Service Employees International

10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Service Employees International Union Local 50, AFL-CIO and Evergreen Nursing Home and Rehabilitation Center, Inc. Case 14-CB-2334 July 7, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 29, 1972, Trial Examiner Thomas F. Maher issued the attached Decision in this proceed- ing. Thereafter, General Counsel filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Trial Examiner: Upon a charge filed on October 13, 1971, by Evergreen Nursing Home and Rehabilitation Center, Inc., Charging Party herein, against- Service Employees International Union Local 50, AFL-CIO, Respondent herein, the Regional Director for Region 14 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on November 29, 1971, alleging violations of Section 8(b)(1)(A) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me in St. Louis, Missouri, where all parties were present, represented by counsel, and afforded a full opportunity to present evidence, cross-examine witnesses,' present oral argument, and file briefs. A brief was filed by counsel for the General Counsel on February 2, 1972. 1 Counsel for the General Counsel has filed with me his motion to correct the record in certain minor respects. Without objection the motion is granted and the original transcript has been physically corrected. 2 Bishop and Malco, Inc., 159 NLRB 1159, 1161. 3 In his report on objections in Case 14-RC-6811, issued on November Upon consideration of the entire record, including the brief filed with me, and specifically upon my observation of each witness appearing before me,2 I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE NATURE OF THE EMPLOYER'S BUSINESS Evergreen Nursing Home and Rehabilitation Center, Inc., Charging Party herein, and referred to as Evergreen, is a Missouri corporation with its office and place of business in Creve Coeur, Missouri, where it is engaged in the operation of a nursing home, providing nursing and custodial care, and related services. During the year ending January 31, 1972, in the course and conduct of its business operations it will have derived gross revenue in excess of $100,000 from the operation of its nursing home facility, and will have purchased and caused to be transported and delivered to its Creve Coeur establishment goods and materials valued in excess of $10,000, of which goods and materials valued in excess of $10,000 would have been transported and delivered to the establishment in Creve Coeur, Missouri, directly from points outside the State of Missouri. Upon the foregoing stipulated facts I conclude and find the Charging Party to be an employer within the meaning of Section 2(6) and (7) of the Act. II. THE STATUS OF THE RESPONDENT It is admitted and I accordingly conclude and find Service Employees International Union Local 50, AFL-CIO, Respondent herein, to be a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. Background In early July 1971, it was rumored about the nursing home that "some of the girls were trying to bring the Union in." Thereafter, on July 29, 1971, the Respondent filed with the Regional Director in Case 14-RC-6811 a petition for an election among Evergreen's employees. At the election subsequently held on September 27, 1971, the Union failed of a majority, the tally being 16 in favor and 24 against it. Subsequent to the election a number of employees were terminated and a strike ensued.3 The Respondent thereafter picketed the Evergreen establish- ment. This activity provides the setting for incidents giving rise to the instant proceeding. 2. The activity on the picket line A number of Evergreen's former employees were actively engaged in picketing the nursing home. These included 22, 1971, the Regional Director considered the effect upon the election of the termination of three employees allegedly for discriminatory reasons. Finding this matter to require further investigation a hearing on the subject has since been held and is presently under consideration in another entirely unrelated proceeding, Case 14-CA-6374. 198 NLRB No. 26 SERVICE EMPLOYEES INTERNATIONAL 11 Jackie Suggs, Elizabeth Dixon, Clara Hays, and Jerry Bula. In addition to these and other unidentified individuals, Union Business Representative Spears was also present and participated in the activity. During the course of picketing there occurred six separate incidents involving one or more of these individuals. These, it is alleged, constituted unlawful restraint and coercion of Evergreen's employees. The following are the incidents: (a) On October 8 Evergreen's administrator, Maurice Abrams, observed employee Peggy Wilson as she was approaching the entrance of the building in the company of several other employees. Abrams credibly described picket Jackie Suggs as stepping in front of Wilson to block her passage ; then as Wilson tried to pass her Suggs would shift her position to again block passage, all the while talking to employee Wilson. This interaction continued, Abrams estimated, for about two minutes. Suggs, called as a witness by Respondent, was not questioned concerning this conduct attributed to her. (b) On the same day employee Unice Smith and her mother, employee Dorothy Taylor, were walking up the sidewalk extending from Respondent's parking lot to the entrance of the building and encountered the pickets. In the parking lot they had been met by Business Representa- tive Ann Spears who asked if they would honor the picket line and if they knew about employees having been terminated because they voted for the Union. As they proceeded along the walk they were met by Suggs, Dixon, Elizabeth Hays, and Jerry Bula. As they were about to pass them Unice Smith's path was blocked by Jerry Bula, a heavy-set individual. Smith pushed her out of the way and continued on. Smith's mother, employee Taylor, who witnessed the incident, heard Bula say to her fellow pickets, "She's mighty little to be so strong." As Mrs. Taylor continued on she was asked if she would honor the picket line, but she did not reply. Suggs called to Hays, "What did she say?" When Hays replied, "Nothing," Suggs shouted, "Tell her it's going to be worse tomorrow." 4 (c) Several days later, on or about October 12, in the afternoon, as Administrator Abrams was returning to the nursing home he observed two metal folding chairs placed in one of the driveways leading onto Evergreen's property from the public street. There are actually two driveways, side by side, one leading to the main building, the other parallel to the first, leading directly to the adjacent parking lot. As Abrams was approaching the driveway nearest to the building he stopped his car in the street and directed the pickets to remove the chairs from where they were placed, partially blocking entry through that driveway. Testimony of the other witnesses involved in the chair incident suggests an exercise in triviality: That Suggs and Bula both testified that the chairs were in the driveway, placed there for the comfort of the pickets, one on each side, but that there was ample room for a car to pass between them or to use the adjacent driveway where there were no chairs. When Abrams asked Dixon to remove the chairs she neither replied nor took any action. Abrams accordingly removed them himself. He testified, however, that he did not observe the blocking of any vehicle seeking entry to Evergreen's premises. (d) Later on the same day Abrams received a telephone call from the driver of the truck supplying the nursing home with oxygen. The substance of the call was the driver's earlier confrontation with the pickets and a discussion of future deliveries. Abrams told the driver to consult his own union's business agent and meanwhile leave the tanks of oxygen at Abrams home and pick up the empties at the facility on the following morning. The next morning the driver appeared at the office to pick up the empty tanks, his truck presumably still on the public street. Abrams directed him to proceed onto the driveway to the rear of the building. As the truck was proceeding up the driveway it was stopped by the pickets, including Business Representative Spears. Whether or not any picket at any time stepped in front of the truck to block its further entry onto the premises is disputed. Abrams stated that they did block it, the pickets insisting that they did not. Abrams described how, after he had directed the truck driver to drive to the rear and the driver had returned to his truck to do so, he then observed that picket Suggs had positioned herself in front of the truck. Whereupon Abrams came out of the building and ran to the scene, shouting to the driver as he ran, "Run over them and then come on in," to quote Union Business Representative Spears who had arrived at the truck at the same moment as Abrams. Spears, like the pickets, insists that no one was blocking the truck at any time. Upon my analysis of the testimony it would appear that Suggs was in front of the truck, despite her denial and Spears'. No one denied that Abrams had shouted to the driver to "run over them," and Spears actually quotes him as saying so (supra). It is reasonable to assume, as I do, that there must have been someone in front of the truck who could have been run over. I accordingly credit Abrams' version and find that as he, Spears, and other pickets were talking to the driver Suggs was at one point of time positioned in front of the truck. Spears' conversation with the driver which began by asking him to honor the picket line appears to have resulted in an understanding between the driver and Spears that oxygen supplies could thereafter be delivered to the nursing home. But before this understanding was reached, it is to be noted, upon Abrams credited testimony, that not only was Suggs blocking the truck but that Dixon, standing at the side of the truck next to Abrams , began to jostle him, and Suggs continued "to cuss him." (e) On the following day, October 14, another incident involving delivery trucks occurred at the driveway. This time the pickets, Suggs, Dixon, and Hays, had so parked their cars across the two driveways as to make it difficult if not impossible to pass through the driveway in a car or truck. Photographs introduced into the record demonstrate that while the whole of both driveways was not blocked by the three cars involved, nevertheless to pass through the driveway would present a minor driving problem and possibly the need for driving over the curb. The situation came to Abrams' attention when the driver of the Pepsi Cola truck had just finished making a delivery 4 The foregoing is the credited testimony of Smith and Taylor Neither Suggs nor Bula, called as witnesses by Respondent, were questioned concerning the incident 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and came to him to tell him that the pickets had placed their cars in the driveways and he could not get out. It appears that there was also a milk company truck in the parking lot at the same time, whereupon Abrams went out to the area of the driveways where the cars had been stopped and took photographs of them. At this time the owners of the respective cars got in them and moved them out of the driveways. The trucks left the facility without further incident.5 (f) There is one other series of events involving interaction on the picket line. On or about October 5, as employee Richard L. Maynard was approaching the facility on his way to work he was engaged in a conversation with the three pickets and two other individu- als, one identified at the trial as Union Business Represent- ative Spears, and the other, a male, still unidentified. Spears, pointing to the pickets, asked Maynard to help them because they were out of jobs. He made no reply and continued on. As he did so the unidentified male said, "Yes, you better." The identity of this male individual becomes significant in the consideration of this incident and the one on the following day. Employee Maynard never could identify him, despite searching examination and cross-examination. He did, however, credibly and without denial, testify that the male individual who engaged him in the conversation on the two successive days was, on each occasion, in the company of Union Business Representative Spears and the three pickets, talking with them, and carrying a lettered umbrella as were the other pickets. On the occasion of the unidentified male's conversation with Maynard on each day Maynard credibly testified that Miss Spears was standing beside him and within earshot of whatever he would say. He further testified that Miss Spears made no comment whatever by way of disavowal or approval of any conversation which the individual had with Maynard, including those statements set forth herein. Upon these credited findings I conclude and find that the Respondent, through its representative, Spears, having failed to register any protest or disavowal of the statements and actions in question, may be deemed to have adopted them as its own for all purposes herein.6 On the following day Maynard again passed the same five individuals, including the unidentified male, on his way into work. This time the man said, "That is a might nice looking car you have." To which Maynard replied, "Thank you." He then said to Maynard, "Your car will be nice unless you try and help them." Whereupon Maynard turned and called the man an uncomplimentary name with racial overtones, and walked on, but not before the male grabbed his arm. Maynard countered with a push, and went into work. He had no further experience with the pickets. 5 The foregoing is based upon the credited testimony of Abrams. 6 Custom Chair Mfg. Co., 170 NLRB 454, 458; Tennessee Handbags, Inc., 175 NLRB 136; Teamsters Local 783, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 160 NLRB 1776. 7 See for example Teamsters, Chauffeurs, Helpers and Taxicab Drivers B. Conclusions Cataloged above are six separate incidents, occurring in connection with the picketing of Evergreen's nursing facility which it is alleged constitute restraint and coercion of its employees by the Respondent through its pickets and organizer, Miss Spears. Two questions emerge: First, whether the conduct found was of such a character as to constitute unlawful restraint and/or coercion; and second, whether the Respondent was responsible for the conduct not only of its business representative, Spears, but also in her absence, for the conduct of the pickets. Here, in the course of a number of days of picketing, we have two instances of employees being impeded in their entry to work (Wilson, Smith, and Taylor), one employee being grabbed at by an unidentified picket provoked by being called a "damned nigger," two chairs placed on the sides of one of two driveways, and two trucks briefly impeded from leaving the area and one truck briefly impeded from entering. No one was injured, nothing was thrown, no one was prevented from going to work or leaving, and no vehicle was harmed or excluded from the premises. I am not disposed to equate conduct such as this, either instance by instance, or in its totality, with the sort of conduct that Section 8(b)(1)(A) was designed to prevent. Cases are legion in which the Board and the courts have found to be unlawful restraint and coercion such activities as the throwing of rocks and sticks, assaulting employees and supervisors, damaging of trucks and cars, the effective preventing of entry of both people and vehicles onto company premises, tacks in the road, threats from the pickets, fights, beatings, the massing of pickets, etc.7 But nothing of that sort is manifest here. Indeed the closest to it would be the unidentified picket commenting on employee Maynard's car and what would happen to it if he didn't help the pickets. Certainly neither the momentary presence of Suggs in front of the oxygen tank nor the haphazard efforts to block the driveways with two chairs on one occasion and misparked cars on another merit comparison with more serious and effective examples of vehicle blocking which the Board and the courts have consistently proscribed. Nor can I raise Bula's and Suggs' obstructive capers on the sidewalk to the gravity of blocking the passage. All of these then have the appearance of trivia. Nor do the surrounding circumstances lend any substance to alter this appearance. There was no evidence of bitterness' among the pickets or on the part of the Union's representative. Nor was there evidence of determination to bring the nursing home's operation to a grinding halt or visit recrimination on the working employees if the objections of the pickets otherwise failed. On the contrary, everything in the record suggests a run-of-the mill picket line. Upon all of the foregoing I am not persuaded that Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 184 NLRB No. 10; Bonnaz Embroideries Trucking and Pleating and Allied Crafts Union, Local 66, International Ladies' Garment Workers' Union, AFL-CIO, 134 NLRB 879; Vera Ladies Belt & Novelty Corp., et al., 156 NLRB 291, 294-296. SERVICE EMPLOYEES INTERNATIONAL 13 counsel for the General Counsel has established his proof RECOMMENDATION of restraint and coercion essential to a finding of a violation of Section 8(b)(1)(A) of the Act. I accordingly It is hereby recommended that the complaint in this recommend that the complaint be dismissed in its entirety . matter be dismissed in its entirety.