North American Meat Packers Union (Geo. A. Hormel & Co.)

720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD North American Meat Packers Union (Geo. A. Hormel & Company) and United Food and Commercial Workers International Union, Local P-9, AFL-CIO. Case 18-CB-1629 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 26 March 1987 Administrative Law Judge Thomas R. Wilks issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Charging Party also filed exceptions and a brief in support of exceptions. 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 except as modified below and to adopt the recommended Order' as modified. This case arose in the context of the Austin, Minnesota UFCW Local P-9 strike against Geo. A. Hormel & Company (Hormel). In an effort to end the strike after certain unsanctioned activity by Local P-9, the UFCW International 'sought to impose a trusteeship on Local P-9. A 2 June 19,862 preliminary injunction by Judge Edward J. Devitt of the United States District Court for Minnesota confirmed the validity of the trusteeship and or- dered suspended 'Local P-9 officers and their agents to' comply with its imposition. Findings of fact in this decree included the finding that sus- pended officers, agents, and employees of Local P- 9 had threatened, harassed, and intimidated deputy trustees Kenneth J. Kimbro and Jack Smith, agents of the International, by, inter alia, threats of vio- lence and mass demonstrations at the temporary International office established by Kimbro and Smith in Austin. On 2 July Judge Devitt issued an- other order, transferring to the trustee the P-9 asset known ,as the Austin Labor Center (ALC), a building leased by P-9 for office and meeting facili- ties. Having secured the 2 July judicial order, UFCW representatives, including General Counsel George Murphy, took physical possession of the ALC that same day from suspended P-9 officials after a con- frontation with 80-120 protesters. The protest ' The General Counsel's request that the remedial Order include a vlsi- tatonal clause is denied 2 All dates are in 1986 unless otherwise indicated group included unidentified P-9 members3 as well as some members of the Respondent NAMPU, re- cently formed by a charter membership of seven striking ,P-9 members. Murphy told the Respond- ent's Merrill Evans, who led the protesters ,in per- sistent acrimonious questioning, that he would return on 3 July to answer numerous questions posed about UFCW and the P-9 trusteeship. Also on 2 July, the NAMPU had filed a representation election petition with the Board in an effort to oust the P-9 trusteeship's representation of Hormel unit employees. The Active Retirees (AR) was a social group that supported P-9 strike activities against Hormel. AR -President James Rogers and several AR mem- bers were also participants in the 2 July confronta- tion. Rogers sought assurances from UFCW Coun- sel Murphy that the AR would be able to continue its twice weekly meetings at the ALC. The next such meeting was scheduled for 3 July. Murphy told him that the, AR could use the facility but should "check in the morning." Contrary to his stated intentions, Murphy did not return to the ALC on 3 July. UFCW deputy trust- ees Kimbro and Smith entered the side fire door of the ALC with seven other UFCW agents at '8:30 that morning. (The front 'doors, of the building were barred shut.) They observed that the interior was a "complete mess." Kimbro concluded that this disarray precluded use of the building by the AR. He informed AR President Rogers about this when the latter arrived. Soon thereafter, a group of retirees angrily de- manded access and use of a meeting room for the AR. Concurrently, the Respondent's agent Evans appeared along with' a group, some of whom were unidentified P-9 members. Kimbro adhered to his refusal to permit the retirees use of the meeting room. He also told Evans that Murphy had re- turned to Washington, D.C. and was not there to answer questions. For a period of at least 10 min- utes, Evans stood among those at the side doorway and engaged Kimbro in angry conversation while a vituperative crowd of 50 to 60 persons shouted in- sults at the trustee's representatives. At one point, AR member Raymond Arens prevented Kimbro from closing the door. When police summoned by the UFCW officials arrived, AR President Rogers felt constrained to calm the crowd because "we didn't need any people in jail." The two police offi- cers, the UFCW agents, Evans, and AR represent- 3 Although the employment affiliation of P-9 members in crowds at the ALC on 2 and 3 July was not definitively established, it is undisputed that, as found by the judge, the vast majority of P-9 members are in the Hormel employee unit 287 NLRB No. 74 MEAT PACKERS (HORMEL & CO.) atives then ended the incident by leaving the ALC for a meeting elsewhere.4 The General Counsel contends that the massed demonstration of retirees, P-9 members, and others at the ALC on 3 July was unlawfully coercive. The judge found that their crowding around the threshold and blocking of the door closure was no more "than a brief boisterous expression of frustra- tion and exasperation." The judge further found that the crowd could not possibly have remained jammed in the doorway and yet permitted, as Kimbro testified, a clear view of the adjacent VFW parking lot, from the doorway as well as un- disputed passage through the crowd by both VFW representatives and deputy trustee Smith during the confrontation. Consequently, the judge concluded that the General Counsel did not meet the burden of proof as to this allegation in the complaint. Under the circumstances here, noting particular- ly the' acrimonious union factionalism that had de- veloped during Local P-9's extended strike against Hormel, we cannot agree with the judge's charac- terization of this encounter. It matters little that there were no incidents of actual physical violence and property damage or that the protesters did not effectively prevent individuals from passing through their midst. By itself, the act of massing a hostile crowd before a small door to confront and insult rival union officials, and at one point to pre- vent closing that door, would reasonably tend to coerce and threaten employees from engaging in protected activities in support of the Local P-9 trusteeship.5 Indeed, such misconduct seems indis- tinguishable from the type of conduct which, as previously engaged in by suspended P-9 officers and their agents, had been enjoined by the Federal district court's order. 6 We further find that the conduct of Evans and the participants in the mass demonstration on 3 July is attributable to Respondent NAMPU. As stated by the judge, Evans was "a well recognized ° The foregoing narrative of events is limited to credited testimony. There are no exceptions to the judge's credibility based findings that Evans and others in the crowd on 3 July did not physically restrain, threaten , or assault Kimbro or verbally threaten him with violence. In the absence of exceptions, we pro forma adopt the judge's credibility res- olutions. In so doing , Member Babson stresses that he has serious reserva- tions concerning the judge 's basis for discrediting certain testimony. There are also no exceptions to the ALJ's findings that Evans and the Respondent's agents did not violate Sec. 8(b)(1)(A) other than by photo- surveillance during incidents on 11 and 14 July 1986. 5 It is well established Board law that conduct directed against nonem- ployee third parties can violate Sec. 8(b)(1)(A) where such conduct, as here, became or was sure to become known to employees and would rea- sonably tend to restrain or coerce them in the exercise of Sec. 7 rights. See, e.g., Lumber Workers Local 3171 (Louisiana-Pacific), 274 NLRB 809, 814 (1985); Teamsters Local 115 (Oakwood Chair), 277 NLRB 694, 698 (1985). e Furthermore, our dissenting colleague's views to the contrary not withstanding "broken promises" or "disinvitations" do not justify the un- lawful massing and blocking engaged in by the Respondent here. 721 and vociferously active agent of NAMPU . . . en= gaged in activities calculated to cause the ouster of the UFCW as bargaining agent, and its replace- ment by NAMPU." Independent of the retirees, who had their own representative (Rogers) during the events in question, Evans assumed the role on both 2 and 3 July of leader and spokesman for the numerous nonretiree P-9 members who opposed the trusteeship. In doing so, he clearly acted within the scope of his agency as the Respondent's charter member/organizer when he stood at the head of a mass demonstration in confrontation with the UFCW officials and angrily argued with Kimbro. His conduct encouraged insults and hostility from others in the crowd, in direct contrast to the con- duct of Rogers who eventually felt the need to calm the crowd. Under these circumstances, we find that the Respondent, through Evans' participa- tion and leadership, violated Section 8(b)(1)(A) by engaging in and encouraging a mass demonstration at the ALC on 3 July. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, North American Meat Packers Union, Austin, Minnesota, its officers, agents, and repre- sentatives, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(a) and re- letter subsequent paragraphs. "(a) Restraining or coercing employees of Geo. A. Hormel & Co. in the exercise of their rights under Section 7 of the Act by mass demonstrations to harass and impede representatives of the trustee for United Food and Commercial Workers Interna- tional Union, Local P-9 AFL-CIO. 2. Substitute the attached notice for that of the administrative law judge. MEMBER JOHANSEN, dissenting. As fully described in the judge's decision and as discussed by my colleagues, this case arose in the context of the much-publicized UFCW Local P-9 strike against Geo. A. Hormel & Company (Hormel). After the UFCW International succeed- ed in imposing a trusteeship on Local P-9, the trustee secured a judicial decree transferring to him the P-9 asset known as the Austin Labor Center (ALC), a building leased by P-9 for office and meeting facilities. The trustee failed in a concom- mitant attempt to gain control over the operations of the United Support Group (USG), a nonem- ployee strike support association. The Active Retir- 722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ees was a social group that aides USG in its activi- ties. On 2 July 1986 UFCW representatives including General Counsel George Murphy took physical possession of the ALC from suspended P-9 offi- cials after a confrontation with 80-120 protesters. This group included some members of Respondent NAMPU, recently formed by a charter member- ship of seven former P-9 members. The Respond- ent's attorney helped to quell the protesters' anger on this occasion. President James Rogers and several Active Re- tirees were also participants in the 2 July confron- tation. Rogers sought assurances from UFCW Counsel Murphy that the Active Retirees would be able to continue its twice weekly meetings at the ALC. The next such meeting was scheduled for 3 July. Murphy told him that the Active Retirees could use the facility but should "check in the morning." Murphy also told the Respondent's Mer- rill Evans that he would return on 3 July to answer numerous questions posed about UFCW and the P- 9 trusteeship. Contrary to stated intentions, Murphy did not return to the ALC on 3 July. Deputy trustees Ken- neth Kimbro and Jack Smith entered the side fire door of the ALC with seven other UFCW agents at 8:30 that morning: (The front doors of the build- ing were barred shut.) They observed that the inte- rior was a "complete mess." Kimbro concluded that this disarray precluded use of the building by the Active Retirees. He then informed Active Re- tirees President Rogers about this when the latter arrived. Soon thereafter, a group of retirees angrily de- manded entrance and use of a meeting room for the Active Retirees. Concurrently, the Respond- ent's agent Evans appeared along with a group, some of whom were identified as P-9 members but most of whom were unidentified. They sought to resume their confrontation with UFCW Counsel Murphy. Both groups loudly protested, shouted their objections, and insulted the UFCW represent- atives until Rogers felt constrained to calm them. Kimbro adhered to his refusal to permit the retirees use of the meeting room. Also he told Evans that Murphy had returned to Washington, D.C. and was not there to answer questions. After about 10 minutes, police summoned by the UFCW agents arrived. The two police officers, the UFCW agents, Evans, and Active Retirees representatives then ended the incident by leaving the ALC for a meeting elsewhere. The General Counsel contends that the ALC was closed down on 3 July because of an unlawful- ly coercive massed demonstration of retirees and P-9 members. The judge found that their crowding around the threshold and blocking of the door clo- sure was no more "than a brief boisterous expres- sion of frustration and exasperation." The judge found that the crowd could not possibly have re- mained jammed in the doorway and yet permitted, as Kimbro testified, a clear view of the adjacent VFW parking lot from the doorway as well as un- disputed passage through the crowd by both VFW representatives and deputy trustee Smith during the confrontation. Consequently, the judge concluded that the General Counsel did not meet the burden of proof as to this allegation in the complaint.' Unlike my colleagues, and in agreement with the judge, I cannot find that a violation of Section 8(b)(1)(A) has been established. While the events of 3 July were tumultuous, they did not create a coer- cive or threatenting atmosphere. Based on the credited testimony, the confrontation with UFCW trustee representatives did not involve any threats or acts of violence attributable to agents of Re- spondent NAMPU. In fact, Evans was the only agent or member of the Respondent (which appar- ently included no more than its seven "charter members") identified as present at the scene. There could hardly be any basis for an unfair labor prac- tice finding against the Respondent stemming from Evans' service as a spokesman for Local P-9 mem- bers, particularly because UFCW Counsel Murphy had promised on the previous day to return to answer questions about the trusteeship. Further, in light of this ultimately broken promise and the con- current reversal of the 2 July indication that the Active Retirees' meeting could take place as sched- uled at the ALC,2 I see no basis for finding that the crowding of 50 or more suddenly disinvited persons around the ALC's only entrance for 10 minutes on 3 July was somehow coercive of em- ployees' statutory rights. Surely, the situation here is significantly and critically different from that in the cases on which my colleagues rely. In Teamsters Local 115 (Oak- wood Chair), 277 NLRB 694 (1985), a union was held responsible for mass picketing, the blocking of entries, the jostling of supervisors, and threats. In ' There are no exceptions to the judge's credibility based findings that Evans and others in the crowd on 3 July did not physically restrain, threaten , or assault Kimbro or verbally threaten him with violence There are also no exceptions to the judge's findings that Evans and the Respondent's agents did not violate Sec 8(b)(1)(A) other then by photo- surveillance during incidents on 11 and 14 July 1986 2 My colleagues' characterization of the conduct in issue as "the act of massing a hostile crowd" is highly questionable Employees had been told that questions would be answered about the trusteeship and retirees had been tentatively approved to hold their regular meeting Thus, the individuals congregating on 3 July were there because they were, in effect, invited by the Charging Party-not because the Respondent had acted to mass a hostile crowd MEAT PACKERS (HORMEL & CO) Lumber Workers Local 3171 (Louisiana-Pacific), 274 NLRB 809 (1985), a union was found to have threatened and inflicted bodily injury and property damage and prevented, or attempted to prevent, employees from entering or leaving their work premises. Here, at issue is a confrontation basically limited to the hurling of insults. As noted, the confronta- tion did not include threats or acts of violence. The Supreme Court, in Letter Carriers v. Austin, 418 U.S. 264 (1974), noted that the NLRA contem- plates "uninhibited, robust, and wide-open debate" including "intemperate, abusive, and inaccurate" statements.3 In NLRB v. Teamsters Local 639, 362 U.S. 274, 290 (1960), the Court held that Section 8(b)(1)(A) was "a grant of power to the Board lim- ited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof." The use and exchanging of insults, in the circumstances of this case, cannot support the finding of an 8(b)(1)(A) violation. I would adopt the judge's decision and dismiss the com- plaint's allegation regarding the events of 3 July. 3 The Board has long recognized the reality that labor relations are often accompanied by heated and bitter language As stated in Longview Furniture Co, 100 NLRB 301, 304 (1952), "Although the Board does not condone the use of abusive and intemperate language, it is common knowledge that in a strike where vital economic issues are at stake , strik- ing employees resent those who cross the picket line and will express their sentiments in language not altogether suited to the pleasantries of the drawing room or even to the courtesies of parliamentary disputa- tion " APPENDIX NOTICE To MEMBERS AND EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT restrain or coerce employees of Geo. A. Hormel & Company from engaging in their rights guaranteed in Section 7 of the Act by engaging in mass demonstrations to harass and 723 impede representatives of the trustee for UFCW Local P-9 at the Austen Labor Center. WE WILL NOT restrain or coerce employees for the Employer from engaging in their rights guaran- teed in Section 7 of the Act by photographing or pretending to photograph employees of Geo. A. Hormel & Company and other persons entering or leaving the premises of the Austin Labor Center. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. NORTH AMERICAN MEAT PACKERS UNION Larry L. Witherell, Esq, for the General Counsel. David S. Twedell, Esq., of Dallas, Texas, for the Re- spondent. Roger A. Jenson, Esq. (Peterson, Bell, Converse & Jenson), of St. Paul, Minnesota, for the Charging Party. Robert E. Funk, Esq, Associate General Counsel, United Food & Commercial Workers, Washington, D.C, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge. This case was tried before me in Minneapolis, Minnesota, on 17 October 1986, pursuant to an unfair labor practice charge filed by the United Food and Commercial Work- ers International Union, Local P-9, AFL-CIO (UFCW), on 18 July 1986, and a complaint issued by the Regional Director for Region 18, on 3 September 1986 against North American Meat Packers Union (NAMPU or Re- spondent) The complaint alleged that Respondent inter- fered with employees' Section 7 rights by engaging in acts of intimidation, harassment, threats of physical as- sault, physical assault, and vandalism toward the persons and property of UFCW representatives at the UFCW of- fices in the Austin Labor Center in Austin, Minnesota, on the dates of 3, 11, and 14 July 1986. By its timely filed answer, Respondent admitted the jurisdictional and agency allegations of the complaint but denied the alle- gations attributing misconduct to its agents. At the trial all parties were given full opportunity to introduce rele- vant evidence and to examine and to cross-examine wit- nesses. The General Counsel stated at the trial that at 3:35 p.m. on the day preceding, UFCW had filed an ad- ditional charge against Respondent which was docketed as Case 18-CB-1663, which alleged other similar acts of misconduct by the Respondent on 28 and 29 June 1986. In accordance with the position of the General Counsel and acquiescence of Respondent, but in opposition to the Charging Party, I decided not to postpone the litigation of the instant case, or to adjourn it after litigation to await the results of the Regional Director's investigation. The trial was closed. I advised the parties that I would consider a posttrial motion to reopen and consolidate this 724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD case with any new complaint that the Regional Director might issue regarding the alleged incidents of June 1986, on a showing that such course of action was appropriate and expeditious. The parties declined the opportunity to argue orally, each indicating an intention to file briefs . About 15 De- cember 1986, I received briefs from the General Counsel and the UFCW, and written notification from Respond- ent that it would file no brief despite the absence of an oral statement of position in the record. Subsequently, I received no notification of the disposi- tion of the investigation of Case 18-CB-1663 , nor of the existence of subsequent unfair labor practice charges. Nor have I received any motions for consolidation with any other complaint. My decision is necessarily limited to the facts litigated before me. On the record in this case , and on my observation of the demeanor of the witnesses , and on consideration of the briefs, I make the following FINDINGS OF FACT 1. JURISDICTION At all times material, Geo. A. Hormel & Company (the Employer), a corporation with an office and place of business in Austin, Minnesota (the Employer's Austin, Minnesota facility), has been engaged in the processing and nonretail sale and distribution of meat and related products. During the 12-month period ending 31 Decem- ber 1985, the Employer, in the course and conduct of its business operations, purchased and received at its Austin, Minnesota facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Minnesota. During the same 12-month period the Employer, in the course and conduct of its business operations, sold and shipped from its Austin, Minnesota facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Minnesota. It is admitted, and I find, that the Employer is now, and has been at all material times, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION It is admitted, and I find, that the Respondent is now, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The issues in this case are factually simple, i.e, wheth- er agents of Respondent unlawfully interfered with the rights of employees to engage in union activities by coer- cive conduct on three specific dates alleged. This case appears to be one facet of a dispute between UFCW and dissident members who have formed their own labor or- ganization, NAMPU, in reaction to the UFCW Interna- tional Union's imposition of a trusteeship on its Local Union P-9 for the purpose of ending and settling a labor dispute with the Employer, the terms of which settle- ment are disapproved of by NAMPU. (See News and Background Information, 123 LRRM 25, September 8, 1986.) The Charging Party has represented a unit of the Em- ployer's employees for bargaining purposes. Its member- ship is over 1000, the vast preponderance of which are Hormel employees. Local P-9 does represent employees of several other employers to a lesser extent. A strike sanctioned by UFCW commenced 17 August 1985 against the Employer. Because of certain unsanctioned strike activity engaged in by Local P-9, the International Union imposed a trusteeship in May 1986, appointed Joseph T. Hansen as a trustee, and suspended all Local P-9 officers. The trusteeship imposition was resisted by the suspended officers in litigation before the United States District Court for the District of Minnesota in a breach of contract action, i e., the contract is the UFCW constitution between the International Union and its sub- ordinate affiliate On 2 June 1986, Judge Edward J. Devitt of the U.S. district court issued a preliminary in- junction that orders the immediate transfer of all assets of Local P-9 to the custody and control of the trustee and ordered the suspended officers to recognize the le- gally appointed trustee and "to permit him peaceably to manage [those assets] and to conduct Local P-9's affairs as trustee." In his decision Judge Devitt found that the suspended officers, agents, and employees of Local P-9 had engaged in numerous acts of defiance of the trustee including, inter alia, threats, harassment, intimidation toward UFCW agents, and mass demonstrations and sur- veillance at the International office set up by deputy trustees Kenneth Kimbro and Jack Smith. By motion dated 12 June 1986, the trustee raised with the Court, the issue of whether the Austin Labor Center (ALC) and the United Support Group (USG) are "local P-9 assets" subject to the Court's prior transfer order. The ALC is a building leased by Local P-9 for the pur- pose of maintaining its own offices and meeting facilities and for subleasing a smaller portion to other labor orga- nizations. The USG is a group of persons who volun- teered their services in aid of the cause of the strikers. The evidence in this case revealed that these persons dis- tribute food to the strikers and operate out of a store- front facility on the same street as the ALC but several blocks away. In the opposite direction from the ALC on the same side of the street, about 200 yards away, is lo- cated the rented storefront facility that is used by NAMPU as its headquarters. In his decision dated 2 July 1986, Judge Devitt ruled that the ALC was an asset to be transferred to the trust- ee. In that decision he found that the USG commenced existence in 1984 as an independent entity in support of Hormel strikers, but that a "closer interrelationship" evolved as the USG expanded fundraising on behalf of the strikers in 1985. He found that although the USG was independently formed by retirees, friends, and rela- tives of the Employer's employees, some degree of con- trol was manifested by Local P-9 which provided their meeting space free of cost and which made decisions concerning its activities. Judge Devitt found that the in- terest of USG, supportive of a continued strike and sus- pended officers, were now inapposite to that of the trust- MEAT PACKERS (HORMEL & CO) 725 ee. He found that of two categories of USG assets, one included caps, buttons, banners, and grocery products which were related directly to the continuation of the strike which he found to be a legitimate objective and therefore ought not to pass to the trustee. With respect to the second category of assets, this consisted of several accounts in the Hormel credit union Judge Devitt con- cluded that the trustee is not entitled to this asset. By an order dated 2 July 1986, Judge Devitt ordered that the suspended officers, executive board members, members, agents, etc., of Local P-9 recognize the trustee and "de- liver to him the custody and control of the [ALC] and to permit him peaceably to manage it and to conduct Local P-9's affairs as trustee." The complaint and the General Counsel allege that Respondent interfered with employees' Section 7 rights by engaging in acts of coercion calculated to prevent representatives of UFCW from taking custody of the ALC and in conducting business there on the dates of 3, 11, and 14 July, and thereby frustrating employees in their efforts to engage in union activities and to maintain union membership in the UFCW. 1. 2 July 1986 UCFW Counsel George Murphy and 12 representa- tives of UCFW as a group entered and took possession of the ALC from the suspended P-9 officers on the afternoon of 2 July 1986 after a confrontation in front of the building with a group of about 80-120 persons in- cluding several of the suspended officers. The confronta- tion continued inside Although it is clear that the assem- bled group shouted objections to the transfer of posses- sion, there is a dispute whether the UFCW representa- tives were greeted by non-NAMPU members with pro- fanities, curses, insults (other than "scab"), told they ought to be whipped, and a statement by non-NAMPU member Allan McDowell in the presence of NAMPU Attorney Twedell and NAMPU charter member/- organizer and agent Merrill Evans that the UFCW rep- resentatives do not belong in Austin and would not be safe there It is also clear that NAMPU Attorney Twe- dell successfully defused these emotions and caused the crowd to disperse by reiterating Judge Devitt's order. Thereafter, the UFCW took possession of the ALC. It is not necessary to resolve credibility issues about the al- leged utterances of 2 July because they were not alleged in the complaint In any event, Attorney Twedell effec- tively demonstrated NAMPU disavowal of any conduct inimical to Judge Devitt's order by his instructions to the crowd to disengage. During the course of the 2 July confrontation, a dis- cussion ensued between James Rogers and Murphy. Rogers retired as a Hormel employee in 1982. In May 1986 he was elected as president of an unincorporated as- sociation of about 30 Hormel retirees called the "Active Retirees" (AR). Rogers testified that he and "some retir- ees" were part of the group at the ALC on 2 July which included some NAMPU members. He explained that AR met religiously every Tuesday and Thursday of the week in a basement conference room of the ALC. On 2 July, a Wednesday, he met Murphy and inquired whether the retirees could continue to meet there, specifically the next day He testified that Murphy agreed that they could use the facility but that they should "check in the morning." Evans testified that the AR is a "social" group that aids the USG in soliciting funds and support. NAMPU was originally formed by seven charter members, six of whom were alleged in the complaint and admitted to be organizers and responsible agents of Re- spondent: Merrill Evans Connie Dammen Larry Gullickson Rod Huinker Daniel Allen Richard Shatek The seventh member was Peter Kennedy. All are unre- turned strikers and members of P-9. Dammen testified without explanation that the only kind of membership in NAMPU is charter membership and that its charter membership has remained constant at seven persons. None of these are identified as former P-9's officers, agents, or employees although they are P-9 members. It is unclear when NAMPU was first formed Evans testi- fied that its storefront headquarters were rented about 2 July. According to Evans, a large part of those persons who had congregated at the ALC on 2 July were P-9 mem- bers Evans testified without contradiction that he ad- dressed numerous questions to Murphy concerning UFCW objectives which went unanswered and that he loudly accused the UFCW of acting improperly by im- posing the trusteeship. He also testified without contra- diction that Murphy promised to return to the ALC the next day to answer Evans' questions as well as the ques- tions of numerous other P-9 members which they had also shouted at him. On 2 July 1986 a representation petition was filed by NAMPU in Case 18-RC-13981 covering the Hormel unit. 2. 3 July 1986 On the evening of 2 July, deputy trustee Kimbro ar- rived in Austin and discussed with Murphy the events of that day, including the Rogers conversation Murphy in- dicated that he did not object to the AR use of the hall although he described the building as being in a "mess." According to the testimony of Kimbro, the following events occurred on 3 July. At 8:30 a.m., Kimbro, Smith, and about seven other UFCW agents entered the ALC by the side fire door to which they possessed a key The front doors had been chained and padlocked by the lock- smith because they were unlockable otherwise due to the theft of their "crash bars," i.e., handles or opening levers. The locksmith retained the key. On entering the build- ing, Kimbro observed stains on the carpeting, paper strewn throughout the building, and upended chairs in the hallway. Kimbro concluded that this constituted a "complete mess" which precluded use of the building by the AR Jim Rogers and his wife, Carmine, also an AR officer, entered the building and confronted Kimbro with a request to hold the AR meeting. Kimbro displayed the 726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD area to the Rogers and told them that it was "in no way, shape or form" to be available for a meeting until the following week. As they talked he heard "knocking or, loud banging" at the front door. Kimbro observed Evans and Dale Francis "banging and kicking" on the glass front doors but no one else. Francis was not identified as a NAMPU member or agent, but appears to be a P-9 member and and employee of unidentified status. After some conversation Kimbro asked the Rogers to inform the AR members that the facility would be made available "as soon as we could." Rogers went outside to speak to a group of retirees waiting there. Rogers testi- fied that between 20-30 retirees had accompanied him on the expectation of holding their meeting pursuant to Murphy's representation. ' After several minutes Kimbro heard a "large pound- ing, banging and kicking" on the side metal windowless fire door through which he had entered. Kimbro and Smith approached the fire door. Kimbro unlocked it. The door was flung open. An unidentified person placed his hand over Kimbro's hand, which apparently retained hold of the swiftly opening door. Kimbro went "out with the door" and was pressed against the outside wall of the building by the bodies,of several individuals, of whom he identified Ray Arnes, a retiree not identified as a NAMPU agent. He identified Evans and Beno Schaef- fer who were standing "a bit back somewhat." Beno Schaeffer was identified as an employee who had retired after this incident. He was not identified as an agent of NAMPU. A small, bespectacled, gray-haired man re- mained hold on his hand. All these persons shouted in- sults and vulgar epithets. An unidentified person shouted "let's castrate the little [expletive], bring the little faggot out here, let's lynch him." Kimbro described the group as a crowd of about 70-100 persons and could only at- tribute certain comments to two specific individuals, Evans and Arnes. Evans demanded to know Murphy's presence. On being told that Murphy had returned to Washington, D.C., Evans poked and pushed at Kimbro and in ob- scene terminology characterized Murphy as a liar who broke a promise to meet with the P-9 members that morning . Arnes stood in front of Kimbro, smoking a large pipe, and shouted- unspecified comments in Kim- bro's face and spat in his face. Kimbro wiped the spittle and thereupon was subjected to mass spitting from the crowd which included Evans. Kimbro demanded that they let him free and warned that they were "dangerous- ly close to violating a- federal court order." Evans re- sponded, "F- your federal order." The confrontation up to this point took place in a "relatively short span of time." Jack Smith pulled Kimbro back inside the threshold. In cross-examination Kimbro testified that the "smaller" person who had held him gestured with his fist as Kimbro pulled his hand away. The crowd shouted un- specified comments Kimbro responded from within that no meeting could be held on that date, that he tried to explain to Rogers, and that if the crowd did not disperse he would call the police. Evans responded, "f- the police-you don't have a phone." In fact the P-9 tele- phone was disconnected. Kimbro instructed one of the UFCW agents next to him to summon the police from a telephone in one of the ALC tenant's offices. He and Smith together remained face-to-face with the crowd across the threshold. Evans invited Kimbro to return outside so he could kick him and on Kimbro's refusal "at this point," Evans offered to leave his phone number so that when Kimbro departed the ALC, Evans could "make arrangements" to beat and kick him. The precise verbage of this threat changed during cross-examination of Kimbro. The site of this confrontation is an asphalt paved lot between the ALC and the VFW building. Kimbro and, other UFCW agents had parked their automobiles in that area in the space designated reserved for the neighboring VFW visitors. There is no clear demarcation between the ALC portions of the lot and the VFW portion. He heard Jack Smith call out "they're messing with our cars!" which were located about a point 10-15 yards from the fire door. From the threshold Kimbro observed "up along the building," at a distance of 10 to 15 yards, and unidentified 17-year-old boy scampering back and forth over the top length of his car. He saw a person he identified later as Lawrence Benson maneuvering over the automobile door lock, as Evans simultaneously con- tinued a conversation with Smith at the door wherein Evans disparaged Kimbro as a "snot nosed kid." For about 15-20 minutes the crowd peppered Evans and Smith with unspecified "verbal abuse" prior to the arriv- al of police. Kimbro did not explain how it was possible to view the automobiles from a threshold area which he described was jammed "chest to chest, face to face, toe to toe" with a crowd of 100 protestors, all of whom he testified seemed to stand in the threshold of the side door. A representative from the VFW building ap- proached at 9:20 a.m., apparently able to freely reach the entrance, and ordered Kimbro and Smith to move their automobiles. UFCW Agents Plumb, Jack Smith, and Art Smith went to move all the cars, apparently unimpeded and unmolested by the crowd. Unspecified persons in the crowd closed the ALC fire door The UFCW agents within forced the door open and found a broken section of 2-by-4-inch lumber on the ground nearby which they presumed had been wedged against the door. Retiree Alfred Simon picked up the piece of wood, held it over his head, and shouted to UFCW Agent Lesley George standing there with Kimbro and Reuben Salazer," come out here [racial epithet], I want to bash your head in " Kimbro could not see Evans' whereabouts when that statement was uttered, and there is no evidence he was aware of it. The crowd moved toward the parked auto- mobiles, the door locks of which were discovered by Smith already jammed with toothpicks and thus rendered inaccessible. About 9:30 a.m. police officer Stinegar arrived and inside the building suggested that Kimbro close the building because he could not quarantee his safety Kimbro responded that he was willing to do so but he feared "getting out . . alive . . . ." Officer Stinegar went outside, returned shortly, and stated that the crowd was upset because Kimbro had denied them the use of the building. Thereafter, Stinegar arranged a meeting at MEAT PACKERS (HORMEL & CO) 727 the Austin Law Enforcement Center about 10.30 a.m. be- tween Kimbro, Jack Smith, Evans, Rogers, Bernie Thompson, and Merrill Christianson, with officer Stine- gar. Kimbro identified Thompson as a retiree. He was not otherwise identified as a NAMPU agent. Christian- son's status was never explained. At this meeting, in answer to Kimbro, Evans admitted to having told Murphy earlier that he does "work for" NAMPU, and stated in response to Kimbro's question whether he thought NAMPU could win a decertification election, "our victory will be when the UFCW is decertified and ran out of town." Christianson sat next to him nodding affirmatively Nothing was "resolved" at the meeting as a request was repeated for a retiree meeting as Murphy had prom- ised, and Kimbro reasserted his opinion that the building was not fit for use. In his testimony Rogers opined that he and his wife could have cleared it in 1 hour as it merely involved picking up scattered papers and upend- ed chairs. At the meeting Thompson accused Kimbro of ignorance. Thompson accused the UFCW of stealing the ALC from the rank-and-file employees. After some fur- ther recriminations the meeting concluded. On returning to the ALC, Kimbro found his automobile had a broken radio antenna, broken headlights, was posted with "scab" stickers, was dented and scratched to an unspecified degree, and tires punctured by unidentifed persons in their absence. The UFCW agents gained entry to their cars and departed having closed the building. Neither officer Stinegar nor any other disinterested ob- server was called to testify. Kimbro reported no threat to Stinegar nor did he file any criminal complaints. He explained that the Hormel strike had created a "very highly emotion charged situation" in the community of Austin and that since his arrival in Austin in mid-May 1986 he and other UFCW agents had been subjected to such a large number of threats, including death threats, that he considered such conduct "had almost become routine." Kimbro testified further: Since coming to Austin and being in the store- front [temporary headquarters prior to possession of the ALC] we have had the windows broken at the storefront We have had them broken at the Austin Labor Center. The cars have been continually van- dalized. I have received numerous threats Jack has. Others of our party have. We have had Hormel products thrown on the windows. We have had people come in and throw things inside the offices. It is become [sic] a constant continuing situation. We have not-quite honestly, there has been many, many acts taken palce in Austin of vandalism and other things. It's my understanding there have been no arrests or prosecution of those. I felt it to be ab- solutely fruitless to try to make any charges or pro- ceed in that manner. Jack Smith, deputy trustee, the only other General Counsel witness to this incident, corroborated Kimbro only as to some of the events on 3 July. According to Smith, the following occurred. On arrival with Kimbro at 8.30 a.m., he observed initially only about nine retirees congregated outside of the building. Just before 9 a.m., Smith stood on a chair in the ALC library and looked out a window 1-1/2 blocks up the street to the left of the ALC. He observed between 25 to 40 persons exit NAMPU's headquarters and walk toward the ALC. The only one he recognized was Beno Schaeffer He did not observe Evans in that group. Thereafter Smith heard pounding at the front door and the loud demands of Evans and Francis that the retirees be permitted to hold their meeting. Then he heard heavy pounding at the fire door. He saw Kimbro go out with the door at it was hurled open. He failed to testify that anyone laid hands on Kimbro Rather, he testified that Kimbro "had hold of the door-he went with it, and then they held it so we couldn't get the door shut." Arnes, Evans, and un- identified persons crowded immediately about Kimbro and Smith. He estimated 70-100 persons were out there. Kimbro was heard to warn the crowd about the Federal court order. He heard Evans' obscene verbal response. He heard Kimbro demand that the crowd release the door and "release them" but he failed to testify who, if anyone, was held Unidentified persons spat on Kimbro, as Smith talked directly with Evans who remonstrated that Smith was experienced and ought to know better than to do what he was doing Despite the proximity he did not see Evans spit at Kimbro. Smith pulled Kimbro into the building. Unidentified persons in the crowd forced the door to be held open for an unspecified length of time. As to utterances of the crowd at that point, he had a limited recollection. He heard Schaeffer ask Kimbro how he liked being spat on, He heard Arnes ex- press concern for the Rogers who were inside. Pursuant to a leading question, Smith testified that Arnes stated that the Rogers might need help and "let's take the building." However, Arnes alone did "walk into the building" and was seen by Smith leaving later with the Rogers. Although Smith and Kimbro were in close proximity at the threshold of the door, according to Kimbro "chest to chest" with the crowd, Smith failed to corroborate Kimbro concerning threats of physical harm, the insults to Kimbro, the spitting and poking of Kimbro by Evans, and his invitation to beat and kick Kimbro and that any specific person in the crowd actually physically re- strained or prevented Kimbro or anyone else from exit- ing or returning into the ALC He also failed to corrobo- rate Kimbro regarding the conversation between Kimbro and Evans concerning the police. Smith observed a crowd of persons around the UFCW automobiles, which were only 35 feet away in view from the doorway, and discovered that the locks were jammed by toothpicks and the exterior finish was scratched to unspecified extent. It is unclear how he had a clear view of the cars if a crowd of 100 persons had massed at the doorway "chest to chest " According to Smith, apparently the crowd had disengaged from the side door sufficiently to allow passage from the ALC to the automobiles or it was not as congested as alleged Smith was silent about the blockade of the door with a 2-by-4-inch piece of wood although, according to 728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kimbro, both he, Plumb , and Art Smith had dust exited at the time and were just outside of that door when it was closed and blocked . Just before approaching his car, Smith was asked by Evans whether he was paid enough "to take this kind of harassment " He responded, "I'm here." Smith testified to no other incidents on 3 July Regarding 3 July, Respondent adduced the testimony of Evans, James Rogers, Arnes, and Simon Evans testified without controversion that he was the only NAMPU charter member present at the ALC on 23 July, and that he was there pursuant to Murphy 's prom- ise of 2 July' to answer his questions . His corroborated testimony about Murphy's promise is not contradicted and must be credited . According to Evans, the following events occurred . Evans arrived at 9:30 a in. or later and found a crowd present at the front doors who explained that the doors were locked and that Murphy was not there Evans exclaimed that this was contrary to Mur- phy's promises . After knocking and shouting a demand to know "what was going on" and after no response, he moved to the side fire door where he found a "bunch of people" and he saw a large number of retirees He did not recall seeing Dale Francis there. He knocked. Smith opened it and responded to his questions that^the ALC was closed and he knew nothing about the arrangement with Murphy , nor Murphy's whereabouts Evans protest- ed Kimbro stood next to Smith . He testified that the en- counter lasted only about 10 minutes . He was not rebut- ted on this point In view of the failure of Kimbro and Smith to testify to a specific timeframe , I credit Evans that this encounter was brief. ' Evans denied the ,use of profanity, spitting at Kimbro, threatening to fight him, or touching him. He observed no other person do so. He did see an unidentified person not associated with NAMPU force the door to remain momentarily open That person stated to Kimbro, "Look we want to talk to you , and you're not going to dust run back inside." According to Evans, 'Kimbro said to him something to the ` effect that he, Kimbro, would "get even" with Evans, and he responded by offering to dis- close his telephone number which Kimbro rejected, stat- ing he already had it and then Kimbro turned and went inside the threshold . Thereafter, two police officers, Ser- geant Miken and Captain Stinegar, arrived and informed them that the UFCW trustees wanted them to leave the area which they advised doing to avoid an accusation of being in violation of a court order. The officer went inside and returned and suggested the' meeting at the Law Enforcement Center to which Evans was invited by retirees Thompson and Rogers , and where he and the re- tirees loudly and emotionally, but without threats or pro- fanity, accused the UFCW of deceit and noncompliance with Murphy's promise to use the ALC for a meeting that day. Kimbro did not relent on his refusal to let the retirees use the ALC basement meeting room on 3 July, although he stated that it might be available in perhaps a week. Evans' testimony was augmented by James Rogers. The Rogers were permitted to enter the ALC. Rogers testified that he observed no great effort required to clean the littered papers, etc., and that they engaged in a fruitless discussion with Kimbro . On emerging, Rogers observed about 50-60 persons outside the fire door, of whom 25-30 were retirees . Unidentified nonretirees came off the street The only nonretiree he recognized was Evans. Rogers did not recall observing Dale Francis in that group . He observed Smith standing in the doorway with a smiling Kimbro. There was no spitting , no curs- ing, no violence, no broken boards, and no vandalism, al- though there was a good deal of shouted insults, e g., "scabs." Rogers observed Kimbro's car and saw that it was without any dents or damage to the roof. After the meeting Rogers and the retirees did not return to the ALC. Rogers, who often visits the NAMPU headquarters for a cup of coffee and a "word of friendship," did not visit it on 3 July Rogers ' testimo- ny implied that the crowd was sufficiently aroused to some conduct which caused his concern. He testified: and about that time when the police came, I was talking to the policeman because they wanted to know what was going on, and I felt that maybe I could speak with some of those people and get things settled down. We didn't need any people in jail. We have had enough of that. Ray Arnes, an elderly retiree from the Weyerhaeuser Co., testified that he was with the group of Hormel Co. retirees at the side door on 3 July and it was he who put his foot in the threshold to keep the door open because the retirees wanted an explanation for the refusal of access and that - Kimbro threatened to call the police thereafter. Neither he nor anyone else spat at Kimbro, nor did he or anyone else gesture menacingly . He heard Evans argue with Kimbro He admitted that there may have been "verbal abuse," i.e., insults such as "scab lovers," but he observed no violence or vandalism He went into the building because he did not want Rogers and his wife to be alone in there He did not deny stating "let's take the building " Another elderly retiree, Al Simon, a former Hormel employee, testified that he merely picked up a piece of wood that was lying in the path of a parking slot and tossed it aside in a nonmenac-, ing fashion . He denied that he or Evans spat on or threatened Kimbro. 3. 11 July 1986 The UFCW had arranged for the distribution of bene- fits to the nonrecalled strikers in the nature of a check made out to the specific striker. Kimbro characterized the beneficiary as a "p°rmanently replaced striker." Ar- rangements were made for the beneficiaries to come to the ALC personally to receive the check on 11 July be- tween 10 a m. and 3:30 p.m NAMPU members were among the recipients, including Evans , At 9:30 a.m . cotrustee Jack Smith observed a group of 15 to 25 persons exit from the NAMPU storefront head- quarters and proceed to the ALC Of those, he identified Schaeffer. Evans was not with that group but had been observed earlier standing across the street . Kimbro esti- mated that group to be much larger (40 persons), of whom he identified NAMPU Agent Daniel Allen and Lynn Houston, a former P-9 officer but nonagent of NAMPU. Within a few minutes, a larger group, estimat- MEAT PACKERS (HORMEL & CO) ed at 50 persons by Kimbro, but merely "large" by Smith, emerged from the USG headquarters 4 to 5 blocks up the street and moved to the ALC In cross- examination, Kimbro inflated his estimate to 50 and 60 for the respective groups, and characterized the USG group as "possibly" a larger group. Both groups arrived before the 10 a.m scheduled opening. The group from USG demanded immediate issuance of their checks and carried signs that disparaged the national UFCW officers and which bore legends accusing the UFCW of miscon- duct by appropriating Local P-9 funds. The NAMPU group carried no signs . Both groups apparently intermin- gled in front of the ALC and moved about the doors in close formation as members of the group took turns in entering and accepting benefit checks. An unknown number of them, including two former P-9 officers and Dammen, lingered at the coffee area inside After receipt of benefit checks prior to 10 am and some lingering inside, each protestor returned to the milling crowd at the front door. UFCW had hired security guards Two guards were on duty on this day. They did not testify The two guards on duty instructed the crowd not to block in- gress. Neither Kimbro nor Smith testified with specifici- ty about the protestors' exact conduct in compliance or noncompliance with these requests. Kimbro described the effects of the protestors' conduct in response to sug- gestive questions put to him by counsel for the General Counsel. He was vague, generalized, and conclusionary. He testified that "the protestors would tend to bunch up and block the entrance to the door so the people could not get in." It is not clear from this testimony that this was done by the crowd outside, or by the protestors who had come inside to obtain a check and who had lin- gered therein at the "coffee area." He did not elucidate on the "difficulty" those lingerers caused on the flow of check recipients. From Kimbro's testimony it cannot be determined whether the nature of the check recipients' behavior was anything more than normal crowd confu- sion. He identified only three check recipients who did not leave the building immediately but, according to him, they did not block the doors but rather "went inside to the coffee area and stood around there." He gave no details. Two of those persons were former P-9 officers, and one was NAMPU Agent Connie Dammen. The impact of lingering at the coffee area on ingress or egress is not explained sufficiently. Apparently ingress and egress was not completely stopped as beneficiaries did enter, obtain their checks, and exit at the side door throughout the day In cross- examination Kimbro testified that he could not identify a single person whose ingress or egress had been blocked. There was no identification of a NAMPU agent in the crowd at the front door continuously throughout the day, Evans remained across the street Allen was seen by Smith moving "up and down the street," soliciting signa- tures in support of a petition for a Board-conducted de- certification election Kimbro testified that he observed Allen directly in front of the ALC door However, he did not testify that Allen remained there for any length of time. 729 Dammen testified that she also stayed throughout the day from 10 a.m. to 3.30 p m and solicited signatures She testified without rebuttal that she observed Evans at one time leaning against the outside wall of the ALC en- gaged in discussion with some people, and that the bal- ance of the time he stationed himself across the street with a group in front of a retail store near which Evans remained situated. The petition was ultimately filed with the Board's Regional Office It is her uncontradicted tes- timony that NAMPU collected 650 signatures from P-9 members who visited the ALC that day in the course of those few hours during which she observed persons en- tering and leaving Her estimate of the maximum number of persons in the crowd at any one time was 30 persons Dammen's estimate falls within the range of the lower estimate given by Smith, and I find it therefore more credible and closer to an accurate estimate than either of Kimbro's two sets of figures. Kimbro testified that when he observed Evans, the latter was across the street from the ALC standing near a pickup truck with a small group about him. He failed to identify the presence of Evans' automobile He testi- fied to no further conduct of Evans. Smith, however, testified pursuant to a leading question that he saw Evans across the street 30 feet away, inside of an automobile owned by him, holding a camera to his eye in a manner of photographing toward the ALC as people "were en- tering and leaving." His testimony was not corroborated by Kimbro who, on the contrary, did not observe any photography on 11 July. Evans testified that on 11 July he obtained his benefit check at the ALC on his arrival there directly from his residence. He argued with no one within, accepted his check, and he proceeded outside to a location across the street where he remained for about an hour and con- versed about the Board's decertification process with a group of friends He testified that he did not have a camera in his possession, did not take photographs, did not block ingress or egress and that he observed no one else do so Dammen testified that Evans had nothing in his hands. Although Kimbro testified that as of 11 July the UFCW had positioned observers outside its ALC premises for the purpose of combatting vandalism, no other persons corroborated the testimony of Kimbro and Smith as to the events of that day Kimbro testified that an unspecified number of beneficiaries failed to appear at the ALC on 11 July, and pursuant to telephone calls from these persons he arranged for subsequent delivery of an unknown number of checks. None of these persons were called to testify. Significantly, Smith's testimony is devoid of any reference to the blocking of ingress or egress by the crowd. 4. 14 July 1986 The UFCW scheduled and announced a meeting to be held at the ALC at 10 a m. on 14 July for the purpose of addressing and soliciting the membership of non-P-9 members actively employed by the Employer in the bar- gaining unit. UFCW Representative Duane Karmen pre- sided over that meeting, as he had over a series of such meetings. According to Kimbro, at the outset of the 730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD meeting one of the posted UFCW, outside observers shouted "here they come again." Kimbro exited and ob- served a crowd of, he guessed, about 50 persons walking from the direction of NAMPU's headquarters. He identi- fied in that group Evans and two suspended P-9 officers who are not alleged as NAMPU agents. Kimbro testified that the following events occurred. The crowd came to the front doors. Karmen told them that the meeting was not intended for members, but an,unidentified voice de- manded a membership meeting. After repeated refusal and request, Kimbro suggested that if the members want to meet they might do so in the downstairs meeting room while Karmen met with the nonmembers upstairs. Kimbro went downstairs to speak to the members whom he described as without any single spokesperson, i.e., "everyone was talking." The basement room can accom- modate 300 persons. About 30 members descended with Kimbro. The remainder of the group of 50 stayed out- side chanting, "scabs upstairs, P-9 downstairs." NAMPU charter member/organizer Gullickson was among those downstairs . A question-and-answer session ensued. Evans was not present. Suspended P-9 officer Houston entered with a tape recorder. When he entered, about half the people departed. One person complained about the tape recorder. Kimbro asked Houston to turn off the record- er. He refused. He was ordered to leave. He refused. Police were summoned, and Houston relented and turned off the recorder. As the police departed, Evans arrived with enough unidentified persons to bring the group up again to about 30 persons despite the fact that 5 or 10 more left on his arrival Evans shouted insults. He called the UFCW "a bunch of liars, no good,", its international officer a thief, Kimbro a "sleaze," the UFCW representatives a bunch of "dummies," and sug- gested that if the UFCW charged its entire nationwide members each a dollar that the strike could be perpetuat- ed. Kimbro did not describe how the meeting downstairs culminated. Smith testified that on 14 July he arrived at the ALC and, observed "a big demonstration going on in front." He walked in and discovered that a second meeting was being conducted downstairs. He did not describe the demonstration nor did he estimate their number. Smith testified that he descended to the basement and heard Evans standing up and asking "negative and derogatory questions." He did not specify. He testified that Evans refused to be silent when asked by Kimbro and that "fi- nally another 'international agent rep said to Merrill [Evans] would you please be quiet and sit down." Evans complied. Despite a leading question, Smith failed to de- scribe Evans as "loud." Kimbro testified that at an unspecified time on 14 July, he received a telephone call from actively employed bar- gaining unit employee Chad Young who told him that unspecified persons told him that they would not attend the informational meeting because "crazies were out front" and Evans was taking photographs from his auto- mobile. Young corroborated him. Kimbro testified that he thereupon went outside and observed Evans across the street seated in an automobile "taking pictures of ev- erybody," as they entered and departed. Kimbro ex- plained that therefore he retrieved his own camera from the - ALC office and asked UFCW Representative Carl McCaffrey to photograph Evans. McCaffrey identified the photographs he had taken purportedly of Evans taking photographs on 14 July. He testified that from a distance, for 5 minutes he saw Evans position his camera to his eye numerous times aimed at persons coming and leaving the ALC. Employee Young testified that he also observed Evans on 14 July sitting in his "Polera" car with a camera pointed at anybody going in or out of the union hall. He identified Evans and the car that he,'was in. Young is it participant in the UFCW inplant organiz- ing committee and had solicited employee attendance at the meeting. According to Evans, the events of 14 July and their sequences occurred as follows: At 3:30 p.m. Evans was present at NAMPU headquarters when some entered and disclosed that a meeting was being held at the ALC. Evans exclaimed that it was about time that a meeting" was convened Inasmuch as his automobile had by chance been parked in a limited time parking zone, he decided to drive the extremely short distance and park across from the ALC. He was accompained by P-9 member and non-NAMPU officer Mike Bustead who had just happened to come into the NAMPU, door, having just returned from photographing an alleged em- ployer sludge drop at the Cedar River. Bustead sponta- neously suggested that he go with Evans "and see what's going on." While the two sat in Evans' automobile ob- serving persons entering the ALC, McCaffrey exited and immediately photographed Evans. In retaliation Evans photographed McCaffrey with Bustead's camera. He tes- tified, "So I made a big deal out of taking his picture." He may "possibly" have also photographed Jack Smith. He insisted that he used the camera for no other purpose, and remained seated in the car, for about one-half hour, for no other purpose than to observe persons entering the ALC. He did not explain why he failed to go into the ALC "to see what's going on." Nor did he explain why he simply did not make a telephone inquiry. An unidentified P-9 member came, out of the ALC and went over to him and stated that a meeting was being held for "the people that were outside the plant that were not working . . . down in the basement." Ac- cordingly, Evans went to the basement meeting area in the ALC at the moment when the Houston tape recorder incident was concluding. Kimbro "preached" to the P-9 members the error of their ways. Evans stated he had, a question but was abruptly told to "shut up'.',by a UFCW organizer who "kind of tried" to shove him. Evans ques- tioned Kimbro about UFCW strike policy. The meeting lasted 20 minutes. He denied the use of profanity, threats, or violence, but otherwise he specifically denied no'other aspect of Kimbro's testimony not raised in his own testi- mony, i.e., the number of persons involved and their placement, e.g, the chanting by a group in front of the entrance, and his own shooting of insults at Kimbro during the course of the meeting. B. Factual Findings and Conclusions A factual dispute exists about what actually transpired at the ALC on the three dates in July 1986. The burden MEAT PACKERS (HORMEL & CO) 731 of proof is on the General Counsel. As proof in support of the 3 July allegations, the General Counsel elicited the testimony of only -two . of a potentially much larger number of witnesses The General Counsel did not elicit the testimony of noninterested persons such as police of- ficers, the VFW building occupants, or nearby mer- chants or their customers. Rather, the prosecution of the facts of this incident is premised on two agents of the Charging Party which is interested in the maintenance of its unfair labor practice charge against it rival NAMPU. The General Counsel has further limited its testimonial evidence by not corroborating the testimony of those two agents with the testimony of the seven additional UFCW agents who as a group took possession of the ALC with Kimbro and Smith on 3 July and who were immediately behind them during the confrontation. Par- ticularly noteworthy is the absence of the testimony of UFCW Agent 'Lesley George who, according to Kimbro, was the object of a threat of violence and racial slur. In view of the sworn denials of the several Re- spondent witnesses, the corroboration of Kimbro by Smith of the alleged unlawful conduct is highly critical. Surely Smith was proffered as a witness who was present with Kimbro and was able and willing to testify as to all events of which he had recollection. As a wit- ness I found Smith to be thoughtful, reflective, and delib- erative, but at times hesitant Kimbro exhibited a tenden- cy to engage in an eager, extended narrative. Counsel for the General Counsel often resorted to leading questions to elicit Smith's' responses. Smith was a more conserva- tive witness than Kimbro as, for example, in regard to the estimates of crowd size, which Kimbro further inflat- ed in cross-examination. Smith appeared to limit his at- tention to the events he was questioned about. Kimbro often managed to insert generalized allusions to past in- stances of alleged harassment. Smith did not appear to be a witness of poor recollective abilities. He, above all the other UFCW agents, was chosen by the General Counsel to corroborate Kimbro Yet Smith did not corroborate Kimbro as to numerous crucial incidents that ran to the thrust of the complaint allegations and he was inconsist- ent with Kimbro in several areas. Kimbro's testimony contained vivid references to acts of stark misconduct. It is very difficult to understand how Smith, who was very detailed about the events of 2 July, could have simply failed to recall the events of 3 July if they had occurred as testified to by Kimbro. - Paragraph 5(a) of the complaint alleged that Respond- ent, by its admitted agent Evans and "other agents," in the, presence of employees at the the ALC "physically restrained and threatened and assaulted" a representative of the UFCW. In view of the failure of Smith to cor- roborate Kimbro, I discredit Kimbro and credit the deni- als of Respondent 's witnesses to the following incidents: the prodding, raised fist, laying of hands on and physical restraint of Kimbro, the threats of violence to Kimbro, Smith, or any other UFCW agent by Evans or anyone else, the specific act of spitting on Kimbro by Evans, the blockading of the side door with a 2- by 4-inch piece of lumber, the racial slur and threat of violence to Lesley George. I must therefore conclude that Kimbro's testi- mony was embellished and exaggerated to the point where it became unreliable. I find his uncorroborated hearsay testimony about the police officer's subjective conclusions of the state of the crowd to be equally unre- liable and of no probative value as I do his own alleged subjective conclusion that he feared being able to leave the building for fear of his life With respect to the alleged spitting, although Smith did testify that Kimbro was spat on, I find the testimony of both agents so inconsistent as to present any finding that mass spitting occurred within the knowledge or ap- proval of Evans, the only NAMPU agent present. Kimbro testified that Arnes initially spat at him where- upon unidentified other persons as well as Evans joined in. Kimbro testified that he then demanded to be let loose from the hold of a crowd member at which point Smith pulled him within. Smith testified that he observed Evans and Arnes, who were immediately present at the door at that moment, but saw none of them spit. In view of the congestion at the door it does not appear possible that he could have observed many more persons. He tes- tified that as Kimbro was spat at, Evans was engaged in direct discussion with him, not spitting at Kimbro. Therefore, according to Smith when counsel for the General Counsel asked directly whether Kimbro was physically able to reenter the building at that moment, he testified that he heard Kimbro demand that the crowd "release the door and release them." But he did not testi- fy that anyone actually held either of them, and thus he did not respond to the suggestive question put to him. Furthermore, even Kimbro claimed that it was only he who was physically held. I therefore cannot find that Kimbro was forceably held and spat on by the crowd with either the participation or approval of Evans I must credit the testimony of Respondent's witnesses that the incident did not occur. With respect to the contention that egress was blocked by a hostile crowd and thus coercive in itself, I find that the evidence fails to support it. The facts disclosed that a group of retirees angrily demanded entrance and use of a meeting room to which they had some reason to believe was promised to them Concurrently Evans appeared along with a group, the vast preponderance of whom were not identified. Some of the group were identified as P-9 members whose employee status was not clearly de- lineated. They appeared to resume a confrontation with Murphy whom they had reason to believe would be present for that purpose. Both groups loudly protested, shouted their objections, and insulted the UFCW repre- sentatives to the point where Rogers felt constrained to calm them But I cannot find that their crowding at the threshold and blocking of the door closure was more than a brief boisterous expression of frustration and exas- peration. The facts as testified to by Kimbro and Smith necessarily prevent a contrary conclusion The crowd could not possibly have remained jammed in that door- way as described by Kimbro and yet permitted a clear view of the parking lot, through which both VFW rep- resentatives and Smith had unimpeded, free movement. The evidence does not sustain the General Counsel's ar- gument that the ALC was closed down because of the persisting massed demonstration of retirees and P-9 732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD members, rather than because the building was unfit for use as Kimbro claimed I find that the General Counsel has failed to prove the operative factual allegations of subparagraph (a) of paragraph 5 of the complaint, and it is therefore unnecessary to evaluate whether conduct not directly perpetrated by, Respondent 's agent Evans ought to be attributed to it Paragraph 5(b) of the complaint alleged that on 3 July Respondent , by its "agents , members and supporters, in- cluding Laurence Benson ," in the presence of employees with knowledge, approval , and ratification of its agent Evans attempted to and did damage UFCW agents' auto- mobiles. In cross-examination Kimbro testified that he observed Benson "hunched over" at Kimbro's vehicle and it "ap- peared" that he was "either trying to open or put some- thing in my lock," but he had no observation that Benson engaged in any actual vandalism at that moment. According to Kimbro, when he made that observation Evans was still situated at the threshold arguing with Jack Smith with 100 protestors pressed up behind Evans and thus he could have had no awareness of what was transpiring 35-45 feet away. , According to Kimbro, Smith engaged in argument with ,Evans and yet simulta- neously was able to see past the crush of people at the door to notice activity at the automobiles and then cry out a warning . Smith testified that at an unspecified point in the confrontation he, observed not, one person, but rather a "group of people" around his car and one at the lock and assumed that the locks were being jammed at that moment. Accordingly, he and Art Smith "walked directly" to the car, apparently without difficulty through the mass of 100 shouting protestors jammed at the door, and discovered that toothpicks had been insert- ed in the locks. He confirmed that Evans had remained at the door . No one identified the persons at the automo- bile as having been either retirees or as the indivduals who had accompanied Evans, or as relatives or friends of NAMPU, or as other persons in the community hos- tile to the UFCW who had previously vandalized UFCW property Laurence Benson's status is unclear If I were to credit the testimony of Kimbro and Smith, the only damage to the automobiles proven to have been perpetrated during the presence of a NAMPU agent con- sisted of toothpicks inserted in the door locks and un- specified scratches to Smith 's car inflicted by unidenti- fied persons at a time when Evans remained arguing at the doorway with 100 shouting protestors behind him. Thus, even if ,I were to credit Kimbro and Smith, Evans could not have been aware of the alleged vandalism and therefore he was not shown to have instigated, ap- proved, or ratified it. However, because of the testimony as adduced in this record , I am not able to find that the cars were readily visible If they were visible , then the conduct of the crowd could not have comported with Kimbro's and Smith 's descriptions However, if the cars were visible, I still cannot credit Kimbro and Smith be- cause of their unreliability as witnesses to the conduct of the crowd at the door. Accordingly, I must find that the General Counsel has not adduced sufficient , clear, and credible evidence to sustain the allegation of fact in para- graph 5(b) of the complaint. 1. 11 July 1986 Paragraph 5(c) alleged that on 11 July Respondent, by its agents, members, and supporters , including Evans, "harassed, intimidated and otherwise impeded access of employees to the [ALC]." Paragraph 5(d) alleged that Evans photographed, the employees as they enterd or de- parted the UFCW on 11 and 14 July. Kimbro's testimony concerning the behavior of anti- UFCW protestors on 11 July at the ALC is uncorrobor- ated by Smith except for Smith's observation of a lesser number of persons who emerged from NAMPU and USG headquarters and congregated in front of the ALC. Neither the testimony of Kimbro nor Smith'reveals with sufficient clarity that the protestors did actually impede the ingress or egress of any person, nor that any action was engaged in by any member of the group which might have tended to intimidate employees from engag- ing in membership in or conduct on behalf of the UFCW. At most, the protestors picketed - with signs which disparaged the UFCW and sought support for a decertification election. The protestors do not appear to have coercively interfered with the entry of other per- sons for the object which was the same as their own entry, i.e., to obtain benefit checks. With respect to the alleged photographs by Evans on 11 July, the allegation is premised on the sole testimony of Smith. Kimbro not only failed to corroborate Smith, but his testimony is inconsistent with Smith in important detail as noted above. Smith's demeanor concerning the incident was uncertain. He admittedly was confused whether Evans was situated in his car, or whether he was standing, and speculated that he might be confusing it with the events of 14 July I credit the corroborated testimony of Evans and conclude that Smith was incor-' rect to' the extent that Evans photographed visitors to the ALC on I1 July Accordingly, I find that the General Counsel has failed to prove the 11 July allegation of paragraphs 5(c) and (d) of the complaint by clear, coherent, credible tes- timony. 2. 14 July 1986 With respect to the events of 14 July, the allegations of misconduct are limited solely to the conduct of Evans whom it alleged in paragraph 5(e) "in the presence of employees, disrupted a meeting of employees conducted by representatives of the UFCW at the [ALC] and shouted obscenities at and, threats to representatives of the UFCW." The General Counsel does not allege any misconduct by any other agent or person acting on behalf of NAMPU on 14 July. There is no allegation that NAMPU impeded ingress or egress at the ALC, nor that it coerced individuals by virtue of the presence of a group of protestors demonstrating outside the ALC, nor that it coercively intimidated any employee by virtue of its instigation, approval, or ratification of that protest Kimbro testified that he acquiesced and invited the protesting P-9 members to attend a meeting downstairs while an organizational meeting of nonstriker-non- members was held upstairs There is no evidence that the MEAT PACKERS (HORMEL & CO) 733 upstairs meeting was internally disrupted The only evi- dence of possible disruption consists of what occurred downstairs among the meeting of P-9 members who did not appear to interact with the nonstrikers upstairs. Len Houston, a non-NAMPU member, is not alleged to have acted as an agent of NAMPU on 14 July. In any event, his conduct in attempting to tape record the meeting was protested by a member of the P-9 group itself and had absolutely no impact on UFCW's organizational activi- ties among nonmembers upstairs, and was not approved of or ratified by Gullickson. Evans was not even present when it occurred. With respect to Evans, there is no evidence to support the complaint allegation that he "disrupted a meeting and shouted obscenities at and threats to representatives of the UFCW." What he did was to attend an ad hoc meet- ing of P-9 members of whom he claims he is one, stand up and for an unspecified duration vociferously express- ing his disapproval of the UFCW leadership strike policy, disparage its leadership, and argue on behalf of a continued strike. Smith described Evans' conduct as follows: Well, his behavior basically was, he was asking neg- ative questions, putting the UFCW down, you know, always showing fault with the UFCW. They were derogatory to the UFCW The evidence reveals that he was effectively silenced and seated by an UFCW agent. Moreover, his conduct was witnessed by fellow protestors and sympathizers of un- specified employee status and not by the nonstriker-non- members attending the upstairs organizing meeting. Under these circumstances, I cannot find that Respond- ent, by its agent Evans, coercively interfered with em- ployees' rights to engage in union activities as alleged in paragraph 5(e) of the complaint. With respect to the allegations in paragraph 5(d) of the complaint concerning the alleged photography by Evans on 14 July, I find there is merit. I find that Evans' uncor- roborated testimony with respect to how and why he came to be situated with a camera in his automobile across from the ALC to consist of too many fortuities and non sequiturs to be credible. Additionally, his de- meanor was such that conveyed an impression of lack of conviction if not actual chagrin in hearing himself nar- rate such and explanation. I credit the testimony of the General Counsel's wit- nesses concerning this event. They were spontaneous, convincing, and mutually corroborated. As the General Counsel correctly argues, the Board has held it to be coercive conduct for an employer to engage in photographing of employees in a context that tends to coerce them into either engaging in or refraining from protected activities as, for example, the photo- graphing of striking employees for no valid reason. See, for example, Brunswick Hospital Center, 265 NLRB 803, 808 (1982). In this case a well-recognized and vociferous- ly active agent of NAMPU was engaged in activities cal- culated to cause the ouster of the UFCW as bargaining agent, and its replacement by NAMPU. In the course of those activities, he ostentatiously situated himself in a po- sition to appear to employees entering a UFCW organiz- ing meeting that they were being surveilled and photo- graphed. That is to say they were given the impression by this conduct that if they entered the ALC in the pres- ence of an anti-UFCW protest group, NAMPU would memorialize their conduct by retaining their photographs in some sort of file or dossier. The natural inference to be made by the subjects of the photographs was that they were being targeted for retaliation. CONCLUSION OF LAW I conclude that Respondent, by its agent Merrill Evans, as alleged, in the complaint with respect to 14 July, engaged in the appearance of surveillance and ap- parent photographing of employees entering and leaving an organizational meeting of the UFCW on 14 July 1984 for no justifiable reason, and thereby violated Section 8(b)(1)(A) of the Act. THE REMEDY I recommend a remedial order whereby Respondent be ordered to cease and desist from its unlawful conduct and take affirmative action to inform employees and members of their rights to union membership and activi- ties or to refrain from such. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed' ORDER The Respondent, North American Meat Packers Union, Austin, Minnesota, its officers, agents, and repre- sentatives, shall 1. Cease and desist from (a) Photographing or pretending to photograph em- ployees of Geo. A. Hormel & Company or other persons entering or leaving the premises of the Austin Labor Center for the purpose of restraining or coercing em- ployees of Geo. A. Hormel & Company from engaging in their rights guaranteed in Section 7 of the Act. (b) In any like or related manner restraining or coerc- ing employees in the exercise of their rights guaranteed to 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 offices and meeting halls used by or fre- quented by its members copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately ' If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and 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 pur- poses 2 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 " 734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members and employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Sign and mail to the Regional Director copies of the aforementioned notice for posting at the premises of the Employer (Geo. A. Hormel & Company, in Austin, Minnesota, and for posting at the Austin Labor Center by United Food and Commercial Workers International Union if it so desires), if the Employer is willing. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.