Brotherhood of Painters, Decorators and Paperhangers of America

National Labor Relations Board - Board Decisions

Dec 28, 1951

97 N.L.R.B. 654 (N.L.R.B. 1951)

654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PAINTERS' DISTRICT COUNCIL No. 6, BROTHERHOOD OF PAINTERS, DECO-
RATORS AND PAPERHANGERS OF -AMERICA, AFL, AND FURNITURE
FINISHERS, LOCAL UNION 725, BROTHERHOOD OF PAINTERS, DECO-
RATORS AND PAPERHANGERS OF AMERICA, AFL and THE HIGBEE
COMPANY . Case No. 8-CB-51. December 28, 1951
Decision and Order
On August 7, 1951, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents and
the General Counsel filed exceptions to the Intermediate Report and
supporting briefs. -
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications :
1. We agree with the Trial Examiner that both Respondents, the
Local and the District Council, violated Section 8 (b) (1) (A) of the
Act. As found by the Trial Examiner, Jones, the business representa-
tive of the Local, was admittedly given full authority by the Local to
call and conduct the strike activity of July 27, and the Local was
therefore properly chargeable with his acts and statements which
were found by the Trial Examiner to be violative of Section 8 (b) (1)
(A). For the reasons set -forth in the Intermediate Report, the Local
was also responsible (1) for the pushing and jostling of Vitko by the
unidentified picket acting in concert with Jones and (2) for the assault
upon Vitko shortly thereafter by the same picket, acting alone, but in
conformity with a pattern of conduct established by Jones.
In finding that the District Council was also responsible for the
foregoing misconduct of Jones and the unidentified picket, we rely not
only upon the circumstances detailed by the Trial Examiner as the
basis for the District Council's liability, but also upon the following
additional considerations :
Section 269 of the constitution of the international union, with which
the District Council and the Local are affiliated, provides that where,
3 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and Members
Reynolds and Styles].
97 NLRB No. 105.
PAINTERS' DISTRICT COUNCIL NO. 6 655
as in the instant case, a district council exists, strikes shall be "under
the supervision" of such council. Presumably, it was because of this
provision that Jones, as found by the Trial Examiner, obtained prior
approval of the District Council before undertaking the strike activity
of July 27. Moreover, in approving the strike activity undertaken by
Jones, the District Council, we find, in effect delegated authority to
hiin to supervise strike activities on the scene on behalf of the District
Council. Accordingly, even if, as the Respondents contend, Jones was
normally not authorized to act as the agent or business representative
of the District Council in the absence of a specific designation for
that purpose, we find that there was in this case a specific designation
of Jones by the District Council to, act as its representative in super-
vising the strike. So far as appears from the record, it was not con-
templated that any other representative of the District Council would
be present, nor was any such other representative in fact present, at
the scene of the strike activity, so that the responsibility for supervis-
ing the strike activity on behalf of the District Council necessarily
devolved upon Jones. That it was in fact the intention of the District
Council to delegate this responsibility to Jones, is further indicated by
the fact that, as found by the Trial Examiner, Jones testified that he
had on prior occasions been designated by the District Council to act
as its representative for particular purposes.
2. The General Counsel contended, as alleged in the complaint, that
on July 27 the Respondents called and maintained a strike for the
purpose of inducing the employees to withdraw the decertification
petition, and that the strike was therefore per se violative of the Act.
The Trial Examiner found that such a strike was called and that while
the purpose of the strike was to secure withdrawal of the decertification
petition, the mere act of calling and maintaining the strike did not
violate the Act. The evidence in the record indicates that there may
in fact have been no "strike" on July 27 in the usual sense of a cessation
of work by employees of the Company, but rather union picketing of
the Company's premises by persons other than its employees.
In any event, we find, for the reasons set forth in the Intermediate
Report, that by such strike or picketing alone the Respondents did not
violate Section 8 (b) (1) (A).
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board orders that the Respondents, Painters' District Council No. 6,
Brotherhood of Painters, Decorators and Paperhangers of America,
AFL, and Furniture Finishers, Local Union 725, Brotherhood of
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Painters, Decorators and Paperhangers of America, AFL, their of-
ficers, representatives, agents, successors, and assigns, shall :
1. Cease and desist from restraining or coercing employees of The
Higbee Company, Cleveland, Ohio, by threats of reprisal, by acts of
violence, or in any other manner, in the exercise of their right 'to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and, to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from any
or all such activities, as guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the office of each of the Respond-
ents in Cleveland, Ohio, where notices to members are customarily
posted, copies of the notice attached as an appendix to the Intermedi-
ate Report.2 Copies of said notice, to be furnished by the Regional
Director for the Eighth Region, after being duly signed by official
representatives of Painters' District Council No. 6, Brotherhood of
Painters, Decorators and Paperhangers of America, AFL, and of Fur-
niture Finishers, Local Union 725, Brotherhood of Painters, Decorators
and Paperhangers of America, AFL, shall be posted by said Respond-
ents immediately upon receipt thereof and maintained by them for a
period of sixty (60) consecutive days thereafter. Reasonable steps
shall be taken by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Eighth Region signed
copies of said notice for posting, the Company willing, on the bulletin
board of the warehouse of The Higbee Company where notices to
employees are customarily posted. The notice shall be posted on the
Company's bulletin board and maintained thereon for sixty (60) days
thereafter. Copies of said notice to be furnished by the Regional
Director for the Eighth Region, shall, after being signed as provided
in paragraph 2 (a) above, be forthwith returned to the Regional
Director for said posting.
(c) Notify the Regional Director for the Eighth Region in writing,
within ten (10) *days from the date of this Order, what steps the
Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges that Respondents restrained and coerced employees by call-
ing the strike of July 27, 1950.
2Thi$ notice is hereby -amended by substituting the words "A Decision and Order" for
"The Recommendations of a Trial Examiner " in the caption thereof. If this Order is
enforced by a decree of a United States Court of Appeals , the notice shall be further amended
by inserting the words "A Decree of a United States Court of Appeals Enfocing" before the
words "A Decision and Order."
PAINTERS' DISTRICT COUNCIL NO. 6 657
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed August 14, 1950, by The Higbee Company, hereinafter
called the Company, the General Counsel of the National Labor Relations Board,
by the Regional Director for the Eighth Region, issued a complaint, dated
April 25, 1951, against Painters' District Council No. 6, Brotherhood of Painters,
Decorators and Paperhangers of America, AFL, hereinafter called the District
Council, and Furniture Finishers, Local Union 725, Brotherhood of Painters,
Decorators and Paperhangers of America, AFL, hereinafter called the Local
or the Union. The complaint alleged that the Council and the Local had engaged
and were engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (b) (1) (A) and Section 2 (6) and (7) of the Labor
Management Relations Act, 1947, hereinafter called the Act. Copies of the com-
plaint, the charge, and notice of hearing were duly served on both Respondents.
With respect to the unfair labor practices, the complaint alleged, in substance,
that Respondents, and each of them, on or about July 26-27, 1950, restrained
and coerced employees of the Company in the exercise of 'their rights guar-
anteed in Section 7 of the Act, by the following conduct: (1) Orally threaten-
ing employees with economic reprisals by discriminatory treatment and loss
of jobs and prevention of future employment opportunities in order to force
said employees to assist Respondents and to prevent or attempt to prevent said
employees from entering the company premises to work, and/or to restrain
or coerce them in their right to refrain from assisting said labor organizations ;
(2) pushing, shoving, and jostling employees and obstructing the entrances
to the Company's premises; (3) driving an automobile into an employee's
auto in order to cause or attempt to cause employees to refrain from entering
company premises;-(4) orally threatening employees with prevention of future
employment opportunities because they had signed a petition supporting a de-
certification petition filed with the National Labor Relations Board,' and for the
purpose of restraining employees in their right to refrain from assisting said
labor organizations; (5) orally threatening employees with economic reprisals
and physical violence unless they repudiate their support of the decertification
petition and assisted Respondents, and offering to discontinue said reprisals
if the employees signed said repudiations; (6) through their agent, name un-
known, assaulting and beating an employee because said employee had instigated,
supported, and filed a decertification petition with the Board and had refrained
from assisting said labor organizations, thereby causing or attempting to cause
employees of the Company to assist respondent labor organizations and to
repudiate their support of the decertification petition ; (7) through their agents,
more particularly William Hilow, and another individual, name unknown, push-
ing, shoving, and threatening employees of the Company with verbal abuse and
physical violence in order to restrain or coerce them to assist Respondent,
and to prevent or attempt to prevent said employees from entering the com-
pany premises to work; (8) calling, and thereafter maintaining, a strike for the
purpose of restraining company employees in their right to refrain from as-
sisting respondent labor organizations, and to coerce said employees to assist
said labor organizations, and for the, purpose of causing the employees to re-
pudiate their support of a decertification petition filed with the Board.
Respondent District Council, by its answer, denied the allegations of the
complaint alleging it had committed any unfair labor practices and specifically
1 Hereinafter referred to as the Board.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied it called or maintained a strike against the Company on or about July
26, 1950 . Respondent Local likewise filed its answer denying it had committed
any unfair labor practices and, though admitting that on or about July 26,
it had called , and for a short time thereafter maintained , a strike, specifically
denied it was for the purposes alleged in the complaint . Joined to the Local's
answer was a cross-petition seeking an order of the Board directing the Com-
pany to bargain collectively with the Union.
Pursuant to notice, a hearing was held at Cleveland, Ohio, May 21-24, 1951,
before the undersigned Trial Examiner. The General Counsel, Respondents,
and the charging party were represented by counsel. Full opportunity to be
heard , to examine and cross-examine all witnesses , and to introduce evidence
pertaining to the issues was accorded all parties. On motion of the General
Counsel, the Local's cross-petition afore-mentioned was stricken 2 Motions by
Respondents to dismiss, and to strike certain allegations of the complaint, are
disposed of in accordance with the findings and conclusions hereinafter made.
The General Counsel's motion to conform the pleadings to the proof as to names,
dates, and places was granted without objection. Since the close of the hearing,
briefs have been received from the General Counsel and Respondents and have
been duly considered.
Upon the entire record in the case and from my observation of the witnesses
at the hearing, I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
During all times material herein , The Higbee Company, a corporation organized
under the laws of Delaware, has maintained its principal office and place of
business in Cleveland, Ohio, where it was and is engaged in the general merchan-
dising business. In the course and conduct of its business operations, the Com-
pany annually causes, and has continually caused, merchandise having a value
of $10,000,000 to be purchased, delivered, and transported in interstate com-
merce from and through States of the United States other than the State of Ohio
to its Cleveland operations. Likewise, it annually causes, and has continually
caused, approximately 2 percent of its sales of merchandise having a total
annual value in excess of $40,000,000 to be sold, delivered, and transported in
interstate commerce to and through States of the United States other than the
State of Ohio from its Cleveland, Ohio, operations. By reason of the foregoing
facts, I find the Company is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Painters' District Council No. 6, Brotherhood of Painters, Decorators and
Paperhangers of America, AFL, and Furniture Finishers, Local Union 725,
Brotherhood of Painters, Decorators and Paperhangers of America, AFL, are
labor organizations within the meaning of the Act. The local admits to member-
ship employees of the Company.
2 On September 25, 1950, Respondents filed a charge against the Company alleging a
refusal to bargain by the Company in violation of Section 8 (a) (5) of the Act. This charge
was dismissed by the Regional Director on February 13, 1951, and the ruling was sustained
by the General Counsel on appeal In any event , the issuance of a complaint lies in the
discretion of the General Counsel. International Longshoremen 's Union and Roosevelt
Stafford, 94 NLRB 1091; National Union of Marine Cooks and Stewards and Geo. C.
Quinley, 92 NLRB 877; Times Square Stores Corp :, 79 NLRB 361.
PAINTERS' DISTRICT COUNCIL NO. 6 659
M. THE UNFAIR LABOR PRACTICES
A. The sequence of events
As previously indicated, the Company operates a large department store in
downtown Cleveland, Ohio. In connection with the operation of that store, it
employes a staff of 8-10 wood finishers who perform most of their work in the
company warehouse located in a separate building some distance from the store.
For a number of years, a group of approximately 20 Cleveland retail furniture
dealers have maintained an organization for their common welfare known as
"The Cleveland Retail Furniture Association," hereinafter referred to as the
Association. Part of its activity consisted of the negotiation for and the execu-
tion of collective bargaining contracts for association members with the District
Council and the Local, the latter acting as representative of employees engaged
as wood finishers by the members of the Association. Though not members of
the Association, a group of other Cleveland employers, known as "Associated
Employers," and including the Company, have for a number of years joined with
the Association in its collective bargaining negotiations with the Local as rep-
resentative of the wood finishers employed by them, and agreed to be bound by
the written agreement between the Association and the Local. The last of such
bargaining contracts expired on March 17, 1950.
Negotiations for a new contract, in which the Company participated, began
several weeks prior to March 17, 1950, and continued into April. An impasse
having developed, a strike was ordered on or about April 17, and imposed for
approximately 12 weeks thereafter against all the stores covered by the expired
contract. During the period of the strike, negotiations between the parties
continued. The Union at various times during the negotiations was repre-
sented, in part, by Warren Jones, financial secretary and business representa-
tive of the Local, and Courtney Ward, general secretary of the District Council'
The last bargaining session on Friday, July 7, commenced at approximately
1: 30 p. in. At that meeting the Company was represented by C. E. Eerkes, its
vice president and superintendent, and Frank C. Heath, its attorney By about
5: 30 p in. no agreement had yet been reached on wages, the Association's last
offer of a 10 cents an hour increase having been declined by the Union. At
that time Eerkes advised the assembly that he and his attorney were compelled
to leave the meeting, that the Company would not consent to more than a 10
cents hourly increase and that his company would no longer be bound by any
association contract but would enter into an individual contract with the Union
as the representative of the Company's wood finishers. After Eerkes and
Heath left the meeting, the Association and the Union reached agreement on an
111/2 cents hourly increase and further agreed that the men employed by members
of the Association would return to work on the following Monday, July 10. Final
details of the contract were to be worked out between representatives and
counsel for the Union and the Association. Employees of association members
returned to work on July 10, but no formal contract between the Union and the
Association was signed until September 15, 1950.
Eerkes received information on Saturday, July 8, that the Association and
the Union had reached agreement. During that day, Emil Orz, who had joined
the Local in 1944, was asked by Klouer, the warehouse superintendent, to call
the other finishers and direct them to report for work the following Monday.
Later during the same day, however, Klouer called Orz and countermanded
8 The District Council is a council composed of 14 local unions in the northeastern
Ohio area and includes various locals of the Brotherhood of Painters, Decorators and
Paperhangers of America, AFL. It was a signatory to the expired contract with the
Association
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the direction to report for work on Monday. Orz then called Jones and apprised
him of the situation. The latter asked him to come to the union office and to
bring the other men with him. All the men met Jones at the union office on
the following Monday, July 10, where they were informed by Jones that he
had other jobs for all of them and asked them to "leave Higbee and go somewhere
else to work." The men objected to this suggestion because of the seniority,
in some cases as much as 18 and 16 years, then earned by them in the employ
of the Company. Orz went to Ward and repeated his story. Ward called
Eerkes and asked why the men were not back at work. Eerkes informed him
that the company executives had not had time to discuss the agreement that
apparently had been concluded with the Association, that they would meet
shortly and review the situation, and that if Ward desired, he could call back
later in the day. Ward complied and was then informed by Eerkes that (1)
the Company would reopen its finishing shop on Tuesday, July 11; (2) it would
agree to the 111/2 cents increase ; (3) the Company would require the services of
fewer finishers because of the effect of the strike on its business; and (4) the
conversation between the two men was not to be considered a complete contract,
that further negotiations would have to take place between the parties following
which an individual store contract would be signed with the Union. Ward
expressed satisfaction over the proposal made by Eerkes, but informed him
that he was leaving that day for a vacation of approximately 4 weeks, and
that further negotiations would be resumed upon his return. Ward left the
city the same day. The men returned to work on Tuesday, July 11.
Soon after the resumption of work, Charles Vitko, a member of the Local and
in the Company's employ for 5 years, talked to the other finishers about their
3 months' idleness without strike pay or other benefits. As Vitko characterized
it, "they were pretty well burned up about it . . . and thought they got a raw
deal." Vitko went to Eerkes, reported the sentiment of the men, and asked
whether the Company could do anything for them "to get out of the Union."
Similar requests of Eerkes were separately made by Orz and John Galayda, an-
other employee. Eerkes told all three men that it was impossible for him to
advise what steps they could take, but that they should make inquiry of the Board
concerning "the legal procedures which had to be followed in instances of this
kind." Vitko, who had assumed leadership in the matter, went to the Board's
Regional Office in Cleveland on July 24 and there obtained a decertification
petition seeking to withdraw recognition of the Local as the bargaining represent-
ative in the unit involved. The petition was signed by Vitko on July 24 and,
according to Board records in the proceeding (8-RD-44), was filed with the Board
on the same day. Vitko also filed with the Board on July 25, a supporting state-
ment signed by seven of the eight men then employed in the department (all but
the union steward) that they "no longer wished to be represented by the Local"
and asking the Board "to conduct an election and decertify this Union." Jones
admitted that he heard about the decertification petition on July 26, and went
to the company warehouse on that day and asked a number of the men whether
they had signed the petition When he received an affirmative reply from
Galayda, he said to him : "You dirty rat, you ain't going to get a job in the whole
city of Cleveland." 4 Jones also told Galayda, Orz, and Walter Nelson, the union
steward, that a picket line would be placed about the warehouse on the following
morning. When he told Orz that the latter couldn't come to work the next day,
Orz replied be "would like to see that," to which Jones retorted "All right, we
are going to show you."
4 Jones' denial was limited to a failure to remember making the statement . Galayda's
version of the incident is credited.
PAINTERS' DISTRICT COUNCIL NO. 6 661
Having been informed by Orz that the picket line would be established on July
27, Vitko reached the warehouse earlier than usual on that day, at about 6: 30
a.-m. He obtained his orders and assignments and then went out to get his
automobile preparatory to making service calls in his territory. At the same
time Jones drove up, accompanied by three men, and parked his car in front of
Vitko's automobile. Almost simultaneously another car drove up, containing
Petho and Paul Schendel, respectively the president and treasurer of the Local
Jones asked Vitko whether he was "the one that done it." Upon receiving an
affirmative answer, Jones told him not to get into his car or go into the warehouse.
Vitko then started walking toward the warehouse with Jones on one side of him
and the men identified by Vitko as the three passengers in Jones' car on the other
side.° They pushed and jostled Vitko between them. When Vitko protested this
treatment, the man who later assaulted him, said : "Jones isn't pushing you
around. It is you pushing Jones." Shortly thereafter, Jones got in his car and
backed it up directly against Vitko's so that the latter car could not be moved.
A picket line was then established with two men, including the man who later
assaulted Vitko, carrying signs reading "ON STRIKE, Furniture Finishers
Local 725 A. F. of L., Affiliated Painters D. C. #6, Cleveland Federation of Labor."
Except for the incidents specifically alluded to hereafter and found to be violative
of Section 8 (b) (1) (A) of the Act, the picketing was peaceful.
Vitko decided to go to the saloon, about a block distant from the warehouse,
for a cup of coffee. At about 7 a. in., upon his return through the vacant area
which separated the saloon from the warehouse, he observed coming toward him
the man with the scarred face whom he had seen coming out of Jones' car
earlier in the morning. Vitko tried to avoid meeting the other man, unidentified
by name in the pleadings and testimony, by changing his direction, but the other
man kept coming toward him. 'As they met, approximately 50 to 75 feet from
Main Avenue, but out of view of the picket line and the two policemen stationed
there,' the stranger asked Vitko why he was "picking on him." Vitko denied
any such activity or acquaintance with the man. The stranger then struck
Vitko in the face and knocked him to the ground. As Vitko attempted to rise,
the stranger either kicked or delivered a violent blow to the back of Vitko's
head. As Vitko again tried to regain his feet, he saw his assailant going up
the hill on Main Avenue. At about the same time, he observed Jones' car
driven by one of the other three men he saw getting out of that car earlier in
the morning, driving tip the hill on Main Avenue following Vitko's assailant.
A policeman arrived and gave assistance to Vitko, who began vomiting and
shortly thereafter "passed out." He was taken to the hospital and several hours
later to his home. He remained at his home about a month under the care of a
S Schendel testified that he and Petho drove up in separate automobiles.
6 The finding that Jones and three other men, including the man with the scar who
later assaulted Vitko, got out of Jones' car, is made on the credited testimony of Vitko.
His entire testimony, coupled with his demeanor on the witness stand, gave me no reason to
doubt his testimony. A completely different and opposite reaction was created by Jones.
He testified that only he and one Hilow, a member of another Local who had picketed
for both the District Council and the Local involved herein on various other occasions,
got out of Jones' car. Hilow, however, was not called as a witness, nor was Petho, the
Local's president, who- got out of another car In the same area about the same time.
Schendel's direct testimony attempting to corroborate Jones' statement that only Hilow
and Jones got out of the latter's car was completely discedited by the substance of his
cross-examination and his demeanor while testifying.
° Eerkes, having learned on July 26 of the threat to picket the warehouse, arranged for
the presence of policemen on July 27. Two mounted officers reported at the warehouse
entrance on July 27 at about 6 :50 a. m. and remained there until relieved at about 1 :30
p. M.
986209-52.-vol. 97---48
662 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
doctor and suffered continuous headaches. Around Thanksgiving time, he was
hospitalized again for approximately a week and subjected to X-ray examinations
and four spinal taps.
On the morning of July 27, various other company employees arrived near the
warehouse prepared to go to work. As Galayda was approaching the warehouse-
entrance, Jones "went to block [him] up" and said to him, "You'll be sorry, Bud."
At the time the two mounted policemen were close by and Galayda entered the
warehouse without further interference. At about the same time and place,
Jones also told Orz and Kazawal that they had better not go into the warehouse
if they knew what was good for them,
• At about noon of July 27, Jones and five of the men who had signed the
supporting statements accompanying Vitko's petition for decertification went to
the saloon afore-mentioned, and Jones there secured their signatures to affidavits,
previously prepared under Jones' direction, stating that these men did not want
the Local decertified. Prior to securing their signatures, Jones, in the presence
of the other men, some of whom had been apprised of the assault on Vitko, told
Orz to sign the paper if he knew what was good for him. Galayda, a man of
limited understanding, testified he did not "know what the paper said" and that
he only signed "to get rid of them . . . them picket lines." Orz testified he signed
the affidavit to avoid trouble.8 A few minutes thereafter, Jones called Eerkes and_
told him that the men had been to the Board and withdrawn their decertification
petition and that the pickets had been withdrawn. The picket line was then.
abandoned.
B. Concluding Findings
The General Counsel, in his brief, classifies the alleged violative conduct of
Respondents' as follows: (1) The assault upon Vitko; (2) the various incidents-
involving Jones during his visits to the warehouse and its vicinity on July 26.
and 27; and (3) the call and maintenance of the strike of July 27. Each of these
incidents is alleged to be violative of Section 8 (b) (1) (A) of the Act.
1. The Vitko assault
Our problems in connection with the assault upon Vitko are to determine (1),
whether that assault was committed, as alleged in the complaint, because of his-
activity in connection with the decertification petition and (2) whether the-
assailant's conduct may legally be attributed to either or both Respondents. If
both questions are answered affirmatively, it follows as a matter of law that the
assault was in violation of Section 8 (b) (1) (A) of the Act.
Section 7 of the Act guarantees employees the right to "join or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of . . . mu-
tual aid or protection, and . . . the right to refrain from any or all of such
activities. . . ." In order to implement the right to refrain from collective
bargaining, Section 9 (c) of the Act and the Board's Rules and Regulations,10
provide the machinery whereby employees may, under the conditions prescribed
, Most of the facts heretofore found are based on the composite and credited testimony
of Vitko, Orz , Galayda, Kazawal , and Eerkes . Insofar as they were denied by Jones, the
denials are not credited . His hesitant and evasive testimony, his alleged failure to-
remember, coupled with his demeanor on the stand , were in sharp and disadvantageous-
contrast to that of the other witnesses named above.
9 The responsibility of Respondents for that conduct is considered in later portions of
this Report.
10 Series 5, Sec. 203.52 et seq .; Series 6, Sec . 102.52 et seq.
PAINTERS' DISTRICT COUNCIL NO. 6 663
therein, legally rid themselves of a bargaining representative currently recognized
by their employer. Section 8 (b) (1) (A) of the Act makes it an unfair labor
practice for a labor organization or its agents "to restrain or coerce employees in
the exercise of the rights guaranteed in Section 7." If, therefore, the assault on
Vitko was in retaliation for his activity in connection with the filing of the
decertification petition, a right guaranteed by Section 7 of the Act, it ipso facto
constitutes a violation of Section 8 (b) (1) (A).
Whether the beating administered to Vitko was for the purposes alleged is,
of course, a pure question of fact" And even if it be conceded that explicit
evidence as to the cause of the assault may be lacking, that fact does not compel
a finding that the assault was not for the purposes alleged in the complaint.
"Direct evidence of a purpose to violate the statute is rarely obtainable." ' In
resolving the factual question presented, "the long arm of circumstance cahnot
... be overlooked." 19 Human experience shows that a beating such as was
suffered by Vitko is not inflicted by one stranger upon another without motive or
purpose. The absence of more direct evidence merely compels, and indeed
quickens, a closer scrutiny of all the facts and circumstances surrounding the
incident to determine why it was administered.
We begin with Jones' instructions to the Local's membership shortly before the
April 17 strike that while members of the Local were free to picket, "if anything
comes up, . . . if anything rough . . . comes out of it, our boys that we hire . . .
will know what to do, and how to do it and when to do it." 14 It will also be
recalled that when Vitko first saw Jones get out of the latter's car together with
the assailant, Jones asked Vitko whether "he was the one that done it" and
received Vitko's affirmative reply. Jones admittedly had received knowledge of
the decertification petition the day before and had interviewed other members of
the Local at the warehouse on the same day concerning their connection there-
with. The existing state of affairs on July 27 can lead only to the conclusion that
"it" in Jones' query just cited could have reference only to Vitko's filing of the
decertification petition. Having received this admission from Vitko in the pres-
ence of the assailant, the latter and the other two passengers in Jones' car
began bumping and jostling Vitko between them and Jones as all five men
started walking towards the warehouse. The assault on Vitko followed shortly
thereafter, occurring at approximately 7 a. in. Vitko immediately saw the
assailant going up the hill on Main Street in a direction away from the warehouse
entrance, followed by Jones' car driven by one of the other three men who arrived
as heretofore described. Crediting Vitko's testimony, I find that the assault
was committed by a picket who shortly before carried a picket sign provided by
n The only direct evidence of the reason for the assault is supplied by the assailant's
query of Vitko of why he was "picking on him." In view of the fact that the two men
were perfect strangers to ohe another , there could have been no personal antagonism
between them . The remark was either "planted" as a possible excuse and subsequent
claim of mistaken identity if the assailant was apprehended , or else was an unabashed
accusation that Vitko 's activities in connection with the decertification petition, of
which the assailant had knowledge, constituted "picking on" the assailant. In this
connection it will be recalled that the assailant , though not one of Vitko's coworkers,
had at least sufficient interest in the dispute to engage in picketing the premises.
12 Hartsell Mll18 Co. v N. L. R B, 111 F. 2d 291, 293 (C. A. 4).
>W Peoples Motor Express, Inc. v. N. L. R. B., 165 F. 2d 903, 905 (C. A. 4) ; see also
F. W. Woolworth Co. v. N. L. R. B., 121 F. 2d 658, 660 (C. A. 2).
14 While this instruction was given by Jones with reference to the April strike occasioned
by the failure of bargaining negotiations, it was his contention at the hearing that he
had authority to call, and in fact called, the July 27 strike for the same reason.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents 1° Without dispute, it was inflicted upon the man who had admitted
responsibility for the filing of the petition to oust the Union.
Though Respondents in their brief contend that the picketing on the 27th
was occasioned by the Company's failure to bargain collectively with the Union,
I find that not to be a fact. Thus, Jones admitted that he went to the warehouse
on the 26th and talked to the men about the decertification petition and then told
them he would have pickets there on the following morning. Likewise, Jones
admitted that he called the pickets off shortly after noon on the 27th because most
of the men had expressed a desire to withdraw their decertification petition.
No written bargaining agreement was signed with the Association until Septem-
ber 15 and up to the time of the hearing, no agreement, oral or written, was con-
cluded with the Company. Notwithstanding these facts, Jones called the strike
off on July 27 after he secured the signatures of the men withdrawing their
support of the decertification petition and so informed Eerkes. By reason of
all the foregoing, I find that Vitko was beaten by a picket engaged or appointed
by Jones, because Vitko had initiated proceedings to decertify the Local."'
Nor can there be any doubt in law that the assault and the other violative
conduct hereinafter found is legally attributable to the Local. No question is
or could be raised concerning the authority of Jones to call and conduct the
strike of July 27 on behalf of the Local. He admittedly was given full author-
ity to call and conduct the strike as he saw fit and necessary. It has tireviously
been found that the assailant was engaged by Jones, was brought to the scene of
picketing by him, and engaged in the, jostling and pushing of Vitko only a short
time before the violent assault, without reprimand or repudiation by Jones.
Though the conclusion fixing responsibility for the assault does not rest entirely
on express authority, one cannot ignore Jones' instructions to the Local's mem-
bership that "if anything rough . . . comes out of [the picketing, the member-
ship] should just walk out of the picture, our boys that we hire for it will know
what to do and how to do it." In any event, the chain linking Respondents to
the assault is not broken by the fact that the assault was not expressly author-
ized. "A principal may be responsible for the act of his agent within the scope
of the agent's general authority. . . even though the principal has not spe-
cifically authorized or indeed may have specifically forbidden the act in question.
It is enough if the principal actually empowered the agent to represent him in
the general area within which the agent acted." International Longshoremen's
and Warehousemen's Union and Sunset Line and Twine Compay, 79 NLRB 1487.1T
On the entire record, the liability of the Local for the conduct of the strike and
the assault on Vitko is clearly established.
As for the responsibility of the District Council for all the conduct herein
found to be violative of the Act, attention is first directed to the fact that
Respondents themselves claim that the strike of July 27 was called by reason of
the Company's refusal to negotiate a contract with the Local and the District
15 Jones testified that he ordered the picket signs and that they were paid for with funds
provided by the District Council.
16 In any event, insofar as the assault upon Vitko and the other violative conduct of
Respondents is concerned, the reason for calling the strike is immaterial. "The single issue
in cases of this type is whether or not the Respondent has unlawfully restrained and coerced
employees by its activities during the course of the strike. Employer practices which
prompted the calling of the strike are not material to the resolution of that issue." Smith
Cabinet Manufacturing Co., Inc., 81 NLRB 886, 888.
17 See also Service Trade Chauffeurs and Howland Dry Goods Company, 85 NLRB 1037;
United Furniture Workers of America, Local 309, C10, and Smith Cabinet Manufacturing
Company, Inc., 81 NLRB 886; National Union of Marine Cooks and Stewards and Irwin-
Lyons Lumber Company, 87 NLRB 54.
PAINTERS' DISTRICT COUNCIL NO. 6 665
Council, with whom all prior negotiations had been carried on. The constitution
of the International provides that where district councils exist, strikes and
lockouts must be under their supervision. Jones testified, without contradiction,
that he took up the matter of the July strike with Joseph Montvica, the acting
bead of the District Council in Ward's absence, and that Montvica approved
his action. Ward, general secretary and "chief officer to run the affairs of
the Council," testified that the "regular procedure" with respect to the July 27
strike was followed. The District Council paid for the picket signs used on
July 27.' Though Jones denied that he was a business representative of the
District Council, he admitted that on several occasions he had filed representation
petitions in that capacity, had testified under oath in Board proceedings that
he was its business representative, and had signed contracts as the representa-
tive of the Council.
On the entire record, therefore, I find and conclude that the strike of July 27
was a joint venture of the District Council and the Local's and that by the
pushing and jostling of Vitko as afore-described, and by his subsequent assault,
both Respondents coerced and restrained employees in the exercise of rights
guaranteed in Section 7 of the Act and thereby violated Section 8 (b) (1) (A)
thereof. Irwin-Lyons Lumber Company, 84 NLRB 54; Conway's Express, 87
NLRB 972.
2. The other violations on July 26 and 27
By enacting Section 8 (b) (1) (A), Congress sought to insure that strikes
and other organizational activities "carried on by labor organizations were
conducted peaceably by persuasion and propaganda and not by physical force or
threats of force, or of economic reprisal." National Maritime Union of America,
78 NLRB 971. However, no exact line can be drawn covering all circumstances
under which statements by employer or union can be classified either as loose
talk, propaganda, or an otherwise proper exercise of free speech on one side, and
language calculated to have an illegal restraining or coercive effect on the
other. Each case must rest on its own facts and circumstances. The problem
is to determine whether the incidents and statements which the General Counsel
alleges to be violative of Section 8 (b) (1) (A) were reasonably calculated
to restrain or coerce the employees involved (all of whom had signed statements
in support of the decertification petition) in the exercise of rights guaranteed
in Section 7 of the Act. Seamprufe, Incorporated, 82 NLRB 892, enfd. 186 F. 2d
671 (C. A. 10).
Admittedly, some of the statements attributed to Jones, standing alone, might
under some circumstances not be held illegally coercive. If reasonably calcu-
lated only to-convey the idea that by crossing the picket line the offenders
would violate union rules, a different situation might be presented. But,
just as in the case where allegedly coercive statements are made by employers,
workmen "do not stop to look for subtle interpretations or hidden meanings
in statements which on their face are reasonably susceptible of coercive
implications." 20 The test, as the Board has frequently held, is whether the
statement was reasonably calculated to have a coercive effect on the listeners 21
v In connection with the April strike, the District Council had offered its "financial
.. . and moral assistance." As previously indicated, Respondents claim that the July
strike was for the same purpose as that which prompted the April strike.
"International Longshoremen 's and Warehousemen's Union and Roosevelt Stafford, 94
NLRB 1091, and cases cited therein.
20 G. H. Hess, Inc., 82 NLRB 463.
"Ibid.; Smith Cabinet Manufacturing Company, Inc., 81 NLRB 8$6.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Applying that test, I find that Jones' threats to Orz and Kazawal on July 27 that
they had better not go into the warehouse if they knew "what was good" for them,
the similar warning to Orz in securing his signature to the statement repudiating
the decertification petition in the presence of employees who had been apprised
of the assault on Vitko, and the statements to Galayda that he would not be
able to get a job in Cleveland, were all reasonably calculated to restrain and
coerce employees in the exercise of rights guaranteed in Section 7 of the Act.
By that conduct, both Respondents violated Section 8 (b) (1) (A). Seamprufe,
Incorporated, supra; Sunset Line and Twine Company, supra; H. M. Newman.,
85 NLRB 725.
3. The alleged illegality of the July strike
The General Counsel in his complaint alleged , and in his brief argues, that
the strike of July 27, being called and maintained for the purpose of causing the
company employees "to repudiate their support of the decertification" petition,
is, per se, violative of Section 8 (b) (1) (A). He cites no authority in support
of his contention, nor have I been able to find any reported decision dealing with
the exact problem under consideration.
No one will deny that the right to call and peaceably maintain a strike is among
the most valuable rights possessed by labor. Thus, when Congress enacted the
Wagner Act and provided labor with statutory rights not previously possessed,
it clearly declared that nothing in that Act "shall be construed so as to interfere
with, impede, or diminish in any way the right to strike." 22 Certainly under
that Act, a union could call and peaceably conduct a strike for the purpose of
acquiring or maintaining its established status as the bargaining representative
of the employees in the struck plant. Being so-fundamental and deeply rooted,
no impingement of that right 23 should be indulged in unless there is an express
or otherwise irresistible command from Congress to do so. Indeed the Supreme
Court, only a few weeks ago, had occasion to observe that "By § 13 Congress
has made it clear that . . . all . . . parts of the Act which otherwise might be
read so as to interfere with, impede or diminish the union's traditional right to
strike, may be so read only if such interference, impediment or diminution [I. e.
the right to strike] is `speci)cally provided for' in the Act." [Emphasis sup-
plied.] N. L. R. B. v. International Rice Milling Co., 341 U. S. 665. Our prob-
lem, therefore, is to ascertain whether Section 8 (b) (1) (A) of the Act, brought
into the law in 1947 by the Labor Management Relations Act, made it illegal for a
union to call and peaceably maintain a strike of the nature involved herein.
Before alluding to the considerations which support the conclusion that Con-
gress did not intend that the kind of strike present here should be, per se, an
unfair labor practice under Section 8 (b) (1) (A), it becomes appropriate to
analyze the objective of that strike. While it is true, as has heretofore been
found, that the strike was called for the purpose of inducing the employees to
withdraw the decertification petition, its essence and fundamental purpose was
to preserve the organizational and bargaining status then enjoyed by the Union.
The latter objective is a right protected by Section 7 no less than that invoked
by those who supported the decertification petition. The withdrawal of the de-
22 Section 13 of the original Act. The Labor Management Relations Act amended the
section to read as follows : "Nothing in this Act, except as specifically provided for herein,
shall be construed so as either to interfere with or impede or diminish in any way the right
to strike , or to affect the limitations or qualifications on that right."
22 I. e., the right to call and peaceably conduct a strike, a subject wholly separate from the
contentions heretofore considered that certain acts engaged in during the strike were
themselves coercive in character.
PAINTERS' DISTRICT COUNCIL NO. 6 667
certification petition would achieve the Union's objective. The strike was di-
rected to that end and nothing else. It avails nothing to urge that Section 7
guarantees employees the right to file a decertification petition and to abstain
from membership in, or activity on behalf of, the Union and that by calling the
strike Respondents coerced employees in the exercise of a protected right. If
reliance is placed on that rationale, every strike to achieve recognition would
similarly have to be declared violative of Section 8 (b) (1) (A) because of its
effect on employees who desire to abstain from union membership or activities.
.Certainly no one would declare such an organizational strike violative of Section
.8 (b) (1) (A). Indeed, the legislative history hereafter alluded to forbids it.
Section 8 (b) (1) (A) makes it an unfair labor practice "for a labor organiza-
tion or its agents to restrain or coerce employees in the exercise of the rights
guaranteed in section 7." Its legislative history, however, makes it clear that
by that section "Congress sought to fix the rules of the game, to insure that
strikes and other organizational activities of employees were conducted peace-
ably by persuasion and propaganda and not by physical force, or threats of force,
or of economic reprisal." In that section, Congress was aiming at means, not at
ends. As Senator Taft said, in answer to the observation that Section 8 (b) (1)
(A) would outlaw strikes by unions for organizational purposes:
I can see nothing in the pending measure which, as suggested by the
Senator from Oregon [Morse], would in some way outlaw strikes. It would
outlaw threats against employees . It would not outlaw anybody striking
who wanted to strike. It would not prevent anyone using the strike in a
legitimate way, conducting peaceful picketing or employing persuasion. All
it would do would be to outlaw such restraint and coercion as would pre-
vent people from going to work if they wished to go to work. [Emphasis
in original text.] 24
Concededly, Congress, by the enactment of Section 8 (b) (4), did outlaw
some strikes. As the Supreme Court pointed out, "The obvious purpose of the
Labor Management Amendments was . . . to outlaw strikes when undertaken
to enforce what the Act calls unfair labor practices.. .. By § 8 (b) (4),
strikes to attain named objectives are made unfair labor practices and by § 10
(a), the Board is authorized to prevent them." [Emphasis added.] Inter-
national Union, UAW v. Wisconsin Employment Relations Board, 336 U. S. 245.
By Section 8 (b) (4), it was made illegal for "a labor organization or its
agents . . . to engage in ... a strike" for the purpose of achieving any one of
four prescribed objectives none of which are present here.
Further proof that Congress did not intend that the call and peaceful main-
tenance of the July strike should be, per se, an unfair labor practice under Section
8 (b) (1) (A) is provided by Section 8 (b) (4) (C). By that subsection it is
made unlawful for a "labor organization or its agents to engage in . . . a
strike . . . where an object thereof is, . . . forcing or requiring any
employer to recognize or bargain with a particular labor organization as the
representative of his employees if another labor organization has been certified
.as the representative of such employees under the provisions of Section 9."
While there is no claim that the instant strike falls within the ban of the quoted
subsection, its existence in the statute indicates that Congress gave considera-
tion to the effect upon industrial relations of strikes for recognition and the main-
tenance of such recognition, and chose not to ban them. As a matter of deliberate
choice, therefore, except for the narrowly defined activity regulated by Section
8 (b) (4) (C), Congress left unrestricted the right of a labor organization to
21 Perry Norvell Company, 80 NLRB 225; for a more expansive account of the legislative
history of Section 8 (b) (1) (A ) see National Maritime Union of America , 78 NLRB 971.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engage in a recognition or maintenance-of-recognition strike. The Joint Com-
mittee on Labor-Management Relations, in the discharge of its functions to study
and investigate "the administration and operation of existing Federal laws
relating to labor relations" (Title IV, Sec. 402 (7) of the Act), has reported
concerning strikes for recognition (Com. print, Rep. No. 986, part 3, 89th Cong.,
2nd Sess., 70-71) as follows :
Both the bill passed by the House of Representatives in 1947 and early
committee versions of the Senate bill contained some form of prohibition
against a strike for a purpose for which the Act provided an administrative
remedy. Such a provision would have prohibited a strike for recognition,
since the labor organization has available the certification processes of the
Board. The Taft-Hartley law's only limitation upon such strikes is that
provided by Section 8 (b) (4) (C). The right to strike for recognition is
only foreclosed when another labor organization has been certified as the
bargaining representative. . . . Present law in no way limits the pri-
mary strike for recognition except in the face of another union's certifica-
tion. [Emphasis supplied.]
By reason of all the foregoing I find and conclude that the July 27 strike did
not, per se, violate Section 8 (b) (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The violative activities of Respondents set forth in Section III, above, occurring
in connection with the operations of the Company described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have violated Section 8 (b) (1) (A) of the
Act, it will be recommended that they cease and desist therefrom and take
affirmative action designed to effectuate the policies of the Act. %
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
f
1. The Higbee Company, a Delaware corporation, is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. Painters' District Council No. 6, Brotherhood of Painters, Decorators and
Paperhangers of America, AFL,' and Furniture Finishers, Local Union 725,
Brotherhood of Painters, Decorators and Paperhangers of America, AFL, are
labor organizations within the meaning of Section 2 (5) of the Act.
3. By intimidatory conduct designed to prevent employees from working for
The Higbee Company while a strike was in progress, the Respondents have
restrained and coerced said employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and have thereby engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondents have not engaged in unfair labor practices by calling the strike
of July 27, 1950, nor by such peaceful picketing as accompanied that strike.
[Recommended Order omitted from publication in this volume.]
THE STANDARD TRANSFORMER COMPANY 669
Appendix
NOTICE To ALL MEMBERS OF PAINTERS ' DISTRICT COUNCIL NO. 6, BROTHERHOOD
OF PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA, AFL, AND FURNI-
TUBE FINISHERS , LOCAL UNION 725, BROTHERHOOD OF PAINTERS , DECORATORS
AND PAPERHANGERS OF AMERICA, AFL
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that :
WE WILL NOT restrain or coerce employees of THE HIGBEE COMPANY,
Cleveland, Ohio, in the exercise of their right to self-organization , to form,
join, or assist labor organizations , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities, as guaranteed to them
by Section 7 of the Act.
PAINTERS' DISTRICT COUNCIL No. 6,
BROTHERHOOD OF PAINTERS, DECORATORS
AND PAPERHANGERS OF AMERICA, AFL,
By -----------------------------------------
(Representative ) ( Title)
FURNITURE FINISHERS, LOCAL UNION 725,
BROTHERHOOD OF PAINTERS , DECORATORS
AND PAPERHANGERS OF AMERICA, AFL,
By -----------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.
THE STANDARD TRANSFORMER COMPANY and INTERNATIONAL UNION
OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO. Case No. 8-CA-
397. December 28,1951
Decision and Order
On June 25, 1951, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. The Trial Exam-
iner also found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
dismissal of those allegations. Thereafter the Respondent and the
97 NLRB No. 107.