United Steelworkers of America

UNITED STEELWORKERS OF AMERICA, AFL-CIO 277 United Steelworkers of America , AFL-CIO [Lau Blower Com- pany] and George Allen, Robert Poffenberger, Jesse Sherrets Local Union 4545, United Steelworkers of America , AFL-CIO and Cale H. Yoho, George Allen, Lawrence Baker, Charles E. Booher, Lawrence Baldwin, Dale L. Hoops, Robert Poffen- berger, Jesse Sherrets, Edward C. Williams Owen Girten, agent, United Steelworkers of America, AFL-CIO and Robert Poffenberger Robert Givens, agent, United Steelworkers of America, AFL- CIO and Charles E. Booher Dorsie Childers, agent, United Steelworkers of America, AFL- CIO and George Allen. Cases Nos. 9-CB-376, 9-CB-376-1, 9-CB-376-2, 9-CB-377, 9-CB-377-1, 9-CB-377-2, 9-CB-377-3, 9-CB-377-4, 9-CB-377-5, 9-CB-377-6, 9-CB-377-7, 9-CB-377-8, 9-CB-378, 9-CB-379, and 9-CB-380. March 17, 1959 DECISION AND ORDER On September 10, 1958, Trial Examiner C. W. Whittemore, issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report with a support- ing brief, and the Respondents filed an answer to the General Coun- sel's brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Mem- bers Bean and Jenkins]. 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, brief, and answer, and the entire record in the cases, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner with the additions and modifications noted below. 1. The Trial Examiner found that mass picketing, violence, and threats of violence, were directed against employees who refused to participate in a strike against the Company, that Respondents were responsible for such conduct, and that they thereby violated Section 8(b) (1) (A) of the Act. No exceptions were filed to these findings of the Trial Examiner, which we hereby adopt. 123 NLRB No. 35: 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Nor have exceptions been filed to the Trial Examiner's con- clusion that no finding of a violation is warranted based upon the poststrike incident detailed in the Intermediate Report involving the complainant Poffenberger and Respondent Girten. Consequently, we also adopt this finding of the Trial Examiner. 3. The Trial Examiner deemed it unnecessary to make specific findings regarding the occurrence of certain poststrike threats and acts of violence for the reasons that Respondents could not be held accountable for such conduct and, even if responsible therefor, no different order from that recommended in the Intermediate Report would be necessary . The General Counsel has excepted both to the Trial Examiner's failure to find further violations of Section S (b) (1) (A) on the basis of poststrike incidents and to the scope of the order recommended by him. . Even were we to decide that Respondents violated Section 8(b) (1) (A) of the Act by virtue of poststrike activity, the order would be similar to the one which we are utilizing to remedy the violations found above. It is therefore unnecessary to pass upon the issues raised by the General Counsel 's exceptions to the Trial Examiner's failure to find further violations in the instant connection. THE REMEDY Having found that Respondents have violated the Act, we shall order that they cease and desist therefrom and take certain affirma- tive action in order to effectuate the policies of the Act. As indicated above, the General Counsel has excepted to the scope of the order recommended by the Trial Examiner . We agree with the General Counsel that the order as recommended is not adequate herein. Considering the acts of violence engaged in by Respond- ents, we shall, in order fully to effectuate the policies of the Act, order Respondents to cease and desist from engaging in such con-. duct as is found unlawful herein and from otherwise restraining and coercing employees of the Company in the exercise of rights guaran- teed in Section 7 of the Act. ORDER Upon the entire record in these cases and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, United Steelworkers of America, AFL-CIO, its Local Union 4545, and their officers , representatives , and agents, including Respondents Owen Girten, Robert Givens, and Dorsie Childers, shall: 1. Cease and desist from : (a) Trailing and assaulting and threatening to assault employees of Lau Blower Company because of their refusal to engage in con- certed activities. UNITED STEELWORKERS OF AMERICA, AFL-CIO 279 (b) In any other manner restraining or coercing the employees of Lau Blower Company in the exercise of the rights guaranteed in Section 7 of the Act, including the right to refrain from any or all concerted activities as guaranteed by the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at the offices and meeting halls of the United Steel- workers of America, AFL-CIO, and its Local Union 4545 in con- spicuous places where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by representatives of the Re- spondent Unions and individually by Respondents Owen Girten, Robert Givens, and Dorsie Childers, be posted by these Respondents immediately upon receipt thereof and maintained by them for a period of at least 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 to the Regional Director for the Ninth Region signed copies of the notice attached hereto marked "Appendix," for post- ing at the premises of Lau Blower Company, the Company willing, in places where notices to its employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being signed 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 Ninth Region in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith. I 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 UNITED STEELWORKERS OF AMERICA, AFL-CIO, AND ITS LOCAL 4545, AND TO ALL EMPLOYEES OF LAU BLOWER COMPANY 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 notify you that : WE WILL NOT trail and assault or threaten to assault em- ployees of Lau Blower Company because of their refusal to engage in concerted activities. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner restrain or coerce employees of Lau Blower Company in the exercise of the rights guaranteed in Section 7 of the Act, as amended, including the right to re- frain from any or all concerted activities as guaranteed by the Act. LOCAL UNION 4545, UNITED STEELWORK- ERS of AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) Dated---------------- By------------------------------------- (ROBERT GIVENS, Agent) UNITED STEELWORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated-------- -------- By------------------------------------- (Representative ) (Title) Dated---------------- By------------------------------------- (OWEN GIRTEN, Agent) Dated---------------- By------------------------------------- (DORSIE CHILDERS , Agent) 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 STATEMENT OF THE CASE Charges having been filed and served; an order consolidating the above-entitled cases, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board; and an answer having been filed by the above-named Respondents, a hearing involving allega- tions of unfair labor practices in violation of Section 8(b) (1) (A) of the National Labor Relations Act, as amended, was held in Dayton, Ohio, on July 29, 30, and 31, 1958, before the duly designated Trial Examiner. 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. General Counsel argued orally. Disposition of the Respondents' motion to dismiss, upon which ruling was re- served at the conclusion of the hearing, is made by the following findings, con- clusions, and recommendations. Upon the entire record in the case, and from my observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED Lau Blower Company is an Ohio corporation with its principal office and place of business at its plant in Dayton, Ohio, where it is engaged in the manufacture, sale, and distribution of fans, ventilators, and related products. Events in issue arose during a strike of this Employer's employees in 1957. During the 12-month period before issuance of the complaint, this Employer sold and shipped from its Dayton plant products valued at more than $1,000,000 to points outside the State of Ohio. UNITED STEELWORKERS OF AMERICA, AFL-CIO 281 The Respondents do not deny, and it is found, that the Employer is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, and its Local Union 4545 are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and issues Upon the expiration of its contract with the Employer on April 30, 1957, the Respondent United Steelworkers and its Local 4545-apparently following a vote of members-called and participated in a strike which continued from that date until July 15, 1957, when a new contract was executed. Employees numbering about 400 returned to work on or about July 17. Since all issues raised by the complaint involve alleged conduct either by or attributable to responsible agents of the Respondent United or its Local, it may be well at this point to identify certain of such individuals. At the hearing it was stipulated that the following is a list of employees holding offices noted opposite their names, in Local 4545, at times material to the complaint: Glenn Hall, president. Karl Reingraber, vice president. George Givens, outside guard. Robert Givens, recording secretary. Q. G. Speck, financial secretary. Jack L. Kirkland, treasurer. E. W. Denham, guide. Dallas Hale, trustee. And the shop committeemen during the strike were: Troy Combs Howard Denny Delmus Witt Floyd Hill Ray Taylor Claude Blackurn Charles Lowe Joe Fitzgerald It was stipulated that at the material times the following named were staff repre- sentatives of the Respondent United: Floyd Hill 1 Frank Hardesty Dorsie Childers Stanley Wade Owen Girten The major issues raised by the complaint include allegations of mass picketing, violence and threats of violence during the period of the strike, and certain acts and threats of violence after the conclusion of the strike, responsibility for all of which are claimed to be attributable to the Respondents. B. The strike conduct in issue It appears that most if not all of the Employer's 400 employees participated in the strike from its inception until June 14 when 14 of them abandoned the strike and returned to work (a right clearly accorded them by Section 7 of the Act). Although none of the several charges filed by individuals nor the com- plaint as issued before the hearing claim any violence or threats of violence earlier than June 14, at the opening of the hearing General Counsel amended the com- plaint to allege that on June 8, at a meeting of the Respondent Local, three responsible representatives of the Respondent United (Childers, Wade, and Hill) threatened retaliation against any employee who "attempted to work during the strike." The evidence concerning this meeting will first be considered before turning to actual events on the picket line-which will be described in chronological order. Five of the complainants testified concerning the meeting of June 8. None of the five impressed the Trial Examiner as having any clear recollection of what, if anything, was said by any one of the United's representatives. None of them implicated Wade as having said anything. After repeated leading questions General Counsel succeeded in drawing from witness Booher, the first to testify on the 'A different individual than the above-named shop committeeman. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incident, the claim that Hill had said that "there had better not be anybody try to cross a picket line." The next two witnesses-Baker and Poffenberger-said they could not recall or did not hear what was said. Finally, the last witness of the day, Sherrets, said that Childers told the strikers that he "would see" that "anybody that tried to cross the picket line . . . didn't get there," and that Hill said "he had heart trouble" or would be out there "to keep us from going across." Childers was not a witness, but other United officials denied that any threats were made at this meeting. Not only because of the extreme difficulty General Counsel encountered in drawing from two of his five witnesses testimony about the am- biguous and questionable threats quoted above, but also because of the surrounding circumstances, the Trial Examiner considers the evidence insufficient to sustain this allegation of the complaint. The union meeting occurred a week before any of these witnesses or others attempted to go back to work. There is no evidence that on June 8 any of them had announced to anyone their intention to dissociate themselves from their fellow members. It is clear that while there was a dispute at this union meeting, its nature was not, so far as the record shows, concerned with crossing the picket line to return to work. Before turning to a recital of picket line events and other strike conduct in issue, the general question of accountability should be considered. That both Respondent United and Respondent Local 4545 were jointly responsible for the conduct of picketing was in effect conceded by counsel for all Respondents when he stated: "We don't deny that there was a strike and that United Steelworkers of America participated in the strike." As witnesses certain International repre- sentatives admitted that they were assigned to the strike at this plant.2 According to the testimony of one such representative, Wade, the hierarchy of strike "super- vision"-in descending order below representatives of United, included the officers of the Local, and then the picket captains. At this point, and upon the foregoing factor as well as others established by the record, the Trial Examiner concludes and finds that the Respondents United and Local 4545 must be held responsible for the conduct of pickets during the strike. Incidents of June 14, a.m.: Early on the morning of this date employee Booher and six others abandoned the strike and went to the plant, arriving in Booher's car. They parked across the street from the employees' entrance to the plant. As they crossed the street they were approached by some 15 to 20 pickets who had been sitting on a nearby fence. In summary, undisputed testimony establishes that in the following few minutes these acts and threats of violence occurred: (1) pickets rushed toward the seven returning employees, shouting that they "were not going to work"; Booher was shoved backwards by Robert Givens (previously identified as the Local's recording secretary) and was then struck in the face by striking employee Charles Daley; (2) striking employee Calvin Marlowe hit returning employee Lawrence Baldwin; and (3) when police broke up the alter- cation, arresting Marlowe, Givens, and Daley, pickets threatened the returning workers that they would "get them" when they came out of the plant. Later that morning Booher and Baldwin went to the local police station to file charges of assault. The two returned to the plant under police escort. As Booher stepped from the car he was struck by Harold Fisk, International representative of the Respondent United. June 14, p.m.: When the few employees who returned to work were ready to leave the plant that afternoon, local police were present to escort them across the street to the parking lot. No actual violence occurred, but it is undisputed that a large crowd of strikers and others shouted threats that the "scabs" would not be guarded by police all of the time and that they would "get them." Ample evidence establishes, and it is found, that mass picketing was engaged in on this occasion. June 17, a.m. and p.m.: A few more former strikers returned to work on Monday, June 17. Again a large crowd of strikers, plainly constituting "mass picketing," shouted threats to the returning employees as they were escorted by police into the plant in the morning, and out of the plant in the afternoon. Both United representatives and officers of the Local were present. It is undisputed by him, and is found, that Respondent Dorsey Childers, agent of United, assaulted returning employee Allen during the morning episode and was arrested by the police. Returning employee Michaels, during the same melee, was shoved to the sidewalk. Girtentestified : "I was assigned to be out on the picket line and was there practically every clay of the strike." Both Fisk and Wade said that they were "stationed" In Dayton at the "commencement" of the strike. UNITED STEELWORKERS OF AMERICA, AFL-CIO 283' Leaving the plant that afternoon, by automobile, several of the returning em- ployees were followed by strikers in another car. When they reached the home of one of the returning workers, Libecap, the strikers rammed their car, got out and threw pop bottles and other material at the "scabs' " car, and only retreated when threatened by Libecap's wife, who came out armed with a gun. Among the group of strikers were Kirkland, the Local's treasurer, and Fitzgerald, a com- mitteeman. June 18: Although a number of the returning employees did not report for work on this date, it appears that employee Cale Yoho did work. As he drove into his own driveway that afternoon, striker John Crum, who got out of a car driven by striker James Molitte, chased him into his home while Molitte shouted, "We will get you the next time." June 19: Upon leaving work the next day, Yoho in his car was followed by striker Crum and two other strikers, Rose and Skaggs. He finally drew up near a construction project, where he figured he would have witnesses, and stopped. The strikers got out of their car and proceeded to throw pop bottles and other objects at his car. Not until the construction workers threatened to start heaving things themselves did the strikers retreat. Yoho then went into a nearby house to call for the police. On the same day it is undisputed that mass picketing again occurred at the plant entrance, and continued for the next 2 or 3 weeks. C. Conclusions as to strike conduct Although the record reveals certain other minor incidents of threats of violence, as to which credible testimony is undisputed, the foregoing narration is sufficient, in the opinion of the Trial Examiner, to warrant the conclusion, here drawn, that during the period of the strike the Respondents United and Local 4545 engaged in a clear pattern of mass picketing, violence, and threats of violence, designed to coerce employees in the exercise of their right, guaranteed by the Act, not to participate in the strike. In view of the nature of the picket line events, also, the Trial Examiner concludes and finds that the Respondent United and Respondent Local must be held responsible for the above-described threats and attacks upon returning workers made after they had left the plant. In effect, such conduct merely extended the picket line into an area where police protection was not immediately available. Even in the absence of local officials or committeemen the Respondents must be considered accountable for the strikers ' more distant actions, since such conduct was of a nature either initially instigated or tacitly approved by officials on the picket line. D. Poststrike issues In his complaint General Counsel also claims, and ample credible evidence establishes, that some of the "scabs," or employees who had abandoned the strike and returned to work, were harassed by certain shop committeemen and other employees, on a number of occasions after the new contract was executed, the strike itself was abandoned, and all employees had returned to work. Such harassment, General Counsel contends, was prompted not only as retaliation for desertion from the strike ranks but also by an intention to discourage victims from ever again exercising their right to refrain from striking , in the event an- other strike occurred. The Trial Examiner has no doubt that such an inference is reasonable and warranted. Under the circumstances, however, the Trial Examiner considers it unnecessary to make specific findings or recommendations concerning such poststrike matters. Such circumstances include: (1) the fact that responsible officials of both Re- spondents-United and Local 4545-disavowed such conduct; and (2) the suffi- ciency of the broad cease and desist recommendation below to cover such conduct where attributable to the Respondents. As to point (1) : it is undisputed that top officials of both the United and Local 4545 met with management concerning these poststrike incidents between former strikers and nonstrikers and candidly told management, in the words of representative Hardesty, that "anyone . . . causing any trouble in that plant . should be disciplined and corrected in an orderly fashion regardless of who they might be." Management and union offi- cials agreed that this would be the policy to be followed thereafter. It is also undisputed that immediately upon the execution of the contract, at a general meet- ing of employee members of Local 4545, the International representatives made it clear that there was to be no retaliation against "scabs." 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above-described circumstances of point (1), the Trial Examiner believes, warrant the conclusion that neither the Respondent United nor Respondent Local may reasonably be held accountable for the poststrike conduct of individual em- ployees in such terms as would be necessary to support a finding of violation of Section 8(b)(1)(A) of the Act. The record also contains disputed testimony concerning an incident at the com- pany parking lot about a month after the strike ended, involving Complainant Poffenberger and International Representative Owen Girten. It is the one inci- dent raised, apparently, by the charge in Case No. 9-CB-378. It appears that- when leaving the plant after work Poffenberger and three other employees crossed the street into the parking lot, and at the lot passed by Owen Girten, who had just parked his car at the curb of the street. Girten, it is undisputed, although still an International representative had completed his assignment in Dayton with the ending of the strike in July, had been on vacation, and on this occasion had come to the plant to visit certain friends. One hand had previously been injured, and the arm was in a sling. At this point, testimony is in sharp dispute. Accord- ing to Poffenberger, somebody stepped on his shoe, and when he straightened up. after replacing it Girten struck him in the face and called him a "son of a bitch scab." According to Girten, Poffenberger brushed by, his shoe came off, and as he straightened up he called him a "union son of a bitch," whereupon he struck him with his uninjured hand. As witnesses, Poffenberger and Girten each denied having called the other a name. Poffenberger claimed that at the time he did not know Girten, had never seen him before, and did not know how Girten was aware he had been a "scab." On the other hand Girten readily admitted he knew that Poffenberger and the others with him on this occasion had been "scabs." None of the others present testified about the incident. The Trial Examiner con- fesses difficulty in determining what precipitated the blow. There is no ready explanation as to why Girten, chancing to be at this point, should select one of four men passing him on the street to strike and call a "scab," if, as he says, he knew all of them to have been "scabs," without some more immediate provoca- tion. It would seem more probable that Girten did, accidentally or intentionally, step on Poffenberger's heel, and that the latter, being angered, called him a name, whereupon Girten struck him. In any event, it was an isolated incident, obviously and wholly unrelated to the Respondent Unions' illegal conduct during the strike and not of sufficient import to warrant a conclusion that on this occasion, Girten, as agent for the Respondent United, violated Section 8(b)(1)(A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in section III, above, occurring in connection with the operations of the Employer described in section I, above, have a close, intimate, and substantial relation to trade, traffice, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices the Trial Examiner will recommend that they cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, AFL-CIO, and its Local 4545 are labor organizations within the meaning of Section 2(5) of the Act. Owen Girten, Robert Givens, and Dorsie Childers, and each of them, are agents of United Steel- workers of America, AFL-CIO. 2. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent labor organizations and their above- named agents have engaged in and are 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 within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.]