United Electrical, Radio & Machine Workers of America

In the Matter Of LOCAL #1150 , UNITED ELECTRICAL , RADIO & MACHINE WORKERS OF AMERICA , AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS, UNITED ELECTRICAL,, RADIo & MACHINE , WORKERS OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZA- TIONS, AND THEIR. AGENTS, PAT AMATO , IRVING 'KRANE, LEE, LUND- GREN, IRENE BERMAN, FAYE CAMPBELL, VIRGINIA CHARNOTA, MAY MANSFIELD, LEO TURNER , BERNARD LUCAS, Roy SPERO, VIRGINIA KIPTA, HELEN- NIEMINSKI, FRANK ALLEN, ALICE SMITH, IRVING GILBERT, AND JOHN BERNARD ' and CORY CORPORATION Case No. 13-CBS.Decided Jwne 30, 1919 DECISION AND ORDER On October 13, 1948, Trial Examiner Irving Rogosin issued his Intermediate Report in the above-entitled proceeding, finding that all the Respondents except Bernard Lucas, Irving Gilbert, and John Bernard, had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also recom- mended that the complaint be dismissed with respect to Lucas, Gilbert, and Bernard. Thereafter, the Respondents, the General Counsel, and the Company filed exceptions to the Intermediate Report and supporting briefs. On April 26, 1949, the Board heard oraltargument at Washington, D. C., in which the Respondents and the Company participated; the General Counsel did not appear. 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.2 The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record 1 Spelling of names has been conformed to that appearing in the record and exhibits. Although the record discloses that the Trial Examiner rejected Board Exhibits 36A, B, C, and D, these exhibits were erroneously marked as having been received in evidence. We hereby note the correct status of these exhibits as rejected. 84 N. L. R. B., No. 110. 972 LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 973 in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, but with the modifications, addi- tions, and exceptions noted below. 1. For the reasons set forth in our recent decisions in the Smith Cab- inet and Seamp'rufe cases,3 we find, contrary to the Trial Examiner, that Shop Steward Charnota's prestrike warnings to employee Ryczek to the effect that she would lose her job if she did not join the Union were coercive within the meaning of Section 8 (b) (1) (A) of the Act.' As shop steward, having such responsible functions as partici- pation in contract negotiations and grievance proceedings, we find that Charnota, in making the threats, on one occasion in the presence of Chief Shop Steward Campbell, acted as agent for the Respondent Local #1150 within the scope of her_ authority, thereby rendering the Respondent Local #1150 liable therefor.4' 2. We agree with the Trial Examiner that during the strike the Respondent Unions, and their agents, the individual Respondents noted below,5 restrained' and coerced the Company's employees in vio- lation of Section 8 (b) (1) (A) of the Act. In so doing, we rely on the various incidents fully described in the Intermediate Report con- sisting of assaults, an attempted assault, and threats of reprisal which, in this atmosphere of violence, assumed added coercive significance.6 3 Matter of Smith Cabinet Manufacturing Company , Inc (United Furniture Workers), 81 N L. R . B 886 ; Matter of Seamprufe, Incorporated, 82 N L. R B. 892. ' See Senator Taft's supplementary analysis of the bill later to become the amended Act, where it is noted that ". . . union business agents or stewards, acting in their capacity of union officers , may make their union guilty of an unfair labor practice when they engage in conduct made an unfair labor practice in the bill, even though no formal action has been taken by the union to authorize or approve such conduct " 93 Daily Cong Bee 7001 ( June 12, 1947 ). [ Emphasis added ] 5 Pat Amato , Irving Krane , Lee Lundgren , Irene Berman , Faye Campbell, Virginia Charnota, May Mansfield , Leo Turner , Roy Spero , Virginia Kipta, Helen Nieminski, Frank Allen, and Alice Smith In finding that these individual Respondents violated the Act as agents of the Unions , we do not attribute the unlawful acts of any individual Re- spondent to any other individual Respondent . We base our findings in this respect solely on the fact that each of them personally engaged in one or more of the acts of restraint or coercion or directed or instigated them. Matter of Smith Cabinet Manu- facturing Company, Inc , supra; Matter of Perry Norvell Company, 80 N L. R. B 225 ; Matter of Sunset Line and Twine Company ( International Longshoremen's Union), 79 N. L. R. B . 1487. With respect to the remaining individual Respondents , Bernard Lucas, Irving Gilbert, and John Bernard , we adopt the Trial Examiner 's recommendation that the complaint be dismissed as to them. 5In view of the fact that Local President Amato attempted to assault Planning Super- intendent Calvello in the presence of rank and file employees as Calvello , followed by a group of employees , was bypassing the picket line to enter the plant , and the fact that International Field Organizer Berman and Local Secretary -Treasurer Lundgren threatened Maintenance Supervisor Surmin in the presence of the latter 's subordinate (Steele), we, like the Trial Examiner , find no merit in the Respondents' contention that this conduct, having been directed against supervisors , did not constitute restraint and coercion of "employees" within the meaning of Section 8 (b) (1) (A) of the Act. As we have recently observed in a comparable situation , witnessing rank and file employees "might have reasonably regarded these incidents as a reliable indication of what would befall them if they sought to work during the strike." Matter of Smith Cabinet Manu- facturing Company, Inc , supra. 853396-50-vol. 84-65 974 '. DECISIONS OF NATIONAL LABOR RELATIONS BOARD We also rely 'on the so-called "mass picketing" on November 3 and 4, 1947,' and the "Taft-Hartley Demonstration" on November 21, 1947; which were conducted in front of-the plant in a manner calculated and tending to bar employees' ingress and egress. Unlike the.-Trial Examiner, however, we do not base our finding on Shop Steward Charnota's identification of nonstriking employees to fellow strik- ers, which conduct we find was not coercive within the meaning of Section 8 (b) (1) (A). Nor do we agree with the Trial Examiner that striker Cieben's remark to employee Bell and another striker's remark to employee Spravka were made under circumstances render- ing the Respondent Unions liable therefor. With these exceptions, we find, contrary to the Respondents' contention, that their conduct amounted to restraint and coercion within the meaning of Section 8 (b) (1) (A) of the Act. The Respondents challenge the Trial Examiner's findings that the picketing as conducted on November 3 and 4 and the "Taft-Hartley Demonstration" were violative of Section 8 (b) (1) (A). They con- tend that the picketing on those days and the "Taft-Hartley Dem- onstration," having been peacefully conducted, were constitutionally protected as speech and did not lose their immunity merely because of the, large number of participants. But we are not here confronted with, nor need we decide, the ques- tion whether peaceful picketing by a large number of persons without more is constitutionally privileged or per se unlawful under the Act. For, `as indicated above, we base our finding solely on the physically obstructive character of the picketing and the demonstration, which manifestly did more than convey the facts of a labor dispute. Indeed, the Supreme Court has indicated that conduct such as that involved herein is not beyond the reach of statutory restriction.' Footnote 6-Continued . In addition to finding the assault on employee Ryczek violative of Section 8 (b) (1) -(A) 'of the -Act, we find that Shop Steward Charnota 's• and Strike Committeewoman Nieminski 's antecedent threats to Ryczek "to get" her , and Niemenski's further warning ,to Ryczek at'the time of the assault that she would receive the same or worse treatment if'.she returned to work the next day, were also coercive within the meaning of that section 'Because it-appears that the plant was closed on November 1, 1947, and that the picketing at that time was therefore not designed to bar any employee 's ingress or egress, we filed ,' contrary to the Trial Examiner , that the Respondents did not then restrain or coerce employees within the meaning of Section 8 ( b)' (1) (A) Nor do we agree with the Trial Examiner that the Respondents violated the Act by reason of the fact that a large number of persons congregated near the Douglas Park "El" station or the fact that strikers accosted employees on the stairways of the station The record does' not disclose the identity of the persons congregating near the station nor does it show that this conduct was in any case calculated to obstruct the employees' access to the plant . Cf. Matter of Perry Norvell Company , supra, where the Board held that a crowd of some 200 persons milling about the plant , calling nonstrikers scabs, but not interfering with ingress or egress, was not illegal "mass picketing" or coercive'. 8 Thus, in Thornhill v. Alabama, 310 U. S 88, 105, the Supreme Court indicated that the free speech privilege did not extend to "picketing en masse or%otherwise conducted which might occasion . . imminent and aggravated danger " In American Fedelalien of Labor v. Swing, 312 U. S. 321, 325 , the Court observed that "all we have before us, LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 975 It is clear, as the Trial Examiner found, that at various times on November 3 and 4 as many as 80 to 100 pickets patrolled in a circular or elliptical course in front of the plant so as to block the employees' main entrance, which consisted of a door only 6 feet wide. The record also shows that the number of pickets regularly increased whenever nonstriking employees reported for work or left the plant at the end of their shift. Additionally, as shown in the Intermediate Re- port, the picketing on these occasions was attended by an assault on a nonstriker an attempted assault on a supervisor in the presence of rank and file employees, threats of reprisal to a nonstriking employee who was later assaulted when she left the plant, and a similar threat to a. supervisor in the presence of his subordinate. In these circumstances, we find that this manner of picketing was calculated to bar and necessarily resulted in barring employees' ingress and egress at the plant. This conduct, we find, was not a peaceful or privileged com- munication of the facts of a labor dispute, as the Respondents insist, but amounted to an unwarranted restraint and coercion of employees in the exercise of their new statutory right to refuse to support the strike.9 The fact that Police Captain Barnes testified that traffic at or near the plant was not impeded, and that persons desiring to enter the plant were not prevented from doing so, does not detract from the unlawful and obstructive character of the picketing in ques- tion. We construe, as the Trial Examiner apparently also did, the import of Barnes' entire testimony in the light of all the evidence as merely indicating that the police, who were present during the crucial periods of the strike, could have facilitated the entry of employees into the plant. But the Act does not require that employees exercising their right to refuse to support the strike enlist the assistance of the police to gain access to and from the plant. Nor does the Act require then , is an instance of `peaceful persuasion ' . free from `picketing en masse or otherwise conducted , so as to occasion `imminent and aggravated danger' " In Bakery d Pastry Drivers Union v. Wohl, 315 U. S. 769, 775, Justice Jackson pointed out that "it is not indicated that there was an actual or threatened abuse of the right of free speech through the use of excessive picketing." [ Justice Douglas , concurring in that case, noted at p. 776 "Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another , quite irrespective of the nature of the ideas which are being disseminated . Hence those aspects of picketing make it the subject of restrictive legislation ." ] Finally , Justice Reed , in his dissenting opinion, in Carpenters and Joiners of America v. Ritter's Cafe, 315 U. S 722 , 738-739 , conceded "the right of the state to impose not only some but many restrictions on peaceful picketing. Reasonable numbers . . open ingress and egress . . . or other proper limitations , not destructive of the right to tell of labor difficulties , may be required." " Cf Matter of International Nickel Company,, Inc, 77 N. L. R. B. 286, and Matter of Dearborn Glass Company, 78 N. L R. B. 890 , where the Board held that "mass picketing" which had the effect of barring supervisory or rank and file employees from the plant, even though not accompanied by overt acts of violence , went beyond peaceful persuasion and constituted unprotected concerted activity , and that strikers who personally participated in such "mass picketing" were not entitled to reinstatement. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondents' efforts to prevent employees from entering or leaving the plant be successful.'° It is sufficient where, as here, it may reasonably be inferred from the manner of picketing that this conduct was calculated or tended to bar employees' ingress and egress. As in the case of the picketing on November 3 and 4, we find that the obstructive manner in which the "Taft-Hartley Demonstration" was conducted on November 21 also constituted restraint and coercion of employees prohibited by Section 8 (b) (1) (A). The record shows, as the Trial Examiner found, that between 1,500 to 2,000 persons par- ticipated in this demonstration marching back and forth in front of the plant. This demonstration which lasted about 50 minutes until finally dispersed by the police, effectively blocked the employees' main entrance to the plant at a time when employees normally reported for work. Whatever might have been its real purpose, it is clear that the demonstration involved support of the Cory strike.11 We find that the necessary effect of the manner in which the demonstration was conducted was to deny nonstriking employees access to the plant. In these circumstances, the demonstration cannot be explained or de- fended, as the Respondents propose, as a mere expression of views protected by the Constitution. The Respondents nevertheless urge that the picketing here involved did not fall within the proscription of Section 8 (b) (1) (A). It is argued that Congress intended to reach only "violent picketing in numbers," which was not the situation here. However, neither the language of the Act nor its legislative history as a whole supports the Respondents' assertion. It is clear from the language of Section 8 (b) 1) (A) that the proponents of the Act regarded violence in any form as coercive, irrespective of the number of participants. Legislative history supports the view that, in enacting this section, Congress also intended to prohibit conduct characterized by the popular term "mass picketing." These particular words, however, do not appear in the statute itself, and nowhere in the reports or debates is "mass picket- ing" explicitly defined 12 The term must, therefore, be read in the 10 Cf N. L. R. B. v. Illinois Tool Works, 153 F ( 2d) 811, 814 ( C. A. 7) ; N. L. R. B. v. Ford Bros., 170 F. ( 2d) 735, 738 (C. A. 6 ). Moreover , it is difficult, as a practical matter, to estimate the number of employees who, because of the obstructive character of the picket line , refused to risk crossing it. 11 Although the Respondents argue that the demonstration was a constitutionally pro- tected protest against the "Taft-Hartley Act," they conceded that it embraced support of the Cory strike as the means whereby the demonstrators expressed their opposition to employers' use of the Act "as a device for smashing unions " As indicated above, however, the Respondents did not limit their activity to a publication of, their views, but actually went ,beyond this by obstructing the employees' access to the plant. 12 See, for example , 93 Daily Cong. Rec. 3535 ( April 15, 1947 ) ; 4146 (April 25, 1947 ) ; 4560, 4562 (May 2, 1947) ; 6540 (June 4 , 1947 ) , H Rep. No. 245, 80th Cong., 1st Sess. ( 1947 ), p. 44; Sen. Rep No 105, Supplemental Views on S . 1126, 80th Cong., 1st Sess. ( 1947), p. 50. 1 - LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 977 context of Section 8 (b) (1) (A), which simply says that labor organi- zations shall not "restrain" or "coerce" employees. So read, it cannot be construed as contemplating that this Board shall affirmatively regulate the number of persons who may properly picket an estab- lishment. That is primarily a matter for the local authorities. Our function rather, as we see it, is limited to determining whether picket- ing as conducted in a given situation, whether or not accompanied by violence, "restrained" or "coerced" employees in the exercise of their rights guaranteed under the Act,13 and, if so,'to enjoin such conduct. In these circumstances, the number of pickets has relevance only as it tends to establish the potential or calculated restraining or coercive effect of massed pickets to bar nonstriking employees from entering or leaving the plant. Realistically viewed, restraint and coercion were the effect of the picketing we are called upon to appraise in this par- ticular case: that on November 3 and 4, and the "Taft-Hartley Demon- stration" on November 21. Nor is it a valid defense, as the Respondents urge that the large number of pickets was required as a demonstration of the strikers' solidarity and'unity and as an effective means of persuasion to meet the Company's alleged unscrupulousness in its labor relations. It is firmly established that good motives or intentions do not justify con- duct otherwise unlawful.14 In addition to their substantive attack on the Trial Examiner's findings, the Respondent Unions disavow any responsibility for the foregoing acts of restraint and coercion. It is contended that their liability under controlling common law rules of agency imposed by Section 2 (13) of the Act was not established. In any event, they argue, the acts of their purported agents were unauthorized and con- trary to explicit instructions. As indicated in the Intermediate Report and shown by the record, the Respondents Local #1150 and International were joint sponsors of the strike which was called as a consequence of a break-down in contract negotiations between Local #1150 and the Company.'° As such, they were jointly and severally responsible, under common law is The test is not ; as the Respondents interpret the Trial Examiner 's theory, whether the number of pickets is greater than that which is reasonably necessary to give notice of a labor dispute 'IN. L. R B. v Ilhnoi8 Tool Works, 153 F ( 2d) 811 (C. A 7). 15 We find no merit in the Respondent International ' s disclaimer of liability for the strike or the strike - activities It asserts that the advice, sympathy, and the little personal assistance and.financial support which it gave Local #1150, did not make it a cosponsor of the strike, and that the International representatives who were assigned to assist Local #1150 in its activities were, in effect, servants of that oiganization , These admis- sions and the extent of the International 's participation in the strike and the supporting activities plainly refute the International 's contentions. 853396-50-62 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD principles, for the acts of their own and each other's agents performed within the scope of their agents' authority or employment, as the case might be, even though the acts were not specifically authorized or in- deed were expressly forbidden."' It is clear that among the individual Respondents were union offi- cers, officials, stewards, and strike committeemen, 17 who played leading roles in calling and conducting the strike, personally engaged in the unlawful strike activity, or directed or incited other persons to commit such acts. These individual Respondents, we find, were clothed with authority to function as agents on behalf of the Respondent Unions in seeking by strike action to compel the Company to accept the Re- spondent Local #1150's contractual demands. Accordingly, we find that the various acts of restraint and coercion, committed as they were by the individual Respondents or at their direction or instigation in furtherance of the strike, were performed within the scope of their authority or employment. For this reason, we conclude that the Re- spondents Local #1150 and International were both answerable as principals for these unlawful acts 18 And it is of no significance that union officials might have forbidden the acts in question, especially since they themselves, in disregard of their instructions, engaged in, directed or instigated the unlawful conduct. Accordingly, we find that the Respondents Local #1150 and Inter- national and the individual Respondents except Lucas, Gilbert, and Bernard, as, their agents, restrained and coerced employees in viola- tion of Section 8 (b) (1) (A) of the Act. 16 Matter of Sunset Line and Twine Company (International Longshoremen 's Union), 79 N L R B 1487 ; Matter of Perry Norvell Company, 80 N. L. R. B 225 ; Matter of Smith Cabinet Manufacturing Company, Inc (United Furniture Workers ), 81 N L R B. 886 "The record shows that at all material times the individual Respondents held the following positions with the Respondent Unions ; Amato, president of Local #1150; Tirane, the Local 's business manager ; Lundgren , the Local 's secretary-treasurer and business representative-in-charge of the strike and the Cory unit ; Campbell, the Local's chief shop steward at the Cory plant and chairwoman of the Strike Finance Committee ; Charnota and Mansfield , shop stewards and strike committeewomen ; Turner, Interna- tional representative , Berman, Allen , Gilbert, and Bernard , International field organizers ; Kipta and Nieminski, strike committeewomen ; and Alice Smith , the International's district vice president The fact that we accept the Trial Examiner 's recommendation that the complaint be dismissed with respect to Lucas, Bernard , and Gilbert, whose illegal acts were confined to their participation in the "Taft -Hartley Demonstration ," does not preclude us from attributing their strike action to the Respondent Unions as their agents. Is Because , as noted above, we find that the Respondent Unions were responsible for the acts of restraint and coercion committed by their agents or at their direction or instigation , we consider it unnecessary to adopt one of the Trial Examiner 's theories that the misconduct of "pickets" was attributable to the Respondent Local #1150 because it held the pickets out as its agents. Cf. Matter of Smith Cabinet Manufacturing Com-' pang, Inc., supra ; Matter of Sunset Line and Twine Company, supra. LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 979 3. Apart from the merits, the Respondents urge that the complaint should be dismissed on the grounds, that : the labor dispute which gave rise to these proceedings has become moot; the Company's unfair labor practices provoked the strike and therefore, under the equitable doctrine of "clean hands" the Company may not avail itself of the benefits of the Act; and the Company was not a proper party to file charges involving a violation of employee rights under the Act. Like the Trial Examiner, we find these contentions without substance. As indicated in the Intermediate Report, our Order is necessary to effectuate the policies of the Act, which require not only that the effects of unremedied unfair labor practices be dissipated but also that recurrence of similar unlawful conduct in the future be pre- vented. With respect to the "clean hands" defense, we find, in addi- tion to the reasons set forth in the Intermediate Report, that the Com- pany's alleged unfair labor practices, if established, do not lessen the need for vindicating and protecting employee rights under the Act, which the Respondents have infringed,-much less justify the Respondents' violation' of these rights.19 As for the Respondents' final contention, Board Rules and Regulations 20 authorized the Corn- pany to file the charges herein. _ ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders the Respondent Local #1150, United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations ; the Respondent United Elec- trical, Radio & Machine Workers of America, affiliated -with the Con= press of Industrial Organizations; and their officers, representatives, and agents, including the Respondents Pat Amato, Irving Krane, Lee Lundgren, Irene Berman, Faye Campbell, Virginia Charnota, May Mansfield, Leo Turner, Roy-Spero, Virginia Kipta, Helen Niece xiiinski, Frank Allen, and Alice Smith, shall : - 1. Cease and desist from- threatening employees of Cory Corpora Lion, Chicago, Illinois, with loss of employment or other reprisals if they do not join Local #1150, United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Or- ']0 Matter of Sunset Lane and Twine Company, supra ; Matter of Smith Cabinet Manufac- turinq Company, Inc, supra. 20 Rules and, Regulations , Series 5, Sec 203.9, continued without change in this respect in Series 5, as amended August 18, 1948. 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ganizations; from assaulting, attempting to assault, or threatening with reprisals the Company's employees if they refuse to support the Respondent Unions' strike -at the Company's said plant; from engaging in picketing in such a manner as to bar employees from entering or leaving the plant; and from in any other manner restrain- ing and coercing the Company's employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, as guaranteed to them by Section 7 of the Act.21 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act, as amended : (a) Post at the business offices of Local #1150, United Electrical, Radio & Machine Workers of America, C. I. 0., and of United Elec- trical, Radio & Machine Workers of America, C. I. 0., in Chicago, Illinois, copies of the notice attached hereto as an appendix.22 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by an official repre- sentative of the Respondents Local #1150 and International, and individually by the Respondents Amato, Krane, Lundgren, Berman, Campbell, Charnota, Mansfield, Turner, Spero, Kipta, Nieminski, Allen, and Smith, be posted by the Respondents immediately upon receipt thereof, and 'maintained by them for a period, of sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily ,posted.. Reasonable steps shall be taken 'by the Respondents to insure that said notices are not altered, defaced, or covered by any other material; (b) Furnish to the Regional-Director' for the Thirteenth Region signed copies of 'the notice, attached hereto as an Appendix, for post- ink, the Company willing, on the bulletin boards of Cory Corporation where notices to. employees are customarily posted. The notices shall n The portion of the Order specifically enjoining threats of loss ' of employment to the Company's employees for not joining Local #1150, United Electrical, Radio & Machine workers of America, C. I. 0., is hereby directed against that organization and not against United Electrical; Radio & Machine, Workers of America, C. I. O. Except for this qualifi- cation, the Order is directed ,against both unions. Insofar as this Order is directed against the individual Respondents, however, each one is hereby enjoined from ' engaging in like or related conduct by which it-has been found he or she has restrained,or 'coerced employees in violation of Section 8 (b) (1) (A ) of the Act. a In the event that this Order is enforced , by 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." LOCAL NO 1,150, UNITED ELEC., RADIO & MACHINE WORKERS 981 be posted on the Company's bulletin boards and maintained thereon for a period of sixty (60) days thereafter. Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondents as provided in paragraph 2 (a) of this Order, be forthwith returned to the Regional Director for such posting; (c) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed with respect to Bernard Lucas, Irving Gilbert, and John Berliard,- and insofar as it alleges that the remaining Re- spondents violated Section 8 (b) (1) (A), except as found herein. APPENDIX NOTICE TO ALL PRESENT AND FORMER EMPLOYEES OF CORY CORPORATION, CHICAGO, ILLINOIS Pursuant to a Decision and Order of the National Labor Relations Board,- and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that : WE, LOCAL #1150, UNITED ELECTRICAL, RADIO MACHINE WORKERS OF AMERICA, C. I. 0., AND, VIRGINIA CHARNOTA, WILL NOT threaten employees of Cory Corporation with loss of employment or other reprisals if they,do not join said labor organization. WE, all the undersigned, WILL NOT assault, attempt to assault, or threaten the Company's employees with reprisals if they refuse to support a strike at the Company's said plant; or engage, in picketing in such a manner as to bar employees from entering or leaving the plant; or in any other manner restrain or coerce the Company's employees in the exercise of their right to self-organi- -zation, to'form, join, or assist labor organizations, to bargain col- lectively through representatives of their 'bwn choosing, and to engage iii other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any or all of such activities as guaranteed to them by Section 7 of the Act.* Pat Amato Leo-Turner' Irving Krane Roy Spero Lee Lundgren Virginia Kipta Irene Berman Helen Nieminski Faye Campbell Frank Allen Virginia Charnota Alice Smith May Mansfield LOCAL #1150, UNI'TED ELECTRICAL, RADIO eC MACHINE WORKERS OF AMERICA, CIO. Labor Organization. By ------------------------ ---------------------- Title of Officer UNITED ELECTRICAL, RADIO c^ MACHINE WORKERS, CIO. ----------------------------------------------- Dated ---------------------- Title of Officer 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. INTERMEDIATE REPORT Mr. Richard C. Swander, for the General Counsel. Meyers, Meyers and Rothstein, by Mr. David B Rothstein, of Chicago, Ill., and Mr. David Scribner, of New York, N. Y., for Respondents. Mn. Stanford Clinton,, of Chicago, Ill., for Cory Corporation. STATEMENT OF THE CASE Upon a second amended charge filed on April 14, 1948, by Cory Corporation, herein called the Company, the General Counsel of the National Labor Relations {Board, herein called the General Counsel and the Board,' respectively, as the context may require, by the Regional Director for the Thirteenth Region (Chi- cago, Illinois), issued an amended complaint dated April 14, 1948, against Local #1150, United Electrical, Radio & Machine Workers of America, herein called Local #1150, and United Electrical, Radio & Machine Workers of America, herein called the International, both affiliated with the Congress of Industrial *Insofar as this notice relates to the individual signatories, it is the purpose of this notice to notify the employees of Cory Corporation that each one will cease and desist from engaging in like or related conduct by which it has been found he or she has restrained or coerced employees in violation of Section 8 (b) (1) (A) of the Act. I Unless otherwise indicated all references to the General Counsel are to counsel appear- ing at the hearing on behalf of the General Counsel LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 983 Organizations, and their agents,' jointly called Respondents, 'alleging that Re- spondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and Section2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 1947, Title I, herein called the Act. Copies of the complaint, amendments, and supplemental amended complaint, accompanied by respective amended charges, and notices of hearing thereon, were duly served upon Respondents and the Company. With respect to unfair labor practices, the complaint, as amended, alleged, in substance, that Respondents Local #1150, and the International, through its named officers and agents, and the named individual Respondents , individually, and as officers and agents of said Respondents Local #1150, and the International, on various specified dates between September 3, 1947, and mid-January 1948, "in a pattern of organizational effort," by (a) various threats against employees of the Company who failed to join and aid a strike called by Respondents, (b) assaults upon employees who failed to join and aid the strike, (c) directing, leading, and engaging in mass and other unlawful picketing , and (d ) instigating, directing, encouraging, and supporting said activities , have engaged in "a plan and continuous course of conduct" which has restrained and coerced employees of the Company in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and their right to refrain from any and all such activities, guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) thereof. 2 The agents referred to are those named in the caption The original complaint, dated February 25, 1948, based on a first amended charge filed Februaiy 24, 1948 (the original charge having been filed November 4, 1947), named as Respondents only Local #1150 and its agents, the individuals named in the caption, except Alice Smith, Irving Gilbert, and John Bernard On March 15, 1948, amendments to the complaint,- relating the allegations to certain individual Respondents, was served on the parties. The hearing on the com- plaint, as thus amended, and a bill of particulars furnished in' response to an order of•the undersigned, was commenced on April 5, 1948 On April 12, 1948, while the hearing was in progress, the General Counsel gave oral notice of the intention of the Company to amend the charge, and of the General Counsel to amend the complaint, accordingly, by joining the International as party Respondent The hearing was thereupon adjourned, without objec- tion, to April 26, 1948 On April 20, 1948, a supplemental motion to amend the com- plaint, joining the International, and Alice Smith, Irving Gilbert, and John Bernard,, agents, as, parties Respondent, was granted, over Respondents' objection and motion to dismiss, and the adjourned date of the bearing was extended, by consent of all parties, to May 3, 1948. When the hearing was reconvened, counsel for Respondents, appearing generally for all Respondents, renewed his objection to the amendment of the complaint, on behalf of Respondents newly joined, substantially on the ground of denial of due process as to them Pointing out that counsel for Respondents, appearing on behalf of Respond- ents newly joined, had been present during the hearing, and had cross-examined freely with respect to evidence theretofore adduced, the General Counsel, nevertheless, offered to recall all witnesses who had already testified. This offer, as well as similar opportunity afforded by the undersigned, was declined Although standing on his general objection to the filing of the amended complaint, counsel for Respondents agreed orally upon the record that the evidence theretofore received, insofar as relevant and material to the issues, and having probative value, and subject to such rights as had previously been saved, night be regarded as having been offered with respect to the parties newly joined, as well as, against the original parties He further agreed that the new Respondents would not urge, as a ground for denial of due process, that evidence, received before they had been joined as parties, and while-they had not^•been; present or represented,by counsel, might, later .be made, the basis of any findings against them • 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.. On March 25, 1948, Respondents Local #1150,' and the agents named in the original complaint, and first amendment, moved to dismiss the amended com- plaint, to strike certain portions thereof, and for a bill of particulars, and filed their answer admitting certain of the allegations, denying others, and affirma- tively alleging the commission by the Company of unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of said Act, which, they con- tended, had provoked the strike and activities in which Respondents are alleged to have engaged. As grounds for their motion to dismiss, Respondents asserted (a) alleged variance between the amended complaint and the charge, (b) vague- ness and indefiniteness of the charge and the amended complaint upon which it was based, (c) failure of the allegations of the charge to set forth a violation of the Act, (d) failure of the charge to conform to the Board's rules of procedure, and (e) failure of the charging party to comply with Section 9 (f), (g), and (h) of the Act. The motion further challenged the. constitutionality of the Act. as discriminatory legislation, violative of the First and Fifth Amendments to the Constitution, and on the ground of vagueness, uncertainty, and indefiniteness, and, the absence of ascertainable standards by which Respondents could'deter- mine with certainty the rights, duties, and limitations imposed.' . The motion to dismiss, and to strike certain portions of the amended -complaint, was denied by the undersigned on March 31,-1948. In response to the order of the under- signed granting the motion for bill of particulars, in substantial part, a bill of particulars was furnished on April 2,1948.' Pursuant to notice, hearing was held at Chicago, Illinois, on various dates between April 5 and May 12, 1948, both inclusive, before Irving Rogosin, the Trial Examiner duly designated by the Chief Trial: Examiner.' The; General Counsel, the Company, and Respondents were represented by, counsel. Full opportunity was afforded all parties to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues. At the outset of the hearing, counsel for Respondents ' objected to the Com- pany's appearance and participation in the proceedings. The objection, renewed ,repeatedly throughout the hearing, despite a continuing objection granted Re- spondents, was overruled, and a motion to strike its appearance from the record, ,denied. Respondents' motion to dismiss, and to strike certain portions of the .amended complaint, renewed and argued orally, upon leave granted earlier by telegraphic order, was likewise denied. The General Counsel thereupon moved to strike from Respondents' answer certain affirmative defenses alleging the commission by the Company of various unfair labor practices. Respondents, in turn, moved to amend their answer by seeking affirmative relief requiring the Company to cease and desist from engaging in any of the unfair labor practices alleged by Respondents to have been committed by the Company. Respondents' motion was denied. The General Counsel's motion to strike was granted over Respondents' objection.' 2 The undersigned is bound by the holding of the Board that, as an administrative agency of the Federal Government, it is inappropriate for it to pass upon questions regarding the constitutionality of Congressional enactments. "Such questions will be left to the courts. In the absence of any court decision to the contrary, the Board assumes that the Act as amended does not violate any provision of the Constitution of the United States. . . . Matter of Rite-Form Corset Company/, Inc , 75 N. L. R B. 174, 176. 4 An allegation in the original complaint, that Respondents had engaged in picketing the residence of a company, official, was expressly withdrawn in the bill of particulars. The paragraphs stricken alleged, in substance, that on or about September 27, 1947, the Company, "by and with its officials, agents, and supervisors, conspired" to deprive its employees of their right to bargain collectively through their designated collective bargain- LOCAL NO. 1'150, UNITED ELEC., RADIO & MACHINE WORKERS 985 i As already noted, the 'supplemental ' motion to amend the complaint ,- joining the International, and certain named individuals , as parties Respondent, having been granted on April 20, 1948, all motions, and the answer , previously filed on behalf of the Respondents originally named; and all objections and motions previously urged on behalf of the original Respondents , were regarded as having ' ben made on behalf of those newly joined,' with similar rulings. Motion of the General Counsel to strike corresponding portions of the answer thus filed on behalf of those Respondents was also granted. At the close of the evidence, Respondents renewed motions, made from time to time during the hearing , to strike testimony of various witnesses, substantially on grounds of remoteness , lack of showing of agency, failure of proof, mootness , and the like , and also renewed earlier motions, to dismiss upon substantially the same grounds set forth in their original motion. The motions were denied. The General Counsel' s motion to amend the caption- on all formal documents , to transpose the names of the parties to conform to the- caption above, and to conform the pleadings generally to the proof, with respect to formal matters not affecting the substantive issues, was granted without: objection. At the conclusion of the hearing, all parties availed themselves of the oppor- tunity to argue orally on the record, but declined to file proposed findings of fact and conclusions of law, or briefs. Both the General Counsel and Respondents' counsel have, however, submitted informal memoranda of authorities relating to some of the issues involved. Upon the entire record in the case, from his observation of the witnesses, and upon the basis of a view of the plant site and the general locale in which events hereinafter described are alleged to hai e occurred, the undersigned makes the following: 71 • ' FINDINGS ,OF'FACT; - I. THE BUSINESS OF THE COMPANY Cory Corporation, a Delaware corporation, having its offices and manufactur- ing plant in Chicago, Illinois, is engaged in the manufacture and sale of coffee makers for restaurant and domestic use, restaurant equipment, electric and gas stoves, air circulators, and related products. Principal raw materials and supplies used in the conduct of the Company's business include glass, steel, brass, plastics, rubber, aluminum, and paper During the year 1947, the ag- gregate value of such materials and supplies was in excess of $5,000,00, of lug agent, and engaged in-certain unfair labor practices by (a) refusing to bargain with Respondent Local #1150 ; ( b) conducting, on company time and property , in the presence of, and with the assistance of supervisors and agents of the Company , an election among its employees of a "bargaining committee" for the purpose of bargaining collectively with the Company , ( c) restfaimng and coercing its employees with respect to said "election" ; (d) negotiating with such a committee , ( e) hiring "strikebreakers" on November 1, 1947, to replace employees on strike , and thereafter refusing to reinstate striking, employees ; and,, ( f) as part of said ""conspiracy ,:' deliberately provoking and causing the strike. Om April 7 , 1948, the Board denied ' Respondents ' request for leave to appeal the undersigned's ruling, and for oral aigument thereon, with the ruling , "The paragraphs stricken by the Trial Examiner do not appear to 'allege matters relevant or material to the allegations of the amended complaint." Respondents , thereafter , at various times, formally offered to, prove the allegations stricken from the answer, as well as the commission of other unfair labor practices by the Company . The offers of proof were severally ' rejected 6 With the modification that the 'allegation in the original answer that Respondent Union' had been collective 'bargaining representative of the Company 's employees for several years prior to September 27, 1947, should be construed as referring to Local ##1150, and not the International. 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which approximately 50, percent was purchased and shipped to the plant from points outside the State of Ilinois . During the corresponding period , the ag- gregate value of finished products sold, approached $10,000,000, of, which in excess,of 85 percent was sold and shipped from its plant to points outside the State of Illinois. The undersigned finds, contrary to Respondents' denial in their answer, that the Company is, and has been, at all times material, engaged in commerce within the meaning of the Act' II. THE ORGANIZATIONS INVOLVED , Local #1150, United Electrical, Radio & Machine Workers of America, and United Electrical, Radio & Machine Workers of America, both affiliated with the Congress of Industrial Organizations, are labor organizations admitting to membership employees of the Company. III. THE 'UNFAIR LABOR PRACTICES A. Restraint and coercion 1. Collective bargaining history ; events leading up to the strike For some 6 years prior to October 31, 1947, Local #1150 had been the recognized collective bargaining representative of the Company's production and main- tenance employees, exclusive of supervisory and clerical employees. Negotia- tions had culminated in written contracts, the last dated September 3, 1946, con- taining provisions for maintenance of membership, compulsory check-off, and agreement against strikes and lock-outs. The tei m of the agreement was for 1 year, expiring October 31, 1947, but automatically renewable annually there- after, in the absence of 30 days' written notice before any anniversary date by either Party.' Collective bargaining negotiations on behalf of the Company have been conducted generally by Piesident J. W. Alsdorf, Vice-President Ed- ward C. Neuman, and the Company's counsel, Stanford Clinton, who has formu-, lated its labor relations policies. On August 25, 1947, Local #1150, through Business Manager Irving Krane, served notice of its desire to reopen the contract, and offered to meet with the Company for the purpose of negotiations. Copies of a proposed contract with a covering letter, signed by Lee Lundgren, as field representative of the local, were submitted to Attorney Clinton on October 8, 1947. Several conferences were held, and, on about October 24, a week before the expiration date of the existing contract, a further conference was held at the offices of Company counsel. Vice-President Neuman and Attorney Clinton, repre- sented the Company ; Lee Lundgren, secretary- treasurer and field representative of Local #1150, Irene Berman, International field organizer, and the shop com- mittee, consisting of Chief Shop Steward Faye Campbell, Shop Stewards May Mansfield, Virginia Charnota, Ernesto Allegretti, Mildred McQuaid, Clara Allert, 4 These findings are based upon the undisputed and credited testimony of Edward C. Neuman, vice president in charge of plant operations of the Company , as modified by the testimony of James B. Matson, the Company's credit manager and accountant , based upon a compilation from the Company 's books and records " After the close of the hearing , the parties entered into a stipulation to reopen the record for the limited purpose of introducing in evidence a true and accurate copy of the contract. In accordance with the terms of the stipulation, the record is hereby reopened , the stipu- lation received, the stipulation and copy of the contract annexed thereto , received as Board's Exhibits No. 37 and 38 respectively , and the record closed. LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 987 and, Frank Ruby, appeared -for the locals The conference adjourned without success. Later that week, Neuman sent for the shop committee, summarized what, had taken place, and stated that the, Company would not bargain further on the basis of the Union's proposals. . - I At about 2: 30 on the afternoon of October 31, during working hours, Vice- President Neuman called a general meeting at the plant of all employees, includ- ing;executive, management, and supervisory employees. At Neuman's request, Attorney Clinton,- who had participated extensively in negotiations with the Union, addressed the employees. Announcing that there had been considerable discussion at the plant regarding the status of negotiations, he informed the employees that, because the contract expired with the close of business that day, he regarded it appropriate to make an official statement of the Company' s posi- tion so that the employees might be guided accordingly. He told them that he knew, from circulars he had seen, that a strike would be called next morning, but that the Company would not deal with Local #1150 because, in the Company's opinion, the Union no longer represented a majority. He added, however, that if and- when the local could establish. its majority status in a Board-conducted election, the Company would attempt to deal with it, but that he was convinced the Union would be unable to petition for an election because it had not complied with the non-Communist affidavit, and other filing requirements of the Act. Negotiations had collapsed, he said, because of the Union's refusal to agree to a provision guaranteeing the Company against strikes or other interruption in production, and granting it the right to discipline any employee engaging in such conduct. He added that although he regarded any union which refused to agree to such a provision irresponsible, and this Union, in particular, " a very bad union," "one of the worst labor organizations" in the country, and undoubtedly "Communist-dominated," the Company would nevertheless attempt to bargain with it in good faith if it weie certified by the Board In an effort to resolve this impasse, he told the employees, he had proposed that the provision be qualified to limit union responsibility for strikes, slow-downs, or other interruptions in production, to situations in which the Union had been directly responsible, had failed to use due diligence in preventing the action, or to direct the employees to return to work after the action had been taken, and that the Company would agree to arbitrate the issue of whether a strike, a slow-down, or other economic, action had ocurred, and which, if any, employees had engaged in such conduct. Once that issue had been determined, however, the Company's right to discipline any employee found to have engaged in such conduct was to be absolute, without recourse to the grievance procedure. This proposal, Clinton said, the Union had regarded as unacceptable. When, Clinton continued, he had pointed outlthat officials of international organizations affiliated with the CIO had agreed tot similar provisions, and that such provision was a "must," from the Company's standpoint, Lundgren had rejected it, commenting that "any labor leader who, had agreed to such a clause as [Clinton] proposed was selling out the workers; Y Local # 1150 is an amalgamated local representing employees in 23 plants in Chicago and vicinity. Its "staff" consists of 3 elected, salaried officials , Business ' Manager Irving Rrane, titular head of the local, President Pat Amato, and Secretary-Treasurer and Field Representative Lee Lundgren. Although each is assigned to "service" specific plants, all 3 confer in staff meetings regarding various problems involving the plants whose employees are represented by, the local . Lundgren's duties in connection with the Cory plant, assigned to him, included acting as representative of the local in thud step grievances. contract' negotiations , and arbitration, participating in membership meetings , and dealing with general complaints. 988 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD Clinton also told the employees that a "shop committee" had been elected by secret'ballot from amongi the employees ; that the committee 'had'presented cer- tain, demands ; and that, he was there to state the Company's proposal. With respect to the, Union's demand for a "package" adjustment of 'a 13-cent an hour increase, hospital insurance, and holiday pay,,he said that the- Company was prepared to grant the employee a package of approximately 1611 cents, to include a straight hourly increase of about 13% cents,!6 paid holidays, hospital insurance, and the option of retaining the existing incentive bonus, or about 8 cents an hour in lieu thereof. , Announcing that, the plant would be closed next day, Saturday, he stated that employees reporting for work the following, Monday would be paid for Saturday at the rate of time and a half.1° Employees not reporting for work on Monday, he told them, without a satisfactory excuse, would be-regarded by the Company as having resigned, and would be replaced with all diligence. Specifically, Clinton announced, the Company would not consider participation in the impending strike a good and valid reason for absence that day.- ' At, the conclusion of his address; Clinton, introduced Chief Shop Steward Faye Campbell, who had requested an opportunity to•reply, and who spoke briefly 11 2., The strike , • - "'Late the same afternoon, after working hours, pursuant to an announcement posted on plant bulletin boards, and notification by shop stewards, a meeting of Local`#1150 was•lield at a hall in the rear'of Bartek's Tavern in the general vicinity of the plant Approximately 150 or 200 members attended. Chief Shop Steward Faye Caipbell opened the meeting, and reviewed the negotiations, and her "argument" with Attorney Clinton at the general meeting of employees earlier'that afternoon She then introduced Lee Lundgren, secretary-treasurer and field representative of the local, who reported on the state of negotiations, and invited suggestions for further action. Upon motion from the floor, it was formally voted that Local #1150 would strike to enforce its demands Irene Berman, international field organizer, then invited those present to report for picket duty next morning. After the general membership meeting, an informal meeting of the shop stewards `was held, at which Lundgren and Berman in- structed them to report for picket duty early next morning, and cautioned ,them to conduct the picketing in an orderly manner, and to avoid any "rough stuff." Next morning, Saturday, November 1, at about 7 o'clock, members of the local reported at Baitek's Tavern, in the rear of which strike headquarters was established International Representative Leo Turner, the principal speaker, introduced by Lundgren, discussed the reasons for the strike, and admonished those present against, disorderly conduct, abusive language, and violence on the picket line, exhorting them to "keep it clean." Lundgren and International Field Organizer Berman'spoke in a similar vein. In addition to union officials already mentioned, Business Manager Iirane and President Amato, of the local, 1 10 Clinton testified that he was unable to recall whether payment of time and a half for. Saturday depended on whether employees had worked 40 hours previously that week The undersigned , regards resolution of this question immaterial to the issues. 11 These findings are based upon the undisputed and credited testimony of Stanford Clinton , called as a witness by the, General Counsel. Although some of the matters, con- cerning which Clinton testified , appear, toy-relate to affirmative defenses , stricken from Respondents' answer, the evidence was,received as background for the events which later occurred, and have not been considered as tending to establish unfair labor practices, alleged by Respondents to have been committed by the Company. LOCAL NO. - 1150, UNITED ELEC., RADIO & MACHINE WORKERS 989 International Field Organizers Frank Allen, Irving Gilbert, and John Bernard,' who, with Berman , were under the supervision of Turner , and Alice Smith, vice president and field ' organizer of District 11, were present . A schedule for picket- line duty was arranged, and a plan devised for maintaining a record of pickets: performing duty, by means of cards distributed to them, to be punched on their return from picketing . Lundgren , Berman, Campbell, Shop Steward Virginia Charnota, and, on occasions , other shop stewards were authorized to punch cards, and frequently did so. General direction of the strike , including picket duty, was under the super- vision of Lundgren , who, among other duties , prepared the schedule of picket duty, with the assistance of Berman. Meetings were held daily at strike head- quarters when pickets returned from duty at about 8 a. in. For the first two• weeks of the strike, International Representative 'Turner addressed these meetings nearly every morning. Thereafter , he appeared at these meetings one or two mornings each week until the latter part of November . Berman was pres- ent at strike headquarters daily during this period , participating in various activities in connection with the strike . Arrangements were made for the pur- chase of food , to be served the pickets, which was paid for by Local #1150. At the meeting Monday morning , November 3, after the pickets returned to strike headquarters , a strike committee,' consisting of 14 members , including Chief Shop Steward Campbell , 'Shop Stewards Charnota , Mansfield , and other shop stewards , in addition to Local Field Representative Lundgren and Inter- national Field Organizer Berman, was elected. Various other committees, in- cluding financial, .food, welfare, publicity ; "L," and "22nd Street" committees were also elected at this meeting 32 Campbell was designated chairman of the financial committee, and served in that capacity from the inception of the strike until late in March 1948. In this position , she handled finances in connection with the strike , maintaining a record of expenditures , and accounting for funds received by her from Local #1150. With Berman, she helped supervise the "kitchen," and assisted in the preparation of food for the pickets . Beginning in the latter part of November, the sum of $25 weekly was paid by Local #1150 , to various pickets, including Campbell , Charnota, Eleanor Janicek, Florence Suchanek , and others, as finan- cial aid to defray their expenses while picketing , though not, according to Camp- bell's testimony , as strike benefits or picket fees. 3. The plant site and vicinity The Cory Corporation plant, consisting' of an eight -story brick building, is situated on the west side of South Marshall Boulevard , at the corner of 21st Street, a narrow, "dead end" street, used principally for trucks and vehicles of the Company and its employees. South Marshall Boulevard is a broad thoroughfare with an over-all width of approximately 180 feet. The upper two stories of the plant are occupied by Fresh 'nd Aire Division of the Company , which shares a common shipping room, elevator, and a shipping platform, abutting the north end of the building on 21st Street, where a railroad siding is located. The plant has a frontage of 78 feet on South Marshall Boule- 12 The purpose of the "L" and "22nd Street " committees was apparently to picket at the Douglas Park elevated station entrance , and at the intersection-of 22nd Street and South Marshall Boulevard , in an effort to dissuade employees from going to work during the strike Although it was generally denied that these committees actually functioned, the preponderance of the reliable evidence establishes , as will later appear, that picketing was actually conducted at both these strategic points 853396-50-vol 84-66 990. DECISIONS OR NATIONAL LABOR RELATIONS BOARD yard, and. a• depth of 175 feet on-21st Street. 'The main entrance,, through a double glass door'6 feet wide, is-at the southeasterly corner of the building on, South Marshall -Boulevard; adjacent to the building line between the plant and that of Schaub Engineering Company, which adjoins the company plant on the south, and has a frontage on South Marshall Boulevard of 102 feet. To the south and west of the Schaub Engineering plant, and a part of its, premises, is an open areaway, or parking lot, enclosed on three sides by a wire' fence. In the fence at the rear, or west side, two gates afford access to the. rear of the Schaub Engineering plant. Abutting, he fence on the south, is an unpaved passageway about 7 feet wide, running east and west between South Marshall Boulevard on the east, and an alleyway running north and south, roughly.40 feet in width, at the west or rear of the plant and the Schaub Engi- neering Company. The unpaved passageway running east and west separates the Schaub Engineering premises from residential buildings on South ' Marshall Boulevard to the south. At the southwesterly corner of,the company plant, a, wire fence, containing a gate, extends across the alleyway at the rear of the plant, and another wire fence, extending only part way across the alleyway, is located at the northerly end of the smaller areaway thus formed, adjacent to the westerly end of the shipping platform. The sidewalk adjacent to the front of the plant, and the Schaub Engineering plant, on South Marshall Boulevard is approximately 8 feet wide. Adjoining the sidewalk on the east, between the easterly sidewalk line and the street, is a grass lawn or park, about 50 feet wide, extending from 21st Street on the north to 22nd Street, or West Cermak Road, as it is . also known, on the south, a distance of between 300 and 500 feet. About 150 feet north of the plant entrance, on the same side of South Marshall Boulevard, is the entrance to the Douglas Park elevated station's 4. Alleged coercive statements antedating the strike All but one of the allegations of the amended complaint relate to activities revolving about the strike. The one allegation regarding prior activity concerns an incident which occurred in September 1947, nearly 2 months before the strike, and while the collective bargaining agreement was still in effect. Although she had been employed at the plant since about March 1947, Pauline Ryczek had never joined the Union. According to her testimony, she was one of only four employees in her department who were not members. She had been invited to join by various shop stewards from time to time, but had refused. Early in September, Shop Steward Virginia Charnota, accompanied by Chief Shop Steward Campbell, and 'another steward, approached her on the lawn out- side the plant, told her that they were taking a poll to determine the number of union members at the plant, and invited her to join. When Ryczek replied that she was not interested, Charnota told her that she "had better [join] or [she] wouldn't hold [her] position even though [she] had been a pet of the com- pany." Charnota remarked that Ryczek was the type of employee that made it difficult for unions to organize, and reproached her for her lack of cooperation, observing that she "wouldn't be holding [her] job once"they had the organiza- tion in effect." A week or 10 days later, when Ryczek was about to leave on a trip, Charnota went to her department during working hours, and told her that 13 These findings are based upon the undisputed and credited testimony of Factory Manager 7 H Roberts , a plat prepared by him'based on measurements made at the site of the plant, and a view taken by the undersigned with the consent of all parties. LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE. WORKERS 991 if she'liked her work, and wished to continue in her job when she returned, she would,have to join the Union, because the department in which she-worked-was a "closed" department,-one which was "all union." 14 In determining whether these remarks constitute restraint and coercion, it is necessary to consider the circumstances which existed when they were uttered. With regard to union security, the collective bargaining agreement, in effect at the time, provided only that employees who voluntarily became members of the Union should be required to maintain such membership in good standing. To be eligible for membership, employees were required to complete a 30-day proba- tionary period of employment. Ryczek had been an employee' for approximately 6 months when the statements were made. At no time had she been required, to become a member of the Union as a condition of continued employment. With the passage of the amendments of the Act, effective August 22, 1947, nearly 2 weeks before the statements were made, it must be presumed,- both,as matter of law, and in fact, in view ot- the widespread -publicity given the, provision outlawing the closed'shop, that employees knew that, (except as to union-security conti acts seasonably renewed or extended, not' here applicable), they could no longer be required to become members of a labor organization as a prerequisite to continued employment. Clearly, Ryczek knew that she could not be required to join the Union even before the Act had been amended. She had consistently resisted the Union's overtures without the slightest effect on her employment. There is no sug- gestion that the Union had exerted any pressure upon the Company to aid it in recruiting membership among employees, or that the Company had manifested any disposition to do so. While determination of whether statements are coercive, does not depend on whether they have the intended effect, or upon the subjective state of mind of the hearer, it would be unrealistic to conclude that a threat, impossible of accomplish- ment, constitutes coercion. To analogize such a statement to the comparable statement of an employer, that an employee would not be permitted to retain his job if he joined a Union, is inapposite. In such a situation, an employer is in a direct position to carry out the threat. • Under the present Act, in. effect at the time the statements were uttered, it would have been entirely impossible for the Union to require the employee to join the Union in order to retain her job, except as provided by the union-shop provisions of the Act. The remarks of Senator Morse, in this connection, during the Congressional Debates, are pertinent : Mr. MORSE. . . . It seems to me that these regulations of the compul- sory membership contract effectively, as I have said, free employees of any possibility of economic coercion by unions, and are a complete answer to the pending proposal. It must be recognized that a union or its agents are in an entirely different position from that of the employer insofar as being able to make effective threats of economic coercion that do not constitute infractions of local criminal law is concerned. The employer has it within his power to deprive the employee of his job. That is the greatest economic weapon, coercively used, that could be leveled by an employer against a worker.... 14 These findings are based upon Ryczek's undisputed testimony. Although both Charnota and Campbell testified under subpena as adverse witnesses called by the General Counsel, they were not interrogated about, and did not deny the remarks attributed to Charnota by Ryczek. 99`2 - DECISIONS OF NATIONAL LABOR RELATIONS' BOARD Unions do not have such job control' over the workers. They cannot take the workers' jobs away from them especially in view of the protection we have- provided under our bill as far as the closed shop is concerned... . To the extent that there have been abuses by unions of the closed shop, the bill in other sections, as I have stated, provides ample protection against such abuses. Consequently, statements by union agents threatening employees with loss of their jobs if they do not join the union will be ineffective an(r empty threats. . . ' It may be argued, however, that the statements carry with them a connotation. of physical reprisals,, such as exclusion from the plant, either directed against the individual personally, or as a consequence of a strike or other economic- pressure. Reasonable construction of the language itself affords no basis for inferring such a threat, and the record discloses no evidence of prior conduct on the part of the Union which would warrant such a construction Moreover, since- it is clear that an organizational strike is not proscribed by the Act, as amended, except under circumstances not here applicable, such a threat to resort to strike action, express or implied, may not be regarded as coercion. A remaining question to be considered is whether the statement may be char- acterized as restraint and coercion because, as suggested by some legislators in' the Congressional Debates, it constitutes a misrepresentation of fact. Such a con- clusion would do, violence to the concept of free speech. In the absence of any false or fraudulent representation, "the right of free speech does not depend upon the accuracy of the ideas expressed." 10 Upon all the circumstances, the undersigned concludes and finds that the Re spondent Unions, or Respondents Charnota, Campbell, or either of them, indi- vidually, as agents, have not restrained oi• coerced employees, within the mean- ing of the Act, by the statements of Ryczek" 5. General picket line conduct On Saturday morning, November 1, 1947, about 200 persons, principally em- ployees of the Company, but including a token representation from other local unions affiliated with the International, began picketing the plant. According to the undisputed and credited testimony of Captain George T. Barnes, in charge of the labor detail of the Chicago police department, after learning of, the 'impending strike, he detailed eight or nine police officers, a sergeant and lieutenant, and eight officers in civilian clothes, to the site of the, plant. That day, and for some part of every day during the month of Novem- ber, Captain Barnes himself was at the scene,, generally arriving at about 6: 30' a. m. and remaining for 4 or 5 hours. 11 Cong Rec, May' 2, 1947 , p 4555 Senator Ices appeared to shale a similar view See, id , April 25 , 1947 , p 4142. Senator Taft 's statements in the Congressional Debates, in which he asserts thahstatements of the type here involved constitute coercion ,. (Cong. ltec , April , 25, 1)47, . p.,4142 ) ,,were, made in support -of•amendments establishing unfair labor practices by labor organizations or their agents The argument does not meet the issue of whether such statements'are coercive, since the enactment of the amendments, in view of the abolition of the , closed shop , and the Union's consequent inability to enforce the threat. 16 See Cong Rec, May, 2, 1947, pp 4555, 4561. 37 Although , as will later appear , Ryczek was subsequently assaulted during the strike, under circumstances found to constitute restraint and coercion by Respondents , this_ fact does not, affect the conclusion that the statements , discussed , in the text above were not coercive at the time they were 'made. '' -LOCAL NO.' 1150, UNITED ELEC., RADIO & MACHINE WORKERS 993 The first morning of the strike, some 200 pickets paraded along the entire front- age of the plant building and that of the Schaub Engineering Company adjoining the company plant." Other pickets,' according to Captain Barries'• uncontradicted and credited :tetii1iony,. were stationed in the vicinity of the company loading ,platform on 21st Street; and in the alleyway at the rear of the plant. The following-Monday, November 3, there were approximately 80 or 90 pickets, and the detail under Captain Barnes' command had been increased to about -25. Pickets, consisting of both men and women, included Blisiiiess Manager Irving Krane, Secretary-Treasurer and Field Representative Lee Lundgren,'Pres- ident Pat Amato, Chief Shop Steward Faye Campbell, Shop Steward and Strike Committee Member Virginia Charnota,'all of Local #1150, and International Representative Leo Turner, and his subordinates, International Field Organizers Irene Berman'and'Frank Allen, assigned by the International to Local #1150 'for the duration of the strike, and Alice Smith, 'vice president of District 11, covering UE locals in the States of Illinois, Minnesota, and Wisconsin.' Except for 'the number of pickets present the first 2 days of the strike, and -specific incidents mentioned later, the record discloses no evidence of disorders, "apart from the use by pickets of epithets, running the gamut of 'the picket-line glossary, generally regarded as the "nomenclature of the strike.s 1B ' Traffic at or near the site, according'to the credited testimony of Captain Barnes, was' not impeded, and persons desiring to' enter the plant were not 'prevented from doing so. The presence, of police, deployed about the plant entrance, I undoubtedly had a salutary effect -in' facilitating ingress and egress whenevei necessary.' No arrests were made by any 'officers from November 1 to Novemb'er'21; and; accord- ing to Captain Barnes, such arrests would have been directed had the law been violated. ' -1 ' Beginning on the-morning of November 3; however, activity on'the picket line intensified. When Captain Barnes arrived at about 6: 30 a. m:; there were "a hundred or more" pickets on the line. Pickets were relieved from time to time, -and- the number of pickets varied somewhat during the 4 or 5 hour's Captain Barnes was present. - Late that afternoon, injunction proceedings were instituted by the Company, 'in the Superior Court for Cook County. The number of pickets in front of the plant was ordered reduced to 10, and, on November 14, to 4. Nevertheless, on the :morning of November 4, according to Captain Barnes, there were still about 100 pickets in front of the plant. 'By 9 o'clock, however, the number had'been're- duced to 15 or 20, and; at times'to 8 or 10. Between 4: 30 and 5' 30 p. m:, when -employees left work, the number of pickets increased to about 50. - Except for specific ' incidents, to be mentioned presently, 'and the demonstra- tion of November 21, picketing at the plant, which has continued since with' only four pickets, has been peaceful and uneventful. The Company concedes ' that it has been in full' production since December 1, and there is no evidence "that =employees have been hindered or prevented from entering or leaving the plant, -or have otherwise been molested. - "According to Captain Barnes' estimate, there were approximately 150 pickets on the morning in question. The larger figure, however, is based on the testimony of various witnesses, and on a notation on a photograph taken by Police Officer Joseph Casey, official police photographer, on November 1, 1947, at 6: 45 a. in , and received in evidence, giving the number of "pickets in line" as 202. 19 See The Labor In/unction, Frankturter and Greene 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Specific incidents (1) On the morning of November 3, at about 7:30, Peter Calvello, superin- tendent of planning for the Company, arrived at the Douglas Park elevated sta- tion, approximately 150 feet north of the plant entrance. Arthur A. Shavey, an employee of Fresh'nd Aire Division of the Company, reached the station soon afterward Persons whom he did not recognize, "lining" alternate steps on the flight leading to the street level, asked where be was going, but he ignored them. When he reached the street level, there was a crowd, according to him, of about 500 persons milling about the sidewalk and the grass lawn in front of the station entrance, extending in the direction of the plant. Meanwhile, Calvello, who had continued to the plant, observed about 100 persons, congregated at the northwest corner of 22nd Street and South Marshall Boulevard, about 300 feet south of the plant, being harangued by Berman and Lundgren. Calvello went there, and, when he overheard the union representa- tives exhorting the persons not to enter the plant, told them that they had nothing to fear, urged them to follow him, and started back to the plant entrance. When he reached there, followed by the group, there were 4 police officers stationed about 2 feet from, and parallel with the building, permitting access to the entrance behind them. According to Calvello, about 135 pickets were then patrolling the entire front of the plant, in a circular course, about 10 feet from-the building line. - , Shavey had, meanwhile, reached the door of the plant, and, as he started to open it, remarked .to Calvello on the size of the crowd. Calvello, followed by ,some 25 persons, passed.behind the police as President Amato, in his place on the picket line, neared Calvello. According to Shavey, someone shouted, "Get him" and Amato lunged at Calvello with his fist, shouting, "You lousy scab." The. blow was averted, however, by the police, who put their shoulders together, and pushed Amato back. Calvello continued into the plant, but, of the 25 per- sons who had followed him, only 4 or 5 entered. Shavey, however, gained en- -trance without further incident.20 __ (2) The same morning when Pauline Ryczek, mentioned elsewhere, arrived at work between 7: 30 and 7: 45, she observed Berman, Lundgren, Allen, Camp- bell, Charnota, Helen Nieminski, Mary Wegzryn, Dorothy Chicocki, and Virginia Kipta, on the picket line. Business Manager Krane, according to Ryczek, though not on the picket line, was in the immediate vicinity. Wegzryn, Nieminski, Charnota and-Berman, addressing,her by name, called her, "a dirty, filthy scab," and Charnota and Nieminski shouted in unison, "You will get in [the plant], but we will get you when you get out." Ryczek passed behind the police, and entered. At 4:30 p. in., Ryczek prepared'to leave the plant, and, with four other female employees, waited inside the lobby for her brother to call for her. Sub- stantially the same group was on the picket line. Various persons in the group, observing her through the glass doors, taunted her with being afraid to leave, challenging her to come out, and threatening to "get" her no matter how long it took , This was accompanied by epithets from Charnota, Berman, and Nieminski, 20 These findings are based upon the undisputed. mutually corroborative testimony of Shavey and Calvello, and Maintenance Supervisor Andrew Surnun, who observed the inci- dent from inside the lobby through the glass doors Although Calvello was admittedly a supervisory employee, and, presumably, outside the protection of the Act, it is clear that the incident occurred in the presence of rank-and-file employees, and the undersigned finds that Amato's conduct, though directed against a supervisor, was nonetheless coercive of those employees. LOCAL NO-. 1150, UNITED ELEC., RADIO & MACHINE WORKERS .995 of "blonde hussy," "filthy model," "nudist model," "dirty hussy," "cheap scab," -"boss' son-of-a-bitch," and the like. . At about 4: 55, Ryczek left the plant with two of her fellow employees.. They continued-on South'Marshall Boulevard to 22nd Street, where they turned east toward California Street. One of her companions left at about this point, and ,the other parted from Ryczek soon afterward on an errand of her own. Ryczek had traveled about 50 yards east on the north side of 22nd Street when she was overtaken by Wegzryn, Nieminski, Chicocki, and Kipta. Nieminski seized Ryczek by the shoulders and pushed her against the building, while Chicocki and Wegzryn held her arms. During the encounter, Nieminski kicked Ryczek in "the pelvis" with her knee, while Wegzryn and Nieminski, shouting "dirty scab" and "lousy son-of-a-bitch," pulled at her hair.21 Stating that they were teaching her a lesson, Nieminski warned that if Ryczek went to work next day, she would receive the same treatment or worse. During the affray, which lasted 10 or 15 minutes, Nieminski's jacket was torn, and she insisted Ryczek would have to pay for the damage.22 Charles Emrick, an employee, arrived on, the scene, and the pickets who had engaged-in the assault, hastened away. Ryczek then telephoned Vice-President Neuman from a neighborhood drug store, and was later escorted home by a com- pany official.29 - Next day, Ryczek reported for work at about the same time. Among pickets when she arrived were Berman, Lundgren, Wegzryn, Nieminski, and a woman who formerly worked in Ryczek's department, whom, RJczek could only, identify as Blanche. Nieminski and Wegzryn asked Ryezek whether she ) had not had 'enough' the night before, and Blanche chided her with having told "the bosses" that she had received a broken leg in the encounter. Ryczek continued into the plant. - That day, Ryczek swore out a warrant for the arrest of the four girls who had participated in the assault. A similar .'arrant for assault and battery, sworn out by Nieminski against Ryczek, was still pending at the time of the instant hearing. On November 4, bail in the sum of $125 was furnished by Financial Secretary Lundgren, on behalf of Local #1150, for the four pickets who had assaulted Ryczek. Next day, trial was held on the assault and battery charges, against the four female pickets 21, 21 Kipta apparently took no part in the actual assault 22 It was stipulated-that Nieminski was- later, reimbursed by Local #1150 in the amount of $8.for the damage to her jacket za These findings are based on the credible testimony of Ryczek , substantially corrobo- rated by Emrick The only substantial variance between their version and that of Wegzryn and Kipta, who were called as adverse witnesses by the General Counsel. was that the latter witnesses testified that Ryczek threatened to slap Wegzryn, and that Ryczek kicked Nieminski in the abdomen Although Ryczek denied kicking Nieminski, it is probably that she did so. Inasmuch as her assailants had been the aggressors in this encounter, Ryczek's conduct did not exculpate them from responsibility for the assault. 21 Ryczek testified that the night before, between the hours of 6 p. in and 2 a. in., at intervals of 15 or 25 minutes apart, she received telephone calls from various unidentified ;persons warning her not to appear in court Among them she recognized Eddie Wilker- son, whom, she testified, she had seen on the picket line. According to Ryczek, he'told 'her that if she appeared in court she "wouldn't live to tell about it " One womaii, whom she thought she recognized as an employee in her department, but could not ,otherwise identify, told her that if she did not want to "get what [she] got the night before or more, [she] would stay away from court " In view of the lack of satisfactory Identification of the persons involved, and the absence of any showing, under established principles of agency, that they were persons for whose conduct Respondents .may be held liable; the undersigned finds that the telephone threats are not attributable to Respondents. 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) On the morning of November 3, shortly after 8 .o'clock, Maintenance Supervisor Andrew Surmin and John Steele, a maintenance man under his super- vision, were on the shipping platform, when about a dozen pickets, including Berman and Lundgren, appeared on the other side of some freight cars on the railroad siding adjacent to the platform. As Surmin began to unlock a gate in a wire fence at the rear of -the plant, Berman shouted, "stop the dirty rat," adding, "We'll get you tonight " Lundgren, too, made a similar threat, and, according to Surmin's -undisputed testimony, made a notation of the license number of Surlnin's car, parked about 20 feet away. The record is silent as to what oc- ,curred thereafter, but there is no showing that the threat against Surmin was thereafter executed." - I (4) Maxine Wilson, who had been a member of the Union until the strike began, arrived at work about 7: 45 on the morning of November 3, via the Douglas Park "L" Station. She was escorted into the plant, by Herbert Kasper, traffic manager and superintendent of production, and other employees, without inci- dent. Campbell, Lundgren, and others were on picket duty at the time. When Wilson left the plant at about 4: 45 p. rn , she observed substantially the same group of pickets, 1ncluIing,.Berman and Char'nota.• Accor`diug to-Wil- •son's uncontradicted testimony, Margaret Zuani, a striking employee, was stand- ing some 8 or 10 feet from the pickets. Chief Shop Steward Campbell was about opposite the plant entrance ; Zuani, about 15 feet from the door'- As Wilson left the plant, Zuani seized her arm, called her "a dirty scab," and slapped her face. 'The police intervened. On November 10, Wilson testified in the Superior Court in connection with the slapping incident." Wilson has continued to work for the Company without hindrance, except for epithets directed at her by Campbell, and a threat, one night iii January 1948, by Campbell that she and the other girls 2" These findings are based upon the undisputed and mutually corroborative testimony of Surmin and Steele. According to Steele, the men had gone to open the rear door "thinking the employees that wanted to come to work' would come in the back way " This appears to be supported by his further testimony `that Jim Dalton, a grmding'room employee, and apparently a supervisor, joined Surmin and Steele on the platform, and then walked out to the picket line and attempted to persuade "his girls,to come up to work " 2" Evidence was offered by the General Counsel, and by counsel for the Company, that at about 7 .45 p. in., of the day Wilson had appeared in court, she was approached at a secluded spot near her home by an unidentified person who called her by her "first name, and remarked, "That is a good job you did in court this morning against the union " He then asked her, in effect, why she did not support the Union, and invited her into his car, remarking, "Perhaps I can persuade you " When she refused, he pinioned her right arm behind her, and slashed her left arm with a sharp instrument This evidence, although offered at a time when Respondents' counsel had voluntarily absented himself from the hearing, and hence, without objection, was stricken by the undersigned on his own motion, on the ground that it had not been specifically alleged in the complaint, included in, the bill of particulars, or the amendments, to the complaint, and on the further ground of absence of identification of the person committing the assault as a person whose conduct is attributable to Respondents. The testimony. thus adduced and stricken was permitted to stand in lieu of an offer of proof, and excluded. Evidence, similarly offered, that on the 'morning of November 21, Jack Delaney, an assembly line foreman, was accosted, as he alighted from a streetcar on 22nd Street, intending to go to work, by four unidentified men, who had come from crowds congregated at the corner of 22nd Street and South Marshall Boulevard, and, after inquiring whether he worked for the Company, had forced him aboard a streetcar ; and that after leaving the streetcar some distance away; four different unidentified men forced him into an automobile and drove him about a mile, and, after warning him not to go to work, released him, is hereby stricken, upon leave reserved at the time of its receipt, for the reasons stated with respect to the evidence concerning Wilson, but is likewise regarded as an offer of proof. LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 997 would "get her" in front of her home. According to Wilson, she paid little attention to Campbell, and told her to "go to hell." (5) On November 3, at about 11: 45 a. in., Amie Bell, an afternoon shift em- ployee, was accosted by Esther Cieben. Eleanor Janicek, Florence Suchanek, and Helen Lilly, four striking employees, on the steps of the Douglas Park "L" Station. - They urged her tb return home, Cieben warning that if she went to work, they would "make it miserable" for her. Bell did n8t go to work that day. Next day, when Bell arrived at the station, Chief Shop Steward Campbell was seated, with five other girls, on a bench in the areaway leading to the street exit. Janicek, who had been present the previous day, was standing at the doors to the street. Stationing herself in front of Bell, Janicek asked her where she was going. Bell replied that she was going to work, and Janicek said, "No, you are not." Campbell then approached Bell, and remarked, "Now, you know if you go to work we will make it miserable for you, and you know we could " Bell returned home. • Next morning, November 5, Bell began to work on the day shift. She con- tinued to use the elevated for transportation, and observed no pickets thereafter at the station. When she arrived at the plant that morning, there were 8 or 10 pickets patrolling the plant entrance. As Bell started for the entrance, Strike Committee Member Charnota left the picket line, and urged, "Amie, you are not going to work, I thought that you were one of us." Bell ignored her and continued into the plant. Charnota warned, "We'll get you." Bell admitted, however, that she continued at work thereafter without molestation, except for the use of epithets by the pickets 27 (6) On the morning of November 4, employee Anna Dolezal was walking to work from 22nd Street to South Marshall Boulevard, accompanied by'Stephan Kucera, another employee. They were observed by Campbell and Lundgren, who,' after conversing between themselves, were joined by International Field Organizer Berman. Lundgren appealed to Dolezal and her companion not to be "scabs" and "take bread out of the fellow-workers' hands." Pursuing them, he threatened to "kick the - out of [them]." 28 Dolezal and Kucera continued without further interference. Next morning, again accompanied by Kucera, Dolezal encountered Strike Com- mittee Member Charnota near strike headquarters on 22nd Street or West Cermak Road. In the presence of some seven or eight female striking em- ployees, Charnota told Dolezal, "You'll be sorry," presumably alluding to her failure to respect the picket line. Dolezal and Kucera proceeded toward the plant,- but the "crowd" of girls, whom Dolezal identified as striping department employees, blocked their way. During the encounter, Kucera was thrust against a car, but he pushed the striking employees aside, and assisted Dolezal in making her way through the group. As she proceeded, one of the group punched her in the ribs. I ' (7) The same'morning, November 5, Henrietta Spravka,an employee, accom- panied by another female employee, was accosted on 22nd Street, near the intersection of South Marshall' Boulevard, by a woman whom she knew only as Frances, but whom she had seen on the picket line earlier that week. Greeting the women with, "You' dirty' scabs," Frances remarked, "You are going to get your puss smashed in before this is over." Except for this incident, Spravka 37 Bell's testimony concerning the November 5 picket-line episode is corroborated by the testimony of Foreman Joseph Kerhlikar , who met her at the elevated station on his way to work, and accompanied her to the plant. , 28 Obscenity deleted. t 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to work during the strike, without molestation, although warned by pickets at various times not to go to work. She did, however, use a circuitous route In walking from her home to the plant, to avoid groups of persons congregated on the corners opposite the plant, and at 22nd Street and South Marshall Boulevard. (8) On a number of occasions, during the first'week or week and-a half of the strike, Guereno Fiordnso, supervisor in the Fresh'nd Aire humidifying depart- ment, observed Edward Marusch, a striking employee from his department, on the picket line at the plant entrance. On one -of these occasions, at about 7:30 a. in., Fiorenso encountered Marusch in a group, while the former was on his way to the plant. Marusch, remarking that several girls had gone into work that day, told Fiorenso, "Let's see you get some production out," adding, "tell them for me when they come out tonight they are going to get their heads bashed in." According to Fiorenso, three female employees, presumably in his department, had returned to work after an absence of a week or week and a half. Fiorenso admittedly did not deliver the message to these employees, and they continued t' work thereafter, apparently without molestation. In the absence of any showing that Marusch's remarks were made in the presence of other employees, or were communicated to these or other employees, the undersigned finds that these remarks addressed to the supervisory employee, do not constitute restraint and coercion of employees within - the -,meaning of the Act. (9) On the morning of November 20, there were four pickets in front of the plant entrance-International Field Organizer Berman, President Amato, Chief Shop Steward Campbell, and Shop Steward May Mansfield. As em- ployees arrived at work, Berman told the women that "they could come down and pick up their checks and also pick up their guts" next day. Amato threat- ened to "take care" of any employee who might be disposed to give him "an argument." Employees crossing the picket line were also told to "be sure to come down [next day] and see the fun," and female employees were told that there would be "some hair-pulling." The persons to whom the remarks were addressed continued into the plant without further hindrance.2 (10) Next morning, November 21, between 6: 30 and 7 a. in., Shop Steward Charnota, stood at the southeast corner of 21st Street and South Marshall Boulevard, across from the plant, with a group of 25 to 50 men and women. On request of 2 men in the group, Charnota identified various employees of the Company apparently on their way to work. Asked by one of the men whether a female passer-by was an employee, Charnota told him she was, but instructed him to "leave her alone" because she was secretary to the vice president of the Company 84 Although •Charnota ,admitted her, presence at the time and place, she denied that she had been assigned there, testifying that she was present out of curiosity about the demonstration scheduled for -later that morning. Whether or not she was actually assigned to that vantage point, the above incident, and the record, clearly establish that she utilized the opportunity to identify em- 29 These findings are based upon the credible testimony of Police Officer John Cagney. Although Berman equivocally denied the statements attributed to her, and Amato, though testifying that he could not recall whether he was on the picket line on this occasion, denied , or was unable to recall, statements ascribed to him and Berman, their testimony was unconvincing. - Charnota's testimony-indicates that she'-was also on the-picket-line that day, but it is not clear whether she was present on the occasion in question ' - 20 This testimony is based on the credible testimony ' of Police Officer John- Cagney, whd was stationed at the corner at the time. ' 0 : LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 999 ,ployees of the Company to her fellow-strikers, and, as member of the strike committee, to enlist their aid in an attempt to prevent employees from going to work, by means which exceeded the bounds of peaceful persuasion. By the -foregoing conduct, Respondent Charnota restrained and coerced employees within the meaning of the Act.8' (11) At about 6: 45 on the morning of November 21, about 15 pickets were patrolling the alleyway at the rear of the Schaub plant, near the southwesterly corner of its premises, and the westerly end of the unpaved passageway, running east and west, between the alleyway and South Marshall Boulevard. Another smaller-group was congregated, whether actually picketing is not altogether clear, some 50 or 75 feet northwest of this point, toward the rear of the company plant. Persons on their way to work at this point were intercepted and asked their destination. Most of them, arriving on foot or by automobile, identified them- selves as Schaub Engineering employees, and were permitted to proceed to the plant, or to park their cars in the Schaub parking lot. At about 7: 20, Walter Chmura, a Cory employee, was on his way to the plant, which he approached from the alleyway at the rear of the plant of the Schaub Engineering Co., and that of the Company. Chmura started across the alleyway, intending to use the narrow, unpaved passageway connecting the alleyway with South Marshall Boulevard, as a short-cut to the plant, when President Amato, on the picket line nearest the passageway, accosted Chmura and asked where he was going. Chmura gestured toward the Cory plant. Thereupon, Amato struck him on the left side of his face below the eye. As Chmura started running toward the passageway, Amato shouted, "There goes one of them sons of bitches. Get him." Roy Spero, one of the pickets," intercepted Chmura, and also struck him. Police Officer George Popalski, on duty in the alleyway, and observing the incident, apprehended Amato, and turned him over to Police Officer Syl- vester Mlot, his fellow-officer, also stationed in the alleyway, while Popalski pursued and apprehended Spero. The two officers then escorted Amato and Spero through the passageway to South Marshall Boulevard, where they reported to Captain Barnes, and, on his instructions, placed the men in the patrol wagon, and returned to their posts. Chmura, visibly shaky and nervous while testifying, a condition which he conceded was normal for him, and somewhat vague as to details, testified that he was struck once, and only by Amato. Officer Allot, however, who witnessed the episode. testified that both Amato and Spero struck Chmura, though, according to his testimony, in reverse order, Spero shouting to Amato to intercept Chmura. Spero denied that he had struck Chmura, testifying that he was certain he had not touched him. He admitted, however, that when he saw Chmura, the,latter "broke away from [him] and ran," and that he,,Spero, "[might] -have-reached this] hand out," motioning him to stop. Amato, who testified as an adverse witness for the General Counsel, denied that he had been picketing at the time, 11 The record also indicates that during the early days of the strike, Chief Steward'Camp= bell made a list of employees entering the plant Her explanation that she did this as a matter of personal curiosity is not persuasive. The record, however, does not afford a substantial basis for concluding that she did this for any unlawful purpose. 11 Spero, an individual Respondent, member, and chief shop steward of Local 1114, affiliated with the International, had been at strike headquarters earlier that morning, on instructions from the field representative of his local, in connection with the demonstration scheduled for later that morning. After meeting Amato there, Spero went to the plant, and joined the picket line in the alleyway at the rear Amato accompanied him or joined him later. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and testified that he had merely gone to the rear of the plant to ascertain whether there were any pickets there. He was not asked categorically whether he had assaulted Chmura, and did not deny that he had done so. Although there is some confusion in the testimony as to the order in which the events took place, the undersigned concludes and finds, upon a reconciliation of the testimony, and particularly, on the basis of the credible and substantially mutually corroborative testimony of the police officers, that both Amato and Spero assaulted Chmura, and that, in doing so, they were acting within the actual and ostensible scope of their employment, as agents of Local #1150. (12) Charles Runik, a company plant engineer, reported for work on Wednes- day, November 5, after being absent on Monday, the first working day after the commencement of the strike. According to his testimony, he experienced no• difficulty entering the plant through the picket line, and was not threatened, assaulted or molested in any way, except for being called a scab, until November 21. On November 21, however, he and his brother, William, also an employee, arrived at the plant at about 7: 30 a. in., intending to go to work. They were standing on the lawn adjacent to the sidewalk, about 30 feet from the entrance, with several hundred persons between them and the plant entrance, when Chief Shop Steward Campbell, on or near the picket line in front of the plant, nodded toward the Runiks. With that, three or four men approached them. One of them asked Charles Runik whether he worked at the plant. When he admitted that -he did, the man "shoved" the Runiks and told them to "beat it." As the Runiks turned to leave, William was on Charles' right. When Charles next noticed his brother; the latter was lying sprawled on the ground at his left. William got up, revealing a swelling over the right eye, which was bleeding. Although Charles did not see his brother struck, the latter told him, in the presence of the men who had approached them, that he "must have been socked by that guy that gave him a shove." Charles recognized none of the men, and was unable to testify where they went after the episode. Despite the presence of police about half a block away, they made no report or complaint regarding the-incident. Charles Runik left the Company's employ soon afterward 33 It is clear from the foregoing that the men who had ordered the Runiks away from the plant, were acting on instructions, implicit, at least, from Chief Shop Steward Campbell. While the evidence- does not disclose which of the men assaulted William Runik, the circumstantial evidence reasonably warrants the inference that one of them did so, presumably the one who had "shoved" him- The silence of the men, in the face of William Runik's accusation that he had been "socked" by one of them, and especially Campbell's failure to disavow the act; obviously' committed in her presence, near the picket line, supports this con- clusion: Since the record abundantly establishes Campbell's status' as• a respon- sible agent of Local #1150, and since' her "instructions" to the • men, and the assauft'which followed,, were within the scope of, her actual, as well as ostensible, authority, it is found, that both she, and Local #1150, on whose behalf she was acting, are responsible for the remarks and conduct of the unidentified persons. (13) At about 7: 45 the same morning, Joseph Walicki, a company, employee, arrived at the Douglas Park Station: 'When he reached the street level, there 't - 33 The findings regarding this"episode are' Based upon ' the credible testimony of Charles Runik. William,Runik , though employed at the time of the"hearing , at the same place as Charles, 'according ' to the latter, ' was' not Icalled as Ia- witness , and 'no explanation was offered for his failure to testify.' ' LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 1001 were about 10 persons near the station entrance, and a crowd, according to him, of 800 to 1,000 persons, evidently participating in the demonstration, pres- ently to be discussed, near the entrance to the plant. At about 8 o'clock, he was accosted by three men at the northwest corner of 21st Street and South Marshall Boulevard, near the plant. One of them, identi- fied as International Field Organizer Allen,39 asked whether he intended to go to work that day. Walicki replied that he would try, but that lie "didn't think [he] would make it." As the men passed Walicki, he was struck on'the left jaw, obviously by one of them, and fell to the ground. Walicki was later removed in a police car, and taken to several police stations in an attempt to have him identify the man who had assaulted him from among persons who had meantime been taken into custody. He was unable to do so, and was returned to the plant. Allen, however, was put under arrest by Captain Barnes.' Despite Allen's denial that he had struck Walicki, or anyone else that day ; his testimony that he did riot consciously lay hands on anyone, and that he saw no one struck that day, the circumstantial evidence points strongly to his having been the assailant. In any event, it is clear that he was one of the persons in the immediate vicinity when the assault occurred, a fact which he did not deny. in view of his status as an accredited representative of the International, the nature and extent of his activities during the strike, and his failure to disclaim or repudiate the commission of the assault at the time, the undersigned finds that Allen is responsible for the assault on Walicki, and that the same is attribut- able both to Respondent Local #1150, and the International, upon the grounds found below. Walicki was not prevented from entering the plant prior to, and has not been prevented from doing so since, this occurrence. He received no first-aid or other treatment for his injuries, and, according to his testimony, has lost no time from work. (14) The same morning, shortly before 8 o'clock, Clara Moskal, secretary to the Cory production engineer, arrived at the Douglas Park Station. As she descended the stairs to the street level, there were about 50 persons, obviously striking employees, on the stairs. Some 100 persons were congregated in front of the entrance to the station at the street level. The procession, mentioned later, was apparently in progress, and she observed several hundred persons on South Marshall Boulevard between the "L" station and 22nd Street. She was joined, at the corner of 21st Street, by Estelle Kwiatkowski, a fellow-employee. The two women were talking in a group at the corner of 21st Street on Marshall Boulevard, when Chief Shop Steward Campbell told them "to get moving or else [they would] get hurt, because the union members [could not] distinguish between the office help and the factory help." The two women decided to cross to the east side of South Marshall Boulevard, when International Field Organizer Allen tore the lunch bag from Moskal's hand, spilling part of the contents. Moskal threw the rest at Allen. Almost immediately, the assault upon Walicki, de- scribed above, occurred behind her, and she observed Allen walking away, Kwiat- kowski complained to the police that Allen had "grabbed" Moskal's lunch, and 84 Allen was positively identified by various witnesses by his height and general appear- ance, and especially his conspicuous attire, on the day In question , consisting of a tan corduroy jacket and hunting cap. as The findings regarding the assault on Walicki are based on his credibile testimony, partially corroborated by Clara Moskal and•Estelle Kwiatkowski, as related in the incident which follows. l 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Captain Barnes ordered him placed under arrest, advising Moskal to remember Allen's name. Shortly after 8 a in., a group of about 10 office girls, including the 2 men- tioned, met at a tavern at the corner of 21st and California Streets, from which they were escorted to the plant, a few at a time, -by some men furnished by the Company for the purpose. The crowd had meanwhile dispersed, and they succeeded in enteiing the plant without incident." (15) At about 7:45 that morning, Delia Cisko, an employee of the Company, arrived in the vicinity of the plant. The sidewalk adjacent to the plant was completely obstructed by a large crowd overflowing the sidewalk. When she reached the east side of South Marshall Boulevard at the corner of 21st Street, opposite the plant, various persons in a group of about 10, congregated at that point, warned her not to enter the plant if she knew "what [was] good for [her] " She crossed to the plant, near the pickets, when a female Negro picket left the line, seized her violently by the coat collar and snatched her lunch. The police interceded , and assisted Cisko into the plant, without further incident." (16) On Sunday, November 7, Nathaniel Ward, a Negro employee and former union steward, was visited by four Negroes. The men inquired, from occupants across the hall, where Ward lived. When one of the men identified himself to Ward's nephew as a cousin of Ward, the nephew denied that Ward resided there. Later, Ward himself told the men that he did not know anyone of that name. The men left. Next morning, Ward confronted International Field Organizer Berman on the picket line in front of the plant, and told her not to send any men to his home, warning that he was prepared to defend his home. According to Ward, Berman made no response." Early in December, Ward received a telephone call from a woman, whose voice he recognized , and who identified herself as Berman. She asked whether he realized what he was doing in "taking sides" with the Company. Reminding him that he resided in a neighborhood in which many union men lived, she asked how he thought he would look in the eyes of the Union if he were "shown up as a scab." Ward replied that the Company no longer recognized the Union, that he was "through" with the Union, and that he wished to work for the Company. Berman rejoined that the Union had "ways of keeping a scab out of work per- manently" after the strike was settled, and warned him not to go to work."' Although it appears that Ward continued in his employment at the plant thereafter, without interference or molestation, so far as the record reveals, Berman's remarks, clearly threatening reprisal for Ward's failure to support the strike, constitute restraint and coercion. The test, as has frequently been said, is not whether the statements or conduct succeed or fail, but whether they are reasonably 'calculated to restrain or coerce. "Where the act was coercive, as found here, it is not necessary to show that the coercive conduct had its 38 These findings are based on the credible and mutually corroborative testimony of Moskal and Kwiatkowski 87 It is apparent that this was either the same group , or part of the group, near which steward Charnota was stationed at the time, pointing out various company employees to strike sympathizers . Under these circumstances, for reasons already stated, and in view of Charnota's status as a responsible agent of Local # 1150, it is found that the assault upon Cisko is attributable to, Charnota , as agent, and to Respondent Local #1150. ae In the absence of any identification of these men , or any showing as to the purpose of their visit, the undersigned is unable to find that the evidence regarding this incident is sufficient to support a finding of restraint or coercion by Respondents, despite Berman's failure to repudiate the visit of these men, or to deny the implications in Ward 's remarks. 39 The findings are based upon Ward 's credible and uncontradicted testimony. LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 1003 desired or intended effect. The remedy furnished by the Act is available whether coercion succeeds or fails." 40 On about December 10, at about 5 :15 p in, vice-President Neuman's car had stalled near the plant. Herbert Kasper, traffic manager and superintendent of production, Maintenance Alan Steele, Neuman, and three police officers were present. The police offered to assist in starting Neuman's car and, when they undertook to push it ^vith a police car, the bumpers became engaged. Inter- national Field Organizer Allen "heckle[d]" the men, asking whether the Coin- pany paid the police for that service, "too," and hinting about the Company's political influence Finally, Neuman directed Steele to procure something with which to separate the cars Steele returned with a 9-foot length of pipe, and, when the police requested Allen to step aside, he challenged them to compel him to do so, chiding Steele, meanwhile, as "Newman's stooge." After some 20 minutes. the ,,cars were' disengaged., As Steele returned to the plant, Allen followed him and remarked, "I would like to ram that pipe down your throat and rupture you permanently so you can't work any more." 41 At about 9 o'clock that night, Steele, on his way home via the Douglas Park Station, encountered Allen on the elevated steps, standing in his path, his arms extended at full length. There was no one else present. As Steele approached him, Allen dropped his arms, but proceeded to harangue him with questions as to why he worked for the Company, and how much he earned, ridiculing him as a "sucker" for working there. Ignoring him, Steele continued upstairs to the station platform, Allen accompanying him. When they reached the plat- form, there were other persons present, and Steele was not further molested. Finally, Allen's train arrived, and he boarded it, calling after Steele, "There goes a scab ; there goes a sucker." The tenor of the incident as a whole indicates that Allen's purpose in attempt- ing to detain Steele was primarily to persuade him to support the strike. Steele's testimony, that he was frightened by the encounter, is not, of course, an objective test of whether the conduct was, in fact, coercive. It is apparent that Allen, though attempting to detain and delay Steele in order to remonstrate with him, made no threat of force. The right to attempt to persuade, however, does not carry with it the right to detain the listener against his will to hear the exhortations of the speaker. To this extent, Allen's conduct exceeded the bounds of peaceful persuasion. Inasmuch, however, as Steele was not actually pre- vented by Allen from continuing on his way, and was not molested , except by the use of customary picket-line epithets, the undersigned finds the evidence insufficient to justify a finding of restraint and coercion. 7. Concluding findings regarding foregoing (a) Responsibility of Respondent Local #1150 The record establishes that on October 31, 1947, at a meeting called for the .purpose, a majority of the members of Local #1150 voted to take strike action 'against the Company. President Amato notified the International of the de- 40 Etastia Stop Nut 'Corporation, v. N. L. R. B , 142 F. (2d) 371, 377 (C. A. 8) ; N. L R. B v. Crown Can Company, 138 F. (2d) 263, 267 (C. A. 8) ; Western Cartridge Company v. N L. R B, 134 F (2d) 240, 244 (C A 7) 4i Although Allen denied the remark, his denial is not credited. Clearly,' however, the remark falls short of being a coercive threat . At most, the remark ' is merely an expression of a wish, however fervent, and falls in the category of picket -line parlance. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cision, and, although the record is silent as to any official action by that organiza; tion, it is evident from the subsequent events that the strike action was author- ized or approved, and later ratified, by the International. In any event, no issue has been raised by that Respondent that the action taken by Local #1150 had not been authorized by the parent organization as required by its constitution and bylaws. It is not seriously disputed that the conduct of Respondents, President Amato, Business Manager Krane, Secretary-Treasurer and Field Representative Lund- gren, salaried and elected officers of Local #1150, Chief Shop Steward Campbell, by virtue of her office, a member of the Executive Board of Local #1150, under its constitution and bylaws, and Shop Steward and Strike Committee Member Charnota, may be imputed to Local #1150, and that the activities of those individuals in connection with the strike were within the scope of their authority, actual or ostensible. As elected officials of Local #1150, they were generally charged with responsibility for the conduct of the strike and the activities in support thereof. In the main, they were the principal participants in the activi- ties alleged in the complaint to constitute restraint and coercion. With respect to the activities of the pickets, particularly Respondent Niemin- ski, the action taken by Respondent Local #1150 sufficiently establishes that the pickets were held out as agents of that Respondent, and that the misconduct of the pickets is equally attributable to it. Thus, Respondent Local #1150 elected a strike committee, and various other committees, including financial, food, wel- fare, "L," and "22nd Street" committees, which functioned during the strike. Schedules of picket duty were established, and a method devised for maintaining a record of persons performing picket duty. Pickets were instructed with respect to conduct on the picket line, by representatives of both Respondent Local #1150, and Respondent International. Pickets were assured by officials of Res- pondent Local #1150 that bail would be furnished on their behalf by that Union, in the event they were arrested for activities in connection with the strike. Bail was, in fact, later furnished by the Local for persons so arrested, and legal counsel was provided in connection with the injunction and contempt proceed- ings, as well as for the defense of individual Respondents to the unfair labor practice charges in the instant proceeding. One picket, Respondent Nieminski. was reimbursed by the Local for damage to her apparel during an assault upon an employee. In addition, beginning late in November 1947, and through Febru- ary 1948, pickets who participated in picket duty were admittedly paid $25 weekly by the Local, allegedly to defray their personal expenses. Thus, it is established, that whether or not the misconduct was actually authorized, the activities of the pickets were subsequently approved and ratified by Local #1150. While the credible evidence reveals that representatives of both Local #1150, and the International , had issued instructions to pickets to refrain from dis- orderly conduct, abusive language, and violence, it is apparent these instructions were disregarded. This, however, does not excuse the Local from responsibility for acts of its agents committed in violation of instructions, since it is well estab- lished that such acts, though forbidden or done in a forbidden manner, may yet be within the scope of the agent's employment ; and that a principal may be subject to liability if the agent, while intending to act for the principal, makes a negligent mistake of fact, or, in an excess of zeal , uses more than necessary force, commits an error of law as to his privilege , or commits an act combining all LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 1005 these errors, especially where the nature of the employment is one which, as here, is likely to bring the agent into conflict with others.42 Moreover, it is clearly established that, although responsible representatives of both Local #1150, and the International, were either present when many of the acts complained of were committed, or learned of them soon afterward, they took no steps to repudiate or disavow the unlawful conduct, or to discipline any of the participants. At most, according to International Representative Turner, and District President Ernest DeMaio, they questioned the persons charged with the misconduct, concluded that the charges were unfounded, and took no further action, despite complaints by company representatives,- and the institution of civil and criminal proceedings against the persons so charged. Furthermore, the preponderance of the credible evidence establishes that many of the most flagrant instances of misconduct on the picket line were committed by responsible officials of both labor organizations, namely, Amato, Lundgren, Campbell, and Charnota of Local #1150, and Field Organizers Berman and Allen of the International. It is, therefore, found upon the basis of the foregoing, and the entire record, that Respondent Local #1150, and the individual Respondents Amato, Lund- gren, Campbell, Charnota, Mansfield, Kipta, Nieminski, and Roy Spero (who, although not an official or member of Local #1150, has, for reasons already stated, in connection with the incident in which he participated, been found to have been an agent of Local #1150), have, as agents of Respondents Local #1150. and that Respondent Local 4t1150, acting through, and by its officers and agents, has, i estrained and coerced employees of the Company, within the meaning of the Act.43 (b) Responsibility of Respondent International Despite the absence of any showing of formal authorization of the strike by the International, it affirmatively appears that International Representative Turner, and his subordinate, Field Organizer Berman, had been assigned by the International to Local, #1150, to assist in connection with the labor dispute at the' company plant 44 41 See Restatement of the Law of Agency, American Law Institute (1933) §§ 230, 231, '245, page 550. 43 Under ordinary principles of agency, both the agent and the principal are liable for the tortious conduct found to have been committed. "An agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the prin- cipal or on account of the principal, except where he is exercising a privilege of the prin- cipal, or a privilege held by him for the protection of the principal's interest." Restate- ment of the Law of Agency, supra, § 343. It is clear that the acts committed by the agents cannot be regarded as the privilege of the principal, and the agents, as well as the principal, are liable Section 8 (b) of the Act, directed against "labor organization[s] or [their] agents," does not, because phrased in the disjunctive, preclude a finding against both. Principles of statutory construction establish that the word " or" Is frequently used and intended to mean "and," except where the clear intent and purpose of the statute, or the legislative history, otherwise requires. See Statutes and Statutory Construction, J. G. Sutherland, Third Edition, § 4923, footnotes 1-4. 44 Although Turner testified that lie had not been specifically assigned to the Cory strike. lie stated that he had general authority to "step in [to]" any strike situation wherever he deemed it necessary ; that he was consulted by representatives of Local #1150 regarding action taken during the strike , and that lie received reports from both Lundgren and Berman in connection with the Cory strike. The undersigned regards the testimony, that he was not specifically assigned to the strike, as immaterial, in view of his position as Interna- tional Representative, and the extent of his activities and participation in the strike. 853396-50-vol 84-67 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, Berman had participated in the unsuccessful negotiations which culmi- nated in the strike . Turner, during the week prior to the strike, had attempted to address employees of the Company by means of a public address system outside the plant, and, after being prevented by Captain Barnes, succeeded in making a speech near the plant entrance during the lunch period . In addition, Berman had been present at the meeting of Local #1150 , when the strike action was taken ; had urged members to report for picket duty ; and, with Secretary- Treasurer Lundgren , had addressed the informal meeting of shop stewards, instructing them to report for picket duty , and advising them as to their behavior on the picket line. Other representatives of the International , namely, Field Organizers Frank Allen , Irving Gilbert , and John Bernard, all under the supervision of International Representative Turner, and named, with Turner and Berman , as individual Respondents , and Alice Smith, vice president of District 11, also participated in the strike , to varying degrees. . Again, at the meeting at strike headquarters the first morning of the strike, attended by all the International representatives named, in addition to officers of the Local, International Representative Turner, as well as Lundgren and Berman, addressed the assembly , and issued instructions regarding the manner of picketing. Although Lundgren was generally in charge of the strike, he was assisted substantially by International Field Organizer Berman , who arranged picket duty schedules , prepared the text for strike leaflets , assisted in the supervision of the kitchen and preparation of food for pickets, patrolled on the picket line, and engaged in other miscellaneous activities in connection with the strike." It is not seriously disputed that International Representative Turner, and Field Oi ganizer Berman, were actively and extensively engaged in the strike at the company plant. Respondents contend, however , that, because they were assigned by the International , with other field organizers , to Local #1150, their activities are attributable solely to the Local , and cannot be imputed to the International . The undersigned rejects this contention. It was stipulated at the hearing that International field organizers while assigned to the Local , received their regular salary and expenses from the International during the entire period of the strike, and received no remuneration from the Local." At all times during the strike, they were under the direct supervision of, and responsible to, Turner , an official of the parent organization, Field Organizers Gilbert and Bernard devoting a portion of their time , during this period , to other matters within the jurisdiction of District 11. Field organ= izers, though acting generally in aid of the Local, were subject to recall , assign- ment, termination , or removal by the International. The suggestion that the Local might if it desired , request the recall or removal of field organizers assigned to it, a situation which had never arisen in actual practice , does not alter the conclusion that field organizers remained under the supervision and direction of the International . Moreover, the International was apparently under no obligation to accede to such request . As International representative, Turner reported to the International regarding this, and other strikes then in progress, and the activities of its field organizers in connection with them. "The record also discloses that during the progress of the strike , Berman engaged in a public debate on the subject of the Cory strike with Company Attorney Clinton at the YMCA, and later participated in a public "mock trial " of the Company at the Auditorium in Chicago 4i Except for Field Organizers Allen and Gilbert , who received reimbursement for gas and oil used in their automobiles in connection with visitation to strikers in about March 1948 , for the purpose of obtaining pledges of reaffirmation to the Union LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 1007 It is apparent from the foregoing and the entire record, that International Representative Turner and Field Organizers Berman and Allen, and Field Organ- izers Gilbert and Bernard, for a portion of their time, at least, in their activities in connection with the strike, were acting both on behalf of the International, and Local #1150, and that Respondents International, and Local #1150, are jointly and severally liable for the activities of these persons in furtherance of the strike. (c) Restraint and coercion The complaint alleges that Respondent Unions, and the individual Respondents named, on various dates, specifically, on November 1, 3, 4, 14, and 21, directed, led, and engaged in mass and other unlawful picketing of the plant entrance, the rear of the plant, and various "transportation points" in the vicinity. That picketing by at least 200 persons was conducted on Saturday, November 1, the first day of the strike, and by 80 to 100 persons on November 3 and 4, is established by the record. It is further established that picketing, by substantial numbers, far in excess of that necessary to give notice of the labor dispute, was maintained during this period at or near the entrance to the Douglas Park Elevated Station, and the stairways leading thereto. The record, however, does not establish that picketing in such numbers continued after November 4, following the issuance of the injunction, apart from the demonstration on November 21, discussed later. Although some picketing undoubtedly took place at the rear of the plant during this period, it appears that the number of pickets did not exceed 15 or 18 at any time. Respondents contend, however, that mass picketing cannot be established by mere showing of numbers. Obviously, no specific or categorical definition of mass picketing, in terms of the exact number of participants, applicable to every situation, can be laid down. Determination of what constitutes mass picketing must necessarily depend on the circumstances of each case. It is sufficiently established, here, that, for at least 3 days, between 80 and 200 pickets patrolled, in a circular or elliptical course, over a sidewalk 8 feet wide, the 78-foot frontage of a plant. Such picketing would necessarily result in obstruction of the side- walk, and interference with ingress and egress at the plant entrance. Employees, willing to cross a picket line, are not required to await a fortuitous breach in the line, and to so time their entrance or exit as to avoid encounter with the pickets. Nor, are they required to enlist the aid of police in order to gain ingress to or egress from the plant. Moreover, there is ample authority for the proposition that force of numbers alone, even where picketing is conducted peacefully, has an intimidatory and coercive effect upon employees otherwise willing to cross a picket line. Picketing of such character exceeds the bounds of peaceful per- suasion, and is not privileged or protected as free speech " The legislative history of the amended Act, although nowhere undertaking to define mass picketing, in terms of numbers, makes it abundantly clear that picketing of the type described is clearly proscribed. The House Conference Report No. 510 on H. R. 3020, at page 42, declares that Section 8 (b) (1) and Section 7 of the amendments finally adopted cover all activities proscribed by House Bill, Section 12 (a) (1). House Report 245 on H R. 3020 states, This section forbids force, violence, physical obstructions or threats thereof in labor disputes and forbids picketing in numbers or in ways other than is reasonably necessary to give notice of a labor dispute at the place being 41 See American Steel Foundries v. Tri-City Central Trades Council et al., 257 U. S 184. 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picketed. . . . It forbids exercising free speech by engaging in mass picket- ing and by intimidation. [Emphasis supplied.] It can hardly be contended that the picketing on the first 3 clays of the strike, in the numbers, and in the manner established by this record, however peaceful, was "reasonably necessary to give notice of a labor dispute." Such conduct clearly amounts to mass picketing and is violative of the amended Act. ". . . Mass picketing is unlawful as an exercise of constitutional guarantee of freedom of speech and assemblage; nor is such picketing peaceful on the theory that it is to demonstrate power of numbers engaged in the strike, their earnestness and solidarity so as to impress employers and the public with the serious reality of their move to improve their condition." " Upon the basis of the foregoing and the entire record, the undersigned finds and concludes that the picketing on November 1, 3, and 4 in front of the plant, as well as at the Douglas Park Elevated Station, constituted mass picketing of the type contemplated in the legislative history of the amended Act, and that by directing, leading, and engaging in said mass picketing, Respondents Local #1150, the International, and the individual Respondents Amato, Krane, Lund- gren, Campbell, Charnota, Mansfield, Kipta, Nieminski, Turner, Berman, Allen, and Smith, shown to have directed, led, or engaged therein, have restrained and coerced employees of the Company in the exercise of their rights guaranteed in Section 7 of the Act, as amended, in violation of Section 8 (b) (1) (A). It is further found that, by (1) the attempted assault on November 3, by President Amato upon Peter Calvello, a supervisory employee, in the presence of rank-and-file employees; (2) the assault the same day, by Respondent Nieminski and other pickets, in the presence of Respondent Kipta on Pauline Ryczek; (3) the,threats of physical violence by International Field Organizer Berman and Local Field Representative Lundgren against Supervisor Surmin, in the presence of his subordinate; (4) the assault by Margaret Zuani, in the presence of Chief Steward Campbell and other pickets, on Maxine Wilson, as she was leaving the plant; (5) the threats of reprisal by Esther Cieben, in the presence of other pickets, against Amie Bell at the Douglas Park Station, similar threats, on Novem- ber 4, by Chief Steward Campbell, and the threat of reprisal against the same employee by Shop Steward and Strike Committee Member Charnota, for crossing the picket line; (6) the threat of assault by Lundgren against Anna Dolezal and Stephen Kucera, and the assault, the following day, by a striking employee, upon Dolezal in the presence of Charnota; (7) the threat of assault against Henrietta Spravka, on November 5, by a striking employee in the vicinity of the plant; (8) the threats of violence, by Amato and Berman against employees crossing the picket line, on November 20; (9) the assault, on November 21, by President Amato and Roy Spere on Walter Chmura ; (10) the assault the same day, in front of the plant, upon William Runik, upon implicit instructions from Chief Steward Campbell; (11) the assault, the same day, by International Field Organizer Allen, or some person in his presence, or under his direction, upon Joseph Walicki; (12) the assault by Allen upon Clara Moskal, in front of the plant; (13) the warning, by a group of striking employees, to Delia Cisko, not to enter the plant, and the assault upon her by a picket, soon afterward, as she attempted to enter the plant; (14) the telephonic threat of reprisal, in December, by Inter- national Field Organizer Berman against Nathaniel Ward, for failure to support the strike ; and, finally, by the various statements and threats of reprisal and violence; by the various assaults and acts of physical violence, more specifically 48 U. S. Electric Motors Inc. v United Electrical Radio & Mdchine Workers of America, CIO, Local 1421, Cal. Sup. Ct. (1946) 17 LRRM 824. LOCAL NO. 1150, UNITED ELEC., RADIO & MACHINE WORKERS 1009 detailed above, and by the mass picketing on November 1, 3, and 4, Respondents, Local # 1150, the International, and their respective agents, Pat Amato, Irving Krane, Lee Lundgren, Faye Campbell, Virginia Charnota , Virginia Kipta, Helen Nieminski, Roy Spero, Leo Turner, Irene Berman, and Frank Allen, individually named as Respondents , have restrained and coerced employees of the Company in the exercise of their rights guaranteed in Section 7 of the Act , in violation of Section 8 ( b) (1) (A). 8. The "Taft-Hartley Demonstration" In about mid-November, International Representative Turner notified various CIO locals in the Chicago area, of a special meeting called by District 11, to be held at the Midland Hotel . The meeting , at which Alice Smith, vice president of District 11, presided , in the absence of President Ernest DeMaio, was attended by officials of the CIO locals. The assembly was apprised of the "situation" at the Cory plant. The Taft-Hartley Act, and the extent to which, according to the Union , the Company had been exploiting the Act to destroy the labor organi- zation, was discussed . The meeting was then turned over to Turner , who re- viewed the events, reading from a prepared "Time Table of Cory Strike," copies of which were distributed to those present. The "time table" summarized the chronology of events from October 22, 1947, when negotiations for renewal of the contract , expiring on October 31, had begun , through November 12, when a con- tempt citation for alleged violation of the injunction had been sought by the Company. It was resolved that those present be constituted as the JOINT LABOR COMMITTEE TO FIGHT TAFT-HARTLEY ACT. At a second meeting, held at union headquarters ," International Representative Turner was selected secretary of the newly formed committee . A decision was reached to stage a mass demonstration at the plant of the Company , in protest against the Taft-Hartley Act. A telegram , notifying of the decision , was dis- patched to all persons whose names appeared in the directory of CIO members in the Chicago area. Leaflets, announcing the time and place of the demonstra- tion,--Friday morning, November 21, 6: 45 a. in. at strike headquarters-were distributed in bulk to various CIO locals , including Local #1150 , for distribu- tion at plants throughout the city. At a meeting at strike headquarters, on No- vember 17, the protest demonstration was discussed, and those present were urged to participate. At the appointed time and place, a large crowd of CIO members and sympa- thizers, assembled . Strike headquarters were completely filled, and the crowd overflowed in substantial numbers into the street . Turner, after stopping at the plant , arrived at strike headquarters at about 7: 30 a. in. The meeting was in progress , with Donald Harris, an official of the United Farm Equipment & Metal Workers of America, a CIO affiliate, and chairman of the Joint Labor Committee , presiding. He, and Michael Mann, an official of the CIO Regional Office, addressed the assembly , after which Turner spoke . It was publicly an- nounced that the purpose of the meeting was to conduct a joint demonstration of various CIO affiliates against the Taft-Hartley Act ; that the Company had been the "principal user " of the Act in that area ; and that the demonstration was for the purpose of protesting the manner in which the Company had utilized -'Both Local #1 150, and the International , occupied offices in a building at 166 Wash- ington Street, Chicago. The meeting was held in a hall, at that address, used by various CIO locals 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act against the Union. Harris and Turner each announced that the assem- blage would parade and demonstrate in front of the Cory plant. The crowd which had assembled at strike headquarters, numbering between 1,500 and 2,000 persons, thereupon joined ranks on the sidewalk outside strike headquarters, and marched east for a distance of about a city block, until it reached the corner'of South Marshall Boulevard. The procession turned north on the west side of the Boulevard, remaining at all times on the sidewalks, except for possible stragglers, or persons overflowing the sidewalks. The march- ers proceeded north on South Marshall Boulevard, six or eight abreast, in an orderly procession, singing or chanting, "The CIO is behind you." Heading the procession were Sven Anderson, vice president of Local 453, International Auto- mobile, Aircraft & Agricultural Implement Workers of America, (UAW-CIO), Joseph Levy, an official of United Office and Professional Workers, CIO, Busi- ness Manager Irving Krane, Local #1150, James Pinta, an official of Interna- tional Union of Mine, Mill and Smelter Workers, John Bernard, International field organizer, and Bernard Lucas, representing the International Longshore- man's and Warehousemen's Union, all affiliates of the CIO. When the procession reached a point approximately 30 feet south of the Cory plant, Captain Barnes halted the procession, charged the marchers with unlawful assemblage, and ordered them to disperse. They ignored'his command, and con- tinued their parade. Captain Barnes stepped out of the line of march, and the procession continued to the corner of 21st Street There, Barnes overtook the leaders of the procession, and placed Anderson, Krane, Lucas, and Levy under arrest, turning them over to the custody of police officers, who placed them in a ,patrol wagon. At the corner of 21st Street, the marchers about-faced and counter-marched to the corner of 22nd Street, or Cerinak Road, where they reversed their march, past the plant to 21st Street. In this fashion, according to Captain Barnes' un- disputed and credited testimony, the procession made 10 or 11 round trips in front of the plant. During about 50 minutes, from 7: 30 to 8: 20 a. in., Captain Barnes indis- criminately, and at random, placed under arrest 182 persons participating in the procession, and turned them over to his officers, who placed them in waiting patrol wagons. Lack of an adequate police force, and police conveyances, prevented further arrests. By this time, the procession had dispersed, and only the regular pickets, who continued to patrol in front of the plant entrance, remained. While the procession was in progress, International Representative Turner mounted an electric light pole, about 50 feet from the plant entrance, and at- tempted to make a speech to-a group of about 100 persons, congregated between that point and the plant entrance. He succeeded in announcing that the purpose of the demonstration was to protest the Taft-Hartley Act, when Captain Barnes placed, him under arrest 60 Despite the demonstration, a few employees succeeded in gaining entrance to the plant. Approximately 90 percent, however, was absent from work this day, and a remaining 5 percent was tardy, according to the uncontradicted and credited testimony of Traffic Manager and Superintendent of Production Herbert Kasper. 11 The evidence on which these findings are based is substantially undisputed The findings regarding the origin of the demonstration are based principally on the testimony of International Representative Turner; those regarding the procession, and the events following, on the testimony of Captain Barnes, Police Officers Mlot, Cagney, and William F. Smith. LOCAL NO: 1150, UNITED ELEC., RADIO & MACHINE WORKERS 1011 9. Contentions ; conclusions regarding the Taft-Hartley Demonstration The General Counsel contends, in effect, that the demonstration, whatever its object, amounted to mass picketing of the type proscribed by the Act. Respond- ents, on the other band, to the extent that they,have adopted a position, contend that the demonstration, sponsored and participated in by various locals and af. filiates of-the CIO, solely as a protest against the Taft-Hartley Act, and foi which Respondent Unions are not primarily responsible, constituted a parade, constitutionally privileged as free speech and assembly. It is evident, from the foregoing, that the demonstration was initiated by International Representative Turner at a special meeting called for the purpose, at which Vice-President Alice Smith of District 11 presided, in the absence of President Ernest DeMaio. Although the ostensible purpose of the projected demonstration may have been to protest the Taft-Hartley Act, it is clear, from what occurred at this and the subsequent meeting ; the selection of strike head- quarters as the assembly point for the demonstration ; the public announcements regarding its purpose ; and the designation of the company plant as the site of the demonstration, that the real and underlying purpose was to-mobilize the support of CIO-affiliated unions for the strike against the Company, then current. Moreover, it,is significant that all expenses in connection with the demonstra- tion, including transmission of telegraphic notices to constituent locals, circulars announcing the demonstration, and rental of the room in the Midland Hotel, where the organizational meeting of the Joint Labor Committee was held, were paid by Local #1150. Reference to the leaflet, the text of which has been annexed hereto, as Appendix A, clearly indicates that the Company was the actual target of this demonstration, and that the protest against the Taft-Hartley Act, as such, was incidental. It is noted, also, that, according to International Representative Turner, between November 1947, and February 1948, the International contrib- uted the suns of $1,000 to Local #1150, not specifically ear-marked, to replenish the Local's treasury, depleted during the strike. Application for further funds, according to District President DeMaio, was still under consideration by the International at the time of the hearing. Despite participation by various affili- ated labor organizations, the record sufficiently establishes that the demonstra- tion was sponsored and underwritten by Local #1150, with the assistance, finan- cial and otherwise, of the International. The undersigned finds, therefore, on the basis of the foregoing and the entire record that Respondents Local #1150, and the International, are responsible for the demonstration which occurred on November 21. Respondents' contention that a parade or procession of the type described is protected by the constitutional, guarantees of freedom of speech and assembly, is without merit. It is_not disputed that the so-called parade was held without a permit. Unlike conventional parades, the procession did not march in the streets of the city, but paraded on the sidewalks, from strike headquarters to the com- pany plant, where it paraded back and forth in front of the plant, in a manner in which picketing is usually conducted, until intercepted by the police. Without passing upon the question of the' effect of failure to procure a permit for the parade, or of the possible violation of any municipal, or other ordinances, a matter, presumably, the concern of local police authorities, it is clear that the procession. as conducted on the day in question, constituted mass picketing in aggravated form. As has already been noted, "... mass picketing is unlawful as an exercise of the constitutional guaranties of freedom of speech and assem- blage; nor is such picketing peaceful on the theory tha it is to demonstrate power 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of numbers engaged in the strike, their earnestness and solidarity so as to im- press employers and the public with the serious reality of their move to improve their condition." 63 Nor, is it a defense to a charge of mass picketing that the demonstration was intended merely as a peaceful protest against the Taft-Hartley Act 52 Its obvious purpose may have been to demonstrate in protest ; its necessary effect was to prevent ingress and egress at the plant by sheer force of numbers. It is, therefore, found upon the basis of the foregoing and the entire record, that by initiating, sponsoring, promoting, directing, leading, and engaging in the procession, an aggravated form of mass picketing, at the Company's plant on !November 21, 1947, Respondents #1150, and the International, and their respec- tive agents, have restrained and coerced employees of the Company in the exercise of their rights guaranteed in Section 7 of the Act, as amended, in violation of Section 8 (b) (1) (A). With respect to Bernard Lucas, a representative of the Longshoremen's Union, named as Respondent, the only evidence in the record of misconduct with which he is sought to be charged, is his participation in the demonstration. Inasmuch as he was merely one of a number of representatives of other labor organizations, affiliated with the CIO, who participated in this demonstration, and there is no showing that his activity went beyond that of other such representatives, not named as respondents, it will be recommended that the complaint against him be dismissed. The extent of the activity of Respondent Alice Smith, though confined to pre- siding at the meeting which culminated in the formation of the Joint Labor Committee to Fight the Taft-Hartley Act, and her participation in mass picketing during the first days of the strike, is, however, sufficient, in view of her office as vice president of District.11, to render her responsible as an agent of the International, for her activities-in connection with the unlawful conduct during the strike. Evidence regarding the activities of Respondents Irving Gilbert and John Bernard, both field organizers of the International, appears' to have been limited, except for Bernard's participation at the head of the procession, to occasional picketing, on undisclosed dates, during the strike The undersigned does not regard that effectuation of the purposes of the Act requires that they be held responsible, individually, as agents; for any of the activities engaged in by either of them, or by Respondent Unions during the'pendency of the strike. It will, therefore, be recommended that the complaint be dismissed with respect to Respondents Irving Gilbert and John Bernard. On the basis of the foregoing and the entire record, the undersigned finds that, by the statements, threats, acts of violence, mass picketing, and other unlawful conduct hereinbefore found to have been committed, Respondents Local #1150, and the International, and the individual Respondents Pat Amato, Irving Krane, Lee Lundgren, Faye Campbell, Virginia Charnota, May Mansfield, Virginia Kipta, Helen Nieminski, Roy Spero, Leo Turner, Irene Berman, Frank Allen; and Alice Smith, as agents of Respondents Local #1150, and the International, respectively, have restrained and coerced employees of the Company in the exercise of their rights guaranteed in Section 7 of the Act, thereby violating Section 8 (h) (1) (A). 61 See U. S. Electrical Motors Inc. v United Electrical, Radio & Machine Workers of America, CIO, Local'1421, supra "See General Electric Company v. United Electrical, Radio it Machine Workers of America, CIO, 33 Ohio Opinions 4 (1946), 18 L. R R M 2038. LOCAL NO. 1'150, UNITED 'ELEC., RADIO' &MACHINE ' WORKERS 1013 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Unions, set forth. in Section III above, occurring in connection with the operations of the Company, described in Section I above, have a close, intimate, and substantial relation to trade, traffic,, and commerce, among the several States, and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of-commerce V. THE REMEDY It has been found that Respondent Unions, and certain individual Respondents, named as their respective agents, have engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. It will, therefore, be recom- mended that Respondents, and each of the individuals found to have been re- sponsible as agents, cease and desist therefrom and take certain affirmative action in order to effectuate the purposes of the Act. Respondents contend, and, indeed, the record establishes, that any unfair labor practices committed have long since ceased, and it appears, according to the Company's concession, that the plant has been in full and uninterrupted production, at least since December 1, 1947. Respondents contend, therefore, that the issues have become moot and that no useful purpose can be served by the issuance of a cease and desist order. It has ,been well established' that mere abandonment of unfair labor practices does not deprive the Board of the right to make a finding thereon, and to issue an appro- priate remedial order. Moreover, the undersigned believes that such an order is required to prevent the recurrence of similar unlawful conduct by Respondents in the future. Respondents further' contend, however, that, even though they may be found to have committed unfair labor practices, the Board ought not, as a matter of equity, to exercise its power to issue a remedial order, chiefly, on the ground that the Company has itself been guilty of unfair labor practices, as originally alleged in their answer. These allegations were stricken, and offers to prove the same, rejected. To permit Respondents,, by this means, to litigate unfair labor practice charges against an employer, would defeat the `purposes of the Act, by affoi;ding a noncomplying labor organization access to the processes of the Board. That Respondent Unions have precluded themselves from filing an unfair labor practice charge by refraining 'from complying with the requisite provisions of the Act, is, of course, no justification for permitting them to litigate the issue here. Respondents argue, however, that they are not seeking, in this proceeding, to have the Company adjudged guilty of unfair labor 'practices, but urge that, by reason of its conduct, the Company should be denied the benefits of the Act. This position is based upon a fundamental misconception of the purposes of the Act, which are to vindicate the public interest, not private rights. Hence, the authorities, cited by Respondents, dealing with the denial of in- junctive relief sought by private employers, for lack of "clean hands," are not apposite. However salutary this equitable doctrine may be in such cases, it is not pertinent to an Act designed to vindicate a public policy.3 Nor does the fact 13 It is conceivable that under certain circumstances, as for example, where an employer resorts to agents provocatcw a to incite violence by employees during the course of a strike, that the Board might, as a matter of policy, decline to permit its processes to be invoked at the instance of such employer Cf., e g , N L. R B. v Indiana if Michigan, Electric Company, infra. No comparable situation exists here. 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the employer, here, is the charging party, alter the fundamental nature of this proceeding. The Act clearly provides that any person may file an unfair labor practice charge against an employer or against a labor organization, and the unlawful motives or the bad faith of the charging party cannot deprive the Board of its jurisdiction to conduct the'inquiry.54 ':Respondent's`contentions.are, therefore, rejected. The Company, though not the General Counsel, urges that the undersigned recommend the issuance of a broad cease and desist order against each of the Respondent Unions, as well as the individual Respondents, requiring them, in effect, to cease and desist from engaging in any unfair labor practices in the future at the plant of any other employer The General Counsel would limit the order to Respondent Local #1150, and its officers and agents. At the close of the evidence, counsel for the Company moved, for this purpose, that the hearing be adjourned to New York City, to take the testimony, or, in the alternative, the depositions of Albert Fitzgerald, president, Julius Emspak, secretary-treasurer, and James Matles, director of organization, of the Interna- tional, for the asserted purpose of establishing (1) that the activities in connec- tion with the strike at the company plant had--,,been "comprehensiPely.reviewed" at a meeting of the Executive Board of the International, on December 11, 1947, had, in effect, been approved and ratified, and that no action had been taken to disavow or repudiate said activities, and (2) that the activities were part of a general strategy in the conduct of strikes by that labor organization, and its subordinate locals, in plants throughout the country. The General Counsel did not join in the said motion, and the same was denied with leave to renew in writing after the close of the hearing, or to make applications for the taking of depositions in conformity with the Rules and Regulations of the Board. No such renewal of the motion, or application, was thereafter made. Insofar as any action taken at the Executive Board meeting constituted ratification by the International of the action of Local #1150, and its activities during the strike, the record sufficiently establishes this fact, and the evidence sought to be adduced would be merely cumulative. As to the second ground, the contention, even if established, would not justify a prior restraint upon Respondents of so sweeping a nature, without a hearing upon a specific complaint, based upon a charge, involving employees of any other employer 60 The record here affords no ade- quate basis for a cease and desist order of the scope sought by either the General Counsel or counsel for the Company. The request is, therefore, denied. Counsel for the Company also urges that Respondents be required to make whole employees of the Company, who,' accdrdiit'g ""to 'him, :*ere prevehted' fro'm working during the pendency of the strike, by reason of Respondents' unfair labor practices. Without determining whether the Board may, in effectuating the purposes of the Act, order reimbursement for loss of earnings sustained tinder the circumstances here described, it is sufficient to observe that the situa- tion is not analogous to that of employees who have sustained loss of earnings by reason of an employer's discrimination against them. It is reasonably clear from the record that employees, willing to cross picket lines, not only succeeded in doing so, but were assisted by police in gaining entrance to the plant. More- over, it is impossible to determine from the record which employees remained away from work in response to peaceful persuasion by pickets, which, as a con- sequence of restraint and coercion, and which, for reasons unconnected with the strike. w See N L R B v Indiana & Michigan Electric Company, 318 U S 9, 17-18. m Cf. N. L. R. B. v. Ford Motor Company, 119 F. (2d) 326 (C. A. 5). LOCAL NO.. •1150,, UNITED ELEC.,, RADIO; & MACHINE- WORKERS 1015 Upon all the circumstances, the undersigned concludes and finds that effectua- tion of the policies of the Act does not require or impel an affirmative order requiring Respondent labor organizations to make whole any employees who remained away -from work during the pendency of the strike. Upon the above findings of fact and upon the entire record. in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Cory Corporation, a Delaware corporation, Chicago, Illinois, is, and was at all times material herein, engaged in commerce within the meaning of Sec- tion 2 (6) and (7) of the Act. 2. Local #1150, United Electrical, Radio & Machine Workers of America, and United Electrical, Radio & Machine Workers of America, both affiliated with the Congress of Industrial Organizations, are labor organizations within the meaning of Section 2 (5) of the Act. 3. By restraining and coercing employees of Cory Corporation in the exercise of the rights guaranteed in Section 7 of the Act, Respondents Local #1150, the International, and their respective agents, as found above, 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. Respondents Bernard Lucas, Irving Gilbert, and John Bernard, individually, as agents of Respondent Unions, have not engaged in unfair labor practices as alleged in the complaint. RECOMMENDATIONS 'Upon the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that Local #1150, United Electrical, Radio & Ma- chine Workers of America, and United Electrical, Radio & Machine Workers of America, both affiliated with the CIO, and Respondents Pat Amato, Irving Krane, Lee Lundgren, Faye Campbell, Virginia Charnota, May Mansfield, Virginia Kipta, Helen, Nieminski, Roy Spero, Leo Turner, Irene Berman, Frank Allen, and Alice Smith, as agents of said labor organization, respectively, their officers or agents, shall : 1. Cease and desist from : (a) Restraining and coercing employees of Cory Corporation in the exercise of their rights guaranteed in Section 7 of the Act, to refrain from'self-organization" and from joining and assisting Local #1150, United Electrical, Radio & Machine Workers of America, and United Electrical, Radio & Machine Workers of Amer- ica, both affiliated with the CIO, and to refrain from engaging in concerted activities for the purposes of collective bargaining, by directing, leading, and engaging in,mass picketing at the entrance to the Company's plant, at or near the entrance to the Douglas Park Elevated Station, and at or near the vicinity of the plant ; threatening employees, of the Company with physical assault and other reprisals ; assaulting employees of the Company, or in any other manner, -restraining or coercing its employees. 2. Take' the following 'affirmative action, which the undersigned finds will effectuate the policies of the Act : • (a) Post in conspicuous places at the business office 'of Local #1150; United Electrical, Radio & Machine Workers of America, CIO, Chicago, Illinois, in the 1016 DECISIONS 'OF' NATIONAL LABOR RELATIONS BOARD,' meeting'hall of said labor organization , and'in * its strike headquarters at Bartek's Tavern, West Cermak Road, 'Chicago, Illinois,' and in the business offices of United Electrical , Radio & Machine ' Workers of America, CIO , 166 Washington Street, Chicago , Illinois, and in its meeting - hall, and in all other places where notices or communications to members of-said labor organizations are custom- arily posted , copies of the notice attached hereto, as "Appendix B.". Copies of the said notice, to be furnished by the Regional Director for the Thirteenth Region, after being signed by the duly authorized representatives of Local #1150, United Electrical , Radio & Machine Workers, CIO, and United , Electrical, Radio & Machine ,Workers, 010 , respectively , and the . individual Respondents, found to have engaged in the unfair labor practices herein described , shall be posted by the said Respondent Unions immediately upon . receipt thereof, and maintained by them for a period of sixty , ( 60) consecutive, days thereafter. Reasonable steps shall be taken by Respondent Unions to insure that said notices are not altered , defaced, or covered by any other material ; , , (b) Furnish the Regional Director of the Thirteenth Region signed copies of the notice, attached hereto as "Appendix B," to be delivered by him to the,Com- pany, upon request, for posting on the bulletin boards of the Company where union notices to members of Local # 1150 were formerly posted, which may be posted and maintained for a period of sixty ( 60) consecutive days thereafter; (c) Notify, the Regional Director of the Thirteenth Region in writing , within twenty (20) days from receipt of, this intermediate Report what steps Re- spondents have taken to, comply ,therewith .. , . 1 ;.1 It is further recommended , that the complaint be dismissed with respect to Respondents Bernard Lucas, Irving Gilbert , and John Bernard. It is further recommended that unless Respondents shall, within twenty (20) days from receipt of this Intermediate Report, notify said Regional Director in .writing that they will comply with the foregoing recommendations , the Na- tional Labor Relations Board issue an order requiring Respondents to take the action aforesaid. ' , ,, .As provided in Section 203.46, of the Rules and Regulations of the National Labor, Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board , pursuan,t,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 sett4ng forth such exceptions to the Inter- mediate, Report and Recommended Order 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 and Recommended Order., Imme- diately upon the,filing , of such statement , of exceptions and/or briefs, the party. filing •the, same shall serve a .copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be 'legibly printed or mimeographed, and if mimeographed shall be double spaced 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.. • , , , • , , , LOCAL NO. 1.1,50, UNITED ELEC., RADIO & MACHINE -WORKERS 1017 In the event no Statement of Exceptions is filed as provided by the afore- said Rules and Regulations, the findings, conclusions, recommendations, and recommended 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 all objections thereto shall be deemed waived for all purposes: Dated at Washington, D. C, this 13th day of October 1948. IRVING ROOOSIN, Trial Examiner. APPENDIX A CALL TO ACTION ! ! [Sketch depicting laboring men, whose leader carries a picket sign with the legend : AL-OUT SUPPORT FOR CORY WORK[ERS]' The Taft-Hartley Act has struck the membership of UE Local 1150. Our fel- low members at the Cory Coffee Brewer Corp.2 have been forced to strike to pre- serve their union against the attacks of their employer, who believes in and is using the Taft-Hartley Act in an all-out attempt to smash the union which has been in the shop since 1941. Cory Workers are determined to win their fight but they need your help to beat back the attacks of the Company Cory is now hiring outside strike-breakers and has used court injunctions to take away many of the worker's rights. A special Joint Labor Committee to fight the Taft-Hartley Act has issued a call to various CIO unions to take part in a Taft-Hartley demonstration at the plant this Friday morning. This demonstration must be an answer to employers everywhere who try to use anti-labor legislation, to take away the gains won in the past. Remember, Cory workers are fighting to save you from going through the same kind of battle next. EVERY SUPPORT MUST BE GIVEN TO OUR FELLOW MEMBERS STRIKING AT CORY. TAFT-HARTLEY DEMONSTRATION FRIDAY MORNING-NOV. 21st-6.45 AM ASSEMBLY PT. 3028 W. CERMAK RD. Joint Labor Committee to Fight Taft-Hartley Act. .166 W. Washington St. APPENDIX B NOTICE To ALL MEMBERS OF LOCAL '1150, U NITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA , CIO, AND UNITED ELECTRICAL , RADIO, & MACHINE WORKERS OF' AMERICA, AND TO ALL EMPLOYEES OF CORY CORPORATION. Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor ' The letters in brackets are obscured by the bead of the leader depicted in the leaflet. 2 The former name of the Company. 1018 ' DECISIONS OF NATIONAL LABOR RELATIONS ' BOARD Relations Act, as amended , we hereby notify our members and employees of Cory Corporation, that: WE WILL NOT restrain and coerce employees of Cory Corporation in the right to refrain from self-organization , from joining and assisting Local #1150, United Electrical, Radio & Machine Workers of America, CIO, and United Electrical, Radio & Machine Workers of America, CIO, and in the right to refrain from engaging in concerted activities for the purposes of collective bargaining, by engaging in mass picketing, threatening employees of the Company with physical assault and other reprisals, and assaulting employees of the Company, or in any other manner restraining or coercing its employees. , LOCAL #1150, UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C10, Labor Organization. By ---------------------------------------------------- (Name and title) UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, CIO, Labor Orgaiuration. By ---------------------------------------------------- (Name and title) Pat Amato, President, and Agent, Local #1150; Irving Krane, Business Man- ager, and Agent, Local #1150; Lee Lundgren, Secretary-Treasurer, Field Representative, and Agent, Local #1150; Faye Campbell, Chief Shop Steward, Strike Committee Member, and Agent, Local #1150; Virginia Charnota, Shop Steward, Strike Committee Member, and Agent, Local #1150; May Mans- field, Shop Steward, Strike Committee Member, and Agent, Local #1150; Virginia Kipta, Agent, Local #1150; Helen Nieminski, Agent, Local #1150; Roy Spero, Agent, Local #1150; Leo Turner, International Representative, and Agent, United Electrical, Radio & Machine Workers of America, CIO, and Agent, Local #1150; Irene Berman, Field Organizer, and Agent, United Electrical, Radio & Machine Workers of America, CIO, and Agent, Local #1150; Frank Allen, Field Organizer, and Agent, United Electrical, Radio & Machine Workers of America, CIO, and Agent, Local #1150; Alice Smith, Vice President, District 11, and Agent, United Electrical, Radio & Machine Workers of America, CIO, and Agent, Local # 1150. 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.