Warehouse, Retail and Mail Order Employees

WAREHOUSE, RETAIL AND MAIL ORDER EMPLOYEES Warehouse, Retail and Mail Order Employees Local Union No,, 590, iffiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of Amercia i and Southern States Cooperative, Inc., Feed Division.) Case 5-CB-1426 June 21, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 27, 1974, Administrative Law Judge George L. Powell issued the attached Decision in this proceeding. Thereafter, Respondent 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order. DECISION STATEMENT OF THE CASE 807 GEORGE L. POWELL, Administrative Law Judge: The issues in this case are: While picketing, A. Did certain union representatives threaten employ- ees with physical harm? B. Did the union official and a union representative physically assault and inflict bodily injury upon employees and applicants for employment by Charging Party and restrain them from entering Charging Party's property? C. Did union representative and a striking employee ,throw rocks at a truck of Charging Party as it was being driven across the picket line by an employee? D. Did any of these acts constitute a violation of Section 8(b)(1)(A) of the National Labor Relations Act, herein called the Act? (29 U.S.C. Sec. 151, et seq.) For the reasons hereinafter set forth, I find the General Counsel has proven the facts by a preponderance of the evidence and I find the Act has been violated as alleged. A remedy will be fashioned to effectuate the policies of the Act. The Case 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 Warehouse, Retail and Mail Order Employees Local Union No. 590, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. i The names of the parties appear as amended at the hearing. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings 3 In fashioning the remedy herein, the Administrative Law Judge inadvertently recommended that Respondent "be ordered to cease and desist from infringing in any manner upon the rights guaranteed its employees by Section 7 of the Act." Since the employees in question are those of the Charging Party and not Respondent, we correct "The Remedy" portion of his Decision to read , in pertinent part, that Respondent is "ordered to cease and desist from infringing in any manner upon the rights guaranteed the employees by Section 7 of the Act." Southern States Cooperative, Inc., herein called the Company or Charging Party, filed a charge on October 2, 1973, with the National Labor Relations Board, herein called the Board, charging that Warehouse, Retail and Mail Order Employees Local Union No. 590, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Union or Respon- dent, had engaged in unfair labor practices affecting commerce within the meaning of the Act.' This resulted in a complaint and notice of hearing being issued by the Regional Director for Region 5 of the Board, on behalf of the General Counsel of the Board, on October 18, 1973. Respondent denied the essential allegations that it violated the Act. With the General Counsel of the Board, Respondent, and the Charging Party each represented by counsel, the case was tried before me in Baltimore, Maryland, on December 3, 4, and 5, 1973. The parties were given full opportunity to present evidence and examine and cross- examine witnesses. Counsel for Respondent and General Counsel filed briefs on January 18, 1974. Upon the entire record including my observation of the demeanor of the witnesses, and after due consideration of the briefs of the parties, I make the following: i The name of Respondent was corrected at the trial to be as stated in the caption hereto. 211 NLRB No. 106 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS 1. JURISDICTION The Company is a Virginia corporation engaged in the manufacture and sale of fertilizer, seed, and farm supplies at its East Fort Avenue, Baltimore, Maryland, location. During the 12 months preceding the issuance of the complaint, the Company sold and shipped products valued in excess of $50,000 directly to points located outside the State of Maryland . I find the Company is and, at all tunes material, has been an "employer" as defined in Section 2(2) of the Act, engaged in "commerce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act, respectively. The parties admit and I find that Respondent is, and has been, a labor organization within the meaning of Section 2(5) of the Act. There is no issue of jurisdiction. H. THE ALLEGED UNFAIR LABOR PRACTICES The parties admit and I find that the following named persons occupied positions set opposite their respective names, and have been, and are now, agents of the Respondent, acting on its behalf, within the purview of Section 2(13) of the Act: Joseph Ritz-Secretary-Treasurer Mickey Williams-Representative Jesse Thacker-Representative Fred Killen-Representative The parties also admit that on or about September 5, 1973, and at all times material thereafter, Respondent was engaged in a labor dispute with the Company and has engaged in picketing of the Company. Thursday, September 13, 1973 Union Agent Mickey Williams and picket John Nagliari were standing at the East Fort Avenue entrance to the Company's property on September 13, 1973, when compa- ny truckdriver Raymond Dashiells was driving his truck from the Company's loading area into East Fort Avenue about 2 p.m. As he reached the entrance he stopped the truck to observe the traffic on the avenue . Seeing none, he prepared to drive off the Company's property onto the avenue. At that instant, picket Nagliari threw a stone at the truck hitting the bottom of the opened window on the passenger's side of the cab. The stone then richocheted into the cab where it bounced around a bit and finally came to rest. When Nagliari threw the rock he was standing in the entrance way a few feet to the right of the truck. Union Agent Mickey Williams was standing a few feet in front of Nagliari when the rock was thrown . Thereafter, Dashiells drove back into the Company's parking lot and discussed the incident with Plant Manager Carico. Carico then telephoned the police. When they arrived on the scene, they interviewed Carico, Dashiells, Williams, and Nagliari. At no time did Williams ever disavow Nagliari's conduct or direct him not to throw stones . Nagliari was never called to testify nor did Williams ever deny Nagliari threw the stone. Eyewitness Carico testified credibly to the above and he was corroborated by Dashiells with respect to the stone in the truck but Dashiells never saw it thrown. Accordingly, I find that picket Nagliari threw a stone at Dashiells' truck as it was crossing the picket line and that this action was condoned by Union Agent Williams. This violated Section 8(b)(1)(A) of the Act. [A ] union which calls a strike and authorizes picketing must retain control over the pickets in whatever manner it deems necessary, in order to insure that they do not act improperly. If a union is unwilling, or unable, to take the necessary steps to control its pickets, it must then bear the responsibility for their misconduct. [Drivers, Salesmen, Warehousemen, et at, Local 695, IBT (Tony Pellitteri Trucking Service, Inc.), 174 NLRB 753, 758. Cited with approval by Adminis- trative Law Judge Von Rohr, and affirmed by the Board, in General Drivers and Dairy Employees Local Union 563 (Northern Contractors Supply, Inc.), 183 NLRB 1023.] Friday, September 21, 1973 While the strike was on, the Company advertised in the local newspapers, on September 19, 1973, for permanent replacements for those on strike, and hired 21 replacements between September 21 and 26, 1973. Larry Reed and Roosevelt Gunther were two of the replacements hired on September 21, 1973. They had no difficulty crossing Respondent's picket line in the morning coming to work on Friday, September 21 but on leaving work about 4:30 p.m. they had a conversation with Fred Killen, a union representative, as they crossed the picket line. Killen asked them if they were coming to work Saturday. When they said they were not working Saturday, Killen asked them if they intended to work on Monday. Reed and Gunther responded that they would be working on Monday. Killen then said, "He wouldn't do that if he was [them ] because it was going to be worser [sic ] and that he wasn't responsible for what was going to happen to [them]." Union Agent Jesse Thacker was also present during this incident. Killen's denial of this threat is not credited. He even denied that the Union used "outsiders," i.e., persons who were neither company employees nor union agents, on the picket line, when photographs introduced at the trial contradict him and show "outsiders" s pickets (see G.C. Exh. 5). Witnesses Reed and Gunther are credited. I find Killen's statement to Reed and Gunther to be an implied threat of physical harm if they reported for work on Monday. Monday, September 24, 1973 As Killen had foreseen, things got "worser" on Monday, September 24, 1973. According to the credited testimony of striking employee Wilson Cook, he arrived at the picket line to commence picketing about 3:30 a.m. to permit early employees to honor the picket line. The only person present when Wilson arrived was Respondent's agent, Jesse Thacker. A few minutes later six men arrived by car and walked over to where Cook and Thacker were standing. Although none of these men were company WAREHOUSE, RETAIL AND MAIL ORDER EMPLOYEES 809 employees, one of them told Thacker that striking employee "Mike Hayden had asked them to come down to help stop the people that Southern States had hired from crossing the picket line." Thacker suggested that the men return later since Hayden had not yet arrived at the picket line. The men then drove off, but returned within about 45 minutes and remained for the rest of the morning. Due to the presence of these six men, Cook sensed "trouble" or a "fight" because, as he stated it, "Wherever they go, they kind of look out for that kind of stuff. They drink beer." He saw them with beer cans in their hands that early in the morning. Office employees, job applicants, and striker replace- ments began arriving at the plant about 7 a.m. By that time the Respondent's picket line was formed in front of the plant entrance and nobody could drive through the picket line without stopping or hitting one of the pickets. Those who crossed the line received permission to do so from Respondent Secretary-Treasurer Joe Ritz, who admitted that cars could not cross the line unless he motioned to the pickets to step aside and let the car pass. Not all were permitted in. About 7 a.m. two job applicants, Jesse Peoples and James Mitchell, approached the picket line on foot. Mitchell and Peoples told the pickets that they were seeking employment and wished to cross the picket line. The pickets said that they would not be responsible for what happened to Peoples and Mitchell if they crossed the picket line. Then one picket said, "Buddy, you ain't getting my job.." Peoples and Mitchell then angrily walked away from the picket line and stood across the street. A few minutes later a car pulled up to the entrance and was stopped by the pickets. The two occupants got out of the car. The pickets then told the driver that he could not enter the plant and after some discussion he and his passenger got back into the car and drove away. About 7:45 a.m. Richard Commander drove his car up to the picket line. His brother, William Commander, and Larry Jenkins, Charles Jenkins, George White, James Rice, and Otis Edwards, Jr., were also in the car. There were about 12 to 15 pickets on the line at that time including Respondent Secretary-Treasurer Joe Ritz. The pickets formed a circle around Commander's car making it impossible for him to enter the plant without hitting one of them. Ritz then walked over to the driver's side of the car and told Commander that he could not go through the line. Commander said, "You all can strike if you want to but just let me go on through and go to work." Ritz, speaking through the open car window, told Commander and the occupants of the car that "if [they] attempted to come through the line he wouldn't be responsible for what happened." Then some of the strikers started rocking the car and Commander got out and told them to get off his car. Picket Mike Hayden then struck Commander and pushed him down. Immediately thereafter, the rest of the men in the car got out and a general fight occurred between the pickets and the men in the car. The fight ended within a few minutes when Commander opened the trunk of the car and he and some of his friends used the tools which were in the truck as weapons. When confront- ed with this show of force the pickets retreated to Fort McHenry and Commander, et al., went to work. The police arrived a few minutes after the fight, but made no arrests. Several men on both sides of the fight were then taken to the hospital and treated for injuries which they incurred during the fight. Ritz' testimony of this event is not credited against the credited version of witnesses for the General Counsel. Throughout the case, some of the witnesses for Respondent tend to corroborate the witnesses for the General Counsel. I am convinced that the violence was started by the pickets and finished by the car occupants. The beer-drinking friends of picket Hayden engaged in the misconduct, along with other pickets, with full knowledge of Williams and Ritz with no apparent effort to stop it. As noted, above, this makes the Union responsible. Discussions and Conclusions I find Respondent violated Section 8(b)(l)(A) of the Act by threatening employees with physical harm if they crossed the picket line, throwing a rock at a truck as it crossed the picket line, restraining employees from entering the plant, and assaulting employees who refused to honor the picket line. Section 8(b)(1)(A) of the Act makes it an unfair labor practice to coerce or restrain employees in the exercise of their right to engage in or refrain from engaging in protected concerted activity. It is, of course, a violation of this section for a union or its agents to physically assault an employee for attempting to cross a picket line. International Longshoremen's and Warehousemen's Union, Local No. 6 (Pacific Abrasive Supply Co.), 182 NLRB 329, 334-336; N.L.R.B. v. UMW, District 2, 418 F.2d 240 (C.A. 3, 1969). It is similarly unlawful to threaten employees with physical harm for crossing the picket line, or to block employees' ingress to the employer's property. District 50, Allied and Technical Workers, Local 14055 (Austin Co.), 198 NLRB No. 179; International Brotherhood of Boilermakers, et al., Local 696 (The Kargard Company), 196 NLRB 645. As noted earlier, the Board has also found it to be unlawful to throw rocks at vehicles as they passed through the picket line. General Drivers and Dairy Employees, Local Union 563, 183 NLRB 1023. I shall fashion a remedy for the foregoing unfair labor practices to include an order which requires the Respon- dent to cease and desist from violating Section 8(b)(1)(A) of the Act by throwing rocks at trucks or other vehicles as they cross Respondent's picket lines, threatening employ- ees with physical harm for crossing Respondent's picket lines, blocking employees' ingress to the Company's property, and assaulting employees as they attempt to cross the picket line. CONCLUSIONS OF LAW 1. The Charging Party is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with physical harm if they crossed the picket line, throwing a rock at a truck as it 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crossed the picket line, restraining employees from entering the plant, and assaulting employees who refused to honor the picket line, Respondent has violated Section 8 (bx1)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Charging Party described in section II, above, have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(1XA) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. In view of the nature of the unfair labor practices committed, I am of the opinion that the commission of similar unfair labor practices may be reasonably anticipat- ed, I shall therefore recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER2 Respondent, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Throwing rocks at trucks or other vehicles as they cross Respondent's picket lines. (b) Threatening employees with physical harm for crossing Respondent's picket lines. (c) Blocking employees' ingress to company property and assaulting employees as they attempt to cross Respondent's picket lines. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post in its office in Baltimore , Maryland, and in the plant of Charging Party, it willing, copies of the attached notice marked "Appendix."s Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent , shall be posted by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members of Respon- dent and employees of Charging Party 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) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 2 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, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 3 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES 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 have violated the law and has ordered us to post this notice. WE WILL NOT throw rocks at trucks or other vehicles as they cross our picket lines. WE WILL NOT threaten employees with physical harm for crossing our picket lines. WE WILL NOT block employees from going through our picket lines. WE WILL NOT assault employees as they attempt to cross our picket lines. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives 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. WAREHOUSE, RETAIL AND MAIL ORDER EMPLOYEES LOCAL UNION No. 590, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) WAREHOUSE, RETAIL AND MAIL ORDER EMPLOYEES 811 This is an official notice and must not be defaced by Any questions concerning this notice or compliance with anyone. its provisions may be directed to the Board's Office. This notice must remain posted for 60 consecutive days Federal Building, Room 1019, Charles Center, Baltimore, from the date of posting and must not be altered, defaced, Maryland 21201, Telephone 301-962-2822. or covered by any, other material.