Allied Industrial Wkrs. of America, Loc. 681

National Labor Relations Board - Board Decisions

Feb 10, 1969

174 N.L.R.B. 389 (N.L.R.B. 1969)

ALLIED INDUSTRIAL WKRS. OF AMERICA, LOC. 681
Allied Industrial Workers of America , Local 681,
AFL-CIO and Smith Engineering Works ( Division
of Barber-Greene Company ). Cases 30-CB-216
and 30-CC-85
February 10, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 11, 1968, Trial Examiner William
Seagle issued his Decision in the above-entitled
proceeding, finding that 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 attached Trial Examiner's Decision.
Thereafter, only the General Counsel filed
exceptions to the Tiial Examiner's Decision.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in these cases, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, as herein modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act , as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that Respondent , Allied
Industrial Workers of America, Local 681,
AFL-CIO, Milwaukee , Wisconsin , its officers,
agents, and representatives , shall take the action set
forth in the Trial Examiner's Recommended Order,
'After issuance of the Trial Examiner's Decision, the Charging Party
requested that the unfair labor practice charges in these cases be
withdrawn . Respondent , supporting the Charging Party's request , asserts
that the parties have executed a collective-bargaining agreement and, that
in connection therewith , they had agreed to withdraw pending unfair labor
practice charges . It also asserts that the unfair labor practices found herein
occurred at the beginning of the strike and that since there is no evidence
of recurrence , the Charging Party 's request for withdrawal should be
granted . General Counsel opposes granting the request to withdraw the
charges contending that the violations found herein were "of serious and
continuing nature ," and that the execution of a collective-bargaining
agreement by the parties neither dissipates the effect of the unfair labor
practices nor obviates the need for a remedial order Upon the entire
record, including the General Counsel ' s opposition to the withdrawal
request, that request is hereby denied
'In the absence of exceptions by Respondent , we adopt pro forma the
Trial Examiner's findings that Respondent violated Section 8(b)(4)(i)(B),
8(bX4)(u )( B), and 8 (b)(i)(A) of the act.
389
as herein modified:
1. Delete paragraph 2(b) of the Trial Examiner's
Recommended Order and substitute the following
therefor:
"(b) Sign and mail to the Regional Director for
Region 30 sufficient copies of the said notice to be
furnished by him, for posting by Smith Engineering
Works (Division of Barber-Greene Company),
Lupinski, Inc., Paul J. Gruneau Company, or any of
their subcontractors, if willing."
2. Delete the heading- of the Trial Examiner's
notice attached to the Trial Examiner's Decision
and substitute the following therefor:
TO ALL MEMBERS OF ALLIED INDUSTRIAL
WORKERS OF AMERICA, LOCAL 681, AFL-CIO AND
ALL EMPLOYEES OF SMITH ENGINEERING WORKS
(DIVISION OF BARBER-GREENE COMPANY), LUPINSKI,
INC., PAUL J. GRUNEAU, AND THEIR
SUBCONTRACTORS.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM SEAGLE, Trial Examiner. Upon a charge filed
in each case by Smith Engineering Works (hereinafter
referred to as Smith) on July 5, 1968; a complaint issued
by the Regional Director of Region 30 of the Board on
July 31, 1968, in which it was alleged that the Respondent
had violated Section 8(b)(4)(i), (ii)(B) and Section
8(b)(1)(A) of the Act, and the answer of the respondent
denying the commission of any unfair labor practices, I,
the duly designated Trial Examiner, heard this case at
Milwaukee, Wisconsin, on August 26 and 27, 1968.
Subsequent to the hearing counsel for the General
Counsel and for the respondent filed briefs with the Trial
Examiner.
Upon the record so made and in view of my
observation of the demeanor of the witnesses, I hereby
make the following findings of fact:
1. THE RESPONDENTS
Allied Industrial Workers of America, Local 681,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act
II. THE EMPLOYERS INVOLVED
Smith is a Wisconsin corporation which maintains its
offices and plant at 532 East Capitol Drive, which is at
the corner of North Holton Street, Milwaukee, Wisconsin.
Smith is engaged in the manufacture of aggregate
machinery, consisting of mining, pit and quarry
equipment.
During the past calendar year, which is a representative
period, Smith sold and shipped in interstate commerce,
i.e., to points outside the State of Wisconsin, products
valued in excess of $50,000.
Lupinski, Inc., and Paul J. Gruneau Company
(hereinafter called Lupinski and Gruneau, respectively),
are engaged in Milwaukee, Wisconsin, as general
contractors in the building and construction industry.
It does not appear whether Lupinski and Gruneau are
engaged in commerce or whether their activities affect
commerce, but it is apparent that the operations of Smith
174 NLRB No. 61
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affect commerce, and meet the Board's jurisdictional
standards, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. Factual Findings
There are two basic issues in the present proceeding.
The first is whether the union violated Section 8(b)(4)(i)
and (ii)(B) of the Act by picketing a gate at a construction
site reserved by Smith for contractors and subcontractors
with whom the union had no dispute. The second is
whether the union also violated Section 8(b)(i)(A) of the
Act by various acts of restraint or coercion in the course
of its picketing.
The Smith plant, which occupies an area of
approximately 7 acres, is surrounded by a wire mesh fence
approximately 8 feet in height that is surmounted by three
strands of barbed wire. The plant measures approximately
855 feet on North Holton Street, and approximately 390
feet on East Capitol Drive. Access to the plant is obtained
through four gates Gate 1, which gives the office
employees access to the front parking lot, and is known,
therefore, as the parking lot gate, is located on East
Capitol Drive.' Gate 2, the first gate on North Holton
Street, is adjacent to the plant's lumber shed, and is
known as the lumber receiving gate, since it is used for
unloading lumber trucks. Gate 3, the next gate to the
north, is the main gate of the plant, and is used by trucks
making deliveries of material to the plant, and by
employees who drive to work, to gain access to the
parking area.' Gate 4, the next gate, approximately 100
feet to the north of Gate 3, is denominated the
contractors' gate (it will be referred to hereinafter as the
reserved gate). It was established in 1964 or 1965 when an
addition to the plant was being constructed but it was
subsequently closed and padlocked.
In May 1968, work began on a capital improvements
program that was to cost approximately $500,000. It
included four projects that consisted either of new
structures or improvements in existing structures of the
plant. These four projects were (1) the construction of a
yard warehouse, (2) offices for the foremen of the
fabricating division, (3) the construction of an erection
floor area within the main building, and (4) the
replacement of the existing heating system by a system of
radiant heat, but this also involved, apparently, the
demolition of the heating plant building, part of the area
of which was to be used for the erection floor addition.
Lupinski was the general contractor for the
construction of the yard warehouse and the offices for the
foremen of the fabricating division. Smith was the general
contractor for the erection floor project and for the
conversion of the heating system but it had sublet the
contract to Gruneau. Lupinski and Gruneau in turn
employed a considerable number of subcontractors. Thus
the demolition work was done by Bub Hillier; the concrete
footings and masonry by Norman Breest; the roofing by
the Christiansen Roofing Company, and the electrical
work by the Midwestern Electric Company. The various
projects were so set up that normal plant operations
'There is also a parking area to the east of the plant that is leased from
the Milwaukee Journal This parking area is located to the east of the
plant and south of the plant ' s railroad track siding Access to the parking
lot is obtained through a private roadway that is known as Bituminous
Drive
'Employees can also walk into the plant through the entrance to the
plant on East Capitol Drive
would not have to be curtailed,3 but the contractors were
allowed at first to use Gate 3, the main gate of the plant
on North Hilton Street.
In the month of June, Smith was attempting to
negotiate a labor contract with Local 681 but the
negotiations broke down, and the union called a strike
that commenced on July 1 and that is still in effect. At
this time the construction projects were in various stages
of completion, and on Sunday, June 30, Frank M. Allen,
vice president and works manager of Smith, instructed
Kenneth C. Ehlert, the manufacturing coordinator of
Smith, and John Kuhlenbeck, a foreman, to erect a sign
at Gate 4, reserving this gate exclusively for the use of the
contractors engaged in the various projects. Ehlert could
not leave his house that day, however, and nothing was
done about erecting the sign until early the following
morning when the strike commenced.
At about 6:15 a.m. of July 1, Ehlert and Kuhlenbeck
made a sign by nailing together some boards on which
they lettered in black ink the words. "This gate for the
exclusive use of building tradesmen only." They posted
this sign at the gate between 7:15 and 7:30 a.m. and in
addition they posted there by about 8:30 a.m. a metal sign
that had been in use during the 1964 to 1965 period of
construction. This sign had white lettering on a green
background, the lettering was: "Lupinski, Incorporated
This gate for building contractors only. Employees use
south gate " By the morning of July 2, both the wooden
and the metal sign had disappeared from the gate. Ehlert,
when he noticed this, made and posted by 8 a.m. at the
gate another wooden sign that read: "This gate for
building contractors only." Employees use south gate."
The first wooden sign reappeared, however, on July 3, and
both wooden signs have remained posted at the reserved
gate ever since then.
Smith also took various other measures to publicize the
strike and the availability of the reserved gate. On July i
and 2, Ehlert, pursuant to Allen's instructions, notified all
the contractors and subcontractors of the setting up of the
reserved gate. At about 10.30 a.m. of July 1, Allen and
Dennis G. Lindner, the company's attorney, took steps to
notify the union's picket captains, one of whom was John
J. Jasinski, the vice president of the union, of the setting
up of the reserved gate; they also gave Jasinski a list of
the contractors who would be using that gate, and told
him that only contractors would be allowed to make use
of that gate.
In addition, Lindner contacted Norbert Kane, the
business agent of Local 681, and told him of the
establishment of the reserved gate. Kane declined to
discuss the matter with Lindner, however, and referred
him to the firm representing the union in the present
proceeding Lindner attempted unsuccessfully that day to
reach Richard Goldberg, a member of the firm, but the
latter telephoned to Lindner the following day, and
'There is some evidence that prior to July t a few of the plant employees
did some minor work on the construction projects. Thus, Lawrence
("Larry") J Johnson, the president of Local 681, who is a setup welder,
testified that he spent about 7 hours cutting pipes off the boiler in the
boiler room, and that three other employees named Lee Schwartz, James
Moore and Lawrence Mercie, spent a day cleaning up the boiler room
after the chimney had been torn down. John J Jasinski, the vice president
of Local 681, who is a maintenance electrician, testified that he spent
about 35 hours removing electrical conduits and air Imes , as well as in
providing temporary wiring for a crane in the area It should be noted also
that although Midwestern Electric had done the electrical work involved in
the manufacture of some of the Smith Company products it has not
engaged in Smith work since the strike began
ALLIED INDUSTRIAL WKRS. OF AMERICA, LOC. 681
Lindner discussed with him the legal aspects of the
reserved gate situation, and attempted to impress upon
him the importance of having the striking employees
refrain from picketing at that gate.
The Smith employees were also notified of the setting
up of the reserved gate, and instructed not to make use of
it. On coming to work at 6:45 a.m. on July 2, Ehlert
learned that the lock of Gate 3, the main receiving gate,
had been plugged full with paper and that it could not be
opened. Consequently, some of the employees had driven
through the reserved gate. Ehlert immediately contacted
about 90 percent of the employees and instructed them
not to use this gate On July 3, the next day, all Smith
employees received written notices informing them of the
setting up of the reserved gate, and the notice was also
posted on the plant bulletin board. The notice read as
follows
NOTICE'
Our company has a reserved gate in the north end of
our parking lot for the exclusive use of contractors that
are engaged in our new building program.
Under no circumstances are any of our employees to
use this gate either walking or driving.
(Signed) F. M. Allen
As an added precaution, Smith posted a sentry at the
contractors gate to stop any trucks or personnel who were
not working for contractors from coming through that
gate.
The strike of July 1 was fully effective. Only
management personnel and office employees continued on
the job. Approximately 165 employees went out on strike,
and the overwhelming majority of them engaged in
picketing on the first day of the strike Allen estimated
the number of pickets to be between 125 and 150. Vincent
C. Tr-awicki, the personnel director of Smith, who
maintained a daily strike log during the first month of the
strike, estimated the number of pickets on the first day of
the strike to be between 110 and 130. The pickets
marched around the gates of the plant in a circle in a
continuous line, many of them carrying picket signs
announcing that Local 681 was on strike against Smith.
Allen estimated that there were more than 20 pickets that
marched back and forth across each of the plant gates,
while Trawicki estimated that there were perhaps 40
pickets at the parking lot gate on East Capitol Drive, and
perhaps the same number at Gate 3, the main gate of the
plant, a number at the lumber gate, and 7 or 8 pickets at
the reserved gate. Ehlert estimated the number of pickets
at the reserved gate on the first day of the strike to be
about 12; these walked back and forth in front of the gate
in a line. The pickets-spoke to persons attempting to enter
the plant but did not attempt to block their ingress or
egress. Trucks could not get into the plant through the
reserved gate on the first day of the strike in any event
because an employee of the Coca Cola plant across the
street from Smith had parked his car in the morning
directly across the reserved gate, and did not return to
move it until about 5 p.m. when the picketing ended for
the day. The picketing had commenced as early as 6:15
a.m. at the reserved gate. The number of pickets gradually
declined as the strike wore on. Allen estimated that on the
second day of the strike the number of pickets who
picketed at the gates of the plant were reduced to about
100, with 10 to 15 pickets at each gate. Ehlert testified
that on the second day of the strike there were 9 to 10
391
pickets in the vicinity of the reserved gate but that only 2
of them actually stood at the gate entrance. During the
first few weeks of the strike at least, Local 681 maintained
an "observer" at the reserved gate almost continuously.
This observer did not carry a picket sign but he was under
instructions from the union to station himself at the
reserved gate with a notebook and take down full
particulars concerning any truck whose driver was
attempting to pass through the gate into the plant,
including the license plate number of the truck, the name
of the company involved, and the nature of the cargo.
During the first 2 weeks of the strike, the reserved gate
was constantly picketed, or there were pickets always
available nearby whenever a truck or car attempted to
enter or leave through the gate As the vehicle approached
it would be surrounded by the pickets congregating
around the gate. The result was that there were a
considerable number of incidents involving attempts to
interfere with the passage of trucks or cars through the
reserved gate, and the action of the pickets sometimes
caused truckdrivers to refuse to make deliveries to the
struck plant, or to refuse to remove material from the
plant. The incidents, were as follows.
The Norman Breest incident : Breest was a
subcontractor of Lupinski. The incident involving the
Breest truck occurred apparently, on July 2, the second
day of the strike when mass picketing was still going on.
On this day there were two pickets stationed at the
reserved gate but when the Breest truck attempted to drive
through the gate between 8 30 and 9 a.m., they were
joined by other pickets until the pickets surrounding the
truck numbered almost 10, including Larry Johnson, the
president of the union and another Smith employee whose
name is Zlab The pickets called the truckdriver a scab
and indulged in various obscenities, and he did not enter
the gate
The Midwestern Electric incident: This incident
occurred probably on July 2 but certainly during the first
week of the strike. Early in the afternoon a truck of the
Midwestern Electric Co., Inc., drove up to the reserved
gate where two pickets were stationed, one of them being
a Smith employee by the name of Sheehan As they saw
the truck arrive, Johnson the president of the union, and
four or five other pickets came over from the main gate of
the plant, where they had been stationed, and joined the
two pickets at the reserved gate. The pickets talked to the
truckdriver and asked him not to enter the plant. But
Allen and Trawicki, who were present at the time,
intervened and the truckdriver went through the gate and
entered the plant In the conversation between Johnson
and the company representatives at the time, the latter
attempted to explain to Johnson that the truckdriver, who
was not engaged in unit work, had a right to' enter the
plant but Johnson proceeded nevertheless to ask the
truckdriver for his name, and took down the license plate
number of his truck. Johnson also told the truckdriver
that he meant it when he said that he did not want anyone
going through the gate.4
The Merget Sand and Gravel incident: On July 5, there
were two Breest employees who had entered the plant
through the reserved gate to wait for the arrival of a
Merger Sand and Gravel truck which was carrying
4Both Allen and Trawicki testified with reference to the Midwestern
Electric incident and where accounts differ, I accept the testimony of the
latter, since I believe his recollections to be clearer and more exact than
those of Allen
39 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backfill for the footings of the welding department office
Apparently, there had been no pickets at the reserved gate
when they entered but they were seen by the pickets at the
main gate who hollered to them to ask what they were
doing going to work. One of the pickets, Gene Hooser,
the secretary-treasurer of Local 681, walked over to the
reserved gate, and carried on a conversation with the two
Breest employees through the fence in a further effort to
dissuade them from working. They disappeared for a
while but soon returned and informed Hooser that Breest
had told them it was all right for them as construction
people to go through the reserved gate. They then
disappeared again into the plant.
When the expected Merget Sand and Gravel truck
arrived, there was a picket by the name of Harold
McCarthey at the reserved gate but he was soon joined by
9 or 10 pickets from the main gate of the plant. The
pickets did not need on this occasion to ask the driver of
the Merget truck, whose name was Beamon, not to go
through the reserved gate because that gate was blocked
by a truck which the Breest foreman, when he had arrived
at the plant, had parked parallel to the gate entrance. The
driver of the Merget truck stopped parallel to the Breest
truck, and Gene Hooser talked to the Merget driver and
asked the latter not to go through the reserved gate The
driver of the Merget truck pulled away from the gate, and
departed to the cheers of the pickets. Since the Breest
employees could not work without backfill, they also left
the plant premises, and no work was done by them that
day.
On July 8, Beamon did succeed in making a delivery of
sand and gravel to the plant but he was stopped by pickets
as he was coming out of the plant, and one of the pickets
told Beamon that he was "accumulating a lot of trouble
by coming back in there," and that other pickets were
threatening to engage in "wapping heads."
The Gruneau and Lupinski incidents: On or about July
9, a Gruneau truck attempted to gain access to the plant
through the reserved gate The pickets walked in front of
the truck and talked to the driver, who backed up and
drove away A Lupinski truck was also turned away from
entering the plant.
The Bub Hillier incident: Bub Hillier, the demolition
subcontractor, employed the Misfit Wrecking Corporation
to remove the brick from the wrecked chimney, which was
over the old heating plant. On July 9, between 10 and
10:30 a.m., three Misfit employees went to the Smith
plant with two dump trucks and a front-end loader to
effect the removal of the debris from the chimney. When
they arrived at the reserved gate, they were stopped by
pickets who took their names and the license plate
numbers of their vehicles, and told them that "they did
not appreciate them going through the picket line." One
of the three Misfit men was George Resch, the vice
president of Misfit, who testified that when he arrived at
the reserved gate there was "a little guy with a cigar in his
mouth" who waved his picket sign at him and called him
"a no-good, goddamn scab and everything else." This did
not deter Resch, however, from going through the gate
and entering the plant Indeed, Resch made two round
trips that day in and out of the plant. When he went
through the gate the second time, one of the pickets, who
was kneeling down, wrote down the license plate number
of his truck A rock was also thrown at Resch's truck,
and pickets shouted that there were ways of getting him.
The Langer Roofing incident: Langer Roofing and
Sheet Metal, Inc., was a roofing subcontractor. On or
about July 10, Smith was expecting the arrival of a
Langer Roofing truck, and Ehlert was out watching for its
arrival As the driver of the truck was proceeding north
on Holton Street toward the reserved gate, the pickets at
the main receiving gate set up a clamor and shouted for
the driver to come over and stop. The driver stopped on a
grassy strip between the sidewalk and the curb on Holton
Street, and talked to the pickets. Donald Zlab, who was
one of the pickets, told the Langer driver that he would
have to take his name and the license plate number of his
truck, and also told the driver that "he could go through
the contractors gate but that he did not know how he
would get out." The foreman on the Langer truck asked
who was in charge of the plant, and Ehlert, who was
standing there, introduced himself, and convoyed the
foreman through the gate. When in the plant, the foreman
called his union business agent and his company, after
which he came out and drove through the reserved gate,
completing his trip
The John Hennes Trucking incident: The John Hennes
Trucking Company was employed by Gruneau, the
heating plant subcontractor, to move two boilers within
the Smith plant premises on July 15. There were five
Hennes employees sent to the Smith plant that day in
connection with the removal of the boilers. There were
two ironworkers named Nowack and Koshen; a crane
operator named Kopas; Jack Crittenden, a truckdriver;
and Harold Link, a foreman. The two ironworkers rode to
the Smith plant in a Pontiac convertible owned by
Koshen; Link and Crittenden rode in the latter's
tractor-trailer; and the crane operator came, of course, on
his crane. The crane operator and the two ironworkers
arrived at the Smith plant early in the morning and Link
and Crittenden followed later at about 9:30 a.m. On their
arrival, the crane operator and the two ironworkers in the
Pontiac convertible were stopped at Gate 3, the main gate
on Holton Street, by a group of pickets who included
Johnson, the president of Local 681, who told the Hennes
employees that they could not enter the plant even
through the reserved gate A still larger group of pickets,
numbering 20 to 25, came over and surrounded the crane
and the Pontiac convertible. Trawicki, who was on the
scene, asked the drivers of these vehicles to park along the
curb between the main gate and the reserved gate, and
they did so. When Crittenden arrived with Link, he
double-parked south of the main gate, partially blocking
the street. The other Hennes employees spoke to Link and
Crittenden and they decided that they could not cross the
picket line without some proper authorization Link and
Crittenden walked across the street to the Coca Cola
plant and called their office to discuss the problem. They
werw told they could enter through the reserved gate for
construction workers. Link and Crittenden returned and
talked to the ironworkers, who decided not to enter the
plant, and since the others could not work without them,
they all left. After they left, Johnson sent two pickets, one
of them carrying a picket sign, over to the reserved gate,
just to demonstrate that it could be picketed. These two
pickets were McCarthey and John Daly.
There were also two incidents that did not involve the
reserved gate, or the construction work being performed.
Both incidents occurred on July 3.
In the early afternoon of that day a Consolidated
Freightways truck, which was driven by Lee Morris
Scheel, was to take on a load of machinery parts. It
arrived at the main gate of the plant on Holton Street and
was stopped by a group of pickets, numbering between 7
and 10, who including Johnson, and one of them told
Scheel that he would not be able to hold his job very long.
ALLIED INDUSTRIAL WKRS. OF AMERICA, LOC. 681
Johnson spoke to Scheel who told the former that since he
was a dispatcher, a supervisory employee, he would not
honor the picket line and the pickets responded by telling
Scheel. "Well, you're going to have to get the cops to get
you in " Soon the police arrived and Scheel was able to
enter the plant. About 3 hours later, after Scheel had
unloaded his truck, and taken on some freight, he had
even more trouble in getting out of the plant He
attempted to leave by the gate on East Capitol Street, and
was surrounded by a sizable group of pickets, numbering
perhaps as many as 15. Scheel attempted to inch forward
a bit at a time but could not make sufficient progress.
August Miller, one of the pickets, flung a sign at him that
hit the rear view mirror of his tractor, and Eli Gonzales
and Norbert Lupinski, two other pickets, threatened to
pull him out of his cab, and actually yanked the door
open. But nobody attempted to drag him out of the cab.
The pickets called him names, however, and Johnson told
him: "Well, in order to get out, you're going to have to
get the cops. You got the cops to get you in, so you're
going to have to get the cops to get you out." At this
point a Smith supervisor - apparently Trawicki - came
over and suggested that Scheel back into the plant and
wait until the police arrived. They came in about 20
minutes, and was able to leave the plant.
The second incident of that day involved Richard C.
Bosshard, who worked for Smith as an "expeditor,"
whose job was to insure the efficient flow of materials
through the plant. At about 4:30 p.m. Bosshard left the
Smith plant with the mail. As he was going out through
the East Capitol Drive gate, several pickets were blocking
the gate. Because the traffic was heavy at this time on
East Capitol Street, Bosshard had to wait in any event for
an opportunity to enter the stream of traffic. One of the
pickets put his feet on the bumper of his car and pushed
the bumper up and down. The pickets also shouted at him
and called him a scab. As he entered the stream of traffic,
one of the pickets shouted at him: "You'll be sorry." The
names of the pickets involved in this incident were Olson,
Skocil, Herman Hasse and Ralph Tafoya.
As a result of the interruption of deliveries during the
strike, the various projects involved in the Smith capital
improvements program were delayed in greater or lesser
degree. The erection floor project, which was between 5
and 10 percent complete at the time of the strike, is now
only 115 percent complete. The scheduled completion date
of this project was December 1968 but, as of the time of
the hearing, it was not expected to be completed until
January or February of 1969. The warehouse extension,
which was less than 10 percent complete at the time of the
strike, and is now approximately 10 percent complete, was
scheduled to be completed in July 1968. The projects have
been also delayed by a ready-mix concrete strike but this
strike did not begin until the third week in July.
B. Concluding Findings
It is, apparently, the contention of counsel for the
respondent that there was no unlawful picketing at the
reserved gate except during the first few days of the strike
when "confusion" prevailed, and even this picketing he
would write off as "technical" or "insubstantial." The
evidence does not support, however, such a casual view of
the picketing, which was in fact serious and deliberate.
The record contains many instances of oral inducement,
and of threats to the employees of neutral employers,
attempting to enter the plant through the reserved gate.
393
I his gate was properly and adequately posted even during
the first day of the strike from a very early hour in the
mornings but, apart from the posting, the union's officers
and attorneys had been informed by the Smith
management of the availability of the reserved gate, which
had been closed prior to the strike, and the reopening of
the reserved gate served to emphasize its availability.
Nevertheless, the numerous pickets literally swarmed
about all the gates, including the reserved gate. While the
number of pickets was somewhat less during the second
day of the strike, and declined still further thereafter,
there never came a time when the reserved gate was left
unmolested. There was nearly always at least one picket
at the gate or at least one observer, whose real function
appears to have been to signal to the pickets at the other
gates to rush over and prevent anyone from gaining
entrance to the plant through the reserved gate. This
constituted a pattern of conduct that occurred repeatedly.
Smith maintained, to be sure, a sentry at the reserved
gate, in order to make sure that no unauthorized persons
would make use of this gate and the union, apparently,
felt that this gave it the right to have an "observer"
stationed at the gate for the same purpose. But I am not
called upon to decide the abstract question whether the
"observer" was as legitimate as the sentry but the
question whether the actual behavior of the observers was
lawful. Quite apart from the fact that they acted in
concert with the acknowledged pickets, they kept,
concededly, a record of full particulars of all vehicles and
their drivers who went through or attempted to go
through the reserved gate. This procedure was inherently
coercive, since it is obvious that the information sought
and obtained could be used by the union for purposes of
reprisal. The observers did nothing, moreover to inform
the, employees of the neutral contractors of their right to
gain access to the plant through the reserved gate. The
union's witnesses made much of the fact that the observers
were instructed to remain "deaf and dumb" but this
instruction, in the light of their actual behavior, only
aggravated their unlawful conduct. I find, therefore, that
the so-called observers at the reserved gate were engaged
in unlawful activity in the nature of picketing.'
The conduct of the strikers who were picketing the
reserved gate of the Smith plant on the first day of the
strike is not rendered more lawful because the entrance
happened to be blocked in any event by a car of a neutral
employee, or because, after the strike had been in a
progress for a few weeks, work was delayed because a
strike halted the delivery of cement. These entirely
fortuitous events do not excuse the striking employees who
did everything in their power to block access to the plant
and to halt deliveries thereto.
It is also no defense that on the second day of the
strike many Smith employees, apparently, entered the
plant through the reserved gate due to the fact that the
lock had been stuffed with paper the night before, so that
entry through that gate would be prevented. It is difficult
'The allegation made in paragraph 10 of the respondent 's answer that
the signs erected by Smith "contained different wording at different times
and that the instructions did not have sufficient clarity to clearly reserve it
for the sole usage of people uninvolved in the Party's labor dispute" is
either immaterial or frivolous . It would make no difference that the
legends on the various signs were not in identical language, so long as each
legend was clear in itself This was undoubtedly true in the present case
'See Getreu v Local 1347, IBEW, 66 LRRM 2084 (D C Ohio), June
20, 1967
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to perceive how the lock would be stuffed by someone
wholly unconnected with the strikers. In any event, Smith
immediately took steps to prevent any further use of the
reserved gate by its employees, and the striking employee
continued to picket at the reserved gate in defiance of the
purpose for which it had been established.
It is clear that the respondent union violated Section
8(b)(4) (i) and (ii)(B) of the Act by its picketing at the
reserved gate. The governing cases would seem to be
Local 761, Electrical Workers v NL.R.B (General
Electric Co ), 366 U.S. 667 and United Steelworkers v
N.L.R.B. (Carrier Corp.), 376 U.S. 492, as interpreted
and applied by the Board in Building & Construction
Trades Council etc. (Markwell and Hartz, Inc.), 155
NLRB 319 It has long been established that contractors
and subcontractors on building construction projects are
as to each other's labor disputes neutrals who are entitled
to the protection of the Act's secondary boycott
provisions.' The union was, therefore, under an obligation
to conduct its picketing of Smith consistently with the
right of the neutral employers to remain uninvolved in its
dispute with Smith, and it would be engaged in primary
picketing only so long as its pressure was directed
towarding deterring those engaged in contributing to the
primary employer's operations, whether or not these were
suppliers, carriers or employees of the primary employer.'
In the Markwell and Hartz case, the union contended that
these rules were no longer applicable to a building trades
union involved in a dispute with one of several contractors
on a common construction site, in view of the Supreme
Court's decision in the General Electric case. The union
asserted that since it confined its picketing to the primary
employer's premises, all of its picketing, including
picketing at the reserved gate, was lawful primary activity.
But the Board held that the position of independent
contractors was analogous to that of the various
employers on a common situs; that the union, despite the
fact that its picketing was limited to the primary
employer's premises, was under an obligation to minimize
the impact of its picketing in accordance with the Moore
Dry Dock criteria; and that by picketing at the reserved
gate the union had engaged in unlawful activity. The
narrow point decided by the Court in the General Electric
case was that the separate gate doctrine could not be
applied in situations in which the independent contractors
were engaged in performing work that was related to the
normal operations of the struck employer, and that was of
a kind that would, if done, when the plant was engaged in
its normal operations, necessitate curtailing those
operations. While it is true that in the present case the
Midwestern Electric Company had in the past done
electrical work involved in the manufacture of some Smith
company products, no such work has been done by this
company since the commencement of the strike. As for
the work performed by Smith company employees on the
construction projects, this, too, antedated the strike, and
seems to have been so insubstantial, moreover, that it can
be treated as de minimis.'
There can be no doubt but that the union also violated
Section 8(b)(l)(A) of the Act by its mass picketing, by a
number of acts of violence against persons seeking to gain
'See Denver Building & Construction Trades Council . 341 U S 675,
689-900
'See United Steelworkers v. N L R B . ( Carrier Corp ), supra at 499
'See Local 761 etc . supra, at p. 682
access to the plant, or to leave the same, and by making
either open or veiled threats against such persons. The
incidents involved are, too, serious to be treated as lightly
or as cavalierly as counsel for the respondent would treat
them. The responsibility of the union for the unlawful
conduct is plain, moreover, since it is evident that it had
the approval of the highest officers of the union, including
the union president, and secretary-treasurer, who were
themselves involved in some of the incidents
IV. THE REMEDY
Having found that respondent has engaged in certain
unfair labor practices, I shall recommend that it be
required to cease and desist from such practices, and take
certain affirmative action in order to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. Smith Engineering Works (Division of
Barber-Greene Company) is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Allied Industrial Workers of America, Local 681,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By inducing or encouraging individuals employed by
Lupinski, Inc., Paul J. Gruneau Company, and various of
their subcontractors to engage in a strike or in a refusal in
the course of their employment to transport materials or
perform services with an object of forcing or requiring
said persons to cease doing business with Smith
Engineering Works, the respondent has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(b)(4)(i)(B) and Section 2(6) and (7) of the Act.
4. By threatening, coercing, and restraining Lupinski,
Inc., Paul J. Gruneau Company and various of their
subcontractors with an object of forcing said persons to
cease doing business with Smith Engineering Works, the
respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(4)(ii)(B) and
Section 2(6) and (7) of the Act.
5. By engaging in mass picketing at the gates of the
Smith Engineering Works plant, by blocking ingress into
and egress from the said plant, by engaging in physical
violence or verbal threats against employees of Smith
Engineering Works or other persons, the respondent,
through its agents, engaged in unfair labor practices
affecting commerce within the meaning of Section
8(b)(1)(A) and Section 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend that respondent, Allied Industrial
Workers of America, Local 681, AFL-CIO, its officers,
agents, and representatives, shall.
1. Cease and desist from.
(a) Inducing or encouraging individuals employed by
Lupinski, Inc., Paul J. Gruneau Company, and various of
their subcontractors to engage in a strike or in a refusal in
the course of their employment to transport materials or
perform services with an object of forcing or requiring
said persons to cease doing business with Smith
Engineering Works,
ALLIED INDUSTRIAL WKRS. OF AMERICA, LOC. 681
(b) Threatening, restraining, or coercing Lupinski, Inc.,
Paul J. Gruneau Company and various of their
subcontractors, where an object thereof is to force or
require said persons to cease doing business with Smith
Engineering Works under circumstances prohibited by
Section 8(b)(4)(ii)(B) of the Act.
(c) Posting an observer at or near the reserved gate of
the Smith Engineering Works plant for the purpose of
signalling to any pickets at the other gates of the plant, or
for the purpose of obtaining information about entries or
deliveries into the plant.
(d) Engaging in mass picketing of the gates of the
Smith Engineering Works plant; blocking ingress into or
egress from the said plant; or engaging in physical
violence or verbal threats against employees of Smith
Engineering Works or other persons;
2. Take the following affirmative action in order to
effectuate the policies of the Act:
(a) Post at their business offices and meeting halls in
Milwaukee, Wisconsin, copies of the attached notice
marked "Appendix."' ° Copies of said notice to be
furnished by the Regional Director for Region 30, shall,
after being duly signed by the union's representative, be
posted by the union immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the union to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail to the Regional Director for Region
30 sufficient copies of the said notice, to be furnished by
him, for posting by Lupinski, Inc., Paul J. Gruneau
Company, or any of their subcontractors, if willing.
(c) Notify the said Regional Director, in writing, within
20 days of the date of the receipt of this Decision and
Recommended Order, what steps have been taken by the
respondent to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner" in the notice. In the further event
that the Board's Order be enforced by a decree of a United States Court
of Appeals, the words "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify said Regional Director in
writing within 10 days from the date of this Order what steps the
respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF AND TO ALL
EMPLOYEES OF LUPINSKI, INC., PAUL J. GRUNEAU,
AND THEIR SUBCONTRACTORS
395
Pursuant to a Recommended Order 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 than
WE WILL NOT in any manner prohibited by Section
8(b)(4)(B) of the Act induce or encourage employees of
Lupinski, Inc., Paul J. Gruneau Company and their
subcontractors, to engage in a strike, or in a refusal in
the course of their employment to transport materials
or perform services or threaten, coerce, or restrain the
said employers by striking, or picketing where in either
case an object thereof is to force or require said persons
to cease doing business with Smith Engineering Works
(Division of Barber-Greene Company).
WE WILL NOT post an observer at or near the
reserved gate of the Smith Engineering Works plant for
the purpose of signalling to any pickets at the other
gates of the plant, or for the purpose of obtaining
information about entries or deliveries into the plant.
WE WILL NOT engage in mass picketing of the gates
of the said Smith Engineering Works plant; or block
ingress into or egress from the said plant, or engage in
physical violence or verbal threats against employees of
the said Smith Engineering Works or other persons; or
commit any other acts prohibited by Section 8(b)(1)(A)
of the Act.
ALLIED INDUSTRIAL
WORKERS OF AMERICA,
LOCAL 68 1, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 2nd Floor
Commerce Building, 744 North 4th Street, Milwaukee,
Wisconsin 53203, Telephone 414-272-3861.