Local No. 5895, United Steelworkers of America

LOCAL NO. 5895, UNITED STEELWORKERS OF AMERICA 127 3. Teamsters Local 408 has engaged in unfair labor practices violative of Section 8(b)(4)(i) and (ii )(B) of the Act. 4. The foregoing unfair labor practices affect commerce within the meaning of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce , other than Chas. S. Wood & Co., to engage in a strike or a refusal in the course of his employment to perform any services, where an object thereof is forcing or requiring any person to cease doing business with Chas. S. Wood & Co. WE WILL NOT threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce , other than Chas. S. Wood & Co., where an object thereof is forcing or requiring any person to cease doing business with Chas. S. Wood & Co. TEAMSTERS LOCAL UNION No. 408 , INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. Local Union No. 5895, United Steelworkers of America, AFI, CIO; United Steelworkers of America, AFL-CIO; John Ko- walski, Staff Representative of United Steelworkers of America, AFL-CIO; and Francis Brewster, President of Local Union No. 5895, United Steelworkers of America, AFL-CIO and Carrier Corporation Local Union No. 5895, United Steelworkers of America, AFL- CIO; United Steelworkers of. America, AFL-CIO; John Ko- walsk, Staff Representative of United Steelworkers of America, AFL-CIO; and Francis Brewster, President of Local Union No. 5895, United Steelworkers of America, AFL-CIO and Carrier Corporation. Cases Nos. 3-CC-106 and 3-CB-439. July 13, 1961 DECISION AND ORDER On September 29, 1960, Trial Examiner Thomas F. Maher issued .his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the Intermedi- ate Report attached hereto. Thereafter, the Respondents filed excep- tions to the Intermediate Report and a supporting brief. A brief was also filed by the Charging Party. 132 NLRB No. 17. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only insofar as consistent with our Decision herein. We agree with the Trial Examiner, and for the reasons set forth in the Intermediate Report, that the Respondents engaged in conduct violative of Section 8(b) (1) (A) of the Act by the use of threats and physical force against employees of the Carrier Corporation, by ob- structing, blocking, and preventing the ingress and egress of Carrier employees at entrances to the Carrier plant, by obstructing the ingress and egress of New York Central Railroad Company personnel in the presence of Carrier employees, and by assaulting peace officers in the presence of Carrier employees. Contrary to the Trial Examiner, we do not find that the conduct of the Respondents engaged in on March 11, 1960, on the occasion of the switching of railroad cars and movement of Carrier products by the New York Central was violative of Section 8(b) (4) (i) (B) or 8(b) (4) (ii) (B). As described in more detail in the Intermediate Report, the Carrier plant was bounded on the west by Thompson Road, and immediately south of the plant and extending in an east-west lateral was a spur of the New York Central, running easterly from the Lake Line of the rail- road across Thompson Road. This spur was used to serve Carrier and other plants in the adjacent area. The railroad right-of-way, which was owned by the railroad, was enclosed by a chain link fence along its south boundary, which fence was a continuation of one enclosing Carrier property along Thompson Road. Access to the right-of-way was provided by a chain link gate immediately east of the point where the spur crossed Thompson Road. On March 11, pursuant to arrange- ments made with Carrier the previous day, the railroad, under the operation of supervisory personnel, undertook to "spot" 14 empty boxcars at the Carrier plant and pick up a like number of loaded cars. In carrying out this work, the train made several passages through the Thompson Road gate, and it was at this point that the conduct complained of took place. The Trial Examiner found that by main- taining pickets at the Thompson Road railroad gate, by threatening railroad personnel, and by blocking the train's passage with the object of forcing or requiring the New York Central to cease handling or transporting Carrier products and otherwise doing business with Carrier, the Respondents violated Section 8(b) (4) (i) and (ii) (B) of the Act. We disagree. It cannot be disputed that the services performed by the New York Central on March 11 at the site of Carrier's plant were services ren- LOCAL NO. 5895 , UNITED STEELWORKERS OF AMERICA 129 dered in connection with the normal operations of Carrier. This being the case, we are of the opinion that the decision of the Supreme Court in Local 761, International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO v. N.L.R.B., 366 U.S. 667, is dispositive of the issue here. J n that case, the Court had before it the issue of whether picketing by a union before a gate used exclusively by em- ployees of independent contractors who worked on the struck em- ployer's premises violated the secondary boycott provision of the Act. The Court said: The key to the problem is found in the type of work that is being performed by those who use the separate gate. It is significant that the Board has since applied its rationale, first stated in the present case, only to situations where the independent workers were performing tasks unconnected to the normal operations of the struck employer-usually construction work on his build- ings . . . . In such situations, the indicated limitations on picket- ing activity respect the balance of competing interests that Con- gress has required the Board to enforce. On the other hand, if a separate gate were devised for regular plant deliveries, the barring of picketing at that location would make a clear invasion on tra- ditional primary activity of appealing to neutral employees whose task aid the employer's everyday operations. ' The 1959 Amendments to the National Labor Relations Act, which re- moved the word "concerted" from the boycott provisions, in- cluded a proviso that "nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing." 29 U.S.C. (Supp. I, 1959) Sec. 158(b) (4) (B). The proviso was directed against the fear that the removal of "concerted" from the statute might be interpreted so that "the picketing at the factory violated Section 8(b) (4) (A) because the pickets induce the truck driver em- ployed by the trucker not to perform their usual services where an object is to compel the trucking firm not to do business with the . . . manufacturer during the strike." Analysis of the bill prepared by Senator Kennedy and Representative Thompson, 105 Cong. Rec. 16589. In a case similar to the one now before us, the Court of Ap- peals for the Second Circuit sustained the Board in its applica- tion of Sec. 8(b) (4) (A) to a separate-gate situation. "There must be a separate gate, marked and set apart from other gates; the work done by the men who use the gate must be unrelated to the normal operations of the employer, and the work must be a kind that would not, if done when the plant were engaged in its regular operations, necessitate curtaining those operations." United Steelworkers v. Labor Board, Doe. 26252, decided May 3, 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1961, 48 LRRM 2106. These seem to us controlling considera- tions. [Emphasis supplied.] While the gate here through which the New York Central train passed was not one reserved by Carrier for the New York Cen- tral's use, but was in fact one on a right-of-way owned by the rail- road, we do not consider this fact to be material.' The "key to the problem," as the Court stated, is to be found in the type of work be- ing done by those passing through the gate. If the work is unre- lated to the normal operations of the primary employer, picketing at that gate will violate the secondary boycott prohibition of the Act. On the other hand, if this work is related to normal plant operations, the secondary boycott prohibition does not apply. As stated above, the services performed by New York Central for Carrier-the de- livery of empty boxcars to Carrier and the transportation of Carrier products-clearly were related to Carrier's normal operations. For this reason, we find that the Respondents did not violate Section 8(b) (4) (i) (B) or 8(b) (4) (ii) (B) by their conduct on March 11.2 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 Respondents, Local Union No. 5895, United Steelworkers of America, AFL-CIO; United Steel- workers of America, AFL-CIO,; John Kowalski, Staff Representa- tive of United Steelworkers of America, AFL-CIO; and Francis 1 See authorities cited by the Trial Examiner in footnote 5 to his Intermediate Report. The right-of-way was conveyed to the railroad by Carrier in the first instance and the gate was an entrance directly into the Carrier premises which the railroad had to use in order to carry out its function of transporting Carrier products to and from the Carrier plant. The picketing in question took place at this entrance. z Contrary to our dissenting colleague, we are not seeking to revive a doctrine that railroads and railroad employees are not, respectively , "employers" and "employees" within the meaning of the secondary boycott provisions of the Act. By its 1959 amend- ments, Congress underscored its intention to give railroads the protection against second- ary boycotts accorded other employers . But it did not seek to give railroads or any other secondary employers immunity from lawful primary picketing ,at entrances to the premises of primary employers. This is further shown by the express proviso to Section 8(b) (4) (B), which Congress also adopted in 1959, namely, that "nothing contained in this clause (B) shall be construed to make unlawful , where not otherwise unlawful , any primary strike or primary picketing." Finally, we take issue with our dissenting colleague's view that the threatening of railroad personnel and the blocking of train passage at the picket line requires the find- ing of a Section 8(b) (4) (B ) violation here. Such conduct, which we have already found to be unlawful under Section 8 (b) (1) (A) of the Act, does not convert primary activity into conduct proscribed by the secondary boycott provisions . See International Rice Milling Co, Inc, et al. v. N.L .R.B., 341 U.S. 665, at 672, where, in analogous circumstances in- volving violence and threats against secondary employees at the primary picket line, the Supreme Court said, "In the instant case the violence on the picket line is not mate- rial . . . The substitution of violent coercion in place of peaceful persuasion would not in itself bring the complained-of conduct into conflict with Section 8(b) (4). It is the object of union encouragement that is proscribed by that section , rather than the means adopted to make it felt." We perceive no difference in principle between the holding of the Supreme Court in that case and our conclusion in the instant case. LOCAL NO. 5895 , UNITED STEELWORKERS OF AMERICA 131 Brewster, President of Local Union No. 5895, United Steelworkers of America, AFL-CIO, their officers, agents, representatives, suc- cessors, and assigns, shall : 1. Cease and desist from restraining or coercing employees of Carrier Corporation in the exercise of 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 their offices in Syracuse, New York, copies of the notice 'attached hereto marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by an authorized representative of the Respondent labor organizations, and by the respective individual Respondents, be posted immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that the notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of the said notice to the Re- gional Director for the Third Region for posting by Carrier Corpora- tion, if it is willing, at all locations where notices to its employees are customarily posted. (c) Notify the Regional Director for the Third Region, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges the commission of unfair labor practices as set forth in paragraph 13(b), in paragraph 13(a) with respect to conduct of Roy Avery, Irving Talbot, and John Hunkins, and in paragraph 13(c) with respect to conduct of David Halstead, Larry Roach, Jay Sherman, and Frank Stirpe, and insofar as it alleges that the Respondents violated Section 8 (b) (4) (i) (B) and 8(b) (4) (ii) (B) of the Act. MEMBER RODGERS, dissenting in part: I agree with the majority that the Respondents violated Section 8(b) (1) (A) of the Act, but I cannot accept their holding that the Respondents' strike activity directed against the New York Central Railroad and its personnel is not proscribed by Section 8(b) (4) (i) (ii) (B). First, I think that the majority's action here is in direct contraven- tion of congressional purpose legislated into law by the 1959 amend- ments to the Act. Prior to 1959, a Board majority (incorrectly, in a 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." 614913-62-vol. 132-10 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD my opinion) consistently held that railroads were not employers and railroad employees were not employees within the meaning of the secondary boycott provisions of the Act.' This view of the majority never found judicial support,5 but whatever question might have ex- isted about the scope of the protection afforded by the secondary boycott provisions should have been finally resolved by the 1959 amendments. Legislative history makes it abundantly clear that Con- gress intended to extend these provisions of the Act to railroads.6 However, the majority's decision effectively thwarts that congres- sional intent and leaves railroads and their employees in no better position than that existing prior to the 1959 amendments. For if it is not unlawful, as the majority holds, for a union to go upon a railroad's tracks for the purpose of involving that railroad in the union's dispute with the primary employer, then the efforts of Congress in this respect have gone for naught. Secondly, in my opinion the majority's reliance upon the Supreme Court's decision in Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. N.L.R.B.,.366 U.S. 667, is mis- placed. For one reason, this is not a "reserved gate" siftation. Car- rier had not "reserved" the Thompson Road entrance for New York Central's use. This gate belonged to New York Central, was on New York Central's right-of-way, and the strike activity directed against the railroad and its operating personnel occurred not on Carrier prop- erty but on that right-of-way owned by New York Central. To me, it is unrealistic to say that when a union goes on the property of a secondary employer for the sole purpose of inducing and encouraging secondary employees and threatening, restraining, and coercing the secondary employer that such is primary activity. For another reason, the Supreme Court, in its opinion, emphasized the fact that the strike activity of the union there consisted of peaceful picketing. The Respondents' conduct here-the threatening of Train Master Bowes and other railroad personnel, and the blocking of the train's passage-could hardly be characterized as peaceful activity. I agree with the Trial Examiner that by such conduct the Respondents both unlawfully induced individuals employed by New York Central and unlawfully restrained and coerced the railroad itself. With par- s International Rice Milling Go, Inc., at at ., 84 NLRB 360 ; Paper Makers Importing Co., Inc. & Gillespie, Inc, 116 NLRB 267; W. T. Smith Lumber Company, 116 NLRB 1756; The Ailing & Cory Company, 121 NLRB 315; Louisville Cap Company, 121 NLRB 1154; Great Northern Railway Company, 122 NLRB 1403; American Coal Shipping, Inc., and the Baltimore and Ohio Railroad Company, 124 NLRB 1079 See also U & Me Transfer, Palm Beach Transfer and U & Me Transfer of Belle Glade, 119 NLRB 852 Note my dissents in the Paper Makers, Smith Lumber, Louisville Cap.and American Coal cases. 6 See International Rice Milling Co , Inc, et al . v. N L R B:, 183 F. 2d 21 (C.A. 5) ; TV T. Smith Lumber Company v. N L R B., 246 F. 2d 129 (C.A. 5) ; Great Northern Railway Company v. N.L R B , 272 F. 2d 741 (C.A. 9). 9 NLRB Legislative History of Labor- Management Reporting and Disclosure Act of 1959, pp. 1079, 1522-1523, 1581 , 1712, 1857. LOCAL NO. 5895, UNITED STEELWORKERS OF AMERICA 133 titular reference to the latter, I cannot see how, under any circum- stance, the threatening, restraining, or coercing of any employer could escape the Act's sanction irrespective of where the employer might be at the time. Presumably, under the majority's theory, if a union threatens a secondary employer at his place of business this would violate the Act; but if this threat is delivered near the scene of the dispute this is not unlawful. I can see no rational basis for such a distinction. Certainly, this section of the Act does not call for any recognition of a "right," as an incident to strike activity, to threaten any one at any place; nor are there any conflicting legitimate interests, which similarly subsumes a "right" of a union to threaten, to be balanced.' 7 International Rice Milling Co , Inc., et at. v. N L. R.B., 341 U.S. 665, does not support my colleagues' holding. There, the Court found that the Union had not induced concerted conduct by secondary employees. Inducement of concerted conduct was an element of the violation of Section 8(b) (4) under Taft-Hartley, and, obviously, it was immaterial what kind of conduct a union engaged in-violent or otherwise-if that element was missing. I think it should be pointed out that the Act has been amended , that inducement of concerted conduct Is no longer an element of an 8(b) (4) violation , and, more im- portantly, the conduct engaged in by the Union here is now expressly prohibited by Section 8 ( b)(4)(B). APPENDIX NOTICE To ALL OUR OFFICERS, AGENTS, REPRESENTATIVES, AND MEMBERS To ALL EMPLOYEES OF CARRIER CORPORATION 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, you are hereby notified that : WE WILL NOT restrain or coerce employees of Carrier Corpora- tion in the exercise of rights guaranteed them by the National Labor Relations Act, as amended. LOCAL UNION No. 5895, UNITED FRANCIS BREWSTER, PRESIDENT STEELWORKERS OF AMERICA, LOCAL UNION 5895, AFL-CIO, By ------------------------------------------------------------ President Dated --------------------------------------------------------- JOHN KOWALSKI, STAFF REPRE- SENTATIVE UNITED STEELWORK- UNITED STEELWORKERS OF ERS OF AMERICA, AFL-CIO, AMERICA, AFL-CIO, By ------------------------------------------------------------ Staff Representative Dated --------------------------------------------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed on March 14, 1960, by Carrier Corporation, Charging Party herein, the Regional Director for the Third Region of the National Labor Relations Board, herein referred to as the Board, issued a consolidated complaint on April 8, 1960, against Local Union No. 5895, United Steelworkers of America, AFL-CIO; United Steelworkers of America, AFL-CIO; John Kowalski, Staff Representative of the United Steelworkers of America, AFL-CIO; and Francis Brewster, President of Local Union No. 5895, United Steelworkers of America, AFL-CIO, herein referred to collectively as Respondent, alleging violations of Section 8(b)(4)(i) and (ii) (B) and Section 8(b)(1)(A) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act. In its duly filed answer Respondent,' while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Subsequent to the issuance of the complaint herein the Regional Director, pursuant to Section 10(1) of the Act, instituted in the United States District Court for the Northern District of New York injunction proceedings entitled Thomas Ramsey, Act- ing Regional Director, etc. v. Local Union No. 5895, United Steelworkers of America, AFL-CIO, et al., Civil No. 8022. Hearing thereon was held on April 8, 1960, before Judge Stephen W. Brennan, United States District Judge. Findings and con- clusions were made public on April 16, 1960, finding reasonable cause to believe violations of the Act had been committed and an order was issued on the same date granting certain temporary injunctive relief pending final disposition of the matter before the National Labor Relations Board .2 Pursuant to notice, a hearing was held before me on May 10, 11, and 12, 1960, at Syracuse, New York. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. The General Counsel presented a brief oral argument at the hearing in lieu of filing a brief with me. Counsel for Respondent and the Charging Party waived oral argument and in lieu thereof filed briefs with me thereafter. It would appear from credible documentary evidence presented by Respondent at the hearing that certain of the allegations in the instant complaint, namely the acts and conduct alleged to be in violation of Section 8(b)(1)(A) of the Act (infra) were the subject matter of a proceeding had before a justice of the New York State Supreme Court wherein the defendants in the action, Respondents herein, were ordered to refrain from certain of the conduct complained of and restricted in certain other of their actions and activities as they related to a labor dispute then in progress at the Carrier Corporation plant, the situs of the conduct which forms the subject matter of the instant proceeding. Contrary to the contention of Respondent the pendency or adjudication in a State court of the subject matter of a charge and com- plaint before the Board pursuant to Section 10(b) of the Act does not serve to render the matter res adjudicata or otherwise estop the Board from hearing and determining the merits of the action before it .3 Upon consideration of the entire record before me and the briefs of the parties, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Carrier Corporation is a Delaware corporation maintaining its office and principal place of business at Syracuse, New York, where it is engaged in the manufacture of air-conditioning, refrigeration, and heating systems. In the course and conduct of its operations at Syracuse, New York, Carrier Corporation, during 1959, caused to be manufactured, sold, and distributed products valued in excess of $1,000,000 of which products valued in excess of $50,000 were shipped from said plant in interstate commerce directly to States of the United States other than the State of New York. 1 Unless specifically noted otherwise Respondents herein will be collectively referred to as Respondent 2 40 LRRM 2050. 'Cf. Capital Services Inc, d/b/a Danish Maid Bakery, et aZ. v. N L R B., 347 U.S. 501; N L R B. v. Thayer Company and H. N. Thayer Company, 213 F. 2d 748, 754-755 (C.A. 1) ; N L R.B. v International Woodworkers of America, AFL-CIO and Locale S-426 and 5-429 (W. T. Smith Lumber Co.), 243 F. 2d 745, 748 (C.A. 5). LOCAL NO. 5895, UNITED STEELWORKERS OF AMERICA 135 It is admitted that the corporation is engaged in commerce within the meaning of the Act and I so find. It is also admitted that the New York Central Railroad Company, herein called the New York Central, is an interstate carrier engaged, among others, in the hauling of freight, and is a person engaged in commerce under the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local Union No. 5895, United Steelworkers of America , AFL-CIO, and United Steelworkers of America, AFL-CIO, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE ISSUES 1. Whether there is substantial evidence that the several Respondents induced and encouraged individuals employed by the New York Central to refuse in the course of their employment to transport or otherwise handle goods, articles, materials, or commodities or perform services for the New York Central with the object of forcing or requiring New York Central to cease transporting the products of or otherwise doing business with Carrier Corporation. 2. Whether there is substantial evidence that Respondents have threatened, coerced, and restrained the New York Central for the foregoing objectives. 3. Whether there is substantial evidence that the several Respondents restrained and coerced employees of and individuals employed by Carrier Corporation and the New York Central in the exercise of their statutory rights. IV. THE UNFAIR LABOR PRACTICES A. Introductory facts On May 2, 1960, after a period of fruitless negotiations between Carrier Corporation and the Respondent Local, the certified representative of Carrier's em- ployees at the Company's plant located at Thompson Road, Syracuse, New York, these employees went on strike. Directing this strike activity were Respondent John Kowalski, staff representative of the Respondent Steelworkers, and Respondent Francis Brewster, president of the Respondent Local No. 5895. Under their leader- ship picket lines were established at numerous entrances to the Carrier plant and at an adjacent railroad gate to be described in fuller detail hereafter. Other officials of the Respondent Local were, as will also be noted hereafter, active in the main- tenance of picket lines thus established, and in addition picket captains were appointed to serve on various shifts and at various locations throughout the period of picketing activity. Carrier Corporation, for its part, also established and maintained an organization for the purpose of dealing with problems and incidents arising out of the strike situa- tion. Thus, a headquarters outside the plant was established at the nearby Sheraton Motel and from it were dispatched a corps of monitors whose duty it was to protect the interests of Carrier personnel and property vis-a-vis the pickets, and a corps of photographers working in conjunction with these monitors, whose duty it was to "document" the strike and picketing activity. Located at its motel headquarters were representatives of Carrier who were available to advise and assist working em- ployees seeking entrance to the plant; and secretaries whose duties included the transcription of statements made by employees and others whose experiences at or near the picket line were deemed worthy of record for future purposes, including the instant proceedings. Prominent in the establishment of policy respecting security matters and its execution were John H. Walsh, Carrier's director of security and pro- tection, and David Wood, the captain of security and directly in charge of the 30 guards regularly employed by the Company. Supplementing the security precautions taken by the foregoing officials resort was frequently had to the sheriff of Onondaga County, whose uniformed deputies were frequently dispatched to the area abutting the Carrier property at Thompson Road. B. The railroad siding incident 1. Sequence of events South of the Carrier plant and extending in an east-west lateral was a spur of the New York Central, running easterly from the so-called Lake Line of the railroad across Thompson Road. This spur serviced numerous plants in the adjacent area, including Carrier, Western Electric Corporation, General Electric Corporation, and Brace-Mueller-Huntley, Inc., a corporation whose property and warehouses were directly to the south of Carrier, being separated only by the railroad right-of-way. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ownership of this right-of-way was hotly contested at the hearing. I find that at all times relevant ownership herein was in the New York Central and that its prop- erty extended east from Thompson Road between the southern boundary of Carrier Corporation property and the northern boundary of the Brace-Mueller-Huntley property and included the area upon which the railroad's tracks ran from Thompson Road at a width of approximately 35 feet, beginning at the road and continuing, at that width, easterly for the length of the Carrier property, except as irregularly altered by the spur lines running into the several properties served by the railroad. My finding with respect to the New York Central's ownership of its right-of-way rests upon the following documents set forth with more particularity in the record: (1) A certified deed from Defense Plant Corp. (R.F.C.) conveying the plant property to Carrier Corp., and including a description, in metes and bounds, of its southern- most boundary; (2) a certified deed from Carrier Corp. conveying to the New York Central the right-of-way in dispute, and including a description, in metes and bounds, of the southernmost boundary of the conveyed property, coinciding exactly with the southernmost boundary of the property previously conveyed to Carrier, and described above; and (3) a survey map of the Brace-Mueller-Huntley property abutting the original Carrier property to the south, which survey designates the northerly boundary by metes and bounds so as to coincide exactly with the southerly bounds of the property conveyed to the railroad, the survey having been physically checked and verified by a land surveyor, Robert E. Bedworth, who testified credibly before me.4 The railroad right-of-way was enclosed by a chain link fence along its south boundary, which fence was a continuation of one enclosing the Carrier property along Thompson Road. Access to the right-of-way from Thompson Road was pro- vided by a chain link gate. This gate was padlocked when not opened for railroad switching, and the key to the gate was in the possession of railroad personnel.5 Carrier personnel were not permitted access to Carrier property through the railroad gate and right-of-way. During the early days of the strike it does not appear that the railroad regularly switched cars at Carrier,6 but regular service to the other plant along the right-of- way continued and deliveries of coal to General Electric were made to a site leased by that corporation from Carrier and located on Carrier property. On March 10, arrangements were made with the railroad for the switching of freight cars at the Carrier plant. Fourteen cars were prepared for movement from the plant and a like number of "empties" were to be "spotted" in their place at the plant. This movement was scheduled for the following day, March 11, and was to be made by railroad supervisory employees so that any conflict between the railroad and the Brotherhoods would be avoided? On the morning of March 11, the regular train crew proceeded with its usual switching operations at Western Electric, General Electric, and Brace-Mueller- Huntley, and upon the conclusion of this operation returned the locomotive to a location on the main spur west of Thompson Road where it picked up the 14 empty boxcars requested by Carrier. At this time railroad management personnel, under the direction of Trainmaster Bowes, took over the operation of the train and pro- ceeded toward the Carrier plant. Because the train on this occasion will be shown to have made several passages through the gate it should be explained that the pickup d Objection was made that the ownership of the property was not established on the record by the more circuitous procedure required by the New York State Rules of Civil Practice In overruling this objection I must note that although I am required to follow applicable rules of evidence "so far as practicable," practicality does not oblige me to require that proof of the commission of unfair labor practices under the Act adhere to the strict procedures of conveyancing real property under State law. Of. N L R.B. v. Local Union 1418, General Longshore Workers, International Longshoremen's Assn, AFL (Lykes Brothers Steamship.Co.), 212 F. 2d 846, 851 (C.A. 5). In any event, however, the Board had recently held that in such circumstances as are present here title to real property is not controlling Union de Trabajadore8 de la Gonzalez Chemical Industries, Inc., et al., 128 NLRB 1352. 6 That the keys to this gate were at one time, specifically during the Korean conflict, retained by Carrier for security reasons is of no relevance to the Instant controversy 9 John J. Bowes, New York Central Railroad trainmaster for the Syracuse territory, who testified credibly at the hearing, explained that the rank-and-file railroad employees, members of the several railroad labor organizations known as the Brotherhoods, were not disposed to cross picket lines at struck plants such as Carrier. This action by railroad employees is not an issue in this proceeding. 7 The credited testimony of Trainmaster Bowes. LOCAL NO. 5895, UNITED STEELWORKERS OF AMERICA 137 of loaded cars and the "spotting" of empty ones involves a series of switching maneuvers. Just inside the gate the single track spur line becomes a double track, the second and parallel track being referred to as the "runaround" track. To switch cars from one track to the other, clearing the switch each time, it was necessary for the train to go west and into, and sometimes across, Thompson Road. It was during the course of these several passages through the gate and onto the street that the following incidents occurred.8 As the train approached Thompson Road from the west a group of men, many of whom wore insignia identified as Steelworker buttons, congregated on the track and right-of-way on the west side of the street opposite the railroad gate abutting the Carrier property. On the east side of the street several feet south of the track a sign nailed to a stick and bearing the inscription "This Plant on Strike, United Steelworkers of America," was stuck in a snowbank. The passage of the train across Thompson Road on its first approach to the plant under super- visory operation 9 was accomplished only after the pickets walking or standing in front of it were dispersed, and then it was necessary for it to "inch" its way across the road to avoid injury to them.'° In all, including the above-mentioned passage, the train passed to or over Thomp- son Road under supervisory operation four times . After crossing to the fence- enclosed portion of the right-of-way, depositing the empty cars, and picking up the loaded ones the switching operation required the train to pass through the gate going west and extend partially onto Thompson Road. Again pickets obstructed the passage of the train making it necessary for train police and sheriff's deputies to force the milling men from in front of the engine. Thereafter, between moves of the train, Respondent Kowalski, by his own admission, drove his automobile onto the track and parked it there. And before the train could continue its switching oper- ation onto Thompson Road the sheriff's deputies were obliged to push Kowalski's car off the track and to the south. Finally, after the empty cars had been "spotted" on the Carrier spur tracks and the engine had picked up the cars loaded for ship- ment it proceeded through the gate, going west, and attempted to make its final passage across Thompson Road. The pickets again sought to obstruct the train, shouting at the operators of the engine and lying down on the track and having to be lifted out of the way. Respondents John Kowalski and Francis Brewster were present at this time and were mingling among the men, Kowalski being "approxi- mately a foot and a half away from the front draw end of the engine." In addition to these two, Trainmaster Bowes identified one Louis Hosid, a conceded picket and member of the Union, as having been in the forefront of the milling group and as having challenged Bowes to get down off the engine "for the purpose of getting my block knocked off." After the train had successfully negotiated its final westward passage over Thomp- son Road the supervisory crew noted that three rail lengths of track, consisting of both the north and south rails, had been greased. They further noted that a track switch from the main track onto a spur leading into the warehouse of American Stores Co., located diagonally across Thompson Road from Carrier, had been thrown in such a way that a train, including the one involved here, would have been derailed if permitted to pass over the switch. While Trainmaster Bowes testified credibly that he had no knowledge of who were responsible for these acts of vandalism and the blame has not been otherwise placed, I deem it of significant relevance to note that the acts were perpetrated at approximately the same time as was the obstruction of the train, detailed above, and in the same immediate location.li 8 Because further description of the several passages of the train in the course of the switching operation will serve only to whet the interest of the reader as to how it was accomplished and become a distraction from the principal subject matter herein, no further reference will be made to the precise train movements. O The train had previously entered the spur east of Thompson Road under the opera- tion of its regular crew for the purpose of making deliveries and pickups at plants other than Carrier (supra). 18 Respondent Kowalski's testimony that on this and subsequent passages the train was handled in disregard of the safety of the pickets is not credited as being contrary to the testimony of credible witnesses. 31 The foregoing account of the incident at the railroad gate on March 11 represents a composite of the credited testimony of Trainmaster Bowes, Deputy Sheriff Tedesco, Guard Captain Wood, and employees Gordon Dinger and Hugh Lincoln. Dominic Albanese, the captain of the pickets on the day in question, and whose testimony I do not otherwise credit (infra) substantiated generally the account of the train obstruction. Nor does anything in the testimony of either Kowalski or Brewster, neither of whom I credit (infra, footnotes 17 and 19 ), dispute the finding I have made concerning this incident. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Conclusions It is alleged that by the foregoing conduct the Respondents, having authorized, established, and maintained pickets at the premises adjacent to the Carrier, thereby ordered, instructed, and appealed to employees of and individuals employed by the New York Central to cease work for their employer. A review of the facts set forth above clearly demonstrates that such picketing occurred on the afternoon of March 11, 1960, on the premises owned by the New York Central and that it was directed at those individuals whose assigned duty it was to operate the train at that time, as it made its several passages over the picketed railway right-of-way for the purpose of picking up and delivering railroad cars at the Carrier plant. It is clear from the foregoing including the threats made to Trainmaster Bowes, and to other employees of and individuals employed by the railroad, as detailed herein (infra), that the Respondents Steelworkers and Local 5895, as well as their respective agents, Respondents Kowalski and Brewster, thereby induced and en- couraged the individuals employed by the New York Central, an employer engaged in commerce, to refuse in the course of their employment to transport or otherwise handle Carrier goods, articles, materials, or commodities, or to perform services for their employer, the New York Central. It is equally clear from the foregoing facts that these same Respondents have thereby threatened, coerced, and restrained the New York Central to the extent described by the facts found above. Extended argument is unnecessary to demonstrate that the calling of invectives and threats, as did the pickets here, the blocking of the train's passage by massing of pickets before it, and the blocking of the right-of-way with an automobile, singly and collectively, most certainly had a restraining and coercive effect upon the em- ployees and individuals employed, not by Carrier, but by the secondary employer, the New York Central. This the Act proscribes.ia Nor do I have any alternative but to conclude that Respondents, and each of them, by the conduct found and described above, had as their objective the forcing and requiring of New York Cen- tral to cease handling, transporting, and doing business with Carrier. In support of such a conclusion I need only rely upon the actions and words of the pickets themselves as described by credible testimony at the hearing. Thus it is clear that so long as the train's movements and switching was confined to servicing plants other than Carrier, no action or objection was mounted by the pickets. However, any movement directed to Carrier pickups or deliveries met with immediate reac- tion. Indeed, Dominic Albanese, captain of the pickets at the railroad gate during the March 11 incident, described the arrival of the train on the scene as follows: [Trainmaster Bowes] asked me if I was going to let the train through and I says "I have no objections as long as you are going in there to move Brace, Mueller and Huntley and G. E. material in and out of there." And I asked him for his way-bills, and he says "We don't have any." "Well," I says, "When, since when does a yard engine come in without waybills? You have had them in the past." He says "We don't have any." He says "I don't have to show them to you." I says "Well, maybe you don't have to, but I would like to see them. After all, this plant is on strike. There is a picket line here. We would like to have you respect the picket line." Upon such an admission by an active participant of the train obstruction, the objec- tive of the pickets is manifest. It was to force or require New York Central to cease handling or transporting Carrier products and otherwise doing business with it. Accordingly, I conclude and find that by the conduct described above with the objective I deem to have been fully established, Respondents, and each of them, have violated Section 8(b) (4) (i) (B) and 8(b) (4) (ii) (B) of the Act. C. Restraint and coercion of Carrier employees The foregoing findings and conclusions have been segregated from other alleged violations arising out of the Carrier strike for the obvious reason that, unlike those which follow, they involved another employer, the New York Central, and have v In language equally applicable to the facts herein, the U S. Court of Appeals for the Ninth Circuit stated in Great Northern Railway Company v. N L R B , 272 F. 2d 741, 743: The only purpose of the pickets on the spur track of the railroad was to involve the railroad in the unions' dispute with Foley (the primary employer). Such picket- ing was therefore not primary in nature but . . . amounted to a secondary boycott, proscribed by Section 8 (b) (4) (A) of the Act LOCAL NO. 5895, UNITED STEELWORKERS OF AMERICA 139 previously been the subject of an injunction proceeding held under Section 10(1) of the Act. Thus, the findings constitute a violation separate and distinct from any found hereafter. That is not to say, however, that the incidents involving Carrier employees and to be described, are differently motivated or otherwise disconnected from the railroad track incident of March 11. They are not, and their separate treatment at this point is not to be so construed. 1. Restraint and coercion of photographers Throughout the strike Carrier, as previously noted, assigned numerous employees to take pictures of strike and picketing activity. Among these were employees Gordon Dinger and John Diehl, both of whom testified credibly at the hearing. Among their assignments was the photographing of events attendant upon the train movement on the afternoon of March 11, as described above. As Diehl was taking pictures of the train coming through the massed pickets, Louis Hosid and Leslie Carver, two of the pickets, forced Diehl off the snowbank from which he was taking pictures and, with a number of other pickets, grouped themselves around him. Diehl thus described the incident: Well, I was taking pictures of the train coming through and the pickets and the tracks and the men opening and closing the gates, and the disturbance going on and he (Louis Hosid) turned around and recognized me. He was with Les Carver at the time, and they forced me off the snowbank that I was on and about 15 of them grouped around me, and Louis Hosid told me if I showed any of those blankety-blank pictures to any Carrier employees or officers, that he would get me later, it wasn't over yet, he would find out where I lived and they were all calling me names and hollering at me, and as they were sur- rounding me there in front of the Sheriff's car, one of the sheriffs came over and wanted to know what the disturbance was, and Mr. Hosid told the sheriff that I was out taking pictures, and he didn't want his picture taken, and I should be inside the gate with the rest of the employees. Gordon Dinger was also assigned to photographic duty at the train gate on March 11, and appeared on the scene before the train arrived and while the gate was still locked. He took pictures of the pickets from within the fence enclosure and several times during the afternoon went out onto Thompson Road to take movies of the events transpiring there. During the course of his work, Louis Hosid, the picket referred to earlier, invited him off the premises and threatened to beat him up. Again, sometime between 12:30 and 2 p.m., Hosid rushed up to Dinger who was then standing behind the fence, and wielded a hand file at him in a threatening fashion, while others, identified by Dinger as pickets, threw chunks of ice at him and another cameraman. Upon the foregoing credited evidence, I conclude and find that on March 11, as an incident to the obstruction of the passage of the New York Central train, as pre- viously found, Respondents' pickets, in the presence of responsible officers and agents of Respondent, namely, Brewster and Picket Captain Albanese, restrained and co- erced employees Dinger and Diehl by threats of, and in the case of the thrown ice, by the use of physical force.13 Citation of authority is unnecessary to establish that such conduct as found above constitutes a violation of Section 8 (b) (1) (A) of the Act. In addition to the foregoing evidence relating to threats made to employee pho- tographers there is further evidence of similar threats made by other pickets and officials of the Respondent, based upon amendments made to the complaint at the opening of the hearing, over Respondent's objection.14 Thus, John Diehl testified 13 Respondent Brewster's presence at the train gate at or about 2 p.m. on March 11 is established by the credible testimony of Dinger who testified that the file incident occurred then, and of employee Lincoln who fixed Brewster's presence there at that time. Brewster, while denying the conduct attributed to him, concedes he was present at the time Dinger fixed the incident, 2 p.m. I do not credit Brewster's denial nor do I credit Carver's denial of his part in the threat made to employee Diehl. 14 While I am firmly of the belief that preparation for hearing and perfection of plead- ings should precede the hearing and not be part of it and I am disposed to insure oppos- ing counsel ample time and opportunity to meet matters belatedly added, I do not believe that Respondent has suffered here. Although the additions were not incorporated into the pleadings until the opening of the hearing, their substance was conveyed to Respond- ent's counsel 5 days earlier on Thursday , May 5. While orderly procedure would suggest that such amendments should have been actually made on that date, it cannot reasonably 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Dominic Albanese, the picket captain, also threatened him, as had Louis Hosid (supra), telling him "to get out of there with that blankety-blank camera, or he would get me." Similarly, employee Dinger placed picket Kenneth Lyons and Re- spondent Francis Brewster at the train gate on March 11 and credibly quoted both Lyons and Brewster as inviting him outside the gate and they would beat him up or "fix him" and take his camera away from him.15 Thereafter Dinger, on April 4 or 5, had further difficulties with the pickets. On this occasion, while indulging in picture taking at the main gate of the plant, picket David Halstead asked him to step across the line with the camera and threatened, in effect, to beat him up.16 Upon the foregoing additional evidence I find that pickets and officials of the Re- spondents have further restrained and coerced the photographers and thereby have further violated in this respect Section 8(b) (1) (A) of the Act. Additionally General Counsel sought to elicit testimony at the hearing that one Hunkins, a picket, threatened Dinger. Because Dinger was unable to specify with any degree of certainty when during the week of April 11 this threat was made, thus depriving Respondents of full opportunity to meet the issue and defend themselves in this respect, I recommend that so much of the amended complaint as relates to conduct thus attributed to Hunkins be dismissed. Likewise, as nothing appears in the record relating to a picket, Talbot, having threatened any photographer I recom- mend that so much of the amendments to the complaint as related to conduct at- tributed to Talbot be dismissed. Similarly, picket Roy Avery was alleged to have threatened certain Carrier employees engaged in taking photographs. The only individual who testified to such threats by Avery was Daniel Owen, a commercial photographer hired by Carrier to take photographs. By his own testimony Owen was an independent contractor and not a Carrier employee. As the allegations do not encompass nonemployees of Carrier in this respect (paragraph 13(a) ), I accordingly dismiss so much of the complaint as relates to Roy Avery. 2. Alleged threats of bodily harm to employees for failing to observe picket line In the original complaint (paragraph 13(b)) it is alleged that Respondents threat- ened to inflict injury on various employees including Carrier's, if they refused or failed to observe the picket line. Pickets Carver and Calland were alleged to have made such threats on April 5, and Hosid to have made them on March 11. A careful review of all the testimony including that of Trainmaster Bowes, Guard Captain Wood, and employee Dinger discloses no evidence that either Hosid or Calland made threats for such a purpose on the date alleged or on any other date. There is, however, the credited testimony of Captain Wood that he heard picket Leslie Carver talking to employee James Dirk, a fire inspector at work in the plant during the strike. Carver told Dirk that "we are going to visit Bridgeport [New York, and Dirk's home], and we will take care of you and your gas station." As the record is otherwise silent as to the background for Carver's threat to Dirk I have no more basis for assuming that it was related to nonobservance of the picket line than I have for assuming it to be in settlement of some extracurricular grudge. In addition to the incidents considered above other alleged incidents were added to paragraph 13(b) of the complaint at the hearing (see footnote 14, supra). Thus it is alleged that picket Kenneth Lyons, on March 11, threatened bodily injury if the picket line was not observed. The only possible support for this allegation appears in employee Gordon Dinger's testimony that Lyons was among those at the railroad gate shouting threats at employees and guards inside the fence, and that he threatened dire consequences to Dinger if he came out. It was similarly alleged that on the same date Picket Captain Albanese and Respondent Kowalski threatened bodily injury for nonobservance of the picket line; but here again, upon the credited testi- mony of Guard Captain Wood, the threats were shown to have been connected with be said that Respondent, with associated counsel located in Syracuse, was surprised by these additionally alleged incidents of previously alleged violations. I accordingly re- affirm my rulings at the hearing granting the amendments, and rejecting counsel's objec- tion that he was afforded inadequate opportunity to prepare for the defense of the added materials is I do not credit the denials of either Brewster or Lyons of the conduct attributed to them. 11 Halstead testified that Dinger took pictures of him and did so in an offensive manner, holding the camera within a couple of feet of his face. As Halstead also testified that the process was annoying to him his normal reaction would seem to be to make the statement attributed to him, and I find that he did. Therefore , without accepting his evaluation of Dinger's technique , I reject Halstead's denial. LOCAL NO. 5895, UNITED STEELWORKERS OF AMERICA 141 the passage of the train into the Carrier plant (supra) and, in the case of Kowalski, his statement to Wood that because of the train movement the Union was not going to allow any more salaried employees in or out of the plant. He did not, however, include in this pronouncement any threat of bodily injury to any employee. Thus it would appear that if there had been any threat made at all, it would be the threat to Dinger as to what would happen to him if he came out of the plant. Dinger, it will be recalled, was taking photographs on a special assignment and it is to be pre- sumed that the complaint with Dinger was not his nonobservance of -the picket line but his photographic activities. All of the foregoing relates to activity by employees other than crossing the picket line and entering the plant, the substance of the allegation. While I am not so naive as to believe that in the course of a heated labor dispute threats are not usually made to nonstrikers as to what will happen to them, physically, if they do cross the picket line and enter the plant, I certainly am not about to substitute a surmise in this respect for legal evidence. A review of the credible testimony in this record dis- closes no evidence that on or about the dates set opposite their names the pickets referred to in paragraph 13(b) of the complaint threatened "to inflict bodily injury or to cause other harm to various employees, including certain Carrier's employees, if these employees refused or failed to observe the picket line established by the Respondents." Accordingly, I shall recommend that this paragraph of the com- plaint be dismissed. 3. Obstructing ingress or egress of employees at plant entrances On March 11, Respondents Brewster and Kowalski actively participated in the picketing at plant entrances as well as at the previously described railroad right-of- way (supra). Thus, as employee Joseph Puchalski attempted to drive his car through the main entrance of the plant Brewster and several other pickets including Jay Sherman, chairman of the grievance committee, approached his car and stood in front of it and to the side, with someone shouting, "You can't go in there." When Puchalski realized that he was being prevented from entering the plant he backed his car away, with Brewster's guidance, and left the gate, seeking out a company monitor to whom he reported the incident. During the course of his testimony Re- spondent Brewster sought to explain the Union's general conduct of requiring salaried nonstriking workers to show special badges or passes. Thus he stated that he sug- gested to management that better identification be given these people to insure to the Union that strikebreakers were not being brought in. Absent such company co- operation Brewster conceded that he informed management that "we will stop every car by walking slow, and until you identify these people and they identify them- selves." I do not, however, credit Brewster's affirmative testimony in answer to his counsel's leading question that the further purpose of stopping entrants was to "ask those people who would be in the bargaining unit to respect [the] picket line." 17 On the evening of March 11, following the railroad incident, Guard Captain Wood reported an incident involving the departure of a supervisory employee, Sim- mons, who was driving a number of salaried employees out of the plant. Earlier in the day the employees had been engaged in preparing the disputed railway cars for shipment (supra). Wood's account was as follows: Mr. Kowalski came on the property and started to object to the driver of the car and I immediately proceeded to the vicinity of the car and Mr. Simmons got out of the car and Mr. Kowalski stated he was going to inspect the trunk of the car. I told him he was on company property, he would have to remove himself from company property. This he refused to do until he looked in the back trunk of the car. Mr. Simmons looked at me. I told him he did not have to under any circum- stances open his car for inspection by any person, and Mr. Kowalski stated he wasn't going to get off the property until he did open the trunk of his car. 17 Brewster, by thus contradicting himself, convinces me of his unreliability as a wit- ness. First be testifies that be was stopping cars to see if the occupants really were salaried workers and not strikebreakers Then he states that he was stopping cars to persuade people in the bargaining unit, 1 e., nonstrikers, to observe the picket line. Because of Brewster's handling of this matter and other items (such as his equivocal explanation of his absence from the picketed area at one time due to hospitalization at another time), I do not credit Brewster's testimony generally except insofar as it would constitute an admission against the interest of any one or more Respondents, or is otherwise corroborated by the testimony of credited witnesses. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I called for a Deputy Sheriff , and the Deputy Sheriff one came across the road and as he came across the road, Mr. Simmons opened the trunk of the car and Mr. Kowalski took one quick look and got off back to the picket line, off the Carrier property. During the course of the discussion, Mr. Kowalski told me that they were not going to allow any more salaried employees in or out-out, but not in, of Carrier Corporation because of the dirty trick that was pulled by taking the train out. . . .18 Kowalski admitted to this conduct, explaining, as he had to Wood at the time, that "the pickets here are a little bit concerned about some stuff that is being hauled out of here by cars, and we are asking you to open your trunk." 19 Previously, on March 7, Kowalski was at the picket line at the main gate as Fred Chamberlin, a salaried employee, sought to go to work. He was stopped by pickets who objected because he carried a temporary badge. He asked to see whomever was in charge and was referred to Kowalski to whom he explained the nature of his badge and the fact that he had been employed for a month as an engineer and wanted to go to work. Kowalski refused to permit Chamberlin to pass and the latter, considering a further attempt "foolish," left the area 20 Upon the following credited evidence, I conclude and find that on March 7, Re- spondent Kowalski, and on March 11, Respondents Kowalski and Brewster, re- strained and coerced employees Puchalski and Chamberlin, and the employees riding in Supervisory Employee Simmons' car, by obstructing, blocking, and pre- venting their ingress or egress, as the case may have been, at the entrances to the Carrier plant. Such conduct clearly constitutes a violation of Section 8(b) (1) (A) of the Act. In the complaint it was originally alleged as part of paragraph 13(c) that David Halstead and Jay Sherman obstructed ingress and egress to the plant on March 7, and that Frank Stirpe did likewise on March 11. I find nothing in the record to so implicate either Halstead or Stirpe at the time stated,21 and insofar as Sherman is concerned I find that the only time he was so engaged was on March 11, as noted earlier, but not on March 7. Accordingly, I shall recommend that so much of paragraph 13(c) as refers to these three individuals be dismissed. In addition to the incidents alleged above other allegations were added to para- graph 13(c) at the hearing (see footnote 14, supra). Thus employee Puchalski credibly testified that on March 3, picket-Lyons required him to show his badge be- fore passing through the plant gate 22 Similarly Arthur Calland, a picket on duty at the main gate on March 4, stopped a salaried employee because he had a temporary badge, and in agreeing to allow 'this employee to enter, stated that as of the follow- ing Monday they were not going to have any temporary badges.23 Upon the foregoing additional evidence, I find that pickets on the picket line maintained under Respondent's direction and supervision further restrained and coerced Carrier employees by obstructing, blocking, and preventing their ingress and egress at entrances of the Carrier plant and thereby further violated in this respect Section 8(b)(1) (A) of the Act. In so finding, however, I do not consider picket Larry Roach's actions of patrolling his picket assignment at a slow pace, in front of cars and pedestrians entering the plant gate on April 4, to have been so motivated or executed as to constitute restraint or coercion of employees. Accord- ingly, so much of the amendment to paragraph 13(c) of the complaint as refers to Larry Roach I shall recommend be dismissed. 15 This item was referred to previously. 'B Except insofar as Kowalski's testimony constitutes an admission against the interest of any one or more of the Respondents or is corroborated by the testimony of credited witnesses, I do not consider his testimony reliable and do not credit it. Illustrative of such unreliability is the conflict created by his explanation of the trunk incident. Captain Wood reliably testified it occurred on the evening of March 11, following the train inci- dent, and involved employees who had been engaged in the train handling. Kowalski admitted to the incident, explained his reason for requiring a search of cars, but else- where in his testimony stated that on the conclusion of the train incident he had actually left the area and did not return that day 20 Kowalski did not deny this conduct attributed to him by Chamberlin u This incident is not to be confused with Halstead 's encounter with Photographer Dinger, supra. za I do not credit Lyons' denial of this incident. O The credited testimony of Guard Captain Wood. Calland admits the substance of the incident, differing only as to its purpose. I do not credit his testimony that he was merely suggesting that nonstriking employees "observe our picket line, please don't go in." LOCAL NO. 5895 , UNITED STEELWORKERS OF AMERICA 143 4. Obstructing ingress and egress of employees of the New York Central at its right-of-way As detailed previously (supra), Respondents Kowalski and Brewster, as well as other officials and members of the Respondent labor organizations, were instru- mental in obstructing the passage of the train on March 11. In the process of this picketing activity it is clear from credited testimony in the record that those in charge of the train movement were at constant odds with the pickets. Thus picket Paul King fell down on the tracks and had to be forcibly removed; 24 Kowalski parked his car on the tracks; Brewster was among the mass of pickets refusing to move from in front of the train, and was heard to shout, "We will take care of your guys when you come out, you scabs"; 25 Louis Hosid invited Trainmaster Bowes to get off the engine and he would "knock my block off," 26 and Jay Sherman, chairman of the Local's grievance committee, was in the forefront of the blocking group that shouted, "Let's not let them enter." 27 All of these incidents, and indeed the entire train incident, took place, it will be recalled, in the presence of Carrier employees acting as photographers and monitors, together with those who were mere bystanders, some of whom were themselves the object of the pickets' coercive conduct (supra). In view of the presence of these Carrier employees when train personnel were thus obstructed, as described, it re- quires no extended explanation to demonstrate the effect such action might be ex- pected to have upon Carrier employees. For if the pickets were thus disposed to engage in what constituted restraint and coercion of the railroad personnel it would certainly take a very obtuse Carrier employee not to see that he would be next. I therefore find and conclude that by obstructing the ingress and egress of New York Central personnel, thereby restraining and coercing them, the Respondents and their pickets thereby effectively coerced and restrained the Carrier employees who were present. Such restraint and coercion I find to violate Section 8(b)(1) (A) of the Act. 5. The assault upon peace officers At the commencement of the hearing it was alleged over Respondent's objection (see footnote 14, supra) that Respondent further restrained and coerced Carrier employees by the assaults and inflictions of personal injury and the harm upon various individuals, in the presence of Carrier employees. In this respect the evidence discloses, upon the credited testimony of Deputy Sheriff Tedesco, that on March 11, as the train was making one of its passages onto Thompson Road, Roger Potter was among.the milling pickets previously described (supra) and, like Paul King (supra), had to be forcibly picked- up and removed from the train's path.28 Potter rose from the ground swinging his fists, one of the blows landing on Deputy Tedesco as Tedesco was placing Potter under arrest.29 Thereafter, on April 4, as pickets were walking in front of the main plant gate Deputy Sheriff Nash was set upon by Harland Wallace, one of the pickets, knocked to the ground, punched, and in the process was gouged in the eye. Harland Wallace did not testify at the hearing, but Anthony Albanese, a picket, testified that at the time in question Wallace was being dragged across Thompson Road from the main gate by deputies other than Nash, and thereafter was beaten by seven or eight deputies. Albanese further testified that at this very time Deputy Nash was on the west side of the street making an arrest. He then came back "from the arrest he made, and he got in the whole business." On cross-examination, however, Albanese testified he did not see Nash and Wallace together, and when asked if there was any encounter between the two he stated that he did not "see how it could have possibly taken place." By thus placing Nash "in the whole busi- ness" and not seeing how an encounter involving Nash "could have possibly taken place" Albanese has so contradicted himself as to make his account of the incident u The credited testimony of Deputy Sheriff Tedesco. 25 The credited testimony of Guard Captain Wood. 26 The credited testimony of Bowes. + The credited testimony of employees Lincoln and Dinger. 28 There is conflict as to whether he fell or was pushed. There is no dispute that he had to be forcibly removed ; and that is the critical fact.' 29 While Tedesco suggested that this blow might have been accidental, there is no evi- dence that the Carrier employees witnessing it from the area inside the train gate made the same charitable appraisal of Potter's reflexes. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worthless. I therefore credit Nash's otherwise undisputed testimony that he was beaten by Harland.3o And finally on April 5, pickets, including Respondents Brewster and Kowalski, and the Local's grievance committee chairman, Jay Sherman, were walking in front of the main'gate of the plant. On this occasion employee Hugh Lincoln observed a picket, whom he identified as Arthur Calland, spit at and kick a deputy sheriff.31 On each of the occasions noted above, employees of Carrier were shown to have been present, thus observing Deputy Tedesco being struck, an unidentified deputy being kicked and spit upon, and Deputy Nash being beaten, all during the act of picketing and in the presence of officials, including Respondents Brewster and Kowalski. The reasonable conclusion to be drawn by Carrier employees witnessing such con- duct would be that the pickets were determined to strike out at anyone, be they employees or constituted authority, who would thwart their picket activity. Such conduct most certainly was calculated to having a restraining and coercive effect upon those who observed it and I so find. Nor am I constrained to minimize the actions because Potter's punch was acci- dental, or Calland's spittal or kick fell short of the mark, or because Nash was not hospitalized and did not actually lose the sight of an eye. People were assaulted and that should normally be expected to instill the proper fear in those witnessing it. How badly they were assaulted is a matter for the police court or for the assess- ment of damages, not for the determination of unfair labor practices. Accordingly, I find and conclude that by the assaults and infliction of injury on the peace officers, as detailed above, Respondents and each of them restrained and coerced Carrier employees in violation of Section 8(b) (1) (A) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section IV, above, occurring in connection with the operations of the Company set forth in section I, above, and with the operations of the New York Central Railroad, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondents, and each of them, have engaged in and are en- gaging in unfair labor practices, I shall recommend that they cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondents, Local Union No. 5895, United Steelworkers of America, AFL-CIO, and United Steelworkers of America, AFL-CIO, are each labor organ- izations within the meaning of Section 2(5) of the Act. 2. Respondents have induced and encouraged individuals employed by New York Central Railroad to engage in a refusal in the course of their employment to per- form services with an object of forcing or requiring the New York Central Railroad to cease doing business with Carrier Corporation, and have thereby violated Sec- tion 8(b) (4) (i) (B) of the Act. 3. Respondents have threatened, coerced, and restrained the New York Central Railroad with an object of forcing or requiring the New York Central Railroad to cease doing business with Carrier Corporation, and have thereby violated Section 8(b) (4) (ii) (B) of the Act. 31 The extent of Nash's injuries is not clear Thus, in gory fashion, Nash describes his eyeball hanging out as a result of the gouging. Without engaging in a clinical dis- cussion of the subject it is sufficient to find and conclude as I do that Nash was beaten and that Harland was responsible for it. How bad a beating it was has no relevance to the issue presented here. Suffice it to say he appears fully recovered. 31 As in the case of his previously, considered testimony, I do not credit 'Calland in his denial of this conduct or in his testimony that one of his strike duties was to keep peace on the picket line Neither do I credit, for reasons previously stated, the explanation of Respondent Brewster of his actions from the scene of the assault, or Respondent Kowalski's lack of recollection of its occurrence. CORPUS CHRISTI GRAIN EXCHANGE, INC. 145 4. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondents, and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (1) of the Act. 5. The aforesaid unfair labor practices having occurred in connection with Car- rier's operations as set forth in section I, above, have a close , intimate, and sub- stantial relation to trade, traffic , and commerce among the several States, and sub- stantially affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Corpus Christi Grain Exchange, Inc. and John L. Hamilton, Roy J. Rackley, Wesley E. Franklin . Cases Nos. 23-CA-1034-1, 23-CA-1034-2, and 23-CA-1034-3. July 14, 1961 DECISION AND ORDER On December 22, 1960, Trial Examiner Ramey Donovan 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recom- mended that the complaint be dismissed as to such allegations. There- after, the General Counsel and the Respondent filed exceptions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Rodgers, Leedom, 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 entire record in this case, including the Intermediate Report and the excep- tions and briefs, and hereby adopts i the findings,2 conclusions, and recommendations 3 of the Trial Examiner except as herein modified. 1 The Respondent's request for oral argument is hereby denied as the record , including the exceptions and briefs, adequately present the issues and the positions of the parties. 8 At different places in his Intermediate Report in referring to events that occurred on May 16, 17, 18, and 19 , the Trial Examiner stated the month to be March instead of May. The Intermediate Report is corrected accordingly. Absent exceptions , we adopt pro forma the Trial Examiner's recommended dismissal of allegations that the Respondent violated the Act by laying off employees on May 16, by Foreman Wyatt' s interrogation of employees Fred Franklin and Bohach , by Wyatt's advis- ing employees that there would be a layoff to discourage union activities , by Wyatt's informing certain employees that they were laid off because the Respondent had learned of their union activities and was laying them off for that reason, and by Assistant Manager Hines telling employees to deal directly with management and that they would thereby achieve better benefits without a union. 3 The Trial Examiner recommended that the Respondent be ordered to cease and desist from violating the Act "in any like or related manner" to the violations found Because the discriminatory refusals to rehire Rackley and Hamilton evince a studied intent to thwart the rights of employees in freely selecting their collective-bargaining represents- 132 NLRB No. 12.