Local 810, Fabricators & Warehousemen

LOCAL 810, FABRICATORS & WAREHOUSEMEN Local 810, Steel, Metals, Alloys & Hardware Fabrica- tors & Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America and Scales Air Compressor Corp Cases 29-CC-307 and 29-CB-1 142 November 29, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 20, 1972, Administrative Law Judge' Samuel Ross issued the attached Decision in this proceeding Thereafter, Respondent filed exceptions and a supporting brief, and the Employer filed exceptions and answering Memorandum of Law and Exceptions to the Decision 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 attached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order,3 as modified herein 575 in an industry affecting commerce, where in either case an object thereof is to force or require the above-named persons or any other person to cease using, selling, handling, transporting, or otherwise dealing in the products of Scales Air Compressor Corp, or to cease doing business with Scales Air Compressor Corp " 2 Substitute the attached notice for the Adminis- trative Law Judge's notice I The title of Trial Examiner was changed to Administrative Law Judge effective August 19 1972 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Boards established policy not to overrule an Administrative Law Judge s resolutions with respeLt 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 In the absence of exceptions we adopt the Administrative Law Judge s findings that the evidence was insufficient to establish that Respondent was responsible for the firebombing of company trucks and for cot rcive statements allegedly made by strikers Long and Thistle to Sales Enl,ineer Thomas J McNiff Jr Accordingly no findings of violation of Section 8(b)(1)(A) are based on these incidents 3 The Administrative Law Judge on the basis of the violations in the instant case and of a past record of unfair labor practices the latt st of which occurred in 1957 recommended a broad order in this proceeding In the circumstances of this case and particularly in view of the length of time that has elapsed since the last previous Board adjudication of unlswful conduct we do not believe the proposed remedy is warranted at this time Raymond Buick Inc 173 NLRB 1292 APPENDIX ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Local 810, Steel, Metals, Alloys & Hardware Fabricators & Ware- housemen, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives, shall take the action set forth in the recommended Order, as modified below (1) Delete paragraph 1(b) from the recommended Order of the Administrative Law Judge, and substi- tute the following "(b) Engaging in, or inducing or encouraging employees of Gateway Tire Co , Technical Crafts, Inc, the State of New York, Division of Military Affairs, or any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or threaten- ing, coercing, or restraining any of the above-named persons or any other person engaged in commerce or 200 NLRB No 81 NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF 'I HE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the order of the Board The Act gives all employees these rights To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things WE WILL NOT do anything that interferes with these rights More specifically, WE WILL NOT block efforts by employees of Scales Air Compressor Corp, of of any other employer, to enter Scales' premises and go to work WE WILL NOT threaten employees of Scale,, or any other employer with physical violence, loss of employment, or any other reprisal, either because 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their failure or refusal to join or participate in our strikes, or to observe our picket lines WE WILL NOT harass employees of Scales, or of any other employer in the performance of their services for their employer, and WE WILL NOT damage or threaten to damage Scales' vehicles or property WE WILL NOT in any other manner restrain or coerce members or employees in the exercise of their rights guaranteed in Section 7 of the Act which are described above WE WILL NOT (a) engage in, or induce or encourage employees of Gateway Tire Co, Technical Crafts, Inc, the State of New York, Division of Military Affairs, or any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of their employment, to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities, or to perform any services, or (b) threaten, coerce, or restrain Gateway Tire Co, Technical Crafts, Inc, the State of New York, Division of Military Affairs, or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Gateway Tire Co, Technical Crafts, Inc, the State of New York, Division of Military Affairs, or any other person, to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing business with Scales Air Compressor Corp LOCAL 810, STEEL, METALS, ALLOYS & HARDWARE FABRICATORS & WAREHOUSEMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (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, 16 Court Street, Fourth Floor, Brooklyn, NewYork 11204, Telephone 212-596-3535 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SAMUEL Ross, Trial Examiner On charges filed on February 9, 1972, by Scales Air Compressor Corp (herein called the Company), two separate complaints issued on March 9, 1972, which allege that the above-named Umon (herein called the Union, or the Respondent), had engaged in and is engaging in unfair labor practices within the meaning of Sections 8(b)(1)(A), 8(b)(4)(i) and (n)(B), and 2(6) and (7) of the Act On March 20, 1972, the Respondent Union filed answers to the two complaints which deny their substantive allegations and the comnus- sion of unfair labor practices On March 22, 1972, an order issued consolidating the two complaints for hearing and decision Pursuant to due notice, a hearing on the two complaints thus consolidated was conducted before me at Brooklyn, New York, on March 27, 28, 29, and April 11, 12, and 13, 1972 Upon the entire record, and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed by the General Counsel and the Charging Party,' I make the following FINDINGS OF FACT I COMMERCE The Company is a New York corporation whose principal office and place of business is located at 88 Windsor Avenue, Mineola, New York The Company also operates two parts storehouses and assembly areas at 245 Jericho Turnpike, Mineola, New York, and at 185 Woodward Avenue, Brooklyn, New York At all three locations, the Company is engaged in the business of assembling, servicing, selling, and distributing new and rebuilt air compressors and related products During the past year, a representative period, the Company purchased and caused to be shipped to its plants directly from points and places located outside the State of New York air compressors and parts valued in excess of $50,000 On the foregoing admitted facts, I find that the Company is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED At all times material herein, the Respondent Union has been and is a labor organization within the meaning of Section 2(5) of the Act i The Respondent Union has filed no brief and has not requested an extension of time to file one LOCAL 810, FABRICATORS & WAREHOUSEMEN 577 III THE UNFAIR LABOR PRACTICES A The Respondent's Labor Dispute With the Company On February 2, 1972,2 the Company laid off two employees, Raymond Kowalski and William Jessberger On Friday, February 4, at about 2 30 p in, two business agents of the Respondent Union, Thomas Auld and James Robinson, together with Kowalski and Jessberger, visited the Company's office at 88 Windsor Avenue, Mineola, New York, and Auld demanded of Company President William Scalchunas, also known and referred to in the record as Bill Scales, that Kowalski and Jessberger be reinstated, and that Scales sit down and negotiate a contract with the Union Scales, in reply, told Auld to call his attorney and he handed Auld a piece of paper on which the telephone number of the Company's attorney was written Auld asked Scales for permission to use the Company's phone, but Scales replied that there was a "phone outside " Auld then said, according to Scales' credited testimony, "You better talk to me," and "there is going to be trouble here," and he and his companions then left the Company's premises The following Monday morning (February 7), the Respondent Union began a strike against Scales and picketing of its Mineola plant and warehouse When the Respondent's strike began, the Company employed about 9 clerical and about 30 nonclerical employees, the latter being principally mechanics who repair and rebuild air compressors at the Company's plant, and driver mechanics who repair and/or install the air compressors at customers' places of business Including Jessberger and Kowalski who had been laid off the previous Wednesday, only 10 of the Company's employees joined the strike,3 and the Company continued to operate its business All of the strikers came to the Respondent's principal plant on Windsor Avenue at about 7 30 a in on the morning of February 7, and were there furnished by Business Agent Auld with picket signs upon which there appeared the following legend SCALES AIR COMPRESSOR is UNFAIR LOCAL 810 STEEL, METALS, ALLOYS & HARDWARE FABRICATORS AND WAREHOUSEMEN IBT 10E 15St NY 3,N Y 691-4100 In addition to the 10 strikers, the Respondent Union also 2 All dates will hereafter refer to 1972 unless otherwise noted 3 The other eight employees who participated in the strike were Thomas Thistle Robert D Long Anthony Gunnell Raymond Knollhoff Larry Chin, Robert Montgomery Israel Vargas and Thomas Canary 4 Union Delegate Herman Fngand one of the Respondents delegates who admittedly was present when the strike and picketing began so had seven of its "delegates" present at the Company's premises when the strike and picketing commenced on the morning of February 7 4 Since the inception of the strike, the Respondent's pickets and one or more of its "dele- gates" and business agents have been present at the Company's plants every working day during the working hours of Scales' employees The pickets sometimes wear the Union's picket signs on their shoulders , or they set them on their cars parked on the street near the Company's plant while the pickets sit in the cars When delivery men and/or customers of the Company approach the picketed premises, the pickets and/or the union agents admittedly try to persuade them not to cross the picket line and enter the plant 5 At the end of each day, the pickets take their picket signs home, and bring them back the following day Each of the striking pickets receives weekly compensation or "strike benefits" from the Respondent for picketing, initially $25 per week, but since increased to $50 All of the pickets receive identical compensation and admittedly are required to be present at the picket line each day, unless permission not to be there is given them by one of the Union's delegates As of the close of the hearing in the instant cases, the Union's strike and picketing still continues B The Alleged Violations of Section 8(b)(1)(A) From its very inception, the Respondent's strike and picketing have been attended by numerous incidents of conduct by pickets and delegates which are alleged in the complaint as unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act In this regard, I find as follows Anthony John Phocas, an inside mechanic employed by the Company,6 credibly testified that on the Monday morning when the strike began, he, accompanied by Bill Papadopolus, another employee (who spoke no English), drove up to the plant to go to work Phocas attempted to park his car "in front of the work shop," but couldn't do so because "Ray" Kowalski, "Larry" Chin, and "Bill" Jessberger were in the way As Phocas waited, Kowalski opened the right side door of Phocas ' car and said, "Man, can't you see we are on strike " Phocas answered , "I don't know what is going on " Phocas then waited for the pi< kets to move so that he could park, but "nobody moved" until George Tsaoussis, a vice president of the Company, came out of the plant and threatened to call the police unless the pickets let Phocas park Then the pickets moved aside and Phocas was able to park his car As Phoc as walked toward the plant, Kowalski told Phocas to convey an obscenity to his "boss " At about 9 a m on the first day of the strike, Eugene James Czelada, a maintenance man employed by Lourdes Industries, drove a small truck to the Company's main plant to pick up a valve which his employer "needed badly" for an air compressor According to Czelada's testified and I credit his testimony to this extent 5 Except for the specific incidents set forth infra it is not contended that this conduct violated the Act 6 Phocas the Company s principal stockholders and officers and many of its employees, are of Greek ethnic origin 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credited testimony, a group of six or seven men were standing near the plant, and one of them shouted to him, "This place is on strike I hope you are not going through this [picket] line " Czelada paid no attention to the pickets and went into the plant and picked up the valve On the way back to his truck, however, the men outside the plant cursed Czelada, and one of them said, "If I were you, I wouldn't get into that truck It's liable to blow up" Czelada nevertheless got in the truck, and as he drove away, he heard "a shot" as if "they hit the truck with something " He continued on, however, and when he later examined the truck, he found no evidence of damage Company Vice President George Tsaoussis saw Czelada, both when he arrived at the plant in his "blue van," and when he left According to Tsaoussis' credited testimony, he saw strike pickets Kowalski, Long, Thistle, and Union Delegate Herman Frigand speak to Czelada before he came into the plant, but did not hear what they said to him When Czelada left the plant, however, Tsaoussis heard Frigand tell him, "Watch out, you got (sic) to have an accident," and he also saw Kowalski, Long, and Thistle go to the far side of the truck and then heard a "bang, somebody hit the truck I don't (sic) see who "7 On the first morning of the strike, Company President William Scales observed a trailer truck of the New Penn Motor Express Company drive up to his plant, saw Union Delegate Frigand speak to the driver, and then saw the truck start to drive away As the truck pulled away from the plant, Scales ran out to get the name of the truck and the license plate number, and Frigand said to him, "We scared the shit out of him, Bill "8 At about 5 p in on the second day of the strike (February 8), as employee Phocas and his car pool rider Papadopolus were leaving the Company's plant at the end of the day's work, Phocas observed union pickets Kowalski and Jessberger sitting in the back of a large car As Phocas walked by the car, Kowalski rolled down the window and asked Phocas to join the strike Phocas replied that he could not, that it was "too late " Kowalski responded, "Listen, if you don't we will come in and when we come in, we kick you out " Phocas then said that in that event, he would "find another job "9 On the same day (February 8), as Supervisor David Wood was backing a truck into the parking lot area of the Company's premises, picket Kowalski and a mustached stranger came over to the cab of the truck and engaged Wood in conversation According to Wood's undisputed and credited testimony, the stranger told Wood to "tell my boss that I have a problem" Wood said, "I have no 7 Union Delegate Frigand testified that a man who said he needed a valve approached him and asked his permission to cross the picket line and go into the plant According to Frigand he told the man, Go ahead make Bill Scales rich In the light of the Respondent s quite obvious efforts to get employees and delivery men to respect its picket line I do not believe Frigand s testimony that he magnanimously gave permission to a man (Czelada) to go into the Company s plant to pick up a valve Indeed based on both demeanor and the implausibility of his testimony I regard Frigand as a witness whose testimony is unworthy of much if any reliance s The findings above are based on Scales credited testimony Frigand denied making the statement attributed to him by Scales, but I regard Scales testimony as more reliable than Frigand s denial and I do not credit the latter 9 The findings above are based on the uncontroverted and credited testimony of Phocas problem " The stranger replied, "Tell your boss that your wife doesn't want you to drive your truck" Wood said, "My wife didn't say that " The stranger said, "I know, I said it " Kowalski then told the stranger to leave Wood alone, "He [Wood] is a good guy" At the time of this conversation, there was a union picket sign on Long's car which was parked nearby in front of the plant On the morning of either February 8 or February 9, Supervisor Wood was about to get into his car parked near the plant when he was approached by Union Delegate Herman Frigand who said to Wood, "Dave, tell your boss to come to his senses-he is foolish, we have more money than he has " Wood replied, "Apparently he doesn't think so," and Fngand responded, "Well, they're foolish, they will blow the joint "i0 The third day of the strike (February 9) at about 8 30 to 9 a in, John Pratnicki, an employee of the Company who also is known as Jai, observed Union Delegate Frigand and Business Agent Auld talking to each other as a station wagon of French & English Furniture, a customer of the Company, drove up to the plant As the driver backed up to the Company's platform, Pratnicki opened the overhead door, and Auld came over and shouted to the driver, "You know, we are having a strike here, you are looking for trouble" The driver responded, "You are the one who seems to have the trouble," and went into the plant 11 That same afternoon (February 9) at about 2 to 2 30 p in, Richard Sanders, an employee of Artisan Stationers, drove up to the Company's plant in a van truck to make a delivery As Sanders walked toward the plant, Union Delegate Frigand and another unidentified man were standing nearby, and Frigand yelled to Sanders, "There's a strike going on, don't go in there " Sanders nevertheless went into Scales' premises and made his delivery However, when he came out a short while later, Fngand was standing alongside Sanders' truck, and he asked Sanders whether he belonged to a union Sanders replied that he did not, and Fngand then called him "a fucking scab," and told Sanders that he had no right to cross the picket line and that he would "kick my ass in if I did it again " About a week later, Sanders returned to Scales' plant to make a delivery and saw Frigand in front of the plant Sanders asked Fngand whether the strike was still on, and when Frigand said, "yes," Sanders got back in the truck and drove off without making the delivery 12 C The Secondary Boycott Conduct of the Union The third day of the strike (February 9) also was 1° The findings above are based on Woods credited testimony According to Frigand this incident occurred on February 8 and he admittedly said what Wood attributed to him 13 Auid denied making the statement either to Scales customer French & English Furniture or to any other delivery man but I regard Pratnicki s testimony as more reliable and I do not credit Auld s denial 12 The findings above are based on Sanders testimony which I regard as reliable and credit Frigand denied making the statements attributed to him by Sanders According to Frigand Sanders came to the plant at 10 30 a in on February 9 Frigand asked him please don t cross the picket line and Sanders took off As previously noted I regard Frigand s testimony as generally unreliable and in respect to this incident I regard the testimony of Sanders a disinterested witness as more reliable than Frigand s which I do not credit LOCAL 810, FABRICATORS & WAREHOUSEMEN )79 attended by conduct by the Union which is alleged as violations of Section 8(b)(4)(i) and (ii)(B) of the Act The conduct on which these alleged violations are based was as follows On February 9, nonstriking employees Joseph Conklin and Tim McCabe drove a company truck from the company plant to deliver and install some air compressors at customers' premises Their truck was followed from the plant by picketing strikers Robert D Long and Raymond Kowalski riding in Long's car Conklin's and McCabe's first stop was at the National Guard Armory in Hemp- stead, Long Island, where Conklin told Armory Superin- tendent William M Kempey and another armory employ- ee that he was ready to install the Armory's air compressor which the Company had repaired At this juncture, Kowalski intervened in the conversation and told Kempey that Conklin was a strikebreaker, that he and Long were "from Local 810," and that he would appreciate it if Kempey honored their "picket line " Kempey replied, "We need that compressor " Whereupon Kowalski threatened to "have pickets surround the building in minutes," and warned Kempey that in that event, if he expected any deliveries, "You won't get them " Kempey in turn threatened that if Kowalski brought pickets there he would have "the National Guard down here " Conklin then drove the truck through the fence to the National Guard Armory and installed the compressor Insofar as the record discloses, no picketing of the Armory occurred 13 Upon completion of their installation of the air compres- sor at the National Guard Armory, Conklin and McCabe drove to the premises of Gateway Tire Co, in Freeport, Long Island They again were followed by Long and Kowalski riding in Long's car Upon arrival at Gateway's premises, Conklin went into the building and told Albert Sauchelli, secretary-treasurer of Gateway, that he was ready to install Gateway's air compressor which the Company had repaired Kowalski came into the building at this point and said, "I am Ray Kowalski, with Local 810 of the Teamsters Union This man [Conklin] is a strikebreak- er Scales is on strike and we would appreciate it if you would honor our picket line " Sauchelli replied, "I need that machine " Kowalski responded, "I will have pickets around here in ten minutes," and he told Sauchelli that if he was expecting any deliveries, he would not get them Sauchelli then instructed Conklin to back his truck into Gateway's garage, whereupon Kowalski ran into Gate- way's shop and shouted, "at the top of his lungs" to Gateway's 20 employees, "Strike, strike, strike " Sauchelli ordered Kowalski out of his shop and threatened "to call a cop" if he didn't Kowalski complied Then, while Conklin backed the company truck into Gateway's garage and until he and McCabe left, Kowalski picketed Gateway's 13 The findings above are based on the uncontroverted and credited testimony of Conklin and Kempey 14 The findings above are based on the credited testimony of Conklin and Sauchelli which for the most part is uncontroverted Long a witness for the Respondent Union admitted that he and Kowalski followed Conklin and McCabe to Gateway Tire and that Kowalski took the Union s picket sign with him when he went into the premises but he denied that he or Kowalski picketed at Gateways premises For demeanor and other reasons I regard Long s testimony as less reliable than that of Conklin and premises with a sign either the same or similar to that which the Union used to picket Scales' plant 14 After delivering Gateway's air compressor, Conklin and McCabe then drove to Technical Crafts C orp in Linden- hurst, Long Island, to deliver and install an air compressor which the Company had repaired for Technical Crafts They again were followed by Kowalski and Long in Long's car Upon arrival at the premises of Technical Crafts, a repetition of the events at the National Guard Armory occurred Conklin told William Aullback, Technical Crafts' president, that he had his air compressor and was ready to install it Kowalski intruded, introduced himself as "from the Teamsters Union," and told Aullback that Scales was on strike, Conklin was a strikebreaker, and that he would appreciate it if Aullback honored his picket line Aullback replied that he needed the compressor, and Kowalski threatened to throw up a picket line in 10 minutes, and that Technical Crafts would then not get any deliveries Aullback nevertheless instructed Conklin to deliver and install the air compressor Conklin did so without further incident, and no picketing occurred 15 D Additional Alleged Restraint and Coercion of Employees The secondary boycott activity described above was not thereafter repeated, but additional conduct which allegedly restrained and coerced employees in violation of Section 8(b)(1)(A) of the Act continued to occur In this regard, the following incidents transpired Garry Burns is one of Company's employees who did not join the Union's strike On about February 9 at about 4 p m ,16 a truck driven by Supervisor David Wood in which Burns was a passenger returned to the plant, and Burns alighted to open the garage door so that the truck could back in Three of the strikers, Robert Long, Ray Kowalski, and Thomas Thistle, who were sitting in a nearby station wagon, yelled obscenities at Burns, and also said, "You have had it You have got (sic) involved They are going to get you Your house is going to be bombed " Burns disregarded these comments, ope ned the garage door, and was on his way back to the truck to reenter it when Kowalski blocked his way and accused Burns of reporting striker Long to the police Burns denied Kowalski's accusation and said, "I don't know what you're talking about " Kowalski responded, "Yes, you do I ought to-I am going to break your head open," and he started to advance towards Burns Burns started to step back, threw his coat off, put up his arms in self-defense, and said, "Look, if you want to talk to me, you stand back and you talk to me, but you don't get up in my face " Kowalski, nevertheless, continued to advance and he called Burns "a fucking Jehovah's witness " Kowalski then repeated, "I am going to break your head open " At this juncture, Buirns Sauchelli and I do not credit Long s denial of the picks ting 15 The findings above are based on the uncontroverted and credited testimony of Conklin and Aullback 16 According to Bums this incident occurred somewhere between February 7 and 9 However Company President Scales who kept notes of the Union s conduct during the strike testified that this incident occurred on February 9 I regard Scales testimony regarding the date of this incident as the more reliable one 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stopped his retreat and said, "I am standing right here I am not moving any further " Kowalski then "backed off " Before any physical contact occurred, Supervisor Wood came between them, pushed them apart, and directed Burns to go inside the plant As Burns proceeded to do so, Long, Thistle, and Kowalski yelled that Burn's car (which was parked down the street) would not start By this time many of the Company's employees had came out of the building to observe what was transpiring and Burns said to President Scales, "They said my car's not going to start " Thereupon, Burns went down to his car, got in, started it without trouble, and drove it close to the plant When Burns got there, Kowalski and Long came over to his car, one on each side, and began knocking on the windows Burns opened the window on the right side where Kowalski was standing, and the latter said, "You know I'm out to break your head open " Burns replied, "Well, here I am" With that, he got out of the car, locked it, and returned to the plant without further incident President Scales then closed the garage door and as he did so, he heard Kowalski tell striker Thistle, "Tom we are going to kill Joe Conklin " 17 On the following morning (February 10) Kowalski and Respondent's Business Agent James Robinson approached Burns at the coffee wagon on the street outside the plant, and Kowalski apologized to Burns and said, "I'm sorry about what I did yesterday "Is On Wednesday, February 9, at about 4 p in, employee John Pratmcki started out from the Company's plant in the car of President William Scales to pick up some pulleys from the Beardsley Transmission Co located about a mile or two away As Pratnicki pulled away from the Compa- ny's premises, Long and Kowalski followed him in Long's car When Pratnicki stopped for a traffic light, Kowalski got out of Long's car, knocked on the window of Scales' car, and asked Pratmcki to open up and pull over, saying, "We dust want to talk to you, we don't want to hurt you " Pratnicki refused, and when the light turned green, he proceeded towards his destination Long again followed, then pulled in front of Pratnicki, and, according to Pratnicki, "They play[ed] cat and mouse with the car " Upon arrival at his destination, Pratnicki got out of Scales' car and waited for the traffic to clear up before crossing the street Long and Kowalski came up to him and shouted that Pratnicki didn't realize how poorly they were paid by Scales Long also said, "It would be unhealthy for you to drive Bill's car," and Kowalski interjected, "Yes, we wouldn't want to see you get hurt " They then proceeded 17 As previously noted Conklin was the nonstriking employee who had been followed by Kowalski and Long earlier that day to the premises of the Company s customers 18 The findings above are based on the credited testimony of Garry Burns whom I regard as a reliable witness and upon the corroborating credited testimony of Supervisor Wood and President Scales Business Agent James Robinson a witness for the Respondent who was not present when the incident occurred admitted that on the following day and in his presence Kowalski apologized to Burns as found above Kowalski was not called by the Respondent to testify However Long and Thistle, who admittedly were present did testify and according to their version of what occurred it was Burns and not Kowalski who was the aggressor and who threatened to assault Kowalski but was prevented from doing so by Wood s intervention In view of the strikers undisputed efforts to enlist participa- tion in their strike by all of the Company s employees Burns refusal to join the strike and Kowalski s later apology to Bums I regard Long s and Thistles testimony that Burns was the aggressor in this incident as to tell Pratnicki "that things are going to get worse", that "next week they are going to start on the equipment, and if that doesn't work, you people in the office will be out on strike also because you will have no place to go even if we have to burn the place down " Long told Pratnicki, "It is not us It is out of our hands Look Jai [Pratmcki], we don't want to see anyone get hurt, but these union guys are crazy We have had to speak out against them on more than one occasion to keep the violence to a minimum These guys want to see Scales go out of business " Pratnicki then walked across the street and entered Beardsley's premises with Long and Kowalski "about four steps behind me " Pratnicki asked the man at Beardsley to call Scales and tell him that he was being followed Kowalski then shouted, "Is this a union shop?" The man at Beardsley said, "Yes," and Kowalski responded, "All right, we are just checking because we want to make sure this place is squared away " Pratmcki then picked up the pulleys and left, again followed by Long and Kowalski On the way back to his car across the street, Long said to Pratnicki, "And, don't let me catch this guy Conklin alone I'm really going to fuck this guy up," and Kowalski added, "Yes, that goes for me, too " Finally, before Pratmcki got back into Scales' car, he was told by Long and Kowalski, "Well, look, Jai, you know we are just trying to tell you be careful " On the way back to the plant, Pratmcki again was followed by Long and Kowalski, but they didn't cut in front of him, as they had on the way to Beardsley, and he was not further harassed or threatened 19 At 5 p in that same afternoon (February 9), as the Company's employees left the plant at the end of the day's work, striker Kowalski said to employee Teddy Parais "We know where you [and] all the Greeks live in Astoria, and we will come there " Parais replied, "All right, if you have the guts you come there and we will fix you "20 That same night, striking employees Robert Long and Tom Thistle visited the home of Thomas J McNiff, Jr, a sales engineer employed by the Company According to McNiff's credited testimony, the visit lasted from about 7 30 p in to 9 30 p in and in the course of that visit, Long and Thistle said21 that they "were afraid" because the Union had threatened to break windows, slash tires of the Company's trucks, burn company trucks, and burn the Company's premises, and because the Union also had threatened violence against Joe Conklin, Tim McCabe, and Dave Wood because they were scabs who were transparently implausible and unworthy of credence Moreover based on their demeanor while testifying and the nature of their testimony , I regard both Long and Thistle as unreliable witnesses whose testimony is generally unworthy of credence is The findings above are based on the testimony of Pratnicki which I regard as reliable and credit As previously noted Kowalski was not called to testify by the Respondent and Long a witness for the Respondent did not deny that he and Kowalski followed Pratmcki from the Company s premises to that of Beardsley Transmission Co Long did however, deny that he and Kowalski made the threats and statements attributed to them by Pratnicki As previously noted I regard Long s testimony as generally unreliable and I do not credit his denials of Pratnicki s testimony 20 The findings above are based on the credited uncontroverted testimony of Anthony Phocas 21 McNiff admittedly could not recall which specific statements were made by Long and which by Thistle LOCAL 810, FABRICATORS & WAREHOUSEMEN 581 crossing the picket line Long and Thistle also told McNiff that they also were afraid that if they "walked off the picket line, the union would burn their houses " McNiff told Long and Thistle that violence "would not win their case of trying to get a union into the business," and that their cause would be better served by proceeding with their strike "in a legal manner " According to McNiff, Long and Thistle agreed with him in this regard, and told him that they would continue to strike and picket, but if violence occurred, they would "abandon the picket line "22 On Saturday (February 19), George Tsaoussis, a vice president of the Company, received a series of telephone calls from an unidentified caller whose voice Tsaoussis recognized as that of Raymond Kowalski According to Tsaoussis' uncontroverted and credited testimony, Kowal- ski told him during the first telephone call that he wanted to arrange a meeting with all of the Company's officers "to solve the problem" because there was "going to be a lot of violence," and he didn't want to be involved in something like that Tsaoussis told Kowalski that he would try to contact his partners and suggested that he call back in a half hour However, Kowalski called Tsaoussis again in 15 minutes before the latter could contact his partners, and Tsaoussis asked Kowalski to please wait for another half hour before he called again Tsaoussis then managed to contact only President William Scales before Kowalski called again at 3 05 p in and Tsaoussis told Kowalski that he had been unable to locate Peter Scales, the Company's other vice president and secretary Tsaoussis suggested that the meeting which Kowalski had requested should include the Company's and the Union's lawyer "to be legal " Kowalski replied that he didn't want any lawyers at the meeting Tsaoussis said that the meeting had to include the Company's lawyer Kowalski responded, "no lawyer," and then added that he understood that "there is going to be a lot of violence," and that his purpose in asking for the meeting was to try "to stop that violence " Tsaoussis then asked for additional time to contact his partners and Kowalski agreed to call again at 4 10 p in Kowalski called again at the agreed time, and repeated his desire to meet with Company's officials without lawyers and stop the anticipated violence About 30 to 45 minutes later, Tsaoussis received a final telephone call from Kowalski whose muffled voice he recognized, and on this occasion, Kowalski said, "Well starting tonight, your house, Bill['s] house, Pete['s] house, goodby "23 1 The puncturing of tires Since the Union commenced its strike against the Company, the latter's trucks, and the car of its president, suddenly acquired a propensity for developing flat tires when they were parked in front of the Company's picketed premises In this regard, the uncontroverted record discloses that on a single afternoon about 2 weeks after the strike began, the company truck which Joseph Conklin had parked in front of the Company's premises for 10 minutes had a flat tire caused by a broken valve At the same time, Conklin observed that there were two flat tires on another company truck, and a flat tire on President Scales' car, both of which also were parked in front of the Company's premises When Conklin observed these flat tires, there were pickets of the Respondent in the vicinity The car driven by Company President William Scales seemed particularly susceptible to acquiring flat tires in front of the Company's main plant, notwithstanding that it was a comparatively new car 24 Thus, on 2 successive days, Thursday and Friday, February 17 and 18, two different tires on Scales' car developed flat tires in front of the Company's building from puncture holes, and inner tubes were installed into these previously tubeless tires 25 In the quite reasonable belief that the flat tires were caused by sabotage, the Company engaged the services of Andover Protection Service to guard its premises, and Alexander Kalmowski, an employee of Andover, was assigned on February 19 to guard the Company's building and to protect Scales from damage to its property Kalinowski performed guard services for the Company on February 19, 20, 21, and 22 On the latter date at about 4 50 p in , Kalinowski was in the second floor loft of the Company's building looking out of the window at the street in front of the plant He observed two cars parked on the opposite side of the street and saw President Scales park his car alongside the two cars and walk towards the building He then saw a man come out the right (passenger side) of one of the parked cars, move towards Scales' car in a crouching position with an object in his hand, and start jabbing at Mr Scales' right front tire Kalinowski then saw the man crouch and duck back into the car from which he had previously emerged Kalinowski described the person whom he had so observed as a "tall, thin, fellow, redheaded guy, about 6 feet," and "about 25 years old" 26 and he later "pointed out this fellow [whom he ] saw do the piercing to Mr William Scales " Scales later identified the person whom Kalinowski pointed out to him as Raymond Kowalski Both the car to which Kowalski returned and the other car parked next to it left the scene almost immediately thereafter Scales then went down to his car and heard air escaping from the right front tire The new inner tube in this tire was later found to have a puncture hole in it Scales then called the police , and he later made a report of the incident to the precinct 27 At about I p in on February 29, President Scales was in front of the Company's main building in the parking lot 22 Long and Thistle admitted that they visited McNiff s house on the night of February 9 but they denied the statements attributed to them by McNiff According to Long and Thistle it was McNiff who suggested that the Union should engage in violence to further its cause and they had responded If that nonsense starts happening we will leave them [the Union I I regard Long s and Thistle s version of the conversation as pure fabrication and I credit their testimony in respect to this conversation only to the extent that t accords with McNiff's testimony 23 Insofar as the record discloses nothing untoward has occurred to the homes of the Company s officials since Kowalski s last phone call 24 It was a 1971 Buick about a year old with about 17 000 to 18 000 miles on the odometer 25 Another employee David Wood also expenem ed a flat tire on the Company s station wagon after he left the plant Upon examination of the tire Wood found two holes but no foreign substance to account for the presence of the holes 26 This description accords with that ascribed to Raymond Kowalski by Company s employees and by Union Agent James Robinson 27 The findings above are based on Kalinowski s uncontroverted and credited testimony As previously noted the Respondent did not call Kowalski to testify 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD area when Union Delegate Herman Frigand said to him, "Hey, Bill, you ain't worried, yet? You'll worry " At the time this statement was made, there were pickets present, namely, Union Business Agent James Robinson, and strikers Robert Long, Thomas Thistle, and Anthony Gussell 28 2 The firebombing of two company trucks In addition to Supervisor David Wood, the Company had two driver mechanics in its employ who had refused to join the Union's strike, namely, Joseph Conklin and Robert Guthy These driver mechanics performed their services for the most part at the premises of the Company's customers where they repaired and/or installed air com- pressors which the Company had sold to or repaired for the customer It was the practice of the driver mechanics to load their company trucks each evening at the plant with whatever equipment and supplies they would need for the next day, to drive the trucks home and keep them there overnight, and to start directly on their rounds the next day from their home In accordance with this practice, over the weekend from Friday evening March 10 to Monday morning March 13, Conklin had a company truck parked in front of his house at Port Jefferson Station, Long Island, and Guthy had his company truck parked in the driveway of his home in Richmond Hill, in the Borough of Queens, City of New York During the early morning hours of Monday, March 13, although these trucks were geographi- cally separated by about 50 miles, both were firebombed, and one, that driven by Conklin, was completely de- stroyed Thus, on March 13 at about 1 30 am, Conklin was awakened from sleep by his wife who said she had heard an explosion, and when Conklin went outside, flames were rising 20 to 25 feet from the cab and motor of the truck The fire eventually was extinguished by the fire depart- ment, but not before the truck was completely destroyed 29 Later that morning, after a visit from the police to Conklin's home, Conklin notified President Williams Scales that he was quitting his job and not returning to work for the Company As noted above, the company truck driven by Guthy was parked over the same weekend in the driveway of his home On Monday morning, March 13, at about 6 45 a in when Guthy got into the truck to go on his rounds, he noticed a smell of something burned He nevertheless started the engine and began to back the truck out of his driveway when he heard the crunch of broken glass under a tire and stopped He then got out of the truck and observed glass under the front left tire, soot all over the right side and front of the truck, and that the front right 28 The finding above is based on Scales credited testimony Frigand in effect denied making the statement attributed to him by Scales but I regard his testimony as unreliable and I don t credit his denial 29 It eventually was towed away from Conklin s home and oil and debris from the truck were cleaned up and removed 30 The findings above are based on Wood s testimony which I credit In a signed statement given to a Board agent Wood stated that Fngand also said they [the bosses] are going to wind up in a box However at the hearing Wood testified that he was not quite certain about the accuracy of the latter statement because Frigand was quite a distance from him and it [the box statement] was too low for me to hear In the light of this tire was "charred, burnt [and] flat" On further investiga- tion, Guthy found pieces of a "Fleishmanns gin bottle," held together by the label on the bottle, on the right side of the truck, and a rag "which looked like a handkerchief" with some burn holes in it Guthy also observed a large circular burn mark on the blacktop paving of his driveway where the truck had been parked Guthy replaced the right front tire, which was burned, dried up from the heat, and "completely cracked," with a spare tire He then washed the soot from the truck, and proceeded on his rounds for the Company At 8 30 on March 13, the same day that the two company trucks earlier had been firebombed, Supervisor David Wood came out of the plant to get something out of his car Union Delegate Herman Frigand was then standing across the street next to a car in which Robert Long and other union pickets were seated and laughing Fngand yelled across to Wood, "Hey, Dave, what happened9" Wood, who already had heard about what happened over the weekend, merely shrugged his shoul- ders Fngand then continued, "I leave it up to you, Dave, to talk to your bosses They are going to bury them- selves "30 On March 22, just 5 days before the hearing in this case began, employee John Pratnicki drove one of the Compa- ny's trucks from its principal premises to the gas station around the corner He was closely followed by union pickets Raymond Kowalski and Thomas Thistle riding in Kowalski's car As Pratnicki entered the gas station, Kowalski first tried to cut off the truck Pratnicki was driving, and not succeeding, he forcibly "bumped" into the rear of the Company's truck 31 On the way back to the plant from the gas station, Kowalski followed the Compa- ny's truck "so close," that to use Pratnicki's figure of speech, "the paint of my truck had to be on the hood of his [Kowalski's ] car " Moreover, when Pratnicki stopped in front of the plant and put the truck in reverse thereby lighting the backup lights, Kowalski, instead of passing Pratnicki's truck pulled in right behind and thereby prevented Pratmcki from backing in to the plant A short time later, however, Kowalski pulled out and passed Pratnicki's truck, and he was able to back up 32 That same afternoon, Pratmcki drove over to the Company's warehouse about a mile from its main plant to pick up driver mechanic Robert Guthy As Pratmcki and Guthy came out of the warehouse, union pickets Kowalski and Thistle came over, and Kowalski, who had a union picket sign with him, said to Pratnicki, "Hey Jai [Pratnicki ], you take that truck home9" Pratmcki answered, "Yes " Kowalski then said, "That could be very unhealthy They are inflammable and catch fire easily "33 testimony by Wood I place no reliance on the latter statement allegedly made by Fngand Fngand denied making the statements attributed to him by Wood and indeed denied being at the plant premises from 7 15 a in on March 13 until after March 14 As previously noted I regard Fngand as a generally unreliable witness and I do not credit his denials of Woods testimony above 3i In Pratmcki s idiom he [Kowalski]just bumped behind me to break my balls 32 The findings above are based on Pratnicki s uncontroverted and credited testimony 33 The findings above are based on the credited testimony of Pratmcki LOCAL 810, FABRICATORS & WAREHOUSEMEN 583 E Concluding Findings 1 The issues The General Counsel and the Company contend that the incidents and conduct found in sections B and D of this Decision constitute restraint and coercion of employees in the exercise of their rights, guaranteed by Section 7 of the Act, that the Respondent Union is responsible for said conduct and incidents, and that it thereby violated Section 8(b)(1)(A) of the Act The General Counsel and the Company further contend that the conduct found in section C above constitutes unlawful secondary boycott activity for which the Union is accountable, and that it thereby engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act Absent a brief from the Respondent Union, these contentions and my findings above present for further consideration the following issues (a) Whether the conduct found in sections B and D constitutes restraint and coercion within the meaning of Section 8(b)(1)(A) of the Act, (b) whether the Union is legally responsible for the conduct found to have occurred, (c) whether the conduct found in section C above violates Section 8(b)(4)(i) and (n)(B) of the Act These issues will be considered seriatim 2 Restraint or coercion Section 8(b)(1)(A) of the Act provides that it is an unfair labor practice for a labor organization or its agents to restrain or coerce (A) Employees in the exercise of the rights guaranteed in Section 7 Section 7 of the Act grants to employees not only the protected right to form, join and assist labor organizations, but also the right to refrain from such activities The rights thus protected include the right to refrain from striking, or in other words, the right to work in the face of a strike 34 The Act contains no affirmative definition of the terms "restraint" and "coercion," but they consistently have been held to proscribe threats of physical harm and of loss of employment In the light of these well established principles, I find that the following conduct and incidents involved restraint and/or coercion of employees within the meaning of Section 8(b)(1)(A) of the Act (a) The conduct of three union pickets found in B 1, supra, which blocked the efforts of nonstriking employee Phocas to park his car and go to work on the first day of the strike, and which persisted until Vice President George Tsaoussis threatened to call the police (b) The warning or threat of Union Delegate Herman Frigand (see B 2, supra) to the employee of Lourdes Industries who had ignored the picket line that his truck might blow up, and the action of the pickets in hitting the side of Lourdes' truck as it left the Company's premises (c) The conduct of Union Delegate Herman Frigand (B 3, supra) which scared a driver of New Penn Motor Express Company into leaving the Company's premises without making his delivery (d) The threat of union picket Raymond Kowalski (B 4, supra) that if the Union came in to the Company's plant, nonstriking employee Anthony John Phocas would be kicked out of his job (e) The threat or warning of Union Business Agent Thomas Auld to a customer of the Company (French and English Furniture) in the presence of an employee (B 7 above) that the customer was looking for trouble if he crossed the picket line (f) The threat by Union Delegate Herman Fngand (13 8 above) to inflict physical violence on Richard Sanders, the driver of Artisan Stationers, if he crossed the picket line again (g) The threat or warning by union pickets to nonstriking employee Garry Burns that his house would be bombed, the threat by union picket Kowalski to "break opt n" Burns' head, Kowalski's physical menancing of Burns as found in section D 1, supra, and his statement in the presence of Bums and other employees that "We are going to kill Joe Conklin [a nonstriking employee ] " (h) The conduct of union pickets Robert Long and Raymond Kowalski (described in section D 2, supra) in playing "cat and mouse" with nonstriking employee John Pratnicki while he drove to the Beardsley Transmission Co, their warning to Pratnicki that it would be "unht al- thy" for him to drive President Scales' car, their further statements to Pratnicki which implied that the Union intended to burn the Company's premises and engage in violence, if necessary, to win the strike, and their thieat conveyed to Pratnicki which clearly implied that they would physically hurt nonstriking employee Joe Conklin if they caught him alone (i) The threat of violence implicit in union picket Kowalski's statement to nonstriking employee Parais that the union pickets knew where Parais and the Company's other nonstriking Greek employees lived, and that they intended to go there (See D 3, above) (l) The threats conveyed by union pickets Long and Thistle to nonstriking employee McNiff that the Union intended to break company windows, to slash its tires, to burn its trucks, and to physically harm nonstriking employees Joe Conklin, Tim McCabe, and Dave Wood (See D 4, supra) (k) The puncturing by union picket Kowalski of the tire of President Scales' car while it was parked across the street from the plant (See D 6, supra) (1) The firebombing by an unknown person or persons during the early morning hours of March 13 of two company trucks while they were parked at the widely separated homes of Joseph Conklin and Robert Guthy (See D 8, supra) (m) In the context of the March 13 firebombing of two company trucks which almost immediately becamt a matter of common knowledge, the statement of Union Delegate Herman Frigand made later that morning to Supervisor Wood in the presence of striking employees, "I leave it up to you, Dave, to talk to your bosses, they are going to bury themselves," which clearly implied that the which was corroborated by Guthy and not controverted As previously noted Kowalski was not called to testify and Thistle testified only that he (Thistle) did not make the statement which Pratnicki and Guthy attributed to Kowalski not Thistle 34 International Longshoremen s and Warehousemen s Union (Sunset Line and Twine Company) 79 NLRB 1487 1504 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, whether or not it was responsible therefor, claimed credit for the firebombing (See D 9, supra) (n) The conduct of union pickets Kowalski and Thistle described in D 10 supra, in closely following a company truck driven by nonstriking employee John Pratnicki, bumping into it in the gas station, and closely following it on Pratmcki's return to the plant (o) In the context of the firebombing of two company trucks on March 13, the statement on March 22 by union picket Kowalski to nonstriking employee Pratnicki that it would be "unhealthy" to take a company truck to his home because "they are inflammable and catch fire easily " (See D 11, supra) I further find that the evidence is insufficient to establish restraint or coercion of employees within the meaning of Section 8(b)(1)(A) in respect to the following incidents (a) As found in B 5, supra, Supervisor Wood was told by a stranger who was accompanied by union picket Kowalski that Wood should tell his boss that his wife did not want him to drive a truck I am not persuaded that this statement, even assuming union responsibility, carried with it an implicit threat to Wood (b) As found in B 6, supra, Frigand told Supervisor Wood to "tell his boss to come to his senses," that the Union had more money than the Company and that "they're foolish, they will blow the joint" The General Counsel apparently construes Fngand's statement as a threat by the Union to "blow [up] the point," but I regard the statement as ambiguous, and that, in the context in which it was uttered, it was equally susceptible to an interpretation that the Company could not financially withstand the effects of the strike (c) As found in section D 5, supra, on February 19, union picket Kowalski, in a series of telephone calls, in effect told Company Vice President Tsaoussis that there would be "a lot of [union] violence" in connection with the strike, and that the vice president's home and that of the other company officers would be destroyed There is, however, no evidence that these threats were made in the presence of, or otherwise conveyed to, statutory employees whose rights are guaranteed in Section 7 (d) As described in section D 7, supra, on February 29, Union Delegate Frigand in the presence of union pickets asked President Scales whether he was "worried yet," and predicted, "You'll worry " The complaint in Case 29-CB-1142 was amended during the hearing to allege that the Union violated Section 8(b)(1)(A) by this statement of Frigand However, I can perceive no implicit threat of misconduct by the Union in Frigand's vague remark and conclude that it does not violate Section 8(b)(1)(A) of the Act 3 The responsibility of the Respondent Union for the restraint and coercion of employees We come then to the issue of whether the Respondent Union is responsible for the acts of restraint and coercion previously found The conduct which has been found to constitute restraint and coercion was engaged in by Union Delegate Herman Frigand, Union Business Agent Thomas Auld, and union pickets Raymond Kowalski, Robert Long, and Thomas Thistle In determining whether or not the Union is responsible for their conduct, the ordinary law of agency applies Section 2(13) of the Act specifically provides In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling Indeed, a principal may be held responsible for the act of his agent within the scope of the agent's general authority, even if the act of the agent was specifically forbidden by the principal 35 Viewed in the light of the foregoing principles, it is quite apparent that the Respondent Union is responsible for the conduct engaged in by its agents Fngand and Auld According to the stipulation of the parties, Frigand and Auld are delegates and full-time employees of the Union whose functions include organizing and representing employees in shops under contract with the Union Auld is a business agent of the Union, and Frigand, a former police detective, is "chief of security for the Union " Auld admittedly was the representative who demanded recogni- tion and bargaining with the Union by the Company It was upon his report of the Company's refusal to comply with his demands that the strike against the Company and its attendant picketing were authorized At its inception, Auld was in charge of the strike and picket line and it was he who distributed the picket signs to the Company's striking employees when the strike started on February 7 Auld was assisted in his strike duties at the Company's premises by Frigand, and by a number of other regularly paid union representatives, including James Robinson and Joseph Lovell With relatively few exceptions, Frigand was at the Company's premises at the picket line every day from about 7 a in to 4 p in The general purpose of the strike was to hamper the Company's operations by the withdrawal of its labor force, to dissuade employees from working during the strike, and to dissuade customers and deliverymen from entering the Company's premises The conduct of Auld and Frigand, which was found above to constitute restraint and coercion of employees, clearly was engaged in the furtherance of these general strike objec- tives of the Union I therefore conclude that the Union was responsible for the conduct of Auld and Frigand, and that it thereby engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act This leaves for consideration the question of the Respondent Union's responsibility for the restraint and coercion of employees which, as found above, was engaged in by union pickets Kowalski, Long, and Thistle For the reasons hereinafter stated, I find that the Union must be held accountable for their said conduct According to admissions elicited from the Respondent's paid agents, with minor exceptions, one or more of them was at the picket line every day of the strike, and on the infrequent and brief occasions when no union agent was present, Long, Thistle, and other pickets were left in charge to "take care of things " As found above, each of the 31 Sunset Line and Twine Co supra at 1509 LOCAL 810, FABRICATORS & WAREHOUSEMEN 585 pickets was assigned a sign by the Union which he thereafter used on the picket line and took home at the end of the day The pickets were paid a weekly stipend by the Union for picketing, initially $25 per week, but later increased to $50 All of the pickets received identical compensation for which they admittedly were required to be present at the picket line each day, or receive prior permission to be absent from one of the Union's delegates Some of the coercive conduct engaged in by Kowalski, Long, and Thistle occurred at the picket line, and thus obviously was known by the Union's paid delegates, one of whom was almost always present There is no evidence that the Respondent ever disavowed the picket line misconduct of the pickets, or ever attempted to prevent its occurrence Moreover, the Respondent's agents Frigand and Auld clearly set the pattern for the Union's pickets to follow by the acts of restraint and coercion of employees in which they personally engaged as found above The Union therefore clearly is responsible for the coercive conduct which its pickets engaged in at the picket line 36 Further- more, since the pickets required prior permission of the Union's agents to absent themselves from the picket line, and since the various departures from the picket line by Kowalski, Long, and Thistle were not disapproved by any paid union agent, I infer that their excursions to follow the Company's trucks and President Scales' car either were authorized by the Union's agents (one or more of whom almost always were present at the picket line), or ratified by them Accordingly, I conclude that the Union is responsible for the various acts of restraint and coercion of employees found above in which Kowalski, Long, and Thistle engaged when they left the picket line, and it thereby engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act 37 4 The violations of Section 8(b)(4)(1) and (ii)(B) of the Act As more fully described in section C above, on February 9, the third day of the strike, when employees Joseph Conklin and Tim McCabe drove a company truck from the plant to deliver and install air compressors at customers' premises, they were followed by union pickets Kowalski and Long, and at each of three customers' places of business, Kowalski first asked the customer not to receive the compressor and to honor the Union's picket line, and 36 Local 542 International Union of Operating Engineers (Giles & Ransome Inc) 139 NLRB 1169 1175 International Woodworkers of America (W T Smith Lumber Company) 116 NLRB 507 509 Local 28 International Organization of Masters Mates and Pilots Inc (Ingram Barge Company ) 136 NLRB 1175, 1184 District 50 United Mine Workers of America (Tungsten Mining Corporation) 106 NLRB 903 908 as I do not however find the Union responsible for the coercive statements made by Long and Thistle to employee McNiff as found in section D 4 above because that visit was made at night not from the picket line and because their is no evidence that the Union s paid agents either authorized the visit knew about it or ratified it There is moreover no evidence as to who perpetrated the firebombing of two widely separated company trucks during the early morning hours of March 13 and despite my suspicions I regard the evidence insufficient to establish the Union s responsibility therefor 38 Section 8(b)(4)(i) and (u)(B) of the Act provides as follows Sec 8(b) It shall be an unfair labor practice for a labor organization or its agents- when the customer refused to accede to Kowalski's request, Kowalski then threatened to picket the customer and to thereby cut off his receipt of deliveries In addition, at one customer's premises, that of Gateway Tire Co, Kowalski ran into the shop and shouted, "strike strike, strike," to Gateway's employees, and Long picketed in front of Gateway's premises while Conklin and McCabe made their delivery The complaint in Case 29-CC-30 7 alleges that by this conduct, the Union violated Section 8(b)(4)(i) and (n)(B) of the Act 38 Insofar as here relevant, this section of the Act (with whose violation the Respondent is charged) prohibits unions and/or their agents from engaging in strikes against secondary or neutral employers, and from threatening, restraining, or coercing such secondary or neutral employ- ers, where, in either case, an object of said conduct is to force or require the secondary or neutral employer to cease doing business with the primary or disputing employer or person This section is generally known as the secondary boycott provision, and as the Board and the courts have repeatedly pointed out, it is aimed at "shie ldmg unoffend- ing employers and others from pressures in controversies not their own "39 As stated by Learned Hand, Chief Judge of the Court of Appeals, Second Circuit 40 The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some thu d party who has no concern in it However, as the proviso makes clear, this provision does not prohibit or make unlawful "any primary strike or primary picketing " Viewed in the light of these principles, the record clearly discloses that the Respondent Union violated Section 8(b)(4)(i) and (ii)(B) of the Act Thus, the Union clearly had no labor dispute with any of the Company's custom- ers, and Kowalski's threat to picket them if they accepted the delivery of their air compressors from the Company constituted threats, coercion, and restraint within the meaning of Section 8(b)(4)(ii) Moreover, the picketing, of Gateway Tire by Long while the air compressor was being delivered by Conklin and McCabe, and the shouts of "strike, strike, strike," to Gateway's employees by Kowal- ski, clearly constituted inducement of Gateway's and other employees not to perform services Furtht rmore, it cannot be gainsaid that an object of the said conduct was to force (4)(i) to engage in or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in a strike or a n fusal in the cour,e of his employment to use manufacture process transport or otherwise handle or work on any goods articles materials, or commodities or to perform any services or (n) to threaten coerce or restrain any person engaged in commerce or in an industry affecting commerce where in either case an object thereof is (B) forcing or requiring any person to cease u' ing selling, handling transporting or otherwise dealing in the products of any other producer processor or manufacturer or to cea,e doing business with any other person Provided That nothing contained in this clause (B) shall be construed to make unlawful where not otherwise unlawful any primary strike or primary picketing 39 N L R B v Denver Building and Construction Trades Council (Gould & Preisner) 341 U S 675 692 40 International Brotherhood of Electrical Workers Local 501 [Samuel Langer] v NLRB 181 F 2d 34 37 (CA 2), affd 341 US 694 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or require the Company's customers to cease doing business with the Company by not accepting the delivery of the compressors 41 Accordingly, I find that by the foregoing conduct the Respondent Union violated Section 8(b)(4)(i) and (ii)(B) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce V THE REMEDY Having found that the Respondent Union has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Both the General Counsel and the Charging Party contend that, in view of the Respondent Union's current and past violations of both Section 8(b)(1)(A) and Section 8(b)(4)(i) and (ii)(B) of the Act,42 a board order is required which will enjoin the Union from any further such violations as to any employer In addition, the Charging Party contends that "only an order dismissing the Union's petition" for certification as the collective-bargaining representative of the Company's employees,43 and barring it from any organizational activity at Scales for a two years period, would compensate for the fear and harassment that the Scales' employees have lived through during the period February 7-April 1, 1972 In the light of the Respondent's record of unfair labor practices, and those found herein, I regard the requested broad order appropriate, and I shall so provide However, I deny the Charging Party's additional request to dismiss the Union's petition and for other relief, since I regard that request as one which more appropriately should be directed to the Regional Director, or the Board, and I leave to their discretion the determination of when the effects of the unfair labor practices found above will have dissipated sufficiently to permit the holding of a fair election Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Local 810, Steel, Metals, Alloys & Hardware Fabricators & Warehousemen, International Brotherhood 41 My reasons for holding the Respondent Union responsible for this excursion of Kowalski and Long from the picket line have already been stated above 42 N L R B v Local 810 etc (R B Wyatt Mfg Co) 253 F 2d 832 (C A 2 1958) enforcing 117 NLRB 700 N L R B v Local 810 etc (Main Steel & Wire Corp) 274 F 2d 688 (C A 2 1960) enforcing 123 NLRB 1226 N L R B v Accurate Forming Corporation and Local 810 etc 288 F 2d 818 (C A 3 1961) enforcing 128 NLRB 653 NLRB v Loca1810 etc (Fein Can Corp ) of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) and 8(b)(4) of the Act 2 Scales Air Compressor Corp is an employer or person engaged in interstate commerce, or in an industry affecting commerce, within the meaning of Sections 2(6) and 8(b)(4) of the Act 3 By restraining and coercing employees of Scales Air Compressor Corp and of other employers, in the exercise of rights guaranteed in Section 7 of the Act, the Respondent, Local 810, Steel, Metals, Alloys & Hardware Fabricators & Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act 4 By inducing and encouraging employees of Gateway Tire Co to engage in a strike or refusal in the course of their employment to perform services, and by threatening, coercing, and restraining Gateway Tire Co, Technical Crafts, Inc, and the State of New York, Division of Military Affairs, with an object of forcing or requiring Gateway Tire Co , Technical Crafts, Inc, and the State of New York, Division of Military Affairs to cease doing business with Scales Air Compressor Corp, the Respon- dent, Local 810, Steel, Metals, Alloys & Hardware Fabricators & Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(4)(i) and (n)(B) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended 44 ORDER Respondent, Local 810, Steel, Metals, Alloys & Hard- ware Fabricators & Warehousemen, International Brother- hood of Teamsters, Chauffeurs, Warehousemen, & Helpers of America, its officers, agents, and representatives, shall I Cease and desist from (a) In any manner restraining or coercing employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such rights may be affected by an agreement requiring member- 299 F 2d 636 (C A 2 1962) enforcing 131 NLRB 59 43 Case 29-RC-1913 44 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order herein shall as provided in Sec 102 48 of the Rules and Regulations automatically become the findings conclusions decision and order of the Board and all objections thereto shall be deemed waived for all purposes LOCAL 810, FABRICATORS & WAREHOUSEMEN 587 ship in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act (b) Engaging in, or inducing or encouraging employees of Gateway Tire Co, Technical Crafts, Inc, the State of New York, Division of Military Affairs, or any other employer or person engaged in commerce or in an industry affecting commerce, to engage in, a strike or refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or (c) threatening, coercing, or restraining any of the above-named employers or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require the above-named employers, or any other person to cease using, selling, handling, transporting, or otherwise dealing in the products of Scales Air Compressor Corp, or any other employer or person, or to cease doing business with Scales Air Compressor Corp, or any other employer or person 2 Take the following affirmative action which it is found will effectuate the policies of the Act (a) Post at its business office and meeting, halls copies of the attached notice marked "Appendix" 45 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by them for a period of 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) Furnish the said Regional Director with signed copies of the aforesaid notice for posting by Scales Air Compres- sor Corp, if willing, at all places where notices to employees are customarily posted (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply here- with 46 I further order that the complaint herein be dismissed insofar as it alleges violations of the Act other than those found above 45 In the event that the Board s 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 be changed to read Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board 46 In the event that this recommended Order is adopted by the Board after exceptions have been filed this provision shall bi modified to read Notify said Regional Director for Region 29 in writing within 20 days from the date of this Order what steps the Respondent has taken to comply herewith