Cleveland Local No. 24-P, Lithographers

CLEVELAND LOCAL NO. 24-P, LITHOGRAPHERS 949 to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as authorized in Section 8(a)(3) of the Act JOHN HAMMONDS AND Roy WINEGARDNER, PARTNERS, D/B/A 77 OPERATING COMPANY, D/B/A HOLIDAY INN RESTAURANT, Employer. Dated------------------- BY------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building , 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3627. Cleveland Local No. 24-P, Lithographers and Photoengravers International Union , AFL-CIO and Akron Engraving Com- pany, Inc. Case 8-CB-1000. September 7,1966 DECISION AND ORDER On June 6, 1966, Trial Examiner Melvin Pollack issued his Deci- sion in the above-entitled proceeding, finding that the 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 Deci- sion. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed an answer- ing brief to the Respondent's exceptions and brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board hag delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. In the heading of the Appendix to the Recommended Order, insert the words "CLEVELAND LOCAL 24-P, LITIIOGRAPI-TERS AND PI-IOTO- ENGRAVERS INTERNATIONAL UNION AFL-CIO," immediately after the phrase "To ALL MEMBERS or", and before the phrase beginning "AND TO ALL EMPLOYEES OF".] 160 NLRB No. 77. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE Upon a charge filed on January 3, 1966, by Akron Engraving Company, Inc., herein called the Company, a complaint was issued on February 10, 1966, alleging that Cleveland Local No. 24-P, Lithographers and Photoengravers International Union, AFL-CIO, herein called the Respondent or the Union, had violated Section 8(b) (1) (A) of the National Labor Relations Act by coercively following Paul Keener and members of his family, and by threatening Keener with physical harm or economic reprisal , in order to discourage Keener from crossing a picket line maintained by Respondent before the Company's plant. A hearing was held before Trial Examiner Melvin Pollack at Akron, Ohio, on April 13 and 14, 1966 . At the conclusion of the hearing, the General Counsel argued orally upon the record but filed no brief. Counsel for the Respondent waived oral argument but thereafter filed a brief . Upon the entire record in this case and my observation of the demeanor of the witnesses as they testified , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is an Ohio corporation engaged at Akron, Ohio, in the manufac- ture of letter press printing plates. During a 12-month period ending January 31, 1966, the Company sold and shipped across State lines products valued at over $11,000. During the same period, it sold and shipped within the State products valued at over $60,000 to the Goodyear Tire and Rubber Company, Akron, Ohio, and the Standard Oil Co., Cleveland, Ohio. I find, contrary to the Union' s contention, that the Company is engaged in commerce within the meaning of the Act, and that the assertion of jurisdiction is warranted. Siemons Mailing Service, 122 NLRB 81. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events The Union called a strike against the Company on November 11, 1965, in sup- port of its bargaining demands, and began picketing the Company's premises on that date. The Company shares a building with Akron Litho Plate Company, which produces offset printing plates, and with Rohrich Lithography Company, which is engaged in offset printing. Eugene Rohrich, Robert Rohrich, and Clarence Rohrich, are brothers and presidents of the Company, Akron Litho Plate Company, and Akron Lithography Company, respectively, Robert Rohrich is also vice president of the Company. On Saturday, December 4, 1965, Paul Keener applied for work with Akron Litho Plate Company as a lithographic cameraman and was hired by Robert Rohrich to begin work on Monday, December 13. The hiring interview ended about noon. Keener left the building and crossed a street to return to his car in the Company's parking lot. Vice President Jack Chappell and Secretary-Treasurer Charles Thomson of the Union, who had been talking to the pickets, crossed over to the parking lot and Chappell engaged Keener in conversation. According to Chappell, he told Keener he understood that Keener was applying for a job, inquired whether Keener was "aware of the fact that we are having a strike ," and asked him not to let "these people . . . use you." Keener testified that Chappell told him that there were "pickets up," that if he wanted to work he would have to "face the consequences," and that he "could get hurt" if he crossed the picket line. Keener replied that he was working for Akron Litho Plate and that the strike against the Company meant nothing to him. The conver- sation between Chappell ended after a few minutes when Eugene and Robert Roh- rich came over to the parking lot and ordered Chappell and Thomson to leave. While these four men were talking , Keener got into his car, where his wife and mother had been waiting , and drove away. CLEVELAND LOCAL NO. 24-P, LITHOGRAPHERS 951 Keener reported for work on Monday, December 13.1 Two days later, Keener was followed after work by Earl Hogan, a member of the Union's executive board, and one or two other men. The men came up to Keener after he had walked for a few blocks. Hogan introduced himself and engaged Keener in conversation. Dur- ing the conversation, Keener identified himself as a cameraman with Akron Litho Plate Company. Keener testified that Hogan told him that the Union was on strike, explained the advantages of the Union to him, but ended the conversation by saying that he "could get hurt" if he continued to cross the picket line, that "they were just the fellows to do it." Hogan testified that he explained to Keener that he was making the Union's position "more difficult" by making negatives for the Com- pany and doing, the work of strikers, but that Keener said that he had to look out for himself and asked questions about the Union's "dues structure and so on." Hogan denied threatening Keener and said that he assured Keener, who showed "a little animosity" at first, that he was "in no way threatening you. I just want to talk to you and explain our position and find out about your position." Keener received his first paycheck from Akron Litho Plate on Monday, Decem- ber 20. When Keener left the plant at noon, a union picket followed him to the bank and, also to a restaurant where Keener had his lunch. The Company made arrangements with the Akron police "to keep an eye" on Keener when he left work at 4:30 p.m. on the following Wednesday or Thursday. Keener carried a manila envelope for identification. According to Keener, just as he walked out of the building, Vice President Chappell came up beside him, accompanied by Hogan and another man, Bancroft, and said to him: "I thought you had been warned not to go to work here. What are you looking for, trouble? You keep on insisting on getting your back broken." Keener allegedly replied, "Your strike doesn't affect me. I work for Akron Litho.," and walked toward the Y.M.C.A. where he was staying temporarily. Chappell walked alongside Keener with Hogan and Bancroft a few steps behind. Hogan took a snapshot of Keener as they waited for a traffic light at an intersection. Keener testified that he remarked, "Just a minute I will pose for you," and, Chappel wanted to know "if I was a wise guy. What did I want to do-get my back broken." At the Y.M.C.A., according to Keener, he told Chappell that he was not going to heed his warning. Chappell allegedly called Keener a hillbilly and, upon Keener's retort that he was no hillbilly, remarked, "You want to get your back broke, don't you." Chappell also said, according to Keener, that "if you can't heed a warning, what about your wife and family . . . you know, you got to think about them too . Just remember you have been warned. You can get hurt." Keener walked into the Y.M.C.A. A police officer asked Keener if he had had any trouble, and when Keener answered no, said, "We will keep an eye on you" and left. Robert Rohrich came to the Y.M.C.A. and gave Keener telephone numbers to call if anything happened. Chappell testified that he walked along with Keener to the Y.M.C.A. accom- panied by Hogan and Bancroft.2 He said Keener was "very aggressive," that Keener said "you may be 6 inches taller than I am but you don't worry me," and that "I am sure glad I am upwind and not downwind from the smell coming from you." Chappell said he lost his temper at this last remark and told Keener not to "get smart with me. I will break your back." Chappell said he also told Keener that he was acting like a hillbilly and that Keener got very angry, clenched his fist, and retorted, "Don't call me a hillbilly, I was born and raised in Ashland." Chappell allegedly told Keener that he was "being used," that it was a serious thing crossing the picket line and "taking a job away from a man." He denied making any. threats against Keener or his family. Keener testified that his wife and mother picked him up after work on Thursday, December 30, to go shopping. As Keener drove away, he noticed: that Chappell and Thomson were driving behind him with Thomson at the wheel. He made several turns and also shifted lanes but Thomson continued to follow him. After 15 or 20 minutes of driving, Keener drove back to the alley beside the Company's i Keener photographed "copies" sent to the camera room and developed negatives which were used by Akron Litho Plate to make offset plates or by the Company to make letter- press plates. 2 Chappell, placed the episode on Friday, December 17. As Keener was paid on Decem- ber 20, and showed Chappell his pay slip on the evening in question, I find that the episode occurred on December 22 or 23. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant. He walked into the building and told Eugene and Robert Rohrich that the Union was following him and he "couldn't shake them." The brothers went out and used their car to block Thomson's car, which Thomson had parked at a res- taurant across the street from the plant. Keener, his wife, and his mother drove away. Thomson testified that he was on his way to strike headquarters that evening, that his being behind the Keener car for about 91/z blocks was unintentional, and that he returned to the plant because Chappell said to him, "I think Mr. Keener is going back to the plant," and asked Thomson to drive him back to the plant. Thomson did not go on to strike headquarters. On Saturday, January 8, Keener moved from Ashland to Akron. The following Monday or Tuesday, Keener drove home from work and was followed all the way by Thomson and union member Jerome Clifford. Keener drove into his driveway and Thomson parked across the street. Keener testified that he took out a pencil and a piece of paper, crossed the street, and took down the license number of Thomson's car. As he did so, Thomson rolled down his window and said, "You better get that number right. That will be one of the last numbers you will get. You are not going to be around that much longer." Thomson testified he followed Keener home "to talk to him and explain the Union situation and the strike and ask for [his] cooperation." He said he gave Keener his license number when he saw Keener with pencil and paper. He denied making any threats to Keener. B. Concluding findings The complaint does not allege and, as such additional findings would not affect the recommended order, I find it unnecessary to determine whether Vice President Chappell threatened Keener at the Company's parking lot on December 4 or whether Executive Board Member Hogan threatened Keener when he followed him from work on December 15 or 16. I find, however, that Keener indicated on these occasions that he had made his mind up to work during the strike. Keener told Chappell on December 4 that the Union's strike against the Company meant noth- ing to him, and also rejected Hogan's appeal to him after he reported for work not to be a "strikeworker," saying he had to look out for himself. The Union's sub- sequent following of Keener was clearly intended to instill fear in him that he might suffer physical violence or economic reprisal if he continued to work behind the Union's picket line. On December 22 or 23, Hogan took a picture of Keener as he followed Keener from work along with Chappell and another union man. As this action is unexplained on the record, an inference is warranted that its purpose was to intimidate Keener. A similar inference is warranted by the car episodes of December 30 and January 10. I reject Secretary-Treasurer Thomson's testimony that he followed Keener, his wife, and his mother "accidentally" on December 30 while on his way to the union hall, and that he followed Keener home on Janu- ary 10 just to talk to him- about the strike and get his "cooperation." Thomson admittedly followed Keener back to the Company's premises on December 30 without going on to the union hall and admittedly had no conversation with Keener about the strike on January 10. In view of this background of coercive following, I credit Keener's testimony that Vice President Chappell on December 22 made several threats to.him for crossing the picket line, including a threat to break his back, and reject Chappell's testimony that he made this threat only because Keener said he "smelled." 3 I similarly credit Keener's testimony that Thomson told him on January 10 he would not be around "much longer." Thomson's testimony that he did nothing on this occasion but "voluntarily" give Keener his automobile license number is totally inconsistent with his assertion that he followed Keener home to talk to him about the strike and get his "cooperation." As the Board' has stated, "the interdependent guarantees of Section 8 (b) (1) (A) and Section 7 of the Act include the protected right of employees to work in the a The record indicates that Keener walked directly to the Y.M.C.A. on this occasion, that he stopped only for traffic lights, and that'he showed anger only when called a hillbilly by Chappell. Keener's conduct warrants no inference that he wanted to "bait" Chappell, or the other union men following close behind, into assaulting him. ° CLEVELAND LOCAL NO. 24-P, LITHOGRAPHERS 953 face of a strike." 4 Sunset Line and Twine Company, 79 NLRB 1487. I therefore find that the Union, by the conduct of its representatives Chappell, Thomson, and Hogan in coercively following and threatening Keener with physical harm for work- ing during the strike against the Company, violated Section 8 (b) (1) (A) of the Act .5 CONCLUSIONS OF LAW 1. By coercively following Paul Keener and, threatening him with physical harm if he crossed the Union's picket line at the ompany's plant, the Union engaged in an unfair labor practice within the meaning of Section 8 (b) (1) (A) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act: THE REMEDY, It having been found that the Union has engaged in an unfair labor practice within the meaning of Section 8(h) (1) (A) of the Act, my Recommended Order will require that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings and conclusions and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, there is hereby issued the following: RECOMMENDED ORDER The Respondent, Cleveland Local No. 24-P, Lithographers and Photoengravers International Union, AFL-CIO, its officers, agents, representatives, shall: 1. Cease and desist from: (a) Coercively, following or threatening with physical violence any employee working for the Company or the employees of any other company doing business with the Company during a strike by Respondent against the Company. (b) In any like or related manner restraining or coercing employees in the exer- cise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: _ (a) Post at the Union's main office and hall in Akron, Ohio, copies of the attached notice marked "Appendix." G Copies of said notice, to be furnished by the Regional Director for Region 8, after being duly signed by an official representative of the Union, shall be posted by it immediately upon receipt thereof, and be main- tained 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 Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director of Region 8, signed copies of the notice for posting by Akron Engraving Company, Inc., said employer being willing, at all locations where notices to its employees are customarily posted. 4 As Section 2 (3) of the Act provides that the term "employee" Includes "any employee" and is not limited to the employees of a particular employer, I find no merit in the Union's contention that Keener cannot be considered an employee for purposes of Section 8(b) (1) (A) because the record does not show that Akron Litho Plate is engaged in interstate commerce. As Keener fits the definition of "employee," he Is entitled to the protection of Section 8(b) (1) (A) in the dispute between the Company and the Union. See Wood, Wire and Metal Lathers' International Union, Local 238, AFL-CIO, 156 NLRB 997. 5In March 1966, the Summit County Court of Common Pleas denied the Company's re- quest for in injunction or other equitable relief based , in part, on allegations that the Union had followed and threatened Keener. The Board Is not thereby precluded from find- ing that the conduct of the Union constituted a violation of the Act . United Steelworkers of America, AFL-CIO, 137 NLRB 95, 96. e In 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 be enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify said Regional Director , in writing, within 20 days from receipt of this Decision, what steps have been taken to comply therewith.? 71n 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 AND TO ALL EMPLOYEES OF AKRON ENGRAVING COMPANY Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended , we hereby notify you that: WE WILL NOT coercively follow or threaten with physical violence the em- ployees of Akron Engraving Company or the employees of any other employer if they continue to work for the Company or such other employers who do business with the Company during our strike against it. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. CLEVELAND LOCAL No. 24-P LITHOGRAPHERS AND PHOTO- ENGRAVERS INTERNATIONAL UNION, 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 pro- visions, they may communicate directly with the Board's Regional Office. 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465. Ozella Harrington, d/b/a Kimbrough Trucking Co. and Team- sters, Chauffeurs, Warehousemen & Helpers of America, Local 310, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 28- CA-19293. . September 7, 1966 DECISION AND ORDER On July 1, 1966, Trial Examiner James R. Hemingway issued his Decision 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 Trial Examiner's Deci- sion. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision, and a supporting brief, limited to the Section 8(a) (5) and derivative Section 8(a) (1) findings. 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]. 160 NLRB No. 79.