Int'l Woodworkers of America, Local Union 3-3

912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD like that of an experienced mechanic who directs the work of helpers in the performance of their joint task. In view of the foregoing, and the entire record in this proceeding, we conclude that the chief and assistant marine engineers do not pos- sess the requisite statutory indicia of supervisory authority and we therefore find that they are not supervisors within the meaning of the Act., Accordingly, we find that a unit of all chief and assistant marine engineers at the Employer's operation in Chicago, Illinois, excluding all other employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sections 9(b) and 2(6) and (7) of the Acct. [Text of Direction of Election omitted from publication.] 5 See Graham Transportation Company, 124 NLRB 960. International Woodworkers of America, Local Union 3-3, AFL- CIO and Western Wirebound Box Co. Case No. 36-CB-298. September 30, 1963 DECISION AND ORDER On May 2, 1963, Trial Examiner Martin S. Bennett 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 Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. The Charging Party filed a brief in support of the Intermediate Report. 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 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 entire record in this case, including the Intermediate Report, exceptions, and briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' i The Trial Examiner found that the Respondent's use of a horse on the picket line on or about September 25, 1962, tended to restrain and coerce persons desiring to cross the picket line. The Trial Examiner recommended that the Respondent cease and desist from "using horses as pickets." While agreeing with the Trial Examiner's finding in the circumstances of this case, we deem it appropriate to modify the language of his Recommended Order and appendix to the Intermediate Report to make it clear that what is being proscribed is Respondent's use of horses so as to obstruct persons desiring to enter or leave the plant premises. 144 NLRB No. 85. INT'L WOODWORKERS OF AMERICA, LOCAL UNION 3-3 913 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following modifications : 1. Paragraph 1 of the Recommended Order is amended by deleting the clause "and by using horses as pickets",and substituting therefor "and by using horses so as to block ingress and egress to and from the plant.5) 2. The appendix attached to the Intermediate Report is amended by changing the next to last substantive paragraph thereof, so that it now reads : WE WILL NOT use horses so as to block persons desiring to enter or leave the plant. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was heard before Trial Examiner Martin S. Bennett at Portland, Oregon, on January 29, 30, and 31, and on February 12, 13 , 14, 15, 18, 19, and 20, 1963. The complaint I alleges that on various occasions subsequent to September 1962, Re- spondent, International Woodworkers of America, Local Union 3-3, AFL-CIO, had engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act by various acts, including mass picketing , blocking access to the plant, damaging cars of nonstrikers , and inflicting physical injury upon nonstrikers with hot coffee and otherwise. Oral argument was waived and briefs have been submitted by all parties. Upon the basis of the entire record in the case , and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Western Wirebound Box Co. is an Oregon corporation maintaining a place of business at Portland, Oregon, where it is engaged in the manufacture and sale of wirebound boxes. It annually ships products valued in excess of $100,000 to points outside the State of Oregon. I find that the operations of the Employer affect commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Woodworkers of America, Local Union 3-3, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue; introduction Respondent Union had enjoyed contractual relations with the Employer as the representative of approximately 150 production and maintenance employees for a period of 15 years prior to expiration of the most recent contract on June 1, 1962. Negotiations for a new contract having proven unfruitful, a strike in support of economic demands commenced on June 11 , 1962, and the Employer did not attempt to operate the plant or to replace the strikers for several months. Late in Sep- tember, it decided to resume operations and advertised on or about September 20 for replacements ; actual operations were resumed on September 24. It is clear that the decision by the Employer to operate its plant-and Respond- ent Union does not contend that an employer may not do so-served only to arouse the hostility of the strikers , because picketing operations were immediately expanded ' Issued December 18, 1962, and based upon a charge filed October 25 , 1962, in behalf of Western Wirebound Box Co., the Employer involved herein, by its attorney 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and enhanced. It is in this latter period, attendant upon the resumption of manu- facturing operations, that the conduct complained of by the General Counsel took place. Respondent Union has claimed that the Employer's prestrike bargaining technique was violative of the Act. Needless to say, that issue is not before me and, as stated at the hearing, the processes of the Board are available to Respondent for consideration of such charges. And, in any event, a purported refusal to bargain cannot constitute a defense to allegations as these. In addition, attempts were made by Respondent to litigate alleged provocative conduct by the Charging Party or by replacement workers. Some of this was excluded because of remoteness in time and the lines were restricted to incidents directly related in point of time to those under consideration herein. It may be noted that the record is marked by direct conflicts of testimony and by some instances of prevarication, as well as one instance of the destruction of documents in an effort to prevent their utilization in evidence, unimportant as they probably would have been. Some witnesses for both sides endeavored to present testimony in a light favorable to their respective interests and I believe that the truth probably falls between the respective versions. B. The situs The premises of the Employer are located several miles outside the city of Port- land, Oregon, on the banks of the Willamette River. The only land approach is via Highway 30 from which a short access road turns downhill at a sharp angle toward the plant gate which is approximately one-eighth to one-fourth of a mile distant. This access road is about two cars wide at its mouth near the highway but narrows to one car width as it descends the hill; a broad flat area lies between the base of the hill and the gate. The road also serves as an approach to the premises of an adjacent moorage. The ownership of the road is not entirely clear although it appears that the Employer owns that portion of it between Highway 30 and the intersecting railroad tracks of the Spokane, Portland & Seattle Railway which parallel the highway. The Employer has an easement over the lower portion of the access road between the railroad tracks and the bottom of the hill; in any event, the Employer keeps the full length of the road in repair. Almost all the employees drove or rode to work via this road. The conduct complained of herein took place primarily at two locations. One was the plant gate itself, constituting the entrance to the plant premises through which workers customarily drove their cars and parked in an employee parking lot. This area is sometimes referred to in the record as the bottom of the hill. Just outside the gates stand two temporary buildings erected by Respondent Union and utilized as a meeting place and commissary by strikers. The other location is the point on Highway 30 where the access road departs down the hill. The topography is such that a car would necessarily enter this road at a rate of speed substantially reduced from highway speeds. There is a stop sign at this location, applicable to cars leaving the plant premises. Almost all of the incidents considered herein took place (1) shortly prior to 7:30 in the morning, the hour work started, when striker replacements approached these areas, or (2) in the afternoon, after 4 p.m., when they left the plant premises. In the interest of brevity, some incidents concerning which the testimony is vague or unclear have not been treated. C. Responsibility of Respondent Respondent Union's officials consist of the following: Eugene Tucker was president at the time the strike commenced on June 11, 1962, and was succeeded by Rolland Hansen who was installed on July 28, 1962; at that time Tucker became recording secretary. Elwood Coulter is Respondent's financial secretary and business agent and is the only full-time paid employee other than clericals. Prestrike negotiations, as well as some meetings during the strike, were conducted by a duly designated plant committee consisting of Chairman John Hobizal, June Simpson, and Doris Mann; all three attended each prestrike meeting. This committee had been authorized by the membership to call a strike and they, together with Business Agent Coulter, instructed the membership to quit work on June 11. Respondent attempts to distinguish between the foregoing committee and a strike committee which was set up on June 11. It in effect argues there is a dichotomy between the plant committee and the strike committee, the latter set up to administer certain aspects of the strike and scheduled to pass out of existenoe at the end of the INT'L WOODWORKERS OF AMERICA, LOCAL UNION 3-3 915 strike. But this contention, and the testimony of Business Agent Coulter that the plant committee was not interested in the conduct of the strike or involved therein, does not hold up. The strikers assembled outside the plant on June 11 immediately after the plant committee had called them out on strike, and Business Agent Coulter informed them that they would have to select a strike committee before they left the premises that day .2 Chairman Hobizal of the plant committee personally proceeded to select a four-man strike committee consisting of Chairman Rolland Hansen, Ralph Spencer, and two others, Kristin and Hanson.3 This selection of the committee by Hobizal was then approved by the membership. Another significant move shedding light on Respondent's responsibility herein was made at the time and is reflected in the testimony of Ralph Spencer, a strike committee member who testified herein for Respondent. According to Spencer, it became necessary to obtain help in order to carry out various tasks. Accordingly, the strike committee appointed a subcommittee to the strike committee consisting of Doris Mann and June Simpson; the latter two, as noted, were and are members of the plant committee. Spencer expected the subcommittee in his absence to do any- thing he would have done to take care of what the situation might demand. He testified that the existence of the strike committee was generally known to the membership. The direct participation of the foregoing persons in various incidents is described below. Spencer also placed Organizer Robert Dugger on the strike committee and, in any event, Dugger was on the scene officially. He is employed by Western States Regional Council No. 3, to which Respondent belongs, and on September 10 or 15 was assigned to assist Local 3 in the strike. His services were accepted and utilized without restriction by Local 3. He appeared at the plant gate and surrounding area approximately every other day prior to October 4. On that date, Business Agent Coulter suffered a heart attack and did not appear at the plant until approximately January 1. Dugger thereafter appeared on the scene, as he put it, "Practically every morning" when the employees were "coming into work." It may also be noted that Coulter had participated in several meetings of the strike committee and, as Spencer testified, gave instructions to members of the latter. The president of Respondent, originally Tucker and now Hansen, is automatically on the strike committee, according to Business Agent Coulter, as part of his duty to keep all committees active. Almost all of the incidents set forth below took place when at least one of the foregoing agents of Respondent was on the scene. Nor was there any disavowal of same; either the respective versions differ markedly, there was outright ignorance thereof, or they were denied. While in a few cases it is not entirely clear if these union agents were on the scene, in terms of identification by name, Respondent is held to be responsible for these few incidents because the inference is well warranted that the authenticated examples under the aegis of official leadership set an example dutifully followed in several other cases and indicated to pickets that such conduct would be condoned and approved. See International Woodworkers of America, AFL-CIO (Pioneer Lumber Corporation) 140 NLRB 602, and International Wood- workers of America, AFL-CIO, et al. (W. T. Smith Lumber Company), 116 NLRB 507. To sum up, the duties of the strike committee are limited by the by-laws to handling strike finances whereas the plant committee protects union interests, negotiates contracts, and called the instant strike. Indeed it continued to meet with the company during this strike. Its very chairman selected the strike committee and two members of the plant committee were substitute members of the strike committee. I find that members of both committees as well as the union officials are agents of Respondent and that their conduct is attributable to Respondent. D. Sequence of events ; conclusions Perhaps an introductory note is in order at this point. Section 13 of the Act guarantees employees the right to strike. But it does not guarantee them victory 3 The bylaws of Respondent provide in essence that a strike committee is to be set up to run a commissary in the case of an authorized strike. Such a commissary was later set up outside the plant gate. As Coulter put it, it is necessary to select a strike committee in order to qualify for financial strike assistance from the parent region of Respondent. 3 During July the last two obtained employment elsewhere and left the scene ; the vacancies as such were not filled. 727-083-64-vol. 144-59 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the attainment of their economic objective. One purpose of a strike, as the instant one, is to withhold services and thereby prevent the employer from operating its plant. And it is readily apparent that if an employer is able to recruit permanent replacements for strikers and operate , the strike is for all practical purposes lost and the objective of the strikers unattainable. In the present record, the inference is warranted that precisely this state of affairs inevitably led the leadership of Respondent Union, for, after all, it was their leader- ship and recommendations on strike activity that were being weighed in the arena of the strike, to engage in the conduct described below.4 Respondent has made much of various assigned reasons as purported provocations which resulted in what may be termed "retaliation" by the strikers. These claims by Respondent simply do not with- stand scrutiny. Respondent has devoted much attention herein to the claim that a worker during the strike deliberately exposed himself on the riverbank within the vision of union pickets in a boat. Totally aside from whether or not the incident took place as Respondent's witnesses contend, this can hardly contribute to picket-line incidents at an earlier date. The fact that a worker during the strike jumped out of an automobile and swung a slagdipper or homemade mace can hardly have contributed to a striker throwing gravel or stones through the window of the automobile directly before the employee jumped out of the car. Of no more weight is the fact that the employer hired a guard service to protect its property shortly before September 24 and that on September 24 and 25, but not thereafter, guards peacefully attempted to prevent strikers from driving their cars down the access road maintained by the Employer. This can hardly justify physical retaliation by Respondent. The claim that outsiders were attracted to the scene, or that outraged husbands of strikers performed certain acts, rather than the strikers themselves, means little in view of the fact there is no evidence identifying such persons. Significantly, Business Agent Coulter and Organizer Dugger admitted that they knew relatively few of the employees by sight and could not identify outsiders as such. And while Respondent developed evidence that the president of the Employer allegedly attempted to run down a striker on the access road, a fact which is squarely and fully con- troverted, this lends itself rather to the filing of a charge by Respondent against the Employer. This is totally aside from the fact that President Green testified that the striker, Witten, either through an overabundance of caution or through a sense of guilt resulting from admittedly rocking his automobile as she walked by the stopped vehicle some moments before, jumped aside as Green drove down the narrow one- lane road. Blockage of the Webster Automobile The earliest incident relied upon by the General Counsel was fully litigated and took place on the morning of September 20, or a day or so later, and involved Ronald Webster, an applicant for employment in response to the Employer's advertisement, in the local press. Webster was a reluctant witness for the General Counsel, but his testimony is corroborated by that of President and General Manager Walter Green and Vice President and Superintendent William Oliver of the Employer. Green and Oliver impressed me as honest witnesses who did not endeavor to embellish their testimony for partisan reasons, unlike some other witnesses herein, and their testi- mony as well as that of Webster is credited. As Webster drove to the plant gate, he encountered 15 to 20 persons in the vicinity of the gate. He came to a stop pursuant to a picket's request and his car was rapidly surrounded. Webster could not have proceeded forward without hitting a picket. He decided not to go forward and, in fact, attempted to back up. He was unable to back up his automobile and noted that the rear of his car was elevated and that he was unable to obtain "good traction." After the pickets moved away from his auto- mobile, traction suddenly returned. He specifically testified, and I so find, that women and men were in front of the car after he came to a stop, that they had their hands on the engine hood and front fenders, and that they were trying to prevent his car from going forward. It was then that he decided to retreat and started to back up. It was also then that he dis- covered that his tailpipe had been broken off and was dragging on the ground. Spe- cific identification of participants is presented by Green and Oliver. Green observed the incident from his office window inside the plant gate. He saw the group in front of the car and identified Plant Committee Chairman Hobizal and members * This is not to deprecate the sincerity of workers of long tenure who risked their jobs for what they believed in. This is to point out that their rights under the Act went only so far INT'L WOODWORKERS OF AMERICA, LOCAL UNION 3-3 917 Doris Mann and June Simpson. These two women were not only members of the plant committee but were also members of the strike subcommittee. Oliver specifi- cally identified June Simpson as pushing backwards on the front of the automobile and heard her shout, "Come help and let's hold it." Green also placed striker Winnie Witten on the scene. Witten's testimony con- cerning this incident and her denial of being present was vague, and I credit Green herein, although Witten's presence or absence adds little to the incident. Hobizal, Mann, and Simpson were not called as witnesses. Respondent has adduced evidence that what really happened was that a woman named "Bates" had her leg caught in the front bumper of the car. Bates did not testify, but Strike Committee Chairman Rolland Hansen, who was on the scene, gave his version thereof. He told a lengthy story about a woman being in front of the car, catching her leg in the bumper, and screaming loudly until her foot was extri- cated only after the pickets, including himself, pushed the car back. His attempt at explanation of the leg incident was less than satisfactory and he finally admitted that he did not see her leg in the bumper. He testified that it was her knee that was involved and he ultimately admitted under cross-examination that it was not "clear" to him just how Bates' leg got caught; nor is it to the Trial Examiner. While Busi- ness Agent Coulter initially attempted to corroborate Hansen, his testimony ulti- mately disclosed that he did not witness the incident and that he arrived on the scene only after it was all over. I credit Oliver that no one yelled about an injured leg and that there was no such occurrence I find, as set forth above, that Respondent, under the auspices of its agents Hobizal, Mann, and Simpson, physically blocked entry of an automobile into the plant, shoved it back, raised its rear wheels off the ground in an effort to block entry to the plant, and damaged the car. Mass Picketing and Other Restraint and Coercion on September 24 and 25 On September 24, picketing was expanded to two locations: (1) the point where the access road leaves the highway and (2) the plant gate. At all times, 2 or 3 banner-carrying pickets were at each of these locations and shortly before the 7 30 a.m. starting hour, 20 to 40 pickets were present at the plant gate. Respondent ad- mits responsibility for the conduct of the banner-carrying pickets who were periodi- cally taken from a roster of strikers. In the immediate area were Chairman Hobizal of the plant committee and Simpson and Mann who held dual posts on the plant committee and on the strike subcommittee. Also on the scene were Business Agent Coulter and Vice President and Strike Committee Chairman Hansen. The group at the plant gate so stationed themselves that it was impossible for a worker to walk through them without making physical contact and forcing one's way in. In some instances, doors of automobiles driven by workers attempting en- trance were opened or attempts were made to do so. On many occasions, the group of pickets stood still, shoulder to shoulder. June Simpson and Doris Mann leaned on cars attempting entry to the plant. I find that Respondent blocked entry of cars, as alleged. At the same hour on September 25, there were 20 to 50 "pickets" 5 assembled at the plant gate and the same union officials or representatives were in attendance. Pickets hit and kicked at cars. On both dates, Mann and Simpson not only rested on the hoods of cars but also, by standing in a shoulder-to-shoulder technique, at- tempted to prevent female workers from entering the premises. I find that the entry of personnel was blocked and that cars were struck. Frequently, by the device of standing still in the line of advance of the automobiles, the pickets compelled these automobiles to stop and I find that Respondent thus prevented their entry into the plant.5 5 For the purposes of this case, this term is used to include anyone on the picket line While they may not have been wearing union banners, the fact is that union agents on the scene adopted the services of these persons. Most if not the great majority of them were employees and strikers and the fact is that this was an official picket line maintained by Respondent There is no evidence that Respondent did anything other than to ratify the participation in the picket line of all who were present. I find, therefore, that Respondent is responsible for their conduct s These findings are based upon a composite of the credited testimony of Grcen and Oliver. Coulter admitted being on the scene daily at this time and so did Hansen, al- though the latter two viewed the action quite differently and as being peaceful. Even Recording Secretary and ex-President Tucker placed himself on the scene The testimony of Coulter and Hansen is not credited herein. For one thing, they presented testimony 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Leroy Ward Incident Leroy Ward, reporting for work, approached the access road at the top of the hill between 7:10 and 7.20 a.m. on September 25. He observed approximately 15 or 20 persons in that area. As he slowed down to 2 or 3 miles per hour in order to avoid striking pickets standing in front of his car, a male picket broke off his radio antenna and a female picket scratched the side of his car with a sharp object. Others kicked the car and banged on the hood. He did not identify Hansen as being present when the damage was inflicted, but stated that he saw him "practically every day." Hansen did not recall being present at any such incident , but was on duty every day prior to October 4, at this hour, although he covered this location as well as the lower location at the plant gate. I find that Respondent is responsible for this inci- dent where pickets were following the example set on that day , the previous day, and on September 20 by union officials or representatives . This incident conforms to a pattern already established by union agents as described above on September 20 and 24; it was, therefore , in effect instigated by them and is attributable to Re- spondent under the circumstances . See International Woodworkers of America, AFL-CIO ( W. T. Smith Lumber Co.) 116 NLRB 507, 509. Warren Golladay (1) Warren Golladay, whose name also appears in the record in other spellings, played an aggressive role at the picket line. Chief attention herein was drawn to one incident described below, the truth of which I find to lie between the respective versions. A number of witnesses for Respondent testified that it occurred shortly after 4 p.m. on September 27, or during the latter part of September, as the morning shift left the plant. Carl Smith, in behalf of the General Counsel, placed it on Oc- tober 1. Although the date is relatively unimportant, I find, consistent with the wit- nesses for Respondent, that September 27 is the approximate date. Automobiles leaving the plant at that hour customarily proceeded in single file via the access road to the highway junction where each stopped at the stop sign and then proceeded onto the highway. On this occasion, Smith was a passenger in a car driven by one John Manning. When the car came to a stop at the stop sign, Golladay was in the forefront of a group on the left side of the road and he was approximately 4 feet distant from the driver's window which was open several inches. Golladay quickly threw a handful of rocks and gravel in the direction of the driver. Part of this went through the window which was shattered and broken by the impact. Both Manning and Smith leaped out of the automobile on their respective sides. Golladay immediately ran down the hill in the direction of the plant gate closely pursued by Manning who, after a short chase, abandoned the effort and returned to the automobile. At the same time, Smith walked around the rear of the car and turned toward the group from which Golladay had so abruptly departed. He swung a slagdipper, consisting of a pipe with a lead ball on the end, in a semi- circular swing with the arc coming very close to the group. There was testimony that the ball came within a foot of an observer but other testimony lends itself to the view that Smith was attempting to intimidate the group into not taking further steps. As Manning returned to the car, Smith did likewise and they promptly left the scene. Present at the scene was Organizer Dugger who testified that Golladay had walked to this picketing location with him from the lower level with other strikers. Golladay did not testify nor did Manning who is no longer in the employ of the company. Dugger, Sylvia Barnwell, Winnie Witten, Edith Tice, and Laurence Miller all agreed that Golladay was at this location and that the driver of the automobile chased Golla- day. In their respective versions, they either were silent as to what Golladay did prior to taking off at a rapid rate of speed; claimed that they first noticed Golladay when he started to run; or claimed that they had been watching the automobile rather than Golladay. I have credited Smith as to Golladay's conduct on this occasion and further find that it took place in the presence of Dugger. Smith and Glen Lusk testified that Smith rather than the driver chased Golladay. Lusk, I find, was in error and Smith apparently wished to avoid placing himself with his slagdipper in the neighborhood of the strikers. I find that Respondent is re- sponsible for the conduct of Golladay on this occasion in that it was committed at the official picket line maintained by Respondent and in the presence of an agent concerning incidents on October 1 and 2, treated below, which defies credence. Their versions of a manifestly ugly situation show it as being no more than a pleasant tea party and they conveniently absented themselves from the scene at the same time. Ac- cordingly, their testimony is credited neither here nor there. INT'L WOODWORKERS OF AMERICA , LOCAL UNION 3-3 919' of Respondent who at no time disavowed it. I further find that Golladay's conduct on this record, in running down the hill, was consistent with having committed the offense attributed to him by Smith, and that Manning's conduct in chasing Golladay was consistent with his outrage in having been assaulted. (2) It would seem that Golladay was emboldened by his success on September 27 and by the lack of any reproach by Respondent, let alone disavowal thereof, be- cause he was similarly aggressive at the picket line on October 1. It is to be noted that all three members of the plant committee, two of them on the strike subcom- mittee, were at the two picket lines on October 1 and 2 as were Business Agent Coulter and Organizer Dugger. The latter two placed themselves at these areas and the previous three agents are uncontrovertedly placed on the scence by Plant Super- intendent Oliver as well as by other evidence. Chairman Hansen of the strike committee also placed himself on the picket line on October 1 and 2. The presence of these agents of Respondent is also relied upon in findings made below as to certain subsequent incidents on these dates. Thus, employee Audrey Houston uncontrovertedly testified, and I so find, that on the afternoon of October 1 she drove from the plant at the close of the day shift together with her husband. As their car stopped behind another car at the stop sign at the highway intersection, she observed that Golladay had "a rock in his hand" and that he was "scratching a stopped car" in front of them. Golladay then threw the rock away and Houston personally observed the damage to the automobile. I find that Respondent is responsible here as well. (3) As a related matter, employee Michael Shelby drove his car through the plant gate on the morning of October 1 and felt a thump on the side of his car. He later discovered that it had been scratched. He observed Golladay as among those present at the picket line although not necessarily as the perpetrator of the act. Golladay was also placed on the scene by Maryellen Anderson whose job it was to take down for Respondent license numbers of the cars entering the plant.? Anderson did admit that because of her chore in writing down numbers she could not have seen Golladay kick the car had he done so. I credit the uncontroverted testimony of Shelby therefore, and find that this act did take place. I further find that Respondent is responsible therefor because of the presence of its agents on the scene. (4) Superintendent Oliver uncontrovertedly testified, and I so find, that one morning between October 1 and the end of the month he observed an employee driving Oliver's truck through the plant gate. When the truck passed by Golladay at the picket line, Golladay, holding a shiny object in his hand, proceeded to drag his hand along the right side of the truck. Oliver inspected the truck immediately thereafter and observed that it had been scratched. I find that Respondent is responsible for this conduct at its official picket line. (5) Don George uncontrovertedly testified, and I so find, that he drove his car through the plant gate on the morning of October 3 at approximately 7 a.m. As he did so, the same Golladay dragged a stick with a sharp object affixed to its end along the side of the car. George inspected the car thereafter and discovered a 4-foot long scratch. He testified that no union officials were present, but his testimony, on closer inspection, discloses that he was referring to their absence at the time he made his inspection. In view of Golladay's prior uncensured conduct, the inference is war- ranted that Golladay with ample justification believed that Respondent was giving him carte blanche at the picket line and I find that Respondent is responsible for his conduct. Other Incidents on October 1 (1) Beverly Thomas uncontrovertedly testified about a picket line incident which I find took place on October 1 when Thomas drove to work accompanied by her sister-in-law, Darlene Thomas. She passed through a group of 20 pickets at the top of the hill, including several wearing banners, at approximately 6:40 a.m. and certain damage was done to her car by some of them. The rearview mirror beside the driver was pulled off; the window beside the driver was cracked; a taillight was broken; and the radio antenna was pulled off completely. The record makes amply clear, and I find, that this hour as well as the departure hour at the close of the shift were the times at which union representatives endeavored to be present to greet arriving or departing day-shift workers. I find that Respondent is responsible for this incident. 7 Anderson denied seeing Golladay kick the car. She however manifestly attempted to color testimony in the Struzan incident, described below, and also destroyed her notes so as to prevent their use herein, insignificant as they probably would have been. Hence her testimony is not deemed reliable. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) On the afternoon of October 1, Raymond McCallum left the plant as a passenger in a pickup truck driven by one Langworthy. McCallum uncontrovertedly testified, and I so find, that Langworthy made the required stop at the highway stop sign. As he did so, a picket whom he had seen on the picket line almost daily threw a lighted cigarette through the open window and this struck McCallum just above the eye. The description of the picket as a little man in levis, approximately 5 feet 3 inches tall, tallies closely with the description of Golladay given by other witnesses. Be that as it may, I do not consider this evidence as sufficient identification of Golladay. I do find, however, that Respondent is responsible for this incident for, in addition to other reasons set forth herein, it chose not to police its duly established picket line. (3) Lee Struzan passed through the picket line numbering about 20 at the top of the hill at approximately 7 a.m. on the morning of October 1. Struzan uncon- trovertedly testified, and I so find, that pickets on both sides of the car banged and kicked the car. They also bent her radio antenna in such a manner that it broke off shortly thereafter. I find Respondent responsible here as well. October 2 Picket-line activity on this date was, euphemistically, the most boisterous of the strike. Union representatives were very much on the scene, including Coulter, who admitted that approximately 75 persons were grouped at the top of the hill; Rolland Hansen who testified that he was present every morning when the workers reported for work, that he was in charge of both picket lines and that "it was up to them [the pickets] to conduct themselves in a proper manner"; Dugger, who has been described by a guard as directing the picketing; and Tucker, who chose to stay in his automobile 1,000 feet distant because of a cold. The plant committee was also on the scene as Superintendent Oliver uncontrovertedly testifieds (1) Beverly Thomas testified, and I find, that she drove her car to work on the morning of October 2 and was following a car driven by her sister-in-law, Connie Thomas. Both cars were apparently proceeding at a very slow pace through the pickets in front of the plant gate. At this point, Beverly Thomas saw coffee thrown through the driver's window at Connie Thomas by one of the pickets. The coffee struck the latter on the face and shoulder. Connie Thomas immediately jumped from her vehicle and struck the picket who is elsewhere identified as June Simpson. This testimony is corroborated by that of Leroy Ward, who, I find, testified about the same incident and observed the driver leap out of the car with a stained outer garment. The testimony of Thomas is further corroborated by Lt. George Wallick of the guard service employed by the Company during the strike. Wallick impressed me as an honest witness who did not attempt to exaggerate what he saw. He heard that the incident had taken place and that the two women had fought. He testified, and I find, that he asked June Simpson if she was the one involved. Simpson replied that "somebody had bumped her arm and coffee went in the car window." He further identified Simpson as present in the hearing room.9 Maryellen Anderson placed herself on the scene 8 feet distant from Simpson and claimed that immediately after the first car stopped she saw Simpson and Organizer Dugger chatting in front of the picket shack with steaming cups of coffee in their hands. She put Thomas in the role of the aggressor in that Thomas allegedly knocked Simpson's coffee from her hand. Dogger also testified that he and Simpson were drinking coffee, that Thompson jumped out of her car and accused Simpson of throwing the coffee, and that Simpson could not have thrown coffee because there was still coffee in the cup. Simpson then denied doing so, and the two girls got into a fight. Anderson, as noted, was primarily busy in copying the license numbers of auto- mobiles and the unreliability of her testimony has been previously noted. The fact that some coffee remained in Simpson's cup does not necessarily mean that some 8 As the Charging Party points out, all of the incidents, according to Respondent's testi- mony, occurred in a period of several minutes when, fortuitously, Coulter went down the road to inspect an accident and Dugger went down the road to get some cigarettes from his automobile. While I find this to be more than a natural coincidence and accordingly do not credit their testimony, the fact still remains that other union agents were on the scene. g The testimony of Wallick is substantially unchallenged, although there is a conflict between him and Witten as to her presence on an occasion described below. In any event, no adverse findings are m ade predicated upon Witten's presence on that occasion. INT'L WOODWORKERS OF AMERICA, LOCAL UNION 3-3 921 of it had not been previously thrown. I do not credit Dugger herein. I find that Simpson did throw the coffee at Thomas through the car window and further that Respondent is responsible therefor. (2) Lieutenant Walhck testified, and I find, that 20 or 25 pickets, including 2 with banners, were present at the top of the hill near the highway entrance on the morning of October 2. As cars passed from the highway to the access road, various pickets began to inflict damage to automobiles. Wallick saw Chairman John Hobizal of the plant committee kick off a rearview mirror on the side of a car and also tear off windshield wipers on "different cars." Still others tore off windshield wipers and one picket broke off an antenna. Doris Mann scratched the side of a car for its entire length with an object in her hand. Hobizal and others spat into car windows as the cars passed. Wallick placed Business Agent Coulter as standing at the side of the road on this morning, although not participating personally in this conduct. He was 8 or 10 feet distant from members of the group who would convene with him from time to time. Banner-carrying pickets were among the crowd, although Wallick did not recall any of them as inflicting the damage. This is the occasion, as noted, when both Coulter and Dugger allegedly absented themselves, the former to inspect an accident and the latter to get cigarettes. While Coulter on his return discovered a rearview mirror lying in the street, he merely saw fit to tell the pickets to stay on the curb, and his testimony is silent as to any instructions concerning refraining from violence. I find that Respondent is responsible for the conduct of the pickets on this occasion, as described above. (3) At approximately 7:20 a.m. on October 2, Virgil Bowman approached the access road very slowly because a picket was walking in front of his car. Banner- carrying pickets, as well as other pickets, were on the scene. By coincidence, a newspaper photographer was present and took a picture of the action. As luck would have it, this picture, which is in evidence, shows Chairman Hobizal in the act of breaking off the radio antenna from the left rear fender of Bowman's car. At the same time, another broke the right windshield wiper and still another broke the antenna on the right rear fender. The picture shows two banner-carrying pickets on the scene, one addressing the driver as Hobizal in the rear breaks off the antenna. The other banner-carrying picket is in close proximity to the right rear fender and June Simpson, whose titles are elsewhere set forth, is standing nearby.'° Needless to say, Respondent is responsible for all this damage done under the very leadership of its designated officials. (4) On the morning of October 2, Audrey Houston encountered approximately 20 pickets at the same location. As she approached, it was necessary to stop her car in order to avoid striking pickets in her line of travel. As the car stopped, the pickets kicked at the car and struck it with rocks in their hands. A male picket tore off a chrome strip from a rear door. For reasons set forth above, Respondent is responsible for this incident. (5) Much testimony was developed concerning conduct allegedly leveled at Don George and Gilbert Kerns, who worked during the strike. In part, at least, it appears that their identities have been confused by witnesses. Be that as it may, George testified that Witten threw coffee at him on October 2 as he drove through the plant gate, that he stopped his car and got out and grabbed her, and that he did not shake her. Witten testified that she was not present on October 2 because she went for her unemployment compensation check. In this respect, I credit her. On the other hand, Business Agent Coulter originally placed this incident as occur- ring on September 27 immediately before he came on the scene. He later changed his testimony and placed it on October 4, although his calendar entry places it on September 27. Paradoxically, he claimed that in October he could not have made the entry on his September calendar. Nevertheless, as this incident would at best be cumulative, no findings adverse to Respondent are predicated thereon. As for Kerns, approximately on October 4, he started to drive through the plant gate one morning. On his version, he saw Witten run over to get a piece of wood and concluded that she intended to strike his automobile with it; other evidence dis- closes that the pickets kept a supply of firewood beside the road in close proximity 10 These identifications from the picture were made by Superintendent Oliver whose testi- mony I credit here as elsewhere. He withstood a searching cross-examination and I find him to be a forthright and reliable witness. His testimony is completely unchallenged by any union official, or the named participants, except in one minor aspect. He identified one Viola Tetz as among those in the picture, but Tetz testified that she was home that day. It is noted that the person so identified is not prominent in the picture. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the picket shack and also, it may be noted, close to passing automobiles. Kerns denied grabbing and shaking Witten. Witten placed this incident on October 4 and claimed that Kerns accused her of throwing a rock. She and other union witnesses all testified that Kerns proceeded to shake her at length. Here, as well, no findings adverse to Respondent are predi- cated upon this incident; nor as indicated above, could this incident, on Respondent's version, have constituted provocation for prior union conduct on October 1 and 2. (6) One incident at the plant gate involved damage done to a car in which Carl Smith was a passenger. As the automobile approached the gate at approxi- mately 7:15 a.m., there were at least 15 pickets present including 2 wearing banners. Two or three of the group stepped in front of the car, this compelling the car to come to almost a complete stop lest it strike the pickets At this point, one of the pickets snapped off the antenna of the automobile. Here as well, because of the admitted presence of union agents, and the utter absence of any evidence that this conduct was disavowed, I find that Respondent has ratified it and is responsible therefor. The "Depantsing" Incident This incident took place in mid-afternoon, November 5, 1962. A truckdriver brought a load of material to the plant but was apparently unwilling to drive through the picket line at the gate. Accordingly, John Verbout, a shipping clerk, drove his car out some distance to a point between the plant gate and the adjacent moorage whose restroom facilities were used by the pickets. Verbout and the truckdriver exchanged vehicles at this point and Verbout drove the truck into the plant. The truck was unloaded and Verbout drove back to the original transfer point where he parked directly beside his own car. The vehicles were approximately 10 feet apart with the truck facing away from the plant and the automobile facing the plant. They were so positioned that Verbout merely had to alight from the driver's seat of the truck and cross directly to the driver's seat of his own car. Verbout alighted from the truck, handed certain documents to the truck- driver who busied himself about the truck, and attempted to enter his own car. At this point, events developed rapidly. It is undisputed that Witten and June Simpson, the latter a member of the plant committee and of the strike subcommittee, were involved. I also find that Verbout observed Simpson approaching the vehicles from the direction of the plant gate whence he had just come. Verbout testified, and I find, that as he started to get into his Ford sedan, Witten appeared on the scene. Simpson made the first move and grabbed Verbout by the upper front of his one-piece coverall; in the process she used sufficient force so as to tear off two or three buttons from this garment as well as three buttons from the shirt he wore underneath. The starter of his car being on the left side of the dash- board, Verbout attempted with his left hand to start the car and almost immediately found his left arm grasped by Witten who, together with Simpson, attempted to pull Verbout from the automobile. Both women were operating side by side next to the driver's seat during this melee. At this point, it is readily apparent that Verbout was hardly in a position to display any respect for womanhood, as such. He found himself in the predicament of hav- ing the two women pulling on his clothes and body in an effort to drag him out of his automobile. In self-defense, he grasped the steering wheel with his right hand. As he would attempt to turn the starter key with his left hand, the women would belabor him in that area and pull his hand away. Two or three women, unidentified, utilized the opportunity to open the rear door of the car and throw in gravel. Still another woman pounded on the roof with a board. This commotion ultimately attracted the attention of a guard, Soderquist, who hastened to the scene from the plant and broke it up by ordering the women to desist. They complied and Verbout was permitted to drive his car back into the plant. These findings are based upon the testimony of Verbout which I credit in full. Simpson, as noted, did not testify. Witten attempted to portray this as a quasi- humorous occasion, but I find that it was not. She testified that as she passed be- tween the two vehicles on her way to the restroom in the moorage, she criticized Verbout for working in a plant where his mother-in-law was picketing; this was the fact, although the record does not disclose on what terms Verbout and his mother- in-law were. At this point, Verbout allegedly shoved the car door at Witten and she returned the compliment. Simpson happened to pass at this moment on her return from the restroom, and de- cided to take a part in the controversy. According to Witten, an unidentified voice in the background, but apparently not that of Simpson, cried, "Let's depants him." INT'L WOODWORKERS OF AMERICA, LOCAL UNION 3-3 923 It was pursuant to this suggestion that the two women allegedly grabbed Verbout fore and aft on his coveralls. Witten claimed that Verbout grabbed a hammer on the front seat with his right hand and struck Simpson with it on the hand. Because of this the two women desisted and walked away. Witten is substantially contradicted by Soderquist whose testimony corroborates that of Verbout. Soderquist was some 40 feet away inside the plant when his at- tention was attracted to the commotion; he observed one woman on the right side of the car beating on the roof with a board 3 or 4 feet long. He also saw Witten and another woman "beating" the driver. Soderquist erroneously identified Simpson as the woman with the board rather than as the woman who was collaborating on the other side of the car with Witten, whereas Verbout and Witten placed Simpson in the company of Witten. It is significant that none of the women said anything to Soderquist about the "depantsing" theory or about being struck by the hammer. In view of the foregoing, I think it far more likely that Verbout, a man of slight build, was hanging onto the steering wheel for dear life rather than engaging in the conduct attributed to him by Witten. Considering all the foregoing factors, I have credited the testimony of Verbout as to what took place on this occasion. I further find that Simpson's participation, if not inspiration and direction, renders Respondent responsible therefor. The Lady on Horseback One other incident involved striker Anna Hales who happens to own a show horse which at the time under consideration herein was approximately 131/2 years old. On or about the morning of September 25, Hales brought her horse to the picket line. It happened to be her turn to do picket duty and wear a banner at the plant gate. She proceded to put the banner on the horse, mounted the animal, and then rode her horse in the picket line from 7 until 8:30 or 9 a.m. at which time she re- turned the horse to its trailer. There is no evidence that this met with the disapproval of any union officials and I find that it was ratified and approved. Hales guided the horse between the cars, as she testified, but also rode directly across the path of oncoming cars. I believe and find that this type of conduct would tend to restrain and coerce em- ployees. Needless to say, the use of horses by mounted policemen and their effec- tiveness in various situations is too well known to require comment. I deem it un- necessary to decide whether the use of the horse would constitute mass picketing per se, but I do believe that the picket line is no place for a heavy animal as this. Entirely aside from concepts of free speech as presented by the banner on the horse, the presence of the animal under the guidance of an agent of Respondent would reasonably tend to restrain and coerce persons desiring to cross the picket line. I so find. I find that in the respects heretofore noted, Respondent has engaged in conduct violative of Section 8(b) (1) (A) of the Act. See District 65, Retail, Wholesale & Department Store Union, AFL-CIO (Eastern Camera & Photo Corp.), 141 NLRB 991. Other Alleged Conduct (1) Much testimony was adduced concerning a hole in the roadway in front of the plant gate. Apparently this hole was about 1 foot in diameter but it grew as time went on. The thrust of the General Counsel's case was that agents of Re- spondent placed nails in the hole and obscured them with a covering of dirt and gravel. Thus, unsuspecting drivers would pass over the spot and incur tire damage. Witnesses for Respondent in turn claimed that President Green of the Employer was wont to deliberately drive over this area after a rainstorm in an effort to splash the pickets. In return, evidence was adduced that there was very little rainfall dur- ing the critical period. While some nails were found in the hole on one occasion by the Employer, I find the evidence insufficient to attribute responsibility to Re- spondent therefor. Accordingly, no adverse findings are predicated upon this. (2) There was also much evidence concerning nails and tacks causing flat tires on the cars driven by workers during the strike. It is clear that much damage of this nature was done. There is also evidence that certain workers, after incurring this damage, retaliated by tossing nails at strikers. Respondent has contended that the initial nails were distributed by agents of the Employer. The logic of this escapes me I would assume that a struck employer who chooses to operate his plant is interested in getting people into the plant to work rather than to filling stations for tire repairs, hardly a morale builder. While the in- ference may be warranted that the strikers did spread nails liberally in areas where they would be most effective, I do not believe that the record will support a finding that Respondent may be held responsible for this conduct, and accordingly no ad- verse findings are predicated thereon. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Guard Sidney Whitman was employed by the guard service which protects the Employer's plant. At 10 or 10:30 a.m. on November 7, Organizer Dugger, ac- companied by Golladay, came to the guardhouse which is located inside the plant gate. Dugger explained that a large rock had been dropped on the picket shack from an overhead bridge the previous evening and that it had gone through the roof. A rock purporting to be the original was later brought into the hearing room and it was indeed substantial in size. Dugger then stated that "The next scab that walks across that picket line, they would work him over [so] that we would have to pack him back over." I believe that this statement was made by Dugger in anger caused by the rock incident of the previous evening which I find did occur. While the presence of Golladay whose previous offensive conduct may tend to cast the incident in a more ominous light, the fact is that Golladay's ventures took place only in crowds. Moreover, Dugger, in Whitman's eyes, was admittedly not the "kind" to carry out the threat. I therefore do not predicate any adverse findings upon this incident. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the Employer, set forth 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 thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it 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 make the following: CONCLUSIONS OF LAW 1. International Woodworkers of America, Local Union 3-3, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Western Wirebound Box Co. is an employer within the meaning of Section 2 (2) of the Act. 3. By restraining and coercing employees of Western Wirebound Box Co. in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 4. The foresaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that International Woodworkers of America, Local Union 3-3, AFL- CIO, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from restraining or coercing the employees of Western Wire- bound Box Co., or applicants for employment, by engaging in mass picketing of plant entrances; by preventing automobiles or personnel from entering the plant; by striking at or damaging property or automobiles; by attacking or inflicting injury on em- ployees; by throwing coffee and spitting at employees; and by using horses as pickets, 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 at its offices, meeting hall, and picket shack copies of the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by an official rep- resentative of Respondent, be posted by it immediately upon receipt thereof and main- tained for a period of 60 consecutive days in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken ' 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, this notice shall be further amended by substituting for the words "A Decision and Order" the words "A Decree of the United States Court of Alppeals, Enforcing an Order." LOCAL 7, INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC. 925 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Nineteenth Region signed copies of the aforementioned notice for posting by Western Wirebound Box Co., the latter willing, in places where notices to its employee are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after signature by Respondent as indicated, be forthwith returned to the Regional Director for such posting. (c) Notify the Regional Director for the Nineteenth Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith.12 12 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 MEMBERS OF INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL UNION 3-3, AFL-CIO, TO OUR OFFICERS, REPRESENTATIVES, AND AGENTS, AND TO ALL EMPLOYEES OF WESTERN WIREBOUND BOX CO. 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 Relations Act, as amended, we hereby notify you that: WE WILL NOT engage in mass picketing of entrances to Western Wirebound Box Co. WE WILL NOT prevent personnel or automobiles from entering the plant. WE WILL NOT strike at or damage automobiles or property of employees. WE WILL NOT attack or inflict injuries upon employees. WE WILL NOT throw coffee or spit at employees. WE WILL NOT use horses as pickets. WE WILL NOT in any like or related manner restrain or coerce employees of Western Wirebound Box Co. in the exercise of the rights guaranteed by Section 7 of the Act, as amended, including the right to refrain from any or all concerted activities. INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL UNION 3-3, 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, 327 Logan Building, Seattle, Washington, Telephone No. Mutual 2-3300, extension 553, if they have any question concerning this notice or compliance with its provisions. Local 7, International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO [Waghorne-Brown Com- pany] and John C. Lydon and John P. Cradock. Case No. 1-CB-793(1-2). September 30, 1963 DECISION AND ORDER On March 14, 1963, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor 144 NLRB No. 90.