United Transportation Union

National Labor Relations Board - Board Decisions

Dec 22, 1970

187 N.L.R.B. 406 (N.L.R.B. 1970)

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Transportation Union , Local 1023, AFL-CIO
and Capitol Bus Company . Case 5-CC-472
December 22, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On January 16, 1970, Trial Examiner Paul C. Weil
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Charging Party filed excep-
tions, together with a brief, to the Trial Examiner's
Decision and the Respondent filed an answering brief
to the exceptions of the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following modification.I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, and hereby orders
that the complaint herein be, and it hereby is,
dismissed in its entirety.
CHAIRMAN MILLER, dissenting in part:2
I cannot agree with my colleagues' adoption of the
Trial Examiner's Decision that certain incidents
alleged to be violative of Section 8(b)(4)(ii)(B) should
be dismissed either because the conduct cannot be
attributed to the Union or that such conduct was de
minimis in nature.
The incidents in question occurred at the Washing-
ton and Philadelphia bus terminals owned or operat-
ed by Safeway or its subsidiaries and utilized by
i In dismissing the allegations of the complaint regarding the June 13
incident at the Washington, D C, terminal, we do not adopt the Trial
Examiner's conclusion that American allied itself to Safeway by providing
Capitol with its franchise and authority However, we agree with the Trial
Examiner that responsibility of Respondent for the offending conduct
cannot be inferred on the basis of the present record
8 On the basis of credibility resolutions by the Trial Examiner, I agree
Capitol Bus in its operations. Two incidents occurred
at the Washington terminal. In one, McGuire, the
president of Capitol who was riding on a Capitol bus,
told pickets that they should stop annoying customers
and intimidating employees with their remarks and
indicated he would get an injunction to stop such
activity if necessary. There was credited testimony
that King, one of the pickets replied that "we will put
50 people on the sidewalk without picket signs to take
care of you" and to "keep Capitol out." 3 The second
Washington incident occurred on June 13, 1969, when
picket Hawkins approached Van Atta, Capitol's vice
president, and told him to tell McGuire that "I am
going to punch him in the nose, that I'm captain of
this picket line." The same picket cursed Van Atta in
obscene terms a few days later and threatened to mop
up the sidewalk with him. The picket later apologized
to Van Atta for this latter conversation.
There were three separate incidents at the Philadel-
phia terminal on August 21, 1969, when Capitol buses
driven by supervisors were prevented for 5 to 10
minutes from entering the terminal by pickets who
massed in front of the buses. Special policemen
stationed at the terminal during the course of the
strike were called upon to remove the pickets so the
buses could enter.
The Trial Examiner recommended dismissing these
incidents on the ground, inter alia, that responsibility
of the Respondent could not be inferred for the
conduct since no representative or agent of Respon-
dent was at the scene when the unlawful conduct took
place, and there was no showing that the Respondent
Union adopted or ratified the pickets misconduct.
This rationale, in my opinion, leads to condonation of
picket line misconduct in many 8(b)(4) situations and
overlooks the realities involved, particularly in this
case. Contrary to my colleagues and the Trial
Examiner, I have no difficulty concluding that
Respondent was responsible for the conduct in which
its pickets engaged and the record supports such a
conclusion.
Thus, Respondent has admitted that it authorized
the strike against Safeway and that it established these
picket lines at places where it was aware that other
employers did business. Additionally, in Washington,
the Respondent was in close touch with its picket
lines-so close in fact that its union hall was just
across the street and two doors down from the
terminal where the pickets were engaged in their
picket duties. Not only did the union vice chairman
with the majority that allegations of violations of Section 8(b)(i)(B) should
be dismissed along with other Section 8(b)(4XiXB) allegations purported to
have occurred at the Philadelphia terminal in early April
d Van Atta, Capitol's vice president, testified that picket King employed
the phrase "to keep Capitol out" Besides McGuire and Van Atta, other
executives and employees of Capitol were present Capitol, of course, was
not on strike
187 NLRB No. 61
UNITED TRANSPORTATION UNION 407
visit the picket line daily, but individuals in charge of
the union hall visited the picket line hourly. The union
officials scheduled pickets for picket duty, the pickets
were paid to picket by the Respondent, and the
pickets were wearing authorized picket signs. Appar-
ently, the situation was the same at Philadelphia,
except that the Respondent's strike headquarters were
in a restaurant near the terminal, and picket captains
were on the picket line at times. Furthermore, the
record establishes that buses were blocked in Phila-
delphia on enough occasions that it became necessary
to have a labor policeman constantly stationed at that
terminal. Inasmuch as the unlawful activity did recur,
it is reasonable to infer that the Union would have to
have had some knowledge of the activity on its picket
line there.
All of the above factors lead me to conclude, as my
colleagues did, in adopting the Trial Examiner's
Decision in Pellitteri Trucking, 4 that "a union which
calls a strike and authorizes picketing must retain
control over the pickets in whatever manner it deems
necessary, in order to insure that they do not act
improperly. If a union is unwilling, or unable, to take
the necessary steps to control its pickets, it must then
bear the responsibility for their misconduct." This is
especially true in situations where neutrals are
involved and innocent persons become the victims of
the union's unlawful conduct.5
In finding these incidents unlawful, I conclude that
an object of the Union's conduct in this case was an
object prohibited by Section 8(b)(4)(n)(B) of the Act,
i.e., forcing or requiring Capitol to cease doing
business with Safeway. Illustrated by the words and
actions of the pickets themselves, the object was
obviously "to keep Capitol out." The venom of the
pickets' verbal attack on Van Atta, and threatening
Capitol's president, is particularly noteworthy since
Van Atta was the Capitol official driving buses
through Respondent's picket lines, as he had every
right to do. Blocking the entry of the buses at the
Philadelphia terminal is an obvious example of the
Union's object-to keep Capitol from doing business
with Safeway.
Nor can Respondent take legal refuge in its
alternative position that Capitol and Safeway were
allies, and that therefore the actions of the pickets
would not be violations of Section 8(b)(4) since those
actions occurred in the course of picketing which was
in the nature of a primary dispute. Such a contention
is without merit since the facts establish that Capitol
and Safeway are separate independent companies
with no common ownership or managerial control.6
When Safeway employees struck, Capitol simply
made alternate arrangements in order to carry on its
business,' and those alternate arrangements did not
include Capitol's employees performing work which,
but for the dispute, would customarily be performed
by the employees of Safeway. Furthermore, even had
Capitol continued its lease arrangement with Safe-
way, an ally relationship would not have been created
since such a relationship is not created simply by
continuing a prestrike business arrangement.8
In view of the five incidents found to have occurred
and discussed previously, any argument that such
conduct was de minimis is clearly without merit.
Respondent, nevertheless, claims that since only a few
incidents of unlawful conduct took place and since
the strike has long ago been settled, there is no reason
to issue an order. However, it seems clear that the
pickets' conduct, in each instance, was a violation and
deserving of a cease-and-desist order. Since Section
10(c) requires such an order when a violation has
occurred, I would issue such an order here.9
4 Drivers, Salesmen , Warehousemen , Cannery, Local 695, IBT, and its
agents Donald Eaton and Eugene Machkovitz (Tony Pellitteri Trucking
Service Inc), 174 NLRB No. 115
5 This view of union responsibility for results of actions which it sets in
motion would appear to be supported by the plain words of Section 2(13)
of the Act, which states- " In determining whether any person is acting as
an 'agent' of another person so as to make such other person responsible
for his acts, the question of whether the specific acts performed were
actually authorized or subsequently ratified shall not be controlling."
6 See Seymour Transfer, Inc, 176 NLRB No 169
r Compare, N LR.B v Business Machine and Office Appliance
Mechanics Conference Board Local 459, International Union of Electrical
Radio and Machine Workers, CIO (Royal Typewriter Co), 228 F.2d 553
(C.A 2), setting aside 1 I I NLRB 317, cert denied 351 US 962, and
Patton Warehouse, 140 NLRB 1474, 1483, enfd . in part 334 F.2d 539,
546-547 (C A.D C )
8 Friden, Inc, 134 NLRB 598, 607-608
9 Auto Workers v N L.R B, 427 F 2d 1330 (C A 6), remaining Omni
Spectra, Inc, 176 NLRB No 24; International Woodworkers Local 3-10 v
NLRB, 380 F 2d 626 (C.A.D C)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On a charge filed June 18,
1969, and thereafter amended on July 10, 1969, by Capitol
Bus Company, hereinafter called Capitol, against United
Transportation Union, Local 1023, AFL-CIO, hereinafter
called Respondent, the General Counsel, by the Regional
Director for Region 5 (Baltimore , Maryland), issued a
complaint on July 17, 1969, alleging that Respondent
violated Section 8(b)(4)(i) and (ii)(B) of the National Labor
Relations Act, as amended, by various acts and conduct
during a strike by Respondent against Safeway Trails, Inc.,
herein called Safeway. By its duly filed answer Respondent
admitted various allegations in the complaint but denied
the commission of any unfair labor practices and
affirmatively alleged that Capitol was and is an ally of
Safeway and has performed work that but for the strike
would have been performed by Safeway's sinking employ-
ees.
On the issues thus joined a hearing was held before me at
Washington, D.C., on September 30, 1969, and on October
30, 1969. At the hearing the General Counsel was permitted
to amend the complaint in various particulars and
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's denial of the allegations added thereby was
noted on the record. All parties were represented and were
afforded full opportunity to participate and examine
witnesses and to introduce relevant evidence. Following the
hearing briefs were received from each of the parties. Upon
the entire record in this proceeding and in contemplation of
the excellent briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
It is alleged and admitted that Capitol is a Pennsylvania
corporation engaged in providing interstate and intrastate
bus transportation for the public in the area between
Elmira, New York, and Washington, D.C.; Safeway is a
corporation engaged in providing interstate and intrastate
bus transportation for the public between Washington,
D.C., and New York, New York, and intermediate points.
Safeway also owns and operates the Trailways bus
terminals in Baltimore, Maryland, and Philadelphia,
Pennsylvania. Trailways Terminal of Washington, D.C.,
Inc., herein called Terminal, is a corporation engaged in the
operation of the Trailways bus terminal in Washington,
D.C. Capitol and Safeway each annually derives income in
excess of $50,000 from the interstate aspects of their
operations. Terminal annually derives income in excess of
$50,000 for services to bus companies whose interstate
operation meet the Board's jurisdictional standards. Both
Safeway and Terminal are subsidiaries of Continental
Trailways Inc. Capitol, Safeway, and Terminal are each of
them engaged in commerce within the meaning of Section
2(6) of the Act and Safeway and Terminal are persons
engaged in commerce or in an industry affecting commerce
within the meaning of Section 8(b)(4) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is and at all times material herein has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Capitol and Safeway are both members of a trade
association operating under the name of The National
Trailways Bus System which consists of some 40 independ-
ent bus transportation companies operating as a group to
provide through bus service in and among the United
States. Safeway is a subsidiary of Continental Trailways
Inc., as are American Bus Lines, hereinafter called
American, and Terminal.
Safeway's drivers are represented by Respondent.
Capitol's drivers are represented by Amalgamated Transit
Union.
Commencing on April 1 t Respondent engaged in a strike
in support of a labor dispute with Safeway during the
course of which Respondent caused picketing to take place
at the terminals used by both Safeway and Capitol located
i All dates hereinafter are in the year 1969 unless otherwise specified
2 The record does not disclose why Capitol sought and obtained the
in Philadelphia, Pennsylvania, Baltimore, Maryland, and
Washington, D.C. The strike continued until August 27 and
the employees returned to work on August 28.
According to its certificate issued by the Interstate
Commerce Commission, Capitol's route of service into
Washington, D.C., is via Routes 15 and 70 through
Harrisburg, Gettysburg, and Frederick, Maryland. In order
to provide through bus service south of Washington, D.C.,
for passengers originating at Harrisburg and the various
other points serviced by Capitol north of Baltimore, Capitol
at some time in the past through its membership in the
Trailways Bus System agreed with Safeway that its
equipment could operate over Safeway's certificated route
between Baltimore, Maryland, and Washington, D.C., and
thereon to points south of Washington. This arrangement
took the form of a leasing of the equipment to Safeway. The
driver, for the period of time he operated over the Safeway
route, became Safeway's employee and Safeway assumed
responsibility for the transportation and safety of the
passengers. For this service Safeway was compensated by
Capitol at a certain price per mile plus the cost of the driver.
This arrangement enabled Capitol to serve passengers
north from Washington, D.C., either by way of Baltimore
over Safeway 's franchise or by way of Gettysburg or
Harrisburg over its own.
When the strike commenced Safeway's operation was
completely shut down. Capitol thereupon entered into an
identical agreement with American which also was a
certificated interstate motor carrier between Baltimore and
Washington. This arrangement continued until July 3 at
which time Capitol received temporary authority from the
Interstate Commerce Commission to operate between
Baltimore and Washington over the Baltimore-Washington
Expressway. This authorization, however, was restricted
against local service between Baltimore and Washington;
that is to say, Capitol could not carry passengers that
originated either in Baltimore or Washington destined for
either Washington or Baltimore, respectively.2
When the strike was concluded the operations were
resumed as they had taken place prior to the strike. Capitol
again leased equipment to Safeway for the run between
Washington and Baltimore in providing through service
north of Baltimore and south of Washington.
Capitol operated out of Trailways bus terminals located
in Washington , Baltimore , and Philadelphia. The Baltimore
and Philadelphia terminals were owned by Safeway; the
Washington terminal is operated by another subsidiary of
Continental Trailways. In each of the three terminals
Capitol is a tenant under agreements which provided for
the sale of tickets for the Capitol lines and the docking and
dispatching of Capitol's equipment. The Capitol drivers did
not cross the picket lines at any of the terminals. They
would park their buses on adjoining public streets and
alleys where passengers were loaded and unloaded except
when supervisors drove their buses into and out of the
terminals. This took place in Washington and Philadelphia.
During the course of the picketing four incidents took place
which the General Counsel contends violated Section
8(b)(4xi) and (ii)(B) of the Act.
temporary operating authority from the Interstate Commerce Commission
rather than continuing to operate on American 's franchise and certificate
UNITED TRANSPORTATION UNION
The Alleged Violations
The strike commenced on April 1, 1969 Capitol drivers
did not cross the picket lines at any of the terminals About
2 weeks later at the Philadelphia terminal, Capitol began to
bring its buses across the picket line into the terminal, using
supervisors to drive them Safeway operated the Philadel-
phia terminal Its supervisor, John Wirth, testified that
when supervisors began to bung equipment into the
terminal , pickets, including five whom he named, accosted
the Capitol drivers who turned their buses over to
supervision , warning them not to go into the terminal, nor
to use the terminal telephone which drivers ordinarily used
to report their arrival, nor use the terminal restaurant
According to Wirth's testimony similar instructions were
given the drivers from other bus lines about the same time
Two of the pickets who were identified were Richard Dole
and Edward Seng
Dole and Seng were both called as witnesses by
Respondent They both denied making any of the
statements attributed to them by Wirth Both testified that
they had no occasion for making such statements because
the Capitol drivers uniformly honored Respondent's picket
line, no further action was called for on their part Both
admitted talking to Capitol drivers but only to exchange
pleasantr.es and greetings Dole testified that the only
occasion he had to talk to anyone from Capitol with regard
to drivers crossing the line was a conversation with Capitol
Vice President Van Atta who asked if it was all right for his
drivers to cross the line and use the telephone to call in their
accounts Dole testified that he answered "We cannot stop
them but if he remembered the strike they had we had seven
drivers fired for honoring one of their picket lines of
Capitol Trailways What would you want your drivers to
dog"
John Lowe, the president of the Amalagamated Transit
Union Division 1195 which is the representative of
Capitol's drivers and maintenance employees, testified that
his local had a policy that the drivers would not cross picket
lines and that he had no knowledge of any member crossing
the picket line in the instant situation Lowe on cross-
examination testified that although in a discussion with
Attorney Ortman he had mentioned a threat of bodily harm
if the operators crossed the picket line, he had no
knowledge of anyone ever having been threatened He
explained his mention simply on common knowledge that
bodily harm has been inflicted upon people crossing picket
lines
Wirth's story in its original form appears incredible to
me He testified in effect that each of five pickets made
identical statements to each of three drivers over a period of
35 minutes Common experience suggests that this is highly
improbable On cross-examination he reiterated that each
of the five said exactly the same thing to each of the three
drivers and testified further that they spoke to the drivers as
they got out of their buses, turning them over to
supervision, and as they were walking away from the picket
line It appears incredible to me that this would have
occurred Admittedly no driver attempted to cross the
picket line at anytime If because of the fact supervision
had started driving buses across the picket line at this time
there was a need in the mind of Respondent's pickets to
409
inform the arriving drivers that the situation had not
changed with regards to their crossing the picket line, it
does not seem probable that this information would have
had to be reiterated to the already cooperative driver five
times The General Counsel argues that "no mortal, when
pressed can accurately give a precise verbatim recitation of
what five men said to three men in a span of 30 minutes
But that is not to say that a credible account of essential
elements cannot be given " He is quite right but the point is
that a credible account was not given and I cannot assume
that what Wirth meant to testify was anything different
from what he did testify Accordingly I cannot credit his
testimony The General Counsel further points out that
Dole and Seng were "not models of credibility" and
criticizes Seng's testimony that Respondent at no time gave
any instructions to the pickets other than to carry the picket
signs and march around the terminal I agree that this too
sounds improbable But it does nothing to enhance the
credibility of Wirth General Counsel's burden is to
establish the fact and in order to do this he has to establish
the credibility of his own witness This he has not done Of
course I can infer that one or more of the pickets said
something similar to Wirth's testimony, but the inference is
equally available that none of them did In the absence of a
compelling reason to do so I decline to draw an inference of
illegal conduct from Wirth's incredible testimony Accord-
ingly I find that the General Counsel has not sustained his
burden of proof with regard to this incident and I shall
recommend that the complaint be dismissed insofar as it is
alleged to be violative
On the evening of June 13 a bus owned by Capitol was
loaded on the street adjoining the Washington terminal
When the bus was filled the driver advised additional
prospective passengers that they would have to stand if they
wanted to take that coach As additional passengers
commenced boarding the bus two pickets started a
conversation in loud tones intimating that it was unsafe to
permit passengers to stand on the bus One of the drivers
stated "Capitol is so hungry for money, it will take chances
with people 's lives " The last person to board the bus was
Richard J Maguire, the president of Capitol Bus Company
As the pickets continued their remarks Maguire came to the
door of the bus and identified himself and one of the
pickets said "Don't you care about the chances you are
taking with people's lives9" Maguire rejoined "If necessary
I'm going to get an injunction to have you stop annoying
our customers and intimidating our employees with these
remarks " One of the pickets answered "Go ahead and get
an injunction We don't care If necessary we will put 50
people on the sidewalk without picket signs to take care of
you"
The General Counsel contends that the above incident
constitutes verbal harassment of the driver, the passengers,
and members of Capitol management , and characterizes
the picket's statements as "threat to keep Capitol out of the
terminal " The bus in question was on route to Harrisburg,
Pennsylvania, by way of Baltimore At this point in time the
bus was operating under the authority of American Bus
Lines and accordingly under the lease arrangement entered
into by Capitol the bus was under lease to American and
the driver was an employee of American There is no
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegation in the complaint regarding either appeals to
employees of American or threats to representatives of
American . Further, I see nothing in the quoted language
that constitutes inducement of employees of any employer.
The only conceivable threat was that of striker King to put
50 people on the sidewalk without picket signs in the event
Maguire got an injunction . But then I don't see anything in
the testimony that would have warranted an injunction in
the first place.
Even assuming that something in this incident might
constitute a violation directed at American , on the record
before me I could only conclude that American by
providing its franchise and authority to Capitol to continue
the Washington -Baltimore leg of its through trip in place of
Safeway allied itself to Safeway to such an extent that
activity directed against it or its employees would be
primary rather than secondary . I shall recommend that this
allegation be dismissed.
On June 13 after President Maguire had left Washington,
a picket named Hawkins approached Russell Van Atta,
vice president of Capitol , and asked him if Capitol's
president was in Washington Van Atta replied that
Maguire had left whereupon Hawkins said , "Well you tell
him I am going to punch him in the nose , that I'm captain
of this picket line." A few days later Hawkins identified
Van Atta as a person who had driven two buses across the
picket line on a previous occasion and challenged him to
come out of the terminal and offered to "mop up the
sidewalk" with him . Hawkins also cursed at Van Atta with
vulgar and obscene terms. A few days later Hawkins came
to Van Atta and apologized for the "conversation" of June
16.
It appears that on at least one of these occasions that Van
Atta drove buses out of the Washington terminal the bus
was under the control of Capitol heading north via
Gettysburg on Capitol's authority and franchise . Inasmuch
as it was clearly Van Atta's driving activities that set
Hawkins off, it would appear that the physical threats
directed to him had as their purpose causing Capitol to
cease operating their buses out of the Washington, D C.,
terminal , and are therefore violative under the terms of
Section 8(b)(4)(i)(B) of the Act . Whether in view of the fact
that Hawkins shortly thereafter apologized to Van Atta and
no activity of this nature was ever repeated , at least as far as
the record reveals , an order is warranted, remains to be
considered in the light of all the other activities alleged.
On August 21 at the Philadelphia terminal on three
occasions Capitol buses being driven across the picket line
by Frank Birmingham , assistant operations manager of
Capitol , and a supervisor , were held up by pickets standing
on the sidewalk or walking in front of the bus at the point at
which it would have had to cross the sidewalk to enter the
terminal . On each occasion a police officer was called who
ordered the pickets away from the front of the bus and the
bus moved into the terminal . Each bus was held up from 5
to 8 minutes according to the estimate of Birmingham and
Wirth , who also testified about the incident . It is undenied
that these were not the only occasions in which buses were
blocked by the pickets but over what period of time this
occurred is not revealed by the record . At each of the three
occasions concerning which we have testimony , one of the
pickets, Mason Bradly, came to the driver 's window of the
bus and asked Birmingham to honor the picket line. In each
case Birmingham told him that he was a supervisor and it
was his job to take the bus across the line.
Keeping in mind that Capitol is the lessee of space in
Safeway's Philadelphia terminal , the interruption by
Respondent 's pickets of Capitol 's entry into the terminal is
potentially violative . As in the last preceding incident a
determination with regard to the alleged violation requires
a determination as to whether the Union is liable for the
acts of the pickets . In Hawkins ' case the General Counsel
argues that Hawkins identified himself as captain of the
picket line . This of course is not dispositive of his agency
nor indeed of the fact that he was a captain at the time or at
any time . There is no evidence corroborating this assertion
and it is a well-known rule that agency cannot be shown by
the alleged admissions of the agent . However General
Counsel also contends that, since the strike headquarters at
Washington were situated across the street from the
terminal and an official of the Union regularly visited the
strike headquarters and the picket line, the conduct of the
pickets on the line so well supervised is attributable to
Respondent . General Counsel further contends that even in
the absence of a supervised picket line the conduct of
pickets may be attributed to the Union when it conforms to
a position established by the local , citing International
Woodworkers of America (W. T Smith Lumber Co.), 116
NLRB 507, enfd . 243 F .2d 745 (C.A. 5). In the Philadelphia
picketing the record reveals that pickets were assigned on a
scheduled basis and were paid by the Union for their effort.
Business agents and picket captains were regularly on the
line.
There can be no real doubt that Respondent 's position in
this strike was that the Capitol equipment should not be
driven into the terminals . This is clear from all the
testimony in the case , that of Respondent 's witnesses as
well as General Counsel 's. But whether Respondent was
prepared to engage in secondary activity to achieve this
goal thereby supporting the assertion of agency on behalf of
the pickets is quite another matter . With regard to Hawkins'
activity in Washington nothing of the sort had ever taken
place before , nothing of the sort took place thereafter, and
Hawkins apologized for the name calling and threats in
which he indulged. There is no pattern from which it can be
assumed that the Union acquiesced in his activity. On the
contrary , the pattern would seem to reveal that the Union
did not. Similarly with regard to the Philadelphia incidents
they were apparently not repeated after the one day in
which they took place . All of the substantial evidence
reveals only that three incidents took place within the space
of some 35 minutes. The fact that such activity did not
recur raises an inference that Respondent was not prepared
to engage in such activity in support of its "hope" that
Capitol buses would not enter the Philadelphia terminal. I
conclude that I cannot infer the responsibility of Respon-
dent for the offending conduct.
In the absence of a showing that the Union was
responsible for the acts of the pickets I cannot find either
the Hawkins incident or the interference with the buses at
the Philadelphia terminal to constitute violations of the Act
by Respondent . Even if the Union were responsible,
UNITED TRANSPORTATION UNION 411
however, I would not recommend an order based upon
these two incidents.3
It does not seem to me that the conduct which I have
found to have occurred warrants an issuance of an order. I
do not agree with Respondent that the case is moot.
Clearly, although the strike is over, future strikes may occur
and the conditions which gave rise to the conduct
complained of herein are still existent. But it does seem to
me that Respondent in the face of a lengthly strike appears
quite successfully to have maintained the discipline among
the strikers necessary to keep within the law.
In the light of my findings and conclusions above I do not
deem it necessary to consider the defense put forward by
Respondent that Capitol has so allied itself with Safeway
that Respondent could interfere with its operations with
immunity. I do not reach this issue.
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Safeway and Trailways terminals are each and at all
times material herein have been persons engaged in
commerce or in an industry affecting commerce within the
meaning of Sections 2(6) and (7) and 8(b)(4) of the Act.
3. Respondent is and at all times material herein has
been a labor organization within the meaning of Section
2(5) of the Act.
4. Respondent has not by any acts or conduct alleged
and litigated herein violated Section 8(b)(4)(i) and (n)(B) of
the Act
RECOMMENDED ORDER
I recommend that the complaint be dismissed in its
entirety.
CONCLUSIONS OF LAW
1. Capitol is and at all times material herein has been
3 Of course there were really five incidents, two occasions in which three occasions in Philadelphia in which buses were stopped during a 35-
Hawkins threatened members of Capitol's management on June 13 and minute period on August 21 The strike lasted from April I until August 27