Metal Polishers, Buffers, Intl. Local 67

METAL POLISHERS, BUFFERS, INTL. LOCAL 67 335 Metal Polishers, Buffers, Platers and Helpers Interna- tional Union, Local No. 67 and Alco-Cad Nickel Plating Corporation. Case 21-CB-4138 November 17, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On April 21, 1972, Trial Examiner David E. Davis issued the attached Decision in this proceeding. 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 as modified herein. 1. The Trial Examiner found, and we agree, that the evidence does not warrant a finding that the Union was responsible for the puncture of employee Williams' tire and was thereby in violation of Section 8(b)(1)(A) of the Act. 2. The Trial Examiner found, and we agree, that the evidence that four labor pool employees were followed by a group of pickets does not warrant a finding that the incident constituted a violation of Section 8(b)(l)(A) of the Act.2 3. The Trial Examiner found that the refusal by Vela, admittedly an agent of Respondent within the meaning of Section 2(13) of the Act, to allow employee Smith to open the Company's plant was not violative of Section 8(b)(1)(A) of the Act. We do not agree. It is clear upon the record, through the uncontra- dicted and undemed testimony of Smith, that in addition to telling Smith he could not open the plant, Vela physically prevented Smith from doing so by blocking the door so it could not be opened.3 There is absolutely no evidence to support the Trial Examiner's finding that Smith used Vela's presence on the morning of October 18, 1971, as an excuse to avoid opening the plant that morning. Rather, the record shows that Smith arrived a few minutes before 5 a.m. with the specific intention of opening the i The General Counsel has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3) We have carefully examined the record and find no basis for reversing his findings. plant, that he attempted to open the door but was stopped from doing so by Vela who had placed himself in front of the door, and that, upon being denied access to the plant, Smith returned home after calling his wife and instructing her to call the plant superintendent and report the incident. Further, from September 1 to October 20, October 18 was the only day Smith failed to open the plant. Thus, it is clear that, by Vela's informing Smith that he could not open the plant and by his physically blocking the door and thereby preventing Smith from doing so, Vela's words and conduct restrained and coerced Smith, denying him access to the plant. We therefore find that by this conduct of its agent Respondent violated Section 8(b)(1)(A) of the Act. 4. The Trial Examiner further found that Vela's presence on the freeway as both Smith and employee Olivares drove home was merely a coincidence and was not coercive following in violation of the Act. We disagree. The evidence, undenied and uncontradicted, shows that Smith left work at 4:30 p.m. on October 19, 1971, and that as he drove home on the Santa Monica Freeway, Union Agent Vela drove first behind him and then in front of him. Further, the undenied testimony of employee Olivares establishes that on that same afternoon, between 5 and 5:30, only 30 minutes to an hour after Vela was on the Santa Monica Freeway with Smith, Vela entered the Golden State Freeway and began driving in front of Olivares and pumping his brakes for 2 or 3 minutes, although there was no car within 200 or 300 feet in front of him. Vela never testified, nor did any witness offer any explanation for such activity. Under these circumstances, Vela's having begun a pattern of restraining nonstriking employees by blocking Smith's entrance to the plant on the previous day, we are unable to accept the Trial Examiner's conclusion that, on the second day of the strike, Vela's presence on the Santa Monica Freeway near employee Smith and on the Golden State Freeway near employee Olivares only 30 minutes to an hour later was a mere coincidence. In light of the uncontradicted and undenied testimony of both Smith and Olivares, therefore, we find that the conduct of Union Agent Vela clearly conveyed an implied threat of bodily harm and constituted 2 No exception was taken to this finding. 3 The Trial Examiner described this incident as happening "when he [Smith ] opened the door" This account does not reflect the transcript correction, made pursuant to General Counsel's unopposed motion, to this portion of the transcript which now reads "when he [Smith ] came to open the door." 200 NLRB No. 51 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercive following in violation of Section 8(b)(1)(A) of the Act.4 5. The Trial Examiner also found that neither Paud nor Vela nor any other picket blocked ingress to the plant in such a manner as to warrant a finding that there was a violation of Section 8(b)(1)(A). We do not agree. On the morning of October 19, when employees Olivares and Molina arrived at the plant, according to Olivares' undenied and uncontradicted testimo- ny,5 Union Agent Vela stood in front of Olvvares' car, denying them ingress to the plant. When Vela did not move after 2 or 3 minutes, Olivares drove away.6 Further, Cline, an officer of the Employer, testified that during the strike his car was stopped by pickets, in the presence of Union Agents Vela and Paud, approximately four different times as he transported labor pool employees to work, and that he witnessed the pickets preventing employee Henry from entering the gate on one such occasion.? Although Union Agent Paud denied that such activity took place while he was present,8 or at his suggestion or advice, the Trial Examiner did not discredit Cline's testimo- ny and, in fact, acknowledged that "automobiles were stopped momentarily from entering the gates... ." He concluded, however, that "a delay of one to five minutes under peaceful circumstances hardly constitutes blocking or barring ingress so as to constitute a violation of the Act." Such a construc- tion is at variance with established Board law.9 Section 7 of the Act guarantees to all employees the right to refrain from participation in union activities, including strikes. Clearly, by physically blocking access to the plant of cars in which nonstriking employees and other persons were seeking to enter the gates, Respondent has interfered with the nonstriking employees in their exercise of these rights.10 Accordingly, we find that Respondent, through the conduct of Union Agent Vela and other 4 Sunset Line and Twine Company, 79 NLRB 1487, 1505. 5 While this testimony was not denied by Vela or any witness, the Trial Examiner chose to accept Olivares' previously sworn statement as a more accurate account of the picketing In any event, it is uncontradicted and undenied that Olivares was forced to drive away from the gate because, according to his prior statement, credited and relied on by the Trial Examiner, "[p ]icketers were walking back and forth in front of [his ] car and [he] could not drive into the yard." 6 Olivares' testimony is corroborated by employee Taylor whom the Trial Examiner refused to credit because he had not filed a prior statement with the Board and because Taylor estimated that Vela blocked Olivares' car for a period of 5 to 10 minutes , a difference of 2 to 7 minutes from Olivares' estimate While finding it unnecessary to rely on Taylor's testimony, we disavow the Trial Examiner's reference to Taylor's failure to furnish the Board with a statement prior to testifying as having any significance whatsoever in deternunmg his credibility 7 This portion of Cline's testimony is corroborated by employee Henry The Trial Examiner refused to give any weight to Henry's testimony because his account "was adduced . chiefly through leading and suggestive questions " Upon reviewing the record of such testimony , we fail pickets in his presence, blocked ingress to the plant in such a manner as to violate Section 8 (b)(1)(A) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, we shall order that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 3 from the Trial Examiner's Decision and insert Conclusions of Law 3 and 4, as follows: 3. By refusing to allow employee Smith to open the plant on the morning of October 18, 1971, by following employees' automobiles, and by blocking ingress to the plant of cars of nonstriking employees, Respondent restrained and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(b)(1)(A). 4. The aforesaid acts are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Metal Polishers, Buffers, Platers and Helpers Inter- national Union, Local No. 67, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees of Alco-Cad Nickel Plating Corporation by physically blocking access to the doors of the plant, by blocking access to the plant of cars in which nonstriking employees and to ascertain the necessity for such a remark ; however, we find it unnecessary to rely on the testimony of Henry in order to find that both Cline and Henry were blocked from entering the plant by pickets B Paud admitted that he was absent from the picket activities at various times and could, in fact, verify his presence on only one of the days during which these blocking incidents were alleged by Cline to have taken place Neither Vela nor any witness testified regarding these other incidents, leaving Clme',s testimony in that regard undenied and uncontradicted. 9 Lithographers and Photoengravers International Union, AFL-CIO, CLC, and Memphis Local 223, Lithographers and Photoengravers International Union, AFL-CIO, CLC (Holiday Press, A Division of Holiday Inns, Inc.), 193 NLRB No. 9 io The absence of physical violence does not lessen the restraining effect of Respondent's conduct Here, as in Sunset Line and Twine Company, supra at 1506. [t]he car drivers were faced with the choice of running down the pickets, at the risk of inflicting serious injury, or driving away. This interposition of passive force to prevent employees from going to work is, we believe, a form of restraint proscribed by Section 8(bXIXA). METAL POLISHERS, BUFFERS, INTL. LOCAL 67 337 other persons are seeking to enter the plant gates, and by engaging in coercive following of cars of nonstriking employees. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at conspicuous places in the business offices, meeting halls, and other places where it customarily posts notices to its members copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by the Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to 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) Sign and mail sufficient copies of said notice to the Regional Director for Region 21 for posting by Alco-Cad Nickel Plating Corporation, if willing, in all places where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of Section 8(b)(1)(A) of the Act not specifically found herein. 11 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER, OF THE NATIONAL LABOR RELATIONS BOARD" shall read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." guarantees to all employees the right to refrain from participating in union activities, including strikes. WE WILL NOT restrain and coerce the employ- ees of Alco-Cad Nickel Plating Corporation in the exercise of their Section 7 rights. More specifically: WE WILL NOT block ingress to the plant by refusing to allow nonstriking employees to open plant doors. WE WILL NOT physically block access to the plant of cars in which nonstriking employees and other persons are seeking to enter the plant gates. WE WILL NOT follow the automobiles of nonstriking employees. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act. METAL POLISHERS, BUFFERS, PLATERS AND HELPERS INTERNATIONAL UNION, LOCAL No. 67 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200. TRIAL EXAMINER'S DECISION APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and to keep our word about what we say in this notice. Section 7 of the National Labor Relations Act STATEMENT OF THE CASE DAVID E. DAVIS, Trial Examiner : This case was tried before me at Los Angeles, California, on March 1, 1972, pursuant to a charge filed on October 22, 19711 and a complaint issued on December 2, amended on January 10, 1972, by the General Counsel of the National Labor Relations Board, which alleged that Metal Polishers, Buffers, Platers and Helpers International Union Local No. 67, herein called Respondent Union or Union, violated Section 8(b)(1)(A) of the National Labor Rela- tions Act, herein called the Act, by engaging in certain unlawful acts against employees of Alco-Cad Nickel Plating Corporation, herein called Alco-Cad or the 1 The original charge was served on Respondent Union on October 22, 1971 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charging Party, during the course of a strike commencing about October 18, 1971.2 Respondent Union in its answer admitted certain allegations of the complaint as amended but denied that it had engaged in any unfair labor practices. Upon consideration of the entire record3 and of the briefs filed by the General Counsel and Respondent Union, I make the following: FINDINGS OF FACT 1. THE BUSINESS INVOLVED It was stipulated4 and I find that: 1. At all times material herein, Alco-Cad Nickel Plating Corporation, herein called Alco-Cad, has been and is now a corporation with its principal place of business in Los Angeles, California, where it engaged in job shop electro- plating. 2. Alco-Cad, in the normal course and conduct of its business operations, described in paragraph 1 above, annually purchases goods, materials, and supplies valued in excess of $50,000 from suppliers in the State of California, which suppliers have received the said goods, materials, and supplies directly from points outside the State of California. 3. Alco-Cad is, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. Accordingly, I find that assertion of jurisdiction herein is warranted in order to effectuate the purposes of the Act: II. THE LABOR ORGANIZATION INVOLVED It is alleged, admitted, and I find that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Findings It is admitted that Quentin Rex Paud, herein also referred to as Rex or Rex Paud, was at all times material herein a business representative of Respondent Union and an agent within the meaning of Section 2(13) of the Act. It is likewise alleged and admitted that employees of Alco- Cad, under the direction and guidance of Respondent Union acting through Paud and Ruben Vela engaged in a strike and picketed Alco-Cad's premises in Los Angeles, California, from October 18 to January 7, 1972.5 B. The Evidence Elmon W. Smith testified that he has been employed at Alco-Cad for 12 years as a maintenance man; that part of his duties include opening the plant every morning about 5 a.m.; that on October 18 when he opened the plant door he 2 Hereafter all dates will refer to the year 1971 unless otherwise specified 3 The General Counsel filed an unopposed motion to correct certain portions of the transcript of the hearing. The motion is granted. 4 G. C. Exh. 2. was met by Paud and Vela and told that they were calling a strike that morning; that Paud added, "I would like for you not to open up this morning because were calling a strike. We can't get a contract." Paud offered Smith a picket sign which Smith declined to take and then Paud suggested that Smith should call Mr. Fitzgerald.6 Smith testified that he then made a move to open the door but brushed against Vela who was standing in front of the door; "so I touched him but he didn't seem to move, so I let it go at that." Smith also said that Vela said he couldn't open up that morning, he then testified that he said, "You mean I can't open up if I want to open up? He said, `No.' " I do not find this incident violative of Section 8(b)(1)(A) as alleged in the complaint. I believe Smith was searching for an excuse to justify his failure to open on that morning and exagerated the impact of Vela's words and physical presence: The entire incident seems barren of any coercive conduct by Paud and Vela. Smith then proceeded to his car, drove to a public telephone where he called his wife and told her to call the plant superintendent, a Mr. Pappas, to inform him what had happened and to tell him that Smith was on his way home. Pappas called Smith at his home about 6:30 a.m. and as a result Smith returned to the plant between 7 to 7:30 a.m. He found the plant open and worked the rest of the day. About 4:30 p.m. on the next day, October 19, when Smith left the plant to drive home, Vela entered the Santa Monica freeway behind Smith, passed Smith and then drove in front of Smith. When Smith got to the Harbor freeway, he turned off to go home and from that point lost sight of Vela. Smith referred to this incident as the time when Vela followed him. The General Counsel contends that this constituted coercion following in violation of Section 8(b)(1)(A). I disagree. On the basis of the evidence, I conclude that Vela's presence on the freeway was a mere coincidence. A coercive interpretation of this incident is unwarranted, speculative, and imaginery. Smith, in further testimony, told about an incident occurring in October when he saw Jacob Cline 7 drive into the shipping yard of Alco-Cad and stopped because 8 to 10 pickets were circulating around his car. He heard Cline blowing his horn and that it took Cline 2 or 3 minutes to get through.8 Leroy Williams testified that he has been employed by Alco-Cad for 14 years as a truckdriver. Williams described two incidents, the first, some time in November, when pickets walked in front of Cline's automobile and prevent- ed him from entering for about 1 minute. The second involved an incident when Williams was driving into the plant premises and saw "one of the pickets make a move toward my left front tire and said Leroy you have a flat." When Williams drove inside he heard air escaping from the tire. When he examined the tire he saw that it was punctured. Williams testified that he examined his tires every morning and that he had noticed no defects in the tires that morning. 5 It was stipulated that picketing ceased as stated above. 6 Alco-Cad's president 7 Vice president and sales manager of Alco-Cad. 8 This incident will be further discussed, infra. METAL POLISHERS, BUFFERS, INTL. LOCAL 67 339 I find no violation of the Act in the two incidents testified to by Williams. A delay of 1 minute by those engaged in picketing at an entrance to the plant hardly constitutes "blocking" so as to bar ingress within the meaning of Section 8(b)(l)(A): The evidence adduced with regard to the tire incident proves that there was a flat tire on Williams' truck resulting from unknown causes. I consider the evidence concerning the tire incident flimsy, tenuous, and speculative.9 It hardly warrants the conclu- sion that a union picket caused the tire puncture. Ramon Olivares employed by Alco-Cad for the past 16 years as a lathing machine operator was scheduled to work on the night shift on October 18. He was called in the morning by Pappas and told that there was a strike and to report at once. When he came to work and saw the picket line, he refused to cross it. He then went home and called Pappas who told him to pick up Jesus D. Molina, another employee, the next day and report at 7 a.m. When he reported with Molina the next day, Vela stood in front of his automobile for about 2 or 3 minutes. As a result Olivares drove back to Molina's house and called Pappas. Pappas instructed him to proceed to a certain filling station where Pappas picked them up and took them into the plant. At the conclusion of the workday about 5 p.m., Pappas drove Olivares and Molina back to the filling station. Olivares in driving home on the Golden State freeway saw Vela enter it and drive alongside. After a quarter of a mile Vela passed Ohvares and drove in front of him pumping his brakes for a distance of two or three 300 feet. Olivares was a "little scared" and left the freeway at Main Street rather than his normal exit at Broadway. Following this incident, Olivares did not drive to work but was picked up by Pappas for the next 2 or 3 weeks. On cross-examination the following statement given to a Board agent on November 2 by Olivares was read to him: Picketers were walking back and forth in front of my car and I could not drive into the yard. The strikers were on the sidewalk. None of the strikers stopped in front of my car. None of the strikers said anything to me at that time. None of the strikers made any gestures to me at this time. Olivares insisted that the statement was incorrect and that Vela did stand in front of the car. I do not credit Olivares' repudiation of his sworn statement. The statement appears to have been careful- ly prepared with precise details soon after the event and at a time Olivares' memory was fresh. I accept the sworn statement as a more accurate account of the picketing. Accordingly, I find that neither Vela nor any other picket blocked Olivares' ingress into the plant in such a manner as to warrant a finding that there was a violation of Section 8(b) (1)(A). I likewise find no violation in the alleged following of Olivares' automo- bile. It is clear that Olivares was apprehensive because he was working during the strike and seeing Vela on the freeway near him led him to conclude he was being followed. I arrive at a contrary conclusion. It is common knowledge that the particular freeway in 9 The testimony of Frank Nepi, a service station operator, to the effect that in his expert opinion the tire was damaged by an ice pick or some other sharp object contributes nothing as to how the tire was damaged or who damaged it. 10 Labor pool employees are casual employees recruited and sent by a question is highly congested during the evening rush hours and certainly a vehicle in front of another is required to apply brakes quite frequently. The factual evidence of "following" is meagre, inconclusive and unconvincing. I find no following in violation of Section 8(b)(1)(A). In arriving at the foregoing conclu- sions I have considered the testimonial account of Molina who was Olivares' passenger on the above occasion and testified to both incidents. Molina did not impress me as a credible witness especially when he testified that no vehicle was in front of Vela at that time on the freeway. This statement is unbelievable to anyone who has had the slightest exposure on this freeway during the rush hours or at any other time. The testimonial account of Lonnie R. Henry, apparently a casual employee employed during the first 2 weeks of the strike, was adduced by the General Counsel chiefly through leading and suggestive questions. I do not give any weight to Henry's testimony except as indicated hereafter. Elwin H. Taylor testified that he was employed as a security officer by Alco-Cad from October 19 to January 1972; that on one occasion, October 19, while stationed in the yard near the parking area he saw a picket step in front of Olivares' automobile; that he walked out and told the picket to move; that the picket refused to move; that he picked up his night stick; that when the picket again refused to move he asked the manager to call the police; that the car was stopped from 5 to 10 minutes; that on the following Saturday about 4 p.m. he observed four labor pool employees 10 being followed for a distance of four blocks by about six pickets. Taylor drove up to the employees and told them he would take them where they were going; the employees entered Taylor's auto. Taylor did not furnish the Board with a prior statement. His evidence concerning the length of time Vela stood in front of Olivares' automobile conflicts with Olivares' estimate of 2 minutes and Molina's estimate of 1 to 2 minutes. I am not persuaded that I should reverse my finding above concerning the Olivares' incident because of Taylor's testimony. Accordingly, I reaffirm my previous finding that the Olivares' incident does not warrant a finding that ingress to the plant was blocked so as to constitute a violation of Section 8(b)(1)(A). I further conclude that Taylor's evidence and conclusion that four labor pool employees were followed by a group of pickets does not warrant a finding that the incident constituted a violation of Section 8(b)(1)(A) as there is no evidence of any violence or any threats of violence. Jacob M. Cline testified that he was vice-president and sales manager of Alco-Cad; that during the strike he was stopped about four times when he attempted to enter the plant premises; that the first time this occurred was on November 1 about 7 a.m. when pickets were standing in front of his automobile; that he honked his horn ii and after 3-5 minutes the pickets moved enabling him to enter the premises; that the pickets were employees and included Vela and Paud; that on November 2 about 7 a.m. several labor broker who contracts with the employer and pays the employees himself 11 Cline testified that the police authorities told him not to honk his horn again under similar circumstances. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pickets at the same gate sat on the hood of his automobile when he attempted to enter; that Paud and Vela were present at the time; that again he was thereby delayed from 3 to 5 minutes from entering the plant premises; that on November 3 at about the same time and place Paud sat in front of his car and delayed him for 3 to 5 minutes; that other pickets and Vela were at the side of his vehicle at the time ; that after he went through the gate, he noticed that Henry's automobile which was directly behind him was being held up; that he went to Henry and asked if he needed help; that Henry said, "No." Cline testified that his car was stopped on December on numerous occasions by pickets standing in front of his automobile when he attempted to enter the plant premises. In defense, Respondent Union called Paud who testified that he was the business representative of the Union; that he never advised or suggested that striking employees who were picketing should block people from going on to the company premises; that he did not recommend or suggest following employees on foot or in a vehicle; that the picketing on the days testified to by Cline consisted of the pickets merely walking back and forth at an even pace when Cline's vehicle approached; that the pickets were always moving; that Cline and another employee had a habit of driving through the picket line without stopping; that Paud complained to the police about it; that one day Paud decided that he himself would picket and that Cline hit Paud when he went through the gate without stopping; that Paud thereupon jumped on the hood and then got out of the way. Analysis and Conclusions I fail to see where the Union has engaged in conduct violative of Section 8(b)(1)(A) of the Act. The complaint alleges that Respondent Union through Paud, Vela and other striking employees threatened bodily harm and other unlawful injury to employees, followed autos, stopped autos and blocked and barred plant gates against employ- ees. The evidence, in my opinion, fails to establish that Paud, Vela, or any other strikers engaged in any of the acts so alleged. The possible exception is that automobiles were stopped momentarily from entering the gates by reason of the marching of the pickets before the gate. There is no evidence that police intercession was necessary on any particular occasion to compel ingress.12 There is not a single occasion where any violence was engaged in or threatened to any employee seeking entrance 13 to the plant premises. I appraise the strike picketing from October 18 to January 7, 1972, as being conducted with a minimum of 12 In fact the only instance of police interference was testified to by Cline who admitted that he was told not to honk his horn. 13 1 do not credit Henry's assertion that he was hit by a rock in the back. Even if true, union responsibility is far from established. disturbance and complete absence of violence or threats of violence. Apparently Cline, like the General Counsel, wanted the pickets to immediately step aside when a vehicle approached the gate. I don't understand Board law to require such instant obedience. The pickets have a right to continue there picketing, and to talk to individuals who cross their picket line as they did to Henry; surely a delay of one to five minutes under peaceful circumstances hardly constitutes blocking or barring ingress so as to constitute a violation of the Act. The General Counsel cited Sunset Line and Twine Company 14 and Teamsters Local 783, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America 15 in support of his position. It seems to me that the widespread misconduct, violence and threats of violence present in those cases clearly demonstrate that the instant case is in a separate and distinct category and it is easily distinguishable from the cases relied upon by the General Counsel. Having in mind the background of unfair labor prac- tices 16 engaged in by Alco-Cad in the recent past, it seems that the strike and resulting picketing has been conducted in rather exemplary fashion. I conclude there has been no violation of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Alco-Cad Nickel Plating Corporation is and has been at all times material herein an employer within the meaning of Section 2(2) of the Act and engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Metal Polishers, Buffers, Platers and Helpers International Union Local No. 67, is and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. 3. As found above, Respondent Union has not violated Section 8(b)(1)(A) by any of the acts alleged in the complaint. ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this case proceeding, I recommend that the National Labor Rela- tions Board enter an order dismissing the complaint in its entirety. 14 179 NLRB 1506. 15 160 NLRB 1776. 16 Alco Plating Corp. and Metal Polishers, Buffers, Platers and Helpers International Union, AFL-CIO, 179 NLRB No. 20; affd. 436 F.2d 1378.