Brotherhood of Locomotive Firemen, Etc.

National Labor Relations Board - Board Decisions

Mar 3, 1961

130 N.L.R.B. 1147 (N.L.R.B. 1961)

BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC. 1147
3. By interfering with , restraining, and coercing its, employees in the exercise of
rights guaranteed to them by Section 7 of the Act , as set forth above, the Respon-
dent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a)(1) and (3) of the Act.
[Recommendations omitted from publication.]
Brotherhood of Locomotive Firemen and Enginemen; and
Brotherhood of Railroad Trainmen and Phelps Dodge Cor-
poration , Morenci Branch
Brotherhood of Locomotive Firemen and Enginemen and Phelps
Dodge Corporation , Copper Queen Branch
Brotherhood of Locomotive Firemen and Enginemen; and
Brotherhood of Railroad Trainmen and Phelps Dodge Cor-
poration, New Cornelia Branch
Brotherhood of Locomotive Firemen and Enginemen; - and
Brotherhood of Railroad Trainmen and Phelps Dodge Cor-
poration , Morenci Branch. Cases Nos. 21-CB-1488, 21-CB-
1489, 21-CB-1490, and 21-CB-1492. March 3, 1961
DECISION AND ORDER
On August 11, 1960, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel,
the Respondents, and the Charging Party filed exceptions to the In-
termediate Report and the General Counsel and the Respondents filed
supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in these
cases and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the, modifications, additions, and ex-
ceptions indicated below.
For the reasons set forth in the Intermediate Report we agree with
the Trial Examiner that the Respondent's failure to notify the Indus-
130 NLRB No. 94.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trial Commission of the State of Arizona of the existence of a dispute
as required by Section 8(d) (3) and the failure to comply with the
requirements of Section 8 (d) (4) constituted a violation of Section
8 (b) (3) of the Act.' We also agree with the Trial Examiner that the
Respondents violated Section 8(b) (1) (A) of the Act. In doing so
we rely upon the following acts, all of which were committed at the
jointly struck Morenci plant by, or in the presence of, union agents.
1. The stopping and lifting of Foreman Chleo Riley's car at the
mill gate on February 13 in the presence of BLFE Chairman Frank
Essex.
2. The stopping of Mahan's car on February 13 as he entered the
plant and the threat to him of bodily harm by Essex.
3. The blocking of the mill gate on February 13 by BLFE Vice
Chairman Stewart to prevent the entry of the truck belonging to
Louis Villalante; the disconnecting of the tailhoses on Villalante's
truck by Organizer Ward and member Molz; and the jumping on the
truck by Member Pugh.
4. The stopping, and violent rocking of the car of Shift Foreman"
V. O. Loose on February 13 in the presence of Union Officer T. L.
Chapman.
5. The blocking of the car of Paul Austin and the threat to turn
over his car on February 13 in the presence of T. L. Chapman.
6. The rocking of the car of Joe Armijo and the threat to turn it
over on February 13 in the presence of T. L. Chapman.
We also do not adopt the wording of the Trial Examiner's conclu-
sions Nos. 4 and 5, which we shall revise to read :
(4) By striking without serving the notice required by Section
8(d) (3) of the Act, upon the Arizona State Labor Department
under the Industrial Commission of Arizona, the Brotherhoods
have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (b) (3) of the Act.
(5) By failing to continue in full force and effect, -without
resorting to strike, all the terms and conditions of the existing
contracts for a period of 30 days after giving the notice required
in Section 8(d) (3), as provided by Section 8(d) (4) of the Act,
the Brotherhoods have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (b) (3) of the Act.2
I We do not , however, adopt the Trial Examiner's characterization of the Respondent's
strikes as "unfair labor practice strikes" since the phrase is ordinarily used to denote
strikes caused by the unfair labor practices of an employer . Nor do we find it necessary
to adopt the Trial Examiner 's comment with respect to the right of the Employer to
discipline or reinstate h is employees as the status of the employees is not in issue in this
proceeding.
8 In the portion of the Intermediate Report entitled "The Remedy," the Trial Examiner
found that the Brotherhoods had violated Section 8 ( b)(4)(A) rather than Section
8(b) (1) (A ). The error is hereby corrected.
BROTHERHOOD OF LOCOMOTIVE FIREMEN , ETC . 1149
The recommended order by the Trial Examiner fails to provide a
remedy for the violation of Section 8(b) (3) nor does it enjoin spe-
cifically the types of behavior found violative of Section 8 (b) (1) (A).
We shall therefore revise the order and notice to conform more closely
to the violations found herein.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Brotherhood of
Locomotive Firemen and Enginemen, and Brotherhood of Railroad
Trainmen, and each of them, and their respective officers, agents, rep-
resentatives, successors, and assigns, shall :
1. Cease and desist from:
(a) Restraining and coercing employees of Phelps Dodge Corpo-
ration by rocking automobiles of employees and of other persons
desiring to enter the plant; by blocking the ingress and egress of
employees and others desiring to enter or leave the plant; by threaten-
ing physical violence to the persons and property of employees or
other persons desiring to enter or leave the plant; in any other man-
ner restraining or coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
(b) Refusing to bargain collectively with Phelps Dodge Corpora-
tion concerning the termination or modification of a collective-
bargaining agreement with the said Phelps Dodge Corporation, by
failing to notify, before striking, the Arizona State Labor Department
under the Industrial Commission of Arizona of the existence of a dis-
pute within 30 days after service of notice upon Phelps Dodge Corpo-
ration that the Respondents seek or desire modification or termination
of a collective-bargaining contract.
(c) Refusing to bargain collectively with Phelps Dodge Corpora-
tion by failing to continue in full force and effect, without resorting
to strike, all the terms and conditions of the existing contracts for
a period of 30 days or until the expiration date of the contract, which-
ever occurs later, after giving the notice required by Section 8(d) (3)
of the Act, as provided by Section 8 (d) (4) of the Act.
(d) Engaging in, or causing or instructing the employees of
Phelps Dodge Corporation to engage in, a strike, for the purpose of
modifying or terminating a collective-bargaining contract, without
first having complied with the requirements of Section 8 (d) of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. (a) Post at their respective offices in Morenci, in Ajo, and in Bisbee,
Arizona, copies of the notice attached hereto marked "Appendix."'
Copies of said .notice, to be furnished by the Regional Director for
the Twenty-first Region, shall, after being duly signed by the repre-
sentatives of the Brotherhoods, be posted immediately upon receipt
thereof, and maintained for a period of 60 consecutive days there-
after in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken by
the Brotherhoods to insure that such notices are not altered, defaced,
or covered by any other material.
(b) Mail or deliver to the Regional Director for the Twenty-first
Region copies of the notice attached hereto marked "Appendix," duly
signed by the proper and qualified officers of each Brotherhood, for
posting by Phelps Dodge Corporation, it being willing, in places
where it customarily posts notices to employees. Copies of said
notice, to be furnished by the Regional Director for the Twenty-first
Region, shall, after being signed as provided for above, be forthwith
returned to, the said Regional Director for Phelps Dodge's permissive
posting.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps they
have taken to comply herewith.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE To ALL MEMBERS OF BROTHERHOOD OF LOCOMOTIVE FIREMEN
AND ENGINEMEN AND BROTHERHOOD OF RAILROAD TRAINMEN AND TO
ALL EMPLOYEES OF PHELPS DODGE CORPORATION
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT rock automobiles of employees or of other persons
desiring to enter the plant.
WE WILL NOT block the entrances to employees and others de-
siring to enter or leave the plant.
WE WILL NOT threaten physical violence to the persons and
property of employees or other persons desiring to enter the plant.
WE WILL NOT in any other manner restrain or coerce employees
of Phelps Dodge Corporation in the exercise of-their rights guar-
anteed in Section V of the Act, as amended, including the right
to refrain from any or all concerted activities as guaranteed by
the Act.
BROTHERHOOD OF LOCOMOTIVE FIREMEN , ETC. 11 51
WE WILL NOT refuse to bargain collectively with Phelps Dodge
Corporation by (1) failing to notify the appropriate State
agency, within 30 days of the notice to the corporation, that a
dispute exists, provided no agreement has been reached by that
time; and (2) failing to continue in full force and effect, without
resort to a. strike; all the terms and conditions of an existing con-
tract for a period of 30 days after such notice is given, or until
the expiration date of such contract, whichever occurs later.
WE WILL NOT engage in, or cause or instruct the employees of
Phelps Dodge Corporation to, engage in, a strike, for the purpose
of modifying or terminating a collective- bargaining contract,
without first having complied with the requirements of Section
8(d) of the Act.
BROTHEvHOOD OF LOCOMOTIVE FIREMEN
AND ENOINEMEN,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
BROTHERHOOD- OF RAILROAD TRAINMEN,
Dated ------- =--------• By-=-----------------------------------
(Representative ) ' (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Phelps Dodge Corporation , the General Counsel of
the National Labor Relations Board , herein respectively called the General Counsel 1
and the Board, through the Regional Director for the Twenty-first Region (Los
Angeles , California), issued a consolidated complaint , dated April 11, 1960, against
Brotherhood of Locomotive Firemen and Enginemen, herein called BLFE, and
against the Brotherhood of Railroad Trainmen ,' herein called BRT,2 alleging that
each had engaged in and is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b)(1) (A) and (3 ) and Section 2(6) and (7) of
the National Labor Relations Act, 61 Stat . 136, as amended from time to time,
herein called the Act.
Copies of the charges , the consolidated complaint , and notice of hearing thereon
were duly served upon each Brotherhood and copies of the consolidated complaint
and. notice of hearing thereon, were duly served upon'Phelps Dodge:
_Specifically ,, the consolidated complaint alleged that:, ( 1) Since about May 15;
1942, on which date the Board certified BRT as the exclusive bargaining representa-
tive of Phelps Dodge . in a certain appropriate unit, Phelps Dodge has recognized and
has bargained with BRT as such representative ; ( 2) since the Board's April 7, 1954,
certification of BLFE as the exclusive collective-bargaining representative of Phelps
Dodge employees in a certain appropriate unit , Phelps Dodge has recognized and
has bargained with BLFE as such representative ;,- (3) on or about February 12, 1960,3
the Brotherhoods instituted a strike at certain Arizona branches of Phelps Dodge
without first giving the notices-required by Section 8(d) (3) of the Act and since said
1 This term specdfically includes counsel for the General Counsel appearing at the
hearing.
2 Conjointly BLFE and BRT ' are referred to as the Brotherhoods.
_$ Unless otherwise noted all dates hereinafter mentioned refer to 1960. .
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date has failed to continue in full force and effect , without resorting to any strike
activity, all the terms and conditions of the then -existing collective-bargaining con-
tracts for a period of 60 days after the giving of such notice as required by Section
8(d) (4) of the Act; and (4) the Brotherhoods, through certain named officers and
certain named members and strikers , engaged in certain stated unlawful picket-line
activities.
On April 20, the Brotherhoods duly filed a joint answer denying the commission
of the unfair labor practices alleged. 1
Pursuant to due notice, a hearing was held at Safford , Arizona , from May 23
through 27, before the duly designated Trial Examiner . The General Counsel, the
Brotherhoods , and Phelps Dodge were represented by counsel and participated in
the hearing . Full opportunity was afforded all parties to be heard , to examine and
cross-examine witnesses , to introduce relevant evidence , to argue orally at the con-
clusion of the taking of the evidence , to file briefs or proposed. findings of fact and
conclusions of law, or both, on or before June 27 .4 A brief has been received from
counsel for each party and each has been carefully considered.
Counsel for Phelps Dodge also filed, after having served copies thereof upon
counsel for the other parties, proposed findings of fact and conclusions of law. These
proposed findings and conclusions are disposed of in accordance with the findings,
conclusions , and recommendations hereinafter set forth.
After the close of the hearing counsel for the Brotherhoods filed, after having
served copies thereof upon counsel for the other parties , a motion to correct certain
inaccuracies appearing in the stenographic report of the hearing . The motion is
hereby granted and the motion papers are received in evidence and are marked "Trial
Examiner 's Exhibit No. 1."
After the close of the hearing counsel for Phelps Dodge filed , after having served
copies thereof upon counsel for the other parties , a motion to correct certain inac-
curacies appearing in the stenographic report of the hearing . The motion is hereby
granted and the motion .papers are received in evidence and are marked "Trial Ex-
aminer's Exhibit No. 2."
Upon the record as a whole and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
Phelps Dodge Corporation is engaged in the mining and processing of copper ore
at its Morenci Branch , located at Morenci , Arizona, at Copper Queen Branch , located
at Bisbee , Arizona, and at New Cornelia Branch , located at Ajo, Arizona. During
1959, each of these three branches shipped finished products valued in excess of
$ 50,000 to points located outside the State of Arizona.
Upon the above admitted facts, the Trial Examiner finds that during all times
material Phelps Dodge was, and now is, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act
for the Board to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS . INVOLVED
The Brotherhoods are labor organizations admitting Wmembership• employees of
Phelps Dodge.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement
The issues raised by the pleading are (1 ) whether the Brotherhoods' failure to
give the proper agency of the State of Arizona the notice required under Section
8 (d) (3) of the Act before they struck the several installments of Phelps Dodge'was
violative of the Act, and (2) whether or not the Brotherhoods are, and each is,
accountable for the threats, coercion, and other misconduct which took place during
the strike. Each of these issues will be dealt with seriatim.
B. The issue regarding the failure to serve the required notice
In its pertinent provisions , after defining generally the obligations of collective
bargaining, Section 8(d) specifically provides:
That where there is in effect a collective-bargaining contract covering em-
ployees in an industry affecting commerce , the duty to bargain collectively shall
& At the request of counsel, the time to Me briefs was extended to and including July 15.
BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC . 1153
also mean that no party to such contract shall terminate or modify such con-
tract, unless the party desiring such termination or modification-
(1) serves a written notice upon the other party to the contract of the
proposed termination or modification sixty days prior to the expiration
date thereof, or in the event such contract contains no expiration date, sixty
days prior to. the time it is proposed to make such termination or modifi-
cation;
(2) offers to meet and confer with the other party for the purpose of
negotiating a new contract or a contract containing the proposed
modifications;
,(3) notifies the Federal Mediation and Conciliation Service within thirty
days after such notice of the existence of a dispute, and simultaneously
therewith notifies 'any State or Territorial agency established to mediate
and conciliate disputes within the State or Territory where the dispute
occurred, provided no agreement has been reached by that time; and
,(4) continues in full force and effect, without resorting to strike or lock-
out, all the terms and conditions of the existing contract for a period of
sixty days after such notice is given or until the expiration date of such
contract, whichever occurs later.
The credited evidence, coupled with the several admissions of the Brotherhoods,
establishes that: Since May 15, 1942, Phelps Dodge has recognized and dealt with
BRT as the statutory representative of Phelps Dodge Morenci and New Cornelia
employees in the units for which BRT had been certified; that since April 7, 1954,
Phelps Dodge has recognized and dealt with BLFE as the statutory representative
of the Phelps Dodge Copper Queen installation employees for which BLFE had been
certified; the Brotherhoods jointly struck the Copper Queen, Morenci, and New
Cornelia installations of Phelps Dodge on February 12, at a time when the Brother-
hoods and Phelps Dodge were in joint negotiations for new contracts or for a re-
newal or for a modification of the then-existing contracts; on the same day, February
12, BLFE called a strike at the Copper Queen Branch of Phelps Dodge, at a time
when BLFE were in contract negotiations with Phelps Dodge for new contracts, or
for a modification or renewal of the then-existing contracts; these strikes were called,
and the said installations picketed by the Brotherhoods without first giving the re-
quired Section 8(d)(3) notices; on February 16, the Brotherhoods withdrew the
pickets from the New Cornelia installation; the pickets were withdrawn from the
Copper Queen installation on February 17; and the pickets withdrawn from the
Morenci installation on February 18.
The Brotherhoods concede that they failed to give the required Section 8(d)(3)
notice to the proper Arizona agency. In an effort to absolve itself of any liability
under the Act, the Brotherhoods averred in their answer to the consolidated com-
plaint and at the hearing and in their brief contended that since there is "no agency
within the State of Arizona functioning in regard to mediation or conciliation" it
would have been an idle gesture for them to give notice to any agency of the State
of Arizona. In support of their positions, the Brotherhoods point to the fact that
the Arizona State Labor Department under the Industrial Commission of Arizona
(the agency which the General Counsel contends the required Section 8(d)(3)
notice should have been given), does not do any conciliation or mediation work nor
does it have any appropriation or funds to carry out any such'work.
The Arizona Revised Statutes (section 23-107) gave the Industrial Commission of
Arizona under the title "General Powers," among other things, "full power, juris-
diction and authority to: . (3) Promote the voluntary arbitration, mediation
and conciliation of, disputes between employers and employees."
The Brotherhoods, in effect, argue in their brief that they could with impunity
ignore the requirements of Section 8(d)(3) and (4) of the Act with respect to the
State of Arizona because there is a distinct legal difference between the "naked grant
of power to 'promote' voluntary conciliation and mediation" and the nonfunctioning
of the agency established by the Arizona legislature.. Whatever may be, said of that
argument the fact remains that under the express terms of Section 8(d) Congress has
provided a conduct to which a party to a collective-bargaining contract, be it em-
ployer or union, wishing to terminate or modify a collective-bargaining contract,
must adhere. The law requires that party to do four things; namely, first, serve a
notice "sixty days prior to the expiration date thereof"; secondly, offer to meet and
confer; thirdly, notify the Federal and. State mediation services within 30 days of
the service of the 60-day notice, if "no agreement has been reached by that time";
and finally, continue "in full force and effect, without resorting to strike or lockout,
all the terms and conditions of the existing contract for a period of 60 days after
5 9 7254-G 1-v o I. 130--74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such notice is given or until the expiration date of such contract, whichever is later."
Reading these requirements in the light of the objective sought, the conclusion be-
comes inescapable that Congress intended to deny to any party to a collective-
bargaining contract the right to resort to economic warfare, instead of collective
bargaining, unless the party seeking to modify or to terminate the contract first
comply with the requirements of Section &(d). The Trial Examiner therefore finds
that since the Brotherhoods failed to give the Arizona State Labor Department under
the Industrial Commission of Arizona the required 8(d)(3) notice, the Brother-
hoods' strikes were unfair labor practice strikes and were violative of Section 8 (b) (3)
of the Act .5 The Trial Examiner further finds that the employees who had engaged
in such unprotected strike activities forfeited their rights under the Act, and there-
fore Phelps Dodge had the unquestionable right to discipline some and to reinstate
some as it saw fit .6
C. The 8(b) (1) (A) issue
1. The pertinent facts
In the light of the Trial Examiner's observation of the conduct and deportment at
the hearing of all the persons who testified thereat, and after a very careful scrutiny
of the entire record, all of which has been very carefully read, and parts of which
have been reread and rechecked several times, and being duly mindful of the
contentions of the parties with respect to the credibility problems here involved,
of the fact that in most instances testimony was given about events which took
place several months prior to the opening of the hearing, of the fact that very strong
feelings have been generated by the circumstances in this case which might have
lead some witnesses to slant their testimony to some extent in favor of one party
and to the detriment of the others, and of the fact that it would needlessly protract
this report greatly to summarize all the testimony or to spell out the confusion and
inconsistencies therein, the following is a composite picture of all the factual
issues involved?
The contracts between Phelps Dodge and the Brotherhoods at the four Phelps
Dodge installations here involved were continuing agreements and each by its terms
ran until August 1, 1959.. Thereafter, by reason of their terms, each of said contracts
remained in full force until the following February 12.
From time to time, between August 1, 1959, and February 11, 1960, the
Brotherhoods and Phelps Dodge were in joint negotiations looking toward a modi-
fication of the aforementioned agreements: On the latter date, the parties met
at Douglas, Arizona, after which meeting Frank Essex, the general chairman of
the Clifton local of BLFE a and who attended the said February 11 meeting, and
A. M. Masterman,9 chairman of the BRT Morenci local, called. a strike at the said
three Phelps Dodge Arizona installations commencing at 6 a.m. the following day.
In fact, on February 11, Essex, who was in Douglas, telephoned Phillip Stewart, vice
president of BLFE and who later became a picket captain in Morenci, and informed
Stewart of the impending strike and then instructed him to arrange for the neces-
sary pickets at the appointed hour.
The strike, as scheduled, commenced at Morenci, the installation where this
controversy is mainly concerned, at 6 a.m. on February 12, with pickets being placed
at its two main gates.'()
'International . Union. of Operating Engineers v. Dahlen Construction Co., 193 F. 2d
470 (C.A. 6) ; Schneid v . District 50, United Mine Workers of America, 40 LRRM 2529
(D.C. Ill.) ; Elliott, Reg . Dir. v. Local Union No. 49, Sheet Metal Workers ' International
Association, AFL-CIO, 42 LRRM 2100 ( D.C. N. Mex. ) ; United Mine Workers v. Arkansas
Oak Flooring, 351 U. S. 62; N.L.R.B. v. Lion Oil Company , 352 U . S. 282; Herzog, et at. v.
Parsons, 181 F. 2d 781 (C.A.D.C.) ; J. C. Penney Company, 109 NLRB 754 ; West Virginia
Pulp ' and Paper Co., 118 NLRB 220; Local No. 156, United Packinghouse Workers of
America, et at. (Du Quoin Packing Company), 117 NLRB 670. .
9 See California Cotton Cooperative Association Ltd., 110 NLRB 1494.
P It is true that at times some witnesses were . confused on certain matters and that
there were variations in their objectivity and convincingness , but, on the whole the wit-
nesses upon whose testimony the factual summary herein set out is based , particularly
impressed the Trial Examiner as- being persons who are careful with the truth and
meticulous in not enlarging their testimony beyond their actual memory of what occurred.
6 This local asserts jurisdiction over certain classifications of Phelps Dodge. Morenci
installation employers. . . .
9 Also known . as Sid Masterman. . ' . .
10 The Brotherhoods ' activities about which- we are concerned ' took place at the Morenci
Open Pit gate (referred to In the record as the Mine gate) 'and at , the Morenci Reduction
BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC. 1155
The picketing'on first two shifts of February 1211 -were. peaceful and orderly
except that the pickets would approach the employees' cars as they came up to the
gates with one of the pickets placing himself in front of the car and when the driver
indicated that he was going to work, the picket would step aside and the car would
proceed through the gate. The only incident to mar the peaceful and orderly picket-
ing of the first two shifts of February 12 was one involving Yardmaster Roy Mahan,
a former BLFE member and who worked during the strike. The facts regarding
this incident are: When Mahan drove up to the gate about 7:15 a.m. to go to work
on the 1st shift the road was full of men and C. J..Roberts, a member of BRT, stood
in front of the car and thus Mahan was prevented from immediately going to work.
While thus blocked, Lloyd Martin, a BLFE member and a picket, told Mahan
to roll down his window or he would bust it open. Mahan complied with Martin's
demand and rolled down the window next to him. Martin then asked Mahan if he
was going to work. When Mahan replied in the affirmative, Martin told Mahan
that they had been brothers 'in more ways than one, but not anymore. Mahan
then started his car and, as he was easing his way through the gate, Martin and the
group of men who were-in close proximity to-Mahan's car called Mahan indecent
and vulgar names, such as "dirty son-of-a-bitch scab." When Mahan finished his
shift that afternoon and was about to pass through the gate, his car was stopped
and about 15 or 20 men 12 gathered around or near the car and asked Mahan to
respect the picket line., When Mahan indicated he intended to cross the picket
line and work behind it, the men again called him indecent and vulgar names.
Whereas there were 2 or 3 pickets at each gate during the morning and the early
afternoon of February 12, there were 10 or more pickets in the latter part of the
evening. The pickets, Brotherhoods members, and spectators in the immediate
area of the gates increased to about 200. Thus was the situation when Superintendent
James Foard drove up to the mill gate about 8:45 that night.
As Foard attempted to leave the plant, the pickets refused to move and he was
therefore forced to stop his car. Then one of- the car windows was smashed; an
unidentified man opened the driver's door and grabbed Foard's arm and attempted to
pull him out of the car; and this person called Foard vile names. When Foard
inquired who the pickets were, he was told, "We are the Brotherhood"; and after
succeeding in closing the car door and as Foard was proceeding out of the gate
he was told by some unidentified men, in the presence :of the pickets and Brother-
hoods members, to quote- from Foard's credible testimony, "He would open up my
head with his lantern [in] the -same manner in which they broke the window .. .
[I was also told] not [to] try to get back. in the gate _ again."
At the time of the graveyard shift change on February 12,' large crowds of men
stood in front of the mill gate thus preventing cars from temporarily going into or
out of the plant. The people on.and around the picket line (1). rocked the non-
strikers' cars, (2) struck the nonstrikers" cars, (3) 'threatened the car occupants with
bodily harm if they crossed the picket line,-(4) told the car occupants that if they
crossed the picket line' their cars would be damaged, "and. (5) cursed the car occu-
pants for crossing the picket line. -
Because of the demonstrations described immediately above, only in the cases
where the drivers "showed that they were determined to enter the plant' would the
pickets step aside and allow the cars to- enter the plants. In all other cases the drivers
turned the cars away from the gate and left the area.:
When General Foreman Chleo Riley, accompanied by a nonsupervisory employee,
drove' up to the mill gate , he was forced to stop his"car because the large crowd in
the area had stopped the -cars immediately! ahead. of Riley's. Thereupon, several
persons took hold of the" front of. Riley's car and raised it about 18, inches.
When employees drove up to • either gate about the : change of `the first shift of
February 13, pickets crowded around the approaching' cars; rocked some cars; and
the occupants of the cars were sworn at, abused,' threatened with bodily harm for
crossing or attempting to' cross the picket lines. Also some cars crossing the picket
lines were damaged.
When Mahan reported for work on the February 13. first shift, his car was stopped
by Martin and the pickets and Mahan was again cursed for wanting to: cross'the
Works gate (referred to in the record as the Mill' gate). These gatesar6 opposite each
other on the highway between Morenci. and the neighboring town of Clifton, Arizona.
11Phelps Dodge; during all times material, operated on-a' 24-hour three-shift basis. The
first shift started between 7 and 7:30 .a-•m:,'the .afternoon, shift 'started between 3 and
3:30 p.m., and the third shift started betweeh 11'and11:30"p.m. ' '
U Among these, men, were 'Roberts, Martin; "BRT Chairman A. M: Masterson, and BLFE
Organizer Beuran Ward::::
1156 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
picket line. As Martin was finishing his abusive remarks to Mahan, Essex joined
the group, and when Mahan pleaded to be permitted to go to work, Essex, in front
of a group of pickets and others, said to Mahan, "God damn son of a bitch scab.
If you go in, I will cut your God damn throat."
As Mahan was leaving the plant that afternoon, after working February 13, the
group on the picket line called him a _ scab,,.and BLFE Organizer Ward, in the
presence of the pickets and others, took a picture of Mahan and then told Mahan
that it would be placed in all the labor papers.
Likewise on the first shift of February 13, a foreman was detained at the gate for
about 5 or 8 minutes by the pickets and when he was permitted to drive through the
gate, the pickets made menacing gestures with their trainmen's lanterns indicating
probable damage to the car.
When Virginia Smith and her sister Elizabeth Jentry, two Phelps Dodge clerical
-employees, drove up to the gate on-the morning of February 13, Martin walked up
to her stopped car and told Smith that the : union could hurt the local automobile
business which she and her husband owned if she crossed the picket line.
In furtherance of its plant to operate the Morenci installation despite the strike,
Phelps Dodge arranged with Louis Villalante, a nonemployee, to transport in his
trucks food, bedding, kitchen equipment, and other supplies to the mill installation
for the use of the nonstrikers. As Villalante trucks approached the mill gates about
5 p.m. on February 13, most of the approximately 200 persons then in the area,
including officers, pickets, picket captains, and members of the Brotherhoods, some
of whom had been alerted that the trucks would arrive that afternoon, walked into
the highway and forced the trucks to stop amid the heavy highway traffic. BLFE
Vice Chairman Stewart then drove his pickup truck into the entrance of the mill
gate and parked lengthwise in such a fashion as to fill up as much of the gate as
possible thereby making it impossible for any of the Villalante's trucks to enter
the plant. However, Stewart removed his truck when instructed to do so by the
undersheriff then on duty at the Morenci installation.
While the Villalante trucks were stopped in the road, BLFE Organizer Ward
pulled the tailhoses of the lead truck trailer, in which Villalante himself was sitting,
thereby setting the brakes on the semitrailer so that the truck could not move.
After the hoses had been reconnected by either the driver of the truck or by one
of the undersheriffs, Henry Molz, a BLFE member, pulled the airhoses on two
separate occasions.
The crowd's action , during the approximately 15 or 20 minutes the Villalante
trucks were stopped, so unnerved the driver of the-lead truck that he abandoned-it
and Villalante, who is a one= armed man of about 60 years of age, was forced to
take over as driver: As Villalnnte was driving the lead truck toward the mill gate,
Quanah Pugh, a member of one" of the Brotherhoods, jumped on the truck's running-
board, thrust -the;tipper half of his body inside the cab thereby causing a deputy
sheriff and a`Stafe- highway 'patrolman to -jump on the runningboard and remove
Pugh from the vehicle. The Villalante trucks then proceeded through the mill gate.
About 10:30 p.m. on February 13, Shift Foreman V. O. Loose drove up to the
mill gate to go to work. He was stopped by the pickets and told that he could not
go through the gate. When Loose attempted to proceed through the gate, his car
was rocked, by, the pickets. In fact, his car- was so . violently rocked that it was
almost upset. Finally Loose, by greatly accelerating the car's engine , was able to
go through the gate.
When Paul Austin and 4-fellow worker attempted to go to work on the late, or
graveyard,' shift on February. 13, the pickets were lined up shoulder to shoulder
across the gate so that -Austin was unable to drive through- the gate, and was told
by the pickets that if he did not leave the area immediately they would turn
Austin's car over. Austin then attempted to back his car onto the road in order
to leave the vicinity but was unable to do so because cars which had arrived while
the pickets were talking to him blocked him. Thereupon, through the intercession of
a friend of the coworker who was in Austin' s car , Austin was permitted to go to
work. Austin remained in the plant until the picket line was lifted on February 18.
When Joe Armijo drove up, to the gate about 10:30 p.m. on February 13, there
were about a dozen men at the„gate and they told him if he did not go home they
would turn his car over. When the men commenced to rock his car, Armijo said
he would go home and he immediately left the plant area.
It would serve no useful purpose to set forth here the many other incidents of
mass picketing , threats by. pickets, the abusive and threatening statements made to
nonstrikers by certain officers- of the Brotherhoods, the abusive and threatening
statements made to nonstrikers;. by the pickets and members of the Brotherhoods,
and the threats of damage , to, nonstrikers' automobiles by the pickets and members
BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC. 1157
appearing in. the. record, for. to do so would unduly protract this report. Suffice to
say such acts and conduct were of a similar nature as those set forth above.
2. Concluding findings
The Brotherhoods have set forth many arguments in their brief why the con-
solidated complaint herein should be dismissed for lack of substantial credible
evidence. The Trial Examiner has fully considered each and every one of the
arguments and finds each of them, including the argument that BRT Deputy Presi-
dent V. C. Barnett, Essex, and other officials of the Brotherhoods urged the pickets,
the strikers, and the spectators to conduct themselves in an orderly fashion, to be
without merit or substance. The total lack of substance or merit to the Brother-
hood's arguments that they should be absolved- from liability of any wrong or illegal
conduct can best be illustrated by the argument that the Brotherhoods' officials on
several occasions pleaded with their members, the pickets, the strikers, and the
spectators not to engage in any misconduct. It is true that some officials did so
and that Essex told Undersheriff Wood that he would gladly arrange to have the
members of the Brotherhoods' female auxiliary escort Phelps Dodge's female em-
ployees past the pickets when Wood told Essex that the women were "scared" to
go through the picket line. It is likewise true that Essex, Ward, Masterman, BRT
Official T. L. Chapman engaged in acts of violence and made abusive and threat-
ening statements to nonstrikers in the presence of pickets, strikers, members of the
Brotherhoods, and the spectators. In short, the officials of the Brotherhoods, were
Just giving lipservice to their pleas for law and order while engaging in, encouraging,
or acquiescing in, the very. things that they asked the crowds not to do.
The credible evidence, as epitomized above, also clearly discloses, and the Trial
Examiner finds, that the Brotherhoods permitted their officers, their pickets, and
their members ( 1) to engage in mass .picketing , (2) to use profane , vile, and in-
decent language to nonstrikers, (3) to prevent or attempt to prevent supervisory
and nonsupervisory personnel to leave or go into the Morenci installation, (4) to
-damage or threaten to damage nonstrikers' automobiles, (5) to rock and to threaten
to tip over nonstrikers' automobiles, and (6) to threaten nonstrikers with bodily
harm if they did not respect the picket lines. ' The Trial Examiner finds that by so
doing the Brotherhoods have, and each of them has,-restrained and coerced the em-
ployees of Phelps Dodge in the exercise of the rights guaranteed in Section 7 of
the Act, thereby violating Section 8 (b) (1) (A) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Brotherhoods set forth in section III, above, occurring in
connection with the business operations of Phelps Dodge Corporation set forth in
section I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and such of them as have been found to be
unfair labor practices tend to lead to labor. disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Brotherhoods have violated Section 8(b)(4)(A) and
8(b)(3) of the Act, it will be recommended that they be ordered to cease and
desist therefrom and that they take certain affirmative action designed to effectuate
the policies of the Act..
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Phelps Dodge Corporation is engaged in, and during all times material was
engaged in, commerce within the meaning of Section 2(6) and (7) of the Act.
2. Brotherhood of Locomotive 'Firemen and Enginemen and Brotherhood of
Railroad Trainmen are labor organizations within the meaning of Section 2(5) of
the Act.
3. -By engaging in picket line activities, as found above, and-by otherwise restrain-
ing and coercing the employees of Phelps Dodge Corporation in the exercise of
rights guaranteed in Section 7 of the Act, the Brotherhoods have engaged in and
are engaging in unfair labor practices within the meaning of Section 8(b)(1)(A)
of the Act.
4. By failing to serve the notice, required by Section 8 (d) (3) of the Act upon the
Arizona State Labor Department under the Industrial Commission of Arizona, the
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhoods have engaged in and are engaging in unfair labor .practices within-the
meaning of Section 8(b) (3) of the Act.
5. By failing to continue in full force and effect , without resorting to strike, all
the terms and conditions of the existing - contracts for a period of 60 days after the
giving of the notice required in Section 8(d)(3) as provided by Section 8(d)(4) of
the Act, the Brotherhoods have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (b) (3) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Federal Dairy Company, Inc. and Local Union 64, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America . Case No. 1-CA-3116. March 3, 1961
DECISION AND ORDER
On August 9, 1960, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had.engaged in and was engaging in unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report, and supporting briefs.'
The Board 2 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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following additions and modifications.'
1. For the reasons set forth in the Intermediate Report, we agree
that the strike by the Respondent's employees which began at midnight
on February 21, 1960, was from its inception an unfair labor practice
strike. We also agree with the General Counsel's contention that even
if the strike were economic in its inception, it thereafter was converted
to an unfair labor practice strike. The evidence shows that on Febru-
ary 22, 1960, the first day of the strike, and continuing to on or about
1 The Respondent 's request for oral argument is denied as the record, including the
exceptions and briefs, adequately sets forth the issues and the positions of the parties.
8 Pursuant to the provisions of section 3(b) of the Act, the Board has delegated its ,
powers in connection with this case to a three-member panel [ Chairman Leedom and
Members Rodgers and Jenkins].
8 Respondent, among other things, takes exception to the amending of the charges, the
service thereof , the amending of the complaint , the manner of recall of witnesses and their
examination after the complaint was amended , the extent of the participation in the hear-
ing by counsel for the Charging Party , and to the conduct of the hearing , charging the
Trial Examiner with bias and prejudice. We find the various rulings on these issues
made at the hearing by the Trial Examiner to the proper and not prejudicial to'Respond-
ent. In regard to the charge of bias and prejudice made against the Trial Examiner in
his conduct of the bearing, we find no support in the record for this charge . To the con-
trary , the record shows Respondent was afforded every reasonable opportunity to present
its case and make its record.
130 NLRB No. 85.