Local 612, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Mar 26, 1964

146 N.L.R.B. 498 (N.L.R.B. 1964)

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative , be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable measures 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 Twentieth Region , in writing, within
20 days of the date of receipt of this Trial Examiner 's Decision, what steps the
Respondent has taken to comply herewith.?
It is further recommended that unless the Respondent shall within 20 days from
the date of receipt of this Trial Examiner 's Decision notify said Regional Director,
in writing, that it will comply with the foregoing Recommended Order, the National
Labor Relations Board issue an order requiring the Respondent to. take the action
aforesaid.
7 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director , In writing , within 10 days
from the date of this Order , what steps have been taken in compliance."
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, as amended , we hereby notify our employees that:
WE WILL NOT assist , dominate , contribute financial or other support to, or
interfere with the administration of the Employee Relations Committee or any
other labor organization of our employees.
WE WILL NOT in any like manner interfere with the representation of our
employees by or through any labor organization of their choosing.
WE HEREBY disestablish the Employee Relations Committee as the representa-
tive of any of our employees for the purpose of dealing with us concerning
grievances, labor disputes , wages, rates of pay, hours of employment, or condi-
tions of work , and we will not recognize it or any successor thereto for any
of the foregoing purposes.
AMERICAN PRESIDENT LINES, LTD.,
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, 830
Market Street , San Francisco , California , Telephone No. Yukon 6-3500 , Extension
3191 , if they have any question concerning this notice or compliance with its
provisions.
Local 612, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America [Deaton Truck Line,
Inc.] and M. L. Taliaferro . Case No. 10-CB-1391. March 26,
1964
DECISION AND ORDER
On January 9, 1964, Trial Examiner A. Bruce Hunt issued his De-
cision 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 Decision. Thereafter,
the Charging Party filed exceptions, with a supporting brief, prin-
146 NLRB No. 63.
LOCAL 612, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 499
cipally to the refusal of the Trial Examiner to recommend that Re-
spondent take certain additional affirmative action to remedy the viola-
tions found. The Respondent and the General Counsel did not file
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
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 Decision,
the exceptions and brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the following modification :
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 Na-
tional Labor Relations Board hereby orders that Respondent,
Local 612, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers, agents, and
representatives, shall :
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The charge in this proceeding was filed on April 17, 1963, by M. L. Taliaferro,
attorney for Deaton Truck Line, Inc. The complaint was issued on July 19, 1963.
Involved are allegations that the Respondent, Local 612, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, violated Section
8(b)(1)(A) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151,
et seq. On September 19 and 20, 1963, Trial Examiner A. Bruce Hunt conducted
a hearing at Birmingham, Alabama, at which all parties were represented by counsel.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE RESPONDENT UNION
Local 612, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America is a labor organization which admits to membership em-
ployees of Deaton Truck Line , Inc. (herein called the Company).
If. THE COMPANY'S BUSINESS
Deaton Truck Line, Inc., an Alabama corporation, has its principal place of
business in Birmingham and is engaged in the transportation of freight as a common
carrier. During a representative 12-month period, the Company received more than
$50,000 for the transportation of interstate freight. There is no dispute, and I
find, that the Company is engaged in commerce within the meaning of the Act.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The issues
On January 12, 1963, the Respondent called a strike against the Company. Our
issues are whether agents and pickets of the Respondent : ( 1) battered a nonstriker,
Floyd M . Moody, at the picket line near the Company's Birmingham terminal on
February 5, and (2) threatened another nonstriking employee, Bobby Langley, and
sought to force off the road a truck being driven by still another nonstriker, Billy
Wallace, when those employees were traveling on Route 11 southwest of Birming-
ham on April 15.
B. Background
It is unnecessary to discuss here the details of the labor dispute between the
Respondent and the Company . The reader 's attention is directed to Deaton Truck
Lines, Inc., 143 NLRB 1372 , decided August 15, 1963, in which the Company is
alleged to have refused to bargain collectively with the Respondent.
C. The battery of Floyd Moody
On February 5, Moody, a nonstriker , went to a point near the Company 's terminal
where pickets and strikers were gathered . He received a cruel beating. Before
the details are set forth , certain facts must be recited about two union members,
A. R. Evans and his son , Robert. The latter participated in the beating ; the former,
if not a participant , stood by and watched.
As is explained in Deaton Truck Lines, Inc., supra , the Company has a fleet of
approximately 263 trucks which it owns or leases. A. R. Evans was an owner-
operator of a truck in the fleet ; that is, he leased his truck to the Company and
worked as its driver . Evans also was the chairman of a union committee , selected
by the employees , which negotiated with management on various matters. During
July 1962, Evans obtained a leave of absence from the Company in order, so he
testified , "to do a little business for the union , negotiating a contract ," following
which he suffered an illness, and it does not appear that he has resumed work for
the Company . He characterized himself as a leader in the Respondent during 1962,
and he also testified that when the strike began during January 1963 , he engaged in
picketing , he acted as a "roving picket" ( following trucks that left the Company's
terminal ), he conveyed instructions to pickets , and as chairman of the committee he
designated another committeeman to assign pickets to shifts. I find that at the time
of the battery of Moody, A . R. Evans was the Respondent 's principal agent and
representative among the striking employees.
Robert Evans works for another employer as a freight handler. He is 24 years
of age, 5 feet 9 inches in height , and weighed about 152 pounds. As will appear, he
was merciless in beating Moody. He testified as a witness for the Respondent:
I have a bad complex of being small . . . . When I was going to school,
I didn 't let nobody run over me , and I never have . Nobody has ever run
'over me . .. .
Robert Evans is a bellicose young man who derives pleasure from participating in
fisticuffs . As his testimony reveals, he is quick to accept challenges and quick to
issue them. He has had no training in the "art " of boxing , and, if be has any
knowledge of the rules of boxing which are intended to assure an element of fair
play, he scorns them. -
The Respondent explains Robert Evans' presence among the pickets on the night
that Moody was battered by saying , in the testimony of father and son , that the
son had come to the picket line to bring his father a telephone message. Although
it is not essential that I decide whether this explanation is true , I make certain com-
ments about it in the footnote . ' Whatever may have been the reason for Robert
1 Robert Evans and his parents have separate residences in Pleasant Grove , Alabama, on
the outskirts of Birmingham . Robert testified that he was with his mother during the
evening of February 5 when a long-distance call came for his father , and that he drove a
distance of 10 or more miles to deliver a message to his father outside the Company's
terminal . The record does not disclose the nature of the message or who had sought to
talk with A. R. Evans by telephone , but it is clear that the message was not an urgent
one. This is so because , according to Robert , when he arrived among the pickets he
learned that his father was at the union hall about 6 blocks away „ but he did not continue
to the ball , instead he awaited his father's return to the picket line, when he observed
that his father had returned he did not deliver the message promptly because his father
LOCAL 612, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 501
Evans' presence among the pickets that night, there is no evidence against the Re-
spondent that he ever engaged in the picketing. In an affidavit which he executed
before the hearing, however, he said that "from time to time" he visited the picket
line, and his father testified that the night of the battery is not the only occasion
when Robert Evans was in the company of the pickets.
Now we turn to the testimony concerning the battery of Moody. For 6 or 7
months before the strike began in January 1963, Moody had been a member of the
Respondent. He decided not to go on strike, however, and with that decision he
ceased paying dues. On February 5 Moody worked at the Company's terminal.
In the late afternoon, he and another employee, one Bice, left the terminal and
met Moody's wife after she left her place of employment. The three persons had
dinner at a restaurant, following which they went to the terminal where Moody left
Bice. Moody and his wife then went to their home about 3'/2 blocks away. Their
landlady said to them that someone had been seated in an automobile watching the
house. This was not,the first occasion that the house had been under surveillance
by persons in automobiles, and the landlady told Moody that something had to be
done about the matter or she would insist that Moody and his wife obtain other
lodging. Moody assumed that striking employees had been watching his home,
and, having seen A. R. Evans at the picket line only a few minutes before, Moody
decided to return to the terminal and to talk with Evans .2 Moody drove the short
distance in an automobile . He parked it near a tent which had been erected for
use by the pickets. The area was illuminated by a street light and the lights of a
service station. Too, Moody did not turn off the lights of the automobile. He
walked to the front of the vehicle and there he talked with A. R. Evans. Within
moments, Moody was lying on his back in the street, unconscious. While lying
there, he received a ferocious beating. He was hospitalized, and it was 21/2 days
before he regained full consciousness. While hospitalized, he was photographed in
color by a professional photographer. Several photographs were received in evi-
dence. They and other evidence establish that stitches were taken in Moody's chin
and both his lips, that his nose was badly damaged, that both eyes were blackened,
and that there was substantial swelling in portions of his face. In addition, Moody
testified that there were bruises elsewhere on his body. The evidence is conflicting
with respect to whether Robert Evans inflicted all the injuries . Moody could shed
no light on that subject because he became unconscious when hit. Nevertheless, we
shall start a discussion of the testimony with that given by Moody. According to
Moody, he drove to a point near the tent where he saw A. R. Evans in the street,
alighted from the automobile, moved to the front of the automobile where he
promptly spoke to Evans, asking who owned a 1953 Chevrolet from which someone
had observed his home, and saying that he could have the observers "locked up"
although he did not want to do so Moody testified further that Evans said, "What
the hell do you come and ask me something like that for?" at which point someone
approached Moody from the direction of the tent saying, "Let me take care of him,"
and that Moody was knocked unconscious without knowing the identity of his as-
sailant. Additional testimony in support of the General Counsel's case was given
by two persons, Thurman Childers and Teller Boggan , Jr., who were at work in the
service station mentioned above, the lights from which illuminated the scene. Boggan
testified that he saw Moody talking with A. R. Evans, and, as Boggan recalled, Moody
had both hands in his pockets Boggan looked elsewhere, but when his attention was
was engaged in conversation with someone , and he did not deliver it until after the battery
of Moody. Although there is no evidence to contradict that of the father and son that
the latter had come to the picket line to deliver a message to the father , I need not credit
their testimony . As will appear , they were unworthy of belief. I am not required to
credit the uncontradicted portions of the testimony of unreliable witnesses N L.R B. v
Howell Chevrolet Company, 204 F. 2d 79 , 86 (CA. 9) ; N.L.R.B. v Walton Manufacturing
Company et al, 369 U . S. 404, 408
2 The Respondent asserts in its brief that Moody was "under the influence of alcoholic
beverages" when he went to see A R Evans This assertion is based upon Moody's testi-
mony that before eating dinner, and about 2 hours before going to see Evans , he and his
wife had drinks from a half pint bottle of whiskey, that she had one drink and that lie
had three , and that thereafter Mrs. Moody put the 'bottle in her purse . The record does
not disclose the quantity of whiskey that Moody drank or whether the entire half pint
was consumed by his wife and him. He denied that he was under the influence of whiskey
when he went to see Evans , and there is no testimony to the contrary . I credit Moody's
testimony because I believe that he was an honest witness . Moreover , it may be noted
that the Respondent does not contend that anyone at the picket line thought that Moody
was under the influence of alcohol.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attracted by noise, he looked again and, so he testified, saw Moody lying on his back
in the street with Robert Evans "kneeling alongside" and hitting Moody about "six
or seven" times with "little short punches." There were men standing about, accord-
ing to Boggan, and he saw someone whom he could not identify kick Moody once in
the stomach or groin. Childers, unlike Boggan, did not see Moody until the latter
was lying in the street, and Childers could not identify anyone. According to
Childers, his attention was attracted by "a lot of people hollering ...., he "saw guys
beating" a man and also "kicking him," and one man "was on top of' another.
Childers testified further that he did not see the man on the bottom hit his assailant
even one "lick," and that one or more men kicked the victim several times in the
face "and in the lower section, too." According to Childers, the victim was kicked
after his assailant resumed a standing position, and, if only one man kicked Moody,
that man had a couple of "extra feet."
We turn to the Respondent's testimony which was given by A. R. and Robert
Evans. No other person at the scene was a witness. As will appear, the Respond-
ent's version is that Moody was armed with a knife, but it may be noted at this
point that Moody denied having been armed and that both Childers and Boggan
testified that they did not see a knife. According to A. R. and Robert Evans, when
Moody arrived at the scene he engaged in conversation with a striker, Odie Compton,
about his belief that his home had been under surveillance, and he mentioned the
name of A. R. Evans, at which point A. R. Evans walked over to Moody and
Compton, saying that he, Evans, had not watched anyone's house, and suggesting
that Moody leave because the men there wanted no trouble and intended to conduct
peaceful picketing. Continuing with the Respondent's version, Moody placed a hand
upon each shoulder of A. R. Evans, and shoved, Robert Evans intervened by saying
"Don't shove my daddy," Moody placed his right hand in his trousers' side pocket,
A. R. Evans exclaimed that Moody had something in his pocket, and Robert Evans
attacked.
At this point we consider inconsistencies in the Respondent's testimony. Accord-
ing to A. R. Evans, Moody and Robert Evans "went together. They Tasseled, and
scuffled, and exchanged blows, and wound up [lying] in the street." On the other
hand, Robert Evans testified that he hit Moody with a left, followed by a right
which had such force that Moody was knocked down and "but." Insofar as Robert
could recall, Moody did not hit him. Robert's testimony that when Moody "hit
the ground, he was-he was out," while in accord with Moody's testimony, was
repudiated by Robert. The repudiation was essential if Robert was to adhere to
other portions of his testimony, namely, that he alone inflicted the brutal beating
of Moody, that he acted first in defense of his father, and later in self-defense
because Moody was armed with a knife. Both Robert Evans and his father testified
that when they observed Moody lying in the street, Moody had in his right hand
a knife which he had removed from his trousers' pocket. A. R. Evans described
the knife as "a paring knife" and as "a kitchen knife, a small maybe butcher knife,
something similar to a steak knife," which he estimated as about 10 inches in length,
but which I estimated from his illustration as about 7 inches. Robert Evans de-
scribed the knife as "a steak knife, just an ordinary like steak knife, only a sharp
point on it, more or less like a beef cutting knife. I mean, roast cutting knife,"
with a handle of 31/a or 4 inches and a blade of 5 inches. Robert testified further
that as Moody held the knife in his hand, lying in the street on his back, not
unconscious, Robert was "inspired" by the knife "to get on him," that Robert placed
his left knee on Moody's right arm in order to make that arm and the knife useless
to Moody, that Robert had his right foot firmly on the street, and that while Robert
was in such kneeling position, and using his right fist only, he inflicted all the
injuries which Moody suffered .3 A. R. Evans testified that when Moody's fingers
ceased to grip the knife, A. R. Evans told his son, "That's enough, get up." Robert
Evans' testimony differs. He testified that he did not know when Moody's grip on
the knife was loosened because he was not looking. He contradicted himself by
a In Robert Evans' affidavit the following appears
. . . This guy [Moody] then shoved my daddy and put his hand in nis pocket and
went to pull something out of his pocket. I told this man that I would break him
in to [sic] and not to push my daddy He got his hand out but he was laying on his
back before he could do anything. I then bent down beside him and pinned him down
and went to work on him-hitting him about four or five times or more as I didn't
count them I heard my daddy say that was enough and I got up. When I got up
is when I saw the knife It was a paring knife or steak knife.
I knocked him out . . The fight only lasted 30 or 40 seconds . . . (Emphasis
supplied 1
LOCAL 612, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 503
testifying twice that the grip was loosened after he had hit Moody two or three
times on the ground, and that he continued to batter Moody until his father said,
"That is enough" and told him to stop. Both A. R. Evans and Robert Evans denied
that anyone kicked Moody, and Robert testified also that he hit Moody only in the
face. It is clear from their testimony, however, that a group of strikers and pickets
gathered near Robert and Moody. Both A. R. Evans and Robert referred to a
"crowd."
I cannot credit much of the Respondent's testimony. I do not believe that Moody
initiated a fight by shoving A. R. Evans. I credit Moody's testimony that just
before he was knocked out he heard someone say, "Let me take care of him," and
I believe that the speaker was the bellicose Robert Evans. Moreover, I believe
that Moody fell to the street insensible, not knowing who had hit him. I am
convinced that Robert Evans was not motivated by a desire to defend his father,
but instead was motivated by a desire to inflict injury upon a nonstriker who was
complaining about the alleged conduct of strikers. When Moody fell to the street
he was defenseless and incapable of aggressive actions. Robert Evans so testified,
but changed his testimony as recited above. Moody was not a threat to anyone
when Robert Evans knelt in the street to beat him mercilessly. Moreover, I do
not believe that Moody brought a knife to the scene or sought to use one. Moody
denied having done so, and he impressed me as truthful.4 Finally, I conclude that
Robert Evans did not inflict all of Moody's injuries. Robert testified that he hit
Moody only in the face, but Moody testified credibly that there were bruises on
other parts of his body. Too, Childers and Boggan, disinterested witnesses, testified
credibly that Moody was kicked in the face and torso. Although Robert Evans'
punching power is doubtless substantial, as is his zest for fisticuffs, I credit the testi-
mony of Childers and Boggan that Moody was kicked.
I find that the Respondent is responsible for the blows delivered by Robert Evans
and the kicks by unidentified persons. With respect to the latter, it is well settled
that a labor organization is responsible for violence in which its pickets engage at a
picket line. With respect to the conduct of Robert Evans, we have seen that he is
a member of the Respondent who visited the picket line from time to time. There
is no doubt that his sympathies were with the strikers, and I have found that he
attached Moody because Moody was a nonstriker who complained of alleged acts
of strikers, not because Moody shoved Robert's father. In attacking Moody, Robert
identified himself completely with the pickets and, in effect, became one of them.
It is immaterial whether Robert may be classified as the Respondent's agent. The
Respondent's responsibility flows from Robert's union membership and his actions
upon identifying himself with the pickets. Local No. 888 of the International Union,
United Automobile, Aerospace and Agricultural Implement Workers of America,
UAW-AFL-CIO, etc. (Miami Plating Co.), 144 NLRB 897. The Respondent is
also responsible for Robert's conduct on another ground. The battery occurred in
the presence of pickets and A. R. Evans, the Respondent's principal agent among
the Company's employees, none of whom sought to restrain Robert before or after
Moody lay unconscious and defendless in the street. Such inaction results in the
Respondent's responsibility for Robert Evans' conduct. Local 5881, United Mine
Workers of America (Grundy Mining Company), 130 NLRB 1181, 1182; Inter-
national Ladies' Garment Workers Union, AFL-CIO (F. R. Knitting Mills, Inc.),
145 NLRB 10. I find that, by the battery of Moody, the Respondent violated
Section 8(b)(1)(A).
D. The question whether A. R. Evans' relationship to the Respondent was so altered
before April 1963 that the Respondent is not responsible for his conduct during
that month
Hereafter in this Decision all references to "Evans" are to A. R. Evans. Above
I referred to the case in which the Company is alleged to have refused to bargain
4 After the battery of Moody, policemen arrived at the scene and removed him to a
hospital Both A. R. Evans and Robert Evans testified that a policeman examined a knife
and that all persons present, including Moody, denied ownership of it. Robert Evans
testified also that one of the policemen took the knife from the scene Moody was unable
to testify about events following the arrival of the police because he had no recollection
of them, but A R Evans and Robert Evans testified that Moody told the police that he
did not know what had happened, and Robert testified also that Moody, in speaking to the
police, was "talkieg crazy like " No party to the case called any policeman as a witness
and, therefore, I do not have disinterested testimony that a policeman examined a knife
I am convinced, however, that if a knife in the street was pointed out to a policeman, as
A. R. Evans testified, the knife was placed there by someone other than Moody,
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collectively with the Respondent. The Trial Examiner's Intermediate Report in
that case, Case No. 10-CA-5055, was issued on February 4, 1963, the day before
the battery of Moody. The Trial Examiner found (but was later reversed by the
Board) that owner-drivers, such as Evans, are independent contractors, not employ-
ees. On February 7, a local court, in a suit brought by the Company, enjoined the
Respondent from:
(1) Using as a picket any individual described in the Intermediate Report in
Case No. 10-CA-5055 before the National Labor Relations Board . as
a[n] . . . "owner-driver" . . . at any terminal of complainant, or at the
premises of any person or corporation doing business with complainant.
(2) Encouraging or conspiring with any such individual to picket any of the
complainant's terminals or of any premises of any person or corporation doing
business with complainant by interfering or restraining the freedom of trade
between complainant and any such person or corporation so engaged in business
with complainant.
The Respondent asserts that, whatever may have been Evans' relationship to it
before February 7, after issuance of the injunction he was relieved of all authority
to act in its behalf. In this connection, Evans testified that upon notice to the
Respondent of the injunction, the Respondent's president, G. S. Webb, told Evans
and a group of persons at the union hall of the injunction and said that certain
individuals, including owner-drivers, were not to participate further in the picketing.
Evans "testified also that Webb said that Evans should not act as job steward any
longer, that Evans assumed that he no longer was a union committeeman although
Webb said nothing about his continuing as a committeeman, that a new committee
was elected, but that be was never voted "out" as a committeeman, and that no
one was ever elected to serve in his place on the committee. The record does not
disclose the number of persons on the new committee, nor their identities, and Evans
testified that he did not know when the new committee was elected. It is clear from
the foregoing that neither the injunction nor the acts of the Respondent and its
members removed Evans as an agent of the Respondent. Evans testified further,
however, that since February 7 he has had nothing to do with the strike, the picket-
ing, or the labor dispute, and that during February Webb requested that he not
"even hang around across the street" from the picket line at the Company's terminal.
As will appear, Evans' testimony that since February 7 he has had nothing to do with
the strike is untrue. Too, he rejected the request which he testified that Webb made.
This is so because Evans, who resides 10 miles or so from the Company's terminal,
testified that "several times" after February 7 he visited a cafe located at the street
intersection at which Moody was battered and that on April 13, 2 days before the
events discussed below, he spoke with a picket and was simultaneously threatened
by a nonstriker, Bobby Langley.
E. The events of April 15 on Route 11
Route 11 is a principal highway from northeastern New York State to New
Orleans. We are concerned with events on a portion of it from Birmingham south-
west through Tuscaloosa to Knoxville, Alabama. On April 15, four nonstriking
drivers left Birmingham in four trucks. Those drivers are Billy Wallace, Erkin
Boatman, Bobby Langley, and Bruce Langley. Each truck was loaded with 32,000
pounds of steel. About the time that the last truck left Birmingham, A R. Evans,
who acknowledged that he had'followed trucks during the early part of the strike,
left that city in his automobile, accompanied by his wife and W. J. Henderson, a
striker, going in the same direction as the trucks. At the junction of Route 11
and State Route 5, about 30 miles from Birmingham, the truckdrivers stopped for
coffee at Baggett's Truck Stop.5 When the Evans party passed Baggett's, they saw
the trucks.6 They continued on Route 11 for about 5 miles to a point near a com-
munity named Vance where they stopped at a truck stop called "Nick and Buddy's,"
which obtained its name from two owner-operators who formerly drove for the
Company. Within a short while, the four trucks approached the point on the
highway at which "Nick and Buddy's" is located. The trucks being driven by the
5 The mileage figures recited herein are based partly upon the testimony of witnesses and
partly upon roadmaps of the American Automobile Association
6 Evans acknowledged having seen the trucks there, saying that his attention naturally
would be attracted by the sight of the Company's trucks. On the othet hand, Henderson,
also it witness for the Respondent, testified that he did not recall having seen the trucks
and that as a striker he "would just rather not see" company trucks on the road, "just
rather ignore them " I cannot credit Henderson' s denial
LOCAL 612, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 505
two Langleys passed without incident . The next truck was being driven by
Wallace. Boatman was behind him. Darkness was approaching , and Wallace had
turned on the lights of his truck when he left Baggett 's. "Nick and Buddy's" is
located on the southern side of Route 11; that is, on Wallace's left. The highway
is only two lanes at that point. As Wallace came within about 200 yards of "Nick
and Buddy's," Evans' station wagon came onto the highway, headed west, directly
in front of Wallace, and came to a stop or a crawl.? Wallace applied his brakes,
but there was insufficient distance in which to stop his heavily loaded truck. He
could not pull off onto the right hand side of the road because of a bank. In
order to avoid running into the station wagon, Wallace had to pass on its left.
There was a curve ahead, but there was no oncoming vehicle, and Wallace passed
successfully.8 The station wagon then picked up speed and followed closely behind
Wallace's truck with the lights of the station wagon on bright and with its left wheels
across the center of the two-lane highway except when eastbound vehicles ap-
proached. Wallace, bothered by the reflection of the station wagon's lights in the
truck's rear view mirror, was unable to adjust the mirror to avoid the reflection.
After traveling several miles, Wallace signaled with the lights of his trailer for
Boatman, who was following behind the station wagon, to pass Boatman passed
both vehicles. The station wagon remained close behind Wallace, with its lights
on bright , until Wallace and Boatman were on the bypass around Tuscaloosa, then
the station wagon slowed its speed . Wallace and Boatman stopped on the bypass
at a well-illuminated shopping area.9 As the station wagon passed , Wallace noticed
that there were three persons in the front seat, Evans behind the steering wheel,
Henderson on the right , and a woman between them.lo
Knoxville, Alabama, is on Route 11 about 22 miles southwest of Tuscaloosa.
John's Truck Stop is located there. Bruce and Bobby Langley, ahead of the Evans
party, stopped there. Evans, his wife, and Henderson also stopped there, as did
Wallace and Boatman. The issue now is whether Evans threatened Bobby Langley.
The relevant testimony was given by the two Langleys for the General Counsel, and
by Evans and Henderson for the Respondent. All the witnesses agree that, when
Evans and, Henderson entered the restaurant at John's Truck Stop, they approached
the place at which the Langleys were seated, and Evans initiated a very brief con-
versation by asking Bobby Langley whether he had his "gun" or "pistol" with him.
All witnesses agree that Bobby Langley replied that he did not carry one. The
question is whether Evans, in asking whether Langley had a pistol, and without
awaiting the reply, threatened that: "You may need it." The Langleys testified
that Evans made that statement. I credit their testimony and find accordingly. The
testimony to the contrary is set out in the footnote."
° Wallace testified for the General Counsel that the station wagon stopped Boatman,
following Wallace, testified that the station wagon was traveling "real slowly."
8 The above findings are based upon the credible testimony of Wallace and Boatman. On
the other hand, both Evans and Henderson denied that the station wagon had been
operated in a careless or unlawful manner and that there had been any danger of an
accident Henderson testified that he could not recall whether a vehicle was approaching
as the station wagon entered the highway from "Nick and Buddy ' s " Evans testified that
if a vehicle was approaching , it was "a safe distance back " Mrs. Evans was not a witness
9 The distance from Vance to the bypass is 14 miles . The bypass is 6 miles long
10 The above findings are based upon the testimony of Wallace and Boatman. On the
other hand , Evans and Henderson denied that they 'had followed close behind a truck
between Vance and the Tuscaloosa bypass, and they testified that they overtook a company
truck at the beginning of the bypass , drove carefully , and passed it on the bypass. Evans
and Henderson also denied that Evans was driving the station wagon, it being their testi-
mony that Evans was not feeling well and that Henderson drove . I credit Wallace's
testimony that Evans was the driver
"There is testimony by the Respondent that about 2 days earlier, at the picket line in
Birmingham, Bobby Langley had a pistol with which he threatened Evans and another
striker. Bobby Langley denied having done so It is unnecessary that I resolve this con-
flict in testimony because, assuming the threat by Langley, the threat would not have
justified Evans' threat that Langley might need a pistol the night when he was traveling
on Route 11 According to Evans, when he entered the restaurant of John's Truck Stop
that night and saw Langley, he promptly inquired whether Langley was armed because
he wanted to be sure that the man who had threatened him a few days before was un-
armed.. Evans and Henderson testified that when Langley replied in the negative to Evans'
question, Evans said that Langley had had a pistol "convenient" the preceding Saturday
I cannot credit Evans' testimony that his motive in asking whether Langley was armed
was that he feared for his safety in Langley's presence. If the Respondent's testimony
concerning Langley 's conduct a few days earlier reflects the truth, Evans would have had
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude that Evans sought to intimidate Wallace by the reckless manner in
which Evans operated his station wagon while following Wallace's truck. I conclude
also that Evans sought to intimidate Bobby Langley and Bruce Langley when Evans
said that the former might have need for a pistol . It is clear that the intimidation
in each instance resulted from the nonstrikers' engaging in their Section 7 night to
refrain from joining the strike . I find that , in view of Evans' relationship to the Re-
spondent, described above , the Respondent is responsible for Evans ' conduct and,
because of that conduct, violated Section 8 (b) (1) (A).
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices affecting
commerce, I shall recommend that it cease and desist therefrom . The Charging
Party, urging a broad cease-and-desist order, cites cases in which it asserts that the
Respondent engaged in "many score incidents of violence" and "much serious vio-
lence ." He asserts too that the Respondent entered into settlement agreements in
those cases, thereby obviating decisions by the Board . Contrary to the Charging
Party's contention , it is the Board 's view that cases involving settlement agreements
do "not establish any proclivity on the part of the Respondents to engage in conduct
violative of the Act," Local No. 92, International Association of Bridge, Structural
and Ornamental Iron Workers , AFL-CIO (R. W. Hughes Construction Co., Inc.)
138 NLRB 428 , footnote 2, at 429. On the other hand, Taxicab Drivers Union, Local
777, etc. (Crown Metal Manufacturing Company ), 145 NLRB 197, is authority
for a broad order in this case, and I recommend its issuance . This recommendation
has no assurance of effectiveness , however, unless the Board should obtain court
enforcement of its order in this case and thereafter seek contempt citations whenever
the Respondent engages in conduct from which the Respondent has been ordered
by a court of appeals to cease and desist.
With respect to affirmative action to be taken by the Respondent, I shall recommend
that it post a notice to employees , but I have been unable to envision affirmative
action which I can appropriately recommend as more likely to rectify the effects of
the unfair labor practices upon all employees , particularly the nonstrikers . Certain
precedents over the years are collected in the footnote.12
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 612 is a labor organization within the meaning of the Act.
2. The Company is engaged in commerce within the meaning of the Act.
no reason to believe, and to be reassured by, a negative answer by Langley With respect
to the denials by Evans and Henderson that Evans said that Langley might need a pistol,
I am persuaded that the two Langleys told the truth about the point Moreover, as we
have seen, earlier that night Evans drove his station wagon recklessly in an effort to
harass Wallace and to interfere with Wallace's duty and right to operate a vehicle in a
safe manner. ClOarly, Evans was intent that night upon threatening nonstrikers. When
Evans entered John's Truck Stop, knowing from the presence of parked trucks outside that
nonstrikers were Inside, and when he Initiated a conversation with Bobby Langley, he had
the same intent, and I conclude that he said to Langley that the latter might have need
for a pistol. ,
is I cannot appropriately recommend that the Respondent reimburse Moody for the hos-
pital and other medical expenses incurred as a result of the battery, Crown Metal Manu-
facturing Company, supra; International Hod Carriers, Building and Common Laborers
Union of America, Local 916, AFL-CIO (Owen Langston), 145 NLRB 197. I cannot
appropriately recommend that the Respondent give Moody backpay to cover earnings that
he lost because of his Inability to work for some time after the battery. International
Union of Operating Engineers, Local 513, et at. (Long Construction Company), 145
NLRB 554; United Mine Workers, et at. (West Kentucky Coal Company, et at ), 92
NLRB 916, footnote 4, at 918; Local 983, United Brotherhood of Carpenters, et at
(0 W. Burke Company), 115 NLRB 1123. I cannot appropriately recommend an award
of monetary damages Cf. National Maritime Union of America, et at (The Texas Com-
pany), 78 NLRB 971, 989-991. I cannot appropriately recommend that the Respondent
be barred from initiating any proceeding under Section 9(c) and Section 10(b) for a
reasonable period of time, Crown Metal Manufacturing Company, supra. On the other
hand, I add parenthetically that in a recent case involving employer unfair labor practices
(Herbert Bernstein, et at, d/b/a Laura Modes Company, 144 NLRB 1592), a union's
violence caused the Board to refuse to issue its usual order against employers who had
refused to bargain collectively.
LOCAL 612, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 507
3. By restraining and coercing employees in the exercise of their rights under
the Act, Local 612 has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Pursuant to Section 102.45 of the Board's Rules and Regulations, I recommend
that the Respondent, Local 612, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers, agents, representatives suc-
cessors, and assigns, shall:
1. Cease and desist from restraining or coercing employees of any employer in the
exercise of the employees' rights guaranteed in Section 7 of the Act (including the
right to refrain from joining or assisting Local 612), by (a) threatening or inflict-
ing bodily harm, (b) interfering in any way with the right of any employee to
operate a motor vehicle properly and safely, or (c) any other means.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Post in its offices and meeting halls, copies of the attached notice marked "Ap-
pendix." 13 Copies of said notice, to be furnished by the Regional Director for the
Tenth Region, shall, after being duly signed by an official of the Respondent, be
posted by it immediately upon receipt thereof, and be maintained by it for at least
60 consecutive days thereafter, in conspicuous places, including all places where
notices to its members are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that said notices are not altered, defaced, or covered by
any other material.
(b) Promptly after receipt of unsigned copies of said notices from the Regional
Director, return to him signed copies for posting (Deaton Truck Line, Inc., willing)
at all places where notices to the Company's employees are customarily posted.
(c) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision, what steps the Respondent has taken to comply herewith.14
13 If this Recommended Order should be adopted by the Board, the words "As Ordered
by" shall be substituted for "As Recommended by a Trial Examiner of" in the notice In
the further event that the Board's Order be enforced by a United States Court of Appeals,
the words "A Decree of the United States Court of Appeals, Enforcing an Order of"
shall be substituted for "As Ordered by."
14 In the event that this Recommend Order should be adopted by the Board, this pro-
vision shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS, AND AGENTS; TO ALL EMPLOYEES OF
DEATON TRUCK LINE, INC.; TO ALL WORKERS IN INDUSTRIES IN WHICH LOCAL
612 ORGANIZES
As recommended by a Trial Examiner of the National Labor Relations Board and
in order to conduct the business of Local 612 as required by the National Labor
Relations Act, we notify you that:
WE WILL NOT threaten or inflict bodily harm upon any employee because
he exercises rights guaranteed to him by the Act.
WE WILL NOT interfere in any way with the right of any employee to operate
,a motor vehicle properly or safely.
WE WILL NOT, in any way, restrain or coerce employees of any employer in
the exercise of the employees' rights guaranteed in the Act.
All our members in Alabama, and all other workers in the industries in which we
organize in Alabama, are free to join or remain members of our Union, and they
also are free to refrain from membership and other union activities.
LOCAL 612, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
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.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any questions about this notice or whether Local 612 is com-
plying with its provisions , the employees may communicate with the Board's Re-
gional Office at 1203 City Federal Building , 2026 Second Avenue, N., Birmingham,
Alabama, Telephone No. 323-8011.
Climax Molybdenum Company and Office Employees Inter-
national Union, Local No. 5, and Local No. 410 , AFL-CIO,
Petitioners. Case No. 30-RC-1037. March 26, 1964
DECISION AND ORDER AMENDING CERTIFICATION
OF REPRESENTATIVES
On June 15, 1955, pursuant to a stipulation for certification upon
consent election, a representation election was held among the Em-
ployer's plant clerical and office clerical employees at its Climax,
Colorado, plant. As a result of this election, the Board on June 23,
1955, certified Office Employees International Union, Local No. 5,
AFL-CIO, as the exclusive bargaining representative of the aforemen-
tioned employees.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
On December 1, 1963, Local 5 and Local 410, Office Employees In-
ternational Union, AFL-CIO, Joint Petitioners herein, filed the in-
stant request to amend the certification to designate Local 410 in place
of Local 5 as the certified representative of the above employees. In
this request, Local 5 and Local 410 allege, in substance, that : (1) the
Employer currently recognizes Local 5 as representative of its em-
ployees and there is a collective-bargaining agreement now in effect
between the Employer and Local 5, effective from January 1, 1963, to
November 1, 1965; (2) the impassable terrain in winter makes it dif-
ficult to reach the Employer's plant from the Denver, Colorado, head-
quarters of Local 5 and because of this factor and the relative fre-
quency of grievances, a gradual autonomy has been achieved by the
employees in the Climax unit and they have elected their own officers
and executive board members and have adopted a constitution; (3) in
August 1963, a separate local at the Climax plant was chartered as
Local 410 by the International; and (4) Local 410 has the same officers
as the Climax unit of Local 5.
In its objections, filed on December 20, 1963, to the above request
to amend the certification,, the Employer contends that Local 410 is a
new and separate legal entity from Local 5, and that the request to
amend presents a question concerning representation which can be
resolved only by the filing of a representation petition. We find no
merit in the Employer's objections to the Petitioners' request which is
146 NLRB No. 61.