Local No. 3887, United Steelworkers of America

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER FANNING, dissenting: In my opinion, the facts in this case do not reveal the existence of a dispute within the meaning of Sections 8(b),(4) (D) and 10(k) of the Act. On the contrary, I believe that this case is governed by the recent decision in Franklin Broadcasting Company,6 where the Board held that a strike to persuade an employer to reemploy certain dis- charged employees and to sign a new contract was not a dispute within the meaning of Section 10(k). I think that the strike in this case was in protest against Safeway's unilateral action in eliminating trucking operations at Wilmington, discharging the drivers, and re- fusing to enter into a new contract, and not for the unlawful purpose of compelling a particular assignment of the work in question. In Franklin, the Board held that a strike to gain renewed contractual recognition for certain work was not a jurisdictional dispute, resting its decision on the ground that the dispute was not about work assign- ments but concerned the discharge of certain employees and the em- ployer's refusal to sign a new contract. It seems to me that this case clearly falls within the Franklin rule, and that Local 107 must be per- mitted to strike to defend its historic bargaining status. I have care- fully considered the grounds advanced by Chairman Leedom for distinguishing this case from Franklin, and while there might be slight factual differences between this case and Franklin, the differ- ences do not, in my opinion, affect the applicability of the principle to this case. Safeway's unilateral action in changing its operations, which was deliberately concealed from Local 107 as long as possible, invited exactly the kind of defensive strike action that ensued. Concerted activity by a labor organization to defend its past bargaining position and prevent the undermining of its representative status is not the kind of dispute contemplated by Section 8(b) (4) (D), but is a type of concerted activity that may be legitimately pursued. Accordingly, I would quash the notice of hearing issued in this proceeding. 6126 NLRB 1212. Local No. 3887, United Steelworkers of America , AFL-CIO and Stephenson Brick & Tile Company. Case No. 10-CB-1200. September 7, 1960 DECISION AND ORDER On April 29, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in unfair labor practices and recommending that the complaint therefore be 129 NLRB No. 4. LOCAL NO. 3887 , UNITED STEELWORKERS OF AMERICA 7 dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed ex- ceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. 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 In- termediate Report, the exceptions and brief , and the entire record in this case, and finds merit in the General Counsel's exceptions.' The complaint alleged that certain incidents which occurred on the picket lines surrounding the Company's places of business at Lovick and Birmingham, Alabama, during the course of Respondent's strike against the Company , violated Section 8(b) (1) (A) of the Act. The Trial Examiner found that these incidents did not warrant a finding that Respondent violated the Act. We do not agree. A. Incident of December 1, 1959: On this date, Floyd Howard, a truckdriver for Southern Amiesite Co., came to the Company's yard in Birmingham for a load of bricks . No pickets were at the yard at the time. However, as Howard attempted to drive out of the yard through the main exit, his truck was blocked by several pickets. Ac- cording to Howard's uncontradicted testimony, he testified that "Well, I just stopped . I could not run over them. All that I could do was stop." He then attempted to leave the yard through a back exit. However, he was again prevented from doing so by pickets who had moved from the main exit to block Howard's alternate mode of egress. Howard then talked to several pickets and attempted "to get them to let me go on," but without success. It was only after the police were summoned, a factor not adverted to by the Trial Examiner, that Howard was permitted to leave the yard. The record clearly reveals that Respondent 's Vice President Marbury and Financial Secretary Hall were present on the picket line when this incident occurred. The Trial Examiner concluded that Respondent did not violate Section 8 (b) (1) (A) on December 1 because "Howard was not forcibly prevented from either entering or leaving the yard. " The recorded facts fail to support this conclusion. Howard's repeated efforts to leave the Company's yard were thwarted by a massing of pickets at the exits. Only by the intervention of the police was Howard per- mitted to drive his truck off the Company's premises. The Board has consistently held that a union's conduct calculated or tending to im- pede and interfere with efforts of employees to enter or leave a struck 1 In the absence of exceptions to the Trial Examiner 's finding that Respondent did not violate Section 8(b) (1) (A) by its conduct on December 10, 1959 , we adopt his finding in this connection pro forma. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant constitutes a violation of Section 8(b) (1) (A) .' The Board has also held that the Act does not require that the union's efforts to prevent employees from entering or leaving a plant be successful.3 We think the record is clear that Respondent's conduct on this date not only was calculated to, but did, interfere with Howard's departure from the yard. Accordingly, we find, contrary to the Trial Examiner, that Respondent violated that section by its picket-line activities on December 1. B. Incident of December 8,1959: Stevenson, an officer of the Com- pany, testified that on this date a truck in which Horace Holcomb, an employee of an individual named Jones, was riding attempted to leave the Company's yard with a load of brick. Pickets, in the pres- ence and company of Respondent's officials, formed a barrier and prevented the truck from leaving the yard. Again the police were summoned and, through their efforts, the truck was able to leave. As the truck pulled out of the yard, the pickets broke ranks and followed the truck. Marbury ran alongside the truck and attempted to open the door of the truck. Other pickets picked up rocks although they apparently were not hurled at the truck. The foregoing testimony of Stevenson was not discredited by the Trial Examiner. Marbury and Hall were called as witnesses by the Respondent and conceded that they surrounded the truck before it left the yard. Hence, Steven- son's testimony of this incident stands uncontradicted. The Trial Examiner dismissed this allegation in the complaint on the ground that there was no evidence "of violence or threat of violence on this occasion." However, he erroneously disregarded the record evidence which plainly reveals that, under the aegis of Respondent's officials, the pickets prevented the truck from leaving the Company's brickyard by blocking the exit road and that the truck was able to leave only after the police were called. Accordingly, we find that the Respondent's picket-line conduct on December 8 came within the proscriptive ambit of Section 8(b) (1) (A) and we reverse the Trial Examiner's contrary finding. C. Incident of December 15,1959: On this date, while C. B. Brooks, a truckdriver employed by the Company, stood talking to some strikers in the Company's yard, Hall approached and asked Brooks whether he was hauling any material for the Company. When Brooks answered in the affirmative, Hall remarked, "I hate to see you get killed." Hall did not deny making this statement but simply testified that he did not recall the incident. "See, e.g., Hermandad de Trabajadore8 de la Construction et al. (Levitt Corp.), 127 NLRB 900 ; General Electric Company, 126 NLRB 123 3 See Central Massachusetts Joint Board, Textile Workers Union of America, AFL-CIO (Chas. Weinstein Company, Inc.), 123 NLRB 590, 606. LOCAL NO. 3887, UNITED STEELWORKERS OF AMERICA 9 The Trial Examiner dismissed the complaint insofar as it alleged that this statement constituted a violation of Section 8(b) (1) (A) on the ground that the remark was "ambiguous." According to the Trial Examiner, the ambiguity derived from the fact that Brooks was not spoken to by any picket for the remainder of the strike, and that no striker interfered with Brooks' entry to or exit from the yard. We fail to perceive how, under any reasonable or logical construction of the circumstances adverted to by the Trial Examiner, such a clear and bluntly worded threat of bodily harm could be translated into an "ambiguous" remark. We reverse the Trial Examiner's dismissal of this allegation in the complaint and find that Hall's statement to Brooks violated Section 8(b) (1) (A).' D. Incident of January 5 to 8,1960: Sometime during this period, Herbert Harrison, a truckdriver for Alabama Appliance Company, was about to leave the Company's Birmingham yard when pickets ran from the opposite side of the street carrying sticks and jack irons and surrounded his truck. As Harrison's truck reached the street, the pickets continued to surround the vehicle and a vent window of the truck was broken. In attempting to avoid the shattered glass, Harrison collided with another truck in the street. Roy Johnston, a salesman for the Company, testified without contradiction that he observed Hall in the group surrounding the truck and saw Hall carry- ing a stick and attempting to get in the door of the truck. The Trial Examiner dismissed this allegation in the complaint on the ground that the evidence failed to identify the picket who broke the truck window. However, the Trial Examiner completely ignored the evidence which reveals that the pickets attempted to block egress from the yard, that the breaking of the window occurred as the pickets gathered around the truck, and that Hall was observed carrying a stick and attempting to enter the truck. Contrary to the Trial Ex- aminer, we find that Respondent violated Section 8(b) (1) (A) by attempting to block the exit from the plant.' Moreover, we find that Respondent also violated that section by the conduct which caused Harrison to collide with another vehicle since this conduct was but another link in a pattern of unlawful conduct in which Respondent was engaging.' E. Incident of January 1960: L. B. Long, an employee of the Com- pany, testified that sometime in the month of January when he at- tempted to drive his car from the Company's Lovick plant someone blocked his way by driving a car in front of the exit. As he pulled • See Virginma-Carolina Freight Lines, Inc, 123 NLRB 551 G See footnote 2, supra. 9 See W. T. Smath Lumber Company, 116 NLRB 507 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD around this car and drove through the picket line, a brick struck the vehicle. At the same time, someone in the group of pickets shouted, "Don't come back here." The Trial Examiner refused to find a violation of Section 8(b) (1) (A) because the identity of the persons who threw the brick and who made the remark to Long was not established, and because Long entered and left the plant without molestation during the bal- ance of the strike. We do not agree. These incidents, which occurred at the picket line maintained by the Respondent, conformed to the pattern of illegal conduct previously engaged in by Respondent and the responsibility therefor is imputed to Respondent 7 Moreover, the fact that these tactics may have been ineffective in restraining Long from exercising his right to work for the Company does not render the conduct any less violative of the Act.' We therefore find that Respondent violated Section 8(b) (1) (A) by the foregoing conduct. F. Incident of March 11, 1960: Floyd Rich, an employee of the Company, testified that while he was sitting in his truck at the Lovick plant Hall approached and engaged him in a conversation. During the conversation, Hall remarked that he "was afraid somebody is going to get hurt, and I hope it ain't you." Hall admitted in his testimony that he told Rich, "I hope anyone would not get hurt over the jobs." The Trial Examiner found no violation of the Act in Hall's remark because no actual violence had been visited upon Rich and because Rich had not been deterred by the pickets from working. As the Board has frequently held that threats of violence are sufficient to constitute a violation of Section 8(b) (1) (A),9 and that a union's lack of success in coercing nonstriking employees not to work does not render otherwise unlawful conduct lawful, we find, contrary to the Trial Examiner,10 that Hall's threat to Rich was violative of the Act. 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 , Local No. 3887, United Steelworkers of America, AFL-CIO, its officers , representa- tives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Blocking or interfering with the ingress and egress of em- ployees at the premises of Stephenson Brick & Tile Company , located at Birmingham and Lovick, Alabama; damaging automobiles and + I bid. S See General Electric Company, 126 NLRB 123. ° See Virginia-Carolina Freight Linea, Inc., supra. 10 See footnote 8, Supra. LOCAL NO. 3887, UNITED STEELWORKERS OF AMERICA 11 other property of employees entering or leaving those premises; and threatening employees with physical violence because they cross or wish to cross the picket line. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by 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 the offices and the meeting halls of the Respondent copies of the notice attached hereto marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by official representatives of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to its members are custom- arily posted. Reasonable steps shall be taken by the respondent labor organization to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail signed copies of the notice to the Regional Director for the Tenth Region for posting by Stephenson Brick & Tile Company, said Company willing, at all locations where notices to the Company's employees are customarily posted. (c) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply therewith. U 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 EMPLOYEES 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 block or interfere with the ingress and egress of employees at the premises of Stephenson Brick & Tile Company, located at Birmingham and Lovick, Alabama. WE WILL NOT damage automobiles and other property of em- ployees entering or leaving those premises. WE WILL NOT employ or threaten to employ physical violence against employees because they cross or wish to cross the picket line at those premises. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees at those premises in the exercise of the rights guaranteed them by Section 7 of the Act. LOCAL No. 3887 , UNITED STEELWORKERS 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 STATEMENT OF THE CASE A charge having been filed, a complaint and notice of hearing having been issued by the General Counsel of the National Labor Relations Board, and an answer having been filed by Local No. 3887, United Steelworkers of America, AFL-CIO, a hearing involving allegations of unfair labor practices in violation of Section 8(b) (1) (A) of the National Labor Relations Act, as amended , was held in Birming- ham, Alabama, on April 4, 1960, before the duly designated Trial Examiner. All parties were represented by counsel , and were afforded full opportunity to present evidence pertinent to the issues. Counsel for the Respondent argued orally. A brief has been received from General Counsel. Upon the record thus made, and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING COMPANY Stephenson Brick & Tile Company is an Alabama corporation with principal office and place of business at Lovick, Alabama, where it is engaged in the manufacture and sale of brick. It also has a sales office and yard in Birmingham, Alabama. The Company annually sells and distributes from its Lovick plant, directly to customers outside the State of Alabama, products valued at more than $50,000. It is engaged in commerce within the meaning of the Act. H. THE RESPONDENT UNION Local No. 3887, United Steelworkers of America, AFL-CIO , is a labor organiza- tion admitting to membership employees of Stephenson. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. Setting and issues At the outset, it is noted that there is small relationship between the charge and the complaint , insofar as specific issues are concerned . The only specific conduct alleged as illegal in the charge is "refusal to bargain ." The complaint alleges no illegal conduct by the Union against the Employer, but alleges acts which , if found, would bear upon the one general contention of the complaint : that employees have been restrained in the exercise of their rights under the Act. Counsel for the Respondent, however, does not urge this point in his answer, and the Trial Examiner merely notes the fact. The setting of the claimed events in issue is , in substance, as follows: Until November 30, 1959 , Stephenson and the Respondent were under contractual rela- tionship. Upon expiration of that agreement production and maintenance employ- ees-some 110 in number-went on strike, and were still on strike at the time of the hearing. It appears that the Union has picketed during this period at both the Lovick manufacturing plant and the Birmingham sales office and yard. The complaint alleges that the Respondent , through its pickets and agents, during this same period engaged in acts of violence and threatened violence against various individuals . The answer denies the allegations. LOCAL NO. 3887, UNITED STEELWORKERS OF AMERICA 13 B. The facts The record contains evidence concerning seven incidents occurring between December 1, 1959, and March 11, 1960. They will be described in order. December 1: This incident involved only certain union pickets and truckdriver Floyd Howard, who was neither an employee or supervisor, nor in any other way associated with the Charging Company. According to his own testimony he came to the Birmingham yard for a load of bricks that morning. No pickets were there when he drove into the yard. Later, when he started out of the premises, he saw a "bunch of colored men standing there." He said he stopped and "sat there." Mrs. Cosette Stephenson, an officer of the Respondent, came out and suggested he drive out the back way. Howard followed her suggestion, found "they were around there by the time I got there," so he turned around and came back. He said he got out of the truck and talked to the men, adding that he was a member of the union himself. Someone, whom Howard did not identify, "said something about he would get me if I tried to go out anyway or something like that-I don't know exactly what it was." The testimony of one of the pickets is undisputed that when Howard walked out to talk with them that morning he told them that he also carried a union card and said that if he had known the plant was on strike he would not have gone in. It is also uncontradicted that in the afternoon Howard returned and told the pickets he was sorry he had caused them any trouble because he "knew how it was to be on strike and have someone cross the picket line." Since Howard could not recall what was said to him the Trial Examiner can make no finding as to precisely what was said or who said it. It is clear, however, that Howard was not forcibly prevented from either entering or leaving the yard, and that no violence was engaged in. To the Trial Examiner it appears plain that no truckdriver, had he been himself intimidated or so treated that any striking or non- striking employee would have considered him to have been intimidated, would have returned to the place the same day to apologize for crossing the line. December 8: The only testimony of any incident on this date comes from Mrs. Stephenson, clearly not a disinterested witness. The substance of her account is that some man named Jones sent an unidentified truckdriver to the yard for brick and as the loaded truck started to leave pickets gathered at the gate. The driver got out, talked to the men, they let him through, and he drove off. Neither the truckdriver nor a passenger in the truck was a witness. There is no evidence of violence or threat of violence on this occasion. December 10: As to this incident, also, the only witness for General Counsel was Mrs Stephenson. The substance of her testimony about it is to the effect that she heard John Hall, an officer of the Respondent Union, tell some "elderly man" whom she could identify only as driving a "1948 Chevrolet pick-up," as he was coming along the public street toward the yard entrance: "If your life is worth any more than 100 brick, you'll drive on." Hall denied the statement, and the Trial Examiner credits the denial. As the record shows, Mrs. Stephenson made other extravagant claims while a witness which lack either corroboration or identification. December 15: According to C. B. Brooks, a truckdriver for the Charging Com- pany, on or about December 15, while he stood in the sales yard driveway talking to one of the strikers in a group, John Hall, previously identified as a union officer, remarked to him- "I hate to see you get killed." Hill did not specifically deny making the statement, but said he could recall no such incident, adding that he had never been on the picket line at the same time as the individual Brooks said he was talking with. Even if made, the remark was ambiguous. There is no evidence that at any time during the 4 months of picketing he was otherwise spoken to by any picket. So far as the record shows, no striker ever interfered with his entry or exit from the yard. January 5 to 8: Somewhere in the neighborhood of these dates, according to the testimony of truckdriver Harrison, an employee of the Alabama Appliance Com- pany, some window was broken on his truck as the picket line opened to let him leave the Birmingham yard with a load of bricks He heard nothing said to him, nor is there any identification of any individual who may have broken a window, nor any identification by him of any of the pickets there at the time. Roy Johnston, a salesman for Stephenson, said that from a distance of some 50 feet he saw the truck leave ,the premises and "hit a passing truck which belonged to the Alabama Lumber Company." Johnston identified no one breaking a window. Such evidence per- mits no finding as to who, if anyone, broke a window. January: According to shop employee Long, at Stephenson's Lovick plant, some- time in January when he was leaving the plant and as he drove around another car and by the picket line "something hit the back of his car and he later found a "print" on the "trunk lid." He said that he also heard someone call out, "Don't 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come back here." He identified no one of the "approximately 300" people he said were there. Such evidence permits no finding as to (1) who, if anyone, threw any- thing at his car; (2) who called out, "Don't come back here"; or (3) whether the remark was directed at him, the occupant of the car he drove around, or someone else in the crowd of 300. In any event, in the 4 months of the strike it appears that Long has been entering and leaving the plant without molestation. March 11: Floyd Rich, a mechanic at the same Lovick plant, has been passing through the picket line night and morning without interference since the strike began. On March 11, he said as a witness, while he was eating lunch in front of the office four strikers, including John Hall, came up to him, and during their con- versation Hall remarked that he "was afraid somebody is going to get hurt and I hope it ain't you." In view of the fact that Rich has not been in any way deterred by pickets from working during the long strike and that there is no evidence of any actual violence against anyone during this period, the Trial Examiner is unable to attach any coercive significance to Hall's remark, even if made.' C. Conclusions The incidents above described are trivial and scattered through a 4-month-long strike. They form no pattern of violence or threat of violence. In the opinion of the Trial Examiner they provide no reasonable ground for an inference that any striking employee was or might have been deterred from returning to work, or that any nonstriking employee was prevented from working. The Trial Examiner concludes and finds that the evidence fails to sustain the allega- tions of the complaint as to violations of Section 8(b) (1) (A) of the Act. [Recommendations omitted from publication.] I Hall's credible account of this incident, which is undisputed, is as follows : "We walked over to him . . . and we began to talk about the strike and I told him we wouldn't ever get a raise as long as he continued to do our job-because he was a mechanic but he was loading brick and so he told us he was sorry but the company had him employed but he didn't have any union to back him up, but if he refused to work they could just get rid of him. He said he wished he could get a raise-by us getting a raise he could prob- ably get a raise himself-he said that he wished the strike would hurry up and get over with-I did tell him that I hoped anyone would not get hurt over the jobs ... he said he hoped they didn't either." Norlee Togs, Inc. and Children's Dress, Infants' Wear, House- dress & Bathrobe Makers' Union, Local 91, International Ladies' Garment Workers' Union, AFL-CIO. Case No. 2-CA- 6902. September 8, 1960 DECISION AND ORDER On May 4, 1960, Trial Examiner Arnold Ordman issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 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 Rodgers and Jenkins]. 129 NLRB No. 5.