United Brotherhood of Carpenters, Etc.

National Labor Relations Board - Board Decisions

Aug 25, 1952

100 N.L.R.B. 753 (N.L.R.B. 1952)

UNITED BROTHERHOOD OF CARPENTERS, ETC. 753
69, AFL, as the exclusive representative of all employees in the
bargaining unit described below, with respect to rates of pay,
wages, hours of employment, other conditions of employment,
and if any understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All employees in the construction, maintenance, meter, and
transformer departments, including lineman first-class, line-
man second-class, lineman's helper, apprentice lineman,
metermau, and truck drivers at the employer's Greenville,
Texas, plant, but excluding office and clerical employees,
guards, professional employees, and supervisors as defined,
in the Act.
WE WILL NOT in any manner interfere with the efforts of INTER-
NATIONAL BROTIiERIIOOD OF ELECTRICAL WORKERS, LOCAL UNION
No. 69, AFL, to negotiate' for or represent the employeesin the.
aforesaid unit as their exclusive bargaining agent.
FAR,IIEnS' EA LECTRIC COOPERATIVE, INC.,
Employer.
By ------------------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date thereof,,
and must not be altered, defaced, or covered by any other material.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL.
UNION No. 55, AFL, AND FRANK ALLEN, ITS AGENT and THE.
GRAUMIAN COMPANY. Case No. 30-CB-17. August 25, 1952
Decision and Order
On February 26, 1952, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had not engaged in the unfair labor practices,
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate.
Report attached hereto. Thereafter, the General Counsel filed excep--
tions and a supporting brief. The Respondents filed a brief in support,
of the Intermediate Report.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the bearing and finds that no prejudicial error was committed.
' 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 Styles and Peterson].
100 NLRB No. 126.
`754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
-modifications.
As found by the Trial Examiner, Grauman on August 2, 1951,
entered into a contract with Angelopulos, operator of a restaurant in
.a shopping center then under construction, to install certain fixtures
-in the restaurant. The Respondent Allen was the job steward of the
Respondent Union for the shopping center project. On various occa-
. sions in September and October 1951, certain Grauman employees,
while working in the restaurant, were accosted by Allen, who, after
:ascertaining that they were not union members, told them they could
not work on the job site, and that unless they left the union craftsmen
employed there would quit work. Wells, one of the Grauman em-
ployees so admonished by Allen, returned to the restaurant job.on
^October 3, whereupon he was physically assaulted by Allen. On Oc-
tober 16, when certain other Grauman employees returned to the
restaurant job, union craftsmen employed elsewhere in the shopping
center project were called out on strike by Allen until the Grauman
employees left.
We find, contrary to the Trial Examiner, that in assaulting Wells on
October 3, 1951, Respondent Allen was acting within the scope of
his authority as a steward of the Respondent Union, and that the
-Respondent Union was therefore responsible for his conduct. We find,
accordingly, that by such assault both Respondents violated Section
:8 (b) (1) (A) of the Act. In reaching this conclusion, we rely upon
the following considerations :
We find that Allen, by virtue of his position as job steward, was
authorized to police the shopping center job in order to report to the
Union any instances of employment of nonmembers of the Union,
.and_ to advise such nonmembers of the Union's objections to their
working on the job. We find, also, that this authority included, by
implication at least, the power to attempt to secure the removal of
such nonmembers from the job, even to the extent of calling union
'craftsmen off the job.
The Trial Examiner found, however, that in seeking to achieve this
,objective by his assault upon Wells, Allen so far exceeded this author-
ity that his act could not be attributed to the Respondent Union. We
-do not agree . We find that, under the circumstances of this case, the
Respondent Union is chargeable with Allen's resort to violence in his
:zeal to , carry out the Respondent Union's policy of reserving the work
done by Wells -for its members. Nor do we agree with the Trial
UNITED BROTHERHOOD OF CARPENTERS, ETC . 755
Examiner that Hammond 's statement to Wells and other Grauman
employees at the scene of the assault that the Respondent Union dis-
approved of, and regretted , the assault was sufficient to relieve the
Respondent Union of responsibility therefor.
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 hereby orders that the Respondent Frank Allen and the Re-
spondent United Brotherhood of Carpenters and Joiners of America,
Local Union No. 55, AFL, its officers, agents, representatives, suc-
cessors, and assigns, shall :
1. Cease and desist from restraining and coercing employees of
The Grauman Company, its successors or assigns , in the exercise of
their right to refrain from joining the Respondent Union, or any other
labor organization, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized by Section 8 (a) (3) 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 business office of the Respond-
ent Union, where notices to members are customarily posted, copies of
the notice attached hereto and marked "Appendix A." 2 Copies of
said notice, to be furnished by the Regional Director for the Seven-
teenth Region, shall, after being duly signed by an official representa-
tive of the Respondent Union and by the Respondent Allen, be posted
by them immediately upon receipt thereof and maintained by them
for a period of at least sixty (60) consecutive days thereafter. Reason-
able steps shall be taken by them to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Seventeenth Region signed
copies of the notice attached hereto as Appendix A, for posting, The
Grauman Company willing, at the places where notices to its em-
ployees are customarily posted. Copies of said notice, to be furnished
by said Regional Director, shall, after being signed as provided above,
be forthwith returned to the Regional Director for said posting.
(c) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
2 If this Order is enforced by a decree of a United States Court of Appeals , there shall
be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a
Decree of the United States Court of Appeals , Enforcing an Order."
227260--53-Vol. 100--49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, LOCAL UNION No. 55, AFL, AND To ALL EM-
PLOYEES OF THE GRAUMAN COMPANY
Pursuant to a Decision and Order 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 GRAUMAN
COMPANY, its successors or assigns, in the exercise of the right to
refrain from joining the undersigned union or any other labor
organization.
UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS OF AMERICA,
LOCAL UNION No. 55, AFL,
Union.
By ------------------------ ------------
(Representative ) (Title)
Dated ------------------
FRANK ALLEN, Agent.
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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed by The Grauman Company, herein called Grauman,
and upon complaint and notice of hearing issued and served by the General
Counsel of the National Labor Relations Board, herein called respectively the
General Counsel and the Board, and an answer having been filed, a hearing upon
due notice was held at Denver, Colorado, before the undersigned Trial Examiner,
on January 21, 22, 1952, involving allegations of unfair labor practices affecting
commerce in violation of Section 8 (b) (1) (A) and Section 2 (6) and (7) of the
National Labor Relations Act (61 Stat. 136), herein called the Act. The alle-
gations in substance are that the Respondents, United Brotherhood of Car-
penters and Joiners of America, Local Union No. 55, AFL, and Frank Allen, its
agent, herein called respectively the Union and Allen, restrained and coerced
Grauman employees in the exercise of rights guaranteed them in Section 7 of
the Act by forcibly preventing them from performing certain of their duties in
the regular course of their employment, because they were not members of the
Union. All parties were represented at the hearing where they were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to intro-
duce evidence material to the issues, to argue the issues orally upon the record,
UNITED BROTHERHOOD OF CARPENTERS , ETC. 757
and to file briefs and proposed findings. The General Counsel and counsel for
the Respondents engaged in oral argument at the hearing and have filed briefs.
Upon the entire. record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Grauman is a Colorado corporation with its offices and principal place of
business at Denver , Colorado , where it is engaged principally in 'the manufac-
ture, sale, and installation of soda fountains and fixtures for stores and restau-
rants. During the calendar year 1951, Grauman's purchases of raw ma-
terials from outside the State , used in the manufacture of its products, had a
value of approximately $36,000, and during the same year it caused to be shipped
from its Denver plant to purchasers outside the State of Colorado materials
and products of a value of approximately $28,447. An additional amount of
approximately $5,751 was the value of merchandise which it caused to be shipped
to out-of-State purchasers from sources other than its own plant.
On the basis of the above uncontested facts the Board has and will assert
jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America, Local Union No.
55,- affiliated with the American Federation of Labor, is a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
The facts material to a decision on the issues in this case are virtually
undisputed.
On August 2, 1951, Grauman entered into a contract with James Angelopulos,
the operator of a restaurant then under construction in a shopping center
known as Merchants Park. Under the contract Grauman sold to Angelopu!os
certain restaurant fixtures and the purchase price included the cost of installing
the fixtures which Grauman undertook to do with its own employees.
On or about September 1, Grauman sent its foreman, Randall Vienot, to the
restaurant to take certain measurements for fixtures purchased by Angelopulos.
Shortly after his arrival at the job site, Vienot was approached by Respondent
Allen, a job steward of the Respondent Union, who asked if Vienot had a union
card or was a union man, and when Vienot replied in the negative , informed
him that it was a union job, that if he was not "union" he could not work at the
job site. Vienot completed taking the measurements that he wanted and left.
On or about September 25 or 26, Grauman sent three of its employees , Wells,
Butler, and Hughes, to the job site for installation of equipment in the Angelop-
ulos restaurant. Before completing the installation they were approached by
the same Allen who addressed them in much the same manner as he had
previously addressed Vienot, questioning them if they were "union" and on being
informed that they were not, directing them that inasmuch as this was a union
job, they would not be permitted to complete the installations they were then
engaged on ; that if they persisted in doing so, the union craftsmen would refuse
to work. The Grauman employees thereupon left the job site without having
completed the installations.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about October 3, Wells was again sent to the job site to install equipment,
this time accompanied by employee Wood. While engaged in this work, Allen
approached them, said in effect, "I told you rats not to come in here any more"
and, when Wells made some rejoinder, hit Wells on the head.' No further blows
were struck and the Grauman employees left. Allen then called the Union's
business agent, Harry L. Hammond, and Hammond came to the job site. While
Hammond was there, Wells and Wood were brought to the site by the local
police ; other Grauman representatives were present. Hammond told them that
the Union did not condone Allen's act in striking Wells and "we were very sorry
that a thing like that would happen." No arrests were made. Allen told
Hammond concerning the incident that "he knew better, that he had just lost
his head, that it was purely uncalled for."
The final incident relied on by the General Counsel to establish a violation
of the Act occurred about October 16, when Grauman employees, Wood and
Hughes, returned to the restaurant site and were again informed by Allen that
they could not work on the job without union cards and that if they remained
on the job the union men could not work, thus repeating almost verbatim what
he had said on earlier occasions. Foreman Vienot and Superintendent Mekeel,
of Grauman 's employ, were called to the site and there was further discussion
of Allen's contention that nonunion employees were not permitted on the job.
Approximately contemporaneous with this discussion, Allen, acting on instruc-
tions of A. T. Hartley, superintendent of the construction job on the Merchants
Park shopping center, called union craftsmen off of an adjoining project. These
union employees remained idle until the Grauman employees had left the job
site.
Thereafter, Grauman arranged to complete the installation of fixtures under
the Angelopoulos contract on night shifts or such times as not to conflict with
union craftsmen.
B. The issues
The issues arising from the pleadings in this case are two: In the conduct
complained of and stated above, was Allen acting within the scope of his authority
as an agent of the Union; did this conduct amount to restraint and coercion
within the meaning of Section 8 (b) (1) (A) of the Act? These matters will
be discussed in inverse order.
The conduct complained of consisted of (1) Allen's verbal statements to
Grauman employees that they being nonunion , could not work on the project
to which their employer had assigned them, and that if they persisted in doing
so, the union employees on the project would cease work; (2) Allen's action in
calling certain union craftsmen off their jobs until Grauman employees had left
the job site; (3) Allen's action in striking Wells, a Grauman employee, when
Wells was sent back to the job site after having previously been informed by
Allen that nonunion employees would not be permitted to work there.
No contention is made, and no evidence offered to prove, that on the first two
occasions when Grauman employees were approached by Allen, his verbal state-
ments were accompanied by threatening gestures or any manifestations of force,
and this is also true of the occasion when union craftsmen were temporarily
called off the job. I am of the opinion, and find, that Allen's verbal conduct on
I Wells testified that on this occasion Allen used profanity This Allen denied.
Inasmuch as Allen's assault on Wells is admitted, a resolution of this conflict in the
testimony is unnecessary . Neither is the precise w irdmg of Wells ' rejoinder , also in
dispute , material I am convinced that it was not of a character to provoke the physical
assault which followed.
UNITED BROTHERHOOD OF CARPENTERS, ETC. 759
these occasions was not violative of Section 8 (b) (1) (A) of the Act. It is
noted that on the first of these occasions, Vienot, Grauman's foreman, was not
molested in completing his work at the job site after having been directed to
leave by Allen, and the fact that Grauman continued thereafter to dispatch its
employees to the job site indicates that it was understood that Allen had no
actual authority to prevent the performance of their assignments at the job
site.' If there was force in Allen's statements such as to constitute them viola-
tive of Section S (b) (1) (A), it lay in his explication of the Union's policy of
requiring its members to refuse to work on the same job with nonunion crafts-
men, a policy which was effectuated on October 16 when Allen caused certain
union craftsmen to quit work until after Grauman employees had withdrawn.
Allen's statement of what would happen if Grauman employees persisted in
working at the job site and his later action in causing certain union craftsmen
to leave their jobs pursuant to union policies, are of the same order of legal
significance. Neither the statements nor the act were accompanied by force or
threat of force, and neither imposed nor implied a physical barrier or restraint.
The General Counsel argues impressively that this conduct had the effect of
threatening Grauman's nonunion employees with loss of present and future
employment by the application of economic pressure. I do not discount the
practical force of this argument, but assuming that an object of the work
stoppage was to qualify the continued employment of nonunion men at the job
site and was economic persuasion applied to achieve that result, I am unable to
conclude that this was conduct necessarily violative of Section 8 (b) (1) (A)
of the Act. Despite Allen's statement that union employees would withdraw
from the job if Grauman employees persisted in working there and the actual
withdrawal which followed, Grauman employees remained free of physical
impediment or restraint of any kind to complete their job assignments. There
was no mass picketing to bar their ingress or egress, no picketing at all in fact,
no threatening gestures, not even an unpleasant epithet; in fact, none of the
manifestations of force or threat of force which Section 8 (b) (1) (A) was
designed to prevents Insofar as the transcript of this proceeding is indicative
of the actual situation, Grauman employees, without hindrance from the Union,
might have done all that was required of them at the job site.` The action of
union craftsmen in withdrawing from their jobs is not shown to have made the
installation of equipment by Grauman employees more difficult or to have im-
posed any barrier whatever to the performance of those duties.
If it is the General Counsel's position that application by a labor organization
of economic persuasion to protect the solidity of its ranks against the incursions
of nonunion employees is under all circumstances a violation of Section 8 (b)
(1) (A), I would find some difficulty in agreeing. Against whom, for what objec-
tive, and in what manner the pressures are applied, are the telling factors in
each case. Peaceful, nonmass picketing may very well impose a restraint of
sorts on employees or potential employees not in sympathy with the picketing
objectives, and may even be said to embody a potential threat of-economic loss,
but is not normally found by the Board to constitute restraint and coercion
2I am aware that the effectiveness of the act is not the sole criterion by which it is
determined whether the act is coercive , but neither can it be said that the reactions of the
individuals directly affected by the act are irrelevant to such a determination. Where
objective factors exist the determination does not have to be made in vacua, or in terms of
pure abstraction.
3 See National Maritime Union of America, 79 NLRB 917, 982-987, for the Board's
evaluation of congressional intent as incorporated in Section 8 (b) (1) (A) of the Act.
* There is some hearsay testimony by Grauman's president , Cecil Zeitlin , to the contrary
but being hearsay not offered for the purpose of proving restraint and coercion , it is with-
out probative value.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 8 (b) (1) (A), although manifestations of violence
or threats of violence or reprisals directed against nonpicketing employees and
attributable to the picketing labor organization, have been found to constitute
such a violation. The distinctions in the situation at hand seem equally clear.
Such economic persuasion as was exerted by the Union through Allen is prop-
erly regarded as having been exerted against the employer whose intervention
alone, so long as the Union employed neither force nor threats of force, would
have had sufficient authority to constitute actual restraint and coercion of Grau-
tuan employees. It is a reasonable inference under the facts of this case that
Grauman employees in withdrawing from the job site did so not because of in-
timidation by the Union but by arrangement of their employer with the con-
-tractor on the construction project by which they completed the Grauman instal-
lations at such hours as would not bring them into conflict with union craftsmen.
The General Counsel in his brief appears to concede that pressures exerted by the
work stoppage were directed at the employer when he argues, inter alia, that
repetitions of the conduct complained of would "have the necessary result that
other employers, operators of restaurants and similar establishments, to whom
Grauman is selling his products, will eventually cease to deal with Grauman."
But we are not confronted here with an allegation of secondary boycott, and no
such issue was litigated in this proceeding. It appears therefore that what the
General Counsel seeks is a finding that would be the equivalent in every respect
of a derivative 8 (b) (1) (A) violation drawn from an unlawful secondary boy-
cott. I know of no case in which the Board has found that a case of secondary
boycott gives rise, derivatively, to a finding of 8 (b) (1) (A) violation, and I
know of no compelling reason why this should be found. The United States
Court of Appeals for the Seventh Circuit in a recent decision (American News-
paper Publishers Association et al., J-1495, dated December 27, 1951) sustaining
the Board's refusal to find a derivative 8 (b) (1) (A) violation, quoted with
approval from Teller, Labor Disputes and Collective Bargaining (1950 supple-
ment), at page 82, #398.48:
The fact that the union's actions are unfair labor practices under other
subdivisions of Section 8 (b) does not make them violations of 8 (b) (1) (A),
which is, as stated above, concerned only with clearly nonpeaceful or other-
wise specifically unlawful labor activity. A union's refusal to bargain in
violation of the Act, or its insistence (based on a desire not to interfere
with the rights of employees but to protect its own interests ) on an illegal
hiring hall arrangement is accordingly not violative of 8 (b) (1) (A).`
Had Congress wished to make such conduct as is complained of here inde-
pendently violative of the Act, it might have done so by making it an unfair labor
practice for a labor organization or its agent to cause or attempt to cause an em-
ployer to restrain or coerce its employees in the exercise of rights guaranteed
under Section 7, within the meaning of 8 (a) (1) of the Act. Congress did not
see fit to do so and the legislative power, needless to say, is vested not in the
Board but in Congress.
The physical violence perpetrated by Allen in furtherance of his demand that
nonunion employees leave the job site falls, of course, in a different category
In accord is the Board 's rationale in an early case under the Taft-Hartley Act (Na-
tional Maritime Union of America, 79 NLRB 971, 982-987), in which after an extensive
review of the legislative history of Section 8 (b) (1) (A), the Board found that a peace-
fully conducted strike in furtherance of an illegal cbjective, 1. e., an unlawful hiring hall-
was not violative of Section 8 (b) (1) (A) because its prime objective was the protection
of the employment interests of union members, and not the coercing of nonmembers to
join the union . It can hardly be doubted that in the case at bar , the prime objective of
the work stoppage was to protect the employment interests of the Union.
UNITED BROTHERHOOD OF CARPENTERS, ETC. 761
and, if attributable to the Union, is precisely the sort of thing that Section
8 (b) (1) (A) was designed to prevent. The only matter that need concern us
here is whether in his physical assault on Wells, Allen was acting in his capacity
as an agent of the Union. To say that he was a union steward does not neces-
sarily provide an answer to the problem because "steward" is not a term of precise
definition in relation to the problems of agency. I am aware of Senator Taft's
Supplementary Analysis of the Labor Bill as Passed (93 Cong. Rec. 7000) in
which having discussed an employer's responsibility for the actions of a super-
visor "acting in his capacity as such," he continues :
Similarly union business agents or stewards, acting in their capacity of
union officers, may make their union guilty of an unfair-labor practice in the
bill, even though no formal action has been taken by the union to authorize
or approve such conduct.
Obviously, there is nothing new or novel in this pronouncement. If a union
steward-or any other person, for that matter-is clothed by the union with
apparent or general authority, the union may be bound by his acts which fall
within the scope of that apparent or general authority although the specific
acts were neither authorized nor approved and may have been expressly for-
bidden.' There being no contention made that Allen was actually authorized
by the Union to commit a physical assault on Wells or any other employee,
or forcibly to prevent them from working at the job site, our actual problem is
whether he was vested by the Union with such general or apparent authority
as to make his act attributable to it. If Allen did possess such general or
apparent authority it must be found solely in the fact that he was a steward on
the construction job where the incident occurred.
Allen was not an officer of the Union nor was he appointed steward by the
Union. Pursuant to the Union's constitution and bylaws he was elected steward
on the particular construction job on which he was engaged at the time the in-
cident occurred, by the some 10 union members employed on that job. The scope
of his authority, express or apparent, must be defined in terms of the duties
imposed on him as job steward by virtue of the Union's bylaws, and these con-
sisted in the main of keeping a check, and reporting to the Union, on the con-
ditions as to union membership and work jurisdiction on the particular project.
Thus, when he approached Grauman employees and questioned them concerning
their union affiliation, he was clearly acting within the scope of his authority,
and when, following the first two occasions when Grauman employees came
onto the project he reported to the Union's business agent on the incidents, he
was again acting on express authority. There, in my opinion, his authority as
a job steward ended. However, because it was the policy of the Union to require
its members to cease work on a project where nonunion craftsmen were employed,
when he informed Grauman employees that if they persisted in working at the
job site the union employees would walk off, he was acting in furtherance of a
settled union policy and in a manner which might reasonably have been foreseen
by the Union as arising from his capacity as job steward. I think he bad no
general authority as job steward to direct the union craftsmen to cease work, but
in so doing he was acting pursuant to the instructions of the job superintendent,
Hartley, who was a member of the Union, and, I am convinced, with the knowl-
edge and approval or at least acquiescence of the Union. I would hold therefore
6 "As such [ joint sponsors of a strike ] they were jointly responsible , under common
law principles , for the acts of their own, and each other 's agents performed within the
scope of their agents' authority or employment , as the case might be, even though the acts
were not specifically authorized or Indeed were expressly forbidden ." Cory Corporation,
84 NLRB 972, 978.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that his action in calling union craftsmen off the job was attributable to the
Union but that the agency thus established does not arise out of his position as
job steward but out of the actual delegation to him of that authority.?
The matter of Allen's physical assault on Wells stands on a different footing.
As has been seen, lie had no express authority as a job steward to commit this
act. When, prior to the incident, he had within the pioper scope of his duties
as a job steward reported to the Union's business agent that nonunion crafts-
men had attempted to work on the project, he was instructed by that agent that
if there were more occurrences of this character he was to report back to the
Union. When Wells, the nonunion Grauman employee, came onto the project
a second time, Allen, instead of reporting to the business agent as instructed,
lost his temper and made the physical assault It would be strained indeed,
I think, to say that in committing this act Allen was acting in furtherance of a
union policy. The Union had a policy covering the incursions of nonunion labor
on a union project and that policy was that union craftsmen would refuse to
work as long as they remained on the job. It was a policy of nonviolence and
there is not a scintilla of evidence that this Union had established a pattern
of violence in connection with such matters from which it might reasonably
be inferred that Allen, in his rash act, was acting on behalf of the Union. It
should be borne in mind that even apparent authority in the agent must stem
from some act, policy, statement, or course of conduct by the principal. I think
it is clear that Allen in his intemperate assault on Wells was acting in his indi-
vidual capacity as a union man of many years' standing, once an officer of the
Union, who was momentarily carried away by anger at what he, as an old union
man, mistakenly perhaps but honestly considered to be a flouting of traditional
union concepts of security on the job. Clearly, as a job steward, he had no gen-
eral authority from the Union which could reasonably be said to encompass the
act of physical assault a he was acting in furtherance of no union policy which
reasonably could be said to encompass such an act, and there is present in this
case no pattern of violence by the Union in which such an act finds an appropriate
7In so finding , I have not ignored Allen 's testimony on the scope of his agency as a
job steward, but the declarations of an agent on the scope of his agency are not , of course,
necessarily binding on his principal and I have found the testimony of the Union's business.
agents more persuasive on the point . Allen impressed me as one who because of his long
association with the Union might well have arrogated to himself authority that he did not
possess either through express or implied agency.
8 See Teamsters Local 641 and Air Products, Inc., 91 NLRB 1381 , wherein Clarino, whose
agency was in question , participated in contract negotiations , appointed stewards, and
represented the union in vital meetings, wherefrom the Board inferred that he acted for
the union in a general capacity , wsthout restrictions on his authority to represent the
union in vital negotiations , and his acts not having been repudiated by the union were
found to be binding on it. In N. L. it. B. v. Acme Mattress Co., Inc, No. 10441 , C. A. 7,
1951, enforcing 91 NLRB 1010, it was found that a negotiating committee whose spokes-
man, Cline , procured the discharge of an employee , while not specifically authorized by the
union to procure Littleton 's discharge , was acting within the scope of its apparent authority
to "set the terms and conditions upon which the Respondent Local would eiecute the con-
tract and terminate the strike" and therefore its act in procuring the discharge wis
attributable to the union . In Cory Corporation , 84 NLRB 972 , the acts of individuals
committed in furtherance of a strike called by certain unions to compel acceptance of
contract demands, were held to be binding on the unions and the board finds "it is of no
significance that union officials might have forbidden the acts in question , especially since
they themselves , in disregard of their instructions , engaged in, directed, or instigated the
unlawful conduct ." In Western, Inc., 93 NLRB 336, the oral appeal of a single picket wag
held binding on the picketing union because the oral appeal was within the authorized
sphere of action.
For reasons stated in the text , all of these cases represent situations clearly distin-
guishable from the case at bar.
PROGRESSIVE CAFETERIAS 763
frame of reference.' Finally, when informed of Allen's act, the Union expressly
repudiated it.10 The Union's business agent, Hammond, when summoned to the
job site by Allen, and when confronted by `Yells, the Grauman employee who had
suffered the assault at Allen's hands, and other Grauman representatives, stated
unequivocally that the Union did not condone Allen' s act and was "very sorry
that a thing like that would happen." It is true, as the General Counsel con-
tends, that the Union did not punish Allen by removing him from his steward-
ship-if it had that power-or by officially reprimanding him, but were a reme-
dial order issued under this complaint it would not require the Union to take
either of these drastic steps unless the Board went further in ordering the inter-
nal affairs of a labor organization than it has heretofore. It is sufficient to say
that there is nothing in the context in which Hammond apologized for Allen's
act which leads me to believe that this was mere lip service. I think it was a
sincere and effective disavowal by the Union of Allen's intemperate act.
I shall recommend the dismissal of the complaint.
CONOLUSIONS OF LAW
1. The operations of the Employer, The Grauman Company, Denver, Colorado,
constitute and affect trade, traffic, and commerce among the several States,
within the meaning of Section 2 (6) and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of America, Local Union
No. 55, AFL, is a labor organization within the meaning of Section 2 (5) of the
Act.
3. The Respondents have not engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
[Recommendations omitted from publication in this volume.]
0 See Western, Inc., 93 NLRB 336, in which the picketing union was absolved of liability
for coercive acts committed by picketing employees : "Their activity was not expressly
authorized by the Unions, nor did the Unions establish any pattern of unlawfully coercive
picketing-which could constitute implied authorization of the particular restraint and
coercion far from the picket line."
10 See Teamsters Local 641 and Air Products, Inc., 91 NLRB 1381, footnote 8, supra.
JOSEPH CHRISTENSEN AND BLANCHE CHRISTENSEN , PARTNERS, D/B/A
PROGRESSIVE CAFETERIAS 1 and LOCAL 181, HOTEL AND RESTAURANT
EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, AFL, PETI-
TIONER. Case No. 35-RC-76S. August °L5, 195$
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Robert Cohn, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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-mem-
ber panel [Members Houston, Murdock, and Styles].
I The Employer's name appears as amended at the hearing.
100 NLRB No. 132.