Teamsters Local 115 (Gross Metal)

National Labor Relations Board - Board Decisions

Aug 27, 1985

275 N.L.R.B. 1547 (N.L.R.B. 1985)

TEAMSTERS LOCAL 115 (GROSS METAL)
Teamsters Local 115, a/w International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America and Gross ' Metal ' Products
Inc. Cases 4-CB-4845 and 4-CB-4845-2
27 August 1985 -
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS '
On 22 January 1985 Administrative Law Judge
Robert A. Giannasi issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the Charging Party filed cross-exceptions,
and the Respondent filed a response to the cross-
exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
Our dissenting colleague "would approve the
settlement upon which "the Respondent and the
General Counsel agreed." For the reasons set forth
by the judge and those cited below, we cannot ap-
prove the settlement.
The proffered settlement contains a standard
order, a notice to employees, and a provision for a
court decree. It also is limited in its scope to the
Charging Party's employees. It contains a
"narrow" cease-and-desist order and specifically
provides that the Respondent admits no wrongdo-
ing. The settlement was not advanced until the
close of the hearing at which -the Respondent pre-
sented no witnesses and limited its defense to cross-
examination of two witnesses and " a challenge to
witnesses' use of notes.
The unfair labor practices it purports to "settle"
are set forth by the judge in 71 separate paragraphs
detailing picket line misconduct and violence. The
detailed incidents occurred over a 5-month period
and ceased only after a District Court injunction
was obtained.2 During that 5-month" period the
Employer's facility - was subjected to mass picket-
ing. Police presence was almost a daily occurrence
i The Respondent has requested oral argument . The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 As stated by the judge, however, less than 2 weeks after the judge
was informed of a potential settlement offer, new charges alleging re-
newed picket line misconduct were filed against the Respondent We
have also been informed administratively that the Region has initiated
contempt proceedings against the Respondent in the District Court be-
cause of continued picket line violence
1547
and the effects were felt by' neutrals, employees,
and company officials.
On almost a'daily basis the pickets blocked in-
gress and egress at the facility . Many deliveries and
pickups could not be made while others. were de-
layed for as long as 4 hours. Often, the delivery of
goods or the arrival of employees required a police
escort. Company 'officials were slapped, punched,
kicked, spat upon, pelted with rocks, and, in at
least one incident, effectively held captive inside
the facility for 45 minutes by mass pickets. Em-
ployees were repeatedly -shoved, punched, threat-
ened, and subjected to racial slurs. Neutrals were
forced to leave the facility without making pickups
or deliveries. They were threatened with serious
violence and told that the pickets would shut down
their facilities as well. Nails were driven into truck
tires. A radiator was -smashed by an iron bar. A
picket jumped onto a neutral's truck, ripping off
the side view mirror. Hydraulic brake lines were
cut. Truck strapping was'cut. Bottles were thrown
at neutrals ' "drivers: - Another netrual's driver was
felled by a blow to the head' with a board.
As the judge noted, this Respondent is not a
stranger to picket line violence . In at least four
other cases , the Board has found similar violations
against this ' Respondent .3 In addition; the judge
cites three other pending proceedings that allege
similar misconduct. See judge 's decision footnote
2.4
Against this background, the judge rightly re-
jected the Respondent's eleventh hour settlement
offer.5 In his view, approval of a posthearing set-
tlement containing a nonadmission clause in the
face of virtually uncontested findings of serious,
widespread, and violent strike misconduct "would
make a mockery of law enforcement." We agree.
In addition, he noticed that the settlement would
s Teamsters Local 115 (E. 3. Lavtho & Co), 157 NLRB 1637 (1966),
Teamsters Local 115 (Continental-Wirt Electronics), 186 NLRB 56 (1970);
Teamsters Local 115 (Martin 3 Sobol), 238 NLRB 1070 (1978), Teamsters
Local 115 (Carol Lines, Inc) (Case 4-CB-4649, j udge's decision dated 19
March 1984, adopted by Board in absence of exceptions).
4 In Teamsters Local 115 (Oakwood Chair Mfg Co) (Case 4-CB-4583)
[277 NLRB No 68 (Nov 25, 1985)], the administrative law judge found
that the Respondent engaged in unlawful strike violence that included
threats, property damage, and-at least one beating of a supervisor That
case is now before the Board on the Respondent's exceptions In Team-
sters Local 115 (Greenmount Cemetery) (Case 4-CB-4863) the judge found
similar violations including the brandishing of baseball bats, crowbars,
boards, and bottles
s We recognize that the General Counsel's representative also joined in
the offer. This fact , in'bther circumstances, might give us pause in reject-
ing the offer Nonetheless, a settlement offer is not insulated from rejec-
tion simply because the General Counsel 's representative finds it to be
adequate Indeed , in this case , the General Counsel's representative's ac-
ceptance of the offer is tainted by a misperception of law corrected by
the judge, i e , that the Respondent 's latest strike misconduct case cannot
be considered in determining whether a broad order is necessary because
the Respondent filed no exceptions See Operating Engineers Local 12 (As-
sociated Engineers), 270 NLRB 1172 (1984)
275 NLRB No. 220
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preclude reliance on this case in determining the
breadth of remedy appropriate in other pending
cases, against the Respondent. We agree. Finally, he
concluded that a narrow order addressed only to
the Employer's employees was inappropriate in
view of the Respondent's established proclivity for
such unlawful actions and the,fact that the violence
and threats. here went beyond-the Employer's em-
ployees and were directed at neutral employers and
employees as well. We agree., , ,
In view of the foregoing, our colleague's willing-,
ness to simply accept this settlement is disturbing.
As we have -repeatedly stated, we--encourage. the
peaceful and nonlitigious settlement of unfair labor
practices. Yet the laudable goal, of encouraging
voluntary settlements ought not be slavishly pur-
sued at all costs to, the exclusion of all .other con-
siderations. Here we see nothing of meaning to be
gained by approval of this settlement offer (except,
of course, the Respondent's avoidance of liability).
The hearing has been completed and, in.view of
the Respondent's minimal defenses, any subsequent
enforcement actions will most likely-be swift.
Conversely, acceptance of the settlement would
make` a mockery of law enforcement. Surely, we
should- not debase the, goal of encouraging settle-
ments by, virtually inviting -parties to engage in
egregious unfair labor, practices, insist on - a full
hearing where they present only a minimal defense,
and then walked away unscathed by signing- a
piece of-paper that refuses to admit any wrongdo-
ing. Finally, 'acceptance of this settlement would
provide little solace, to the individuals who were
beaten, cursed, and threatened; After- all, it is those
individuals whom we are charged to protects
'ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Teamsters
Local 115; _ a/w -International Brotherhood of
6 We agree with our dissenting colleague that a settlement should,not
be rejected simply because it contains a nonadmission clause and is sub-
mitted after the hearing is closed As noted above , these are but two of
several factors that must be considered As for her reliance on our. ap-
proval of the J P Stevens settlements, it is - well known in the labor-man-
agement community that those settlements , approved by all parties,
unlike- the situation here, were a peace , treaty ending a substantial and
protracted labor management conflict In view of the long and tortured
history. of those disputes , it would have been a virtual dereliction Hof duty
to reject the comprehensive settlements provided in those cases Our
action in those unique and special circumstances , however,'do-not require
us to adopt the dissent 's implicit view that ' the Board is compelled' to
accept any proffered ' settlement .just because it approved a settlement_
_
m-
volving J P. Stevens Unlike the dissent, we shall continue to view each
case on its particular facts and assess the efficacy of,any proposed settle-
ment in terms of the purposes and policies of the Act For although a
blanket rule accepting virtually any proposed settlement would doubtless-
ly ease our decisional burden, the resulting injustices of such a rule
simply extract too high a price
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, . Philadelphia, Pennsylvania, its officers,
agents, and representatives, shall take the action set
forth in the Order. ' •
MEMBER DENNIS, dissenting.
This case should have never reached the Board
because, before the judge entered his decision, the
General- Counsel and the Respondent- agreed on a
formal settlement. The settlement stipulation pro-
vided for a comprehensive Board cease-and-desist
order, the posting' of a notice, and the entry of
court judgment -enforcing the Board's Order. The
settlement' stipulatioii also contained a standard
clause stating' that the Respondent does not admit
violating the Act. -
The Charging Party, however, opposed the set-
tlement, and the judge, affirmed-now by the major-
ity, refused to approve it. My colleagues' object to
the settlement basically because they find the Re-
spondent guilty, the agreement was executed after
the close of the hearing, and 'the settlement con-
tained a • nonadmission clause . According to the ma-
jority, approving the settlement agreement in these
circumstances "would make a' mockery of law en-
forcement." - •
I would approve the settlement on which the
Respondent and the General Counsel agreed. I find
that the settlement effectuates the policies of the
Act, -and that- the majority's - objections to it are
without merit. 1 -
First, it may be, as' the majority holds, that the
Respondent is guilty. But that .judgment is one that
should only be made after,' not before, deciding
whether- to- approve the 'settlement. The' majority's
decision to approve or reject a settlement agree-
ment based on the guilt or innocence of a respond-
ent removes any incentive for a respondent to enter
into such an agreement, because now settlements
i I agree with the-General Counsel that the settlement agreement sub-
stantially remedies all of the unfair labor practice allegations A compari-
son of the settlement's Order and the majority's Order reveals that they
are essentially the same, the main difference is that the majority's Order
extends to conduct occurring at facilities other than the Employer's In -
my view, this difference does not warrant rejection of the settlement,
which allows for immediate contempt action in the event future miscon-
duct should occur at the Employer 's facility In these circumstances, no
basis exists for the majority's conclusory assertions that under the settle-
ment the Respondent - would avoid "liability" and "walk away un-
scathed ,"'while affected individuals would receive "little solace "
The settlement fully protects the Charging Party's interests The ma-
jority errs in characterizing the settlement agreement as providing "a
narrow ordei addressed only to the-Employer's employees" In fact, the
cease-and-desist order enjoins- the • Respondent from "[i]n any other
manner, restraining,or.coercing employees of Gross Metal Products, Inc
or of any other employer doing business with Gross Metal Products, Inc
at the facility of, Gross Metal Products, Inc, 221 West Glenwood
Avenue, Philadelphia, Pennsylvania" The General Counsel accurately
characterizes the settlement as providing "a broad remedy with respect
to conduct at the Employer's facility "
TEAMSTERS LOCAL 115 (GROSS METAL)
will be accepted only if the respondent would oth-
erwise be acquitted.
Second, the majority's reliance on the timing of
the settlement negotiations and the inclusion of the
nonadmission clause is misplaced. 'It is well settled
that such factors are not a valid basis for rejecting
a settlement that otherwise effectuates the policies
of the Act. Mine Workers (James Bros. Coal Co.),
191 NLRB 209, 210 (1971); NLRB Casehandling
Manual (Part One), Unfair Labor Practice Pro-
ceedings, Section 10164.4 ("[A]n admission [of
guilt] is unnecessary where entry of a court judg-'
ment' is provided for. This is often an important
factor in persuading a respondent to consent to the.
entry of a judgment."). Indeed, in J. P. Stevens &.
Co., 268 NLRB 11 (1983), Chairman Dotson and
Member Hunter joined me in, approving a formal
settlement that included a nonadmission clause and
was entered into after issuance of the judge's deci
Sion.
Settlements are the lifeblood of this Agency. In
my view, settlement efforts by the General Counsel
and a respondent should be encouraged, by this
Board, particularly in view of the staggering- case
backlog. I regret that the majority's decision will
have precisely the opposite effect.
DECISION -
STATEMENT OF THE CASE
ROBERT A GIANNASI, Administrative Law Judge.
This case was tried in Philadelphia; Pennsylvania, on Oc-
tober 1, 2, and 3, 1984. The complaint alleges that Re=
spondent violated Section 8(b)(1)(A) of the Act by nu-•
merous acts of blocking the egress and ingress. of em-
ployees and vehicles at Charging Party's premises and by
numerous other acts of threats, violence, and coercion in
connection with picketing by Respondent at the'preniises
from March through August 1984. Respondent's answer
denies the substantive allegations of the complaint.
Three witnesses testified for the General Counsel. - In
addition, video tapes covering some- of the incidents of
alleged unlawful conduct were received into evidence
without serious objection. Respondent offered no wit-
nesses. At the close of the hearing, - I ruled , that briefs
should be' filed by November 5,A984.- On request of
counsel for Respondent, an extension of time"for' the'
filing of briefs was granted to November, 26, 1984.
Thereafter, on November' 19, -1984, • I was notified by
telephone of a possible settlement in this matter' By'tele-
gram dated November 20,, 1984, 'I notified the ' pai ties
that they should submit their briefs on the-merits as,well
as their positions on whether I should approve•'the_pro-
posed settlement by December 10, 1984. I have' received'
the briefs of'the parties as well as then posmons on the
proposed settlement and I am also in 'receipt of the pro-
posed settlement itself. The Charging-Party opposes the
proposed settlement.
1. 1 -1 1,
' ' ` '
1549
On the entire record,' including the testimony of the
witnesses and my observation of their demeanor,' I make
the following '
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
The Charging Party is a Pennsylvania corporation
which is engaged in the metal' fabrication business. at its
facility located at 221 West Glenwood Avenue, Philadel-
phia, Pennsylvania During a representative 1-year
period, the Charging Party performed services valued in
excess of $50,000 for customers located outside the Com-
monwealth of Pennsylvania. Accordingly, I find that the
Charging- Party is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
II. THE LABOR ORGANIZATION
Respondent is a labor organization -within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. -The Facts
The Charging Party's facility is located in a one- to
two-story building, 40 • percent of which is occupied by
two other tenants. The principal access to Charging
Party's- facility is through a main entrance-a steel door
which is 40- inches 'wide-fronting on Glenwood
Avenue Also fronting on Glenwood' Avenue is another
entrance of 10 overhead bay doors; 2 are exterior loading
dock bays- and- 8 are interior loading dock bays. In Feb-
ruary 1984, Charging Party''employed approximately' 50
employees and its president was Sheldon Gross.
On February 24, .1984, Gross received a letter from
Respondent ,requesting recognition as the bargaining
agent of Charging Party's' employees. That same day,
two. representatives of Respondent, Business Agent Jim
Oliver and Organizer Rick Hart, called' on Gross at his
office -and requested recognition, in person.- Oliver told
Gross that he would have •5 days within which to sign a
recognition agreement or the: employees would go on
strike and Charging Party, would. be put "out of busi-
ness." After a return visit 5 days later by Oliver and
Hart, Gross declined to accord Respondent recognition
and notified Respondent' that he had, in the meantime,
filed 'a petition for a representation election with the
Board.
OnMarch'1; 1984; Respondent struck Charging Party.
Some .30 to 35. people, including 25 fo 30 employees of
Charging Party, appeared in-front-of-the facility and
picketed:'The picket signs referred to Charging Party by
name, and '"contained the notations "unfair labor practice"
and,"on strike, Union Local "115." Hart, was present on
the first day. of picketing wearing a Local -115 jacket.
From March 2 until .August' 30, 1984, picketing contin-
ued at the Glenwood" Avenue facility. Officials of Re-
spondent-Oliver, Hart, and Organizer Robert Hen-
ninger-were- present ion many of these occasions. From
March 2 through 28, Hart was present on the picket. line
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on all, but 1 or 2 days. Henninger was present every day.
He testified, on, March 28, 1984, in a state court proceed-
ing involving the picketing, that "lately, I've been there
12 hours a day." Oliver was present about half the time.
Strike benefits were paid by Respondent to picketing em-
ployees of Charging Party and several other nonem-
ployees who engaged in picketing were members of Re-
spondent.
Beginning on March 9, Charging Party advertised for,
and thereafter hired, replacements for the striking em-
ployees.
The following events were observed by Sheldon Gross
who testified about them in a clear, straightforward, and
credible manner. His testimony was strengthened by his
confirmation of certain details on cross-examination and
corroborated to some extent by video tapes of some of
the incidents which were received in evidence and
viewed by me i He used notes while on the witness
stand but he did not read from his notes. Respondent's
counsel was permitted to inspect the notes before cross-
examination. However, both on direct and on cross,
Gross showed a remarkable ability to testify about details
with only minimal reference to his notes. Gross' testimo-
ny stands uncontradicted because Respondent put on no
witnesses of its own. The major incidents, which do not
purport to be complete but involve the more serious and
clearly explicated events, are as follows:
(1) March 2-As nonstriking employee Luis Salgado
tried to enter Charging Party's main entrance, some 15
to 20 pickets massed in front of the door. Despite several
attempts by Salgado to pass through the pickets, which
included , Respondent Organizer Hart, Salgado was
unable-to enter until, after about 10 minutes, a police of-
ficer escorted him through the picket line.
(2) March 9-Gross was waiting at the main entrance
to usher in employees reporting for work when he was
accosted, by a person who, identified himself as "Jose"
.and a former employee of Oakwood Chair-an employer
which had been involved in another dispute with Re-
spondent. Jose informed Gross that he and others with
him were trying to organize that employer and that we
"had to put them ' out of business."? He said -that they
would do the same to Gross unless he signed an agree-
ment "with us" He, also threatened that Gross' suppliers
would be picketed and that his situation would be the
same as that at Oakwood where the owners "physically
i Respondent 's counsel did not object to the authenticity or relevance
of the tapes His only objection to receipt of the tapes in - evidence was
that they were cumulative , His comments were as follows-
we already have countless testimony about the incidents, and its
just redundant testimony through ' video tape, some of which is hear-
say, because he didn ' t take the video tapes , his wife - may have taken
,the.video tapes I'll be frank with you, Your Honor, I've seen some
of they video tapes, and they do recount some -of these incidents
Others don't and I don't seethe relevance since we already have -Mr
Gross' testimony ` ' - t
2 Respondent's dispute with,Oakwood Chair is,the subject of a pro-
ceeding involving similar .unfair labor practices against Respondent which
is pending before an administrative law judge Oakwood Chair Mfg Co
(Case 4-CB-4583 ) Respondent has'also been charged with similar viola-
tions , in 'Greenmount Cemetery (Case 4-CB-4863 ) and Turf Maintenance
Corp (Case 4-CA-14330))• which is also pendmg .before an administrative
law judge. -
got hurt pretty bad." Several replacement employees
were present during this confrontation. .
(3) March 12-About 12:15 p'm. about seven pickets
entered the building through the front door and chased
two employees. Organizer Hart was standing outside the
front door. Earlier, Gross had gone outside and observed
Harr-with a bloody nose. Gross asked Hart what had
happened and Hart replied,' "I told you you were start-
ing a fucking war. That's okay, we know how to deal
with this -wahoo shit; and we'll put you out of fucking
business."
(4) March 13-In the morning Gross had great diffi-
culty opening the door to the main entrance to allow
employees to enter because of the mass of pickets in
front of it. Gross was kicked in the shin by one of the
nonemployee pickets. It took 15 minutes before the door
could be opened. Shortly thereafter Jim Oliver told
Gross'not to come out on "my" picket line and said if he
came outside one more,time "you are going to get it."
Oliver then took two. steps back, clenched his fists, and
gestured for Gross to come out. Oliver said, "Come out
I am going to kick your ass." At this time employ-
ees were trying to' come in to the building to report for
work.
(5) March 13-A number of pickets including Hart
and Oliver massed in front of the front entrance and pre-
vented employees Falcon, Gusman, Stevens, and Cephas
from entering for periods of from 5 to 20 minutes. Some
of the employees were bumped by the pickets and
Gusman was hit on the head. Employee Rodriguez was
grabbed by a picket and struck in the middle of the back
while trying to enter. The police intervened and helped
him get through the pickets and into the plant.
(6) March 13-The massed pickets prevented employ-
ees Flores, Iricarry, Montenez, and Perez from entering.
The pickets were standing four or five deep at the door.
When the police assisted Rodriguez, these four employ-
ees entered . Iricarry was bumped by a_picket.
(7) March 13-Several pickets chased employee
Weaver, who had attempted to enter the building to go
to work, down the block. Gross had to,drive his car out
of the facility to pick up Weaver. Gross reached Weaver
who jumped into the car whereupon one, picket struck
the car window and said, "You no good mother fucking-
nigger scab." Oliver and Hart observed this incident.
(8) March 13-A group of job applicants tried to get
into the facility but were prevented from doing so by
pickets massed 4 to 5 feet deep at the main entrance.
They chanted in unison, "go home." Hart led the cheers.
(9) March 13-In the afternoon, about 1.30, as a sup-
plier's truck.was attempting to enter the plant, a picket
stood in.front of it, preventing it from entering Another
picket came-over and jumped on to the running board
and hit his fist on the window calling the driver a "no
good mother fucking scab." Hart was present during this
incident.
(10) March 14-During the morning, as employee
Falcon attempted to enter the building, he was pushed
and bumped by a'picket who was blocking the doorway.
Several other employees also tried to enter through one
of the bay doors but could not do so because they were
TEAMSTERS LOCAL' 115 (GROSS METAL)
blocked by pickets who were massed in front of the
door. Hart was present during these incidents
(11) March 14-The company truck" attempted to
make a delivery at one of the bay doors but six pickets
prevented it from doing so Gross then spoke to Hart
and asked if the pickets would move aside in accordance
with an agreement made between Respondent's counsel
and Charging Party's counsel in connection with a local
court suit over the picketing. Hart refused.: The truck
was unable to enter until the police arrived 25 minutes
later whereupon the pickets dispersed
(12) March 15-Employees Cephas and Stevens at-
tempted to enter the building through a bay door but
were prevented from doing so for about 5 minutes be-
cause of pickets who moved back and forth blocking
their way. Hart was present
(13) March 15-Employees Rischow and Weaver at-
tempted to enter the building but Rischow was bumped,
blocked, and pushed away by pickets and Weaver was
blocked from entering a bay door. Hart and Henninger
were present.
(14) March 15-A trash removal truck-came to one of
the bay doors to remove trash but was prevented access
to the bay by pickets who stood in front of the door.
The driver asked the pickets to move but Hart toldithe
driver to come back another day The driver left. ' -
(15) March 19-The trash truck again tried .to pick-up
the trash but was prevented from backing into the bay
door area The driver asked Hart to move the pickets
but Hart did not reply The driver left again-and did not._
make a pickup. -
(16) March 19-A Daily Tube truck approached the
facility to make a delivery but was prevented from doing
so by a group of pickets. The truck could not gain entry
until the police arrived some 30 minutes later- - -
(17) March 20-Pickets prevented a trash truck',fro'm
SCA Trash Removal from making a pickup at the prem-
ises Hart was present. The driver left and returned but
was again blocked by pickets. Hart and Henninger were
present at this time. The police arrived and, the pickets
dispersed.
(18) March 22-A Bonnell tractor-trailer': truck. at-
i tempted to make a delivery at the facility. The truck was
surrounded by pickets which prevented it from moving
for about 4 hours when the police-arrived. The truck
backed into one of the bays and the trailer was un-
hitched and the tractor left. The trailer was unloaded by
Charging Party employees About 3.30 p.m the tractor
returned to pick up the empty trailer. -Hart and Hen-
ninger instructed the pickets to line up along the bay-en-
trance to prevent the tractor from. hitching on to ,the
trailer. The massed pickets prevented- the -tractor :from
being hitched for about an hour. When the trailer .was
hooked to the tractor the pickets prevented the i truck
I from moving for about a half hour :until the! police- ar-
rived. - x:
3 Because suppliers and others who had tb make pickups and deliveries
encountered difficulties with the picketing at the Glenwood facility,
Charging Party found it necessary to rent trucks and make its own deliv-
eries to the facility These rental trucks are referred to collectively as the
company truck
1551
(19) March 24-A group of pickets blocked the com-
pany truck and prevented it from entering a' bay door.
The pickets did not allow the truck to enter until the
police arrived.
(20) March 24-Replacement employee Scott was pre-
vented from entering through the main entrance after a
break because of the obstruction of a group of pickets.
After 10 minutes he was able to enter through a large
bay door.
•(21) March 26-Pickets prevented the company truck
from entering the bay door to make deliveries Union Of-
ficials Hart and Henninger were present. After about 30
minutes the truck left. The truck returned later but was
again ' blocked. Union Official Oliver directed the pickets
twstand behind the truck and refused a specific request
from Gross to allow the truck to enter. The truck tried
unsuccessfully to enter the premises to make a delivery
for over 4 hours. .
(22) March 26-Pickets obstructed replacement em-
ployees Samuels, Garr; Thompson, and Patraza and pre-
vented them from 'entering the premises for varying
amounts of time. Employee Samuels was blocked for 2
hours Patraza got through but was slapped on the side
of, the head by a picket., Henninger,, Oliver,; and 'Hart
were present during all or some-of these incidents
'(23) March 26-During the `lunch- hour pickets massed
in front of replacement employees'Cottler and Richard
Smith. • Smith entered although • he was jostled and
pushed by pickets •Cottler' tried unsuccessfully to get
through the picket line several times
(24) March' 26-About 5:30'p'.m' replacement employ-
ees went outside -and attempted to unload the company
truck which had been prevented from entering into the
bay area. On instructions from Oliver and Hart the pick-
ets massed in front of the entrance area. One of the pick-
ets grabbed a skid being used by replacements forcing a
brief 'altercation. t As ,the replacements tried to carry
boxes out to the truck they were pushed and harassed by
the pickets -' ' - `
(25) 'March -27--A °gioup of pickets blocked' the, en-
tranceway and delayed the' entry of anumber of replace-
ment employees who were bumped- and 'shoved -before
forcing their way through'the picket line. Henninger and
Oliver were present. While replacement, employees were
waiting to enter, striking employee Liiis Pena challenged
several replacements- to a fight' -'The police came on the
scene and ordered Pena to leave.
(26) March 27 -and 28-On' three separate, occasions
pickets' prevented the company truck from entering or
exiting Respondent 's premise's. On one of `these occa-
sions, Hart specificall Y,, refused Gross'. requests to permit
the truck-•to' go'throughr the, picket line' '
F-(27)`March'29-The company truck was -backed up to
one, of.the bay, doors aiid was surrounded by pickets, who
let it pass About 50 feet from the building, it was dis-
covered that pieces of wood with- nails -had been ' driven
into tle'frbnt"'tires and had'punctuiedthem.4
4 On March 29, 1984, a local court entered a preliminary injunction
again t "Respondent • pfofiibiting- certain- picket line misconduct The in-
junction remained in effect until July 16, 1984
I
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(28) April 13 and 19-Several pickets obstructed a
Black and Decker truck and prevented it from moving
into one of the bays. On April 13, the pickets moved
aside after the arrival of police and, on April 19, they
dispersed after obstructing the truck for 25 to 30 minutes
when the state court injunction was read to them.
(29) April 24-Pickets, including Hart, blocked a
Black and Decker truck from entering the premises
Gross read the state court injunction to the pickets but
they did not move until the police intervened.
(30) April 26-On three separate occasions, trucks
from Black and Decker, Koski, and Bard were prevented
from entering the premises by massed pickets -for varying
periods of from a half hour to over an hour The police
were called on one occasion to help obtain entry.
(31) April 26 and 27-On two separate occasions,
massed pickets prevented a Florida-Texas truck and the
company truck from entering the bay doors. The pickets
did not disperse until the police arrived
(32) April 27-Pickets prevented a Koski truck from
entering the premises and later prevented the company
truck from entering for about 45 minutes until the police
arrived.
(33) April 30-Several pickets prevented the entry
onto the premises of a Cardinal Trucking truck. Gross
asked them to move aside and a striker, Luis Martinez,
spit at Gross twice, picked up a rock and taunted Gross.
Several replacement employees were present during this
incident. Later pickets prevented a Black and Decker
truck from entering the premises and Martinez spit at the
driver of the truck.
(34) Several occasions in May-Striking employees
stood in the bay doorway at the end of the day and pre-
vented Gross from leaving the facility. He was blocked
for an average of about 45 minutes each time. On one
occasion Gross was spit upon. On several occasions, re-
placement employees were present and observed the in-
cidents.
(35) May 1 and 2-On two occasions pickets prevent-
ed the company truck from entering the premises. The
pickets did not disperse until the police arrived.
(36) May 21-Two pickets obstructed the entry of the
company truck into one of the bays. Henninger was
present. After about 45 minutes the police arrived and
the pickets permitted the truck to enter.
(37) May 21-About 8:45 a.m pickets massed in front
of a Bonnell Company truck and prevented it from en-
tering a bay. The leader of the pickets was Bill Riley
who claimed that the state court injunction had been
lifted. Gross disagreed and the police were called. Hen-
ninger arrived about 11 a.m. About this time the compa-
ny truck also arrived and was prevented: from entering
the premises. Both trucks remained blocked until about
noon.
-(38) May 23 and 24-On two occasions, pickets pre-
vented the company truck from entering the premises.
(39) June 22-At approximately 10 a.m. while-replace-
ment employees were leaving the building on -break,
striking employee and picket Cruz yelled, "Wait until
next week, we'll be able to get you then" and he told
Gross to tell the employees what would happen the next
week when the injunction was no longer in effect.
(40) June 22-While the company truck was being
loaded at one of the bays, nonemployee picket Jones
walked around to the front of the truck carrying a metal
bar. An argument ensued between a security guard and a
picketer away from Jones and there was a loud noise and
the truck began to shake. Jones ran off with the-metal
bar It was later discovered that the truck's radiator had
been smashed. It cost $450 to repair the radiator.
(41) July 3 and 9-Pickets stood in front of the compa-
ny truck and prevented it from leaving for about 20 min-
utes on July 3. A similar incident occurred on July 9
when Hart was present.
(42) July 10-After a Bonnell truck made a delivery at
the premises pickets obstructed its movement after it had
moved onto Glenwood Avenue in front of the-premises
The truck was blocked for about 25 minutes- until the
police arrived.
(43) July 16-Twice the company truck attempted to
enter the premises Both times picketers prevented the
truck from entering. On the second occasion in the after-
noon, Union Official Hart initially refused to permit the
truck to enter but after the police arrived the pickets dis-
persed.
(44) July 16-At approximately 7 p.m. two supervisors
and two replacement employees attempted to exit one of
the bays and-Gross attempted to exit from another. Pick-
ets blocked the egress of both vehicles and they contin-
ued to block the first vehicle until 8:30 and the second
until 10.30 p.m. after the arrival of counsel for the
Charging Party who called the state court judge who
had issued the injunction and the judge talked to striking
employee picket Del Valle.
(45) July 18-Pickets prevented the company truck
from leaving the premises from 8.45 until 10:30 a.m.
Union Officials Hart and Henninger were present. A
vendor's truck from Lynpack was prevented from enter-
ing the premises at the same time The truck finally was
permitted' to enter about 12.30 p.m after the police inter-
vened. However, the pickets positioned themselves in
such a way behind the truck that they prevented replace-
ment employees from unloading the truck by use of the
forklift and the truck left without completing its unload-
ing.
(46) July 20-Pickets obstructed the company truck
and blocked the unloading of the truck The truck was
eventually unloaded by hand but it took 30 minutes
rather than the normal 10 minutes to accomplish this had
a skid and forklift been used.
(47) July 24-Pickets prevented a vendor's truck from
making a delivery at the -premises about 11:30 a.m. The
truck again attempted to make the delivery at 3:35 p.m.
and did so despite some difficulties. However, as the
driver was attempting to leave, several of the pickets
stood in front of the bay door to prevent its egress. After
a delay of about a half hour, the truck was permitted to
leave when the police arrived on the scene.
(48) July 27-Pickets prevented the company truck
from entering the premises. Union Official Henninger
was present and instructed the pickets. After Charging
Party's counsel arrived on the scene, Henninger mo-
tioned to the pickets to disperse. Later the same day two
TEAMSTERS LOCAL 115 (GROSS METAL)
pickets again prevented the company truck from entering
the premises.
(49) July 30-Pickets prevented the company truck
from entering the premises for over an hour. Later about
6:05 p in. pickets again obstructed the entry of the truck
Replacement employees were then sent outside to unload
the truck by hand.
(50) July 31-At approximately 8 am. a Spano trash
truck arrived at the premises. A trash container was
about to be loaded on to the truck when nonemployee
picket Gaines, who wore a union button, approached the
Spano driver and said, "If you pull that container on the
truck, we're going to hold you in here all fucking day "
The driver unhooked the container and drove away.
(51) August 1-Pickets prevented the company truck
from entering the premises. Gross walked over to the.
driver to give him instructions As Gross walked away,
striking employee Martinez spit at Gross. Gross spit back
and . Martinez. then hit Gross on the side of the face
Three or four other pickets ran over to the area and the
police intervened.
(52) August 2-On two occasions trucks were prevent-
ed from entering the premises by pickets for a period of
time. During the first occasion, Gross walked up to the
truck and attempted to unload some small cartons. He
was pushed and bumped by striking employees. Replace-
ment employees were present.
(53) August 3-Pickets blocked the entry of three
trucks into the bay areas In the first incident, striking
employee DelValle brandished a metal object in his hand
but left after a security guard approached him. In the
second incident, striking employee Cruz grabbed an alu-
minum part and threw it into the work area where a re-
placement employee was working In the third incident,
a repairman tried twice to pull his truck into one of the
bays but was prevented from doing so and had to leave
his truck on the street.
(54) August 6-Pickets prevented the company truck
from entering the premises for over an hour until police
arrived to disperse the pickets.
(55) August 7-Pickets prevented Gross from entering
the premises for about 10 minutes and prevented the
company truck from entering the premises shortly there-
after When Gross asked the pickets to move, striking
employee Martinez spit at Gross and, when Gross
walked away, another striking employee, DeJesus, threw
a rock at Gross which struck him on the leg. A number
of replacement employees witnessed this incident.
(56) August 7-Pickets obstructed the company truck
as it was attempting to leave about 9 a m. Striking em-
ployee Cruz grabbed the side view mirror on the truck,
bent it, and broke it off. The mirror had to be replaced.
Replacement employees observed the incident
(57) August 8-Pickets obstructed the egress of the
company truck. Gross intervened. Striking employee
Martinez spit at Gross several times and striking employ-
ee Ayala threw a rock at Gross Several replacement
employees 'were present. Thereafter, Ayala and Martinez
slid underneath the truck. Shortly thereafter, it was de-
termined that the truck's hydraulic break line had been
cut. The truck had to be towed away for servicing
I
1553
(58) August 9-Pickets prevented the company truck
from leaving the premises for about an hour until the
police arrived. The truck parked in the street, the police
left, and pickets again massed around the truck to pre-
vent it from moving. The police were again called and
dispersed the pickets.
(59) August 14-Pickets prevented a SCA trash truck
from access to an entranceway where it was to pick up a
trash container. The pickets refused to move. As a result
the pickup was not made and the truck left. SCA refused
to perform trash removal for the Charging Party thereaf-
ter
(60) August 15-Pickets prevented the egress and in-
gress of several • trucks. Striking employees DelValle and
Ayala were observed handling certain straps on a Premi-
um Palate truck which were thereafter determined to
have been cut DelValle and Ayala also threw beer bot-
tles at the truckdriver. Striking employee Cruz also hit
the Premium driver across the back of the head with a
board and knocked him to the ground Security guards
had to intervene to stop the assault
(61) August 20-Pickets prevented the company truck
from entering the premises for about an hour until the
police arrived.
(62) August 22-Pickets prevented the company truck
from leaving the premises for about an hour until police
arrived. Later the truck returned to the facility and was
prevented from entering by pickets until the police ar-
rived. When the truck again attempted to leave the pick-
ets blocked it until the police arrived.
(63) August 24-Two pickets carrying union signs pa-
raded in front of the company truck thereby preventing
it from entering the premises. The police arrived and the
truck was permitted to enter
(64) August 30-Pickets prevented a customer's truck
from leaving the premises. A nonemployee picket named
Gaines verbally harassed the driver and threatened to
fight him. Gaines was restrained by police and the truck
was permitted to leave
In addition to the above incidents, Plant Manager
Royack testified about several incidents he observed. His
testimony was also clear, straightforward, and uncontra-
dicted The incidents are as follows
(1) March 27-Pickets prevented a truck from entering
the bay area. They shouted verbal abuses at Royack and
replacement employees and threatened them with bodily
harm. Striking employee DeJesus slapped Royack in the
face twice and said that he would get him later.
(2) August 15-Pickets prevented a supplier's truck
from backing into the bay area. When the pickets refused
Royack's request to move, he ordered the replacement
employees to . come outside and unload the truck by
hand. The pickets interfered with the unloading by step-
ping -in front of the employees and grabbing pieces of
material and throwing them on the ground
(3) August 17-Pickets prevented a supplier's truck
from entering two separate bays.
(4) August 23-Pickets prevented the company truck
from entering the premises. When Royack went over to
speak to the truckdriver, one of the strikers attempted to
draw Royack into a fight He said that the next day he
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and others would "'get" him and put him in the hospital.
Charging Party's guard and truckdriver were present
during the incident. -
In addition, Patrick. Cram testified about several inci=
dents during the picketing. He. was employed by the se-
curity guard company utilized by Charging, Party to
keep order during the picketing until June 2, 1984,-and
he thereafter went to work as a foreman for the Charg-
ing. Party for 3 months. He was not, cross-examined ,and
his testimony was not disputed The incidents he report-
ed are as follows: -
- (1) April 13-Cram, as a guard, and the driver of the
company truck left the. Gross Metals premises to make
some pickups at the Florida-Texas terminal. Union Offi-
cial Hart followed the truck in his automobile. After the
truck was ready to -leave the Florida-Texas terminal,
Hart stood in front of the truck, and would not leave
until the . terminal - manager came out and asked :him to
move. The truck was detained for about a half hour.,
(2) May 5-As Cram was riding in the company truck
along Glenwood Avenue a bottle was thrown against the
side,of the truck. Cram then.observed _ a picket named
O'Neill throw a brick-against the side of the truck.
(3) May. 21-Cram was in street. clothes and driving
the company truck. He attempted to back the truck into
one of the bays. Several , pickets'stood behind the truck
and prevented it from, moving for about a half hour'
Other replacement employees were present.
On August 30,-;1984,- the United States , District. Court
for the Eastern District 'of Pennsylvania entered a tempo-
rary injunction under -Section 10(1) of the Act. against
Respondent , its officers , agents, and employees The, in-
junction prohibits certain conduct alleged, in this-'c om-
plaint pending the, final disposition of the' matter :by-the
Board. The injunction expires 6 months from the entry
of the order.;
B. Respondent's Defense on. [he tNe'rits
As I have indicated; ,Respondent offered no witnesses
or other evidence at trial and did not-seriously object to
the introduction of the, video tapes. Nor was Respond-
ent's counsel able, to articulate any specific defense to. the
charges when asked to-do so at trial. .
Respondent 's, defense as set forth _ in its eight-page brief
on the merits is a's'follows: (1) Some of the incidents in-
volved spitting of beer or trespassing and do- not neces-
sarily violate, Section 8(b)(1)(A), of the Act. No specific
reference is made td the record and no cases -are, cited;
(2) as to incidents .involvingthreats , or assaults against sul
pervisors, employees. must be,,; present. -No. specific inci=
dents are cited where such threats, or ;assaults were,made
but, employees were not; present; (3) ,there' is no testimony
from witnesses who were not,-supervisors; or guards;, (4)
Royack's testimony about, the March i27 incident did not
identify striking- employers and did not establish, their
agency status; (5) : Cram's ;testimony did;not link the pres-
ence of employees.wtth the-mcidents,of coercion, and-he
himself was a security guard and not an employee under
the Act; (6) with reference to Cram's testimony about
the.May 23 incident,, there, was, no showing that the indi-
vidual -"employee'!' who engaged in.the misconduct was
an agent of Respondent; (7) Gross" testimony should not
be accepted because he referred to his notes while testi-
fying. Reference is made to the rule (Fed.R.Evid. 612)
that if a witness uses a writing "while testifying . . the
adverse party-is entitled to inspect the writing and use it
on cross-examination ." In this connection , Respondent
also argues that, before Gross could refer to his notes, it
was incumbent upon the General Counsel to demonstrate
that Gross', recollection had been exhausted. Several
cases are cited in this regard , but all are inapposite.
Respondent's contentions are without merit. First of
all, none of the numbered findings of fact are restricted
to simply spitting and trespassing. All involved more-
physically preventing egress or access or additional acts
of coercion Second, in all findings dealing with threats
or assaults against supervisors , employees were present-
either the truckdriver of a neutral employer, the truck-
driver of the company truck, or replacement employees
Third, the fact that there was not additional testimony
from other individuals does not detract from the reliabil-
ity of the witnesses who did testify, especially since they
were not contradicted. Fourth, Royack's testimony about
the March 27 incident identifies pickets generally and
DeJesus in particular. DeJesus was a picket paid by Re-
spondent. Respondent sanctioned ,the picketing . This tes-
timony is sufficiently precise to establish responsibility
and agency. Fifth, two of,the three findings based on
Cram's testimony involve incidents where another em-
ployee was present. the truckdriver. The third finding-in-
volves Cram only who-was on that occasion in street
clothes and- driving the company truck. Although Cram
was a security guard he was still an employee within the
meaning of the Act. However, even as to this incident;
Cram's testimony indicates that other replacement em-
ployees were present. Sixth, I have not included in my
findings any reference to a May 23 incident as I consider
Cram's testimony on that incident to have been confus-
ing. Nor have I made any findings with respect to his
testimony about a threat allegedly made to him by an un-
named-picket during the May 21 incident. The latter in-
cident -involved' a blocking, of ingress by pickets who
were obviously authorized and paid by Respondent.
c !The last remaining defense offered by Respondent in
brief- is - that Gross should not' have been permitted to
refer to his notes while • on -the witness stand. I consider
this -contention, basically ,an attack on. Gross' credibility.
As I have indicated I was very impressed with Gross' re-
liability' as, a witness. First of all,, contrary to Respond-
ent'.s contention,- Gross did. not read from his notes He
impressed,-me as having a surprising knack for recalling
even details of the incidents with only minimal reference
to his notes. Second, Respondent's objection at the hear-
ing-was not made specifically.in"terms of Gross' recollec-
tion having to be., exhausted before referring. to* his notes.
It Was 'a general objection which I resolved by permit-
'tirfg Respondent to use the notes on cross-examination-
•fu& compliance` with Rule 612 cited by Respondent in its
brief. Use of the notes during Gross' testimony was an
implicit recognition that the incidents about which he
was to testify were numerous and covered a period of
about 6, months. :It is -understandable- that a witness
would 'not''have total recall of all of the incidents with-
TEAMSTERS LOCAL 115 (GROSS METAL) 1555
out some aid Respondent was adequately protected by
full compliance with Rule 612 and.my consideration of
all of the circumstances surrounding Gross' testimony,
including the fact that he referred to notes which, inci-
dentally, were taken contemporaneously with the events,
convinces me of his reliability as a witness. After all, he
testified only about incidents which he personally ob-
served, confirmed his testimony on cross-examination,
was not contradicted by any other -witness, and was
indeed corroborated to some extent by the video tapes.
In short, Respondent has failed to impugn-Gross' reliabil-
ity either at trial or in brief.
C. Summary
In sum, I find without merit Respondent's defenses dis-
cussed in section B above, reaffirm my findings of fact in
section A, and conclude that Respondent is responsible
for the incidents of picket line misconduct set forth.
IV THE PROPOSED SETTLEMENT
The proposed settlement in this case provides for an
agreed-upon cease-and-desist order and the posting of a
notice. It also provides for the entry of a court decree. It
prohibits certain unlawful conduct addressed to employ-
ees of the Charging Party and to other employees at the
Charging Party's facility-a so-called narrow order. The
General Counsel and Respondent argue that a broad
order' prohibiting unlawful conduct against other em-
ployers at other locations is not warranted. The pro-
posed settlement also provides that the agreement of Re-
spondent does not constitute an admission that it has vio-
lated the Act As I have indicated, the Charging Party
opposes the settlement Indeed, I have been notified that
on November 30, 1984-less than 2 weeks after I was
notified of a possible settlement-new charges of viola-
tions of Section 8(b)(1)(A) have been filed by the Charg-
ing Party against Respondent. The General Counsel has
not yet acted on the charges as of the date of this deci-
sion. Notwithstanding the filing of new charges, the
General Counsel takes the position that the proposed set-
tlement should be approved.
I cannot approve the proposed settlement. It fails to
adequately resolve the instant case in two major respects.
First of all, the violations herein are clear, overwhelm-
ing, and unrebutted. They are also pervasive and serious.
There is no question that the General' Counsel has pre-
vailed in showing widespread and massive violations -in
this case. In these circumstances, a -settlement after close
of hearing which includes a so-called nonadmissions
clause would make a mockery of law enforcement.
Moreover, the use of a nonadmissions clause in-resolving
this case would preclude any reliance on this case as
showing proclivity to violate the Act in considering rem-
edies in the two other pending cases against Respondent
listed at footnote 2, supra. See Carpenters, Local 1622
(Robert Wood & Associates), 262 NLRB 1211, 1219-20
(1982), and cases there cited. -
Second, the proposed settlement's failure to provide
for the entry of a broad order renders it ineffective as a
matter of public policy. The evidence in this case estab-
lishes violations which are not only massive but also
touch the employees of many neutral employers aside
from the Charging Party. The truckdrivers of many neu-
trals were stopped and coerced. Moreover, one of the
pickets identified himself as an employee of Oakwood
Chair. He 'mentioned that Respondent would picket
Gross' suppliers and suggested, that Respondent would
engage in violence in an effort to shut down Gross as it
had Oakwood Chair. This theme of shutting down the
employer was also mentioned to Gross by Union official
Hart who also carried his activities-on one occasion to
the terminal of a neutral employer. More importantly,
there have been four other cases where the Board has
found similar conduct by Respondent to have been un-
lawful. See Teamsters Local 115 (E. J. Lavino & Co.), 157
NLRB 1637 (1966); Teamsters Local 115 (Continental-
Wirt Electronics), 186 NLRB 56 (1970); Philadelphia Am-
bulance Service, 238 NLRB 1070 (1978); Teamsters Local
115 (Carol Lines) (Case 4-CB-4649, ALJ decision March
19, 1984, adopted by the Board in the absence of excep-
tions April 24, 1984).
The General Counsel argues against use of these prior
decisions because some are remote in time and the fourth
one is an unappealed judge's decision which, although it
is strikingly recent, according to the General Counsel, is
also unusable to show proclivity to violate the Act. In
this respect, the General Counsel has made a serious
error. The General Counsel states that the Board has
"refused to base a finding establishing proclivity based
upon an Administrative Law Judge's decision to. which
no exceptions were taken," citing several Board cases.
However, those cases were specifically overruled in Op-
erating Engineers Local 12 (Associated Engineers), 270
NLRB 1172 (1984). It is thus clear that the Board may
rely on such decisions to show a proclivity to violate the
Act. (See also ALJ decision in Tri-State Building_& Con-
struction Trades Council, 257 NLRB 295 (1981).)5
In view of the record evidence in this case and the
prior violations against Respondent which are made
more relevant by the fact that they show an unabated
pattern with extensive violations repeated as recently as
1976 and 1983, I find that Respondent has demonstrated
a proclivity to violate the Act. In this context, a narrow
order is inappropriate.
In rejecting the settlement I have given full consider-
ation to the strength of the General Counsel's case, the
fact that the settlement came after the end of the trial,
when the resources of the Agency had already been ex-
pended 'to a great degree; and the propriety of the pro-
posed remedy. In view of respondent's utter failure to
provide a meaningful defense in this case or to present
any witnesses to contest the evidence of the General
Counsel, I 'find it quite impossible to sanction a settle-
ment after a full trial which would have been no differ-
ent from 'what could'' have been secured before trial.
Indeed, 'the' matter had been litigated to a certain extent
before August 30, 1984; when the District Court entered
a temporary injunction against Respondent. Accordingly,
S I do not rely on the formal settlement-much like the one proposed
in this case-which was approved by the Board in 1972 in Teamsters
Local 115 (J L Popowich & Sons), Case 4-CB-1875, because that settle-
ment contains a nonadmissions clause -
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that the settlement of the General Counsel- and the
Respondent does not- meet the requirement, that settle-
ments should effectuate the policy of the Act; it does not
adequately recognize the strength of the General Coun-
sel's case; nor does it save the time and effort of the
Government. See • Farmers Co-Operative Gin Assn, 168
NLRB 367 (1967) Indeed, in Farmers Co-Operative, it
was cautioned that the "Board must- evaluate the legal
and factual merits . . to-determine whether the allega-
tions of violations in the complaint can be so clearly-
proved that no remedy, less than the maximum, can be
accepted." Any-analysis of this case on that basis coin=
pels me to reject the settlement and issue my decision on
the record as presented to me.6
In accordance with the factual findings set forth in
section III of this decision I make the following -
CONCLUSIONS OF LAW
1. The Respondent has restrained and coerced employ-'
ees in-the exercise of their rights guaranteed under Sec-
tion 7 of the Act, in violation of Section 8(b)(1)(A) of
the Act, by the following acts and conduct. - - -
(a) By obstructing, blocking, and preventing ingress
and egress of 'vehicles, employees, and other persons to
and from the facilities of.Gross Metal Products, Inc. and,
in one instance, the facilities of Florida-Texas where
Gross Metal employees were making pickups or deliv=
eries, in order to prevent such vehicles, employees, or in-
dividuals from crossing Respondent's picket line.
(b) By threatening employees` and other persons with
violence and other reprisals if they crossed picket lines
or -because they ' crossed picket lines. set up by Respond-
ent. • .
(c) By assaulting or striking employees or"other"per;
sons, throwing objects or brandishing objects of employ-
ees or other `persons because they c'rossed' or attempted
to cross Respondent's picket line. • •
(d) By causing damage or attempting to cause. damage
to vehicles 'or other property because employees or other-
persons crossed or • attempted, to, cross; Respondent's
picket line. . . . " . - - .
(e) ,By mass picketing, pushing, shoving, chasing, or
spitting at employees. Pr other persons because they
crossed or attempted to.-cross Respondent's picket line.
2. .The aforesaid unfair labor practices affect commerce
within the ' meaning , of Section 2(6) and (7) of the Act.
THE'REMEDY " " .
I shall order- that the Respondent. cease and desist-from
the conduct found to have been unlawful and post an ,ap-
propriate. notice. For the, reasons,stated in, section IV 'of
6, The provision in' the proposed settlement , fort the entryi,of a court
decree to enforce the narrow order set forth therein does not make the
proposed settlement any more effective than the issuance of an order
after litigation because the Board may, petition for enforcement of its
order in either case In the meantime, an-injunction is,in effect which pre-
vents the misconduct and, although the injunction terminates on a date
certain, should Respondent continue to contest this matter, the General
Counsel would be warranted in seeking an extension of the 100)-injunc-
tion until the Board acts on the merits Protection is also afforded by Sec
10(e) of the Act in obtaining a temporary injunction after the Board's de-
cision but before court enforcement
this decision, the order herein will be a broad one pro-
hibiting specified unlawful conduct against any employer
in connection with picketing authorized by Respondent
and also prohibiting Respondent from restraining or co-
ercing employees in violation of Section 8(b)(1)(A) in
any other manner. Such a broad order is permissible
where, as here, the Respondent has demonstrated a pro-
clivity to violate the Act. See NLRB v. Union National
de Trabajadores, 540 F 2d 1, 11 (1st Cir. 1976), enfg
Board orders reported at 219 NLRB 405, 414, 429, and
862 (1975). See-also Carpenters Local 1622, supra, 262
NLRB 1211 fn. 1 and 1219-20; Electrical Workers IBEW
Local 3 (L. M. Ericsson Telecommunications), 257 NLRB
1358, 1373 (1981); General Service Employees Local 73
(Andy Frain, Inc.), 239 NLRB 295 (1978). -
I shall also include in the.order a provision-which
appears in a "somewhat different form in the proposed
settlement and which seems to me to be necessary to ef-
fectuate the purposes of the Act-that Respondent mail
copies of the notice to all striking employees of Gross
Metal and all other members or individuals who partici-
pated in the picketing at the Gross Metal facility. It is
clear from this record that Respondent utilizes and pays
individuals to picket on its behalf. These individuals
should be made aware that threats, violence, and coer-
cion are not to be tolerated as part of their picketing ac-
tivities Such notification is reasonably related to preven-
tion of similar unlawful conduct in the future and is
therefore an appropriate remedial device.
Because . the 'Respondent offered no - witnesses and
seemed not to have articulated ,a defense at the hearing, I
asked the parties to brief the issue of whether litigation
expenses ought to be imposed on Respondent 'Generally
speaking, the Board awards such expenses where a re-
spondent's defenses are deemed "frivolous" or taken in
"bad faith." See Autoprod, Inc, 265 NLRB 331. (1982), J.
P Stevens & Co., 239 NLRB 738, 772-773 (1978), re-
manded 'on- this issue 623 F 2d 322, 329 (4th Cir. 1980);
Heck's Inc., 215 NLRB ' 765 (1974); King Terrace Nursing
Home, 227 NLRB 251 (1976).
The 'question of litigation expenses in this case_ is a
close one. Here, although Respondent did cross-examine
two of the General Counsel's three witnesses, it agreed
to' the introduction of the video tapes which essentially
corroborated .some of the testimony offered at, the hear-
ing, and Respondent waited, -almost 2, months after the
close of the; trial ,before agreeing to a settlement which
could have been obtained prior to the hearing,, When Re-
spondent was pressed to, articulate a defense by filing a
brief'on the merits, it simply attacked credibility, focused
on only a few of the numerous allegations, or argued
that there was no coercion because employees were not
present during some of the incidents. Respondent has not
contestedthat in most instances employees were present
and that the incidents did occur- as related in the tapes.
Moreover; the'defense that Gross should not be credited
because-he used his notes without- specifically, being
asked whether he had exhausted his memory seems aw-
fully close to a frivolous argument.
On the other hand, the Board has apparently declined
'to take, the position that litigation expenses are to be
I
TEAMSTERS LOCAL 115 (GROSS METAL)
awarded where a respondent simply puts the General
Counsel to his proof and puts on no defense . See Kings
Terrace Nursing Home, supra I suppose Respondent's
cross-examination of witnesses and its arguments about
credibility in its brief provide just enough substance to
avoid a charge of proffering frivolous defenses . Respond-
ent did accept the weight of the evidence by agreeing to
the entry of an order against it after the evidence was
presented and presumably analyzed . It also argued that
the violations were not so serious that a settlement with
a nonadmissions clause and a narrow order would be ac-
ceptable. It actually convinced the General Counsel of
the persuasiveness of this position . These arguments were
based to a great extent on the weight and character of
the evidence . Nor is there any evidence of bad faith
which I can detect Accordingly, although , as I have in-
dicated , the issue presents a close question , I believe,
that, on balance, litigation expenses should not be award-
ed in this case I therefore decline to do so at this point.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed17
ORDER
The Respondent, Teamsters Local 115, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, Philadelphia, Pennsylva-
nia,,its officers, agents, and representatives, shall
1 Cease and desist from
(a) Restraining or coercing employees of Gross Metal
Products, Inc. or any other employer by (1) obstructing,
blocking, and preventing ingress and egress of vehicles,
employees and other persons from the premises of Gross
Metal Products or of any other employer; (2) threatening
employees or other individuals with violence or other re-
prisals; (3) assaulting or striking employees or other indi-
viduals or throwing or brandishing objects at them; (4)
causing damage to vehicles or other, property; (5) mass
picketing, pushing, shoving, chasing,-or spitting at em-
ployees or other individuals-because employees or
other individuals have crossed or attempted to cross Re-
spondent's picket lines.
(b) In any other manner restraining or coercing em-
ployees of Gross metal Products, Inc or any other em-
ployer in violation of Section 8(b)(l)(A) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Post at its offices and meeting halls in Philadelphia,
Pennsylvania, copies of the attached notice marked "Ap-
pendix."" Copies of notice, on forms provided by, the
17 If no exceptions are filed as provided by Sec 102 4 6 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
8 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the' notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
1557
Regional Director for Region 4, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Sign and mail sufficient copies of the notice to the
Regional Director for Region 4, for posting by Gross
Metal Products, Inc., should it wish to do so, at all loca-
tions where notices to employees are customarily posted.
(c) Mail to all individuals who were engaged in picket-
ing at the Gross Metal Products, Inc facility copies of
the notice set forth in subsection (b) above.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the National Labor Relations Act guaran-
tees all employees right to join and assist labor unions
and also the right with certain exceptions, to refrain from
joining and assisting labor unions, and to refrain from
participating in union activities, including strikes and the
support of strikes. ,
WE WILL NOT restrain or coerce-employees of Gross
Metal Products, Inc., or any other employer by (1) ob-
structing, blocking, and preventing ingress and egress of
vehicles, employees, and other persons from the premises
of the above-named Company or any other employer, (2)
threating employees or other individuals with violence
or other reprisals, (3) asaulting or. striking employees, or
other individuals or throwing or brandishing objects at
them; (4) causing damage to vehicles or other property;
and (5) mass picketing, pushing, shoving, chasing, or
spitting at employees or other individuals-because em-
ployees or other individuals have crossed or attempt to
cross Respondent's picket lines.' '
WE WILL NOT in any other manner restrain or coerce
employees of Gross Metal Products, Inc or any other
employer in violation of Section 8(b)(1)(A) -of the Act
TEAMSTERS LOCAL, 115, A/W INTERNA-
TIONAL ' BROTHERHOOD 'OF 'TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELP-
ERS OF AMERICA
U.S. GOVERNMENT PRINTING OFFICE:1986-1 6 5 -8 0 5 / 4 0 0 0 1