Local 140

LOCAL 140 815 4. By discriminating in regard to the hire and tenure of employment of Ole Carlson, Clifford Wolvington, Einer Mohn, and Milton Keck, thereby discouraging membership in the labor organizations named in paragraph numbered 2 above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES 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 Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Brotherhood of Carpenters and Joiners of America, Local No. 3029 and The Montana District Council, Lumber and Sawmill Workers Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection,' or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL NOT interrogate our employees concerning their union activities in a manner violative of Section 8 (a) (1) of the National Labor Relations Act. WE WILL NOT threaten our employees with plant closure or curtailed opera- tions in the event they choose to become organized. WE WILL NOT discourage membership in United Brotherhood of Carpenters and Joiners of America, Local No. 3029 and The Montana District Council, Lumber and Sawmill Workers Union, or any other labor organization of our employees, by discriminating in any manner with regard to their hire and tenure of employment, or any term or condition of employment. WE WILL offer to Ole Carlson, Clifford Wolvington, Einer Mohn, and Milton Keck immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered by them by reason of the discrimination practiced against them. All our employees are free to become, remain, or refrain from becoming members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. PLUM CREEK LOGGING COMPANY, INC., Employer. Dated---------------- By---------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Local 140, United Furniture Workers of America, CIO, Alex Sirota and Joaquin Pijuin Alvares and Brooklyn Spring Cor- poration and Lorraine Fibre Mills, Inc. Case No. 2-CB-1246. August 19,1955 DECISION AND ORDER On June 8, 1955, Trial Examiner Robert L. Piper issued his Inter- mediate Report in the above-entitled proceeding, finding that the 113 NLRB No. 92. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. 'Thereafter, the Respondents filed exceptions to the, Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommenda- tions, with the following additions and modifications. The " Trial Examiner found that Arnold Slomowitz was not an employee within the meaning of the Act, on May 6, 1954, when he witnessed the Respondents' assault upon David Slomowitz., He based his finding that Arnold, as David's son, was not a rank-and-file em- ployee upon the portion of Section 2 (3) which reads, "the term '`employee' . shall not include . . . any individual employed by his parent.:.." However, the Board has.held that the son-of a corporate employer's president is not, for that reason alone, precluded from con- sideration as an employee.' On the other hand, as the record shows that Arnold was an officer and stockholder of the Companies and thus enjoyed special status which allied his interests with those of the Companies, we agree with the Trial Examiner's conclusion that Arnold Slomowitz was not, at the time of the assault upon his father, an employee within the meaning of the Act 2 For the reasons stated in the Intermediate Report, we agree that the Respondents' assault upon David and Arnold Slomowitz violated Section 8 (b) (1) (A). 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 that Respondent Local 140, United Furniture Workers of America, CIO, its officers, representatives, suc- cessors, assigns, and agents, including Respondents Alex Sirota and Joaquin Pijuin Alvares, shall: 1. Cease and desist from restraining or coercing employees of Brooklyn Spring Corporation and Lorraine Fibre Mills, Inc., by assaulting supervisors or officials of the Companies, by physically pre- -Tenting ingress and egress of employees at the Companies' plant by mass picketing or any other action, or in any other manner restraining or coercing employees of the Companies, or any other employer, in the exercise of the rights guaranteed in Section 7 of the Act, except 1 American Steel Buck Corporation , 107 NLRB 554. 2 See, International Metal P,oducts Company, 107 NLRB 65. LOCAL 140 817 -to the extent that such rights may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will .effectuate-the policies of the-Act: (a) Post in conspicuous places in the Respondent Union's business offices, meeting halls, and all places where notices to its members are ,customarily posted, copies of the notice attached hereto marked '"Appendix." 3 Copies of said notice, to be furnished by the Regional .Director for the Second Region, shall, after being duly signed by an official representative of the Respondent Union and by Respondents .Sirota and Alvares, be posted by the Respondents immediately upon receipt thereof and be maintained by them for sixty (60) consecutive .days thereafter. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered'by any ,other material. (b) Mail signed copies of the notice attached hereto marked "Ap- pendix" to the Regional Director for the Second Region for posting, Brooklyn Spring Corporation and Lorraine Fibre Mills, Inc., willing, at all locations where notices to the Companies' employees are custom- arily posted. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an authorized representative of the Respondent Union and by Respond- ents Sirota and Alvares, be forthwith returned to the Regional Director for such posting. (c) Notify the Regional Director for the Second Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to.comnply herewith. IT IS FURTI IER ORDERED that the complaint herein, insofar as it alleges that Respondents Sirota and Alvares have violated the Act otherwise than herein found, be, and it hereby is, dismissed. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 140, UNITED FURNITURE WORKERS OF AMERICA, CIO AND .TO ALL EMPLOYEES OF BROOKLYN SPRING CORPORATION AND LORRAINE FIBRE MILLS, INC. Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify you that : WE WILL NOT restrain or coerce employees of Brooklyn Spring Corporation and Lorraine Fibre Mills, Inc., by assaulting super- visors or officials of the Companies, by physically preventing in- 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gress and egress of employees at the Companies' plant by mass picketing or any other action, or in any other manner restrain or coerce employees of the Companies, or any other employer, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement re- quiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. LOCAL 140, UNITED FURNITURE WORKERS OF AMERICA, CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) ------------------------------------- Alex Sirota ------------------------------------- Joaquin Pijuin Alvares This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Charges having been duly filed and served , a complaint and notice of hearing there- on having been duly issued and served by the General Counsel of the National Labor Relations Board, and an answer having been duly filed by Local 140 , United Furniture Workers of America , CIO (hereinafter called Local 140), Alex Sirota, and Joaquin Alvares (Local 140, Sirota, and Alvares being hereinafter collectively called Respon- dents), a hearing involving allegations of unfair labor practices in violation of Section 8 (b) (1) (A) of the National Labor Relations Act, as amended (hereinafter called the Act ), 61 Stat. 136, was held in New York City at various dates between November 29 and December 29, 1954, before the duly designated Trial Examiner. In substance the complaint as amended at the hearing alleges , and the answer as amended at the hearing denies, that on or about April 22, 1954, Respondents re- strained and coerced the employees of Brooklyn Spring Corporation and Lorraine Fibre Mills, Inc. (hereinafter collectively called the Company ), by blocking their ingress and egress to the plant of the Company by mass picketing, and on or about May 5 , 1954, restrained and coerced the aforesaid employees by threatening to inflict and inflicting bodily injury upon David Slomowitz and/or members of his family at the plant of the Company. At the hearing all parties were represented by counsel , were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record , and to file briefs and proposed findings of fact and conclusions of law. At the conclusion of the hearing counsel engaged in oral argument in support of and opposition to counsel for Respondents' motion to dismiss the case, which motion was taken under advisement and is dis- posed of by my findings and conclusions hereinafter. No briefs were received. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The complaint alleged and the parties stipulated that Brooklyn Spring is a New York corporation , with its principal office and place of business in New York City, where it is engaged in the manufacture , sale, and distribution of upholstery coils and related products . During 1953 Brooklyn Spring sold products valued in excess of $60,000 of which approximately 10 percent was transported outside the State of New York to other States. Lorraine Fibre is a New York corporation with its principal LOCAL 140 819 ,office and place of business in the city of New York, occupying the same plant and premises as Brooklyn Spring, where it is engaged in the manufacture, sale and dis- tribution of upholstery supplies and related products. During 1953 Lorraine Fibre produced products valued in excess of $500 ,000 of which approximately 50 percent was transported outside the State of New York to other States. At all times Brooklyn Spring and Lorraine Fibre were affiliated businesses with common facilities and officers, ownership, and directors, who administered a common labor policy for both, affecting the employees of both. In view of the foregoing facts, I find that the Com- pany constitutes a single employer and is engaged in commerce within the meaning of the Act.' II. THE ORGANIZATION INVOLVED Local 140 is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES All of the material events in this case occurred during the spring of 1954. Brooklyn Spring and Lorraine Fibre jointly occupy a single plant in Brooklyn. All of the em- ployees and officials alike use a single common entrance to the plant, consisting of a doorway approximately 3 feet wide and level with the sidewalk at the front of the plant. Prior to April 22, it is undisputed that the employees of the Company were unorganized, and that Local 140 had made no demands upon or requests of the Company, such as requests for recognition, meetings, or bargaining, and in fact had never been in contact with the Company. The employees of the Company prior to April 22 normally reported for work about 8 a. in. On the morning of April 22, before most of the employees had re- ported for work but after the plant superintendent and David Slomowitz, president and principal stockholder of the Company, had come to work and were inside the plant, a crowd of members and adherents of Local 140, about 50 to 75 men, gathered on the sidewalk and street in front of the entrance to the plant, with some of them directly in front of and up against the entrance door. As various employees of the Company began to come to work, they were advised by various members or adherents of Local 140 in the crowd that the Company was on strike, and that they could not enter the plant but instead should get into automobiles parked there and provided by the group, and be driven to Local 140'9 headquarters with the rest of the Com- pany's employees to join Local 140. Some of these members and adherents of Local 140 physically prevented the employees from entering the plant by standing in front of the door and preventing any ingress or egress. In some instances employees of the Company who were reluctant to comply with the requests of the members of Local 140 were physically pushed into the cars in order to be driven to the union hall. In other instances employees who stated that if they could not enter the plant they would prefer to go home were advised that they could not do so and must get in the cars and go down to the union hall for the purpose of joining Local 140. None of these facts were denied. Consequently, it was undisputed that the mem- bers and adherents of Local 140, who were engaging in the picketing on April 22, refused to permit the employees of the Company to enter the plant and physically prevented them from doing so. It was further undisputed that at that time the employees of the Company were not on strike. Slomowitz and employees Lightner and Gaines testified to the foregoing facts which were not denied by Respondents. In addition, Respondent Alvares, who was an employee of the Company prior to and on the morning of April 22 and later the same day became the shop chairman of Local 140 in charge of the picketing at the Company, corroborated the fact that there were about 50 or 60 people outside the plant when he arrived there, that the plant and its doors were closed, and that all of the persons in this group of pickets were members of Local 140. In addition thereto, counsel for Respondent stated on the record that he had offered to stipulate not only that there was a strike on April 22, but that Local 140 was the sponsoring Union. Substantially all of the employees of the Company, except those few including officials who had reported to work before the members of Local 140 assembled in front of the plant, were either persuaded or compelled to enter the cars provided by Local 140 and proceed to Local 140's union hall. When all of the employees had been assembled there, they were addressed by a business agent of Local 140 and subsequently all or most of them joined Local 140. Within a few hours they re- turned to the site of the plant and began picketing with signs which stated that Local ' Jonesboro Grain Drying Cooperative, 110 NLRB 481; Insulation Contractors of Southern California, Inc., et al, 110 NLRB 638. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 140 was the sponsoring Union and the employees of the Company were on strike- The picketing continued thereafter and was still in effect at the time of the hearing. After the incident when the employees were prevented from reporting to work on April 22, the pickets were composed for the most part of employees of the Company. The foregoing incidents, as previously found, were substantially undisputed and_ in substance admitted by Respondents. The incidents of mass picketing and physical prevention of entry on April 22 were carried out by members and adherents of Local 140 under its sponsorship and authorization. It must now be considered well settled that mass picketing and the physical prevention of, ingress and egress of nonstriking employees constitutes restraint and coercion in violation of Section 8 (b) (1) (A) of the Act.2 With respect to Respondents Alvares and Sirota, there is no evidence in the record that they were in any way personally connected with the mass picketing and physical prevention of entry which occurred on April 22. A preponderance of the credible evidence in the entire record convinces me and I find that Local 140, by physically preventing nonstriking employees of the Com- pany from entering the plant by mass picketing and other action, restrained and coerced such employees in violation of Section 8 (b) (1) (A) of the Act. Respondents stipulated that Sirota was at all times material the manager of Local 140, an office under Local 140's constitution which possessed general authority to manage the affairs of the Union and which was superior in rank to that of business representative. Respondents contended that Alvares, the other individual Respond- ent, was not an official of the Union or its agent within the meaning of Section 8 (b) (1) (A) of the Act. However, the record establishes clearly that Alvares was an agent of Local 140 within the meaning of the Act. He testified that after the em- ployees were taken to Local 140's hall on April 22, he was elected shop chairman for Local 140 of the Company's employees, and that one of his duties in connection therewith was to exercise control over the pickets and to have general charge of the picketing. This admission by Alvares conformed to the testimony of the General Counsel's witnesses to the effect that Alvares was in charge of the picketing after April 22, brought the picket signs to the plant each day in his car and distributed them to the various pickets, admitted to the police when questioned that he was in charge of the pickets, and advised each picket when it was his turn to perform picket duty. In addition, on a subsequent occasion when Slomowitz was making deliveries of the Company's products in one of its trucks, he was followed by a car containing several of the pickets including Alvares. When Slomowitz stopped at one of the Company's customers to make a delivery, Alvares requested the receiving clerk of that customer not to accept deliveries from the Company because its employes were on strike. A preponderance of the evidence convinces me and I find that Alvares, on and after April 22, was an agent of Local 140 within the meaning of the Act. About 5 a. in. of the morning of May 6, David Slomowitz and his son, Arnold, arrived at the plant in their car, which they parked on the street across from the entrance to the plant. Arnold was a college student who worked part time at the plant when he was attending school and full time when he was not. Arnold testi- fied that after the strike began, they made a practice of opening the plant about 5 a. in. in order to get the trucks out before the picket lines began and avoid any trouble. It was dark at 5 a. in., however, there was a street light across from the entrance to the plant which illuminated an area of about 20 feet in circumference directly in front of the entrance to the plant. The Slomowitzes proceeded to the entrance, the same one used by the employees and referred to in connection with the mass picketing of April 22. As they ap- proached the door and were about to unlock it, they were struck by a barrage of rocks and stones thrown at them from the darker areas of the street some distance away. In order to avoid further injury, they ducked into an alcove formed by a recessed truck entrance adjacent to the plant entrance. As they faced the entrance door, the barrage of stones and rocks came from their right. The shallow alcove that they ducked into to avoid being struck was 1 or 2 feet to their left. The barrage of rocks continued for a few seconds. Immediately after the stones ceased falling the Slomowitzes observed a small group of 5 or 6 men running towards them. These men, led by Respondents Sirota and Alvares, carried in their hands some sort of weapons, such as lead pipes. Sirota instructed them to assault the Slomowitzes. Thereupon Alvares and the other mem- bers of this group struck the Slomowitzes repeatedly about the head and body with the aforesaid weapons. The Slomowitzes fought back as best they could. Sirota 2 Cory Corporation, 84 NLRB 972; Bechtel Corporation, 108 NLRB 1070 ; Eagle Manu- facturing Corporation, 112 NLRB 74. LOCAL 140 821 stood at one side and urged his men on , but did not personally strike either of the Slomowitzes. After the assault had continued for a few minutes, one of the assailants cried out that the police were coming and then the group of assailants ran down the street away from the plant. David Slomowitz sustained cuts to his head which were bleeding. He and his son ran across the street, got into their car, and drove to the police precinct station, arriving about 5:15 a. m. They reported the assault to the police, and two detectives took David to the hospital for medical attention. Arnold proceeded to his classes at college. About 7:50 a. m., after David Slomowitz had been treated at the hospital, the detectives drove him back to the plant, because both he and Arnold had said that they could identify two of their assailants , namely, Alvares and Sirota. David Slomowitz testified that he knew Alvares because he had been one of the Company's employees before the strike. David had not known Sirota before the assault but was able to identify him as a result of it. Arnold testified that he, too, knew Alvares, that he had seen Sirota on the picket line prior to the assault, and that he could identify him when he saw him. When David and the police arrived at the plant the pickets were already assembled. David identified Sirota and Alvares as two of his assailants. The police arrested them and took them to the station for booking. Other than the participants nobody witnessed the assault. James Lightner, one of the Company's employees, had adopted the practice of sleeping in the plant over- night and continued to work during the strike. He was the employee who was inside the plant when the mass picketing occurred April 22. He was also inside the plant on the morning of May 6 when the assault occurred, but he did not witness it. He testified that he heard someone outside cry out that they should get away from there, and when he heard this he looked out the window. He saw several men run down the street away from the plant and the Slomowitzes cross the street, get into their car, and drive away. Subsequently he learned what had occurred, but he was not a witness to any part of the assault itself. Later he saw David Slomowitz come back to the plant with the police, identify Alvares and Sirota, and saw their arrest. Another employee, Ulysses E. Gaines, testified that he was at the plant the morning Alvares and Sirota were arrested, and that he saw David Slomowitz, whose head was bandaged and bloody, point out Alvares and Sirota to the police before they were arrested. Neither Alvares nor Sirota specifically denied that they assaulted the Slomowitzes, but instead testified they were not present at the plant at the time of the assault on May 6. Sirota said that he arose about 5 a. in. that day, picked up his car about 5:30, picked up another union official and had breakfast with him, and arrived at the plant about 7:50 a. in. He said he had not seen Alvares or the Slomowitzes prior to that time on May 6. Alvares testified that he left his home in Manhattan about 6:55 a. m., drove to the plant, arrived about 7:55 a. m., and had not been at the plant or seen the Slomowitzes prior to May 6. It was undisputed that about 8 a. m. that day Sirota and Alvares were identified by David Slomowitz and arrested. The Slomowitzes impressed me as reliable and credible witnesses. On the other hand, Sirota and Alvares did not directly deny the assault, but testified, in the nature of an alibi, that they were not present at the time and place when it occurred. A preponderance of the credible evidence in the entire record convinces me, and I find, that the Slomowitzes were assaulted, as described above, by a group of men led by Sirota and Alvares, officials of Local 140. Throughout the hearing the General Counsel, in reliance upon the Board's deci- sion in the Smith Cabinet case,3 proceeded upon the theory that the assault upon the Slomowitzes constituted a violation of Section 8 (b) (1) (A) even though it was not committed in the presence of nonstriking rank-and-file employees. However, at the conclusion of the hearing, the General Counsel in his oral argument con- tended that, in addition to this original theory, the assault had in fact taken place in the presence of such employees because Lightner was inside the plant when it occurred, and because Arnold was present and worked for the Company. It has already been found that, while Lightner was inside the plant, he did not witness the assault and it could hardly be concluded that it occurred in his presence. In fact, he was not aware that anything had happened until the assault had ended and the assailants were running down the street. As far as Arnold is concerned, the General Counsel's contention is unsound, because Section 2 (3) of the Act defines the term "employee" as follows: "the term employee . shall not include . . . any indi- vidual employed by his parent or spouse.... . For the reasons above indicated, S Smith Cabinet Manufacturing Company, Inc., 81 NLRB 886. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that the assault did not occur in the presence of any rank-and-file nonstnking employee within the meaning of the Act. This brings us to the General Counsel's original theory, which is that the assault upon the Slomowitzes by agents of Local 140 constituted restraint and coercion of rank-and-file employees within the meaning of Section 8 (b) (1) (A), because it occurred "under such circumstances as to insure that the employees would hear of it." In the Smith Cabinet case, supra, the Board found that the employer's super- intendent and foreman had been assaulted and barred from the plant by force and intimidation either in presence of or the immediate vicinity of nonstriking employees. The Board held that "these employees might have reasonably regarded these incidents as a reliable indication of what would befall them it they sought to work during the strike," and that "the coercive effect of such conduct on 'employees' within the meaning of the Act is therefore clear." The Board further held that "the illegality of coercive activity directed against supervisors is found to depend upon its com- mission in the presence of nonstriking employees or under such other circumstances as to insure that these employees would hear of it." [Emphasis supplied.] It is upon this italicized portion of the Board's holding in the Smith Cabinet case that the General Counsel relies (namely, that the assault herein upon the president of the Company and his son occurred under such circumstances as to insure that the nonstriking employees would hear of it. In reaching the conclusion expressed in the Smith Cabinet case, the Board relied upon an earlier finding in the Reeves- Ely Laboratories case,4 where an oral threat was held to be a violation of Section 8 (a) (1) although not committed in the presence of rank-and-file employees. In that case the vice president of the respondent employer made certain drastic threats while testifying at the Board's hearing before the Trial Examiner, which threats would clearly have constituted interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act if made to rank-and-file employees. The Board found such threats made on the witness stand to be violative of Section 8 (a) (1) and said: "We infer from the record that employees were present at the hearing and heard [vice president] Belock make his above statements. However, even if employees were not present, the statements were made under such circumstances as to insure that the employees would learn of them." [Emphasis supplied.] In reliance upon the foregoing cases the General Counsel urges that the assault upon the Slomowitzes was made under such circumstances as to insure that the non- striking employees would hear of it. In view of the facts developed in the record, I believe and accordingly find that the assault was made under such circumstances as to insure that the nonstriking employees would hear of it, and that reasonable persons could and should have foreseen that such a consequence would flow from the assault. The president of the Company was violently assaulted and beaten up, to such an extent that he sustained relatively serious injuries necessitating hospital and medical treatment. Any reasonable person should have foreseen that such conduct would result in both a complaint to the police authorities and news- paper publicity. Inevitably the publicity attendant both the assault and a criminal prosecution arising out of it would necessarily come to the attention of the non- striking employees, and hence it can be concluded that the circumstances were such as to insure that they would learn of the assault. When a gang of men, led by two union officials, assaults and seriously injures a middle-aged president of an employer, and the union officials are known to the persons assaulted, it can hardly be urged that the assailants should not have foreseen that their assault would be the subject of considerable publicity and police ac- tion, and of necessity inevitably come to the attention of nonstriking employees. As the Board pointed out in the Smith Cabinet case, under such circumstances non- striking employees might have reasonably regarded such incidents as a reliable indication of what would befall them if they sought to work during the strike. It has previously been found that Respondents Sirota and Alvares were agents of Local 140 within the meaning of the Act. It must now be considered well settled that assaults by pickets or rank-and-file members of a union which restrain and coerce nonstriking employees constitute violations of Section 8 (b) (1) (A) when committed in concert with or in the presence of union officials.5 A preponderance of the credible evidence in the entire record convinces me, and- 1 find, that Re- spondents Local 140, Sirota, and Alvares, by assaulting the Slomowitzes as found above, restrained and coerced the employees of the Company in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8 (b) (1) (A) of the Act. - 4 Reeves-Ely Laboratories, Inc.. 76 NLRB 728. G United Electrteal,° Radtio and Machine Worke, s of America, Local 914, 106 NLRB 1372 ; Roadway Express, Inc., 108 NLRB 874. B. M, C. MANUFACTURING CORPORATION 823 THE REMEDY Having found that Respondents have engaged in certain unfair labor practices in violation of Section 8 (b) (1) (A) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of facts , and upon the entire record in the case, I make the following: _ CONCLUSIONS OF LAW L The activities of Respondents set forth in section III , above, occurring in con- nection 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 com- merce and the free flow thereof. 2. Local 140 is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondents Alvares and Sirota are agents of Local 140 within the meaning of Section 8 (b) of the Act. 4. By restraining and coercing the employees of the Company in the exercise of rights guaranteed in Section 7 of the Act, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. .5. The aforesaid- unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. Respondents Alvares and Sirota have not engaged in the unfair labor practice, as, alleged in the complaint, of preventing ingress and egress of employees to the company plant. [Recommendations omitted from publication.] B. M. C. Manufacturing Corporation and International Associ- ation of Machinists, AFL. Case No. 3-CA-820. August 19,1955 DECISION AND ORDER On April 18, 1955, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto.' Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- ' We find no merit in the Respondent 's contention that the Trial Examiner denied the Respondent a fair hearing by excluding from the hearing room for a period of '2 hours certain management representatives The Trial Examiner resorted to this procedure under an erroneous impression that these management representatives were under subpena to testify in the proceeding. When the true situation was called to his attention the Trial Examiner reversed his ruling Under the circumstances , we conclude that the Trial Examiner's_ action did not constitute an abuse of his discretionary authority: In any event, no,prejudice to the Respondent has been shown. • . J 113 NLRB No. 91. 379288-56--vol. 113-53