United Rubber Workers, Loc. 796

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 165 (N.L.R.B. 1967)

UNITED RUBBER WORKERS , LOC. 796 165
United Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO; and United Rubber Workers,
Local 796 and Tennessee Wheel and Rubber Com-
pany. Case 26-CB-342
June 28, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 20, 1967, Trial Examiner Alvin
Lieberman issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair. labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer's Decision. He also found that the Respond-
ents had not engaged in other unfair labor prac-
tices alleged in the complaint and recommended
dismissal of the complaint to that extent.
Thereafter, the Respondents filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na
.tional Labor Relations Board has delegated its
powers in connection with this case ^ to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that Respondents, United Rubber, Cork, Linoleum
& Plastic Workers of America, AFL-CIO; and
United Rubber Workers, Local 796, their officers,
agents, and representatives, shall take the action set
forth in the Trial Examiner's Recommended
Order,' as herein modified.
1 Sec 2(a) is hereby amended by substituting the words "on forms pro-
vided" for the words "to be furnished "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial Examiner: This case, with all
parties except the Charging party represented. was tried
before me in Nashville. Tennessee, on December 22 and
23, 1966,' upon a complaint2 of the General Counsel and
Respondents' answer.' The issues litigated were whether
Respondents violated Section 8(b)(1)(A) of the National
Labor Relations Act, as amended (herein called the Act).
More particularly, the questions for decision are as fol-
lows:
1. Are Respondents liable for acts of restraint and
coercion, within the meaning of Section 8(b)(I)(A) of the
Act, committed by certain members, including officers
and picket captains, of Respondent United Rubber Work-
ers, Local 796 (herein called Local)?
2. Did Respondents violate Section 8(b)(1)(A) of the
Act by threatening and assaulting employees?4
Upon the entire record,' upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the able briefs submitted by the
General Counsel and Respondents, I make the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
The Company, a corporation. is engaged at Nashville,
Tennessee, in the manufacture and distribution of indus-
trial wheels. During the 12 months immediately preced-
ing the issuance of the complaint, a representative period,
the Company sold and shipped directly to customers
located outside the State of Tennessee goods valued in
excess of $50,000. Accordingly. I find that the Company
is engaged in commerce within the meaning of the Act
and that the assertion of jurisdiction over this matter by
the Board is warranted. Siemons Mailing Service, 122
LRB 81.85.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondents are labor organizations within the mean-
ing of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case concerns itself with the events which
occurred during a strike against the Company. The
1 All dates mentioned in this Decision fall within 1966.
The complaint was issued on charges filed by Tennessee Wheel and
Rubber Company (herein called the Company)
3 During the trial Respondents admitted the allegations of paragraph 2
of the complaint, except with respect to the place of the Company's incor-
poration, and the allegations of paragraphs I and 3 of the complaint
4 On motion of Respondents made at the conclusion of the General
Counsel's case-in-chief paragraph 8(d) of the complaint, which alleges that
Respondents "coerced [the Company's] employees, and supervisors" by
recklessly driving an automobile, was dismissed for the reason that the
General Counsel offered no evidence to establish that employees were
present or involved in the incident. In his brief the General Counsel urges
tha, I "reconsider [my] dismissal of paragraph 8(d) of the complaint," and
I have done so Having reconsidered and having taken into account the
General Counsel's arguments I find no convincing reason for changing my
ruling. R. L. Zeigler, Inc., 123 NLRB 464, and E. J. Lavino & Company,
157 NLRB 1637, cited by the General Counsel in support of his conten-
tion in this regard are, in my opinion, not in point. Thus, in the former, the
assaults upon the persons in question were actually witnessed by em-
ployees. In the latter the National Labor Relations Board (herein called
the Board) made a point of noting that in the absence of exceptions it was
adopting only "pro forma the Trial Examiner's holding that threats of
violence directed against supervisors, with no employees present, violated
the Act "
5 The General Counsel has moved to correct the transcript with respect
to the spelling of the name of the Company's vice president which appears
as John D. True whereas it should be John D. Trew. That motion is
granted. Issued simultaneously herewith is a separate order correcting the
Transcript in certain additional respects.
166 NLRB No. 33
308-926 0-70-12
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel contends that in the course of this strike
officers, picket captains, and pickets of Respondent Lo-
cal, for whose conduct he asserts Respondents are liable.
threatened, punched, shoved. stoned, and shot at non-
striking employees, and that by this conduct Respondents
violated Section 8(b)(l)(A) of the Act.
For their part. Respondents maintain that it has not
been established that the threats, punching, shoving, and
stoning alleged by the General Counsel actually oc-
curred. Reversing their field and assuming that the
foregoing events did, in fact, take place Respondents
make a three-pronged exculpatory argument. They con-
tend, first, that their liability for the conduct of the per-
sons involved has not been shown. Their second claim is
that the General Counsel has not established that the
commission of the acts in question was motivated by "an
attempt to prevent non-striking employees from exercis-
ing their rights as guaranteed by Section 7 of the Act."
Finally. Respondents urge that their misconduct was
quantitatively insufficient to warrant the entry of a
remedial order. With respect to the shooting incident.
Respondents offer alibis for the alleged participants.
B. Facts Concerning Respondents' Liability for the
Conduct Alleged in the Complaints
In March. Respondent United Rubber, Cork. Linole-
um & Plastic Workers of America, AFL--CIO-(herein
called International), was duly certified by the Board
(26-RC-2599) as the exclusive collective-bargaining
representative of the Company's employees in an ap-
propriate unit. Thereafter. Respondent Local was char-
tered.
Negotiations with the Company looking toward the ex-
ecution of a collective-bargaining contract started in
about April. Among the negotiators were James Temple
and John Taylor, field representatives of Respondent In-
ternational, and Alton Howell and James Walden. respec-
tively president and vice president of Respondent Local.
No agreement having been reached by July 8. the mem-
bers of Respondent Local, on that date, authorized it to
strike the Company. With the sanction of Respondent In-
ternational, which also pays benefits to the Company's
striking employees, and in accordance with its members'
authorization Respondent Local struck the Company on
September 8. and began to picket its premises.7
In connection with the strike, picket captains were ap-
pointed by Respondent Local and instructions were given
to the pickets by Howell and Temple. Among the picket
captains appointed by Respondent Local was Wesley
Givens, a trustee of Respondent Local, and, in addition,
a member of its executive board.8
The instructions given to the pickets by Howell and
Temple were, insofar as material, to picket in any orderly
fashion; to refrain from violence; and to avoid obstructing
ingress to, or egress from, the Company's premises. In-
sofar as keeping employees from entering the Company's
plant is concerned. Temple. field representative of
Respondent International. testified that he instructed the
pickets to "show ... people crossing the picket line their
picket signs so that the people will be aware that there is
a strike in progress."
The pickets are supervised and directed by Howell,
Walden, respectively president and vice president of
Respondent Local, and by the picket captains. Although
neither Howell nor Walden are at the picket lines at all
times and sometimes both are simultaneously absent,
there is always a picket captain on duty.
If during Walden's presence at the picket line, pickets
"do something [they are], not supposed to do," Walden,
as Howell testified, "would be the one to correct them
right then and there." Howell similarly testified that it is
the duty of the picket captains to "correct" the pickets
when "they get out of line."9
In addition to the presence of Howell, Walden. and the
picket captains at the picket line, Temple, field represen-
tative of Respondent International. is there two or three
times a week. On each of his appearances he talks "to
people on the picket line, our members, and continually
[tells] them not to have violence."19
C. Contentions and Concluding Findings Concerning
Respondents' Liability for the Conduct Alleged in the
Complaint
As noted above, Respondents argue that they are not
liable for the misconduct alleged in the complaint. This
argument is bottomed upon Respondents' contention that
the General Counsel has not sustained his burden of
proving that the conduct complained of was engaged in by
their agents acting within the scope of their authority.
In Sunset Line and Twine Company, 79 NLRB 1487,
1508-09, a leading case in this area, the Board laid down
"fundamental rules of the law of agency which we believe
must control our decision of the issue of responsibility in
this and similar cases." Among those rules is one which,
as Respondents contend, places the "burden of proof ...
on the party asserting an agency relationship both as to
the existence of the relationship and as to the nature and
extent of the agent's authority." In disagreement with
Respondents. I conclude that the General Counsel has
met this burden.
Insofar as the existence of the relationship is con-
cerned, the General Counsel has shown that Respondent
Local, in support of its strike against the Company.
caused the Company's premises to be picketed; that it
gave instructions to the pickets as to the manner in which
the picketing should be conducted; and that it appointed
picket captains, who together with its president and vice
president, were charged with the duty of supervising the
pickets and seeing to it that they complied with their in-
structions.
The president. vice president, and picket captains of
Respondent Local were, thus, the instrumentalities
through which its picketing policies were effectuated.
They were, therefore, its agents. Perry Norwell Company,
80 NLRB 225, 244.
The Board in Sunset Line laid down another fundamen-
tal rule. This. dealing with the liability of a principal for
the acts of his agent. is that:
6 In considering this branch of the case the truth of the allegations of
misconduct set forth in paragraphs 8(a), (b), (c), and (e) of the complaint
will be assumed . Whether these allegations were actually established by
the evidence and whether the conduct constituted violations of Section
8(b)(1)(A) of the Act will be considered below
° The strike and picketing were still in progress at the time of the trial
8 The duties of a trustee consist of checking and auditing the business
transactions of Respondent Local The responsibilities and duties of mem-
bers of its executive board do not appear in the record.
0 In context I construe Howell's testimony with respect to the duty of
the picket captains as being to "correct" the pickets whenever they vio-
lated the instructions given them in any regard, and not merely to "cor-
rect" them when they "got out of [the picket] line," as a literal reading of
the transcript may suggest.
10 The findings of fact appearing in this section of this Decision, which
in the main are undisputed , are based on a synthesis of the testimony given
by Howell, president of Respondent Local , Temple, field representative
of Respondent International , and Trew, vice president of the Company
UNITED RUBBER WORKERS, LOC. 796 167
A principal may be responsible for the act of his
agent within the scope of the agent's general authori-
ty ... even though the principal has not specifically
authorized or indeed may have specifically forbidden
the act in question. It is enough if the principal ac-
tually empowered the agent to represent him in the
general area within which the agent acted.' i
In determining whether the foregoing principle is ap-
plicable in the instant case the general authority of the
agents of Respondent Local must first be ascertained.
This, I find encompassed the supervision and direction of
the picketing in furtherance of the strike against the Com-
pany. I further find that a purpose of the picketing is to
withdraw the Company's labor force and thereby cause
such a deterioration of its economic condition as would
move the Company to come to terms with Respond-
ents.12
Having ascertained that the general authority of the
agents of Respondent Local consisted of supervising and
directing the pickets it must next be determined whether
the conduct of the agents, and those acting with them, al-
leged in paragraphs 8(a), (b). (c). and (e) of the complaint,
which for the purpose of this discussion I am taking as
true (see fn. 6). fall within the scope of their general
who participate in the strike. Instructions were given to
the pickets by the president of Respondent Local and by
a field representative of Respondent International, and
the latter makes frequent appearances at the picket line
to remind the pickets of their instructions.
In view of the foregoing, I find that the strike against
the Company is a joint venture by Respondent Local and
Respondent International. This being so. Respondent In-
ternational is responsible for the misconduct of Respond-
ent Local and its agents in furtherance of the objective
of their venture; i.e. to bring the Company to terms.
Miami Plating Co., 144 NLRB 897, 903.
In sum, I conclude that if upon consideration of the
evidence it is found that the agents of Respondent Local
actually engaged in the conduct set forth in paragraphs
8(a), (b). (c). and (e) of the complaint. liability for those
acts attaches not only to Respondent Local, but also to
Respondent International.
D. Facts Concerning Respondents ' Alleged Unlawful
Conduct
1. The punching, stoning, and threat
authority. In this regard. as Sunset Lin_ e teaches, it is im- Before the strike Wesley Givens, who later became a
material that the -acts complained o were not specifi- picket captain 13 asked Harold Pippin to sign a union
catty aufIiezed or indeed may have [been] specifically authorization card. Pippin did not do so nor did he sup-
forbidden." Considering the allegations of the complaint port Respondents in their strike against the Company.
in this light I find that the conduct set forth was engaged During the morning of September 14, Wesley Givens
in by the agents of Respondent Local to dissuade em- was in a picket line in front of the Company's premises.
ployees from working for the duration of the strike, a pur- While this picketing was in progress Pippin approached
pose for which the picket line which they directed and su- the plant on his way to work. As he reached a point about
--e The conduct complained ofpermi,sail--w~as--estal5liss-h
was, therefore, wfn the general-` scope of the agents'
authority:-
A,__._
Accordingly, I conclude that Respondent Local is
responsible for the acts of its agents as alleged in the para-
graphs of the complaint here under discussion.
Insofar as Respondent International is concerned, even
though it did not appoint the agents of Respondent Local,
I am satisfied that it, too, is liable for their conduct.
Respondent International was certified by the Board as
the bargaining representative of the Company's em-
ployees. It then chartered Respondent Local and both en-
gaged in unsuccessful contract negotiations with the
Company. Although the strike against the Company upon
the failure of the bargaining was initiated by Respondent
Local, it was sanctioned by Respondent International and
Respondent International pays benefits to the employees
11 In this connection , the Board pointed out that neither authorization
to perform the acts in question , nor their subsequent ratification shall be
controlling.
12 As Temple, field representative of Respondent International,
testified in this regard , the pickets were instructed to display their signs so
that "people crossing the picket line. . will be aware that there is a strike
in progress " This instruction makes explicit in this case an implicit pur-
pose of picketing in support of a strike ; i.e., to influence employees to
refrain from working See N.L R B., v Dallas General Drivers , etc, 264
F.2d 642, 648 (C A 5), cert. denied 361 U.S. 814; Schultz Refrigerated
Service, Inc., 87 NLRB 502, 505
13 The actual date of Wesley Givens' appointment as a picket captain is
not clear. However, it is certain that he was a picket captain on September
14, and I so find
14 These findings are based on a synthesis at the testimony of Pippin
and Bruce Williams, both of whom, especially Williams , impressed me by
their demeanor as being truthful witnesses . Pippin was confused as to the
place where the assault upon him occurred and was unsure of its date.
Bruce Williams , who testified that he saw Wesley Givens "shove . and
hit" Pippin , was able to fix the time and place of the event . Wesley Givens
50 yards from the place where Wesley Givens was
picketing, Givens handed his sign to another person.
rushed to meet Pippin, called him a scab, and punched
and shoved him.'4
Two days later. September 16. while Fred Childress,
a nonstriking employee of the Company. was at work, he
was notified about 9 or 10 o'clock in the morning that his
wife was sick and needed his attention. Upon receiving
this information Childress started for home in his truck.
The road on which he was driving crosses a series of rail-
road tracks several hundred yards from the plant. When
Childress arrived at the tracks Wesley Givens, one of the
picket captains appointed by Respondent Local, Norris
Givens, and Ronnie Fleming, 15 who were standing on the
left side of the highway, threw rocks at him. Although
Childress. himself. was not hit, several rocks struck his
truck. 16
denied that he struck or shoved Pippin and denied , also, that he was at the
picket line during the morning of September 14, Respondent, however,
adduced no probative evidence to corroborate Wesley Givens ' testimony
as to his absence from the picket line at the time in question . In view of
this , and because of the credible testimony as to this incident given by Pip-
pin and Bruce Williams , I do not believe Wesley Givens ' denials.
11 Childress knew these people, having worked with them for 3 years,
and had last seen them earlier that day on a picket line at the Company's
premises.
16 The findings with respect to this matter are based on Childress'
testimony. Wesley Givens and Ronnie Fleming both denied throwing
rocks at Childress Norris Givens was not called as a witness by Respond-
ents, perhaps because he was , at the time of the trial , under indictment al-
leging his participation in an incident , discussed below, in which shots
were fired at Sammy Powell , another nonstriking employee at the Com-
pany My resolution of the conflicting testimony here under consideration
given by Childress on one hand and Wesley Givens and Fleming on the
other is based on my assessment of the demeanor , while testifying, of the
witnesses in question,
168 DECISIONS OF NATIONAL
In addition to testifying about having rocks thrown at
him, as set forth above, Childress also testified that dur-
ing the week of September 19, Wesley Givens told him
"not to come into work because something could happen
to [his] family." This testimony was received over
Respondents' objection based on the fact that the com-
plaint did not allege this threat. Although on cross-ex-
amination several questions were put to Childress con-
cerning this event, it was not further litigated by Respond-
ents.
The question arises as to whether I may consider this
evidence in the absence of an allegation in the complaint
that the threat to Childress constituted an unfair labor
practice. It is settled law that when a matter "is fully
litigated at a hearing, the Trial Examiner and the Board
are expected to pass upon it even though it is not specifi-
cally alleged to be an unfair labor practice in the com-
plaint." Monroe Feed Store, 112 NLRB 1336, 1387.
Here Respondents objected to the introduction of
evidence relating to the threat on the very ground that it
was not alleged in the complaint. In view of this objection
I cannot find that the issue was "fully litigated" on the
basis of the General Counsel's direct examination of
Childress and the few questions concerning the threat put
to him by Respondents on cross-examination. Associated
Home Builders, etc. v. N.L.R.B., 352 F.2d 745, 754
(C.A. 9). Accordingly. I will make no findings based
upon Childress' testimony that he was threatened by
Wesley Givens.
Although the complaint makes no mention of a threat
to Childress it does allege a threat to another nonstriking
employee. Sammy Powell. Concerning this, I find that on
September 21. as Powell was driving out of the Com-
pany's parking lot at the completion of his work shift
Ronnie Fteming,i' who immediately prior to this had
been picketing in front of the parking lot, left the picket
line and stationed himself in Powell's path.18 In order to
avoid hitting Fleming, Powell swerved and collided with
a truck parked at the side of the driveway.
After the collision Powell stopped and walked back to
the truck to ascertain whether it had been damaged by the
impact. Upon returning to his automobile Powell was fol-
lowed by Fleming and James Walden, vice president of
Respondent Local, who like Fleming had been picketing
in front of the parking lot. While Powell was preparing to
drive off Walden said to him "I'll get you."'9
19 It will be remembered that Fleming participated in Childress' ston-
ing.
18 It is not alleged that Fleming's obstruction of the driveway in this
manner constituted a separate violation of Section 8(b)(1)(A) of the Act
Accordingly, I make no finding as to this.
19 These findings are based on testimony given y Powell, who im-
pressed me favorably as a witness concerned with the truth. Fleming
testified that he and Walden were picketing at the parking lot when Powell
left the Company' s premises on the day in question and that he saw the
collision between Powell 's car and the truck. However, he neither ad-
mitted nor denied that he blocked Powell's path , stating, insofar as this is
concerned, that he could not remember whether "there [ was] a person in
front of Mr. Powell as he drove out of the plant." Notwithstanding his
faulty recollection in this regard Fleming was able to remember, and
testified, that neither he nor Walden approached Powell after the collision,
and that he never heard Walden, "threaten" Powell. In view of Fleming's
admittedly imperfect memory with respect to whether Powell's way was
obstructed and his bearing while being examined I do not credit his
testimony concerning this event Walden was called as a witness by the
General Counsel. He refused to testify, however, invoking his constitu-
tional privilege against self-incrimination because , like Norris Givens, he
was at the , time of the trial under indictment for, allegedly, at a later time
shooting at,Powell.
LABOR RELATIONS BOARD
2. The shooting
Powell and his wife were shot at on September 25.
several days after Powell, as I have found, had been
threatened by Walden, vice president of Respondent Lo-
cal. That shots were fired at Powell and his wife is clear
and is virtually admitted by Respondents. Unclear, how-
ever, and sharply disputed is the identity of those who
particpated in the shooting. Powell and his wife insist that
the shots were fired by Walden who, at the time, was rid-
ing in an automobile driven by Norris Givens, a striking
employee of the Company. and that Norris Givens' wife
was also in the car. Respondents, however, stoutly main-
tain that neither Walden nor Norris Givens was involved
in any way in the event, and, in support of its position. has
interposed alibis on their behalf.
On the date of the shooting Powell and his wife lived in
the western part of Nashville several miles from the Com-
pany's plant. which is located in the northern part of the
city. Their house was on the northeast corner of Park
Avenue, which is an east-west street. and 39th Street,
which is a north-south street. Immediately north of Park
Avenue is Charlotte Avenue. Behind the house is a public
alley which parallels Park Avenue and extends in an east-
erly direction from 39th Street for one block until it inter-
sects with what I shall call 38th Street.20 Between the
alley and Powell's house, and directly behind it. is a yard.
access to which can be had only from the alley. There is
a street light in the alley adjacent to the yard. Some
distance north of the alley. but fronting on 39th Street is
a "barbecue" restaurant and on the southwest corner of
Charlotte Avenue and 39th Street is another restaurant
known as Hardee's.
Concerning the shooting. Powell testified21 that: on
Sunday. September 25, about 5:45 p.m. he and his wife
were in the yard behind their house'22 she sitting in the
driver's seat of their car which was parked there about 15
feet from the alley23 and he standing outside. and to the
right. of the car; although it was not yet dark, having "just
. dimmed a little" the street light in the alley and the
lights in the "barbecue" restaurant and Hardee's had
been turned on; at the time in question (about 5:45 p.m.24)
a 1961 tan Dodge automobile owned by Norris Givens25
entered the alley from 39th Street; as the car drew abreast
of the yard behind his house it slowed almost to a stop; he
recognized the occupants of the car as being Norris
20 The name or number of this street does not appear in the record.
21 Powell's wife also testified with respect to the shooting. Both also
made pretrial affidavits . Insofar as there are material discrepancies
between Powell 's testimony and that given by his wife , or between their
testimony and their pretrial affidavits the discrepancies will be set forth in
footnotes
22 In her testimony Mrs. Powell stated that she went from her house to
the car between 5:30 and 6 p in. and that her husband joined her in the
yard a few minutes later In their pretrial affidavits, executed on Sep-
tember 28, 3 days after the event , both stated that the time in question was
6 15 p.m.
23 In his pretrial affidavit Powell stated that his car was about 30 feet
from the alley
24 I have already pointed out , in in. 22 above , the discrepancies with
respect to the time between the testimony given by Powell and that given
by his wife and between their testimony at the trial and their pretrial af-
fidavits.
25 Patricia Givens, the wife of Norris Givens , testified that she and her
husband had a 1961 Dodge automobile "between . brown and beige"
in color , which they acquired about September 15, and that prior to this
they owned a white Falcon.
UNITED RUBBER WORKERS, LOC. 796 169
Givens, a striking employee of the Company, who was
driving, Walden. vice president of Respondent Local,
who sat on the right side of the car, and Norris Givens'
wife who was seated between them;26 the car then went
through the alley in the direction of 38th Street; after it
drove off he and his wife remained in their yard, not ex-
pecting the car to return; about 5 minutes later the car
again entered the alley from39th Street and upon reaching
the yard "gradually slowed down" or stopped; when it did
so Walden pointed a pistol out of the right-hand window
of the car and fired at his wife; the car was then driven off
after which he picked up a chain to defend himself in case
the car returned; the car did come back in about 5
minutes and. again. Walden fired the pistol out of the
right-hand car window, this time, however, the shot was
aimed in his (Powell's) direction; and after the second
shot he and his wife ran back to their house and called the
police.
Respondents called Nevilla Williams to testify in sup-
port of the alibi with respect to the shooting which they
interposed on behalf of Walden. vice president of
Respondent Local. Nevilla Williams testified that: she is
regularly employed as a saleslady in a Nashville depart-
ment store;27 she is a member of a singing group known
as The Gospel Chords (herein called Chords)28 for which
she does the "booking";29 the Chords were scheduled to
give a performance in the Fifth Ward Baptist Church in
Clarksville, Tennessee. at 8 p.m. on Sunday, September
25; to keep this engagement the Chords left Nashville
about 4 p.m. in an automobile owned, and driven, by
Walden 30 and arrived in Clarksville about 5:15 p.m 31;
upon their arrival they were informed by "the sponsor of
the program" that it had been cancled because it had
rained in Clarksville that afternoon32 and that she had
called Nashville to inform the Chords of the cancellation.
but they had already set out for Clarksville; the Chords
and Walden had dinner at the home of the program's
"sponsor"; 33 the Chords left Clarksville about 8 p.m. in
Walden's automobile and arrived in Nashville about an
hour later; and Walden remained with the Chords in
Clarksville "the full time."
To establish Norris Givens' alibi Respondents called
two witnesses, his wife, Patricia Givens. and her grand-
mother, Ola Runions. Patricia Givens testified that: dur-
ing the morning of Sunday, September 25. she, her
husband, and their two children drove in their automo-
bile, which, as already noted is a 1961 Dodge. "between
. brown and beige" in color (see footnote 25), to the
home of her grandmother located in a section of south
Nashville known as Woodbine; about noon they had
lunch at her grandmother's home, after which she drove
her husband. Norris Givens, to the picket line at the
Company's plant in their car and then she. alone, drove
their car back to her grandmother's house where she
remained all afternoon; when "it was already dark"34 she
left her grandmother's house, drove to the picket line,
picked up her husband and Fleming.35 another picket.
returned with them directly to her grandmother's house
which they reached between 6:30 and 7 p.m., retrieved
her children and went home, arriving there "well before
8:00"; it took between 30 and 45 minutes to make the
round trips between her grandmother's house and the
picket line and from 5 to 10 minutes to drive from her
grandmother's house to hers; and the route she followed
between her grandmother's house and the picket line did
not "pass [through or] even come close" to the neighbor-
hood in the western part of Nashville in which Powell
lived, nor did she go near Powell's house in traveling from
her grandmother's home in the southern part of Nashville
to her home, which is located in the eastern section of the
city.
Ola Runions. Patricia Givens' grandmother. cor-
roborated the testimony given by Patricia Givens. In ad-
dition. she testified that she remembered it was on Sep-
tember 25 that she was visited by her granddaughter. her
husband, and their children because "it was the night that
26 Powell knew Walden and Norris Givens , having worked with them.
Powell was never introduced to Norris Givens ' wife , and testified that he
had seen her on one occasion before September 25. On that day, Powell
related , which was about the time the strike started (September 8) while
looking through a window at the Company 's plant he saw her on the street
approximately 35 feet away and was told by "one of the guys [that she]
was [Noms Givens'] wife ." Powell further stated that he saw this person
and Norris Givens enter a white Corvair automobile and he "assumed it
was [Norris Givens'] wife because ... [ they] was sitting pretty close
together." I am sure that Powell's identification of Mrs. Givens as being
one of the occupants of the automobile which was driven through the alley
was made in good faith . I cannot give it much weight, however, even ab-
sent the factors discussed below , in view of the scanty foundation upon
which Powell 's knowledge that the person in question was, in fact, Mrs.
Givens rests Mrs. Powell also named the occupants of the car as being
Walden , Norris Givens and the latter 's wife. She admitted, however, after
some vacillating testimony that she did not learn the names of the people
involved until after the shooting when she was given that information by
her husband.
27 It does not appear that Nevilla Williams was ever employed by the
Company, nor does it appear that she was ever a member of either
Respondent
28 The Chords consists of four people . From time to time, usually on
weekends , it performs for churches and similar organizations
29 During the course of her testimony Nevilla Williams related that she
kept records of all engagements of the Chords and produced a book which
she described as the Chords ' engagement book . She stated, at first, that
the book was new and that it was her belief that she began to use the book
in June . Upon examination , however , it appeared that the first engage-
ment listed in the book was for September 24 When this was called to her
attention Nevilla Williams explained that the September 24th engagement
listed in the book was the Chords ' first during that month and that "as
[she] stated before this was a new book and the performaces before this
month were recorded in another book which [she didn't ] have now
[because she] didn't think it would be necessary." The General Counsel
contends , in his brief, that this discrepancy and Nevilla Williams' admis-
sion that Walden was a good friend of the Chords , about which I will com-
ment later, "argue against her credibility." However , because the book
recorded an engagement prior to the one on September 25, which is the
one relied on, in part, by respondents to establish Walden's alibi, and
many after that date , as is recognized by the General Counsel, and
because the demeanor of Nevilla Williams impressed me as that of a
truthful witness , I accept her explanation at face value I will, therefore,
draw no adverse conclusion as to her credibility because she was, with ob-
vious honesty , mistaken as to when she began to use the book
30 As Nevilla Williams credibly testified, although she was unable, with
certainty to fix all dates and places , Walden had on previous and sub-
sequent occasions driven the Chords to other "out of town engagements."
31 The distance between Clarksville and Nashville is approximately 45
miles.
32 In this respect , I take notice , as reported by the United States
Weather Bureau, that it did, in fact , rain in Clarksville on September 25.
33 It appears to be the usual thing for an organization which engages the
Chords to provide its members with food.
14 Official notice is taken of the fact that on September 25, sunset took
place in Nashville at 5 40 p .m, and that the twilight period ended 28
minutes later.
35 The General Counsel would have me draw an adverse inference in-
sofar as this portion of Patricia Givens ' testimony is concerned from the
fact that Fleming, who had testified earlier on behalf of Respondents, was
not called by them to corroborate Mrs. Givens . This, I refuse to do, in
view of the fact, as set forth below, that Patricia Givens ' testimony was
corroborated in this regard and in all other respects by Ola Runions
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Norris Givens] was arrested" and because "the next
day [she] had a dentist appointment and [she had] a
record of that."
On the basis of all the testimony concerning this phase
of the case I conclude that respondents established the
alibis they interposed on behalf of Walden, vice president
of Respondent Local, and Norris Givens, insofar as their
alleged involvement in the Powell shooting is concerned.
With respect to Walden, I believe the testimony of Nevil-
la Williams that Walden left Nashville with the Chords
about 4 p.m. on September 25. and did not return until
about 9 p.m. that night. Not only is she a disinterested
witness having nothing to gain or lose by her testimony,
for which reason I give it great weight, but also because
of her demeanor while testifying, upon which I have al-
ready commented.36 Believing her, I cannot find that
Walden shot at the Powells on September 25, or that he
was an occupant of the car from which the shots were
fired on that day, as the Powells testified.
Patricia Givens. the wife of Norris Givens, and her
grandmother may not, by reason of their relationship to
Norris Givens. be classed as witnesses having no interest
in the outcome of this case. Because of their interest I ob-
served them closely while they were testifying concerning
the whereabouts of Norris Givens on September 25.
Based on their attitude and behavior while on the witness
stand I cannot conclude that they were lying when they
gave their mutually corroborative testimony.37 I cannot
find, therefore, that Norris Givens drove his automobile
through the alley behind Sammy Powell's house during
the early evening of September 25, nor can I find that he,
accompanied by Patricia Givens. his wife, drove the car,
whichever one it might have been, from which an occu-
pant shot at the Powells.
While, as I observed at the outset of this section of this
Decision, it is clear and virtually undenied by Respond-
ents, that during the early evening of September 25, an
automobile was driven through the alley behind the house
in which Sammy Powell and his wife lived and that they
were fired upon from that car, Sammy Powell's testimony
concerning his recognition of the occupants of the au-
tomobile in question is suspect.38 Considering first the
time at which the shooting is alleged to have occurred,
Powell testified that the automobile first came through
the alley at 5:45 p.m., and that it returned twice thereafter
at 5-minute intervals and that the shots were fired during
the car's second and third passes through the alley. Mrs.
Powell was not as definite. She testified that she entered
her own automobile which was parked in the yard
between the alley and her house between 5:30 and 6 p.m.
and that the shots were fired during that interval. In their
pretrial affidavits, however, she and her husband both
stated that she did not get into the Powell car until 6:15
p.m.
Considering next the distances invoved. Powell
testified that his automobile, in which his wife was sitting
and next to which he was standing while the shots were
fired, was parked about 15 feet from the alley. But, in his
pretrial affidavit he stated that the distance between his
parked car and the alley was 30 feet.
Ordinarily, discrepancies such as these would not be
significant They attain importance, however, when con-
sidered in connection with Powell's claimed recognition
of the occupants of the car from which the shots were
fired. If the automobile had first come through the alley
at 5:45 p.m. and the shots had been fired at 5:50 and 5:55
p.m., it would still have been twilight and perhaps from
a 'distance of 15 feet Powell would have been able to
recognize those in the car.39 Had the events in question.
however, occurred a half hour later it would have been
full dark and Powell's ability to identify the occupants in
the car at that time from a distance of 30 feet would
clearly have been deminished. The fact that the street,
and other, lights may have been turned on do not in view
of their distances from the alley and of the shadows which
such lights are known to cast alter my conclusion as to
Powell's capacity to recognize the occupants of the car
from which the shots came if they were in fact fired at the
later times and if Powell had actually been standing at the
greater distance from the alley.
Accordingly, considering the record as a whole, I find
that the General Counsel has not sustained his burden of
proving by a preponderance of the evidence that on Sep-
tember 25, Walden, vice president of Respondent Local,
while riding in an automobile driven by Norris Givens, a
striking Company employee, shot at Powell and his wife
as alleged in paragraph 8(e) of the complaint.4° I will,
therefore, recommend that this paragraph and the relating
portion of paragraph 9 of the complaint be dismissed.
E. Contentions and Concluding Findings Concerning
Respondents Alleged Unlawful Conduct
The remaining portions of the complaint allege that
Respondents committed unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act by punching,
shoving, threatening, and stoning employees. Although
Respondents deny having engaged in this conduct, they
argue, by way of avoidance, that even if they did there is
no evidence to support a finding that they were motivated
by "an attempt to prevent non-striking employees from
exercising their rights as guaranteed by Section 7 of the
Act." Respondents finally contend, on the assumption
that they did contravene Section 8(b)(1)(A) of the Act
that the violative incidents in question should be regarded
as mere isolated events not warranting the entry of a
remedial order because they occurred during the course
of a long strike.
Notwithstanding Respondents ' denials, I have found
that persons for whose actions Respondents are liable
punched, shoved, threatened, and stoned nonstriking em-
ployees of the Company. It needs no citation of authority
to establish that Respondents thereby violated Section
8(b)(1)(A) of the Act.
36 See in. 29 . In assessing the credibility of Nevilla Williams I have
duly considered the fact that Walden is , as she stated "a very good friend
of ours "
31 In view of the obviously advanced age of Mrs Runions I had some
doubt concerning her ability to recall that the events concerning which she
testified occurred on September 25. This was dispelled, however, when
she gave her reasons for remembering the date.
38 Mrs Powell 's identification of the occupants of the car is, as I have
found , based on information given her after the shooting by her husband.
Accordingly , her testimony in this regard suffers from the same infir-
mities as her husband's.
31 It will be remembered, in this connection , that on September 20, the
sun set at 5:40 p in . and that twilight continued after that for 28 minutes
40 This finding should not be construed as a reflection upon the credi-
bility of either Powell or his wife. They appeared to be witnesses who
were trying to tell the truth For the reasons which I have already stated,
however , I conclude that their testimony with respect to the identity of the
person who shot at them and of those who were in the car from which the
shots were fired is overweighed by the testimony given by Nevilla Wil-
liams , Patricia Givens, and Ola Runions
UNITED RUBBER WORKERS , LOC. 796
Respondents' exculpatory arguments avail them little.
With respect to their motive contention. it is well settled
that the test of restraint and coercion within the meaning
of the Act does not turn on the motive for the conduct.
Russell-Newman Mfg. Co., Inc., 153 NLRB 1312,
1315; Exchange Parts Company, 131 NLRB 806, 807,
812, affd. 375 U.S. 405.41 Moreover, should motive for
conduct be deemed to be an ingredient of a violation of
Section 8(b)(a)(A)Section 8(b)(1)(A) of the Act. as
Respondents contend, the acts which I have found they
engaged in. loudly bespeak a motive to restrain and
coerce employees in the exercise of rights guaranteed by
Section 7.
Respondents' argument respecting the isolation of the
unfair labor practices found is likewise without merit. It
is true, as Respondents point out in their brief, that the
violations in question occurred "during a strike that has
lasted [almost] four months." Also true, it must be re-
membered. is that Respondents' three separate violations
of Section 8(b)(1)(A) of the Act, which involved
punching, shoving, stoning, and threatening nonstriking
employees, took place during the first 2 weeks of the
strike. It is precisely for this reason that they cannot be
disregarded. In a like situation. presented in Local 542,
International Union of Operating Engineers, AFL-CIO
v. N.L.R.B., 328 F.2d 850, 852, cert. denied 379 U.S.
826, the Court of Appeals for the Third Circuit stated, in
rejecting a contention similar to that made by Respond-
ents here:
The argument seems to overlook the setting in which
the incidents occurred. It is significant that the in-
cidents occurred in the early days of the strike and
within the relatively short period of eleven days,
when the Union was most active in its organizational
effort; they were not spread over the ten weeks of the
strike, as the Union here contends.
Twin-Kee Manufacturing Co., Inc., 130 NLRB 614,
cited by Respondents in support of their argument here
under consideration is readily distinguishable on its facts
from the instant case. There the Board found it unneces-
sary to enter an order upon violations which consisted
solely of two threats uttered on the first day of a strike.
Here. as has already been pointed out the unfair labor
practices involved were committed during a time span of
2 weeks and were composed not merely of threats, but in-
cluded also, more flagrantly, punching. shoving, and ston-
ing.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondents' activities set forth in section III. above,
occurring in connection with the Company's operations
as set forth in section I. above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
4' The cases cited deal with Section 8(a)(1) of the Act. Nevertheless,
they are equally applicable to Section 8(b)(1)(A), which was designed to
extend to employees the same protection against restraining and coercive
acts of labor organizations that Section 8(a)(1) provides against similar
V. THE REMEDY
171
Having found that Respondents engaged in unfair labor
practices within the meaning of Section 8(b)(I)(A) of the
Act, my Recommended Order will direct Respondents to
cease and desist thereupon and to take the affirmative ac-
tion normally required in such cases to effectuate the poli-
cies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case. I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) of the Act.
2. Respondents are labor organizations within the
meaning of the Act.
3. The president, vice president, and picket captains
of Respondent Local are its agents within the meaning of
Section 2(13) of the Act.
4. The conduct set forth in section III. D, 1, and III,
E. hereof, constituted unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act.
5. Respondent Local and Respondent International
are jointly and severally liable for the unfair labor prac-
tices referred to in Conclusion of Law 4. above.
6. By the conduct referred to in Conclusion of Law 4.
above. Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act.
7. Respondents did not violate Section 8(b)(1)(A) of
the Act in the manner set forth in paragraph 8(e). and the
related portion of paragraph 9, of the complaint.
Upon the foregoing findings of fact. conclusions of law,
and upon the entire record in this case, I hereby issue the
following:
RECOMMENDED ORDER
United Rubber, Cork. Linoleum & Plastic Workers of
America, AFL-CIO. and United Rubber Workers. Local
796. their officers, agents. and representatives. shall:
1. Cease and desist from:
(a) Punching, shoving , throwing rocks at, or in any
other manner inflicting bodily injury upon , or assaulting,
any employee . or threatening to do so, because he has
worked , or continues to work, for Tennessee Wheel and
Rubber Company during any strike which was, is being,
or may be in the future . carried on against Tennessee
Wheel and Rubber Company by United Rubber. Cork,
Linoleum & Plastic Workers of America, AFL-CIO;
United Rubber Workers. Local 796; or any other labor
organization
(b) Damaging , or threatening to damage , any property
owned by. or in the possession of, any employee because
he has worked , or continues to work, for Tennessee
Wheel and Rubber Company during any strike which
was, is being, or may be in the future , carried on against
conduct on the part of employers . S. Rep. No 105, 80th Cong., 1st Sess.,
p. 50 See also Capital Service , Inc., v . N L.R.B , 204 F 2d 848, 852
(C A. 9)
172 DECISIONS OF NATIONAL
Tennessee Wheel and Rubber Company by United
Rubber. Cork, Linoleum & Plastic Workers of America.
AFL-CIO; United Rubber Workers, Local 796; or any
other labor organization.
(c) In any like or related manner interfering with,
restraining, or coercing employees of Tennessee Wheel
and Rubber Company in the exercise of their right to
self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, or to engage in other concerted ac-
tivities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the
National Labor Relations Act, as amended, or to refrain
from any or all such activities.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the National Labor
Relations Act, as amended:
(a) Post at their offices copies of the attached notice
marked "Appendix A."42 Copies of said notice. to be
furnished by the Regional Director for Region 26 of the
National Labor Relations Board, after being signed by
authorized representatives of Respondents, shall be
posted by Respondents immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondents to en-
sure that said notices are not altered, defaced, or covered
by any other material.
(b) Deliver to the Regional Director for Region 26 of
the National Labor Relations Board signed copies of said
notice in sufficient number to be posted by Tennessee
Wheel and Rubber Company, it being willing.
(c) Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps have been
taken to comply herewith.43
IT IS FURTHER RECOMMENDED that the complaint be,
and it hereby is. dismissed insofar as it alleges unfair labor
practices not specifically found herein.
42 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the Umted States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
48 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
LABOR RELATIONS BOARD
Relations Act, as amended, we, hereby notify our mem-
bers and all other persons that:
After a trial in which both sides had the opportunity to
present their evidence it has been found that we violated
the law by committing unfair labor practices and we have
been ordered to post this notice and to keep the promises
that we make in this notice.
WE WILL NOT, nor will our officers, picket cap-
tains, or anyone acting with them or under their con-
trol or supervision, punch, shove, throw rocks at, or
in any other way injure, attempt to injure, or threaten
to mistreat. any employee because he has worked, or
continues to work, for Tennessee Wheel and Rubber
Company during our strike against that Company or
because he has crossed, or in the future does cross,
the picket lines which we have set up at that Com-
pany.
WE WILL NOT, nor will our officers, picket cap-
tains, or anyone acting with them or under their con-
trol or supervision, damage or threaten to damage
any automobile or any other property owned by, or
in the possession of, any employee because he has
worked, or continues to work, for Tennessee Wheel
and Rubber Company during our strike against that
Company or because he has crossed, or in the future
does cross, the picket lines which we have set up at
that Company.
WE WILL NOT in any similar way interfere with,
restrain, or coerce any employees in the exercise of
any rights guaranteed them by law which include the
rights to self-organization, to form, join, or assist any
union, to bargain collectively through any union or
representative chosen by any employees as to wages,
hours of work, and other terms or conditions of em-
ployment. or not to do so.
UNITED RUBBER, CORK,
LINOLEUM & PLASTIC WOR-
KERS OF AMERICA,
AFL-CIO
(Labor Organization)
Dated By
Representative Title
UNITED RUBBER WORKERS,
LOCAL 796
(Labor Organization)
Dated By
Representative Title
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If members have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis, Ten-
nessee 38103, Telephone 534-3161.