Railway Carmen, Local No. 543

RAILWAY CARMEN, LOCAL NO, 543 285 Brotherhood of Railway Carmen of the United States and Canada, Local No. 543, AFL-CIO, CLC and North American Car Corporation. Case 18-CB-964 March 11, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On November 19, 1979, Administrative Law Judge Thomas A. Ricci issued the attached Deci- sion in this proceeding.' Thereafter, Respondent filed exceptions and a supporting brief.2 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions3 of the Administrative Law Judge and I The instant case was originally consolidated for hearing with Case 18-CC-763. Pursuant to a settlement stipulation mutually entered into by the parties therein, the Board issued a Decision and Order in Case 18- CC-763 on October 25, 1979 (not reported in volumes of Board Deci- sions), in which it approved the said settlement stipulation 2 Respondent excepts to the Administrative Law Judge's denial of its motion to postpone the hearing until the unfair labor practice charges it filed against the Employer could have been investigated by the Region, and, if found meritorious, consolidated in one complaint with the charges litigated here Before the hearing, the Regional Director denied Respon- dent's motion, and, at the hearing, the General Counsel opposed the granting of a similar motion. Under Sec 102.33 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the authority to consolidate cases is vested in the General Counsel, and is a matter within his discretion. Not- withstanding the fact that the matters alleged in Respondent's charges against the Employer may have been factually related to the charges liti- gated here, and could have been consolidated in one proceeding had a complaint issued, we find there was no abuse of discretion in denying Re- spondent's motion. Thus, we affirm the Administrative Law Judge's denial of the motion. Beck Corporation, d/b/a Jessie Beck's Riverside Hotel and Casino, 231 NLRB 907 (1977). Respondent's charges were subse- quently dismissed by the Regional Director. 3 Respondent excepts only to the Administrative Law Judge's proce- dural ruling denying Respondent's motion to postpone the hearing until its unfair labor practice charges against the Employer could have been fully investigated. In the absence of exceptions to the Administrative Law Judge's substantive findings, we adopt, pro forma, the Administra- tive Law Judge's other findings and conclusions. However, we note that, while the Administrative Law Judge also found that Respondent unlaw- fully coerced "supervisors" in the presence of striking and nonstriking employees, he inadvertently designated them as employees. and neglected to include the word "supervisors" in his Conlusions of Law, recommend- ed Order, and notice to members. See Service Employees International Union, Local 254, AFL-CIO (Massachusetts Institute of Technology), 218 NLRB 1399 (1975); District 20, United Mine Workers of America (Harbert Construction Corporation), 192 NLRB 565 (1971). We shall modify the Conclusions of Law, recommended Order. and notice to members ac- cordingly. Although in his notice to members the Administrative Law Judge in- cluded broad cease-and-desist language, he inadvertently omitted a broad cease-and-desist clause in his recommended Order. We agree with the Administrative Law Judge that Respondent's egregious and widespread strike misconduct warrants issuing a broad order, and shall modify the recommended Order accordingly. See Hickmout Foods, Inc., 242 NLRB No. 177 (1979). Contrary to his majority colleagues, Chairman Fanning 248 NLRB No. 42 to adopt his recommended Order, as modified herein. AMENDED CONCIUSIONS OF LAW Based on the foregoing, the Board adopts the Administrative Law Judge's Conclusions of Law, as modified below: 1. Substitute the following for paragraph 1: "1. By threatening to inflict personal bodily injury upon employees and supervisors, by threat- ening to cause trouble, by searching the vehicles of employees and supervisors before permitting them entry to their place of work, by mass picketing plant entrances so as to physically prevent entry by employees and supervisors, by otherwise blocking entry into the plant, by carrying iron bars, nailed boards, and other weapons in front of the plant en- trances, by physically attempting to destroy the private property of employees and supervisors, and by actually damaging the automobile tires of em- ployees and supervisors, Respondent has violated, and is violating, Section 8(b)(l)(A) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Brotherhood of Railway Carmen of the United States and Canada, Local No. 53, AFL-CIO, CLC, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1: "1. Cease and desist from: "(a) Threatening to inflict personal bodily injury upon employees and supervisors, threatening to cause trouble, searching the vehicles of employees and supervisors before permitting them entry to their place of employment, mass picketing plant en- trances so as to physically prevent entry by em- ployees, otherwise blocking entry into the plant, carrying iron bars, nailed boards, and other weap- ons in front of plant entrances, physically attempt- ing to destroy the private property of employees and supervisors, or actually damaging the auto- mobile tires of employees and supervisors. In any other manner restraining or coercing employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. finds a broad remedial order inappropriate here, and would modify the recommended Order to use the narrow injunctive language, "in any like or related manner" - ^ - 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act and has ordered us to post this notice. We intend to abide by the following: WE WILL NOT threaten to inflict personal bodily injury upon employees or supervisors. WE WILL NOT threaten to cause trouble when people try to cross a picket line. WE WILL NOT search the vehicles of em- ployees or supervisors before permitting them entry to their place of employment. WE WILL NOT mass picket plant entrances so as to physically prevent entry by employees or supervisors. WE WILL NOT otherwise block entry into any plant. WE WILL NOT carry iron bars, nailed boards and other weapons in front of plant entrances while picketing. WE WILL NOT physically attempt to destroy the private property of employees or supervi- sors. WE WILL NOT damage the automobile tires of employees or supervisors. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. BROTHERHOOD OF RAILWAY CARMEN OF THE UNITED STATES AND CANADA, LOCAL No. 53, AFL- CIO, CLC DECISION STATEMENT OF THE CASE THOMAS A. RIccI, Administrative Law Judge: A hear- ing in this proceeding was held in Brainerd, Minnesota, on July 18 and 19, 1979, upon complaint of the General Counsel of the National Labor Relations Board against Brotherhood of Railway Carmen of the United States and Canada, Local No. 53, AFL-CIO, CLC, herein called the Respondent or the Union. The complaint issued on June 14, 1979, upon a charge filed on April 16, 1979, by North American Car Corporation, herein called the Company or the Charging Party. The issue to be de- cided is whether the Respondent violated Section 8(b)(1)(A) of the National Labor Relations Act, as amended, by the coercive conduct of its agents on a picket line. After the close of the hearing, briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY North American Car Corporation is a Delaware cor- poration with one of its places of business in Staples, Minnesota, where it is engaged in the repair of railroad cars and related products. A reasonable projection of the Company's anticipated operations in this location, where it started to do business in November 1978, is that in the normal conduct of its business there it will annually sell and ship products and goods valued in excess of $50,000 directly to out-of-state locations. On a similar basis the normal expectancy is that it will also purchase and re- ceive at this one location goods and materials valued in excess of $50,000 annually from out-of-state sources. I find that this Company is engaged in commerce within the meaning of the Act. 1I. THE I.ABOR ORGANIZATION INVOLVED I find that Brotherhood of Railway Carmen of the United States and Canada, Local No. 53, AFL-CIO, CLC, is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Case in Brief On November 3, 1978, North American Car Corpora- tion, purchased the plant which a company called Transco, Inc., had long owned and operated. Local 53, the Respondent, for some years had represented the em- ployees of Transco under collective-bargaining agree- ments. The last contract expired on December 11, 1978, and the Union negotiated with the succcessor employer, North America Car Corporation, towards a renewal agreement. There was no results, and on December 13, 1978, the Union called the employees on strike. Of the approximately 40 employees then at work, all but I walked off the job. Picketing started that day and was still going on at the time of the hearing in this case 7 months later. During the first 4 months of the strike, not one rank-and-file employee worked in the place; what- ever work was performed was done by plant supervisors or supervisors brought by the Company from other of its locations. At the beginning of April the Company started to hire replacements, and by July 1979 there were about 40 employees, all new hires. During the picketing, the Union, through its agents, was responsible for a great number of threats of personal injury, acts of physical violence, mass picketing, obstruc- tion of entrances, etc., all detailed in the complaint and called multiple violations of Section 8(b)(1)(A) of the Act. This is all that this case is about, and the only remedy sought is an order restraining the Union from repetition of such conduct plus posting of the usual no- tices. RAILWAY CARMEN, LOCAL NO. 543 287 A number of witnesses testified for the General Coun- sel-management agents and employees who crossed, or tried to cross, the picket line. They told repetitive stories of one incident after another, many of exactly the same kind. The General COunsel also called Frank Haisman, the chairman of the Local Union, elected picket line cap- tain, and a conceded agent of the Respondent, and ques- tioned him on subjects other than picket line activity. On cross-examination, Haisman denied, in conclusionary terms, having threatened anyone, or in any way having misbehaved on the picket line. He did not address him- self to any of the many incidents in which, according to the prosecution's witnesses, he personally participated. The Respondent called no witnesses in defense. Apart from the general denials by the chairman of the Local Union, what is really no more than a restatement of the Respondent's answer to the complaint, all of the direct testimony stands uncontradicted. Many strikers, pickets, and union agents were identified by name as direct actors in the strike misconduct of which the wit- nesses spoke. Unfair labor practices under this section of the statute are committed by "a labor organization or its agents." The parties stipulated on the record that the fol- lowing persons were in fact agents of the Respondent at the time of the events: Frank Haisman, local chairman; Archie Starrett, local union president; and Kenneth Dukowitz, vice president. There is dispute as to whether two other persons-Nelson and Gaugert, also striking employees and members of the Union-were agents of the Respondent so that the Union can be held account- able for actions in which they participated. In addition, the General Counsel contends that 10 other persons, all called "pickets" in the complaint and individually named, were agents of the Union within the meaning of the Act. The Union disputes this broadside assertion. I have no reason for discrediting any of the witnesses who testified in support of the complaint. Their testimo- ny was direct, consistent, plausible, and, of course, abso- lutely uncontradicted-despite the fact one of the princi- pal activists on behalf of the Union, as to whose agency status there is no dispute, was present throughout the hearing and chose not to testify. In a case of this kind, no useful purpose would be served by restating in detail every jot and tittle of the testimony, else this Decision would be virtually as long as the over 200 pages of transcript. Many of the inci- dents, albeit separate acts violative of statute, are of the same kind. The conclusionary findings of illegality, the cease-and-desist order, and the notice to be posted would be the same in any event. With three of the direct par- ticipants being conceded agents of the Respondents, it would be pointless to burden this Decision with extended discussion acting on the orders, or with the implied ap- proval, of union agents. The unfair labor practices com- mitted are so clear, the appropriate order to be issued so warranted, and the possible contempt conduct that might later occur so unquestioned that it is hardly the case for straining to establish new principles of law. In her post-hearing brief, the General Counsel makes a number of conclusionary statements aimed at holding the Union responsible for participation in the strike miscon- duct by a number of persons on the grounds of agency. Some of these arguments I am not sure I understand. At one point she says pickets need not be identified individ- ually-by name, I suppose-so long as there is proof that misconduct was in fact committed by pickets. There also appears the flat statement that "all picketing employees are agents of the Respondent." At the hearing the Gen- eral Counsel proved that the Union paid strike benefits to its members. From this one fact she then argues that for such reason alone the members became agents of the Respondent under the statute, so that whatever they did on the picket line is chargeable to their Union. It is not at all clear that the case precedent cited in support of these broad legal contentions really serves that purpose. The Respondent did appoint picket line captains, and these included not only the three conceded agents listed above, but also Elliott Yeske. Picket line captains have clearly been held to be agents of the picketing union. Local 3, International Brotherhood of Electrical Workers, AFL-CIO (New Power Wire and Electric Corp., et al.), 144 NLRB 1089 (1963). And it is also true that when all the striking employees, members or not members of the union, engage in repeated violence and mass picketing in the presence of admitted union agents, there is implied approval of their misconduct by the officials, and there- fore even the acts of simple strikers in those circum- stances are deemed unfair labor practices by their union. Beyond this, the finer points of law were not litigated by the parties, and this is not the case for establishing precedent. B. Violations of Section 8(b)(1)(A) 1. Only a day or so after the strike started, early in December, Lynn Peterson, driving a fuel truck for an in- dependent supplier, was stopped by two pickets as he ap- proached the plant to make a delivery. They told him they would probably slash his tires if he tried to enter; he left. He later did make the delivery with a police escort. Shortly thereafter, the same day, a group of strik- ers appeared at Peterson's home station, asked him why he had made the delivery, and then told him "they were going to go do some head banging." In this group of strikers who went to threaten Peterson were Haisman and Dukowitz, two of the admitted union agents. I find that, by the conduct of these two men in the common threat to inflict bodily injury upon Peterson, the Respondent violated Section 8(b)(1)(A) of the Act. One of the two strikers who stopped Peterson when he first arrived at the plant was Richard Cloakey, who was the Union's sergeant at arms. Whether the later appear- ance of the two real union agents at Peterson's work place, where they in effect reaffirmed the earlier threat voiced by ordinary pickets, could be called retroactive encouragement of misconduct by plain strikers is a close question of law. Also, whether, under Board law, a ser- geant at arms, who, so far as this record shows, does no more than look over the Union's meeting hall, must be deemed a union agent under the intendment of Section 8(b)(1)(A) of the Act is a much closer question. These are the kinds of issues-minor and not really important to the decision in this case-that I do not think need be decided here. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. On February 2, 1979, Robert Archer, a company car inspector, arrived at the plant and was stopped by some pickets-Haisman again present-who told him to turn back "because there might be trouble this morning." Starrett, also present, asked what did he have in his truck. When Archer said, "Nothing," Starrett insisted on seeing for himself. Because he had no choice, Archer let him look. After a 5-minute delay, and after Starrett had searched his truck and found nothing to be brought into the plant, Archer was permitted to enter. I find that by Haisman's threat that there would be trouble if the employees insisted on entering the plant to work, and by Starrett's conduct in delaying Archer's en- trance and searching his vehicle, the Respondent com- mitted further unfair labor practices. 3. When Plant Manager Kenneth Latham arrived at the plant at 7 a.m. on February 13, he was confronted by no less than about 25 pickets blocking entrances to the parking lot, many of them carrying ax handles, iron bars, signs, and boards with large nails protruding from them. They blocked the entrance so that he was unable to pass through. It took a police officer to disperse the crowd so he could come in. Among the pickets were all three of the conceded union agents-Haisman, Dukowitz, and Starrett. I find that by the activities of all these people so engaged together with the union leaders in the mass picketing, and by the implicit threat of physical violence shown in their carrying damaging tools in their hands, the Respondent violated Section 8(b)(1)(A). District 20, United Mine Workers of America (Harbert Construction Corporation), 192 NLRB 565 (1971). 4. Shortly after this, that same morning, three cars ar- rived carrying supervisory personnel and company attor- neys. And their entrance also was blocked by upwards of 25 pickets. The same union agents were participants in this crowd. They formed a line across the entrance road, and then seized the cars and rocked them first backwards and forwards and then from side to side in what was an obvious attempt to overturn them. The cars were de- tained for about 45 minutes before the police again had to be called; this time the cars turned around and left the premises. Again, I find that by the mass picketing, by the blocking of the entrances, by the physical violence in at- tempting to destroy the automobiles and property of ar- riving employees or supervisors, the Respondent violated Section 8(b)(1)(A). 5. A like incident was described as happening on Feb- ruary 21. Now Plant Foreman Holtzum was prevented from entering the plant by about 20 to 25 pickets who blocked him off. And again the pickets were carrying boards with 10-penny nails protruding, pick handles, and iron bars. One of the pickets destroyed a tire on the car of the supervisor by placing his nailed board under the wheel. Among the pickets so carrying on again was Haisman. See Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local No. 695., etc. (Yellow Cab & Transfer Co.), 221 NLRB 647 (1975). 6. The story goes on and on. The next day again a picket slashed a tire on Supervisor Latham's car and, with a knife in his hands, asked, "Do you want me to cut the rest of them?" Among the named pickets, again car- rying destructive tools, were all three of the already named union officers. I find that by all of this conduct in blocking entrances, destroying property, threatening to inflict property and bodily injury upon arriving people, and actually damaging their automobiles, the Union vio- lated Section 8(b)(l)(A). 7. Shortly thereafter, behind Latham arrived again Su- pervisor Holtzman. The pickets blocked his entrance, too, and tried to tip his car over. When one of the pick- ets hit his tire with a knife, the crowd cheered. Another picket kicked in the side door of the supervisor's car, and someone else punched in a plastic window of the car. The police finally helped Holtzman into the plant. All this occurred in the presence, and with the participation, of the same union officials. I make the same findings of illegality already listed a number of times above. 8. The threats and violence continued into April, when the Company started hiring applicants as replacements for the strikers. Gerald Carpenter started work on April 9. As he drove home at the end of his first day he was followed by a number of pickets in cars. At his home they came from their cars and gathered around him in front of the door. Among other things the two union agents-Starrett and Dukowitz-told him: "If you go back to work possibly you could get beat up and you could get a busted arm or a busted leg so you couldn't work anyway." Carpenter never again dared go back to the place. I find that by these threats of personal vio- lence spoken by the two union agents to the employee the Respondent violated Section 8(b)(1)(A). No one was immune from the misconduct. On May 4 a group of pickets went to a restaurant to talk to some security guards working for an employer whose contract provided protection services to the Company at its struck premises. Among other things Starrett, the union president, told security guard Belanger, in the presence of other guards, "to get out of town because they were going to have 200 to 300 motor cycle riders, called the Grim Reapers, come to town and were going to get the scabs and the building." When Belanger went to his car outside he found all four tires flattened. I find that by Starrett's threat to that employee, albeit working for an- other company, and by the damage to his car, of necessi- ty caused by Starrett's associates, the Respondent again committed further unfair labor practices. As stated above, other unfair labor practices, no differ- ent from those described above, were committed by agents of the Respondent, or by ordinary pickets in their presence, and therefore with their approval. No purpose will be served by detailing them all here. See America Federation of Musicians, Local 76, AFL-CIO (Jimmy Wakely Show), 202 NLRB 620 (1973). IV. THE EFFECT OF THE UNFAIR LABOR PRACICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of North America Car Corporation described in section I, above, have a close, intimate, and substantial relation- ship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. ---------- RAILWAY CARMEN, LOCAL NO. 543 289 CONCLUSIONS OF LAW 1. By threatening to inflict personal bodily injury upon employees, by threatening to cause trouble, by searching the vehicles of employees before permitting them to enter their place to work, by mass picketing plant en- trances so as to physically prevent entry by employees, by otherwise blocking entry into the plant, by carrying iron bars, nailed boards, and other weapons in front of the plant entrances, by physically attempting to destroy the private property of employees, and by actually dam- aging the automobile tires of employees, the Respondent has violated and is violating Section 8(b)(1)(A) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER ' The Respondent, Brotherhood of Railway Carmen of the United States and Canada, Local No. 53, AFL-CIO, CLC, Staples, Minnesota, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from threatening to inflict personal bodily injury upon employees, threatening to cause trou- ble, searching the vehicles of employees before permit- ting them entry to their place of employment, mass pick- In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. eting plant entrances so as to physically prevent entry by employees, otherwise blocking entry into the plants, car- rying iron bars, nailed boards, and other weapons in front of plant entrances, physically attempting to destroy private property of employees, or damaging the auto- mobile tires of employees for the purpose of restraining them in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix. " 2 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by its authorized rep- resentative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are custom- arily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (b) Deliver to the Regional Director for Region 18 signed copies of said notices in sufficient numbers for posting by North American Car Corporation, the Em- ployer being willing, at all locations inside its place of business where notices to employees are customarily posted. (c) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order (if the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"