Warehouse, Retail and Mail Order Employees

National Labor Relations Board - Board Decisions

Jun 21, 1974

211 N.L.R.B. 807 (N.L.R.B. 1974)

WAREHOUSE, RETAIL AND MAIL ORDER EMPLOYEES
Warehouse , Retail and Mail Order Employees Local
Union No,, 590, iffiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of Amercia i and Southern
States Cooperative, Inc., Feed Division.) Case
5-CB-1426
June 21, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On March 27, 1974, Administrative Law Judge
George L. Powell issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions 3 of the Administrative Law Judge and to
adopt his recommended Order.
DECISION
STATEMENT OF THE CASE
807
GEORGE L. POWELL, Administrative Law Judge: The
issues in this case are: While picketing,
A. Did certain union representatives threaten employ-
ees with physical harm?
B. Did the union official and a union representative
physically assault and inflict bodily injury upon employees
and applicants for employment by Charging Party and
restrain them from entering Charging Party's property?
C. Did union representative and a striking employee
,throw rocks at a truck of Charging Party as it was being
driven across the picket line by an employee?
D. Did any of these acts constitute a violation of
Section 8(b)(1)(A) of the National Labor Relations Act,
herein called the Act? (29 U.S.C. Sec. 151, et seq.)
For the reasons hereinafter set forth, I find the General
Counsel has proven the facts by a preponderance of the
evidence and I find the Act has been violated as alleged. A
remedy will be fashioned to effectuate the policies of the
Act.
The Case
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Warehouse, Retail and Mail
Order Employees Local Union No. 590, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
its officers , agents , and representatives, shall take the
action set forth in the said recommended Order.
i The names of the parties appear as amended at the hearing.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
3 In fashioning the remedy herein, the Administrative Law Judge
inadvertently recommended that Respondent "be ordered to cease and
desist from infringing in any manner upon the rights guaranteed its
employees by Section 7 of the Act." Since the employees in question are
those of the Charging Party and not Respondent , we correct "The Remedy"
portion of his Decision to read , in pertinent part, that Respondent is
"ordered to cease and desist from infringing in any manner upon the rights
guaranteed the employees by Section 7 of the Act."
Southern States Cooperative, Inc., herein called the
Company or Charging Party, filed a charge on October 2,
1973, with the National Labor Relations Board, herein
called the Board, charging that Warehouse, Retail and
Mail Order Employees Local Union No. 590, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called Union or Respon-
dent, had engaged in unfair labor practices affecting
commerce within the meaning of the Act.' This resulted in
a complaint and notice of hearing being issued by the
Regional Director for Region 5 of the Board, on behalf of
the General Counsel of the Board, on October 18, 1973.
Respondent denied the essential allegations that it
violated the Act.
With the General Counsel of the Board, Respondent,
and the Charging Party each represented by counsel, the
case was tried before me in Baltimore, Maryland, on
December 3, 4, and 5, 1973. The parties were given full
opportunity to present evidence and examine and cross-
examine witnesses. Counsel for Respondent and General
Counsel filed briefs on January 18, 1974.
Upon the entire record including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs of the parties, I make the following:
i The name of Respondent was corrected at the trial to be as stated in
the caption hereto.
211 NLRB No. 106
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The Company is a Virginia corporation engaged in the
manufacture and sale of fertilizer, seed , and farm supplies
at its East Fort Avenue, Baltimore , Maryland, location.
During the 12 months preceding the issuance of the
complaint, the Company sold and shipped products valued
in excess of $50 ,000 directly to points located outside the
State of Maryland . I find the Company is and , at all tunes
material , has been an "employer" as defined in Section
2(2) of the Act , engaged in "commerce" and in operations
"affecting commerce" as defined in Section 2(6) and (7) of
the Act, respectively.
The parties admit and I find that Respondent is, and has
been, a labor organization within the meaning of Section
2(5) of the Act.
There is no issue of jurisdiction.
H. THE ALLEGED UNFAIR LABOR PRACTICES
The parties admit and I find that the following named
persons occupied positions set opposite their respective
names , and have been , and are now, agents of the
Respondent , acting on its behalf, within the purview of
Section 2(13) of the Act:
Joseph Ritz-Secretary-Treasurer
Mickey Williams-Representative
Jesse Thacker-Representative
Fred Killen-Representative
The parties also admit that on or about September 5,
1973, and at all times material thereafter , Respondent was
engaged in a labor dispute with the Company and has
engaged in picketing of the Company.
Thursday, September 13, 1973
Union Agent Mickey Williams and picket John Nagliari
were standing at the East Fort Avenue entrance to the
Company's property on September 13, 1973, when compa-
ny truckdriver Raymond Dashiells was driving his truck
from the Company's loading area into East Fort Avenue
about 2 p.m. As he reached the entrance he stopped the
truck to observe the traffic on the avenue . Seeing none, he
prepared to drive off the Company's property onto the
avenue . At that instant, picket Nagliari threw a stone at the
truck hitting the bottom of the opened window on the
passenger's side of the cab. The stone then richocheted into
the cab where it bounced around a bit and finally came to
rest . When Nagliari threw the rock he was standing in the
entrance way a few feet to the right of the truck. Union
Agent Mickey Williams was standing a few feet in front of
Nagliari when the rock was thrown . Thereafter , Dashiells
drove back into the Company's parking lot and discussed
the incident with Plant Manager Carico. Carico then
telephoned the police. When they arrived on the scene,
they interviewed Carico, Dashiells, Williams, and Nagliari.
At no time did Williams ever disavow Nagliari's conduct
or direct him not to throw stones . Nagliari was never called
to testify nor did Williams ever deny Nagliari threw the
stone . Eyewitness Carico testified credibly to the above
and he was corroborated by Dashiells with respect to the
stone in the truck but Dashiells never saw it thrown.
Accordingly, I find that picket Nagliari threw a stone at
Dashiells' truck as it was crossing the picket line and that
this action was condoned by Union Agent Williams. This
violated Section 8(b)(1)(A) of the Act.
[A ] union which calls a strike and authorizes picketing
must retain control over the pickets in whatever
manner it deems necessary, in order to insure that they
do not act improperly. If a union is unwilling, or
unable, to take the necessary steps to control its
pickets, it must then bear the responsibility for their
misconduct . [Drivers, Salesmen, Warehousemen, et at,
Local 695, IBT (Tony Pellitteri Trucking Service, Inc.),
174 NLRB 753, 758. Cited with approval by Adminis-
trative Law Judge Von Rohr, and affirmed by the
Board, in General Drivers and Dairy Employees Local
Union 563 (Northern Contractors Supply, Inc.), 183
NLRB 1023.]
Friday, September 21, 1973
While the strike was on, the Company advertised in the
local newspapers , on September 19, 1973, for permanent
replacements for those on strike , and hired 21 replacements
between September 21 and 26, 1973.
Larry Reed and Roosevelt Gunther were two of the
replacements hired on September 21, 1973. They had no
difficulty crossing Respondent's picket line in the morning
coming to work on Friday, September 21 but on leaving
work about 4:30 p.m. they had a conversation with Fred
Killen, a union representative , as they crossed the picket
line. Killen asked them if they were coming to work
Saturday. When they said they were not working Saturday,
Killen asked them if they intended to work on Monday.
Reed and Gunther responded that they would be working
on Monday. Killen then said, "He wouldn't do that if he
was [them ] because it was going to be worser [sic ] and that
he wasn't responsible for what was going to happen to
[them]." Union Agent Jesse Thacker was also present
during this incident . Killen's denial of this threat is not
credited . He even denied that the Union used "outsiders,"
i.e., persons who were neither company employees nor
union agents , on the picket line, when photographs
introduced at the trial contradict him and show "outsiders"
s pickets (see G.C. Exh. 5). Witnesses Reed and Gunther
are credited . I find Killen 's statement to Reed and Gunther
to be an implied threat of physical harm if they reported
for work on Monday.
Monday, September 24, 1973
As Killen had foreseen, things got "worser" on Monday,
September 24, 1973. According to the credited testimony of
striking employee Wilson Cook, he arrived at the picket
line to commence picketing about 3:30 a.m. to permit early
employees to honor the picket line. The only person
present when Wilson arrived was Respondent's agent,
Jesse Thacker. A few minutes later six men arrived by car
and walked over to where Cook and Thacker were
standing. Although none of these men were company
WAREHOUSE, RETAIL AND MAIL ORDER EMPLOYEES 809
employees, one of them told Thacker that striking
employee "Mike Hayden had asked them to come down to
help stop the people that Southern States had hired from
crossing the picket line." Thacker suggested that the men
return later since Hayden had not yet arrived at the picket
line. The men then drove off, but returned within about 45
minutes and remained for the rest of the morning. Due to
the presence of these six men, Cook sensed "trouble" or a
"fight" because , as he stated it, "Wherever they go, they
kind of look out for that kind of stuff. They drink beer."
He saw them with beer cans in their hands that early in the
morning.
Office employees, job applicants, and striker replace-
ments began arriving at the plant about 7 a.m. By that time
the Respondent's picket line was formed in front of the
plant entrance and nobody could drive through the picket
line without stopping or hitting one of the pickets. Those
who crossed the line received permission to do so from
Respondent Secretary-Treasurer Joe Ritz, who admitted
that cars could not cross the line unless he motioned to the
pickets to step aside and let the car pass. Not all were
permitted in.
About 7 a.m. two job applicants, Jesse Peoples and
James Mitchell, approached the picket line on foot.
Mitchell and Peoples told the pickets that they were
seeking employment and wished to cross the picket line.
The pickets said that they would not be responsible for
what happened to Peoples and Mitchell if they crossed the
picket line. Then one picket said, "Buddy, you ain't getting
my job.." Peoples and Mitchell then angrily walked away
from the picket line and stood across the street. A few
minutes later a car pulled up to the entrance and was
stopped by the pickets. The two occupants got out of the
car. The pickets then told the driver that he could not enter
the plant and after some discussion he and his passenger
got back into the car and drove away.
About 7:45 a.m. Richard Commander drove his car up
to the picket line. His brother, William Commander, and
Larry Jenkins, Charles Jenkins, George White, James Rice,
and Otis Edwards, Jr., were also in the car. There were
about 12 to 15 pickets on the line at that time including
Respondent Secretary-Treasurer Joe Ritz. The pickets
formed a circle around Commander's car making it
impossible for him to enter the plant without hitting one of
them . Ritz then walked over to the driver's side of the car
and told Commander that he could not go through the line.
Commander said, "You all can strike if you want to but
just let me go on through and go to work." Ritz, speaking
through the open car window, told Commander and the
occupants of the car that "if [they] attempted to come
through the line he wouldn't be responsible for what
happened." Then some of the strikers started rocking the
car and Commander got out and told them to get off his
car. Picket Mike Hayden then struck Commander and
pushed him down. Immediately thereafter, the rest of the
men in the car got out and a general fight occurred
between the pickets and the men in the car. The fight
ended within a few minutes when Commander opened the
trunk of the car and he and some of his friends used the
tools which were in the truck as weapons. When confront-
ed with this show of force the pickets retreated to Fort
McHenry and Commander, et al., went to work. The police
arrived a few minutes after the fight, but made no arrests.
Several men on both sides of the fight were then taken to
the hospital and treated for injuries which they incurred
during the fight. Ritz' testimony of this event is not
credited against the credited version of witnesses for the
General Counsel. Throughout the case, some of the
witnesses for Respondent tend to corroborate the witnesses
for the General Counsel. I am convinced that the violence
was started by the pickets and finished by the car
occupants. The beer-drinking friends of picket Hayden
engaged in the misconduct, along with other pickets, with
full knowledge of Williams and Ritz with no apparent
effort to stop it. As noted, above, this makes the Union
responsible.
Discussions and Conclusions
I find Respondent violated Section 8(b)(l)(A) of the Act
by threatening employees with physical harm if they
crossed the picket line, throwing a rock at a truck as it
crossed the picket line, restraining employees from entering
the plant, and assaulting employees who refused to honor
the picket line.
Section 8(b)(1)(A) of the Act makes it an unfair labor
practice to coerce or restrain employees in the exercise of
their right to engage in or refrain from engaging in
protected concerted activity. It is, of course, a violation of
this section for a union or its agents to physically assault an
employee for attempting to cross a picket line. International
Longshoremen's and Warehousemen's Union, Local No. 6
(Pacific Abrasive Supply Co.), 182 NLRB 329, 334-336;
N.L.R.B. v. UMW, District 2, 418 F.2d 240 (C.A. 3, 1969).
It is similarly unlawful to threaten employees with physical
harm for crossing the picket line, or to block employees'
ingress to the employer's property. District 50, Allied and
Technical Workers, Local 14055 (Austin Co.), 198 NLRB
No. 179; International Brotherhood of Boilermakers, et al.,
Local 696 (The Kargard Company), 196 NLRB 645. As
noted earlier, the Board has also found it to be unlawful to
throw rocks at vehicles as they passed through the picket
line. General Drivers and Dairy Employees, Local Union 563,
183 NLRB 1023.
I shall fashion a remedy for the foregoing unfair labor
practices to include an order which requires the Respon-
dent to cease and desist from violating Section 8(b)(1)(A)
of the Act by throwing rocks at trucks or other vehicles as
they cross Respondent's picket lines, threatening employ-
ees with physical harm for crossing Respondent's picket
lines, blocking employees ' ingress to the Company's
property, and assaulting employees as they attempt to cross
the picket line.
CONCLUSIONS OF LAW
1. The Charging Party is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening employees with physical harm if they
crossed the picket line, throwing a rock at a truck as it
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crossed the picket line, restraining employees from entering
the plant, and assaulting employees who refused to honor
the picket line, Respondent has violated Section 8 (bx1)(A)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Charging Party described in section II, above , have a close,
intimate , and substantial relationship 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.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(1XA) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
In view of the nature of the unfair labor practices
committed , I am of the opinion that the commission of
similar unfair labor practices may be reasonably anticipat-
ed, I shall therefore recommend that Respondent be
ordered to cease and desist from infringing in any manner
upon the rights guaranteed its employees by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
and pursuant to Section 10(c) of the Act, I hereby issue the
following:
ORDER2
Respondent , its officers , agents , and representatives,
shall:
1. Cease and desist from:
(a) Throwing rocks at trucks or other vehicles as they
cross Respondent's picket lines.
(b) Threatening employees with physical harm for
crossing Respondent 's picket lines.
(c) Blocking employees ' ingress to company property
and assaulting employees as they attempt to cross
Respondent 's picket lines.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations , to 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.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post in its office in Baltimore , Maryland, and in the
plant of Charging Party, it willing, copies of the attached
notice marked "Appendix."s Copies of said notice, on
forms provided by the Regional Director for Region 5,
after being duly signed by Respondent , shall be posted by
it for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to members of Respon-
dent and employees of Charging Party are customarily
posted . Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered , defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we have violated the law and has ordered us
to post this notice.
WE WILL NOT throw rocks at trucks or other vehicles
as they cross our picket lines.
WE WILL NOT threaten employees with physical
harm for crossing our picket lines.
WE WILL NOT block employees from going through
our picket lines.
WE WILL NOT assault employees as they attempt to
cross our picket lines.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees 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 or to
refrain from engaging in such activities.
WAREHOUSE , RETAIL AND
MAIL ORDER EMPLOYEES
LOCAL UNION No. 590,
AFFILIATED WITH THE
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
WAREHOUSE, RETAIL AND MAIL ORDER EMPLOYEES 811
This is an official notice and must not be defaced by Any questions concerning this notice or compliance with
anyone. its provisions may be directed to the Board's Office.
This notice must remain posted for 60 consecutive days Federal Building, Room 1019, Charles Center, Baltimore,
from the date of posting and must not be altered , defaced, Maryland 21201, Telephone 301-962-2822.
or covered by any, other material.