Central Massachusetts Joint Board

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. We find that the following employees of the Employer con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at The Dalles, Oregon, plant, excluding lab technicians, office clerical employees, guards, professional employees, and supervisors as defined in the Act .16 [Text of Direction of Election omitted from publication.] 19 In view of its contention that the petition is premature , the Employer took the posi- tion that no unit is appropriate. This position is rejected . No other objection to the composition of the unit was advanced. Central Massachusetts Joint Board , Textile Workers Union of America, AFL-CIO and Chas. Weinstein Company, Inc. Case No. 1-CB-418. April 3, 1959 DECISION AND ORDER On October 31, 1958, Trial Examiner Sydney S. Asher, Jr., 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. The Trial Exam- iner also found that the Respondent had not engaged in other unfair labor practices and recommended dismissal of the complaint with respect thereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following addi- tions. The Trial Examiner found various incidents which occurred dur- ing the course of the Respondent's strike against the Employer con- sisting of assaults, threats, and the blocking of ingress and egress, responsibility for which he attributed to the Respondent, to have constituted activity violative of Section 8(b) (1) (A) of the Act. We adopt these findings. 123 NLRB No. 72. CENTRAL MASSACHUSETTS JOINT BOARD 591. In addition to these incidents which are fully detailed in the Inter- mediate Report, we find the following activities also to have fallen within the proscription of Section 8(b) (1) (A) of the Act. (a) During the month of September 1958, employee Skerry was assaulted by an unidentified picket as she was proceeding through the Respondent's picket line to the Employer's premises at 8 a.m. This assault was committed in the presence of Loretta Giguere who, the Trial Examiner correctly determined was an agent of the Re- spondent. Giguere did not repudiate this attack by the unidentified picket. Indeed, Skerry fell victim to an assault by Giguere during this same period under similar circumstances. Thus, we find the Respondent responsible for the assault upon Skerry.l (b) On or about September 1, 1958, as she was entering the, Employer's plant at 8 a.m., employee Agnes Harris was tripped by striker Jenny Korszowy who was engaged in picket-line activity. (c) In the second or third week of September 1958 while attempt- ing to enter the Employer's plant, Skerry was "caught in the mid- dle" of the picket line and was pinched in the thigh by picket Phoebe Polinski. We attribute responsibility for these latter two assaults to the Respondent. By his own testimony, Respondent's business agent,. Ralph Coderre, who assisted in the conduct of the picketing, reported to the picket line every day from the latter part of August 1958 to, the conclusion of the strike, a period of time which encompassed the above-described incidents. Coderre participated in the picketing at the plant entrance as the nonstriking employees approached and crossed the picket line each morning. As the Trial Examiner found, the maximum number of pickets during the month of September did not exceed 22; the pickets walked in a circle, single file. We conclude, under these circumstances, that Coderre, a partici- pating picket, upon whom rested the responsibility to maintain an orderly picket line, could hardly have been unaware of these assaults upon employees as they sought to exercise their right to work behind the Respondent's picket line. In view of Coderre's failure to repudi- ate the misconduct, the Respondent is liable therefor.2 We find that the Respondent restrained and coerced employees in violation of Section 8(b) (1) (A) of the Act by the acts described above as well as the acts found to be violative by the Trial Examiner, which we have adopted.3 i See Dallas General Drivers, Warehousemen & Helpers, Local No. 745, AFL-CIO (Associated Wholesale Grocery of Dallas, Inc.), 118 NLRB 1251, 1256. ,'District 50, United Mine Workers of America (Tungsten Mining Corporation), 106 NLRB 903, enfd. March 18, 1954 (C.A. 4). 3 Although, under the circumstances of this case, we have adopted the Trial Examiner's findings and conclusions concerning the use of vile and obscene language by strikers and .592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 the Respondent, Central Massa- chusetts Joint Board, Textile Workers Union of America, AFL-CIO, its officers, agents, successors, and assigns, shall: 1. Cease and desist from restraining or coercing the employees of Chas. Weinstein Company, Inc., by assaulting or threatening to assault supervisors or officials of the Company, by obstructing or impeding employees from entering or leaving the Company's plant, by assaulting or threatening to assault employees because they refuse to strike, or in any other manner restraining or coercing the em- ployees of Chas. Weinstein Company, Inc., in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its offices in Worcester, Massachusetts, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the First Region signed copies of the said notice for posting, Chas. Feinstein Company, Inc., willing, at the Company's establishment in Worcester, Massachu- setts. (c) Notify the Regional Director for the First Region in writing, within 10 days from the date of this Order, as to what steps it has taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges other violations of Section 8(b) (1) (A) of the Act not found herein. nonstrikers in or about the picket line, nothing in this decision is to be understood as condoning the use of such language in connection with picketing activities. In view of our findings of violations herein, we do not find it necessary to pass upon the General Counsel's contention that the Respondent is responsible for all picket-line activity because of its "authorization of the picket line." 4In 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." CENTRAL MASSACHUSETTS JOINT BOARD APPENDIX 593 NOTICE TO ALL OUR MEMBERS, OFFICERS, REPRESENTATIVES, AND AGENTS AND TO ALL EMPLOYEES OF GRAS. 1VEINSTEIN COMPANY, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : IVVE WILL NOT restrain or coerce the employees of Chas. Wein- stein Company, Inc., by assaulting or threatening to assault supervisors or officials of the Company, by obstructing or im- peding employees from entering or leaving the Company's plant, by assaulting or threatening to assault employees because they refuse to strike, or in any other manner restrain or coerce the employees of the said employer in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. CENTRAL MASSACHUSETTS JOINT BOARD, TEXTILE WORKERS UNION OF AMERICA, 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. INTERMEDIATE REPORT This case involves allegations that Central Massachusetts Joint Board, Textile Workers Union of America, AFL-CIO, Worcester, Massachusetts, herein called the Respondent, has since about March 3, 1957, restrained and coerced the employees of Chas. Weinstein Company, Inc., the Charging Party, herein called the Company. It is alleged that this conduct violated Section 8(b) (1) (A) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. After the filing of a complaint by the General Counsel,' the Respondent filed an answer denying that it had engaged in any unfair labor practices, and setting up certain affirmative defenses, which will be discussed at greater length below. A hearing was held before me in Worcester, Massachusetts, from January 27 to 30, 1958, inclusive. All parties were represented and participated fully in the hearing. By agreement of all parties, the Trial Examiner, accompanied by representatives of the Respondent and the General Counsel, viewed the exterior of the Company's plant. During the course of the hearing, the Respondent made several motions to dismiss portions of the complaint. Rulings on some of these motions were reserved. They are now disposed of in accordance with the con- clusions and recommendations herein. After the close of the hearing, the General Counsel and the Respondent filed briefs, which have been duly considered. Upon the entire record in this case, from my observation of the exterior of the premises involved, and from my observation of the witnesses, I make the following: FINDINGS OF FACT There is no dispute, and it is found, that the Company is, and at all material times has been, engaged in commerce within the meaning of the Act and its 1 The designation "General Counsel" includes the General Counsel of the National Labor Relations Board and his representatives at the hearing. 508 889-60-vol. 123-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations meet the Board's jurisdictional standard ,2 and the Respondent is, and at all material times has been, a labor organization within the meaning of the Act. A. The plant involved At the outset, it might be helpful to describe briefly the place where the events occurred which gave rise to this controversy. At all material times, the Company has been a tenant in two connected build- ings at the corner of Oxford and Austin Streets in Worcester , Massachusetts. At the beginning of the events described below , there were two other tenants in the building ; at the end there was only one other tenant, one having moved out in the interim. One building is a four-story brick building ; the other has one brick and three wooden walls . Together, the buildings extend about 30 to 40 feet along Oxford Street, and about 150 to 300 feet along Austin Street to an alley. The main entrance to both buildings is a recessed door on Oxford Street about 3'/z feet wide.3 This door opens outward; to enter it from the street , it is necessary to step back when opening it. The sidewalk on Oxford Street in front of the door is approximately 10 feet wide. There is a loading platform in the rear of the premises , with access to Austin Street by way of the alley mentioned above which is about 30 to 40 feet long. A mailbox is located at the corner of Austin and Oxford Streets on the same side of the street as the plant. B. Conduct of the picketing generally Immediately prior to March 4, 1957, the Company employed approximately 80 employees on 3 shifts . On March 4,4 the Respondent called a strike of the Company's employees and placed pickets at the Company 's plant. The strike and picketing lasted until November 22. The Company continued its operations throughout the strike . Some of the employees joined the strike, while others continued to cross the picket line and go to work . The Company recalled some former employees to work during the strike, and also hired some new employees.5 Felix P. Damore, director-financial secretary of the Respondent , was present in the vicinity of the plant on March 4 and on a number of occasions thereafter. So was Kenneth Hutchins , a business agent of the Respondent , who was in charge of the picketing .6 Hutchins was assisted in this task from time to time by two other business agents of the Respondent , Ralph Coderre and Theodore Filteau. This arrangement continued through October, after which Hutchins left the Re- spondent's employ. The record does not show who was in charge of the picketing after Hutchins' departure. Some pickets at times wore blue armbands bearing the letters "TWUA-CIO" and beneath, in smaller letters , the word "Picket." Some also carried signs, but the record does not reveal the wording of the signs. The picketing usually commenced in front of the Oxford Street entrance to the plant at about 7:45 a.m. The pickets walked in a circle single file taking up a major portion of the width of the sidewalk . The length of the picket line varied from about 5 to about 20 feet. Most of the nonstrikers '' usually entered the a The Company is a Massachusetts corporation , with its sole place of business in Worcester , Massachusetts . It is engaged in spinning yarn for the sweater trade. Its annual sales to customers outside the Commonwealth of Massachusetts exceed $50,000 in value. The Board has previously found the Company to have been engaged in commerce. Charles Weinstein Co., Inc., Case No. 1-RC-4597, issued September 7, 1956 ( unpublished). 3 The Oxford Street entrance is also used by employees of other ten -ants of the building. The evidence is conflicting as to whether or not the Austin Street door , sometimes referred to in the record as "the green door ," was in use during the time involved herein. I deem it unnecessary to resolve this conflict. 4 All dates herein refer to the year 1957 , unless otherwise noted. 5 Max Kaufman , a nonstriking employee, testified that "around 10 to 12" employees worked during the strike . Charles Weinstein , the Company 's vice president, testified that "about 25 to 30" employees were working in mid-September. 6 The finding that Damore and Hutchins were 'present on March 41s based on Kaufman's uncontradicted and credited testimony. 7 As used herein, the term "nonstrikers" includes employees of the Company working when the strike began who continued to do so during the strike , former employees not working when the strike began who were recalled to work during the strike , and new employees hired for the first time during the strike. CENTRAL MASSACHUSETTS JOINT BOARD 595 plant between 7:45 and 8:05 a.m. Some went "through" the picket line (that is, crossed into the center of the circle of pickets and then crossed out again on the opposite side) while others went "around" it (that is, reached the entrance by going between the circle of pickets and the building wall). About 8:15 or 8:30 a.m. the pickets usually ceased their circular walking and stood around on the pavement or sat on the steps of nearby houses. When a truck approached the alley leading to the loading platform, or when the Company's truck was leaving the alley, a picket line was formed on Austin Street near the truck entrance. Sometimes the pickets talked to the drivers of incoming trucks. On some occasions there were two shifts of pickets present at the plant. From March 19 until the end of the strike, there were probably no more than 12 pickets on the line at the same time, except for September 13, 16, and 17. On those 3 days, the picket line was augmented from about 7:45 to about 8:10 a.m. by the addition of approximately 10 male employees of another firm. At first the nonstrikers entered the plant in the mornings singly or in small groups. However, in September they frequently gathered on Oxford Street across from the main entrance just before 8 a.m., and then went into the plant as a group, single file. On these occasions either Wallace Laythe, a supervisor em- ployed by the Company, or Charles Weinstein, the Company's vice president, held the front door open as the nonstrikers entered. In at least one instance, probably on September 17, Weinstein directed that this procedure be used, and personally led a group of about 15 nonstrikers through the picket line and into the plant. During the entire strike Louis R. Brotherton, a police officer of the city of Worcester, was assigned to the Company's plant on his duty days, except on weekends when the plant was not in operation. Brotherton, in uniform, arrived in a police patrol car at approximately 7:20 a.m. each morning and parked the car usually on Austin Street, at the corner of Oxford Street, across from the plant. He remained seated in the car most of the time he was there. From this position, Brotherton was able to observe the Oxford Street entrance to the plant but his back was toward the alley referred to above. After the first week of the strike, Brotherton remained there only until about 8:30 a.m., but drove past the plant every hour thereafter until 2:30 p.m. At that time, he returned and remained until relieved by another police officer at 3:15 p.m. Weinstein and some of the nonstrikers telephoned to the police station numerous times for "protection." Some of the strikers also complained to the police several times that objects were being thrown at them. Brotherton testified that from time to time while he was away from the plant he received radio calls from police headquarters advising him of "trouble" at the plant and directing him to return there to investigate but that "when I got there I didn't see any trouble." Weinstein filed two complaints with the police against pickets, and Coderre complained to the police once against Weinstein. None of these complaints resulted in a conviction. The charge herein was filed by the Company on September 19, while the strike was still in progress. The only issue herein is whether or not the Respondent restrained or coerced any of the Company's employees or applicants for employ- ment from March 19 8 to the end of the strike-a period slightly in excess of 8 months. C. Threats and assaults The complaint as amended alleges, and the answer denies, that from on or about March 19 the Respondent restrained and coerced the Company's employees by "threatening to inflict and inflicting bodily injury to certain of [the Company's] officers, employees and applicants for employment and/or members of their families, and private citizens 9 in furtherance of its strike" against the Company. At the hearing, the Respondent orally requested a bill of particulars, which the General Counsel promptly submitted orally upon the record. The individual events will be discussed herein in the order given by the General Counsel in supplying his bill of particulars. s Tho charge was served upon the Respondent on September 19, hence events prior to March 19 are barred by the 6 months' limitation contained in Section 10(b) of the Act. Moreover, at the hearing the General Counsel amended the complaint by striking the date "March 3, 1957" and substituting therefor the date "March 19, 1957." a The words "and private citizens," were stricken at the close of the General Counsel's case-in-chief. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Muir's threat to Kaufman The bill of particulars states that "during the month of April, Edward Muir threatened an employee on or about 8 a.m." at the Company's plant. Max Kauf- man, a nonstriker who was a witness for the General Counsel, testified that he drove to work every day, and parked his automobile on Austin Street. He further testified that at about 8 a.m. one morning in April or early May he was walking alone on Austin Street on the side of the plant, that when he was 50 or 60 feet from the corner of Austin and Oxford Streets he encountered Edward Muir, a striker, and that Muir said to him: "You fucken Jew, if you ever leave your car outside, out in the street, it will be just too bad for you." Kaufman also testified that at the time this remark was made he was 90 or 100 feet away from the picket line, which was around the corner on Oxford Street, that he never reported the incident to the police but that he did report it to Weinstein. Muir did not testify.'° Based upon Kaufman's credited and uncontradicted testimony, I am convinced that the incident took place substantially as related by him. It is therefore found that about 8 a.m. in April 11 Muir threatened Kaufman with damage to Kaufman's personal property because Kaufman was engaging in his protected right not to join the strike. It is further found that this threat was accompanied by vile and insulting language, and that it occurred beyond the sight or hearing of pickets on the picket line. 2. Robichaud's alleged threat to an employee loading a truck The bill of particulars states that "during the month of August, Anna Robichaud threatened and [sic] employee who was loading a truck" at the Company's plant. There is no testimony relating to any such incident, nor does the General Counsel mention it in his brief.12 It will therefore be ignored. 3. Robichaud's attack upon Malowany The bill of particulars states that "during the month of August or September, Anna Robichaud hit one of the employees as the employee was going through the picket line to work" at the Company's plant. Mary Malowany, a nonstriker hired for the first time during the strike, testified as a witness for the General Counsel substantially as follows: On September 13, at about 8 a.m., she went to work carrying an umbrella. After proceeding through the picket line, she was struck on the back of the right shoulder as she was entering the door. She turned around and saw that it was Anna Robichaud, a picket, who had hit her. She did not report the incident to the police. As a result of the injury she had a visible bruise which lasted about 6 weeks, and went home early from work that day "because I didn't feel too good." However, she resumed work on the next workday and did not consult a physician in the matter but merely applied hot towels and liniment. Max Kaufman, another nonstriker who was a witness for the General Counsel, testified that on September 13 at about 8 a.m. as he was crossing Oxford Street to go into the plant, he saw Malowany crossing the pave- ment ahead of him walking toward the door, that Robichaud was walking in the picket line, that when Robichaud reached a point behind Malowany, facing her back, Robichaud raised her irght hand with her fist clenched and struck Malowany on the right-hand side of her back. On cross-examination he further testified that Malowany cried out "Ouch" or "Ow," that Robichaud "made a remark about a Jew" and that Coderre was present on the picket line at the time. Alice Skerry, a former employee recalled to work during the strike, was 10 There was hearsay testimony that Muir went to California long before the hearing. It is true that hearsay testimony which is received without objection is entitled to "be considered and given its natural probative effect." Diaz v. U.S., 223 U.S. 442, 450. But, standing alone as it does, it cannot support a finding that Muir was unavailable. Thus, there is no evidence that the Respondent attempted to serve a subpena on him, no request was made to take his deposition, and the Respondent has not shown that his present whereabouts is unknown. 11 Kaufman was laid off from work during the first 2 weeks of May. The incident with Muir therefore must have taken place in April rather than in early May. At oral argument, the General Counsel stated that he believed that Kauman had testified to a threat made to him by picket Anna Robichaud while he was loading a truck in August. A search of the record fails to uncover any such testimony. CENTRAL MASSACHUSETTS JOINT BOARD 597 also a witness for the General Counsel. She testified that in about the third week in September Malowany was in back of her as they went through the picket line, that she heard Malowany yell "Ouch," and that after that Malowany "had an awful lot of difficulty working for about 6 weeks with her arm." Brotherton, a witness for the Respondent, described his tour of duty at the Company's plant as "a nice vacation for me" and testified that there was "no trouble at all." Damore, another witness for the Respondent, stated that the picketing was "conducted very peacefully." Coderre, also a witness for the Respondent, denied that he saw Robichaud hit any employee going through the picket line in August or September. Robichaud did not testify, and the Respondent did not explain its failure to call her to the witness stand. In view of the unexplained failure of Robichaud to deny Malowany's testimony, and the corroboration of Kaufman and Skerry, I find that the incident occurred substantially as related by Malowany.13 This is not to discredit the testimony of Brotherton or Damore, for it is quite possible that the assault on Malowany could have occurred without their knowledge. It is accordingly found that, on Septem- ber 13 at about 8 a.m., Robichaud, a picket, inflicted bodily injury on Malowany, a nonstriker, on the picket line near the entrance to the plant, because Malowany was exercising her protected right to refrain from striking. Although I credit Coderre's limited denial that he personally actually witnessed the assault, it is significant that he was not asked if he had heard Malowany's outcry. In view of Kaufman's testimony, it is further found that Coderre was present on the picket line when this attack took place. 4. The threats to Skerry and Malowany The bill of particulars states that "during . August or September Loretta Giguere, Phoebe Polinski, and Anna Robichaud and other employees threatened employees and those seeking work with physical violence if they entered the plant." Skerry testified that she first reported to work at 11 a.m. on the Friday before Labor Day, which was August 30. According to Skerry, as she walked downhill on Oxford Street toward the plant entrance, she noticed four unidentified women leaning on the mailbox at the corner of Oxford and Austin Streets about 35 feet on the other side of the entrance. As Skerry reached a point about 5 feet from the entrance, these four women yelled at her: "Hey there, you can't go in there. Get out of there," and ran uphill toward Skerry. Skerry slowed her pace, reached the door, stepped back, opened the door, and entered the plant. As she entered, she "heard them right behind" her. They did not follow her in. Skerry further testified to another event during the third week in September, as follows: Skerry arrived across the street from the plant entrance after the other nonstrikers. had gone in. Giguere, Polinski, Robichaud "and a couple of men . . . [who] didn't work for" the Company called out to her: "You'd better not come across the street because, if you do, we'll get you. If you come over on this side of the street we'll fix you. You'd better go home." Skerry crossed the street and proceeded "half way through" the picket line. At this point an unidentified man about 21 years of age "pinned me right up against the wall . with his whole body. He held me right up against the wall, pressed me with his body." While doing so, the man told Skerry: "If you know what's good for you, you'll get out of here and go home. You'd better get a cab and go home." Skerry replied: "Get off of me," pushed the man away, and went into the plant. Although there was a police officer nearby, Skerry did not complain to him about the incident. Both Polinski and Giguere denied that they were in the vicinity of the plant at about 11 a.m. on the morning Skerry first resumed working for the Company, and both denied chasing Skerry on the street near the plant. They both also denied threatening any nonstriker with violence. Coderre testified that he never heard Polinski or Giguere threaten anyone entering the plant. As mentioned above, Brotherton and Damore described the picketing as peaceful. Robichaud did not testify. I am convinced that these events took place substantially as related by Skerry. With regard to the incident of August 30, the testimony of Polinski and Giguere that they were not present does not contradict that of Skerry, for Skerry did not identify them as being present on that occasion. It is accordingly found that at about 11 a.m. on August 30 Skerry, a nonstriker, was chased and threatened with bodily harm by four unidentified women as she was about to enter the plant. 131 consider Malowany's testimony that the bruise remained visible for about 6 weeks as somewhat exaggerated. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The general denials of Brotherton, Damore, and Coderre do not necessarily militate against Skerry's version of the second incident described by her. The general denials of Polinski and Giguere did not impress me as sincere, and are not credited. It is accordingly found that during the third week in September as Skerry was entering the plant, she was threatened with bodily harm by Robichaud, Polinski, Giguere, and some unidentified male pickets, acting in concert, and that her progress into the plant was physically obstructed by a male picket about 21 years of age, otherwise unidentified. It is further found that the incident occurred on the picket line, and that Skerry was subjected to this treat- ment because she was engaging in her protected right not to strike. Malowany testified that sometime in September she was walking alone along Austin Street toward the plant, that she saw Robichaud and Polinski near the mailbox at the corner of Austin and Oxford Streets, and that when Malowany was still about 10 to 40 feet from the corner Robichaud and Polinski came toward her and said she "should keep away," calling her a "dirty Jew," a "Christ killer" a "son of a bitch" and a "bastard." Malowany further testified that Robichaud and Polinski repeated their conduct toward her I or 2 weeks later. Malowany further testified that she herself weighs 125 pounds, that Robichaud weighs 180 to 190 pounds, and that Polinski weighs approximately 200 pounds. As mentioned above, Polinski denied that she threatened any nonstriker and Robichaud did not testify. I find that the first of the two allegedly identical incidents took place substan- tially as related by Malowany. It is accordingly found that, in September on Austin Street near the plant, Robichaud and Polinski (women considerably heavier than Malowany), acting concertedly, threatened Malowany with physical harm if she persisted in exercising her right to refrain from striking, and accompanied the threat with vile and insulting language. Did this threat take place while Robichaud and Polinski were picketing? I believe not. Robichaud lived on Austin Street, near the plant. Moreover, Malowany testified that Robichaud and Polinski were alone at the time on Austin Street. It is accordingly found that the threat did not take place in the context of picketing, or within the sight or hearing of a picket line.14 With regard to the alleged repetition of the incident 1 or 2 weeks later, Malo- wany's testimony was vague, indefinite, and sketchy. No finding will therefore be made regarding the repetition. In any event, such a finding would merely be cumulative and could have no effect upon the remedy hereinafter recommended. 5. The assaults of Giguere and Polinski upon Skerry The bill of particulars states: "During the month of September Loretta Giguere assaulted employees going to work on or about 8 a.m." at the Company's plant, and: "During the month of September Phoebe Polinski also assaulted employees going to work on or about 8 a.m." at the Company's plant. Skerry testified that in the second or third week in September, she went through the picket line and "got caught in the middle of it," and that Polinski, who was in the picket line, stepped toward her, reached out, "grabbed my thigh and twisted it, pinched it." Skerry further testified that, when she was "trapped in the center of the circle," a police officer was 5 to 7 feet away, that nonstriker Agnes Harris who was in the plant stuck her head out the window, "shouted real loud" to the police officer: "Hey, officer, can't you see what's going on down there? Why don't you do some- thing about that?" but that the police officer "just put his hands on his hip and looked down the street, . . . turned his back on us." Skerry further testified that 2 days later she "received the same treatment" from Giguere "on the opposite thigh," and that as a result she "had bruises about the size of ... a silver dollar," the first of which "got very red" but later turned blue. Skerry also testified that she showed her bruises "to the girls in the factory . . . as soon as I got into the factory." Harris testified that in the summer, probably in September, she was looking out a window of the plant, that she saw Skerry crossing the picket line and a police officer "down in the car," that she said: "Officer, what's the matter with you? Can't you see what's going on down there?" but that the officer "didn't pay attention, and he didn't even look." Malowany testified that Skerry showed her a mark on her thigh in September or October. She admitted that she and Skerry came to work every day, rain or shine, carrying an umbrella. Giguere denied that she ever pinched Skerry's thigh. Polinski also denied pinching Skerry's thigh, adding: "I couldn't have got close enough to pinch her if I tried. 1* In describing this incident in his brief, the General Counsel states that Robichaud and Polinski "left the picket line and met Mrs. Malowany." CENTRAL MASSACHUSETTS JOINT BOARD 599 She always had that umbrella . . . I never touched that woman. . . . I didn't want to get hit with the umbrella and I didn't take the chance, I wouldn't even try." Coderre testified that he never saw either Giguere or Polinski assault anybody. The testimony of Brotherton and Damore that the picketing was peaceful has been mentioned above. Based on my observation of the witnesses concerned, I do not credit the denials of Polinski and Giguere; instead, I credit Skerry's version, as corroborated by Malowany.15 It is accordingly found that, in the second or third week of Septem- ber, pickets Polinski and Giguere each separately, and on different occasions, inflicted bodily injury upon nonstriker Skerry as she was going through the picket line, because she exercised her protected right to refrain from striking. 6. The alleged threats by Polinski and Giguere The bill of particulars states: "During the month of October Phoebe Polinski and Loretta Giguere threatened employees on or about 8 a.m. as they were going to work" at the Company's plant. The record does not contain any evidence regarding threats by either Polinski or Giguere in October, nor are any threats in October mentioned in the General Counsel's brief. The Respondent's motion to dismiss this allegation , upon which ruling was reserved at the hearing, is now granted. 7. The assaults upon Aspinall The bill of particulars states: "During the month of March, a picket by the name of Stella . . . hit one of the employees as the employee was going to work" at the Company's plant. Angelina Aspinall, who has been employed by the Company "since the month of March on and off, was a witness for the General Counsel. She testified that she lives on the corner of Oxford and Austin Streets .opposite the plant, and that in March she "was walking up the road to go to work and this Stella Henry gave me a push, and I went against the building. I didn't get hurt." Henry did not testify. Assuming that this incident occurred as related by Aspinall, there is no showing that it took place on or after March 19, the cutoff date for the 6-month limitation of Section 10(b) of the Act. Accordingly, the Respondent's motion to dismiss this allegation, upon which ruling was reserved at the hearing, is now granted. The bill of particulars also states: "During the month of April on or about 8 a.m. one of the employees going to work was assaulted by one of the men on the picket line" at the Company's plant. Aspinall testified that in April as she was going into the plant at about 7 a.m., a man approached her from the left and gave her "a good shove" on her left arm with his right arm, that she told the man: "You stop pushing me," and that she then went inside the plant. Aspinall further testified that she had no visible bruise as a result of this incident, that she did not report the matter to the police, that the pickets at the time of the event "were just coming up toward us.... They hadn't formed up that way too much yet, but they were just about got to the door," and that they were not walking in a circle on the pavement. She described her assailant as "quite short probably in the fifties . round shoulders . . . sort of baldy" and wearing glasses, no hat, and a blue suit. According to Aspinall, she saw this man picketing "once or twice" during the same week. In view of Aspinall's uncontradicted testimony, I find that one morning in April, as Aspinall was about to enter the plant, she was pushed or shoved by an unidentified male picket. It is further found that this incident occurred at about 7 a.m., before any picket line was formed. 8. The alleged threats of Giguere and Korszowy to Harris The bill of particulars states: "Continually during the month[s] of July, August, September, October and November employees were threatened as they were coming to work at 8 a.m. The exact identity of each and every threat and who conveyed it is unknown, except to the fact that it was one of the pickets." This does not reveal the nature of the alleged threats, nor does it identify the pickets alleged to have made them. Moreover, it refers to an undisclosed number of threats on unspecified dates during a period of 5 months. It is found that this is so general in nature and so lacking in particulars that it fails to constitute a valid response to the Respondent's request for a bill of particulars. It will accordingly be disregarded. 15 In crediting Skerry's version , I do not necessarily find that the police officer heard Harris' remarks addressed to him. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The bill of particulars further states: "During the month of March or April, Loretta Giguere and Jenny Korszowy threatened employees as they were coming to work on or about 8 a.m. in the morning" at the Company's plant. Harris, a former employee recalled to work at the beginning of the strike, who lived at the corner of Oxford and Austin Streets, across from the Company's plant, was a witness for the General Counsel. She testified that, "a couple of times" in April, May, and June, Giguere told her that if she (Harris) did not cease working, she (Giguere) was going to "get" Harris, adding: "I'll fix you." Giguere denied making any threats. On cross-examination, Harris testified that she returned to work on the night shift at the behest of a fellow employee without reporting to anyone, that she did not speak to Weinstein that night, and that she again came to work the following day on the day shift, although "nobody" told her to do so. In my opinion, Harris thereby exhibited a pronounced lack of candor. Accord- ingly, I shall not credit those portions of Harris' testimony which are denied and which are not corroborated by objective circumstances or the testimony of other credible witnesses.ls Harris further testified that in August or September, as she was going into the plant in the morning about 8 a.m., the pickets stopped moving and stood still leaving "nobody any room to get by," that at this point Harris was kicked on the outside of the left leg below her knee by a thin woman, about 5 feet 4 inches tall; that Harris said to her: "You kicked me, you kicked me, you kicked me" or "she hit me"; and that an unidentified person then replied: "Why didn't you give her more?" or "you ought to give her more." Harris further testified that her leg became red and hurt her, but did not interfere with her work or require medical attention; that she did not report the matter to the police; and that she reported the incident to Weinstein, who advised her to "forget it." Wallace Laythe, a supervisor in the Company's employ, was a witness for the General Counsel. According to Laythe, he was holding the door of the plant open one morning about September 1 as the nonstrikers entered at about 8 a.m., and he saw Jenny Korszowy, a striker, partially trip Harris with her right foot as Harris "was just stepping into the door entrance," causing Harris to stumble against the door- way. Laythe further testified that, at the time this incident took place, the picket line "had stopped" and Harris had gone "around" it. Korszowy, who was identified as having picketed during the strike, did not testify and the Respondent did not explain its failure to call her to the witness stand. In view of Laythe's credited testimony and the unexplained failure of Korszowy to deny the attack, I find that the incident occurred substantially as related by Laythe, and corroborated by Harris. It is accordingly found that at approxi- mately 8 a.m. on about September 1, striker Korszowy tripped nonstriker Harris as Harris was about to enter the Company's plant, because Harris was engaging. in her protected right not to strike, and that this incident occurred on the picket line. Harris also testified that, on either the day of this attack or the previous day, between 1:30 and 2 p.m., she looked out the plant window and saw Korszowy downstairs and that Korszowy looked up at her and said: "I'll get you." As Harris did not impress me as a credible witness, and as her testimony in this regard was not corroborated, I will make no finding respecting this alleged incident. Aspinall testified that, in April, May, or June, she would frequently leave work at about 3 p.m. accompanied by Harris, and that on several occasions when they were leaving the plant, "a couple of men" called them "dried up redheads" and said to them: "We'll get you, we'll get you, you wait." Aspinall further testified that she had, on occasion, seen these men picketing in front of the plant. Harris corroborated Aspinall's testimony with respect to two such incidents, one in April and one in July or August. It is accordingly found that, on two occasions, once in April and again 3 or 4 months later, nonstrikers Aspinall and Harris were threat- ened with bodily harm by unidentified men as they left the Company's plant together at about 3 p.m. It is further found that these men had, from time to time, joined in picketing the Company's plant. 9. The alleged molestation of Skerry's daughter The bill of particulars states: "During the month of September, four or five pickets threatened private citizens for entering the Weinstein plant. They also, threatened to wreck cars of people, private citizens, who dared to go into the plant." 19 Hot Point Co., a Division of the General Electric Company, 120 NLRB 1768. See also N.L.R.B. v. Gala-Mo Arts, Inc., 232 F. 2d 102, 104-105 (C.A. 8). CENTRAL MASSACHUSETTS JOINT BOARD 601 Skerry testified that in October her daughter came to see her at the plant, that the daughter left about 5 minutes later and "went up the hill," that Giguere, Polinski, Al Lynch (a striker), and Mary (otherwise unidentified) motioned to a parked car, and that the car "followed" Skerry's daughter "very slowly up the hill." It is not clear from Skerry's testimony if the four people named gestured simultane- ously, or whether each of them in turn repeated the same gesture. Skerry's daughter did not testify, and the General Counsel did not explain his failure to call her to the witness stand. In view of the nebulous and incomplete nature of Skerry's testimony, and the unexplained failure of her daughter to testify, I am unwilling to base any finding that Skerry's daughter was molested upon such a fragmentary record. Accordingly, the Respondent's motion to dismiss this allegation, upon which ruling was reserved at the hearing, is now granted. 10. The threats to and assault upon Weinstein The bill of particulars states: "In the month[s] of March and September, Mr. Charles Weinstein and other supervisors were threatened by pickets, including, but not limited to, Anna Robichaud, Phoebe Polinski, and Loretta Giguere" at the Company's plant. Weinstein was a witness for the General Counsel. He testified regarding numerous insulting and "snide" remarks made to him by various pickets, including reflections upon his race and religion. He further testified that, in mid- June, Damore said to him: "You're a chiseler. You have no right to be in business. We are going to put you out of business." He also testified that in mid-September Giguere said to him: "You will never operate your plant. You haven't got a chance. We'll see to it that you will be put out of business." Assuming that these remarks were made, and that employees were present at the time, I consider them mere threats to utilize economic pressure against the company rather than threats of violence against Weinstein's person. Weinstein testified that on September 16 or 17, as he was going through the picket line, Hutchins said to him: "We are going to get you," and that Hutchins then raised his foot and kicked Weinstein. Weinstein further testified that, in mid- June, Robichaud threw beer bottles at his car. Giguere and Coderre denied that Weinstein was physically touched by any picket. Neither Hutchins nor Robichaud testified. In view of the unexplained failure of Hutchins and Robichaud to deny Wein- stein's testimony,17 I credit Weinstein's account of these incidents. It is accordingly found that, as Weinstein was going through the picket line on September 16 or 17, Hutchins in the presence of other pickets threatened Weinstein with violence and inflicted bodily injury upon him. It is further found that, in mid-June, picket Robichaud threw beer bottles at Weinstein's car, but no finding is made as to where this took place, or whether it was witnessed by any other pickets. 11. The alleged interference with Skerry's ingress The bill of particulars states: "During the month of September, pickets who were strangers to the Weinstein Company forcibly prevented employees going to work at or around 8 a.m." at the Company's plant. Skerry testified that she "got caught in the picket line" at an unspecified time, and that some unidentified man, not an employee of the Company, "elbowed" her. Her testimony regarding this alleged incident was so sketchy that no finding will be based thereon. ,12. Robichaud's assault upon Kaufman and Laythe The bill of particulars states: "During the month of May or June, Anna Robichaud attempted to assault two of the employees driving a truck by throwing a stone at them" at the Company's plant. Kaufman testified that, one morning in June between 10 and 11 a.m., he and another employee loaded the Company's truck at the loading platform, that while they were doing so six or more pickets formed a picket line on Austin Street at the entrance to the alley, and that employee Arthur Laythe drove the truck and Kaufman sat beside him. Kaufman described what happened then as follows: "After considerable trouble," Laythe drove the truck out of the alley past the picket line. The left window of the cab was rolled down. As the front of the truck reached a point about 4 feet into Austin Street, and was just turning to the left, Robichaud, one of the pickets who was standing 14 The mere fact that Hutchins was no longer in the Respondent's employ at the time of the hearing does not necessarily indicate that he was unavailable as a witness. s.a oy. we yw. v v, w.-^we.s ..v. . ........ .. ................ 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the sidewalk to the left of the truck, picked up a stone and threw it through the open window of the cab. Kaufman yelled: "Look out." The stone did not hit the occupants of the cab, but cracked the left side of the windshield. Kaufman further testified that he then reported the incident to a police officer seated in a patrol car parked at the corner of Austin and Oxford Streets. Arthur Laythe did not testify. Wallace Laythe testified that early in May "the pickets . . . refused to let the truck out," that he walked toward the police officer "at the end of the street," and that meanwhile "someone threw a stone at the driver [Arthur Laythe] and his helper [Kaufman]." Wallace Laythe admitted, however, that he had no personal knowledge of whether or not anybody threw anything at the truck. Brotherton testified that he was sitting in the patrol car at the corner of Austin and Oxford Streets, with his back to the driveway, when Kaufman reported the incident to him, and that he replied: "Go up and tell Charlie [Weinstein], he knows them all, and let him get a complaint." Brotherton admitted that he did not examine the truck to ascertain if it had been damaged. Robichaud did not testify. Although Kaufman named Giguere and Polinski as having been present on the picket line during the stone throwing, Giguere did not mention the incident in her testimony, and Polinski denied that she was present on the picket line from April 12 through July. In the absence of any contravening testimony, I believe that Kaufman related the incident accurately.18 It is accordingly found that, one morning in June between 10 and 11 a.m., as the Company's truck was leaving the plant with Arthur Laythe and Kaufman in it, Robichaud threw a stone at it, causing damage to the truck. It is further found that this assault, which endangered the persons of two employees, occurred on the picket line in Giguere's presence, and was motivated by the fact that Arthur Laythe and Kaufman were exercising their protected right not to strike. D. Vile, obscene, and vulgar language 1. Contentions of the parties The complaint as amended alleges, and the answer denies, that from on or about March 19 the Respondent restrained and coerced the Company's employees by "uttering and writing vile, vulgar and obscene language addressed to certain of [the Company's] officers, employees and applicants for employment and/or mem- bers of their families, and private citizens,19 in furtherance of said strike." The bill of particulars alleges that this was done by Edward Muir every day "from March 19 until sometime in August," excluding Saturdays, between 7 a.m. and 4 p.m.; and by Anna Robichaud, Phoebe Polinski, Loretta Giguere, and Aubrey Foley "every day from March 19 through November 23, excluding Saturdays," between 7 a.m. and 4 p.m. The bill of particulars also states: "Employee Mildred Gasco wore a sign which [contained] language . . . that was vile and obscene." The General Counsel maintains that vile, vulgar, and obscene language is violative of the Act when it is repeated with such frequency and under such circumstances that it becomes coercive. Conversely, the Respondent contends that Section 8(c) of the Act bars the use of speech as evidence of a violation of the Act, "no matter how objectionable [it] may be in terms of profanity, obscenity or even slander." 2. Facts The record is replete with evidence that, throughout the strike, the pickets (especially Polinski, Robichaud, and Giguere) repeatedly called the nonstrikers un- complimentary names, such as "scabs," "bags," "tramps," "dirty rats," "bums," "bastards," "dirty pigs" and "sons-of-bitches." Other more personal epithets were used on occasion, but with less frequency, such as "dried-up redhead," "Christ- killer," "fucking Jew," "white nigger," "herring choker," and "cockroach." One picket, referring to the nonstrikers, asked: "Why don't they crawl in the sewer?"; another told a nonstriker that she stank, and never took a bath. A few of the General Counsel's witnesses endeavored to give the impression that the nonstrikers endured this barrage of insults in meek and stoic silence. But the record shows otherwise. Thus, nonstriker Aspinall admitted that "sometimes" she thumbed her nose at the pickets and that she and Harris would answer their taunts; and Kaufman admitted that nonstrikers, as they went through the picket 'B While crediting Kaufman's testimony in other respects, I find it unnecessary to resolve the conflict as to whether or not Polinski was present on the picket line at the time. 19 The words "and private citizens" were stricken at the close of the General Counsel's case-in-chief. CENTRAL MASSACHUSETTS JOINT BOARD 603 line, "would exchange a word now and then" with the pickets. Brotherton testified that almost every morning during the strike he heard "both sides" indulge in indecent and vile language, such as "dirty scabs" "old whore" or "bag," which at times constituted a breach of the peace. Polinski, Giguere, and Coderre testified that the nonstrikers frequently called the pickets names, such as "bags," "tramps," "sluts," "big fat slobs," "God-damn whores," "skunks," and "whoremasters." One nonstriker told a picket: "You stink." It is found that, repeatedly throughout the strike, the pickets addressed vile, obscene, and insulting language to the nonstrikers, and the nonstrikers similarly addressed vile, obscene, and insulting remarks to the pickets. I deem it unnecessary to, and do not, decide which "side" began this verbal exchange. There is also some testimony tending to show that the following occurred: (a) A picket allegedly made "a noise with her mouth" at a nonstriker, turned around and lifted her dress, and made a gesture as if to flush a toilet. (b) A picket allegedly told a nonstriker: "When we get back to work, I'm going to piss right in your eye." (c) Another picket allegedly made a vile and obscene remark in French to a female nonstriker which in effect accused her of prostitution and sexual perversion. (d) A female nonstriker looking out the plant window was allegedly told by a female picket that she (the picket) was respectable and not living with a man, like the nonstriker was. (e) A female nonstriker in the presence of her husband and daughter was allegedly accused by a picket of having "men coming up there during the day, and drinking all day," of not being married, and of deceiving her "husband" and daughter regarding the true identity of her daughter's father. The General Counsel's brief states: "Statements which reflect and impugn on the morals of employees are considered merely as background since they do not have the repetitive quality or the intensity to take them out of the protection of Section 8(c)." Accordingly, no findings will be made regarding these five alleged incidents. The General Counsel produced no evidence that Gasco wore any sign containing vile and obscene language. The Respondent's motion to strike this allegation for lack of proof was granted at the hearing; it need not be further discussed herein. 3. Conclusions regarding vile, obscene, and vulgar language Let us turn now to the wording of the Act, Section 8(b)(1), so far as it is pertinent here, makes it an unfair labor practice for a union or its agents "to restrain or coerce (A) employees in the exercise of the rights guaranteed in Section 7." Section 7 reads in pertinent part: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and . . . to refrain from any or all of such activities... . Section 8(c) of the Act provides in pertinent part: The expressing of any views, arguments or opinion, or the dissemination thereof, . . . shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. Shortly after the above-quoted amendments to the Act became effective, the Board in two cases determined that "insofar as the abuse of the strikebreakers amounted only to name calling" it did not fall within the purview of Section 8(b)(1)(A) of the Act, but was privileged under Section 8(c) of the Act.20 So far as I have been able to determine, this principle has never been abandoned by the Board.21 But the General Counsel points to certain language in a recent deci- sion of the United States Supreme Court, as follows: ra International Longshoremen's and Warehousemen's Union, C.I.O., et at. (Sunset Line and Twine Company), 79 NLRB 1487,1505; and United Shoe Workers of America, C.I.O., et at. (Perry Norvell Company), 80 NLRB 225, 242. 21 In United Mine Workers of America, et at. (West Kentucky Coal Company), 92 NLRB 916, 949, profane imprecations, appellations, and epithets accompanying and forming an integral part of certain terroristic activities were not considered protected by See- 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petitioners contend that the words used, principally "scab" and variations thereon, are within a protected terminology . But if a sufficient number yell any word sufficiently loudly showing an intent to ridicule, insult or annoy, no matter how innocuous the dictionary definition of that word , the effect may cease to be persuasion , and become intimidation and incitement to violence.22 After quoting the above, the General Counsel 's brief continues : "In the light of this decision the Board is urged to hold that `name calling' is an unfair labor practice under certain circumstances . The circumstances are such as existed herein, viz. a heated strike situation where the oppressive language was continuous." In sum, the General Counsel asks the Board to abandon its present policy that name calling is protected under Section 8(c) of the Act , in favor of a new policy that name calling can constitute a violation of Section 8(b)(1)(A ) where it occurs under such circumstances that it becomes intimidatory or coercive . I need not and do not express any opinion regarding the merits of this contention insofar as it is addressed to the Board . However, as a Trial Examiner , I am constrained to follow the Board's present policy, unless the United States Supreme Court has held to the contrary 23 And in my opinion the United States Supreme Court decision quoted above did not necessarily have that effect, for the case arose in an injunction situation and the Court was not called upon to interpret the scope of the protection afforded by Section 8 (c) of the Act . In accordance with Board precedent, it is therefore found that the vile, obscene , and insulting remarks made by pickets to nonstrikers did not constitute a violation of Section 8(b)(1)(A ) of the Act, but were within the protection of Section 8(c) of the Act.24 But even assuming , contrary to the above, that name calling may constitute a violation of Section 8 (b)(1)(A) of the Act where it occurs under such circum- stances that it becomes intimidatory or coercive , these circumstances were absent here. For here, although the atmosphere was not that of a Sunday -school picnic, the language repeatedly used was mostly familiar picket -line jargon. The name calling was not shown to have caused any concern , nor did anyone hesitate to enter the plant because of it. The nonstrikers were not timid individuals ; they themselves indulged in similar name calling of the pickets. There was not here any menace accompanying the name calling, nor were the nonstrikers substantially outnumbered by the pickets . Finally, at least one of the nonstrikers thumbed her nose at the pickets, and two nonstrikers carried umbrellas with them , rain or shine, when going through the picket line . I conclude that the name calling here occurred under such ,circumstances that it did not reasonably tend to intimidate , coerce, or restrain the nonstrikers at whom it was addressed. E. Interference with ingress and egress 1. Contentions of the parties The complaint as amended alleges, and the answer denies, that from on or about March 19 the Respondent restrained and coerced the Company 's employees by "massed picketing at the Worcester plant." The bill of particulars states that this took place from on or about 8 a.m. through 4 p.m. "each and every day from March 19 through November 23, 1957" at the Company 's plant . The General Counsel explained at the hearing that this was not meant to allege that the Respondent restrained or coerced the employees simply by having a large number of pickets present; rather it was designed to allege such restraint or coercion "by conduct calculated or tending to bar employees ' ingress and egress." The Re- tion 8 ( c). The court, in enforcing the Board's order, stated: "It is true that the calling of names under certain circumstances may not amount to coercion ; but in the degree to which it was exhibited , here it expressed overwhelming hostility ." N.L.R.B. V. United Mine Workers of America, District 23, et at., 195 F. 2d 901 , 962 (C.A. 6), cert. denied 344 U . S. 920. 22 Youngdahl v. Rainfair, Inc., 355 U.S. 131, 138. 23 Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America ), 119 NLRB 768 ; Novak Logging Company, 119 NLRB 1573 ; and Scherrer and Davisson Logging Company, 119 NLRB 1587. 24 The American Tool Works Company , 116 NLRB 1681, cited by the Company, and N.L.R.B. v. Longview Furniture Company, 206 F. 2d 274 ( C.A. 4), cited by the Respond- ent, are not in point . They deal with an employer ' s right to refuse reinstatement to employees who used vile and obscene language to other employees while on strike. They are not concerned , as we are here , with the limitation placed by Section 8(c) of the Act upon the Board's power to find a violation of Section 8(b) (1) (A ) of the Act. CENTRAL MASSACIIUSETTS JOINT BOARD 605 spondent in its brief contends that "an average number of from 5 [to] 10 pickets covering a plant with three entrances and exits on two streets does not fulfill any conception of `mass picketing' based upon numbers. Nor does a picket line of this size in the face of 20 employees indicate any calculated attempt to bar ingress and egress. . . . the evidence is clear that no employee or prospective employee was ever prevented from going to work." 2. Facts a. The Oxford Street entrance Kaufman testified that when the pickets near the Oxford Street entrance to the plant kept walking, he "had enough room to go alongside the building into the door"; but that "quite often" the pickets "stopped up against the building" thus forcing him to "deviate" through the circle of pickets. He further testified that the pickets "never gave me any physical bodily contact whatsoever." Skerry testified that she "used to have a very hard time getting into the mill" and that at least- twice in September Giguere "would say close in on them as we crossed over, and- the picket line would get smaller, and we would have an awful struggle to get= through; and during the struggle we'd get either kicked or pinched or punched or this-elbowed into your-anyplace they could get you." Malowany testified that on September 13 as she sought to enter the plant the pickets "circled us around and they tried to pin us near the wall, and I happened to get through." According to Harris, at about 8 a.m. on September 1 "you had to push your way to go by," and the nonstrikers were forced to go around the picket line rather than through it because the pickets stopped moving. Harris further testified that, in August or September, Giguere "kept opening up the [Oxford Street] door [to the plant] and pressing the button to lock the door." Weinstein testified that the lock on Oxford Street door has buttons which, if pressed, cause the door to remain locked, and that "repeatedly, one of the pickets . locked this door when nobody was. around." Wallace Laythe testified that in September the pickets walked in single file about 2 feet apart, that every morning in September at about 8 a.m. Damore told the pickets to close up the picket line, and that the pickets then moved together so that they were "shoulder to shoulder, practically touching each other, not quite enough [room] for anybody to go between." He further testified that when the nonstrikers "started coming in the door .. . then they [the pickets] stopped the circle and people [the nonstrikers] had to squeeze in between them [the pickets]! and the doorway." Laythe further testified that on one morning late in August Giguere "several times" opened the plant door, set the pin, and locked the door, and that the Company then had a locksmith remove the pin so that the door could only be locked with a key. Brotherton testified that the pickets walked "about one space apart . . . sometimes a little closer," that during the "eight o'clock entry hour . . . they kept moving pretty well" and did not stop and lean against the building. According to Brotherton nobody was blocked from entering the plant;. the pickets "would break and let anybody through . you could walk through very easily . there is plenty of room there." Polinski, Giguere, Damore, and Coderre testified that they never saw anyone have any difficulty getting in, that the entrance was not blocked, and that nobody desiring to enter the plant was. prevented from doing so. Giguere denied opening the plant door or adjusting the lock. Damore testified that he had been in the vicinity of the Company's plant only about four or five times in September. He denied that he had ever heard anyone direct the pickets to close up. b. The alley The incident in June when Robichaud threw a stone at the Company's truck has already been related. In connection with that event, Kaufman testified that the pickets "refused to move, so the truck could get out ... we kept getting very close to them, and . . . we just managed to keep edging our way out, . . . and they just dispersed enough to give us a little room to get by; but for five, for two or three minutes, perhaps five minutes, we didn't move, because the picket line would just absolutely refuse to budge, and we had to stay there. . . . Wally Laythe noticed [that] we were having trouble getting out, and he came down and tried to see that we got through." Kaufman also testified that on other occasions when he drove the Company's truck "picket lines formed in front of the driveway to prevent me from going out." Walter Laythe testified that on the morning when a stone was thrown at the Company's truck "the pickets was blocking the entrance and they refused to let the truck out, so the truck was trying to nudge its way out ... the truck finally did get out of the alley.... " Weinstein testified that, late 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in March, he got "into the truck, and put it in low gear and proceeded to exit from the alley. . . . The pickets held hands across the alley. I put the truck as I said in low gear, proceeded slowly to exit until we finally forced our way through." 3. Conclusions regarding interference with ingress and egress It is found that the picketing was frequently conducted in such a way as to cause nonstrikers desiring to enter the plant to "deviate" from their usual route in order to detour around the pickets. Where, as in the case of Kaufman, no bodily contact resulted and no attempt was made to prevent entry into the plant, the slight inconvenience resulting is considered insufficient to constitute coercive conduct.25 It is further found that in August Giguere adjusted the pins of the lock on the plant door so as to cause it to remain locked. Her denial of this conduct was not convincing and is not credited. Undoubtedly, the establishment of a barrier which would substantially impede ingress through the door would have been a restraint. But Giguere's adjustment of the door lock does not, in my opinion, reflect a determination to prevent entrance. Rather it smacks of "picket line horseplay" devoid of sinister purpose. It is deemed too trivial an incident to warrant a finding of violation of Section 8(b)(1)(A) of the Act.26 It should be recalled that Wallace Laythe testified that Damore ordered the pickets to close up and that they obeyed. Damore's complete denial of this testi- mony was not entirely convincing. It is found that, on several occasions in Sep- tember, Damore and Giguere directed the pickets to close up and they did so. By closing ranks in front of the Oxford Street entrance, and by obstructing trucks coming out of the alley into Austin Street, the pickets frequently after March 19 engaged in conduct calculated or tending to impede and interfere with the non- strikers' ingress to and egress from the Companys plant. It is true, as pointed out by the Respondent, that the General Counsel failed to prove that any employee or applicant for employment was actually barred from the Companys plant. But the Act does not require that the Respondent's efforts to prevent employees from entering or leaving the plant be successful.27 F. Responsibility of the Respondent 1. Contentions of the parties; general principles The General Counsel argues that the Respondent "is responsible for all picket line activity" because its "authorization of the picket line and authorization of the pickets' wearing of union arm-bands raises a presumption that the pickets were the agents" of the Respondent ("everyone who wore the arm band must have been an agent of the union") and that in the absence of repudiation of the pickets' conduct by the Respondent, "we must conclude that [such conduct was] within the scope of the agents' authority." The Respondent, on the contrary, contends that it "is not responsible per se for the conduct of members on the picket line." The General Counsel frankly concedes in his brief that his theory of agency has not been adopted by the Board. In a long line of cases, the Board has held that a union is responsible for the conduct of its officers, and of its pickets under the direction of, or in conformity with a pattern established by, its agents acting within the scope of their authority.25 But it has never gone so far as to hold a union s United Shoe Workers of America, C.I.O. (Perry Norvell Company), 80 NLRB 225, 237-238, 242 (incident 1). 20 United Electrical, Radio and Machine Workers of America, et at. (Ryan Construction Corporation ), 85 NLRB 417, 435. 27 Local #1150, United Electrical, Radio & Machine Workers of America, et at. (Cory Corporation), 84 NLRB 972, 975-976. International Longshoremen's and Warehousemen's Union, C.I . O. (Sunset Line and Twine Company), 79 NLRB 1487, 1507, et seq.; United Shoe Workers of America, C.I.O. (Perry Norvell Company), 80 NLRB 225, 243, et seq.; United Furniture Workers of America, Local 309, CIO (Smith Cabinet Manufacturing Company, Inc.), 81 NLRB 886, 889-891 ; Local #1150, United Electrical, Radio & Machine Workers of America, et at. (Cory Corporation), 84 NLRB 972, 974, 977-978; National Union of Marine Cooks and Stewards, et at. (Irwin-Lyons Lumber Company), 87 NLRB 54, 55-56; and International Woodworkers of America, AFL-CIO, at al. (W. T. Smith Lumber Company), 116 NLRB 507, 508-509, enfd. 243 F. 2d 745 (C.A. 5). CENTRAL MASSACHUSETTS JOINT BOARD 607 responsible for all the acts of every picket which were not repudiated.29 Accord- ingly, the General Counsel's theory of agency is rejected as too broad. 2. Acts of the Respondent's officials The Respondent concedes that Damore, Hutchins, Coderre, and Filteau were its agents during the strike. Damore was clearly acting within the scope of his general authority as an officer of the Respondent when he several times in Sep- tember directed the pickets to close ranks. It is therefore found that all the obstructive tactics of the pickets described in section E above were engaged in at the direction of, or in conformity with a pattern established by, an agent of the Respondent acting within the scope of his authority. And this is true whether or not the pickets were employees of the Company, for the Respondent welcomed and availed itself of the help voluntarily offered by the employees of another firm on September 13, 16, and 17. Accordingly, the Respondent is responsible therefor. The same is true of Hutchins' threat to and assault upon Weinstein on September 16 or 17, described in section C, 10, above, for Hutchins was then in charge of the pickets. 3. Acts of members of the shop negotiating committee In November 1956 Damore, in a discussion with Weinstein, introduced several employees, including Muir and Giguere, as members of the shop negotiating committee, and Giguere attended several negotiating meetings. However, it does not appear that any separate local was formed at the Company's plant. It may be presumed from this introduction that in November 1956 Muir, Giguere, and other employees were invested by the Respondent with a certain amount of authority regarding the negotiation of a collective-bargaining contract and that such authority continued to exist throughout the strike. But even assuming this to be so, it does not of itself show that such authority extended to the conduct of the picketing. With respect to Muir, Brotherton testified that when he was first assigned to duty at the Company's plant he asked some unidentified pickets who was in charge, that they replied that Muir was in charge, and that he (Brotherton) then told Muir "what he was allowed to do" and "warned him that [if there was] any breach of the peace that I'd take action." Whatever reliance Brotherton may have placed on the word of some unidentified pickets, I accord it negligible weight. This is especially true when it is recalled that Damore and Hutchins were both present at the Company's plant on March 4, the day the strike began, and that therefore Hutchins (not Muir) was the person in charge of the picketing from the very beginning. I conclude that the General Counsel has failed to show that the Respondent delegated to Muir any authority regarding conduct of the picketing.30 It is further found that Muir's threat to Kaufman in April, described in paragraph C, 1, above, was not made under the direction of, or in conformity with a pattern established by, agents of the Respondent acting within the scope of their authority. It follows that the Respondent cannot be held responsible therefor. The authority conferred on Giguere is quite another matter. On cross-examina- tion by the General Counsel, she admitted that she had been in charge of pre- paring a schedule for the pickets. In view of her position on the shop negotiating committee, her authority to make out schedules for the pickets, and the fact that the pickets obeyed her when she ordered them to close ranks, it is found that she was an agent of the Respondent acting within the scope of her authority when she, in concert with other pickets, threatened bodily harm to Skerry as Skerry was entering the plant in September, as more fully described in paragraph C, 4, above; and also when she pinched Skerry's thigh as Skerry entered the plant in September, as described above in paragraph C, 5. The Respondent is accordingly accountable therefor. 29 See District 50, United Mine Workers of America, et at. (Tungsten Mining Corpora- tion), 106 NLRB 903, 907-908, enfd. March 18, 1954 (C.A. 4) ; and United Electrical, Radio & Maclaine Workers of America, Local 914 (American Rubber Products Corporation), 106 NLRB 1372, footnote 1. 3° Kaufman's description of Muir as president of the "local chapter of the union" was admittedly hearsay and 'is not credited. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Acts of pickets In two instances, picket Robichaud 31 committed acts of violence on the picket line in the presence of agents of the Respondent . These were her attack upon Malowany on September 13 in Coderre's presence , related in paragraph C, 3, above, and her throwing a stone at Kaufman and Laythe as they rode in the truck, in the presence of Giguere, described in paragraph C, 12, above. In neither instance did the Respondent repudiate Robichaud's conduct ; it is accordingly responsible therefor.32 And it is no defense that the pickets had been instructed to "conduct a peaceful picket line in furtherance of the ... strike." 33 Several incidents were not shown to have occurred in the presence of agents of the Respondent . These were: (a) The pinning of Skerry against the wall by a picket as she was entering the plant in September, described in paragraph C, 4, above; (b) the threats of Robichaud and Polinski to Malowany in September described above in paragraph C, 4; (c) Polinski 's pinching of Skerry 's thigh as Skerry entered the plant in Septem- ber, related in paragraph C, 5, above; (d) the pushing of Aspinall by a picket as she was entering the plant in April, set forth in paragraph C, 7, above; (e) the tripping of Harris by Korszowy as Harris entered the plant, described in paragraph C, 8, above; (f) the threats by pickets to Aspinall and Harris as they left the plant together, described above in paragraph C, 8; and (g) Robichaud's throwing of bottles at Weinstein's car, set forth in paragraph C, 10, above. In my opinion, the General Counsel has failed to prove that any of these seven events occurred under the direction of, or in conformity with a pattern established by, agents of the Respondent acting within the scope of their authority .34 Nor was it shown that these incidents took place under such circumstances that they were likely to come to the attention of the Respondent's agents. The Respondent is accordingly not responsible therefor. 5. Acts of unidentified persons It will be recalled that Skerry was chased and threatened by four unidentified women as she was about to enter the plant on August 30 . (See paragraph C, 4, above. ) These women were not connected with the Respondent by any probative evidence . There is no showing that their activities took place in the course of picketing or of any related activity sponsored , supervised, or incited by the Respondent . Accordingly , it is found that the Respondent was not responsible for the conduct of these four unidentified women. G. The Respondent's affirmative defenses The Respondent, in its answer, alleges that the Company "has engaged in and is now engaging in certain unfair labor practices . [which] were the subject of a complaint issued by the General Counsel of the National Labor Relations Board in Case No. 1-CA-2308.... These acts and other acts committed [by the Company ] constitute a bar to any relief under the National Labor Relations Board." At the beginning of the hearing , on motion of the General Counsel, this defense was stricken . However, the Respondent was advised at the time that 31 There is no probative or convincing evidence that Robichaud was ever an employee of the Company, but this is not material to the issue of the Respondent 's responsibility for her acts. There is evidence that Robichaud participated in picketing as early as March 19. "Dallas General Drivers , Warehousemen t Helpers, Local No. 745, AFL-CIO (Asso- ciated Wholesale Grocery of Dallas, Inc.), 118 NLRB 1251 , 1255--1256; District 50, United Mine Workers of America , et at. (Tungsten Mining Corporation ), 106 NLRB 903, 908, enfd . March 18 , 1954 ( C.A. 4) ; and United Electrical, Radio d Machine Workers of America, Local 914 (American Rubber Products Corporation ), 106 NLRB 1372. =Local # 1150, United Electrical, Radio d Machine Workers of America , at at. (Cory Corporation ), 84 NLRB 972, 978 ; and District 50, United Mine Workers of America, or at. ( Tungsten Mining Corporation), supra, at footnote 5, enfd . March 18 , 1954 ( C.A. 4). a4 While the two pinchings of Skerry 's thigh were similar , ,that administered by Polinski occurred first in point of time. It cannot therefore be said that Polinski followed an example set by Giguere . The Respondent accordingly is not responsible for Polinski 's -act. CENTRAL MASSACHUSETTS JOINT BOARD 609 it would not be precluded from showing provocation. The Respondent apparently argues in its brief for a reconsideration of this ruling, relying upon the decision of the Court of Appeals for the Seventh Circuit in the Banta Towing case,35 which decision was rendered after the close of the hearing herein. However, I do not read the Banta Towing decision as overturning the Board's long-standing rule that the doctrine of "clean hands" has no application to proceedings before the Board.36 I therefore adhere to my ruling striking this defense. By way of attempting to prove that the Company fostered "a deliberate attempt to provoke difficulties in a peaceful situation," the Respondent introduced evidence tending to show the following: (a) In September Weinstein allegedly struck Korszowy, while the latter was picketing; (b) in the same month Weinstein allegedly had a wrench in his hand, and he waved it toward the pickets saying: "I'll let you have it" or "I'll give it to you"; (c) between March 19 and April 12 Weinstein allegedly called Polinski a "big fat ass" who "took twice as much room as anybody else" and threatened to drop a green cup out a window on her head; (d) on October 31 Weinstein allegedly threatened to slap Polinski's face and ran toward her with his hand raised; (e) in April Weinstein allegedly importuned Giguere to abandon the strike and return to work, and bought her a package of cigarettes and some chewing gum; (f) in July Weinstein allegedly offered to pay Giguere's fare to Canada, and suggested that she take a trip to Florida or California; (g) in September or October, Skerry allegedly poked Polinski in the arm with an umbrella; and (h) throughout the strike various objects were allegedly thrown out the plant window at the pickets, such as water, firecrackers, and a dead bird. Weinstein and other witnesses for the General Counsel denied most of these allegations. Since the close of the hearing herein, the Board has made it abun- dantly clear that a case should not be extended "beyond the single issue presented by the General Counsel, to wit, whether the Respondents had restrained or coerced employees in the exercise of their statutory rights," and that "evidence . . . that the Company may also have unlawfully interfered with these employee rights [is] irrelevant." 37 I therefore deem it unnecessary to resolve these conflicts or to make any findings regarding alleged provocation. H. Conclusions It has been found that, as Weinstein was going through the picket line on September 16 or 17, 1957, he was threatened with bodily harm and kicked by Hutchins, an agent of the Respondent acting within the scope of his authority. This occurred in the presence of other pickets, many of whom were striking employees of the Company. The striking employees could have reasonably re- garded this assault upon an official of the Company as a reliable warning of what might befall them if they abandoned the strike. It may therefore be inferred that such conduct had the effect of restraining and coercing the strikers "in their own exercise of the right to continue or discontinue striking as they wished." 38 It is further found that since June 1957 the Respondent, through its duly authorized agents acting within the scope of their employment, has threatened to inflict and has inflicted bodily injury upon employees of the Company, in further- ance of its strike against the Company, by the threats of Giguere and other pickets to Skerry as Skerry was entering the plant in September, Giguere's pinching of Skerry on the thigh as Skerry was entering the plant in September, Robichaud's 35 N.L.R.B. v. National Organization Masters, Mates and Pilots o f America, Inc., AFL- C10, et at. (Banta Towing Co., Inc., et at.), 253 F. 2d 66 (C.A. 7). se United Furniture Workers of America, Local 309, CIO, et at. (Smith Cabinet Manu- facturing Company, Inc.), 81 NLRB 886, 888; Local .f#1150, United Electrical, Radio d Machine Workers of America, at at. (Cory Corporation), 84 NLRB 972, 979; and National Organization Masters, Mates and Pilots of America, Inc., AFL-CIO, et at. (J. W. Banta Towing Company, Inc., et al.), 116 NLRB 1787, 1796-1797, enforcement denied 253 F. 2d 66 (C.A. 7). 97 Communications Workers of America, AFL-CIO (Ohio Consolidated Telephone Com- pany), 120 NLRB 684. 38 N.L.R.B. v. International Woodworkers of America. AFL-CIO, at al. (W. T. Smith Lumber Co.), 243 F. 2d 745 (C.A. 5) ;,and Communications Workers of America, AFL-CIO, et al . (Ohio Consolidated Telephone Company), supra. 508889-60-vol. 123- X40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD striking of Malowany as Malowany was entering the plant on September 13, and Robichaud's throwing a stone at the company truck in June. It is further found that these threats and assaults were occasioned by the fact that the employees against whom they were directed were exercising their protected right to refrain from striking, and in order to coerce or intimidate them into joining the strike. It has also been found that, at the instigation of the Respondent, the pickets frequently after March 19, 1957, impeded and interfered with the employees' ingress to and egress from the Company's plant. In view of the above, it is found that, since about March 19, 1957, the Re- spondent has restrained and coerced the Company's employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(b) (1) (A) 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. Chas. Weinstein Company, Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act. 2. Central Massachusetts Joint Board, Textile Workers Union of America, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By restraining and coercing the employees of the Company in the exercise of rights guaranteed 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. 4. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to prove by a fair preponderance of the evidence that the Respondent violated Section 8(b) (1) (A) of the Act by addressing vile, vulgar, or obscene language to employees, applicants for employment, or officers of the Company. [Recommendations omitted from publication.] The Life Insurance Company of Virginia and Insurance Agents International Union, AFL-CIO, Petitioner. Case No. 5-RC- 2403. April 3, 1959 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Sidney Smith, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On September 19, 1958, the Board issued a notice advising the parties that it would hold oral argument and stating that it would, upon application, permit the filing of briefs amici curiae by labor organizations repre- senting insurance agents and by associations of insurance companies. Thereafter the Board, by its Executive Secretary, stated that it would also entertain requests to file briefs amici curiae on behalf of individual insurance companies. On November 6, 1958, the Board heard oral argument. In addition, the Board granted many requests for permission to file briefs. 123 NLRB No. 75.