Plumbers Local 195 (McCormick-Young Corp.)

PLUMBERS, LOCAL UNION NO. 195 United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 195, AFL-CIO and McCormack-Young Corporation. Case 23-CB-1948 December 9, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS MURPHY AND TRUESDALE On April 19, 1977, Administrative Law Judge Robert W. Leiner issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, General Counsel filed a brief in support of the Administrative Law Judge's Decision, and the Charging Party filed a brief in opposition to Respondent's exceptions. 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, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent violated Section 8(b)(1)(A) of the Act by engaging in mass picketing and other picket line misconduct on October 18 and 19, 1976, at the Anahuac, Texas, jobsite of McCormack-Young Corporation. Respondent contends that the evidence fails to establish that Respondent is responsible for the alleged picket line misconduct. We find merit in Respondent's contention. The facts of this case, as more fully set forth by the Administrative Law Judge, are not materially in dispute and may be summarized as follows: Com- mencing in July 1976, McCormack-Young Corpora- tion was engaged in the construction of a compres- sor-booster station at Anahuac, Texas. On Friday, August 13, 1976, Pete Ellis, Respondent's business manager, and Eddie Wise, an agent of the IBEW, approached Project Superintendent James B. Watts at the jobsite. Ellis asked Watts if Local 195 could organize the job. Watts replied that he had no authority to grant that request and pointed out that the job was an "open shop." After a brief discussion, Ellis told Watts, "We'll be back," and then departed with Wise. On Monday through Wednesday, August 16-18, 1976, small groups of pickets from two unions, the Operating Engineers and the IBEW, appeared at the site with signs that "informed the public that 233 NLRB No. 172 McCormack and Young had no agreement with" the respective unions. These pickets at no time blocked access to the site and there was no work stoppage as a result of their picketing. No one contends that this was anything but lawful informational picketing. Approximately 2 months later, on October 18, 1976, Watts arrived at thejobsite at 7 a.m. and found approximately 40 people blocking the access road to the site. Two pickets carried signs which read: "On Strike Pipefitters Local 195 Against McCormack and Young Const. for Wages and Conditions." Watts approached the group in his truck and stopped. One of the men who crowded around his truck told Watts that he did not "work here anymore, the job is shut down." The picket also told Watts that tomorrow "We'll have 3,000 people out here" and "I'm just the man who can stop you from going on the job." Watts asked several pickets to identify themselves, but they declined to do so. Watts drove away and called McCormack-Young to inform them of the picketing. On returning to the site later that morning he found that the police had arrived. After some effort the officers parted the crowd sufficiently to permit Watts, preceded by an electrical subcontractor's truck, to move through slowly. As the two vehicles proceeded through the crowd, the pickets variously shouted and beat on the trucks with their fists, damaged a small electric heater taken from the back of the first truck, and jabbed at Watts with the butt end of a Local 195 picket sign. Except for one office clerical employee, no employees came through the picket line to the jobsite that day. On Tuesday, October 19, Watts arrived at 6 a.m. and saw more than 100 pickets blocking the access to the jobsite. The same picket who had spoken to him on the previous day came over to his truck and told Watts, "[Y]ou're not going in this morning." As a highway patrolman tried to part the picket line, Watts began to drive through. The pickets yelled at him and beat on his truck; someone struck him through the open window of his truck, giving him a black eye; and an exterior rear view mirror was broken off his truck. Later, the pickets rolled a large culvert pipe across the access road. No employees came to work on October 19. At the instruction of McCormack-Young's president, Watts instructed employees by telephone to stay off the job on Wednesday and Thursday. On Tuesday, the Charging Party obtained a temporary restraining order. Carrol E. Wilborn, Jr., assistant district attorney of Liberty and Chambers Counties, testified without contradiction that he observed Pete Ellis being served with the temporary restraining order in the Chambers County court- house. In a subsequent discussion at the courthouse, 1087 DECISIONS OF NATIONAL LABOR RELATIONS BOARD William A. Jones, an attorney for the Charging Party, asked Ellis if he was going to be out there the next morning and whether or not he could control his people out there. According to Wilborn's testimo- ny, Ellis replied that either he or another business agent, a Mr. Hill,1 would be there and that he "felt that he could control his people, but he couldn't speak for any others . .. that were out there."2 On Wednesday morning, October 20, at or about 5:30 a.m., Wilborn went to the jobsite accompanied by 50-60 police officers. Approximately 180-250 pickets were congregated at the entrance to the access road, and several (not more than 3) carried Local 195 picket signs. At 8 a.m. Wilborn addressed the pickets with a bullhorn and read them the temporary restraining order. Thereafter all but about 10 or 15 of the pickets left. Based on the foregoing, the Administrative Law Judge found that Respondent violated Section 8(b)(1)(A) of the Act. In finding Respondent respon- sible for the mass picketing and the picket line misconduct, the Administrative Law Judge relied on the following factors: (I) the failure of Pete Ellis, Local 195's business manager, when served with a temporary restraining order on October 19, 1976, to disclaim or disavow the conduct proscribed by that order; (2) Ellis' statements, in a discussion subse- quent to the service of the order, to the effect that he or Bruce Hill would be on the picket line the next day and could control "his" people out there, but that he could not speak for any others; (3) Ellis, 2 months prior to the picketing, had asked Project Supervisor James Watts if Local 195 could organize the job and, on being rebuffed by Watts, told him, "We'll be back"; (4) the "introduction," at the picket line on October 20, 1976, of a Local 195 business agent to Carrol E. Wilborn, Jr., assistant district attorney for Liberty and Chambers Counties, Texas; and (5) the use of picket signs of Local 195 at the picket line. For the reasons set forth below, we find that these factors are insufficient to establish that Respondent authorized, ratified, condoned, or is otherwise responsible for the picketing and the misconduct of the unidentified pickets on October 18 and 19, 1976. 1 Bruce Hill is Local 195's assistant business manager. 2 The Administrative Law Judge states that Wilborn testified that earlier in the day. "Tim Byrum, who identified himself as an agent of Respondent. and Respondents attorney, Alto Watson . . told him that Local 195 wanted to file charges against J. B. Watts for having driven a truck through the picket line injuring the pickets." Wilborn's testimony, however, shows that Byrum introduced himself as a member of the Respondent, and Local 195 was not mentioned as the charging party. Furthermore, Wilborn did not originally testify that Watson identified himself as anything but "an attorney," and later testified that Watson said he was the lawyer for the "Pipefitters" only after the Administrative Law Judge posed a series of leading questions to which the obvious answer was "the Pipefitters." 3 See, e.g.. International Brotherhood of Boilermakers, Iron Ship Builders, It is, of course, well established that "where a union authorizes a picket line, it is required to retain control over the picketing. If a union is unwilling or unable to take the necessary steps to control its pickets, it must bear the responsibility for their misconduct." 3 Similarly, if pickets engage in miscon- duct in the presence of a union agent, and that agent fails to disavow that conduct and take corrective measures, the union may be held responsible. 4 The burden, of course, is on the General Counsel to come forward with sufficient evidence to establish either that the union authorized the picketing or that the union had knowledge of the misconduct and failed to disavow it and take corrective action. Absent such proof, the Board cannot hold a union liable for picketers' misconduct, however reprehensible. In the instant case, a careful examination of the record leads us to conclude that the General Counsel has not met his burden. There is no direct evidence that Respondent authorized the picket line. No one picketing at the McCormack-Young jobsite or arrested as a result of incidents connected with that picketing was identi- fied as a member or agent of Local 195. Nor is there evidence that Local 195 knew of or condoned the misconduct of unidentified persons on the picket line on October 18-19, 1976. As for the presence of Local 195 picket signs on the line, that fact does not establish that the Respondent authorized or was aware of their use, considering the physical appear- ance of such signs. From the record it seems that the signs had been printed for use in connection with the picketing of another company on a previous occa- sion; the name of the other company had been covered with tape and McCormack-Young's name had been written over the tape. These "leftover" signs bearing the name of Local 195, therefore, could have been carried by Local 195 members or by anyone, but no evidence shows that they were carried at the direction of Local 195, 5 or with its knowledge. Consequently, we find that the Administrative Law Judge's reliance on these signs is unfounded. Similarly unconvincing as a reason for holding Respondent responsible for the picketing and the picketers' misconduct is Ellis' "We'll be back" statement, made 2 months prior to the commence- Blacksmiths, Forgers d Helpers, Local 696 (The Kargard Company), 196 NLRB 645, 647 (1972), followed in Squillacote v. Local 248, Meat & Allied Food Workers, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO), 390 F.Supp. 1180, 1184 (D.C. Wis., 1975). 4 Laborers' International Union of North America, AFL-CIO, et al. (Apex Contracting, Inc.), 219 NLRB 142 (1975); International Association of Machinists and Aerospace Workers, AFL-CIO, and its agent, Juan L. Maldonado (General Electric Company Circuit Protective Devices Department, Cariu' Plant Operations, et al.), 189 NLRB 50 (1971). 5 Cf. International Brotherhood of Electrical Workers, Local Union No. 43, A FL CIO (Executone of Syracuse, Inc.), 172 NLRB 621, 624 (1968). 1088 PLUMBERS, LOCAL UNION NO. 195 ment of the picketing at issue herein. Such a statement clearly contains no explicit threat to picket. Furthermore, we note that Local 195 was not a participant in the informational picketing of McCormack-Young's jobsite on August 16-18, which occurred shortly after Ellis made this state- ment. Surely, had Ellis meant by his comment to imply that picketing would follow, it is likely that his union would have joined in that picketing. That Respondent did not tends to show that no such implication was intended by Ellis when he stated, "We'll be back." In any event, that statement is too ambiguous and removed in time to constitute evidence that Respondent authorized the picket line. 6 For example, Ellis' statement could have meant that he would be back to discuss further the possibility of organizing the job, or that he would set up a peaceful, lawful, informational picket line. When a statement is susceptible to varying interpre- tations, some indicative of a lawful motive and others of an unlawful motive, we must construe the statement, in the absence of other indicia of unlawful motive, in the light most favorable to the declarant. Likewise, Ellis' silence when served with the temporary restraining order is sufficiently ambiguous as to be an inadequate basis for an inference that Respondent was responsible for the misconduct proscribed therein. His silence certainly does not, in these circumstances, constitute an admission. Simi- larly, his prospective statement that he could control his people out there, but that he could not speak for others, cannot be said to constitute an admission that Respondent either authorized the picket line or knew of and condoned the misconduct of unidentified persons. His statement could just as easily be construed to mean that he could control any Local 195 members who might be engaged in the picketing, and that, as far as he was concerned, if anyone engaged in misconduct subsequent to the court order, it would be persons other than Local 195 members involved. Finally, contrary to the Administrative Law Judge's finding that Wilborn was introduced to a Local 195 business agent at the picket line on October 20, Wilborn testified explicitly that a Local 195 "business agent" was "identified to me, not introduced, Your Honor, he was. . . pointed out to me by Mr. Jones." Mr. Jones is the attorney for the Charging Party. However, even if Wilborn were introduced to a Local 195 agent at the picket line on October 20, this would not establish that Local 195 authorized the picketing or condoned the picket line misconduct on prior days. At most, this evidence would show that Local 195 was seeking to comply with the restraining order with regard to any of its members who might be on the picket line thereafter, as indicated by Ellis the day before. In view of the foregoing, we find contrary to the Administrative Law Judge that the evidence does not establish that Respondent was involved in the picketing on October 18-19, 1976. As stated above, there is no evidence that any member or agent of Local 195 participated in the picketing on those dates. Indeed none of the pickets was identified. Likewise absent is any evidence showing that Local 195 expressly authorized the picket line or knew of or condoned the alleged misconduct. Accordingly, the inference drawn by the Administrative Law Judge that Respondent is responsible for the picketing and misconduct that occurred is unwarranted. Although the circumstances of this case are suspicious, we do not decide cases on surmise and speculation. Much of the conduct shown to have occurred on this picket line would, of course, constitute violations of Section 8(b)(IXA) if engaged in by Local 195 or its agents. However, the General Counsel has failed to establish by a clear preponder- ance of all the relevant evidence that Respondent authorized the picketing or was otherwise responsible for the picket line misconduct. Accordingly, as the General Counsel has not established that Respon- dent violated Section 8(b)(l)(A) of the Act, we will order that the complaint herein be dismissed in its entirety.7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 6 See. e.g., N.LRB. v. Patrick Plaza Dodge, Inc., 522 F.2d 804 (C.A. 4. 1975). Puerto Rican Distillers, Inc., 218 NLRB 729 (1975). 7 In finding that Respondent engaged in the unlawful conduct alleged, the Administrative Law Judge noted that Respondent called no witnesses to contradict the testimony of the General Counsel's witnesses. However, it is Respondent's position that the General Counsel failed to show that Local 195 was responsible for the picket line or the alleged misconduct, and, therefore, the burden of going forward with the evidence never shifted to Respondent. Inasmuch as we find, in light of the above discussion, that counsel for the General Counsel failed to come forward with sufficient evidence to establish a pnnra Jacie violation, the burden never shifted to Respondent to present rebuttal evidence. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge: The hearing in the above-captioned case was held before me on January 6, 1977, in the Jefferson County Courthouse, Beaumont, Texas, pursuant to a complaint and notice of hearing issued on November 12, 1976, by the Regional Director of the National Labor Relations Board for Region 23, against United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the 1089 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States and Canada, Local Union No. 195, AFL- CIO, herein called Respondent. The complaint alleges violations of Section 8(b)(1)(A) of the National Labor Relations Act, as amended, herein called the Act, by Respondent's mass picketing preventing ingress and egress, damaging property, and attempting to injure and injuring a supervisor. The charge giving rise to the complaint was filed on October 22, 1976, by McCormack-Young Corpora- tion, herein called McCormack-Young or the Charging Party. Respondent's duly filed answer to the complaint admits the jurisdictional allegations thereof, concedes its own status as a labor organization within the meaning of Section 2(5) of the Act, and denies the commission of any unfair labor practices. Additionally, Respondent admits that Pete Ellis, business manager, and Bruce Hill, assistant business manager, of Respondent, at all material times, were agents of Respondent, acting on its behalf within the meaning of Section 2(13) of the Act. On February 18, 1977, all parties filed timely briefs which have been considered. Upon the entire record in this case, based on my observation of the witnesses and the briefs filed herein, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER At all material times herein, McCormack-Young Corpo- ration has been and is a corporation duly organized under the laws of the State of Texas, maintaining its principal office and place of business at 8700 Commerce Park Drive, Houston, Texas, where it is engaged in the business of general contracting for industrial construction. During the past 12 months, a period representative of its business operations generally, McCormack-Young purchased goods and materials in an amount in excess of $50,000 from suppliers located in States of the United States other than the State of Texas, which goods and materials were shipped directly to it in the State of Texas. The complaint alleges, Respondent admits, and I find that McCormack-Young, at all times, has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is conceded by Respondent that it has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Background McCormack-Young Corporation is a contractor which, commencing July 1, 1976, was engaged in the construction of a compressor-booster station at Anahuac, Texas, near Interstate Highway 10. The function of the station, built for the Union Carbide Corporation, is to transmit gas along interstate pipelines. I Respondent called no witnesses. 2 The access road provides the sole means of entrance to and exit from the jobsite. A. The Testimony of James B. Watts' The uncontradicted testimony of James B. Watts, the Charging Party's project superintendent on the job, and the highest supervisor of the Charging Party at the jobsite, was that on or about Friday, August 13, 1976, at the jobsite, he spoke with two union agents: Pete Ellis, business manager of Respondent, and Eddie Wise, an agent of the Interna- tional Brotherhood of Electrical Workers. Ellis asked Watts if Local 195 could organize the job and have its members work on the job. Watts told him that he had no authority to make any such commitment; stated that it was his understanding that this particular job was an open-shop job; and that he knew of no union contract that the Company had. Wise asked him how many electricians would be working on the job and Watts said he did not know but there would be an electrical subcontractor on the job. Watts told them the name of the electrical subcontrac- tor. Ellis told Watts that they were there because Respon- dent's members were concerned about the job and wanted Ellis to look into the matter. As the union agents left Watts, Ellis turned around, pointed his finger at Watts, and said: "We'll be back." A picket line was posted at the entrance to the jobsite on Monday, August 16. The picket signs, as Watts recalled, stated that they were informational pickets directed against McCormack and "Jones." The picket sign identified the picketing union as the Operating Engineers. On the next day, August 17, the International Brotherhood of Electrical Workers had pickets present with a picket sign carrying the name McCormack-Young and informing the public that McCormack-Young had no agreement with the I.B.E.W., or with the Beaumont Building Trades Council. The sign noted that the picketing union would not stop anyone from crossing the line. On Wednesday, August 18, 1976, the Operating Engineers returned to picket. There was no work stoppage on the 3 days of picketing. On August 16 and 17, there were two pickets, and on August 18 there were four pickets. The picketing occurred at the junction of a service road parallel to Interstate Route 10 and a newly construct- ed access road running perpendicular to the service road which led, after some 1,200 feet, to the McCormack-Young jobsite. No picketing occurred after August 18 until October 18, 1976. B. The Picketing of October 18, 19, and 20, 1976 (1) Monday, October 18: Around 7 a.m., October 18, 1976, the usual starting time of Watts as job superinten- dent, he drove up to the junction of the service road and the access road leading to the jobsite in his pickup truck. He saw 40 people at the junction of these two roads blocking the entrance to the access road to thejobsite. 2 He stopped his truck and the persons crowded around his truck. One of them asked him if he worked there, and, when he told them that he did, the person said, "You don't work here any longer; the job is shutdown." No names were given and no indications of representation were given except that two picket signs were produced. The apparent 1090 PLUMBERS, LOCAL UNION NO. 195 spokesman refused to give Watts his name or status. The picket signs read: "On Strike Pipefitters Local 195 Against McCormack and Young Const. for Wages and Condi- tions." Watts then drove away and telephoned McCor- mack-Young. He told company representatives that the plant was shut down. He then returned to the jobsite about 9:30 a.m., and found two patrol cars of the Texas Highway Patrol and the Sheriffs Office of Chambers County. He drove up to the picket line, but saw ahead of him a pickup truck bearing both the foreman and an employee of the electrical subcontractor (E.D.G. Company). Watts testified that normally McCormack-Young had 23 employees on the jobsite; that the electrical subcontractor had a foreman and 5 employees on the job; and that the fence builder subcontractor on the job (Astro Fence) had 4 employees on the job. In addition to these subcontractors' normal staff of employees on the job, Watts testified that the Don Love Company had a separate direct contract with Union Carbide to install suction and discharge lines at the compressor station; and that Allied Towers Co. had three employees on the job erecting foundations for the micro- wave towers which control operation of the station. He testified that all such employees had to use the newly constructed access road in order to reach the jobsite. In any case, he saw the electrical subcontractor's truck ahead of him as both of them tried to go through the picket line. The highway patrol officers at first were unsuccessful in having the pickets give way, but finally waved the pickets away to let Watts and the electrical subcontractor's vehicles through. They got through by about 9:30 a.m., more than 2 hours after the usual starting time. Watts testified that he saw the pickets pound on the electrical subcontractor's pickup truck with their fists and saw one of the pickets pull a small electric heater out of the back of the pickup truck, throw it on the ground, and break it. One of the police officers arrested the picket as the electrical subcontractor stopped the truck to pick up the heater. As Watts followed the electrical subcontractor's pickup truck through the picket line, a picket repeatedly jabbed the butt end of the pole holding a picket sign through the open window at the driver's side of Watts' pickup truck while Watts was driving. Watts testified that the sign on the pole was the Local 195 picket sign. No construction employees of McCormack-Young or the employees of any of the other subcontractor employers or direct employers worked on the jobsite that day. Watts remained until quitting time, 5:30 p.m. He testified that the only employee who came to work was the McCormack- Young female office clerical who arrived about an hour after her usual time, 8:30 a.m. He saw the pickets leave about I p.m. Watts testified that when he had earlier returned to the picket line at 9:30 a.m., the pickets asked him how many employees were on the job and he told them 40. The picket said that there were enough employees to give work to everyone of the pickets at the jobsite. The picket also said to Watts: "If you think you've seen anything today, wait until tomorrow. We'll have 3,000 people out here; and I'm just the man that can stop you from going on the job." In response to questions from 3 A picture of Watts (G.C. Exh. 8) taken the next day shows a considerable "shiner" and swelling, closing the eye half way. Respondent's counsel, Watts testified that he construed (a) the jabbing of the picket pole through the window in front of his face while he was driving the pickup truck, (b) the statement that there would be 3,000 pickets there the next day, and (c) the picket's statement concerning stopping Watts from coming on the job as threats of bodily harm. He also testified that when he went through the picket line that morning behind the electrical contractor's truck, the pickets parted on each occasion only when the police asked the pickets to move; otherwise he could not move forward without running them over with his pickup truck. (2) Tuesday, October 19: On the next day, Tuesday, October 19, 1976, Watts came to the job about an hour before he usually did, at 6 a.m. He saw more than 100 pickets at the junction of the service and access roads blocking the entrance to the jobsite. He stopped again. He rolled down his window and saw the same man who spoke to him the day before come over to him. He asked the picket to move away and let him go through and the picket said: "No, you're not going in this morning." Watts testified that the highway patrolman who was already there tried to part the picket line. At that point, Watts drove slowly through the picket line, all the pickets were yelling at him and beating on his pickup truck. While Watts was driving through the picket line with the pickup truck window half open, a picket punched him in the left eye and at the same time either that picket or another one, who had his hand on the outside rearview mirror wrenched it off. As a result of the punch in the eye, Watts suffered a black eye.3 At or about 10:30 a.m., Watts observed from his office window, through binoculars, that the pickets appar- ently rolled a piece of corrugated iron culvert pipe measuring about 36 inches in diameter and about 20- to 30- feet long (weighing about 450 pounds) across the junction of the two roads effectively blocking the access road. No employees came to work that day and the pickets stayed until about 5 p.m. Watts remained until about 5:30 p.m. On that day, Watts observed three of the above Local 195 picket signs in the hands of the pickets. After Monday morning (October 18), police and sheriff cars with police in them were present at all times at the picket line. (3) Wednesday, October 20: On October 20, no McCor- mack-Young employees went to work. James McCormack, president of McCormack-Young, instructed Watts to tell the employees to stay off the job and not to report on Wednesday or Thursday, October 20 or 21. Watts did so instruct the employees. Watts testified that the only vehicle that he observed (through binoculars) being turned away from the jobsite entrance was one that approached the picket line on October 19; but all he saw were the pickets blocking the entrance across the road, the automobile approach the picket line, and then turn around and drive away. On Friday, October 22, Watts returned to work in conjunction with about half of the McCormack-Young employees. The record shows that the picketing continued until on or about October 20, 1976, when Respondent was re- strained from picketing by a temporary restraining order of 1091 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the District Court of Liberty County, Texas, entered at noon, October 19, 1976 (G.C. Exh. 3).4 The order restrained mass picketing, insulting language, obstructing entrances, acts of force and attempts regarding such acts. C. The Testimony of Robert Williams Robert Williams, employed since September 1976, by the Charging Party as a rig welder at the jobsite, testified without contradiction that on October 18, he came to work between 6:40 and 7 a.m., drove up to the access road, and saw 40 to 45 men standing around. He stopped and asked them what was going on. One of them approached him and asked him if he worked for McCormack-Young, and, upon being told that he did, the picket answered: "Correction. You did. You no longer have a job there. You might as well look for employment somewhere else." Williams asked by whose authority the person was speaking and who was shutting down the job, and the person said: "Local 195 out of Beaumont has the job shutdown." Another picket produced a picket sign from the crowd. Williams recalled the sign said Local 195 on strike against McCormack- Young for wages and conditions. Williams told the picket that he thought it was an open-shop job and that the Union had no authority to shut down the job. The picket said: "You can either move that truck or you can get it burned with you in it. You have got a choice." Williams left the jobsite. D. The Testimony of Carrol E. Wilborn, Jr. Wilborn, assistant district attorney of Liberty and Chambers Counties, Texas, testified that in his office in the Chambers County (Texas) Courthouse, on the morning of October 19, he was met by two persons: Tim Byrum, who identified himself as an agent of Respondent, and Respon- dent's attorney, Alto Watson. They told him that Local 195 wanted to file charges against J. B. Watts for having driven a truck through the picket line injuring the pickets. After a discussion with them regarding presenting the facts to the grand jury, they left. Wilborn, later that day, saw them with Pete Ellis together with persons arrested on October 19 due to events described above. Later, in the afternoon of that day, he met with two attorneys for the Charging Party, Pete Ellis, the local sheriff, and a captain of the Texas department of public safety in the commissioner's courtroom in the courthouse of Chambers County. At that time, Pete Ellis, who had been identified to Wilborn as a business agent "with the Pipefitters local," was served with the temporary restrain- ing order (G.C. Exh. 3), supra. In a discussion at that time, Ellis said that either he or Hill 5 would be out on the picket line the next day (October 20, 1976). Wilborn asked Ellis whether there was going "to be any problem the next morning with the strikers." Charging Party Attorney Jones asked Ellis if he (Ellis) "could control his people out there." Ellis said he could but couldn't speak for any others. Wilborn said he wanted no officers hurt and Ellis said he believed it would be a "peaceful demonstration." 4 A temporary injunction was thereafter issued on October 21, 1976 (G.C. Exh. 2), on consent. The injunction provided for a limitation of two pickets at the jobsite entrance. Ellis did not disclaim knowledge of, or responsibility for, the picketing at that time or any other time. Lastly, Wilborn, on October 19, 1976, saw Ellis posting bail for persons charged with offenses arising out of the picketing. There was no definition as to who these persons were, nor was there particularization of the nature of the offenses. On the next morning, Wednesday, October 20, at or about 5:30 a.m., Wilborn went to the jobsite along with 50 to 60 deputy sheriffs, highway patrolmen, and police. He saw about 180 to 250 persons standing across the entrance of the access road and he saw picket signs which counsel for Respondent conceded were signs carrying the legend of Local 195. Wilborn was introduced by one of the attorneys of the Charging Party to a Local 195 business agent whose name he could not recall. At or about 8 a.m., Wilborn addressed the pickets over a bullhorn and read the temporary restraining order to them. By about 10 a.m., the number of pickets had shrunk to about 10 to 15. E. Discussions and Conclusions 1. Union responsibility The October 19 discussions between Wilborn, Jones, and Ellis in the Chambers County courthouse when the restraining order was served on Ellis indicate that Ellis acknowledged that at least some of the pickets included members of Local 195, or at least were under the control of Local 195. In addition, he said that the next day, either he or Union Agent Hill would be on the picket line to "control his people." Moreover, when Ellis, a Local 195 agent, was served with the order restraining Local 195 from engaging, inter alia, in mass picketing, blocking entrances, assaulting persons, etc., he did not suggest a lack of responsibility for the activities of the pickets or seek to reject the document as served on an innocent party. In addition, on the next day, at the picket line, Wilborn was introduced at the picket line to someone he identified as a Local 195 business agent. Furthermore, 2 months before, in the August 13, 1976, meeting, Ellis told Watts that he wanted to organize the job and put union members on it and significantly told Watts that the Union would be back. Moreover, the only picket signs, on this record, identified as appearing at the jobsite on October 18-20, 1976, were picket signs identi- fying Respondent as the picketing union. Lastly, Respon- dent at no time attempted to disavow any of the conduct at the picket line, or repudiate any responsibility, but according to Wilborn's credited testimony, expressly accepted responsibility for the pickets. In light of the above circumstances, I find that there is a preponderance of evidence showing that agents of Respondent knew of, failed to disclaim, and accepted responsibility for, and without objection accepted legal restraint regarding, the establishment and continuance of the picket line in the period October 18-20, 1976, and thereafter. Again, it should be noted, that Respondent called no witnesses. The testimony and other evidence available from General Counsel's witnesses clearly demonstrated that Local 195 s As above noted, Pete Ellis is the business manager and Bruce Hill, the assistant business manager of Respondent, and its agents, within the meaning of Sec. 2(13) of the Act. 1092 PLUMBERS, LOCAL UNION NO. 195 was present at the picket line and accepted responsibility for, and failed to disavow the actions there. Respondent argues that Ellis' statements to Wilborn indicate the existence of other labor organizations 6 at the picket line whose pickets may have engaged in the conduct which I now ascribe to Respondent. Respondent may be correct in that other labor organizations were present; this, however, does not absolve Respondent and its agents, who were present at or who had, indeed, authorized the picket line, from responsibility for unlawful conduct by others there. The Board, in considering cases arising under Section 8(b)()(A), has held that the test for establishing responsibility for acts on the picket line is that of common law agency. In Sunset Line & Twine Co., 79 NLRB 1487, 1509 (1948), the Board stated: A principal may be responsible for the act of his agent within the scope of the agent's general authority, or the "scope of his employment" if the agent is a servant, even though the principal has not specifically autho- rized or indeed may have specifically forbidden the act in question. It is enough if the principal actually empowered the agent to represent him in the general area within which the agent acted. It is clear that Respondent, by the above acts and failure to disclaim, and by its presence on the picket line, ratified, or, indeed, authorized the conduct of the pickets. It necessarily follows, therefore, that the conduct of all pickets on the picket line, even if not specifically authorized, is the responsibility of Respondent. Local 810, Steel, Metals, Alloys & Hardware Fabricators & Warehousemen, IBT (Scales Air Compressor Corp.), 200 NLRB 575 (1972); Drivers, Salesmen, Warehousemen, Milk Processors, Can- nery, Dairy Employees and Helpers Union Local No. 695, IBT (Yellow Cab & Transfer Co.), 221 NLRB 647 (1975). A labor organization is also under an obligation to properly police a picket line and maintain order, take corrective measures to avoid repetition of disorderly acts, or, if it fails to do so, bear the responsibility of the misconduct of the pickets. Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local 695, IBT (Tony Pellitteri Trucking Service, Inc.), 174 NLRB 753 (1969); International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 696 (The Kargard Co.), 196 NLRB 645 (1972); Vera Ladies Belt & Novelty Corp., 156 NLRB 291 (1965) and cases cited at 296. On August 13, Ellis told Watts that Respondent would be back at the jobsite. On October 19, he promised to have a union agent on the picket line to "control his people." There is no need, under such conditions, for other evidence to show Local 195's express authorization of the picket line. Mass picketing of that nature, with Local 195 picket signs, is seldom spontaneous. Local 195 fulfilled its August 13 promise to Watts, and, by the above conduct, acknowl- edged its responsibility, from the beginning, for the picket line. Its actual presence on the line is actually only a further element of proof unnecessary to infer authorization 6 The restraining order and injunction also mentioned other organiza- tions. The evidence shows that service was on Respondent and fails to show that other labor organizations were served with such restraint on picketing. 7 No agency relationship may be inferred from Respondent bailing out and responsibility. 7 Lithographers and Photoengravers Inter- national Union, AFL-CIO, CLC, Local 223 (Holiday Press, a Division of Holiday Inns, Inc.), 193 NLRB 11, 19-20 (1971). 2. The acts of restraint and coercion (a) The blocking of ingress and egress, mass picketing, and threat of physical harm The complaint alleges that on or between October 18-20, 1976, by mass picketing, Respondent blocked ingress to and egress from the jobsite. The unrefuted evidence shows that on October 18, 40 pickets blocked the access road entrance way and on October 19, about 200 pickets blocked the entrance way and placed the 20-foot-long iron culvert pipe directly across the access road. Respondent argues that the pickets parted at the direction of the police and that Watts and the electricians were detained only momentarily in going through the picket line. The issue, it seems to me, is not innocently resolved by the fact that the pickets, at the direction of the police, permitted Watts and the electrical employees to go through the line. The question is whether they blocked ingress both by their intent and by their numbers. That they did. The appear- ance of the police in the matter was the only method by which these employees and supervisors were permitted to enter the plant. Employees seeking ingress to or egress from the plant are not obliged to call upon police assistance. The action of the police does not negate Respondent's unlawful blocking of ingress, even for a few moments. Lithographers, Local 223 (Holiday Press), supra; Metal Polishers, Buffers, Platers and Helpers International Union, Local No. 67 (Alco-Cad Nickel Plating Corporation), 200 NLRB 335 (1972); Local 1150, United Electrical Workers (Cory Corp.), 84 NLRB 972, 975 (1949). Similarly, Watts' testimony is fully credited that the pickets rolled a yard wide, 20-foot-long culvert across that road's entrance way, effectively blocking the entrance. Each of these acts of blocking ingress separately violates Section 8(bX)()(A). The fact that only one car approached and was turned away from the picket line at that time and that no cars were seen to be blocked by the culvert, again, does not negate the fact that the picketing and the culvert blocked ingress and egress. Watts, the electrical subcon- tractor foremen, supervisors, and Williams, an employee of McCormack-Young, and the electrical subcontractor em- ployee were either blocked or turned away. Williams was forced away with the threat of being burned along with his truck. The Board has long held that the test of misconduct, in any event, is not whether it succeeds or fails, but whether the alleged offender engaged in conduct which tends to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in the Act. As the court said in Local 542, International Union of Operating Engineers, AFL-CIO [Giles & Ransome, Inc.] v. N.LR.B., 328 F.2d 850 (C.A. 3, 1964), cert. denied 379 U.S. 826, 852: unidentified persons-not described as strikers-because of unidentified offenses. Cf. Local 695, IBT (Tony Pellitteri), supra at 758, cited by Charging Party. 1093 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The test of coercion and intimidation is not whether the misconduct proves effective. The test is whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act. Furthermore, Section 7 of the Act vests employees with the right to refrain from joining protected activities, which right Respondent's conduct here described attempted to limit. Hoisting Engineers, Local 101 (Herrman's Excavating, Inc.), 209 NLRB 59 (1974); District 65, Retail, Wholesale & Department Store Union, AFL-CIO (Eastern Camera & Photo Corp.), 141 NLRB 991, 995 (1963). The mass picketing, blocking ingress and egress on October 18-20, and the erection of the culvert by Local 195, blocking ingress, and the threat to employee Robert Williams, to burn him in his truck if he did not leave, constituted separate violations of Section 8(b)(1)(A) of the Act in blocking ingress and a threat of physical harm.8 I so find. Local 810, IBT (Scales Air Compressor Corp.), supra. (b) The damage to electrical subcontractor's property The complaint alleges that on October 18, 1976, Respondent damaged property of an employee as he was entering the jobsite by lifting an electric heater out of the pickup truck and breaking it by hurling it to the ground. The evidence of record shows that a picket, indeed, took the heater out of the back of the electrical subcontractor's truck, hurled it to the ground, and broke it. The truck held the foreman and an employee of the electrical subcontrac- tor. Other pickets beat on the truck with their fists. I conclude that the unlawful and unprivileged lifting of the property out of the possession of the electrical subcontrac- tor's pickup truck, and hurling it to the ground and breaking it, and beating on the truck were acts of restraint and coercion in violation of Section 8(b)(1)(A) of the Act, being performed in the presence of an employee. (c) Respondent's use of the picket sign pole I conclude that, on October 18, one of the pickets, as Watts testified, repeatedly jabbed at Watts through the window of Watts' moving pickup truck with the butt end of the Local 195 picket sign pole. I find that this use of the picket sign pole was a physical attack on Watts and, although there was no touching or battery in the act at that time, I find that it cannot on that ground be called trivial or otherwise acceptable conduct. As an act of violence against a supervisor on the picket line, it constitutes restraint and coercion in violation of Section 8(b)(1)(A) of the Act as alleged. Lithographers, Local 223 (Holiday Press), supra, 193 NLRB at 17. s The threat to Robert Williams was not separately alleged in the complaint. Respondent did not object to receipt of the testimony and the matter was fully litigated at the hearing. Teledyne-Allvac, Inc.. 217 NLRB 886, 889 (1975). 9 Respondent did not object to the proof on this point or move to dismiss the complaint insofar as the "failure of proof' on this otherwise material (d) Respondent's beating on Watts' pickup truck Similarly, the complaint alleges that, on October 18, the pickets beat on Watts' truck. I find this to be a separate violation of Section 8(bX(IXA) of the Act because such acts have a foreseeable intimidating effect. Local 3887, United Steelworkers of American, AFL-CIO (Stephenson Brick & Tile Company), 129 NLRB 6, 10(1960). (e) Respondent's picket punches Watts, removes the mirror The complaint alleges that, on October 19, Watts was punched in the right eye by a picket. Watts' testimony and the photograph of Watts in evidence are uncontradicted that the picket punched Watts in the left eye.9 I find that the picket, on October 19, by striking Watts in the left eye in the presence of employees and pickets, engaged in an act of restraint and coercion in violation of Section 8(bXIXA). Lithographers Local 223 (Holiday Press), supra, 193 NLRB at 16. The complaint alleges, in addition, that, on October 18, the rearview mirror on Watts' truck was wrenched off. As Watts credibly testified, this also occurred on October 19. I conclude that by wrenching off the rearview mirror, thus damaging Watts' truck, Respondent's pickets violated Section 8(b)(1)(A) of the Act. Lithographers Local 223, supra. District 20, United Mine Workers of America (Harbert Construction Corp.), 192 NLRB 565, 566 (1971). These acts of Respondent chill employees' rights to refrain from joining in concerted activity. Teamsters and Chauffeurs Local Union No. 729, etc. (Penntruck Co., Inc.), 189 NLRB 696 (1971). In the instant case, the presence of nonstriking employ- ees at the picket line is demonstrated by the presence of Robert Williams and the electrical subcontractor's employ- ee. But even in their absence, Respondent's acts of violence would come to the immediate attention of other nonstrik- ing employees and coerce and restrain them. Allou Distributors, Inc., 201 NLRB 47, fn. 4 (1973). Watts' telephone call to hiS superiors on October 18 and the response thereto-keeping employees away from work- could have no other effect. See N.L.R.B. v. Union Nacional de Trabajadores, 540 F.2d I (C.A. 1, 1976), for a general exposition on the statutory limits of Section 8(bXI)(A). IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operation de- scribed in section I, 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. allegation was concerned. The issue is not raised in Respondent's brief In view of these circumstances, I conclude that the complaint, sub silenrio, was amended to conform to the proof. If Watts' credibility on this point had been placed in issue, in this case, I would not necessarily have viewed the discrepancy so lightly. 1094 PLUMBERS, LOCAL UNION NO. 195 V. THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices, it shall be recommended that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. In view of the nature of the unfair labor practices committed here, the commission by Respondent of similar and other unfair labor practices may be anticipated. It shall, therefore, be recommended that Respondent cease and desist from restraining or coercing employees in any manner in their rights guaranteed by Section 7 of the Act. Upon the basis of the following findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. McCormack-Young Corporation is an employer within the meaning of Section 2(6) and (7) of the Act. 2. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 195, AFL-CIO, Respondent herein, is a labor organization within the meaning of Section 2(5) of the Act. 3. By physically blocking ingress to and egress from the McCormack-Young jobsite at Anahuac, Texas, by threat- ening employees of McCormack-Young Corporation and employees of other employers employed at said jobsite with physical violence, by punching a McCormack-Young supervisor, by threatening and assaulting him with a picket sign; by striking the sides of his truck and the vehicles of employees of other employers and by breaking equipment and property of employees and supervisors, all in the presence of employees of McCormack-Young Corporation or of employees of other employers employed at the above jobsite or under conditions where said employees would soon learn of the events, Respondent Local 195 unlawfully restrained and coerced employees in violation of Section 8(b)(I)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 1095