Teamsters Local 783

National Labor Relations Board - Board Decisions

Oct 11, 1966

160 N.L.R.B. 1776 (N.L.R.B. 1966)

17 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees are free to join or assist the Union above named , or not to do so,
without fear of reprisal or effect upon their tenure by reason of their choice either way.
SAXON PAINT STORES, INC., SAXON CENTRAL CORP ., SAXON
ROSELAND CORP., NIXON LABORATORIES , INC., NIXON HAR-
LEM CORP., NIXON 3 2ND CORP., NIXON CLARK CORP., NIXON
HALSTED CORP ., NIXON 87TH CORP ., NIXON STREATOR
CORP., NIXON 95TH CORP., NIXON VILLA CORP., NIXON
RACINE CORP., NIXON KENOSHA CORP ., NIXON HALES CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE -Notify the above -named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Act and the Universal Military Training and Service
Act, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 881
U.S. Courthouse and Federal Office Building, 219 South Dearborn Street , Chicago,
Illinois , Telephone 828-7597.
Teamsters Local 783, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America and Coca-
Cola Bottlin g Company of Louisville. Case 9-CB-1260. Octo-
bei' 17, 7966
DECISION AND ORDER
On March 25, 1966, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the of tached Trial Examiner's
Decision. Thereafter, Respondent and the Charging Party filed
exceptions to the Trial Examiner's Decision and supporting briefs.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board has
considered the Trial Examiner's Decision , the exceptions and the
brief, and the entire record in this case, and hereby adopts the find-
ings, conclusions , and recommendations of the Trial Examiner, with
the following modification.
We agree with the Trial Examiner that Respondent Union was
responsible for the repeated acts of misconduct and violence by the
strikers , thereby violating Section 8(b) (1) (A) of the National
Labor Relations Act, as amended. Our agreement, however, is based
on the fact that Respondent , which authorized the strike, knew of the
acts of misconduct and violence but took no steps reasonably calcu-
lated effectively to stop such acts.
160 NLRB No. 138.
TEAMSTERS LOCAL 783 1777
[The Board adopted the Trial Examiner's Recommended Order
with the following modification :
[1. Delete the paragraph in the notice attached to the Trial Exam-
iner's Decision starting with "WE WILL take ...."]
MEMBER BROWN took no part in the above Decision and Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard before Trial Examiner Frederick U. Reel at Louisville, Ken-
tucky, on January 26, 1966,1 pursuant to a charge filed the preceding August 11
and a complaint issued November 26,2 presents primarily the question whether the
Respondent, herein called the Union, is responsible for certain acts of restraint and
coercion committed by members or supporters of the Union against employees of
the Charging Party, herein called the Company, during the course of a strike in
June and July 1965. Upon the entire record,3 including my observation of the wit-
nesses, and including also the pertinent portions of Case 9-CA-3626 of which I
take official notice, and after due consideration of the briefs filed by the General
Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER, AND THE LABOR ORGANIZATION INVOLVED
The Company, a Kentucky corporation engaged in Louisville in the distribution
of carbonated beverages, annually ships in excess of $50,000 worth of products
directly to points outside the State, and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. The Union is a labor organization which at
all relevant times was the recognized certified bargaining representative of a num-
ber of the Company's employees. The Union has approximately 2,500 members,
employed by various employers in the area.
II. THE ALLEGED UNFAIR LABOR PRACTICES
On or about June 17, 1965, the Union called a strike against the Company, in
the course of which the misconduct occurred which forms the basis of this litiga-
tion. Briefly summarized, the evidence establishes the following:
A. Misconduct at the plant
On June 17, Assistant Plant Superintendent Thompson, watching the picketing
from a plant window, saw one Allen Martin, a picketing employee, dropping nails
on the plant driveway. Also on June 18 Company Vice President Crain Schmidt
saw nails in the driveway and admonished two pickets, one of whom, Charles
Wilson, replied that the Company "is getting tough, now I am going to get tough
and you better be damn careful." During the first 2 days of the strike, 18 cars at
the plant sustained flat tires caused by nails or tacks. On June 29 when employee
William Robinson arrived at work, striker Robert Brown told him to "get out of
the car" and threatened to beat him up. On July 1, as employee Thomas Rowe
was walking away from the plant at the end of his shift, striking employee Gene
1 Unless otherwise indicated all other events referred to herein occurred In the year 1965.
2 The answer was not filed until December 20. At the hearing counsel for the Charging
Party moved to strike the answer as untimely. I denied the motion upon the representation
of counsel for Respondent that the Respondent had advised the Regional Director that its
counsel was hospitalized, and was unable to file the answer within the time provided by
the rules.
3 I hereby correct the transcript as follows
Page 102, line 17, "made" should read "waved."
Page 133, line 8, "suprise" should read "sobriety."
Page 145, line 16, "Isenbeig" should read "Baker."
257-551-67-vol. 160-113
1778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Badger "took hold of Rowe's shirt around the collar and twisted the neck of the
shirt, and said he would twist Rowe's neck off." On July 6, as employee William
Antonini arrived at work, striker Julian Mathis threatened "to beat the hell out of
him." On July 13 Company President Schmidt, watching the picket line, saw striker
Richard Farrell (then in the company of striker Ray Rogers) throwing rocks at
plant windows and breaking them. On July 14 Advertising Manager Weinhart saw
a group of strikers across the street from the picket line, and observed one of them,
William Hudson, throw a glass bottle against a company truck as it drove past.
Also on June 18, Traffic Manager John McHugh saw striker Julian Mathis hit an
employee across the street from the plant, and also saw Mathis throw a beer bottle
through a company truck windshield. -
B. Misconduct away from the plant
The Union dispatched strikers - in cars to follow the trucks driven by company
employees, and to picket these trucks when they -stopped to deliver merchandise to
dealers. On July 11 employees Howard Wilson, Tom Davis, and William Quilty
were in a truck making deliveries, and when they stopped at Al's Bait House, two
cars containing strikers Robert Brown, James Clark, Wendell Trail, Arthur Wilson,
Jackie Skaggs, Jack Spears, Leonard Whitener, and Charles Buckman also stopped
there. As Howard Wilson stood watching the truck, while several of the strikers
were standing around him, he commenced to feel a burning sensation on his back.
He also saw Whitener attempting to put a nail in a tire of the truck, but Whitener
withdrew the nail when he saw Wilson watching him. The burning sensation
became increasingly severe and Wilson went to the store. As he entered he heard
a crash and saw that the truck windshield had been broken. Wilson collapsed in
the store from pain and nausea, and after he was revived was taken to the hospital
where he spent the night. He described his injury, which caused his back to blister
and peel, as similar to a very bad sunburn.
On or about July 9 while employees David McIntosh and Jerry Compton were
making deliveries at a grocery, they were attacked by certain pickets who had
followed their truck. McIntosh suffered a broken nose and two black eyes, and
Compton suffered a broken nose and the loss of two front teeth. The blows were
.struck by striker John Murphy, who was accompanied by strikers William Hudson,
John Simms, and Robert Taylor.
Employee Arthur Foote left the plant with employee Dwight Schuler on July 1
at the end of work and walked to a nearby establishment -to telephone Schuler's
mother for a ride home. Several strikers, who had followed them in a car, went
into the establishment and blocked their access to the telephone. When Foote and
Schuler emerged, striker Ray Rogers spoke to him. According to Foote's testimony:
Ray Rogers was threatening me and he said he knew where I lived and he
was going to be down there that night and he was going to get in to my wife,
he was going to bring four niggers with him and he was going to-he said
somebody else may take my job but I am going to be sure you don't He says
I am -getting hungry now and I don't give a shit and if I see your smiling face
across that line once more I am going to come in there and beat you. He said
I am going to beat your head off and if that don't work I will beat the shit
out of you and he said if that don't work I will ram a gun up your ass and
blow your head off and just generally along that line.
On July 28, shortly after employee Larry Routt left work on foot, striker Julian
Mathis drove up in a car, alighted, tore Routt's shirt from his back, struck several
blows in his face and chest, knocking one tooth loose, and kicked Routt after
knocking him down. On June 23, Vice President Schmidt saw striker Whitener
push a nail into a company truck while it was parked at a delivery site. Later a
second tire and the truck radiator were punctured at this same stop . Schmidt could
not tell who had punctured the radiator, but observed striker Roger Curry to be
standing alone near the second tire a few minutes before Schmidt and others heard
air escaping from that tire and found a nail in it similar to that found in the first.
C. The Union's defense
Conceding in its brief that "certain regrettable activity took place," the Union
contends that it is not responsible under the Act for the unauthorized activity of
ordinary pickets and strikers, who are not union officers, who were not acting
TEAMSTERS LOCAL 783 1779
within the scope of their employment by the Union, and whose violent acts were
not "initiated, authorized or condoned" by the Union .4
In support of this defense the Union adduced evidence that its secretary, its
business agent, and its counsel had admonished the pickets (those at the plant and
those following trucks) on more than one occasion to conduct themselves in a law
abiding manner. Upon hearing that these instructions had been violated, the busi-
ness agent would again tell the pickets that they were not to engage in violence or
similar misconduct. To quote his testimony, "we told them and retold them and
retold them what they were allowed to do and what they weren't allowed to do
I would like to say almost daily we told them."
None of the men identified as engaging in misconduct were officers or employees
of the Union, which is a large organization representing employees at many plants
in the area. A few of the men guilty of violence were members of the local bar-
gaining committee, namely Mathis, Rogers, Simms, Spears, and Taylor. Also
responsible officers or employees of the Union were normally present during the
picketing of the plant, although there is no direct evidence that they actually
observed any of the misconduct. Finally, although the union business agent "told
them and retold them and retold them" to conduct themselves properly, he admitted
that after hearing of the violence he did not take away any strike benefits from
any person who was repeatedly involved in violence, and he did not stop any such
person from being assigned to future duty following trucks.
D. Concluding findings
The widespread and serious nature of the misconduct in this case, and the
Union's failure to take effective steps to insure its discontinuance, lead me to find
that the Union was legally responsible therefor, and hence violated Section 8(b)
(1) (A). In so holding, I do not rely on the fact that some of the offenders were
members of the bargaining committee, a group which as a committee played no
role in the conduct of the strike. Where a picket line is the scene of repeated out-
breaks of the sort here described, the union which is in charge of the picketing
and which maintains some supervision over it, is responsible for such repeated
misconduct even though it did not direct the wrongful action and even if its
responsible leaders did not participate in the action or even themselves observe it.
Similarly when a union dispatches pickets to follow trucks and the pickets repeat-
edly engage in violence, the union is legally responsible for the repeated outbreaks
if it takes no effective action to curb the perpetrators and continues to dispatch
the same individuals on similar picket duty with similar consequences.
The record is clear, and indeed the Union admits, that responsible union leaders
were made aware of the repeated serious misconduct. Yet they took no effective
action to curtail it and imposed no restriction or penalty upon the perpetrators, but
were content with repeated ineffectual oral exhortations. Merely forbidding coercive
conduct will not suffice to relieve of responsibility therefor. District 50, UMW
(Tungsten Mining Corp.), 106 NLRB 903, 908, footnote 5.
The Union contends that under principles of agency and under various Board
and court decisions it cannot be held liable in'the absence of proof that its officers
or agents either participated in or actually observed the misconduct. In many cases,
of course, that feature is present and the Board or the courts have alluded thereto.
In cases where the misconduct is isolated or sporadic, the Union's liability may
turn on such features. But on this record, the proof that the Union had repeated
notice of the misconduct and failed effectively to control, repudiate, or disavow
it suffices to establish the Union's responsibility. Cf. N.L.R.B. v. Dorsey Trailers,
Inc., 179 F.2d 589, 593 (C.A. 5); N.L.R.B. v. Taylor Colquitt Co., 140 F.2d 92,
93 (C.A. 4).
CONCLUSIONS OF LAW
By engaging in threats of physical violence or actual violence against, or in the
presence of, company employees because of their continuing to work during a strike,
the Union has engaged in unfair labor practices affecting commerce within the
meaning of Sections 8 (b) (1) (A) and 2 (6) and (7) of the Act.
* I note In passing that this contention apparently did not find favor with the State trial
court which, on the basis of some of the acts described above, found the Union as well as
individual strikers In contempt of an injunction restraining such misconduct. The decision
Is pending on appeal to the highest court of the State.
1780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
I shall recommend the conventional cease-and-desist and notice-posting order,
the apparent limits under this Act for remedying this conduct. Local 612, Interna-
tional Brotherhood of Teamsters (Deaton Truck Lines, Inc.), 146 NLRB 498, 506.
Accordingly, upon the foregoing findings and conclusions and upon the entire
record, I recommend, pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
Respondent, Teamsters Local 783, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from restraining or coercing employees of Coca-Cola Bot-
tling Company of Louisville in the exercise of their rights guaranteed in Section 7
of the Act (including the right to refrain from joining or assisting Local 783) by
threatening or inflicting bodily harm to any employee or any member of his family
or by threatening or inflicting damage to'property.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Post in its offices and meeting halls copies of the attached notice marked
"Appendix." 5 Copies of such notice, to be furnished by the Regional Director for
Region 9, after being duly signed by an authorized representative of the Respond-
ent, shall be posted immediately upon receipt thereof, and be maintained by it for 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 insure 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 (Coca-Cola Bottling Co. of Louis-
ville being willing) at all places where notices to that Company's employees are
customarily posted.
(c) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.6
s In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for "the Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order."
O In the event that this Order is adopted by the Board, this provision shall be modified
to read, "Notify said Regional Director, In writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF TEAMSTERS LOCAL 783, TO ALL ITS OFFICERS AND
AGENTS: TO ALL EMPLOYEES OF COCA-COLA BOTTLING COMPANY OF LOUISVILLE
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
'Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members, officers, agents, and
all employees, of Coca-Cola Bottling Company of Louisville, that:
WE WILL NOT threaten or inflict bodily harm upon any employee or any
member of his family, and WE WILL not threaten or inflict any damage to
property because any employee exercises his right not to join or assist our
Union.
WE WILL take effective disciplinary action against union members or agents
who engage in such improper activity.
TEAMSTERS LOCAL 783, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELP-
ERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
THE JACKSON CO., DIV. OF SUMNER WILLIAMS, INC. 1781
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone
684-3627.
The Jackson Co., Division of Sumner Williams, Inc. and United
Steelworkers of America , AFL-CIO, Petitioner. Case 26-RC-
2601. October 11, 1966
DECISION ON REVIEW AND CERTIFICATION
OF RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election by the Regional
Director for Region 26, an election was conducted under his super-
vision on April 21, 1966, among the employees in the unit found
appropriate. At the conclusion of the balloting, the Regional Director
furnished the parties a tally of ballots which showed that 80 valid
ballots were cast, of which 35 were for, and 45 against, the Petitioner.
Thereafter the Petitioner filed timely objection to conduct affecting
the results of the election based solely upon certain statements con-
tained in preelection letters issued by the Employer to the employees.
In accordance with the National Labor Relations Board's Rules
and Regulations, Series 8, as amended, the Regional Director con-
ducted an investigation of the objection and, on May 26, issued and
duly served upon the parties his Supplemental Decision, Order, and
Direction of Second Election, in which he found that one of several
statements forming the subject matter of the objection warranted
finding that the Employer interfered with the employees' freedom of
choice, and accordingly sustained the objection. Thereafter, in accord-
ance with Section 102.69 of the Board's Rules and Regulations, the
Employer filed a timely request for review of the Regional Director's
Supplemental Decision. By telegraphic order dated July 25, 1966, the
Board granted the request for review and stayed the holding of a
second election. Thereafter, the Employer filed a brief.
.Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has considered the entire record with respect to the issue
under review, including the Employer's brief, and makes the follow-
ing findings :
We do not agree with the Regional Director that the following
excerpt from the Employer's March 11, 1966, letter to employees,
160 NLRB No. 144.