General Iron Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1180 (N.L.R.B. 1976)

1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Iron Corp and Shopmen's Local No 455, In-
ternational Association of Bridge , Structural, & Or-
namental Iron Workers , AFL-CIO and Local 917,
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America, Par-
ty in Interest
Shopmen 's Local Union No 455, International Asso-
ciation of Bridge , Structural , & Ornamental Iron
Workers , AFL-CIO and General Iron Corp Cases
29-CA-4159, 29-CA-4343, 29-CB-2009, and 29-
CB-2152
June 18, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On December 31, 1975, Administrative Law Judge
Benjamin B Lipton issued the attached Decision in
this proceeding Thereafter, the General Counsel, the
Respondent Union, and the Respondent Employer
filed exceptions and supporting briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order
i All parties have excepted to certain credibility findings made by the
Administrative Law Judge It is the Board s established policy not to over
rule 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 (1950) enfd 188 F2d 362 (CA 3 1951) We have carefully
examined the record and find no basis for reversing his findings
In reaching his conclusion that Leroy Howard s hours were discriminato
rely reduced the Administrative Law Judge erred in refusing to find that
Leroy Howard was the only heliarc welder in Respondent Company s plant
Such a finding accords with Howard s own testimony and is supported by
other evidence in the record We are nevertheless of the view that Howard s
status as sole heliarc welder in the plant is not determinative on the issue of
discrimination against him We consequently find that Respondent Compa
ny was not prejudiced by the Administrative Law Judge s error
2 Member Walther would find the following additional 8(b)(l)(A) viola
tions
1 On the morning of January 8 1976 Union Agent Johan Bel blocked
the entrance to one of the company driveways with his car This finding is
based on the uncontroverted testimony of Henry Accarmo
2 About 3 p in on the afternoon of January 10 Union Agent John Zito
blocked a company van driven by Joseph Accarino as it tried to enter the
Company s garage
3 On or about January 13 union agents including Johan Bel threatened
to physically injure company employee Jesus Oquendo This finding is
based on the uncontroverted testimony of Oquendo
4 At the end of January Union Agent Bel blocked company officials
from entering a street leading to the company plant by parking his car in the
We cannot agree with our dissenting colleague that
any of the alleged incidents of strike misconduct cit-
ed by him-even if they occurred-rise individually
or collectively to the level of an 8(b)(1)(A) violation
As to the alleged blocking of a driveway by Union
Agent Bel on the first day of the strike, the Adminis-
trative Law Judge basically discredited Henry
Accarino's testimony in this regard (see fn 66 of his
Decision) H,- further found, however, that even if
this conduct occurred no evidence existed for con-
cluding that it was in support of the strike or intend-
ed to obstruct ingress or egress to and from the plant
As to the January 10 incident in which Union Agent
Zito allegedly blocked a company van driven by Jo-
seph Accarino as it tried to enter the company ga-
rage, the Administrative Law Judge properly found
that this incident was clearly provoked by
Respondent's more serious and dangerous conduct
and, hence, cannot support a violation of Section
8(b)(1)(A) of the Act The third alleged incident cited
by our colleague is based on the discredited testimo-
ny of Oquendo Even if Oquendo's testimony regard-
ing the alleged threat were credited, we agree with
the Administrative Law Judge that the circumstances
as described by Oquendo are too vague to establish
that the threat was directed at him and, more impor-
tantly, if so, it was condoned by Bel As to the last
alleged incident of misconduct cited by our col-
league-the brief blocking of a company car-we are
in full agreement with the Administrative Law Judge
that this allegation "strains at a gnat " Daniel A Do-
novan, Charles Brennick and John Brennick, Co Part-
ners doing business under the trade name and style of
Daniel A Donovan d/b/a New Fairview Hall Convales-
cent Home, 206 NLRB 688 (1973)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Shopmen's Local Union No
455, International Association of Bridge, Structural
& Ornamental Iron Workers, AFL-CIO, Brooklyn,
New York, its officers, agents, and representatives,
and Respondent General Iron Corp, Brooklyn, New
York, its officers, agents, successors, and assigns,
middle of the street This finding again is based on the uncontroverted
testimony of Oquendo
However Member Walther agrees that in view of the circumstances in
which the strike occurred during and after extensive unfair labor practices
by the Company the Union s unfair labor practices are not on balance so
severe as to require the forfeiture of a bargaining order under Herbert Bern
stein Alan Bernstein Laura Bernstein a copartnership d/b/a Laura Modes
Company 144 NLRB 1592 (1963)
224 NLRB No 152
GENERAL IRON CORP 1181
shall take the action set forth in the said recommend-
ed Order
DECISION
STATEMENT OF THE CASE
Local 917, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, here-
in called the Party in Interest, Teamsters Local 917, or
Local 917
Local 840, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, here-
in called Teamsters Local 840 or Local 840
BENJAMIN B LIPTON, Administrative Law Judge On Au-
gust 4 through 8, 11, and 12, 1975,1 a hearing was conduct-
ed before me in Brooklyn, New York, upon a consolidated
complaint by the General Counsel,2 alleging that Respon-
dent Company engaged in certain violations of Section
8(a)(1), (2),(3),(4), and (5) of the Act, and that the Respon-
dent Union engaged in certain violations of Section
8(b)(1)(A) of the Act Both Respondents deny commission
of the alleged unfair labor practices At the hearing, Team-
sters Local 917, the Party in Interest, specially appeared to
indicate that it has no representative, contractual, or other
interest in this proceeding and will not further participate
therein Posthearing briefs filed by the General Counsel,
Respondent Company, and Respondent Union have been
duly considered 3
Upon the entire record in the cases, and from my obser
vation of the demeanor of the witnesses, I make the follow-
ing
FINDINGS OF FACT
I JURISDICTION
Respondent Company maintains its principal place of
business in Brooklyn, New York, where it is engaged in the
manufacture, sale, and distribution of metal beds, food
trays, baskets, and related products During the year pre-
ceding issuance of the consolidated complaint, the Compa-
ny had a direct outflow in interstate commerce valued in
excess of $50,000 It is admitted by both Respondents, and
I find, that the Company is engaged in commerce within
the meaning of the Act and that Board jurisdiction in these
cases may properly be asserted 4
II THE LABOR ORGANIZATIONS INVOLVED
Each of the following is found to be a labor organization
within the meaning of the Act
Shopmen s Local Union No 455, International Associa-
tion of Bridge , Structural & Ornamental Iron Workers,
AFL-CIO, herein called the Respondent Union or Local
455
i All dates are sequentially in 1974 and 1975 unless otherwise specifically
noted
2 Underlying the consolidated complaint the charges were filed as fol
lows in Case 29-CA-4159 on December 23 in Case 29-CB-2009 on Janu
ary 10 in Case 29-CB-2151 on May 22 and amended on June 2 As to each
of the various charges service was effected within 3 days of the filing On
June 30 an order was issued consolidating the complaints as to these
charges At the hearing the consolidated complaint was amended to incor
porate the charge filed on May 7 in Case 29-CA-4343 which is now shown
in the caption
3 Respondent Company did not brief the 8(b)(1)(A) issues relying on
anticipated coverage in General Counsel s brief
4 See General Iron Corp 218 NLRB 770 (1975)
III THE UNFAIR LABOR PRACTICES
A Essential Issues
1 Under Section 8(a)(1)-whether the Company, prior
to the Board election on November 27, involving only Lo-
cal 455 threatened employees with discharge, plant closure,
and other reprisals, promised and granted employees wage
increases and other benefits, and subsequent to the incon-
clusive election, threatened employees that it would never
sign a contract with Local 455
2 Under Section 8(a)(2)-whether the Company, on
various dates before and after the election, permitted
Teamsters Local 917 to hold organizational meetings with
employees on plant premises during working hours, and
whether it recognized, and entered into a collective-bar-
gaining agreement with, Local 917-notwithstanding that
Local 917 did not represent an uncoerced majority of the
employees and that a question concerning representation
was pending before the Board on Local 455's petition
3 Under Section 8(a)(3)-whether the Company, subse-
quent to the election, discriminatorily laid off employee
Andrews and substantially reduced the working hours of
employee Howard
4 Under Section 8(a)(4)-whether the Company re-
duced Howard's employment because he had testified on
behalf of the General Counsel in a prior complaint case
against the Company
5 Under Section 8(a)(5)-whether the Company en-
gaged in a refusal to bargain with Local 455, based on
evidence of a card majority obtained subsequent to the
election, and with reliance upon the Gissel and Trading
Port cases 5 to justify a bargaining order
6 Under Section 8(b)(1)(A)-whether Local 455 en-
gaged in alleged acts of misconduct on the picket line dur
ing a strike which began on January 8 and continues to
date
7 Whether, on the principle of the Laura Modes case,6
Local 455 engaged in such strike misconduct as to require
the sanction of withholding an otherwise appropriate bar-
gaining order
B Prior Board Decision and Factual Setting
In General Iron Corp, 218 NLRB 770 (1975), certain vio-
lations were found by the Board relating to the employees
organizational activities on behalf of Local 455-which are
directly pertinent to the issues in the instant case 7 A broad
5 N L R B v Gissel Packing Co Inc 395 U S 575 (1969) Trading Port
Inc 219 NLRB 298 (1975)
6 Herbert Bernstein Alan Bernstein Laura Bernstein a co partnership
d./b/a Laura Modes Company 144 NLRB 1592 (1963)
7 Certain of these facts are duplicated in the present record
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cease-and-desist order was issued In substance, the basic
facts and findings in the earlier case are chronologically set
forth below 8
In 1971, a 3-year collective-bargaining contract, to ex-
pire on August 22, 1974, was executed between the Compa-
ny and Teamsters Local 840 covering a production and
maintenance unit
In the spring of 1974, employee activity commenced at
the Company's plant to obtain representation by Local
455 Leroy Howard made the initial contact with Local
455 Thereafter, on several occasions during the spring, Bill
Nuchow, secretary-treasurer of Local 840, had conversa-
tions in the shop with Howard-"the chief Local 455 activ-
ist " It was found that, in Nuchow's remarks to Howard,
Local 840 vilolated Section 8(b)(1)(A) by threatening em-
ployees with discharge and with bodily harm if they con-
tinued their activities in seeking to supplant Local 840 as
bargaining representative
On May 23, Local 455 sent a telegram to the Company
in which it claimed overwhelming majority representation,
offered to have its claim verified by an impartial agency,
and requested a bargaining meeting
On May 28, 29, and 30, the Company laid off employees
Escalera, Gonzales, Agusto, Carrion, Reyes, and Bailey-
in violation of Section 8(a)(3)
In conversations during May and June, Henry Accarino,
company president, made threats to Howard that he would
close the plant and that he would not sign a contract with
Local 455, if lawfully selected by the employees, and he
directed Howard to leave Local 455 alone and stop influ-
encing the employees in its favor These were 8(a)(1) viola
tions
In conversations on May 28 or 29 and May 30, Henry
Accarino made repeated threats of discharge to Jose Pier-
etti, violating Section 8(a)(1)
In June, Mario Accarino, company secretary-treasurer,
threatened Pieretti with discharge for requesting time off to
give statements to a Board agent, and additionally created
the impression that Pieretti's Local 455 activities were un-
der surveillance Section 8(a)(1) violations
On June 3, Local 455 filed its certification petition with
the Board (Case 29-RC-2669)
On June 5, the Company discharged employee Vilcius-
violating Section 8(a)(3)
On July 8 and 15, a hearing was held at the Board on
Local 455's petition Howard and Pieretti testified in this
proceeding
On July 23, the Regional Director issued a Decision and
Direction of Election
On July 29, the Company discharged Pieretti-violating
Section 8(a)(3)
On November 27, the election was conducted in the pro-
duction and maintenance unit, with only Local 455 on the
ballot Howard was an observer for the union The results
showed that Local 455 lost the election Thereafter, Local
455 filed timely objections to the election
Within the time periods shown above, and extending be-
yond further findings pertinent to the issues in the present
case are described below
C Section 8(a)(1) and (2)
In August, before the expiration date of Teamsters Local
840's contract (on August 22),9 Nuchow of Local 840 ap-
peared in the plant accompanied, among others, by Agents
John T Burke, Jr, and one Layton of Teamsters Local
917 Mario Accarino testified that Nuchow telephoned the
Company about 2 weeks before the contract expired and
arranged to bring Burke to the plant Nuchow told him he
had been trying to negotiate with the employees on a new
contract and was not making much headway Henry Ac-
carino testified that Burke told the Company that Local
840 had turned the contract over to Local 917 And Nu-
chow informed the employees that his purpose was to have
Local 917 take the place of Local 840 as their bargaining
representative 10
From mid-August to early December, Burke conducted
numerous organizational meetings for Local 917 on the
plant premises with assembled employees substantially
during their regular working hours Michael Johnson testi
feed that, at one such time, Burke was asked why they did
not let Local 455 in the shop, and he replied that "Henry
didn't want them in" because Local 455 would put him out
of business, and it would bring in other people to work
who would replace the present employees This testimony
is not found attributable to the Company, as contended by
General Counsel, but is indicated to show that Local 917
utilized the meetings to undermine Local 455 The meet-
ings were held with prior permission of the Company with-
in its specific knowledge" Nuchow was not present at
these meetings About 2 weeks after Burke's first visit, cer-
tain employees were selected to constitute a committee
with Burke for the purpose of meeting directly with the
Company Thereafter, commencing in late August or early
September, such meetings were held, attended for the
Company regularly by Henry and Mario Accarino, and at
times by Joseph Accarino and Attorney Burton R Horow-
itz As appointed or recommended by Burke, the employee
committee initially consisted of Gildo Vargas,12 David
Murchison, Gaspar Mantano, and Leroy Howard 19 How-
ever, there were some variations in the committee member-
ship from time to time At one meeting with management
on an unspecified date, the committee requested recogni-
tion for Local 917, and Henry Accarino responded that
three unions were fighting and that he could not recognize
any of them
In September, during a meeting with the committee,
9 This agreement is not in evidence
10 E g Murchison s testimony that Burke told them Nuchow was thrown
out and he would take over as their representative
11 Mario Accarino admitted that advance permission was given to hold
the meetings both Mario and Henry Accarino admitted knowledge of the
meetings Additionally Johnson testified that from his work station he
observed that Burke went upstairs to Henry Accarino s office just before
Burke would call the employees to meetings6 Official notice is taken of the findings of fact and law in the prior case
The consolidated complaint specifically relies upon such earlier findings of
the Board and the parties at the hearing stipulated that all findings of fact ee s
in the prior case may be accepted as facts in the present case
12 Burke used Vargas as an interpreter for the Spanish speaking employ
13 Howard later withdrew from the committee infra
GENERAL IRON CORP 1183
Henry Accarmo said that, if Local 455 got in , he would
close the factory 14
On October 9, during a meeting of Burke with employees
held in the plant on working time, authorization cards for
Local 917 were signed by 17 employees 15 Burke then spoke
about a pension for employees and a $25 wage raise 16
On or about November 1, Burke held a meeting with
employees in the plant at which he proposed that they go
out on strike 17 That day a strike took place outside the
plant As variously testified, the strike lasted from a few
minutes to 1 hour Henry Accarino came out, indicated
that the Company could not take the economic loss caused
by the strike, and invited Burke and the employee commit-
tee to his office In his office, or prior thereto, he verbally
agreed to recognize Local 917
A typewritten document is in evidence bearing purport
ed signatures of 22 employees In the margin, the date is
twice shown in handwriting as "Nov 2, 1974," stricken and
replaced by "Nov 1, 1974," and initialed apparently by
Burke Other initials appear in the same margin 18 The
typewritten portion of the document states
We the undersigned employees of General Iron
Corporation, hereby authorize Local 917 International
Brotherhood of Teamsters , to assume the Collective
Bargaining Agreement from Local 840, I B of T, and
to commence negotiation on our behalf We also disa-
vow the union authorization cards signed with Local
455 Iron Workers and no longer wish to have them
represent us for the hours, wages and working condi-
tions
I find that this document was prepared by Burke, appar
ently at an earlier time as it refers to an assumption of the
expired Local 840 contract, that the full signatures thereon
were obtained by Burke on or shortly before November 1,
that Henry Accarmo was shown the signed document be-
fore the strike, and that the initialing in the margin took
place in Henry Accarino's office on November 1 after the
quick strike that day
Dated November 5, on a mimeographed form executed
by Burke and Mario Accarino, the Company recognized
"Chauffeurs, Warehousemen and Helpers" as the exclusive
representative in a production and maintenance unit and
agreed that it would promptly erter into negotiations for a
"labor agreement "
On November 20 and 21, and from December 2 through
4, the hearing in the prior case was conducted before Ad-
ministrative Law Judge Henry L Jalette Leroy Howard
testified in that proceeding on December 3
In mid-November, Henry Accarino told employee Julio
14 Credited testimony of Gildo Vargas David Murchison gave similar
testimony as to a threat to put a lock on the doors -which I place at the
same meeting testified by Vargas
15 One additional card in this series of exhibits was obtained from Ray
mond Gonzales dated September 8
i6 Testimony of Cruz
17 Some employees were apprised over the previous weekend that there
would be a strike of short duration Mario Accarino testified that Burke
advised him beforehand of the planned strike
is Gildo Vargas identified his signature and Initials Two sets of initials
show L McKay who was not a signer and appears unknown in the
record The remaining initials appear to be those of Burke Mantano Rich
and Murchison Howard and Cruz
Chmga in the shop that he "didn't like Local 455, it was a
union that demanded much " And a few days before the
election on November 27, he told Chinga that if Local 455
came in, he would suspend some employees 19
About 2 weeks before the November 27 election, at a
meeting of Local 917 with all the employees, Henry Acca-
rmo came in toward the end of the meeting He said if the
employees voted for Local 455, he was going to close up 20
On November 22, Burke announced at a meeting with
the employees in the plant that, as of December 1, they
would be getting a $25 increase
On the day of the election but preceding the balloting,
Henry Accarino approached Bennie Andrews at his work
station and said, "I could have laid you off 2 months ago,
so you know how to vote " 21
As noted above, on November 27, the scheduled election
was held with only Local 455 on the ballot 22 It lost the
election, and it filed timely objections on December 4
On December 4, the Company laid off Andrews In mid-
December, the Company substantially reduced the work-
ing hours of Howard (These alleged discriminatory acts
are treated below)
On December 13, a `Stipulation was executed by the
Company, and on December 18 by Local 455, which pro-
vides that the election of November 27 be set aside and
that a new election be conducted at a time and place to be
determined by the Regional Director General Counsel
stated on the record that, by reason of this two-party stipu-
lation, the Regional Director verbally informed the parties
that the election was set aside 23
Following the Company's explicit recognition of Local
917, it had meetings with Local 917 and the employee com-
mittee to negotiate a contract Dated December 1, a hand
written agreement provides as follows
The Employer, agrees for the first year of the con-
tract to a $25 00 across the board increase effective
Dec 1st, 1974
A wage reopener Dec 1st, 1975
A contract reopener Dec 1st, 1976
The Employer, agrees to the Group III Welfare ef-
fective Dec 1st, 1974
The Employer , agrees to the 4 cent an hour pension
effective Dec 1st, 1974
The Employer, agrees to two holidays the first year
& one holiday the 2nd year of the contract
The Employer agrees to three sick days the first year
& three sick days the 2nd year of the contract
The Employer agrees to keep the bathroom 's clean
at his expense
For General Iron For Local 917 Teamsters
(s) Henry J Accarino (s) John T Burke, Jr
The agreement was put into effect as of December 1 Burke
informed the employees of the terms However, there is
19 Credited testimony of Chinga
20 Credited testimony of Angel Cruz
21 Undemed and credited testimony of Andrews
22 On August 9 the Regional Director granted the motion of the incum
bent Local 840 to be placed on the ballot By letter dated October 16 Local
840 formally disclaimed representative interest and withdrew from partici
patron in the election
23 No formal order was issued
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uncontradicted testimony that many of the employees did
not receive the full $25 across the-board wage increase,
and that certain other agreed benefits were not implement-
ed by the Company
On December 6, at a meeting of employees in the plant
with Local 917, authorization cards for Local 917 were
signed and dated by 19 employees In addition , with this
series of exhibits , there are 12 signed cards for Local 917, 9
bearing dates from December 8 through 10, and 3 undated
In its testimony, the Company admits it had no further
communication from Local 917 since early December
About January 6, Anthony Schifano, an official of Local
455, was approached by Gildo Vargas on behalf of certain
of the employees to support a strike against the Company
Later that evening , Local 455 communicated the message
by telephone to some of the employees that a meeting
would be held outside the plant after work the next day
On January 7, about 4 45 p in, such a meeting took place
on a street corner about 350 feet from the plant, with about
22-25 employees During this meeting, as well as in
Schifano 's earlier conversations with Vargas concerning
the strike , certain dissatisfactions were expressed , including
the Company 's discrimination against employees , and its
failure to grant promised wage raises and sick leave Ap-
parently, the decision to strike was made at this time On
January 8, about 6 30 a in, the strike took form as employ
ees arrived on the scene About 25-30 employees joined the
strike that morning, during which most of them vocally
indicated their support in the presence of management
The strike has continued without interruption Through-
out, picketing has been conducted with signs carrying the
legend , as testified "Employees of General Iron Corpora-
tion On Strike, Unfair Labor Practices", and the name of
Local 455
On January 8, about 8 a in, outside the plant, Local 455
president, William Colavito, spoke with Michael Accarino,
Sr, a management official Colavito claimed to represent
the employees and requested negotiation of a contract Ac-
carino replied that the Company will never negotiate a
contract with Local 455 This uncontradicted testimony
further demonstrates the Company's absolute rejection of
Local 455 which it conveyed to the employees before the
election , and was found unlawful in the prior case And the
same attitude was emphasized in statements to the employ
ees during the course of the strike, viz
On several occasions, Henry Accarino told picketers
Johnson, Howard, Gildo Vargas, and Murchison, in sub-
stance, that they would be out on strike indefinitely be-
cause the Company will not sign a contract with Local 455
In certain instances , he stated that the strikers were fools
and were never going to get back in the shop, and that the
Company would close the place down rather than recog-
nize Local 455 About the end of May, Mario Accarino
told Howard, Johnson, and Vargas that they would never
see the day when Local 455 enters into the Company in
July, he added that he was a rich man and could afford to
retire 24
24 These findings are based on credited testimony of Johnson Howard
and Vargas Vargas also testified that at another time Mario Accarino told
the same picketing employees to look up District 65 AFL -CIO in 1958-
Conclusions
In the context of the flagrant unfair labor practices al-
ready decided in the prior case, and the virulent character
of the Company's animus toward employee representation
by Local 455, the following conclusions are reached 25
Section 8 (a)(1) was violated in the numerous instances
described above-consisting of statements to the employ-
ees that the Company will never recognize Local 455,
threats to close the plant , a threat to suspend employees,
an implied threat to lay off Andrews to influence his vote
on the day of the election, and grants of wage increases
and other benefits effective December 1, while Local 455's
petition was pending before the Board
A real question concerning representation existed fol-
lowing the recognition demand of Local 455 on May 23,
and the filing of its certification petition on June 3 Under
the long established doctrine of Midwest Piping,26 the Com-
pany was bound to observe strict neutrality by not accord-
ing assistance or support to any of the competing unions,
particularly during the pendency of such a representation
question before the Board The Midwest Piping rule fully
applies in the circumstances here even though Teamsters
Locals 840 and 917 were not on the election ballot With
the acquiescence of the Company, Local 840 brought into
the plant its sister Local 917, shortly before the expiration
of its contract in August , for the ostensible purpose of hav-
ing Local 917 take over the contract It is not contended
that such a purpose , as attempted , was or could be properly
achieved At all material times Local 917 was a distinct
entity separate from Local 840, although both unions colla-
borated in the substitution sought to be achieved Howev-
er, it is evident that , as of mid-August , Local 840 effective-
ly abandoned its own representative interest in favor of
Local 917 , notwithstanding that it had earlier obtained a
place on the ballot and then waited until October 16 for-
mally to withdraw from such participation As noted, the
election proceeded without Local 840 or Local 917 All
these maneuvers suggest that , from mid-August to and be-
yond the election , it was a principal objective of Locals 840
and 917, conforming with that of the Company, to get Lo-
cal 455 out of the way
The essential facts are virtually admitted or undisputed
in the evidence From mid-August through early Decem-
ber, Local 917 was permitted to operate freely in the plant,
which followed his statement to Howard that Local 455 was not going to get
in I find this testimony entirely too vague to support the finding of a sepa
rate violation in any event it would not add any material substance to
General Counsels case
25 While it is noted that in the prior related case Mario and Henry Ac
carino were generally not credited in their testimony I have made indepen
dent credibility determinations in the instant proceeding based in part on
demeanor of the witnesses It is a factor affecting the weight given such
testimony that counsel for the Company engaged in a persistent course of
leading questions after being repeatedly cautioned in the matter Henry
Accarino s testimony in significant respects was equivocal shifting and
self contradictory For example after testifying that from various sources
he knew of Local 917 s meetings in the shop he later could not recall that
there were any such meetings before the November 1 strike of Local 917
Mario Accarmo frequently changed his testimony and was prone to exag
geration and dissembling As to both these witnesses it is my distinct im
pression that they were untrustworthy
26 Midwest Piping & Supply Co 63 NLRB 1060 (1945 ) and see Shea
Chemical Corporation 121 NLRB 1027 (1958)
GENERAL IRON CORP 1185
holding numerous meetings on working time with assem-
bled employees, and also with management accompanied
by a designated employee committee The employees could
scarcely fail to perceive the Company-favored status of Lo-
cal 917, which enticed them with promises of benefit and
easily obtained their support on request Thus, for exam-
ple, 22 signatories appear on the November 1 paper au-
thorizing Local 917 to "assume" the contract of Local 840
and to "commence negotiation on their behalf," while at
the same time stating that they disavowed their authoriza-
tion cards and "no longer" desired representation by Local
455 27 It is a curious anomaly that the Local 840 contract
had long since expired, on August 22 28 And, in like vein,
faced with the unlawful pressures barring Local 455 and
imposing Local 917, many employees succumbed in sup-
porting the quick strike on November 1, and in signing
Local 917 authorization cards at plant meetings on Octo-
ber 9 and December 6 29 Strongly suggestive of a prior un-
derstanding with management, Local 917 announced to the
employees on the Friday before the November 27 election
that they would be getting the wage raise effected in the
agreement on December 1
There is evidence, as previously shown, that in an early
meeting with Local 917 and the employee committee, Hen-
ry Accarino said that three unions were fighting and he
could not recognize any of them Against the entire record,
I conceive this statement to be mere lip service The Com-
pany was in fact dealing with Local 917 in these meetings,
which at least amounted to a de facto recognition And the
Company's argument in its brief-that it was forced by the
November I strike to recognize and contract with Local
917-is of no avail in its defense
From the foregoing it is plain that the Company deliber-
ately engaged in substantial breaches of its neutrality obli-
gation And it is quite understandable that these relatively
unsophisticated employees were thoroughly intimidated
and frustrated at the election on November 27 and thereaf-
ter as to the prospect of the Company ever accepting Local
455 as their freely chosen representative
Shortly following the election and the objections thereto
filed by Local 455, the Company's stipulation to set aside
the election results was tantamount to an admission that it
had interfered with the election In the postelection period,
the real question of representation on Local 455's petition
even more viably continued in a state of pendency Un-
mindful of this fact and of the requirement of neutrality,30
on December 1, the Company entered into a bargaining
agreement with Local 917 and thereafter undertook to im-
plement certain of its terms Then from early December, it
appears that Local 917 completely withdrew from the
scene And in light of the complaint in the present case,
Local 917 made a special appearance at the hearing to dis-
27 Arguably this document implies that the 22 employees had previously
signed authorization cards for Local 455
28 The timely petition of Local 455 on June 3 operated to remove the
Local 840 contract as a bar to the election and precluded the possibility of
its automatic renewal See Deluxe Metal Furniture Company 121 NLRB 995
(1958)
29 Burke of Local 917 did not testify The failure to call him in my opin
ion reflects adversely upon the burden of the Company
30 E g Telautograph Corporation 199 NLRB 892 (1972)
claim all representative or contractual interest in the em-
ployees
Certainly the Company is in no position to contend that
the authorization cards held by Local 917 justified its rec-
ognition of that union There is no evidence the cards were
even shown to the Company prior to recognition and, in-
deed, the cards dated in December were signed after the
employees were made aware of the benefits in the Decem-
ber 1 contract Upon any view, all these cards, as well as
the November 1 disavowals of Local 455, must be regarded
as coerced and invalid, stemming from the Company's
heavy-handed assistance given to Local 917 and its other
extensive unfair labor practices directly aimed at forcing
the employees to abandon their interests in Local 455 31
Accordingly, the alleged violations of Section 8(a)(2) are
sustained The unlawful conduct, during the existence of a
real question concerning representation, may be summa-
rized as follows With its full knowledge and approval, the
Company permitted Local 917 to hold numerous meetings
with assembled employees, in the plant during their regular
working time, in which it engaged in its own organizational
activity and undermined representation by Local 455, in
meetings with Local 917 and a committee of employees on
their working time, it accorded de facto recognition to Lo-
cal 917 while negotiating matters pertaining to the employ
ees' conditions of employment, on and after November 1,
it formally recognized and negotiated with Local 917, and
on December 1, it executed a bargaining contract with Lo-
cal 917, and thereafter it implemented certain of the con-
tract terms, including the granting of wage raises and vari-
ous other benefits
D Section 8(a)(3) and (4)
1 Leroy Howard
As found in the prior case , Howard was the "chief Local
455 activist " He was the recipient of various unlawful
threats by the Company regarding the employees' Local
455 activities and was specifically directed to leave Local
455 alone He testified at the representation hearing in
July, was an observer for Local 455 in the election on No-
vember 27, and testified for General Counsel at the hearing
in the prior proceeding on December 3
About June, he was advised by his supervisor, Samuel
Mcllhone, and Henry Accarino, in the latter's office, that
they wanted to make him a welding foreman, that he
should leave "this union thing' alone, and that he would
receive a wage increase of $31 per week 32 He was given the
increase but his duties were not changed, and he exercised
no supervisory responsibilities 33 I find that the wage raise
31 In the circumstances of this case the Local 917 cards cannot be treated
as duplicate cards in the sense that they could serve to cast doubt upon the
validity of the cards by the same employees previously signed for Local 455
in May 1974 and subsequently signed in January 1975 discussed infra
32 Mcilhone testified that he was not aware of Howard s union activities
and that there was no discussion of such activities at the time of the promo
don offer Henry Accarino did not testify on the subject Howard is cred
ited
33 The Company indicated it was unnecessary to take a position in this
case whether Howard was actually made a foreman In the prior case its
contention that he was a supervisor was rejected
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given to Howard and the mention of a promotion were
clearly designed as an inducement to divert him from his
outstanding protagonism on behalf of Local 455 34
In early November, during a meeting with the employee
committee, Burke of Local 917 "referred to the blacks as
trouble makers," mentioning Howard by name Henry Ac-
carmo nodded his head in. agreement At this meeting, in
Accarino's presence, whether before or after his nod, Burke
commented that Howard made statements against the
Company in "court" (presumably the representation case
hearing) 3s
Before the election on November 27, but "around elec-
tion time," Mario Accarino remarked to Howard at his
work bench, in substance, that Howard wanted "that union
in here," that he liked to engage in union activities, and
that he "ran down to the Labor Board and filed charges "
The above incident and that in the next preceding para-
graph point to a specific animus against Howard during
the November period Howard did not sign the November
1 document disavowing Local 455 and espousing Local
917 I find that it was about this time that Howard, as he
testified, gave notice that he was quitting the employee
committee in its dealings with Local 917 and the Company,
telling Burke that he was misleading the employees
In November 1972, Howard commenced employment
with the Company as an experienced welder He per-
formed all the various types of welding, as well as other job
functions In 1974, most of his time was devoted to heliarc
welding in the stainless division, under Foreman Mc
Ilhone Heliarc involved the highest degree of skill, and
Howard's pay rate was more than that of other welders 36
He had been regularly working a full 40-hour week
In mid-December, Howard was told by Mcllhone that
the work was slow and he was being put on a schedule of 2
days a week-Monday and Tuesday He was instructed on
Tuesday to come back the following Monday He had been
doing his normal work in heliarc and other types of weld-
ing, and had no indication that the work was slow As a
consequence, his working time was directly curtailed from
5 to 2 days a week 37
Mcllhone gave only summary verbal testimony concern-
ing the purported slack in work No records or other sup-
portive evidence was attempted to be produced No other
employees were then reduced in hours or laid off (except-
ing Andrews, discussed infra) Mcllhone testified that,
about the end of October, work was completed on a gov-
ernment contract to build "stretchers " He did not describe
the relative size of the contract, the number of employees
or operations directly involved in such work, or the amount
34 There is no allegation of an independent 8(a)(1) violation and it would
be questionable whether such a finding could be made by reason of the
10(b) limitation This evidence is considered only as background to show
company motivation with respect to the alleged discrimination against
Howard
3s Vargas credited testimony Henry Accarino denied the aspect concern
ing trouble makers
6 The relative differences in pay were not shown
37 Payroll records indicate that as of the week ending December 4 (a
Wednesday) Howard worked 24 hours plus 8 hours of paid holiday the
week ending December 11 and the period ending December 1 he worked
29 1/4 hours and the week ending December 18 he worked 16 hours
of other work in the plant Henry Accarino was consulted
by Mcllhone in making the decision 38 Accarino testified
that in the fall of 1974, approximately October, there was
"quite a bit of work" in the Company, including the stain-
less division In November, the amount of work was "prob-
ably not the same From what I can remember, that is "
After Howard's working time was reduced, Mcllhone ad-
mittedly used employees in the stainless section from other
departments 39 While working the 2-day schedule, Howard
saw employees in this section doing welding tasks, other
than heliarc, which he himself had done and was now
doing He knew at least one such employee who had less
seniority than he did Asked whether it is the Company's
normal practice to lay off by seniority, Mcllhone testified
"In my division, I don't lay off, not unless I got no work
You have a good welder or a good mechanic, you
are going to keep him, see Me I think I've laid off three
weeks since I've been there" (since 1970) As abundantly
appears, the Company considered Howard the top welder
in the plant
The Company's contentions, as reflected in the testimo-
ny it adduced, are superficial, confused, and contradictory
Its defenses as to both Howard and Andrews (infra) are
rested ostensibly on the completion of a government con
tract before the beginning of November At such time, the
brazing work done by Andrews ran out, and he was put on
welding and other jobs According to Henry Accarino and
Mcllhone, Howard was assigned about this time to instruct
Andrews in heliarc welding, and Howard reported back
that Andrews was unable to learn this function 40 Thus, the
Company's own evidence would indicate that it had a sub-
stantial amount of heliarc welding after the government
contract was completed Yet, it apparently has sought to
develop the position that Howard was the only heliarc
welder in the plant when a slowdown occurred leading to
the reduction in his hours I can find no probative support
for such a position Howard was fully capable of perform-
ing welding operations of which it is evident there was am-
ple work available 41 The record shows that the Company
had been interviewing and testing heliarc welders referred
by an employment agency at company request, and had
been attempting to train some of its lesser skilled welders in
heliarc work While the issue will not turn on this point, I
am unable to believe that at the time in question there were
no other employees in the plant having the ability to do
heliarc welding as needed in Howard's absence 42 Mc-
38 Henry Accarino testified that Mcllhone told him he didn t have much
welding to be done In this account no specific reference was made to
heliarc welding
39 The record indicates only vague lines of departmentalization as well as
interchange of employees within the plant So far as appears Mcllhone in
addition to Henry and Joseph Accarino was principally responsible for the
direct supervision of the employees work
40 Denied by Howard
4i To the extent it is material I accept Howard s testimony in explanation
of the skills required in different types of welding
42 Howard testified that after his workweek was reduced nobody else
was doing his regular work but less senior employees were employed for
the full week who did other kinds of welding which he also did Howard s
regular work was primarily heliarc welding under Mcllhone In the
Company s brief it relies on this testimony as establishing that Howard was
the only heliarc welder in the entire plant I reject such an interpretation
particularly as the Company having the peculiar knowledge produced no
such evidence itself On cross examination Howard was questioned as to
GENERAL IRON CORP 1187
Ilhone emphasized the policy of minimizing layoffs in his
division and, in any case, of holding on to the good me-
chanics Concededly, Howard was the top welder Never-
theless, he was selected for reduction in hours while less
skilled and less senior welders were retained
The prima facie case of discrimination against Howard is
clearly shown The Company has failed to establish a cred-
ible business justification for its action Its animus toward
Howard's Local 455 activities and its disposition to engage
in discriminatory conduct are well demonstrated The tim-
ing of the Company's decision may reasonably be related
to the fact that Howard had testified on December 3 in the
prior complaint case against the Company 43 Moreover, as
of December 1, it now had a contract with Local 917, and
it apparently believed it had succeeded in ousting Local
455 An outright discharge would have been too obvious It
is probable that the Company intended, by sharply reduc-
ing Howard 's earnings , to cause him to quit In this, how-
ever, it had obviously failed
Upon all of the foregoing, I find and conclude that, by
curtailing his scheduled workweek, Respondent Company
discriminated against Howard in violation of Section
8(a)(3) and (4) of the Act, as alleged as
2 Bennie Andrews
In June 1974, Andrews was hired as a brazer In the
hiring interview, Andrews was told by Mario Accarino that
there were no layoffs on that job, if brazing got slow, he
would be put on welding "or something like that " Accan-
no also said there were two unions fighting in the shop and
not to get involved McIlhone testified that , at the time
Andrews was hired, the Company was working on the gov
ernment contract and it needed brazers Howard testified
he was doing all the brazing until Andrews was hired "Be-
fore November," brazing slacked off and Andrews was as-
signed to other work, e g, punch press, spot welding, and
"jack of all trades " 45
On December 6, McIlhone told Andrews There is no
more brazing I will have to lay you off for a while An-
drews was then spot welding doors on baskets and ham-
pers He estimated that he had about 3 weeks of this partic-
ular work which remained As in Howard's case, the
Company asserts the completion of a government contract
as reason for Andrews' layoff Without plausible explana-
tion, it concedes that the contract work had been finished
some weeks earlier and that Andrews nevertheless contin-
ued to work on welding and other tasks McIlhone re-
vealed that, after Andrews was laid off, spot welders were
hired in other parts of the plant, and welders from other
how many heliarc welders were in the stainless steel shop at the time
December of 1974 Framed in this manner he answered only himself
43 It had previously on election day evinced its displeasure that Howard
ran down to the Labor Board and filed charges
44 The evidence indicates without challenge that Howard s workweek
was directly cut from 5 to 2 days per week and the payroll data is unclear
in referring to the week ending December 11 and the period ending De
cember 1 as described supra The determination is therefore reserved for
the compliance stage of this proceeding as to the precise date Howard com
menced to suffer a discriminatory loss of pay
45 As previously noted the Company states that Hoxard attempted to
teach Andrews heharc welding
divisions were brought in to work in the stainless division
He also testified as to Andrews "I want to keep him on I
didn't want to let him go because we get brazing jobs from
time to time and it's good to have a brazer in the shop at all
times " Additionally, as noted, Andrews was hired with the
specific condition that he would not be laid off when braz-
ing work ran out The absence of records and lack of prob-
ity in the Company's evidence relating to the government
contract have already been described I find that its de-
fense resting on such ground is unsupported and pretex
tuous
Andrews signed an authorization card for Local 455 in
June 1974 Within the Company's knowledge , his signature
appears on the November 1 document purportedly disa-
vowing Local 455 and endorsing Local 917 46 Indicating his
concern regarding Andrews' union sentiment , Mario Ac-
carino told him on election day that he could have laid him
off 2 months ago, `so you know how to vote" (i e, against
Local 455) This incident evidences an implied threat
which extended beyond the election-that Andrews' sup-
port of Local 455 would precipitate his layoff
It was established that company officials frequently ob
served Andrews fraternizing with Howard, Murchison, and
Johnson, all well known Local 455 adherents Henry Ac-
carino admitted such conversations , but explained that it
was common at the plant for employees to associate with
each other along ethnic lines-indicating that the afore-
mentioned employees , including Andrews, are black, and
that the Spanish speaking employees similarly grouped to-
gether Then it should also be noted that, at a meeting in
November , Henry Accarino signified his agreement with
Burke's reference to `the blacks as trouble makers," per-
taining of course to the current organizational dispute Ad-
ditionally, the General Counsel relies on testimony that
Andrews was seen by Mario Accarino on the street near
the plant talking with Anthony Schifano of Local 455
It is not necessary to show that Andrews was an out-
standing advocate of Local 455 His layoff at this time,
contemporaneous with the Company's action against How-
ard, undoubtedly would convey to the employees a clear
message of their peril in pursuing the prospects of having
Local 455 as their representative Based on the total record,
it is my opinion that the Company harbored the belief or
strong suspicion that Andrews was in the ranks of the Lo-
cal 455 proponents Particularly in view of the Company's
threats of suspension and discharge, and its earlier discrim-
inatory terminations of employees, I find that Andrews
was laid off in violation of Section 8(a)(3), as alleged 47
E The Unfair Labor Practice Strike
As shown, the work stoppage by employees in support of
Local 455 began on January 8 and is continuing to date,
46 However he was not in Henry Accarino s office that day after the
short strike at which time certain of the employees initialed the November
I document supra
41 There is testimony that after commencement of the Local 455 strike
Henry Accarino telephoned Andrews with an offer of work as a welder and
sent Andrews a telegram containing a reinstatement offer A copy of the
latter document was not produced In the circumstances which are not
entirely clear the remedial questions of Andrews reinstatement and back
pay are deferred to compliance investigation
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with picket signs protesting "unfair labor practices" of the
Company Preceding the strike, as found in the prior and
the present cases, the Company committed extensive viola-
tions of Section 8(a)(1) and (3) of the Act Among other
events more immediately prompting the employees to
strike were the unlawful discriminations against Howard
and Andrews During the course of the strike, the Compa-
ny further engaged in serious threats to the employees em-
phasizing the futility of their seeking representation by Lo-
cal 455 An additional object of the strike was to obtain the
recognition of Local 455 On this entire record, I find with-
out question that the strike was caused and prolonged by
the Company's unfair labor practices
F Section 8(a)(5) and Bargaining Order
As described above, the strike by Local 455 commenced
on January 8 About 8 a in an explicit bargaining demand
by Local 455 was rejected out of hand by the Company,
stating that it would never negotiate a contract with Local
455 48
On January 9, authorization cards for Local 455 were
signed during the picketing by 15 employees,49 and on Jan-
uary 10, by 4 employees In addition, seven cards were
introduced for employees who had signed in May 1974 50
All these cards, numbering 26, may be properly counted
against an existing payroll complement of 34 undisputed
unit employees 51 Therefore, it is found that Local 455 had
a clear majority in authorization cards as of January 9
For a period of a year following the initial bargaining
demand of Local 455, the Company engaged in a wide
variety of serious unfair labor practices, including separate
instances of 8(a)(3) discrimination against eight employees
having the most discouraging impact on the relatively
small complement of employees in the plant Indicating a
stubborn persistence, the Company's course of misconduct
preceded and interfered with the November 27 election,
postdated the election, and caused and prolonged the un-
fair labor practice strike from January 8 to the present
Under the standards explicated by the Supreme Court in
Gissel,52 these unfair labor practices were of such extreme
magnitude and extensiveness that the holding of a fair elec-
tion has been rendered a virtual impossibility Perhaps this
is the type of "exceptional" case, marked by `outrageous"
and "pervasive" unfair labor practices, in which the impo-
48 By virtue of the pendency of its petition before the Board Local 455
had a continuing claim upon the Company for recognition After Local 840
formally indicated on October 16 that it withdrew its representative interest
in these employees the Company was free to recognize Local 455 as the sole
remaining claimant upon independent proof of majority including authori
zation cards
49 The cards of Kamal and Kahfa (or Khalifa) do not contain an entry of
the company name but were dated and signed outside the plant during the
same time as other cards were being signed
50
About 8 months since the signing these cards may validly be consid
ered E g Blade Tribune Publishing Company 161 NLRB 1512 1513 (1966)
Moreover of these original card signers Howard Murchison Johnson and
Gildo Vargas were among the Local 455 strikers Julio Chinga s undated
card is included in this group in view of a stipulation He was also one of the
strikers
51 The issue of the supervisory status of Michael Accarino Jr need not
be determined as it would not affect the result
52
N L R B v Gissel Packing Co Inc 395 U S 575 613-615 (1969)
sition of a bargaining order is justified "without need of
inquiry into majority status on the basis of cards or other-
wise " 53 However, absent present guidelines, I leave to the
Board the application of more precise criteria for such a
bargaining order It is sufficient here that the issuance of a
bargaining order would run to a union, Local 455, which
has demonstrated on the basis of cards that it currently
represents a majority of the unit employees
In Trading Port, Inc,54 the Board more recently decided
that an emplo; er's obligation under a Gissel bargaining or-
der, accompanied by the specific finding of a Section
8(a)(5) violation-"should commence as of the time the
employer has embarked on a clear course of unlawful con-
duct or has engaged in sufficient unfair labor practices to
undermine the union's majority status "
Relying on Trading Port, General Counsel contends that
the Company refused to bargain in violation of Section
8(a)(5) commencing as of January 9, when Local 455's ma-
jority status was established At the same time , General
Counsel urges that a bargaining order be withheld under
Laura Modes 55 because Local 455 allegedly engaged in ex-
tensive 8(b)(1)(A) conduct during the strike This issue is
separately considered infra with the result reached that a
bargaining order in this case is warranted 56
Since the Company had grossly interfered with the elec
tion on November 27 and, by its egregious misconduct,
destroyed the prospect of a new or rerun election in the
foreseeable future, it follows logically and equitably from
the Gissel doctrine that the Company cannot be permitted
to succeed in the very object of its wrongdoing by indefi-
nitely denying the employees the opportunity to select Lo-
cal 455 as their representative In these circumstances, the
authorization cards and supporting strike activity as of
January 9 provide valid and reliable evidence of Local
455's majority in justification of a bargaining order 57 Ac-
cordingly, I find, on the theory of the Trading Port case,
that Section 8(a)(5) was violated and that a bargaining or-
der is warranted effective as of January 9, considering that
this date of Local 455's first showing of majority is a neces-
sary precondition to institute the remedy 58
G Section 8(b)(1)(A)
1 Introduction
As earlier described, the strike begun on January 8 was
undertaken by Local 455 upon the initiation of certain em-
ployees At least by January 9, it was supported by a sub-
stantial majority in the unit As of the hearing, the strike
was continuing for a period of more than 7 months 59 From
its inception, police were present at the scene of the picket-
53395US at 613
14219 NLRB 298 (1975)
55 Laura Modes Company 144 NLRB 1592 (1963)
56 Such strike misconduct as found is clearly unrelated to the signing of
cards for Local 455 on January 9 and 10 and does not affect their validity
57 Cf Joseph J Lachniet d/b/a Honda of Haslett 201 NLRB 855 856
(1973)
5s See e g Independent Sprinkler & Fire Protection Co 220 NLRB 941
(1975) American Map Company Inc 219 NLRB 1174 (1975)
59 The briefs received indicate the strike is still in progress
GENERAL IRON CORP 1189
mg 60 Substantially all the more serious issues of miscon-
duct relate to the first 3 days of the strike Many employees
were Spanish, Italian, French, and Arabic speaking, with
little or no command of the English language On Satur-
day, January 11, following certain incidents on the previ-
ous days, the strikers received specific instructions from
Local 455, e g , "how to picket lawfully in front of the
place," to "keep walking all the time," and to avoid "prov-
ocation from the trucks" leaving or entering the plant
Schedules were established confined to six pickets each
shift, with appointed picket captains 61 Thereafter, as the
strike progressed into the later months, the average number
of pickets, and the Local 455 officials present during the
first days of the strike, substantially decreased 62 Of the five
officials directly involved, only Schifano testified Mem-
bers and shop stewards from other shops participated in
the picketing and were given Local 455 instructions
The plant occupies 400 feet at the end of a city street
(West 15th Street) variously estimated from 1200 to 1600
feet long Its entrances front directly on a sidewalk about
13 feet from the curb to the building line The pickets usu-
ally walked to and from the office door and the timeclock
or employees' door, about 100 feet apart Between both
such entrances are two garage doors On the same side of
the street and around the corner are plants of other compa-
nies, private houses and stores are interspersed on both
sides of the street and in the general area In the plant
vicinity, the sidewalks and roads are active public
thoroughfares Cars are parked along the sides of the road,
and driveways on either side extend from cuts in the curb
across the public sidewalk to the buildings The Company's
five or six garages have such driveways Local 455 had
distributed literature in the neighborhood soliciting food,
clothes, and money in support of the strikers Some such
contributions were brought by individuals to the scene of
the picketing
The foregoing is pertinent as background, particularly in
view of certain complaint allegations of misconduct (e g ,
`blocking") by "unknown" agents of Local 455 at vaguely
specified times 63 General Counsel persisted in the theory
that all misconduct throughout the long strike is legally
imputable to Local 455 notwithstanding that its agents
were not present or aware of the particular incident al-
leged Latitude was given General Counsel to adduce evi-
dence on this basis, subject to a clear showing that the
conduct in question could be established as authorized,
condoned, or ratified by Local 455 As it developed, the
General Counsel's approach was entirely too broad and
inapplicable in the circumstances reflected in the entire
record 64
2 The CB findings 65
(a) Henry Accarino testified that, on the first day of the
strike, parked cars were blocking most of the four or five
plant driveways After the Company notified the police,
the cars were later moved from the driveways He later saw
Bel driving one such car, which was yellow with Florida
plates Another car was a maroon Chevy, which he later
saw Schifano driving Schifano credibly denied that he
owned or drove such a car Henry could not remember the
other two cars General Counsel attributes the blocking of
the driveways to Local 455 It was made apparent that
parking spaces were difficult to obtain on this busy street
Even assuming these were cars relating to the strike activi-
ty, which I do not find, there is entirely no basis for con-
cluding that the cars were parked with an intent, in support
of the strike, to obstruct the use of the driveways 6 The
allegation is dismissed
(b) On January 9, Jesus Oquendo, an employee who
worked during the strike, arrived at the plant about 7 30
a in Schifano briefly sought to induce him to join the strik-
ers As Oquendo walked toward the employees' entrance,
three or four people tried to circle around him in front of
the door, including Bel "In a way" he forced himself out
and tried to get to the office door (100 feet away) One
man, unidentified, tried to grab him and physically
touched him Henry, Mario, and Joseph Accarino 67 ap-
peared at the office door Joseph called to him People in a
group, which included Schifano and Bel, started pushing
Henry and Mario, and they pushed the people back away
from the door Several persons wearing picket signs were
circling in front of the office door when Oquendo ap-
proached One was directly in front of the door "I'm not
saying blocking the door like that " He managed to
"sneak" into the office door
Oquendo's testimony was confused Schifano testified
that he spoke with Oquendo, observed him enter the office
door, and did not see any scuffle or any physical contact
with Oquendo Assuming arguendo that such pushing did
occur, I am unable to credit Oquendo's testimony to the
effect that the pushing was started by the group of strik-
ers 68 Nor do I find that Oquendo was physically prevented
60 The testimony is conflicting only as to the presence of police on Jana
ary 9
6i Only Gildo Vargas and Leroy Howard were identified
62 Initially five Local 455 agents were present although not necessarily at
the same time They were Anthony Schifano Johan Bel John Zito Meyer
Tessler and John Steinhauser In the latter months of the strike only Bel
appeared at the plant for any extended period at times no union officials
were present
63 General Counsel had subpenaed Local 455 agents Schifano Bel Zito
Steinhauser and Tessler to be present for purposes of identification during
the hearing (which actually lasted 7 days) As an accommodation agreed to
by the parties and to release the five agents from the subpenas these agents
appeared at an appointed time in an anteroom where certain out of court
identifications were indicated by witnesses and such identifications as to
specific incidents were entered on the record The same witnesses otherwise
gave full testimony with reliance on the stipulations of agent identifications
or lack thereof
64 Cf Our Lady of Perpetual Help Nursing Home Inc 208 NLRB 117
(1974)
65 In this section Mario Henry Joseph Michael Jr all Accarmos will
at times be referred to only by their given names The Local 455 officials
Schifano Bel Zito Steinhauser and Tessler will be shown in italics
66 Henry s testimony was equivocal changing and self contradictory as
to the number of driveways purportedly blocked and the identification of
the cars involved
67 Joseph the son of Henry is a company official
68 Henry Accarmo described the Oquendo incident as occurring on the
first day of the strike On direct he testified these men were pushing me
actually stopping me from going out and men from coming in On cross
examination he stated he saw people brushing up against people [He]
did not say pushing they were touching one another Employees in the
group were not trying to get in When he called to the employees to come in
Oquendo was the only one who came
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or "blocked" from entering the plant on January 9 as
would support a violation of Section 8(b)(1)(A) 69 In this
holding, it is also considered that the strike was provoked
by the Company, and that the strikers undoubtedly exhib-
ited some exuberance, short of coercion, in seeking to in-
duce Oquendo not to cross the picket line
(c) Robert Brown, with the Company 4 years as sheet
metal mechanic, worked during the strike He testified On
January 9, before 8 a in, as he approached the office en-
trance, three people "fell into a tight formation" around
the door One was Bel, the other two he had never seen
before or since Other pickets were in the general area,
including Schifano All three at the office door were shout-
ing at the same time , e g, "You're going to get it' Joseph
Accarino appeared at the open door, calling to let Brown
in Brown then "physically forced" his way through two of
them "Let's say I was in the building at this time " One of
the unidentified men "kicked" him in the groin Bel was
close by While he was curled up on the floor, someone
kicked him in the leg He "imagines" Bel was still there He
could hear Schifano cursing from a distance He was
helped up, went into the shop, and "recovered " On cross-
examination, Brown stated that most of the pickets were
walking at the time, but three were "blocking" the door
"Let me put it that way I was on the edge of the door,"
half inside From the "corner of my eye, I seen Mario com-
ing up the side of the building " This is the sum of
Brown's testimony regarding the occurrences on January
9 70
Mario Accarino testified that, from the employees en-
trance, he saw Brown trying to get in the office door He
ran to assist Brown, and pushed someone out of the way
At a distance of 10 feet, he observed Local 455 officials
Schifano, Bel, Tessler, and Zito all around Brown He saw
Brown "kneed" in the groin by an unidentified person
Then Schifano kicked Brown in the shins after he was
down Someone, unidentified, pulled a knife He (Mario)
then drew a revolver and turned toward the building "Ev-
erybody disappeared " As he turned to go into the build-
ing, somebody struck him on the head with an instrument
Later, in the upstairs office, he noticed his head was bleed-
ing Police were in the vicinity during this incident After
he saw Brown kneed and kicked, he made no attempt to
call the police
Joseph Accarino testified that "Mickey" (Tessler) 7[
screamed at Brown "You'll get yours," while uttering cer
69 Joseph Accarino s testimony sharply in conflict with that of Oquendo
is not credited He described virtually the same detailed circumstances in
volving Oquendo on both January 8 and 9 during which all five Local 455
officials were purportedly present Inter aka he stated that on both dates
Steinhauser pushed Oquendo back with his elbows at which point Joseph
grabbed Oquendo and pulled him through the office door In the out of
court examinations he did not identify Steinhauser at the Oquendo inci
dent
70 In his out of court identifications Brown mentioned only Schifano
relating to this incident
71 Mickey was positively described by Joseph as a Local 455 agent in
addition to Schifano Zito Steinhauser Bel and Tessler However it was
clearly established during Local 455 s defense that Mickey is Tessler In
the out of court examinations Joseph did not identify Tessler as being
present during the Oquendo or Brown incidents on January 9 but would
testify that Mickey is none of the five officials who appeared at the exams
nations
tam obscene expressions When Brown was halfway in the
building, Tessler kneed him in the groin, and he fell to his
knees After Joseph picked Brown up and was within the
building, a foot came out of the crowd and kicked Brown
He saw Schifano, Zito, and Bel at the side of the door
Steinhauser was standing with "Mickey" at the door and
refused to move when Brown tried to come through When
Brown was kicked, Mario had appeard and pushed "Mick-
ey" away from the door As Mario turned to enter the
building, an umbrella came "out of the crowd and hit
[Mario] in the head " The police were not present in the
area during this incident
Schifano testified he did not see Brown that morning and
credibly denied that he ever kicked him About 8 am,
after Oquendo had entered the plant, he saw Mario in
front of the office door pushing some people One person
pushed him back Schifano quickly got to the scene Mario
drew a revolver and pointed it at the pickets, including Bel
Joseph grabbed Mario and pushed him inside the door In
a few seconds, Mario came out to Schifano with the revolv-
er in his hand Schifano asked him, "What are you going to
do with that?" Mario replied "I could blow a hole in your
head with this," pointing the gun right at Schifano s eyes
Then Joseph came out again and dragged Mario into the
plant 72 Joseph did not testify concerning Mario's display
of the gun 73 A criminal charge against Mario is pending 74
The conduct of Mario in pointing his gun at the picketers
and verbally threatening to fire it at Schifano was totally
unwarranted and, indeed, reprehensible in the circum-
stances, it could only have served to inflame the emotions
and create a most serious provocation among these strik-
ers
While Brown's testimony contains dubious aspects, it
stands uncontradicted in certain respects Bel was not a
direct participant in the assault on Brown Nor do I find he
was clearly identified as making the threat to Brown-
"You're going to get it " Nevertheless, as a Local 455 offs
cial, Bel was immediately associated with the two unidenti
fled persons who did assault and threaten Brown, and he
imphedly condoned their actions Therefore, I find that the
threatening and assaulting of Brown are properly attribut-
able to Local 455 and that it thereby violated Section
8(b)(1)(A) 75
(d) On January 10, a series of incidents occurred as to
which considerable testimony was taken involving substan-
tial conflicts and questions of credibility Many of the non-
working employees were there that day to get their pay-
71 Schifano s version of the gun incident is corroborated by employee
Murchison and is accepted
73 Mario stated briefly that he saw someone pull a knife before he drew
his revolver an explanation I find to be conveniently contrived Mario s
testimony is generally discredited as substantially fabricated As to this mci
dent involving Brown and others Joseph ascribed to Local 455 officials
frequent use of the most vile obscenities which strains my belief Consider
mg his demeanor his inaccuracies in identification his extreme exaggera
tions and the extensive conflicts in his testimony with employee witnesses
for General Counsel I likewise discredit Joseph Accarino
74 No charges were preferred relating to the asserted attack on Brown
7s Such is the extent of my findings as to the Brown incident It is not
clear what General Counsel is alleging With respect to the striking of Mario
on the head with an instrument I believe that this did occur but that it was
not done by Schifano or other Local 455 officials and that it was provoked
by Mario s brandishing of his revolver
GENERAL IRON CORP 1191
checks 76 At least Zito, Bel, and Schifano, of the Local 455
officials , were at the picket line About 2 p in, Joseph Ac-
carino drove out of the northernmost garage with an Econ-
oline van It was testified , and I find, that the van took
about 2 minutes to get out before speeding away to make a
delivery 77 Two police officers were closely at hand, one at
the garage door About five or six pickets were moving in
front of the door As the van emerged from the garage onto
the driveway, it stopped because of the pickets in front of
it Zito jumped on the front of the van and banged with his
fist on the windshield The rear view mirror glued to the
inside of the windshield fell off Zito yelled to the others to
"get him" and "stop him " Other strikers converged
around the van Someone shouted, "Turn it over , he's not
getting out " One striker was placing under the tires a piece
of cardboard with nails protruding Michael Jr came over,
grabbed the cardboard, and "brushed out" the nails Bel
was stabbing the left rear tire with a knife When Michael
Jr called to a policeman, Bel "backed off " A policeman
grabbed Zito's arm and pulled him away from the van In
the process, as the van was moving away , the side view
mirror was "ripped off " Zito picked up the mirror and
threw it at the van 78
About 3 p m, Joseph returned to the plant, with a patrol
car as an escort behind him Schifano, Zito, and employee
Johnson were walking picket across the driveway of the
garage, and 15-20 strikers were pacing back and forth in
the area Three or four police close by instructed the pick-
eters to keep walking When the van was turning at the
curb of the driveway, Henry at the garage door called out
to Joseph to come in and "run them over " Zito was again
in front of the van in motion Others separated at the sides,
were "rocking" and "banging" the van, and shouting
imprecations Joseph testified that, as the van moved to-
ward the building, it came "in contact with Zito" 10 or 15
times, "nudging" against him 79 Zito pounded on the wind-
shield and pulled off the wipers As the van came close to
the garage door, with Zito at the windshield, Henry struck
Zito on the head with a stick Testifying, Joseph explained
that his father hitting Zito allowed him to get into the
building At this point, a "commotion" ensued, men were
yelling and stones were thrown A side window and a back
window of the van were cracked One stone hit Henry in
the shoulder 80 Zito, bleeding, was taken to a hospital In
76 Schifano testified that before any of the events herein a secretary came
out and told the men they would not get their checks that day This fact is
not considered in any manner as a provocation justifying misconduct
77 Joseph s highly prejudiced and exaggerated descriptions are not cred
iced except as appears corroborated or reasonably plausible in the circum
stances Henry Accarino and Michael Accarmo Jr testified only as to
select portions of the van incidents Schifano and employee Michael John
son gave brief testimony although in major respects it does not controvert
General Counsels evidence
78 Among other testimony not credited Joseph related that after be made
the round trip he had four flat tires which he first noticed within the garage
as well as knife cuts in each tire Perhaps there was a knife cut and a flat tire
within the garage The rest is beyond credulity
79 Striker Edner Rabel indicated that Zito was trying to avoid having the
van hit him
8o Joseph described one solid boulder the size of a basketball which
struck the van and cracked the side window He did not see who threw the
boulder In his affidavit to the Board Joseph averred that he saw Hernan
dez throw the boulder at the truck He sought to explain that when he gave
the plant office , Henry was arrested on a complaint of felo-
nious assault Zito was charged by the Company with tres-
passing Both cases are pending My findings are as fol-
lows
On the return trip of the van, there were extreme provo-
cations inciting the strikers The gun threat by Mario on
the previous day was also undoubtedly fresh in memory
Henry called to Joseph to "run them over,' following
which there were incidents of rocking and banging, possi
ble threats, and Zito positioning himself in front of the van,
wittingly or otherwise Joseph purposefully and repeatedly
contacted Zito with the van Whatever the blocking situa-
tion, Joseph's conduct was without legal justification and
contributed further to enrage Zito and the picketers Henry
deliberately struck Zito on the head with a stick which
"allowed the van to get into the building Thereafter came
the rocks and probable profanity, elsewhere too vividly de-
scribed by Joseph In balance , there was more serious vio-
lence engaged in by company officials than by Local 455
agents and strikers, who were plainly provoked As to these
events relating to the return of the van , I cannot find in the
circumstances that there were any cognizable violations of
Section 8 (b)(1)(A)
Concerning events on the departure of the van, particu-
larly in view of the failure of Zito and Bel to testify, I am
led to conclude that incidents of misconduct were commit-
ted in the manner I have described Thus, Zito attempted
to stop the van from leaving He banged on the windshield
causing a detachment of the rear view mirror He was re-
sponsible for pulling off the side view mirror, which he
then threw at the van Bel stabbed at a tire with a knife,
possibly causing the flat tire to develop in the garage In
the presence of Local 455 officials, an unidentified striker
sought to place nails under the tires, and another shouted
to turn the van over, although no such attempt was actual-
ly made These acts of misconduct, attributable to Local
455, violated Section 8 (b)(1)(A)
However, these were the more aggravated incidents con-
centrated on the third day of a 7-month strike, and were
not entirely without provocation On the following day,
Saturday, Local 455 convened the strikers to make ar-
rangements for an orderly strike and to issue instructions
against improper conduct, as early as shown I do not find
that the incidents on January 9 and 10 established a pat
tern or example by demonstrated misconduct or encour-
agement thereof by Local 455 as to impute to Local 455 all
subsequent similar conduct committed by persons other
than Local 455 officials or agents without a specific show-
ing of their express or implied sanction 81
(e) During the van incidents on January 10, supra, Mi
chael Accarino, Jr, testified that Schifano repeatedly invit-
ed him to fight, saying that he would break his head and.
his arms and legs Schifano had accused Michael Jr of
hitting him, which Michael Jr denied, and he refused to
fight The scenario thus described has an aura of improba-
bility It seems unlikely from the overall record that Schifa
no, the chief organizer and strike leader, would seek to
the affidavit he thought this was the man s name but later learned it was
not I regard this conflicting testimony as a clear instance of dissimulation
8i See e g International Ladies Garment Workers Union AFL [B V D
Company Inc ] v NLRB 237 F 2d 545 (C A D C 1956)
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engage in a fighting contest with Michael Jr, a youth of
relatively small importance in the general dispute There is
no allegation of any physical attack upon Michael Jr
throughout the strike Schifano denied having any conver-
sation with Michael Jr at the time of the van incidents It
does appear from Michael Jr's account that Schifano be-
lieved he was first "hit" by Michael Jr An invitation to
fight accompanied by a threat of inflicting bodily injury
would constitute strike misconduct However, I do not be
lieve this is what happened, or was intended, and am in-
clined to credit Schtfano's denial
(f) About January 13, during a break at 10 am, em-
ployee Oquendo was walking outside and overheard a con-
versation on the other side of the street He estimated he
was 20-25 feet away, which could hardly encompass the
width of the road Bel was in the company of two men
Oquendo had never seen before or after the incident One
of the men asked Bel loudly if he wanted this man "to
break [Oquendo's] neck " Oquendo did not hear Bel's re-
ply I doubt that Oquendo accurately described the conver-
sation and consider the circumstances entirely too vague to
justify the finding of a threat intended for the ears of
Oquendo and condoned by Bel
About the end of January, in mid-morning Oquendo ac-
companied Mario and Henry Accarino in their car for a
purpose not material herein Entering West 15th Street
when returning to the plant, a yellow car pulled out of a
parking space into the road and stopped Bel and employee
Howard were in that car Other cars were parked on both
sides of the road, so that passage was obstructed by the
yellow car, which was then about 120 feet from the plant
Henry backed up and then circled the block At a traffic
light at the other end of West 15th Street, Oquendo ob-
served the yellow car in the same place-"like something
was wrong with the car I would say " Mario got out of
the car and spoke to the police in a patrol car At this
point, the yellow car drove off General Counsel's conten-
tion, typical of others, strains at a gnat It certainly cannot
be inferred that Bel and Howard were waiting to pull out in
front of the company car, that their car would have re-
mained after Henry backed away, and that, in the presence
of police, they intended to block all vehicular traffic on the
street in order to achieve the limited delaying purpose
being attributed to Local 455
(g) Frank Cantasano, hired in early November 1974,
worked as a welder and in the shipping department until
the start of the strike On or about January 15, he came to
pick up his paycheck He entered the plant without inci-
dent, and upon emerging with his check he saw one or two
people not wearing picket signs He testified initially,
"They said if you pick up the check, we'll give you trou-
ble ' Then he was further examined by General Counsel,
as follows
Q And do you remember who it was that spoke to
your
A I don't know I never saw him
Q And can you tell us what anyone said to
you at that time9
A "We don't want nobody to break the picket
line " I said , `Fine '
Q Did they say anything else that you now recalh
A Yes "If you break the picket line, we're going to
give you trouble "
Q Did they say anything else to you that you now
recall9
A Just that I'll break your arm
JUDGE LIPTON What
THE WITNESS He said, "Okay, if you break the pick-
et line, you know, we're going to stop you" I fig-
ured-
JUDGE LIPTON Don't figure Try to recall the lan-
guage that was used or as nearly as possible what was
said
THE WITNESS Okay `If you break the picket line,
we're going to stop you "
Q (By GC) Now, you testified the words were
break your arm
A This is how I put it down
Q Is that what you heard?
A Yes, what I heard Like, "If you break the picket
line, I'm going to break your arm Okay, this is how I
put it down on the paper " 82
As to a single remark by an unidentified person, Cantasa-
no gave repeatedly changing testimony, showing a strong
element of unreliability I do not credit the version relating
to the breaking of his arm None of the Local 455 officials
were present at the incident Accepting that someone told
Cantasano "we'll stop you,' or `we'll give you trouble," I
do not find that Local 455 was responsible for the state-
ment or that it violated Section 8(a)(1)(A)
(h) Robert Brown testified to further incidents placed in
time only as occurring during the first 3 months of the
strike While driving from the plant, at a short distance
away on the same street, his car was struck in the rear by a
piece of cinder block There was `no major dent ' He had
driven past Bel walking with a picket sign, and a VW car
ascribed (wrongly) to ownership or control of Local 455
was parked in the vicinity This allegation is dismissed as
lacking in identification Coming to work about 7 a in,
Brown s car was followed by a yellow car driven by Bel
They were a few blocks from the plant and, according to
Brown, it was not his usual path to work Two weeks later,
on his way home after 4 30 p in, Brown was again fol-
lowed by Bel one quarter mile to the Belt Parkway, and
one quarter )Wile on the Parkway where Bel turned off at
the first exit On both occasions, Bel was about a car length
behind him In the first instance, I can see nothing omi
noun in that both cars were proceeding to the plant As to
the second, Brown had taken the best route from the plant
to the Parkway, a major artery There being no specific
indication of a threat, I find that in both instances the car
following can readily be regarded as coincidental The alle-
gations are unsupported
(i) Angel Luis Torres Quinones testified through a Span-
ish interpreter He was hired, and worked, during the
strike One day in latter April, two or three men told him
"not to go in that they could hit me One spoke in Span-
82 Cantasano had given an affidavit to the Board but had not been shown
his statement while testifying
GENERAL IRON CORP 1193
ash, one in English, and he did not understand the English
Men, some with picket signs, stood in front of the office
and employee entrances (100 feet apart) At both doors,
they were `blocking with the arms," i e, by gesturing with
their elbows In his testimony, he could not identify Bel or
other Local 455 officials as present during the incident 83
This witness' testimony was confused There was no physi-
cal blocking, merely gestures It is difficult to conceive how
Local 455 could defend against this type of testimony In
the long course of the strike, particularly after the first in-
tensive days, this must be considered as an unpersuasively
vague and isolated incident The alleged violation is not
sustained
0) Luigi Peluso, interpreted in Italian, testified he was
hired in April to perform welding On an unspecified day
in May, about 3 p in, an Italian person told him "not to go
to work because he would break my head " Peluso never
saw this person before or after the incident There were 7
to 10 people in the area at the time He did not notice any
picket signs No Local 455 officials or agents were identi
feed as present during the incident The evidence is insuffi-
cient to impute the threat to Local 455 or to support the
alleged violation
(k) Vincenzo Scavone had worked for the Company in
1974, went to Italy "on vacation," and was rehired in April
He does not understand English At the end of May, an
(unidentifed) man with a picket sign spoke to him in Eng-
lish There were 4 to 7 people present They gestured to
him not go to work, pointing to the picket sign He could
not remember what they said Shown his affidavit by Gen-
eral Counsel, he affirmed the statement that a man with a
union sign spoke to him in English "I think he told me,
`Don't go into work or we shall give you a beating'
This has happened several times , that the men outside told
me not to go to work or they will beat me up " Continuing,
he testified that they were showing him in gestures what
would happen if he went to work He `couldn't understand
anything " Finally, he replied negatively to the question
whether he remembered anyone saying anything about
beating him up When asked what the gestures meant, he
indicated-to read the picket sign and go away Local 455
officials or agents were not identified as present during any
incident Other than the gestures pointing to the picket
sign, I cannot attach probity or credence to any aspect of
the foregoing testimony No violation is found
(1) Michael Accarino, Jr, was less than a forthright and
reliable witness 84 His testimony in large part appears as a
jumble of generalities enveloping numerous proffered inci-
dents of Local 455 misconduct As to one type of incident,
in which he was ostensibly delayed by pickets for "a couple
of minutes" while pulling the truck out of the plant-he
said it happened about 30 times during the first 5 months
of the strike "Every time' he pulled out, people" would
83 In his out of court examination he identified Bel presumably con
cermng the same incident in May
84 Inter aha after testifying that he is a regular worker and not a supervi
sor he was confronted with his affidavit in which he stated I am the
foreman of the shipping department Then he explained that he misunder
stood what is meant by the term foreman -clearly an equivocation He is
the son of Michael Accarmo a substantial shareholder and vice president of
the Company
follow him in cars People were picketing and they did not
make way for the truck Asked to spell out a specific inci-
dent, he described an occasion in May when he motioned
to a policeman and the people "would move to the sides
and let me out " He also related an incident involving one
Victor Antonetti 85 which occurred on an unspecified day
in May, about 11 a in As Michael Jr was backing out with
the truck, Antonetti was 2 feet away, presumably near the
driveway He saw Antonetti pick up a rock the size of a
cobblestone and raise it over his head A rock hit the truck
behind the window on the driver's side No damage is as-
serted His testimony does not indicate that he actually saw
the rock leave the hands of Antonetti, or that it was this
rock which hit the truck Even assuming that Antonetti
threw the rock, it would only reflect an isolated incident in
May, not assignable to Local 455 No violation is found
(m) On May 15, in the early morning darkness, a trac-
tor-trailer driven by Michael Salter, an independent car-
ner, made a delivery of the trailer to the northernmost ga-
rage of the plant near Hart Place Schafano was then trying
to park his car in a sufficient space between the driveway
to this garage and the end of the one-way street As Schifa
no was backing into the parking space, the rear of his car
was extended partially into the driveway Salter was in the
process of backing his vehicle from Hart Place toward the
garage A policeman and employee Michael Johnson
yelled to Salter to stop his truck, but it kept coming, and
struck Schifano s moving car while it was still about 2 feet
in the driveway The back of Schifano's car was pushed
onto the sidewalk, with a tire torn off The policeman
asked Schafano to move his car He refused, stating that the
car was disabled He was arrested, led away, and issued a
ticket for disorderly conduct The ticket was later dis-
missed Salter managed to maneuver" around Schafano s
disabled car and unload the trailer in the garage Shortly
thereafter, Johnson and Bel changed the tire on Schifano s
car and it was moved away It is not conceivable to me that
Schafano, particularly in the presence of a police officer,
intended to obstruct the entry of Salter's vehicle into the
garage 86 This allegation is dismissed
Similarly rejected is other related testimony of Joseph
Accarmo, e g Shortly after the previous incident, Bel and
Johnson caused a delay of 10 seconds when they walked in
front of a different garage door from which Salter was
seeking to leave with another loaded trailer Still another
incident involved a VA Sons' truck which happened to be
driving on the street near the plant when Salter was back-
ing up Bel spoke to the driver of this truck, appealing for
help because the place was on strike The driver got out of
his truck, which at this point was in the path of the Salter
vehicle From a patrol car nearby, a police officer came out
and told the VA Sons' driver to move his truck, which he
promptly did
(n) Joseph Accarmo is not credited in attempting to
85 Antonetti was one of those persons living in the neighborhood who
responded to Local 455 s appeal for food and material help for the strikers
He was not a member of Local 455 and did not take part in the picketing
Schifano testified that from about early May Antonetti occasionally ap
peared at the picket line with collected food etc in the morning before
Antonetti went off to his own job
86 Salter was not called to testify
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
identify a person he called "Kenny" as a "captain" for
Local 455 in six shops Schifano testified that none of the
Local 455 members from other shops who participated in
the picketing has such a name "Kenny" ostensibly spit on
the window of a car occupied by Joseph and Henry Accan-
no, and said, `scum bag " Ambiguous testimony given by
Michael Accarino, Jr, that "Kenny" attempted to block
plant driveways with his car "about 10 Limes,' is rejected
as lacking in probity
(o) Mario Accanno testified concerning a "demonstra-
tion" near the plant on an unspecified day in May about
4 30 p in About 50 to 55 picketers were gathered, includ-
ing Schafano, Bel, Tessler, and Zito Many police were pres-
ent, but he was unaware that any arrests were requested by
the Company Strikers were "deliberately" standing in
front of the garage doors so that vehicles could not come
out of the plant They also congregated around Henry
Accarino's car parked at the curb They were spitting, curs-
ing, and trying to cause a flat at the right front wheel On
their way home, the car got a flat 4 or 5 blocks away 87 I
cannot credit this testimony as I find it broadly conclusory,
innocuous in major part, and generally untrustworthy
(p) Henry Accarino testified he saw a "Puerto Rican
delegate" of Local 455 kick employee Angel Cruz when the
latter tried to enter the plant in June Schifano was 10 feet
away Cruz was yelling and screaming in front of the em-
ployees' door Now changing, Henry did not actually wit
ness the physical contact, he merely saw Cruz in a group
Cruz was a witness for General Counsel, but was not him-
self questioned regarding this incident There is no other
evidence to identify such a "Puerto Rican delegate ' The
allegation is dismissed
(q) Other incidents are scattered through Henry's testi-
mony In mid-January, Schifano loudly remarked to Bel
within earshot of Henry at the picket line-that Bel should
"be careful because Henry was coming behind him and he
might try to get him in the back like he did to John Zito " 88
On several days in July, while picketing, Bel got behind
Henry and was "grunting " On numerous occasions Henry
could not get into the door unless he "brushed" up against
Bel At the same time, he "never had any physical contact"
with Bel Every morning, Bel greeted him with baiting re-
marks about "looking for action " And Bel called him two
particularly vulgar names, which occurred "about 20 or 30
times to be exact," then every morning " For reasons that
these incidents appear grossly contrived, or exaggerated, or
constitute trivia, the alleged violations are rejected
H Alleged Forfeiture of Bargaining Order
It has been repeatedly emphasized that the Laura
Modes 89 principle represents an "extraordinary and un-
usual" measure 90 invoked by the Board to deny an other-
wise appropriate bargaining order to a union In that origi-
nal case, where the bargaining order was withheld, the
87
No other witnesses for General Counsel were questioned as to this
incident
88 Schifano s account
89 144 NLRB 1592
90 E g United Mineral & Chemical Corporation 155 NLRB 1390 1396
(1965) enfd 391 F 2d 829 (C A 2 1968)
Board stated its refusal to sanction "union enforcement of
any employer's mandatory bargaining duty by unprovoked
and irresponsible physical assaults" of the nature there in-
volved (emphasis supplied) 91 There, as the Board found,
the union "evidenced a total disinterest in enforcing its
representation rights through the peaceful legal process
provided by the Act in that it resorted to and/or encour-
aged the use of violent tactics to compel their grant " An
underlying consideration in the Laura Modes rationale is a
realistic anticipation that the union would likely engage in
such violence in the very process of bargaining collectively
within its public obligation as statutory representative of
the employees 92 "An atmosphere of violence and intimida-
tion can hardly be expected to produce [an employer's]
participation in reasoned discussion with union agents
about the subjects of collective bargaining " 93 An unfair
labor practice strike is itself a provocation by the employer
which serves to temper the seriousness of the strikers' coer-
cive activities 94 Here, indeed, the Company not only pre-
cipitated the strike, but during the course thereof engaged
in further provocations by resorting to gross physical vio-
lence against Local 455 officials, as well as committing ad
ditional unfair labor practices The basic criteria 95 which
would allow the "extraordinary" application of Laura
Modes are clearly not evident in the present case
Laura Modes was certainly not intended to provide a
convenient vehicle for an employer to prolong further the
issuance of a proper bargaining order, already long de-
layed, by filing a succession of 8(b)(1)(A) charges alleging
incidents of strike misconduct, however numerous, which
do not fit the special requirements of that doctrine Since
the election in June 1974, invalidated by the Company's
destructive interference, 18 months have already elapsed
and more are to come It has been found here and in the
prior proceeding that the Company engaged in flagrant
and pervasive violations of every 8(a) section of the Act-
all with the avowed objective of keeping Local 455 out of
the plant As shown, Local 455 for its part was responsible
for certain incidents of misconduct essentially concentrat-
ed during the second and third day of the long and still
continuing strike These consisted of Union Official Bel's
threat to a nonstriking employee, Robert Brown, that he
was "going to get it," and two strikers physically assaulting
Brown in the presence of Bel, Union Official Zito's at-
tempt physically to stop a company van from leaving the
plant, banging on the windshield, pulling off the side view
mirror, and throwing it at the van, Bel's stabbing at a tire
with a knife, a striker attempting to place a board with
nails under the tires, and a striker shouting to turn the van
over
91 Inter aka union agents had entered the employer s premises uninvited
physically attacked a copartner and an office employee on a later occasion
again assaulted the copartner and engaged in a deliberate plan of intimida
tion and violence to ensure the employees adherence to the union
9' See United Mineral & Chemical Corporation ibad World Carpets of New
York Inc 188 NLRB 122 (1971) Cascade Corporation 192 NLRB 533
(1971)
93 Laura Modes Company 144 NLRB at 1595
94 N L R B v Thayer Company and H N Thayer 213 F 2d 748 770 (C A
1 1954) cert denied 348 U S 883
95 See e g N L R B v United Mineral & Chemical Corporation 391 F 2d
829 838-841 (CA 2 1968)
GENERAL IRON CORP 1195
In some types of cases, the Laura Modes question of
defeasance of a bargaining order was determined by coin
paring the character and substantiality of the employer's
violations with those of the union If such a balancing pro-
cess is used in the present case , it is abundantly clear that
the Company' s unlawful conduct far outweighs the strike
transgressions of Local 455
A noteworthy opinion recently handed down by the Sec-
ond Circuit shows by contrast that the present case scarce-
ly warrants Laura Modes consideration, even if many of
the incidents which I have dismissed were actually found
violations In Donovan v N L R B ,96 strike misconduct at-
tributable to union agents and members consisted of forci-
bly entering the employer 's premises , following nonstriking
employees to and from work , repeatedly threatening them
with physical harm and property damage , calling in a
bomb scare to the employer's nursing home , mass picket-
ing, blocking ingress and egress of nonstrikers , and bang
ing on cars , kicking a car, cursing and threatening manage-
ment, attempting to run a company representative off the
road, throwing small rocks and pebbles at a supervisor's
car, assaulting a nonstriker and damaging his property,
threatening , following, and harassing management repre
sentatives attempting to enter and leave the facility, and
even before the strike, repeatedly attempting to enter the
nursing home without permission The Court and the
Board found on balance, against the employer's serious
8(a)(1) and (3) violations, that the union 's strike miscon-
duct should not foreclose the issuance of a bargaining or-
der considered necessary under the Gissel and Trading Port
cases, supra
Accordingly , I conclude here that the Laura Modes con-
tention is without merit
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent Company, set forth in sec-
tion III, above, occurring in connection with its operations
described in section I, 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
V THE REMEDY
It has been found, in violation of Section 8(a)(2) and (1),
that the Company engaged in specific conduct by which it
supported, assisted, and accorded recognition to Teamsters
Local 917, and that on December 1, it entered into a collec-
tive-bargaining agreement with Local 917, thereafter im-
plementing certain of the contract terms-all during the
pendency of a real question concerning representation of
the employees In order to dissipate the effects of these
unfair labor practices, I shall recommend that the Compa-
ny withdraw and withhold all recognition from Local 917
and to cease giving effect to the aforementioned collective-
bargaining agreement, or to any renewal, modification, or
extension thereof, until such time as Local 917 shall have
been certified by the Board as the exclusive representative
of the employees in question However, nothing here shall
require the Company to vary or abandon any wage, hour,
seniority, or other substantive features of its relations with
its employees which have been established in the perfor-
mance of its agreement with Local 917 or to prejudice the
assertion by employees of any rights they may have there-
under
It has been found that the Company, in violation of Sec-
tion 8(a)(3), terminated Benny Andrews and, in violation
of Section 8(a)(3) and (4), substantially reduced the work-
ing hours of Leroy Howard It will therefore be recom-
mended that the Company offer Andrews immediate and
full reinstatement to his former position, and Howard to
his former full-time hours of employment, or, if such posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and priv-
ileges, and to make them whole for any loss of earnings
they may have suffered as a result of the discrimination
against them, by payment to them of a sum equal to that
which they would normally have earned, absent the dis
crimmation, from the date of the discrimination to the date
of the Company's offer of reinstatement, less net earnings,
in accordance with the formula set forth in F W Wool
worth Company 90 NLRB 289 (1950) and Isis Plumbing &
Heating Co, 138 NLRB 716 (1962) It will be further rec-
ommended that the Company preserve and make available
to the Board, upon request, all payroll records, social se-
curity payment records, timecards, personnel records and
reports, and all other records necessary and useful to de-
termine the amounts of backpay and the rights of reinstate-
ment under the terms of these recommendations
Upon the foregoing findings of fact, and upon the entire
record in the cases, I make the following
Having found that Respondent Company and Respon-
dent Teamsters Local 455 have engaged in certain unfair
labor practices, I shall recommend that they cease and de-
sist therefrom and take certain affirmative action designed
to effectuate the policies of the Act Although the broad
cease-and-desist order issued against the Company in the
prior case is outstanding, such an order against the Compa-
ny is independently required here by reason of the addi-
tional extensive violations it committed 97
96 Daniel A Donovan et al d/b/a New Fairview Hall Convalescent Home
v NLRB 520 F 2d 1316 (C A 2 1975) affg 206 NLRB 688 (1973)
97 N L R B v Express Publishing Company 312 U S 426 (1941) N L R B
v Entwistle Mfg Co 120 F 2d 532 (C A 4 1941)
CONCLUSIONS OF LAW
1 The Respondent Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 Shopmen's Local Union No 455, International Asso-
ciation of Bridge, Structural & Ornamental Iron Workers,
AFL-CIO, and Locals 917 and 840, International Brother
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, are each a labor organization within the
meaning of Section 2(5) of the Act
3 By specific conduct supporting, assisting and recog-
nizing Local 917, and by executing a collective-bargaining
agreement with it, when such union did not represent an
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uncoerced majority of the employees in the appropriate
unit, and when a real question concerning the representa-
tion of such employees existed, Respondent Company has
rendered and is rendering unlawful assistance and support
to Local 917 within the meaning of Section 8(a)(2) of the
Act
4 By terminating Benny Andrews, and by reducing the
scheduled work week of Leroy Howard, thereby discourag-
ing membership in Local 455, Respondent Company has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act
5 By the aforesaid discrimination against Leroy How-
ard also because he had given testimony under the Act,
Respondent Company has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(4)
of the Act
6 All production and maintenance employees, includ-
ing truckdrivers, employed by Respondent Company at its
Brooklyn, New York, plant, excluding office clerical em-
ployees, guards and supervisors as defined in the Act, con-
stitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act
7 Since January 9, 1975, Local 455 has been, and is
now, the exclusive representative of all employees in the
appropriate unit within the meaning of Section 9(a) of the
Act
8 By failing and refusing, at all times since January 9,
1975, to bargain collectively with Local 455 as the exclusive
representative of the employees in the appropriate unit,
Respondent Company has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
of the Act
9 By the foregoing, and by other specific acts and con-
duct interfering with, restraining and coercing employees
in the exercise of the rights guaranteed in Section 7 of the
Act, Respondent Company has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act
10 By specific acts and conduct restraining and coerc-
ing employees in the exercise of the rights guaranteed in
Section 7, Respondent Teamsters Local 455 has engaged in
and is engaging in unfair labor practices within the mean-
ing of Section 8(b)(1)(A) of the Act
11 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
Upon the above findings of fact, conclusions of law, and
the entire record in the cases, and pursuant to Section 10(c)
of the Act, I hereby recommend the following
ORDER 98
A Respondent Company, General Iron Corp, Brook-
lyn, New York, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Threatening employees with discharge, layoff, sus-
pension, or other reprisal, because of their activities in be-
half of Shopmen's Local Union No 455, International As-
sociation of Bridge, Structural & Ornamental Iron
Workers, AFL-CIO, or any other labor organization
(b) Threatening to close down the plant in the event or
because Local 455 is selected as the lawful bargaining rep-
resentative of the employees
(c) Threatening never to recognize or sign a collective-
bargaining contract with Local 455
(d) Threatening to lay off or take other reprisals against
employees to influence their vote in a Board election
(e) Promising or granting employees wage increases, or
other benefits, to undermine the support for Local 455, or
any other labor organization
(f) Assisting or contributing support to Local 917, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor or-
ganization, by recognizing or contracting with such labor
organization as the exclusive representative of any of its
employees for the purpose of collective bargaining at a
time when there exists a real question concerning represen-
tation, or when such labor organization does not represent
the majority of employees in an appropriate unit, or in any
other manner
(g) Giving effect to, performing, or in any manner en-
forcing the collective-bargaining agreement executed with
the aforesaid labor organization on December 1, 1974, or
to any modification, extension, renewal, or supplement
thereto, or any superseding agreements, unless and until
said labor organization has been certified by the Board as
the exclusive representative of such employees, provided,
however, nothing herein shall require Respondent Compa-
ny to vary or abandon any wage, hour, seniority, or other
substantive features of its relations with its employees
which have been established in performance of such agree-
ment or to prejudice the assertion by employees of any
rights they may have thereunder
(h) Discouraging membership in Shopmen's Local
Union No 455, International Association of Bridge, Struc-
tural & Ornamental Iron Workers, AFL-CIO, or in any
other labor organization, by terminating employees or cur
tailing their working hours, or in any other manner dis
criminating in regard to hire or tenure of employment or
any term or condition of employment
(i) Discriminating against employees because they gave
testimony under the Act
0) Failing or refusing to bargain collectively with Local
455 as the exclusive bargaining representative of all em-
ployees in the appropriate unit, described above
(k) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran
teed in Section 7 of the Act
2 Take the following affirmative action designed to ef-
fectuate the policies of the Act
(a) Upon request, recognize and bargain collectively
with Shopmen's Local Union No 455, International Asso-
98 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
GENERAL IRON CORP 1197
ciation of Bridge, Structural & Ornamental Iron Workers,
AFL-CIO, as the exclusive bargaining representative of its
employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and embody in a signed agree-
ment any understanding reached
(b) Withdraw and withhold all recognition from Local
917, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the representa-
tive of its employees for the purpose of collective bargain-
ing, unless and until said labor organization has been duly
certified by the Board as the exclusive representative of
such employees
(c) Offer Benny Andrews immediate and full reinstate-
ment to his former position, and Leroy Howard to his for-
mer full-time hours of employment, or, if such positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings, in the man-
ner set forth in the section of this Decision entitled, `The
Remedy "
(d) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set
forth in the section of this Decision entitled, "The Reme-
dy"
(e) Post at its Brooklyn, New York, plant and facilities,
copies of the attached notice marked "Appendix A," s9 in
English, Spanish, and Italian translations Copies of said
notice, on forms provided by the Regional Director for
Region 29, shall, after being duly signed by Respondent
Company, be posted immediately upon receipt thereof, in
conspicuous places, and be maintained for a period of 60
consecutive days Reasonable steps shall be taken to ensure
that said notices are not altered, defaced, or covered by
any other material
(f) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent Company has taken to comply herewith
B Respondent Union, Shopmen's Local Union No
455, International Association of Bridge, Structural & Or-
namental Iron Workers, AFL-CIO, New York, New York,
its officers, agents, and representatives, shall
I Cease and desist from
(a) Restraining or coercing the employees of Respon-
dent Company in the exercise of their rights guaranteed in
Section 7 of the Act, by threatening nonstriking employees
with reprisals, or by condoning physical assaults against
nonstriking employees because of their desire to cross a
picket line at Respondent Company, or by condoning
threats to damage company property, or, in the presence of
employees, by attempting physically to prevent ingress or
egress of company vehicles at the plant, or by attempting
to damage or damaging company property, or by engaging
in violence directed against such property
99 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
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act
[2 Take the following affirmative action designed to ef-
fectuate the policies of the Act ]
[a] Post at its office and all meeting halls, and at Re-
spondent Company's plant, if Respondent Company is
willing, copies of the attached notice marked "Appendix
B," I in English, Spanish, and Italian translations Copies
of said notice, on forms provided by the Regional Director
for Region 29, after being duly signed by Local 455's repre-
sentative, shall be posted by it 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 Reaso-
nable steps shall be taken by Local 455 to ensure that said
notices are not altered, defaced, or covered by any other
material
[b] Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Local 455 has taken to comply herewith
1 See fn 99 supra
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with discharge,
layoff, suspension, or other reprisal, because of their
activities in behalf of Shopmen s Local Union No
455, International Association of Bridge, Structural &
Ornamental Iron Workers, AFL-CIO, or any other
labor organization
WE WILL NOT threaten to close down the plant in the
event or because Local 455 is selected as the lawful
bargaining representative of our employees
WE WILL NOT threaten never to recognize or sign a
collective bargaining contract with Local 455
WE WILL NOT threaten to lay off or take other repri
sals against employees to influence their vote in a
Board election
WE WILL NOT promise or grant our employees wage
increases or other benefits, to undermine their sup-
port for Local 455, or any other labor organization
WE WILL NOT assist or contribute support to Local
917, International Brotherhood of Teamsters Chauf
feurs, Warehousemen & Helpers of America, or any
other labor organization, by recognizing or contract-
ing with such labor organization as the executive rep
resentative of any of our employees for the purpose of
collective bargaining at a time when there exists a real
question concerning representation, or when such la-
bor organization does not represent the majority of
employees in an appropriate unit, or in any other
manner
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT give effect to, perform, or in any man
ner enforce the collective-bargaining agreement exe
cuted with the aforesaid labor organization on De-
cember 1, 1974, or to any modification, extension,
renewal, or supplement thereto, or any superseding
agreements, unless and until said labor organization
has been certified by the Board as the exclusive repre-
sentative of our employees, but nothing herein shall
be construed to require that we vary or abandon any
existing term or condition of employment
WE WILL NOT discourage membership in or activities
in behalf of Shopmen's Local Union No 455, Interna-
tional Association of Bridge, Structural & Ornamental
Iron Workers, AFL CIO, or in any other labor orga-
nization, by terminating our employees or curtailing
their working hours, or in any other manner discrimi
nating in regard to hire or tenure of employment or
any term or condition of employment
WE WILL NOT discriminate against our employees be-
cause they gave testimony under the Act
WE WILL NOT fail or refuse to bargain collectively
with Local 455 as the exclusive bargaining representa-
tive of all employees in the appropriate unit, described
below
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed in the National Labor Rela-
tions Act, which are as follows
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all these things
WE WILL withdraw and withhold all recognition
from Local 917 International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the representative of our employees for
the purpose of collective bargaining, unless and until
said labor organization has been certified as such by
the Board
WE WILL offer Benny Andrews immediate and full
reinstatement to his former position, and Leroy How-
ard to his former full-time hours of employment or, if
such positions no longer exist, to substantially equiva
lent positions, without prejudice to their seniority or
other rights and privileges
WE WILL make Benny Andrews and Leroy Howard
whole for any loss of earnings because of the discrimi-
nation against them, plus 6-percent interest
WE WILL, upon request, recognize and bargain col-
lectively with Shopmen's Local Union No 455, Inter-
national Association of Bridge, Structural & Orna-
mental Iron Workers AFL-CIO, as the exclusive
bargaining representative of our employees in the ap-
propriate unit, and put into a signed agreement any
understanding reached The appropriate unit is
All production and maintenance employees, includ-
i'ig truckdrivers, employed at our Brooklyn, New
York, plant, excluding office clerical employees,
guards and supervisors as defined in the National
Labor Relations Act
GENERAL IRON CORP
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten reprisals, or engage in or con-
done physical assaults , against nonstriking employees
because of their desire to cross the picket line at the
General Iron Corp , or, in the presence of employees,
prevent or attempt to prevent by physical force the
ingress or egress of company vehicles at the plant, or
engage in or condone violence directed against com-
pany vehicles or other company property , or in any
like or related manner restrain or coerce employees of
the General Iron Corp , in the exercise of their rights
guaranteed in the National Labor Relations Act
SHOPMEN'S LOCAL UNION No 455, INTERNATIONAL
ASSOCIATION OF BRIDGE, STRUCTURAL &
ORNAMENTAL IRON WORKERS AFL-CIO