Local 1922, Int'l Brotherhood of Electrical Workers

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees' subjective reactions to these talks based on mere specu- lation, but we also note that the TAM's basic premise is not sup- ported by the record. The record shows that the Employer, after repeating the assurances given him, told, the employees "there is no need for us to worry about TK being moved away from Moni- tor Avenue." Contrary to the IAM's further contention, we find that the Em- ployer's reference to employee dissatisfaction with the TAM and the Employer's plea for a "No Union" vote were clearly permissible and not coercive. For the foregoing reasons, we find in agreement with the Re- gional Director that the objections are without merit and they are hereby overruled.4 As Local 705 has received a majority of the valid votes cast in the election, we shall certify it as the collective- bargaining representative of the employees in the appropriate unit. [The Board certified Local 705, Production & Miscellaneous Work- ers Union of Chicago & Vicinity as the collective-bargaining repre- sentative of the employees in the unit heretofore found appropriate.] 4 Exception is also taken to a statement in the Regional Director's report which the IAM claims refers to it as a "wrong doer." In his report , the Regional Director termed the Employer 's remarks against Local 705 "coercive." He determined that since Local 705 won notwithstanding those remarks , to set aside the election because of the Employer's conduct "would be permitting a wrong doer to gain by his wrongful acts. " It is clear that the Regional Director was applying the questioned description to the Employer, and not to the IAM. The IAM's exception is, thus, without substance. We do not pass upon the question of whether the Employer 's conduct was coercive so as to have prejudiced Local 705 , since that union won the election. Local 1922, International Brotherhood of Electrical Workers, AFL-CIO and Mid-Island Electrical Sales Corp.; Mid-Island Lighting Fixtures Co., Inc. Case No. 2-CB-2216. January 7, 1959 DECISION AND ORDER On August 19, 1958, Trial Examiner A. Bruce Hunt issued his Intermediate Report in this case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act, 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. The Trial Examiner also found that the Respondent had not en- gaged in certain other unfair labor practices as alleged in the amended complaint, and recommended that these particular allega- tions be dismissed. Thereafter, the General Counsel filed exceptions to the Intermediate Report, together with a support brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. 122 NLRB No. 105. LOCAL 1922, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 851 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 Intermediate Report, the exceptions and brief filed by the General Counsel, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications : We agree with the Trial Examiner that the Respondent did not independently violate Section 8(b) (1) (A) of the Act by reason of Business Agent Dolan's conduct in pushing company officials, Chris- man and Forrest, when each sought on separate occasions to inject. themselves into a private conversation Dolan was having with a. passerby and a truckdriver. We do so, however, for the reason that, while Dolan's use of force or abusive language cannot be condoned, nevertheless this conduct under the circumstances did not amount to coercion of employees within the meaning of the Act. Moreover, with respect to the Chrisman incident, we further find that no em- ployees were present. Accordingly, we shall dismiss the amend- ments to the complaint which allege these violations. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National La- bor Relations Board hereby orders that the Respondent, Local 1922, International Brotherhood of Electrical Workers, AFL-CIO, its offi- cers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from restraining or coercing the employees of Mid-Island Electrical Sales Corp. and Mid-Island Lighting Fixtures Co., Inc., in the exercise of the rights guaranteed by Section 7 of the Act, by picketing the Companies, or engaging in any other conduct, for the purpose of forcing the said Companies to recognize the Respondent as the exclusive bargaining representative of their employees when the Respondent does not represent a majority of such employees in an appropriate unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls, copies of the notice attached hereto marked "Appendix."' 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 Respond- ent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter '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." 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (b) Return to the Regional Director for the Second Region signed copies of the notice attached hereto as an appendix for posting at the premises of Mid-Island Electrical Sales Corp. and Mid-Island Lighting Fixtures Co., Inc., Mineola, Long Island, New York, in places where notices to the Companies' employees are customarily posted, if the Companies are willing to do so. 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, 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 as to what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as, by amendment, it alleges that the Respondent by certain other conduct independently violated Section 8(b) (1) (A) of the Act. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 1922, INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, AFL-CIO, AND TO ALL EMPLOYEES OF MID-ISLAND ELECTRICAL SALES CORP. AND MID-ISLAND LIGHTING FIXTURES CO., INC. Pursuant'to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that : WE WILL NOT restrain or coerce the employees of Mid-Island Electrical Sales Corp. or Mid-Island Lighting Fixtures Co., Inc. in the exercise of the rights guaranteed by Section 7 of the Act, by picketing the said Companies, or engaging in any other conduct, for the purpose of forcing said Companies to recog- nize us as the exclusive bargaining representative of its em- ployees when we do not represent a majority of such employees in an appropriate unit. LOCAL 1922, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Labor Organization. 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 1922, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 853 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon the duly issued complaint of the General Counsel of the National Labor Relations Board, alleging restraint or coercion of employees in violation of Section 8 (b) (1) (A) of the Act by Local 1922, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Respondent, a hearing was held in New York, New York, on June 16, 17, and 18, 1958. The allegations of the complaint as amended, denied by the answer, in substance are that: (1) since April 14, 1958, the Respondent has picketed the place of business of two companies which operate as an integrated enterprise and which are herein called the Company (Mid-Island Electrical Sales Corp. and Mid-Island Lighting Fixtures Co., Inc.) with an objec- tive of forcing the Company to recognize and bargain with the Respondent as the exclusive representative of the Company's employees although the Respondent has not represented a majority of the employees at any time material; (2) during the course of the picketing and in the presence of the Company's employees, an agent of the Respondent used vile language and "threatened to inflict and did inflict bodily injury" upon two officers of the Company; and (3) during the course of the picketing, an agent of the Respondent, in the presence of the Company's em- ployees, "threatened to inflict and did inflict bodily harm and other injury to a certain truck driver" whose identity is unknown and who crossed the Respondent's picket line. All parties were represented at the hearing, 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 pro- posed findings and conclusions. A brief was received from the General Counsel. The Respondent's motions to dismiss are disposed of in accordance with the deter- minations below. 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 Mid-Island Lighting Fixtures Co., Inc. is wholly owned by Mid-Island Electrical Sales Corp. and their business is conducted as a single enterprise at Mineola, New York, where they are engaged in the sale and distribution of lighting fixtures, electrical supplies, and related products. During the 12-month period ending May 31, 1958, goods and merchandise valued in excess of $750,000 were shipped to the Company directly from points outside the State of New York. I find that the Company is engaged in commerce within the meaning of the Act. II. THE RESPONDENT The Respondent is a labor organization admitting to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES A. Preliminary statement This case presents two issues: (1) whether certain picketing of the Company's store by the Respondent is an unfair labor practice under the Curtis Brothers, Inc., doctrine (Drivers, Chauffeurs, and Helpers Local 639, etc.), 119 NLRB 232; and (2) whether an agent of the Respondent, while on the picket line, restrained or coerced the Company's employees by engaging in separate assaults upon two offi- cials of the Company and a truckdriver for a local delivery service. We shall consider first the alleged invalidity of the picketing. B. The picketing The General Counsel alleges that the Respondent, after losing an election at which employees of the Company voted unanimously against union representation, picketed the Company's premises in April 1958 and continuously thereafter with the objective of forcing or requiring the Company to recognize and bargain with the Respondent as the employees' exclusive representative. On the other hand, the Respondent asserts that it has been engaged in a campaign to organize the employees of various electrical supply stores in a two-county area, that its picket- 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing of the Company's store was but one aspect of that compaign , and that the picketing was not for recognition but was intended solely to persuade employees of the Company to join the Respondent. The basic issue, therefore, is whether the picketing during and after April 1958 was recognitional, as the General Coun- sel contends, or organizational, as the Respondent contends . In several cases the Board discussed like issues. Curtis Brothers, Inc., supra; Paint, Varnish & Lacquer Makers Union, Local 1232 (Andrew Brown Company), 120 NLRB 1425; Teamsters, Chauffeurs, etc. (California Association of Employers), 120 NLRB 1535; and Retail Store Employees Union, Local 1595 (J. C. Penney Company), 120 NLRB 1535. Under the doctrine of those cases, the General Counsel will prevail here if the Respondent's picketing was in part for recognition although also an organizational technique. According to the Respondent, about January 1957 it began a campaign to organ- ize the electrical supply stores in Nassau and Suffolk Counties. The Company operates one of those stores. During 1957 the Company twice filed petitions with the Board. In an unreported Decision of December 3, 1957, in Case No. 2-RM- 875, the Board directed an election which was conducted among the Company's employees on December 30, 1957, and which resulted in a vote of 12 to 0 against representation by the Respondent. In accord with Andrew Brown Company, supra, I take official notice of the following facts which the Board found in Case No. 2-RM-875: The [Company] contends that the [Respondent] is picketing to obtain recog- nition and a contract. The [Respondent] asserts that it wishes only to organ- ize the employees. In May 1957, the [Respondent's] business representative asked the [Company] to sign a contract. He was told to first sign up the em- ployees. . [the Respondent] began picketing the premises. The picketing continued for 3 or 4 days and the [Company] filed a petition in Case No. 2-RM-852 which was withdrawn when the [Respondent] sent the [Company] a disclaimer of representation. Picketing resumed on September 20, 1957. Thereafter, the [Respondent's] representative again urged the [Company] to sign a contract. On September 28, 1957 the [Company] filed the instant peti- tion. From the record as a whole, and from these facts in particular, we are convinced that the picketing is inconsistent with an unequivocal disclaimer, that it is tantamount to a present demand for recognition, and, that the [Respondent's] manifest purpose is to induce the [Company] to execute a con- tract although it has no representative status among the employees in question. The picketing ended on an undisclosed date in 1957. It began again on April 14, 1958, and was in progress at the time of the hearing. The validity of the picketing on and after the latter date is in issue. After the election but prior to April 14, the Respondent orally and by handbills occasionally solicited the Company's employees to become members. No employee did so. The solicitation was followed by the picketing and by another batch of handbills.' The picketing occurs at all hours that the Company's store is open for business, and usually the pickets number only two. One sign reads: PLEASE don't patronize this NON-UNION STORE. Help us maintain just and decent wages, hours and working conditions . We are members of LOCAL UNION 1922 I.B.E.W. A.F. of L. Another sign reads: The employees of this store are NON-UNION. Please don't patronize. We are members of LOCAL UNION 1922 I.B.E.W. A.F. of L. ' The Respondent asserts that its picketing on and after April 14, 1958, was prompted by the requests of one or more employees that it engage in vigorous organizational activity because employees had undergone a change of mind since voting unanimously against the Respondent in the election . There is a considerable amount of conflicting testimony in the record concerning whether any employee requested organizational activity, but I believe that it is unnecessary to recite the testimony and to resolve the conflicts. Even if it were found that some employees had requested organizational activity, while declining to join the Respondent, I would not alter my conclusions below concerning an objective of the picketing. LOCAL 1922, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 855 On the first day of picketing in 1958, and perhaps for a day or so afterwards, a third sign was used with the legend: TO THE PUBLIC: MANAGEMENT ON THIS JOB UNFAIR TO LOCAL UNION 1922 I.B.E.W. A.F. of L. Although the parties litigated the question whether the Respondent used the last- described sign more than 1 day in 1958, I now believe that the answer is not particularly pertinent. If an objective of the picketing was to obtain recognition, the use of signs appealing to consumers was violative of the Act regardless of a third sign which characterized the Company as "unfair." International Association of Machinists Lodge 942 (Alloy Manufacturing Company), 119 NLRB 307. More- over, the record establishes that the picketing was not intended as an appeal solely to prospective customers but also, as the Respondent concedes, to employees of other employers who came to the Company's store to transact the business of their respective employers. During the course of the picketing in 1958, conversations occurred between representatives of the Respondent and the Company which establish that an objec- tive of the picketing was to obtain recognition and a contract. On April 14, Leonard Forrest, an official of the Company, talked with Frank Mancuso, the Respondent's president. Forrest inquired "what the picketing was all about," and Mancuso answered: "We want you to join our local." Forrest then asked, "Why don't you get the men to join up?" Mancuso answered, "We will get you first. Then they will automatically be in." Four days later, when Forrest observed Mancuso seated outside the store, Forrest asked, "Are you tired, Frank?" Mancuso answered affirmatively. Forrest then inquired, "What would you like me to do about it?" Mancuso replied: "Sign a contract with us and get this thing over with." Between April 14 and 21, Daniel Kapilow, the Respondent's treasurer, asked For- rest several times to sign a contract. Upon one of these occasions, Forrest ex- pressed the belief that employees would quit if the Company executed a contract with the Respondent, and Kapilow replied that he would agree to destroy a contract if 25 percent of the employees quit. At that point a picket named Gordon Brown said to Forrest, "That's a good deal, Len, why don't you take it?" Brown also said to Raymond Burgin, another of the Company's officials, that ". . . it wasn't a tough deal, that [Brown's] boss, when he was asked to join [Local] 1922, almost got a heart attack, but after he signed up there was nothing to it." 2 In California Association of Employers, supra, the Board applied the rule that "a state of affairs once shown to exist is presumed to continue to exist until the contrary is shown," and in J. C. Penney, supra, the Board said: "There may be circumstances under which a union may show that its motives and objectives are not those originally announced [in picketing for recognition without majority status], but in our opinion it will require strong and conclusive evidence to show affirmatively that it is not continuing to picket for recognition." These doctrines must be applied here, and the factual situation recited above impels the conclusion that an objective of the picketing on and after April 14, 1958, was to obtain a contract with the Company 2The findings concerning the remarks of Mancuso, Kapilow, and Brown are based upon the testimony of Forrest and Burgin, witnesses for the General Counsel. On the other hand, Mancuso and Kapilow denied that they had spoken of a contract, and Brown, who was a witness for the Respondent on the subject matter set out in footnote 1, was not questioned about remarks made when he was on the picket line. I cannot credit the denials of Mancuso and Kapilow. Mancuso testified that he talked with Forrest "a lot" concerning perhaps "everything under the sun" except "anything to do with the union itself," and that he did not speak of a contract although he did speak of the employees joining the Respondent, when none of them had done so, and that he may have spoken of the purpose of the picket line. Kapilow testified that be and Forrest "had long philosoph- ical discussions outside the [Company's] store on many occasions," that the discussions totaled about 11/2 hours in which "a good deal of labor philosophy" was discussed, but that Kapilow tried to avoid a discussion of the picketing and was successful except as the picketing may have been alluded to in the philosophical discussions. The testimony of Kapilow and Mancuso concerning their conversations with officials of the Company does not have the ring of truth. On the other hand, the testimony of those officials discloses a position of the Respondent consistent with that which it had taken earlier as set forth above in the Board's findings in the representation case. Finally, a person present at one of these conversations, Richard M. Godnick, a witness for the Respondent, gave testimony of no probative value. He testified that he did not hear Kapilow ask that the Company sign a contract, but he testified also that he did not pay attention to the conversation between Kapilow and officials of the Company. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD although another objective may have been to induce the employees to join the Respondent. Accordingly, I find that the Respondent, by picketing for recognition on and after that date without majority status, restrained and coerced employees in violation of Section 8 (b) (1) (A) of the Act. C. The assaults upon company officials The remaining issues arise from amendments to the complaint. It is alleged that the Respondent's business manager, James Dolan, while picketing in the pres- ence of the Company's nonstriking employees, "used vile language, threatened to inflict and did inflict bodily injury" upon Milton Chrisman, the Company's presi- dent, on May 31, 1958, and upon Forrest, another official, on June 6. At the outset it should be said that neither Chrisman nor Forrest was injured physically. Moreover, I do not believe that it is necessary to detail the conflicting evidence and to resolve the factual issues. This is so because the General Counsel's proof will not support the amendments to the complaint.3 On May 31, according to Chrisman, he and several nonstriking employees were inside the store when he noticed that an automobile containing a man, woman, and child had stopped on the street in front of the store and that Dolan, who was then picketing, was conversing with the occupants. The identities of the occupants are undisclosed.4 Chrisman testified further that the picketing had been "quite disturbing" to him, that he left the store and went to the automobile where he "injected" himself into the conversation by stepping next to Dolan at an open window of the auto and asking the occupants if Dolan was attempting to keep them from crossing the picket line, that before there was an answer Dolan angrily pushed him away, telling him not to talk to the occupants, that he said to the occupants, "Don't pay any attention to that bloke," whereupon Dolan pushed him against the building, called him certain vile epithets, and challenged him to remove his glasses for a fight. Chrisman testified further that he was not hit or injured but that Dolan's hands were used to push him. Chrisman did not remove his glasses. The Company's employees remained in the building where they could observe the incident through large plate glass windows. None of the employees testified about the incident, however, and, in the absence of testimony by any of them, the record will not support a finding that they overheard anything said by Dolan and Chrisman to each other to the automobile's occupants.5 Turning to the incident of June 6 between Forrest and Dolan, Forrest testified that he had been watching two of the Company's employees and an unidentified driver unload a delivery truck, that, when the driver was preparing to leave, Dolan 8 Parenthetically, I note, however, that I was more favorably impressed with the versions of events as related by Chrisman and Forrest than I was with the denials as related by the Respondent's witnesses. 4 Chrisman could not identify the occupants and he did not overhear any part of their conversation with Dolan. According to the uncontradicted testimony of Dolan, the occu- pants stopped to ask directions to a nearby point. Another picket, Theodore Lukralle, corroborated Dolan's testimony that the occupants asked directions, but Lukralle referred to the male occupant as a "customer" and he sought to explain the reference by testifying that, as a salesman for an employer in the electrical supply field, "Everyone is a potential customer" to him. Lukralle's reference will not support a finding that the automobile's occupants were prospective customers of the Company, and the only finding that can be made concerning them is that they were passersby who stopped to ask directions. 5 only one employee was a witness and he was called by the General Counsel in rebuttal on the subject matter of footnote 1. No one asked him any question about the incident between Chrisman and Dolan. Chrisman testified that when he left the store to go to the automobile he let the door swing shut behind him but that during the assault upon him by Dolan an employee named Small held the door half open with the result that Small and employees within the store could bear Dolan's loud remarks. Chrisman testi- fied also that later Small told him that Small "was going to rush out, if anything did happen." I am not satisfied that Chrisman's testimony that the door was half open is. not based upon what Small said to him later, which is incompetent to prove the position of the door. It is clear that Chrisman was not emotionally calm when he went to the automobile and when he was being assaulted by Dolan, and I infer that he was too occupied with events at hand to observe whether a door was open sufficiently to enable employees to hear Dolan' s remarks . Under these circumstances, coupled with the failure of the General Counsel to call any employee as a witness on the subject, the record will not support a finding that employees heard what was said by Dolan and Chrisman. In any event, even if the contrary were true, my conclusions below would not be altered. LOCAL 1922, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 857 approached,the driver and that Forrest walked over and got "very close" to them in order to overhear any conversation, that Dolan told Forrest to "Get the hell off the street," that Forrest refused, that Dolan then asked the driver to walk across the street with him, that the driver refused, that Dolan then told Forrest to "Get the hell off the god damn street," and that Dolan, holding his hands by his sides, placed his body directly in front of Forrest and shoved Forrest back- wards, that Forrest was undeterred and again stepped to the point where Dolan and the driver were standing, that Dolan again used his weight to push Forrest away, and that the incident ended with Dolan asking the driver to call an unidentified person before making additional deliveries.6 According to Forrest, the Company's two employees who had assisted in unloading the truck remained nearby, but they were not called as witnesses. The above descriptions make it clear that, according to the General Counsel's proof, neither Forrest nor Chrisman suffered any physical injury, that the incident between Forrest and Dolan was minor indeed, but that Dolan called Chrisman vile epithets, pushed him against a building, and challenged him to fight. Our problem, however, is not whether Chrisman or Forrest was coerced in any manner. This is so because we are dealing here with alleged violations of Section 8 (b) (1) (A) and it is not a violation of that subsection to restrain or coerce an employer. Our problem is whether the Company's employees were restrained or coerced by Dolan's conduct toward management. To find the answer we must examine cer- tain decisions. In several cases the Board has held that employees were restrained or coerced in violation of Section 8(b) (1) (A) by a labor organization's violent conduct toward management. The theory is that the violence is calculated to serve as warnings to employees who observe it, or who reasonably may be expected to learn of it, that like violence may be inflicted upon them if they do not support the labor organization in the activity in which it is engaged. Thus, violence upon management representatives when they seek to enter a plant during a strike has been held to tend to restrain or coerce nonstrikers in their right to cross the picket line in order to work. United Furniture Workers of America, Local 309, etc. (Smith Cabinet Manufacturing Company), 81 NLRB 886, 888-9; Local :" 1150, United Electrical and Machine Workers, etc. (Cory Corporation), 84 NLRB 972; Local 140, United Furniture Workers, etc. (Brooklyn Spring Corporation), 113 NLRB 815. In addition, violence upon management has been held to tend to restrain or coerce striking employees in their right to abandon the strike if they should become of such a mind. International Woodworkers of America, etc. (W. T. Smith Lumber Company), 116 NLRB 507; Communications Workers of America (Ohio Consolidated Telephone Company), 120 NLRB 684. But the fac- tual situations in those cases differ substantially from the situation here with respect to the severity and premeditation of the conduct toward management, the nature of the picketing as peaceful or violent, and whether the labor organization sought to keep nonstrikers from working. Here, as we have seen, all of the Company's employees were nonstrikers who voted unanimously against the union in an election, who continued to work before and after the election although the picketing occurred off and on over a period of more than a year, and who were never threatened physically by a picket or any other representative of the Respond- ent. Moreover, as Forrest's testimony reflects, conversations between pickets and representatives of management normally occurred in a pleasant atmosphere with Forrest addressing the Respondent's president by the latter's given name and with a picket addressing Forrest by his nickname. Thus, we do not have here instances where union representatives were bent upon assaults and violence as part of a course of action intended to obstruct employers in their business activities or em- ployees in their desire to continue at work. We have instead only two spontaneous incidents (1) which involve a single one of various persons who picketed and (2) which would not have occurred had not the Company's officials sought to inject themselves into conversations between Dolan and unidentified individuals. By the second point, I do not mean that it furnishes justification for Dolan's con- 9 On direct examination, Forrest testified as quoted above. On cross-examination, he testified further that he had "just recalled" that Dolan called him a son-of-a-bitch. I was not favorably impressed by Forrest's delayed recollection and I do not credit his testimony that Dolan used that expression. Forrest's testimony was given after that of Chrisman, who attributed various vile expressions to Dolan, but Forrest' s awareness of Chrisman's testimony plus an opportunity to reflect overnight upon it and upon what Dolan had said to him did not enable Forrest to recall the expression when testifying on direct examination. Moreover, as set out in footnote 8, this is not the only instance where I was unfavorably impressed by Forrest' s testimony. "858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duct. Nor, on the other hand, do I mean to imply that there was no degree of provocation in Chrisman's telling persons whose business he did not know that they should not talk with "that bloke." I mean simply that the circumstances surrounding these two incidents show that the incidents were spontaneous and unusual in a setting of peaceful picketing rather than parts of a course of violence and assaults upon persons who opposed the Respondent's activities. These amendments to the complaint cannot be sustained unless it can be said reasonably that, under all the circumstances, the assaults upon Chrisman and Forrest tended to make the employees who were spectators fearful that like assaults would be made upon them unless they quit work and supported the Respondent in its activity. The factual recital above falls far short of supporting that con- clusion. I shall recommend that these amendments to the complaint be dismissed. D. The alleged assault upon a truckdriver An amendment to the complaint alleges that Dolan, while picketing in the pres- ence of the Company's employees, "threatened to inflict and did inflict bodily harm and other injury" upon an unidentified truckdriver who refused to observe the picket line. As in the incidents discussed above, there is no evidence of a physical injury. Moreover, this issue, too, will be disposed of on the General Counsel's testimony. Forrest was his only witness. According to Forrest, on June 6 a driver known to Forrest as "Slim," who was employed by Perkins Trucking Company, drove to the Company's store to make a delivery, but Dolan promptly spoke to "Slim" and "ushered" him without force across the street and into a bowling alley where, presumably, they talked.7 There- after they returned to the truck, near which were employees of the Company, and "Slim" began to unload, whereupon Dolan said to him: "What kind of a union man are you, anyway? This is no way to cooperate with us. I'll see you later." 8 Forrest testified further that "Slim," after unloading his truck, entered the store and said, outside the presence of Dolan and any other representative of the Re- spondent, "I want the name and affiliations of that man [Dolan]. Nobody can threaten me like that and get away with it." "Slim" was not a witness and the last-quoted testimony of Forrest, attributing-to "Slim" the statement that Dolan had threatened him, was stricken upon the Respondent's motion. With the deletion of that testimony, which was incompetent to establish a threat, there is no evi- dence to support this amendment to the complaint. I shall recommend that it be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, B, 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. '°In his brief, the General 'Counsel asserts that It was "apparently against ISIim's] will" to be "physically escorted" to the bowling alley. It is not apparent to me from Forrest's testimony, and "Slim" was not a witness so that I do not know his version of the incident. The General Counsel asserts further that the Respondent did not deny Forrest's version of the incident. Dolan testified, however, that he did not inflict harm or injury to "Slim," that he did not threaten to do so, that he merely asked "Slim" to telephone a local of the Teamsters Union to ascertain if the picket line was being "rec- ognized," and that in talking with truckdrivers who came to the Company's premises he asked only that they "cooperate." B Forrest so testified on direct examination, adding that he could not recall definitely. On redirect, Forrest testified that Dolan ended his remarks to "Slim" by saying : ". 'I will get you later,' or 'I will see you later.' " The record will not support a finding that Dolan threatened to "get" "Slim." First, there is the obvious uncertainty which Forrest expressed in his testimony. Second, there Is the instance set forth in the last footnote where I could not credit a part of Forrest's testimony. Third, another instance reflects Forrest's carelessness in testifying. He was called as a rebuttal witness to establish: that the Respondent had used a particular picket sign after the date on which the Respondent Is alleged to have engaged in an unfair labor practice. A snapshot of pickets wearing the sign, which obviously had been taken at night, was shown to him. He testified through a series of questions on direct examination and by the Trial Examiner that he had taken the snapshot in daylight after that date. On cross-examination, he corrected himself and testified..that the. snapshot had been taken at night, 6 months before the first alleged unfair labor practice. - CONSOLIDATED WESTERN STEEL DIVISION 859 V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices , I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. By restraining and coercing employees in the exercise of the rights guaran- teed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b)(1)(A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 4. The allegations of the amendments to the complaint have not been sustained. [Recommendations omitted from publication.] Consolidated Western Steel Division-United States Steel Cor- poration and Ray S. Morgan. Case No. 31-CA-2782. January 7, 1959 DECISION AND ORDER On April 14, 1958, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged 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 Re- port attached hereto. Thereafter, the General Counsel and Re- spondent filed exceptions to the Intermediate Report. The Respond- ent filed a brief in support of its exceptions and a supplemental brief opposing the exceptions filed by the General Counsel. The General Counsel filed a reply brief. The Board' has reviewed the rulings of 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 briefs, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifica- tions : The Respondent excepts to the finding of the Trial Examiner that, through its agent Evans, it refused to employ Morgan on the Edwards project because Local 460,2 refused to clear Morgan for work. The Respondent contends that Evans had no authority to 1Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this ease to a three- member panel (Chairman Leedom and Members Bean and Fanning]. a Local 460, International Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO. 122 NLRB No. 107.