Teamsters Local 122

National Labor Relations Board - Board Decisions

Aug 20, 2001

334 N.L.R.B. 1190 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1190
Teamsters Local Union No. 122, International Broth-
erhood of Teamsters, AFL–CIO and August A.
Busch & Co. of Massachusetts, Inc. Cases 1–
CB–8563, 1–CB–8597, 1–CB–8727–2, 1–CC–
2529, and 1–CC–2541
August 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS TRUESDALE
AND WALSH
On January 16, 1998, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent filed exceptions and a brief in support and the
General Counsel and the Charging Party filed answering
briefs.
The National Labor Relations Board has delegated 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 briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified and to adopt his recommended Order as modi-
fied and set out in full below.
August A. Busch of Massachusetts, Inc. (the Em-
ployer) operates a beer storage and distribution facility in
Medford, Massachusetts. From this facility, it distributes
Anheuser Busch products to package stores, bars, and
restaurants, and other retail beer outlets in the Boston
area. The Respondent (the Union) represents two units
of Busch’s employees under separate contracts, a driver
unit of approximately 200 drivers, warehousemen and
helpers, and a plant clerical unit of approximately 25
employees. Both contracts expired November 13, 1994.
The parties commenced bargaining for new contracts in
both units on October 13, 1994. From October 13, 1994,
until September 11, 1996, the date of the last bargaining
session, the parties held 37 bargaining sessions in the
driver unit and 12 bargaining sessions in the plant unit.
The parties did not reach an agreement in either unit.
Shortly after Busch and the Respondent had com-
menced negotiations for new contracts, the Respondent
commenced a consumer boycott campaign against
Busch. In its consumer boycott campaign, the Respon-
dent engaged in a number of different types of activities
such as “group shopping trips,” “standouts,” “publicity
events,” and “demonstrations.”3 As explained at section
3 below, the Respondent had previously engaged in such
a consumer boycott campaign against Burke Distributing,
Inc., the Miller Beer distributor in the Boston area.

1 The General Counsel’s motion to strike the Respondent’s excep-
tions and that portion of the Respondent’s brief which relates to the
chart set out on pp. 4–7 of the brief is denied.
2 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We disavow the judge’s statement at sec. II,D,5, par. 6 of his deci-
sion, that the Respondent’s bargaining strategy here was one “more
commonly utilized by employers.”
The Respondent’s conduct found unlawful here oc-
curred in three separate but related areas: (1) the Respon-
dent’s conduct at a publicity event at the Pour House, a
Boston restaurant, on December 8, 1995; (2) the Respon-
dent’s conduct at a demonstration at Woody’s Liquors in
Boston on May 3 and 10, 1996; and (3) the Respondent’s
conduct during collective-bargaining negotiations with
Busch for new collective-bargaining agreements between
October 13, 1994, and September 11, 1996.
The judge found that the Respondent violated Section
8(b)(4)(i) and (ii)(B) by its conduct outside the Pour
House and that it violated Section 8(b)(1)(A) and
8(b)(4)(i) and (ii)(B) by its conduct inside the Pour
House. The judge further found that the Respondent
violated Section 8(b)(4)(i) and (ii)(B) by its conduct at
Woody’s Liquors on May 3 and 10, 1996. Finally, the
judge found that the Respondent violated Section 8(b)(3)
by its conduct during collective-bargaining negotiations
with Busch.4 We adopt the judge’s findings of these vio-
3 In group shopping trips, the Respondent’s members and supporters
clogged retail liquor stores that did business with Busch in an effort to
disrupt the businesses and deter customers from patronizing the stores.
In standouts, the Respondent’s members held consumer boycott signs
and banners at locations of high visibility such as highway intersec-
tions. At publicity events, the Respondent’s members demonstrated
with consumer boycott signs, banners, and handbills outside establish-
ments, such as bars and restaurants, that served Busch products and, in
addition, entered the establishments as customers to explain the reasons
for the boycott, to pass out “Budweasel” stickers (a cartoon depicting a
weasel in Budweiser clothing inside a circle with a line drawn through
it), and to urge consumers to support the boycott at the point of pur-
chase. At demonstrations, the Respondent’s members held banners and
placards and distributed leaflets and Budweasel stickers at locations
where Budweiser was featured prominently, such as sporting venues.
4 Specifically, the judge found that the Respondent violated Sec.
8(b)(3) by refusing to furnish information requested by Busch during
negotiations, by failing to meet with Busch at reasonable times and for
reasonable periods of time during negotiations, and by failing and
refusing to bargain in good faith with Busch.
Member Walsh agrees that the Respondent violated Sec. 8(b)(3) of
the Act by, inter alia, refusing to furnish the Employer with information
it requested about the Teamsters Local 122 Health and Welfare Fund, in
which the Employer participates on behalf of its unit employees pursu-
ant to its collective-bargaining agreements with the Respondent. Mem-
ber Walsh does not, however, rely on the judge’s finding and accompa-
nying discussion, in sec. II,D,4 of his attached decision, that the
Respondent was in de facto control of the Health and Welfare Fund.
Rather, he relies on the judge’s findings, in the same section, that the
Respondent failed to provide the Employer with relevant requested
334 NLRB No. 137
TEAMSTERS LOCAL 122 1191
lations, except that we find, for the reasons set out at
section 1 below, that the Respondent did not violate Sec-
tion 8(b)(4)(i)(B) by its conduct outside the Pour House
on December 8, 1995.5
As part of his remedy for the 8(b)(4)(i) and (ii)(B) ac-
tivity, the judge recommended a broad cease-and-desist
order. For the reasons set out at section 2 below, we
decline to issue a broad cease-and-desist order for these
violations. As part of the remedy for the 8(b)(3) viola-
tions, the judge ordered that the Respondent pay the
General Counsel’s and Busch’s litigation costs for that
portion of the trial in which the surface bargaining alle-
gations were litigated. The judge, however, refused the
General Counsel’s request to award Busch its negotiation
expenses. For the reasons set out at section 3 below, we
adopt the judge’s finding that litigation costs should be
awarded to the General Counsel and Busch. For the rea-
sons set out at section 4 below, we also find that Busch
should be awarded its negotiation expenses.
1. The Pour House
As explained above, the Respondent held a publicity
event at the Pour House on December 8, 1995. On that
evening, Busch was conducting a joint promotion with
radio station WZLX-FM at the restaurant. The radio
show was to run from 5 to 7 p.m. Chris Paquin, general
sales manager for WZLX, arrived at the Pour House
shortly after 5 p.m. As he entered the restaurant, the 8 to

information about the Fund that the Respondent possessed, and that it
also failed to make any effort to obtain other relevant requested infor-
mation about the Fund from other sources.
5 Member Walsh agrees that the Respondent violated Sec. 8(b)(4)(i)
and (ii)(B) of the Act by its conduct at the Pour House. He does not,
however, adopt the judge’s finding, in the penultimate paragraph of sec.
II,B,3 and in sec. II,B,9 of his attached decision, that destruction of the
fun atmosphere at the promotional event at the Pour House demon-
strates the coercive nature of the Respondent’s conduct.
Nor does Member Walsh adopt the judge’s finding in sec. II,B,9 that
the relatively large number of Respondent members that it sent into the
Pour House, and their confronting customers, demonstrate the unlawful
intent of the Respondent’s conduct.
Finally, Member Walsh does not agree with the judge’s statement in
sec. II,B,9, citing Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), that
the Respondent had no legal right to engage in solicitation or distribu-
tion of literature inside the private property of the Pour House or any
other retail establishment. Lechmere does not directly deny nonem-
ployee union representatives a right to solicit and distribute literature
on an employer’s private property. Rather, and more precisely, Lech-
mere establishes that an employer has the right (subject to certain ex-
ceptions not relevant here) to exclude or expel nonemployee union
representatives from its private property. Id. at 533–534, 538 (em-
ployer may validly post his property against non-employee distribution
of literature).
In finding that the Respondent’s conduct inside the Pour House vio-
lated Sec. 8(b)(4)(ii)(B) and 8(b)(1)(A) of the Act, Chairman Hurtgen
and Member Truesdale do not rely on the judge’s discussion of Lech-
mere, Inc. v. NLRB, supra.
10 picketers outside its front door urged him not to enter
the premises, asked him why he wanted to go in, and told
him to boycott Bud. When Kathleen Nunnery, an ac-
count executive at WZLX, entered the Pour House at
about 5:30 p.m., she had a similar experience. The 10 to
12 picketers asked why she was going in and told her she
did not want to go in. Susan Alexander, the WZLX ac-
count executive who had the Busch account, heard a
picket shout “Boycott Bud and WZLX” as she left the
Pour House later that evening.
Treating Paquin, Nunnery, and Alexander as prospec-
tive customers, the judge found that the Respondent vio-
lated Section 8(b)(4)(ii)(B) through the picketers’ state-
ments that urged a total cessation of business by prospec-
tive customers with both the Pour House and WZLX.6
We adopt the judge’s finding of this violation. Then,
treating Paquin, Nunnery, and Alexander as employees
of WZLX, the judge went on to find that by this same
conduct the Respondent violated Section 8(b)(4)(i)(B).7
For the following reasons, we reverse the judge’s finding
of this violation.
As explained in Service Employees Local 254
(Womens & Infants Hospital), 324 NLRB 743, 743
(1997), “Section 8(b)(4)(i)(B) proscribes inducing or
encouraging employees of a secondary employer to
strike.” Thus, the issue here is whether the picketers’
conduct in calling on Paquin, Nunnery, and Alexander to
boycott Busch and not to patronize the Pour House “was
designed to induce or encourage any neutral employer’s
employees to refuse to work.” Id. The resolution of this
issue turns on whether “such statements would reasona-
bly be understood by the employees as a signal or request
to engage in a work stoppage against their own em-
ployer.”8
6 As explained in Mine Workers (New Beckley Mining), 304 NLRB
71, 72 fn. 11 (1991), enfd. 977 F.2d 1470 (D.C. Cir. 1992):
Sec. 8(b)(4)(ii)(B) of the Act makes it unlawful, for a labor
organization or its agents to threaten, coerce, or restrain any per-
son engaged in commerce or in an industry affecting commerce,
where an object thereof is forcing or requiring any person to cease
doing business with any other person.
7 As explained in Mine Workers (New Beckley Mining), supra, 304
NLRB at 73 fn. 16:
Sec. 8(b)(4)(i)(B) of the Act makes it unlawful, among other
things, for a labor organization or its agents to induce or encour-
age any individual employed by any person engaged in commerce
or in any industry affecting commerce to engage in a refusal in the
course of his employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or
commodities or to perform any services where an object thereof is
forcing or requiring any person to cease doing business with any
other person.
8 In Los Angeles Building & Construction Trades Council, 215
NLRB 288, 290 (1974) (emphasis added), the Board observed that:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
As a preliminary matter, there is no evidence that the
picketers knew that Paquin, Nunnery, and Alexander
were employees of WZLX, a secondary employer. Thus,
their calls to these WZLX employees to boycott Busch
and WZLX and not to patronize the Pour House were
addressed to Paquin, Nunnery, and Alexander as poten-
tial customers of the Pour House. Indeed, since the calls
were to boycott Busch and WZLX, Paquin, Nunnery, and
Alexander could only have reasonably understood that
they were being addressed as consumers and not as em-
ployees of WZLX. Thus, the calls to boycott Busch and
WZLX could not have been reasonably understood as “a
signal or request” that Paquin, Nunnery, and Alexander
engage in a work stoppage against WZLX, their em-
ployer. Finally, Paquin, Nunnery, and Alexander did
not, in fact, withhold their services from WZLX. It can-
not be said, therefore, that the picketers’ conduct was
“designed to induce or encourage” Paquin, Nunnery, and
Alexander, in their status as employees of a secondary
employer, to withhold their services from WZLX. Ac-
cordingly, we shall dismiss this 8(b)(4)(i)(B) allegation.
2. Scope of the Order
As to the remedial issues set out above, the judge
found that the Respondent had a proclivity to violate
Section 8(b)(4)(B) of the Act and therefore found that a
broad cease-and-desist order was required to enjoin the
Respondent from engaging in future secondary activity
proscribed by Section 8(b)(4). In reaching this conclu-
sion, the judge relied on the fact that on three occasions
during the course of its consumer boycott campaign the
Respondent had engaged in conduct which warranted the
issuance of injunctions under Section 10(l) of the Act.
Of these three incidents, two involved conduct which
was part of the allegations in this case (at the Pour House
and Woody’s Liquors). The third, which involved
“group shopping” allegations, was settled after 4 days of
trial. The formal settlement agreement included a
nonadmissions clause.9 For the following reasons, we

The Supreme Court first interpreted the scope of the words
“to induce or encourage” in International Brotherhood of Electri-
cal Workers, Local 501, et al. [Samuel Langer] v. N.L.R.B., 341
U.S. 694 (1951). In that case, in the context of finding peaceful
picketing to be a form of inducement or encouragement pro-
scribed by Section 8(b)(4) where it had [a] secondary object, the
Court stated:
The words “induce or encourage” are broad enough to include
in them every form of influence and persuasion. [p. 701].
Since then, the Board has repeatedly found unlawful any
statement which agents of a union make directly to the employees
of a secondary employer if such statements would reasonably be
understood by the employees as a signal or request to engage in a
work stoppage against their own employer.
9 In finding that a broad cease-and-desist provision was warranted,
the judge also relied on the fact that a complaint alleging similar con-
find that this evidence does not establish that the Re-
spondent had a proclivity to violate the Act.
As the Board explained in Iron Workers Local 378 (N.
E. Carlson Construction), 302 NLRB 200, 200 (1991)
(emphasis added):

In Hickmott Foods, 242 NLRB 1357 (1979), the Board
held that a broad remedial “order is warranted only
when a respondent is shown to have a proclivity to vio-
late the Act or has engaged in such egregious or wide-
spread misconduct as to demonstrate a general disre-
gard for . . . fundamental statutory rights.” The Board
has applied the Hickmott standard in tailoring remedial
order language to protect the rights of neutral employ-
ees and employers to be free from secondary activity
proscribed by Section 8(b)(4)(B). E.g., Iron Workers
Pacific Northwest Council (Hoffman Construction),
292 NLRB 562 (1989). A determination of the need for
a broad order in each case turns on the nature and ex-
tent of violations committed by the respondent.

In determining that a broad cease-and-desist order was war-
ranted here, the judge found, in effect, that the 10(l) injunc-
tions issued against the Respondent and the formal settle-
ment evidenced violations committed by the Respondent.
However, it is well settled that neither preliminary injunc-
tions issued pursuant to Section 10(l) of the Act nor formal
settlement agreements which include a nonadmissions
clause establish that a respondent has actually committed
violations of the Act. As to the former, the Board observed
in Brotherhood of Teamsters Local 70, 191 NLRB 11, 11
(1971), that “preliminary injunctions based on a showing of
reasonable cause to believe a violation has occurred . . . do
not establish that violations of the Act have in fact been
committed.”10 As to the latter,

[u]nder Board precedent, formal settlement stipulations
which contain a nonadmissions clause have no proba-
tive value in establishing that violations of the Act have
occurred and therefore they may not be relied on to es-
tablish a proclivity to violate the Act.11

duct was issued, and subsequently settled, as part of the earlier con-
sumer boycott campaign against Burke Distributing. Since the record
does not establish that the settlement agreement that was part of the
Burke Distributing case was a formal settlement agreement without a
nonadmission clause, we shall not rely on it as evidence that the Re-
spondent had a proclivity to violate the Act, for the reasons set out at fn.
11 below.
10 See also Carpenters (Reeves, Inc.), 281 NLRB 493, 499 (1986).
11 Sheet Metal Workers Local 28 (Astoria Mechanical), 323 NLRB
204, 204 (1997) (footnote omitted). In Painters District Council 9
(We’re Associates), 329 NLRB 140, 143 (1999), the judge noted that
informal settlement agreements and formal settlement stipulations
containing non admission clauses cannot be used [to establish a pro-
clivity to violate the Act]. . . . Thus, the only type of settlement agree-
TEAMSTERS LOCAL 122 1193

Accordingly, since the preliminary injunctions and the for-
mal settlement agreement do not establish that the Respon-
dent has, in fact, committed violations of the Act, we cannot
find that the Respondent has a proclivity to violate the Act.
We therefore conclude that a broad remedial order is not
warranted here. We shall modify the judge’s recommended
Order by substituting a narrow remedial order for the broad
order included there.
3. Litigation costs
The judge found that the Respondent violated Section
8(b)(3) by, inter alia, failing and refusing to bargain in
good faith with Busch during their negotiations for suc-
cessor agreements to the collective-bargaining agree-
ments that expired in November 1994. As part of the
remedy for the violations, the judge ordered the Respon-
dent to pay Busch and the General Counsel their litiga-
tion costs for that portion of the trial in which the 8(b)(3)
allegations were litigated. For the reasons set out below,
we agree with the judge that Busch and the General
Counsel should be awarded their litigation costs.

In finding that both Busch and the General Counsel
should be awarded their litigation costs, the judge relied
on the Board’s decision in Frontier Hotel & Casino, 318
NLRB 857 (1995), enf. denied in part sub nom. Unbe-
lievable, Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997).
We agree with the judge that both Busch and the General
Counsel should be awarded their litigation costs. In
making the award of litigation costs we rely on both Sec-
tion 10(c) of the Act which grants the Board broad reme-
dial authority to “effectuate the policies of [the] Act,”
and our inherent authority to control our own proceed-
ings through an application of the bad-faith exception to
the American Rule against awarding litigation ex-
penses.12 As we explained in Frontier Hotel & Casino,
318 NLRB at 864:

the Supreme Court has recognized that the American
Rule is not absolute, and that in certain exceptional

agreements that can be used to establish proclivity to violate the Act is
a formal settlement, without a non-admission clause.
12 As the Board explained in Alwin Mfg. Co., 326 NLRB 646, 647
fn. 6 (1998), enfd. 192 F.3d 133 (D.C. Cir. 1999):
In its decision in Unbelievable, Inc. v. NLRB, 118 F.3d 795,
the court (Judge Wald dissenting) found that the Board did not
have the authority, under Sec. 10(c) of the Act, to order a respon-
dent to pay litigation costs incurred by the charging party and the
General Counsel. The court majority stated, however, that it was
not addressing the issue of whether, notwithstanding the lack of
statutory authority, the Board might have the inherent power to
control its own proceeding through an application of the bad-faith
exception to the American Rule against awarding litigation ex-
penses. 118 F.3d at 800 fn. *. For the reasons stated by Judge
Wald in her partial dissent, we find that we have this inherent au-
thority. 118 F.3d at 810, 812.
cases an award of attorney’s fees is appropriate, even in
the absence of a legislative grant of authority, where
“overriding considerations indicate the need for such a
recovery.” Mills v. Electric Auto-Lite Co., 396 U.S.
375, 391–392 (1970). Among these equitable excep-
tions is the bad-faith exception, under which “attor-
neys’ fees may be awarded to a successful party when
his opponent has acted in bad faith, vexatiously, wan-
tonly, or for oppressive reasons.” F. D. Rich Co. v. In-
dustrial Lumber Co., 417 U.S. 116 129 (1974). . . . In
Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980),
the Court acknowledged that the bad faith required by
the exception “may be found, not only in the actions
that led to the lawsuit, but also in the conduct of the
litigation” 447 U.S. at 766 (quoting Hale v. Cole, 412
U.S. 1, 15 (1973)).13

We find that both aspects of bad faith are present here.
The Respondent’s bad faith in negotiations with Busch
has been fully set out by the judge. In brief, the Respon-
dent pursued a two-prong strategy in its negotiations with
Busch with the objective of forcing Busch to sell the dis-
tributorship to an employer who would more readily
reach an agreement favorable to the Respondent. To
achieve this goal, the Respondent engaged in a strategy
of delaying negotiations while waging a consumer boy-
cott campaign against Busch, a strategy which, as noted
above, the Respondent had previously employed with
success against a Busch competitor, Burke Distributing,
the Miller Beer distributor in the Boston area. As John
Murphy, the Respondent’s secretary-treasurer, explained
in the June-July 1994 edition of The Labor Page (GC
Exh. 35):
Making good use of the Local’s lawyer, Stephen Do-
mesick, the union used detailed bargaining as part of
their [sic] strategy—by dissecting and arguing over
every sentence that [Burke] put on the table, making
detailed requests for information, and analyzing each
answer. From August 20, 1991 to September 22, 1993,
40 negotiating meetings were held. . . . This strategy
translated into time to develop the most successful con-
sumer boycott ever seen in Massachusetts. . . . By
January 1994, Miller Brewing Company recognized
that the only way to end the boycott was to get rid of
Burke Distributing and sell its franchise to an employer
who could do business with the union. Two months
later, Metropolitan Distributing Company became the
new Miller wholesaler and negotiated a decent contract
with Teamsters Local 122.

13 See also Alwin Mfg. Co., 326 NLRB at 647–648; Lake Holiday
Manor, 325 NLRB 469 (1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
The Respondent used this same strategy in bargaining
with Busch. By compelling Busch to bargain separately
for new contracts in the two units, by meeting only 32
times in the driver unit and only 17 times in the plant
unit over a 2-year period, by bargaining for only short
periods of time when the parties did meet for bargaining,
the Respondent purposely delayed the negotiating proc-
ess. Further evidence of the Respondent’s desire to frus-
trate the negotiating process is evidenced by its use of its
lawyer to engage in “detailed” bargaining and story tell-
ing to stall negotiations. The Respondent’s own burden-
some information requests were also designed to frus-
trate the bargaining process, as was its refusal to furnish
information requested by Busch. Clearly, as in its nego-
tiations with Burke Distributing, the Respondent’s bar-
gaining strategy was not to reach an agreement, but to
delay the bargaining process to give its consumer boycott
campaign time to work against Busch—as it had against
Burke. In sum, by using the bargaining process as a
weapon to achieve its goal of forcing Busch to sell the
distributorship, the Respondent amply demonstrated its
bad faith in negotiations.
We further find that the Respondent’s bad faith exhib-
ited in bargaining continued during the litigation of the
8(b)(3) allegations and also warrants the award of litiga-
tion costs. As the judge explained, the Board will award
litigation costs where the defenses raised are “frivolous”
rather than “debatable.”14 See Frontier Hotel & Casino,
318 NLRB at 860. We agree with the judge that the Re-
spondent’s defenses were frivolous because, simply put,
the Respondent chose not to put on any defense to the
8(b)(3) allegations. Rather, as the judge found, by pre-
senting “such a frivolous defense, Respondent made the
Board into an instrument of its own unlawful conduct.”
The Respondent did so by using this portion of the hear-
ing not to mount a defense against the 8(b)(3) allega-
tions, but to delay the bargaining process by engaging in
a 10-day cross-examination of Pat Knepper, Busch’s
general manager, a cross-examination which the judge
described as “abusive” and which only ended when the
judge intervened (Tr. 3777). As the judge further found,
the Respondent’s lawyer engaged in the same “detailed”
strategy and story telling in cross-examination as he had
in bargaining, and with the same purpose, to delay the
bargaining negotiations by drawing out the litigation.
In sum, the Respondent’s bad faith during negotiations
and its continued bad faith during the litigation of the
8(b)(3) allegations fully warrant the award of litigation
costs to Busch and to the General Counsel. In making

14 Chairman Hurtgen agrees with the award of litigation costs, but
only on the basis that the Respondent’s defenses in the litigation were
“frivolous” rather than “debatable.”
this award, we agree with Judge Wald’s statement in her
partial dissent in Unbelievable, Inc. v. NLRB, 118 F.3d at
810 (footnote omitted), that:

There can be scant doubt that awarding attor-
ney’s fees to a charging party who has been sub-
jected to surface bargaining and bad faith, frivolous
litigation effectuates the policies of the NLRA by di-
rectly remedying the economic injury incurred by
the party. In this regard, reimbursement for ex-
penses of litigation is no different from compensa-
tion for the costs of bad faith negotiation, which the
majority approves in this very case.

Having found that Busch and the General Counsel should be
awarded their litigation costs, we next address the issue of
whether Busch should be awarded its negotiation expenses.
4. Negotiation expenses
The judge declined to award Busch its negotiating ex-
penses because he found that although Busch “needlessly
spent a great deal of its resources in the one sided bar-
gaining process,” it still had the economic strength to
continue bargaining, while if the Respondent were or-
dered to pay negotiating expenses, it would put the Re-
spondent “in such an unfavorable financial position” that
it would not have the economic strength to return to the
bargaining table and adequately negotiate on behalf of its
members. For the following reasons, we find that Busch
should be awarded its negotiating expenses as well as its
litigation costs.
In Frontier Hotel & Casino, 318 NLRB at 859, the
Board set out the standard it would apply in determining
whether negotiating expenses should be awarded. There
the Board stated that:
[i]n cases of unusually aggravated misconduct . . .
where it may fairly be said that a respondent’s substan-
tial unfair labor practices have infected the core of a
bargaining process to such an extent that their “effects
cannot be eliminated by the application of traditional
remedies,” NLRB v. Gissel Packing Co., 395 U.S. 575,
614 (1969), citing NLRB v. Logan Packing Co., 386
F.2d 562, 570 (4th Cir. 1967), an order requiring the re-
spondent to reimburse the charging party for negotia-
tion expenses is warranted both to make the charging
party whole for the resources that were wasted because
of the unlawful conduct, and to restore the economic
strength that is necessary to ensure a return to the status
quo ante at the bargaining table. . . . [T]his approach re-
flects the direct causal relationship between the respon-
dent’s actions in bargaining and the charging party’s
losses.

TEAMSTERS LOCAL 122 1195
In our view, the Respondent’s bad faith in negotiations, as
described in the judge’s decision and set out at section 3
above, establishes beyond doubt that the Respondent’s un-
fair labor practices “infected the core of [the] bargaining
process to such an extent that their ‘effects cannot be elimi-
nated by the application of traditional remedies.’” This is so
because the Board’s traditional remedy of an affirmative
bargaining order, standing alone, will not make Busch
whole for the financial losses it incurred in bargaining with
the Respondent, financial losses which the Respondent di-
rectly caused, and intended to cause, by its strategy of bad-
faith bargaining. Reimbursement of negotiation expenses is
therefore warranted to make Busch whole for the costs of its
negotiations with the Respondent over a 2-year period and
to restore the status quo ante. In reaching this conclusion,
we note that the judge himself apparently found that such an
award was warranted here, but that he declined to give it
from fear it would place the Respondent at a disadvantage at
the bargaining table. We find that the judge erred by focus-
ing on the result of such an award, i.e., the Respondent’s
potential financial disadvantage, rather than on the justifica-
tion for such an award, i.e., that the award of negotiation
expenses “reflects the direct causal relationship between
the respondent’s actions in bargaining and the charging
party’s losses.” Frontier Hotel & Casino, 318 NLRB at
859 (emphasis added). In the present case, not only was
there a direct causal relationship between the Respondent’s
actions in bargaining and Busch’s losses, but the Respon-
dent’s very objective in bargaining was to create such losses
to weaken Busch financially and to force it to sell to another
employer. To refrain from awarding Busch its negotiation
expenses in these circumstances would, in effect, reward the
Respondent for its bad faith in bargaining. We decline to
reach such a result here.
Finally, in awarding Busch its negotiation expenses,
we note that neither the General Counsel nor Busch ex-
cepted to the judge’s failure to award those expenses.
However, the absence of exceptions does not foreclose
the Board from fashioning a remedy designed so far as
possible to restore the status quo ante,15 for “[i]t is well
established that the Board has broad discretion in deter-
mining the appropriate remedies to dissipate the effects
of unlawful conduct.” Westpac Electric, 321 NLRB
1322, 1322 (1996). Accordingly, we shall order the Re-
spondent to reimburse Busch its negotiation expenses.
The award of negotiation expenses will both dissipate the

15 As the Supreme Court explained in Franks v. Bowman Transpor-
tation, 424 U.S. 747, 769 (1975):
The task of the NLRB in applying § 10(c) is “to take measures de-
signed to recreate the conditions and relationships that would have
been had there been no unfair labor practice.” Carpenters v. NLRB,
365 U.S. 651, 657 (1961) (Harlan, J. concurring).
effects of the Respondent’s failure to bargain in good
faith and will help restore the parties to their relative
economic positions prior to the commencement of the
bargaining process.
ORDER
The National Labor Relations Board orders that the
Respondent, Teamsters Local Union No. 122, Interna-
tional Brotherhood of Teamsters, AFL–CIO, Boston,
Massachusetts, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Picketing or any similar or related conduct or in
any other manner inducing or encouraging any individual
employed by the Pour House, WZLX-FM, or Woody’s
Liquors to engage in a strike or refusal, in the course of
his employment, to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, mate-
rials, or commodities, or to refuse to perform any other
services, where an object thereof is to force or require
that person to cease doing business with August A.
Busch & Co. of Massachusetts, Inc.
(b) Picketing or any similar or related conduct, or by
any other means, threatening, coercing, or restraining the
Pour House, WZLX-FM, or Woody’s Liquors, where an
object thereof is to force or require that person to cease
doing business with August A. Busch & Co. of Massa-
chusetts, Inc.
(c) Threatening or assaulting employees or supervisors
of the Employer, August A. Busch & Co. of Massachu-
setts, Inc.
(d) Refusing to bargain collectively with August A.
Busch & Co. of Massachusetts, Inc. by refusing to fur-
nish it with information relevant and necessary to the
bargaining process and for monitoring the Respondent’s
contractual commitments, including information con-
cerning its exclusive hiring hall and health and welfare
plan.
(e) Refusing to bargain collectively with the Employer
by failing to meet at reasonable times and for reasonable
periods of time and failing to confer in good faith with
respect to wages, hours, and other terms and conditions
of employment.
(f) Engaging in any like or related conduct restraining
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish immediately to August A. Busch & Co. of
Massachusetts, Inc., the Employer, all information in its
possession or control requested in the Employer’s letter
dated November 2, 1994, as reflected in attachment A to
the complaint and notice of hearing in Case 1–CB–8563.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
(b) Furnish immediately to the Employer all informa-
tion in its possession or control requested in the Em-
ployer’s letter dated November 14, 1994, as reflected in
attachment B to the complaint and notice of hearing in
Case 1–CB–8563.
(c) On request, bargain in good faith with the Em-
ployer with respect to wages, hours, and other terms and
conditions of employment, and if an agreement is
reached, reduce that agreement to writing.
(d) Pay to the Charging Party Employer and to the
General Counsel all litigation costs incurred by them in
the trial of that portion of these proceedings dealing with
the 8(b)(3) complaint allegations, in the manner set forth
in the remedy section of the judge’s decision.
(e) Pay to the Charging Party Employer its expenses
incurred in collective-bargaining negotiations from the
commencement of negotiations on October 13, 1994,
until September 11, 1996, the date of the last negotiating
session.
(f) Within 14 days after service by the Region, post at
its union office and hiring hall in Boston, Massachusetts,
and on any union bulletin board(s) maintained by it at the
Employer’s facility in Medford, Massachusetts, copies of
the attached notice marked “Appendix.”16 Copies of the
notice, on forms provided by the Regional Director for
Region 1, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Within 14 days after service by the Region, mail a
copy of the attached notice marked “Appendix” to all
members and spare employees who were employed by
the Employer at its Medford, Massachusetts facility at
any time from the commencement of negotiations on
October 13, 1994, to January 16, 1998, the date of the
judge’s decision. The notice shall be mailed to the last
known address of each of the members or spare employ-
ees after being signed by the Respondent’s authorized
representative.
(h) Within 14 days after service by the Region, provide
the Employer sufficient copies of the notice to members
for posting by the Employer, if willing, at all places
where notices to employees are customarily posted.

16 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
APPENDIX
NOTICE TO EMPLOYEES AND 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.

WE WILL NOT by picketing or any similar or related
conduct, or in any other manner induce or encourage any
individual employed by the Pour House, WZLX-FM, or
Woody’s Liquors to engage in a strike or refusal, in the
course of his employment, to use, manufacture, process,
transport, or otherwise handle or work on any goods,
articles, materials, or commodities, or to refuse to per-
form any other services, where an object thereof is to
force or require that person to cease doing business with
August A. Busch & Co. of Massachusetts, Inc.
WE WILL NOT by picketing or any similar or related
conduct, or by any other means, threaten, coerce, or re-
strain the Pour House, WZLX-FM, or Woody’s Liquors,
where an object thereof is to force or require that person
to cease doing business with August A. Busch & Co. of
Massachusetts, Inc.
WE WILL NOT threaten or assault employees or supervi-
sors of August A. Busch & Co. of Massachusetts, Inc.
WE WILL NOT refuse to bargain collectively with Au-
gust A. Busch & Co. of Massachusetts, Inc. by refusing
to furnish it with information relevant and necessary to
the bargaining process and for monitoring our contractual
commitments, including information concerning our ex-
clusive hiring hall and health and welfare plan.
WE WILL NOT refuse to bargain collectively with Au-
gust A. Busch & Co. of Massachusetts, Inc. by failing to
meet at reasonable times and for reasonable periods of
time and failing to confer in good faith with respect to
wages, hours, and other terms and conditions of em-
ployment.
WE WILL NOT engage in any like or related conduct re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL furnish immediately to August A. Busch &
Co. of Massachusetts, Inc. all information in our posses-
sion or control requested in the Employer’s letter dated
November 2, 1994.
TEAMSTERS LOCAL 122 1197
WE WILL furnish immediately to August A. Busch &
Co. of Massachusetts, Inc. all information in our posses-
sion or control requested in the Employer’s letter dated
November 14, 1994.
WE WILL, on request, bargain in good faith with Au-
gust A. Busch & Co. of Massachusetts, Inc. with respect
to wages, hours, and other terms and conditions of em-
ployment, and, if an agreement is reached, WE WILL re-
duce that agreement to writing.
WE WILL pay to August A. Busch & Co. of Massachu-
setts, Inc. and to the General Counsel of the National
Labor Relations Board all litigation costs incurred by
them in the trial of that portion of these proceedings
dealing with our failure to bargain in good faith with
August A. Busch & Co. of Massachusetts, Inc.
WE WILL pay to August A. Busch & Co. of Massachu-
setts, Inc. its expenses incurred in collective-bargaining
negotiations with us.

TEAMSTERS LOCAL UNION NO. 122, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, AFL–
CIO

Kevin J. Murray, Esq., for the General Counsel.
Stephen R. Domesick, Esq., of Boston, Massachusetts, for the
Respondent Union.
James Bucking, Esq., of Boston, Massachusetts, for the Charg-
ing Party.
Caryn Fine, Esq., of St. Louis, Missouri, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This case
was tried in Boston, Massachusetts, on June 3–6, August 5–9,
September 16, October 1–3 and 7–10, November 12–15 and
18–20, 1996, and January 21–23, February 25, and March 3,
1997. The charges and amended charges in this matter were
timely filed. Various complaints and amendments to the com-
plaints were issued against Teamsters Local Union No. 122,
International Brotherhood of Teamsters, AFL–CIO (Respon-
dent or the Union). Respondent filed answers to each complaint
and amendment. At trial, on August 5, 1996, counsel for the
General Counsel moved to amend the complaint in Case 1–
CC–2541 to delete certain subparagraphs and to add others.
This amendment was granted. Respondent orally denied the
new allegations at trial. At trial, on August 5, 1996, counsel for
the General Counsel further moved to consolidate the consoli-
dated complaint in Cases 1–CB–8563 and 1–CB–8597 for trial
with the complaints in Cases 1–CC–2529, 1–CC–8727–2, and
1–CC–2541. This motion was granted over Respondent’s ob-
jection.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the follow-
ing
FINDINGS OF FACT1
I. JURISDICTION
August A. Busch & Co. of Massachusetts, Inc. (Busch or
Employer), a corporation, maintains a place of business in
Medford, Massachusetts, from which it engages in the whole-
sale distribution of beer in the Boston area. It is admitted that it
meets the jurisdictional requirements of the National Labor
Relations Act (the Act) and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. Teamsters Local Union No. 122, International
Brotherhood of Teamsters, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
A. Background and Issues for Determination
August A. Busch of Massachusetts, Inc. maintains a beer
storage and distribution facility in Medford, Massachusetts.2
From this facility it distributes Anheuser Busch products to
package stores, bars, and restaurants and other retail beer out-
lets in the greater Boston area. For many years the Union has
represented two units of Busch’s employees, one called the
drivers unit and the other the plant clerical and merchandisers
unit. The plant unit consists of about 25 employees and the
drivers unit consists of about 200 drivers, helpers, and ware-
housemen. Each unit has a separate contract reflecting the dif-
ferent nature of the work of the units. The most recent contract
covering each unit expired on November 13, 1994.
Prior to the contracts expiration, Busch’s management had
decided to change certain aspects of the working conditions of
the units. These changes primarily affected the drivers unit and
were designed to afford the Employer more day-to-day consis-
tency in its work force and to reduce its dependency on the
Union’s hiring hall for spare drivers and helpers. To say the
least, these proposed changes did not meet with acceptance by
the Union. As will be shown hereinaftter, it began a pattern of
surface bargaining, evidently to buy time for a consumer boy-
cott campaign it instituted against Busch shortly after negotia-
tions began. In the recent past, it had waged a similar campaign
against the Miller Brewing Co. distributor in Boston and had
forced that distributor to accede to its position. However, the
campaign against Busch has not been successful.
Respondent has engaged in a variety of types of activities as
part of its consumer boycott campaign against the Employer.
Respondent initially engaged in about 10 “group shopping”
trips. This conduct consisted of large numbers of Respondent’s
members and supporters “shopping” in retail liquor stores
which did business with Busch. Respondent’s members and
supporters entered the stores at the same time, generally stayed
1 The General Counsel and Charging Party have filed motions urging
me to strike the brief filed by Respondent. These motions are overruled.
2 The transcript in this proceeding has a major page number error.
The first week of hearing, June 2–6, is covered in pp. 1–858. The sec-
ond week of hearing, August 5–9, is covered by pp. 430–1384. There
are duplicating page numbers for hearing days June 5 and 6 and August
5, 6, and 7. The pages involved are 430 through 858, some 428 pages in
all.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
for about an hour, milling in the store and clogging aisles and
made small purchases with large denomination bills, creating
long checkout lines and deterring business from the retailer.
Respondent’s conduct was aptly titled by Business Week
magazine as “The Teamsters’ Shoppers From Hell.” This group
shopping conduct was enjoined under Section 10(l) of the Act
by the United States District Court on a petition filed by the
Regional Director. Pye v. Teamsters Local 122, 875 F.Supp.
921 (D.Mass. 1995), affd. 61 F.3d 1013 (1st Cir. 1995). The
underlying unfair labor practice case was thereafter settled on
the fourth day of litigation.
Respondent has engaged in about 200 “standouts,” which are
defined by Respondent as demonstrations where members hold
consumer boycott signs and banners at locations of high visibil-
ity, such as highway intersections.
Respondent has engaged in a series of “publicity events.”
This conduct includes demonstrating with consumer boycott
signs and banners and handbills outside an establishment, such
as a restaurant or bar, that serves or sells Busch products, but
also entering the establishment acting as consumers, telling
consumers why they are boycotting, distributing “Budweasel”3
stickers and urging them to support the boycott at the point of
purchase. There have been 50–60 such publicity events. About
5–10 of these publicity events have been held by Respondent at
promotions jointly conducted by Busch with a radio station.
One such publicity event conducted by Respondent was at the
Pour House on December 8, 1995.
Conduct engaged in by Respondent at the Pour House pub-
licity event was enjoined by the United States District Court
pursuant to a petition for injunction filed by the Acting Re-
gional Director under Section 10(l) of the Act. Simmonds v.
Teamsters Local 122, 928 F.Supp. 71 (D.Mass. 1996). The
enjoined conduct included making oral appeals to customers by
Respondent’s pickets not to patronize the Pour House and en-
gaging in conduct which interfered with the promotion, includ-
ing the shouting of anti-Busch slogans.
Finally, Respondent has also engaged in conduct it terms
“demonstrations,” defined as holding banners and placards and
distributing leaflets and “Budweasel” stickers at locations
where Budweiser is featured prominently. Such locations in-
clude sporting venues such as Fenway Park, Boston Garden,
Fleet Center, and Suffolk Downs. John Murphy, Respondent’s
secretary-treasurer, was unable to precisely describe the num-
ber of such demonstrations, which were perhaps in the neigh-
borhood of 50.
Conduct engaged in by Respondent at its demonstration at
Woody’s Liquors on May 3 and 10, 1996, was enjoined by the
United States district court pursuant to Section 10(l) of the Act.
Pye v. Teamsters Local 122, Civil No. 96-11250-PBS (D.Mass.
1996). The enjoined conduct included confronting and intimi-
dating customers, entering or blocking customers cars, physi-

3 The “Budweasel” logo has been used by Respondent on stickers
and placards throughout its dispute with the Employer. The logo is a
cartoon depiction of a weasel in Budweiser clothing inside a circle with
a line drawn through it. Respondent has distributed over 400,000 such
stickers during the course of its consumer boycott campaign against the
Employer.
cally or verbally harassing customers or employees, preventing
employees from parking or performing services and damaging
employee’s vehicles.
This consolidated proceeding was tried in three separate, but
related, segments. The first segment concerned allegations re-
lating to the Union’s demonstration at the Pour House on De-
cember 8, 1995 (the Pour House conduct). The second segment
concerned allegations concerning the Union’s demonstrations at
Woody’s Liquors on May 3 and 10, 1996 (the Woody’s con-
duct). The final segment concerned allegations related to the
collective-bargaining negotiations between Respondent and the
Employer which have been conducted since October 1994 (the
bargaining conduct). This decision is set out in the same man-
ner.
B. The Pour House Incident
1. Issues related to the Pour House incident
a. Did the Union’s picketing violate Section 8(b)(4)(i) and
(ii)(B) due to appeals by pickets to prospective customers not to
patronize neutral persons?
b. Did the Union’s demonstration and related conduct inside
the Pour House during a promotion conducted by radio station
WZLX-FM constitute unlawful restraint and coercion of neutral
persons in violation of Section 8(b)(4)(i) and (ii)(B)?
c. Did members of Respondent bump and threaten employees
and supervisors of the Employer during the Pour House demon-
stration in violation of Section 8(b)(1)(A) and (4)(i) and (ii)(B)?
d. Is Respondent liable for the conduct engaged in by its
members and supporters during the demonstration at the Pour
House on December 8, 1995?4
2. Background to the Pour House incident from the
Union’s prospective
The Union is run by its secretary treasurer, John Murphy, a
former Busch employee. As pertinent to this proceeding its
officers are James Hoar, president; Thomas Curtin, trustee;
Robert Smith, night steward; John Shea, alternate steward; Joe
Riley, alternate steward; and Dominic DiLoretto, who along
with Curtin and Smith are members of the Union’s negotiating
team. Under Murphy’s guidance, the Union engaged in a num-
ber of tactics in its boycott campaign. It had produced a large
number of picket signs, one bearing a comic depiction of a
weasel, called Budweasel. The sign says, ”This Bud’s not for
you.” Another set of signs say, “Boycott Bud.” One member
made a sign saying “Union Busting Is Family Busting,” and he
displayed this sign at publicity events.5 Members of the Union,
both Busch employees and others not employed by Busch who
were union members, and others who were not members, but
4 All dates in this section of the decision are in 1995 unless other-
wise noted.
5 The complaint in this matter initially contained an allegation that
Respondent’s picket signs did not meet the legal requirements of ade-
quately informing the public of the nature of the dispute so that the
businesses of secondary employers were properly protected. Following
the decision of the district court in the 10(l) injunction case, this allega-
tion was reconsidered. The General Counsel determined, based on the
facts of this case, that the allegation concerning the language on the
signs be withdrawn.
TEAMSTERS LOCAL 122 1199
supported the cause, would gather in various places in and
around Boston and display their signs to passing motorists and
pedestrians.6 Murphy called these gatherings “standouts.”
They would also conduct demonstrations at various places
where Busch products were sold, including package stores and
bars. They also demonstrated at crowd drawing events such as
baseball and basketball games and at places where Busch em-
ployees showed up to promote beer sales. It also conducted
what it calls “publicity events.” These are almost identical to a
demonstration, except that union supporters, in addition to
demonstrating outside the target of the demonstration, also
enter the premises. The Pour House incident was one such pub-
licity event.
Respondent’s conduct has evolved from its conduct in the
prior labor dispute involving the Burke Distributing Co., the
Boston distributor of Miller Beer and Busch’s primary
competitor. Respondent engaged in a virtually identical
consumer boycott against Burke utilizing the same tactics as it
has against Busch. These tactics, set out briefly above, were
described by John Murphy in The Labor Page article he
authored in June 1994. The confrontational nature of these
tactics was admitted by Murphy, who described them as “in
your face activities.” These same confrontational tactics carried
forward into the consumer boycott of Busch.
John Murphy testified that he attempts to attend and be in
charge of all of the gatherings of union supporters to further the
boycott, be it a standout, demonstration or publicity event. On
occasion he is unable to attend and in those instances, Union
President James Hoar is in charge. According to Murphy, if
neither is present, as was the case with the Pour House incident,
no one is authorized to be in charge. This is contradicted by the
testimony of Union Steward John Shea, who testified that he
was in charge of the Pour House demonstration and took it
upon himself to tell the bar’s manager and some police security
on the premises to come to him if there were problems.
Union member, and in December 1995, union trustee, Tho-
mas Curtin, testified about the procedure for calling and attend-
ing demonstrations. Curtin has been informed of standouts in
the past by Union President Jimmy Hoar, alternate Shop Stew-
ard Joe Riley, and Busch employees Frank Senna and Barry
Wright. He himself has called others to attend a demonstration
or standout. Curtin testified that a list of attendees is made for
each event by Murphy if he is present and by Joe Riley or
Jimmy Hoar if Murphy is not present. Riley made the list at the
Pour House event. Murphy testified that he maintains atten-
dance lists at standouts and demonstrations in order to protect
the Union from false claims of improper action at the events.
No demonstrations or publicity events are held without Mur-
phy’s approval. Thus if one is called, like the Pour House, the
Union and its officers are responsible, whether they attend or
not. Murphy authorized the Pour House event and caused
members and supporters to be notified about the event. More-
over, picket signs and banners used at the Pour House demon-
stration were paid for by the Respondent. A handbill, edited
6 The signs are transported from demonstration to demonstration by
either a member or a user of the hiring hall.
and approved by Murphy, was distributed at the Pour House to
its customers.
3. Background to the Pour House incident from the prospective
of Busch and WZLX-FM
In 1995, Busch and Boston radio station WZLX-FM engaged
in a joint promotion effort. On Friday nights, the station staged
a Busch sponsored, 2-hour live broadcast originating from a
local bar or restaurant that has an account with Busch.7 This
broadcast was called Chuck’s Bar and Grill and was hosted by
a station disk jockey, Chuck Nowlin, who, inter alia, would
conduct on the air trivia contests, engage in conversations with
patrons of the involved establishment and give away trivia con-
test prizes. Prizes given to patrons were usually items promot-
ing the station, Busch products, or other station advertising
accounts. The station tried to create a fun, lively atmosphere to
enhance the station’s image and increase its listenership. Busch
sponsored the events to further the sales of its products.
During the fall of 1995, following the expiration of the first
injunction in the group shopping case, Respondent held public-
ity events during three Chuck’s Bar and Grill promotions run
by WZLX-FM—at the Harp, a promotion which was canceled,
at the New Place and at Jose MacIntyre’s. Respondent engaged
in a variety of conduct which disrupted these promotions, in-
cluding heckling the DJ Chuck Nowlin. Because of Respon-
dent’s disruptions, Nowlin refused to perform any further pro-
motions. WZLX-FM canceled the Chuck’s Bar and Grill pro-
motions because of Respondent’s interference. After some dis-
cussions, WZLX-FM agreed to one more promotion condi-
tioned on Busch providing a security detail for the safety of
station personnel. WZLX-FM had the right not to broadcast live
because of the potential of Respondent’s heckling over the air.
Following this agreement with Busch, the station scheduled a
show to originate at the bar called the Pour House, on Boylston
Street in downtown Boston. The Pour House show was pro-
moted in advance. The Union attended this promotion in large
numbers, some 31 supporters showing up to demonstrate. Some
of the union supporters sat inside the restaurant while others
picketed outside with the signs noted above. Because the night
was cold, some demonstrators would picket for a while and
then change places with a demonstrator inside the bar. It is
alleged in the complaint that the actions of the outside picketers
had a secondary object, evidenced by the actions of the mem-
bers in appealing to potential patrons of the bar not to enter the
establishment. Members inside are alleged to have violated the
Act in a number of ways. It is alleged they deliberately shouted
anti-Busch slogans during the broadcast to disrupt the promo-
tion and engaged in confrontations with patrons. They are al-
leged to have won and destroyed prizes during the promotion
and passed out Budweasel stickers to patrons. Certain members
are alleged to have threatened Busch management and engaged
in physical bumping of members of Busch’s management. The
actions of the members at the Pour House destroyed the fun
atmosphere of the promotion, and taken together with other
demonstrations that had occurred at prior Chuck’s Bar and Grill
7 Busch is the station’s largest sponsor, amounting to about 4 or 5
percent of the station’s total revenue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
broadcasts, led the station to believe it could no longer partici-
pate in the joint promotion with Busch.
Chris Paquin, general sales manager of WZLX-FM, testified
that his station has no labor dispute with the Union, and has no
corporate relationship with Busch. The Pour House show was
to differ from previous ones in that the station chose not to do
the live, on air broadcast element of the promotion. This was
because some previous shows had been disrupted by the Union,
and an unpleasant atmosphere had been created, defeating the
fun purpose of the promotions.8 This decision not to broadcast
the show live had not been announced to the public and was not
announced to the patrons of the Pour House on the night of the
promotion. In addition, the regular disk jockey for the series
refused to do the show because of the unpleasantness of the
previous shows where the Union had demonstrated. Because of
these past problems, Paquin attended the Pour House show to
see for himself what disruptions the Union caused.
4. Actions on the picket line
The show’s timeslot was 5 to 7 p.m. Paquin arrived about 10
or 15 minutes after 5 p.m. As he approached the restaurant, he
saw 8 or 10 picketers outside its front door. Paquin entered the
restaurant quickly to avoid dealing with the picketers. They
yelled at him as he entered, urging him not to enter the prem-
ises, asking why he wanted to go in, and telling him to boycott
Bud. It was Paquin’s perception that the picketers were encour-
aging him not to patronize the Pour House. A similar experi-
ence was had by Kathleen Nunnery, who at the time, was em-
ployed by WZLX-FM as an account executive. She attended
the Pour House promotion with a female friend visiting from
out of town. She arrived at the Pour House at 5:30 or 5:45 p.m.
and saw 10 to 12 picketers wearing Teamsters insignia. As she
entered the establishment, the picketers asked her why she was
going in and told her she did not want to go in. She believed
they were asking her not to enter the bar. Additionally, the
picketers moved toward her as she entered the bar and she felt
they were trying to physically intimidate her and her friend.
Susan Alexander is employed as an account executive with
the station and is in charge of the Busch account. She testified
that the Chuck’s Bar and Grill promotions had been going on
for 4 years. She attended the promotion at issue here and as
she entered the bar, was handed a flyer by one of the picketers.
The flyer depicts a man with his hair forming devil’s horns
standing over a pile of money, with a graph on the wall behind
him showing profits going up. It states in bold letters, “Bud-
weiser bloats profits by squeezing its workers. You can fight
the Bud Bloat.” It states in smaller letters, “help us: keep our

8 WZLX Account Executive Susan Alexander had attended another
Chuck’s Bar and Grill promotion in November at a bar/restaurant
called The New Place. She testified that at this promotion there were a
large number of union supporters inside and many were drunk. The
disk jockey was giving away prizes to persons who put their names in a
box from which he drew winners. The union people were putting
names like Budweasel on the slips as well as the names of Busch’s
managers. There was also shouting of boycott Bud and Budweasel at
this promotion. At the next promotion, similar events occured. The
station then decided future promotions would not be live broadcasts.

jobs, protect a decent standard of living, provide for our fami-
lies and prevent ‘voluntary retirement’ of older workers. An-
heuser-Busch scored record profits in 1994. Growing profits as
the workers’ expense is a bad brew. Call Budweiser at (phone
number) and tell them you’re boycotting Bud and Bud Light.”
Upon leaving the bar later that evening, Alexander heard a
picketer shout, “Boycott Bud and WZLX.”
I credit the testimony of Paquin, Nunnery, and Alexander as
set out above.
5. Actions inside the Pour House affecting the station’s ability
to conduct the promotion
When Paquin went inside the bar, he saw some station per-
sonnel, including the replacement disk jockey for the night,
Tom Sheridan, engaged in setting up a station display table.
There were seven or eight persons in a group on the other side
of the room. One member of this group was wearing a number
of Union insignia and thus Paquin assumed the group was com-
posed of union supporters. In addition to this group and the
station employees, there were about 10 or 12 other patrons in
the bar area of the restaurant. They were grouped at the back of
the bar area near a narrow hallway to another bar room and the
bathrooms. About twenty after 5 p.m., Sheridan went to the
microphone which transmitted a signal to a PA system. He
welcomed the crowd to the Pour House and the night’s promo-
tion. Almost immediately, he was greeted by a chorus of Bud-
weasel heckles and shouts of boycott Bud from the group of
union supporters. Had the broadcast been live, the shouts would
have been heard over the air.9 One witness described the activ-
ity as trying to interrupt Sheridan and stop patrons from having
fun. This break ended and a few minutes later, Sheridan began
a trivia give away contest.10 He asked a question which was
answered correctly by a patron, who was given a hat. The next
question was answered correctly by a union supporter and he
was given a hat. This man threw the hat to the floor, stomped
on it, then picked it up, and tried to tear it. This hat had on it the
logo of another sponsor of the station, not Busch. Paquin noted
to the man that he had just destroyed a good hat that did not
mention Bud. The man then threw the hat in the direction of
Sheridan. Paquin described the atmosphere as hostile. Paquin
told Sheridan to stop the promotion and Sheridan turned off the
microphone. As soon as he did this, the heckling stopped.
Sheridan was very upset. Paquin looked around and saw that a
number of customers had left during the heckling episode.
Nunnery also testified about the events inside the promotion.
As she entered she observed a group of men standing in front of
Sheridan. They were shouting at him, saying Budweasel. He
9 Some witnesses presented by the Union, including Shea and
Lesniak, indicated that it was nonunion patrons who yelled Budweasel
and Boycott Bud. I do not believe this testimony and do believe that
given by Paquin and the other radio station employees. I make the same
credibility determination with respect to the atmosphere of the upper
bar, where the promotion was being held. Thus, in this regard, I credit
the witnesses presented by the General Counsel over those presented by
the Union. I found the testimony of the union witnesses in this regard to
be fabricated.
10 Some witnesses identified this as the first microphone break by
Sheridan, and others the second such break. All remembered that there
were two breaks. I accept the version as recounted above.
TEAMSTERS LOCAL 122 1201
was holding a torn hat one of the men had thrown to him. As
soon as he cut off the mike, the men quieted down. Some of
these men wore union insignia. She said that Sheridan, who is
very comfortable with public appearances, appeared frazzled.
He did not conduct any more giveaways that evening.
Paquin described the situation as bad for the station, the res-
taurant, and Busch. Nunnery, the station account executive
assigned to the Busch account, felt that the demonstration, and
especially the treatment of Sheridan was aimed at the station.
She was unhappy with the demonstration because it meant the
station would cease this type promotion for Busch and would
cause her problems with her account. For the next hour, the
station just played music in contrast to its usual procedure of
doing from four to eight trivia breaks per hour. About 6:15
p.m., they were asked to leave by the bar manager.
At about this time, Nunnery observed Sheridan on the public
phone in the bar’s hallway. As he left the phone, he engaged in
some conversation with the union men and became very un-
comfortable. Another station employee went over and pulled
him away from the group. She described the atmosphere in the
bar as tense and not a fun place you would want to be after
work. She testified that the union men were trying to take over
the bar and it made the other patrons uncomfortable. She de-
scribed other Chuck’s Bar and Grill promotions where no dem-
onstrations had occurred and described them as a really good
time with patrons having fun. She said these were the direct
opposites of the scene at the Pour House.
The station personnel left about 6:30 p.m. to the applause of
the union supporters. Paquin believed this signified that they
had won a victory getting the station and Busch people to
leave. When Paquin left, he noticed that the picketers were still
in front. As noted above, prior to this event, there had been
demonstrations at other station promotions with Busch and the
station had given notice to Busch, it might stop them if prob-
lems continued. After the Pour House incident, the Chuck’s Bar
and Grill promotion was ended for the year and did not resume
until the summer of 1996, when the district court issued its
injunction in the companion 10(l) case. In the period between
the Pour House promotion and the next one held, about 8 to 10
other promotions would have been held except for the Union’s
actions.
I credit the testimony given by Paquin and Nunnery as set
out above and to the extent that testimony offered by Respon-
dent contradicts it in whole or in part, that testimony is discred-
ited.
6. Actions by union supporters with neutral patrons of the
Pour House
Busch’s retail service supervisor, Ronald Sanchez, attended
the demonstration from about 5:45 p.m. until its conclusion
around 6:30 p.m. During the course of the evening, he observed
inside the bar Dominic DiLoretto, a member of the negotiating
team, Bobby Smith, the Union’s night steward at Busch, Joe
Riley, an alternate shop steward, and John Shea, alternate shop
steward. Sanchez observed these union members talking with
patrons and in some instances, giving patrons Budweasel stick-
ers. Sanchez testified he overheard a comment by a patron that
one of the union members had yelled at a woman customer, “I
gave you a sticker, where the fuck is your sticker.”
Busch’s marketing coordinator, Pat McCoy, attended the
promotion from about 4:30 until 6:30 p.m. Just before he left,
he saw union member John Shea approach two patrons and give
them a Budweasel sticker. The patrons had been drinking Bud,
but purchased another brand after speaking with Shea.
Eric Holt is a Busch group marketing coordinator who at-
tended the Pour House promotion. While he was in the bar he
saw a union supporter approach a male and female patron. He
told the man, “Don’t drink Budweiser.” The male patron re-
sponded, “I want to drink Budweiser. Why don’t you leave me
alone.” The union supporter continued, “You don’t understand
the situation. Hey, this is what’s going on.” The two continued
arguing, their voices rising. The union supporter moved close to
the patron, who got up. At this point another union supporter
pulled the one arguing away. The police in the bar moved to the
area, and were stopped by the patron, who said the confronta-
tion was over. This testimony was more or less corroborated by
Union Alternate Steward John Shea, who identified the union
supporter as Charlie Campbell. Shea was the union supporter
who pulled Campbell away from the situation.
Shea also testified, inter alia, that while he was in the bar, he
began talking with two young women and a man at the bar.
They asked what his Budweasel sticker was about and he told
them. They then refused a free beer being offered patrons by
Busch. He offered a sticker to the group and the women and the
man took one. The women went to the restroom and when they
returned, one raised her skirt and showed Shea she had affixed
her sticker to her leg.
Union member and demonstrator at the Pour House, Carmen
Cecere, testified that while at the Pour House, he was asked by
four male patrons what the demonstration was about. He ex-
plained and they thereafter did not buy any more Budweiser
products. He later spoke to three people at the bar who wanted
to know what was going on. He explained and offered to pay
for a replacement drink for the Buds they were drinking. They
took him up on the offer.
I credit the testimony and evidence set out above. To the ex-
tent that there is any testimony in the record which contradicts
it in whole or in part, I discredit the contradictory testimony.
7. Actions taken against Busch management during
the demonstration
a. The cursing and bumping of Pat McCoy
At about 6:10 p.m., Busch Marketing Coordinator Pat
McCoy went to the bar’s pay phone. Upon his return, he had to
pass through a group of union supporters. One of these support-
ers, Carmen Cecere, said to a Busch spare employee, Jeff
Lesniak, “Here comes one of the weasels.” Lezniak then
bumped McCoy in the back as he passed by.11 This incident

11 As will be discussed in more detail in a different context, Busch
employs a number of permanent drivers, helpers, and warehousemen on
a permanent basis. However, because of fluctuations in demand for
product on a day-to-day basis, and because of absenteeism problems, it
relies to a significant extent on the use of spare employees sent on a
daily basis from the Union’s hall. Some spares work virtually full time
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202
was observed by Ronald Sanchez, who corroborated McCoy’s
testimony. Lesniak asserts that when McCoy walked through
the group of union supporters he “flagrantly” bumped shoul-
ders with Lesniak. Lesniak denies knowing McCoy was associ-
ated with Busch until after the bumping incident. Union mem-
ber Carmen Cecere also testified that McCoy bumped Lesniak,
but described the incident differently than Lezniak. Having
considered the matter at length, I credit the testimony of
McCoy and Sanchez and discredit that of Respondent’s wit-
nesses.
When McCoy first arrived at the Pour House that evening,
he was greeted by a number of picketers. One of them, Tom
Curtin, yelled at him, “There goes the pussy.” As McCoy left
the premises later, Curtin called out to him from a booth in the
bar, “Fucking faggot.” I credit McCoy’s testimony and dis-
credit that of Respondent’s witnesses, including Curtin, to the
contrary.
b. The bumping and threatening of Ronald Sanchez
Shortly after the McCoy bumping incident, Sanchez was dis-
cussing it with McCoy. A union member, Tommy Curtin,
bumped Sanchez in the back. Sanchez turned and, according to
Sanchez, Curtin said, “Watch who the fuck you’re bumping
into.” Sanchez replied, “Tommy, I didn’t bump into you.” Cur-
tin again accused Sanchez of bumping into him and Sanchez
again denied it. The encounter ended with Curtin yelling “fuck
you,” to Sanchez. McCoy was present for this incident, but did
not see the bumping occur. Curtin had been a long time em-
ployee of Busch who had been fired in August 1995 for taking
Busch advertising banners from Busch’s trash.
Curtin, who shortly before this incident had been picketing,
came back into the bar at 5:30. He testified that he made his
way through a crowd and accidentally bumped into Sanchez,
who, according to Curtin, made an exaggerated move back-
ward, pushing Curtin back. Curtin testified that he said, “What
do you think you are doing?” Sanchez said, “You pushed me.”
Curtin denied this accusation and Sanchez said, “Fuck you, you
did.” Curtin then said, “Fuck you, you fucking piece of crap,”
and walked away. Curtin denies saying anything to McCoy in
the bar and denied hearing anyone else he was with say any-
thing to McCoy. I credit Sanchez’ testimony in this regard and
discredit that of Curtin.
Later in the evening, Sanchez had a conversation with Busch
employee and union member Lou LaRosa near the pay phone.
LaRosa approached Sanchez and asked if he knew Charlie
Campbell.12 Sanchez said he knew him, and LaRosa said, “He
told me to tell you he’s going to be your worst nightmare. He
told me to tell you he’s going to be the nigger in your daugh-
ter’s bed.” LaRosa at this point turned and walked away, saying
“[I]t was worth the $20.00 I got to tell you that.” Sanchez said,

at Busch, though dispatched to work there from day to day. Spares may
or may not be members of the Union. Union members pay monthly
dues of $34 and nonmember spares pay hiring hall fees of $40 a month
to be referred for work.
12 Charlie Campbell is a black warehouse employee of Busch and is
a union member. He was at the Pour House during the promotion.
Following this incident, Campbell and LaRosa were interviewed by
upper management, and subsequently LaRosa was fired.
“$20.00?” LaRosa said, “Yes, it was worth it to tell you.”
McCoy was present for this conversation and corroborated
Sanchez’ testimony.
Sanchez has a young daughter, a fact known to LaRosa. San-
chez viewed LaRosa’s statement as a threat, reporting the inci-
dent to local police and his children’s school. At his request,
Busch paid to have a security system installed at his home.
Louis LaRosa was employed by Busch as a spare in March
1986 and made a regular employee in September 1989. LaRosa
testified that while at the Pour House on December 8, Camp-
bell, a man in his mid-40s, was chasing some young women
around the bar and joking with LaRosa. LaRosa commented
that he should quit robbing the cradle, that LaRosa had two
young daughters himself. Campbell said that LaRosa should be
careful or he would come chase LaRosa’s girls, adding that
would be LaRosa’s worst nightmare, a black man waking up in
his daughter’s bed. At one point in his direct testimony he indi-
cated this is what he told Sanchez. At a later point, he testified
that he told Sanchez, in response to Sanchez asking him why he
was laughing, “Charlie Campbell.” According to LaRosa, San-
chez said, “Yeah?” LaRosa said, “He could be your worst
nightmare.” Sanchez said, “How’s that?” LaRosa replied, “A
black man in your daughter’s bed.” Busch’s management did
not believe this story, nor do I. I credit the testimony of San-
chez and McCoy in this matter and discredit the testimony of
Respondent’s witnesses in this regard.
The Pour House incident ended at around 6:15 or 6:30 p.m.
when the bar’s manager told McCoy that he was canceling the
promotion. The manager told Shea he was canceling the event
and asked Shea to have the union supporters leave the premises.
McCoy passed the word on to the radio station personnel, and
the Busch promotion team and the radio personnel left with the
police security unit at about 6:30 p.m.
8. Respondent’s picketing at the Pour House violated Section
8(b)(4)(i) and (ii)(B) of the Act by its oral appeals not to pa-
tronize the Pour House and to boycott WZLX-FM
The picketing Respondent conducted at the Pour House on
December 8, 1995, was in furtherance of its consumer boycott
campaign against the primary employer, Busch. There is no
contention that Respondent was engaged in any labor dispute
with The Pour House, a retailer of Busch products, or with
WZLX-FM, which advertised Busch products. The Supreme
Court has found such consumer boycott activity to be lawful
where it is employed only to persuade customers not to buy the
struck product of the primary employer with whom the union
has a dispute. The picketing must be directed only at the struck
product of the primary employer and must be fully isolated
from the neutral employer’s own business. NLRB v. Fruit &
Vegetable Packers & Warehousemen Local 760, 377 U.S. 58
(1964).
In Fruits & Vegetables, the Court distinguished the situation
where consumer picketing is employed to persuade customers
not to deal at all with a secondary employer, finding such pick-
eting to be prohibited. The Court stated, in relevant part, 377
U.S. at 63–64:

All that the legislative history shows in the way of an “iso-
lated evil” believed to require proscription of peaceful con-
TEAMSTERS LOCAL 122 1203
sumer picketing at secondary sites, was its use to persuade the
customers of the secondary employer to cease trading with
him in order to force him to cease dealing with, or to put pres-
sure upon, the primary employer. This narrow focus reflects
the difference between such conduct and peaceful picketing at
the secondary site directed only at the struck product. In the
latter case, the union’s appeal to the public is confined to its
dispute with the primary employer, since the public is not
asked to withhold its patronage from the secondary employer,
but only to boycott the primary employer’s goods. On the
other hand, a union appeal to the public at the secondary site
not to trade at all with the secondary employer goes beyond
the goods of the primary employer, and seeks the public’s as-
sistance in forcing the secondary employer to cooperate with
the union in its primary dispute.

Thus, while Respondent might lawfully use consumer pick-
eting as a device to urge a boycott of the products of the pri-
mary employer, Busch, it must do so in ways which protect the
business of secondary employers, such as WZLX-FM and the
Pour House.
The object of Respondent’s picketing is determined not only
from the language on the picket signs it employs, but also from
the words and conduct of its members displaying those signs.
The picketing cannot be found lawful because the picket signs
meet the legal requirements if the pickets themselves engage in
conduct which is inconsistent with the stated objective of the
signs.
The unlawful objective of otherwise lawful picketing can be
shown by oral statements made by pickets or other agents of
Respondent. When, in those cases, the picketing cannot be
separated from the accompanying statements explaining its
unlawful purpose, both the picketing and the statements must
be found to be unlawful. Electrical Workers Local 11 (L .G.
Electric Contractors), 154 NLRB 766, 768 (1965).
In consumer boycott picketing, where the union was urging a
boycott of nonlocal soft drinks, an unlawful object was found
by the Board where the pickets exhorted customers to shop at
another supermarket and booed customers who purchased
products the pickets regarded as nonlocal. Soft Drink Workers
Local 812 (Monarch Long Beach Corp.), 243 NLRB 801, 806
(1979).
The statements made by the pickets at the Pour House could
not have conveyed more clearly the unlawful object of Respon-
dent’s picketing. Respondent’s pickets on at least two separate
occasions stated to customers approaching the Pour House
things such as “Don’t go in there!” “You don’t want to go in
there” and “Why are you going in there?” To Chris Paquin and
Kathleen Nunnery, it was evident that the pickets were urging
them not to patronize the Pour House and the promotion being
conducted within. Such urging by Respondent’s pickets goes
well beyond merely urging a boycott of Busch products, as
described in the picket signs. Respondent, in fact, was urging a
total cessation of business by prospective customers with both
the Pour House and with WZLX, which was conducting the
promotion inside. Similarly, Susan Alexander, upon exiting the
Pour House that evening, was specifically exhorted by a picket
to boycott both Busch and WZLX.
These statements clearly demonstrate that the object of Re-
spondent’s picketing went beyond what is permitted under
Fruits by urging customers not to do any business with either
the Pour house or WZLX. Such statements cannot be separated
from the picketing and render the picketing unlawful. Broad-
cast Employees Local 31 (CBS, Inc.), 237 NLRB 1370, 1376–
1377 (1978), enfd. 631 F.2d 944 (D.C. Cir. 1980). Respondent,
rather than isolating the business of neutral employers from its
consumer boycott of Busch, enmeshed these neutral employers
in the labor dispute, demonstrating an unlawful secondary ob-
ject. Id.
Similarly, the Respondent’s picketing cannot be separated
from its conduct inside the promotion at the Pour House, dis-
cussed below. The unlawful object of Respondent’s picketing
can further be inferred by the unlawful nature of Respondent’s
conduct within the promotion itself, occurring simultaneously
by many of the same individuals and in furtherance of the same
objective. Moreover, Respondent’s own definition of a “public-
ity event” calls for boycott activity inside the premises while
picketing occurs outside.
That the statements and picketing had the desired effect can
be inferred from the testimony of the WZLX employees who
stated that the number of customers was far lower than normal
and declined, rather than increased, as the promotion went on.
The testimony of Paquin, Nunnery, and Alexander concern-
ing these unlawful statements was not rebutted by Respondent.
While the statements were not attributed to any particular
picket, Respondent produced Thomas Curtin, Jeff Lesniak, and
John Shea to testify about the picketing. Each testified he was
on the picket line at the time these comments were made. Yet
none was asked, and none rebutted, the testimony of Paquin and
Nunnery concerning the picket’s oral appeals not to enter the
Pour House during the 5–5:30 p.m. time period. No picket was
called to rebut Alexander’s testimony either. Inasmuch as Re-
spondent is solely aware of the identity of the participants and
their locations during the demonstration,13 an adverse inference
will be drawn from Respondent’s failure to call other members,
whom it may be reasonably assumed are favorably inclined
toward Respondent, to rebut these statements, and from its
failure to question the members it did call concerning them.
Grimmway Farms, 314 NLRB 73 fn. 2 (1994).
As Paquin, Nunnery, and Alexander were employees of
WZLX attending as part of their employment, the oral appeals
by pickets to them constituted an unlawful inducement to them
under Section 8(b)(4)(i)(B) to withhold their services from their
employer, WZLX. Paquin, Nunnery, and Alexander each at-
tended the promotion as part of their duties for WZLX. The oral
appeals by pickets not to enter the Pour House and to boycott
WZLX were an inducement to them to abandon their duties and
support the Union in its boycott campaign.
The Supreme Court has observed: “The words ‘induce or en-
courage’ are broad enough to include in them every form of
influence and persuasion.” Electrical Workers IBEW Local 501
v. NLRB, 341 U.S. 694, 701–702 (1951). In Broadcast Employ-

13 Though subpoenaed from Respondent, the attendance list main-
tained by Respondent at the event was reviewed by me in camera and
not shown to the General Counsel or Charging Party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1204
ees Local 32 (CBS, Inc.), supra, a union which had a dispute
with a television network handbilled a hotel where a news
event was occurring with handbills urging people not to enter
the hotel because the primary employer was inside covering the
news event. The Board found that the union’s conduct consti-
tuted a form of inducement and encouragement to employees of
other networks within the meaning of Section 8(b)(4)(i)(B) not
to perform their duties. See also NLRB v. Servette, Inc., 377
U.S. 46, 52–54 (1964) (attempts to induce the exercise of a
manager’s discretion to cease doing business with the primary
employer violate Sec. 8(b)(4)(i)(B) if the inducement would
“threaten, coerce or restrain” the exercise). Respondent’s ap-
peals were coercive in nature, as shown by Paquin’s testimony
of how he wanted to avoid a confrontation with the pickets, and
were in the context of Respondent’s coercive conduct during
the promotion.
Accordingly, the oral appeals by Respondent not to enter the
Pour House and to boycott WZLX during the course of its con-
sumer picketing unlawfully enmeshed neutral employers in its
labor dispute with Busch, causing the appeals and the picketing
itself to be in violation of Section 8(b)(4(i) and (ii)(B).
9. Respondent’s conduct inside the Pour House violated Sec-
tion 8(b)(4)(ii)(B) and (1)(A)
Section 8(b)(4)(i) and (ii)(B) makes it unlawful for a labor
organization or its agents to induce or encourage employees to
withhold services from their employer or to threaten, coerce or
restrain any person where an object is for that person to cease
doing business with another employer. This provision reflects
the “dual congressional objectives of preserving the right of
labor organizations to bring pressure to bear on offending em-
ployers in primary labor disputes and of shielding unoffending
employers and others from pressures in controversies not their
own.” NLRB v. Denver Building Trades Council, 341 U.S. 675,
692 (1951).
However, Section 8(b)(4) proscribes more than just picket-
ing. It proscribes all conduct where it was the union’s intent to
coerce, threaten or restrain third parties to cease doing business
with a neutral employer, or to induce or encourage its employ-
ees to stop working, although this need not be the union’s sole
objective. NLRB v. Denver Building Trades Council, supra at
688–689. See also NLRB v. Fruits & Vegetable Packers, supra,
377 U.S. 58, 68 (1964).
The Board has stated: “It is well settled that picketing (or
other coercive conduct) violates Section 8(b)(4) if the object of
it is to exert improper influence on a neutral party.” Mine
Workers District 29 (New Beckley Mining Corp.), 304 NLRB
71, 73 (1991), enfd. 977 F.2d 1470 (D.C. Cir. 1992). Unlawful
secondary conduct includes “conduct which does not constitute
actual picketing but which, nevertheless, induces or encourages
employees and restrains and coerces employers.” Service Em-
ployees Local 87 (Trinity Maintenance), 312 NLRB 715, 743
(1993). The Act prohibits “actions which ‘[overstep] the
bounds of propriety and [go] beyond persuasion’ so as to be-
come ‘coercive to a very substantial degree.’” Id. (Brackets in
original.)14
An unlawful intent may be inferred from the “foreseeable
consequences” of the union’s conduct, NLRB v. Retail Store
Employees Local 1001, 477 U.S. 607, 614 fn. 9 (1980); Mine
Workers District 29 (New Beckley Mining Corp.), supra at 73;
the nature of the acts themselves, Electrical Workers Local 761
v. NLRB, 366 U.S. 667, 674 (1961) (quoting Seafarers Interna-
tional Union v. NLRB, 265 F.2d 585, 591 (D.C. Cir. 1959)); and
from the “totality of the circumstances.” Mine Workers District
29 (New Beckley Mining), supra at 73. See also Plumbers Local
32 v. NLRB, 912 F.2d 1108, 1110 (9th Cir. 1990).
The Board has found many types of conduct to be “coercive”
even though they did not involve any strike or picketing activ-
ity. See, e.g., Sheet Metal Workers Local 80 (Limbach Co.),
305 NLRB 312, 314–315 (1991); United Scenic Artist Local
829 (Theater Tecniques, Inc.), 267 NLRB 858, 859 (1983), enf.
denied on other grounds 762 F.2d 1027 (D.C. Cir. 1985); Ser-
vice Employees Local 399 (Delta Airlines, Inc.), 263 NLRB
996, 999 (1982), enf. denied 743 F.2d 1417 (9th Cir. 1984);
Carpenters Local 742 (J. L. Simmons Co.), 237 NLRB 564, 565
(1978); and Ets-Hokins Corp., 154 NLRB 839, 842 (1965).
Confrontational conduct is also coercive under Section
8(b)(4). Service Employees Local 87 (Trinity Maintenance),
supra; Chicago Typographical Union 16 (Alden Press), 151
NLRB 1666, 1669 (1965). See also Laborers Local 332
(C.D.G., Inc.), 305 NLRB 298 (1991) (surrounding a building
and blocking entrances for half hour followed by a rally went
beyond the mere attempt to convey a message by handbill and,
where there was a demonstrated proscribed object, constituted
restraint and coercion).
These principles stated by the Board aptly apply in this mat-
ter. As admitted by John Murphy in The Labor Page (GC 35),
Respondent had a history of engaging in confrontational, “in
your face” conduct as part of its previous boycott campaign
against Burke Distributing. Respondent has carried forward
these same confrontational tactics to its dispute with Busch.
Respondent has engaged in a variety of conduct described by
Murphy as group shopping trips, standouts, publicity events,
and demonstrations. Each has its own type and level of con-
frontation and coercion. On three occasions, the Board has
successfully obtained injunctions from the United States district
court under Section 10(l) of the Act enjoining the confronta-
tional conduct of Respondent defined as group shopping (the
Kappy’s injunction), publicity events (the Pour House injunc-
tion), and demonstrations (the Woody’s injunction).
According to Murphy, union publicity events include picket-
ing and leafleting outside a retail establishment which sells
Busch products, as well as having union members enter the
premises posing as consumers in order to talk to consumers at
the point of purchase to convince them to support Respondent’s
boycott of Busch products. Murphy conceded the Pour House
was such a publicity event. The facts demonstrated that Re-
spondent’s members engaged in far more than mere conversa-

14 Citing Mine Workers District 29, supra at 72; and Service Employ-
ees Local 399 (William J. Burns Detective Agency), 136 NLRB 431,
437 (1962).
TEAMSTERS LOCAL 122 1205
tion when conducting a publicity event inside that retail estab-
lishment.
Beginning in the fall of 1995, after the expiration of the
group shopping 10(l) injunction, Respondent conducted at least
three publicity events at Chuck’s Bar and Grille promotions
prior to the Pour House event on December 8. Respondent’s
conduct at these events was virtually identical to its later con-
duct at the Pour House. WZLX found it to be so disruptive and
coercive of its promotion that it canceled the remaining events
in the series, agreeing to attempt one more only after Busch
met certain preconditions.
Respondent’s conduct inside the promotion at the Pour
House continued its disruption and coercion of these events.
WZLX employees Paquin and Alexander described the fun
party atmosphere they try to create at these events through
music, contests, prize giveaways, and patron interaction with
the disc jockey. It is the creation of this atmosphere which
makes the promotion a success for all involved. The testimony
of the witnesses from WZLX and Busch demonstrates that this
fun party atmosphere was destroyed by the conduct of Respon-
dent’s members. Respondent’s conduct “overstepped the
bounds of propriety” so as to become coercive to a substantial
degree of WZLX and the Pour House. Service Employees Local
87 (Trinity Maintenance), supra at 746.
There can be no legitimate purpose ascribed to Respondent’s
members loudly shouting anti-Busch slogans while the disc
jockey is attempting to broadcast over a microphone. That the
members shouted only when the disc jockey was on the micro-
phone is telling of Respondent’s true objective, particularly
when they did not know that this event, unlike the others they
had attended, was not being broadcast live. John Murphy ad-
mittedly did not discourage this anti-Busch shouting for he
believed it to be acceptable. This shouting of slogans certainly
brought attention to Respondent’s cause, but did so in an unac-
ceptable manner that disrupted the radio broadcast and restau-
rant promotion in an eminently foreseeable manner. Thus, the
foreseeable consequences of the act show Respondent’s unlaw-
ful motive. NLRB v. Retail Store Employees Local 1001, supra;
Mine Workers District 29 (New Beckley Mining), supra. De-
stroying prizes in front of patrons which had been won in con-
tests and throwing them back at the disc jockey demonstrates a
similar unlawful intent.
The large number of members sent into the Pour House by
Respondent further demonstrates its unlawful intent. Its boycott
message had already been conveyed to those in attendance and
passers by through its picket signs and handbills. Yet some
estimates showed that about half the crowd in the Pour House
was composed of Respondent’s members, who were older than
the other patrons and gathered themselves in groups. They
created an intimidating presence in the center of the bar.
As part of the strategy of a publicity event, Respondent’s
members confronted customers in the Pour House, initiating
conversations about their boycott and, in some instances, dis-
tributing Budweasel stickers to patrons. Lou LaRosa bragged to
Ron Sanchez about how successful he had been at getting pa-
trons to switch brands from Busch products. One such confron-
tation almost resulted in a physical altercation with a patron
where a union member had to be restrained by his cohorts.
These unwarranted solicitations by Respondent were another
attempt to further its cause at the cost of undermining the at-
mosphere of the promotion. Respondent had no legal right to
engage in such solicitations or distribution of literature, includ-
ing Budweasel stickers, inside the private property of the Pour
House or any other retail establishment. See Lechmere, Inc. v.
NLRB, 502 U.S. 527 (1992).
Respondent’s members further undermined the promotion by
bumping and threatening Busch supervisors and employees
inside the Pour House. The facts demonstrate that these were
deliberate attempts to intimidate, coerce and injure Busch su-
pervisors and employees, as well as employees of WZLX and
the Pour House, who were performing their duties during Re-
spondent’s boycott activities.
Jeff Lesniak deliberately bumped Pat McCoy, a Busch em-
ployee who was physically smaller than he, after Carmen
Cecere identified him as one of the “weasels.” Cecere’s com-
ment shows the motivation for the bump.
Tom Curtin, who stated a dislike for supervisors, admitted to
bumping Ron Sanchez from behind, then, in a not believable
fashion, accused Sanchez of bumping him, escalating the con-
frontation into a war of profanity. Curtin’s conduct was a fur-
ther effort to intimidate Busch supervisors and employees who
are present during Respondent’s boycott events.
There is virtually no dispute about the statement Lou LaRosa
made to Ron Sanchez. The only real issue is whether it was a
joke, as LaRosa claimed, or a threat, as taken by Sanchez and
McCoy. The comment must be viewed as a threat. Both San-
chez and McCoy testified credibly about the threat. Sanchez
even produced an almost verbatim version of LaRosa’s com-
ment, which he wrote down shortly after the incident. LaRosa’s
testimony was more evasive. Moreover, he claimed to be re-
peating a comment from fellow employee Charlie Campbell, a
claim Campbell did not back up to the Employer or to John
Murphy. An adverse inference will be be drawn from Respon-
dent’s failure to call Campbell, a union member who could
reasonably be assumed to be favorable toward Respondent.
Grimmway Farms, 314 NLRB 73 fn. 2 (1994). Thus, there is no
basis for crediting LaRosa that he was repeating a joke. Rather,
he was making a threat to a supervisor who he knew, from liv-
ing in the same town, had young daughters of his own. Such
threats to injure made, in the presence of employees, neutrals,
and the public, violate Section 8(b)(1)(A) of the Act.
Assaults of employees and threats to employees in connec-
tion with picket line activity coerce employees in the exercise
of their Section 7 rights and violate Section 8(b)(1)(A). Simi-
larly, assaults and threats to supervisors in the presence of em-
ployees are coercive of employees and violate Section
8(b)(1)(A). Auto Workers Local 65 (T. B. Woods’s), 311 NLRB
1328, 1337 (1993); Teamsters Local 812 (Sound Distributing),
307 NLRB 1267 (1992); and Teamsters Local 812 (Pepsi-Cola
Newburgh), 304 NLRB 111 fn. 1 (1991). Accordingly, the de-
liberate bumping of employee McCoy and the bumping and
threat to Supervisor Sanchez in the presence of McCoy and
other employees violate Section 8(b)(1)(A). In these circum-
stances where the threat and bumping were part of an organized
plan to disrupt the promotion conducted by neutrals with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1206
Busch, this conduct restrained and coerced the neutrals as well
and violated Section 8(b)(4)(ii)(B).
The nature of the conduct itself, as well as its foreseeable
consequences on neutrals such as WZLX and the Pour House,
warrants the conclusion that Respondent had an unlawful intent
behind its publicity event at the Pour House. Electrical Work-
ers Local 761 v. NLRB, 366 U.S. 667 (1961); NLRB v. Retail
Store Employees Local 1001, 477 U.S. 607 (1980); and Mine
Workers District 29 (New Beckley Mining Corp.), 304 NLRB
71 (1991). Moreover, Respondent’s intent was trumpeted by
John Murphy in The Labor Page, where he described the tac-
tics used by Respondent in its earlier boycott against Busch’s
competitor Burke Distributing. Respondent considered that
campaign to be a success. It utilized the identical confronta-
tional, “in your face” tactics here as it had against Burke, de-
spite the issuance of the prior unfair labor practice complaint.
The coercive nature of Respondent’s conduct is shown by
the testimony that patrons present did not appear to be enjoying
themselves and that the number of patrons decreased, rather
than increased, as the promotion went on. This would show that
patrons were not enjoying the promotion. But the coercion is
most graphically shown by the cancellation of future Chuck’s
Bar and Grille promotions until after the issuance of the 10(l)
injunction by the United States District Court about 6 months
later. Chris Paquin credibly testified that the sole reason for the
cancellation was the interference by Respondent at several
promotions. As Paquin described it, it was “absolutely unac-
ceptable for a radio station to get into a tense confrontation at
something that is supposed to be a fun party; that’s not what
our business is. Our business is to make people happy, not par-
ticipate in situations that are uncomfortable, awkward or
tense.” This reaction by WZLX was certainly foreseeable by
Respondent and, in all likelihood, was desired.
Accordingly, it must be found that Respondent’s conduct in-
side the Pour House, where it had no legal right to demonstrate,
had an unlawful object and was coercive under Section 8(b)(4).
10. Respondent is responsible under the Act for the conduct of
its members and supporters on the picket line and inside the
Pour House
Respondent denies any liability under the Act for the con-
duct of its members and supporters at the Pour House. Section
2(13) of the Act provides that:

In determining whether any person is acting as an “agent” of
another person so as to make such other person responsible
for his acts, the question of whether the specific acts per-
formed were actually authorized .. . . shall not be controlling.

Certainly, agency is established when there is actual, or ex-
press, authority to engage in the conduct. Among the other
ways that agency can be established are through apparent au-
thority and/or through ratification. As to apparent authority, in
D. G. Real Estate, 312 NLRB 999 (1993), the Board stated that
it applies the standard endorsed in Dentech Corp., 294 NLRB
924, 925 (1989), quoting from Service Employees Local 87
(West Bay Maintenance), 291 NLRB 82 (1988):

Apparent authority is created through a manifestation by the
principal to a third party that supplies a reasonable basis for
the latter to believe that the principal has authorized the al-
leged agent to do the acts in question. NLRB v. Donkin’s Inn,
532 F.2d 138, 141 (9th Cir. 1976); Alliance Rubber Co., 286
NLRB 645, 646 fn. 4 (1987). Thus, either the principal must
indeed intend to cause the third person to believe the agent is
authorized to act for him, or the principal should realize that
the conduct is likely to create such a belief. Restatement 2d,
Agency §27 (1958, Comment). Two conditions, therefore
must be satisfied before apparent authority is deemed created:
(1) there must be some manifestation by the principal to a
third party, and (2) the third party must believe that the extent
of the authority granted to the agent encompasses the contem-
plated activity. Id. at §8.

The Board further held that “ratification is defined as ‘the af-
firmance by a person of a prior act that did not bind him but
which was done or professedly done on his account, whereby
the act, as to some or all persons, is given effect as if originally
authorized by him.’” An affirmance of an unauthorized transac-
tion can be inferred from a failure to repudiate it. Service Em-
ployees Local 87 (West Bay Maintenance), supra at 83.
Respondent imbued its members and supporters at the Pour
House with express, as well as apparent, authority to engage in
the misconduct committed therein. There can be no dispute that
the Pour House demonstration was sponsored by Respondent,
even in the absence of John Murphy. Murphy himself admitted
the demonstration was a Local 122 event. The event was
scheduled personally by Murphy who disseminated that infor-
mation to the members. Murphy planned to be there, as he had
been for virtually all of the other demonstrations, but for a last
minute call to Washington on union business. The demonstra-
tors used the Union’s picket signs, which had been printed and
paid for by Respondent and were used at all similar events. The
handbills distributed at the Pour House were edited and ap-
proved by Murphy. At Murphy’s request, attendance was taken
so the Union would have a record of who was present. Murphy
takes attendance at all such events and maintains the records in
the union office.
John Murphy has orchestrated the Union’s consumer boycott
campaign against Busch. He alone schedules the various boy-
cott activities and instructs participants on what to do. At the
time of the Pour House event, no written instructions were
given. Yet, Murphy clearly did not tell members not to enter the
premises of a promotion, not to urge patrons inside to boycott
Busch products, not to distribute “Budweasel” stickers or not to
shout antiemployer slogans during the promotion. Murphy had
authorized this conduct at prior promotions such as The New
Place and Jose MacIntyre’s where conduct virtually identical to
that at the Pour House occurred. Either Murphy or Respon-
dent’s president, James Hoar, had been present when it oc-
curred at those promotions. Murphy testified he saw nothing
wrong with shouting anti-Busch slogans during the promotion.
Thus, it is evident that he expressly authorized much of the
disruptive behavior which occurred at the Pour House.
Rather, Respondent’s argument that it bears no liability for
the conduct rests on the fact that Murphy, himself, was not
present. Murphy contends he left no one in charge of the event
TEAMSTERS LOCAL 122 1207
in the absence of himself and James Hoar.15 Thus, Respondent
would have it that the Union can “sound the trumpet” to call its
members to appear and demonstrate, yet bear no responsibility
for their conduct in the absence of Murphy or Hoar. Such a
contention defies law and logic.
In Boilermakers Local 1 (Union Oil), 297 NLRB 524, 526
(1989), the administrative law judge, quoting from Boilermak-
ers Local 696 (Kargard Co.), 196 NLRB 645, 647–648 (1972),
stated:

[W]here a union authorizes a picket line, it is required to re-
tain control over the picketing. If a union is unwilling or un-
able to take the necessary steps to control its pickets, it must
bear the responsibility for their misconduct. If a union author-
izes a picket line without supervision or control, it must bear
the responsibility for the misconduct on the picket line. If a
union exercises control and supervision on the picket line,
properly disavows and corrects misconduct, naturally such
misconduct would not appear to be pursuant to its authority.

Accord: Auto Workers Local 695 (T. B. Wood’s), 311 NLRB
1328 (1993).
Respondent has an affirmative obligation to make certain
that agents with authority are present to supervise when it en-
gages in picketing and other types of demonstrations. Respon-
dent cannot be permitted to escape liability for its members’
conduct by setting the wheels in motion for a demonstration,
then failing to supervise what transpires. In Avis Rent-A-Car,
280 NLRB 580 fn. 3 (1986), the Board found a union could not
escape responsibility for the misconduct of unidentified pickets
simply by claiming its authorized agents were not present for
the misconduct. In the same way, since John Murphy author-
ized this demonstration on behalf of Respondent, responsibility
for the resulting misconduct cannot be avoided simply because
Murphy failed to put someone in charge. Even were it to be
found that a union official such as John Shea were in charge of
the event, it is evident that the participants acted as they had at
previous demonstrations in the manner authorized by Murphy
and that neither Shea nor any other union official present, took
any action to control their misconduct.
Certainly, Respondent’s demonstrators were cloaked with
apparent, if not express, authority. The members had been
called to attend by Murphy and carried Respondent’s signs,
banners and handbills, which were under the exclusive control
of Respondent. These facts alone would lead third parties to
believe that the actions of the demonstrators had been author-
ized by their principal, a conclusion of which Respondent had
to be aware. Service Employees Local 87 (West Bay Mainte-
nance), 291 NLRB 82, 83 (1988). Moreover, for WZLX and
Busch, the actions of Respondent’s members at the Pour House
were entirely consistent with those they had observed at other
locations, such as The New Place, Jose MacIntyre’s, and the
Union Street Restaurant, some of which had been attended by
Murphy himself.

15 Murphy’s testimony contradicts the clear testimony of John Shea
that he was in charge of the event. Murphy’s testimony is a transparent
attempt to rationalize a defense after the misconduct occurred.
Respondent, further, ratified the conduct by failing to repudi-
ate what occurred. At no point has Respondent repudiated the
disruption of the promotion inside The Pour House through the
chanting of slogans and destruction of prizes, the distribution of
“Budweasel” stickers, the urging of patrons to switch brands
and the confrontations with customers. Respondent made no
disavowal of its members’ oral appeals to patrons not to patron-
ize the Pour House and to boycott WZLX.
While John Murphy claims to have investigated the threat
and bumping incidents inside the Pour House, his “investiga-
tion” led him to conclude that only one of the events may have
occurred. As to that, Murphy as a remedy removed Thomas
Curtin from the negotiating committee, though not, apparently,
from his right to participate in future demonstrations. Murphy
then reinstated Curtin following his testimony in this matter.
Other than a general statement that it does not condone unlaw-
ful activity, at no point did Respondent disavow or repudiate
any of the alleged misconduct to Busch.
Accordingly, by failing to repudiate the misconduct commit-
ted by its members and supporters at the Pour House, Respon-
dent has ratified such conduct and must be held responsible for
it.
C. The Woody’s Liquor Store Incidents
1. The issues related to the Woody’s demonstrations
a. Did Respondent’s conduct at its May 3, 1996 demonstra-
tion at Woody’s Liquors violate Section 8(b)(4)(i) and (ii)(B) of
the Act?
b. Did Respondent’s conduct at its May 10, 1996 demonstra-
tion at Woody’s Liquors violate Section 8(b)(4)(i) and (ii)(B) of
the Act?
c. Was Woody’s Liquors a primary employer on May 10,
1996?
2. Background to the Woody’s demonstrations
Woody’s Liquors (Woody’s) is a retail liquor store owned
and operated by John Wood. Daniel Mahoney is its manager
and David Sokol and Scott Higgins are its delivery men and
helpers. The store’s only connection with Busch is that it pur-
chases Busch products for resale to the public. It has no rela-
tionship with the Union and in the opinion of Wood is not in-
volved in any labor dispute with the Union. Woody’s is located
on a main, multilane thoroughfare in Boston. The store itself is
about 25-feet wide.16 If one is standing at its entrance looking
out, there is a driveway on the left separating Woody’s from a
furniture store. The drive goes to a loading dock used by the
furniture store. Further down on the left is a bar, Sam
McGuires, which is at an intersection. On the right of Woody’s
is a fenced in parking lot and further down on the right is a gas
station.
3. The May 3 demonstration
On May 3, 1996,17 at about 4 p.m., picketers supporting the
Union showed up in front of Woody’s. There were about 13 to
16 Despite its relatively small size, the store is one of Busch’s largest
accounts.
17 All dates in this section of the decision are in 1996, unless other-
wise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1208
15 picketers there with about 20 more picketing down the street
near Sam McGuires. Of this group some were at McGuires,
some across the street, and some in a median at the intersection.
At least one witness noticed some near the gas station. With
respect to the demonstrators at Woody’s, at first they stood in
the street near the curb in an empty parking space displaying
their Budweasel and Boycott Bud signs.18 They covered the
entire width of the liquor store, standing shoulder to shoulder
like a “human billboard.” Each demonstrator held his sign face
high or higher to attract the attention of passersby. Murphy was
present with a clipboard and talked with the demonstrators.
During the demonstration, Murphy and a Busch spare em-
ployee, Jerry Meyers, handbilled passersby and customers of
Woody’s.
Wood testified that in his opinion, the picketing intimidated
his customers and potential customers. The location of the
picketers made it difficult for customers in cars to park in front
of the store. About 20 minutes into the demonstration, Wood
called the police. The police came and spoke to the demonstra-
tors, then left. In the days following the demonstration, cus-
tomers came in and told Wood they had come by to purchase
goods from his store during the demonstration, but were in-
timidated and did not come in because they did not want to get
involved in the situation.
Mahoney testified that on May 3, at about 4:15 p.m., he at-
tempted to make a delivery of liquor to a customer. He got
Wood’s Jeep Cherokee automobile from the parking lot next
door and attempted to pull into the parking space in front of the
store, which was occupied by about six picketers. According to
Mahoney, all but one of the picketers moved from the street
onto the curb. This picketer moved very slowly out of the way,
causing Mahoney to take about 2 minutes just to pull com-
pletely into the space. As Mahoney got out of the car and en-
tered the store, one or more picketers commented on his shirt,
which advertised Harpoon beer. The picketers then moved back
into the street and surrounded the car and continued to display
their signs to passing motorists. About 15 minutes later, Wood
told Mahoney that he did not want to create any problems and
directed Mahoney to move the Jeep back to the parking lot next
to the store.19
At the outset of the demonstration, Wood canceled all deliv-
eries to avoid problems. After the police had come and gone,
Wood called Busch’s operations manager Frank Curtis. Ac-
cording to Curtis, Wood was upset and asked what Curtis was
going to do about the situation as he was losing a lot of busi-
ness. Curtis said he would come over shortly. Curtis went to the
store with one of his supervisors, Bill Moriarty. The two Busch
managers arrived at Woody’s about 4:40 p.m. In the interim
between the call to Curtis and his arrival at the store, several
notable events are alleged to have occurred.
Mahoney testified that while the picketers were at the store,
on two or three occasions, he overheard them tell customers

18 Busch’s operations manager, Frank Curtis, recognized the demon-
stators in front of Woody’s as union members and Busch employees.
19 Murphy testified that Wood’s vehicle remained parked in the
space in front of the store for the entire demonstration.
entering the store, “Don’t go into Woody’s,” “don’t buy Bud,”
and hand them pamphlets. I credit this testimony.
Mahoney also testified an incident of a demonstrator and his
actions toward a female customer of Woody’s. According to
Mahoney, a female regular customer named Lisa, double-
parked outside the store while Wood’s jeep was in the space
directly in front of the store. She parked with about 2 feet of her
car obscured from inside the store by the jeep and came in. She
usually bought Bud beer, but told Mahoney that she was buying
Miller instead because she did not want to have problems.
Wood told her to buy what she usually buys. She expressed her
concern that she would be harassed if she did. Wood convinced
her to buy Bud and she did. She put the beer in a black bag20
and went to her car. Murphy was standing beside the door to
the store at the time. One of the picketers came up to her as she
entered her car from the passengers side and slid over to the
driver’s seat. As she attempted to close the passenger door, this
picketer “grabbed” the door and entered the car, sat on the pas-
senger seat and looked into her bag. The woman pulled the bag
away from him and the picketer remained in the woman’s car
from one to three minutes, depending on which witness’s testi-
mony is relied upon. During this time frame, another picketer
stood in front of her car, placing his picket sign and his right
foot on the car’s bumper.21 Delivery man Sokol testified that
this picketer actually stood on the bumper and bounced up and
down. When the picketer inside the car got out, the one in front
of the car moved away and the woman drove away. On a sub-
sequent visit to the store, this woman customer indicated to
Mahoney that she did not know the man who entered her car.
Wood first related this incident to Curtis on May 7, when he
and Curtis were talking about another problem. Wood at this
time indicated that it was Meyers who got in the car. Cecere
denied ever getting on the bumper of a car at the demonstration
20 Woody’s supplies its customers with a large black plastic bag with
handles to carry purchased product from the store. One cannot know the
contents of the bag without looking inside.
21 Mahoney described the picketer in front of the car as being about 6
feet tall and weighing about 170 or 180 pounds, with a moustache. He
was wearing a hat with his hair coming out the back. Sokol added that
the hat was a New England Patriots hat. Wood gave a similar descrip-
tion of the man, except he said he was wearing a union cap. Wood and
Sokol also testified that the picketer who got in the car was standing
with Murphy passing out leaflets just before he followed the woman to
her car and got in. This would have been Busch spare employee Jerry
Meyers. Wood, however, in his cross-examination, identified the man
as one of the picketers in his late thirties or early forties. On re-cross-
examination, he amended this testimony to indicate that it was Meyers
who got into the customer’s car. Meyers denied that he got into any
customer’s car. He also wore some unusual clothing to the hearing and
testified that this was what he wore at the demonstration on May 3. If in
fact it was the clothing he wore, it is likely that someone would have
remembered it. On the other hand, it may not have been the clothes he
wore that day. I did not believe Meyer’s testimony with respect to an
alleged threat made by Curtis and find no reason to believe his denial
that he entered the customer’s car. Despite his protestations to the con-
trary, Murphy has demonstrated his willingness to let his members
engage in confrontational behavior with members of the public during
demonstrations.
TEAMSTERS LOCAL 122 1209
and denied seeing any other demonstrator do so.22 Cecere did
testify about one female customer. According to Cecere, a
woman stopped and double parked in front of the driveway to
left of Woody’s, got out and went in the store, taking a leaflet
on the way in. As she exited, she told the picketers she was
sorry, she could not help them out this time. The picketers
asked for her help in the future and she said she would if she
could. The picketers wished her a good night and she entered
her car from the drivers side and left.
I believe the General Counsel has established that this inci-
dent occurred, crediting the testimony of Wood, Sokol, and
Mahoney about the incident.
Mahoney also testified that another female customer left the
store with her beer in a bag and one of the picketers attempted
to open it and looked inside. He was foiled in this attempt by
the customer, who pulled the bag away from him. Sokol testi-
fied that he observed four or five incidents of picketers trying
to see what was in female customers’ bags. These attempts
were primarily made by Murphy or the man assisting him in
passing out flyers at the front of the store. Sokol testified that
he heard the man ask the customers if there was Bud in their
bags. Wood testified that he saw two of his female customers
treated in this manner by an unidentified demonstrator. Wood
also testified that he heard demonstrator Carmen Cecere say to
a customer leaving the store, “Make sure there’s Miller Lite in
that bag.” Cecere denied making this statement and also denied
touching or trying to look into Woody’s customers bags or
seeing any other demonstrator do so. Murphy testified that he
asked customers leaving the store to take a leaflet, and most of
these customers agreed but said they could not hold it because
they were holding the bag of beer. Murphy would then slip a
leaflet into the beer bag. The customers taking these leaflets
were of both sexes. I credit the General Counsel’s witnesses in
this regard and find that the demonstrators were in fact opening
customer’s bags without the customer’s approval.
Frank Curtis arrived at Woody’s at about 4:40 p.m., inter
alia, he observed 15 picketers in the street in front of the store
surrounding a car parked there. They were chanting and dis-
playing their signs to passersby. Busch spare employee Jerry
Meyers was standing at the entrance to the store, handing out
flyers to those who would take them. As Curtis entered the
store, he asked Meyers if he was handing out leaflets to cus-
tomers entering the store. According to Curtis, Meyers re-
sponded, “Yes, Frank, I have to work.” Curtis then entered the
store, walking around Meyers who was partially blocking the
entrance. Carmen Cecere testified that he observed Curtis ar-
rive and told a different story about his conversation with
Meyers. According to Cecere, Curtis asked Meyers, “You’re
not telling people not to buy Budweiser, are you?” Meyers
responded, “I’m not telling just one person; I’m asking every-
one to help us out in our boycott against Anheuser Busch.”

22 Two witnesses who also demonstrated on May 3, Carmen Cecere
and Tony Pini, testified that female friends of theirs came by in their
cars and stopped in the street near the store. Pini testified that he had a
conversation with his friend in the street, leaning in the window of the
car. Murphy testified that Pini actually got in her car. Cecere testified
that his girlfriend stopped (at) a Dunkin Donuts shop across the street
from Jerry McGuire’s bar and he went to talk to her there.
Curtis then pointed his finger in Meyers face and said, “I’ll
remember you for this.” Meyers testified similarly to Cecere
though he testified his response to Curtis’ question was, “I’m
asking everybody to boycott Budweiser products, doing every-
thing I can to save my job.”23 Curtis, on rebuttal denied the
accusations made by Meyers, Cecere, and Murphy. Having
heard all the witnesses to this incident, I believe Curtis to be the
most truthful and credit his version of the incident. Accord-
ingly, I find that he did not threaten Meyers.
Curtis spoke briefly with Wood and then went outside where
he spoke with Murphy. Curtis asked if Murphy had organized
the demonstration and Murphy said he had. Curtis asked him if
he were in the “gray” area of the law, and Murphy responded,
“That’s up to you to decide.” Curtis then went back in the store
and listened to Wood complain about lost business because of
the demonstration. According to Curtis, Wood pointed out sev-
eral cars that slowed in front and then left without stopping,
saying they were some regular customers who would ordinarily
come in. The same situation existed with several pedestrians.
Curtis observed Cecere standing on the sidewalk near the
store’s entrance with a picket sign resting at an angle on his
shoulder. According to Curtis, on a couple of occasions, when a
pedestrian approached him, he would make sudden movements
with his body and sign, causing the pedestrians to either stop,
lean back or jerk their heads or walk around him. Cecere testi-
fied that he was in the street displaying his picket sign and only
came on the sidewalk twice, both times to say something to
Murphy. He testified that on each occasion, he was only on the
sidewalk a couple of minutes. He observed a female customer
try to leave the store only to find her way blocked by Jerry
Meyers. She had to ask him to move before he did so. Again, I
believe Curtis testified truthfully and credit his testimony in this
regard.
Though Wood initially stopped deliveries, he had a large one
to make and instructed the stores’ delivery men, David Sokol
and Scott Higgins, to do so when someone from Busch ar-
rived.24 They got Higgins pickup truck and were circling the
block when Sokol recognized Busch’s operations manager
Frank Curtis arriving at the store. Higgins started to park in a
space that was a little to the left of the store, but it was filled
with picketers who would not move and allow him to park.
Immediately to the left of the store, if one is looking out from
the store, is a driveway that goes to a loading dock in the build-
ing adjacent to the liquor store. In frustration, Higgins did a u-
turn and backed down this drive, angling the truck so that it
went on the sidewalk and up to Woody’s front door. He con-
tinuously beeped his horn and moved at a deliberate speed that
forced the picketers to move out of the way. When they reached
the door, the men got out and loaded the truck. While they were
23 Cecere admitted to being in the Federal building’s hallway before
his testimony in the company of Meyers and Respondent’s counsel.
There was a sequestration order in effect at the time. However, Cecere
also admitted that Meyers was discussing his testimony in this meeting,
at least the part about this threat. At the direction of Busch, Meyers was
not allowed to work at Busch after May 3.
24 Frank Curtis testified that the purchaser wanted this load delivered
because he was afraid to pick it up because of the demonstration going
on.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1210
loading it, Curtis heard some of the demonstrators call the de-
livery men scabs and boo them. I credit the General Counsel’s
witnesses’ testimony in this regard.
While Curtis was on the premises, he heard several custom-
ers who normally bought Busch products decline to do so say-
ing they did not want to get involved and at least one expressed
fear he would be hit if he did so. Again, I credit Curtis.
When Sokol arrived for work on May 3, he parked his 1980
Lincoln Continental car on the street in front of Woody’s, in
the parking space immediately to the left of the driveway that is
to the immediate left of the liquor store. He arrived for work
after the demonstrations started and it was parked there during
the entire May 3 demonstration. The picketers noticed him
because he had to beep his horn to get them to move so he
could park. They were standing in the area of the furniture store
driveway and grudgingly moved to let him park. About 5:30
p.m., he walked to his car and put the windows up. During the
time of the demonstration, there were picketers standing near
the car. About 6:30 p.m. on May 3, about a half hour after the
picketers had ceased their demonstration and left, Sokol dis-
covered some damage to his car. There was a 1-inch-thick by
2-inch-wide by 3-foot-long wooden stick lying on the street
next to the front of the car and the left front directional light
had been smashed. The was also a dent on passenger side of the
car which Sokol contends had not been there before.25 Ma-
honey believed that the stick was similar to the wooden sticks
to which the picket signs were affixed.26 On this day, one of the
picketers asked Sokol why he was making it harder for them.27
Sokol responded that he was just the delivery man, trying to
make a living. This man was wearing a New England Patriots
hat and had a mustache. (I believe there is a variance between
the descriptions of this hat, though it was identified by all (as) a
Patriots cap. The “old” Patriots’ caps feature a depiction of a
colonial minuteman and the “new’ Patriots’ cap have what was
called an “Elvis” logo which though not thoroughly described
in the record is apparently distinctively different.) Curtis identi-
fied the man as Carmen Cecere. Sometime after the May 3,
Curtis was given a stick by Sokol, which stick Sokol told him
was the one he found by his broken turn signal light. He also
authorized Sokol to get an estimate of the cost to repair his
vehicle and give it to him for review. According to Curtis, as of
the date of hearing (August 8), he had not gotten the estimate.
No one saw the damage being inflicted to the car and I de-
cline to find that it was inflicted by a union demonstrator or
supporter. The car was parked on a public street and could have
been damaged by anyone passing by. The stick which Sokol
believes was used to cause part of the damage was not like the
ones used by demonstrators to hold their signs. As I do not
believe the evidence establishes that a demonstrator damaged
Sokol’s car, I will not find Respondent violated the Act in this
regard.

25 Though Sokol has insurance which would cover the damage to his
car, he had not filed a claim because, according to him, Frank Curtis
told him Busch would pay for repairs for the damage.
26 When the stick in question was compared to the sticks used by the
demonstrators for their signs, they did not appear to be the same.
27 I credit Sokol’s testimony in this regard.
4. The May 7 beer delivery problem
The next event involving Woody’s occurred on May 7.
Wood had ordered about 900 cases of beer on what is called a
bill and hold basis, to be delivered on May 7. A bill and hold
order is one which a Busch customer can make at a posted dis-
count. To take advantage of the discount the beer must be de-
livered within 5 working days of the end of the month in which
the order is placed. In the case of the involved order, May 7
was the last day for Woody’s to accept the order without losing
the discount. Five witnesses testified about the delivery.
Woody’s opens at 9:30 or 10 a.m. Sokol testified that he arrived
at the store at 9 a.m. to find two Busch employees unloading
beer. At that time, according to Sokol, it covered the sidewalk.
He did not say anything, but went to an area in the parking lot
where returnable empty bottles were kept and spent a while
sorting them. He then went for coffee and when he returned,
Mahoney had arrived. Mahoney testified that at this time, cases
of beer were stacked on the sidewalk all along the length of the
store. Mahoney testified that they were stacked so close to the
store that he could not open the security grates over the stores
windows and he had to move several cases to get into the store.
When Wood arrived, he observed the almost 900 cases of beer
on the sidewalk in front of the store. According to Wood, he
had never experienced a delivery with this quantity of beer
placed on the sidewalk. Wood testified that he told the Busch
delivery driver and his helper that he could not open the store
until the beer was off the sidewalk and the Busch employees
started moving the beer. According to Wood, the driver said he
had to use the phone and left.
Wood said the opening of the store was delayed until 10:25
or 10:20 a.m. until sufficient beer was moved to allow the
opening. Mahoney and Sokol testified that they overheard
Wood tell the Busch driver and helper who had unloaded the
beer that he did not want the beer on the sidewalk, that he had
to open the store and the grates. Responding to this, according
to Sokol, the Busch employees started putting beer back on the
truck. He assumed they were doing this to get it off the side-
walk. Wood, Sokol, and Mahoney went into the store and be-
gan working. At some point about half an hour later, he was
standing with Wood when the Busch truck drove away. Ac-
cording to Sokol, Wood asked why they had left. He then called
Busch. Wood testified that he told Busch employee Bill Moriar-
ity that he had not refused the order and he needed the beer.
The beer was redelivered later that day. When the redelivery
arrived, some pickets also arrived with their Budweasel and
Boycott Bud signs. One of them talked with the Busch driver
and the others stood with their signs in front of the store until
the delivery was finished. Wood was of the opinion that the
pickets were there in response to the events of that morning.
Murphy testified that he was told of the morning incident over
the phone and directed the pickets to go to Woody’s at the time
of the redelivery. He testified that this action was in response to
Wood’s actions. However, there were no outward signs that the
demonstrators were doing anything more than demonstrating
against Busch and its products.28
28 On May 28, the Union filed an unfair labor practice charge against
Wood because of this incident. The Regional Director, in a formal
TEAMSTERS LOCAL 122 1211
The Busch driver who delivered the morning load of beer
was Thomas Tinlin. He was assisted by helper Joseph Zuffante.
There were 863 cases of beer in this load, which was the only
delivery Tinlin had to make that morning. Tinlin was to pick up
empty returnable bottles at three locations after he finished the
delivery. The delivery team left Busch’s facility at 7:45 a.m. on
May 7 and arrived at Woody’s at 8 a.m. Tinlin knew that
Woody’s did not open until 10 a.m. Normally, Tinlin would not
unload an order in advance of a store’s opening because there
may be beer included in the delivery in error and he would
have to reload it. However, Woody’s load was a “post off” day
following the April offer and Woody’s had to take delivery that
day or lose the discount. Because of the nature of the load and
the fact that Tinlin had not had problems with working in the
past, he took the chance that Wood might refuse the order and
began unloading it in advance of the arrival of Wood. Tinlin
and Zuffante unloaded the beer. Tinlin denies stacking it so
close to the building that the security gates could not be opened
and he denied having stacked the beer in a manner that ob-
structed entrance to the store. He later testified that there was
four or five inches between the row of stacked beer and the
window grates. They stacked beer on the sidewalk leaving
room for pedestrians to pass and stacked much of the load in
the street.
According to Tinlin, Wood arrived a little before 10 a.m.,
about 15 minutes after the beer had been completely off-loaded
from the truck. Wood first spoke to a delivery team from an-
other beer distributor and then walked past Tinlin.29 Tinlin said,
“Good morning, John.” Wood replied, “I have bad news for
you.” “I don’t want the order.” Tinlin asked if he wanted any
part of it and Wood said he did not. Tinlin then went to a gas
station up the street and called his supervisor, Ron Sanchez, for
instructions. Sanchez told him to start reloading the beer on the
truck, but slowly so someone from Busch could call Wood and
try to convince him to accept the order. He returned to
Woody’s and saw the delivery men from the other distributor
wheeling beer into Woody’s. It took Tinlin and his helper an
hour and a half to finish reloading the product. During this
time, the grates on the windows were open and the store was
open for business. During the reloading process, Wood asked
Tinlin to move his truck so that Wood could pull his car into a
drive the truck was obstructing. Tinlin did so. When the reload-
ing was complete, Tinlin returned to Busch. He could not make
his empty pickups because the truck was full of rejected prod-
uct.
Tinlin went to the office and was told by Supervisor Moriar-
ity that Wood had called in and said he had tried to tell Tinlin
that he had changed his mind, but that Tinlin had already left.
Tinlin denied that Wood at any time came out and said he had
changed his mind. Another team redelivered the load that after-
noon. Tinlin testified that though he and Zuffante were paid for
the delivery as if it had been made, they were not paid for the
empty pickups which could not be made because of the refused

ruling, declined to issue complaint. The Union appealed this decision
and the appeal was overruled.
29 The Union does not represent the employees of this distributor.
shipment.30 This would not have been the case if Busch consid-
ered the refusal to be the fault of its delivery team. According
to Tinlin, he had a conversation with Moriarity about a week
later and asked if Wood had cooled off. According to Tinlin,
Wood was angry when he arrived at the store on May 7. Tinlin
noted that Wood had lodged a complaint against him for block-
ing the sidewalk, the entrance to the store and the security
grates. Moriarity told him that Tinlin had spoken with Sanchez
about it. Wood also testified that a fellow employee had spoken
with him on May 7, before he left to deliver the beer to
Woody’s. He claims the worker told him that Wood had
warned the demonstrators on May 3 that he would get even
with the next delivery. If this tale is true, it is hard to believe
that Tinlin would unload before Wood arrived and accepted the
load. Tinlin testified that he first spoke to Murphy about the
incident on May 11 or 12, after the May 10 demonstration. He
may have spoken to a steward about the matter before this.
I credit Wood’s and Sokol’s version of this incident and not
that of Respondent’s witnesses.
5. The May 10 demonstration
On May 10, at about 4 p.m., picketers appeared in front of
Woody’s. According to Murphy, this second demonstration at
Woody’s had a dual purpose. First it was a continuation of the
ongoing boycott of Budweiser products and second it was in
protest of Wood’s actions on May 7.31 There is very little evi-
dence of any outward sign of the Union’s second purpose.
Murphy denied that anyone present for the Union urged cus-
tomers not to patronize Woody’s. The signs used were the same
Budweasel and Boycott Bud signs used at previous demonstra-
tion. The leaflets were the same as used at the May 3 demon-
stration and make no mention of any dispute with Woody’s.
Murphy himself never communicated to Wood that the demon-
stration was in response to the May 7 events. Only some
oblique taunts by picketers directed at Wood are the only indi-
cation that Wood was also a target of the demonstration. It is
Murphy’s position that none of the unlawful things alleged in
the complaint about the demonstrations occurred and that he
was present at the demonstrations to make sure they did not
occur, pointing out that unlawful activities at the demonstra-
tions was counterproductive to the Union’s overall objectives in
the boycott campaign.
After the demonstration started, Wood again called the po-
lice. The police responded and talked with Wood and Murphy.
Murphy testified that after they left, in accordance with police
instructions, the demonstrators marched in an ellipse in front of
the store, displaying their signs. Wood complained that they
turned right at the entrance of the store and their signs were
over their shoulders, causing customers to have to dodge them
to enter Woody’s. Mahoney believed there were 30 or 40 pick-
eters in front, counting the ones actively picketing and another
30 According to Tinlin, this would have amounted to about $20 or a
little more. He did receive $170 for the refused load.
31 In its answer, the Union stated that the May 10 demonstration was
directed solely at Busch and the products it distributes. In a statement
given in Federal Court, Murphy makes the same assertion. I do not
credit Murphy’s testimony in the instant case in this regard and accept
the position taken in the answer and in Federal Court.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212
group standing across the street. Again there were picketers up
the street at Sam Mcguires. Murphy testified that the maximum
number of pickets actively picketing in front of the store on
May 10 was 15. They would periodically switch places with
those demonstrators across the street. I credit Wood’s testi-
mony that the marching demonstrators did interfere with cus-
tomers trying to enter the store.
Wood testified that on this occasion he observed two of his
customers drive up, slow down and then leave without coming
in. Both of these individuals later told Wood they wanted to
make a purchase but did not want to come in while the demon-
stration was going on. Mahoney and Wood testified that on
May 3, they overheard some picketers urge customers not to go
in the store and not to buy Bud. Sokol gave similar testimony,
testifying he heard pickets ask customers not to buy from
Woody’s. Wood observed on two occasions a demonstrator
reach and open a customer’s bag to see what product the cus-
tomer had purchased from Woody’s. Both customers pulled
back and tried to get away in these instances. I credit this tes-
timony of Wood and Sokol.
One picketer, John Shea, yelled out when he saw John
Wood, “Oh, Woody doesn’t like his beer on the sidewalk,” and
then pretend to be a baby crying. Sokol also testified that he
heard this and also heard this man keep saying, “[D]on’t go in
Woody’s.” This taunt referred to the May 7 beer delivery to
Woody’s discussed above. Wood testified that his customers on
May 10 asked him what he had done (to cause the demonstra-
tion) and why the demonstrators were at the store again. After
the demonstration, Woody’s customers told Wood they would
not enter the store during the demonstration. I credit Wood’s
testimony in this regard.
During the afternoon of the May 10, Sokol had to deliver
three containers of Bud products to a customer. He walked out
of the store with three, 30 packs of beer going to his car, which
was parked in a lot on the right side of the store. He was pre-
vented from using the sidewalk because the picketers were
marching in a circle there. He walked in the street to the en-
trance of the lot, which was partially blocked by a large heavy-
set man. Sokol said excuse me, and the man did not move so he
brushed past him and opened the gate to the lot. At this point,
Sokol dropped the packs of beer, which broke apart. The
heavyset man and some picketers started laughing and yelling
weasel and scab and telling him he was making their job
harder. Sokol returned to the store and told Wood he was going
home. Wood assured Sokol they would not harm him and so
Sokol again went to make a delivery. Sokol went to his car and
opened the gate to the lot. The heavy set man was still there
and did not want to move out of Sokol’s way. Sokol gave the
car gas and the man moved quickly.32 I credit Sokol’s testi-
mony in this regard.
On the May 10, Mahoney parked his car, a 1985 Dodge 600
directly across the street from the store. During the day, picket-
ers could be seen leaning against the drivers side of the care, as

32 R. Exh. 21a is a photograph taken by John Shea and shows the
demonstrators in front of Woody’s on May 10. Inter alia, it shows a
large, heavyset man standing next to the entrance to the parking lot.
Shea identified the man as a union demonstator.
well as leaning on cars identified as belonging to picketers.33 At
no time, did any witness observe any picketer doing anything to
Mahoney’s car, except lean on it. The car was parked in this
spot from 1 or 2 p.m. until he left work at 11 p.m.. Mahoney
never asked Murphy or any other union supporter to have the
men get away from his car. There is no clear showing that any
one demonstrating that day knew the car belonged to Mahoney
or any other Woody’s employee. When he left work, he noticed
two new dents in the rear drivers side of the car. Later, when he
got home, he used a flashlight to better see the damage and at
this time noticed someone had scratched the word, “wessel” in
the paint on the drivers side of the car. According to Mahoney,
this word was not scratched on the car before the May 10.
Subsequently, at some point between May 10 and the date of
this hearing on August 5, Mahoney got an estimate of the cost
to repair his car, and without him knowing how or why, Busch
officials came to see him about the estimate. At some point
Busch officials took photographs of the damage to the car.
Domesick indicated that though Mahoney told Wood about the
damage on May 11, no mention of it is made in Wood’s affida-
vit given to the Board about the picketing on May 10, on May
15.
With respect to both the damage to Mahoney’s car and
Sokol’s car, I will not find a violation of the Act. No one testi-
fied that they saw anyone doing anything to these cars. They
could have been damaged by union members or supporters.
They could have been damaged by nonunion-affiliated vandals.
In both cases, the damage was discovered some time after the
demonstrators had left the area. Absent any real proof with
respect to who caused the damage, I cannot find that it was at
the hands of Respondent’s members or supporters.
6. Respondent’s demonstration at Woody’s on May 3, 1996,
violated Section 8(b)(4)(i) and (ii)(B) of the Act
Respondent’s conduct during its demonstration at Woody’s
on May 3, 1996, shows that it had an unlawful object ab initio.
This demonstration was a continuation of the sort of “in your
face” confrontational conduct used by Respondent throughout
its boycott campaign against Busch. As at Kappy’s and the
Pour House, the illegality of these tactics lies in the manner in
which they coerce secondary persons.34 The underlying legal
principles and arguments establishing that Respondent’s con-
frontational conduct at Woody’s violated the Act have been
previously described concerning the Pour House demonstration.
Those principles are incorporated by reference here and will not
be restated in detail.
The manner in which Respondent chose to conduct the dem-
onstration was designed to be coercive of neutrals. The con-
frontational nature of Respondent’s conduct demonstrates that
33 From a photograph in evidence, Curtis identified four of the six
men leaning against Mahoney’s car as Busch employees. Busch em-
ployee John Shea identified the sports utility vehicle parked behind
Mahoney’s car as his property.
34 Unlike the Pour House, Respondent makes no claim that it lacks
responsibility for any misconduct at Woody’s. The only substantive
difference between the two demonstrations is that John Murphy was not
present at the Pour House. He admittedly was present at Woody’s, yet
took no action to control the misconduct occurring before his eyes.
TEAMSTERS LOCAL 122 1213
at least one, if not the sole, object of the demonstration was to
place pressure on Woody’s, a neutral retailer. See generally
Abreen Corp. v. Laborers, 709 F.2d 748, 754 (1st Cir. 1983),
cert. denied sub. nom. Massachusetts Laborers District Council
Local 609 v. Abreen Corp., 464 U.S. 1040 (1984). The
confrontational conduct at Woody’s was a continuation of
Respondent’s boycott campaign strategy outlined in The Labor
Page, as previously conducted in the group shopping
excursions at Kappy’s and other retailers and the publicity
event at the Pour House. In each case, one object of Respon-
dent’s conduct has been to pressure secondary employers in
Respondent’s campaign against Busch.
The large numbers of pickets at Woody’s and throughout the
adjoining area were designed for maximum impact and maxi-
mum intimidation. The deliberate use of a “human billboard”
of 15 pickets standing shoulder to shoulder along the length of
Woody’s sidewalk sent a clear message that customers and
motorists should not pass to enter the store. Unlike a moving
picket line, a “human billboard” creates a wall, offering no
space for an individual to pass through. It is a visual and physi-
cal obstacle to be circumvented and, in that way, blocked ac-
cess to the store. So intent was Murphy on maintaining this
wall that he instructed his pickets to set up this billboard in the
street when Woody’s vehicle was briefly parked in front of the
store. Murphy gave this instruction despite the fact that picket
signs being held on the sidewalk were still visible to motorists
over the roof of the parked vehicle. Obviously, Murphy felt the
intimidating effect of his billboard was diluted by a car parked
in front of it. He would not allow this to occur, however briefly.
Once the billboard moved into the street, even parking in front
of the store was impeded.
That Respondent had a secondary object in its demonstration
is clearly evidenced through its oral appeals to customers not to
shop at Woody’s. These statements violate the Supreme
Court’s mandate in Fruits & Vegetables, supra, prohibiting a
union engaged in consumer boycott picketing from requesting
the public not to trade with the secondary employer. The oral
appeals to customers at Woody’s demonstrate the unlawful
object of the picketing and are themselves in violation of Sec-
tion 8(b)(4)(B). Electrical Workers Local 11 (L. G. Electric
Contractors), 154 NLRB 766, 768 (1965).
Further, Respondent’s conduct during the demonstration was
designed to make it as difficult as possible for customers to
shop at Woody’s. Access to the premises was blocked in a
variety of ways, beginning with the “human billboard.” This
conduct intimidated and impeded customers who wished to
enter or park in front of Woody’s. Jerry Myers impeded entry
to Woody’s by standing directly in the doorway to handbill,
forcing customers to walk around him or ask him to move.
Carmen Cecere picketed on the sidewalk, deliberately carrying
his sign over his shoulder, rather than upright, and swinging it
in the way of oncoming customers. All of this conduct, indi-
vidually and in totality, was designed to make it difficult for
customers to enter or shop at Woody’s, thereby coercing them
into taking their business elsewhere. The Board has held that
attempting to block entry into a neutral building and making
entry more difficult violates Section 8(b)(4)(ii)(B). Service
Employees Local 87 (Trinity Maintenance), 312 NLRB 715,
725; 746; Laborers Local 332 (C.D.G., Inc.), 305 NLRB 298
(1991).
On at least three occasions, Respondent blocked and im-
peded vehicles attempting to park at Woody’s. This conduct
would necessarily coerce and discourage any potential cus-
tomer from shopping at Woody’s. It is a truism to note that, if
customers have difficulty parking their vehicles, they will gen-
erally find another place to shop.
Respondent further engaged in direct confrontations with
those customers who did shop Woody’s. The pickets attempted
to check the purchases of customers leaving Woody’s by open-
ing and attempting to open their shopping bags. Accompanied
by statements such as “Make sure there is Miller Lite in there,”
this conduct is clearly coercive, constituting a physical confron-
tation of customers who crossed Respondent’s picket line.
While Respondent has a right to urge consumers not to pur-
chase Busch products, it has no corollary right to verify that the
consumers complied with their request. It is no coincidence that
Respondent confined this conduct to female customers, assum-
ing them to be more likely to bend to this coercion.
John Murphy contended that the only picket line conduct re-
lated to customer’s bags occurred when he placed handbills in
customers bags with their permission. This contention is belied
by the testimony that pickets other than Murphy engaged in this
conduct and that customers generally pulled their bags away
and kept walking when confronted by a picket. Murphy’s testi-
mony does establish that he was present and aware of this mis-
conduct when it occurred.
Most egregious is the conduct of one demonstrator who fol-
lowed a customer into her car and checked her purchase while
another demonstrator stood in front of her car blocking her exit.
Such a trespass has an undeniable coercive effect. Each of the
three Woody’s employees present for the incident testified con-
sistently concerning this event. A good deal of testimony con-
cerned the identity of the man in the car and whether it was, in
fact, Jerry Myers. Whether or not Myers is the actual perpetra-
tor of this offense is not the ultimate issue. The fact remains
that each of the three witnesses saw a demonstrator follow a
woman into the passenger side of her car, inspect her purchase,
which lay between them, appear to speak to her and leave her
vehicle after 1–3 minutes. During this time, each witness saw
another demonstrator standing in front of the car, holding a
picket sign with a foot on the bumper preventing the woman’s
exit. She was, in effect, held hostage so that her purchase could
be inspected. Each of the three witnesses gave virtually identi-
cal descriptions of the man in front of the car. Wood and Ma-
honey gave similar physical descriptions of the man in the car;
Sokol was not asked for a detailed description. This testimony
establishes conclusively that the incident occurred.
Respondent was wholly unable to show this incident did not
occur. Respondent’s initial defense, as shown in Murphy’s two
affidavits, was that the witnesses had mistaken picket Tony Pini
visiting with a friend for a coercive incident. Pini destroyed
Murphy’s story by admitting he never entered anyone’s car on
May 3. Respondent thereafter carefully crafted its defense. Five
of the 17 or more demonstrators present testified. Pini and Shea
were not even asked about this incident. Cecere did not deny
the incident occurred. Rather, Cecere responded to specific
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1214
questions, denying only that neither he nor anyone else in a
Patriots hat stood on a car bumper. Cecere further described an
innocent incident of a woman entering her driver’s side door
unaccompanied by any pickets. Only Murphy made a general
denial that he saw any demonstrator enter a customer’s car and
as I noted earlier, Murphy had in the publicity events condoned
confrontation behavior by his members. Respondent has failed
to rebut the clear and convincing testimony of three witnesses
describing this event. Rather, Respondent exerted much effort
attempting to show that it was not Jerry Myers who entered the
car. While this attempt was unsuccessful, even if the identifica-
tion of Myers was erroneous, the facts still show that a demon-
strator coerced a customer by entering her car uninvited to
verify her purchase while another demonstrator blocked her
exit, thereby violating Section 8(b)(4)(ii)(B).
Respondent did not confine its coercive conduct to custom-
ers, but unlawfully induced and encouraged Woody’s employ-
ees to cease performing services for Woody’s. It has been held
that “the words ‘induce or encourage’ broad enough to include
in them every form of influence or persuasion.” Electrical
Workers Local 501 v. NLRB, 341 U.S. 694, 701 (1951). The
Board has found statements to neutrals such as “Anytime you
cross a picket line, it is not right” to violate Section
8(b)(4)(i)(B). Laborers Local 304 (Herring & Worley), 282
NLRB 100, 103 (1986). Respondent’s intent in such conduct is
measured by the totality of the circumstances.Electrcal Work-
ers Local 501 v. NLRB, 756 F.2d 888, 893 (D.C. Cir. 1985).
The Board will measure Respondent’s intent as much by the
necessary and foreseeable consequences of its conduct as by its
stated intent. Mine Workers District 29 (New Beckley Mining
Corp.), 304 NLRB 71, 73 (1991), enfd. 977 F.2d 1470 (D.C.
Cir. 1992).
On May 3, Respondent on three occasions blocked Woody’s
employees attempting to park vehicles at the store. The pickets
seemed quite aware, particularly as to Mahoney and Scott, that
the drivers of the vehicles were employed by Woody’s, thereby
establishing the 8(b)(4)(i) violation. Similarly, having observed
Sokol working in the store, pickets admonished Sokol that he
was making their jobs harder. This was a clear attempt to cause
him to abandon his work and join their cause.
Similarly, pickets booing and saying scab as Woody’s em-
ployees loaded Scott’s truck with Busch products constituted
an unlawful inducement to them to cease these labors in viola-
tion of Section 8(b)(4)(i)(B).
7. Respondent’s demonstration at Woody’s on May 10, 1996,
violated Section 8(b)(4)(i) and (ii)(B) of the Act
Respondent engaged in a virtually identical display of coer-
cive conduct towards customers and employees of Woody’s on
May 10 as it had on May 3. For the reasons previously de-
scribed, Respondent’s demonstration of May 10 also violated
Section 8(b)(4)(i) and (ii)(B) of the Act ab initio.
Respondent picketed Woody’s with even greater numbers on
May 10. While initially creating another human billboard, on
the orders of the police, the picketing resorted to a more tradi-
tional moving picket line shortly thereafter. This method con-
tinued to block Woody’s entrance as pickets paused briefly at
the entrance, forcing customers to go around them. As on May
3, Wood observed regular customers drive away without stop-
ping and was later told by several customers that they had not
come in because of the picketing. These comments validate the
coercive effect of Respondent’s picketing.
Respondent’s pickets again appealed to customers on several
occasions not to go into Woody’s. They continued to check and
attempt to check the purchases of those customers who did not
heed these appeals. All of this conduct was coercive of
Woody’s and its customers in violation of Section 8(b)(4)(i)
and (ii)(B). Service Employees Local 87 (Trinity Maintenance),
supra; Laborers Local 332 (C.D.G., Inc.), supra.
Respondent’s taunting of David Sokol, calling him “scab”
and “weasel,” as he was loading a car for a delivery, unlawfully
coerced and induced Sokol to the extent that he told Wood he
wanted to go home. The pickets’ statements to Sokol that he
was making their jobs harder similarly violated Section
8(b)(4)(i)(B). Laborers Local 304 (Herring & Worley), supra.
The totality of this conduct, as on May 3, demonstrates that
an object of Respondent’s demonstration was to pressure
Woody’s, a neutral retailer.
8. Respondent was not engaged in primary picketing
at Woody’s on May 10
Respondent concedes Woody’s was a neutral on May 3. Re-
spondent’s claim that it was engaged, at least in part, in primary
picketing at Woody’s on May 10 is a late-contrived defense
designed as a ruse to cover for its unlawful picketing. This de-
fense was not raised during the investigation of the initial unfair
labor practice charge, in Murphy’s initial affidavit, or in its
answer to the complaint in this matter. It was raised only in
Murphy’s second affidavit to the Federal court in defense of the
10(l) injunction proceeding. The court gave short shrift to Re-
spondent’s contention. (“Any argument that the primary interest
on May 10 was to put pressure on Woody’s because of the
sidewalk incident is not supported by the evidence.” (GC 57, p.
9.) I agree with the court.
The May 7 delivery incident was no more than a misunder-
standing. There was no discussion of the May 3 demonstration
or the Union by Wood or the Busch employees. There is noth-
ing, in fact, to connect that incident with the May 3 demonstra-
tion. Wood had no reason to deliberately require two employ-
ees, who had not participated in the May 3 demonstration, to
return beer which Wood had to accept that day to receive a
substantial discount. It was not even established that the Busch
employees were disadvantaged by the misunderstanding. It was
not shown that it was more physically demanding for the driv-
ers to reload their truck rather than to deliver to Woody’s or
that Wood believed that to be so. Tinlin and Zuffante actually
received a full day’s pay for working fewer hours, losing only
about $20 in bottle returns, a fact unknown to Wood.
Murphy admittedly conducted no investigation of the inci-
dent before scheduling a second demonstration at Woody’s. He
did not speak to Tinlin or Zuffante. Rather, he seized upon this
misunderstanding as a device to further pressure Woody’s.
Respondent picketed on May 10 with the same signs and
handbills as on May 3. It gave no outward sign to the public in
its demonstration of any dispute with Woody’s. Joseph Zuf-
fante, who had been involved in the May 7 delivery incident,
TEAMSTERS LOCAL 122 1215
participated in the May 10 demonstration. As to the purpose of
the demonstration, Zuffante testified: “It’s the standard picket-
ing. It’s all the same, boycott picketing, consumer picketing, I
don’t know how it’s titled.” (T. 1244.)
Respondent filed no unfair labor practice charge against
Woody’s until May 28, 1996, after Busch had filed its charge
and after Respondent had been informed that complaint was
issuing against it. (The complaint issued on May 30, 1996.)
Respondent, having no primary dispute with Woody’s, had
no legal right to pressure the neutral concerning a dispute re-
garding a delivery. The Union has no role in dealing with
Busch’s customers about such matters. Those dealings are con-
ducted between the wholesaler (Busch) and customer
(Woody’s). Any complaints or issues which Respondent has
concerning the working conditions of its members must be
brought to Busch, not to neutral retailers. In particular, Re-
spondent has no right to picket a neutral retailer concerning the
retailer’s treatment of employees during a delivery for Respon-
dent has no primary dispute with the retailer concerning such
treatment. Thus, when Shea and others admittedly chanted that
Woody didn’t like his beer on the sidewalk and engaged in
other conduct specifically directed at Wood, they were unlaw-
fully coercing him because of their dispute with Busch in viola-
tion of Section 8(b)(4)(i) and (ii)(B).

D. The 8(b)(3) Allegations
The consolidated complaint alleges that Respondent violated
Section 8(b)(3) of the Act during contract negotiations. Specifi-
cally, the consolidated complaint raises the following issues.
a. Did Respondent violate Section 8(b)(3) of the Act by fail-
ing and refusing to provide the Employer with relevant and
necessary information concerning Respondent’s operation of an
exclusive hiring hall?
b. Did Respondent violate Section 8(b)(3) of the Act by fail-
ing and refusing to provide the Employer with relevant and
necessary information concerning Respondent’s Health and
Welfare Plan?
c. Did Respondent fail and refuse to meet with the Employer
at reasonable times and for reasonable periods of time for the
purposes of collective bargaining?
d. Did Respondent fail and refuse to bargain with the Em-
ployer by, inter alia, engaging in surface bargaining, engaging
in dilatory, disruptive, and intransigent conduct at the bargain-
ing table, making burdensome information requests of the Em-
ployer and by informing the Employer it would never get a
collective-bargaining agreement from Respondent?
e. As a remedy for its unlawful conduct, should Respondent
be ordered to pay the negotiation expenses incurred by the
Charging Party in its negotiations with Respondent and the
litigation expenses incurred by the General Counsel and the
Charging Party in the litigation of this matter?
With the exception of some modification when deemed nec-
essary and my views on the issue of requiring Respondent to
pay expenses in this proceeding, I have adopted the brief of the
General Counsel on the 8(b)(3) issues both as to the findings of
fact and conclusions of law. I announced at the end of the hear-
ing that this would be done.35 There were virtually no crediblity
issues with respect to these issues. I found Busch’s primary
witness on these issues, its General Manager Patrick Knipper to
be totally credible and extremely knowledgeable on the factual
matters relating to the 8(b)(3) issues. I found the bargaining
notes of Busch to be the only reliable documentary evidence
concerning the bargaining sessions. In day after day of cross-
examination over the Busch notes and his independent recollec-
tion of what they covered, Knipper was never shown to have
anything but a credible command of what had transpired during
bargaining. The Respondent’s notes of the sessions are incom-
plete and to whatever extent they might conflict with those of
Busch, incorrect. Further, to the extent that one might find it
necessary to make a credibility resolution between the testi-
mony of Knipper and that of Murphy, I credit Knipper over
Murphy in any such instance. Knipper was forthright in his
answers and was perhaps the most honest and most intelligent
witness I have ever heard. On the other hand, Murphy was of-
ten evasive and prone to giving unresponsive answers to ques-
tions.
1. The Employer’s hiring hall information request
The Employer is a sales and distribution company servicing
approximately 2500 retailers in the greater Boston area, provid-
ing them with Anheuser-Busch products, including Budweiser,
Michelob, Busch, and others. The warehouse and delivery op-
eration employees consist of drivers helpers, warehousemen
and mechanics, represented by Respondent in what is known as
the drivers unit.
Delivery routes are created each evening for the beer to be
delivered the following day. The routes are created by a router,
Edward Reardon, who is represented by Respondent. There are
infinite variations in the daily delivery routes. The number of
loads to be delivered, the size of the loads and the number of
stops per load vary widely. Consequently, the number of driv-
ers, helpers, and warehousemen needed daily varies widely.
Busch uses spare drivers, helpers, and warehousemen daily to
fill its need for employees.
The daily need for drivers, helpers, and warehousemen de-
pends on how much beer is scheduled to be delivered that day
and how many employees in each classification show up for
work. Busch has no attendance policy. There is no requirement
that employees show up for work, and no discipline is imposed
for their failure to do so. Employees are also not required to
notify Busch that they are not coming to work. Regular em-
ployees who do not come to work are known as “book offs.”
Book offs fall into two categories. Some employees book off
by simply not coming to work. Others may come to work, see
what routes are available under the “pick bid” system, and

35 As I find at a later point in this decision, virtually everything Re-
spondent has done with respect to bargaining has been with the clear
purpose of delay and that extends to this hearing. I have reviewed the
transcript and notes before adopting the General Counsel’s fact findings
on the 8(b)(3) issues and believe it would be a further waste of judicial
time to in effect retype a large number of pages of facts when there is
no legitimate question as to their accuracy and truthfulness. I have
adopted the General Counsel’s legal analysis after review and believe it
states the law as I know it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1216
chose not to work that day. There is no penalty on the em-
ployee for either type of book off. Under the “pick bid” system,
drivers and helper pick their routes each day by seniority based
on what is available.
Pursuant to article 2 of the 1991–1994 collective-bargaining
agreement36 covering the drivers unit, Busch is required to hire
its spare employees through the union hiring hall.37 The Union
has operated an exclusive hiring hall for Busch’s spare drivers,
helpers, and warehousemen since before Pat Knipper’s tenure
with the Company.38 To be qualified, spare drivers must have a
commercial driver’s license (CDL). Spare warehousemen must
pass Busch’s forklift-training course. There are no special re-
quirements for spare helpers.
Respondent is solely responsible for supplying spare em-
ployees under the existing spare referral system, both in deter-
mining the number needed and determining who is referred.
The number of spares needed daily is primarily determined by
Respondent’s chief shop steward, James Keegan. Other stew-
ards, such as the night warehouse steward, may also contact the
hiring hall when manpower is needed. On occasion, Busch
contacts the hall directly when men are needed. Keegan begins
the process the evening before delivery, when the number of
loads to be delivered the next day is known. Keegan finalizes
the number of required spares the next morning when the num-
ber of employees who appear for work becomes known. Spares
may also be needed during afternoon and night shifts. Busch
uses an average of 40 spares per day.
Respondent’s hiring hall also supplies spare manpower to
Metropolitan Distributing Company, the Miller beer distributor
and Busch’s chief competitor. Respondent supplies Metropoli-
tan with drivers, helpers, and warehousemen, the same as it
does to Busch. Respondent similarly supplied spares to Burke
Distributing Corporation, Metropolitan’s predecessor.
Busch is not aware of the identity of the spares who are be-
ing referred to it by Respondent before they appear for work.
Busch is further not aware of the process used by Respondent
in selecting and referring spares.
Spare drivers and warehousemen begin to arrive about 7 a.m.
in the morning. While Busch has the right under the contract to
reject, without cause, any spare referred by Respondent, as a
practical matter it is unable to do so. By the time the spares
arrive for work and Busch learns who they are, the beer is
loaded and ready for delivery. To reject the spare at that point
would cause a delay in delivery.
In the past few years, Busch has experienced significant
problems with the spare referral system. Seldom do sufficient
spares arrive at 7 a.m., requiring the chief steward to call the
hiring hall and seek more. The lack of available spare employ-
ees has frequently resulted in delayed and rescheduled deliver-
ies. Deliveries are scheduled with customers for a window

36 Art. 2(1)(a) reads: “The Employer shall call the Union whenever
additional help is needed. However, in the event the Union is unable to
provide needed help, the Employer may hire on a temporary basis from
other sources, in accordance with this Agreement.”
37 While Respondent’s counsel contended in his opening statement
that Respondent did not operate an exclusive hiring hall, no evidence
was produced to support this unwarranted claim.
38 There is no hiring hall provision in the plant unit.
period during which Busch promises to deliver and the cus-
tomer knows it will need employees to receive the delivery. In
the first 6 months of 1996, over 600 truck loads had to be re-
scheduled. At an average of 12 stops per truck, that calculates
to about 7000 deliveries not made as scheduled. About 50–60
truck loads had to be delayed until the next day, meaning the
customer did not get delivery at either the time or date re-
quested. Such rescheduling also creates a significant adminis-
trative burden on Busch in communicating with customers,
requiring as many as 12–15 phone calls per delayed vehicle.
Such delays often result in lost sales. This has adversely im-
pacted Busch’s ability to provide quality customer service. In
addition to delayed deliveries, Busch was not satisfied with the
quality of these spare employees.
The most significant incident concerning an insufficiency of
spare employees occurred on Friday, July 3, 1992, the day be-
fore a holiday weekend. Busch had a tremendous amount of
beer to be delivered and was told that the hall was out of men at
8 a.m., when 40 loads remained unmanned. Busch was unable
to reach John Murphy and received no callbacks from the hiring
hall. About 3 p.m., individuals who were members of a furni-
ture movers’ local union began appearing for work.
Busch has encountered additional problems with spare em-
ployees from the hall, including difficulties with supervisors
and additional customer complaints. Busch is concerned that
Respondent’s hiring hall is not operating on a non-
discriminatory basis, since about 99 percent of the referrals are
white males of Irish or Italian extraction. As an employer,
Busch is trying to expand the use of women and minorities in
these positions.
Busch is also unaware of the system by which Respondent
decides to refer spares to each of its two accounts, Busch and
Metropolitan. In the context of a labor dispute, in particular,
Busch is concerned that it is not getting the best employees.
Busch was further concerned that only spares who participated
in Respondent’s boycott activities against it were being referred
from the hall. This belief was formed, in part, by comments of
William Barry, a former president of Respondent.
Sometime in 1995, Pat Knipper was standing in front of the
Fleet Center on Causeway Street in Boston with William Barry
during one of Respondent’s boycott demonstrations against
Busch. While they were discussing the labor dispute, an indi-
vidual came up to Barry and asked what he wanted him to do.
Barry asked him if he had seen John Murphy yet and the man
said no. Barry told the man, who was evidently a spare em-
ployee, to find Murphy because if his name does not go on the
check list, he would not work the next week.39
Pat Knipper had discussed the problems with the hiring hall
with John Murphy on a number of occasions. Murphy has ad-
mitted to Knipper he has difficulty in obtaining a sufficient
number of qualified drivers with CDLs, which are required by
the Department of Transportation to drive Busch’s trucks.
Under the 1991–1994 contract, spare employees become
regular employees if they work 90 out of 120 days in a rolling
39 Barry was not called by Respondent to rebut this testimony.
TEAMSTERS LOCAL 122 1217
period.40 In effect, this precludes Busch from determining who
its regular employees will be, since it is Respondent, in the first
instance, who determines who is referred to Busch for those 90
out of 120 days.
These problems caused Busch to determine that it wished to
hire its own spare employees. Busch thus proposed, in its initial
proposals to Respondent, to eliminate its exclusive reliance
upon the hiring hall for spare employees, allowing it to hire the
best qualified employees, be they from Respondent or else-
where. Busch further proposed increasing the period for spares
to become regulars to working 120 out of a rolling 150 days.
Busch also proposed eliminating that provision of the contract
which called for Respondent to verify the I-9 forms of prospec-
tive spare employees.
In its initial proposals to Busch on October 13, 1994, Re-
spondent also proposed a change in the conversion formula for
spares to become regulars. Respondent’s proposal would have
retroactively made regulars out of spares who had averaged
1040 hours of work annually beginning in 1992.
By letter dated November 14, 1994, Busch made a 26-item
request for information of Respondent concerning its operation
of the exclusive hiring hall. The request was made so that
Busch could assess its proposals concerning the operation of
the referral system, so that Busch could assess Respondent’s
proposal concerning changing the criteria for spares to become
regulars, and for the general purpose of administering the con-
tract.41
Respondent replied by letter dated November 22, 1994, from
its attorney, Stephen Domesick, to Busch’s chief negotiator,
Eric Schmitz (the “first response.”). Respondent made a spe-
cific response in denying each numbered request, but no docu-
ments were provided. The nature of each of these responses
will be discussed below.
Schmitz replied by letter of December 12, 1994, noting, inter
alia, “Your responses are inadequate and incomplete.” Dome-
sick responded by letter of December 15, 1994, contending that
the Union had responded to each request by providing the data
or an explanation as to why it could not.
On November 2, 1995, fully a year later, Busch’s chief nego-
tiator, Arthur Telegen, who had replaced Schmitz, sent Dome-
sick a letter further explaining the Employer’s need to change
the hiring hall system through negotiations and soliciting pro-
posals from Respondent on this issue. The letter noted, at para-
graph 4, that Respondent’s refusal to provide the requested
hiring hall information had “disabled the Company from as-
sessing any continued involvement with the Union hiring hall.”

40 Regular employees receive an additional $2 per hour as well as
fringe benefits, which spares do not receive.
41 During Respondent’s boycott against Burke Distributing, Burke
had made a similar information request of Respondent concerning its
operation of the hiring hall. Respondent had refused to supply the in-
formation resulting in the issuance of a complaint against Respondent
by the General Counsel. Though the matter ultimately settled, it does
not appear that Respondent was required to provide the information. It
is undisputed that Busch was aware of the Burke request and incorpo-
rated some of those requested items in its own request.
Domesick responded by letter of November 9, 1995 (the sec-
ond response).42 In its second response, Respondent restated or
revised its answers of a year earlier, to be discussed below. No
documents or materials were included with the second re-
sponse.
Telegen responded by letter dated November 27, 1995, dis-
puting that Respondent had supplied any meaningful responses
to the November 1994 information request and suggesting that
the second response was motivated by a desire to influence the
upcoming unfair labor practice trial scheduled complaint alleg-
ing Respondent’s unlawful failure to supply the requested in-
formation.43 The letter further discusses certain of Domesick’s
responses to questions concerning the hiring hall made during
negotiations, to be discussed below.
On April 19, 1996, Domesick sent another letter to Telegen
purporting to respond to the initial information request (the
third response). An examination of the substantive responses of
the third response shows it to be identical to the second re-
sponse and, thus, it will not be referred to hereafter.
The third response closes by stating:

With respect to the information which the Union possesses
and which has not yet been supplied, please contact my office
so that arrangements may be made for a representative of the
Employer to review the records and make the calculations and
analyses of the raw data maintained by the Union.

The letter did not disclose what information Respondent was
now admitting to possess, did not explain why it was previously
withheld and did not explain the “calculations and analyses” to
which it refers.
By letter of May 15, 1996, Busch Attorney Caryn Fine re-
quested Respondent immediately copy and forward to Busch all
of the documents to which it referred in its April 19, 1995 let-
ter.
Respondent made no further response until a letter dated
September 18,1996, almost 2 years after the request and just
before the scheduled trial of this matter on October 1, 1996.
Domesick offered in this letter to allow an Employer represen-
tative into the Union’s office 3 days per week for 1 hour each
day with access to the raw data in order to make calculations
concerning Busch’s requests 6, 8, 9, 10, 12, 13, and 14.
Telegen responded by letter of September 24, 1996. Telegen
stated that Domesick’s September 18 letter was the first re-
sponse he had where Respondent offered access to records and,
in order to assess the bona fides of the proposal, asked for a
description of the raw data, the volume of the raw data and a
sample.
Domesick responded on September 24, 1996, reiterating his
offer of 3 hours per week to inspect records. Domesick for the
42 Respondent chose to respond to these requests with a complicated
system of answering questions by referencing, without restating, one or
more prior responses and, on occasion, adding additional information.
This method of responding was evidently designed by Respondent to
make it more difficult for Busch to determine Respondent’s responses
to any particular question. Such a calculated response is arguably evi-
dence of bad faith in responding to the information request.
43 At that time, the trial on this matter was scheduled for December
11, 1995.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1218
first time described the raw data as consisting of calendar year
forms for each employee and enclosing a sample blank form.
Domesick further contended that Busch had demanded in its
information request that Respondent make a variety of calcula-
tions from raw data concerning over 200 registrants for a 3-
year period.
Telegen responded by fax on October 9, 1996, disputing
Domesick’s claim that he had offered to provide access to cer-
tain information in April 1996. Telegen referred to Fine’s May
15, 1996 response to Domesick requesting production of any
documents, to which Domesick did not respond. Telegen fur-
ther denied that Domesick’s offer of 3 hours or inspection per
week, made on the eve of trial, was a legitimate offer. Telegen
termed Domesick’s continuing referral to the company’s re-
quest for “calculations” as “incomprehensible.” Telegen again
requested copies of Respondent’s records, offering to pay any
reasonable photocopying costs or, in the alternative, make cop-
ies of the records supplied by Respondent.
Domesick responded by letter of October 11, 1996. In refer-
ence to Telegen’s letter, Domesick simply stated, “I have sub-
mitted your reply to my client for review.”
Respondent made no further response to the information re-
quest. There has been no further communication between the
parties concerning the information request. Respondent has
produced no documents or materials pursuant to the request.
The specific relevance of each requested item, and Respon-
dent’s various responses, will be discussed below. The subject
of Respondent’s operation of the hiring hall was further dis-
cussed on various occasions during negotiations. Those discus-
sions will be detailed below.
a. Items 1 and 2
In these requests, Busch sought copies of all of Respondent’s
practices and policies concerning the eligibility of employees
for referral from the hall and Respondent’s policies regarding
the dispatching of spare employees. This information was nec-
essary to determine if Respondent had established some eligi-
bility criteria which would explain its admitted difficulty in
providing spare employees to Busch. The information regard-
ing dispatching of spares related to the administration of the
contract as well as to the proposals to change the referral sys-
tem. It further related to Busch’s concerns about the hiring hall,
specifically as to how Respondent allocated spares between the
competing referral of Busch and Metropolitan. Busch was con-
cerned that there could be a policy, for instance, to satisfy Met-
ropolitan’s needs first or that they get the best referrals. This
information would relate to Busch’s proposals to change the
referral system.
In its first response, Respondent stated, as to both items 1
and 2, “There are no such practices or policies copies of which
exist.” Knipper found this response inadequate, noting it was
simply not logical to believe that Respondent did not have
some sort of system for selecting spares to be referred.
In its second response as to items 1 and 2, Respondent
stated, “The Union possesses no materials responsive to this
request.” Knipper found this inadequate for the same reasons.
While Knipper admitted that the request did not specifically
seek any “unwritten” policies, he felt it was implicit in the re-
quest and made clear in Fine’s letter of November 27, 1995,
which states, “The Company continues to seek, but the Union
continues to refuse to provide, useful records and information
on the operation of the Union’s hiring hall.” (Emphasis added.)
As Knipper stated: “I think if you were operating in good faith,
you would have taken that to be that we are looking for infor-
mation about the operation of the hiring hall.” Knipper further
believed that Respondent was legally required to keep written
records of its referral policies. No substantive information or
records responsive to this request were ever produced by Re-
spondent.
b. Items 3–5
These requests concerned any financial charges imposed on
hiring hall referrals by Respondent. Specifically, Busch sought
any charges and the amount charged employees for utilizing
Respondent’s referral service, copies of any policies or prac-
tices in that regard and any charges or fees, with the amount,
imposed on nonmembers of Respondent for utilizing the hall. If
no fees were charged, it asked for the portion of union dues
used for the referral service.
This information was requested to determine if fees charged
by Respondent might be responsible for its difficulty in obtain-
ing qualified employees. Since a CDL is a valuable commodity,
Busch was concerned that the inefficiency in the hiring hall in
dispatching qualified spares might be due to charging an exces-
sive referral fee for work referrals. Additionally, Respondent
has told Busch that its hiring hall is a money-making operation,
further supporting Busch’s concern that such fees could relate
to the insufficiency of referrals. Further, Busch had heard ru-
mors that there were different levels of fees, with lesser ones
being imposed on members.
Respondent’s initial response to each of these items was that
the information was confidential, related to the internal opera-
tion of the union and irrelevant to a mandatory topic of bargain-
ing (herein collectively called the confidentiality defense).
Schmitz responded claiming these defenses were not well
founded and the Respondent’s own statements during negotia-
tions concerning its operation of the hiring hall further sup-
ported the demand for information.
In its second response a year later, Respondent repeated its
initial response, but added that persons referred are expected to
pay a referral fee, though the union had no policies or practices
on such fees, and that no registration fee is charged to utilize
the hall. No further information or explanations were provided.
Respondent never explained the distinction, if any, between
administrative fees and registration fee.
Respondent provided no evidence at trial to support its
claims of confidentiality or irrelevance concerning this re-
quested information, or any of the other requests, discussed
below, where this defense was raised.
Busch found these responses inadequate as they did not pro-
vide the information to allow them to evaluate their concern
about the hiring hall. In particular, Knipper found it hard to
believe that Respondent charges fees, but has no policy con-
cerning charging fees. No additional information was ever pro-
vided.
TEAMSTERS LOCAL 122 1219
c. Items 6–11
In items 6-11, Busch sought information concerning indi-
viduals referred out of Respondent’s hiring hall. Item 6 sought
a listing, by name, for each working day of all spares available
to be referred. Knipper felt that the term “available” as used in
the request was self-explanatory, meaning that the individual
had indicated to the hiring hall that they were available for
work as a source of manpower on a given day. Knipper did not
see how Respondent could know who to call for work if it did
not have a list of who was available. This request was relevant
to the issue of the insufficient numbers of employees referred
from the hall. A listing of the numbers available, with their
names, would allow Busch to determine whether manpower
shortages or other reasons were responsible for the problems
and to address the issue with Respondent. The list of names
would allow Busch to determine whether it was receiving the
best available spares. This information would allow them to
assess their proposal to eliminate the exclusive reliance on hall
for hiring spare employees.
Item 7 sought the same information as item 6, but broken
down by the categories of employees referred-drivers, helpers
and warehousemen. This relates to the issue of obtaining driv-
ers, in particular, from the hiring hall. A listing by classification
would allow Busch to determine if the problem was improving
or deteriorating. Knipper believed that Respondent must main-
tain information by classification since it refers spares by clas-
sification.
Item 8 sought a listing, for all those listed in item 6, of days
worked compared with days where they were available and not
dispatched. This information would address Busch’s concern
about the reliability of the hiring hall, that there may be spares
available on a given day who are not being referred to it.
Item 9 seeks a listing by date of all employees dispatched by
Respondent to Busch. The term “dispatch” is used by Respon-
dent in the operation of its hall, referring to informing an em-
ployee there is work available at Busch and sending him there.
That an employee was “dispatched” does not mean he appeared
for work at Busch. This information was uniquely in the pos-
session of Respondent and would go to the reliability of the
employee. Such information would be relevant in light of the
existing system of automatically converting spares to regulars
based on days worked and the proposed changes in that system.
Item 10 sought a listing by name and day of all employees
dispatched to the Miller distributorship, be it Burke or Metro-
politan. This request related to Busch’s desire to have the best
qualified employees referred to it and would allow them to
assess whether that was occurring in comparison to who was
being referred to the Miller distributor. Busch also wanted to
assess how Respondent distributed employees between it and
Miller on days there were shortages.
Item 11 sought a listing by name and date of any employees
referred to the hiring hall for any employers other than Busch
and the Miller distributor. This information would be relevant
for the same reasons as item 10.
Respondent’s initial response to items 6-11 was identical. In
each case, it raised the confidentiality defense and, further,
contended that each request was overbroad, vague, and sought
information regarding spare employees’ “availability,” which
was not determinable by the Union (the overbreadth defense).
For the reasons stated above, Busch did not find any of those
defenses to be sufficient, particularly the claim of not
understanding “availability.”
A year later, Respondent offered an additional response. As
to item 6, it contended Busch had not shown relevance for the
requested information.
As to item 7, Respondent offered that only those possessing
CDLs were available for referral as drivers. To Knipper, this
response was only common sense, but nonresponsive as it still
did not give the list of names Busch was seeking.
As to item 8, Respondent claimed Busch was seeking a daily
“comparison” for 1000 workdays, and it contended Busch al-
ready had this information and, in fact, had provided it to Re-
spondent pursuant to Respondent’s information request of
Busch. Busch, however, had information as to who had worked
for it, but not who was available to be referred by Respondent.
As to item 9, Respondent contended Busch already had the
information as to who was dispatched and had supplied it to
Respondent. Busch, however, only had information on who it
employed, not who Respondent dispatched.
As to item 10, Respondent claimed Busch had not advanced
any reason of relevance for the request. Further, it contended
that Burke was out of business and that Metropolitan had ad-
vised Respondent not to divulge its information to Busch. Re-
spondent offered no evidence or testimony whatsoever to sup-
port this latter claim. Knipper testified that he had spoken to the
general manager at Metropolitan, Brian Walsh, who stated he
had made no such request of Respondent.
As to item 11, Respondent stated, for the first time, that it re-
ferred employees to no employers other than Busch and Metro-
politan and, thus, there was no data to supply. Respondent of-
fered no explanation as to why it could not have given this an-
swer a year earlier.
On September 18 and 24, 1996, almost 2 years after the ini-
tial request, Respondent states that it possesses information
responsive to items 6, 8, 9, and 10 (as well as 12, 13, and 14),
enclosing a blank calendar page to demonstrate the manner in
which the information is kept for each of the 200 registrants. As
described above, Respondent offered to make these documents
available for inspection 3 hours per week, but never responded
to Busch’s request for copies of the documents.
Busch never received the data requested in items 6–10.
d. Item 12–13
In item 12, Busch sought a listing of the specific dates Re-
spondent was unable to fill the requested number of spares
since December 1991, along with the reason for each such fail-
ure. Item 13 sought the same information concerning the Miller
distributorship. This request related to the efficiency and reli-
ability of the hall and “would sharpen [Busch’s] focus as to
what the issues are with not getting enough people.” (T. 1688.)
The information in item 13, compared with item 12, would
allow Busch to determine if they were being treated fairly in
referrals from the hall.
In its first response, Respondent contended that the request
was not relevant because Busch has never asserted that Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1220
spondent was unable to fill the requested number of spares.
This response was simply untrue, as Knipper and Murphy had
discussed the problem a number of times during the term of the
contract and it had also been discussed “fairly extensively”
during the first couple of meetings.44
Respondent’s second response, a year later, contended that
Busch had advanced no relevance for the request and already
knew the dates when it did not receive all the referrals it re-
quested. Further, it contended that Respondent did not maintain
the reasons, but added that they included insufficient notice
from the Employer, no available CDL-licensed referrals and the
unwillingness of a referral to work. Respondent offered no
explanation as to why it had not offered this information ear-
lier. As to item 13, Respondent contended that it maintained no
records of reasons for shortfalls, and that the “Union had been
advised not to disclose such business-sensitive data to AAB.”
Respondent offered no evidence whatsoever of such a claim
being made, or by who. Brian Walsh, general manager of Met-
ropolitan, told Knipper he made no such request.
e. Item 15
In item 15, Busch asked for a listing of the hours of business
for Respondent’s dispatching function and all telephone num-
bers. This was relevant so that Busch could determine the ade-
quacy of the hiring hall operation. Busch required the hall to
operate 16–17 hours daily. Busch is only aware of the Union’s
main number for the hiring hall. When calling it, Busch has
reached both an answering machine and an answering service,
leading it to believe there must be other ways of contacting the
hall.
The Union’s initial response gave only the Union’s main
phone number, did not discuss whether there were other num-
bers and did not reveal the hall’s hours of operation.
The second response, a year later, reiterated the phone num-
ber and gave the hall’s hours of operations. Busch continues to
believe that there are additional phone numbers, particularly
because of the July 3, 1992 incident when Busch was unable to
contact Murphy about the manpower shortfall, but the chief
steward was able to reach him.
f. Item 16
In Item 16, Busch requested a designation, by name, as to
who from the hiring hall calls Busch and spare employees re-
garding availability. Busch was concerned regarding the effi-
ciency of the hall. Knowing the number of daily calls required
to obtain spares, the extended hours over which those calls
were made and John Murphy’s busy schedule, which frequently
requires him to be out of town, Busch believed that others be-
sides Murphy must be involved in the making of those calls and
the selection process of spares. An insufficient number of indi-
viduals to make those calls could explain the hall’s inability to
meet manpower needs. On the other hand, if individuals affili-
ated with the Miller distributor were making calls, Busch was
concerned that they might favor Miller over Busch in the selec-
tion of spares.

44 While Murphy was called to testify by Respondent, he did not re-
but these contentions.
Respondent did not directly answer this question. Rather, in
its first response, Respondent, claimed the request was unclear
and stated: “The Union’s principal officer is responsible, di-
rectly or indirectly, for contacting ‘spare employee.’ John F.
Murphy is the Union’s principal officer.” Respondent reiterated
this answer in its second response.
Busch did not find this answer responsive, as it did not iden-
tify individuals, only the responsible official. As to the claimed
lack of clarity, Busch felt the request was self-explanatory.
g. Item 17
In Item 17, Busch asked for a statement as to whether Re-
spondent was accepting applications for additions to the spare
listings by classifications, and, if so, whether the number was
limited. Busch wanted to determine, in light of the demon-
strated inability of the hiring hall to provide sufficient spares,
whether it was accepting applications to improve that situation.
In its initial answer, Respondent stated: “In accordance with
law, the Union neither discriminated nor prohibits any indi-
viduals from applying for referrals.” In its second response a
year later, Respondent added: “A person over the age of 18 (as
required by the Massachusetts Alcohol Beverage Control
Commission) and a properly documented resident alien may
submit application for referral.”
Busch considered this answer to be “fencing” with them by
Respondent. Busch had asked a simple question requiring a
simple answer, which Respondent refused to give. Even when
Domesick was asked by Knipper directly during his testimony
whether Respondent was accepting applications, Domesick
declined to answer. Respondent, typically, preferred to answer
such a direct question obliquely, requiring substantial interpre-
tation.
h. Item 18
Item 18 requested a copy of the application used by Respon-
dent to consider applicants for spares, including for DOT and
CDL qualified drivers. Busch wanted this information to de-
termine what types of qualifications or experience level Re-
spondent sought for these positions. Busch, which is ultimately
responsible for those it employs, wished to make sure Respon-
dent was following the proper legal guidelines in its selection
and, further, to determine if there was anything on the applica-
tion which could be causing the hall to have insufficient refer-
rals.
Respondent’s initial response refused to provide the applica-
tion, raising the confidentiality defense. Respondent never ex-
plained these defenses to Busch. In its second response, a year
later, Respondent stated simply: “The application can be pro-
vided.” This response was restated 5 months later on April 19,
1996. Curiously, despite those assurances, Respondent has
never provided Busch with the application, even after the issue
was raised at trial.
i. Item 19
In item 19, Busch requested a copy of the completed applica-
tion for each employee listed in item 6, the request for a list of
all employees available to be dispatched since December 1991.
This information was needed to verify the qualifications and
experience of those available in the hall, to satisfy Busch that
TEAMSTERS LOCAL 122 1221
the referrals were qualified to be its employees and to deter-
mine the efficiency of the hall. The applications could further
assure Busch that it was receiving the best qualified employees
from the hall and that the hall was not discriminating regarding
referrals, discrimination for which Busch could be held liable.
Thus, this request specifically raised issues of administration of
the collective-bargaining agreement.
In its initial response, Respondent raised the confidentiality
defense, but never explained the basis for it to Busch.
In its second response, Respondent simply stated that Busch
had never advanced any reason why this information was rele-
vant. Busch contended this was false, as it had explained a
number of times, before and during negotiations, that the quali-
fications and experience of its employees were important to it.
j. Items 20 and 21
In item 20, Busch asked for copies of Respondent’s policies
and practices regarding nondiscriminatory treatment of spares,
specifically asking for explanations of practices if no policies
exist. Item 21 asked whether Respondent participated in an
affirmative action program regarding the hiring or referral of
spare employees, requesting a copy of such program if in writ-
ing and an explanation of its practice if not. These requests
related to the issue of insufficient qualified employees in the
hiring hall, whether Respondent was treating spares in a non-
discriminatory manner, as well as whether Respondent was
attempting to attract minorities and women. Further, an EEOC
audit in 1992 or 1993 had found Busch to be underutilizing
minorities in these job categories, causing Busch concern re-
garding its hiring and referral practices.
Respondent’s initial response to each item was simply to list
a number of federal antidiscrimination statues without further
explanation. In its second response to item 20, a year later,
Respondent stated that it verified applicant to be 18 years of
age, but had no other information responsive to the request,
providing no explanation as to its nondiscrimination practices.
Busch considered this a nonanswer. In its second response to
item 21, Respondent added that, while it does not discriminate,
it does not participate in any affirmative action program, then
restated the Federal nondiscrimination statues described above.
Busch did not know whether this latest answer was true, and
Respondent never explained why it waited a year to provide it.
Respondent continued to fail and refuse to describe its non-
discrimination practices.
k. Item 22
Item 22 requested the names of all spares, previously identi-
fied in paragraph 6, who were DOT and CDL qualified. This
list would allow Busch to determine if the individuals had be-
come qualified over time and if the hall was actively trying to
increase the number of qualified drivers.
Respondent’s initial reply raised the confidentiality and
overbreadth defense. Respondent’s second response, a year
later, Respondent asserted that Busch had never advanced a
reason why the information was relevant, adding that only
CDL-licensed drivers may be referred as drivers and that Busch
is required to maintain records showing drivers’ qualifications.
Respondent never explained to Busch the defenses in its first
answer. As previously described, it is untrue that Busch had not
explained to Respondent its problems and issues with the hiring
hall not fulfilling its manpower needs. Moreover, Busch is fully
aware that drivers need a CDL and that it must document that
fact.
l. Item 23
Item 23 requested a copy of Respondent’s random drug test-
ing program pursuant to its agreement with Busch of January
27, 1993. Department of Transportation (DOT) regulations
mandate drug testing for all CDL licensed drivers, including
spare drivers. In an agreement dated January 27, 1993, Respon-
dent and Busch had agreed that Respondent would perform the
mandatory drug testing for spare employees and would estab-
lish a program to that effect.45 Busch understood that DOT
regulations required such a program to be in writing. This un-
derstanding arose from the regulations46 and from a service
interpreting those regulations to which Busch subscribed.47
Busch retained the ultimate liability if Respondent failed to
comply with law and regulations in administering its drug test-
ing program.48 Busch is also required to have a copy of the
program in case of a DOT inspection. Thus, Busch requested
this information in order to verify Respondent was properly
carrying out its contractually agreed upon responsibilities.
Respondent’s initial reply was that it possessed no practices
or policies “copies of which exist,” except to the extent that
Busch “had already been provided with written evidence of the
Union’s drug testing program.” Busch assumed this answer
referred to a series of invoices it had received for drug tests
performed on spare employees.
In its second response, Respondent claimed that Federal
regulations did not provide for disclosure of medically sensitive
data, that Busch had not obtained releases from employees
involved and had never explained the relevance of the informa-
tion. The latter contention is simply not true, having been dis-
cussed at negotiations several times. Moreover, Busch was
clearly not seeking any individual’s medical data by this re-
quest, only a copy of the program itself. At no time did Re-
spondent provide a copy, or an explanation, of its program to
Busch.49

45 Par. 13 reads: “Spare drivers furnished by the Union shall be
tested under its controlled substances random testing program for
spare employees subject to the applicable federal regulations in 49 CFR
§§ 109 and 111 and those regulations referred to therein.” (Emphasis
added.)
46 Par. 13 reads: “Spare drivers furnished by the Union shall be
tested under its controlled substances random testing program for
spare employees subject to the applicable federal regulations in 49 CFR
§§ 109 and 111 and those regulations referred to therein.” (Emphasis
added.)
47 See GC 60 at Interpretations-5, Question 12, describing documen-
tation required to be maintained.
48 GC 61 concludes: “It is the employer, not the C/TPA, who must
answer to DOT for noncompliance with DOT requirements if the em-
ployer’s C/TPA does not properly carry out the requirements of DOT
rules.”
49 While Respondent’s counsel stated that John Murphy would tes-
tify to explain these answers, Murphy was never questioned concerning
them. Counsel’s representations can be accorded no evidentiary weight.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1222
m. Item 24
In this item, Busch sought a list of the number of random
drug tests conducted by Respondent, the dates of the tests and
numbers of individuals tested on each date from January 1993
to the present. This information was needed to verify that Re-
spondent was testing according to DOT regulations. The regu-
lations require that 50 percent of the appropriate pool be tested
and that such tests be reasonably spread throughout the year.
The request did not seek the identity of any individual tested or
the results of any test.
Respondent’s initial response repeated its response to item
23 and also raised the confidentiality defense. In its second
response, a year later, Respondent claimed Federal regulations
did not provide for disclosure of the information and Busch had
advanced no reasons for its disclosure.
Busch believed this response to be untrue because the DOT
required the records sought to be maintained, as described in
GC 60 and 61. There are no regulations which preclude disclo-
sure of this information. Further, the drug test invoices did not
disclose the information sought, including the numbers of tests
conducted.
n. Item 25
In Item 25, Busch requested Respondent to list all documen-
tation and other information it maintained to satisfy DOT re-
quirements. The request did not ask for the production of the
information itself. The Department of Transportation requires
some 15–17 different items which must be maintained as part
of a drug testing program. These items must be maintained by
the Employer, who has ultimate liability, or be available to the
Employer within 48 hours. The list includes items such as who
is in the pool, how employees are added or deleted from the
pool and the numbers of positive and negative tests during the
year. Busch requested this list to verify that Respondent was
maintaining the proper information.
Respondent’s initial response claimed the request was un-
clear, but that it maintained all information required by law. It
did not provide a list of the information maintained. In its sec-
ond response, Respondent contended that Busch maintained
these documents, including DOT physical examination forms
and cards. Of course, since Respondent was conducting the
drug testing per the contract, only Respondent would maintain
that information. Respondent never provided such a list.
o. Item 26
In item 26, Busch requested Respondent provide it with veri-
fication of employment documents, including I-9 forms, for
each employee available for referral through the hiring hall. In
a side letter to the collective-bargaining agreement dated Janu-
ary 4, 1989, Respondent had agreed to undertake the federally
mandated verification of employment eligibility, which in-
cluded I-9 forms. Busch had proposed to delete this require-
ment as part of its initial proposals. In this request, in order to
assess its proposal and administer the contract, Busch sought
production of the documents Respondent had agreed to verify.
Respondent’s initial response was to raise the confidentiality
defense. In its second response, it stated that the Department of
Labor had audited its verification of employment data, Federal
regulations did not provide for its disclosure and Busch had not
shown relevance. No information was ever provided.
Busch was aware that the Department of Labor had done a
random sample of Respondent’s records 2 years earlier. Busch
had never received the I-9s or names of the employees involved
and had not verified the information itself. Busch, further,
wished to verify the current information. Respondent refused to
allow it to do so.
2. Discussions of the information request during negotiations
Busch attempted to discuss with Respondent its hiring hall
operation during collective-bargaining negotiations, before and
after its hiring hall information request on November 14, 1994.
During these discussions, Respondent continued to refuse to
provide Busch with information concerning the operation of its
hiring hall.
In the drivers’ meeting of November 3, 1994, prior to its in-
formation request, Eric Schmitz described the problems Busch
had experienced with the hiring hall, including not receiving
sufficient spares and not receiving the spares it prefers. Schmitz
explained how, as a practical matter, Busch had to accept spares
referred by the Union in order to get the trucks out. Pat Knipper
described an incident on the July 4, 1992 weekend where Re-
spondent had no spares and referred 50 furniture workers, re-
sulting in customer complaints. In response, Domesick stated
that the hall preselected spares, doing background checks and
taking care of IRCA matters. Domesick suggested, but did not
propose, that the hiring hall should act as a business and charge
Busch for each spare referred.
An extensive discussion occurred at the March 21, 1995
drivers’ session, during which Schmitz persistently asked Do-
mesick to explain how the hiring hall operated, a question
summarizing items 1 and 2 of Busch’s information request.
Schmitz received a series of nonresponsive, rather bizarre,
analogies in response. Domesick stated:

Why do you need to know? . . . It’s like electricity. I know I
turn a switch and there’s light. That’s all you need to do. You
make a phone call and the employees are there. It’s law and
sausage. That’s all you need to know. Turn on a switch. . . It’s
a magic black box. . . . It’s like a computer. You turn it on and
there it is. . . . It’s like a computer. All you need to know is
what you need to turn it on and make it type and that’s it
. . . . If I type on it, it works. I don’t need to know cobal. . . .
It’s a computer.

Domesick thereafter continued to parry questions concerning
how Respondent selected and referred spares. When asked in
what order spares are called, he responded: “I don’t know. It
could be no order. It could be on a rotation. It could be random.
It’s irrelevant.” When pressed further, Domesick told Busch to
assume spares were called by rotation, then stated: “Do you
want to meddle in our affairs? Do you want to break down ne-
gotiations on how we send you spares?” Domesick continued to
parry questions about spare selection with non-responsive an-
swers, including again analogizing the system to electricity.
When Schmitz asked why Domesick would not answer his
questions concerning the hiring hall, Domesick stated, “It’s
none of your damn business!”
TEAMSTERS LOCAL 122 1223
At the drivers’ session of October 24, 1995, a year into the
negotiations, in response to a question (see items 3–5 of the
information request), Domesick admitted for the first time that
referrals are charged an “administrative fee,” though the defini-
tion and amount of that fee were not disclosed. Domesick fur-
ther responded, for the first time, that referrals were selected on
a “nondiscriminatory and rotating basis,” but refused to re-
spond when asked if all spares got an equal chance at referral
(see items 2 and 20 of request). Domesick thereafter indicated
that Respondent would answer Busch’s information request if
Busch withdrew its proposal to eliminate the exclusivity of the
hiring hall. When Arthur Telegen asked Domesick specifically
to provide a list of those referred and the basis of referral (see
items 1, 2, and 6–11), Domesick stated:

You’re asking for sources of our information. It’s our busi-
ness and it’s confidential. We keep it from you and your
competitors. It’s proprietary and private business information.
. . . Under EEO we are a referring service for money. Since
we represent employees and comply with requests of you and
your chief competitors, we have to keep it confidential. . . .
For three years we resisted your competitors’ request for this
information and we will continue to do that. It’s confidential
business information.

The latter point was in apparent reference to Burke’s request
for similar hiring hall information, which was the subject of a
prior complaint before the Board.
Thereafter, in this same meeting, Domesick refused to an-
swer questions concerning how much the hiring hall charged
employees, how the hiring hall qualified employees, whether
the hiring hall trained employees, and how much money the
hiring hall derived annually from referrals.
On November 16, 1995, Domesick repeated that Respondent
charged an “administrative fee,” not a referral fee, but refused
to disclose the fee or when it is imposed.
On January 19, 1996, a discussion occurred concerning Re-
spondent’s performance of drug testing on spares. Domesick
refused to disclose the number of tests Respondent performed,
how spares were selected for testing and whether or not Re-
spondent had a written drug testing policy (see items 23 and
24). When Busch contended that DOT required testing to be
done at four times during the year, Domesick stated Respon-
dent tested only in December because, in that way, employees
are “on pins and needles for the maximum period of time.”
Telegen stated that such testing was unacceptable to Busch (GC
38(ag), pp. 6–7).
3. Respondent violated Section 8(b)(3) of the Act by refusing to
provide the requested hiring hall information
An employer has a duty to provide a union, upon request,
with information which is relevant and necessary to the collec-
tive-bargaining relationship between the employer and the un-
ion and which is reasonably necessary for the union’s perform-
ance of its function as bargaining representative. Conversely, a
union has a duty to furnish such relevant and necessary infor-
mation to an employer commensurate with and parallel to an
employer’s duty to furnish it to a union. Iron Workers Local
207 (Steel Erecting Contractors), 319 NLRB 87, 90 (1995), and
cases cited therein.
Information concerning terms and conditions of bargaining
unit employees is presumptively relevant and must be turned
over upon request, without any requirement that the requesting
party establish a particular necessity or relevance. Requests for
information relating to persons outside the bargaining unit re-
quire a special demonstration of relevance. This relevance is
established by use of a liberal “discovery type standard.” Id.
Where there is an exclusive hiring hall relationship between
the employer and the union, the Board has held that information
relating to the operation of the union’s hiring hall and its refer-
ral of employees is presumptively relevant both to collective-
bargaining negotiations and to the administration of the collec-
tive-bargaining agreement between the parties. Graphic Com-
munications Workers Local 13 Union (Oakland Press), 233
NLRB 994, 996 (1977), enfd. 598 F.2d 267 (D.C. Cir. 1979)
(collective bargaining); Asbestos Workers Local 80 (West Vir-
ginia Master Insulators Assn.), 248 NLRB 143, 144 (1980)
(administration of the contract). Hiring hall data are also rele-
vant in view of the potential liability of employers in any hiring
hall situation. Laborers (Heavy Contractors Assn.), 285 NLRB
688, 689 (1987).
The Board has analogized the information on hiring hall re-
ferrals to information furnished by employers to unions con-
cerning employee job classifications and wage rates, and that
such information is “clearly relevant and necessary” for an
employer “to evaluate the present referral practices under the
existing contract, to test the validity of its [contract] proposals
and to formulate future contract proposals on referrals.” Oak-
land Press, supra at 996.
A mere claim of confidentiality is legally insufficient to
overcome a union’s obligation to supply data concerning its
hiring hall, for the employer is not seeking the union’s mem-
bership lists, but rather the list of applicants who utilize its hall.
Electrical Workers IBEW Local 497 (Apple City Electric), 275
NLRB 1290, 1292 (1985), enfd. 795 F.2d 836 (9th Cir. 1986).
These principles demonstrate that Respondent has violated
the Act by refusing to supply the requested information. The
Board has specifically found that Respondent’s referral prac-
tices and policies (items 1 and 2), lists and data concerning the
“availability” of employees through the hiring hall (items 6, 8),
and the identity of the individual responsible for the administra-
tion of the hall (item 16),50 lists of employees on the referral list
by category (items 7 and 22);51 requests for referrals by all
employers utilizing the hiring hall (items 9–13,) and lists of
employees referred, by classification, to other employers which
utilize the hall (items 9–13);52 and the names of employees

50 Graphic Communications Workers Local 13 (Oakland Press), su-
pra at 995. Contrary to Respondent, the Board had no difficulty in
defining the term “availability” and finding such information presump-
tively relevant.
51 Asbestos Workers (West Virginia Master Insulators Assn.), 248
NLRB 143, 144 (1980).
52 Laborers (Heavy Contractors), supra at 689.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1224
utilizing the referral system (items 6–13)53 are relevant and
must be disclosed.
While no specific showing was required, Busch’s problems
in obtaining sufficient referrals from the hiring hall during the
term of the prior contract establish the relevance of the requests
for the fees charged by Respondent (items 3–5), the business
hours and phone number for the hiring hall (item 15) and the
requests concerning applications (items 17–20). Moreover, as
Busch is ultimately liable for any discriminatory acts towards
employees it employs, it was entitled to information concerning
Respondent’s policies and practices which would assure non-
discrimination (items 20 and 21). Laborers (Heavy Contrac-
trors), supra at 690.
The requests in items 23–25 concerning information main-
tained by Respondent concerning its drug testing program and
item 26 concerning the employment verification information
are similarly relevant. Respondent undertook the drug testing
and employment verification obligations pursuant to contrac-
tual agreements with Busch. Busch was entitled to the re-
quested information to verify that Respondent was meeting
those obligations. Busch was similarly entitled to the informa-
tion to assess the proposals it had made to alter those two con-
tractual agreements. Busch sought no information which was
confidential or prohibited by law to be released. Respondent’s
contentions in this regard were simply designed to avoid re-
sponding to the requests.
Respondent’s various responses to these requests consisted
of fencing and playing games with Busch. At trial, no witnesses
or evidence was produced to explain Respondent’s refusal to
provide the requested information or its reasons therefore.
There is no evidence to support its claimed defense of confi-
dentiality, repeatedly made. Moreover, the Board has rejected
the defenses of confidentiality54 and overbreadth55 concerning
the production of hiring hall information. Its defenses contend-
ing that it failed to understand “availability” and that Busch
sought extensive “calculations” from Respondent are similarly
unexplained and wholly unfounded. There is no evidence that
Busch sought calculations from Respondent. At no time did
Respondent attempt to explain the form in which it kept its raw
data in order to reach an understanding of compliance with
Busch. Only in September 1996, 2 years after the request, did
Respondent reveal for the first time that the information is
maintained on a simple calendar sheet for each referral, a single
page per year for each referral. This information could readily
have been copied and provided to Busch to provide its own
analyses.
The extent of Respondent’s game playing with Busch is re-
vealed by its responses to Item 18 where, a year after refusing
to provide a copy of its application form, it stated that the ap-
plication could be provided, yet never provided it, even after
this was brought out at trial. In fact, each of Respondent’s an-

53 Electrical Workers Local 497 (Apple City Electric), supra at 1292;
see also American Commercial Lines, 296 NLRB 622, 651–654 (1989).
54 See Electrical Workers Local 497 (Apple City Electric), supra at
1292.
55 See Plasterers Local 346 (Brawner Plastering), 273 NLRB 1143,
1149 (1984).
swers is couched in language to make them appear facially
plausible, though requiring interpretation and reading between
the lines. Yet, none of them simply and specifically answer the
questions posed, as the law requires. In totality, each written
answer conforms to Attorney Domesick’s response at the
March 21, 1995 negotiations: “It’s none of your damn busi-
ness!”
Moreover, the sincerity of Respondent’s written responses
must be viewed against the background of its conduct during
negotiations on these requests. Respondent’s consistent spar-
ring and avoiding answering these requests when posed during
negotiations demonstrates that it was determined to refuse to
disclose the information. Its defenses were simply a device to
that end and were not sincerely maintained. Domesick admitted
Respondent had successfully resisted Burke’s request for simi-
lar information for 3 years and would resist Busch as well.
Most telling was Domesick’s statement to Busch that the in-
formation was “none of your damn business!”
These comments demonstrate that Respondent’s defenses
were not made in good faith, but were part of a calculated strat-
egy to avoid providing the requested information and to frus-
trate the negotiating process. The convoluted manner of Re-
spondent’s answers to the request, requiring cross-referencing,
indexing, and interpretation to be understood, evidences the
same type of game playing Respondent demonstrated through-
out the negotiations and at trial. Its primary purpose was to
delay and frustrate the negotiating process.
In certain instances, Respondent offered responses a year af-
ter the request which may arguably be viewed as responsive to
the request. (See, e.g., items 5, 11,12, 13, and 21.) Respondent
provided no reason for its delay in making these responses,
even if they are viewed to be adequate. Once a request for rele-
vant information was made, Respondent had a legal obligation
to provide relevant information reasonably promptly and in
relevant form or adequately explain why it is unable to comply.
Detroit Newspaper Agency, 317 NLRB 1071, 1072 (1995).
It cannot be disputed that Respondent failed to provide the
information “reasonably promptly,” nor did it provide, or offer
to provide, any information, such as its referral information, in
a reasonable form. Accordingly, Respondent further violated
the Act by this delay in providing information. An unreasonable
delay in furnishing information is as much a violation of the
Act as an outright refusal. Teamsters Local 921 (San Francisco
Newspaper), 309 NLRB 901 (1992).
4. The Employers health and welfare information request
Pursuant to its collective-bargaining agreements with Re-
spondent, Busch participates in a multiemployer health and
welfare fund, the Teamsters Local No. 122 Health and Welfare
Fund (the Fund), on behalf of employees in both units. In recent
years, no descriptions of the benefits paid to employees under
the plan by the funds have been attached to the contract. Also
participating in this Fund are Metropolitan Distributing Co., as
did its predecessor Burke Distributing, and Charles Gilman Co.
Busch, with over 200 employees, has the largest number of
participants in the Fund.
The Fund is administered by trustees. John Murphy is a un-
ion trustee and chairman of the Fund. William Burke of Burke
TEAMSTERS LOCAL 122 1225
Distributing was the employer trustee until sometime in 1993.
He was replaced on June 9, 1994, by Carmine Martignetti of
Metropolitan Distributing. During the period between Burke
and Martignetti, there was no employer trustee. The Union and
employer trustees each vote as a block. The Fund’s counsel is
Stephen Domesick, who is also counsel to Respondent. The
Fund shares office space with the Union.
The collective-bargaining agreements set the contribution
levels of participating employers. Benefits and eligibility, how-
ever, are determined and adjusted solely by vote of the trustees.
Prior to the 1994 negotiations, Busch had concerns about the
operations and stability of the Fund. During the 1991 negotia-
tions with Busch, Respondent had indicated the Fund was fi-
nancially insecure, an insecurity further stressed by the subse-
quent 3 year labor dispute with Burke Distributing.
Busch agreed to premium increases during the term of the
1991 contract. Despite this, Busch later learned of benefit and
eligibility cuts for its employees during that period. One of
these cuts was a loss of prescription drug coverage. Busch was
not formally notified of any such changes by the Trust. Rather,
on one occasion in October 1992, John Murphy told Pat Knip-
per that cuts were being implemented following an employee
meeting to be held in a couple of days. Murphy did not specify
whether he was acting in his union or Fund capacity in so in-
forming Knipper. A month or so before the 1994 negotiations,
Busch heard from employees that the drug coverage had been
reinstated, though it received no such notice from the Fund or
Respondent.
Busch was additionally concerned that its premiums were
being used to fund benefits to employees of other employers.
This concern arose from its position as largest participating
employer, but also because Burke was not paying premium
increases during the labor dispute, while its employees contin-
ued to receive benefits. This concern was further heightened by
the fact that Busch pays family rate for all employees, even
those with single coverage. Respondent refused to divulge to
Busch what happened with these excess premiums.
Busch had additional concerns about the Fund’s operations.
By 1993, a dispute had arisen between Murphy and William
Burke, the sole employer trustee at the time, concerning the
Fund’s operations. Burke was concerned for his own liability if
he signed checks after Murphy had unilaterally changed benefit
levels and eligibility requirements. From some time in 1993,
when Murphy “accepted” Burke’s resignation, until June 9,
1994, there was no employer trustee, and Murphy operated the
Fund alone. About January 1, 1993, Murphy established a sepa-
rate bank account from which only he could disburse funds.
This new account was funded by a series of $745 withdrawals
from the Fund’s account by Murphy. The Fund’s rules required
employer and union trustees to sign checks over $750. The new
account allowed Murphy to disburse funds in excess of $750
without an employer trustee cosigning the checks. This infor-
mation was confirmed to Busch through a Price Waterhouse
audit performed about December 1993. This information
caused Busch concerns that the Fund was operating illegally.
Murphy approached Knipper in 1993, during the Miller con-
tract dispute, and asked him to be a Fund trustee, replacing
William Burke. Knipper was reluctant to accept because of his
concerns about the legality of the Fund’s operations and set
certain conditions on his acceptance, including the performance
of Price Waterhouse audit described above. By June 1994,
Knipper still had not accepted a trusteeship and Carmine Mar-
tignetti, from Metropolitan Distributing, was appointed em-
ployer trustee. Respondent did not disclose Martignetti’s ap-
pointment to Busch until questioned by Busch at the negotiat-
ing session of November 3, 1994.
Despite the appointment of Martignetti, Respondent and the
Fund jointly sued Busch about September 1, 1994, to compel
Busch to appoint an employer trustee to the Fund. During the
negotiations, Stephen Domesick termed this joint lawsuit a
“wake up call” to Busch concerning the upcoming negotiations.
The suit was thereafter dismissed on Busch’s Motion for Sum-
mary Judgment.
Despite its concerns about the Fund’s stability and opera-
tions, Busch informed Respondent early in the 1994 negotia-
tions that it did not intend to withdraw from the Fund and was
prepared to maintain or increase benefit levels to employees.
Busch expected the Fund to be a major issue in negotiations
and anticipated a substantial demand for increased premiums by
Respondent. Respondent did not make any economic demands
concerning the Fund until April 16, 1996, when it proposed
increases of 12–15 percent per year for 3 years, with 1 year of
retroactive payments.
In order to address the concerns described above and prepare
for bargaining concerning the Fund, Busch presented an infor-
mation request directed to Respondent and the Fund at the ne-
gotiating session of November 3, 1994. Domesick initially re-
fused to accept the request from Schmitz without even reading
it, claiming it had to be submitted to the Fund. Domesick stated
he “jealously guarded” the distinction between his two capaci-
ties. Schmitz informed him the request was submitted to him in
both capacities—as counsel for the Fund and as counsel for
Respondent—and that the information was needed for negotia-
tions. After some discussion, Domesick accepted the informa-
tion request.
In its request, Busch asked for the following information:
(1) A copy of the current plan document, including amend-
ments and supplements.
(2) A listing of all benefits provided employees of any par-
ticipating employer, including all changes in benefits, their
effective dates and reasons for the change since November 13,
1991.
(3) A listing of all eligibility requirements for benefits pro-
vided to employees of any participating employer, including all
changes in requirements, benefits affected and the effective
date of the change since November 13, 1991.
(4) The financial contribution level of each participating em-
ployer since November 13, 1991, including any contribution
levels contractually committed to following the date of the
request.
(5) The Fund or the Union with any organization which pro-
vides benefits concerning the projected future cost of benefits
with copies of any correspondence concerning projected future
benefit costs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1226
(6) Minutes and other records from meetings of the Fund
Trustees from November 13, 1991, with a specific request con-
cerning actions of the Trustees to change benefits.
(7) A copy of the most recent audited statement of assets and
liabilities and the most recent audited income and expense
statement, as well as the most recent unaudited such statements,
as well as any other documents showing the Funds assets and
liabilities.
Domesick responded, on behalf of the Fund only, in a letter
dated November 9, 1994. As to item 1, Domesick contended
that a copy of the current Fund Trust Agreement had been
served upon Busch in connection with the lawsuit jointly filed
by the Fund and Respondent against Busch about September 1,
1994. As to item 7, Domesick enclosed a copy of the auditor’s
financial statement for the year ending July 31, 1993, promis-
ing to furnish subsequent reports upon receipt. Domesick re-
fused, on behalf of the Fund, to provide any information re-
quested in items 2–6, contending Busch had no ERISA right to
such information.
On December 9, 1994, Eric Schmitz sent a letter to Dome-
sick on behalf of Busch disputing Respondent’s right to refuse
to provide the requested information. Schmitz again explained
his request was to both the Fund and Respondent, again ex-
plained the basis for the request and again requested compli-
ance with it.
Domesick responded by letter of December 13, 1994. While
it is not explicitly clear from the letter, it appears this letter was
written by Domesick on behalf of Respondent, not the Fund.56
In this letter, Domesick restates his contention that Busch is not
entitled to the information under ERISA. Domesick contended
that, because Busch had yet to make a proposal concerning the
health and welfare fund, no relevance to the request could be
established. He further states that the Fund had answered the
request and that Respondent has no further obligation to pro-
vide the information. Domesick makes no contention that Re-
spondent did not possess the requested information.
Respondent supplemented its response in a letter dated May
25, 1995.57 This letter was evidently written in response to the
authorization of a complaint by the Regional Director against
Respondent for its refusal to provide the requested information.
Respondent asserted it had no legal obligation to seek informa-
tion from the Fund in response to the request. The letter further
asserts that the Fund answered items 1 and 7. As to items 2–4,
Respondent asserted that Busch had received the information
through the Price Waterhouse audit of late 1993, and, further,
that the information was in the Fund’s, not Respondent’s, pos-
session. As to items 5 and 6, Respondent claimed the informa-
tion was in the Fund’s possession, not Respondent’s. Thus,
Respondent refused to provide any of the requested informa-
tion.

56 In his subsequent letter of July 11, 1995, Domesick explained that
by copying the letter to Murphy as secretary-treasurer, he made clear,
in his opinion, that the letter was written on behalf of Respondent.
57 Once again, it is not clear on whose behalf Domesick wrote the
letter. Based on Domesick’s assertion, it may be presumed to be on
behalf of Respondent, since the cc: is to John Murphy as “Secretary-
Treasurer”, not “Chairman.”
Schmitz responded to Domesick by letter of July 7, 1995.
Schmitz disputed Domesick’s claim that Respondent did not
have to seek the requested information from the Fund. He fur-
ther disputed that Respondent had received the requested in-
formation through the Price Waterhouse audit. In particular,
Schmitz noted that, contrary to Domesick’s claim, Respondent,
not the Fund, possessed the collective-bargaining agreements
which set the contribution levels of participating employers.
By letter of July 11, 1995, Domesick responded, stating, for
the first time, that the contribution rate for the Miller distributor
remained the same as described in the Price Waterhouse audit
even after Metropolitan took over. Domesick provided no other
information. Respondent made no further response to the in-
formation request.
Busch had requested a copy of the Trust Agreement (item 1)
so that, as a participant, it would have the most current and
accurate information concerning the plan and its obligations
under it. Busch believed it was entitled to a copy of the original
agreement, not the retyped version provided by Respondent
through its lawsuit, so that it could be satisfied as to the docu-
ment’s accuracy.
Busch sought information about benefit and eligibility levels
and changes thereto (items 2 and 3) to assess the stability of the
plan, to value Busch’s contributions levels in preparation for
negotiations and to address its concerns about the changes
which had been made in these areas. Busch further wanted to
assess the value of its contributions and benefits compared to
other participating employers. Contrary to Respondent’s con-
tention, Busch had not received this information from the Price
Waterhouse audit performed a year earlier, which is evident in
the report itself. It would be expected that John Murphy would
possess information as to both benefits and eligibility in his
capacities on behalf of Respondent and the Fund.58
In a discussion at the negotiation session of November 9,
1994, John Murphy explained, off the top of his head, the eligi-
bility criteria for benefits for Busch’s employees.59 Murphy did
not provide this information concerning other employers. Curi-
ously, when the Fund’s and Respondent’s initial responses to
the information request were received after this discussion, they
each refused to disclose this same information relating to any
employer, including Busch.
Busch requested the contribution levels of participating em-
ployers (item 4) to determine if it was getting proper value from
the Fund; to determine if it, as the largest participant, was fund-
ing benefits to other employer’s employees and to assess the
Fund’s stability. This information would be contained in collec-
tive-bargaining agreements in Respondent’s possession. While
the Price Waterhouse audit did describe Burke’s contribution
rate as of 1993, it did not disclose rates since 1991, the rate at
the time of the request, any future contract rates or the rates of
other participants, such as Charles Gilman.
58 Even Attorney Domesick believes Respondent possesses this in-
formation.
59 Murphy did not explain whether he possessed this information in
his capacity as chairman of the Fund or secretary-treasurer of Respon-
dent. It is most likely that he was unable to separate the two functions.
TEAMSTERS LOCAL 122 1227
In preparation for negotiations, Busch asked for correspon-
dence between the Fund or Respondent with health benefits
organizations concerning the future costs of benefits (item 5).
This information, since it would be within Respondent’s
knowledge, would insure Busch was on an equal footing for
negotiations and assist it in determining whether to continue
participating in these funds. Busch believed Murphy possessed
this information since he is the one who deals with insurance
carriers on such issues. Busch further believed Murphy used
this information as a representative of Respondent in preparing
his proposal to Busch calling for a large rate increase. Respon-
dent never denied it had any of the requested information (T.
1815–1818; 3365–3366).
Busch asked for minutes of Trustees’ meetings (item 6) in
order to verify that the Trust was acting within ERISA, particu-
larly as to the changes in benefits and eligibility. Busch had not
received such minutes since 1991. Respondent’s initial re-
sponse neither denied that such minutes exist, nor that they
were in the possession of Respondent .
Busch asked for the most recent audited and unaudited fi-
nancial statements of the Fund in order to verify its financial
condition (item 7). The Fund is required to provide Busch and
Respondent with its annual audited financial statement. Re-
spondent did provide Busch with the statement for the year
ending July 31, 1993, over a year earlier, and stated it would
provide subsequent reports upon completion. No other reports
were provided, however, either at that time or any subsequent
time through the completion of the trial, by which time 3 more
years of reports should have been completed.
Busch had assumed it would receive the requested informa-
tion since John Murphy had willingly provided the same, or
similar, information in the past. In 1993, when considering
whether to serve as trustee, Knipper requested a variety of in-
formation from Murphy in his capacity as chairman of the
Fund. Murphy provided Busch with a listing of the rates paid
and total contributions for each of the contributing employers,
copies of the health and welfare portions of each employer’s
collective-bargaining agreement with Respondent, as well as
copies of the contracts which the Fund had with its insurers,
which contained benefits and coverage information and a gen-
eral description of the benefits at each employer. At no time did
Murphy contend, as he did in response to the information re-
quest, that there was any legal impediment under ERISA or any
other statute to the production of this information.
When Respondent made its demand for premium increases
on April 16, 1996, a discussion occurred concerning the infor-
mation request (GC Exh. 38(ao), pp. 1–10). Busch’s negotiator,
Arthur Telegen, told Respondent that Busch could not assess
the proposal without the information it had requested, particu-
larly the benefits levels and financial contributions of other
employers. Domesick refused to be pinned down on whether
the benefits paid by Busch were used to subsidize other em-
ployers. Telegen further asked Domesick to allow Busch to
meet with Blue Cross representatives to obtain cost projections,
since Respondent had refused to provide that information. Do-
mesick refused to give permission. Telegen asked Domesick to
provide what the Fund had paid Blue Cross for each plan in the
last 3 years. Domesick refused, contending it was confidential.
During this session, Telegen asked Domesick if he had
talked to an attorney for the plan or its Board of Trustees before
making his demand for increased premiums. Domesick re-
sponded: “As you ask the question, the answer is no. If you ask
can John [Murphy] compartmentalize and internalize. That’s
pretty damn hard.” To Knipper, this admission validated his
concern that Murphy’s dual functions overlapped and could not
be separated. He was, in fact, in control of both the Fund and
the Union and using each to his benefit.
Despite his earlier contention, Domesick provided the infor-
mation requested by Busch on April 16 at the next bargaining
session on May 21, 1996. Domesick did not indicate whether he
was providing this information as counsel to the Fund or coun-
sel to Respondent, nor did he explain how or in what capacity
he was able to obtain the information. At that meeting, Murphy
also confirmed that he had, in fact, changed eligibility levels in
the past. Murphy described what these levels had formerly been
and stated that there was a lifetime cap on benefits for employ-
ees. Murphy did not explain in what capacity he provided this
information, nor did he explain why he had not provided this
type of eligibility and benefit information previously.
5. Respondent violated Section 8(b)(3) of the Act by refusing to
provide the requested health and welfare information
In Hospital Employees (Sinai Hospital), 248 NLRB 631
(1980), the Board held that a union has an affirmative obliga-
tion to direct its representatives among benefit fund trustees to
provide an employer with relevant and necessary information
concerning the trust funds. The Board held that the Union had
an “affirmative obligation to make a reasonable effort to obtain
the information, or to investigate reasonable alternative means
to obtaining it, or to truthfully explain or document the reasons
for its unavailability.” Id. at 633 (footnote omitted).
Thereafter, in NLRB v. Amax Coal Co., 453 U.S. 322 (1981),
the Supreme Court held that the trustees of jointly administered
trust funds are not agents of their respective parties but are
fiduciaries whose duty to the trust overrides. This decision
caused the Board to modify its holding in Sinai Hospital. In-
Food & Commercial Workers (Layman’s Markets), 268 NLRB
780 (1984), the Board held the actions of trustees could not
serve as the basis for finding a violation under the Act unless “a
collectiv- bargaining representative demonstrates that it is in de
facto control of a nominally independent trust fund.” Id. at 781.
Whether or not the Union is in de facto control of the Fund,
the Board has held that it has an obligation to provide any rele-
vant information concerning the fund and its operations which
it possesses. Plasterers Local 346 (Brawner Plastering), 273
NLRB 1143, 1144 (1984). Further, the Union is also required to
respond to the request by investigating alternative sources of
the requested information or to explain its unavailability. Hos-
pital Employees District 199E (Johns Hopkins), 273 NLRB 319
(1984). The Union also may not act to prevent the employer
from gaining access to the requested information and should
cooperate with the employer to gain access to the requested
information. Food & Commercial Workers Local 1439 (Lep-
Re-Kon Marts), 271 NLRB 774, 775 (1984).
There is no doubt that the information requested by Busch is
relevant and necessary to collective bargaining. Sinai Hospital,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1228
supra. Each of the requested items of information related to
Busch’s ability to administer the contract and to prepare for
negotiations, where it expected the health and welfare plan to
be a major issue. The request was specifically directed to both
Respondent and the Fund, a point repeatedly made clear by
Busch. Like the hiring hall information request, Respondent
made no effort to comply. Rather, it engaged in typical game
playing, making no meaningful response to the request.
Even as to item 1, the copy of the plan, Respondent’s re-
sponse was inadequate. Busch requested a copy of the actual
document, not a retyped version from Attorney Domesick’s
computer. Particularly in light of the endless game playing by
Respondent throughout this matter, Busch’s request was not
unreasonable. Only a signed copy of the original document
could assure Busch that it had an accurate document upon
which it could rely. Certainly, production of a photocopy of the
original is of no greater burden to Respondent than production
of a retyped computer version of the plan document.
Respondent had an obligation under the Act to produce the
requested information. The facts demonstrate that Respondent,
through John Murphy, was in de facto control of the Fund. At
the outset, it must be acknowledged that Respondent produced
no evidence whatsoever at trial concerning the relationship
between itself, Murphy and the Fund, even though Murphy was
available and did testify and Attorney Domesick is the counsel
to both the union and the Fund. This fact warrants an inference
that Respondent was in de facto control of the Fund.
Grimmway Farms, 314 NLRB 73 fn. 2 (1994). Further, the
facts which are known confirm that, at all times, Murphy and
Domesick wear two hats, one for the Fund and one for Respon-
dent, which are constantly interchanged. It is virtually impossi-
ble to know which hat is being worn at a given moment by
either of them.
Murphy is both chairman and administrator of the Fund and
secretary-treasurer and principal officer of Respondent. Ste-
phen Domesick is counsel to both entities. These facts alone
demonstrate that there is no independent counterbalance be-
tween the two operations. Respondent and the Fund also share
office space.
Murphy operated the Fund alone, with no employer trustee,
for over 18 months in 1993–1994, when there was a dispute
concerning William Burke’s serving as employer trustee. Dur-
ing this time, Murphy unilaterally changed employee benefits
and eligibility requirements under the Fund. In the absence of
an employer trustee, Murphy created a separate bank account
on which he alone could issue checks. As shown by the Price
Waterhouse audit in 1993, Murphy then funded this new ac-
count with a series of $745 checks, thereby subverting the
Fund’s rule requiring cosigners on checks over $750. When an
employer trustee was finally appointed in June 1994, just be-
fore the onset of the Busch negotiations, Murphy did not in-
form Busch of this fact until questioned in November 1994.
Rather, Respondent and the Fund, orchestrated by Murphy and
Domesick, sued Busch on September 1, 1994, to compel Busch
to appoint an employer trustee to the fund, while knowing an
employer trustee was already in place. This joint cooperation
between the Fund and Respondent was termed by Domesick a
“wake-up call” to Busch concerning the negotiations. This fact
conclusively demonstrates that Murphy controls the Fund and
uses it to assist him in his role as a Union official.
Similar confusions between their respective roles was dem-
onstrated by Domesick and Murphy at the bargaining table.
Domesick admitted that Murphy could not compartmentalize
and separate his two functions. The complete integration be-
tween the Fund and Respondent is demonstrated by Domesick’s
admission that there is no consultation between the two before
Respondent made proposed premium increases. Obviously,
when the entities are the same, no consultation is required or
possible. Murphy also on occasion provided information at the
bargaining table which he refused to supply to Busch pursuant
to the information request. It is never clear in which capacity
Murphy is speaking when he provides information at the table.
This demonstrates that Murphy possesses the information in his
dual capacity, that these “two hats” cannot be separated and
that his refusal to provide the information is willful and in bad
faith.
This confusion of roles extends to Domesick’s correspon-
dence on behalf of his clients. It is only clear on whose behalf
Domesick is writing by the capacity in which he copies John
Murphy on the correspondence. Thus, to third parties, it is not
clear at all. Such obscurity can only be deliberate, and typifies
the game playing which Respondent prefers to engage.
The facts are strikingly similar to those in Hospital Employ-
ees (Sinai Hospital), supra, where the Board found union repre-
sentatives to be in de facto control of a trust fund. In Sinai Hos-
pital, the funds executive director and its chairman of the board
of trustees were also the vice president and president of the
union and were responsible for negotiating collective-
bargaining agreements. The Board found that both officials
wore “two hats” which were intertwined. In refusing to provide
the requested information, which concerned contribution and
benefit levels of the benefit fund, the Board found that the con-
trolling trustee was

speaking with a union voice while wearing his fiduciary hat,
an[d] that he was not acting solely in the interests of the em-
ployee participants and their beneficiaries, whose benefits ul-
timately depend on freely and fairly negotiated contributions
from the employers, but rather was acting to support the inter-
ests of the Unions. [H]is action was inimical to the interests
of the beneficiaries in that it undermined the good faith bar-
gaining on which the employer contributions providing the
benefits depend. [Sinai Hospital, supra at 633.]

Respondent and John Murphy are in de facto control of the
Fund. Their refusal to provide the requested benefit fund infor-
mation was not in the interests of fund participants, but rather in
support of Respondent’s “detailed bargaining” approach, de-
signed to delay negotiations and forestall any impasse or strike
possibility. Busch was prepared to discuss premium and benefit
increases but needed the requested information to investigate
the stability of the Fund and make appropriate proposals. To
refuse the information in these circumstances served to prevent
the possibility of increased benefits for employees and did not
serve employees’ interests in any manner. Only Respondent’s
institutional interests were served by those refusals. As the
individual in control of both entities, Murphy had the obligation
TEAMSTERS LOCAL 122 1229
to make an effort to obtain the information or investigate alter-
native means to obtain it. In Murphy’s case, all he had to do
was ask himself to produce it. This he refused to do.
Respondent, further, did not promptly respond to the request,
either by seeking to obtain the information or providing the
means to obtain it. Though served with the request simultane-
ously with the Fund, Respondent did not even respond until
December 12, 1994.60 This response merely reiterated the
Fund’s prior claim that Busch had no ERISA right to the in-
formation. Besides being legally incorrect, this response is not
dispositive of Busch’s rights under the Act. See Hospital Em-
ployees District 1193 (Johns Hopkins), supra.
Respondent did not cooperate with the request by providing
the means to obtain the information. There is no evidence that
Murphy ever asked the other trustees, or himself, to produce
any of the requested information. Murphy could not afford to
do so for they might have agreed to this legitimate information
request, thereby subverting Respondent’s bargaining strategy
with Busch. Having been denied the information by the Fund,
Busch had a right to have Respondent request the Fund to pro-
vide Busch with what it possessed. Respondent refused to do
so. Insofar as Murphy controlled both entities and there is no
evidence any employer representative was consulted or con-
curred in his decision not to provide the information, he there-
fore acted to impede Busch’s access to the requested informa-
tion. Food & Commercial Workers Local 1439 (Lep-Re-Kon
Markets), supra. Unlike that case, where no violation was
found because the Union assisted the employer in obtaining the
information from the Fund administrator, Murphy is the
equivalent of the Fund administrator in this case and, thus, his
conduct must be viewed in that dual role. In refusing the re-
quest on behalf of the Fund, Murphy clearly determined his
decision was a benefit to the Union at the bargaining table. This
conclusion is further supported by the fact that Murphy will-
ingly provided Busch with similar information in 1993 at a
time when no collective-bargaining negotiations were occur-
ring.
Even were Respondent not to be found to be in de facto con-
trol of the Fund, it still violated the Act. The information re-
quest was clearly directed to both Respondent and the Fund.
There can be no doubt that Respondent possess at least some of
the requested information. At a minimum, Respondent pos-
sesses the collective-bargaining agreements which set contribu-
tion levels. Murphy himself possessed other information, as
evidenced by his knowledge and description of eligibility and
coverage issues during negotiations. Murphy’s orally providing
similar information during the negotiations on May 21, 1996,
further supports the conclusion that the requested information
was within his possession and was deliberately withheld from
Busch to gain a tactical advantage during negotiations. Re-
spondent never explained what information it possessed. There
is no excuse for Respondent’s refusal to produce information in

60 The fact that this letter by Domesick on behalf of Respondent ref-
erences, quotes and relies on his earlier letter on behalf of the Fund is
further evidence of the “two hats” worn by him and Murphy and the
total integration of their respective roles. It further supports the conclu-
sion of their de facto control of the Fund.
its possession. Such a refusal violates the Act. Plasterers Local
346 (Brawner Plastering), 273 NLRB 1143, 1144 (1984).
Accordingly, I find that Respondent’s refusal to provide in-
formation it possessed, its refusal to seek to provide a means to
that information it did not possess and its impeding Busch’s
access to that information was in furtherance of its collective-
bargaining strategy and in violation of Section 8(b)(3) of the-
Act. Further, as Respondent was in de facto control of the Fund,
it had an obligation to provide Busch with each of the requested
items of information. To the extent that Respondent may be
viewed as having supplied information in its May 25 or July 11,
1995 letters or orally at negotiations, such delays in responding
are in themselves unlawful and violate Section 8(b)(3) of the
Act. Teamsters Local 921 (San Francisco Newspaper), supra.
6. The collective-bargaining negotiation—surface
bargaining allegations
a. Background—The 1991 negotiations
The most recent collective-bargaining agreement negotiated
between the parties was in 1991. The major parties to those
negotiations were virtually identical to those in 1994. Attorney
Stephen Domesick was the Union’s chief spokesman. Secre-
tary-Treasurer John Murphy was the chief union official pre-
sent. Attorney Arthur Menard was Busch’s chief spokesman.
Patrick Knipper, Busch’s president and general manager, was
the chief company official present. All but Menard retained
those roles in the 1994 negotiations.61
As they had been in the past, the 1991 negotiations were
conducted jointly for the two units—drivers’ and merchandis-
ers. These negotiations consisted of about 8-9 sessions between
October and mid-December 1991, when new collective-
bargaining agreements in both units were reached. The negotia-
tions generally began about 9–10 a.m. and lasted until 5–6 p.m.
A Federal mediator was present during the 1991 negotiations.
The contract, which was to expire on November 30, 1991, was
extended with the Union’s agreement to December 18, 1991, by
which time agreement was reached. The final session lasted 44
consecutive hours. Except for the first meeting, which was
scheduled in advance, subsequent meetings were scheduled at
the end of each bargaining session.
Respondent included its economic demands in its initial pro-
posals presented on the first day of negotiations in 1991. There
was “horsetrading” by the parties concerning their proposals
during the 1991 negotiations. Respondent made no information
requests related to the negotiations in 1991. Attorney Domesick
did not engage in extensive storytelling or philosophizing dur-
ing the 1991 negotiations.
b. Respondent’s 1994 bargaining strategy
In June 1994, John Murphy published an article in The Labor
Page explaining his strategy behind Respondent’s 1991 nego-
tiations with Burke Distributing, Busch’s primary competitor.
Faced with concessionary economic demands by Burke, Mur-
61 Initially, Menard was replaced as chief negotiator by Attorney Eric
Schmitz of the legal department of Anheuser-Busch Companies in St.
Louis. On Schmitz’ promotion about August 1995, Attorney Arthur
Telegen became Busch’s chief negotiator.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1230
phy adopted a strategy to avoid the use of the strike, with its
attendant possibility of unilateral contract implementation or
permanent replacements for strikers. The purpose of Murphy’s
strategy was not to reach contractual agreement, but to stall
negotiations and avoid either agreement, impasse, or strike.
This created time to allow the Union’s boycott pressures away
from the negotiating table to wring concessions from the Em-
ployer at the table. This strategy involved the joint use of a
consumer boycott campaign with “detailed bargaining” at the
negotiating table. Murphy stated: “By so doing, the union de-
nied Burke the opportunity to implement its demands or hire
scabs. . . . This strategy translated into time to develop the most
successful consumer boycott ever seen in Massachusetts.”
Murphy believed this strategy had been a success against
Burke.
A key element of “detailed bargaining” was “making good
use of the Union’s lawyer, Stephen Domesick.” The elements
of “detailed bargaining” included “dissecting and arguing over
every sentence that [the Employer] put on the table, making
detailed requests for information and analyzing each answer.”
The parties held 40 negotiating sessions during the 25 months
of the Burke negotiations. No new collective-bargaining
agreement was reached.
The end result of the Burke negotiations was that “Miller
Brewing Company recognized that the only way to end the
boycott was to get rid of Burke Distributing and sell its fran-
chise to an employer who could do business with the union.”
(Emphasis added.) Miller transferred its franchise to Metropoli-
tan Distributing and, within 2 months, Respondent had negoti-
ated a “decent” contract with Metropolitan.
An additional result of the franchise transfer for Respondent
was a financial boon. Following the franchise transfer, Respon-
dent was paid $590,000 by Burke Distributing. This amount
was described as “Burke termination proceeds” on Respon-
dent’s 1994 LM-2 form. Respondent retained these funds in its
treasury, paying none of it out to employees. Respondent of-
fered no explanation for the purpose of Burke’s payment of
$590,000 to it following the loss of its franchise, nor did it
explain what was done with the money.
These facts caused Knipper concern about the 1994 negotia-
tions. He believed they gave the Union reason to use “detailed
bargaining” to delay the negotiations in the hopes that Respon-
dent’s consumer boycott would result in the sale of his distribu-
torship and a payoff to Respondent. As Knipper stated, “I can
see 590,000 reasons why the Union would want to stall … [I]f
the definition of success is the sale of the operation, and almost
$600,000, then why not see what you can do with August A.
Busch and Company. We’re two and a half times the size. That
could mean a larger payoff and the sale of the operation.”
c. The 1994 negotiations
Unlike prior negotiations, in 1994 Respondent insisted on
separate negotiations for the drivers’ and plant units. Respon-
dent presented its initial proposals to the Employer at the first
negotiating session in each unit, on October 13, 1994 (drivers)
and October 18, 1994 (plant). Unlike 1991 and prior years,
Respondent made no initial economic demands. Rather, one
page of each three-page document consisted of proposed new
successorship language which would strengthen the Union’s
position in the event of a sale of the facility (known as the
“Branch”) by Busch. Respondent evidently anticipated a major
issue concerning successorship for these identical proposals
were drafted and prepared for presentation to Busch prior to the
first meeting on October 13.
Busch admittedly had an ambitious agenda for the 1994 ne-
gotiations. It was not seeking economic concessions and, in
fact, was prepared to improve the employees’ economic pack-
age. Busch was, however, seeking operational changes in the
way the Branch operated in order to respond to industry pres-
sures, better manage its workforce and improve service to its
customers.
Among the operational changes Busch was seeking was an
attendance policy requiring employees to report to work daily,
where no such requirement presently existed; elimination of the
exclusive referral system, or hiring hall, allowing Busch to
directly hire its own employees rather than hire through Re-
spondent; elimination of the “pick bid” system, allowing Busch
to directly assign daily routes to its employees; and the ability
to assign one man per truck, rather than two as required under
the present system. Most of these difficult, major issues arose in
the drivers’ unit and had no corollary in the plant unit. While
Busch recognized this as an ambitious agenda, it was not tied to
any particular means of achieving its goals. Busch fully ex-
pected to be able to reach a mutually satisfactory agreement
with Respondent.
As negotiations ensued, however, it became clear to Busch
that Respondent would not agree to, or sincerely negotiate over,
Busch’s proposals. Rather, Respondent was using its “detailed
bargaining” strategy in negotiations to avoid the possibility of
agreement, impasse or strike while it conducted a consumer
boycott. This strategy included refusing to give Busch relevant
and necessary information for negotiations, refusing to engage
in frequent and lengthy negotiating sessions and, when at the
table, engaging in a variety of delaying tactics. These included
filibustering by lecturing and storytelling; engaging in exten-
sive, detailed discussions of minor issues; delaying the submis-
sion of its economic package and other “game playing” tactics
designed to frustrate agreement.
d. Murphy’s threat that he won’t agree to a contract
Respondent’s objective in the 1994 negotiations was further
demonstrated by John Murphy’s own words. On September 28,
1995, 1 year into the negotiations, Frank Curtis was beeped by
Murphy and returned his call. Both Murphy and Curtis had
been present at the 13th drivers’ unit negotiations held earlier
that day. Murphy raised a question concerning the pay of two
driver trainers, Freitas and McGil, who are in the plant unit.
Murphy proposed bumping them into a higher wage category.
Curtis told him to save that for the economic portion of negotia-
tions, which had yet to begin.62
Murphy then turned the discussion to the negotiations held
earlier that day. Murphy told Curtis that negotiations were go-
ing to get a lot worse and a lot of people’s lives would be af-

62 Respondent did, thereafter, make a proposal concerning the pay of
Freitas and McGil.
TEAMSTERS LOCAL 122 1231
fected. Curtis agreed that people were being affected, but said
the Company had to make changes for the benefit of all em-
ployees. Murphy stated, “You will never get a contract out of
me, and then everyone will really be affected.” This threat by
Murphy went unrebutted by Respondent, though Murphy was
called as a witness in Respondent’s defense.
e. Respondent’s refusal to meet at reasonable times and for
reasonable periods of time
Contrary to prior negotiations, Respondent insisted that the
1994 negotiations be conducted separately for each unit. Be-
cause of this insistence, the allegations concerning Respon-
dent’s refusal to meet with Busch should be considered sepa-
rately, rather than collectively, for each unit.
The negotiations in each unit were characterized by infre-
quent meetings which were rarely consecutive, had long breaks
between sessions, short negotiating sessions, and an unwilling-
ness by Respondent to promptly schedule, or respond to, sug-
gested meeting dates. These delay tactics were created and
insisted upon by Respondent, which demonstrated a great
reluctance to schedule meetings and an equal reluctance to
spend a great deal of time at the negotiating table once present.
Respondent engaged in this conduct despite the repeated
urgings of Busch for lengthier and more frequent bargaining
sessions in the hopes that a contract could be reached.
Respondent, further, consistently refused to set aside blocks of
time for negotiations.
Through the start of the trial of this matter on October 1,
1996, there had been 32 sessions in the drivers’ unit in the 2
years beginning October 13, 1994. There had been 17 plant unit
meetings in that same 2-year period, a total of 49 meetings in
both units. This number bears a striking similarity to the Burke
negotiations, where 40 sessions were held in one unit over a 2-
year period.
A total of about 106 hours had been spent by the parties in
face to face negotiations in the drivers unit during that 2-year
period.63 Between October 1, 1996, and the end of the trial on
March 3, 1997, an additional seven sessions were held, totaling
about 16 hours. Thus, in the drivers’ unit, there were a total of
37 bargaining sessions in 30 months, totaling about 122 hours
in negotiating time. This total compares with the final session
in the 1991 negotiations which lasted 44 consecutive hours.
Only two sessions in the 1994 negotiations, both in the first
month, lasted longer than 5 hours. Negotiations in the drivers’
unit in the 1994 negotiations averaged about 3 hours per ses-
sion.
A total of about 54 hours was spent in face-to-face negotia-
tions in the plant unit in the first 2 years of the 1994 negotia-
tions. There were two additional sessions in the plant unit be-
tween October 1, 1996, and March 3, 1997, totaling about 4.5
hours. Thus, in the plant unit, there were a total of 19 bargain-
ing sessions in 37 months, which totaled about 59 hours in
negotiating time. The plant unit also had only two sessions,
both within the first month of negotiations, lasting over 5

63 These totals do not include lunch periods, but do include the fre-
quent caucuses during which the parties were not actually meeting face
to face. If caucus time were excluded, the actual negotiating time would
be far less.
hours. The plant unit, when they did meet, also averaged about
3 hours per session.
There were considerable breaks between sessions in each
unit. In the drivers’ units, these breaks frequently ran to several
weeks. On two occasions between sessions 4 and 5 and sessions
10 and 11, the breaks were almost 2 months. The breaks be-
tween sessions in the plant unit were even more extensive, fre-
quently running to several months. Only two sessions were held
in the 9 months between March and December 1996.
While Respondent’s presence at the bargaining table was in-
frequent, its ability to schedule and conduct boycott demonstra-
tions against Busch was not. During the 2-year period com-
mencing Thanksgiving 1994, Respondent conducted about 200
boycott demonstrations against Busch. These demonstrations
included the entire range of such boycott activity previously
described, including publicity events, group shopping trips,
standouts and demonstrations. These activities took place on
any day of the week, in the early morning, the late afternoon
and in the evening. John Murphy testified he attended all but
two of these events. Yet, he would not make himself available
outside working hours to negotiate with Busch.
Sessions in each unit were generally scheduled to start at 10
a.m. Most meetings were held at the Cambridge Hyatt Hotel.
Wherever the meetings were held, Busch would pay for two
rooms, one for the negotiations and one for its own caucuses.
Busch’s negotiating committee would be in its caucus room at
least an hour before negotiations were scheduled to start. The
negotiation room was made available to Respondent beginning
an hour before the scheduled start. About 5–10 minutes before
the scheduled start time, Busch would send a representative to
the negotiation room to see if Respondent was ready to begin.
Despite these accommodations, Respondent invariably was
not ready to begin negotiating as scheduled. With the exception
of the very first driver’s meeting, Respondent began every
meeting late. Respondent was generally at least 30 minutes late,
sometimes as late as 90 minutes. While Busch frequently com-
plained about the late starts, Respondent never explained itself,
except for two occasions where they said they had been caucus-
ing.
Regardless of starting time, Respondent generally ended the
sessions at about 4 p.m. The ending time of the meetings bore
no relation to whether or not progress was being made. On at
least 16 occasions in the two sets of negotiations, meetings
ended early, even before 4 p.m., at the request of Respondent.
While the legitimacy of these requests was not always disputed,
certainly the frequency and timing of these requests created a
pattern which was troubling to Busch. (See, e.g., meetings of
January 6, 1995 (Tr. 1964); January 12, 1995 (Tr. 1966); Feb-
ruary 3, 1995 (Tr. 1969); April 28, 1995 (GC Exh. 38(p), p. 1);
May 3, 1995 (Tr. 1994); August 11, 1995 (GC Exh. 38(u), p.
25); September 19, 1995 (Tr. 2009–2014); September 28, 1995
(GC Exh. 38(w), pp. 17–19); October 24, 1995 (Tr. 2015);
November 1, 1995 (GC Exh. 38(z), p. 22); November 16, 1995
(Tr. 2023); November 29, 1995 (Tr. 2029–2031); May 21, 1996
(GC Exh. 38(ap), p. 19); May 23, 1996 (GC Exh. 38(aq), p. 19–
20); July 1, 1996 (GC Exh. 38(as), p. 9); July 31, 1996 (GC
Exh. 38(au), p. 19). Not infrequently, sessions were scheduled
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1232
to end early due to Respondent’s other commitments, i.e., Janu-
ary 18 and 19, 1996.
Sometimes illness was offered by Respondent as an excuse
for ending early; sometimes no excuse was offered. Several
times, Domesick simply stated he had to leave at a certain time.
In the meeting of November 29, 1995, Domesick terminated
the meeting peremptorily due a perceived “incivility” by Busch
negotiator Arthur Telegen. Similarly, Domesick terminated the
meeting of May 23, 1996, in a contrived fit of pique after
Telegen stated Domesick had “pissed away the day” on a sub-
stantive issue.
It is evident that a perfunctory pattern of negotiations devel-
oped, primarily due to Respondent. Negotiations would be
scheduled for normal working hours between 10 a.m. to 4 p.m.
but, due to late starts, early departures and lunch breaks, would
rarely consist of more than 3 hours per day of face-to-face ne-
gotiations. Negotiations virtually never began early and rarely
ran later than 4 p.m. in either unit. Respondent refused to agree
to meetings at night, on weekends or on consecutive days. This
pattern negated any sense of urgency to the negotiations, serv-
ing Respondent’s purposes of delay.
Respondent also canceled seven bargaining sessions. Attor-
ney Domesick canceled the session of December 12, 1994,
contending he needed time to write a brief to the district court
concerning the 10(l) injunction being sought in the group shop-
ping case. That brief was due at noon on December 12 at Do-
mesick’s request. He refused Busch’s suggestion to start nego-
tiations later that afternoon. Domesick then canceled the
driver’s negotiations on December 14 and 19, 1994, due to his
own illness. These cancellations resulted in a hiatus in negotia-
tions of 2 months immediately following the contract’s expira-
tion. (Following this hiatus, Respondent ended the next three
consecutive drivers’ meetings early.) Thereafter, Domesick
canceled two drivers’ unit negotiations on August 21 and 28,
1995, claiming he was ill. Respondent canceled the plant nego-
tiations of March 20, 1996, and the driver’s negotiations of
June 26, 1996, because injunction hearings in Federal court
concerning its picketing activities were scheduled on those
days. Respondent never offered to reschedule any bargaining
session which it canceled.
During the 2 years of negotiations, Busch canceled only two
sessions, on December 21 and 22, 1995. These cancellations
were caused by a blizzard in the Boston area, which closed
Busch’s Boston operation and precluded its negotiating team
from flying in from St. Louis.
It was Busch’s belief that the major issues were in the driv-
ers’ unit and that the plant unit contract would settle as soon as
the drivers reached agreement. Even members of Respondent’s
plant unit negotiating committee agreed with this assessment.
On two occasions in early 1995, Robert Graham told Pat Knip-
per that he did not understand why the parties were meeting in
the plant unit because they would settle as soon as the drivers
did. Graham said he felt the parties-time should be focused on
the drivers’ unit, not the plant unit. Nevertheless, the Union,
particularly in the first year of negotiations, insisted on alternat-
ing meetings between units. This insistence by Respondent,
coupled with its general unwillingness to agree to more than
one session per week, created long hiatuses between each unit’s
bargaining sessions. These long breaks made it difficult for
either negotiation to gain any momentum.
Respondent made the scheduling of negotiating sessions dif-
ficult. While Busch consistently offered blocks of time for ne-
gotiations, Respondent only made itself available for a day at a
time. These dates were only rarely consecutive and generally
only 1 day per week. Respondent’s refusal to schedule consecu-
tive meetings caused momentum to be lost in negotiations.
Moreover, proved especially difficult for the members of
Busch’s negotiating team, including its chief negotiator, Eric
Schmitz, who had to fly to Boston from St. Louis for a single
day of negotiations. Further, on certain occasions, such as its
proposing a single day of negotiations on November 22, 1994,
and on July 3, 1996, Respondent appeared to offer dates be-
cause it knew they would be difficult or impossible for the ne-
gotiating committee from St. Louis to make travel arrange-
ments to attend.64
Respondent never initiated discussions concerning additional
negotiating dates but, rather, responded only to Busch’s initia-
tives. Unlike the 1991 negotiations, Respondent would gener-
ally not agree during one session to schedule additional bar-
gaining sessions. Respondent’s attorney would offer excuses, if
at all, such as he had not brought his calendar or had not dis-
cussed scheduling with his client, John Murphy, who was in-
variably seated next to him. Rather, most scheduling was done
by correspondence between the negotiating sessions, contribut-
ing to a delay of weeks between sessions. When Busch offered
blocks of dates, Respondent generally delayed in responding,
sometimes for weeks. This caused some of the offered dates to
become unavailable and caused additional difficulties for Busch
in making travel arrangements from St. Louis.
The pattern of Respondent’s desire to delay negotiations was
set at the outset. In a meeting on September 20, 1994, Schmitz
asked John Murphy about negotiating dates for the contracts,
which expired November 13. Murphy stated he was available
every day except October 10. By letter of September 22,
Schmitz proposed to Domesick that the parties commence ne-
gotiations October 3 and stated a virtual total availability
through November 13. On September 23, Domesick contra-
dicted his own client, telling Schmitz that he had not had an
opportunity to talk about dates with Murphy, who Domesick
claimed was in negotiations virtually every day. Eight days
later, in separate letters, Domesick agreed to a single day of
negotiations, in separate weeks, in each unit, on October 13 and
18 for the drivers and plant, respectively. Thus, while Busch
had sought dates in each unit to begin negotiations almost 2
months before contract expiration, Respondent did not agree to
commence negotiations until a month, or less, before contract
expiration.
Domesick terminated the October 13 meeting at 1:04 p.m.,
proposing to meet again on October 24. Schmitz offered to
continue longer that day and stated Busch was available before
October 24. Domesick stated he needed time to review Busch’s

64 November 22, 1994, was the Tuesday before Thanksgiving and a
notoriously difficult travel day, especially when only proposed a week
earlier. It was the only negotiating date offered by Respondent which
Busch rejected in the entire process.
TEAMSTERS LOCAL 122 1233
proposal and stated, “I have other things to do.” Schmitz per-
sisted in seeking additional dates beyond October 24 in a tele-
phone call with Domesick on October 17. Domesick, as be-
came practice, demurred, stating he “would have to talk to John
[Murphy].”
At the following day’s meeting on October 18, Schmitz
again sought additional negotiating dates. Domesick again
stated he had not talked to Murphy (who was seated next to
him) and would speak to him the following week. When
Schmitz expressed his concern over their inability to schedule
meeting dates, Domesick refused to give any until the follow-
ing week and, in a candid admission, stated:

A date is just a signpost. If the parties are making progress, it
doesn’t matter . . . . If my review of the proposals is any indi-
cation, I don’t think there is ever going to be enough time.

No further dates were set until the October 24 meeting, at
which Domesick agreed to meet on November 1 and 3, but not
on November 2. Domesick refused to set further dates at the
November 1 meeting, claiming that some of his time would be
occupied in responding to Busch’s motion to dismiss in the
lawsuit which Respondent and the Trust had filed against
Busch.
At that drivers’ meeting of November 3, Schmitz again re-
quested additional dates. Domesick offered November 9 and
10, one per unit. In refusing to offer more, Domesick stated: “If
we’re making sufficient progress, we’ll continue because if
we’re not . . . . What’s the sense of it? We are wasting time.”
Domesick then clarified his objective concerning his unwill-
ingness to schedule, stating: “It’s nice to have a time limit fac-
ing you. Having a gun to your head tends to make you make
decisions more quickly. If there is time urgency, it lets people
get to issues that are dear and forget those that aren’t.” When
Schmitz persisted that Busch remained available every day
while Respondent refused to agree to meet, Domesick stated:
“It’s a function of mine and John’s schedules. I have other
clients. You have one client. I don’t have the luxury of that.”
On November 9, the last scheduled plant session before con-
tract expiration, Domesick sought to end at 6:29 p.m., flip-
pantly stating, “I should have gone home and had dinner by
now.” Domesick refused to continue or to schedule any further
meetings even though the contract was about to expire, blaming
his resistance on the Employer’s proposals:

If those proposals stay on the table, there isn’t enough time
between now and Sunday night expiration to get through
them. If we want to make a stab at it, it’s going to require
radical review by the Employer as to its objectives regarding
this unit.

No further negotiating sessions were scheduled at this meet-
ing.
At the last drivers session before expiration on November
10, Domesick stated Respondent’s position even more explic-
itly:” until the Employer re-appraises and examines its propos-
als, we’re not making progress and there is no point in sitting
here and continuing.” Schmitz persisted in seeking additional
meetings in the 3 days remaining before expiration, which was
the Veteran’s Day weekend. Domesick attempted to place the
onus of negotiations upon Busch, stating:

I’m a Union lawyer. Holidays and weekends are sacrosanct. I
practice what I preach. . . . I told you if I thought we’d make
progress, I’d meet. But if we are not making progress, why
violate the sanctity of holidays and weekends, to what end?
Do you have any revisions? Any change in your positions or
are we going to be dealing with the same drive we have seen
to change things. . . . I don’t see a reason to do marathon ses-
sions and meet holidays and weekends, when you haven’t re-
moved anything from the table.

Immediately thereafter, Respondent rejected Busch’s offer of
an extension of the contract. Domesick saw no need for an ex-
tension without a revision of Busch’s proposals, which he de-
fined as “get your shit off the table.” Respondent also rejected
the involvement of a federal mediator in negotiations. No fur-
ther meeting dates were set before contract expiration.
Busch codified its objection to Respondent’s refusal to meet,
and its refusal to provide more than one date at a time, in
Schmitz’ letter of November 14, 1994. On November 15, Do-
mesick knowingly offered a single date of November 22, the
Tuesday before Thanksgiving, which, as previously described,
Busch could not accept. On November 17, Busch offered to
meet every day between December 1 and 21. Domesick, as was
the pattern, accepted only two dates, December 12 and 14.
These meetings were thereafter canceled by Respondent, as was
the meeting on December 19, for reasons previously described.
A heated exchange of correspondence was exchanged be-
tween the parties at this time concerning this delay in negotia-
tions and the responsibility for it.65 The correspondence ended
with Schmitz’ December 19, 1994 letter offering to meet virtu-
ally the entire month of January in addition to the scheduled
meeting of January 6, 1995. Typically, Respondent delayed in
responding until the end of the January 6 session, at which time
it offered to meet on January 12, and then again on February 1.
Respondent offered no explanation for its unwillingness to meet
more often.
Respondent’s tactics created a 2-month hiatus in meetings
between November 1994 and January 1995, just after contract
expiration. There were only three meetings in the month upon
resumption—two for the drivers; one for the plant. This pattern
of Busch dragging a reluctant Respondent to the bargaining
table persisted through the remaining 2 years of negotiations.
Busch’s continued pleas for more frequent meeting dates due to
travel constraints from St. Louis and for prompt responses to
proposed meetings were unavailing.
Respondent adopted the attitude that the burden of schedul-
ing negotiations fell to Busch and that Respondent need only
play a reactive role. This passive attitude, and Respondent’s
game playing concerning scheduling of sessions, became most
apparent in the events of early 1995.
Evidence of this attitude is Domesick’s comment in his letter
to Schmitz of February 10, 1995, that “No additional meeting

65 Ironically, in his correspondence Domesick accuses Busch of be-
having similar to Burke. Rather, it is Respondent which duplicated its
conduct from the Burke negotiations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1234
dates were suggested by the Company by the end of our Febru-
ary 10 meeting for the Plant unit.” Domesick then suggested
two meetings, March 21 and 29, 6–7 weeks away. Domesick
ignored the fact that, on January 11, fully a month earlier,
Schmitz had proposed meeting on 14 dates between February 2
and March 3. Typically, Domesick had accepted only two of
those dates in separate weeks, February 3 and 10, ignoring the
remainder. In so doing, he apparently believed he had shifted
the ball to Busch’s court to propose more meetings at the Feb-
ruary 10 session. Nothing, of course, had prevented Respondent
from proposing further sessions at any time.
On February 15, Schmitz vehemently objected to Respon-
dent’s insistence on the 5-week hiatus in negotiations until
March 21, its refusal to provide more than a date a week and its
refusal to schedule more than one date per unit at a time. Do-
mesick, in response, claimed that he was unable to meet until
late March because of a trial the first 3 weeks in March. His
claim that he was somehow denied the opportunity to share this
information on February 10 rings false. Domesick did not dis-
close to Busch that his trial was before the NLRB concerning
the Burke Distributing case, which would have allowed Busch
to monitor the status of the trial. On February 28, Schmitz re-
quested prompt notice should Domesick’s trial not consume 3
weeks, so that further negotiations could be scheduled. Busch
heard nothing from Respondent until the beginning of the
March 21, 1995 session.
At the outset of the March 21, 1995 negotiating session,
Schmitz asked Domesick about his trial. Domesick merely
stated that it had settled with the Regional Director taking a
unilateral settlement. Thereafter, Domesick admitted the trial
had been postponed “on the courthouse steps.” When Schmitz
pressed him on why he had not tried to reschedule negotiations,
Domesick responded, “I think the record reflects we’ve been
meeting.” After Schmitz complained about the delay between
meetings, Domesick stated: “If you’re dissatisfied, I can’t an-
swer that. If your talking of delay, then change your proposals.”
Schmitz continued to accuse Domesick of improperly delaying
the negotiations. Domesick initially contended his schedule
was demanding and then stated: “You want to reduce the size
of your menu?” When Schmitz continued to complain about the
lack of meetings, Domesick stated:

You think if we meet more frequently, we’ll reach an agree-
ment. Maybe the reason progress is not occurring is that your
menu is too large. If you’re looking for progress reduce your
menu.

As the meeting continued, Domesick repeatedly conditioned
further negotiations on Busch’s willingness to continue dues
checkoff. Busch had continued dues checkoff until about
March 1995, even though the contract had expired in Novem-
ber. When Respondent had argued in its Trust Fund lawsuit
against Busch that an implied-in-fact contract existed between
the parties because Busch was continuing to check off dues,
Busch ceased dues checkoff. Domesick spent most of the
March 21 meeting attempting to reinstate dues checkoff, rather
than engaging in substantive negotiations.
Domesick insisted that a lack of checkoff would cause Re-
spondent to meet even less frequently. He stated that not having
dues checkoff:

will cause a dislocation in our negotiations . . . . Because it
will cause us to negotiate less and focus on how we’ll collect
our dues. So we can pay for representation. All we need is for
you to say “okay.” It will show you want to be in a good rela-
tionship with us.

He continued this theme thereafter, stating:

You say, you want to arbitrate, sue us. You want to collect
dues—do it yourself. The tree of evil bears the fruit of evil.
Give us an example of your desire to continue this relation-
ship. . . . It’s hurtful and will harm our capacity to reach mu-
tual agreements, because it will now take our resources to de-
vote to other issues—such as dues checkoff.

Schmitz stated: “Your position now is that you will forestall
negotiations further because of dues collection.” Domesick
responded: “We have a finite degree of resources.”
Domesick continued to try to persuade Busch to resume
checkoff, later stating:

You have the right to say no. But there are consequences to
that that are contrary to what you say your objectives are. Its
gotta have an impact on how we view the Employer. To the
extent that we are going to have to take time out to ensure our
income stream, that will take time out from time available for
other things that you have an interest in doing. You should say
okay quite easily and get on to more substantive matters. But
it says a different agenda if we have to bear the pain of this
(dues collection), it will only harm our capacity to reach
meaningful agreement.

Later in the March 21 meeting, Schmitz complained about
Respondent’s unwillingness to meet. Domesick told him to file
an unfair labor practice charge. Schmitz asked Domesick to
discuss meeting dates. Without explanation, Domesick initially
responded that they had to leave, then stated that the month of
May was out, completely ignoring the possibility of April meet-
ings as well. When Schmitz offered April 7, Domesick, in a
profane exchange, terminated the meeting and walked out. In a
classic example of his game playing throughout negotiations,
Domesick returned to the room within a minute, picked up his
coat and said, “It is real hard to make a dramatic exit when you
leave your coat behind.” No further dates were set for negotia-
tions.
Busch thereafter continued to press for additional dates, of-
fering at the April 4 meeting an extensive series of dates during
April, May and June, including weekends. Domesick said he
was not sure when he would be able to meet again because he
was so busy. Of course, as had become habit, Domesick did not
have his calendar with him at negotiations so scheduling could
be finalized. Characteristically, Domesick subsequently agreed
to three dates, in separate weeks, in April and May, continuing
to ignore June even after Schmitz wrote to him on April 10
requesting a response.
At the May 22 meeting, Domesick asserted that meeting in
the month of June was out, proposing instead to resume on July
TEAMSTERS LOCAL 122 1235
24. Domesick did agree to entertain dates in the last 2 weeks in
June if a previous Board trial scheduled in this matter settled.
That trial was settled after 4 days of litigation. On June 23,
Domesick faxed an offer to Schmitz to meet on June 29. Some-
how the fax was sent to the wrong fax number and Schmitz did
not receive it in time to set up the meeting. This is the only time
throughout these negotiations where Respondent made an ap-
parent attempt to adjust its schedule to meet with Busch.
During the summer of 1995, Respondent continued to agree
to a single meeting per week and scheduled only 2–3 meetings
per month for the two units. Domesick stated that reasons such
as busy schedules and his personal unwillingness to work the
Friday before a holiday weekend precluded the possibility of
back-to-back meetings.
Domesick’s claimed illness caused the cancellation of two
August 1995 meetings, causing a hiatus of 7 and 8 weeks be-
tween meetings in the drivers’ and plant units (GC 50). On
August 24, Busch proposed 10 September dates and requested
Respondent’s October availability; Respondent agreed to only
two September dates.
By the September 19 plant meeting, Arthur Telegen had be-
come Busch’s chief negotiator. Domesick stated that his health
precluded him from working full days or having back to back
meetings, with the next 30–45 days critical to his recovery.
Busch offered to accommodate Domesick in several ways,
including proposing to put off negotiations for that period with
a commitment to meet for 2 weeks in December and 1–2 weeks
in January. Domesick responded:

I don’t want to do that. I don’t want to commit to that. I don’t
like marathon sessions. We’ve done it a few times when we
were nearing expiration of a contract and it was productive.
You’ve complained to the Board about meetings, we’ll let
them sort it out.

Despite Busch’s offer and attempts to accommodate Dome-
sick’s health, Respondent continued to agree to meetings as
before, alternating meetings between units with single day ses-
sions and only 1–2 sessions per month.
Telegen regularly complained about the pace of negotiations
and the infrequency of meetings. At the November 29 meeting,
Telegen complained that negotiations would not be concluded
in the 20th century at the present pace. Domesick responded
that was because of the number of Busch’s demands. At the
November 30 meeting, Telegen proposed the parties set aside
blocks of time in the future when their calendars were clear to
expedite negotiations. Domesick ignored this offer. Domesick
continued to resist consecutive meetings, finding them “too
taxing.” Domesick even contended that commencing negotia-
tions after 2:30 p.m. was “unduly taxing.”
Over the succeeding months, Busch consistently proposed,
in correspondence and at meetings, that the parties set aside
blocks of one or 2 weeks for negotiations several months in
advance in order to generate some momentum. Respondent
generally ignored these offers; certainly it never agreed to
them. Domesick continued to state that back-to-back meetings
left him “depleted.” Domesick also indicated he was concerned
that, were Respondent to agree to additional meetings at this
point, it would adversely affect Respondent’s case in the pend-
ing complaint before the Board on that issue. On another occa-
sion, when Busch proposed 2 weeks of negotiations to make
some progress, Domesick said he had to write a brief, later
stating it was not “economical” to devote 10 days to negotia-
tions.
Respondent continued to delay in responding to offered
dates, creating further scheduling problems as intervening
commitments arose for Busch. For instance, at the Friday,
January 19, 1996 meeting, Telegen requested the scheduling of
negotiations in March. Domesick agreed to respond by Mon-
day. Despite two subsequent written requests from Telegen and
two other letters by Domesick to Telegen concerning schedul-
ing, Respondent did not propose any March dates until Febru-
ary 6. Typically, Respondent proposed four meetings over 3
weeks, none on consecutive days.
At the February 20, 1996 meeting, Telegen proposed exten-
sive negotiations during 3 weeks in April. Domesick said he
would try to respond by the end of the day, but did not do so.
At the February 21 meeting, Domesick still was not prepared to
agree to any dates in April. No further response was made until
the meeting of March 19, 1995, a month later, when Respon-
dent proposed five dates in April, all on nonconsecutive days.
One was a date Busch had not offered. Because of Respon-
dent’s delay in responding, Busch was then only available on
one of the offered dates, resulting in only one April meeting
rather than several.
Like a metronome, Respondent continued to agree to only 2–
3 meetings per month through the summer of 1996 when con-
flicts with the scheduled trial of this matter inevitably began to
arise. Respondent sought postponements of this litigation in
return for additional bargaining dates. Busch again proposed
blocks of weeks of negotiations to warrant a trial postponement.
Respondent offered only a series of generally non-consecutive
dates for negotiations. Busch agreed to dates which did not
conflict with the litigation of this matter and proposed others
should Respondent agree to litigate and negotiate simultane-
ously. Respondent did not so agree and the parties thereafter
intertwined their negotiations with their litigation.
f. Respondent’s surface bargaining by use of detailed
bargaining tactics
During the 1994 negotiations, Respondent made use of the
tactics embodied in its “detailed bargaining” strategy described
by John Murphy in The Labor Page to delay and prolong the
negotiations and to avoid any agreement or impasse. As previ-
ously described, Respondent’s consumer boycott campaign
against Busch continued unabated during the negotiations.
When it did come to the negotiating table, Respondent showed
no intent to reach agreement but, rather, sought to hinder and
delay the negotiating process. In the first 9 months of negotia-
tions, Attorney Domesick consumed much of the limited nego-
tiating time by lecturing and storytelling or, in essence, filibus-
tering the negotiations. This practice diminished dramatically
following Busch’s filing of its unfair labor practice charge, only
to be replaced by other tactics. Respondent also used “detailed
bargaining” to extensively discuss and analyze in minute detail
issues of relatively minor consequence, thereby limiting discus-
sion of more vital matters. Respondent delayed in making its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1236
economic proposals for several months, even after Busch’s
requests to produce them. Respondent engaged in a number of
other “game playing” tactics, such as refusing to explain its
proposals, reneging on agreements, making regressive propos-
als, and refusing to explain or make counterproposals. These
tactics absorbed negotiating time and impeded the parties’ abil-
ity to agree. Respondent further made eight information re-
quests of Busch during the first 8 months of negotiations and
made no use of Busch’s responses during negotiations, thereby
unnecessarily consuming Busch’s time and resources and fur-
ther delaying the process.
In their totality, these “detailed bargaining” tactics evidenced
Respondent’s desire to avoid reaching an agreement and to
prolong negotiations in the expectation that its consumer boy-
cott would cause Busch to withdraw its contract demands or, in
the alternative, sell the distributorship to a more amenable em-
ployer, as Burke had done.
Respondent would never agree to the use of a Federal media-
tor to assist the parties in reaching agreement. Busch initially
proposed bringing in a federal mediator at the end of the No-
vember 10, 1994 session, just before contract expiration. Re-
spondent rejected the overture. Curiously, Respondent at that
time also rejected Busch’s offer of a contract extension, condi-
tioning acceptance on Busch changing its proposals. On No-
vember 14, 1994, Domesick stated that mediators were only
useful when the distance between parties was in millimeters,
not miles. Busch continued to press for a mediator on other
occasions, including on April 4, 1995. Respondent rejected the
concept out of hand.
As previously described, Respondent also refused through-
out the negotiations to provide Busch with information neces-
sary for two of the major issues in the negotiations-the hiring
hall and the health and welfare plan. The effect of these refusals
was to force Busch to negotiate in the dark on these two issues,
minus the information Respondent itself possessed concerning
the operation of Respondent’s hiring hall and the funding and
benefit levels of its health and welfare plan. No agreement was
reached on these two issues.
The effect of Respondent’s conduct was to preclude any col-
lective-bargaining agreement by the parties. In fact, in over 2
years of negotiations, only 11 agreements on issues were
reached. Only four company proposals were agreed to. Most
were minor; three involving the deletion of one obsolete side
letter of agreement and moving two others into the body of the
contract. No agreement was reached on any of Busch’s major
issues. Only six of Respondent’s proposals were agreed to, one
involving a statutory name change. While some were of obvi-
ous benefit to the bargaining unit, none could be termed major
issues.66 The parties also agreed jointly to a proposal reflecting
a name change in their credit union. Such a total dearth of sub-
stantive agreement in over 2 years of negotiations is indicative
of surface bargaining and the effectiveness of Respondent’s
“detailed bargaining” tactics.

66 These included a training proposal, 1-day vacations, bereavement
leave for “spousal equivalents,” increased compensation for certain
temporary assignments and a reduction in years of service required to
receive 4 or more weeks’ vacation.
aa. Filibustering/storytelling
Respondent used its chief negotiator, Attorney Stephen Do-
mesick, to filibuster during the period of October 1994—May
1995. Domesick accomplished this by his philosophizing and
his storytelling. These tactics consumed valuable negotiating
time that could have been spent on substantive discussion of
issues and proposals.
Particularly in the first few months of negotiations, Dome-
sick spent considerable time “philosophizing” or lecturing to
Busch. The topics of these lectures frequently centered on
power and its uses, Domesick’s perceptions of Busch’s bad
business judgment and Domesick’s belief that Busch should
sell the distributorship. Frequently, these lectures were inter-
spersed with, or illustrated by, various stories Domesick chose
to share at negotiations. These lectures did not advance the
negotiations or deal with specific proposals but, rather, frus-
trated the process by taking time away from discussion of le-
gitimate issues and disrupting the parties’ momentum.
Domesick had not engaged in this type of philosophizing or
lecturing during the 1991 negotiations. The lectures given by
Domesick in 1994 could even be discerned visually. Fre-
quently, they took up almost a page or more of Busch’s typed,
single spaced negotiating notes. In the very first bargaining
session on October 13, 1994, the majority of the meeting con-
sisted of Domesick’s lecturing and storytelling. Domesick con-
sumed almost four pages of notes in a lengthy explication, in-
terspersed with various stories and allegorical references, of
why Busch’s proposals were improper and how Respondent
would prefer to deal with a small local businessman rather than
Busch.
Similarly, much of the first plant meeting on October 13 was
devoted to Domesick’s lectures and storytelling. He continued
to lecture on the advantages of exploring the passage to a new
employer other than Busch, the bad decisions which companies
make and why what Busch was doing was bad. These lectures
took up a considerable amount of time that could not be de-
voted to a substantive discussion of proposals. That these ex-
tensive lectures occurred in the limited meetings before contract
expiration further debilitated the negotiations.
When Busch complained about his lectures and storytelling,
Domesick would respond that he could not help himself, that
his ancestry and passion were to blame.67 Domesick further
explained that his mission was not to negotiate, but to convince
Busch that what they were trying to do was wrong.
During the October 24, 1994 session, Domesick lectured at
length on how there was no need for Busch’s proposed changes
in contract language. Schmitz responded, “We are willing to
listen and address your concerns. Give us some proposals to
deal with your concerns. Domesick responded, “What’s the
value in getting shot?” and refused to give any proposals. Later
in the meeting, Schmitz attempted to shorten another Domesick
lecture contending there was no necessity for Busch’s propos-
als, stating: “I don’t mean to cut you off. I don’t know who you
are lecturing for, me or who. I’ve heard your philosophy. Let’s
talk about the proposals. You’ve made your point.” To which
67 Domesick never explained why this disability did not hamstring
the 1991 negotiations between the parties.
TEAMSTERS LOCAL 122 1237
Domesick responded: “We all have buttons. You hit one of
mine. When we talk real truth from this side of the table, I
don’t know how you can call it philosophy. There’s nothing
philosophical about it. I’m worried about the families, the em-
ployees.” Schmitz told Domesick he need not keep making the
same points and Domesick stated he would make them as many
times as was necessary.
This pattern continued throughout the early negotiations as
Domesick made repeated lengthy expositions, rarely using a
few words when he could use many. From the outset, Dome-
sick had repeatedly contended his loquacious behavior was
because “I’m a high involvement speaker . . . I can’t help it if
I’m an Eastern European Jew and we’re high involvement
speakers.” Domesick further stated that being a high involve-
ment speaker caused him to interrupt frequently and be pas-
sionate about his topics. Whatever that characterization means
remains unclear, for Respondent offered no testimony on this
issue. However, this frequently offered explanation did not
explain why there had not been similar conduct by Domesick in
1991.
Domesick continued using negotiating time for lectures and
philosophizing on January 6, 1995, following the 2-month hia-
tus in negotiations after contract expiration. Domesick spoke of
his philosophy regarding capitalism and suggested Busch en-
gage in price fixing with its competitors to improve its profit
margin. This continued into a full page lecture concerning how
Busch has not converted enough spares, which included refer-
ences to Somali citizens and lawyers fees. In a dramatic display
of loquaciousness, Domesick followed this with a lecture con-
suming one and one-half pages of bargaining notes concerning
a Busch proposal on work scheduling. As Knipper stated, Do-
mesick could have saved considerable negotiating time by sim-
ply stating: “I think your proposal stinks.”
In the January 12, 1995 meeting, Domesick continued with
several lectures weaving through a variety of well-covered
topics, including power and the lack of necessity for Busch’s
proposals. Over half of this meeting consisted of Domesick
lecturing, rather than in substantive discussion.
The meeting of March 21, 1995, was almost entirely con-
sumed with lectures by Domesick concerning why Busch
should reinstate dues checkoff. In later meetings, Domesick
continued to lecture on power and his own philosophy of man-
agement; and compared his political views to his perception of
Busch’s (“I don’t have to rely on the law. You rely on Newt
Gingrich and Strom Thurmond. If I have to rely on Newt Gin-
grich for labor law, I’m in deep doo-doo”).
In addition to consuming negotiating time, one of the effects
of such lecturing on unrelated matters was that it distracted the
parties from the issues at hand. On many occasions, Domesick
made his point repeatedly, to the point that Busch would tell
him to stop. Busch’s efforts to stop Domesick’s lecturing were
unavailing. Domesick ceased this tactic only after Busch filed
its unfair labor practice charge.
Domesick’s lecturing during the first 9 months of negotia-
tions was interwoven with his penchant for storytelling. These
stories, which frequently preceded, ended or were in the middle
of lectures, also took time away from negotiations, delaying the
process and frustrating Busch’s negotiating team. Like the lec-
tures, these stories distracted negotiators from the matters at
hand, particularly since they bore no direct relation to contract
issues. While Domesick contended it was his nature to speak in
analogies and parables, he had not engaged in similar behavior
during the 1991 negotiations and, as with his lecturing, virtually
ceased his storytelling once Busch filed its unfair labor practice
charge. This confirmed Busch’s belief that the storytelling was
a tactic used to delay negotiations.
Busch recorded over 90 stories and offensive comments68 re-
lated by Domesick during the first 17 negotiating sessions in
the two units (GC Exh. 54).69 Domesick frequently told be-
tween 7–12 such stories per meeting, particularly in the early
meetings. Most of the stories contained sexual or ethnic refer-
ences and innuendo.
Knipper classified Domesick’s stories into categories. The
first were “Steve Domesick’s slices of life,” which were shorter
opinions or comments from Domesick’s life and had nothing to
do with the issue at hand. An example would be his frequent
reference to “why a dog licked his balls—because it could.” A
further example was Domesick’s telling of the much longer
“senior employee in the bordello” story, as related by Knipper.
While this story may have had some relation to principles of
seniority, Knipper did not find that it advanced negotiations.
Knipper’s second category was termed “Steve Domesick life
experiences.” These stories tended to last a few minutes and
related to some instance Domesick contended happened in his
life. Only on occasion did Knipper find a “tenuous thread” of
relevant analogy in these stories. One example of these stories
was a story about Domesick’s niece who worked in the gold
business dealing with millions of dollars but adding nothing to
the system. The “Barber with the Penthouse magazine” story
concerned Domesick’s 3-year old son, who would not sit still
for a haircut unless he was looking at Penthouse magazine,
causing his father to get him a subscription to the magazine.
The “security clearance story” concerned a job interview Do-
mesick allegedly had at the CIA while his zipper was open,
causing him to later wonder what they wrote in his file about
him. Knipper found no relevance to these stories which, on at
least one occasion, caused even Domesick to forget what was
being discussed.
As reflected in General Counsel’s Exhibit 54, the subject
matter of these stories bears no facial relationship to negotia-
tions and consistently revolve around sexual or offensive refer-
ences, i.e. senior employee in bordello story, missionary posi-
tion story, sexual activity story, vasectomy story, the dog lick-
ing remark, intercourse v. fornication story and the favorite
place for sex story. Knipper, an admittedly poor story teller,
could not recall the specifics of many of the stories. Knipper
did recall the general content, length, and irrelevance of these

68 Busch did not object to the mere use of offensive language during
negotiations, which commonly occurs and was used by both sides dur-
ing these negotiations.
69 Unlike the substantive matters discussed at negotiations, which
Busch recorded almost verbatim in its notes, Busch did not record the
stories related by Domesick. Thus, Busch’s notes reflect only the gen-
eral subject of each story Domesick told. While Busch’s notes reflect
the point during negotiations at which stories were told, they do not
reflect the story’s length.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1238
stories and their effect on negotiations even where Domesick
was making a tangential point. Knipper recalled discussing
Domesick’s storytelling during company caucuses. While some
stories were occasionally amusing, most were irrelevant and
offensive and disrupted and derailed the negotiating process.
On several occasions, Busch unsuccessfully raised objec-
tions to Domesick’s storytelling. Domesick simply contended
that was the way he spoke. Even when Telegen informed Do-
mesick that his storytelling tactics ran afoul of the Act, Dome-
sick disputed it:

The Board has said nothing about my stories and metaphors.
It’s my speech pattern. I’m not changing my style of speaking
for you. I’m a high involvement speaker.

Busch did not object to the general use of allegorical refer-
ences, i.e., the carrot and the stick. Busch’s objections related
to Respondent’s continued use of long offensive narratives
which were irrelevant to negotiations, which Domesick had not
used in prior negotiations. Busch did not object to stories told
which had relevance to negotiations.
Knipper was cross-examined extensively over several days
concerning the content and relevance of each of Domesick’s
stories and comments appearing in General Counsel’s Exhibit
54. Frequently, Domesick “suggested” to Knipper versions of
stories he did not recall on direct. Usually, this “suggestion”
did not refresh Knipper’s recollection. On occasion, even
Domesick could not recall the stories he told during
negotiations. In a classic example, Domesick suggested to
Knipper that the “Barber with Penthouse magazine” story
actually concerned Domesick going to the store to buy a
Playboy magazine to calm his 4–5-year-old son while at the
doctor’s office. While Knipper could not recall this suggested
story either, there was no conceivable relevance to negotiations
in either one. In general, the stories suggested by Domesick
during the trial were shorter than the ones Knipper recalled at
the negotiating table. Many of Domesick’s “suggested” stories bore no relevance
to negotiations even as retold. Domesick suggested to Knipper
a version of the “bad idea jeans” story which typically involved
a sexual reference, Knipper could not recall that story, but
failed to see relevance in the story Domesick proposed. Even
where Domesick suggested a story which Knipper then re-
called, generally Knipper could still see no relevance of the
story to the negotiations. When Domesick’s retelling refreshed
Knipper’s recollection of the “virgin movie” story (yet another
story with a sexual reference), Knipper termed that story “a
classic example of what [makes] these stories so distracting.”
Respondent produced no evidence during the trial concern-
ing any aspect of Domesick’s penchant for lecturing, philoso-
phizing and storytelling during negotiations. While Domesick
could “suggest” versions of stories to Knipper during cross-
examination, this does not constitute record evidence, particu-
larly when most of those suggested versions were not recalled
by Knipper. No evidence was produced as to why this behavior
was curtailed following the filing of the unfair labor practice
charge. Neither Domesick, who did not testify, nor John Mur-
phy, who did, gave any testimony to explain, clarify or deny
Respondent’s tactic of using Domesick’s loquaciousness to
delay and frustrate negotiations. Respondent did not deny Do-
mesick engaged in inappropriate lectures and storytelling, nor
did Respondent produce any evidence concerning the motiva-
tion for this behavior. Thus, General Counsel’s evidence that
Respondent used lectures and storytelling during negotiations
as a tactic to delay and frustrate the negotiating process is unre-
butted.
bb. Respondent’s delayed presentation of its
economic proposals
It is axiomatic that negotiations cannot be concluded until
economic issues are put on the table. Respondent made no eco-
nomic demands in its initial proposals to Busch. Respondent
had made economic demands in its initial proposals in 1991. At
the Union’s request, the discussion of economic issues was
deferred until after language issues were discussed. By Decem-
ber 1995, 14 months into the negotiations, Busch still had not
received economic demands from Respondent.
At the November 16, 1995 drivers’ meeting, Busch men-
tioned the lack of any economic proposals from Respondent
after a year of negotiations. Respondent offered no comment.
At the December 6 , 1995 drivers’ meeting, Busch began press-
ing Respondent to produce its economic demands. This oc-
curred in the context of discussing Busch’s proposal for the
immediate creation of 15 apprentice positions, which would
have an economic cost to Busch. Busch had made this eco-
nomic proposal, despite its economic cost, as an incentive to
reach agreement on its hiring hall proposal. Respondent would
not agree to the apprenticeship proposal without Busch putting
its early retirement proposal on the table. Inasmuch as the early
retirement proposal hinged on continuing health and welfare
contributions by Busch, Busch could not cost out and make a
detailed proposal without Respondent’s economic demands,
including health and welfare costs.
Busch negotiator Arthur Telegen began pressing for Respon-
dent to make its economic demands, noting that they had de-
layed economic discussion at Respondent’s request and that
there had been no economic proposal in 14 months of negotia-
tions. Domesick refused to reveal Respondent’s economic de-
mands, stating that Respondent had generally identified areas
for improvement, including a wage increase. Telegen re-
sponded by again suggesting Respondent produce its economic
proposals. None were forthcoming.
Busch continued during subsequent meetings to press Re-
spondent to reveal its economic proposals. Respondent did
produce its own early retirement proposal at the January 4,
1996 drivers’ session, projecting a cost of $19–$20,000 per
employee affected. This caused Busch to again request all of
Respondent’s economics, contending it was difficult to consider
economic items piecemeal. Domesick responded that he did not
consider his early retirement proposal an economic item.
Telegen responded that it was difficult to consider this proposal
without the other economic components. He repeated Busch’s
willingness to discuss the early retirement proposal in detail at
the next meeting, but insisted they would need Respondent’s
complete economic proposal to do so. Domesick continued to
insist his early retirement proposal could be discussed apart
from other economic items. Telegen stated that Busch would
give a counter proposal on early retirement, but it needed pen-
TEAMSTERS LOCAL 122 1239
sion information and Respondent’s entire package to be able to
do so. Respondent did not give a reason for its reluctance to
produce its economic proposals.
At the January 18, 1995 drivers’ session, Telegen reiterated
the need for Respondent’s entire economic package. While
Respondent provided the pension information relating to the
proposal which Busch had requested, it did not provide the
remainder of its economics. Telegen later stated: “It’s hard for
us to come to closure without your economics.” Domesick
insisted Busch had to first put money on the table before Re-
spondent would make economic proposals, stating:

What you should tell us is how much you will allocate
to workers and to the various funds. I will assess the in-
formation and we will make up your own mind. We can’t
force that. So we want every benefit improved. Do we
know the levels? No, because we don’t know what you’ve
budgeted.

Telegen insisted it was the union’s place to specify the im-
provements it sought or economics would remain the same.
Telegen insisted Respondent produce its economics at the next
session. Domesick responded:

You see the issue of economics as bilateral. We see it
as unilateral. You have to figure and budget. But I can’t
believe that after 16 months you haven’t done that.
Telegen responded:
At some point you’ll make an economic proposal or
you won’t. Because if we don’t, we’ll take it that you have
no economic proposals. I suppose we could say, you’re on
notice. The ball is in your court on economics and I’m not
going to be going into an abstract discussion of our
budget.

Respondent did not offer its economic proposals during the
next month, covering five meetings in the two units. At the
conclusion of the February 21, 1996 meeting, Telegen sug-
gested Respondent produce its economic proposals in advance
of the next meeting. Domesick said they would try.
At the March 21, 1996 meeting Telegen, in discussing Re-
spondent’s early retirement proposal, stated:

We’re ready to negotiate over economics. If this is the
Union’s only economic proposal we’ll counter. But we
expect you have some others. But we’ll do it all together.
At some point, I’d expect after 16–18 months, you would
have made one. If you have an economic proposal, make
it.

Telegen reiterated this later in the meeting: “I’d like to urge
you to submit your economics if you have them. Again we
need all economics for this because there is give and take.”
At the March 27 meeting, Telegen urged Respondent on two
occasions to produce their economic proposals at the next
meeting on April 16. Respondent offered no response.
At the drivers’ meeting of April 16, 1996, Respondent, for
the first time, presented a partial package of its economic pro-
posals for the drivers’ unit. Respondent proposed improving the
vacation package, improving the pension plan and increasing
the health and contribution 12–15 percent year for 3 years, with
some retroactive increase. Respondent did not propose a wage
increase on April 16, though it stated its intention to do so.
Telegen stated that Busch could not counter on economics
without wages. Domesick would not produce them.
Respondent finally made its wage proposal in the drivers’
unit at the May 21, 1996 drivers’ meeting, 19 months after the
start of negotiations. Respondent did not produce any economic
proposals for the plant unit until the meeting of July 3, 1996,
when it presented a complete package.
Respondent’s refusal to produce its economic proposals until
19–21 months after the start of negotiations and 5–7 months
after Busch began insisting on their production adversely af-
fected the negotiations. Without these economic issues being on
the table, the negotiations could not be brought to closure.
While Busch had stated it intended to improve the employees’
economic package, it could not cost out and present its own
proposals without knowing what Respondent was seeking.
Without Respondent’s health and welfare proposal, Busch
could not calculate the cost if either parties’ early retirement
proposal. Busch was further hindered in this regard by Respon-
dent’s refusal to provide health and welfare information, dis-
cussed previously. Busch was not able to present its own eco-
nomic proposals until September 11, 1996, when it presented
its complete package.
cc. Focusing negotiations on the sale of the business
Motivation for Respondent’s bargaining behavior can be
found at the outset of negotiations. As noted above, Respon-
dent’s initial proposals in each unit, prior to its receipt of
Busch’s proposals at the first negotiating session, contained a
major rewriting of the contractual successorship clause which
would be more advantageous to Respondent in the event of the
sale of the business. Respondent then focused the bulk of the
discussion at the preexpiration bargaining sessions on the sale
of the business, rather than on substantive contract proposals.
Respondent made clear that it wanted Busch to sell its business
to an entity more agreeable to Respondent.
At the first negotiating session, Busch presented its proposals
and discussed its intentions concerning negotiations. Busch
admitted that it had an ambitious agenda and was seeking major
operational changes in the way the Branch operated in order to
respond to industry pressures, manage its work force and im-
prove customer service.
Schmitz described Busch’s agenda to Respondent. Schmitz
told Respondent that, if it was unable to attain the changes it
desired through negotiations, Busch was prepared to sell off the
Branch. However, Schmitz stated Busch did not desire to sell
and would negotiate in good faith to obtain a new collective-
bargaining agreement. Schmitz told Respondent Busch was not
seeking any economic concessions and, in fact, was prepared to
improve the employees economic package. Attorney Dome-
sick’s response was notably blunt, with overtones from Re-
spondent’s Burke experience:

From the Union’s point of view, we would like to see
you sell the Branch. But we want to have a smooth succes-
sion to the next employer . . . . Would you as a Union want
to battle a vastly rich corporation or a small time busi-
nessman. I must say, I’d rather deal with the local busi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1240
nessman. . . . So maybe we should focus our efforts in the
smooth transfer of the Branch . . . Maybe we should use
our ability to insure a smooth transition and apply our un-
ion resources in and out of the marketplace, in politics
with A-B. In the same way we can have a positive influ-
ence. But we can also be a force for evil like a horror
movie. Vincent Price like. There is truth in that. . . .
You’re selling something people want, a cash cow, but
they have to hire our workers. Then we can take care of
our relationship. A new owner can thank you for getting a
distributorship. And we can make concessions to a new
owner.” [Emphasis added.]

Domesick later continued:

This is not the jewel in the crown of A-B. We are very little in
the A-B company. We’re small in this corporate giant. We
want someone who cares. I want this to be someone’s who
thinks it is the “jewel in the crown” who wants to save it for
their grandkids.

Thereafter, Respondent continually urged Busch to sell the
Branch, taking up a substantial amount of negotiating time in
the sessions before contract expiration. Schmitz attempted un-
successfully to convince Respondent it wished to keep the
Branch and to discuss issues. Domesick continued to empha-
size that the proper focus of negotiations should be on succes-
sion to a new employer, a theme he repeatedly struck in the
next several sessions.
In what was a tense first meeting, Domesick insisted that the
issue of successorship be handled first, stating, “We need to put
the horse before the cart.” Schmitz objected to no avail that
Respondent had yet to even review Busch’s proposals before
taking this position. Domesick insisted that successorship come
first to give security to the bargaining unit. Domesick then
stated, in a serious and sincere manner:

This is where the price of your distributorship is, but you may
try to sell the business without the labor contract, but I would
not recommend that and hope that you won’t because, Caryn,
put your pen down, there will be warfare. We’ll blow it up. I
know I can’t say that. But we will.

This threat70 produced a stunned reaction among those pre-
sent. Coming during a tension filled meeting, it was taken as
serious and sincere. This threat introduced even greater ten-
sions into the early negotiations.
Tensions were further heightened by a threat to Pat Knip-
per’s family made during the November 3, 1994 bargaining
session.71 These threats were taken seriously by Busch, particu-
larly in light of violence by Respondent during the 1983 strike
at Busch and during the Burke dispute a few years earlier.

70 This threat was alleged in a prior unfair labor practice complaint
against Respondent, which settled after 4 days of trial. This evidence,
therefore, is offered as background. The “Caryn” referred to by Dome-
sick in the threat is Attorney Caryn Fine, a member of Busch’s negoti-
ating team and one of its notetakers during negotiations.
71 This threat was also settled as part of the settlement agreement in
GC 4.
Domesick continued to emphasize his desire for a sale at the
next meeting on October 18, 1994, which was the first plant
meeting. Domesick stated:

I can’t deal with a fanatic. So where’s the future for our peo-
ple? It’s got to be with another Employer. It’s not A-B. I’m
assured of that and of an uncertain future. I don’t see a new
Employer won’t have value to us. You’re being here tells me
this.

Busch continued to tell Respondent it desired to negotiate a
contract and not to sell the Branch.
At the next meeting on October 24, most of the meeting cen-
tered on Respondent’s insistence of discussing the sale of the
business. Knipper angrily objected to Respondent’s constant
refrain during three meetings of its desire for a sale of the busi-
ness, stating:

You are saying the fucking place is sold. I’m trying hard to
keep from selling the place. And all you can say is I’m not
telling the truth. We’ve had enough of this. We can sit around
all day and listen to you. We have told you there are two is-
sues in this section. If you don’t want to address those issues
now, we can talk all day. But tell us you have no counter and
let’s move on. You keep saying it’s sold and I don’t believe
it’s not sold. Well its not fucking sold! So you come and tell
us something.

Knipper’s concern was that, if Respondent continued to
avoid negotiating contractual issues, no contract would be
reached and the Branch would be sold. Despite Knipper’s out-
burst, the issue of the sale consumed the remainder of that
meeting. Thus, the majority of the discussion in the first three
negotiating sessions concerned Respondent’s desire that the
Branch be sold to a small businessman, rather than either
party’s contract proposals.
This desire for a sale of Busch’s business continued to be
uppermost in Respondent’s thoughts thereafter, even away from
the bargaining table. On February 24, 1995, Busch held a
“Chuck’s Bar and Grille” promotion in conjunction with
WZLX-FM at the Union Street Restaurant in Newton, Massa-
chusetts. Respondent conducted a demonstration at the promo-
tion as part of its consumer boycott campaign.
Frank Curtis, Busch’s operations manager, went to the Union
Street Restaurant promotion where he encountered John Mur-
phy. Murphy was in a uncontrollable angry tirade. He swore at
Curtis and threatened to sue him. After a few minutes, Murphy
calmed down and became almost apologetic. Referring to Pat
Knipper and Mark Wahlgren, Busch’s director of sales and
operations, Murphy stated, “I’ve worked too hard for 15 years
to get the Union where it is. I’m not going to allow these New
Jersey assholes to come in here and take it all away from me.”
Curtis responded that he and Murphy had dealt with each other
for years, and it now came down to Murphy threatening him in
a bar. Murphy responded, “Sell it. Sell it now, Frank,” referring
TEAMSTERS LOCAL 122 1241
to the distributorship. Curtis told him to save it for the negotiat-
ing table.72
Following its filibuster concerning the sale of the business,
Respondent persisted in spending an extensive amount of time
on other, less important issues in the negotiations. These in-
cluded the Family Medical Leave Act (FMLA), the restoration
of dues checkoff, an interim agreement and bereavement leave.
dd. The FMLA negotiations
Busch considered the issue of the recently enacted Family
Medical Leave Act to be a secondary issue in the negotiations.
The statute is fairly detailed in its requirements and has only
minor mandatory areas for bargaining. In addition, employees
in both units already had a leave of absence provisions within
their collective-bargaining agreements concerning certain situa-
tions covered by the FMLA. It had taken less than an hour for
Anheuser-Busch and the International Brotherhood of Team-
sters to negotiate FMLA language at the national level covering
the entire brewery system. While Busch proposed FMLA lan-
guage in its initial proposals in each unit, Respondent made no
FMLA proposal in either unit.
Thus, Busch was surprised that Respondent chose to spend
virtually the entire plant meeting of November 9, 1994, the last
meeting before contract expiration, on FMLA. Respondent
proceeded to spend the two subsequent plant meetings, on Feb-
ruary 1 and 10, 1995, on the FMLA issue. Thus, three of the 17
plant meetings held in the first 2 years, totaling 14 of the 50
hours spent in those negotiations, were spent on the FMLA
issue. They were the only meetings held in the plant unit during
a 3-month period. Thus, in the 3 months between November 9,
1994 and February 10, 1995, the parties negotiated solely on
the FMLA issue at Respondent’s insistence.
Respondent negotiated the FMLA issue by posing a seem-
ingly endless string of hypotheticals for discussion concerning
Busch’s proposal but without any resolution. Respondent’s
highly detailed, belabored negotiations on this issue is captured
concisely during Domesick’s cross-examination of Knipper
concerning the FMLA discussion of November 9, 1994. This
extensive, time consuming cross-examination accurately cap-
tures the nature of the negotiations, and the lack of resolution
of the issue.
Respondent was unable to explain its position on FMLA
when requested by Busch, frequently changing its position.
During the negotiations, Busch pressed Respondent to produce
a counterproposal. At the end of the second meeting, Respon-
dent stated that it had a counter, but refused to produce it until
the next meeting. When that proposal was then produced, it
lacked essential elements concerning the length of leave and
them continuation of health and welfare benefits.
Throughout the FMLA portion of negotiations, Respondent
played games with Busch at the table designed to prolong the
discussion and avoid any possible agreement. These games
included refusing to answer a question concerning its position
regarding doctor certification for leave, thereby causing 2 hours

72 While Murphy was called as a witness by Respondent, he did not
rebut this statement. An adverse inference will be drawn from Respon-
dent’s failure to rebut this evidence.
of negotiating time to be devoted to the issue. Respondent took
shifting positions on whether there was even any need to nego-
tiate FMLA language or simply let the statue apply, again
seeming to prefer to prolong the debate rather than negotiate the
issue.
Schmitz brought a copy of the FMLA provisions of the Na-
tional Master Teamster Agreement to the February 1, 1995
meeting. Respondent had asked to see them when they came up
at an earlier session. On February 1, however, Domesick re-
fused to look at these provisions unless Busch offered them as a
proposal.
Throughout the February 1 meeting, Respondent insisted on
discussing Busch’s proposal, refusing to propose FMLA lan-
guage of his own. When Schmitz asked to see Respondent’s
proposal, Domesick responded: “Are you willing to agree to my
proposal without seeing it?” Obviously, Busch could not agree
with such a tactic. Domesick thereafter successively suggested
the FMLA leave be set at 36 weeks, then at longer than 12
weeks and then at 52 weeks while refusing to actually propose
any of these standards, preferring to work only from Busch’s
proposal. Schmitz was simply unable to get Domesick to com-
mit to a position. This discussion continued thereafter with
Domesick “suggesting” 52 weeks of leave, but refusing to pro-
pose it, further suggesting, without committing, that the present
contract would suffice for an agreement.
Respondent continued to prefer to debate concepts, rather
than proposals, by refusing to take a position on medical certi-
fication. In the alternative, Respondent threatened lawsuits
from employees against Busch in the absence of an FMLA
agreement. Domesick continued to refuse Schmitz’ requests
that he make an FMLA proposal.
Domesick thereafter clarified Respondent’s tactics here.
While Respondent refused to make any proposals on FMLA,
insisting on endless discussion of concepts, it would allow
Busch no such leeway. Rather, Domesick stated:

You haven’t proposed that. Until you propose it, it’s not bind-
ing. This isn’t Madison Avenue. Until you modify your pro-
posal, everything I say is just puffery. By that I mean, until
you propose it, it’s all academic, all speculation. That’s what I
mean by puffery in this instance. [Emphasis added.]

It is evident that the bulk of Respondent’s negotiations on
this issue were puffery.
Busch solicited Respondent again for its proposal towards
the end of the February 1 meeting. Domesick, while admitting
he had an FMLA proposal, refused to give it or even describe it
until the next meeting, claiming he may want to go over his
notes.
Domesick did, indeed, produce a counterproposal at the next
session on February 10. However, he conceded his proposal did
not contain essential items concerning the continuation of
health and welfare benefits during FMLA leave. This was a
vital component of the issue and had been the subject of much
of the prior meeting’s debate, yet Respondent chose to make no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1242
proposal concerning it. Respondent’s offered reason for this
decision was that the proposal related to economic issues.73
When discussing Respondent’s FMLA proposal, Domesick
was unable, or unwilling, to explain key components of it. Do-
mesick refused to say whether the proposal was simply coex-
tensive with the government FMLA regulations or had a
broader application. As Knipper testified, “It’s difficult to ne-
gotiate contractual language when you don’t know what it
means.”
To expedite negotiations, Schmitz had offered Respondent
several counterproposals on issues other than FMLA at the
February 10 meeting. Domesick resisted accepting them, claim-
ing he wanted to “dedicate his thoughts to FMLA.” Schmitz
continued to insist his counterproposals be received. After a
time consuming discussion, Respondent accepted Busch’s
counterproposals.
Respondent insisted on discussing the FMLA proposal for all
three plant meetings held between November 9, 1994, and Feb-
ruary 10, 1995, a period of 3 months and 14 hours of negotia-
tions. Curiously, there were no further discussions of FMLA
after the February 10 meeting. No agreement was ever reached
on that issue. Respondent never made proposals concerning the
length of FMLA leave or continuation of health and welfare
benefits, even in its belated offer of economic proposals.
ee. The dues-checkoff issue
Respondent “ground negotiations to a halt” at the following
meeting on March 21, 1995, by insisting on spending the entire
meeting attempting to persuade Busch to reinstate dues check-
off. Busch had continued to checkoff union dues during the
first 4 months after contract expiration. However, it had termi-
nated this practice in early March only after Respondent had
claimed in a related court proceeding that an implied-in-fact
contract existed between the parties because Busch continued
checkoff.
So incensed was Respondent concerning the termination of
dues checkoff that Domesick made several threats during the
March 21 meeting to further frustrate negotiations unless
checkoff was restored, as described above.74 This series of
threats culminated with Domesick stating: “We’ll negotiate
dues checkoff and union security ‘til the cows come home!”
Because of Respondent’s tirade concerning dues checkoff,
there was no discussion of any substantive proposals on March
21, effectively delaying negotiations. Reinstating dues checkoff
continued to be an issue at the next plant meeting on April 4,
1995, to the exclusion of other substantive proposals except an
interim agreement. Thus, two negotiating sessions were used
for Respondent to vent its misplaced anger at the termination of
dues checkoff rather than to engage in substantive negotiations.

73 It should be recalled that Busch had been requesting Respondent’s
economic proposals since December 1995, yet received none until
April 16, 1996.
74 Respondent’s conduct during the March 21, 1995 meeting was
fully detailed in the previous section concerning its failure to meet with
Busch.
ff. The interim agreement negotiations
Respondent’s desire to reinstate checkoff led to the concept
of an interim agreement, of which that would be one element.
This concept was first raised by Schmitz at the March 21 driv-
ers’ meeting. As proposed by Schmitz, the interim agreement
would require Respondent to agree to Busch’s hiring, schedul-
ing, attendance and nontraditional work proposals as a quid pro
quo in return for Busch’s agreement to reinstate union security
and dues checkoff, as well as a no-strike clause containing a 10-
day notice. Busch’s concept was to reach an interim agreement
on issues which were important to each side. The issues Busch
proposed as part of the drivers’ interim agreement were
“meaty” in the hopes of getting the negotiating process moving.
Domesick responded at the April 4 plant meeting by offering
his version of an interim agreement. This was merely a written
proposal to extend dues checkoff, with no attendant benefit to
Busch. On April 28, Respondent made the same proposal in the
drivers’ unit. Both were rejected by Busch.
Busch proposed a set of different elements for a potential in-
terim agreement in the plant unit at the April 4 meeting than it
had in the drivers’ unit on March 21. The issues Busch pro-
posed as part of the interim agreement in the plant unit were
agreement to four Busch counter proposals—the holiday trade
and buy back proposal, promotions from within, 1-day vaca-
tions and higher compensation for out-of-unit work. With the
exception of the holiday trade and buy back, each of these is-
sues was originally proposed by Respondent. All four issues
were enhancements to the bargaining unit. In return for these,
Busch would agree to reinstate dues checkoff with a no-strike
provision with 10-day notice. After discussion, Busch further
agreed to include arbitration as part of the interim agreement.
Discussion of the components of the plant interim agreement
then took up much of the discussion in the meetings leading up
to August 11, 1995. The proposals discussed were all Respon-
dent’s proposals. At the drivers’ meeting on August 11, the
parties reached agreement on the 1-day vacation proposal,
which had been an issue in both units and an element of the
proposed plant unit interim agreement. Upon signing off on that
agreement, Domesick stated: “If memory serves me right that
leads us to a happy point. A point where we can agree to this
Interim Agreement.” Domesick then produced a previously
prepared written document. This “Interim Agreement” con-
sisted of union security and checkoff, arbitration, no-strike/no-
lockout language, training language previously agreed upon and
the 1-day vacation proposal. These latter proposals related
solely to the plant unit.
Schmitz rejected this document as it contained none of
Busch’s elements of the proposed drivers’ Interim Agreement.
Domesick began to read from the minutes of the April 4 plant
unit negotiations, describing the elements of the interim agree-
ment discussed there. He contended this discussion modified
Busch’s proposed drivers’ interim agreement. Busch responded
that the negotiations in each unit were separate at Respondent’s
insistence and, thus, there were also separate proposed interim
agreements. Domesick admitted the negotiations were separate,
a fact which he did not want to change. He continued to insist,
however, that an interim agreement had been reached in the
drivers’ unit. Busch continued to dispute his assessment.
TEAMSTERS LOCAL 122 1243
Domesick demanded to see Busch’s notes as a means of re-
solving the dispute. He insisted his own notes were in clear
support of his position. Domesick repeatedly insisted upon
seeing Busch’s notes, offering to see his own notes only upon
seeing Busch’s. Schmitz did not have Busch’s notes with him
and said he would consider the request.
This dispute about the Interim Agreement consumed the re-
mainder of the August 11 meeting. Busch believed Respondent
created a deliberate misunderstanding to frustrate negotiations.
Busch did not see how Domesick could be confused that there
were two separate proposed interim agreements, containing
radically different elements, when Respondent had insisted on
separate negotiations. Schmitz codified Busch’s position in an
August 17, 1995 letter to Domesick. Schmitz noted that he had
told Domesick at the July 13 drivers’ meeting that they were
“miles away” from an interim agreement. Though agreement
had been reached on two of Respondent’s proposals, none of
Busch’s issues had been addressed. In the July 13 meeting,
Respondent had refused to even discuss Busch’s hiring pro-
posal, one of Busch’s major components of an Interim Agree-
ment. Schmitz suggested negotiations turn to discussion of
Busch’s elements of an interim agreement.
Despite Schmitz’ letter, the debate about whether an Interim
Agreement existed continued to consume negotiating time at
the next two negotiating sessions on September 19 and 28,
1995. On September 19, the parties again discussed the ele-
ments of the Interim Agreement for most of the meeting. At the
September 28 meeting, Domesick refused to discuss the em-
ployer’s attendance or hiring proposals, insisting on only dis-
cussing the Interim Agreement. Of course, Busch’s attendance
and hiring proposals were a component of the proposed drivers’
interim agreement. As the argument raged, Domesick then
refused to discuss any other matters until the Interim Agree-
ment issue was resolved. Busch persisted that it wanted to dis-
cuss the hiring hall. Telegen even granted Domesick’s request
to inspect Busch’s notes as a means of resolving the debate.
Respondent never took him up on the offer.
A review of Respondent’s own notes clearly eliminates any
conceivable validity to Domesick’s contention concerning the
elements of the interim agreement. Had Domesick, in fact, been
looking at Respondent’s notes during any portion of the pro-
longed discussion, he would have seen that Busch stated that its
hiring and attendance policies had to be part of the drivers’
interim agreement. Similarly, Respondent’s notes of the April 4
plant unit confirm Schmitz specified the four separate propos-
als Busch sought for inclusion in the plant interim agreement.
Busch’s notes on these points were in conformance with Re-
spondent’s. It is significant that Domesick perpetuated this
debate over several meetings without ever producing or, in-
deed, inspecting his own notes.
At the October 17 plant meeting, Busch tried unsuccessfully
to finalize an interim agreement in the plant unit. Respondent
would not agree.
No interim agreement was reached in either unit, despite ex-
tensive negotiations from March through October 1995. Busch
believed this series of negotiations was another contrivance
designed to delay negotiations and avoid agreement. The exten-
sive debate about whether an Interim Agreement had been
reached typifies this strategy. Because of the difficult issues in
the drivers’ negotiations, Busch was not surprised that no in-
terim agreement could be reached in that unit. They were sur-
prised that Respondent could claim that the hiring and atten-
dance policies were not part of the proposal. Busch was sur-
prised that Respondent would not agree to the interim agree-
ment in the plant unit. Unlike the drivers’ proposal, all of the
elements in the plant agreement were enhancements to that unit,
including dues checkoff. Busch believed that, politically, Re-
spondent could not reach agreement in the plant unit without
one in the drivers’ unit because of the effect on a potential
strike.
gg. Bereavement leave
Respondent used the issue of bereavement leave to delay and
frustrate negotiations. The parties had fairly broad bereavement
leave language in both contracts. Respondent had, as one of its
initial proposals in each unit, sought to expand that coverage to
include an employee’s “domestic partner.” Busch did not see
this as a major issue. As the negotiations developed, it became
clear that Respondent used this issue not to benefit employees,
but to insert a political statement into the collective-bargaining
agreements.
At the start of the September 28, 1995 driver’s meeting, 1
year into the negotiations, Respondent first offered specific
language on its bereavement leave proposal, which included an
“Affidavit of Domestic Partnership.” The affidavit required
employees to declare, under penalty of perjury, the nature of
their personal relationship to be eligible for the bereavement
leave benefit. While Busch was not opposed in principle to the
expansion of bereavement leave to include “domestic partners,”
it was concerned about the potential personal and financial
ramifications on employees required to execute this affidavit.
The affidavit could be viewed as an “outing” provision for gay
employees. Busch counterproposed a one time 3-day bereave-
ment leave for any significant person in the employee’s life,
whether or not they were a “domestic partner.” This proposal
eliminated the need to execute an affidavit. Domesick rejected
Busch’s counterproposal, preferring the affidavit, stating:

It’s more appropriate to us, even if it doesn’t violate a statute,
but it sends an appropriate message that love comes in more
than one form. The affidavit is no less a memorial than a mar-
riage certificate. Love is not represented by a piece of paper,
but by many other things.

Thereafter, Domesick confirmed Busch’s concern, describing
the proposal as a “political issue.” When Busch stated it was
not the company’s concern whether its employees were gay or
straight, Domesick stated, “It should be.”
Bereavement leave was discussed at negotiating meetings
over 5 or 6 months. On January 4, 1996, Respondent offered a
counterproposal which essentially substituted the term “spousal
equivalent” for domestic partner, but retained the affidavit.
Busch reiterated its objection to the proposal as an invasion of
the privacy of employees. In the subsequent discussion, Busch
objected to the affidavit as constituting an outing provision for
gay employees. Domesick confirmed this legitimacy of this
concern, stating:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1244
I have a number of gay friends and there’s no embarrassment.
But they would appreciate this. Why should they be biased
against those who don’t have the strength to declare them-
selves. . . . No, we respect the right to privacy, but if you don’t
declare it they get no benefit.

Respondent objected to Busch’s counterproposal, which of-
fered broader coverage for the unit. Domesick stated, “We
don’t want to spend the company’s money this way. We don’t
want to spend the limited reserves this way.” Curiously, Busch
had raised no concern about the cost of this proposal.
During the February 20, 1996 meeting, Busch attempted to
learn the origins of Respondent’s bereavement leave proposal
in order to find a common ground for agreement. Respondent
admitted it had not polled the unit concerning its desire for the
proposal, but refused to say whether it was aware of any mem-
bers who would benefit from it. This caused Busch to assume
there was no benefit to members in the proposal. Rather, Re-
spondent’s rationale was simply to give the nondiscrimination
clause its broadest application. The irony of this position is that
Respondent’s own health and welfare plan does not extend
coverage to spousal equivalents or domestic partners.
During the course of the negotiations on the bereavement
leave issue, Knipper had observed Respondent’s negotiating
team, except for Domesick and Murphy, with their heads down,
laughing and giggling whenever the proposal was discussed.
Discussion of bereavement leave continued during subse-
quent meetings. Ultimately, agreement was reached in both
units on a proposal quite similar to Busch’s original counter
proposal on September 28, 1995. No affidavit was included.
The lengthy negotiations which occurred, therefore, did not
produce a major change in the result. The nature of Respon-
dent’s proposal, its unwillingness to demonstrate any employee
support for it and the behavior of Respondent’s negotiating
committee caused Busch to conclude that the negotiations over
this proposal were not designed to benefit the unit but for Re-
spondent to make a political statement in the collective-
bargaining agreements. Extensive negotiations over a minor
issue were typical of the detailed bargaining strategy.
hh. The hiring negotiations
While Respondent insisted on lengthy negotiations on sev-
eral minor issues such as FMLA and bereavement leave, it
avoided negotiations on issues of major concern to Busch, such
as its hiring proposal. Even when substantive negotiations did,
on occasion, commence on a major issue, Respondent frus-
trated them with regressive proposals.
Busch’s proposal to eliminate its exclusive reliance on Re-
spondent’s hiring hall was one of its major proposals in these
negotiations. By its proposal, Busch sought the right to hire
spare employees directly from any source, including Respon-
dent’s hiring hall. Busch’s hiring proposal was discussed early
in the negotiations, but primarily to answer Respondent’s ques-
tions on how it would work. In depth negotiations were not
conducted at that time.
By September 1995, Busch began insisting that discussions
begin on its hiring proposal. Respondent resisted those re-
quests. At the September 28, 1995 drivers’ session, Telegen
tried several times to turn the discussion to hiring. Domesick,
frequently insulting Telegen, refused, insisted on discussing the
Interim Agreement.75 Respondent refused to discuss the hiring
issue for the entire meeting on September 28. Telegen con-
cluded by requesting that Respondent bring a hiring proposal to
the next meeting.
From the outset of the next meeting on October 24, Telegen
persistently solicited Respondent’s counterproposal on hiring.
Domesick insisted on discussing only the holiday issue. Even
when Telegen relented and gave a counterproposal on holidays,
Domesick refused to discuss hiring, stating: “I’m not gonna talk
about hiring until we reach agreement on holidays.” Domesick
then contended he did not know how Busch’s hiring proposal
would work. After it was explained, Telegen initiated a lengthy
discussion attempting to learn how the existing referral system
was operated by Respondent. As previously described, Telegen
was wholly unsuccessful in obtaining information from Re-
spondent concerning its own referral system. To advance nego-
tiations, Telegen proposed arbitrating the issue of hiring hall
and adopting Busch’s proposal for a trial period. Both offers
were rejected. Throughout the meeting of October 24, Respon-
dent continued to refuse to give a hiring counterproposal. The
meeting concluded with Telegen stating he would assume Re-
spondent did not have a hiring counterproposal if one was not
received at the next meeting.
Telegen confirmed his position in a letter to Domesick on
November 2, 1995. The letter explained the importance of the
issue to Busch, how Respondent’s refusal to provide relevant
information had handicapped negotiations and stated that, if no
counterproposal from Respondent was forthcoming at the next
meeting on November 16, Busch would assume Respondent
had no hiring counterproposal.
On November 16, 1995, for the third consecutive drivers’
meeting, Busch attempted to get Respondent to discuss Bush’s
hiring proposal. Respondent did produce a counterproposal.
The counterproposal stated Busch “will continue to give first
consideration to applicants referred by the Union.” Busch found
this to be no counterproposal at all, merely a rewording of the
existing practice.
In the discussion of Respondent’s counterproposal, Dome-
sick proposed the concept of a slate of employees from which
spares would be hired. Busch was willing to consider this con-
cept. While the slate was not a concept Busch originally con-
sidered, it became a viable compromise as the negotiations
continued. Domesick himself later labeled the concept of a
slate, or spares roster, “a good idea.” Respondent appeared
agreeable to the concept. The remainder of the November 16
meeting concerned negotiations of the spares roster concept.
Based on the positive discussions concerning the spares ros-
ter, Busch presented a counterproposal on the spares roster at
the next drivers’ session on November 29. Essentially, the pro-
posal would have allowed Busch and Respondent to each select

75 When Telegen asked to get away from the interim agreement,
Domesick, totally unprovoked, stated: “This is not high school. You
can't remake your youth at these meetings. You will still be picked last
on the team, the cheerleaders won't like you and you will need ap-
proval.” Later Domesick stated to Telegen: “You're trying to work out
your relationship with your father here by seeking the approval of Pat
[Knipper].”
TEAMSTERS LOCAL 122 1245
an equal number of employees for the spares roster, from which
spares would first be hired. The spares roster proposal was
discussed for virtually the entire November 29 meeting. Busch
found that the negotiations during these two meetings to be
constructive and felt that the parties were close to reaching
agreement on the concept of a spares roster.
At the next drivers’ session on December 9, 1995, however,
Respondent decided it no longer wished to talk about the hiring
issue, preferring to set it aside for other issues. Domesick stated
that 2 months was too much time for that issue. Telegen con-
tended they had only spent about 3 hours discussing the matter
at the table.76 Domesick continued to refuse to discuss the hir-
ing issue. Finally, Domesick offered a counterproposal on hir-
ing, but refused to discuss it that day.
Respondent’s counterproposal was merely a rewording of its
first hiring counterproposal, essentially leaving the existing
referral system intact. It made no mention of the spares roster
concept, which had been discussed over two meetings. Busch
found this a regressive proposal and so informed Respondent.
There were no further negotiations concerning the hiring is-
sue, either on December 9 or thereafter. No agreement was ever
reached on the hiring issue.
Busch viewed what occurred during the negotiations on the
hiring issue as an example of detailed bargaining. Respondent
devoted negotiating time to the issue, admittedly productively
for a period of time. When an agreement came near, Respon-
dent then deliberately blew up the process with a regressive
proposal, rendering the time spent at the table a “waste of
time.”
ii. Other game playing tactics
Respondent engaged in a variety of other “game playing”
tactics during the negotiations. These included refusing to make
or explain proposals and counterproposals and reneging on
prior understandings. All had the effect of delaying negotia-
tions and frustrated any possible agreement.
At the drivers’ meeting of November 3, 1994, the parties
were discussing Busch’s proposal to swap two existing holi-
days for 2 personal days, with a buyback option for unused
personal days. During the discussion, Respondent raised sev-
eral objections to the proposal. Respondent refused, however,
to make a counterproposal based on any of its objections.
Rather, it preferred to simply raise issues to discuss. Domesick
stated: “I throw these things out. I could propose the moon. I
don’t have all the answers. Most though.” Domesick refused
each of Schmitz’ requests to make a proposal, stating at one
point that the only way Respondent would agree to Busch’s
proposal on holidays was for Busch to remove all of its other
proposals from the table.
In the drivers’ meeting of November 10, 1994, the parties
were discussing proposals concerning route assignments and
the meaning of certain language contained in the collective-
bargaining agreement. Domesick claimed that Schmitz did not
understand the meaning of the language, since Schmitz had not

76 At the Respondent’s insistence, the parties had spent three meet-
ings over 3 months, a total of 14 hours, negotiating about the FMLA
proposal in the plant unit.
been present when it was drafted. However, when Schmitz
pressed Domesick for his understanding of the language, from
which an agreement on its meaning could be reached, Dome-
sick refused to explain his own understanding.
Similarly, during the April 4, 1995 plant meeting, a discus-
sion occurred concerning Respondent’s unwillingness to use a
federal mediator or make counterproposals to advance negotia-
tions. Domesick stated that Respondent had prepared about 40
counterproposals, but refused to share them until “the appropri-
ate time.” They were never forthcoming.
Later in the same meeting, Domesick refused to take a posi-
tion on whether arbitration had to be part of the proposed in-
terim agreement. He further refused to discuss multiple compo-
nents of the interim agreement at the same time, contending
that amounted to “horsetrading,” which he refused to engage in.
“Horsetrading,” which is commonly done in negotiations, had
been engaged in by these same parties in the 1991 negotiations.
One of Busch’s key proposals involved the creation of an at-
tendance policy. At the outset of negotiations, Busch had no
attendance policy. Employees had no obligation to appear for
work or to call in if they were going to be absent. Employees
could also appear for work and choose not to work if they did
not like the available assignments. Each of these absences were
known as “book offs.” Under the existing system, employees
suffered no penalty for “booking off” other than the loss of pay
for the hours not worked.
Busch made clear in its initial proposal that it intended to
eliminate book offs and establish a negotiated attendance policy
under which employees were required to report for work daily.
The substance of this attendance proposal was discussed over
8–9 bargaining sessions. During these negotiations, Busch
made several counterproposals to Respondent designed to im-
plement an attendance policy and eliminate bookoffs.
Respondent had counterproposed on this issue, including the
concept of nontraditional discipline for attendance problems.
Busch considered this to be a bridge to an agreement. Busch
felt real bargaining was occurring on this issue and that agree-
ment was possible. Throughout the discussions, however,
Busch maintained that the cornerstone of any agreement was
the elimination of bookoffs. Without eliminating bookoffs,
where employees can fail to appear for work without penalty, a
real attendance policy was not possible.
The parties continued discussions of Busch’s attendance pro-
posal at the May 23, 1996 drivers’ meeting, occupying the en-
tire meeting. At the outset, Busch made another counterpro-
posal. Part of the discussion related to Respondent’s proposal
that there had to be a willful refusal to report to work to be
subject to discipline and the standard to be applied for defining
excessive absenteeism.
During this discussion, Telegen stated that the parties had
agreed that bookoffs would no longer be allowed. Domesick
did not respond. When Telegen pressed Domesick to confirm
his understanding that there had been an agreement to eliminate
bookoffs, Domesick said that he could not talk on the issue.
Domesick then said that he had not contemplated whether
bookoffs would be considered a valid reason for employees not
to report for work under the attendance policy. This position
undermined Busch’s entire proposal. Telegen accused Dome-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
sick of bargaining in bad faith and stated he had “pissed away
the day.” Domesick, somehow taking umbrage at the comment,
terminated the meeting.
Busch found this to be a further example of Respondent’s
game playing. Respondent had understood from the outset that
Busch intended to eliminate bookoffs as part of an attendance
policy. The negotiations had proceeded for 18 months on this
issue with that understanding. When agreement was drawing
nearer, Respondent suddenly contended bookoffs were still
contemplated as part of an attendance policy, causing the nego-
tiations on this issue to be “trashed.” No agreement was ever
reached on an attendance policy.
Further typifying Respondent’s game playing in negotiations
was its patently false objections to the use of “bad” language at
the bargaining table. Though perhaps regrettable, the use of
obscenities has a long and honored history in negotiations and
is quite commonplace. Nevertheless, in one session, Attorney
Domesick claimed umbrage at Schmitz’ use of the word “bull-
shit.” Domesick’s umbrage is belied by his own and his com-
mittee’s use of the word “bullshit” (G.C. 38(j), p. 29 (John
Murphy); G.C. 38(l), p. 36 (James Hoar); G.C. 38(q), p. 23
(Domesick); G.C. 38®, p. 28 (Domesick).) Domesick engaged
in even more egregious use of language during one session,
calling Schmitz a “schmuck” and a “putz,” stating that talking
to him was like “talking up the ass of a dead horse.” When
Schmitz objected to these characterizations, Domesick stated,
“You come to the table. You have to accept robust language.”
To this latter statement, there may be truth, which further em-
phasizes the game Domesick was playing by his previous ob-
jections.
Respondent presented no evidence whatsoever in response to
the allegations that it engaged in unlawful “game playing” at
the bargaining table designed to delay and frustrate the negotia-
tions. These allegations, therefore, remain unrebutted and the
facts presented by General Counsel are credited.
jj. Respondent’s burdensome information requests
In 1991, Respondent made no information requests of Busch
relating to collective-bargaining negotiations.77 An essential
component of “detailed bargaining,” as described in The Labor
Page by John Murphy, is “making detailed requests for infor-
mation and analyzing each answer.” In the 1994 negotiations,
Respondent made eight requests for information related to bar-
gaining in the first 9 months of negotiations. While certain of
these requests were facially related to collective bargaining,
seldom did they result in any proposals by Respondent at the
table. These requests did, however, require Busch to spend a
considerable amount of time and generate a considerable
amount of paper complying with the requests. The lack of sub-
stantial responses at the table to the information received
caused Busch to conclude that the primary purpose of the re-
quests was to harass Busch, causing it to waste time and divert
attention from the negotiations. Respondent ceased making this

77 While Respondent did present evidence of information requests it
made during that period, none of those requests directly related to the
contract negotiations.
type of information request after Busch filed its unfair labor
practice charge.
Respondent’s request for health and safety information ap-
peared to be copied from a form used in another industry. It
contained questions wholly inappropriate to Busch’s warehouse
and distribution operation.
Respondent sought the generic names of all chemical sub-
stances at the facility, requiring production of over two inches
of material-data safety sheets. These had never before been
requested by Respondent and were already available in the
plant on a daily basis. In items 3 and 4, Respondent also sought
the results of all clinical tests on all of these substances, going
so far as to identify third party sources where Busch might seek
to obtain them. Busch performs no such testing, which was well
known to employees and Respondent. Busch was given an es-
timate that there would be over one million pages of documents
responsive to this request. Requesting this information appeared
to be no more than harassment.
Despite this, Respondent renewed its request on item 4, seek-
ing to have Busch obtain these studies from third parties. Busch
refused to go through this exercise, as it had no greater access
to the information than Respondent. Respondent then aban-
doned its request.
Item 5 sought health related information from the employ-
ees’ health insurance carrier. Since unit employees are covered
by a health plan administered by Respondent, with John Mur-
phy as administrator, Respondent already possessed this infor-
mation and only had to ask itself for it. Responding to the re-
mainder of the request required producing a stack of OSHA 200
forms and over two inches of first reports of injury forms. This
task was totally duplicative as Respondent was already regu-
larly furnished these forms on a monthly basis.
Item 6 sought contaminants monitored by the company. This
request was further harassment since Busch’s operation neither
uses nor monitors contaminants.
Item 8 sought information concerning work areas which ex-
ceed certain heat standards. Busch’s facility refrigerates, and
does not heat, its beer, a fact obvious to those employed there.
Similarly, there is no issue at the facility concerning heat dis-
ease as requested in item 8.1. These items, above all, appeared
the most irrelevant.
It took Busch about 10 hours of managerial and secretarial
time to comply with this request, producing over 5 inches of
responsive documents. Busch viewed this request as part of
detailed bargaining. The requests were generally unrelated to
Busch’s operation. There was no evidence Respondent used
any of Busch’s responses in any way during negotiations. Re-
spondent made no proposals based on this information. It sim-
ply wasted Busch management’s time in responding to it.
Respondent requested Busch’s organizational chart, job titles
and descriptions and information on each incumbent. This in-
formation had never before been requested by Respondent.
Complying with this request took a total of about 7–9 hours.
While relevance for such a request could exist, Respondent
made no apparent use of the information and no proposals
based on it during negotiations.
Respondent made a detailed information request concerning
the company’s policies apparently in relation to the Americans
TEAMSTERS LOCAL 122 1247
with Disabilities Act. Respondent later repeated its request,
seeking the same information concerning employees outside
the bargaining unit. Respondent did not explain why such in-
formation was necessary. While the ADA was an issue dis-
cussed during negotiations, it was not clear Respondent made
use of the information it received, which took several hours to
compile.
Respondent’s next information request was for Busch’s fi-
nancial records in order to “prove [Busch’s] poverty plea.”
Busch referred to this as the “gotcha request.” Based on earlier
comments by Domesick, Busch believed he was lying in wait
for the magic words “can’t afford” to be stated by Busch so he
could make this request. The request arose out of a discussion
at the February 3, 1995 drivers meeting.
The discussion at that time did not concern economics78 but,
rather, Busch’s apprentice proposal. Mark Wahlgren was dis-
cussing the issue with James Hoar. Neither was their parties
respective spokesman. Wahlgren began a comment with the
words “the company can’t afford . . .” but was interrupted by
Domesick and not allowed to complete his thought. Domesick
began gleefully waltzing around the room saying that the com-
pany had said the words and now Respondent would get their
records. He continued this way for several minutes. Schmitz
objected to no avail that he was chief spokesman and had never
said the company could not afford to pay the employees. Do-
mesick stated he would make the request and file a charge with
the Board if the Company refused to comply. The discussion
then turned to other matters for the remainder of the meeting.79
Domesick fulfilled his prophecy by filing his information re-
quest, which Busch rejected. Domesick renewed his request,
contending in support that, immediately following Wahlgren’s
comment, Schmitz had “hustled the company’s bargaining
team from the room, ending that day’s discussion.” Domesick’s
imaginative version of the events at the February 3 meeting is
not supported by Busch’s notes. Respondent produced no tes-
timony to dispute the accuracy of Busch’s notes.
Five months later, as predicted, Respondent filed an unfair
labor practice charge on this matter against Busch. The charge
was later withdrawn, presumably because it lacked merit.
This request further constituted harassment as Busch had
clearly not plead poverty in these negotiations in any manner.
In fact, Busch had announced its intention to improve wages
and benefits and had begun discussions to that end.
On March 22, 1995, Respondent made a detailed request for
information concerning customer complaints about spare em-
ployees. Respondent falsely contended Busch had stated such
complaints formed the basis for its proposal to cease its exclu-
sive reliance on the hiring hall. Busch had never made that
statement, but had stated that they receive more complaints
about spares than regular employees. Busch was concerned
about the request in part because the basis for it was false.
Moreover, the volume and detail of the information sought in

78 It should be recalled that Respondent refused to produce or dis-
cuss any economic proposals until April 1996.
79 While Wahlgren’s truncated comment is not reflected in Busch’s
notes, it is admitted he stated the word’s “can’t afford,” but without
completing his thought or providing a context for it.
the request was burdensome, far in excess of what appeared
necessary to investigate the issue. No relevance to negotiations
was seen, for instance, in producing the entire personnel file of
any employee about whom a complaint had been received.
Busch offered to make available these records for Respondent’s
inspection. Respondent never acted on this offer, indicating a
lack of real interest in the information. While much of the re-
quested information was not available, it took a good amount of
time for Busch to search the records to verify this fact. As with
previous requests, Respondent appeared to make no use of this
information.
On March 22, 1995, Respondent requested information con-
cerning the identity and hours worked by spares. This request
had obvious relevance to issues at the table on which both par-
ties had made proposals. Busch did comply with the request,
taking over 4 days of time to compile the information. Busch
felt the request was harassing simply because it had requested
similar data from Respondent in its information request, which
Respondent has refused to produce, as discussed above.
At the plant meeting of April 4, 1995, an issue arose con-
cerning whether one or two employees were required to set up
draught trailer trucks when used by Busch. The parties dis-
agreed on the contractual requirement. Respondent followed the
discussion with a detailed information request requiring inspec-
tion of a voluminous number of files. As with prior requests,
Respondent made no proposals based on the information it
received and did not appear to use it in any way.
Respondent’s information request of May 9, 1995, related to
proposals concerning internal promotions. This issue had arisen
during the 1991 negotiations. Busch had pledged to improve its
record of internal promotions in 1991 and felt it had lived up to
that pledge. During the May 3, 1995 plant bargaining session,
Respondent had indicated that it felt there was a continuing
problem relating to internal promotions. Busch expressed its
view to Respondent that it had lived up to its pledge to increase
internal promotions. When Schmitz asked Domesick to identify
the problem, Domesick responded:

If you want me to make a demand for information, I’m per-
fectly capable of doing it. We don’t need another one.

Schmitz asked who had sought promotions and not received
them. Domesick responded:

What I understand is you have a comic corporate view. I don’t
have to look case by case to identify the issue. Maybe we
ought to get the data. The corporate view is that you look at
jobs in the bargaining unit as stepping stones.

Busch took this to be a threat of another information request
if it did not subscribe to Respondent’s view on the lack of in-
ternal promotions. Busch did not agree with Respondent and,
several days later, the information request was made.
Compliance with this request was burdensome, taking about
a week of Knipper’s time, as well as 8–9 hours of the personnel
administrator’s time. Busch additionally felt the request was
burdensome as Respondent already had access to the informa-
tion through its steward, who was well acquainted with who in
the unit had been promoted in the preceding years. Internal
promotions were not a major issue in negotiations. Ultimately,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
agreement was reached on some minor language changes to
article 3, section 2.
Following this request, which shortly preceded the filing of
Busch’s unfair labor practice charge, Respondent ceased mak-
ing these burdensome information requests. Virtually no pro-
posals by Respondent resulted from any of these information
requests. Busch found the purpose of these requests to be to
harass management, waste time and divert attention from actual
negotiations, just as was outlined in The Labor Page.
Respondent proffered no testimony or evidence to rebut the
General Counsel’s allegations concerning its abusive use of
information requests as part of its detailed bargaining strategy.
Thus, it produced no testimony to explain either its motivation
in making the requests or its use of the information received.
7. Conclusions with respect to the alleged 8(b)(3) violations
a. Summary of the fact findings
As the facts above demonstrate, Respondent sought from the
outset to delay and frustrate their negotiations with Busch had
had no intent to reach agreement. This strategy was consistent
with the “detailed bargaining” strategy outlined in The Labor
Page in 1994 by John Murphy concerning the Burke Distribut-
ing negotiations. Detailed bargaining allows Respondent to
avoid the unpalatable alternatives of impasse or strike and fur-
ther buys time for Respondent’s consumer boycott to affect the
employer. One hoped for result of this detailed bargaining
strategy, as had previously occurred with Burke Distributing,
was to force Busch to sell its distributorship to an entity more
amenable to Respondent, accompanied by the possibility of a
substantial cash payment to Respondent. That this was Respon-
dent’s goal was confirmed by its consistent statements to Busch
to sell the distributorship during the first 2 months of negotia-
tions. Thereafter, John Murphy exhorted Frank Curtis to sell
the distributorship during a boycott demonstration at the Union
Street Restaurant.
Respondent’s detailed bargaining strategy was to create the
image of bargaining but without any substance. It accomplished
this, first, by keeping the frequency and duration of meetings to
a minimum. Respondent insisted, contrary to past practice, on
alternating meetings between the two bargaining units. Though
a facially neutral decision, where the major issues existed in the
drivers’ unit, this had the effect of delaying agreement in either
unit, pitting one against the other. Respondent resisted all at-
tempts by Busch to have lengthier and more frequent meetings.
Respondent refused all requests to set aside blocks of time for
negotiations. It refused all requests to extend meetings later in
the day or to meet on nights or weekends. Further, in schedul-
ing meetings, Respondent rarely would agree to back-to-back
meetings. This not only delayed negotiations and impeded
momentum, but was highly inconvenient for Busch’s negotiat-
ing team, which traveled from St. Louis.
When Respondent did come to the table, it frustrated nego-
tiations by various conduct. Respondent used its chief negotia-
tor, Attorney Stephen Domesick, to filibuster during the first
nine months of negotiations with extensive and irrelevant lec-
turing and storytelling. In addition to consuming negotiating
time, these filibusters distracted negotiations and disrupted
momentum, particularly the Domesick’s stories which were
replete with sexual reference and innuendo. Respondent in-
sisted on using valuable meeting time to negotiate in excruciat-
ing detail over minor issues, such as the FMLA, bereavement
leave, the termination of dues checkoff and an interim agree-
ment. Respondent delayed discussions of Busch’s major issues.
When it finally did discuss them, it “blew up” any substantive
negotiations with regressive proposals, as it did in negotiating
the hiring issue. Similarly, Respondent negotiated other issues
only to blow them up with deliberate misunderstandings on
Busch’s positions, as it did with the interim agreement and the
attendance policy. The effect of these tactics was to waste ne-
gotiating time and prelude any possible agreement, all a part of
detailed bargaining.
Respondent further unlawfully delayed the presentation of its
economic demands for months after Busch insisted upon seeing
them. Respondent took the unusual step of not including eco-
nomics in its initial demands. Fourteen months later, Busch
began insisting on seeing them. Without explanation, Respon-
dent refused to produce its economic proposals for another 5
months in the drivers’ unit and 8 months in the plant unit. No
agreement could be finalized without discussion and agreement
on economics matters.
As part of its detailed bargaining strategy, Respondent re-
fused to provide Busch with information relevant and necessary
to the negotiations concerning its operation of the exclusive
hiring hall and its health and welfare fund. Respondent also
made abusive information requests of its own to Busch, making
virtually no use of any of the information it received which had
been burdensome and time consuming for Busch to compile.
Ironically, some of the information requested by Respondent of
Busch paralleled information it had refused to supply Busch.
Respondent’s tactics at the bargaining table demonstrated it
never had any intent to reach agreement. John Murphy’s threat
to Frank Curtis in 1995 that he would never sign a contract only
confirmed Respondent’s intent. Rather, Respondent engaged in
a bargaining masquerade, implementing a sophisticated strategy
more commonly utilized by employers, which was designed to
delay and frustrate negotiations and to avoid agreement, allow-
ing its other goals to be attained. While a party may lawfully
include a consumer boycott as part of its negotiating strategy, it
may not do so as a substitute for attempting to reach agreement
at the bargaining table.
b. Respondent unlawfully refused to meet with Busch at reason-
able times in violation of Section 8(b)(3) of the Act
For a party to fulfill its statutory bargaining obligation under
Section 8(b)(3) of the Act, Section 8(d) requires that parties
meet at reasonable times and confer in good faith concerning
wages, hours and other terms and conditions of employment.
Since the requirements of Section 8(b)(3) parallel those of Sec-
tion 8(a)(5), the obligations imposed on employers in cases
arising under Section 8(a)(5) are equally applicable to labor
organizations in cases arising under Section 8(b)(3), Teamsters
Local #612 (AAA Motor Lines), 215 NLRB 789, 791 (1974).
Parties to collective bargaining are required to diligently pur-
sue their negotiations with frequent and promptly scheduled
meetings. Whether they have lawfully fulfilled that obligation
TEAMSTERS LOCAL 122 1249
will be determined by the facts of each case. Little Rock Down-
towner, 145 NLRB 1286, 1305 (1964), enfd. 341 F.2d 1020
(8th Cir. 1965). In J. H. Rutter-Rex, Inc., 86 NLRB 470, 506
(1949), the Board stated:

The obligation to bargain collectively surely encompasses the
affirmative duty to make expeditious and prompt arrange-
ments, within reason, for meeting or conferring. Agreement is
stifled at its source if opportunity is not accorded for discus-
sion or so delayed as to invite or prolong unrest or suspicion.
It is not unreasonable to expect of a party to collective bar-
gaining that he display a degree of diligence and promptness
in arranging for the elimination of obstacles thereto compara-
ble to that which he would display in his other business affairs
of importance.

The use of delaying tactics in negotiations is indicative of a
party’s overall lack of good faith. Atlanta Hilton & Tower, 271
NLRB 1600, 1603 (1984).
A party’s good-faith obligation to negotiate includes a statu-
tory duty to make its authorized representative available for
negotiations at reasonable times and places. Crane Co., 244
NLRB 103, 111 (1979). A party acts at its peril when it chooses
as a bargaining agent someone who is encumbered by other
conflicts which limit his availability. Nursing Center at Vine-
land, 318 NLRB 901, 905 (1995); Caribe Staple Co., 313
NLRB 877, 893 (1994); O & F Machine Products Co., 239
NLRB 1013, 1019 (1978); Imperial Tile Co., 227 NLRB 1751,
1754 (1977); and Exchange Parts Co., 139 NLRB 710, 714
(1962), enfd. 339 F.2d 829, 832 (5th Cir. 1965). Considerations
of personal convenience, including those of professional con-
flicts, do not take precedence over the statutory obligation un-
der Section 8(d) that bargaining take place with expedition and
regularity. Caribe Staple, supra. If a given negotiator becomes
indisposed or is otherwise unable to discharge his statutory
responsibility to negotiate, it is the duty of the party involved to
designate a negotiator who can fully discharge his obligation.
“M” System, Inc., 129 NLRB 527, 549 (1960). Similarly, the
obligation to meet at reasonable times is not diluted by the
demands of a respondent’s business. Barclay Caterers, 308
NLRB 1025, 1035 (1992). This principle is particularly appro-
priate when, as it is here, a major component of the business of
Respondent is the negotiation of collective-bargaining agree-
ments for those members which it represents.
Under these principles, it is evident that Respondent engaged
in dilatory tactics by its insistence, over Busch’s repeated ob-
jections, that negotiating sessions be infrequent and for mini-
mum duration. Respondent’s tactics were manifest from the
outset in September 1994 when it delayed in responding to
Busch’s offered dates and then accepted only single dates per
unit at the end of the offered period. The refusal to schedule
more than only one meeting at a time is evidence of bad faith.
Barclay Caterers, supra at 1037. Similarly, the refusal to agree
to back-to-back meetings, particularly where the other party’s
negotiator has to fly in from another city, is evidence of bad
faith. Eastern Maine Medical Center, 253 NLRB 224, 246
(1980), enfd. 658 F.2d 1 (1st Cir. 1981).
It is no coincidence that Respondent never initiated any dis-
cussion of future meeting dates. Nor is it coincidence that an
experienced labor lawyer frequently failed to bring his calendar
to meetings and generally delayed in responding to offered
meeting dates, sometimes for weeks. Similarly, Respondent’s
game playing in scheduling meetings was also not coincidental.
This included Respondent’s failure to offer additional dates
upon the postponement of the Burke trial and its offering of
dates it knew were difficult for Busch to accept. Conceivably,
Respondent’s faxing of its June 23, 1996 letter to the wrong fax
number was also not coincidental.
Respondent’s reluctance to meet with Busch was prophesied
in Murphy’s Labor Page article as a component of detailed
bargaining. It is a striking parallel that the number of meetings
in the first 2 years of the Burke and Busch negotiations were
almost identical. Respondent met 40 times in 2 years with
Burke; it met only 30 times in the drivers’ unit and 17 times in
the plant unit in the first 2 years with Busch. Limited meetings
are an integral part of the detailed bargaining strategy designed
to avoid impasse or strike. More frequent meetings increase the
undesirable likelihood of either alternative, which Respondent
was desperate to avoid. The Board has found violations of Sec-
tion 8(a)(5) on meetings of similar infrequency. See, e.g.,
Vision, Inc., 249 NLRB 412 (1980), enfd. 660 F.2d 1 (1st Cir.
1981) (22 meetings over 14 months); Caribe Staple Co., 313
NLRB 877 (1994) (10 meetings in 13 months); Radisson Plaza
Minneapolis, 307 NLRB 94 (1992) (11 meetings in 9 months);
Rhodes St. Clair Buick, 242 NLRB 1320 (1979) (6 meetings in
6 months). Accordingly, an 8(b)(3) violation is found on that
basis alone.
When the parties did meet to negotiate, Busch spent a sub-
stantial amount of negotiating time attempting to get Respon-
dent to comply with its statutory duty to meet more often and to
provide the information requested in its two information re-
quests, which directly related to the negotiation. Requiring
Busch to spend negotiating time on such issues makes even
more evident Respondent’s violation in refusing to meet with
Busch. Barclay Caterers, supra at 1037. That the parties did
manage to discuss substantive issues on occasion during their
negotiations shows, not that the meetings were reasonable in
frequency and duration, but, rather, that an agreement might
well have been reached had Respondent been agreeable to
longer and more frequent meetings and demonstrated an intent
to reach agreement. Rhodes St. Clair Buick, supra at 1323.
The Busch negotiations occurred with the consistency of a
metronome, but at a pace designed to forestall agreement.
While Respondent never outright refused to meet and negotiate,
it made certain that negotiating sessions were infrequent and
brief. Thus, in the first 2 years in the drivers’ unit, there was at
least a week between almost every session and, on 13 occa-
sions, over a month between sessions, with a maximum of 2
months. In the same period in the plant unit, there was at least a
week between sessions, with three delays of 3–5 months be-
tween sessions. Negotiating sessions in the first 2 years in the
drivers’ unit averaged only 3-1/2 hours per session; in the plant
unit, they averaged only 3.1 hours. With regularity, Respondent
terminated meetings at or before 4 p.m., regardless of the status
of the discussion at the time. Placing restrictions on the length
of meetings impedes negotiations and violates Section 8(b)(3)
particularly where, as here, the other party’s representative had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
to fly in from another city in order to attend negotiating ses-
sions. John Ascuaga’s Nugget, 298 NLRB 524, 528 (1990).
Though provided a room in advance of meetings by Busch,
Respondent was late for every meeting but the first driver’s
session, generally by at least 30 minutes. Respondent also can-
celed seven negotiating sessions, never offering to reschedule
or make them up. Respondent’s behavior concerning the length
and frequency of negotiations is characteristic of a party which
is going through the motions of bargaining, but without any
actual intent to reach agreement. Busch’s persistent objections
to this conduct did not deviate Respondent from its path. A
party is not required under the Act to beg for meeting dates.
See Barclay Caterers, supra at 1035 (1992).
While Respondent could lawfully insist on negotiating each
unit’s contract separately, its insistence on alternating meetings
between the two units served only to delay agreement in both.
This insistence was obviously part of the strategy. Even mem-
bers of Respondent’s own plant negotiating committee con-
ceded that the serious issues were in the drivers’ unit and that
the plant contract would be settled as soon as the drivers’ con-
tract settled. Knowing this, Respondent could further delay
either agreement by insisting on alternating meetings.
Respondent’s strategy had a particularly negative effect on
the plant unit. There can be no lawful explanation for the infre-
quency of meetings in this unit, particularly where there was a
lack of compelling issues. Rather, Respondent held this unit
hostage to the drivers’ unit negotiations. The obvious explana-
tion is that, politically, Respondent could not afford the possi-
bility of contract in the plant unit while the drivers’ negotia-
tions continued with the possibility of a strike or impasse.
Busch’s repeated insistence on more frequent and lengthier
meetings, and the variety of means by which it unsuccessfully
sought to obtain them, make clear that Respondent controlled
the scheduling of negotiations. During the first year of negotia-
tions, Chief Negotiator Schmitz had Busch almost totally avail-
able to negotiate, offering extensive and consecutive dates for
negotiations including nights and weekends. Chief Negotiator
Telegen consistently offered blocks of a week or more for ne-
gotiations, usually offering dates months in advance to mini-
mize schedule disruptions. Generally, Respondent simply re-
fused, without explanation, to engage in more frequent or
lengthier negotiations. It simply cherry picked isolated, non-
consecutive dates for negotiations from the vast array of dates
offered by Busch. Claims such as the press of Domesick’s
business as a sole practitioner, his frequent claims of failing
health or the demands on Murphy’s time as a union official, are
simply not legally sufficient to forestall negotiations. Nursing
Center at Vineland,, supra, and cases cited therein. “Collective
bargaining negotiations are entitled to the importance and
attention of any other business affairs.” Eastern Maine Medical
Center, supra at 247.
Moreover, the legitimacy of any claim of unavailability by
Murphy is belied by the facts. First, Murphy’s Labor Page
strategy dictated his deliberate limited availability. Second, as a
union official, it is Murphy’s business to be available to negoti-
ate contracts. Third, and most importantly, Murphy’s limited
availability did not preclude him from attending over 200 boy-
cott events conducted by Respondent against Busch during the
period of negotiations. While many of these events were sched-
uled for afternoons, nights, and weekends, Busch had fre-
quently offered to negotiate at those times as well. Thus, it is
obvious that Murphy chose to be unavailable to negotiate, just
as he chose to be available for boycott activity. That choice
demonstrates where his priorities lay and is entirely consistent
with his Labor Page strategy. Similarly, Respondent’s refusal,
without explanation, to respond positively to Busch’s offer to
adjust the negotiation schedule to accommodate Domesick’s
illness in the late summer of 1995 warrants a finding of a viola-
tion of Section 8(b)(3). John Ascuaga’s Nugget, supra at 528.
By refusing to agree to the more frequent and lengthier negotia-
tions requested by Busch, Respondent violated Section 8(b)(3).
Crispus Attucks Children’s Center, 299 NLRB 815 fn. 3
(1990); Radisson Plaza Minneapolis, 307 NLRB 94, 96 (1992).
The facts on this issue are a striking parallel to those in Ca-
ble Vision, Inc., 249 NLRB 412 (1980), enfd. 660 F.2d 1 (1st
Cir. 1981). In Cable Vision, the parties met only 22 times over
14 months, averaging only 4.5 hours per session. The Union
repeatedly requested for lengthier and more frequent meetings,
including offering to meet 7 days a week, 24 hours per day. The
Respondent ignored these requests. Only four of these meetings
started on time. As the administrative law judge noted in find-
ing a violation, this pattern “can hardly be characterized as
diligent bargaining.” Cable Vision, supra at 420. A similar re-
luctance to engage in diligent negotiations by Respondent ex-
isted here.
Respondent’s own words served to explain its pattern of de-
lay. In addition to seeking time to enable its boycott to work,
Respondent also did not want to negotiate because it viewed
Busch’s proposals as unpalatable. Attorney Domesick repeat-
edly tied additional meetings to the withdrawal or modification
of those proposals. Domesick further tied agreement to more
frequent meetings to his own assessment that progress was
being made in negotiations, which also equated to Busch’s
withdrawal of proposals. On November 10, 1994, just before
contract expiration, Domesick refused to schedule further meet-
ings, including on nights and weekends, because he did not
view progress being made and Busch had not removed propos-
als from the table. At the March 21, 1995 meeting, Domesick
conditioned further meetings both on Busch’s removal of its
proposals as well as Busch’s agreement to continues dues
checkoff. Such statements are evidence of Respondent’s unlaw-
ful desire to delay negotiations. Eastern Maine Medical Center,
supra at 246.
Respondent at no time in these proceedings produced any
evidence or argument concerning its clear resistance to meeting
with Busch. Respondent presented no evidence concerning its
motivation in refusing to engage in more frequent or lengthier
bargaining sessions with Busch. While John Murphy did testify,
he offered no testimony on this allegation. Attorney Domesick
represented Respondent at trial, but also did not testify about
this issue. Any statements made as counsel by Domesick do not
constitute evidence in this matter. Moreover, while Domesick
extensively cross-examined Pat Knipper for several days, he
asked Knipper not a single question on this subject. Thus, the
facts presented by the General Counsel on this allegation re-
main wholly unrebutted. An adverse inference will be drawn
TEAMSTERS LOCAL 122 1251
from Respondent’s failure to rebut the facts presented by Gen-
eral Counsel. Grimmway Farms, 314 NLRB 73 fn. 2 (1994).
c. Respondent violated Section 8(b)(3) of the Act by
engaging in surface bargaining through the use
of detailed bargaining tactics
To determine whether a party has engaged in surface or bad-
faith bargaining, the Board examines the totality of that party’s
conduct, both away from and at the bargaining table, for evi-
dence of its real desire to reach agreement. Bethea Baptist
Home, 310 NLRB 156 (1993); Overnite Transportation Co.,
296 NLRB 669, 671 (1989), enfd. 938 F.2d 815 (7th Cir.
1991). Threats and other statements made away from the bar-
gaining table may establish the bad faith of a party’s negotia-
tions. Overnite Transportation Co., supra.
The principles under which surface bargaining will be de-
termined have been long established, and involve the subjective
attitude of the Respondent. As the First Circuit stated in NLRB
v. Reed & Prince Mfg. Co, 205 F.2d 131, 139–140 (1st Cir.
1953):

The ultimate issue whether the [Respondent] conducted its
bargaining negotiations in good faith involves a finding of
motive or state of mind which can only be inferred from cir-
cumstantial evidence. It is similar to the inquiry whether an
employer discharged an employee for union activity . . . .

Parties must make “a serious attempt to resolve differences
and reach a common ground.” NLRB v. Insurance Agents, 361
U.S. 477, 487 (1960). They must not enter negotiations with a
“predetermined resolve not to budge from an initial position.”
NLRB v. Truitt Mfg. Co., 351 U.S. 149, 154–155 (1956)
(Frankfurter, J. concurring). “Both the employer and the union
have a duty to negotiate with a ‘sincere purpose to find the
basis of an agreement.’” Atlanta Hilton & Tower, 271 NLRB
1600, 1603 (1984) (citation omitted).
The principles which control the refusal-to-bargain allega-
tions in this case, as applicable to a union as to an employer,
were succinctly summarized in NLRB v. Herman Sausage Co.,
275 F.2d 229, 231–232 (5th Cir. 1960), as follows:

The obligation of the employer to bargain in good faith
does not require the yielding of positions fairly main-
tained. It does not permit the Board, under the guise of
finding bad faith, to require the employer to contract in a
way the Board might deem proper. Nor may the Board
“directly or indirectly compel concessions or otherwise sit
in judgment upon the substantive terms of the collective-
bargaining agreements” for the Act does not “regulate the
substantive terms governing wages, hours and working
conditions which are incorporated in an agreement.” [Cita-
tions omitted.]
On the other hand, while an employer is assured these
valuable rights, he may not use them as a cloak. In ap-
proaching it from this vantage, one must recognize as well
that bad faith is prohibited though done with sophistica-
tion and finesse. Consequently, to sit at a bargaining table,
or to sit almost forever, or to make concessions here and
there, could be the very means by which to conceal a pur-
poseful strategy to make bargaining futile or fail. Hence,
we have said in more colorful language it takes more than
mere “surface bargaining,” or “shadow boxing to a draw,”
or “giving the Union the runaround while purporting to be
meeting with the Union for purposes of collective bargain-
ing.”

Finally, good faith “requires more than a willingness to enter
upon a sterile discussion of union-management differences,”
yet does not demand that a party “engage in fruitless marathon
discussions at the expense of frank statement and support of his
position.” NLRB v. American National Insurance Co., 343 U.S.
395, 402, 404 (1952).
While Section 10(b) precludes the finding of a violation of
unlawful conduct occurring more than 6 months from the filing
of a charge, “earlier events may be utilized to shed light on the
true character of matters occurring within the limitations pe-
riod.” Machinists Local 1424 v. NLRB, 362 U.S. 411, 416
(1960).
Applying these principles herein, it is evident that Respon-
dent never had any intention of reaching agreement with Busch
in the 1994 negotiations. Rather, Respondent strictly followed
the “detailed bargaining” strategy described in The Labor Page,
attempting to duplicate its perceived success in the prior nego-
tiations with Burke Distributing.
To determine Respondent’s surface bargaining, its conduct
must be viewed in totality. Two key components of the overall
strategy have been previously described. Respondent kept the
frequency and duration of negotiating sessions to a minimum.
In so doing, it created the appearance of negotiating while
eliminating any possible momentum needed to reach agree-
ment. Respondent further refused to provide Busch with re-
quested information on two critical areas in the negotiations-the
hiring hall and the health and welfare fund. This refusal, in
addition to demonstrating Respondent’s overall bad faith in the
negotiations, precluded the possibility of agreement on these
two issues, without which no contract could be reached. Radis-
son Plaza Minneapolis, 307 NLRB 94 (1992); Cable Vision,
Inc., 249 NLRB 412 (1980)
While these two unfair labor practices alone may have been
sufficient to preclude an agreement, Respondent used its “de-
tailed bargaining” strategy at the negotiating table as well. It
engaged in surface bargaining through a variety of tactics to
ensure that no agreement would be reached.
Because Respondent chose to put on no case in response to
the General Counsel, the underlying motivation for its detailed
bargaining strategy remains a mystery. Perhaps it feared that,
were it to negotiate with Busch on a level playing field, it
would have to agree to some of Busch’s proposals which it may
have found undesirable. Compromises on those proposals,
however, were quite evident. Busch, further, showed a willing-
ness to compromise, as in its willingness to entertain Respon-
dent’s spares roster concept as a compromise for eliminating
the exclusive reliance on the hiring hall.
It is even more likely that Respondent expected that its de-
tailed bargaining strategy, coupled with its extensive consumer
boycott, would bring Busch to its knees as it did Burke Distrib-
uting several years before. Respondent admittedly hoped it
would gain a sale of Busch’s business to a more amenable em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
ployer. Beginning with the first negotiating session on October
13, 1994, Domesick repeatedly stated Respondent’s preference
for a new owner to whom the distributorship would be the
“crown jewel” and to which Respondent would be more willing
to make concessions. This sale could also bring a potential
financial windfall to Respondent as it did with Burke. As Knip-
per stated, referring to Burke’s payment of “termination pro-
ceeds” to Respondent, he could envision at least 590,000 rea-
sons why Respondent would want to delay negotiations and
bargain in bad faith.
Regardless of its motivation, Respondent’s bad faith is evi-
dent from its conduct both at and away from the bargaining
table. Murphy’s article in The Labor Page serves as a blueprint
for its conduct here and is compelling evidence of its bad faith.
Overnite Transportation Co., supra at 671: The parallels to the
Burke negotiations as described in the article are striking. The
number of meetings in the time period are virtually identical.
Respondent continued to make “good use” of its lawyer “by
dissecting and arguing over every sentence that [Busch] put of
the table.” Respondent further continued its practice of making
detailed information requests to frustrate and delay the negotia-
tions. As with Burke, this strategy was designed to buy time to
allow Respondent’s consumer boycott to pressure Busch and to
avoid impasse or strike. As Murphy stated, the strategy caused
Burke to sell its franchise to an employer who “could do busi-
ness with the union.” Clearly, Respondent expected to obtain
the same result with Busch. While a party is lawfully entitled to
use boycott activity as part of a bargaining strategy, it may not
do so as a substitute for reaching a collective-bargaining
agreement. Of course, a union may not, as Respondent did
here, use unlawful secondary pressure as part of its consumer
boycott. These 8(b)(4) violations further evidence Respon-
dent’s bad faith.
That a sale was Respondent’s goal was further evidence by
Murphy’s unsolicited exhortation to Frank Curtis in the Union
Street Restaurant in February 1995 to sell the business. This
unrebutted statement was made in the context of Murphy’s
anger and frustration with difficulties at one of his boycott
events. Since the consumer boycott was a vital component of
Respondent’s bargaining strategy, this comment conclusively
demonstrates Respondent’s goal. Id.
This goal was further clarified by Murphy’s statement to
Curtis in September 1995 that Busch would never get a con-
tract from him. This unsolicited statement by Murphy, made
during a discussion of the negotiations, went unrebutted in his
testimony. Murphy’s threat eliminated any lingering doubt that
Respondent would bargain in good faith with Busch. Unmiti-
gated by any assurances that Respondent would bargain in
good faith, Murphy’s threat establishes Respondent’s bad faith
in negotiations. Overnite Transportation Co., supra at 671
Respondent further demonstrated an uncompromising atti-
tude throughout the negotiations. This attitude was typified by
Attorney Domesick’s threat to blow up the plant if Busch at-
tempted to sell the facility without a collective-bargaining
agreement in place. This shocking threat, made by an experi-
enced labor attorney and unrebutted at trial, emphasized Re-
spondent’s seriousness of purpose and its uncompromising
attitude towards negotiations. While, fortunately, Respondent
did not act on Domesick’s threat of physical violence, as will be
shown it did successfully “blow up” the negotiations at the
bargaining table.
On those occasions when it did meet with Busch, Respon-
dent approached negotiations with an object of spending time,
but accomplishing nothing. No clearer evidence of that exists
than the limited number of agreements reached in over 2 years
of meetings. While it may be argued that the fact there were
any agreements mitigates against a conclusion of surface bar-
gaining, none of the agreements reached were on major issues.
Moreover, in over 2 years of negotiations, it is not inconceiv-
able that, on occasion, some real negotiations would break out
from the detailed bargaining monotony. Admittedly, this did
happen and minor agreements occasionally resulted. This fact
does not diminish the conclusion that Respondent sought to
avoid a collective-bargaining agreement and violated Section
8(b)(3) to attain that goal. See Radisson Plaza Minneapolis,
307 NLRB 94, 115 fn. 56 (1992).
The tactics Respondent utilized to achieve its ends varied as
negotiations wore on. Initially, Respondent stalled negotiations
by making “good use” of Attorney Domesick to filibuster nego-
tiations with his constant philosophizing and storytelling. The
relevance of these narratives was tangential at best. Respon-
dent, further, made no attempt to prove any relevance to them
in its defense. In combination, Domesick’s philosophizing and
storytelling consumed a great deal of time during the first 9
months of negotiations. In addition, they distracted the negotia-
tors from the discussions at hand, disrupting any real or poten-
tial momentum. The topics of these narratives frequently con-
cerned power and its abuses and Domesick’s perceptions of
management, Busch’s in particular. Domesick’s storytelling
was replete with sexual references and innuendo which, in and
of themselves, were offensive, distracting and irrelevent. He
further offered numerous snippets allegedly of his personal life
experiences, which also generally had a sexual reference. That
this was a deliberate tactic is evidenced by the unrebutted tes-
timony of Knipper that Domesick did not engage in similar
behavior in the 1991 negotiations. Engaging in “extensive per-
ambulations” on unrelated topics during negotiations consti-
tutes a pattern of dilatory conduct which is in violation of Sec-
tion 8(b)(3). Radisson Plaza Minneapolis, supra at 96. The real
reason for Domesick’s storytelling, as stated by the administra-
tive law judge in that case, was “a sham, designed to dazzle,
then to distract and delay the collective bargaining process.” Id.
at 101.
Respondent further stalled negotiations by the topics it chose
to discuss. Respondent consistently delayed discussion of major
issues, insisting on focusing on less important matters. Spend-
ing the only three plant unit meetings in over 3 months, totaling
14 hours, in dissecting every detail of the Busch’s FMLA pro-
posal was a sophisticated filibuster under the guise of negotia-
tions. This behavior was the essence of “detailed bargaining,”
appearing real, but lacking substance. Had those meetings been
real negotiations, Respondent would have made a counterpro-
posal on FMLA before the third meeting, rather than insisting
on analyzing only Busch’s proposal. Had these been real nego-
tiations, Respondent would not have excluded the length of
FMLA leave from the counterproposal it ultimately made. In
TEAMSTERS LOCAL 122 1253
fact, Respondent never proposed a length of FMLA leave,
without which no agreement could be reached, which Respon-
dent well knew.
Respondent’s extensive discussion of the bereavement leave
issue, to the evident amusement of its own committee, served a
similar purpose. While Busch was not philosophically opposed
to the concept of leave for domestic partners, there was no
evidence that the matter was desired or supported by the unit,
particularly as a major issue. Yet, Respondent chose to extend
the bereavement leave discussion by creating a political issue,
insisting gay employees “out” themselves in order to receive
the benefit. This discussion served primarily to consume time
and distract from other more important issues. The agreement
ultimately reached was quite similar to Busch’s initial counter-
proposal, containing no “outing” provision.
Throughout the negotiations, Respondent showed a penchant
for refusing to accept or reject proposals, preferring to consider
them and have additional discussion. As also shown, Respon-
dent refused to make counterproposals on many occasions. In
one such case, Domesick claimed to have 40 counterproposals,
but refused to divulge any of them. On occasion, Respondent
refused to explain its proposals or its understanding of existing
contract language. These are not the actions of a party unin-
formed, but rather serve as a deliberate tactic “to string out
bargaining to the limit in an attempt to delay or avoid agree-
ment.” Cable Vision, Inc., 249 NLRB 412, 421 (1980).
Similar time wasting occurred in the prolonged discussion, at
Respondent’s insistence, of the termination of dues checkoff
and of the interim agreement. Respondent’s anger over the
termination of checkoff, a direct result of its harassment lawsuit
against Busch, should have been more properly directed at
itself for creating the problem. Yet, Respondent typically
seized the opportunity to devote almost two meetings to futilely
haranguing Busch to reinstate checkoff.
Similarly, the interim agreement discussion was a classic red
herring. Seeking an opportunity to make a bridge to an agree-
ment, Busch agreed to discuss separate interim agreements in
each unit whereby Respondent would get items it wanted, par-
ticularly dues checkoff, in return for agreement on issues Busch
sought. In the drivers’ unit, Busch explicitly sought agreement
on its major issues. After months of discussion, Domesick
claimed an interim agreement was reached in the driver’s unit
consisting wholly of items desired by Respondent and proposed
in plant unit discussions. Those negotiations had been con-
ducted separately from the drivers’ unit at Respondent’s re-
quest. A true misunderstanding by Respondent on this point is
inconceivable. Having wasted considerable time in futile pur-
suit of an interim agreement, Respondent, over several meet-
ings, continued to waste more in arguing about whether one
had been reached. Yet, when Busch thereafter attempted to
reach an interim agreement in the plant unit, where the issues
involved were all enhancements to the unit, Respondent refused
to agree. Evidently, the idea of one of its units having an in-
terim agreement while the other did not was too unpalatable.
While no interim agreements were reached, considerable time
was spent futilely chasing the concept. Respondent’s interests
were thus served.
The extensive discussion of Busch’s attendance proposal, at
the conclusion of which Respondent claimed not to have con-
sidered whether bookoffs would be a valid excuse for absence
under the policy, similarly demonstrated a sophisticated ability
to waste time under the guise of negotiating. Even the most
naïve could not believe that Respondent could believe bookoffs
could still exist after Busch had clearly made their elimination a
cornerstone of its proposal. Of course, only when Respondent
revealed its duplicity could Busch realize that those negotia-
tions had been illusory.
Admittedly, Respondent did occasionally engage in substan-
tive negotiations, only to bring them to a screeching halt. After
a period of substantive discussion, during which Busch may
have been lulled into the false belief that real negotiations were
occurring, Respondent would “blow up” the negotiations by
taking a wholly untenable position. The interim agreement
negotiations typified Respondent’s behavior in those situations.
Respondent similarly “blew up” the negotiations concerning
hiring just as an agreeable compromise neared.
The right to directly hire spares was one of Busch’s key posi-
tions. Evidently, it was one of the most unpalatable to Respon-
dent, requiring it to relinquish its exclusive hiring hall. Respon-
dent steadfastly refused to negotiate on the issue for over a
year. Rather, negotiating time was spent on less compelling
issues. Once Busch got Respondent to discuss the issue begin-
ning in November 1995, Respondent proposed a spares roster
compromise which Busch found attractive. This proposal was
the essence of compromise and demonstrated Busch’s willing-
ness to consider and adopt alternatives to its own proposals.
Under the spares roster proposal, Busch and Respondent would
each nominate an equal number of candidates to the spares
roster from which Busch would be able to hire spares directly.
This proposal allowed each party to retain some, but not all, of
what it desired.
Having spent two meetings progressing towards compromise
on one of the major issues of the negotiations, Respondent pre-
sented Busch with a regressive proposal which totally ignored
the spares roster concept. Instead, it simply reworded the lan-
guage of the exclusive hiring hall provision of the contract.
Resubmitting proposals with insubstantial or no change is evi-
dence of bad faith bargaining. Cable Vision, Inc., 249 NLRB
412, 420 (1980), enfd. 660 F.2d 1 (1st Cir. 1981). Respondent
refused to discuss the issue further, including its own counter-
proposal, falsely claiming too much time had been spent on the
issue. Respondent ignored the far greater time it had spent on
the less serious issue of FMLA in the plant unit negotiations.
Respondent engaged in similar conduct concerning Busch’s
attendance proposal. Another key item on Busch’s agenda, the
attendance proposal, sought the elimination of bookoffs. This
fact was made undeniably clear to Respondent over numerous
meetings, proposals and counterproposals over a year and a
half. Ultimately, Respondent “blew up” the negotiations on this
issue by claiming not to have contemplated the elimination of
bookoffs in its proposal. With continued bookoffs, the atten-
dance proposal was rendered meaningless, as were the exten-
sive negotiations concerning it. Thus, once again, Respondent
had created the illusion over a considerable period of time of
negotiating an issue only to reveal its lack of substance and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
good faith. Respondent’s true purpose was to delay and avoid
agreement.
In each of these areas, Respondent consumed considerable
time in apparent negotiations, only to ultimately reject any
compromise and return to the status quo. It demonstrated a
wholesale unwillingness to budge from any of its positions on
major issues. Particularly on the hiring and attendance issues,
Respondent reverted to its initial position after extensive dis-
cussions of alternatives. Thus, what may have superficially
appeared to be negotiations were revealed to be detailed bar-
gaining at its essence—time spent in discussion, but with no
intent to reach agreement.
Respondent further prevented agreement by refusing to pre-
sent its economic proposals. Failing to present any economic
demands in its initial proposals was unusual. Failing to offer
any economics during the succeeding 14 months of negotia-
tions was unconscionable. Refusing Busch’s persistent requests
for Respondent’s economic proposals in the drivers’ unit for an
additional 7 months was unlawful.80 Southside Electric Coop-
erative, Inc., 243 NLRB 390 (1979); Eastern Maine Medical
Center, 253 NLRB 224, 244–245 (1980), enfd. 658 F.2d 1 (1st
Cir. 1981); South Shore Hospital, 245 NLRB 848 (1979), enfd.
630 F.2d 40 (1st Cir. 1980). Even when first presented in April
1996, Respondent’s economic proposal did not contain a wage
demand. Respondent never advanced a reason or justification,
either during negotiations or at trial, for its refusal to present its
economic proposals. While the parties may have initially
agreed to discuss noneconomic items first, there was certainly
no agreement they be done to conclusion before economic dis-
cussion commenced. Yet, even after Busch made perfectly
clear that any such purported agreement was no longer accept-
able by repeatedly insisting on discussing economics, Respon-
dent unlawfully persisted in its refusal to discuss economics.
Preterm, Inc., 240 NLRB 654 (1979); Eastern Maine Medical
Center, supra at 245.
The effect on negotiations of this refusal was obvious. No
collective-bargaining agreement can be consummated without
discussion and agreement on economic terms. Resolution of
other issues may hinge on discussion of economics.81
“[B]argaining does not take place in isolation and a proposal on
one point serves as leverage for positions in other areas.” Korn
Industries v. NLRB, 389 F.2d 117, 121 (4th Cir. 1967). Busch
justifiably could not consider Respondent’s proposals, includ-
ing its early retirement proposal without an eye towards its
entire economic package. “Such fragmentation of negotiations
limited the flexibility of the bargaining process, as it precluded
trading economic proposals for non-economic proposals which
is a customary avenue of compromise.” Preterm, Inc., supra at
672. Thus, Respondent’s refusal to present and discuss its eco-
nomic demands was yet another device by which it delayed
negotiations and any possible agreement.

80 Respondent’s economic proposals in the plant unit were not pre-
sented for an additional 3 months.
81 Contrary to Respondent’s contention that it does not engage in
horsetrading, such dealings are a traditional component of collective
bargaining and, indeed, were engaged in by Respondent in the 1991
negotiations.
The eight information requests issued by Respondent to
Busch were an additional part of the detailed bargaining strat-
egy. The use of information requests is an admitted part of the
detailed bargaining strategy in The Labor Page. Like other
components of detailed bargaining, certain of the information
requests had a superficial validity. Yet their true purpose was to
harass Busch, diverting time and attention away from negotia-
tions at the table. Busch had to spend considerable time re-
searching and responding to each request, even when finding no
responsive information. While Busch could have resisted these
requests where burdensome or irrelevant, it did not, complying
fully with each. Respondent even persisted in renewing certain
requests, requiring additional time and effort by Busch to re-
spond. No such requests had been made by Respondent in
1991, when detailed bargaining was not being used. Critically,
virtually no use was made in bargaining of any of the informa-
tion provided to Respondent. This, in itself, establishes that the
purpose of the requests was to harass Busch and delay negotia-
tions, in conformance with the overall strategy. Moreover, Do-
mesick’s threat to make an information request in May 1995 if
Busch did not accede to its position demonstrates the unlawful
purpose of these requests.
Respondent engaged in surface bargaining throughout the
1994 negotiations. It entered the negotiations determined to
implement its detailed bargaining strategy and, at no point, did
it have an intent to reach a collective-bargaining agreement. All
of the tactics Respondent employed point to that conclusion. It
insisted, without reason, on separate negotiations in each unit
for the first time. It inexplicably refused the offer of a contract
extension. It resisted all attempts to bring in a federal mediator
to assist in bridging the differences between the parties. While
these actions alone are not unlawful, they are not those of a
party sincerely desirous of reaching agreement.
But it is by its conduct at the table that Respondent’s unlaw-
ful objective is truly revealed. For over 2 years, it resisted
Busch’s entreaties for lengthier and more frequent negotiations.
It refused to provide relevant and necessary information relat-
ing to negotiations, thereby precluding meaningful bargaining
on those issues. Further, Respondent engaged in a pattern of
dilatory conduct in negotiations, including Domesick’s storytel-
ling and philosophizing, which deliberately impeded bargain-
ing. These factors warrant a finding of surface bargaining.
Radisson Plaza Minneapolis, supra. Similarly, Respondent’s
conduct in refusing to make or explain its proposals, refusing to
make concessions on proposals, making regressive proposals
and resubmitting essentially the same proposal warrants a find-
ing that it engaged in surface bargaining. Cable Vision, Inc.,
supra.
As shown by the lack of substantive agreements in over 2
years of negotiations despite Busch’s demonstrated willingness
to compromise, Respondent participated in the negotiations
with no object but to delay. Respondent’s consumer boycott
had served it well with Burke; it was confident it would suc-
ceed again. The conclusion is inescapable. Busch’s negotiations
with Respondent constituted unlawful “shadow boxing to a
draw.” NLRB v. Herman Sausage, Inc., supra.
TEAMSTERS LOCAL 122 1255
d. Respondent raised no substantive defense to the allegations
that it violated Section 8(b)(3) of the Act
Respondent presented no substantive defense to these allega-
tions. The General Counsel’s case in chief on this portion of the
case took 7 days. Respondent then cross-examined the General
Counsel’s witness, Pat Knipper, for 10 days, demonstrating a
far greater willingness to speak to him at trial than it did at the
negotiating table. This cross-examination consisted largely of
Respondent’s counsel having Knipper confirm the accuracy of
Busch bargaining notes, which were already in evidence, for
each day of negotiations. Busch’s notes were demonstrated to
be highly accurate, almost devoid of error. On the 9th-day of
this exhaustive, time-consuming and, indeed, abusive cross-
examination, I limited further cross-examination of Knipper in
this manner. This ruling was made in order to avoid the need-
less consumption of time and further harassment of Knipper.
See Section 102.35(f), Rules and Regulations of the National
Labor Relations Board; Federal Rules of Evidence, Rules 403;
611(a).
Respondent’s response was to put on no defense other than
its own bargaining notes. These typed notes had been taken by
Attorney Domesick and were attempted to be authenticated by
John Murphy. Murphy offered no substantive testimony con-
cerning Domesick’s notes or the negotiations. Respondent also
did not reveal the existence of, or offer, Murphy’s own notes
which had been subpoenaed and were produced only grudg-
ingly upon my order at the end of trial. Thus, Respondent’s sole
defense to the 8(b)(3) allegations involves a reading of its at-
torney’s notes of negotiations.
These notes are far less detailed and more conclusionary
than those of Busch. They do not, in any substantial way, dis-
pute Busch’s notes or Knipper’s testimony concerning the con-
duct of negotiations. If anything, they tend to confirm essential
points in Busch’s notes. Murphy’s testimony demonstrated his
own notes, which Respondent declined to offer, to be more
detailed and complete than Domesick’s. Moreover, Murphy
was incredible in his testimony concerning his review of Do-
mesick’s notes, contending he had found not a single error,
which was demonstrated to be false. Murphy could not explain
how Domesick’s notes were prepared or the meaning of certain
passages. In short, Domesick’s notes cannot be relied upon in
any credibility disputes. As noted at the beginning of this dis-
cussion of the bargaining issues, I consider the Busch notes and
Knipper’s testimony to be the only credible evidence of what
occured at the negotiations. Nothing offered by Respondent in
this regard was remotely credible.
Respondent offered no denial that it had a detailed bargain-
ing strategy or that it sought to delay and frustrate the negotia-
tions. Respondent offered no testimony that it had intent to
reach agreement with Busch or engaged in negotiations to that
end. Respondent did not deny that its tactics at negotiations
were designed to delay and frustrate the ability of the parties to
agree. Further, Respondent offered no explanation for any of its
conduct. No reading of Respondent’s notes could provide such
denials or explanations. In short, the evidence presented by
General Counsel which establishes that Respondent engaged in
surface bargaining is unrebutted and Respondent’s defense of
the complaint allegation in these regards is totally frivolous.
e. Should Respondent be ordered to pay the Charging Party’s
negotiation and litigation expenses and the General Counsel’s
litigation expenses?
In order to remedy the extensive and egregious violations
found in this matter, the General Counsel seeks an order requir-
ing Respondent to pay to the General Counsel and the Charging
Party the costs and expenses incurred by them in the investiga-
tion, preparation, presentation, and conduct of this proceeding,
including reasonable counsel fees, salaries, witness fees, tran-
script and record costs, printing costs, travel expenses and per
diem, and other reasonable costs and expenses as determined at
the compliance stage of this proceeding. Further, the General
Counsel seeks an order requiring Respondent to pay to the
Charging Party the costs incurred by it in the preparation and
conduct of collective-bargaining negotiations subsequent to
October 13, 1994.
The Board will order the reimbursement of litigation ex-
penses where the defenses raised by the Respondent are “frivo-
lous” rather than “debatable.” Frontier Hotel & Casino, 318
NLRB 857 (1995), enf. denied in part 118 F.3d 795 (D.C. Cir.
1997);82 Heck’s Inc., 215 NLRB 765 (1974); and Tiidee Prod-
ucts, 194 NLRB 1234 (1972). The Board’s purpose in awarding
litigation expenses where a respondent raises patently frivolous
defenses is to discourage such needless litigation and to main-
tain speedy access to the Board’s processes. Frontier Hotel,
supra at 860. Where a respondent’s defenses, even though
meritless, turn on issues of credibility, they will be considered
debatable rather than frivolous and litigation expenses will not
be awarded. Workroom for Designers, Inc., 274 NLRB 840
(1985); Adam Wholesalers, Inc., 322 NLRB 313 (1996).
In Frontier Hotel, the Board held that an award of litigation
expenses was appropriate even though the respondent’s de-
fenses were credibility based since the testimony of Respon-
dent’s attorney and chief negotiator was transparently untruth-
ful and totally lacking in credibility. Id. at 861. The Board has
also found no credibility issues existed and ordered the reim-
bursement of litigation expenses where the respondent admitted
its perjury and unlawful motivation in the creation of an alter
ego to evade its bargaining obligation. H. P.Townsend Mfg.
Co., 317 NLRB 1169 (1995). Similarly, in Care Manor of
Farmington, Inc., 318 NLRB 330 (1995), respondent was or-
dered by the Board to pay the charging party’s and the Board’s
litigation expenses in a case alleging a refusal to bargain over
an initial contract in violation of Section 8(a)(5). The Board
found no credibility issues existed where respondent had pre-
sented no witnesses or raised any factual issues. Rather, re-
spondent had unsuccessfully attempted to raise issues solely
through its cross-examination of the General Counsel’s wit-

82 While the D.C. Circuit, in a split decision, found the Board lacked
authority to award litigation expenses in these circumstances, the First
Circuit, where these violations occurred, has not spoken to the issue.
Moreover, the Board has clearly not yet had time to consider an appeal
or, in its absence, any ramifications D.C. Circuit’s decision might have
on this issue. Thus, with due deference to the D.C. Circuit, until those
matters are determined, it is appropriate that litigation expenses be
awarded here, consistent with the Board’s decision in Frontier Hotel
and its progeny. The D.C. Circuit did enforce the Board’s authority to
award negotiation expenses as a remedy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
nesses. See also Park Manor Nursing Home, Inc., 318 NLRB
1085 (1995) (litigation expenses awarded in surface bargaining
case under Sec. 8(a)(5) of the Act).
As in those cases, the violations are not based on credibility
resolutions. While the facts are extensive, covering over 2 years
of collective bargaining and over 50 negotiating sessions, there
is virtually no dispute concerning them. Respondent presented
no witnesses or substantive testimony, relying solely on its own
bargaining notes and its cross-examination of the General
Counsel’s witness. The failure to present any witnesses or raise
any credibility issues demonstrates the baseless and frivolous
nature of Respondent’s defenses. The mere cross-examination
of the General Counsel’s witness is insufficient to establish any
legal basis for its defenses, whatever they may be. Care Manor
of Farmington, supra. Indeed, large portions of the General
Counsel’s case remain wholly unrebutted. There are numerous
allegations not even arguably covered by Respondent’s notes
and upon which no contrary testimony was offered. These in-
clude John Murphy’s threat not to sign a contract, Respon-
dent’s refusals to provide information, and Respondent’s re-
fusal to engage in lengthier and more frequent bargaining ses-
sions. Moreover, Respondent produced no evidence of its own
to contradict the General Counsel’s evidence of its disruptive
and dilatory tactics at the bargaining table. Respondent’s notes,
sketchy and conclusionary as they are, serve not to rebut those
of Busch, particularly without any testimony concerning them.
By failing to proffer any evidence, Respondent essentially ad-
mitted that it violated the Act, yet still forced the General
Counsel and the Charging Party to litigate the matter nonethe-
less.
In the presentation of such a frivolous defense, Respondent
made the Board into an instrument of its own unlawful conduct.
The lengthy attenuated trial of these matters occurred largely
due to Respondent’s insistence upon, and tactics during, the
trial of this matter. By its attendance at trial, Respondent delib-
erately limited its availability to negotiate with Busch. In so
doing, the Board became its unwitting agent in prolonging the
negotiations. Had I not terminated the abusive, time consuming
cross-examination of Knipper, it might still be continuing, fur-
ther perpetuating Respondent’s refusal to bargain and delaying
any possible remedy. In these circumstances, any effect of the
Board’s remedy may have will be wholly dissipated by the
passage of time through the use of the Board’s proceedings.
Busch, and more particularly Respondent’s members, are ill
served by this conduct.
Respondent raised issues at trial where none existed. In its
answer, Respondent denied that Secretary-Treasurer John Mur-
phy was an agent of Respondent and that Respondent’s presi-
dent, James Hoar, was both an officer and agent of Respondent.
Similarly, Attorney Domesick, in his opening statement, con-
tended falsely and without justification that no exclusive hiring
hall arrangement existed between Respondent and Busch.
While these matters were easily proven, it was an unnecessary
exercise.
The frivolous nature of Respondent’s conduct of the litiga-
tion was only further aggravated by Respondent’s conduct at
the hearing. Respondent conducted the trial as a microcosm of
the negotiations, containing virtually all of the elements of
detailed bargaining. Respondent treated it as a game. During
the hearing, Respondent demonstrated a total disdain for the
Board and its processes, both by the conduct of its attorney and
by its chief officer, John Murphy.
Domesick engaged in a lengthy, deliberate exhaustive cross-
examination of Pat Knipper that was demonstrative of detailed
bargaining. This 10-day cross-examination served primarily to
consume time and delay the process, similar to his conduct of
the negotiations. The cross-examination served only to confirm
the accuracy of Busch’s bargaining notes. It had no other ap-
parent purpose, other than to abuse Knipper and the process.
This latter objective was conclusively demonstrated when, after
the cross-examination was terminated, Respondent chose to put
on no witnesses in its own defense. Had Respondent been
mounting any sort of defense through its cross-examination of
Knipper, it would have continued it to completion through an-
other witness. By not raising a defense, Respondent continued
to demonstrate its disdain for the Board and its processes.
That disdain was most palpably shown by the behavior of
John Murphy. Though lawfully subpoenaed to testify, Murphy
failed to appear at the start of the hearing on October 1, 1996, at
the beginning of the surface bargaining portion of the case.
Attorney Domesick represented Murphy who did not intend to
appear.83 Domesick incredibly claimed to have no knowledge
of Murphy’s whereabouts or control over his attendance. After
considerable discussion and effort, little of it by Domesick,
Murphy was located by me standing outside a coffee shop near
the Federal Building.He agreed to appear at a specified time
that afternoon. Typically, Murphy did not appear at the ap-
pointed time and Domesick claimed no knowledge of his loca-
tion. I then threatened to bar his testimony. Miraculously, Do-
mesick immediately located Murphy “in the men’s room.” This
charade typified the total disdain demonstrated by Respondent
for the Board and its processes.
When he did testify, Murphy’s hostility to the proceedings
and the Board was palpable. Though present in the hearing
room, Murphy denied being subpoenaed to testify when asked
by his attorney. Even after being shown return receipts by the
General Counsel which he admitted were signed by an em-
ployee of Respondent, Murphy claimed not to have seen the
subpoena. Once present to testify, and having admitted to dis-
cussing the subpoena with his attorney, there was no purpose to
his dissembling on this point other than to demonstrate his con-
tempt for the proceeding.
Similarly, when required to appear to testify at the conclu-
sion of the trial on March 3, 1997, after the existence of the
second set of Respondent’s notes was discovered, Murphy once
again arrived late. On these occasions, the time of all parties
was wasted because of Respondent’s disdain for the process.
This disdain carried through to subpoenaed records. When
subpoenaed in September 1996 to produce all of its bargaining
notes made by “officers of Respondent and/or its attorneys and
negotiating committee members” concerning the Busch nego-
tiations, Respondent knowingly produced only Attorney Dome-

83 Murphy also refused to appear at all when subpoenaed by the
General Counsel to testify in the Pour House portion of the case in June
1996. He appeared to testify only as part of Respondent’s defense.
TEAMSTERS LOCAL 122 1257
sick’s notes, falsely representing them to be its only notes.
Upon attempting to introduce those notes at trial in February
1997, John Murphy admitted that, indeed, he, too, had taken a
comprehensive set of notes during negotiations. Respondent
resisted producing those notes, resulting in an extensive discus-
sion at trial and yet another adjournment in the hearing until
they could be produced and testimony received concerning
them.
This conduct is directly attributable to Attorney Domesick.
As both attorney and chief negotiator for Respondent, he was
well aware of the existence of two sets of notes. Moreover, in
questioning Murphy on October 1, 1996, at trial, Domesick
admitted he had received a subpoena for Respondent’s bargain-
ing notes, and he had discussed that subpoena with Murphy.
Murphy, incredibly, denied receiving the subpoena served on
him, though admitting the receipt was signed by an employee
of Respondent. This exchange clearly demonstrates that Re-
spondent knowingly determined that only one set of notes be
produced pursuant to subpoena, apparently selecting the one it
felt was most favorable. This type of game playing typifies
Respondent’s behavior at the bargaining table and demonstrates
its total disdain for the Board’s processes.
The facts in this case are remarkably similar to those in Care
Center of Farmington, Inc., supra, where Respondent also pre-
sented no witnesses to bad-faith bargaining allegations. Rather,
Respondent merely cross-examined General Counsel’s wit-
nesses. While a respondent does have the right to avail itself of
the Board’s processes, as the administrative law judge found, it
may not do so in an abusive manner “free of charge.” Id. at
335. Litigation expenses must be assessed against parties which
abuse the Board’s processes in this manner.
Respondent’s reasons for extending and delaying the
Board’s processes remain unclear; the fact that it did so does
not. Respondent’s insistence on litigating this case, despite all
entreaties of settlement, caused the Board’s resources and proc-
esses to be unnecessarily burdened. It caused the unnecessary
expenditure of time and money by the Board and by the Charg-
ing Party. In these circumstances, it is only just and proper to
award litigation expenses to the Board and the Charging Party
as the only method to remedy this sort of egregious behavior.
Care Manor of Farmington, Inc., supra.
As noted earlier, this case had three parts, the Pour House
portion, the Woody’s portion and the surface bargaining allega-
tions. Clearly, the first two portions are ones in which Respon-
dent presented a debatable defense. As noted above however,
this cannot be said about its “defense” to the surface bargaining
allegations. In Frontier Hotel, the Board addressed the question
of the appropriateness of awarding litigation expenses when
there are some complaint allegations to which a nonfrivolous
defense is offered, yet the bulk of the case involves matters to
which only a frivolous defense was offered. It stated, supra at
861:
We find that the presence of these additional allega-
tions is insufficient to defeat the Charging Parties and
General Counsel’s motions for reimbursement of litigation
expenses. While we do not pass on the particular merits of
any case previously decided by the Board, we disagree
with the blanket notion that the assertion of a debatable
defense concerning any complaint allegation, or even the
dismissal of an allegation, necessarily elevates the respon-
dent’s defense to the level that it may appropriately be
characterized as debatable. Indeed, in any consolidated
proceeding such as this, there will be a variety of alleged
violations, and some may be withdrawn or found lacking
in merit. Limiting the award of litigation costs to only
cases undiluted by other issues, however, would strongly
encourage separate litigation of alleged unfair labor prac-
tices, which clearly would not be an efficient use of the
Board’s resources. Moreover, in the circumstances of this
case, the Respondent’s surface bargaining significantly
overshadows the other allegations and dominated the liti-
gation of the complaint. Therefore, we find that an award
of full litigation costs to the Charging Parties and the Gen-
eral Counsel is appropriate.

In the instant case, the surface bargaining issue overshad-
owed the other elements, especially as to the cost of litigation.
The Pour House and Woody’s portions took less than 1 week
each. The surface bargaining portion took all or part of 8
weeks. Moreover, the award of litigation expenses can be tai-
lored to fit the offense. I will award litigation expenses as re-
quested by the General Counsel for those expenses that can be
demonstrated to relate solely to the surface bargaining portion
of this case. As each portion of the case was tried in a relatively
separate fashion, this should be easily accomplished. The sur-
face bargaining segment of the consolidated cases could have
been tried separately from the other segments as the proof ad-
duced with respect to the surface bargaining was entirely dif-
ferent from that adduced with respect to the Pour House and
Woody’s segments. Respondent should not be allowed to bene-
fit from its reprehensible actions simply because the cases be-
came consolidated. Indeed, the Board attempted to negotiate a
settlement of the surface bargaining portion of the case, sending
a settlement judge to meet with the parties in September 1996.
At this point, simply by agreeing to bargain in good faith and
establishing a realistic bargaining schedule, that matter could
have been put to rest. Instead, Respondent chose to continue to
delay and frustrate the bargaining process and abuse the
Board’s processes, and should bear the burden of the cost of
such abuse.84
I cannot agree with the General Counsel’s request that nego-
tiating expenses should be awarded. Addressing this issue in
Frontier Hotel, supra at 859, the Board held:

As an initial matter, we emphasize that we do not in-
tend to disturb the Board’s long-established practice of re-
lying on bargaining orders to remedy the vast majority of
bad-faith bargaining violations. In most circumstances,
such orders, accompanied by the usual cease and desist or-
der and the posting of a notice, will suffice to induce a re-

84 The litigation costs should include costs and expenses incurred by
Charging Party and General Counsel in the investigation, preparation,
presentation, and conduct of the surface bargaining portion of this pro-
ceeding, including reasonable counsel fees, salaries, witness fees, tran-
script and record costs, printing costs, travel expenses and per diem,
and other reasonable costs and expenses as determined at the compli-
ance stage of this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
spondent to fulfill its statutory obligations. In case of un-
usually aggravated misconduct, however, where it may
fairly be said that a respondent’s substantial unfair labor
practices have infected the core of a bargaining process to
such an extent that their ‘effects cannot be eliminated by
the application of traditional remedies,’”85 an order requir-
ing the respondent to reimburse the charging party for ne-
gotiation expenses is warranted both to make the charging
party whole for the resources that were wasted because of
the unlawful conduct, and to restore the economic strength
that is necessary to ensure a return to the status quo ante at
the bargaining table.

Here, though it needlessly spent a great deal of its resources
in the one-sided bargaining process, Busch still has the eco-
nomic strength to return to the bargaining process. On the other
hand, if the Respondent is ordered to pay the negotiating ex-
penses, it will, in my opinion, put the Union in such an unfa-
vorable financial position that it will not have the economic
strength to return to the bargaining table and adequately negoti-
ate. Its members deserve this opportunity.
CONCLUSIONS OF LAW
1. August A. Busch & Co. of Massachusetts, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent was legally responsible for the conduct of its
members and supporters at the Pour House demonstration on
December 8, 1995, and thus has engaged in conduct in viola-
tion of Section 8(b)(4)(i) and (ii)(B) of the Act, by:
(a) At the Pour House demonstration, appealing to prospec-
tive customers not to patronize the Pour House and radio sta-
tion WZLX, neutral persons in its dispute with Busch.
(b) By its actions inside the Pour House during the demon-
stration, including shouting slogans, destroying prizes, intimi-
dating customers and other acts, which acts constituted unlaw-
ful restraint and coercion of neutral persons.
(c) By the acts of its members in physically bumping and
otherwise threatening supervisors and employees of Busch
during the Pour House demonstration.86
(d) By the acts of its members and supporters at the May 3
and 10, 1996 demonstration at Woody’s Liquors in appealing
to prospective customers not to patronize Woody’s Liquors,
interfering with access of prospective customers to Woody’s
Liquors and its parking spaces, and intimidating customers of
Woody’s Liquors by opening their shopping bags without con-
sent and entering their vehicles without consent.
(e) By the acts of its members and supporters at the May 3
and May 10, 1996 demonstration at Woody’s Liquors in har-
assing, intimidating and appealing to employees of Woody’s
Liquors in an unlawful attempt to induce them to withhold their
services from Woody’s Liquors, a neutral person in Respon-
dent’s dispute with Busch.

85 Citing Gissel Packing Co., 395 U.S. 575, 614 (1969), citing NLRB
v. Logan Packing Co., 386 F.2d 562, 570 (4th Cir. 1967).
86 This activity also violates Sec. 8(b)(1)(A) of the Act.
4. On May 10, 1996, Woody’s Liquors was not a primary
employer in dispute with the Respondent, but rather was a neu-
tral person in Respondent’s dispute with Busch.
5. Respondent has engaged in conduct in violation of Section
8(b)(3) of the Act, by:
(a) Failing and refusing to provide Busch with relevant and
necessary information concerning Respondent’s operation of an
exclusive hiring hall.
(b) Failing and refusing to provide Busch with relevant and
necessary information concerning Respondent’s Health and
Welfare Plan.
(c). Failing and refusing to meet with Busch at reasonable
times and for reasonable periods of time for the purposes of
collective bargaining.
(d). Failing and refusing to bargain in good faith with Busch
by, inter alia, engaging in surface bargaining, engaging in dila-
tory, disruptive and intransigent conduct at the bargaining table,
making burdensome information requests of Busch and inform-
ing Busch that it would never get a collective-bargaining
agreement from Respondent.
5. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in a series of acts
and conduct violative of Section 8(b)(3), (1)(a), and (4)(i) and
(ii)(B) of the Act, I recommend that it be ordered to cease and
desist therefrom and that it take such affirmative action as will
effectuate the policies and purposes of the Act. As to the
8(b)(4) violations, a broad cease and desist order must issue
enjoining Respondent from engaging in future secondary activ-
ity proscribed by Section 8(b)(4). Such a broad order is war-
ranted as Respondent has shown a proclivity for violating the
Act over the more than 2 years of its boycott campaign against
Busch. Service Employees Local 87 (Trinity Maintenance), 312
NLRB 715 fn. 4 (1993); Iron Workers Local 378 (N. E. Carlson
Construction), 302 NLRB 200 (1991).
During the course of its consumer boycott campaign against
Busch, Respondent on three occasions engaged in conduct
which warranted issuance of an injunction by a Federal court
under Section 10(l). Two of those incidents are part of the alle-
gations in this matter; the third, involving the “group shopping”
allegations, was settled after 4 days of trial. A complaint alleg-
ing similar conduct was issued, and subsequently settled, as
part of the earlier consumer boycott campaign against Burke
Distributing. This repeated conduct demonstrates the proclivity
to violate the Act by Respondent necessary for a broad order.
Respondent has shown that it will engage in a variety of con-
duct as part of its boycott campaign which crosses the line of
unlawful conduct under Section 8(b)(4). Without a broad reme-
dial order, Respondent is likely to engage in similar unlawful
secondary activity in the future.
Having found that Respondent violated Section 8(b)(3) of the
Act by failing and refusing to provide the Employer with rele-
vant and material information requested concerning Respon-
dent’s hiring hall and its health and welfare fund, Respondent
should be ordered to immediately furnish the Employer with
each of the items requested in the two information requests.
TEAMSTERS LOCAL 122 1259
Having found that Respondent has violated Section 8(b)(3)
of the Act by failing and refusing to bargain in good faith with
the Employer, it should be ordered to bargain, if Busch should
so request, and if a collective-bargaining agreement is reached,
reduce that agreement to writing.
Respondent should be ordered to pay to the Charging Party
and General Counsel the litigation costs incurred by them with
respect to the trial of the 8(b)(3) violations found here. The
litigation costs should include costs and expenses incurred by
Charging Party and General Counsel in the investigation,
preparation, presentation and conduct of the 8(b)(3) portion of
this proceeding, including reasonable counsel fees, salaries,
witness fees, transcript and record costs, printing costs, travel
expenses and per diem, and other reasonable costs and ex-
penses as determined at the compliance stage of this case.
Respondent should be ordered to post the notice to members
on all bulletin boards at its offices and union hall and on any it
bulletin boards it may maintain at Busch’s facility. Respondent
should further be ordered to mail the notice to members to all
employees employed by Busch since the commencement of
negotiations on October 13, 1994, in each of the two bargaining
units. This conduct is required so that employees will be fully
apprised of Respondent’s extensive violations in negotiations
over a substantial period of time. There is no evidence whatso-
ever that Respondent’s members were aware of or condoned
Respondent’s bad faith bargaining. Respondent’s masquerade
at the bargaining table cost its members dearly in the lack of a
collective-bargaining agreement with all of its inherent benefits,
not the least of which were arbitration and an improved eco-
nomic package. Particularly due to the passage of time since the
violations commenced, due in part to the protracted nature of
the proceedings for which Respondent shoulders much of the
blame, the Notices must be mailed to employees so they may be
apprised of the unlawful nature of Respondent’s conduct and
assured it will not recur. Eastern Maine Medical Center, supra
at 228. The traditional requirement of posting the Notice in the
Respondent’s hall and offices is inadequate since it is not likely
that members visit the hall on a regular basis. Thus, employees
would not be informed of the Board’s actions, particularly
where it is not known whether Respondent maintains any bulle-
tin boards at Busch’s facility. Moreover, since spare employees
work only irregularly and may also not appear regularly at Re-
spondent’s hall and offices, it is imperative that the notices be
mailed to them so that they are apprised of the nature and rem-
edy for Respondent’s unlawful conduct.
Respondent should further be ordered to sign and return to
the officer in charge of Busch sufficient copies of the notice to
members for posting by Busch, if willing, at all places where
notices to employees are customarily posted. Operating Engi-
neers (Stone & Webster), 283 NLRB 734 (1987).
[Recommended Order omitted from publication.]