but he refused. A Mercury
automobile driven by, and with license plates issued to, Summerville, who directed
the pickets at the plant, then drove up. The three men in this automobile joined
the others and backed up against a building the employees who had met to go to
work at the plant. Summerville told the latter that if they went to work the plant
would be blown up or they would be whipped; and that they "couldn't sleep with
one eye open and one shut." The nonstrikers then went into a cafeteria nearby,
and when they emerged some of the men who had accosted them earlier were
joined by Atchison and Dixon. Atchison pointed out that working through a
strike could mean a whipping or being blown up with the plant, and that the
nonstrikers could visit a friend of theirs in the hospital. As if these threats
(assault is not here alleged) were not sufficiently connected with the Local, Atchi-
son then asked the nonstrikers to go to the union hall to read the proposed
contract.
Again, on the morning of July 18, as a group was about to enter the plant,
among them employee Riggs, who had been attacked the night before, Franklin
heard them discussing that attack and asked who would be next. This was another
unlawful threat.
On June 17, as Supervisor Harvey approached the picket line, Atchison said to
him in the presence of a striking employee that if he were big enough, he would
whip Harvey if the latter crossed the picket line. Other strikers and pickets came
up and Franklin added that if Atchison wasn't big enough there were plenty of
others to help. This threat to a supervisor in the presence of rank-and-file em-
ployees is violative of the Act.
On July 11, as two employees of Alabama Carriers, Inc., also known as City
Cartage Co., were riding their truck into the plant, three men on the outside told
them not to go in. One of the three, Franklin, was abusive and threatened to
beat them.
On July 16, as a Bowman Transportation, Inc., driver entered the plant, a
picket, apparently Franklin from the description, called to him to stop and then
yelled after him, "When you come back through you'll get some hot lead."
In view of the other evidence, we need not concern ourselves with an incident on
July 16, when an unidentified person threatened an employee of Bowman Transpor-
tation, Inc., "When you come back out of there you're going to get some steel."
The incidents cited clearly establish restraint and coercion by Atchison, Dixon,
Mitchell, and Rush on and away from the picket line; and, through them and
others, including Franklin and Summerville, by the Local. Such interference was
with employees of the Company herein and of other employers. The responsibility
of the Local for the acts on the picket line is clear. As for those committed
elsewhere, the participation of the Local's officers and the Local's consequent
liability for such acts by whomsoever committed are just as clear.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local Union 5367 of the United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By picketing the Company' s plant for the purpose of obtaining recognition
as bargaining representative and of organizing the employees, when the Local did
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 225
not represent a majority of the employees ; by trailing , ambushing , and stoning
employees of the Company; and by threatening employees of the Company and
other employers , thereby restraining and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Local, and Jimmy Ray Rush, Sam
Dixon, Jr., Windol Atchison , and James Mitchell , as agents of the Local, have
jointly and severally engaged in and are 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 within the
meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Local No. 636 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO, and its Business
Agent Tim McCarthy and its President William B. Kelley
and United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States
and Canada , AFL-CIO and The Detroit Edison Company
and Westinghouse Electric Corporation . Case No. 7-CC-55.
March 16, 1959
DECISION AND ORDER
On October 3, 1957, Trial Examiner Louis Libbin issued his Inter-
mediate 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-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. He also found that the Re-
spondents had not engaged in and were not engaging in the other
unfair labor practices alleged in the complaint and recommended
their dismissal. Thereafter, the Respondents, the General Counsel,
and the Charging Parties filed exceptions to the Intermediate Report
and supporting briefs, and orally argued this case before the Board.
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 briefs, the oral argument,
and the entire record in this proceeding, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the following additions and modifications.
' The following inadvertency appearing in the Intermediate Report, which does not affect
the Trial Examiner 's findings and conclusions, nor our concurrence therein , is corrected
as follows : p. 2'50 , line 10, the date of May 27, 1956, is corrected to read May 27, 1957.
123 NLRB No. 37.
508889-60-vol . 123-16