Production Workers' Union Local No. 10, Afl-Cio

382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Production Workers' Union Local No. 10 , AFL-CIO and Block and Company, Inc. Case 13-CB- 11509 24 August 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 14 April 1987 Administrative Law Judge Lowell Goerlich issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions, a supporting brief, and an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Production Workers' Union Local No. 10, AFL-CIO, its offi- cers, agents, and representatives, shall take the action set forth in the Order. i The General Counsel has excepted to some of the judge 's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings The Respondent has excepted to the judge's finding that it admitted Joe Silvia, Nicky Ehlem, Nancy Mattson, Sidronio Arellano, Maximino Bonilla, Pascual Delgado, Magdalano Dominguez , Tony Martinez, Clau- dino Trinidad, and Javier Hernandez were its agents within the meaning of Sec 2(13) of the Act We find merit in this exception The record and exhibits reflect that the Respondent amended its answer to the complaint at the time of the hearing and admitted only the agency status of Gus Caravelli, Steve Torello, and Gladys Rivenburgh This inadvertent error by the judge, however, does not affect the result Julie Hughes, Esq., and Marting Barr, Esq., for the Gener- al Counsel. David Matthews, Esq., of Chicago, Illinois, for the Re- spondent. Ralph E. Brown, Esq., of Chicago, Illinois, for the Charg- ing Party. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge. The original charge filed by Block and Company, Inc. was served on Production Workers' Union Local No. 10, AFL-CIO (the Respondent or the Union), by certified mail on 2 October 1986. A complaint and notice of hear- ing was issued 10 November 1986. The original answer to the complaint was filed on 21 November 1986 and the original amended answer to the complaint was filed on 4 February 1987. On 5 February 1987 an amended charge was filed by Block and Company, Inc. An amendment to the complaint was allowed at the hearing. The complaint, as amended among other things, al- leges that the Respondent during a strike against Block and Company violated Section 8(b)(1)(A) of the National Labor Relations Act (the Act). The case came on for hearing in Chicago, Illinois, on 10 and 11 February 1987. Each party was afforded a full opportunity to be heard, to call, to examine and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. On the entire record in this case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE EMPLOYING ENTERPRISE At all times material, the Employer, a corporation with an office and place of business in Wheeling, Illinois (the Employer's facility), has been engaged in the pro- duction, warehousing, and sale of office supplies. During the past calendar or fiscal year, a representative period, the Employer, in the course and conduct of its business operations described above, sold and shipped from its Il- linois facility products, goods, and matrerials valued in excess of $50,000 directly to points outside the State of Illinois. The Employer is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.2 H. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES First: The Respondent has admitted the following facts: At all times material , the following named persons have occupied the positions set forth opposite their re- spective names, and are now, and have been at all times i The facts found here are based on the record as a whole and the observation of the witnesses The credibility resolutions have been de- rived from a review of the entire testimonial record and exhibits, with due regard to the logic of probability, the demeanor of the witnesses, and the teaching of NLRB v Walton Mfg Co, 369 U S 404, 408 (1962) As to those witnesses testifying in contradiction to the findings, their testi- mony has been discredited either as having been in conflict with the testi- mony of credible witnesses or because it was in and of itself incredible and unworthy of belief All testimony has been reviewed and weighed in the light of the entire record No testimony has been pretermitted 2 Admitted by the Respondent 285 NLRB No. 68 PRODUCTION WORKERS LOCAL 10 (BLOCK & CO.) 383 material, agents of the Respondent within the meaning of Section 2(13) of the Act: Steve Torello--Business Agent Gus Caravelli-Business Agent Gladys Rivenburgh-Steward Eusebio Mena-Assistant Steward and Member of Negotiating Committee Joe Silvia-Member of Negotiating Committee Nicky Ehlem-Member of Negotiating Committee Nancy Mattson-Picket Sidronio Arellano-Pick el. Maxirnino Bonilla-Picket Pascual Delgado-Picket Magdalano Dominguez- (Picket Tony Martinez-Picket Claudino Trinidad-Picket Javier Hernandez-Picket Since 8 July 1986, and continuing to date, the Re- spondent has engaged in, authorized, sanctioned, and/or directed its members to engage in, a work stoppage and picketing at or in the vicinity if the Employer's facility. Second: The evidence offered: A. The Union Meetings General Counsel's witness Nancy Flores, a non- striker,3 testified that prior to the strike she attended a union meeting at which Torello advised employees: He said that they could-the people could sneak up on different truck companies, crossing over and making delivery and they had cut tires or anything they care to do, just don't get caught doing it. And for the people crossing, like myself who came to work everyday, that once we got off the company property, they could do as they pleased. Just don't get caught. On cross-examination Flores added that Torello told employees "[t]hat they could sneak up and out the tires when they were backing in, or they could make threat- ening phone calls to the companies, but don't get caught doing it." Mario Flores, Nancy's husband, who also -was a nonstriker, testified that he did not hear Torello refer to "slashing tires" at any union meeting. Steve Torello testified he told employees at a union meeting that "we didn't want .any violence out there." In regard to replacements, employees were told "[a]s fox stopping them from crossing the picket line, all we could do is talk to them.... [T]he best we could do is talk to these people, talk to the truck drivers. We cannot phys- ically stop them from crossing the picket line." Torello testified that he told employees "we could talk to them and if they want to cross after we talk to them, they cross." Torello did not deny, however, that employees on the picket line called those who crossed the picket line "scabs," "mother fuckers," and "sons of bitches." Gladys Rivenburgh, chief steward and strike captain, testified that the union officials told employees "they warned us, they didn't want guns, any knives, sticks, 3 The strike was still in progress at the time of the hearing. eggs or anything done at the strike-on the strike be- cause we would get thrown off line. They didn't want any violence whatsoever." Rivenburgh specifically denied that she had heard at any of the union meetings union officials state, "We can't do anything to the people at the property, but once they leave the property, then we can do something," or "the delivery trucks' tires can be slashed, we can sneak up on them and slash tires." She further testified that she had not heard at any union meeting reference to tire slashing or breaking wind- shields, and that union officials had told the employees that "they did not want any violence' .... We have to keep moving on the line." B. Picket Line Activity Robert Preston, director of plant operations, testified that November 1986 picket line activity has been as fol- lows: "The activity presently is signs being placed at the driveways and the pickets are sitting in cars across the street." Preston further testified, "At the beginning of the strike there were, I would say, a maximum of 48, maybe 50 people. They were walking up alongside of the building, down the public right-of-way. They had signs out. They were wearing vests. That diminished down after I'd say two months, ' three months, to maybe 35 people." Preston further testified: "I would say during the second or third week of the strike, somewhere in that time frame, they had a pile of rocks on the southeast corner where loading dock, shipping and receiving docks are. The pickets were carrying rocks and they were the size of league balls on up to a baseball. They were walk- ing in front of the driveway, pacing back and forth, and they were throwing them up like a juggler."4 Torello was among those seen carrying a rock. Ac- cording to Preston and Jagdish Tripathi, company con- troller, the rock carrying continued-for around 2 weeks after which the piled rocks disappeared. Preston complained to the police who were present at the picket line about the rock carrying. The police ad- vised Preston that "[a]s long as they physically did not damage any property, they weren't going to do anything about it, or injure someone." Rivenburgh admitted off-color language was used on the picket line and employees going through the picket line were referred to as "scabs."5 C. Accosting Trucks Crossing the Picket Line Michael Donald McCabe, an employee of H. Diamond Iron and Metal Scrap Company, drove a truck to the Respondent's premises in July in order to load it with scrap. When McCabe approached the premises, a picket explained to him why they were picketing and "would [he] please not cross their picket line." McCabe respond- ed that he .would not honor the picket line and then pro- ceeded about his business. McCabe noticed a man (Tor- 4 Union witnesses admitted the rock-carrying incidents. 5 Scab is defined in The New American Heritage Dictionary of the Eng- lish Language, New College Edition, as follows- 4 Informal. (a) A worker who refuses membership in a labor organi- zation (b) an employee who works while others are on strike (c) a low or contemptible person. 384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ello) writing "something on a pad of paper." Thereafter, McCabe saw him "at the end of the driveway at the street with his hands in the air, like so, with a rock in his right hand . . . [m]aybe the size of a baseball."s The man was "probably 40, 50 feet" removed from McCabe. McCabe has had no problem crossing the picket line since this incident. Preston relates another truck incident that occurred during the first week of the strike. Torello jumped on the running board of an Intermodial truck as it crossed the picket line. The police intervened and as Torello left, Preston quotes him as saying to the truckdriver "You fucker, we'll get even with you."7 According to Preston, addressing him, Torello called him a "mother fucker," and remarked, "You sleep with your mother.... You're no better than the scabs over there." In Preston's opinion Torello was "very emotional." D. Alleged Automobile Damage On 8 July 1986, according to Loeuth Seng, someone on the picket line told her that "if she continue[s] to work, Mr. Block would take her car away." During the. night of 9 July 1986 at 9 o'clock "somebody" cut the two left tires on Seng's car. Seng did not recognize the culprit or culprits. According to Cacio Roman, when he left his house on 14 July 1986, he saw "the windows of both cars were broken. And also the tires of [his] car." (Three tires were torn.) Further testifying, Roman said that when he ap- proached the picket line that same day "they" remarked, "Dad, where's your car, where is your car?" "They" re- ferred to Teresa, some Cambodians, Wotha and Droka, and "other ones." Mario Flores testified that when he walked through the picket line around the second day of the strike "[t]hey say mother fucker" and said, "but they didn't say [it] directly to me. Everybody was coming, leaving at night." "They say that we slash the tires and break the windshields." "The first one was Joe Silvia and followed by the group." "They say it all together." It was repeat- ed for about 3 days. Flores claimed Torello was present in the group. "They say that we slash the tires and break the windshields" of "[t]he ones who cross the picket line." Flores testifying further said that on 14 July 1986, he discovered "the windshield broke, and it was a rock on top of the car" and four "slashed" tires on one car and two "slashed" tires on another car. When Flores arrived at the picket line he testified that Terry Romerez called him a "cheater." Flore's affidavits did not reveal that he had been threatened with damage to his car. Nancy Flores, wife of Mario Flores, testified that when she went through the picket line, approximately the first week of the strike, strikers called her a "god damn scab" and that Nancy Mattson told her she should "watch" her new car, "that she knew where [she] lived." Standing with Mattson were Gladys Rivenburgh, Terry Romerez, and Joe Silvia. As to her new car Flores testi- fied, "I had scratches made on my back door" a couple of days after. That night when she arrived home she dis- covered the scratch. If the scratch had occurred while Flores was at work, the car, parked near the dock, 30 feet from the picket line, would have been in full view of the security guards and also (for some of the time) the police. E. Doorbell Incident Hose Antonio Sugranes, who was employed by the Respondent 16 July 1986, and headed the decertification movement," was called as a witness by the General Counsel and his testimony can be summarized as follows: On 24 January 1987, around midnight someone rang Sugranes' doorbell. When Sugranes answered no one re- sponded. The doorbell rang two more times without re- sponses after which Sugranes dressed and went outside, but found nobody. Sugranes went off to the police sta- tion. His wife was scared and cried. On 4 February 1987 Sugranes discovered two flat tires on his car. "I got real mad." The air had been released from the tires. After he had changed his tires he discov- ered an envelope on the windshield on the driver's side. "[I]t says I would be sorry." Sugranes went to the police station and filed a complaint. His wife "started crying again, she got scared." Sugranes testified that he had never heard any picket "threaten to damage anybody's car, yours or anybody else." F. Conclusions and Reasons Therefor Demeanor having been considered, I do not find that the General Counsel has produced sufficient credible evi- dence or evidence of sufficient probative weight to sus- tain the allegations of her complaint except for the rock- handling incidents, which were admitted . In this respect the General Counsel has not established that the Re- spondent was responsible for the incidents connected with automobile damage. I do not believe the testimony of Flores and other General Counsel witnesses that ap- pears to me to have been tailored to involve the Re- spondent in such conduct .9 Moreover, I cannot believe that the Union's representatives were so unsophisticated and stupid as to have laid the Union open to liability by the remarks which were attributed to them . Moreover, I believe the Respondent's witnesses when they testified that they did not encourage strike misconduct . Addition- ally the General Counsel's case is not supported by valid in Ferences. For instance it does not follow that because nonstrikers were addressed as "scabs," "mother fuckers," "cheaters," and "sons of bitches," "if she continues to work, Mr. Block would take her car away," "Dad, where's your car," and a doorbell was rung without re- 6 Preston testified, in respect to the H Diamond truck incident, that he 8 A decertification election was held on 28 January 1987 saw Torello on its running board with a rock Tripaths testimony was the 9 The omission from Mario Flore's affidavit was not of a kind that same could ordinarily be attributed to an oversight or to the interviewer's fail- s Torello denied that he had uttered his remark ure to place the appropriate question. PRODUCTION WORKERS LOCAL 10 (BLOCK & CO) 385 sponse, the Union was responsible for the nonstriker's damage to their automobiles . Nor does it follow that if a striker said to a nonstriker that she should "watch" her new car because "she knew where she lived," that the Union was responsible for a scratch on the back , door of her car parked adjacent to the Employer 's dock in view of security guards. CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdic- tion to be exercised here. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By handling rocks in such a manner on the picket line as to give the impression that they might be used as a deterrent to employees or others who crossed the picket line, the Respondent violated Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law 'and on the entire record, I issue the following recommend- ed10 (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its office in Wheeling, Illinois, copies of the attached notice marked "Appendix."11 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- sectuive days in conspicuous places oncluding all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this decision. I I If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELAITONS BOARD An Agency of the United States Government ORDER The Respondent, Production Workers' Union Local No. 10, AFL-CIO, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Handling rocks on the picket line adjacent to the Employer's premises in such a manner as to' give the im- pression to employees and others who desire to cross the picket line that the rocks may be used as a deterrent to their crossing. 10 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to,post and abide by this notice. WE WILL NOT handle rocks on the picket line adjacent to premises of Block and Company, Inc. in such a manner as to give the impression to employees or others who desire to cross the picket line that the rocks may be used as a deterrent to their crossing. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. PRODUCTION WORKERS' LOCAL No. 10, AFL-CIO