United Furniture Workers of America

In the Matter Of UNITED FURNITURE WORKERS OF AMERICA, CIO; UNITED FURNITURE WORKERS OF AMERICA, LOCAL 472, CIO and COLONIAL HARDWOOD FLOORING COMPANY, INC. Case No. 5-CB-4.-Decided June 28, 1949 DECISION AND ORDER On May 14, 1948, Trial Examiner William F. Scharnikow issued his Intermediate 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 Intermediate Report attached hereto. Thereafter, the Re- spondents, the Company, and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Oral argument was heard by the Board on May 5, 1949. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner, with the modifications and additions noted below. 1. Unlike the Trial Examiner, we find that neither the Local nor the International is responsible for the work stoppage before October 15, 1947, or for any of the incidents, even though otherwise coercive, that occurred during that period. On the contrary, Tyson, the Inter- national representative , and Divelbiss, the Local president, specifically expressed their disapproval of any strike activity before that date. When, despite their advice, the employees of the Company voted on October 3 not to return to work , Tyson and Divelbiss advised the men at least to avoid any appearance of a strike , and not to picket until October 15. But neither Tyson nor Divelbiss thereby author- ized the stoppage, nor did the Local itself, as distinguished from the segment of the Local at the Company's plant. Nor is the fact that 84 N. L R . B, No. 69 563 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefits were paid to the shop membership on October 12 sufficient to show approval of the work stoppage at that time by either the Local or the International.' Hence, no restraint or coercion based on action of strikers during this period can be imputed to the International or the Local. 2. We find, as did the Trial Examiner, that Tyson was an agent of the Local and the International for the purpose of directing the strike on and after October 15, 1947. However, we do not agree with the Trial Examiner that Tyson's October 15 statement to,strikers to "go out and get" non-strikers was merely a suggestion to the strikers that they attempt to persuade non-strikers. On the contrary, the clear import of this language, in our opinion, was to direct the strikers to do everything in their power, not stopping short of violence if necessary, to enlist employees in the common cause.' Thereafter, the strikers did engage in restraint and coercion including physical vio- lence •in their, efforts to keep non-strikers out' of the plant. In some instances this conduct was with the approval and even assistance of Tyson, which shows unmistakably what : he meant' when he told strikers to "get" non-strikers. Thus, as the 'Trial Examiner found, Tyson and wnumber of other.pickets, on October 15, 1947, walked in front of non`-striker McKemy's car as he was about to enter the plant. Tyson, said; `'`Can't you see.there' is a strike here?" McKemy waited' for 3 or 4 minutes while the pickets. continued to walk in front of him, thereby:blocking' his; ingress,: and 'then backed his -car off the sidewalk .and lefty At'about, the same time, four other non-strikers were similarly delayed by pickets, including Tyson, patrolling in front of their,cars, and two of the non-strikers, Newcomer and Bob Miller, were, struck by pickets. Also, at'the same time, non-striker Jacobs was, threatened - with physical 'violence by striker Robison, as, Jacobs was waiting for a ride to work at some distance from the plant. nnf, '. ' See Matter of Perry Norvell Company/, SO N L. R. B. 225 ; United Mine Workers v- Coronado Coal Company,12j99U) S. 344 ( 1922 ). ' ' • ' ' 2.Cha4rman Herzog, and Member; Houston do not agree that Tyson's statement was neces- sarily an instruction or direction to the strikers to engage in restraint and coercion. Standing alone, Tyson 's statement at most gives rise to a mere suspicion that it was intended to incite violence, However, there is no evidence in the record , in their opinion, to warrant such a finding. On the contrary , as the Trial Examiner found, at least one visit was made by' Tyson to the'home' of anon-striker in oider 'to persuade liim to join the strikers. Fur- thermore, the. incidents of, violence that, their colleagues rely upon , to interpret Tyson's statement ',were sporadic, and occurred during a more than 4-month strike Chairman Herzog and . Membei 'Houston 'do not agree that these instances of restraint and coercion forma sufficient ,basis ;,for-resolving Tyson's ambiguous statement against him and the Unions It could as persuasively , be said, in their opinion , that the absence of more than a- few 'instances ' of violence ' during this long strike allays ' any suspicion that Tyson's' statement Was intended, to incite violence. ' a Chairman Herzog and Member Houston ivould not find this particulan incident to con- stitute restraint' and coeicion as; in their opinion , the evidence in the record fails to show that it was anything more than peaceful persuasion. 6 UNITED FURNITURE WORKERS OF AMERICA, CIO 565 A week later Jacobs was assaulted by strikers away from the plant. About a month later, non-striker Thurman West was assaulted by striker Carr, at the plant entrance. A few days afterward, three strikers, including shop chairman Melvin Miller and a shop commit- teeman, threw a bottle through the window of West's home. At about this time, striker Palmer assaulted non-striker Roy Weaver at the plant entrance and in the presence of Tyson and shop chairman Mel- vin Miller, and threw a bottle through the truck door. And in the following month non-striker Gilbert Miller was assaulted by strikers Kean, Carr, and Charles Henry, away from the plant. In View of Tyson's October 15 direction to the strikers, we find the International and the Local liable for all these acts of restraint and coercion, even though some occurred away from the picket line and out of the presence of Tyson.4 3. Like the Trial Examiner, we deny the request made by the Com- pany ' for an order indemnifying employees for any loss of earnings they may have suffered because of the Respondents' unfair labor prac- tices.5 We believe that we are without power to take such a step in the absence of an express mandate from Congress. The amended Act pro- vides that back pay may be required of a labor organization only where it is responsible for unlawful discrimination against an employee:e An award of back pay here would be in the nature of damages to the employee for an interference with his right of ingress to the plant, as contrasted with compensation to him for losses in pay suffered by him because of severance of or interference with the tenure or terms of the '+ As they disagree with their colleagues as to the meaning of Tyson's October 15 state- ment, Chairman Herzog and Member Houston do not impute blanket liability to the International or the Local for all the acts of restraint and coercion on and after October 15. Specifically , Chairman Herzog and Member Houston would , like their colleagues, find the Local and the International responsible for the three incidents of physical violence at the plant entrance , but not for the remaining incidents , which involved threats by mere strikers or shop committeemen away from the plant. Liability for the three incidents, in their opinion , exists either because Tyson was present or because the incident took place at the plant entrance during formal picketing and followed the pattern set earlier when Tyson was present. Chairman Herzog alone would find the Local, but not the International , responsible for the bottle-throwing incident at Thurman west's house because of the participation of the shop chairman after the strike was authorized by the Local 5 The General Counsel excepted to the Trial Examiner 's refusal to recommend such a remedy, but has since withdrawn his exception . However, the Company, which also , excepted in this respect, pressed its exception when it argued orally before the Board. 6 The relevant portion of Section 10 (c) of the Act, where the power of the Board to issue orders to prevent and remedy unfair labor practices is granted , is as follows : If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any * * * unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer or labor organization , as the case may be, responsible fo the discrimination suffered by him. 566 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD employment relationship between him and his employer in the ordi- nary case in which back pay is awarded and to which Section 10 (c) of the Act has been held for many years to refer._ The Act contains no provision authorizing the Board to require damages or back pay-of a labor organization under such circumstances.' Nor is there any legis- lative history that could impel a conclusion that such awards are au- thorized. We therefore find that the Board lacks power to grant the remedy requested by the Company in this case. 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, United Ful:ni- ture Workers of America, CIO, and United Furniture Workers of America, Local 472, CIO, and their agents, shall : 1. Cease and desist from restraining or coercing employees of Colonial Hardwood Flooring Company, Inc., Hagerstown, Maryland, in the exercise of the rights guaranteed in Section 7 of the Act, in- cluding the right to refrain from self-organization, from joining or assisting United Furniture Workers of America, CIO, or United Furniture Workers of America, Local 472, CIO, and from engaging in concerted activities for the purposes of collective bargaining. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places at the business office of the Re- spondents in Hagerstown, Maryland, where notices to members are customarily posted, copies of the notice attached hereto as an Appen- dix s Copies of the notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Local and the International, be posted immediately upon receipt thereof and maintained for a period' of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent-Unions to insure that the notices are not altered, defaced, or covered by any other material ; (b) Mail to the Regional Director for the Fifth Region signed copies of the notice for posting, the Company willing, on the bulletin boards of the Company where notices to employees are customarily posted, where such notices shall be maintained for a period of sixty ' See Matter of National Maritime Union of America, 78 N L. R. B 971 , where the Board similarly held that it had no power to require damages of a labor organization responsible for unfair labor practices resulting in injury to certain employers 9 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." UNITED FURNITURE WORKERS OF AMERICA, cio 567 (60) consecutive days thereafter. Copies of the notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Local and the International, be forthwith returned to the Regional Director for said posting; (c) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply herewith. APPENDIX NOTICE TO ALL PRESENT AND FORMER EMPLOYEES OF COLONIAL HARDWOOD FLOORING COMPANY, INC. 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, we hereby notify you that : WE WILL NOT restrain or coerce employees of Colonial Hard- wood Flooring Company, Inc., in the exercise of the rights guar- anteed in Section 7 of the Act, including the right to refrain from self-organization, from joining or assisting UNITED FURNITURE WORKERS OF AMERICA, CIO, OR UNITED FURNITURE WORKERS OF AMERICA, LOCAL 472, CIO, and from engaging in concerted activi- ties for the purposes of collective bargaining. UNITED FURNITURE WORKERS OF AMERICA, LOCAL 472, CIO, Labor Organization. By ------------------------------------------------------------ (Representative ) (Title) UNITED FURNITURE WORKERS OF AMERICA, CIO, Labor Organization. By ------------------------------------------------------------ (Representative ) ( Title) Dated------------------- This notice must remain posted for sixty (60) consecutive days from the date hereof, and must not be altered, defaced, or covered -by any other material. INTERMEDIATE REPORT Messrs. Joseph Lepie and H. Raymond Cluster, for the General Counsel. Messrs. C. E Rhetts and Gerard D. Reilly, of Washington, D. C., for the Company. Mr. Harry Weinstock, of New York City, for the respondent-unions. STATEMENT OF THE CASE Upon an amended charge filed on December 23, 1947, by Colonial Hardwood Flooring Company, Inc., herein called the Company, the General Counsel of the 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Board, herein called the,, General Counsel, issued a complaint dated- December, 24, 1947, against United Furniture Workers of Amer- ica, CIO, and also against, United. Furiiiture Workers of America, Local 472, CIO, herein called the respondents or the respondent-unions ; and individually referred to as the 'International and the Local, respectively. The, complaint alleged that,the respondent-unions had engaged in and were engaging in unfair labor practices affecting, commerce within the meaning of Section 8 (b) (1) (A), and Section 2 (6) and (7) of the National Labor Relations Act as amended,' herein called the Act. Copies of the amended charges, the amended complaint, a notice of hearing, and orders postponing the hearing were duly served upon the Company and the respondent-unions.' With respect to the unfair labor practices, the complaint, as amended prior to the hearing,' alleged in substance that, since on or about October 3, 1947, the respondent-unions have restrained 'and coerced and are restraining and coercing the employees of the Company in the exercise of their rights guar- anteed in Section 7 of the Act, by engaging in intimidation, threats, reprisals, force,-and violence (1).for the purpose of discouraging and preventing the em- ployees from refraining from participating in concerted activities; (2) for the purpose of preventing and restraining the employees from continuing their work at the Company ; and (3) for the purpose of coercing the employees into ceasing their' work at the Company. Upon the application of. the respondent-union's counsel and pursuant to an order issued on January, 2, 1918, by the undersigned, the Trial Examiner of the Board previously duly designated by the Chief Trial Examiner, the General Counsel served upon the respondent-unions a bill of particulars setting forth the 'names of the officers, agents, organizers,' interna- tional representatives, shop committeemen, 'and ' stewards of the' respondents who allegedly committed the unfair labor practices generally described in the complaint and also the approximate dates, places, and descriptions of such acts and conduct.' In a joint answer to the complaint, filed prior to the hearing, the respondent- unions denied generally their commission of the unfair labor practices alleged in the complaint and asserted that Section 8 (b) (1) (A) of the Act is uncon- stitutional in its present' application to the respondents since it violates the First' and Fifth, Amendments of the Constitution of the United States. Pursuant to notice, a 'hearing was held on various dates from February 18, 1948, to March 15, 1948, inclusive, at Hagerstown, Maryland, before the under- 1 1, signed, the Trial Examiner duly designated by the Chief Trial Examiner. The 1 49 Stat. 449, as amended by the Labor Management Relations Act, 1947 (Public Law 101-80th Congress, First Session). ' ' .a On January. 19, 1948, the Regional Director, pursuant r to Section •203.17 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, amended the original complaint by deleting therefrom the allegation of paragraph V1. (4) that the respondents, by engagins'in concerted activities 'in violation of the provisions of a collective bargaining agreement, have restrained and coerced and are restraining and coercing,the employees'of,,the Company in. the exercise of,their,rights+guaranteed in Section 7,of the Act. , , , . " , a The Tiial Examiner denied demands by the respondent-unions for particulars concern- ing (1) the name or names of the employee or employees upon or against whom it is claimed such 'a'ct or adts'[of'unfair labor practices] were'committed" ; and (2) a statement "in detail" of the alleged acts of unfair labor practices. However, the order of the Trial Examiner, with which the Geneial' Counsel complied as; noted in the text, required the General Counsel to provide, "a description of the alleged acts of unfair labor practices which will apprise the respondents of their essential nature." t` UNITED' FURNITURE WORKERS OF .AMERICAS CIO' 569. General Counsel; the, 'respondent-unions, and the Company - (all ' appearing by counsel), participated in the hearing and were' afforded full opportunity for be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the beginning of the hearing, the undersigned denied motions made by the respondent-unions and opposed by the General Counsel and the Counsel for the Company (1) to amend the answer of the respondent-unions by the addi- tion of specific separate defenses to the complaint,' and (2) to dismiss the com- plaint because of the,misjoinder of the Company as a party. Before taking any testimony, the undersigned granted a motion made by the respondent-unions and opposed by the General Counsel and counsel for the Company to,exclude witnesses from the hearing room until after they had testified. , During the course of the hearing, the undersigned granted one motion by the-General Counsel and denied another to amend the bill of particulars. - At the conclusion of the case presented by the General Counsel, the under- signed denied it motion made ,by the respondent-unions and opposed by,the,Gen- eral Counsel and counsel for the Company, to. dismiss the complaint„upon the grounds previously urged by the respondent-unions and also upon, the, grounds (1) that the allegations of the complaint had not been proved by a preponder- ance of the evidence and, (2) that the application of Section 8 (b) (1) (A) of the Act infringed the rights of the respondent-unions under the First and Fifth Amendments of the Constitution of the United States. At the conclusion of the hearing, the undersigned reserved decision upon a motion made by the respondent- unions to dismiss the (oinplaint upon these grounds and also upon the additional specific grounds (1) that the acts and conduct, if any, proved by the evidence were of such minor significance that they did not constitute "restraint or coer- cion" within the meaning of the Act and (2) that the evidence did not disclose that the perpetrators of such acts were the agents of either or both of the respondent-unions The respondents' argument in support of this motion, that the applicable portions of the Act are unconstitutional, is rejected upon the nor- mal, proper assumption by an administrative agency, unless and until instructed to the contrary by the courts, that Congressional Acts prescribing the agency's powers, duties, and functions are constitutional ' So far as it is based upon other grounds, the motion to dismiss the complaint is now disposed of in conformity with the considerations hereinafter set forth. At the conclusion of the hearing, the undersigned granted the unopposed motion of counsel for the General Counsel to amend the complaint to conform to the proof in such minor matters as the spelling of names and dates At the conclusion of the hearing, counsel for the respondent-unions made a brief oral argument before the undersigned; counselt, for the General Counsel and the Company stated, however, that in lieu of oral argument they would present briefs. Since the hearing' the undersigned has received briefs from the General Counsel, the ' Company; and the respondent- unions 4 The proposed amendments of the answer set' forth in substance (1) that the Company, in violation of Section 8 (a) (5) of the , Act, refused to bargain collectively, with the re- spondent-unions upon a new contract, and (2 ) that, by reason of its conduct in the afore- said respects , "the Company has been and .is guilty of unfair and unconscionable conduct towards respondents and comes before the National Labor Relations Board in this pro, ceeding with unclean hands " I f." I I I , Matter of Rite-Form Corset Company, Inc, 75 N . L. R. B 174. 570 DECISIONS OF-- NATIONAL -LABOR RELATIONS-- BOARD Upon the entire record, in the case and from his' observation of the witnesses, the undersigned makes the following: , FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Colonial Hardwood Flooring Company; Inc., is' a Maryland corporation having its'principal office and place of'business in Hagerstown, Maryland, where it is engaged in the manufacture of flooring and in general mill work. During the first 9 months of the year'1947, the Company purchased for its use raw materials consisting for the most part of oak lumber, as well as quantities of poplar, yellow; pine, and various other woods, of an approximate value of $210,000, of which approximately 65 percent or 70'percent was purchased at, and brought from, points outside the State of Maryland. During the same 9 months the value of the finished products sold by the Company was approximately $490,000, approxi- mately 55 percent of which was shipped to points outside the State of Maryland. The undersigned finds that the Company has been and is engaged in commerce, within the meaning of the Act. II., THE ORGANIZATIONS INVOLVED United Furniture Workers of America, CIO, and also United Furniture Workers of America, Local 472, CIO, are labor organizations admitting to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES A. The issues On or about September 23, 1947, the employees of the Company, who were members of the Local, voted unanimously to strike on October 15,° the expiiation date of the Company's existing contract with the respondent-unions, unless the Company executed a new contract, the terms of which were then under negotia- tion No contract was executed by October 15. On October 3, however, the employees concertedly stopped work and left the plant in protest against the Company's discharge of a fellow employee. The strike thus begun, continued without interruption beyond October 15 The complaint and the bill of partic- ulars submitted by the General Counsel in support thereof alleged, and the answer of the respondent-unions denied, that on and after October 3, various persons acting as agents of the Local and International, used threats and force for the purpose of preventing employees from continuing or resuming work at the Com- pany's plant, thereby restraining and coercing the employees in the exercise of the right, guaranteed by Section 7 of the Act, to refrain from engaging in the concerted activities of their fellow employees. The issues in the present case are (1) whether any acts of restraint or coercion were in fact committed ; and (2) if so, whether the actors were agents of the Local, the International or both of them, within the meaning of Sections 2 (13) and 8 (b) of the Act. B. The respondent-unions, their members, and the strike The International is an organization affiliated with the Congress of Industrial. Organizations; its objectives, as stated in its constitution, include the uniting 6 Unless otherwise indicated , all events to which references are made, occurred in 1947. UNITED FURNITURE" WORKERS OF AMERICA, CIO 571 of all furniture workers in the International, and the establishment and mainte- nance of agreements with employers "as to wages, hours of labor, and working conditions." The Local, as the respondents admit in their answer, is a ""sub- ordinate union [of the International] and as such is required to-and does adhere ' to and comply with the provisions and requirements of the constitution" of the International. As such'a "subordinate'union," the Local accepts in membership, and has represented in collective bargaining, employees of the Company and also employees of other employers in the Hagerstown area. Under the provisions of the International's constitution, (1) the Local's members are members'of' the International,' and pledges are required of them "to abide by;" and of the Local's officers "to uphold," both the constitution of the International and the "Bylaws" of the Local ; (2) the Local is required to adopt, and to secure the Inter- national's approval' of, bylaws consistent with the "policies" as well as the con- stitution of the International; and (3) the Local elects delegates to the biennial contentions of the International. In addition to a president, four vice-presidents, and a secretary-treasurer, the International's constitution provides for the elec- tion of a Director of Organization, as a general officer of the International and as an ex officio member both of the General Executive Board and of an Officer's Advisory Council empowered to act for the International between the semi- annual meetings of the Executive Board ; in addition, the International's consti- tution entrusts to the Director of Organization the establishment of regional offices "for the purpose of coordinating the organizational activities in the regions" ; the direction and supervision of organizers and regional represent- atives ; and the initiation of their appointment and release. The constitution or bylaws of the Local.' which were adopted by its members and approved by the International, provides for (1) annually elected officers, consisting of a president, recording secretary, financial secretary, treasurer, three trustees elected at large, and a sergeant-at-arms; and (2) an executive board, consisting of the officers (with the exception of the sergeant-at-arms) and not more than three, committeemen (one being designated as shop chairman) from each plant in which the Local represents employees. In practice consistent with the Local's constitution, the Local's Executive Board, with the committeemen vot- ing, decides "to some extent" the Local's policy, subject to ratification by the membership, and also "discusses" strike decisions before they are made ; the shop committees investigate and process grievances in their respective plants ; and, although each shop committee holds no separate committee meetings and may not call general meetings (i e, meetings of the Local's entire membership) its chairman may, and does, call shop meetings (1 e., meetings of the union mem- bers in his shop) to hear reports and recommendations of the shop committee on matters primarily of shop interest and to decide what action, if any, should be taken. The three elected and constitutionally recognized shop committeemen from the Company's plant on October 3 and at all material times prior and sub- sequent thereto, were Melvin Miller (the shop chairman), Richard Ringer, and John Green, although additional nominal "committeemen," including Lewis Henry, John Forrest, and Russell Cross, at times accompanied the regular com- mitteemen in handling and discussing matters with the management. None of the officers of the Local on and since October 3 were employed by the Company. ' See e g , the provisions of Article V which allot delegates from the locals in proportion to the number of members of the Local "in good standing in the International " s Findings as to the provisions or substance of this constitution or bylaws are based upon the credible testimony, of Clarence Divelbiss, the Local's president, who testified that the only copy of the constitution or bylaws could not be located. 572 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Clarence Divelbiss, the Local's president, worked, for another Hagerstown employer. Shortly before September 23, the Executive Board of the Local referred to its. membership at the Company's plant, subject,to approval by the general member- ship at their next meeting on October 7, decision of the question whether or not the employees, should strike on October 15 if, by that time, the Company should not have executed a new contract with the respondent-unions. As a result, the shop membership at their meeting on September 23 unanimously passed a resolu- tion to strike on October 15 in the absence of a new contract. This decision was never'reviewed by the general membership at, their subsequent meetings on and after ,October 7, nor by the Local's Executive Board,. which held its next meeting sometime after October 15, because in the meantime, the Company's employees. had,'on,October 3, already begun and were still continuing, a work stoppage in protest against the Company's discharge of ,a fellow-employee named Ridenour. Nor did either the general membership or the, Local's Executive, Board ever take any, formal action specifically approving or disapproving the walkout of October 3, although, when it was reported to the meeting of the general membership on October 7,, the comments made from the floor by the Local's members from shops other than that of the Company, were uniformly critical of the walk-out as a breach of the respondents' existing contract with the Company.e In the period October 2 to 7, inclusive, according to the credible, uncontra- dicted testimony of Local President Divelbiss, he and Michael Tyson, the Inter- national's representative, also had expressed . to the shop committee and the employees at the Company's plant, their disapproval and the International's disapproval of the walkout before October 15 as.a breach of the expiring contract with the Company and had recommended that the men return to work. Thus,, when told on October 2 by the shop committee of the imminence of the walkout should Ridenour be'discharged, Divelbiss first read to the committee the "no- strike" clause of the respondents' contract with the,Company, and then informed the 'committee that a stoppage required the International's approval ; that the International and International Representative Tyson, to whom Divelbiss tele- phoned, 'had instructed him not to permit a walkout ; and, finally, that the Committee should inform Divelbiss if the discharge occurred, so that Divelbiss could see President Danzer of 'the Company to work out a solution When Ridenour was in fact discharged the following day and the employees left their work and gathered in the Company's yard upon Shop Chairman Melvin Miller's instructions, Divelbiss, in spite of Danzer's refusal to see him, spoke to the employees, recommending their return to work. But the employees, at the sug- gestion of the shop chairman, went to the Local's hall instead and held a shop meeting. At this shop meeting on October 3 and also at shop meetings on October 5 and 7, the shop members voted unanimously not to return to work until Ridenour was reinstated. , International Representative Tyson did not testify, although he was admittedly present at these meetings and appeared intermittently at the hearing to assist the respondents' counsel. The only testimony concerning these shop meetings was given by Local President Divelbiss, who stressed his and Tyson's advice to the men 'to return to work, and by employees Bob Miller, Robert McKemy, and Julius Mann, who testified as to comments and advice given by Tyson, following the' members' decision to, continue the stoppage. Neither of ,B These findings as to meetings of the Executive"Board,,the shop membership, and the general membership are based upon the credible, uncontradieted testimony of Local Presi- dent Divelbiss. l UNITED,-FURNITURE WORKERS OF AMERICA, CIO 573< these two versions of-the three shop meetings excluded, or expressly, or impliedly contradicted, the, other," and, since the witnesses in question impressed the undersigned as being truthful, the undersigned is convinced that ascertainment of the complete story of these meetings requires the acceptance of all the relevant testimony of Divelbiss, Bob Miller , McKemy, and Mann. Accordingly , the under- signed finds , upon the basis of Divelbiss' testimony, that at the meeting of October 3, Divelbiss and International Representative Tyson urged the men to return to, work, leaving settlement of Ridenour's discharge to the grievance procedure and arbitration under the contract but that the shop members insisted unani- mously in voting a resolution not to return to work until Ridenour was rein- stated. The undersigned further finds upon the basis of Bob Miller's, McKemy's, and Mann's testimony that International Representative Tyson told the men in substance:that they should describe the stoppage as a lockout rather than a strike, to avoid the appearance of a breach of the "no-strike" clause in the contract, and-that there should be, no picketing until October 15 although the men could "hang around" the vicinity of the plant. Finally, the undersigned, finds on the basis of, Bob Miller's testimony, that at the shop meeting on either October 3 or October 5, Tyson, in answer to specific, successive questions from one of the men at the meeting, said that while non-union employees would obtain the same benefits as union employees under any collective bargaining contract and while there was no way that the non-union employees could be forced to join the union, they could be made to "wish that they had [joined]," explaining, "Enough ,of yob stick together, and you can get them fired, perhaps, or there can always something happen, such as something dropping on his head sometime." The strike, begun with the walkout of October 3, continued beyond October 15 (no contract having been executed) and was still being pressed during the hearing by the respondent-unions and some of the employees. - Picket lines were first established on October 15, but from October 3 until October 15, striking em- ployees including the shop committeemen, gathered in groups during the normal reporting, working, and quitting times outside the plant near the three entrances on West Washington Street, Madison Avenue, and Antietam Street. On October 12, and each week thereafter, the Local paid strike benefits to all strikers who made application at the Local's hall to President Divelbiss, International Repre- sentative Tyson, and the Local's financial secretary. Until approximately Christ- mas, these payments were made by individual checks to the applicants ; thereafter, the Local made a weekly bulk payment by cheek to Tyson, not exceeding the total amount of approved payments, and Tyson made the individual payments to the. strikers. According to the credible testimony of Local President Divelbiss, International Representative Tyson, as the representative of the International with a "higher office than my office," directed the strike action "in most instances," , met with the strikers to arrange for picketing, and on the occasions when Divelbiss saw the picket line after it was set up on October 15, Tyson directed the pickets, telling them to "keep moving." According to Divelbiss' further testimony, picket 10 Bob Miller admitted in his testimony that, although definite as to certain matters, his recollection of the meetings as a whole was not too clear. He further testified that he could not recall whether Tyson, as a representative of the International, advised the men they could not strike or recommended that they return to work McKemy and Mann testi- fied that although present during the entire meeting on October 3, they remembered only that, after the men passed the resolution to continue the stoppage , Tyson advised them to describe the stoppage as a lockout rather than a strike, and also said that there should be no picketing until October 15. On the other hand, Divelbiss did not deny that Tyson had made any of the statements attributed to him by Bob Miller, McKemy,'and Mann' 853396-50-vol 84--40 57.4, DECISIONS OF NATIONAL.. LABOR. RELATIONS BOARD captains were chosen by the strikers ; subject to Divelbiss' and, Tyson 's'approval, and included Shop Chairman Melvin Miller, and Committeemen Richard Ringer and John .Green. Employee John Tracy , who served on the picket line fora period, testified that he heard Tyson - say to the pickets at one of the plant gates that they were not to let anyone enter. Employee Riley Shingleton , testified that, while he was walking on the picket line, he heard Tyson say to a group of strikers on the edge of the picket line, "go out and get them," referring to the non -striking em- ployees, but that, although this was the substance of Tyson's statement, it may not have been his precise language , nor was it the entire conversation , the begin- ning and end of which Shingleton did not hear.. Committeeman Melvin Miller, and striking employees Carl Robison and Harold Sisk, who served regularly on the picket line, denied that they had ever heard Tyson make any such remarks to the pickets as were. attributed to Tyson- by Tracy and - Shingleton'Melvin Miller further testified that, on the contrary , Tyson instructed the pickets that they were merely to talk to the employees entering the plant in an attempt to persuade them to stay out ; that they were not to hit anyone but that their conduct was to be "straight"; and that trucks and employees were to be permitted to enter the plant. However, in view of uncontradicted testimony , which is discussed at a later point in this . Report, that Tyson himself participated with the pickets in physically obstructing employees who sought to go to work through the main entrance to the plant on October 15, the undersigned credits the testi- mony of Tracy that International Representative Tyson told the pickets not to let anyone enter the plant . The undersigned also credits the testimony of Shingle- ton that Tyson told strikers standing on the fringe of the picket line to go out and get non-striking employees . But in the absence of the full context of Tyson's remarks on this occasion , there is no such clear significance in the isolated state- ment overheard by Shingleton , as would warrant the conclusion , apparently urged by the General Counsel , that Tyson was suggesting the commission of violence upon, or coercion against the non-strikers . For Tyson's statement is equally compatible with a suggestion that the strikers visit the non-strikers for the purpose of peacefully persuading the non-strikers to join the strike. Such a visit was in fact made on at least one occasion according to the uncontradicted and credible testimony of Thurman West. We turn now to a consideration of the evidence concerning restraint and coercion during the course of the strike. C. Restraint and coercion 1. Alleged restraint and coercion In the opinion of the undersigned , the evidence does not support some of the allegations of the bill of particulars as to specific acts of restraint and coercion committed by striking employees . As a clear example, no evidence whatever was presented in support of item 12 of the bill of particulars , which states that Carl Robinson struck another employee on October 22. 1947, in the vicinity of the Pennsylvania Railroad Station. The evidence relating to other items of the bill of particulars , which the undersigned believes also to be without satisfactory evidential support, requires further discussion. The evidence adduced with respect to items 15 and 4 of the bill of particulars, though uncontradicted, warrants no finding of threats or other restraint or coer- cion but at most discloses earnest , peaceable, and not unfriendly attempts to convince employees not to go to work in the plant. Thus , truckdriver '-UNITED-FURNITURE WORKERS OF'AMERICA; CIO" ' 5751• John Tracy testified, in connection with item 15, that when-he started'to enter the Madison Avenue entrance of the plant to go to work on November 13, after having himself served on the picket line, Picket Mayo Barnett, a fellow-truck- driver, said to him, "I wouldn't go back in there, if I were you" and that someone in the group of pickets said, to use Tracy's language, "they would get you some- where else." But Tracy further testified that this last remark was made in'a conversation between the bystanders and was not directed to him; that Barnett's remarks were friendly; and that he and Barnett stood then talking for 10 minutes about truck driving. Employee Raymond Jacobs, testifying as to a some- what similar encounter with-Striker Stine," which is set forth'as item 4 of the bill of-particulars, stated that Stine, standing in the Antietam- Street entrance of the plant as Jacobs started to come in, called out, "get him, Ed" to another unidenti- fied employee, -who thereupon -followed' Jacobs up to Stine; that- Stine -said to Jacobs, "I would advise'you not, to go in!'; tiiat,to- Jacobs' explanation, "I just got to go to woi k," Stine replied, "Well, so do I There's Ed with nine children. He has to work, too" ; and that after "just a little conversation like that;" Jacobs finally said, "Well, if that's the way you feel about it, I'll turn around and go back home " The conversation contained no threats nor was it accompanied by threat- ening action Viewing Jacobs' testimony as a whole, there is no reason to regard Stine's calling out, "get him Ed" as being anything more than a direction to "Ed" to intercept Jacobs in the same sort of peaceable attempt to persuade Jacobs not to work, which was successfully made by Stine. With respect to the allegation of item 3 of the bill of particulars as to an attempted assault upon a non-striking employee by Striker Mayo Barnett on October 7, the deficiency of the evidence is of a different sort. Robert McKemy, the non-striker, testified credibly that the incident occurred as he was driving home from work in his car after a group of strikers including Shop Chairman Melvin Miller, Committeeman Richard Ringer, and employee Carl Robison but not including Barnett, had followed his car a quarter of a block from the plant where Robison had tried to pull his passenger, Lewis Henry, another non-striker from the car 12 McKemy's credible testimony was the only testimony as to what followed. At an intersection 10 blocks from the plant, Barnett shouted to Mc- Kemy, who was by that time driving alone, "Stop, Bob, I want to talk to you," and then followed McKemy to the corner of Locust and Washington Streets. Upon McKemy's stopping there for a traffic light, Barnett jumped on McKemy 's running board with the command, "Pull over, I want to talk with you," attempted to strike McKemy, and, as McKemy started his car forward, grabbed the steering wheel in an unsuccessful attempt to pull the car to the curb before being dislodged from the running board. The General Counsel contends that Barnett's attempted assault upon McKemy constituted restraint and coercion of McKemy' s exercise of his right, guaranteed by Section 7 of the Act, to continue working and to refrain from joining the strike. But there is nothing in the evidence to`justify a finding that the attempted assault was prompted by, or was intended to restrain, Mc- Kemy's exercise of his right to continue working in spite of the strike. Certainly, neither the remarks of Barnett nor his conduct indicates any reason or purpose in acting as he did Nor can it reasonably be inferred from the evidence that Barnett's conduct was connected with the immediately preceding attempt of 11 Although the transcript of Jacobs' testimony gives the spelling as "Stein," the bill of particulars uses the spelling, "Stine." 12 Conflicting testimony as to this earlier incident is discussed in Section III, C 2 of this Report and the conflict is there resolved in favor of McKemy's version as corroborated by the testimony of other witnesses produced by the General Counsel. 576 DECISIONS • OF -NATIONAL LABOR RELATIONS BOARD other strikers to pull , Henry from ,McKemy 's car For Barnett was not involved in that incident , and his attempted assault upon McKemy occurred at a consider- able distance from , the plant and from the scene of the earlier incident . Thus the evidence discloses no reason or purpose whatsoever for Barnett 's conduct, leaving the matter purely to speculation . The undersigned concludes, therefore, that the evidence provides , no substantial basis for a finding, as sought by item 3 of the bill of particulars, that Barnett 's, assault upon McKemy constituted restraint or coercion of an employee in the exercise of,rights ' guaranteed in Section 7 of the Act. Item 14 of the bill of particulars alleges that on November 13, Donald Carr, Richard Ringer , and Melvin Miller threatened and beat an employee in the vicinity of Madison , Avenue and Leroy Street . The only testimony as to this- alleged incident was given by Christian Bikle, a Hagerstown policeman . Credit- ing his testimony, it appears that upon being summoned. upon his motorcycle from. strike duty at the plant to the street corner in question a short block away by a passerby who said a man was being held in a house there , Bikle found three men standing in front of a corner house and two men and a woman standing behind the house. Although the men in front told Bikle there was no trouble , another woman who came out of the house said, "There is an employee in this house who is afraid to come out to go to work " Upon Bikle's instructions communicated through the, woman, a map, Whom Bikle did not then know but whom he later learned was called "Miller," came out of the house, apparently frightened, and put his hands on Bikle's shoulders.. Bikle then escorted the^man to the plant entrance. As he was, leaving the house , one of the men standing there said , "Why don't you haul them?" Of the five men and the woman , who stood in front of and behind the house, Bikle testified that he recognized, the men as having served as pickets and the woman as having at times conversed with the strikers on the picket line. He could further identify only two of the men who were at the front of the house, one as being Lee Shipper and the other as having 'the nickname "Fishmouth."'a When asked specifically , Bikle testified that he was, certain Donald,Carr was not one of the men in front of the house and that he ,could not say whether Carr was one- of the men behind the house . From this summary of the .only testimony concerning the incident,' it is impossible to say what, if anything, the five men and the woman had said or done before Bikle came upon the scene , to inspire "Miller's" apparent fear. Certainly, from this testimony it cannot be said that they beat "Miller" as the bill of particulars alleges. Nor, in the absence of a more complete story of the incident and its possible background , can it be said that their mere presence about the house constituted a threat. Finally, none of the five men was identified as Carr, Ringer ,. or Melvin Miller, whom the bill of particulars names as the actors in this particular incident. The undersigned therefore finds that the evidence does not support item 14 of the bill of particulars. There was conflicting testimony concerning a series of incidents which occurred during the morning of October 22 according to items 8 , 9, and , 10,.,of the bill of particulars and a further unnumbered item added by amendment during the hearing. Employee Edgar Jones testified that he,drove with Oscar Jones, his half brother , to the Antietam Street entrance and parked, his car; that , approach- ing the entrance on foot, he informed Striker Harold Sisk that, he was going to 13.In. giving , testimony as to other incidents, employee Mahlon Newcomer testified -that Shop Chairman Melvin Miller was sometimes called "Parrotmouth." Although ; subpoenaed . Frank ,Thomas . Miller, presumably the "Miller" involved In the present incident , did not appear ;to, testify , nor did the woman who came out of the house and spoke to Bikle , , , UNITED FURNITURE WORKERS OF AMERICA, CIO' 577 work, whereupon Sisk said "Not in this place, and pushed Edgar Jones back with his chest ; 16 that, leaving Oscar Jones and Sisk at the Antietam Street entrance, Edgar Jones drove to the Madison Avenue entrance where he was stopped by Picket John Tracy; that while he was talking to Tracy, Sisk reap- peared and said to Edgar Jones in the presence of Tracy, "Get out, and I'll give you some of the same I just gave your brother" ; 1e and that later in the morning, while Edgar Jones was sitting in his car at a gasoline station, Sisk came up to his car, opened the door, and shook his fist, and that, at the same place and time, Striker Carl Robison said to Edgar Jones, "You're the son-of-a-bitch I'd like to get." 17 Although Sisk admitted having seen Edgar Jones on each of these three occasions, he squarely denied that he had assaulted or touched Edgar Jones or Oscar Jones, that he had threatened Edgar Jones, or that Robison was even pres- ent while Edgar Jones was at the gas station. Sisk further testified that, at the Antietam Street entrance, he had merely attempted to persuade Edgar Jones not to go to work, arguing that he would thereby hurt the strikers and also him- self, whereupon Edgar Jones stepped back and said, "I'll show you sons-of- bitches." According to Sisk,' when he later walked past the Madison Avenue entrance on his way home for breakfast, he saw Edgar Jones talking with Tracy, but said nothing although Jones said, "There goes that son-of-a-bitch." Robison, like Sisk, testified that he was not at the gasoline station when Edgar Jones was there and denied that lie had ever made the threat attributed to him by Jones. Oscar Jones did not testify, nor was there any direct testimony that he had been assaulted by Sisk. John Tracy testified merely that he had stopped Edgar Jones at the plant, entrance, without referring at all to Sisk's having made any threat against Edgar Jones at the time. From this survey of the evidence, it is apparent that any finding that assaults and threats were made by Sisk and Robison on 'October 22 as alleged in the bill of particulars, would of necessity, be based solely upon Edgar Jones' testimony. Furthermore, the persuasiveness and suf- ficiency of Edgar Jones' testimony depends upon the reasonableness of accepting its presentation of Sisk's conduct as a progression of related assaults and threats, including an assault upon Oscar Jones to which Sisk later referred in threatening Edgar Jones at the Madison Avenue entrance. But there was no direct testimony its to any such assault upon Oscar Jones, nor did Tracy, also a witness for the General Counsel, corroborate Edgar Jones' testimony concerning the later, related threat allegedly' made in Tracy's presence. Because of''the'lack'of such sub- stantiation, which should reasonably be expected under the circumstances, and in view of Sisk's and Robison's denials, Edgar Jones' testimony is insufficient to justify a finding that Sisk assaulted Edgar or Oscar Jones at or near the Antietam Street entrance, that Sisk threatened Edgar Jones at the Madison Avenue en- trance, or that Robison threatened Edgar Jones at the gasoline station. Upon the foregoing conclusions that certain allegations of the bill of par- ticulars are not supported by the evidence, the undersigned will recommend that the complaint be disimissed so- far as it is based upon the allegations of items 3, 4, 8, 9, 10, 12, 14, and 15 of the bill of particulars and also the unnum- bered item added to the bill of particulars during the hearing: , ' 15 This assault is set forth in the unnumbered item added to the bill ' of particulars by amendment at the hearing. 16 This alleged threat is set forth in item 9 of the bill of particulars ; the assault upon Oscar Jones supposedly referred to by Sisk in this threat is set forth in item 8 of the bill of particulars. 17 This alleged threat is referred to in item 10 of the bill of particulars.' 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Proved restraint and coercion We turn now to a consideration of evidence presented by the General Counsel in support of other items of the bill of particulars, which in the opinion of the undersigned discloses that both before and during the picketing period there were instances in which striking employees threatened or assaulted working employees at the plant entrances, in the vicinity of the entrances, and even at distances from the plant, and also physically obstructed the entry of employees through the main gate of the plant There were clearly acts of restraint and coercion of the nonemployees in the exercise of their right, guaranteed in Section 7 of the Act, to refrain from the concerted activities of their fellow-employees and to continue working at the Company's plant in spite of the strike. Whether the striking employees or pickets were acting in such cases as agents of the Local, the International, or both of them, is another matter which will be considered separately in Section III, D of this report. (a) Incident at plant entrance before establishment of picket line and in absence of any formally designated agent of the Local or International According to the-uncontradicted testimony of employee Bob Miller, which the undersigned credits, employee Jesse Hull, one of 35 employees standing about the Washington Street entrance at about 5 p. m. on October 7, grabbed and tried unsuccessfully to open the locked car doors of Miller, who was leaving the plant in his car after having worked that day, and then said to Miller. "You son-of-a-bitch, get out, and we will beat the hell out of you." According to Bob Miller's testimony, neither the shop committeemen nor International Representative Tyson was present. (b) Incident near plant entrance in which shop committeemen participated before establishment of the picket line Immediately after Bob Miller's encounter with Hull on October 7, Bob Miller and working employee Robert McKemy, who drove his car out the gate with employee Louis Henry as his passenger, stopped their cars about a quarter of a block away from the entrance in front of a drugstore, to see whether there was any further trouble at the gate. , It will be recalled that Louis Henry was a plant committeeman of the Local. He had worked on October 7, however. A group of the striking employees, including Shop Chairman Melvin Miller and Committeeman Richard Ringer, followed in another car and parked behind Bob Miller's and McKemy's car. McKemy and Henry testified that striker Carl Robison was in the car with Melvin Miller and Ringer; that Robison, together with Melvin Miller and Ringer, came forward from their car to McKemy's car; and that when they got there, "someone" opened the car door in which Louis Henry was sitting, Bob Miller, who had stepped out of his car and w.is coming back to McKemy's car, testified that he saw Robison stand- ing alongside the open car door with his hand extended into the car and that he then i etcrned to his own car. Henry and McKemy testified that Melvin Miller said quietly to Henry, "Get out" ; that Robison also said quietly to Henry, "Are you afraid?" and that Robison thereupon grabbed Henry by the wrist and jerked him forward ; but that Henry wrenched himself away from Robison and that McKemy at the same time started the car away from the spot. Both Melvin Miller and Carl Robison testified that the latter had been standing in front of a store rather than among the striking employees at the plant gate, UNITED FURNITURE WORKERS OF AMERICA, CIO 579 when the car containing Henry stopped at the curb near Robison ; that Henry opened the car door and had one foot on the running board when, Robison walked over to the car and asked him for his union button as "a committeeman," or "a steward" ; IS that Melvin Miller then came up in an automobile from the gate from which he had seen Robison approach Henry; that Melvin Miller then asked Henry for his button; but that Henry got back into the car, slammed the door, and said, "Let's go," whereupon the car pulled off. In his testimony, Robison also denied that he touched, grabbed, or struck Henry. In connection with the conflict of the testimony on this incident, it should be noted that em- ployee Julius Mann testified without contradiction that, arriving early at the Local's hall for a shop meeting of the Local held the same evening, he overheard Melvin Miller, with Robison present, tell a group of union members that they had caught two cars leaving the plant and that if they got hold of Henry, to whom he referred as a "son-of-a-bitch," they were going to bring him up to the union hall. The undersigned, crediting the testimony of Louis Henry, Robert McKemy, and Bob Miller, finds that, upon their leaving work on the afternoon of October 7, they were followed from the plant gate in an automobile by Shop Chairman Melvin Miller, Shop Committeeman Richard Ringer, and striker Carl Robison ; that one of the three last named men opened the car' door alongside which Henry was sitting; that Shop Chairman Melvin Miller demanded that Henry get out of the car; that Carl Robison asked Henry if he were afraid ; and that Carl Robison then grabbed Henry by the wrist and attempted to pull him from the car. (c) Incidents on picket line in presence of formally designated representatives of the Local and International As has already been noted, picket lines were first established at the plant entrances on October 15. Employees Robert McKemy, Mahlon Newcomer, Bob Miller, Louis Henry, and Julius Mann testified without contradiction, and the undersigned finds, that when they went to work 'in automobiles between 7 :30 and 8 a. in. that morning, from 35 to 45 pickets were walking in an oval shaped formation in front of, and a few feet overlapping each side of, the 15- to 20-foot entrance on West Washington Street, with estimates of distances between pickets varying from 1 to 3 feet ; and that one or two policemen were standing at the sides of the entrance. McKemy further testified without contradiction, and the undersigned finds, that he pulled his car up on the sidewalk to the entrance; that he stopped and stood there for 3 or 4 minutes while the pickets continued to walk in fron't'of him, and that International Representative Tyson, who was with the pickets, said to him, "Can't you see there is a strike here?" whereupon McKemy backed his car and went home. There was disputed testimony that employees Mahlon Newcomer and Bob Miller were not only similarly obstructed in attempting to enter the Washington Street entrance in their respective automobiles that morning, but that they were each assaulted by pickets. Newcomer testified that, at about 7:30 a. in., 45 pickets, including International Representative Tyson, Local Committeeman Mel- vin Miller, and employee Bill Sager, did not make way for him as he pulled up to the picket line and blew his horn, but that they continued walking across the driveway as close behind each other as possible ; that he then "eased" his car "up against their legs" ; that he "pushed" one stout fellow out of line but did not 18 Henry denied that he had ever had a steward's or committeeman's button, but testified that he bad ,been wearing a plain union button at the time. .580 DECISIONS ^OF NATIONAL LABOR RELATIONS BOARD knock anyone down ; and that employee Bill Sager left the picket ' line and struck Newcomer through the open car window a "pretty hard" blow on'the chest with his fist. Bob Miller, as well as Louis Henry and Julius Mann , who were his pas- sengers at the time, testified that, when Bob Miller drove their car up to the picket line at about 8 a. in, the pickets massed in front and on the sides of the ,car ; that they were stopped for a few minutes ; that C. E Kean, one of the pickets, reached through the open car window and struck Bob Miller on the chin, saying, "You son-of-a-bitch you are coming out of there " ; and that upon Bob Miller's reaching for an icepick which he carried in back of the sun visor on his -car, Kean withdrew, and Bob Miller "eased" his car through the pickets into the plant. Bob Miller further testified at this point that he did not know what hap- pened to the men in the front of the car or whether he ran into anyone Bob Miller and Louis Henry, who was sitting with him in the front seat, both testified that International Representative Tyson was among the pickets standing in -front of the car when it was stopped. Bob Miller testified that he could not recall whether Tyson was doing anything ; Louis Henry testified that Tyson , whom he knew by name as being a "big wig" of the Union, was pushing against the front of the car with several other men, but in a pretrial affidavit , he had omitted Tyson's name in listing those who had done so. Julius Mann, who was sitting in the back seat of Bob Miller 's car, testified , on the other hand, that although he knew Tyson "pretty well" at the time, he did not recognize any of the men in front ,of the car , nor Tyson as being among them. Melvin Miller testified that he had been on the picket line when Newcomer and Bob Miller entered the gate in their cars on these two occasions on October 15; that Newcomer struck the pickets with his car, driving one by the name of Chester Clark clear into the yard ; that Bob Miller sideswiped the pickets with his car; that, although Melvin Miller was walking with Bill ,Sager during the first inci- ,dent, he saw Sager do nothing ; that, although he. was within 2 feet of Kean during the second incident, he observed merely Kean's protesting against the danger of being struck by Bob Miller's car and being threatened with the ice pick. Otherwise, according to Melvin Miller, Kean did nothing more than get out of Bob Miller's way. Neither Tyson, Sager, Kean, nor Clark testified. Upon this state of the record, the undersigned credits generally the testimony of Newcomer , Bob Miller , Louis Henry, and Julius Mann , and finds that, on the morning, of October 15 (1) the pickets at the, West Washington Street entrance, including Representative Tyson and Shop Chairman Melvin Miller , physically obstructed their entry to the plant in their cars to go to work ; (2) that Sager, one of the pickets, struck Newcomer as Newcomer was forcing his way , through the picket line ; (3) that, under the circumstances , Newcomer did not employ such unreasonable or excessive force in pursuing his right to go to work and to refrain from engaging in the concerted activities of the strikers, as might, in and by itself, have provoked or justified Sager's , assault ; and (4) that Kean, one of the pickets, struck Bob Miller, before Miller forced his way through the picket line into the plant. Truck driver John Tracy and his helper, Roy Weaver , testified that, upon re- turning to the Washington Street entrance ,of the plant at about 2 p. m. on Novem- ber 19 in a company truck in which they had just made a delivery, they were stopped by employees Palmer and Kean who stood in the middle of. the driveway,; that International Representative Tyson and Shop Chairman Melvin Miller came up to the side of the truck and asked why the two men were back at work "with- out a contract" ; that Palmer carne around to the side of the truck on which Weaver was sitting, opened the door, and struck Weaver on the chin with his UNITED FURNITURE WORKERS OF AMERICA, CIO 581 fist ; that when Tracy thereupon drove the truck into the entrance, Palmer threw a whiskey bottle against the window of the truck on Weaver's side, shattering it. Neither Palmer, Kean, nor Tyson testified. Melvin Miller testified that he and International Representative Tyson had spoken with Tracy on-the occasion of this incident. He denied that Palmer had either opened the cab door or struck Weaver ; that he had seen Palmer carrying the whiskey bottle in his hand ; or that he had heard the shattering of glass as the truck was driven through the entrance. The undersigned credits the testimony of employees Tracy and Weaver as to Palmer's assault upon Weaver and Palmer's shattering the glass door of the truck with the bottle. (d) Two incidents involving the same striker and non-striker on and off the picket line, with formally designated representatives of the Local participating in the second incident Employee Thurman West testified credibly and without contradiction (1) that at the end of the lunch hour on November 13, striker Donald Carr, leaving Com- mitteeman Richard Ringer, joined, and walked along the street with West past the Madison Avenue entrance, where he said to West, "You ain't going in," and, then, when West started to enter the West Washington Street entrance, grabbed West by the clothing, bringing him to his knees at the picket line and raising his hand to strike West; '9 and (2) that at about midnight on November 17, a whisky bottle was thrown through the Madison Avenue window of a bedroom in which West was then sleeping; and that, upon West's opening his front door and looking up and down the street within a minute after his window was broken,'he saw only striking employee Donald Carr, Shop Chairman Melvin Miller,,and Shop Committeeman Richard Ringer "fixing to step" on the opposite sidewalk 30 feet away. According to West's further uncontradicted testimony, which the under- signed credits, one of the three men looked over his shoulder at West, and then all three men walked down the street together and entered a restaurant from which they emerged, again about 5 minutes later. Upon consideration of West's uncontradicted testimony, concerning these two incidents, the undersigned not only credits West, but finds that Carr, Ringer, and Miller were together through- out,the incident on November 17 and that one of these, men hurled the bottle through West's window. - (e) Incidents away from the plant, no formally designated representative of either the Local or,the International being present Employee Gilbert Miller testified credibly and without contradiction that, at quitting time on December 5, Strikers C. E. Kean, Donald Carr, and Charles Henry accosted Miller, as Miller, in going home from work; waited for a freight train to cross his path on Antietam Sti eet ; that one of the three strikers called him a "dirty, rotten scab" ; that Kean struck Millt 'on the jaw as he turned around ; that the 'men then' asked Miller, "Why are' you back at work, why are you scabbing?" and that when Kean made a motion as if to strike'again, Miller kicked Kean and ran away. Employee Raymond Jacobs also credibly testified without contradiction, that, on the morning of October 15, striker Carl Robison, with a group of other strikers, approached Jacobs on a street corner where Jacobs was waiting for a "Policeman Christian Bikle, who was on strike duty opposite • the West Washington Street entrance at the time and ariested Carr, corroborated West's testimony as to the assault' " 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ride to the plant, and said, with reference to a statement by Jacobs that he was going to work, "Well, I'll let you go in this time, but if I catch your face up here again, you ain't going in any more. You better stay out and help us out because when we go back in, you'll be the first son-of-a-b to get a board over your head." (f) Incident away from plant in presence of formally designated representative of Local At 7:45 a. m. on October 22, a week after Jacobs was threatened by Robison, and while Jacobs was again waiting for a ride to work at the Pennsylvania Railroad Station on West Washington Street with Superintendent Kimberle, Assistant Superintendent Martin, and a carpenter by the name of Burton, strikers Harold Sisk and Johnny Caufmann walked up close to Jacobs, and, with Shop Chairman Miller and Committeeman Richard Ringer standing in the back- ground, told Jacobs in the course of a short conversation, that Jacobs was hurting them by going to work, whereupon Jacobs said that, if they felt that way, he would get a job elsewhere This much of the incident is undisputed. Jacobs testified, however, and Sisk in his testimony denied, that the conversation started with Sisk's question, "Didn't we tell you not to show your face here again?" and that, at the end of the conversation, Caufmann bumped him with his chest; that, as he was spun by this blow, someone hit him behind the ear on the left side of his head ; that Caufmann and Sisk kept shoving him and telling him to keep moving and thus marched him two blocks toward town and away from the plant ; that although Caufmann left them on the way, Sisk continued to shove him and invited him to go into an alley to "have it out" which Jacobs refused to do. Sisk testified that after a friendly conversation with Jacobs at the railroad station, he accompanied Jacobs part way toward the town, still talking in friendly fashion. Both Sisk and Jacobs testified that after walking two blocks to the courthouse, they parted, after having been joined by Ringer, who urged Jacobs in a friendly manner to help the strikers by not working in the plant. Martin, the only witness to, testify about this incident other than Jacobs and Sisk, testified that at the railroad station Caufmann "bumped" or "jabbed" Jacobs with his fist and that Sisk struck Jacobs two or three times in the face, thus substantially corroborating Jacobs' testimony as to this phase of the inci- dent. With respect to what followed, however, his testimony was manifestly incorrect, since he testified, contrary to both Jacobs' and Sisk's testimony, that Ringer and an unidentified employee led Jacobs down the street while Sisk remained at the railroad station, spoke briefly with Martin, and then followed ,Martin to the plant. Upon this state of the record, the undersigned credits the testimony of Jacobs, as partially corroborated by Martin, that after 'Sisk' reminded Jacobs that he had been warned not to show his face around there again, Caufmann and Sisk struck Jacobs, and, by shoves and commands, forced him to walk towards town; and that in the course of the walk Sisk invited Jacobs to fight. D. Conclusions 1. The applicable principles of the law of agency There remains for consideration the relationship of the International and the Local to the strike and their responsibility for the various acts of restraint and coercion committed during its course by striking employees, the shop committee- men of the Local, and the International's representative, which the complaint UNITED FURNITURE WORKERS OF AMERICA, CIO 583 alleges were violative of Section 8 (b) (1) (A) of the Act. As the parties agree in their briefs, the Act imposes upon labor organizations liability for unfair labor practices committed by their "agents," in accordance with the ordinary principles of the law of agency.20 Since the unfair labor practices proscribed by Section 8 (b) (1) (A) of the Act are analogous to intentional torts, it follows that, like principals whose servants or agents have committed such torts, a labor organization is responsible for its agents' acts of unfair labor practice under Section 8 (b) (1) (A)21 only (1) when the acts in question have been authorized in fact; 22 (2) when, though unauthorized or even expressly forbidden, they have been committed "within the scope of employment" of the agents; 22 or (3) when they have been subsequently ratified by the labor organization .14 Aside from cases in which there is a subsequent ratification, the liability or nonliability of a labor organization for its agents' acts of unfair labor practice under Section 8 (b) (1) (A), always depends upon the nature and extent of the agents' actual authority. For unauthorized acts are within "the scope of em- ployment" and thus creative of liability on the part of the labor organization, only when the acts in question are of the same general nature as, or are in- cidental to, the conduct actually authorized.-" The basic actual authority, to which liability for unfair labor practices under Section 8 (b) (1) (A) as well as for torts is thus referable, is created between the labor organization and the agent by their mutual manifestations of consent or agreement, and in the case of subagents appointed by a primary agent, by the mutual manifestations of con- sent or agreement of the subagents and the labor organization, directly or through its appointing primary agent.2G Such manifestations may be express or implied. Thus the actual authority of a labor organization's agent, like that of any other agent, is not necessarily limited to the substance of express, detailed statements of authority made by the labor organization to the agent. There may be also an additional area of actual authority, implied in fact from the circum- stances under which the agent is called upon to act and relevant, not only to the labor organization's liability for the particular agent's acts of unfair labor practices, but also to the authority of subagents appointed by the particular agent. For example, the grant by a labor organization of a basic, general au- thority; to an agent, such as International Representative Tyson, to conduct the labor organization's affairs in a particular region, implies an actual (and not merely an apparent) understanding between the labor organization and the agent, rebuttable only by affirmative evidence of instructions to the contrary, 20 Section 8 (b) of the Act provides that, "It shall be an unfair labor practice for a labor organization or its agents" to commit the acts specifically described in the following sub- sections. While Section 8 (b) thus provides for the separate liability of the,agent for his own acts, Section 2 (13) clearly indicates the additional liability of his principal in accord- ance with common law rules, by its reference to the problem of "determining whether any person is acting as an `agent' of another person so as to make such other person responsi- ble for his acts.. . See also the House Conference Report, No. 510, Eightieth Congress, 1st session, p. 36 ; and Senator Taft's remarks in the Senate debate (93 Cong. Rec. 4561, 6680, 7001) 21 In the application of the principles of the law of agency, the term "agent," as used in the Act, must be regarded as embracing the common law classifications of both "agent" and "servant " 12 See Restatement of Agency, Sections 212, 7. 8 (d) zi Ibid., Sections 216, 219, 228, 230. Note the consistency of the provision in Section 2 (13) of the Act that ". . . the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." 2' See Restatement of Agency, Sections 82, 83, 93, 100, 218. 25 Ibid, Sections 228, 229. 21 Ibid., Sections 7, 15, 5. 584 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD that the agent is uin fact authorized: to perform acts which are incidental, usual, or reasonably necessary to the accomplishment of the labor organization's purposes, including in proper cases, the appointment of sub-agents of the labor organization 27 Thus, also, a generalized authority to an agent, such as Inter- national Representative Tyson, which,, to, be effective, requires action by the agent with dispatch, under shifting, complicated circumstances, and under such conditions as to make intelligent consultation with his superiors impracticable, implies an actual authority permitting broad discretion to the, agent , as to the manner and details of his execution23 One other agency principle relating to implied authority is operative in the present case. Actual authority for the commission of any given type of acts is also implied from the principal's failure to object to the agent's continuance of such acts for any appreciable period of time.28 The General Counsel suggests in his brief that a labor organization should be held accountable for unfair labor practices under Section 8 (b) (1) (A) of the Act which are committed by any persons to whom the labor organization has per- mitted the appearance of being its agents and of possessing authority to commit the acts in question2° But, according to established principles, apparent agency or apparent authority results in tort liability on the part of the apparent prin- cipal only when the tort victim has suffered by reason of some act of his own in reliance upon the apparent agency or authority31 No analogous situation is presented in unfair labor practice cases under Section 8 (b) (1) (A) of the Act. The undersigned , accordingly rejects, the suggestion of the General Counsel that under Section 8 (b) (1) (A) a labor organization may be held liable for unfair labor practices committed by putative agents, , solely upon the basis of their apparent agency or their apparent authority.n The undersigned, however, agrees with a contention made by the General Counsel and counsel for the Company in their respective briefs, that the posi- tion of a labor, organization may be affected by the apparent authority of a pri- mary agent, such as International Representative, Tyson, in his transmission of instructions to subagents of the principal . In such a case, the primary agent's transmission of, the instructions to the, subagents is a manifestation to them of the labor organization's consent to, the, instructions and, as such, the primary agent's apparent authority in this respect creates an actual authority from the labor organization to the subagents to act in accordance with the instructions given them.38, Similarly, although the briefs do not discuss the par- 21Ibid, Sections 35 (c), 36, 8 ( d), 80. ' 21-IM., Section 34 (d). 19 Ibid., Section 43. 31 In addition to his argument based ' upon Tyson's alleged express or implied authority, the General Counsel states•that,'"On the-theory of apparent authority, it can be estab- lished beyond doubt that the International is responsible for the restraining and coercing act committed by:Tyson on October 15,' 1947,'andfat any' other time during the course of the strike " I , ' 31 Restatement of Agency, Section 265 32 Only violations of Section 8'(b) (1)• ( A) are alleged in the complaint. Whether an apparently authorized agent 's acts of unfair labor practices under other subsections of the Act are chargeable to a labor organization is, therefore , a matter which does not require decision in the present case . - 33 As a result, in thisi situation. the (labor organization would be liable for the unfair labor practices of the subagents on the strength of an actual authorization 'although it might be liable for the, same acts if committed by the' primary agent 'only by reason of the primary agent's peripheral "scope of employment " UNITED FURNITURE WORKERS OF AMERICA, CIO 585 ticular point, the sanctioning of a strike by a labor organization's agent, with apparent though not actual authority to do so, also makes the participants in strike activities (such as picketing) the subagents of the labor organization in such activities. For, the actual or apparent sponsorship of a strike by a labor organization mainfests an invitation to all the employees, whether union mem- bers or not, to engage in such activities supporting the strike as the labor organi- zation establishes or directs through its actual or apparent agents. Participa- tion by the employees in these activities constitutes an acceptance of the invita- tion with the result that, upon the normal consensual principles common to the law of agency and contract, they thereby become the subagents of the labor organization in the particular activities. 2. General conclusions from ' the application of these principles The undersigned has found that a number of acts of restraint and coercion were committed by striking employees, by shop committeemen, and by, Inter- national Representative Tyson between and including October 3 and December 5, the first 2 months of the continuous work stoppage at the Company's plant. Some of these acts were committed before October 15 at or near the bates of the plant by employees who gathered there pursuant to Tyson's instructions. The greater proportion was committed after October 15 at or near the picket line established and directed by Tyson, with Tyson present and even participating in some of them. Comparatively few fail to reveal at least a surface relation to Tyson or his directorial activity. It is admitted by the respondent unions that Tyson was, and is, the agent of the International. His only express authority or instructions, so far as the record discloses, were contained in the International's constitution which required him, as the International's representative in the region including Hagerstown, to take such action on behalf of the International as was necessary and advisable in furtherance of its "organizational activities," a broad term in union parlance embracing the manifold activities of a union. For the performance of such a general task, particularly before and during a strike, it is obvious that he could not possibly have been given detailed instructions as to his course in every situation that might confront him, nor could he be expected to have the time to confer with his superiors for instructions before he acted Implicit, then, in the nature of his position and the general duties he was called upon to perform, was an actual authority to exercise a broad discretion as to the manner in which he would represent the International. The respondent-unions admit, and the undersigned finds, that this broad, general implied authority extended to Tyson's direction of the strike after October 15, as a strike sanctioned by both the International and the Local. Certainly Tyson's authority from the International included the establishment and direction of the picket lines as incidental, usual, and reasonably necessary to the conduct of the strike. Furthermore, in view of the identity of the Inter- national's and Local's interests in the strike and from Divelbiss' testimony that the Local permitted Tyson to conduct the strike activities including the picketing, reserving only the joint right of the Local with the International to approve the picket captains, it is clear. that in conducting the strike after October 15, Tyson was acting as the authorized agent not only of the International but of the Local as well. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent-unions deny, however, that they were in anyway responsible for the stoppage before October 15. They assert in effect, that International Representative Tyson and Local President Divelbiss clearly refused to approve the stoppage until October 15. But the evidence does not support this assertion. It is true that both Tyson and Local President Divelbiss recommended to the men at the October 3 shop meeting that they return to work until October 15 ;,sr tneir continued stoppage be construed as a breach of the "no-strike" clause in the contract with the Company. But when the men voted unanimously to continue the stoppage, neither Tyson nor Divelbiss advised them that the Inter-. .national and the Local would not support them; nor did the Local take the opportunity at its general membership meeting on October 7 to withdraw its support and direct the abandonment of the stoppage. On the contrary, on October 3, Tyson advised the men that although they were not to "picket" until October 15, they should "hang around" the plant and should describe the stoppage as a "lockout" rather than a "strike," and then on October 12, he participated with Divelbiss, the Local's president, in the first payment of strike benefits from the Local's funds. The undersigned finds, contrary to the respondents' argument, not only that the stoppage prior to October 15 constituted a strike in spite of Tyson's attempt to avoid that appearance, but also that Tyson, as the Inter- national's representative and Divelbiss, as the Local's president, approved the strike from its beginning on October 3, and that Tyson also instructed the men that, in support of the strike, they were to "hang around" the plant. It does not satisfactorily appear from the record whether Tyson violated specific instructions from the International in thus approving the strike and the support- ing activity of the employees before October 15 There is no direct testimony that Tyson was strictly limited by the International in his dealing with the developing strike situation when he arrived in Hagerstown on October 3, since Tyson did not testify nor did anyone else claiming direct knowledge that the International had, in fact, given any such specific limiting instructions. It is, therefore. purely conjectural, (1) whether Tyson in fact had been strictly instructed by the Inter- national to disavow the premature strike (as suggested by Divelbiss' testimony) ; (2) whether he was instructed that, should the employees insist upon refusing to work, he was merely to avoid the appearance of a strike until October 15, by characterizing it as a lockout and preventing "picketing" (as his acquiescence to the strike vote and ensuing instructions to the men might indicate) ; or (.) whether he had in fact received no limiting instructions whatsoever Even assum- ing the first of these possibilities to be the actual fact, as the respondents urge, it was not made known to the men, and so far as they were concerned. Tyson apparently had authority from the International to acquiesce to their vote to continue the stoppage' provided they did not "picket" before October 15. The undersigned finds that Tyson (and also Divelbiss who acted jointly with him) had either implied actual authority or effective apparent 'authority from the International to approve the strike and' to issue Tyson's instructions to the men that although they were not to picket until October 15, they should "hang around" the plant. ' ' Whether Tyson's and Divelbiss' actions in thus countenancing and supporting the strike from the beginning were actual]-, or merely apparently authorized, it Is clear upon the applicable legal principles already discussed, not only that the pickets after October'15 were agents of'bo'th the International and the Local but also that the men who "hung around" the plant before October 15 in support UNITED FURNITURE WORKERS OF AMERICA, CIO 587 of the strike pursuant to Tyson's instructions did so as authorized agents or -subagents of both respondent-unions. When acting on the picket line or in the pre-picketing congregations outside the plant, the Local's committeemen, with their fellow strikers, were also clearly the agents of both respondents In the important aspect of recognized and accepted leadership, however, they stood one notch higher-a fact which is important in appraising their participation or appearance in certain of the incidents of restraint and coercion which occurred at varying distances from the picket line and in one instance at night when, of course, the picket line was not functioning. So far as the International is concerned, its recognition and use of the leadership of the committeemen were limited to its joint approval, with the Local, of these men as picket captains. The Local's recognition was broader. Though the committeemen were not officers of the Local, they were in practice, clearly its direct representatives in dealing with and for the employees in the Company's plant., A fair appraisal of Divelbiss' testimony demonstrates that, although their functions, with the exception of their voting status on the Execu- tive Board, were not explicitly covered by the Local's constitution, they not only handled grievance procedures and made reports to the membership with respect thereto, but generally took the initiative in matters primarily of interest to the shop as the real, immediate representatives and leaders of this segment of the Local. The breadth of this activity previously permitted to the committee- men, followed by the Local's failure to interfere with them in their initiation of the strike and in their continuing role of leadership in the strike activities, clearly implies an authority from the Local to continue acting as the leaders of the men in the furtherance of the strike without limiting them to conduct on the picket line-an authority which is not to be found in the committeemen's relations with the International. 3. Specific conclusions as to the responsibility of the respondent-unions for the various acts of restraint and coercion. All of the acts of restraint and coercion in the present case, with the excep- tion of four, were committed either at or near the plant gates, against working employees as they were going to or leaving work, by strikers or by International Representative Tyson standing in, or emerging from, the pre-picketing informal congregations of strikers before October 15 or the formal picket line after October 15. These are the incidents which have been discussed in detail'earlier in this Report in Section III, C, 2 (a), (b), (c) and the first incident under (d). The undersigned has already found that the actors in those incidents were agents of both the respondent-unions during their participation in the pre-picketing congregations and in the later, formal picket line. Normally, it is to be assumed in the absence of evidence to the contrary, that the authority of pickets embraces peaceful,patrol of the working premises, persuasion of fellow employees not to .work, ,and the general advertisement of their cause without physical obstruction of the plant entrances. But, the' patrolling by the pickets requires them to meet nonstriking employees under circumstances in which the members of each group are likely to be extremely, suspicious and resentful of, and, even hostile 'to, the members ; of ;the, other group. Certainly, in. this usual setting, the utterance of threats and the employment of force by the pickets in the course of their patrol ,on or near the picket line, as occurred in the present case, are incidental to the 588 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD authorized patrol and, though forbidden, are reasonably to be expected by the labor organization when it sets forth the picket line Thus, according to the criteria developed by the common law of agency,34 it appears that the threats made, and the physical restraint committed at or near the entrance to the plant by the pre-picketing groups of strikers and by the later formal pickets including International Representative Tyson, were within the "scope of their employment,'.' as agents of both respondent-unions. The undersigned accordingly finds that, by the acts of restraint and coercion committed by their agents in the incidents discussed in Section III, 2 (a), (b), (c) and the first incident of (d), the International and the Local, in violation of Section 8 (b) (1) (A) of the Act restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. Two other incidents of restraint and coercion found by the undersigned in- volved committeemen of the Local but occurred away from the picket line. The first of these incidents was the shattering of Employee Thurman West's window at midnight by Shop Chairman Melvin Miller, Committeeman Richard Ringer, and Striker Donald Carr, the day after Carr had been arrested for assaulting West on the picket line (See Section III C (2) (d), above). The second of these incidents was the threatening and assault of Employee Raymond Jacobs at the Pennsylvania Railroad Station by Strikers Sisk and Caufmann in the -presence of Local -Committeeman Richard Ringer and in the course of the attempt by the group, including Ringer, to persuade Jacobs not to- work at the plant during the strike (See Section III (2) (f), above). Neither of these incidents occurred in the course of the picketing directed by International 1lep- resentative Tyson, since the first incident occurred at night and the second at a point remote from the picket line. Nor, so far as the 'record discloses, was that type of conduct or any similar conduct authorized by the International, so that there appears to be no basis for charging the International with respon- sibility for either of these two incidents.a On the other hand, as has already been noted, the Local permitted its committeemen a greater latitude in their strike conduct and leadership, not limited to picket line activities. Thus, the participation of committeemen with other strikers in both the episode at West's house and the "persuasion" of Jacobs not to go to work by the threat and assault made at the Pennsylvania Railroad Station must be regarded as within the "scope of employment" by the Local although not by the International. The undersigned accordingly finds that by the acts of restraint and coercion committed by its agents in the incidents discussed in Section III C. 2 (d) and 34 Section 229 of the Restatement of Agency in enumerating the various standards for determining whether the conduct of a servant or agent, is within the "scope of his em- ployment" states that : (1) To be within the scope of the employment, conduct must be of the same general nature as that authorized , or incidental to the conduct authorized; (2) In determining whether or not the conduct, although not authorized , is never- theless so similar to or incidental to the conduct authorized as to be within the scope of employment , the following matters of fact are to be considered : s • t r s • a (b) the time , place, and purpose of the act ; t s • • s s • (f) whether or not the master has reason to expect that such an act will be done ; (i) the extent of departure from the normal method of accomplishing an authorized result ; s * • • ♦ • as See Restatement of Agency, Section 229 (2) (b), (e), and (f). t UNITED FURNITURE WORKERS OF AMERICA, CIO 589 (f), the Local, in violation of section 8 (b), (1) (A) of the Act, restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. The two remaining incidents of restraint and coercion found by the under- signed were Striker Robison's threatening of Employee Jacobs and Striker Keen's assault upon Employee Gilbert Miller, which have been discussed in Section III C 2 (e) of this Report, and which are alleged by items 7 and 18 of the bill of particu- lars to be violative of the Act. Both incidents occurred at a considerable distance from the plant and the picket line and in neither case were there any formally designated representatives of the International or the Local present. There is, therefore, no basis for holding these acts to have been authorized by either of the respondent-unions, nor to have been within "the scope of employment" of the actors as agents of either of the respondent-unions. The undersigned ac- cordingly will recommend that the complaint, so far as it is based upon items 7 and 18 of the bill of particulars, be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent-unions, set forth in Section III above, occur- ring in connection with the operations of the Company, described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent-unions have engaged in unfair labor , practices within the meaning of Section 8 (b) (1) (A) of the Act, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. The General Counsel requests a provision in the Board's Order requiring the respondent-unions to "make whole any employee of the company for a loss of earnings suffered as a result of the Respondent's acts of restraint and coercion." The undersigned, however, believes that such an order is not necessary to effectuate the policies of the Act. The position of employees restrained by a labor organ- ization from working in a struck plant is not at all comparable to that of employees discriminatorily discharged by their employer. Discriminatory discharge clearly operates as a continuing exclusion from further employment by the particular employer with a resulting loss of earnings. Exclusion from work in a plant by a striking labor organization on a particular occasion may or may not have such a continuing effect. Furthermore, discriminatorily discharged employees have no immediately effective remedy to secure reinstatement and a resumption of their earnings but must await the operation of the Board's processes. Under such circumstances, policy requires indemnity to the otherwise helpless victims of the discrimination in the form of the usual award of back pay against the employer, in spite of the difficulties sometimes encountered in ascertaining to what extent the interim loss of earnings has in fact resulted from the employer's unfair labor practice. However, employees physically excluded from work by a labor organization may immediately secure entrance to, the plant with such protection as may be needed, through the police. There is, therefore, no such urgent policy requirement, as in the discrimination cases, that they be indemnified by the labor organization as would warrant the Board's undertaking the complex determination of whether there was a continuing loss of earnings attributable to the labor organization action and, if so, the extent thereof. The undersigned 853396-50-vol. 84- 41 590 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD therefore rejects the request made by the General Counsel for an order indemni- fying,employees for loss of earnings. Having found that the evidence does not warrant findings of restraint and coercion attributable to either of the respondent -unions in the incidents referred to in items 3, 4, 7, 8, 9, 10, 12 , 14, 15, and 18 of the bill of particulars , as well as in an unnumbered item added to the bill of particulars by amendment during the hearing, the undersigned will recommend the dismissal of the complaint so far as it is based upon these items of the bill of particulars. Upon the above findings of fact and upon the entire record in the case the undersigned makes the following: CONCLUSIONS OF LAW 1. Colonial Hardwood Flooring Company, Inc, a Maryland corporation, is engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act. 2. United Furniture Workers of America, Local 472, CIO, and United Furniture Workers of America, CIO, are labor organizations within the meaning of Section 2 (5) of the Act. 3. By restraining and coercing employees of Colonial Hardwood Flooring Com- pany, Inc., in the exercise of the rights guaranteed in Section 7 of the Act, the respondent-unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and ( 7) of the Act. 5. The respondent-unions have not committed the unfair labor practices alleged in items 3, 4, 7, 8, 9, 10, 12 , 14. 15, and 18 of the bill of particulars submitted in support of the complaint. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law , the under- signed hereby recommends that United Furniture Workers of America, Local 472, CIO, and United Furniture Workers of America, CIO , their officers and agents, shall: 1. Cease and desist from : (a) Restraining and coercing employees of the Colonial Hardwood Flooring Company, Inc., in the exercise of the rights guaranteed in, Section 7 of the Act, to refrain from self-organization , to refrain from joining and assisting United Furniture Workers of America, , Local 472 , CIO, or United Furniture Workers of America, and in the right to refrain from engaging ,in concerted activities for the purposes of.collective bargaining. 2. Take the following affirmative action, which the undersigned , finds will effectuate the policies of the Act : (a) Post in, a conspicuous place .at the,business office of Local 472 in the city of Hagerstown, Maryland, where , notices or communications to members are customarily posted; a copy of the notice attached hereto as an appendix, and furnish copies thereof to, each member ,of Local 472 either by mailing or by hand. Copies of the notice , to be furnished by the Regional Director for the Fifth Region, shall, . after being signed by, representatives of Local 472 and United Furniture Workers of America, CIO , be immediately handed or mailed to the members of Local 472 , as aforesaid ,.and be posted and maintained for a period of sixty (60) UNITED FURNITURE WORKERS OF AMERICA, CIO 591 days thereafter . Reasonable steps shall be taken by the respondent -unions to insure that the posted notice shall not be altered, defaced, or covered by any other material; (b) Mail to the Regional Director of the Fifth Region signed copies of the ,notice attached hereto, as an appendix for posting, the Company willing, on the bulletin board of the Colonial Hardwood Flooring Company, Inc., where notices ,to employees are,customarily posted, where such notice shall be posted and main- tained for a period of sixty (60) days thereafter. Copies of the notice, to be furnished by the Regional Director for the Fifth Region, shall, after being signed by representatives of Local 472 and of United Furniture Workers of America, CIO, be forthwith returned to the Regional Director for said posting ; (c) Notify the Regional Director of the Fifth Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the respondent- unions have taken to comply herewith, i It is further recommended that, so far as it is based upon items 3, 4, 7, 8, 9, 10, 12, 14, 15, and 18 of the bill of particulars and an unnumbered item thereof added at the hearing, the complaint be dismissed. It is further recommended that, unless the respondent-unions shall within ten (10) days from the receipt of this Intermediate Report notify said Re- gional Director in writing that they will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring the respondent-unions to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947," any party may within twenty" (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of ex- ceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 85. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and rec- ommended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, con- clusions and order, and ill objections and exceptions thereto shall be deemed waived for all purposes. WILLIAM F. SCHARNIKOw, Trial Examiner. Dated May 14, 1948. 592 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To ALL MEMBERS OF UNITED FURNITURE WORKERS OF AMERICA, LOCAL 472, CIO, AND TO ALL EMPLOYEES OF COLONIAL HARDWOOD FLOORING COMPANY, INC. Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act of 1947, we hereby notify our members and employees of the Colonial Hardwood Flooring Company, Inc., that : WE WILL NOT restrain and coerce employees of the Colonial Hardwood Flooring Company, Inc., in the right to refrain from self-organization, to refrain from joining and assisting United Furniture Workers of America, Local 472, CIO, or United Furniture Workers of America, CIO, and in the right to refrain from engaging in concerted activities for the purposes of collective bargaining. UNITED FURNITURE WORKERS OF AMERICA, LOCAL 472, CIO, Labor Organization. By ------------------------------------------------------------- (Agent or Representative ) ( Title) UNITED FURNITURE WORKERS OF AMERICA, CIO, Labor Organization. By ------------------------------------------------------------- (Agent or Representative ) (Title) Dated -------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered , defaced, or covered by any other material.