Arlington Village Development

SERVICE EMPLOYEES LOCAL 32B 32J (ARLINGTON VILLAGE) 325 Local 32B-32J, Service Employees' International Union, AFL-CIO and Fred Stark, d/b/a Ar- lington Village Development Case 29-CB-6379 March 20, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND DEVANEY On May 18, 1987, Administrative Law Judge James F Morton issued the attached decision The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a brief in support of its cross exceptions and in opposition to the General Counsel's 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' and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed ' The General Counsel has excepted to the judge s failure to consider Davlan Engineering 283 NLRB 803 (1987) We find that the two cases involve clearly different issues Thus the issue in Davlan unlike that in the present case was whether employees who solicit authorization cards should be considered special agents of the Union for the limited purpose of assessing the impact of statements about union fee waivers or other purported union policies that they make in the course of soliciting Id at 804 Davlan was thereby applying the concept of apparent authority under common law agency principles There is no reasonable basis how ever on which employees who witness isolated acts of picket line vio lence by other employees can assume that those actions represent author ized policies of the union involved in the strike at least in the absence of actions by undisputed union agents that can be reasonably construed as authorization or ratification of the misconduct We therefore find that Davlan is inapplicable here In light of our adoption of the judge s dismissal of the complaint we do not pass on the immunity issues discussed by the judge Beatrice Kornbluh Esq for the General Counsel Ira Sturm Esq (Manning Raab Daly & Sturm) of New York New York for the Respondent Mark Attia Esq, of New York New York, for the Charging Party DECISION case in chief, during the hearing before me on 27 Febru ary 1987, Respondent moved for dismissal of the com plaint on the ground that the General Counsel had failed to prove, prima facie the alleged violations I reserved ruling, requested briefs, and adjourned the hearing with out further date Collaterally Respondent applied condi tionally for a Board order granting immunity to two of its prospective witnesses That matter was separately briefed by the parties and is discussed, infra, as an alter native point On the entire record, including my observation of the demeanor of the witnesses and after due consideration of the beefs filed by the General Counsel and Respondent I make the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION STATUS At the hearing, the complaint was amended to allege that the Charging Party is an individual proprietorship, doing business as Arlington Village Development, a housing development which has been picketed by its em ployees represented by Respondent during which the al leged unlawful conduct occurred The jurisdictional alle gations of the complaint were also amended at the hear ing Respondent amended its answer to admit those re vised allegations Based on the amended pleadings, I find that the Charging Party is an employer whose operations annually meet the requisite standard set by the Board for the assertion of its jurisdiction The pleadings further establish, and I thus find, that Respondent is a labor organization as defined in Section 2(5) of the Act II RULING ON THE MOTION TO DISMISS I shall grant Respondents motion to dismiss for the following reasons A Background The Charging Party, Fred Stark, owns various parcels of residential property including about 220 garden apart ments in a four square block area of Brooklyn, known as Arlington Village Development (Arlington) Respondent has represented the building superintendent and the two porters employed by the Charging Party at Arlington On 30 June 1986 Respondents collective bargaining agreement with the Charging Party which covered those three employees, expired Respondent struck the next day the three employees began picketing then in furtherance of Respondent's demands for a renewal con tract All dates are for 1986 unless specified otherwise STATEMENT OF THE CASE JAMES F MORTON Administrative Law Judge The complaint as amended alleges that Service Employees Local 32B 32J (Respondent) violated Section 8(b)(1)(A) of the National Labor Relations Act (the Act) by reason of several coercive acts of two of its members while on picket duty At the conclusion of the General Counsel s 293 NLRB No 37 B The Pleadings On 10 July Arlington filed the original unfair labor practice charge in this case to allege that, since about 1 July Respondent engaged in unlawful conduct on a picket line by harassing and assaulting persons perform mg work interfering with persons egress and in gress 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On 23 September the original complaint issued alleging that, on about 1 and 14 July , Respondent by two picket ing employees threatened and attempted to inflict bodily harm on employees and on supervisors in the presence of employees and thereby violated Section 8(b)(1)(A) of the Act On 11 December counsel for Arlington sent a mail gram to the Board 's Regional Office asking for addition al time to permit amending the complaint Apparently as a result of that development , counsel for the General Counsel spoke to Respondent's counsel later in Decem ber to inform him of the General Counsels intention to move to amend the complaint to allege that Respondent had separately violated Section 8(b)(1)(A) by the con duct of employee pickets on or about 9 September At the opening of the hearing the General Counsel moved to amend the complaint to add the 9 September allegation I granted the motion The complaint was thus amended to add the allegation that , on or about 9 Sep tember, Respondent by two employee picketers threat ened employees with a gun to induce them not to cross the picket line Respondents answer as amended places in issue the al legations that the employee picketers were its agents and that unlawful conduct was engaged in by them C The General Counsels Evidence 1 As to authorization of the picket line The General Counsel called Lawrence McGowan as a witness to testify under Section 611(c) of the Federal Rules of Evidence and placed in evidence a preheanng affidavit he had signed McGowan is a business agent of Respondent and is responsible for that portion of Brook lyn in which Arlington is located His testimony , togeth er with his affidavit , established the following Respond ent authorized the picket line that was set up outside Ar lington on 1 July and it has paid strike benefits to the three Arlington employees who have been on the picket line He visited the picket line about three times a week on the average during the early part of the strike but only about once a month on average as of the hearing date He follows Respondents established practice in picketing apartment complexes in New York City, where it is on strike by instructing pickets to ask employees of the Department of Sanitation of the City of New York to honor its picket lines The Sanitation Department rou tinely honors those requests until the city s Department of Health secures a court order directing the Sanitation Department employees to cross the picket lines to collect accumulated garbage The Sanitation Department em ployees, after showing pickets a copy of the court order, then cross the line without incident McGowan was asked by the General Counsel about a specific incident at Arlington in which he and another of Respondent's business agents, Joseph LaRosa, took part McGowan s testimony disclosed the following During the first week of the strike he and LaRosa were in the vicinity of one of the entrances to Arlington when the employees on picket duty came to them to inform them that an individual employed by the Charging Party who was a retired employee of the U S Postal Service has crossed their picket line They told McGowan and LaRosa the location of the building in which that mdi vidual could be found McGowan and LaRosa then walked to that building There , McGowan introduced himself to that individual , Gene Calabrese the Charging Party s supervisor McGowan asked Calabrese how he as an ex union member collecting a pension could cross a picket line and asked also why Calabrese was now at tempting to deny Respondents members from collecting their pension McGowan tried to put him on a guilt trip' His appeal failed LaRosa told McGowan that, as he and Calabrese were both of Italian extraction, he could persuade him LaRosa took Calabrese aside but, in a short time, they were both shouting at each other McGowan and LaRosa got fed up with Calabrese s hemming and hawing' and they left Calabrese did not testify There is no allegation that McGowan or LaRosa committed any independent violations of the Act by any of their statements to Calabrese The General Counsel offered the foregoing evidence to support the complaint allegations that, at about this same time , two of the em ployees picketers engaged in coercive conduct in the ab sence of any of Respondent's business agents and that Respondent is responsible for those coercive acts McGowan s affidavit, in evidence, contained the fol lowing paragraph My instructions to pickets always (are) to walk a tight picket line not to (mass) in a group, to walk around the (perimeter) of the grounds, to follow the order of the police if they come to try to stop de liveries by asking people to respect the picket line Specifically I explain that the Dept of Sanitation is very cooperative with us and they will not cross the picket line if the pickets identify themselves however if they get a court order we have no prob lems with the Dept of Sanitation removing the gar bage at that stage McGowan also testified as to another incident His tes timony on that matter is set out below in the discussion of that matter 2 Testimony concerning the alleged violation on or about 1 July Edward Leizens, a part time employee of the Charg ing Party testified as follows On 1 July he accompanied foreman Gene Calabrese and several other employees to Arlington in order to remove accumulated trash About 5 minutes after their arrival , one of the employees on picket duty , Pedro Matos, approached them The other two picketers, Sam Roman and Jimmy Farrell were sev eral feet behind Matos A short distance behind them was a group of tenants of the Arlington apartments Matos had a large firecracker in his hand , known as a cherry bomb He told Calabrese Leizens, and those with them that they were not supposed to be there Matos threatened to light the cherry bomb and to throw it into the gas tank of one of the Charging Party s trucks Then Matos lit the firecracker and threw it instead underneath the trunk where it exploded Matos then patted Leizens about his body as if he were searching Leizens for a con cealed weapon When he attempted to repeat the maneu SERVICE EMPLOYEES LOCAL 32B 32J (ARLINGTON VILLAGE) ver, Leizens pushed him away angrily Matos then picked up a brick and walked over to the other truck, driven by another employee of the Charging Party, named Rudy Matos opened the door of Rudy s truck, grabbed him by the arm and tried to pull him out of the truck Matos in an agitated manner, threatened to hit Rudy with the brick However, the foreman, Gene Cala brese, managed to calm Matos down Rudy left About 20 minutes later, after having talked at length with the picketers, Leizens, Calabrese, and the other employees of the Charging Party drove away The accumulated trash was left there On 2 July the Charging Party's office manager sent the following mailgram to Respondent Please be advised that on July 1, 1986 at about 7 p in your strikers engaged in violence while picket ing This conduct is unlawful and appropriate action will be taken You are admonished to control the strikers As noted above, Respondent's business agent, testified under Section 611(c) He was asked about this mailgram His reply is as follows When he was given the mailgram at his office, he telephoned one of the picketers, Jimmy Farrell, and asked what the mailgram was all about Far rell assured him that there was no substance to it As noted above, McGowan had been asked by the General Counsel about a discussion he had had with Ca labrese early in the strike Nothing was adduced by the General Counsel to indicate that Calabrese had com plained to McGowan of the 1 July incident with Matos Also as noted above, Calabrese did not testify at the hearing 3 As to the 14 July incident Bryan Henderson and Keith Jackson, employees of the Charging Party, testified in support of the complaint alle gation that Respondent by Matos and Roman, coerced employees on 14 July Henderson's account is as follows He accompanied foremen Gene Calabrese Keith Jackson and another employee to Arlington on 14 July in order to repair a plumbing leak As they arrived at the picket line, Matos who was holding a baseball bat in his hand, told them not to cross the picket line Sometime later (apparently after they had crossed the line), two union guys one Irish, one was Italian came to their worksite and told Calabrese that he should know better because he had worked for the post office and had been in a union Hen derson testified that there was no violence, just a little argument Keith Jackson s account follows About a month after the strike started, he and Henderson were in a van when they were stopped by Matos Roman, and Farrell-the three employee picketers The picketers told them that if they crossed the picket line, they could get their arms broken, their legs broken, and that something could happen to their families On cross examination, Hender son stated that Matos was carrying nothing but a picket sign On his redirect examination, Jackson related that Matos was carrying something in addition to the picket 327 sign on the occasion when the picketers stopped Hender son and himself Jackson identified the object Matos was carrying then as a 4 foot long tree limb As noted above McGowan had been questioned about an occasion in which he and another business agent, LaRosa, spoke with Calabrese It appears that McGowan s testimomy relates to the same incident that Henderson places as having taken place on 14 July 5 As to the 9 September incident The General Counsel proferred three witnesses in sup port of the amended complaint allegation that Respond ent, by Matos and Roman, coerced employees on 9 Sep tember Brian Henderson's account is as follows He accompa need Gene Calabrese, Keith Jackson, Carl Ashford, and Ann Dellorco to Arlington After they arrived and while Jackson and Calabrese were standing alongside, Matos walked up to the truck in which Henderson was sitting and attempted to drag him out but did not succeed Matos mumbled something which was unintelligible and walked away Sometime later, a blue Buick driven by an unidentified person passed by Matos was a passenger in that car The car stopped to let Matos out He pulled a gun out of a brown bag but did not point it at Hender son Matos told Henderson that he was going to get him and then left Matos did not come back Ann Dellorco testified as follows She was with Hen derson when Matos dragged him out of the truck over towards the other truck Suddenly, Matos and Roman disappeared Dellorco yelled to Jackson to get Calabrese Jackson left and did not return for about 5 minutes In that interval Matos came by two or three times in a large beige colored car driven by one of the Arlington tenants Matos pointed a gun first at Henderson and then at herself Matos then put the gun into his pocket and walked over to the foreman Gene Calabrese, and tried to make small talk with him Henderson began yelling at Matos Henderson at that point had a pipe in his hands which was taken away from him by the Charging Party's employees Keith Jackson was the last of the General Counsel s witnesses as to the allegation that Matos threatened em ployees with a gun Jackson's account follows Matos pulled Henderson from the truck and began shaking him Matos told him that Henderson was not supposed to be there When Ann Dellorco protested, Matos told her that he was just saying Hello to Henderson Matos left and returned later as a passenger in a blue Oldsmobile Matos pointed something at Henderson that looked like a gun Matos then put it underneath the seat of the car and told Henderson that he will get him Matos left and re turned some time later as a passenger in a beige colored car driven by an unidentified man Matos kept looking at Henderson while pointing his finger at him At that point, Jackson and Henderson left Jackson also testified that, since that incident, he has been at Arlington about 20 times and has encountered no difficulty with the pick ets Henderson gave the following testimony as to devel opments since that event He heard subsequently that 328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Matos had filed a complaint with the police against him and he at the suggestion of the Charging Party s manag er, then filed a criminal complaint against Matos alleging that Matos threatened him with a gun That complaint is now pending in the Supreme Court of New York, Kings County Respondents counsel has separately petitioned the Board for a grant of immunity to Matos and Roman whom it would call as witnesses should it be held that the General Cousel has made out a prima facie case that Respondent has violated the Act Respondents counsel represents that Matos and Roman intend to avail themselves of their constitutional privi lege against self incrimination The question of the Board s granting immunity is discussed further below 6 Analysis Respondent submitted a brief that sets forth three grounds in support of its motion to dismiss First, Re spondent contends that the evidence adduced by the General Counsel is unworthy of belief and is inadequate to permit a finding that the General Counsel has made out a prima facie case that the two picketers made threats or engaged in any coercive conduct In that regard, Respondent asserts that the General Counsel s evidence contains contradictions and improbable ac counts that warrant summary dismissal of the complaint There are some obvious problems with the accounts of fered by the General Counsel s witnesses, e g , the differ ing versions as whether a picketer held only a picket sign or also a baseball bat or a 4 foot long tree limb the various accounts whether the picketer put a gun in a brown bag or underneath a car seat and the car or cars he rode in I note too that the Charging Party s supervi sor Gene Calabrese, did not testify although all of the witnesses called by the General Counsel testified he was present when each alleged violation occurred Nonethe less I cannot find that as a matter of law, the evidence proferred by the General Counsel is so unworthy of belief as to require that it be rejected in toto I therefore find no merit in Respondents first argument for dismis sal The second ground relied on by Respondent for dis missal of the complaint is that the three alleged viola tions must be viewed as isolated incidents in the con text of picketing which has been peaceful since its start in mid 1986 This contention confuses two separate con siderations Normally, the matter as to whether an inci dent is isolated is taken into account after a finding has been made that the incident is violative of the Act and is related to whether it will effectuate the policies of the Act to issue a remedial order in view of the isolated nature of the violation That consideration is premature here Respondent's real contention on the matter of iso lated instances relates more properly to the third ground it cites for dismissal of the complaint-that is, that the individual picketers were not its agents As dis cussed below, the Board in deciding whether a picketer is acting as a union's agent considers among other fac tors whether the picketer's acts are isolated In the brief submitted in opposition to the motion to dismiss, the General Counsel asserts that Respondent is liable for the conduct of the picketers, Matos and Roman, because they committed the alleged unlawful acts while on a picket line authorized by Respondent and, in any event, because there was encouragement, condonation, affirmation and ratification of such acts on the part of Respondent As to her argument that Re spondent having authorized Matos and Roman to picket is thereby liable for any misconduct on their part while picketing, the General Counsel relies on language con tained in a footnote to a recent Board decision, Avis Rent A Car System 280 NLRB 580 (1986) Respondent s brief argues that long established precedent and the legis lative history of the Act make clear that the mere fact that pickets were acting in [its] interest is not sufficient to establish culpable conduct by [it] To weigh these contentions fairly, it is necessary to review Board prece dent as to a union s liability under Section 8(b)(1)(A) of the Act for picket line misconduct In the lead case, the Board considered, as a case of first impression the relationship of labor organizations with its officers or other persons allegedly representing them in deciding whether they were acting, in a particu lar instance , as agents of the labor organizations See Longshoremen s IL WU Sunset Line Co 79 NLRB 1487 1508 (1948) The Board noted there that Section 2(13) of the Act superseded prior case law which had held that unions could effectively avoid responsibility for the acts of its business agents or other officials simply by dis claiming them In construing Section 2(13) the Board having found that a union business agent s committed co ercive acts and encouraged picketers to follow his exam ple concluded that the union was liable The Board found it unnecessary to pass on a separate contention that the union there should be held liable in any event for the acts of the individual picketers, even if its busi ness agent had not encouraged them and irrespective of the union s knowledge As to that contention the Board observed that it contained manifold implications that did not warrant consideration then Rather the Board concerned itself with construing the legislative history of Section 2(13) of the Act, in connection with the agency interpretation given by the Supreme Court in the Car penters v US 330 US 395 (1947) The Board quoted Senator Taft s comments as to the purpose of Section 2(13) He had stated that unions could no longer disclaim responsibility simply by passing a resolution of disclaimer but would be guilty of unfair labor practices when their business agents or stewards, acting in their capacity of union officers engage in misconduct and even though no formal action has been taken by the union to authorize or approve such conduct In Furniture Workers (Colonial Hardwood) 84 NLRB 563 (1949), the Board held the unions there liable under Section 8(b)(1)(A) of the Act for picket line misconduct as an international representative of the union had ex pressly told the pickets to get the nonstriking employ ees The Board s opinion contained no reference to any issue pertaining to the unions being liable for the mis conduct of its picketers qua picketers In Teamsters Local 783 (Coca Cola Bottling) 160 NLRB 1776 (1966) the Board agreed with the trial ex aminer that the union there violated Section 8(b)(1)(A) SERVICE EMPLOYEES LOCAL 32B 32J (ARLINGTON VILLAGE) the Board noted, however that its agreement was based on the fact that the union having authorized the strike knew of the acts of misconduct and violence but took no steps reasonably calculated effectively to stop such acts There had been an observation by the trial examiner that the union was responsible for repeated misconduct on the picket line even if its leaders did not participate in those actions or observe them In Teamsters Local 327 (Coca Cola Bottling), 184 NLRB 84 (1970) the Board held that the union had, in violation of Section 8(b)(1)(A) engaged in coercive con duct in that its business representatives did nothing to discourage the coercive acts of its picketers although aware of those acts and as the business representatives in fact committed unlawful acts themselves The trial exam iner s decision contained a statement, at page 94, that threats and the employment of force on a picket line even though forbidden are reasonably to be expected In relationship to the holding in the case, that observation appears to be gratuitous and I am not sure that it com ports with the presumption of innocence that obtains in our system of jurisprudence Essentially to the same effect as the Board s holding in Teamsters Local 327, supra is its holding in Boilermakers Local 696 (Kargard Co), 196 NLRB 645 (1972) In Service Employees Local 254 (Massachusetts Insti tute) 218 NLRB 1399 (1975) the respondent was held liable for several acts of picket line misconduct including an unlawful threat made by its president The Board also found it liable for one coercive act committed away from the picket line by a striking employee The US Court of Appeals for the First Circuit (535 F 2d 1335) enforced the Board order except for the last incident The court noted that as to that matter, there was noth mg in the record to indicate union acquiescence or ap probation and thus the court would not impute that inci dent to the union In Meatcutters Local 248 (Milwaukee Meat Packers), 222 NLRB 1023 (1976), the Board held the union ac countable under Section 8(b)(1)(A) for the various acts of violence and other misconduct [as the] record shows or fully supports a direct inference that all such misconduct was done by [the union s] officers or other agents, or by the striking employees it represents, that (the union s) officers were made fully aware of the oc currence of extensive and gnevious misconduct and that they made no conscientious serious attempts to curtail such conduct " The Board dismissed a complaint alleging violations of Section 8(b)(1)(A) In Teamsters Local 860 (Delta Lines) 229 NLRB 993 (1977), the Board held at 994 In determining whether a union is responsible for the misconduct of persons engaged in picketing the Board applies the ordinary law of agency The Board will in applying these agency principles, impute the conduct of the unions pickets to the union only where it is shown that the union either actually or impliedly, authorized the picket s con duct beforehand or ratified the conduct after it oc curred For example, when an authorized union rep resentative such as a union official or picket captain 329 participates in picketing misconduct or is present at the time the misconduct occurs, the Board will not hesitate to find that the union is responsible Simi larly when the union has knowledge of its pickets misconduct but fails to take steps reasonably cal culated to control that misconduct the Board readily imputes responsibility for the misconduct to the union When however, pickets engage in mis conduct that has been specifically forbidden by the union and this misconduct is not brought to the union s attention or is of an isolated or nonrecur ring nature (so that the union has no opportunity to prevent it from recurring), the union will not be held responsible for that misconduct In Plumbers Local 195 (McCormack Young), 233 NLRB 1087 1088 (1977), the Board noted It is, of course, well established that where a union authorizes a picket line, it is required to retain control over the picketing If a union is unwilling or unable to take the necessary steps to control its pickets, it must bear the responsibility for their mis conduct Similarly, if pickets engage in misconduct in the presence of a union agent, and that agent fails to disavow that conduct and take corrective meas ures, the union may be held responsible The burden of course, is on the General Counsel to come forward with sufficient evidence to establish either that the union authorized the picketing or that the union had knowledge of the misconduct and failed to disavow it and take corrective action Absent such proof, the Board cannot hold a union liable for picketers misconduct however reprehen sible In the instant case, a careful examination of the record leads us to conclude that the General Counsel has not met his burden There are a number of other cases that are in accord with those cited above i A few of those cases and occa sionally others2 also contain broad language which sug Bests that without more a labor organization violates Section 8(b)(1)(A) of the Act whenever a picket engages in misconduct, a premise that a union is liable even though its business agents have not been involved or even knew of it In all the cited cases except those where the complaint was dismissed, there were findings that the union officials sponsored the misconduct or, knowing of it did nothing to stop it As noted earlier the General Counsel relies on Ian guage extracted from the Board s decision in Avis Rent A Car System 280 NLRB 580 (1986) That was a repre sentation case in which the Board dismissed objections filed by the employer to conduct affecting the results of ' See e g Telephone Answering Service Union Local 780 (Federated Communications) 276 NLRB 507 (1985) Lumber Production & Industrial Workers Local 3171 (Louisiana Pacific) 274 NLRB 809 (1985) Hospital Employees (Frances Schervier Home 245 NLRB 800 804 (1979) Iron Workers Local 455 243 NLRB 340 343 (1979) Teamsters Local 695 (Yellow Cab) 221 NLRB 647 (1975) 2 See e g Lithographics & Photoengravers Local 223 (Holiday Press) 193 NLRB 11 (1971) 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD an election Thus, the Board held that unit employees could not have been affected by picket line misconduct as they were unaware of it Preliminary to making that finding and essentially unneeded for it, the Board ob served that the petitioning union there was responsible for picket line misconduct alleged as objectionable con duct In making that observation , the Board wrote (at fn 3) [W]e disagree with the hearing officer s conclu sions that the Petitioner was not responsible for the misconduct of the unidentified picket, for the damage done to the cars of two employees who worked as shuttlers during the strike , and for the scattering of roofing nails on several days during the strike When a union authorizes a picket line, it is required to retain control over the picketing If a union is unwilling or unable to take the necessary steps to control its pickets, it must bear the respon sibility for their misconduct ' The hearing offi cer erred in finding that the Petitioner was not re sponsible for the misconduct of the unidentified picket because the Employer failed to identify the picket or show that he acted as the Petitioner s agent or with the Petitioners approval A union is responsible for the acts of its authorized pickets even if not specifically authorized or indeed specifi cally forbidden We find that the Union had an affirmative obligation to control the actions of the unidentified picket, and cannot escape responsibility by simply contending that neither Business Agent Greg McAnally nor picket captain John Martin was present when the misconduct occurred In a more recent representation case decision the Board has held that agency as an issue is irrelevant to determining whether an objection has merit See Sequat chie Valley Coal Corp 281 NLRB 726 (1986) The General Counsels initial contention is that Re spondent violated Section 8(b)(1)(A) of the Act by the coercive action of two members while on its picket line (Matos and Roman) on 1 and 14 July and on 9 Septem ber, even assuming Respondent has no knowledge of those actions This contention is based on the General Counsels view that Section 2(13) of the Act requires such a construction Section 2(13) reads, In determining whether any person is acting as an agent of another person so as to make such other person responsible for his acts, the question of whether the specific acts per formed were actually authorized or subsequently ratified shall not be controlling A literal construction of the quoted language would limit its application to persons, a term not used in the Section 2(5) definition of a labor or ganization The quoted language also appears to assume the existence of a principal agent relationship when the relationship of a union to its members may not fit into that arrangement It, however , does not seem fruitful, for my purpose, to explore those considerations in depth or to discuss the intricacies of agency law, its use of the doctrine of respondent superior or its interrelationship with trust law The legislative history of Section 2(13), expounded by Senator Taft as set forth in the seminal case, Sunset Line, supra, shows that, for purposes of Sec tion 8(b) of the Act agency law principles were adopted and were to be applied to a labor organization respect ing the acts of its business agents and other officials analogously to the application of the principles which bind an employer by the acts of its officers or other su pervisors as defined in the Act Delta Lines, supra, holds that a union will not be liable for the acts of its members unless it promoted or adopted them it may be fair to say that this holding is an analogue of the precept that an employer, for purposes of labor law , is not liable for the acts of its nonsupervisory personnel unless it promoted or adopted those acts In any event , the express holding in Delta Lines is binding on me whereas the dictum in other cases is not I find no merit to the General Coun sel s first contention and turn now to her second argu ment The General Counsel asserts that Respondent is liable for the coercive acts of Matos and Roman inasmuch as Respondent gave them apparent authority to use unlaw ful tactics in its interest Respondent maintains that there is no probative evidence in this case on which it can be found that McGowan, or any of Respondents officials, participated in ratified , condoned, approved affirmed, or encouraged any of the acts the General Counsel ac cuses Matos and Roman of having committed The General Counsel notes that McGowan did get angry when foreman Calabrese rejected his appeal to him as a former union member with the US Postal Service to honor Respondents picket line and that LaRosa and Calabrese later shouted at each other From this the General Counsel proceeds to argue that Re spondent thereby set a hostile environment which effec tively encouraged Matos to carry a baseball bat or a 4 foot long tree limb and later a gun and to utter threats to the Charging Party s employees The General Counsel argues too that because McGowan instructed the pickets to appeal to the New York City Department of Sanita tion employees not to cross the picket line McGowan and Respondent were responsible for any coercive con duct Matos engaged in to prevent Charging Party s em ployees from removing the accumulated debris These arguments strike me as total non sequiturs or as restate ments of the General Counsels initial contention that Respondent is strictly liable for any picket line miscon duct once it has authorized the picket line It seems clear to me that the Charging Party could very easily have alerted McGowan to any complaints it might have had as to the actions of Matos or Roman Foreman Calabrese could easily have mentioned them to McGowan when McGowan spoke to him, apparently on 14 July according to the General Counsels other wit nesses-but there is no evidence that he did The Charg ing Party sent a mailgram on 2 July which was so gener al in tone as to be valueless Yet McGowan did not ignore it but checked with one of the picketers and was informed that there was no substance to the broad charge contained in the mailgram In short, the evidence before me, in the best possible light from the General Counsels standpoint shows only that two of the picketers could have engaged in three SERVICE EMPLOYEES LOCAL 32B 32J (ARLINGTON VILLAGE) isolated, sporadic acts of misconduct over a 7 month period of peaceful picketing and that there is no proba tive evidence to show that Respondent could have known of those instances I note parenthetically that the General Counsel at the hearing indicated that some points were being testified to by a witness apparently for the very first time Under the cited authority above, I find that the evidence does not support a prima facie showing that Respondent has restrained or coerced em ployees as to the exercise of their Section 7 rights 7 The request for immunity The following is submitted in the event the Board re mands this case for further hearing Respondent requests that the Board issue an order under Section 102 31(c) of the Board s Rules and Regula tions as amended which ultimately is aimed at granting immunity to Matos and Roman Matos has been charged with a criminal act and that matter is now pending in a state court, as noted above He is of course entitled to avail himself of the right against self incrimination While no charge is pending as to Roman, I am informed that the statute of limitations has not run The procedure followed by Respondent is that en dorsed by the Board See Hospital Employees (Southport Manor), 227 NLRB 1732 at fn 1 (1977) Respecting the merits of Respondents request, the tes timony of Matos and Roman obviously would be useful to Respondent to offset any puma facie showing and it is undisputed that a criminal proceeding is pending as to Matos and possibly as to Roman I would find that to require their testimony would be in the public interest and that they would likely avail themselves of the privilege against self incrimination 331 Therefore, and in accordance with the provision of Sec tion 102 31(c), I would recommend that the Board seek the approval of the Attorney General for the issuance of the order as provided for therein Respondent and the General Counsel differ as to the scope of the immunity That question seems to pertain to the field of criminal law and to be outside the purview of my recommenda tion The documents relating to the request for immunity are made part of the record 3 CONCLUSIONS OF LAW I The Charging Party is an employer within the meaning of Section 2(6) and (7) of the Act 2 Respondent is a labor organization as defined in Section 2(5) of the Act 3 The General Counsel has not shown, prima facie, that Respondent has violated Section 8(b)(1)(A) of the Act, as alleged On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed4 ORDER The hearing is closed and the complaint is dismissed in its entirety 3 The following are received into evidence as ALJ Exh 1-Respond ent s statement of position and memorandum of law on issue of immunity the General Counsels position on the issue of immunity and Respond ent s reply 4 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