Int'l Woodworkers of America (Region 5)

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To protect himself, the worker tries to get as much as possible for his life. By himself this is difficult with employers organized. He can be broken like a stick. But breaking a bundle of sticks is not so easy Men are forced by circumstances to organize. Unionism has brought about better working conditions, more leisure for the worker to enjoy his life, reasonable pay, more job security, vacations, pen- sions and many other benefits It is an ignorant man who values his life cheaply, sells it cheaply and works long weeks to make his employer rich to the extent that he keeps himself poor. Well-paid organized labor is good for business in any town or city. The more the worker earns, the more he has to spend on his needs. The more he has to spend, the better for the merchant, the farmer and everyone else. Come to the meeting Tuesday and let us reason together. 1/25/62 UNITED STEELWORKERS OF AMERICA APPENDIX B Martin J. Brewer Andrew Hendley Marcellus H. Threlkeld Steve J. Giva Alva T. Lynch Robert B. Turner Milford Scott APPENDIX C NOTICE TO ALL EMPLOYEES Pursuant to a recommendation of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that. WE WILL NOT discourage membership in or activities on behalf of United Steelworkers of America, AFL-CIO, or any other labor organization, by refusing to reinstate or in any other manner discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual air or protection, or to refrain from any or all such activities. WE WILL make whole the following named individuals for any loss of pay they may have suffered by reason of the discrimination against them: Martin J. Brewer Alva J Lynch Robert B. Turner Steve J Giva Milford Scott Gerald Williams Andrew Hendley Marcellus H. Threlkeld R C. CAN COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material Employees may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone No Edison 5-5341, if they have any question concerning this notice or compliance with its provisions. International Woodworkers of America, AFL-CIO (Region 5) and Pioneer Lumber Corporation. C, a.se .Yo. 6-CB-922. Janti- arP1 14, 196-3 DECISION AND ORDER On August 9, 1962, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, finding that 140 NLRB No. 61. INT'L WOODWORKERS OF AMERICA ( REGION 5) 603 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions 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, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejuricial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report and the entire record in the case, including the exceptions and brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the modifications and addi- tions noted below.1 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. 'We do not adopt the Trial Examiner's finding of "condonation " in his footnote 16, based on Campbell 's statement at the conference with the law enforcement officers Rather, we find, such statement was an attempted justification of the pickets ' unlawful conduct and not "condonation " thereof. In addition to the reasons advanced by the Trial Examiner for finding Respondent responsible for the unlawful acts of the pickets , we also rely on the constitution of the Respondent, in support of such conclusion Thus, under the constitution , the Respondent Council is formed by the locals of the geographical area and its officers and executive board are directly elected by the members of the locals, per capita taxes aie collected from the members of the locals for its support and, In turn , Respondent expends its funds in assisting the locals in organizing , local members also pay a monthly tax for a Council emergency fund which is used , inter alia, for strike benefits Moreover, article IX, sec- tion 4, of the constitution provides the manner and method of the expenditure of such benefits, Including a requirement that the local establish a strike committee to administer the benefits under conditions laid down therein, one of which is the performance of picket duty or other strike duty prescribed by the strike committee INTERMEDIATE REPORT The charge herein was served upon the Respondent on April 17, 1962, and the complaint was issued on May 29. Hearing was held before Trial Examiner Sidney Sherman on June 21, 1962, at Elkins, West Virginia. The issues litigated were whether International Woodworkers of America, AFL-CIO (Region 5) 1 violated Section 8(b)(1)(A) of the Act by alleged strike misconduct. After the hearing the Respondent and General Counsel filed briefs. Upon the entire record and my observation of the witnesses, I adopt the following findings and conclusions: I. THE BUSINESS OF THE COMPANY Pioneer Lumber Corporation, a West Virginia corporation, hereinafter called the Company, maintains its principal office and plant at Dailey, West Virginia. It commenced operations at that plant on October 1, 1961, where it engaged in the processing, sale, and distribution of lumber and wood products. The complaint alleges, and the answer admits, that the value of goods shipped from said plant t Hereinafter called the Respondent. It appears from the record that the official name of the Respondent Is Southern States Regional Council, Region V, International Wood- workers of America, AFL-CIO, and it is so designated In my Recommended Order, below 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since October 1, 1961 , to out-of-State points, if projected over a 12-month period, would exceed $50,000. I find that the Company is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. It. THE LABOR ORGANIZATION The complaint alleges, the answer admits, and I find, that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint as amended at the hearing alleges that Respondent on various dates in the spring of 1962 2 (1) prevented employees and supervisors of the Com- pany from entering or leaving the plant, (2) inflicted, and threatened to inflict, bodily harm on such employees and supervisors because of their refusal to honor Respond- ent's picket line, ( 3) threatened employees with loss of employment for failing to observe the picket line, and (4) placed sharp objects in roadways and parking lots used by employees and supervisors , and that by such acts the Respondent violated Section 8 (b) (1) (A) of the Act. The answer controverts these allegations. The Strike Local 5-198 of the Respondent had been in existence at the Company 's plant for some time prior to the events related below. However, when, in December 1961, a representation petition was filed with the Board , it was not filed by the Local but by a body with which the Local was affiliated , the Respondent, and, on January 24, the Respondent was certified as the representative of the employees Soon thereafter the Company met in negotiations with Campbell , a representative of the Respondent , and a bargaining committee consisting of members of the Local. On March 22 , dissatisfied with the progress of negotiations , the employees voted to strike. Picketing began on March 23 and continued to the date of the hearing. Threats On March 23, the first day of the strike , a group of pickets , including picket captain Mauller,3 approached Supervisor Victor Dingess and his son , MacArthur, on the plant premises. Mauller asked MacArthur to join the strikers and, upon being rebuffed , asserted that when the strike was settled MacArthur would not have a job. On March 26, Victor Dingess and his son, on their way home, passed a group of pickets which included Mauller and Huffman, a member of the bargaining com- mittee. Huffman adjured the elder Dingess to keep his son out of the plant, adding, we are going to get him and we are going to get you , too, if you don't keep him out of here." Although the younger Dingess , who was walking ahead of his father, did not hear this threat , it was reported to him soon afterward by his father. Obstruction of Ingress and Egress On March 24, Supervisor McDaniels and employees Cook and Weese approached the walkway leading to the dimension mill on the plant premises ; 10 to 15 pickets were massed in front of , and near, the walkway, which was only 3 feet wide. The pickets did not prevent McDaniels from entering , but when Weese and Cook attempted to follow they were attacked by the pickets . Among them was Roy Welch, who, after declaring that no one was going through , seized Weese and forced him to the ground. As the attackers drew off, one of them , Hogue, asserted that Cook and Weese would "never go in no more." Campbell arrived on the scene toward the end of the incident. The next day, Supervisor Roth, while driving out of the plant grounds, was con- fronted by three pickets waving clubs. One of the pickets remained in the path of Roth's car until the last moment , before jumping aside to avoid being struck. As the car passed the pickets , Roth heard some "thumps " on the side of the car A fourth picket was on the scene but did not participate actively in the incident. On March 27 , 6 employees and 3 supervisors approached a line of about 20 pickets assembled around the walkway to the dimension mill. One of the employees and two of the supervisors crossed the line without interference . However, when 'All events hereinafter related occurred in 1962 unless otherwise stated 3 Manlier was also president of the Local and chairman of the bargainine committee INT'L WOODWORKERS OF AMERICA ( REGION 5) 605 Supervisor Dingess next attempted to pass through, the pickets closed ranks and blocked his path, one of the pickets asserting that he would not be allowed to pass. When Dingess attempted to push his way between two of the pickets, they attacked him as well as several of the employees who were attempting to enter with him. Dingess was struck several blows about the head and was kicked in the ribs, causing him to fall to the ground. Weese was also struck by a picket about the head. Cook, Shockey, and Dingess' son, MacArthur, were similarly attacked, the last by Roy Welch. Police intervention brought an end to the incident. All the findings as to the foregoing incidents are based on the uncontroverted and credible testimony of General Counsel's witnesses. There was conflicting testi- mony, however, relating to the nail-throwing incidents next discussed. Supervisor Price testified that on April 30 he observed Iseli, a striker, crouched near the gate of one of the private roads leading from the highway to the Com- pany's plant, that his hands were stretched out in front of him, that he moved across the road in that posture, that Respondent's representative, Gorman, was near Iseli and was pointing at the area in which Iseli was operating , and that about 10 minutes later Price approached the gate with another supervisor and picked up 30 to 35 roofing nails, together with 2 pieces of tin or other material adorned by a cluster of nails, with the points sticking up.4 According to Price, Gorman was still at the gate when the nails were picked up but made no comment. Weese testified that early in May, while a company truck was leaving by the south road, he saw Gorman make a motion as if throwing some objects under the wheels of the truck. Cook testified about a similar incident, which he reported to Supervisor Roth. Roth corroborated this, testifying that upon investigating the area indicated by Cook, he found a couple of handfuls of nails on both the Company side and the public side of the gate to the south road, and that Gorman was standing nearby. While admitting having seen nails on company premises, Gorman testified that he had had to pick up tacks from the area between the gate to the south road and the highway ,to protect his own tires.5 He denied that he had placed any nails in plant approaches or had seen any of the pickets do so.0 It is clear that roofing nails were found at various times in May along the south entrance to the plant in the vicinity of the picket station at that point. However, I was favorably impressed by Gorman's demeanor and I credit his denial that he ever participated in, or observed, any nail throwing by strikers. In view of this, and as the General Counsel's witnesses in testifying about the foregoing incidents were un- able to state positively either that Iseli was throwing 7 anything on the road or that the objects in Gorman's hands were nails or similar objects, I find that the General Counsel has not established by the preponderance of the evidence that Gorman, or that Iseli in Gorman 's presence , was involved in any nail-throwing incident a Findings of Coercion Upon consideration of the foregoing , I find to be coercive the following conduct: 1. Mauller's threat on March 23 that MacArthur Dingess would lose his job if he did not join the strike.9 2. The attack on Cook and Weese on March 24, as they sought to enter the dimension mill. 3. The brandishing of clubs and striking of Roth 's car as he drove out of the plant grounds on March 25.10 4 General Counsel's Exhibits Nos 3 and 4 'There was a picket station at this point , which was frequented by Gorman 6 Gorman testified credibly that about the middle of April he had seen unidentified individuals throw nails on the south road , and that he had rebuked them and picked up the nails He also testified that on two occasions he had seen company supervisors throw nails into areas occupied by strikers' cars The supervisors involved did not dispute the after testimony and, in one case, frankly admitted the conduct charged 7 Price was not certain whether Iseh was placing objects on the road or picking them up. 8It is hardly likely that any Company employee would throw nails in the entrance to the south road , which was used by employees ' cars as well as by company trucks How- ever, there is nothing in the record to negate the possibility that the nails were placed there without the knowledge of Gorman, by persons sympathizing with the strikers 9 See Harbor Carriers of the Port of New York . 136 NLRB 815 IU The fact that this incident was observed only by strikers is immaterial 11' T Smith Lumber Company, 116 NLRB 507, 508 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The threat on March 26 to "get" Victor Dingess and his son." 5. The barring of ingress to the dimension mill on March 27, and the related attack on Victor Dingess, his son, Weese, Cook, and Shockey.12 Responsibility of Respondent Respondent contends that even if it be found that the pickets engaged in coercive conduct, Respondent may not be charged therewith, as the pickets were not its agents, and their misconduct was not authorized, condoned, or ratified by Respondent's agents. However, it is undisputed that agents of the Local either participated in certain of the foregoing acts or witnessed such acts without repudiating them Thus, Mauller, who was president of the Local as well as picket captain and chairman of the bar- gaining committee, uttered the threat of March 23 and was on the scene when Huff- man delivered the threat of March 26. Huffman, himself, was a member of the Local's bargaining committee. Roy Welch, who, as related above, participated actively in the attacks of March 24 and 27, was a member of the Local's bargaining committee. I find therefore that the Local was responsible for all the misconduct of the pickets related above, since such pickets were either officers of the Local or members of its bargaining committee 13 or were following the example set by such representatives in the incidents of March 23, 24, and 26.14 There remains the question whether the liability of the Local for such misconduct may be imputed to the Respondent. The record shows that the Respondent was the certified representative of the employees at the struck plant, that the Local collaborated with the Respondent in contract negotiations, that the strike was called by the Local in aid of such negotiations and was approved by the Respondent, and that Campbell, the Respondent's representative, played a significant role in the management of the strike. According to his own testimony, he advised the Local bow to organize and conduct the picketing, and was in frequent attendance at or near the picket lines until he was relieved by Gorman in the afternoon of March 27, after the affray of that date related above He also represented the pickets on March 24 and 26 in negotiations with local law enforcement agencies concerning measures to be taken to maintain order during the strike. Gorman admitted that the Respondent gave financial aid to the strikers and that he, himself, was on the picket line every day of the strike after March 27, giving advice to the strikers and attending to their material needs In view of all the foregoing circumstances, I find that the Respondent and the Local were engaged in a joint venture 15 and that the Respondent was therefore responsible for the acts of the Local's agents, in connection with the conduct of the picketing 16 11 United Steelworkers of America, AFL-CIO, and Local No 2772, etc (Vatlcan- Cincinnati, Inc ), 137 NLRB 95 12 Respondent appears to contend that the attack was provoked by Victor Dingess' attempt to force his way through the pickets However, the record is clear that the pickets presented a solid front to Dingess, thereby effectively barring his ingress, even before he engaged in any provocative conduct Moreover, the nominal force exerted by Dingess to effect entry did not justify the violence of the attack upon him, or, a fortiori, upon the others, who were innocent of any provocation 12 Although there was no evidence as to the authority of the bargaining committee with respect to the strike, the Board has held a union chargeable with strike misconduct con- doned by a member of its grievance committee, even though there was no evidence that lie had any special function in connection with the strike. United Steelworkers of America, 4FL-CIO, and Local No 2772, etc (Vulcan-Cincinnati, Inc ), 137 NLRB 95 Sherman Welch and Hogue, who participated in the incidents of March 24 and 27, were members of the bargaining committee at the time of the hearing, but were not such at the time of those incidents. Accordingly, they are not treated as agents of the Local for the purpose of this case. 14 Stephenson Brick & Tile Company, 129 NLRB 6, 10, W T Smith Lumber Coin pane, satpra, at p. 509. 15 United Steelworkers of America, AFL-CIO, and Local No 2772, etc (Vulcan- Cincinnati, Inc ), .supra; Cory Corporation, 84 NLRB 972 10 In view of this finding it is unnecessary to evaluate the conflicting evidence in the record concerning the extent of Campbell's involvement in the incidents of March 23 and 24 As I have imputed to the Respondent responsibility for the coercive acts of the Local's agents, any misconduct of its own agents would not be essential to a violation finding Conversely, the fact that Campbell, as he testified, counseled the strikers not to engage in violence or other misconduct could not exonerate the Respondent, as its re- INT'L WOODWORKERS OF AMERICA (REGION 5) 607 It follows, and I find, that the Respondent violated Section 8(b) (1) (A) by reason of the incidents of March 23, 24, 25, 26, and 27, related above. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of the Company, as set forth in Section I of this report, 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. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I adopt the following. CONCLUSIONS OF LAW 1. Pioneer Lumber Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By restraining and coercing employees of Pioneer Lumber Corporation in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has violated Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in this case and the foregoing findings of fact and conclu- sions of law, it is recommended that the Respondent, Southern States Regional Council, Region V, International Woodworkers of America, AFL-CIO,17 Its officers, representatives, agents, successors, and assigns, shall be required to: 1. Cease and desist from threatening employees of Pioneer Lumber Corporation with bodily harm or loss of employment, inflicting bodily harm upon them, barring their ingress to, or egress from, their place of employment, or in any like or related manner restraining or coercing them in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Post in conspicuous places in the Respondent's business office, and in places where notices to members of its affiliated Local 5-198 are customarily posted, copies of the attached notice marked "Appendix." 18 Copies of said notice, to be furnished by the Regional Director for the Sixth Region, shall, after being duly signed by an official representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Sixth Region signed copies of the aforementioned notice for posting by Pioneer Lumber Corporation, if it be willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Sixth Region, shall, after being sponsibility is predicated not on any condonation by Campbell of coercive acts, but on the conduct of agents of the Local. However, if evidence of condonation of picket line misconduct by Campbell be deemed material, I would find such condonation on the basis of the credible testimony of Wilson, the Company's general manager, that at one of his meetings with local law enforcement agents, Campbell defended the misconduct of the pickets on March 24 on the ground that they were merely "protecting their . . jobs." (Campbell did not directly contradict this testimony.) "ISee footnote 1, above. "If this Recommended Order Is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner " If the Board's 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 "Pur- suant to a Decree of the United States Courts of Appeals, Enforcing an Order " 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed by the Respondent as indicated, be forthwith returned to, the Regional Director for disposition by him. (c) Notify the Regional Director for the Sixth Region, in writing, within 20 days from the date of receipt of this intermediate Report, what steps have been taken to comply herewith.ls 10 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL OUR OFFICERS AND AGENTS AND TO ALL MEMBERS OF LOCAL 5-198 INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF PIONEER LUMBER CORPORATION Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as -amended, we hereby notify you that: WE WILL NOT threaten to inflict, or inflict, bodily harm upon, or threaten with loss of employment, employees at the plant of Pioneer Lumber Corporation at Dailey, West Virginia, in order to prevent them from crossing our picket lines, and we will not bar their ingress to, or egress from, said plant. WE WILL NOT, in any like or related manner, restrain or coerce employees of Pioneer Lumber Corporation in the exercise of the rights guaranteed by Section 7 of the Act, as amended, including the right to refrain from any and all concerted activities. SOUTHERN STATES REGIONAL COUNCIL, REGION V, INTERNATIONAL WOOD- WORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 2107 Clark Building, 701-717 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone No. Grant 1-2977, if they have any question concerning this notice or compliance with its provisions. Spartan Department Stores I and Retail Clerks International Association, AFL-CIO, Local 1680, Petitioner. Case No. 16-RC- 3163. January 14, 1963 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John F. White, hearing offi- cer. The hearing officer's rulings are free from prejudicial error and are hereby affirmed 2 1 The hearing officer, without objection, granted leave to amend the petition to name all operators of licensed departments as parties to this proceeding. Because these parties received adequate notice and since we find them to be joint employers of the employees in the unit sought by Petitioner, we hereby amend the caption to include the following parties as Employers: Marrud, Inc. ; Miles Shoe Corporation ; Benjamin Kraft & Sons, Inc. ; Kay Jewelry Stores, Inc. ; Dine-O-Rama, Inc. ; Play-More Sales Company, Inc. ; Top Value Auto Supply ; Babdo Sales, Inc. Appliances, Inc. ; and Crank Drug Store. 2 At the hearing, Retail & Department Store Employees, Amalgamated Clothing Work- ers, AFL-CIO, hereinafter referred to as the Intervenor, moved to dismiss the petition on the following grounds: (1) The petition failed to list its name as a labor organization 140 NLRB No. 59.