Amalgamated Assn. of Street, Electric Railway, Etc.

174 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and upon the entire record in the case, the Board makes the following determination of dispute pursuant to Section 10 (k) of the Act : 1. Electricians employed by George D. Edwards Electric Company, Inc., and Purvis Electric Company, a joint venture, who are rep- resented by International Brotherhood of Electrical Workers, AFL- CIO, Local Union No. 429, are entitled to perform the work of un- loading "ramming paste" and other materials to be used by electricians in their construction work at the Consolidated Aluminum Corpora- tion project in New Johnsonville, Tennessee. 2. Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union No. 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and. Helpers of America, is not, and has not been, lawfully entitled to force or require S & W Construction Company of Tennessee, Inc., and George D. Edwards Electric Com- pany, Inc., and Purvis Electric Company, a joint venture, to assign the disputed work to warehousemen. 3. Within 10 days from the date of this Decision and Determination of Dispute, Teamsters, Chauffeurs, Helpers and Taxicab Drivers Lo- cal Union No. 327, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen, and Helpers of America, shall notify the Regional Director for the Twenty-sixth Region, in writ- ing, whether or not it will refrain from forcing or requiring S & W Construction Company of Tennessee, Inc., and George D. Edwards Electric Company, Inc., and Purvis Electric Company, a joint ven- ture, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to warehousemen, who are its members, rather than to electricians, who are represented by International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 429. job. There is no dispute, and therefore no Board determination , as to installation of this material . Inasmuch as the present decision cannot in any way prejudice the Bricklayers, the motion to intervene is hereby denied. Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America , AFL-CIO, Its Division 1230 and Their Agent Mario Zoccolante and Plymouth and Brock- ton Street Railway Company. Case No. 1-CB-791. April °23, 1963 DECISION AND ORDER On January 7, 1963, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Division 1230 and its agent, Mario Zoccolante, had en- 142 NLRB' No. 24. AMALGAMATED ASSN. OF STREET, ELECTRIC RAILWAY, ETC. 175 gaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that the Respondent Amalgamated had not engaged in any unfair labor practices and recommended dis- missal of the complaint with respect to it. Thereafter, the General Counsel filed exceptions to the Intermediate Report, together with a supporting brief. The Charging Party and Respondent Division 1230 and its agent, Mario Zoccolante, filed exceptions to the Intermediate Report. The Respondent Amalgamated filed a reply brief in opposi- tion to the General Counsel's brief and exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its authority in this case to a three-member panel [Chair- man McCulloch and Members Fanning and Brown]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record 'in this case, and hereby adopts the findings, conclusions,' and recom- mendations 2 of the Trial Examiner except as modified herein. 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 Division 1230, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, its officers, agents, representatives, successors, and assigns, and Mario Zoccolante, shall: 1. Cease and desist from : 1 We concur In the Trial Examiner 's ultimate conclusion that Respondent Division 1230 and Its agent, Mario Zoccolante, violated Section 8 ( b) (1) (A) of the Act. In doing so, however, we do not adopt the Trial Examiner's statement in footnote 10 of the Interme- diate Report that the Charging Party attempted "to fabricate" a case against certain union leaders . In our opinion, the record amply discloses that the union leaders referred to did engage in the unlawful conduct alleged and we have so found. In addition, we find insufficient support in either past Board cases or the record herein for the statements in footnote 4 of the Intermediate Report that refer to the Board's "strained theory" of "self-coercion." We therefore disavow that language in the Inter mediate Report. However, this unsupported language of the Trial Examiner is net essen- tial to our concurrence with the Trial Examiner's ultimate conclusions. 2 The General Counsel excepted to the Trial Examiner 's failure to provide in his recom- mended order and notice for the specific conduct which was found to independently violate Section 8 ( b) (1) (A) of the Act. We find merit In this exception . As the Trial Examiner found, and we agree , that Respondent Division 1230 and its agent, Mario Zoccolante, violated the Act by ". . . mass picketing preventing entry to and exit from the Company property . . . threats . . . and throwing nails . . ." we shall specifically order them to cease and desist therefrom and shall conform the notice to our Order. And, as we have found, in agreement with the Trial Examiner, that Mario Zoccolante as an Individual Respondent violated the Act, we shall direct the Order to Zoccolante , as well as to Respondent 1230. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Preventing entry to, or exit from, the Plymouth and Brockton Street Railway Company by mass picketing. (b) Threatening employees of Plymouth and Brockton Street Rail- way Company with physical violence to the employees and/or their families, or damage to their property. (c) Throwing nails under the buses of the above-named Company. (d) In any other manner restraining and coercing employees of the Plymouth and Brockton Street Railway Company in the exercise of their rights guaranteed to them in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its business offices and meeting halls in Plymouth, Massachusetts, copies of the attached notice marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, 'after being duly signed by an official repre- sentative of the Respondent Division 1230 and Respondent Mario Zoccolante, be posted by them immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to its mem- bers are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material.' (b) Mail to the Regional Director for the First Region signed copies of the attached notice marked "Appendix" to be posted by Plymouth and Brockton Street Railway Company, the company will- ing, in conspicuous places in and about the Company's place of busi- ness. Copies of this notice, to be furnished by the Regional Director, shall be returned to the Regional Director forthwith for appropriate disposition, after being signed by Respondent Division 1230 and Respondent Mario Zoccolante. (c) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent Amalgamated violated Section 8(b) (1) (A) of the Act, be, and it hereby is, dismissed. 3 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." 4 Since there is presently pending before the Regional 'Director for the First Region a representation petition filed by the Employer (Charging Party herein) In which hearing has been held (Case No., 1-RM-442), and since the unfair labor practices found herein occurred more than 5 months ago, the Regional Director Is authorized to process that petition, Including the conduct of an election prior to closing the Instant case, if in his opinion -a free election, could' be conducted reflecting the untrammeled choice of. the employees Involved. AMALGAMATED ASSN . OF STREET, ELECTRIC RAILWAY, ETC. 177 APPENDIX NOTICE TO ALL MEMBERS OF DIVISION 1230, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF PLYMOUTH AND BROCKTON STREET RAILWAY COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT prevent entry to or exit from the Plymouth and Brockton Street Railway Company by mass picketing. WE WILL NOT threaten employees of the above-named Company with physical violence to themselves or to their families or damage to their property. WE WILL NOT throw nails under the buses of the above-named Company. WE WILL NOT in any other manner restrain or coerce employees of Plymouth and Brockton Street Railway Company in the exer- cise of the rights guaranteed them in Section 7 of the National Labor Relations Act. DIVISION 1230, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL-CIO, Labor Organization. Dated------------- --- By------------------------------------- (Representative ) ( Title) Dated---------------- By------------------------------------- ('MAnio ZOCCOLANTE, President) 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, 24 School Street, Boston, Massachusetts, 02108, Telephone No. Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On August 30, 1962, a charge in the above -entitled case was filed by Plymouth and Brockton Street Railway Company. Upon that charge the General Counsel of the National Labor Relations Board on October 19, 1962, issued his complaint. and notice of. hearing . Thereafter answers were received from the above-named Re- spondents. , The complaint alleges and the answers deny that. by certain picketing conduct the Respondents have engaged in. unfair labor practices in violation of Section 8,(b),(1) (A) of the National Labor Relations Act, as amended. Pursuant to said notice, a hearing was held in Plymouth, Massachusetts,. on, November 15 and 16, 1962, before Trial Examiner C. W. Whittemore 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing all parties were represented by counsel and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from General Counsel and the Respondents. . Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING PARTY Plymouth and Brockton Street Railway Company is a Massachusetts corporation, with principal office and place of business in Plymouth, Massachusetts. From its Plymouth terminal it is engaged in the interstate and intrastate transportation of pas- sengers by bus. It regularly maintains passenger service between Boston and points in southeastern Massachusetts. It interlines with interstate carriers by bus and with the New Haven Railroad. It provides charter bus service and, by direction of the Massachusetts Department of Public Utilities, is a substitute service for the discon- tinued Old Colony Branch of the New Haven Railroad. During the year 1961 it received gross revenues of more than $250,000, of which a substantial portion was received from interstate charter operations. The Charging Party is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED I The Respondents Amalgamated and its Division 1230 are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues All of the conduct claimed by General Counsel as being violative of Section 8 (b) (1) (A) occurred during a strike of employees of the Charging Party which began on May 28, 1962. Only the nature of the conduct itself is raised as an issue, not the purpose of the strike? Most of the incidents involved took place at or near the Plymouth terminal of the Employer. The "terminal" building houses the garage, general offices, and waiting room. A public sidewalk parallels the front of the building, about 20 feet distant from the garage doors. Since buses are about 40 feet long, it is obvious that to enter or leave the garage a bus must necessarily, if wholly outside the doors, occupy both company and public property. And since it is undisputed that throughout the material period the striking drivers picketed by walking back and forth or in circles on the sidewalk itself, it is likewise clear that to enter or leave the garage it was necessary for the buses to cross the picket line. B. Relevant facts As to the conduct by pickets credible evidence establishes that: (1) For a considerable period after the employer attempted to resume regular scheduled runs to and from Boston it was the practice of several pickets to block exit and entry from and to the Plymouth garage by walking in close formation on the sidewalk, and to continue such blocking until local police were called to cause their dispersal. Without attempting to describe each of such "blockings" or to set out the precise number of minutes departures from this terminal were delayed, the evidence warrants the general finding that seldom, if ever, did the pickets move out of the way until police required them to do so. (2) As a witness Mario Zoccolante, president of Division 1230, admitted that he was "in charge" of the picketing at all times. And on most of the occasions in issue Zoccolante and/or other officers and committeemen of the Local were 'Apparently by inadvertence the word "Railway" was omitted from the caption of the original complaint and the error was thereafter continued in other formal papers, as well as briefs. The Trial Examiner takes official notice of the actual name of the organization, and the error Is hereby ordered corrected in all formal documents herein involved. 2 The Trial Examiner agrees with General Counsel's statement in his brief : "The Em- ployer practices which prompted the calling of the strike are immaterial ." General Counsel, however, has apparently modified his opinion since at the hearing he claimed that the cause of the strike is "an important fact," and insisted that "the purpose of the strike is a crucial point in this matter." AMALGAMATED ASSN. OF STREET, ELECTRIC RAILWAY, ETC. 179 present on the picket line. Such agents of the Local include Vanzini, Silva, Lamb, Sherman, and Almeida. (3) For some weeks after the Company attempted to resume its regularly sched- uled runs it appears from the evidence that various members of the Anzuoni family 3 took the places of striking drivers. So far as the record reveals it was not until early August that the Company began training and using replacements for the strikers. "Mass picketing" continued, however, in sufficient numbers to bar or delay buses from leaving or entering company property, whether the drivers were new employees or management representatives. (4) On at least one day, August 29, pickets did not "disperse" at the request of local police present, and no buses were permitted to cross the sidewalk at the customary location. (5) While the Trial Examiner finds in the record no credible evidence of actual violence,4 there is credible testimony to the effect that threats were implied in re- marks made by strikers to certain new drivers hired as replacements. These incidents: a. As new employee Gorman parked his bus in the street in Plymouth on Au- gust 29, the first day of his employment, Union Committeeman Silva came up to him while he remained in the bus and told him "we'll get you." President Zoccolante, beside the bus, called attention to Gorman's automobile nearby and said to other strikers, "See that car, that's the car to get." b. On or about August 10, when new employee D'Abre was in training and as he got off the company bus near its Boston terminal, Union Officer Vancini came by and declared "We'll take care of you." 5 c. About a week later, as D'Abre was taking a bus through the picket line, some- one called out "find out where he lives, find out who he is," and President Zoccolante replied, "Don't worry, we'll get him; we'll go to his house and get him." 6 d. Later the same morning, after D'Abre had transferred from one bus to another and had returned to Plymouth, Committeeman Silva drove up in his taxicab and called out to him, "We'll get you." 7 e. About August 10, while new employee Curley was in a coffeeshop near the Boston terminal, he was approached by Committeeman Almeida who said, "You know what happens to guys like you? Well, we'll get you and your family." 8 (6) On October 31, as Vice President George Anzuoni halted his bus across the sidewalk to await traffic clearance he saw picket Sherman toss roofing nails under his rear tires. He got out of the bus, demanded of Sherman what he thought he was doing, picked up the nails and drove off.9 S Richard Anzuoni, a stockholder in the concern ; L. A. Anzuoni, a director ; Albert Anzuoni, treasurer and general manager ; and George S. Anzuoni, vice president. 4 With all due respect to General Counsel's representatives, the Trial Examiner doubts if they seriously seek a finding of violence to be based upon testimony that on one occasion a striking driver "bumped" his shoulder against a bus as it crossed the line. No damage was done to the bus. Only by torturing the- Board's already strained theory that a striking employee must be inferred , to a be a victim of his own action could it be inferred that by bumping his own shoulder against a 40-foot bus a striker might later fear to return to work, and thus be deterred from exercising his right under Section 7 of the Act not to strike. There is a point, it would reasonably seem , where the theory of self-coercion becomes a self-revealed absurdity. 8 The Trial Examiner credits D'Abre's testimony as to the quoted remark. Vancint admitted being at the spot and making some remark. The Trial Examiner does not believe D'Abre's other testimony to the effect that shortly before the occasion described and while "standing out on another street there with my suitcase, waiting for the bus to come by and pick me up," be beard Vancini tell someone in a "blue Cadillac" with him, "Let's get the so-and-so." The Trial Examiner has grave doubt that D'Abre could have heard what, if anything, Vancini said, not to him , but to someone else in a passing car. Furthermore, D'Abre admitted being a friend of the Anzuonis and his demeanor as a witness made it apparent that he was striving to give testimony favorable to his friends. 9 The Trial Examiner does not credit Zoccolante's denial that he made this remark. He admitted the occasion and his presence. 7 Silva admitted his presence in his cab and that he "hollered out scab," but denied that he said anything else. 8 Almeida, although a witness, was not questioned about this implied threat. 6 The Trial Examiner does not accept as true Sherman 's denial that he engaged in such conduct. Anzuoni's testimony about the incident was straightforward and the action he 712-548-64-vol. 142-13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Conclusions Being bound by Board conclusions in numerous cases, the Trial Examiner must conclude and find that by the above-described conduct of pickets and strikers under Zoccolante's charge: mass picketing preventing entry to and exit from the company property in Plymouth, implying threats against employees Gorman, D'Abre, and Curley, and throwing nails under a bus driven by George Anzuoni, the Respondent Division 1230 and its agent, Mario Zoccolante, have restrained and coerced em- ployees in the exercise of rights guaranteed by Section 7 of the Act.I° The Trial Examiner finds no substantial evidence in the record, however, warrant- ing the conclusion sought by General Counsel that the Respondent Amalgamated must also be found to have engaged in unlawful conduct, or at least be accountable for it. The mere fact that the International authorized the Local's vote to strike does not justify the inference that at the same time it also auhorized unlawful acts in conducting the strike. In processing a case a representative of General Counsel is plainly acting as an authorized agent of General Counsel. But General Counsel would rise in righteous wrath to oppose the imputation that he, himself, was also to be held accountable for any unethical conduct engaged in by his representative at a hearing." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Division 1230 and its agent, Mario Zoccolante, set forth in section III, above, occurring in connection with the operations of the Charging Party described in section I, above, 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. claims he took was that of a reasonable person. On the other hand, 'the Trial Examiner cannot believe Gorman's testimony that on the same date he also saw Sherman toss nails under his tires. Gorman said he drove off, however, and not until later telephoned back to the terminal to warn others. Had he actually seen nails tossed under his tires, it is reasonable to believe that he would have done as Anzuoni did, get out and pick them up. Further doubt upon Gorman's testimony as to this incident is cast by the fact that on cross-examination be admitted that he "just seen objects fall," yet in an affidavit previously executed by him before the same George Anzuoni he stated definitely that he saw Sherman "'throw roofing nails under the tires." It is clear that Gorman was telling an untruth either as a witness at the hearing or as an of lant before his own employer. io The Trial Examiner does not credit General Manager Albert Anzuont's testimony to the effect that on June 20 striking driver Silva threatened to break his leg or that on June 8 Zoccolan'te and Silva threatened certain charter drivers for another busline with an accident. As the record reveals, this Anzuoni made extravagant efforts to color his testi- mony in expressing his resentment against the strikers. According to his own admission he hired a commercial photographer on June 2G and August 29 and 30, to take pictures of his employees on the picket line. He definitely identified as being present on June 8 two individuals-one a charter driver and the other a striker-whose later and more credible testimony establishes were nowhere near the location in question. (The charter driver was in New Hampshire, on another charter run ; the striker' was working as a butcher in North Plymouth. Although records of such employment were obviously avail= able General Counsel made no revealed effort to obtain them in rebuttal.) It became apparent to the Trial Examiner during the bearing that the Charging Party was doing its utmost to fabricate a case against certain union leaders, notably Silva and Zoccolante, as a preliminary move to justify refusal to reinstate them when and if they desired to return. Nor is the Trial Examiner, on the basis of evidence in this record, able to find unlawful the claimed harassment of new employee Curley while driving his bus along Route 128 into Boston early In August. Anyone who has driven along this route during the rush hour period of the morning (when Curley testified certain strikers drove around in front of his bus) would find it difficult to determine who is harassing whom in such congested traffic. "There is no evidence that any International representative was in Plymouth at any time during the strike. Even If Albert Anzuonl's testimony be credited, it appears that he saw, on one occasion during the strike, International Representative Fitzgerald talking to some of the strikers on a public sheet In Boston near the'Hotel Essex, from which point the Company pick up passengers. Anzuoni admitted that he could not hear what was said by anyone. Although born and brought up in' this Commonwealth where inferences of guilt have not been uncommon, the Trial Examiner finds no reason here to indulge in the intellectual dissipation ofinferring that' Fitzgerald on this occasion advised, approved, or verbally condoned pickets in Plymouth or elsewhere to;engage in unlawful conduct. AIR MASTER CORPORATION, ETC. 181 Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Division 1230, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 2. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent Division 1230 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 4. The Respondent Amalgamated has not engaged in unfair labor practices in vio- lation of the Act. [Recommended Order omitted from publication.] Air Master Corporation ; Air Master Manufacturing Company, Inc.; Philadelphia Industries, Inc.; Aluminum Press Corpora- tion ; Aluminum Smelting Corporation and United Industrial Workers of North America of the Seafarers International. Union of North America, Atlantic, Gulf, Lakes & Inland Waters District, AFL-CIO Allied Trades and Bulk Plant Workers; Amusement Park Work- ers and Industrial Workers Local 158, Philadelphia and Vi- cinity, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and United Industrial Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf, Lakes & Inland Waters District, AFL-CIO. Cases Nos.. -CA-25/5 and 4-CB- 823. April 23, 1963 DECISION AND ORDER On December 19, 1962, Trial Examiner Harold X. Summers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents have 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 recommended in the at- tached Intermediate Report. Thereafter, the General Counsel and the Respondents filed exceptions and supporting briefs. 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 [Chairman McCulloch and Members Rodgers 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 rec- 142 NLRB No. 23.