Coopers International Union

National Labor Relations Board - Board Decisions

Jan 7, 1974

208 N.L.R.B. 175 (N.L.R.B. 1974)

COOPERS INTERNATIONAL UNION
Coopers International Union of North America,
AFL-CIO, and Local Union No. 42, Coopers
International Union of North America , AFL-CIO
and Independent Stave Company, Inc. Cases
17-CB-1105 and 17-CB-1137
January 7, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On August 31, 1973, Administrative Law Judge
Alvin Lieberman issued the attached Decision in this
proceeding. Thereafter, the General Counsel 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, and
conclusions of the Administrative Law Judge only
insofar as they are consistent herewith.
The General Counsel excepts to the failure of the
Administrative Law Judge to find 8(b)(1)(A) viola-
tions by conduct antedating an informal settlement
agreement and by the conduct of Respondents'
agent, Ernest Higdon, postdating that settlement
agreement. He also contends that the Administrative
Law Judge erred in ordering that the settlement be
reinstated and in not recommending an appropriate
remedial order. We agree with only so many of the
General Counsel's contentions as are indicated
below.
On February 13, 1973, while leaving work, Betty
Koehler, a nonstriking employee, was approached by
Ernest Higdon, president of Respondent Internation-
al Union, who was on the picket line. Higdon greeted
Koehler with the words "hi scabby." After making
an obscene suggestion, Higdon told Koehler that "if
this was [my] picket line [I] would bust [you] in the
mouth . . . . Bring your [old man ] around and I will
bust him in the mouth."
The Administrative Law Judge held that these
remarks by Higdon did not violate Section
8(b)(1)(A). He found that Higdon did not mean what
he said and that, consequently, his remarks constitut-
ed mere "picket line rhetoric." We disagree. We
believe that the main thrust of the remarks readily
suggested physical violence, and that their threaten-
ing nature was not negated, as the Administrative
175
Law Judge reasoned, by Higdon's failure to then
carry out his threat. Furthermore, these remarks
emanated from the president of the International
Union while on the picket line and were uttered in
the absence of any like statements or provocation by
the nonstriking employee. It may well have been
incredible to Koehler that she was in a position of
safety because Higdon implied that this was not his
picket line. In any event, we perceive this "assur-
ance" of Higdon as meaningless in view of the fact
that the picket line was cosponsored by the Respon-
dent International Union, and that he said it while
there in his capacity as the highest official of that
organization.
Although we find an 8(b)(1)(A) violation where the
Administrative Law Judge did not, we are in
agreement with his comment that in any event this
isolated incident did not furnish a sufficient basis to
reopen the settlement agreement, particularly since
this was the only violation found against the
Respondent Unions during a period of at least 5
months of the strike, which extended from the date
of approval of the settlement agreement by the
Regional Director on December 29, 1972, to the time
of the trial in May 1973, when the employees were
still on strike. See Medical Manors, Inc., d/b/a
Community Convalescent Hospital and Community
Convalescent East, 199 NLRB 840, and The Lion
Knitting Mills Company, 160 NLRB 801. However,
unlike the Administrative Law Judge, we view the
violation herein as of sufficiently serious conse-
quence, particularly since committed by the presi-
dent of the Respondent International Union, to
warrant a remedial order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondents
Coopers International Union of North America,
AFL-CIO, and Local Union No. 42, Coopers
International Union of North America, AFL-CIO,
Lebanon, Missouri, their officers, agents, and repre-
sentatives, shall:
1. Cease and desist from:
(a) Restraining and coercing employees of the
Independent Stave Company, Inc., in the exercise of
their right to refrain from joining or assisting the
above-designated labor organizations by threatening
them with violence.
(b) Restraining or coercing employees in any like
or related manner in the exercise of their rights
208 NLRB No. 41
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed by the National Labor Relations Act, as
amended.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at their respective business offices and
meeting halls copies of the attached notice marked
"Appendix." I Copies of said notice, on forms
provided by the Regional Director for Region 17,
after being duly signed by Respondent's authorized
representatives, shall be posted by Respondents
immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to members are customarily posted. Reasona-
ble steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Sign and mail sufficient copies of said notice to
the Regional Director for Region 17 for posting by
the Company at all locations where notices to its
employees are customarily posted, if said Company
is willing.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps Respondents have taken to comply
herewith.
COOPERS INTERNATIONAL
UNION OF NORTH
AMERICA , AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
LOCAL UNION No. 42,
COOPERS INTERNATIONAL
UNION OF NORTH
AMERICA , AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 616-Two Gateway Center, Fourth at
State, Kansas City, Kansas 64101, Telephone
816-374-4518.
DECISION
1 In the event that this 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
No'rICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees of
the Independent Stave Company, Inc., in their
exercise of their right to refrain from joining or
assisting our Union by threatening them with
violence.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights guaranteed by the National Labor
Relations Act.
1 By order issued simultaneously with the complaint , Cases 17-CB-1105
and 17-CB-1137 were consolidated
2 During the trial, par 6(b) of the complaint was withdrawn and pars
6(c) and (e) were dismissed . In his brief the General Counsel urges me to
reconsider my dismissal of par 6(e) and I have done so Having
reconsidered and having taken into account the General Counsel's
STATEMENT OF THE CASE
AI.vIN LIEBERMAN, Administrative Law Judge: The trial
in this proceeding, with all parties except the charging
party represented, was held before me in Lebanon,
Missouri, on May 30 and 31, 1973. upon the General
Counsel's complaint dated April 17, 1973, issued pursuant
to charges filed between October 17 and November 30,
1972, in Case 17-CB-1105 and on February 21, 1973, in
Case 17-CB-11371 by Independent Stave Company, inc.
(Company), and Respondents' answer.2 In addition to
alleging that respondents engaged in unfair labor practices
the complaint sets forth that on December 29, 1972, in
Case 17-CB-1105, a settlement agreement entered into by
Respondents3 was approved by the Regional Director for
Region 17 of the National Labor Relations Board
(Regional Director) and that this approval was withdrawn
on April 10, 1973. In their answer, Respondents not only
deny the material allegations of the complaint, but also
assert that the approval of the settlement agreement was
improperly withdrawn.
In general the issues litigated were whether Respondents
violated Section 8(b)(1)(A) of the National Labor Rela-
tions Act, as amended (Act).4 Particularly, the principal
questions for decision are as follows:
arguments , I am not persuaded that the evidence offered by the General
Counsel sufficiently established the allegations of par 6(e). Accordingly. I
adhere to my original ruling.
3 Respondents in Case 17-CB-1105 are identical to those in Case
17-CB-1137
4 Set forth below are the relevant provisions of Sec 8(b)(1) of the Act
(Continued)
COOPERS INTERNATIONAL UNION
1. Is each respondent liable for unfair labor practices
allegedly committed by the other during a strike by both
against the Company?
2. Assuming an affirmative answer to the foregoing
question did respondents, before entering into the settle-
ment agreement in Case l.7-CB-1105, violate Section
8(b)(1)(A) of the Act by, as the complaint alleges,
threatening, and taking various forms of reprisal against,
nonstriking employees; and by blocking nonstriking
employees from entering the Company's plant?
3. Again assuming an affirmative answer to question 1,
above, did Respondents, after entering into the settlement
agreement in Case 17-CB-1105, violate Section 8(b)(1)(A)
of the Act by referring to nonstriking employees in a
derogatory manner; by provoking an altercation with a
nonstriking employee; by making an obscene suggestion to
a nonstriking employee; and by threatening to assault a
nonstriking employee and her husband?
4. Was the approval of the settlement agreement in
Case 17-CB-1105 properly withdrawn?
Upon the entire record,5 upon my observation of the
witnesses and their demeanor while testifying, and having
taken into account the arguments made and the able briefs
submitted,6 I make the following:
FINDINGS OF FACT7
1. JURISDICTION
The Company, a Missouri corporation, is engaged at
Lebanon, Missouri, in the manufacture and sale of barrels.
During 1972, a representative period, the Company's
interstate purchases and sales exceeded $50,000. Accord-
ingly, I find that the Company is engaged in commerce
within the meaning of the Act and that the assertion of
jurisdiction over this matter by the National Labor
Relations Board (Board) is warranted. Siemons Mailing
Service, 122 NLRB 81, 85.
II. THE LABOR ORGANIZATION INVOLVED
Coopers International Union of North America,
AFL-CIO (International) and Local Union No. 42,
Coopers International Union of NorthAmerica, AFL-CIO
(Local), Respondents in this proceeding, are labor
organizations within the meaning of Section 2(5) of the
Act.
(b) It shall be an unfair practice for a labor organization or its agents-
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7
Insofar as pertinent, Sec 7 provides
Sec 7 Employees shall have the right to self-organization, to
form, loin, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any or all of
such activities
s Issued simultaneously is a separate order correcting obvious inadvert-
ent errors in the stenographic transcript of this proceeding Included in this
order are corrections sought by the General Counsel in a motion to which
no opposition was filed
6 Although all the arguments of the parties and the authorities cited by
111. INTRODUCTION
177
Briefly, this case is concerned with alleged violations of
Section 8(b)(1)(A) of the Act by Respondents during a
strike against the Company. Respondents' claimed unfair
labor practices, according to the complaint, occurred
during two time periods separated by a settlement
agreement entered into by Respondents and approved by
the Regional Director. The complaint further asserts that
by their subsequent conduct Respondents violated this
agreement and that for this reason its earlier approval by
the Regional Director was withdrawn.
The General Counsel contends that Respondents'
postsettlement conduct, as well as that which preceded the
settlement agreement , violated Section 8(b)(1)(A) of the
Act and that the former constituted sufficient basis for the
Regional Director' s action in withdrawing his approval
from the settlement agreement . The General Counsel
further contends that, in the circumstances of this case,
each Respondent is liable for unfair labor practices
committed by the other.
Respondents deny the commission of any unfair labor
practices, both before and after the settlement agreement.
Since they had not engaged in any postsettlement viola-
tions of the Act, Respondents' argument continues, the
Regional Director's approval of the settlement agreement
was improperly withdrawn. Finally, Respondents take the
position that the General Counsel has not established that
either is responsible for any unfair labor practice which,
notwithstanding their denial, may have been committed by
the other.
IV. PRELIMINARY FINDINGS AND CONCLUSIONS8
A. History of Collective Bargaining Between the
Company and Respondents
In 1955 Respondent International was certified by the
Board as the collective-bargaining representative of the
employees of the Company involved in this proceeding.9
This certificate does not appear to have been revoked or
superseded.10
Notwithstanding that the certification was limited to
Respondent International, the Company has recognized
Respondents jointly as the collective-bargaining represent-
ative of the employees in the unit set forth in the
certificate. From the time of its certification, Respondent
them, whether appearing in their briefs or made orally at the trial , may not
be discussed in this Decision , each has been carefully weighed and
considered
r Respondents' motion made at the conclusion of the trial, upon which I
reserved decision, is disposed of in accordance with the findings and
conclusions set forth in this Decision
8 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to Respondents ' alleged unfair labor
practices and to the conclusions to which they may give rise To the extent
that the contentions of the parties relate specifically to the findings made
here, they will be treated here, although they, as well as the findings, may
again be considered in other contexts
9 See Independent Stave Company, Inc, 148 NLRB 431, 434
is In 1968 Respondent International was certified by the Board for a
unit of the Company's employees not included in the first certificate See
Independent Stave Company, 175 NLRB 156
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International has bargained with the Company and
Respondent Local has participated in the negotiations.11
At no material time has there been a collective
agreement in effect between the Company and Respon-
dents covering the employees here concerned, the last such
contract having expired on June 30, 1972. Since then
Respondents and the Company have engaged in negotia-
tions for a new contract.
B. The Strike
On September 18, 1972, during the foregoing negotia-
tions between Respondents and the Company, Respon-
dents struck the Company. This strike, accompanied by
picketing, was still in progress at the time of the trial.12
At intervals since the beginning of the picketing, officers
of each Respondent have been at the picket line. While
there, they have given instructions to the pickets as to the
manner in which the picketing was to be carried on.
From time to time since the strike's inception, meetings
have been held at which the striking employees were
informed by representatives of Respondents of the prog-
ress of Respondents' negotiations with the Company. At
one such meeting, conducted in mid-October 1972, the
financial secretary of Respondent Local and a vice
president of Respondent International were in attendance.
At about the same time, the same two union officers
visited the home 6° an employee who had abandoned the
strike for the purpose of persuading him to rejoin it and
resume picketing. In addition, in this connection, on
February 13, 1973, the president of Respondent Interna-
tional, engaged in similar efforts regarding two other
employees who had also abandoned the strike.
C. The Liability of Each Respondent for Conduct
Engaged in by the Other During the Strike
Briefly summarizing the findings contained in the
previous two sections of this Decision, it appears that
Respondent International was certified as the collective-
bargaining representative of employees of the Company;
that after the certification the Company recognized both
Respondents jointly as the bargaining agent of those
employees, that as such joint agent both Respondents have
bargained with the Company for many years; that since
June 30, 1972, the date on which the last contract between
Respondents and the Company expired, both Respondents
have negotiated with the Company for a new contract; that
both Respondents struck the Company during the course
of these negotiations, obviously for the purpose of bringing
the Company to terms; that, during the strike, both
Respondents mfoirmed employees of the progress of their
negotiations with the Company; and that both Respon-
dents sought to persuade employees who had gone back to
work to rejoin the strike. It further appears that officers of
each Respondent have given instructions to pickets
concerning the manner in which the picketing, which has
been in progress since the inception of the strike, should be
conducted.
In view of the foregoing, I find that the strike and its
attendant picketing constituted a joint venture engaged in
by both Respondents in support of a common objective;
namely, the procurement of an acceptable collective
agreement from the Company. Miami Plating Co., 144
NLRB 897, 903. This being so, I conclude, in agreement
with the General Counsel, that each Respondent is liable
for any unfair labor practices which may have been
committed by the other during the course of the strike.
Tennessee Wheel and Rubber Company,, 166 NLRB 165,
167.
D. The Settlement Agreement
As earlier noted, between October 17 and November 30,
1972, the Company filed charges in Case 17-CB-1105
alleging violations of Section 8(b)(1XA) of the Act by
Respondents. On December 27, 1972, Respondents entered
into an agreement in settlement of those charges whereby
they undertook to refrain from conduct proscribed by
Section 8(b)(1)(A).13 This agreement was, 2 days later,
approved by the Regional Director.
On February 21, 1973, the Company, in Case
17-CB-1137, filed a charge alleging that Respondents had
engaged in postsettlement violations of Section 8(b)(1)(A)
of the Act. On April 10, 1973, the Regional Director's
approval of the agreement settling the charges in Case
17-CB-1105 was withdrawn. This was followed by the
issuance of the instant complaint alleging as unfair labor
practices not only Respondents' conduct since the settle-
ment agreement, but also their prior conduct.
The law concerning the circumstances warranting the
setting aside of a settlement agreement and giving
consideration to presettlement conduct as evidence of
violations of the Act is clear. "It is the Board's established
practice not to consider as evidence of unfair labor
practices conduct of a Respondent antedating a settlement
agreement, unless the Respondent . . . has engaged in
independent unfair labor practices since the settlement." 14
Furthermore, where there is only an isolated postsettle-
ment unfair labor practice or where there is an absence of
substantial unlawful conduct following a settlement agree-
ment , the settlement agreement will not be set aside and no
findings will be made concerning the presettlement
conduct. Medical Manors, Inc. etc., 199 NLRB 1093; Lion
Knitting Mills Company, 160 NLRB 801, 804.
With these precepts in mind the allegations of the
complaint dealing with Respondents' asserted postsettle-
ment violations of the Act will be considered. Should it
develop that these allegations are not well founded, no
consideration will be given to the complaint 's averments
concerning Respondents' presettlement conduct.
11 See Independent Stave Company, Inc., 148 NLRB 431. 434.
12 As stated earlier, the trial in this proceeding was held on May 30 and
31, 1973.
13 The settlement agreement , in evidence as G. C. Exh . 11, recites that
"by entering into this agreement [Respondents do] not admit any violation
of the .. Act."
14 Larrance Tank Corporation, 94 NLRB 352, 353. The Board's
modification of its Larrance Tank doctrine appearing in Joseph 's Landscap-
ing Service, 154 NLRB 1384 , enfd . 389 F .2d 721 (C.A. 9. 1968). has no
applicability here.
COOPERS INTERNATIONAL UNION 179
V. 'IHE ALLEGED UNFAIR LABOR PRACTICES
A. Facts Concerning Respondents ' Alleged
Postsettlement Violations of the Act'-,
The complaint alleges that on February 13, 1973, two
incidents took place. each involving a different employee,
during the course of which several violations of Section
8(b)(l)(A) of the Act were committed. My findings
concerning these events are set forth below.
1. The Betty Koehler incident
In December 1972, after discussing the matter with her
husband, Betty Koehler abandoned the strike. As she left
the Company's plant upon the completion of her work on
February 13, 1973, Koehler was approached by Ernest
Higdon, president of Respondent International, who was
at the picket line in front of the building.
Greeting Koehler as "hi scabby," Higdon asked her why
she had returned to work. Koehler replied that she had
done so because she "needed the money." In response,
Higdon, using gutter language, suggested an obscene
manner in which Koehler's husband "could make some
money."
Higdon followed this by telling Koehler "if this was [my]
picket line [I] would bust [you] in the mouth. Bring your
[husband] around and I will bust him in the mouth."
2. The Emory Savage incident
Some minutes later, Emory Savage, who, like Koehler,
had returned to work during the strike, came out of the
Company's building. Ernest Higdon, the president of
Respondent International, who was still at the picket line,
intercepted Savage and tried to persuade him to rejoin the
strike.
Being unsuccessful in this, Higdon told Savage that his
working while "other people are out here on the picket line
, .. makes [him] a scab." Thereupon, Savage hit Higdon
with sufficient force to cause him to fall to the ground.
After striking Higdon, Savage, seemingly by way of a
boast, announced to Koehler, who, although still in the
vicinity, apparently had not witnessed the encounter
between Savage and Higdon, that he "just knocked Higdon
out into the street." 16
15 It will be remembered that the settlement agreement was entered into
on December 27, 1972, and approved by the Regional Director 2 days later
15 My findings concerning the Koehler-Higdon and the Savage-Higdon
incidents are based upon , and the quotations appearing in the text are taken
from. undenied testimony given by Koehler and Savage.
17 As has earlier been noted, Respondents' strike against the Company
started on September 18, 1972, and was still in progress on May 31, 1973
rs In IV.LRRB v Longview Furniture Company, 206 F 2d 274 (C A 4.
1953), the court of appeals did not agree with the Board and remanded
Longview I for further consideration "[F]or reasons which," the Board
stated , "are not pertinent to the ultimate decision in Ithe] case " the Board
decided to accept the remand and not seek Supreme Court review of the
decision of the court of appeals. In doing so, however, the Board made it
plain that it had not departed from the precepts it laid down in Longview I
and that it would "apply the principle laid down by the court in its decision
as the rule of law for this case only." Longview Furniture Company, 110
NLRB 1734, 1738 (Longview II).
is The "utterances" to which the Board made reference in Longview I
included "trash." "scabs," "damn bitch," "scabby son of a bitch." and other
B. Contentions and Concluding Findings Concerning
Respondents ' Postsettlement Violations of the Act
A usual concomitant of a strike is the use of abusive and
intemperate language by workers on both sides of the
economic dispute. Also usual is name-calling, including
references to nonstrikers by strikers as scabs and other
more invidious and opprobrious terms. This appears to be
especially true where composures have become more
frayed than they normally would be as the result of a long
drawn-out strike, such as is the situation here.17
Concerning this phenomenon the Board stated in
Longview Furniture Company, 100 NLRB 301, 304 (Long-
view I ), that the language of striking employees, even if
"neither polite nor moderate, must be regarded as an
integral and inseparable part of their picket and strike
activity, for which the Act affords them protection." 18 To
this the Board added:
Although the Board does not condone the use of
abusive and intemperate language , it is common
knowledge that in a strike where vital economic issues
are at stake , striking employees resent those who cross
the picket line and will express their sentiments in
language not altogether suited to the pleasantries of the
drawing room or even to courtesies of parlimentary
disputation . Thus, we believe that to suggest that
employees in the heat of picket -line animosity must
trim their expression of disapproval to some point short
of the utterances here in question , would be to ignore
the industrial realities of speech in a workaday world
and to impose a serious stricture upon employees in the
exercise of their rights under the Act.19
Following the rationale of Longview I, the Board in Chas.
Weinstein Company, Inc., 123 NLRB 590, 591-592, al-
though again stating that it did not condone the use of
"vile and obscene language by strikers . . . in or about the
picket line," refused to find that such conduct violated
Section 8(b)(1)(A) of the Act.20
In view of the foregoing, while, like the Board in similar
situations, I do not condone the obscenity addressed to
Koehler, a nonstriking employee, by Higdon. the president
of Respondent International, I do not find it to have been
violative of Section 8(b)(1)(A) of the Act.21 Nor do I find
violative of Section 8(b)(1)(A) Higdon's use of the word
like epithets Longview 1, supra, p 336.
20 In Weinstein the "vile and obscene language" which the Board did not
find to have been violative of Sec 8(b)(1)(A) consisted, among others, of the
following terms "scabs," "tramps," "bastards." "whore," "sluts ," "skunks,"
and "whoremasters." Weinstein, supra pp. 602-603.
2i On brief the General Counsel argues that Higdon's "gross
remarks . constitute[d]. an assault" upon Koehler. This contention is
farfetched and finds no support in the cases cited by the General Counsel
Thus, in Daily Press, inc, 188 NLRB 475. an employee disfavored by a
union was physically assaulted in the plant in which he worked by union
adherents. In Gimbel Brothers, Inc, 100 NLRB 870, 877 , union agents
invaded a retail store and created such chaos that clerks were unable to tend
to customers The Board held that this type of "harassment of sales
personnel on the selling floors . even though it was unattended by . .
actual physical obstruction" was as effective in causing them to stop work
as placing "gags over their mouths for pinioning ] their arms" would have
been . Accordingly, the Board found that Sec. 8(b)(I)(A) had been violated
In Gimbel Brothers, however, the Board specifically pointed out that what
the union agents did in the store was "very different from mere moral
(Continued)
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"scabby" in greeting Koehler, or his calling Savage,
another nonstriking employee, a "scab ." Yankee Trader,
Inc., etc., 191 NLRB 528; Chas. Weinstein Company, Inc.,
123 NLRB 590, 602-603; Perry Norvell Company, 80
NLRB 225, 242; Sunset Line and Twine Company, 79
NLRB 1487, 1505.
Next to be considered are the complaint's allegations
concerning an "altercation," assertedly provoked by
Higdon, the president of Respondent International, which
took place during his encounter with Savage, In this
regard, the General Counsel argues that the "altercation"
restrained and coerced Savage in the exercise of his right,
guaranteed in Section 7 of the Act, to refrain from
supporting Respondents' strike and was, therefore, viola-
tive of Section 8(b)(I)(A) I do not agree.
Regardless of who, or what, provoked the "altercation,"
it did not consist of an attack upon Savage by Higdon. It
consisted, rather, of an attack upon Higdon by Savage,
followed by Savage's boastful announcement that he had
"just knocked Higdon out into the street."
Taking into account all the evidence concerning this
matter, including the fact that in the "altercation" Savage,
not Higdon, was the aggressor, I cannot adopt the General
Counsel's argument that the "altercation" coerced or
restrained Savage in his Section 7 right to abandon
Respondents' strike. Accordingly, I conclude that, the
"altercation" was not violative of Section 8(b)(1)(A) of the
Act.
The remaining postsettlement unfair labor practice
alleged in the complaint is the threat uttered by Higdon,
the president of Respondent International, to "bust
[Koehler, a nonstriking employee, and her husband ] in the
mouth."
Considered in context, it is obvious that Higdon did not
mean what he said. Had Higdon really intended to hit
Koehler because she had forsaken the strike it seems to me
that he would not have threatened to do so, but would have
pressure orally exerted upon nonstriking employees by a picket line at a
plant entrance" (Emphasis supplied.) If nothing else in Gimbel Brothers
differentiates it from the case at bar, the last sentence does
22 1 have given consideration to the result which would have followed
had I come to a contrary conclusion concerning the threat made by Higdon,
the president of Respondent International Had I found it to have been an
unfair labor practice, it would have been the only one committed by
done so right then and there. Under similar circumstances,
a more serious threat, whose effectuation was likewise not
intended, was regarded as mere "picket line rhetoric."
N L. R B. v. Hartmann Luggage Company, 453 F.2d 178,
185 (C.A. 6, 1971).
1 conclude, therefore, that Higdon's threat to Koehler
did not violate Section 8(b)(I)(A) of the Act.
Having found that Respondents engaged in no postset-
tlement unfair labor practices, findings concerning the
presettlement unfair labor practices alleged in the com-
plaint may not be made. Vermeer Manufacturing Company,
187 NLRB 888, 892. Accordingly, I shall recommend that
the complaint be dismissed and that the Regional Direc-
tor's approval of the settlement agreement, improvidently
withdrawn under the circumstances, be reinstated.22
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) of the Act.
2. Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
3. Each Respondent is liable for unfair labor practices
which may have been committed by the other during the
strike against the Company carried on by Respondents.
4. Respondents did not engage in any unfair labor
practices after December 27, 1972, the date they entered
into an agreement, approved by the Regional Director on
December 29, 1972, settling the unfair labor practices
alleged in the charges filed in Case 17-CB-1105.
5. The Regional Director's approval of the settlement
agreement described in Conclusion of Law 4, above, was
improvidently withdrawn.
[Recommended Order omitted from publication.]
Respondents since entering into the settlement agreement Being, thus,
isolated , it would not have warranted the entry of a remedial order. Twin-
Kee Manufacturing Co, inc, 130 NLRB 614, 616 Nor, in view of its
isolation and obvious insubstantiality, would it have justified setting aside
the settlement agreement Medical Manors, Inc, etc, 199 NLRB 840. Lion
Knitting Mills Company. 160 NLRB 801. 804