Health Care Employees

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 800 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 1199, National Union of Hospital and Health
Care Employees, RWDSU, AFL-CIO and Frances
Schervier Home and Hospital. Case 2-CB-7383
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On July 6, 1979, Administrative Law Judge Benja-
min Schlesinger issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs,
and Respondent filed cross-exceptions and a sup-
porting brief.
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 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Dis-
trict 1199, National Union of Hospital and Health
Care Employees, RWDSU, AFL-CIO, its officers,
agents, and representatives, shall:
i. Cease and desist from:
(a) Restraining and coercing employees of Frances
Scherview Home and Hospital, or employees of any
other employees of any other employer, in their right
not to join or support any strike by physical violence
upon employees and supervisors at or away from the
picket line, by harming employees and supervisors
otherwise at or away from the picket line, and by
following or harassing employees and supervisors at
or away from the picket line.
(b) Blocking ingress to or egress from the Employ-
er's premises, or the premises of any other employer,
either by blocking the entrances or by inflicting dam-
age or throwing objects, including rocks, at vehicles
transporting employees driving in or out of the Em-
'In "The Remedy" section of his Decision, the Administrative Law Judge
found that Respondent has a proclivity to engage in unfair labor practices
similar to those found here, and stated that he would issue a broad order
forbidding violence against not only the employees of the Employer in this
case, but also those of any other employer engaged in commerce. However,
through apparent inadvertence, his recommended Order was limited to the
employees of this Employer. To correct this, we will substitute the attached
Order and notice for that of the Administrative Law Judge.
ployer's premises in order to discourage such employ-
ees in the exercise of their right not to join or support
any strike.
(c) In any like or related manner, restraining or
coercing employees of the Employer, or employees of
any other employer, in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix."2 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 2, after being duly signed by its autho-
rized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees and members customarily are posted. Rea-
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Sign and mail sufficient copies of the said at-
tached notice to the Regional Director for Region 2,
for posting, if Frances Schevier Home and Hospital is
willing, at places where notices to employees custom-
arily are posted. Such copies shall be furnished to
Respondent by the said Regional Director.
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
2 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act, as amended. We have been ordered to take cer-
tain steps to correct our violations and have been or-
dered to post this notice.
WE WILL NOT restrain or coerce the employees
of Frances Schervier Home and Hospital, or the
employees of any other employer, in their right
not to join or support any strike by physical vio-
lence upon employees and supervisors at or away
from the picket line, by harming employees or
supervisors otherwise at or away from the picket
245 NLRB No. 105
800
DISTRICT 1199. HEALTH CARE EMPLOYEES
line, and by following or harassing employees
and supervisors at or away from the picket line.
WE WILL NOT block ingress to, or regress from,
the Employer's premises, or the premises of any
other employer, either by blocking the entrances
or by inflicting damage or throwing objects, in-
cluding rocks, at vehicles transporting employees
in or out of the Employer's premises in order to
discourage such employees in the exercise of
their right not to join or support any strike.
WE WILL NOT, in any like or related manner,
restrain or coerce employees of Frances Scher-
vier Home and Hospital, or employees of any
other employer, in the exercise of the rights guar-
anteed them by Section 7 of the Act.
DISTRICT 1199, NATIONAL UNION OF HOSPI-
TAL AND HEALTH CARE EMPI.OYEES,
RWDSU, AFL-CIO
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge:
This case was heard before me in New York, New York, on
April 4 and 5, and June 4, 1979. The unfair labor practice
charge in this proceeding was filed on August 15, 1978,' and
a complaint issued on September 29. as later amended, al-
leging that District 1199, National Union of Hospital and
Health Care Employees, RWDSU, AFL-CIO' (Union) vio-
lated Section 8(b)(1)(A) of the Act by engaging in various
acts of violence against employees of the Frances Schervier
Home and Hospital (Employer or home). The principal is-
sues are whether the Union is responsible for the violence,
many incidents of which were not contested: and, if so,
whether a broad order is warranted as a remedy.
I have considered the entire record of the proceeding be-
fore me, including my observation of the demeanor of the
witnesses, as well as the memorandum filed by the General
Counsel and the briefs filed by the Employer and the
Union. Accordingly, I make the following findings of fact
and conclusions of law:
FINDINGS OF FACT
I. JURISDICTION
I find, as the Union admits, that at all times material
herein, the Employer, a New York corporation, has main-
tained its principal office and place of business in the River-
dale section of the Bronx, New York. The Employer is, and
has been at all times material herein, engaged in the opera-
tion of a nursing home facility providing nursing, health
convalescent, custodial care services, and congregate living
for the aged. Annually, the Employer in the course and
conduct of its operations, derived gross revenues in excess
I Unless otherwise indicated, all dates herein refer to 1978.
2 The name of Respondent appears as amended at he hearing
of $250,000 and annually purchased and received at its
Bronx. New York. facilities, goods and materials valued in
excess of $50.000 directly from points outside the State of
New York. I therefore conclude, as the Union admits, that
the Employer is now, and has been at all times material
herein, an employer engaged in commerce within the mean-
ing of Section 2(2). (6), and (7) of the Act and a health care
institution within the meaning of Section 2(14) of the Act.
I further find, as the Union admits, that the Union is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
II. IlE Al I.F(;F) UiNFAIR ABOR PRA(II( ES
A. Prelimninan Staletlemenr
On the eve of the hearing, March 28. 1979, the Union
moved that the Board issue an Order requiring Loubert
Pamphile, David Wooten, Mabel Pamphile, Anita Diaz.
James Wrobleski, Edward Constanza, and Phil Witkower
to give testimony or provide other information in this pro-
ceeding under a grant of immunity pursuant to 18 U.S.C.
6002. The Board denied this motion, without prejudice to
renewal before me, pursuant to Section 102.31(c) of the
Board's rules and regulations. Thereupon, the Union re-
newed its request for a grant of immunity, adding the name
of Lawrence Fanelli to its application, which was concurred
by the General Counsel and the Employer. For reasons not
here relevant. I recommended that the Board seek an order
granting immunity; and the Board adopted my recommen-
dation, sought and obtained approval for the grant of im-
munity from the Attorney General of the United States
pursuant to 18 U.S.C. 6004 and 28 C.F.R. 0.175(a), and
issued an order granting immunity on May 24. 1979. Al-
though many of the individuals for whom an order granting
immunity was sought were named as participants in the
violence testified to by witnesses for the General Counsel,
only one of the individuals named by the Union, Witkower,
testified in defense of the unfair labor practice charges.'
As a result, many of the allegations of violence are
wholly uncontested; and, indeed, the testimony of Wit-
kower constituted an admission that the striking employees
got out of hand and committed grave violence on August
19, 1978.
B. The Union Strikes and the Alleged Incidents of Violence
As a result of an election held in January 1978, the
Union was certified as the collective-bargaining representa-
tive of all service and maintenance employees of the Home.
effective on or about February 5. Collective-bargaining ne-
gotiations began in March, the union negotiating with a
team headed by Roman Malave, a union vice president,
Doris Turner. a union executive vice president. and Phillip
Witkower, union organizer-hospital division. In addition,
the union negotiating team included a group of 10 or more
employees, including Luis Rivera. Mabel Pamphile. Lou-
bert Pamphile, Luz Gonzalez and Eduardo Constanza. all
Wooten died on June 2, 1979. 2 days before the last day of the hearing
herein
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of whom play a part in the conduct complained of by the
General Counsel. By July 27, no agreement had been
reached, and the Union struck.
Union pickets were placed at three points around the
Home's 9-1/2 acres, which was bounded on the east by
Independence Avenue, on the north by 231st Street, and on
the west by Palisade Avenue. The primary point of picket-
ing was at the main entrance to the home on the west side
of Independence Avenue. The Union paid for and set up a
large trailer on the east side of Independence Avenue about
100 feet north of the main entrance and used this trailer as
strike headquarters. It had telephone facilities, electricity. a
stove for making coffee, a desk, and 40 to 50 chairs for
meetings. Picketers used it to register each day for picketing
duty and picked up Union hats, picket signs, and union
literature there. Two portable toilets were set up near the
trailer. The other principal picket line was established at the
north entrance of the home on 231st Street. In addition,
there was a small picket line established on the west side of
the home, on the east side of Palisade Avenue, near a small
service road which went to the residences of two of the
home's physicians.
In response to the Union's threatened strike and picket
lines, the home arranged to transport its employees to and
from the home by using its own car and van and also other
vans and a school bus, all driven by employees of the home.
Later, the home contracted for the bus service with another
operator. Although the home arranged for many of its em-
ployees to live on its grounds, most of the employees still
desired to live at their homes. Thus, the home arranged to
pick up the employees either near the subway station or
principal bus stop or at the Century Garage, located close
to the subway station and bus stop, where some employees
were able to park their cars. The vans, cars, and buses were
placed on tight schedules-they would leave the home in a
caravan (for security purposes) at specified times to go to
the garage and the subway station, leave those places after
specified waiting periods, and cross the picket line into the
home at scheduled times. The police were informed of these
schedules and escorted the vehicles to and from the prem-
ises. In addition, police were usually positioned at the en-
trances to the Home where the picketing took place, to in-
sure that no violence occurred. Notwithstanding these
precautions, various incidents of violence occurred, primar-
ily at the end of the employees' shifts, when employees were
entering and leaving the home. Many of these incidents
resulted in injury to property and some resulted in serious
bodily harm.
1. July 30, 1978
On Sunday afternoon, July 30, as a caravan of two vans
and two cars was leaving the 231st Street side of the nursing
home, a group of four pickets (including Constanza and
Loubert Pamphile) picked up objects (perhaps stones) from
the ground and threw them at and hit the vans.
2. August 2, 1978
On August 2, at approximately 7:15 or 7:20 p.m.. a cara-
van of four vans, filled almost to capacity, and a Buick
driven by William Smith, the home's assistant administra-
tor, followed by a police escort, left the property. The cara-
van proceeded to the Century Garage and discharged em-
ployees who had left their cars parked there. At that time.
there were three strikers at the garage, including Constanza.
The caravan then proceeded near the subway station,
where there were three other strikers Loubert Pamphile.
Wooten, and Robert Bailey. The police decided not to ac-
company the caravan back to the home, the normal proce-
dure, because of the presence of the other strikers at that
location, and instead accompanied the employees who were
leaving the vans to go to the subway station to make sure
that there was no incident. As a result. the four vans started
back to the home, without police escort.
They did not go very far before the car driven by Smith
stalled. As he was trying to get his car started, a car con-
taining Pamphile, Wooten and Bailey pulled up behind
Smith's car, and, as Smith started his car, followed him; the
two individuals who were not driving were throwing rocks
(the size of a tennis ball, fist, or softball, according to the
various witnesses) at Smith's car for several blocks. When
Smith finally arrived at the Century Garage, with the strik-
ers' car behind him, one of the people in the car yelled to
the three strikers who were at the garage to "get the Buick,"
and they, in turn (including C(onstanza), picked up rocks
and proceeded to throw them at Smith's car, hitting it as
well as one of the vans.
Smith urged the other vans in the caravan to hurry back
to the nursing home, and the vans moved off: but the cara-
van had to stop for a red light near the home. At that point,
Wooten got out of the car and continued to throw rocks at
Smith's car. Bailey carried from the car a large rock, ap-
proximately 8 to 10 inches in diameter, approached Smith's
vehicle with a rock placed over his head, and smashed it
down on the rear window of Smith's car, shattering it. That
was not the only damage to his car. As a result of being hit
approximately 15 different times, the vinyl roof was ripped
and the back of the trunk and the sides of the car were
dented and scratched.4
3. August 11, 1978
At about 3 p.m. on August 11 - the end of the shift-the
school bus, loaded with about 60 employees, was leaving
the premises to deliver them to the Century Garage and the
subway station. At the exit on 231st Street, approximately
20 to 25 pickets were present (many more than were nor-
mally there at times where there was no change of shifts),
together with one policeman assigned to that area. As the
bus was turning onto 231st Street, somewhat cautiously be-
cause the pickets had moved one of the wooden police
horses about one-third into the exit, the pickets attacked the
bus, smashing four to five windows with rocks and pound-
ing on the side of the bus. A rock was thrown through the
door and landed at the feet of the driver. The door and one
side of the bus was dented. Several of the passengers com-
plained of cuts and scratches on their arms from the splin-
tered glass windows.
When the caravan returned to the home at about 3:45
p.m. with employees for the next shift., striker James Wro-
4 This incident was thoroughly corrobtxrated hb two of the employee-driv-
ers of the vans, who witnessed numerous o the aittacks upon Smith's car
802
DISTRICT 1199. HEALTH CARE EMPLOYEES
bleski, holding a "large object" in his hand, pounded the
side of one of the vans and dented it.
4. August 14, 1978
At approximately 7 a.m. or shortly before on August 14.
the school bus, after picking up employees for the shift
starting at 7 a.m., was travelling back to the home. When
the bus reached 231st Street and Independence Avenue, it
stopped for a stop sign. Strikers who were standing between
the cars parked off of Independence Avenue, coming from
the union trailer, rushed the bus, banged on the side of it,
and smashed the rear door window and a few others.
5. August 19. 1978
On the afternoon of August 19, the customary pick up of
passengers and employees was made near the subway sta-
tion and brought to the Century Garage. There were ap-
proximately 18 to 25 employees in two vans which were
ordered by police officer Gallagher, who was accompanying
the vans, to remain at the garage pending further instruc-
tions to Gallagher from his superiors, apparently wary of
returning to the home where a large union rally of about
200 to 500 employees was being held. Unbeknownst to Gal-
lagher and the employees who were waiting in the garage,
when the rally was over, Witkower led a group of about 100
employees from the home to the Century Garage. Galla-
gher, seeing the mass of picketers marching down the street
towards the garage, ordered all employees to enter the vans
and lock the doors; then he attempted to close the garage
doors, but was unable to do so. In the meantime, he saw
Witkower, walking in front of the group of picketers, and
when Witkower approached, asked him to identify himself.
Witkower said that he was the strike captain in charge of all
the strikers. Gallagher told him to stay where he was and
leaned into the radio car to call for assistance from the
police station. As he was doing so, he saw Witkower beckon
to the crowd of strikers and wave towards the two vans in
the garage. With that, the strikers stormed pass Gallagher
and attacked the vans, breaking almost all of the windows,
shattering glass, and pounding the sides of the vans with
rocks and cans. Several of the passengers in the vans were
cut by the flying glass; one required three sutures for a cut
nerve in her leg; another was treated for glass slivers in her
eye. Shortly thereafter, police assistance arrived and a num-
ber of the strikers, including Witkower, were arrested.
Ultimately, the drivers of the vans started their engines
and tried to escape from the garage. The strikers tried to
impede their leaving by reaching through the driver's win-
dow to take the keys and attempting to turn the steering
wheel, and by blocking the exit and standing in front of the
vans; but the drivers eventually forced their way through
the crowd, despite the continued rock throwing of the strik-
ers.
I find that Witkower took no action to prevent the acts of
violence nor did he say anything to dissuade the strikers
from attacking the vans. In doing so, I discredit his testi-
mony to the contrary. Witkower clearly signalled the strik-
ers into the garage, and he entered the garage without try-
ing to impede the progress of the other employees, which is
inconsistent with his alleged attempts to keep the strikers
out of the garage.'
6. From July 27 to October 31, 1978
From the commencement of the strike, July 27. until the
end of October. the picketers constantly harassed grounds-
keeper Magee by throwing rocks, cans, and bottles at him
while he was mowing the grass at the home. Magee testified
that these incidents occurred at least I day each week and
that he was hit six or seven times.
7. August 1978
Although not specifically alleged in the complaint, there
were two other incidents of rock throwing and banging on
the vehicles as they attempted to transport employees to the
home. On some date between August II and 19, one un-
identified employee banged the drivers side of the windows
on one or two of the vans. Also, during August, there was
constant rock throwing and banging on vans, whether occu-
pied or not, and approximately three times a week, there
was blocking of the driveways.
C. Concluding Findings
The Union attempts to absolve itself from all liability for
the violence on the ground that the "conduct cannot be
attributed to District 1199 because of the absence of partici-
pation or other involvement by union agents as defined in
Section 2(13) of the Act." In the circumstances of this case,
that is too simplistic. In International Longshoremen's and
Warehousemen's Union, CIO, Local 6, International Long-
shoremen's and Warhousemen's Union, C.I.O. (Sunset Line
and Twine Company), 79 NLRB 1487, 1509 (1948), the
Board stated:
A principal may be responsible for the act of his
agent within the scope of the agent's general authority,
or the "scope of his employment" if the agent is a ser-
vant, even though the principal has not specifically au-
thorized or indeed may have specifically forbidden the
act in question. It is enough if the principal actually
empowered the agent to represent him in the general
area within which the agent acted.
It is clear that the Union, by instituting the strike and
authorizing pickets to be present on the picket line, empow-
ered the pickets to act as its representatives and in its inter-
est under the overall supervision of union vice president
Malave. The strike was planned carefully by the Union,
with an overall strike committee, picket captains on each
shift, and a union organizer present each day. The picket
captains reported to the union organizers daily, and the
captains and strikers reported to Malave every Wednesday
on what was going on at the picket line. The Union also
planned the mass rallies which were held, including the
printing and distribution of leaflets advertising the mass ral-
lies, from which flowed the most serious incident of violence
on August 19. Malave also admitted that, when arrests were
I There is no indication, however. that Wilkower participated directly in
the violence which took place.
803
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made of strikers, it provided legal counsel and arranged for
the bail and release of the arrested individuals. The union
attornies herein represented Wooten when he was arrested
on August 2 as a result of his actions that day, were present
at his arraignment the next morning, and arranged for his
release. They also represented the other participants in the
August 2 and 19 incidents.
As a result of all of the foregoing, contrary to the Union's
argument, there was no absence of its involvement in the
strike and the violence which resulted from it. Although
there may not have been union officers throwing rocks on
the picket line, 6 nonetheless, there was involvement and
participation. Indeed, throughout the strike, the Union was
physically present at the site of the picketing, having estab-
lished the trailer as its strike headquarters, clearly marked
by Union posters and placards, near the main entrance to
the home. Pickets came there every morning to register and
obtain their assignments to picket. As a result of their regis-
tration, the pickets then became eligible to receive, and
were paid by the Union, $30-$40 in expense money each
week.7 Union vice president Malave, who was in charge of
the strike, used the trailer as his office every Wednesday:
and executive vice president Turner often met there with
the picketers. The picketers, including Loubert Pamphile
and Constanza. were seen going into the trailer three or
four times each week and exiting with union hats and
picket signs to assume their positions on the picket lines.
In these circumstances, the strike was conducted in the
backyard of the Union's office. That there may have been
no union officers nor organizers seen at the picket line when
the violence occurred is of no significance, for the Union
was close at hand. I do not agree with the Union's conten-
tion that the General Counsel's case must fall because of
the lack of positive identification of a union officer or agent
at the line at the exact time of the violence, especially where
picketers traveled back and forth to the nearby trailer, pre-
sumably to receive their instructions. The Union's argu-
ment seems to be that the officers and agents of the Union
could remain enclosed in the trailer and, although fully
aware of violence within short distances, could thereby in-
6 In finding the Union responsible for the violence against the employees,
vans, and busses of the Home, I do not rely upon the fact that several
identified individuals were members of the union negotiating committee or
that other members of the committee were present at the time the violence
occurred. The members of the committee were elected by the Home's em-
ployees, prepared literature, and attended negotiations, sometimes partici-
pating and sometimes listening. They were not paid for the services as com-
mitee members. Clearly, Malave was in charge of the negotiations and the
strike, and was assisted by Turner and Witkower. There was no showing that
the negotiating committee had any role in the strike. To impose upon a
union, responsibility for the acts of every one of its committee members
would be unwarranted. No Board authority has been cited to support this
proposition; indeed, there is authority rejecting the views espoused herein.
Teamsters Local 783, International Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America (Coca-Cola Bottling Company of Lou-
isville), 160 NLRB 1776, 1779 (1966); see discussion of employee Patrello in
United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, Local Union No. 83 (Power
City Plumbing d Heating, Inc.), 228 NLRB 216 (1977), set aside on other
grounds sub nom. W. Mullett v. N.L.R.B., 571 F.2d 1292 (4th Cir. 1978). 1
disagree with General Counsel's contention that, upon remand, 238 NLRB
499 (1978), the Board reversed itself, as it accepted the Circuit's opinion only
"as the law of this case."
I The amount of expense money was based on the number of dependents
of the picketing employee.
sulate the Union from any liability. Such an argument is
unjustified and lacks common sense. In any event, Malave
testified that the picket captains and union organizers were
on the picket line each day: and, contrary to Witkower's
testimony at the hearing, I find that he, too, was present at
the picket line each day.8
Thus, there is sufficient indicia of authorization and
agency herein to make the conduct of the pickets on the
picket line the responsibility of the Union. Drivers, Sales-
men, Warehousemen, Milk Processors, Cannery, Dairy Em-
ployees and Helpers Union Local No. 695, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of'A merica (Yellow, Cab & Transfer Co.), 221 NLRB
647 (1975). Indeed, "in authorized strikes, unions are nor-
mally responsible for the acts of authorized pickets," and
"[t]hreats and the employment of force on a picket line,
even though forbidden, are reasonably to be expected and
so 'within the scope of employment of pickets for which the
labor organization is responsible.' " Teamsters, Chauffeurs,
Helpers & Taxicab Drivers Local Union 327, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Coca-Cola Bottling Works of Nashville),
184 NLRB 84, 94 (1970).
With the presence of Witkower and higher ranking union
officials of the Union at the picket line each day, and the
appointment of picket line captains who designated the
picketers for each shift of the Union's around-the-clock
picketing, the violence is the responsibility of the Union,
whether the specific wrongdoers were identified or not. As
the Board stated in Local 248, Meat & Allied Food Workers,
a/w Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL CIO (Milwaukee Independent Meat
Packers Association), 222 NLRB 1023, 1034 (1976), enfd. 84
LC 110,826 (1978):
There is no question that the picket captains were the
agents of the Union representing it in the general area
of the strike and thus responsible for acts occuring
within the scope of that general authority even if not
specifically authorized or indeed specifically forbidden.
International Longshoremen's and Warehousemen's
Union, C 1.0 (Sunset Line and Twine Company), 79
NLRB 1487 (1948). Moreover, while individual union
members as such cannot be considered agents of the
Union per se, Sunset Line and Twine Company, supra,
79 NLRB at 1508, authorized pickets who are paid
strike benefits can. Teamsters, Chauffeurs, Helpers &
Taxicab Drivers Local Union 237, (Coca-Cola Bottling
' In an affidavit, dictated and signed by Witkower on August 23, in appar-
ent opposition to an injunction sought by the Employer against the Union in
the Supreme Court of the State of New York, Bronx County, bearing index
number 14979/78 and captioned "Frances Schervier Nursing Home & Hospi-
tal v. District 1199, ec. and Leon Davis, President, etc.," Witkower averred:
"I have been present at the picket line every day since the strike began." I
discredit his testimony at the hearing, disavowing the clear import of this
statement and downplaying his role in the picketing to one shift of 8 hours
each week and otherwise visiting the trailer once or twice each week to make
deliveries. I note, however, his admission at the hearing that "the Union
people who ranked higher than me were at the picket line every day" and his
denial that an organizer was present each day. This is inconsistent with
Malave's testimony that an organizer was present each day. It is unnecessary
to resolve this conflict between the two union witnesses. It is enough to
conclude that agents and officers of the Union were at the line each day and
that the Union was physically present at the time of the incidents alleged
herein.
804
DISTRICT 1199. HEALTH CARE EMPLOYEES
Works of Nashville), 184 NLRB 84, 94 (1970). Thus
there is no question that misconduct by picket line cap-
tains and pickets on the picket lines is attributable to
the Union. Nor is it necessary that the individual iden-
tity of the pickets by established. Service Employees
International Union, Local No. 50, AFL-CIO (Our
Lady of Perpetual Help Nursing Home, Inc.), 208
NLRB 117 (1974); International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers &
Helpers, Local 696 (The Kargard Company), 196 NLRB
645 (1972); General Drivers and Dairy Employees Local
Union 563 (Northern Contractors Supply, Inc.), 183
NLRB 1023 (1970); Drivers, Salesmen, Warehousemen,
Milk Processors, Cannery, Dairy Employees and Help-
ers Union Local 695, IBT (Tony Pellitteri Trucking Ser-
vice, Inc.), 174 NLRB 753 (1969). In the Kargard case,
supra, 196 NLRB at 650 fn. II. it was stated that where
the "overall facts clearly reveal that the [misconductj
was caused by pickets" it was not "necessary to deter-
mine the exact picket who caused the Imisconducti."
See also: Amalgamated Meat Cutters and Butcher Work-
men of North America, and Local 222 (Iowa Beef Processors,
Inc.), 233 NLRB 839 (1977); Local 810, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America (Russell Plastics Technology, Inc.), 235 NLRB 40
(1978).
Furthermore, it is also clear that where a union autho-
rizes a picket line, it is required to retain control over the
picketing and, if it is unwilling or unable to take the neces-
sary steps to control its pickets, it must bear the responsibil-
ity for their misconduct. Kargard, 196 NLRB at 647. Here,
it was impossible for the Union to escape knowledge of the
violence, which began immediately after the strike started.
In fact, Malave admitted that every Wednesday, he re-
ceived resports, carried in busses and vans that the home
had rented for that purpose, about the employees who were
crossing the Union's picket lines. I conclude that there were
discussions of how to stop that from happening and further
conclude that the Union did nothing to correct the actions
taken by the individuals responsible for the violence.
Rather, it appears that the Union continued to increase the
number of pickets at each change of shift to hamper the
efforts of the home to replace the strikers and to permit the
violence at shift changes to take place. The same goals
prompted the Union to take actions away from the picket
lines; these actions, in the circumstances of this proceeding,
constituted mere extensions and redirections of its picket
lines. Service Employees International Union, Local No. 50,
supra, 208 NLRB at 120.
The purpose of a primary economic strike is to exert
pressure upon the employer to accede to certain demands
of the employees. The pressure is exerted by withholding
services from the employer and attempting to persuade oth-
ers from helping the employer run his business. The strike
at the Home used the same pressure, the Union's object
being to withhold the services of the strikers from the Home
and to stop other employees from lending their services to
the Home. As to this latter object, Witkower testified with
regard to the activities of August 19: "It was my intention
to keep [the employees] in that garage, hopefully as long as
possible. It was getting close to what we normally thought
was shift change which is one of the reasons that we held
demonstrations at that time, to try to make it inconvenient
to the Home, to prevent the shifts from changing so that
people inside the home would have to stay there and people
who were not there won't come through .... We were
hoping to block off that garage to keep all the vans inside."
Although Witkower's statements were directed to the
August 19 incident,9 I find that one of the Union's aims was
to prevent the Home from replacing the strikers, which is
not an illegitimate goal, if done through peaceful persua-
sion. But the Union did not use peaceful means. Rather, it
resorted to stoning cars, breaking car windows, and causing
bodily injury, all of which is wholly contrary to what it was
entitled to do. The total effect was an attempt to intimidate
employees so they would be fearful of crossing the Union's
picket line, in violation of those employees' Section 7 rights
to honor or to cross the line, depending upon their own
uncoerced predilections. The stoning of Smith's car on Au-
gust 2. in the presence of employees, was for the purpose.
International Woodworkers of America, AFL CIO. L(ocal S-
426 and S-429 (W. T. Smith Lumber Company), 116 NLRB
507 (1956), enfd. 243 F.2d 745 (5th Cir. 1957); Local 140,
United Furniture Workers of America, CIO. Alexr Sirota and
Joaquim Pijuin Alvares (Brooklivn Spring Corporation), 113
NLRB 815 (1955), enfd. 233 F.2d 539 (2d. Cir. 1956).
C(N(I.USIONS OF LAW
I. Frances Schervier Home and Hospital is an employer
within the meaning of Section 2(6) and (7) of the Act and a
health care institution within the meaning of Section 2(14)
of the Act.
2. Respondent District 1199, National Union of Hospital
and Health Care Employees, RWDSU, AFL CIO, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
3. Respondent has violated Section 8(b)(1)(A) of the Act
through the commission of acts of restraint and coercion
which interfere with the exercise of rights of employees
guaranteed by Section 7 of the Act.
4. Respondent, by its agents, Phillip Witkower and other
striking employees, by engaging in physical violence against
employees and supervisors of the Employer in the presence
of employees, by injuring employees of the Employer, by
damaging vehicles of the Employer, by following or harass-
ing employees at or away from the picket line, by hindering
ingress to, or egress from, the Employer's premises to dis-
courage employees in the exercise of their rights not to join
or support any strike, thereby engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(b)(1)(A) and 2(6) and (7) of the Act.
THE REMEDY
At the hearing, the General Counsel relied for the grant
of a broad order upon three prior proceedings in which the
Union was found to have violated Section 8(b)(1)(A) in the
same respects as have been alleged, and are found, herein.
However, in his letter memorandum, General Counsel con-
9 Witkower testified that the Union knew that some nonstrikers were park-
ing their cars in the garage.
805
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cedes that I may not rely on District 1199 (Woodland Nurs-
ing Home Corp.), Case 2 CB 6047 (approved by Board Or-
der DS-843 and enforced by the Second Circuit on June 16.
1976, Appeal No. 76 4146)., because of the inclusion of a
nonadmission clause in the settlement agreement, citing
Raymond Buick, Inc., and Amalgamated Local Union 355.
173 NLRB 1292, 1293 (1968), enfd. 445 F.2d 644 (2d. Cir.
1971). 1 agree. Furthermore, I note that paragraph 8 of the
settlement agreement in District 1199 (Hurlbut Nursing
Home), Case 3-CB-2655 (approved by Board Order DS
889 and enforced by the Second Circuit on January 13,
1977. Appeal No. 77 4011), contains the indentical nonad-
mission clause. Accordingly, I may not consider that pro-
ceeding to determine the Union's proclivity. if any, to vio-
late the Act so as to justify the issuance of a broad order
herein.
On January 31, 1977, the Board entered its Decision and
Order (227 NLRB 1732) against the Union involving South-
port Manor Convalescent Center, Inc. The Board ordered
the Union to cease and desist from certain activities relating
to the employees of the center, i.e.: threatening to cause
harm to or to kill the employees, assaulting the employees.
blocking ingress and egress of the employees to and from
the premises of the center, striking the automobiles of em-
ployees, throwing liquids and spitting on the automobiles of
employees, and threatening to cause damage to the auto-
mobiles of employees. Among the incidents relied upon by
the Board in its Decision were the slapping across the face
of one of the employees, the throwing of hot chocolate at
the side of a van, the hitting of the window of a car with a
fist, the throwing of coffee and spitting on the windshield
and car window of another car, the throwing of soda on its
windshield, and the placement of glass and nails on the
driveway of the center. The Board's Order was enforced by
the Second Circuit on January 4. 1978 (Appeal No. 77
4119.
The acts committed by the Union against the employees
and supervisor of the Home were similar to, but more seri-
ous than those found in violation of the Act in Southlport
Manor. The threats to damage automobiles have become a
reality. The liquids thrown on vehicles have changed to
rocks and cans. Employees have been injured more seri-
ously. There is no doubt that Witkower led the strikers to
the garage on August 19 and that the violence which en-
sued was the direct result of his decision to attempt to stop
the flow of vans and their passengers employees into the
Home. The massing of 100 or more pickets in the vicinity of
the garage, with the intent to physically block the vans, was
illegal in itself. The fact that it erupted in violence, which I
find could easily have been foreseen by the union leader-
ship, especially with the Union's background of earlier vio-
lations of the Act, was so likely and probable that, based on
this incident alone. I might find that a broad order against
the Union was fully justified.
However, the incidents on July 30 and August 2. 11, and
14, together with the physical harassment of Magee
through October, although less dramatic, are no less repre-
hensible and need to be corrected.
It clearly appears that this Union has a proclivity to at-
tempt to convince employees to support its strike by brute
force. The object of its violence, in this proceeding and in
Southpor Manor, has been not only the persons of employ-
ees, but the vehicles which the employees used to ride to
work. The violence in this case is no more than a carryover
of the same kind of violence which the Union was ordered
to cease by the Board, as enforced by the Court of Appeals.
in Southporl Manor. A continuation of the same kind of
illegal activity may reasonably be anticipated.
Accordingly, to effectuate the purposes of the Act and in
order that the Union have some regard for the rights of
employees to disagree with it and to continue to work for
employers covered under the Act. I recommend that a
broad Order issue against the Union herein, forbidding vio-
lence against employees not only of the Employer herein.
but also of any other employer engaged in commerce."'
N.L.R.B. v. I.ocals 138. 13A. 138B. Intlernational Unionl of
Operating Engineers, A4FL CIO: (( 'aft/s.o lL.ahing Pla.s-
tering (o.), 377 F.2d 528 (2d Cir. 1967). Because the Em-
plover seeks a broad order based on other orders issued
against the Union." not involving the violence tound
herein, I shall limit the Order to the oilence lound herein.
On the basis of the record before me, there has been no
showing of any proclivity to engage in other types of unlaw-
ful conduct. Teamsters. Chalur., e/lpers and Tax-ical h
Drivers, Local lUnion 327, a/ft t w lntrnational Brotherhood of'
Teanlslers. Chauliers. W14'areh/ousemen, tand Helpers o/'
4,nmerica (Hartmrnan Luggage ('onlpanrl). 173 NL RB 1403.
fn. I (1968): modified 419 .2d 1282 ('.A. 6 1970).
The Employer requests as additional remedies that the
Union: (I) mail to all employees where it has bargaining
rights, copies of the remedial order and (2) compensate the
Employer for its property damage. The recommended Or-
der herein requires the Union to post notices at its oftices
and meeting halls and permits the Employer to post the
notice at its premises. That should suffice in these circum-
stances. 'The Employer might have been justified in its re-
quest if there were more than one Board Order outstanding
with regard to the Union's proclivity to commit violence. In
any event, I am hopeful that the broad order recommended
herein will dampen the Iinion's actions. and that should
suffice in these circumstances.':
I also reject the Employer's application tor property
damages, flr which the Employer has offered no legal au-
thority. If I were to grant its request. that would open the
door to requests of employees to seek monetary relief for
personal injuries in violence cases. The Board is simply not
equipped to handle such claims. which "might be better
01 I reject the Union's contentions that the siolence herein was solated and
that. when it learned of the violence, it corrected the same. The civil inJunc-
tion action brought by the Employer, referred to in footnote 8, upra. re-
suited in a stipulation made in open Court. whereby the Union agreed to the
relief (albeit not an orderl requested by the Employer. I conclude that if the
Union did mend its ways, the injunction caused Its change of tactics, noting,
however, that the Union continued to throw rocks at Magee even alter the
injunction was terminated.
H District I/99, National Union of Hospital and Health ('are Emploreeli. .
Div'ision of RWDSIU/AFL-CIO (loper Manhattan .Vedical Group). 225
NLRB 153 (1976). enfd. 556 F.2d 558 (2d Cir. 1977). Isaac Puterman, dbh/u
Rockville Nursing Center. 193 NLRB 959 1971 ); and Dlsitrt 11
9
9,I N'atonal
Union lf Hospital and Health ('are Emplovee. 4 Di.tion o R WDSL' 'A FI.
CIO (United Hospitals of' Newark} 232 NI.RB 443 (1977)1. enfd. 84 .ab
Cases paragraph 10,826 (3d Cir. 19781.
1 The record does not reveal how large the [nion is and how mans mail-
ings might he required if the Employer's request were granted Assuming
that there are thousands of employees insolsed. the relief sought would he
extraordinary and. on the present record. would not be warranted
806
DISTRICT 1199, HEALTH CARE EMPLOYEES
served by pursuing those private remedies traditionally
used for the recovery of such damages." Union Nacional de
Trabajadores and Comile Organizador Obreros en Huelga e
Catalytic (Catalytic Industrial Maintenance Co., In.). 219
NLRB 414 (1975).
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER I
The Respondent. District 1199. National Union of Hos-
pital and Health Care Employees. RWDSU. AFL-CIO. its
officers, agents, and representative shall:
I. Cease and desist from:
(a) Restraining and coercing employees of Frances
Schervier Home and Hospital in their right not to join or
support any strike by physical violence upon employees
and supervisors at or away from the picket line, by harming
employees and supervisors otherwise at or away from the
picket line, and by following or harassing employees and
superivors at or away from the picket line.
(b) Blocking ingress to, or egress from, the Employer's
premises either by blocking the entrances or by inflicting
damage or throwing objects, including rocks, at vehicles
transporting employees driving in or out of the Employer's
" In the event no exceptions are filed, as provided bh 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. he adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
premises. to discourage such employees in the exercise of
their right not to join or support ans strike,
(c) In any like or similar manner, restraining or coercing
employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
2. l'ake the follov ing affirnative action which will effec-
tuate the policies of the Act:
(a) Post at its offices and meeting halls copies of' the at-
tached notice marked "Appendix.' 4 Copies of said notice.
on forms provided by the Regional Director for Region 2.
after being duly signed by its representative, shall he posted
bh Respondent immediately upon receipt thereof, and he
maintained by it for 60 consecutive days thereafter. in con-
spicuous places. including all places where notices to mcm-
hers customarily are posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered. defaced, or covered b anN other material.
(b) Sign, as aforesaid, and mail sufficient copies of the
said attached notice to the Regional Director for Region 2.
for posting, if Francis Schervier Home and Hospital is will-
ing, at places where notices to employees customarily are
posted. Such copies shall be furnished the Respondent by
the said Regional Director.
(c) Notilf the Regional Director for Region 2, in writing.
Within 20 days from the day of' the receipt of this L)ecision.
what steps the Respondent has taken to comply herewith.
4 In the event that this Order is enforced b a Judgment of the nited
States Court of Appeals. the words in the notice reading "Posted bh Order of
the National t.abor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order ot the Na-
tional .abor Relations Board."
807