Int'l Brotherhood of Pulp, Sulphite, Etc.

INT'L BROTHERHOOD OF PULP, SULPHITE, ETC. 421 Flour, Cereal, Soft Drink, and Distillery Workers of America, AFL- CIO" for "The Voice of Teamsters Democratic Organizing Committee."] International Brotherhood of Pulp, Sulphite and Paper Work- ers, AFL-CIO and Solo Cup Company. Case No. 5-CB-517. September 9, 1963 DECISION AND ORDER On May 24, 1963, Trial Examiner George A. Downing 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 attached Intermedi- ate Report. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that these allegations of the complaint be dismissed. Thereafter, the Re- spondent filed exceptions to the Intermediate Report and a brief in support thereof.' 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 Leedom 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 In- termediate Report, the exceptions and the brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. 1. The Trial Examiner found, and we agree, that the Respondent, by restraining and coercing certain employees of Solo Cup Company in connection with the strike against that Company which began on November 1, 1962, violated Section 8(b) (1) (A) of the Act. The conduct which the Trial Examiner found to be unlawful was engaged in by Simms, president of the local formed by the Respond- ent at the company plant, and a member of the negotiating committee. In concluding that the Respondent was responsible for Simms' con- duct, the Trial Examiner reasoned that, since the strike was the re- sult of the breakdown of bargaining negotiations, Simms, as a member of the negotiating committee, was clothed with authority to take action to compel the Company to accede to the Union's demands; and since the acts of restraint and coercion found to be unlawful were performed 1 The Respondent's request for oral argument is hereby denied as the record, the excep- tions, and the brief adequately present the issues and the positions of the parties. 144 NLRB No. 48. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in furtherance of the strike objectives, they were within the scope of his authority, and hence the Respondent was responsible for such conduct. While we agree with the Trial Examiner that the Respond- ent was responsible for Simms' coercive conduct,2 we reach this con- elusion only on the basis of the following considerations.' The Respondent was certified as the bargaining representative of the Company's production and maintenance employees on January 12, 1962. Following the certification, the Respondent assisted employees of the Company in setting up a plant local to represent them pursuant to the above certification, and the Respondent then chartered the local as its Local 845. Simms was elected president of the Local, and a negotiating committee was formed consisting of Van Deusen, Inter- national representative, who was chief negotiator, Brunk, also an International representative, and several representatives of the Local, including Simms. Negotiations with the Company began in Febru- ary 1962, at which time Van Deusen submitted a proposed contract which listed both the International and Local as signatories. There- after the Respondent recommended to the Local that the Company's offer be rejected, and, on the recommendation of the Respondent, members of the local voted to strike. The Local called the strike on November 1. The Respondent indicated in a letter to the Company that the International executive board had voted to support the strike "morally and financially." During the course of the strike, the Inter- national paid strike benefits to the strikers. In these circumstances, we find that the Local and the Respondent International conducted the strike as a joint venture. Thus, the In- ternational was the certified bargaining representative of the Com- pany's employees; negotiations with the Company were conducted by a joint negotiating team of members of both the Respondent and the Local; each was to be a signatory to the proposed contract sub- mitted to the Company; the strike resulted from the inability of the Respondent, as well as the Local, to reach agreement with the Com- pany on a new contract; and while the Local called the strike, the International had recommended strike action, and subsequently sanc- tioned the strike and supported it financially. The Board has held that where two unions conduct a strike as a joint venture, each is responsible for the conduct of the agents of either .4 Since Simms a In view of this finding, we deem it unnecessary to and therefore do not pass upon the Trial Examiner's conclusion that the Respondent is also responsible for the conduct of Reinke, a member of the Local and substitute member of the negotiating committee, who participated together with Simms in certain of the acts of coercion found to be unlawful. 3 In resolving this issue, we have taken official notice of and considered the record and the Board's decision in Solo Cup Company, 142 NLRB 1290, which involved the same parties as herein and in which the Company was found to have violated Section 8(a) (5) in connection with the negotiations preceding the strike involved herein Armstrong Tare ci Rubber Company, 111 NLRB 998, 999. 4 United Steelworkers of America, AFL-CIO, etc (Vulcan-Cincinnati, Inc ), 137 NLRB 95, 98 INT'L BROTHERHOOD OF PULP, SULPHITE, ETC. 423 was the president of the Local, he was authorized to act as agent for the Local to assist in the conduct of the strike .5 As the Trial Ex- aminer found, and we agree, that the coercive conduct engaged in by Simms was in furtherance of the strike, which we have found was a joint venture of the Respondent and the Local, we find that the Respondent was responsible for the conduct of Simms in threaten- ing and coercing employees. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. 5International Longshoremen's and Warehousemen's Union (Sunset Line and Twine Company), 79 NLRB 1487, 1512. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), was heard before Trial Examiner George A. Downing at Baltimore, Maryland, on April 15, 1963, pursuant to due notice. The complaint, issued by the General Counsel of the National Labor Rela- tions Board on a charge dated December 13, 1962, alleged in substance that Re- spondent engaged in unfair labor practices proscribed by Section 8(b) (1) (A) of the Act by intimidating and threatening employees of Solo Cup Company (herein called Solo), with bodily injury or other reprisals if they failed, or because they had failed, to support Respondent's strike. Respondent answered denying the un- fair labor practices. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Solo, a Delaware corporation , with its principal place of business and plant lo- cated in Baltimore, Maryland , is engaged in the manufacture and sale of paper cups. It sells and ships annually from its said plant to customers in States other than Maryland goods valued in excess of $50 ,000. Solo is therefore engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. RESPONDENT AS A LABOR ORGANIZATION Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This case concerns a number of threats which were attributed by four witnesses for the General Counsel mainly to Leroy Simms, president of Respondent's Local, during the course of a strike at Solo's plant, which began on November 1, 1962. Two of the incidents were participated in by Paul Reinke, who sometimes served as a substitute on Respondent's negotiating committee in the absence of other members. Simms and Reinke denied some of the incidents and, while admitting others, denied that the statements which they made were threatening or intimidating. Respond- ent also raised an issue whether the evidence established an agency relationship between Simms and Reinke and Respondent. Alta Mae Hull testified that after being out on strike the first day (November 1), she returned to work on Monday, and that on Tuesday (November 6) Simms and Reinke came to her home around 7 or 8 p.m., and that Simms, in Reinke's presence, asked her not to go in to work; told her that she would benefit if she staved out; and warned her that "a lot of things could happen" to her if she went in. They re- turned to her home around 10 or 10:30 p m., renewed the previous appeals that 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she not work, and repeated the prior warning that if she went in to work "a lot of things could happen" to her. Their attitude on the second visit was a "little madder" or "angrier" than on the first one. Hull testified that she was afraid and frightened by their warnings concerning undisclosed results to flow from going back to work, and that to get rid of them she said she might not go in to work. Hull did work the following day (Wednesday), and that night she was awakened around 1 a.m. by a crash, and found that both of her doors had been broken in by stones thrown in from outside. Hull called the police, replaced the door with a screen door, and went back to bed. Around 4 a.m. she heard a sound as of some- one turning or jiggling the doorknob; she went to her front upstairs bedroom window, and from there she saw Simms standing directly across the narrow street facing toward her. A street light was located some 12 feet from Simms. Hull called the police again, but Simms disappeared. She was unable to sleep the rest of the night because of her nervous condition. Bernard Hyser, who had formerly done electrical maintenance at the plant, testi- fied that about 2 weeks after the start of the strike, Simms met him at a service station away from the plant and asked him if he knew how to interrupt the elec- tric supply for the plant. Hyser testified further that on a number of occasions Simms threatened to have him "worked over," and that on one occasion Simms com- mented that Hyser had a nice car and that "it would be a shame if anything happened to it." On still another occasion when Hyser was approaching the plant in his car, Simms, driving in the opposite direction, ran his car over on Hyser's side of the road, forcing Hyser to stop to avoid a collision, and that Simms laughed as he passed by. Austin Wilkins testified that on the day before the strike Simms, whom he knew to be president of the Union, asked him whether he was going out on strike, and that he explained that he could not afford to do so because of his wife and family. Simms told him that if he did not go out on strike. "[Y]ou know what's going to happen, you know I am going to get you." Wilkins did not go out on strike, and sometime later, at a nearby diner patronized by employees, Simms spoke to him again, asking why he did not go out on strike, and he told Wilkins, "You will be taken care of, I will get you . . . if I have to get you myself . . . . If I have to follow you home, you will be got, I will take care of you." On another occasion Simms spoke to Wilkins when the latter was on the way over to the diner, telling Wilkins he should tell another employee named Gertrude McKnight that he ( Simms ) was going to put a ladder up to her second floor apart- ment and set it on fire. On another occasion Simms told Wilkins that he was "going to get" George Sadler and that the next time he went to get Sadler he "wouldn't miss." On still another occasion when Wilkins and one Freeman were cleaning snow off the railroad tracks entering the plant, Simms, who was driving his station wagon, attempted to run over the two of them. Wilkins testified further that some 2 weeks before the hearing, when he was in the diner, Simms and another man so placed themselves that Wilkins would either have to bump into them or ask them to move out of the way in order to leave the diner. Wilkins went out through another door, but Simms directed the other man (whose wife was an employee of Solo) to come on out, and they followed him. The other man approached and accused Wilkins of having called him abusive names, stating that Simms had so reported. Although Wilkins denied having said any- thing, the other man struck at Wilkins. Wilkins also testified that on another occasion his car was stopped on the rail- road tracks near the plant by another car which was occupied by men who were unknown to him and that one of them stated that Simms had "instructed" him to take care of Wilkins. George Sadler, a nonstriker, had had his house and car shot up during the strike on a Sunday when he was away from home. Sadler testified that thereafter he received a threatening telephone call which made indirect reference to the incident, and that although the caller did not disclose his identity, he recognized the caller's voice as that of Simms. Sadler admitted, however, that he had never talked on the telephone before with Simms and that although he had spoken with Simms in the plant, it was only to say " 'Hi,' or something like that." Against the foregoing testimony, Respondent offered only the testimony of Simms, with partial corroboration from Reinke concerning the visits to Hull's home. In brief, Simms denied making all the threats with which he was charged and denied attempting to run down Wilkins and Hyser in his car. Concerning Hull, Simms denied being present at the time of the 4 a.m. door-rattling incident, and he and Reinke testified that during their two visits on Tuesday night, they engaged only in friendly noncoercive conversations. Though Reinke's testimony would also have INT'L BROTHERHOOD OF PULP, SULPHITE, ETC. 425 corroborated Simms' "alibi" for the 4 a.m. incident if it had occurred on Tuesday night (Wednesday morning), Hull's testimony plainly established that that incident occurred on Wednesday night (Thursday morning), after she had gone through the picket line to work on Wednesday. Furthermore, the General Counsel called, in impeachment of Reinke's testimony, Walter J. Conrad, who testified that he and Reinke were very close friends, that sometime before Thanksgiving Reinke visited him at home and told him of his participation with Simms in certain strike activities, such as the cutting of tires on automobiles, including Conrad's car, in which Reinke, Simms, and Bill Hadin were participants.' In weighing the foregoing evidence, it is to be noted that Respondent made no attempt to corroborate Simms as to a number of incidents where corroborating witnesses were plainly available, except by the partial corroboration of Reinke, whose testimony itself became suspect in the light of Conrad's undenied rebuttal testimony. Under the circumstances, I credit the cumulative testimony of the General Counsel's witnesses, and for that reason I have not attempted to summarize in detail the conflicting versions given by Simms and Reinke. Though Respondent points to the fact that Simms was not convicted in any police court proceeding con- cerning his strike activities, I do not consider that fact to be of persuasive weight in resolving credibility issues in the present proceeding, where the issues, the evidence, and the standards of proof are so different and where the cumulative weight of the opposing testimony so plainly preponderated over that of Simms and Reinke. Though I find, accordingly, that Simms and Reinke engaged in the conduct which was attributed to them by Hull, Hyser, and Wilkins, I do not find that the evidence established that Simms was responsible for the incident when Wilkins' car was stopped by strangers or for the 1 a.m. stoning of Hull's home. I also find that Sadler's testimony will not support a finding that Simms made the telephone call (denied by Simms), since Sadler's testimony showed he had never talked on the telephone with Simms before and that everyone around the plant knew of the shooting up of Sadler's home. There remains the issue of Respondent's responsibility for the conduct complained of. The evidence showed that Simms was president of Respondent's Local among Solo's employees and that he served on Respondent's negotiating committee during the unsuccessful negotiations which preceded the strike. Reinke also served on that committee, though on a substitute basis. The strike, with which the conduct com- plained of was directly connected, was called following a breakdown in the negotia- tions. See Solo Cup Company, 142 NLRB 1290. The activities of Simms and Reinke were in furtherance of Respondent's interests, being obviously calculated to make the strike effective and successful and thereby to induce the Company to enter into an agreement. United Electrical, Radio & Machine Workers of America, Local 914 (American Rubber Products Corporation), 106 NLRB 1372, 1379-1380. Simms, the president, plainly assumed a leading role in the conduct of the strike, personally engaging in numerous acts of unlawful conduct and leading and directing other strikers (e.g. Reinke and Hadin). Cf. International Woodworkers of America (W. T. Smith Lumber Company), 116 NLRB 507, 524. Much of the conduct oc- curred at or in the immediate vicinity of the picket line and the remainder (as at Hull's home) was plainly in furtherance of the objectives of the strike. As I find that the foregoing evidence established that Simms and Reinke were clothed with authority to function as agents on behalf of Respondent in seeking by strike action to compel the Company to accept Respondent's contractual demands, I find that the various acts of restraint and coercion which they committed, as found above, 1 Though Reinke, Simms, and Hadin were present when Conrad testified, Respondent called no one to refute his testimony. After both sides rested , the General Counsel moved to amend the complaint to add a further allegation, based on Conrad's rebuttal testimony, that on various dates in Novem- ber, Reinke and Simms engaged in acts of destruction of property belonging to nonstriking employees Respondent objected on the ground that it was unprepared to answer and to go forward with its defense and that in any event a continuance would be necessary to enable Respondent to investigate the matter raised on rebuttal Following argument, the Trial Examiner suggested as a solution that he receive Conrad's testimony on the credibility of Reinke-for which it was originally offered-and that he deny the motion to amend the complaint. Both the General Counsel and Respondent's counsel stated that they had no objection to such a ruling, which was then made over the objection of the Charging Party's counsel. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in furtherance of the strike objectives were performed within the scope of their authority, and that the Union was responsible for those unlawful acts . W. T. Smith Lumber Company, supra; American Rubber Products Co., supra; United Furniture Workers of America (Colonial Hardwood Flooring Company ), 84 NLRB 563, 564; United Furniture Workers of America, Local 309 (Smith Cabinet Manufacturing Company), 81 NLRB 886, 889. I conclude and find that Respondent restrained and coerced employees in the exer- cise of rights guaranteed in Section 7 of the Act by Simms' threats to Hull , partici- pated in by Reinke, of undisclosed dangers if she failed to support Respondent's strike and by Simms' further intimidation of Hull during the 4 a.m. incident, and by Simms' threats to and intimidation of Hyser and Wilkins because of their failure to support the strike. IV. TAE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases as provided in the Recom- mended Order below, which I find to be necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Upon the basis of the foregoing finding of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act as above found, Respondent engaged in unfair labor practices proscribed by Section 8(b) (1) (A). 2. The aforesaid unfair labor practices are unfair labor practices affecting com- mence within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER International Brotherhood of Pulp , Sulphite and Paper Workers, AFL-CIO, its officers, agents, representatives, successors, and assigns shall: 1. Cease and desist from: (a) Threatening employees of Solo Cup Company with bodily injury, dangers, or other reprisals , or intimidating employees of said Company, because of their failure to support Respondent's strike. (b) In any like or related manner restraining or coercing employees of Solo Cup Company in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action: (a) Post at its offices and meeting halls in Baltimore , Maryland, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by an author- ized representative of Respondent, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (b) Transmit to the Regional Director for the Fifth Region signed copies of said notice for posting by Solo Cup Company, it willing, at all places where notices to Solo's employees are customarily posted (c) Notify the Regional Director for the Fifth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith? 2 In the event that this Recommended Order be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" In the notice In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 81n the event that this Recommended Order be 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." ARIZONA PLASTIC EXTRUSION COMPANY 427 APPENDIX NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF SOLO CUP COMPANY 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 employees of Solo Cup Company with bodily injury danger or other reprisals, if they fail to support our strike. WE WILL NOT intimidate employees of Solo Cup Company because they fail to support our strike. WE WILL NOT in any like or related manner restrain or coerce employees of Solo Cup Company in the exercise of the rights guaranteed by Section 7 of the Act. INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE AND PAPER WORKERS, 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. Arizona Plastic Extrusion Company and International Brother- hood of Pulp, Sulphite and Paper Mill Workers , AFL-CIO. Case No. £8-CA-911. September 9, 1963 DECISION AND ORDER On June 7,1963, Trial Examiner C. W. Whittemore issued his Inter- mediate 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 attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report with a supporting brief, and the General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, exceptions, and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 144 NLRB No. 50.