United Papermakers & Paperworkers, Local No. 321

UNITED PAPERMAKERS & PAPERWORKERS, LOCAL NO. 321 193 representatives of their own choosing , to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. All our employees are free to become and remain , or to refrain from becoming or remaining, members of Aluminum Workers International Union, AFL-CIO, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the National Labor Relations Act, as amended. GRIFFITH LADDER CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1700 Bankers Security Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania 19107, Telephone 597-7617. United Papermakers and Paperworkers , Local No. 321, AFL-CIO (Philip Carey Mfg. Company) and Richard Brady. Case 9-CB-1253. June 13,1966 DECISION AND ORDER On March 4, 1966, Trial Examiner Herbert Silberman issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Therefore, Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. Pursuant to Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Zagoria]. 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 Trial Examiner's Decision, the exceptions and the brief, and the entire record in this case, and hereby adopts' the findings, conclu- sions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 159 NLRB No. 27. 243-084-67-vol. 159-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on June 1, 1965, a complaint, dated July 27, 1965, was duly issued alleging that the Respondent, United Papermakers and Paperworkers, Local No. 321, AFL-CIO, has engaged in unfair labor practices affecting com- merce within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act. Respondent by its answer denied the material allegations of the complaint. A hearing in this proceeding was held before Trial Examiner Herbert Silberman on October 13, 1965, in Cincinnati, Ohio. Thereafter briefs were duly filed by the General Counsel and by the Respondent. Upon the entire record in the case, and from any observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION The material facts in this proceeding occurred at the premises and involved employees of the Philip Carey Mfg. Company, herein called the Company, which is an Ohio corporation engaged in the manufacture of building materials at its plant in Lockland, Ohio. During the past calendar year, which is representative of the Company's operations, the Company sold and shipped goods and materials produced in said plant and valued in excess of $50,000 to customers located out- side the State of Ohio. I find, and Respondent admits, that the Company is an employer, as defined in Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The central issue in this case is whether the Respondent violated Section 8(b)(1)(A) of the Act when, during a strike and under the circumstances de- scribed below, Richard Brady, an employee of the Company, on May 29, 1965, was prevented from entering the plant premises to report for work. The Respondent and its parent organization, United Papermakers and Paper- workers, AFL-CIO (hereinafter referred to as the International), during all relevant times, were the joint collective-bargaining representatives of the employees of the Company.' On May 3, 1965, the Respondent called a strike against the Company which was authorized and financially supported by the International and which continued until mid-June of the same year. Richard Brady, who had been expelled as a member of the Union about November 1963, prior to the commencement of the strike,' initially supported the strike by remaining away from work. According to Brady, about the third week of May he telephoned Arthur Whitaker, president of the Respondent, and "told him that I was low in funds and since I was not in a position to receive any of the funds that the International was sending to the local, I would have to return to work in order to provide for my family. He in turn told me that he would take it under con- sideration and discuss it with the committee, and he would let me know." About l In its brief Respondent contends that it was "prejudicial and material error" for the Trial Examiner at the hearing to have sustained objections to questions concerning Brady's expulsion from the Union and the circumstances which led to such action. According to Respondent, such inquiry "would have established substantial bias on the part of the Charging Party against Respondent " However, the record before me, taking Into account that Brady had been expelled from the Union, that, although Brady Initially supported the strike, lie testified he received no strike benefits, that Brady testified his financial distress led him to the decision to return to work, that Brady contends that Respondent forcibly prevented him from returning to work, and that Brady filed the unfair labor practice charges in the instant proceeding, without more, contains sufficient evidence to show sub- stantial bias on the part of the Charging Party against Respondent Accordingly, In resolving the questions of credibility herein I have taken into consideration the possibility that Brady's testimony might have been influenced by his bias against and likely hostility toward the Respondent. UNITED PAPERMMIAKERS & PAPERWORKERS, LOCAL NO. 321 195 5 days later, not having heard from Whitaker in the meantime, Brady again tele- phoned Whitaker and informed Whitaker that he was going to return to work. Whitaker's response was, "I'm telling you not to." 2 Thereafter, with the inten- tion of reporting for work, on May 29, 1965, Brady drove to the plant arriving about 6:30 a.m. Brady's testimony as to what occurred as he tried to enter the plant was as follows: Brady turned his car into the driveway of plant gate 2, and as he did so he heard Kenneth Hendershott, a representative of the International, shout, "Don't let him in." However, Brady continued driving into the plant, proceeding at a speed of about 5 miles per hour, when Arvin Mills, one of two pickets patrolling the driveway, jumped in front of the car. Brady immediately applied his brakes but, nevertheless, the car struck Mills. The impact was light and Mills was not injured although Mills fell forward so that he had to brace himself against the hood of the car in order not to slip to the ground. A number of striking employees were in the area and one of them, Richard Poppe,3 opened the car door, reached in, grabbed Brady by the collar and said, "Dick you know better than this, you s.o.b." When Poppe released him, Brady shut and locked his car door. At about the same time, Hendershott stepped toward the car saying, "Drag the s.o.b. out of there." Another striking employee who was standing beside Poppe said, "Let's turn the car over." Arthur Taylor, a member of the Union's negotiating committee, who was on picket duty, at some point during the incident, said, "Don't let him (Brady) lock the door." After he closed the door of his car Brady backed the car out of the driveway and drove home. Brady made no other attempt to go to work during the strike .4 Brady's testimony, in part, was corroborated by George Norton, a salaried employee of the Company who is not in the unit represented by the Respondent and who worked during the strike, and Elmo A. DiSalvo, an assistant to a vice president of the Company. Norton testified that he was in a guard shack (located about 90 feet from gate 2) and noticed the commotion which took place at gate 2. He observed that Poppe had a "straight arm grip" on Brady's shoulder and overheard someone say "to turn the car over" DiSalvo testified that from an overpass, located above the road leading from gate 2 and about 147 feet from the gate, he observed Brady's car turn into the plant property. A group con- sisting of six or eight men collected around the driver's side of the car. DiSalvo saw Hendershott walk to the car. When Hendershott was about 6 feet away from the car, Hendershott called out, "Get the damned car out of there Brady." 5 DiSalvo observed a commotion at the driver's side of the car and heard shouts of "Let's turn the car over." 6 Witnesses called for the Respondent, although agreeing with Brady that his vehicle entered the driveway at a slow rate of speed and that picket Mills moved 'Although Whitaker testified as a witness for the Respondent he did not contradict Brady's testimony concerning their telephone conversation. zAlthough Poppe was a striking employee and from time to time served as a picket, he was not on picket duty at the time of the incident with which this case is concerned. However, Respondent nevertheless is responsible for Poppe 's conduct . Local 612, Interna- tional Brotherhood of Teamsters (Deacon Truck Line, Inc.), 146 NLRB 498, 503. .Brady also testified about a telephone conversation he had with Arthur Taylor after he returned home on May 29, 1965 . It is unnecessary to consider whether during such conversation, as testified to by Brady and denied by Taylor, Taylor made a veiled threat that Brady would suffer harm should he make another attempt to return to work The General Counsel introduced such testimony not to prove an additional violation of the Act on the part of the Respondent (the violations of Section 8(b) (1) (A) of the Act alleged in the complaint are specifically limited to conduct by Respondent's agents at the plant gate and do not include the later telephone conversation between Brady and Taylor) but only "to amplify the incident of May 29, 1965, to show agency at that time ; and to show the meaning of the act that occurred." However, the Respondent in its brief con- cedes that "[ s]ince Arthur Taylor was an authorized picket on gate 2 the morning of May 29, 1965, there is no real problem as to his acting on behalf of Respondent." Thus, the purpose for which such testimony was introduced is no longer in issue. 5 Although there is a variance between testimony of Brady and DiSalvo as tq precisely what Hendershott said, the import of Hendershott's remark, whether Brady's version or DiSalvo's version is accepted , is the same, namely, that 'Brady must not enter the plant. 5 DiSalvo testified he was using an electronic device , which permitted him to hear what was said at the gate despite his distance from the scene. 196 • DECISIONS OF NATIONAL' LABOR RELATIONS BOARD. in front of Brady's,, car (somewhat incredibly Mills and Taylor, who were patrolling the. driveway, both testified, that Brady's car ,was completely unnoticed by them until 'the moment it struck Mills), differed with Brady and his corrobo- rating witnesses, as to what occurred immediately thereafter. Mills testified that he was patrolling gate 2 and did not notice Brady turn into the driveway until Taylor, who was also picketing the gate, shouted, "Look out, he's going to hit you." As Mills turned he was struck and fell forward onto the hood of Brady's car. Mills further testified he heard Poppe ask Brady, "Do you know you hit that man?" Mills denied that anyone said, "Turn the. car. over," or that anybody called Brady ah "s.o.b.," or that Hendershott said, "Brady get that damn car out of there." _ Richard Poppe testified that he was walking across the street toward gate 2 from the northwest comer of the street intersection when he observed Brady's car strike Mills. Poppe hurried to the car, the door came open and Poppe with one hand on the car door and the other hand inside the car at the, back of the seat, said to Brady, "Dick, you hit this man here." Poppe denied that he touched Brady and also denied that anyone said, "Let's turn the car over." Kenneth Hendershott testified that he had no function or duty with regard to the conduct of the picket lines at the Company's plant but that during the strike from time to time he was present at the pickets lines "to protect the interests of the International Union." He further testified that he was on the opposite side of the street from gate 2 when Mills was struck and then immediately ran across the street to the car arriving just behind Poppe. The door of the car opened. Hender- shott specifically testified that Poppe did not open the door. Poppe leaned inside the car and said to Brady, "Dick, you hit one of the pickets." The car door closed and the car was driven away. Hendershott also testified that no one said, "Let's turn the car over" or "Get that damn car out of there Brady" or called Brady an "s.o.b." Arthur Taylor explained that as a member of the Union's negotiating committee, Union President Whitaker had assigned him a regular period of time, or shift, for picket line duty with the responsibility of maintaining order on the picket lines and insuring that the pickets obeyed the instructions which had been issued by Whitaker. According to Taylor's further testimony, at the time in question he and Mills were patrolling the entrance to gate 2, each walking in a direction opposite to the other. Brady's car came upon them suddenly and bumped, into Mill's leg causing Mills to fall against the hood of the automobile. Taylor testified Mills did not jump in front of the car, but "was walking back and forth along the gate." Taylor further testified that because of the commotion and because his concern was for Mills he didn't observe what occurred and did not pay attention to what was said. However, on cross-examination, Taylor testified that he overheard Poppe or Hender- shott say to Brady, "We are on strike ... we ask you to respect the picket line." Respondent correctly points out in its brief that "the credibility of Brady is the key to General Counsel's case." However, contrary to the Respondent, I find that Brady was an honest and reliable witness and I credit Brady's testimony sum- marized above 7 and do not credit the contradictory testimony of Respondent's witnesses. This determination, and perforce my findings of -fact herein, is based almost entirely upon the demeanor of the various witnesses who testified before me. There is little else in the record, apart from the impression the witnesses made upon me, to assist me in resolving the contradictory versions of the 'incident offered by the General Counsel and by the Respondent through ' their respective witnesses. However, the version of the incident which the Respondent would have me believe lacks plausibility. The incident as constructed from the testimony of Respondent's witnesses was as follows: The pickets were not blocking ingress into the plant, merely by chance and inattentiveness Mills walked in front of Brady's car as Brady was proceeding into the driveway. Without any threats being directed at him and without any action being taken by the pickets or the striking employees in the area to indicate that they intended to use force to'prevent.Brady from going into the 7 Brady testified that Jim Sowder said, "Let's turn the car over." Poppe and Render= shott testified Sowder was not present at the time in question. Both Norton and DiSalvo testified that they overheard someone shout, "Let's turn 'the car over." I find, as testi- fied to by Brady, that one of .the strikers made the threat and'so far as attributing re- sponsibility to the Respondent , it is immaterial whether the employee in question was Sowder or another striking employee. I do not credit the denials by witnesses for the Respondent that such remark was made. UNITED PAPERMAKERS & PAPERWORKERS, LOCAL NO: 321 197 plant premises, Brady backed his car out of the driveway, drove away, and' did not again return to work during the strike. Not only is it unlikely that Brady would have been deterred from going to work during the strike had no more happened at the plant gate than the Respondent's witnesses would have me believe, but Union President Whitaker's advice to Brady not to return to work (when Brady told Whitaker that he intended to abandon the `strike) suggests that the Respondent was prepared to, and in Brady's case did, take aggressive action to prevent employees within the bargaining unit from crossing the picket lines. Respondent in its defense also contends that even if the incident took place as described by Brady, responsibility, cannot be attributed to the Union because the guilty participants were not proved to be agents of the .Respondent. The only per- son present at the scene of the incident whom Respondent acknowledges had any authority to act for the Union was Taylor, who did not make any threats to Brady. Respondent contends that although Hendershott was an agent of. the International he was not an agent of the Respondent and any misconduct on his part cannot be attributed to the Respondent. However, on the admitted facts, I find to the con- trary. The International and the Respondent are joint bargaining representatives. In addition, the International authorized the strike and gave financial support thereto. Consequently, -the strike was a joint undertaking by the Respondent and the International and the Respondent and the International were jointly responsible for the conduct of each other and for the conduct of their respective agents. It was not chance or accident that brought Hendershott to the plant gate on May 29 but he was there, according to his own testimony "to protect the interests of the International Union." Therefore, any misconduct on the part of Hendershott is attributable to the International and, because the International and the Respondent were agents of each other, also to the Respondent .8 Contrary to the Respondent, I find that the General Counsel has proved by the necessary preponderance of evidence that the Union unlawfully prevented Brady from going to work on the morning of May 29, 1965. The pickets patrolling the driveway of plant gate 2 caused Brady to bring his car to a halt following a shout by International Representative Hendershott to the persons present in the area, all of whom were striking employees, not to let Brady into the plant. After Hender- shott's shout not to let Brady into the plant, the action of Poppe in opening the car door and grabbing Brady by the collar or shoulder and the employees' threats of "let's turn the car over" were responses to Hendershott's' shouted directions and therefore conduct for which Hendershott, and in turn the Respondent, must be held accountable. These actions, as well as Hendershott's further remark to "drag the s.o.b. out of there" were successful in frightening Brady into leaving the scene and making no further attempt to return to work during the strike. The foregoing incident constituted restraint and coercion by the Respondent upon Brady in the exercise of his statutory right under Section 7 to refrain from supporting the strike and therefore constituted a violation of Section 8 (b) (1) (A) of the Act. Respondent also argues that, even if a violation of the Act occurred, it was an "isolated minor incident" which does not require a remedial` order. I do not agree. Whether a single violation of the Act is so insignificant as will not justify the exer- cise by * the Board of its remedial processes depends ' not upon the fact that it happened only once but upon whether (1) infringement of employees' statutory rights has been trivial and unimportant and (2) whether, under the circumstances demonstrated in the case, the Respondent' is unlikely to repeat such misconduct in the future. As to the first point, Respondent by its intimidatory conduct which operated to prevent Brady from returning to work during the strike effected a sub- stantial impairment of Brady's rights under Section 7. The Board uniformly has considered conduct pursued in violation of the Act which obstructs an employee's right to work as a significant breach of the Act. As'to the second point, although there is no evidence of any second similar transgression on Respondent's part, the circumstances, including Whitaker's prior warning to Brady not to return to work during the strike, suggests that Respondent's misconduct was deliberate rather than accidental or inadvertent. Although the 1965 strike is now over, in my opinion, unless appropriately restrained, the Respondent might well engage in similar mis- conduct should it in the future call another strike against the Company. Accord- ingly, contrary, to the Respondent, I find,that the customary cease-and-desist order should be recommended in this case. , a International Brotherhood of Pulp, Sulphite and Paper Workers , AFL-CIO (Solo Cup Company), 144 NLRB 421, enfd. 337 F 2d 608 (C.A. 4) 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UL'ON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in con- nection with the operations of the Company described in section 1, 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged -in unfair labor practices in viola- tion of Section 8 (b) (1) (A) of the Act, I shall recommend that the Respondent cease and desist therefrom and that the Respondent take certain affirmative action designed to effectuate the policies of the Act.9 Upon the basis of the foregoing findings of fact -and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By threatening Richard Brady with physical violence to prevent him from entering the Company's premises to report for work during a strike called by the Respondent against the Company, Respondent has restrained and coerced employ- ees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(b)(1)(A) thereof 2. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent, United Papermakers and Paperworkers, Local No. 321, AFL- CIO, its officers, representatives, agents, and successors , shall. 1. Cease and desist from: (a) Restraining or coercing employees of Philip Carey Mfg. Company in the exercise of the right to refrain from joining or supporting any strike called by Respondent against the Company by threatening to inflict bodily injury upon such employees to prevent them from entering the Company's premises to report for work. (b) In any like or related manner restraining or coercing employees of Philip Carey Mfg. Company in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post in Respondent's business offices and meeting halls copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for Region 9, shall , after being duly signed by the Respondent's authorized representative , be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days -thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (b) Mail to the Regional Director for Region 9 signed copies of said notice for posting by Philip Carey Mfg. Company, said Company willing, at all places where notices to the Company's employees are customarily posted. 6 Where, as here, a union In violation of Section 8(b) (1) (A) of the Act interferes with an employee's right of ingress to his place of employment , the Board does not customarily Include a provision for backpay as part of its remedial order . International Union of Operating Engineers, Local 513 (Long Construction Company ), 145 NLRB 554. 101n the event that 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" in the notice. In the further event that the Board 's Order is 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" SIGMA CHEMICAL COMPANY 199 (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith." n In the event that 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 UNITED PAPERMAKERS AND PAPERWORKERS, LocAL No. 321, AFL-CIO 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 by threats of violence or other means prevent employees of Philip Carey Mfg. Company from entering the Company's premises to report for work or otherwise restrain or coerce employees of Philip Carey Mfg. Com- pany in the exercise of their right to refrain from joining or supporting any strike we might call against the Company. WE WILL NOT in any like or related manner restrain or coerce employees of Philip Carey Mfg. Company in the exercise of its rights guaranteed them by the National Labor Relations Act, as amended. UNITED PAPERMAKERS AND PAPERWORKERS, LOCAL No. 321, 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 500 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686. Sigma Chemical Company and International Union of District 50, United Mine Workers of America. Case 14-CA-3798. June 13, 1966 DECISION AND ORDER On April 11, 1966, Trial Examiner Boyd Leedom issued his Deci- sion in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. 159 NLRB No. 26.