I.L.W.U., Local 6

National Labor Relations Board - Board Decisions

May 29, 1967

164 N.L.R.B. 1158 (N.L.R.B. 1967)

1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen's and Ware-
housemen's Union, Local No. 6 and Eureka
Chemical Company. Case 20-CB-1513.
May 29,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On February 3, 1967, Trial Examiner Eugene K.
Kennedy issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the
Decision and a supporting brief, and the General
Counsel filed exceptions to portions of the Trial
Examiner's Decision and a supporting brief. The
Charging Party filed an answering brief in support of
the General Counsel's exceptions and in opposition
to Respondent's exceptions to the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions,2 and recommendations3of
the Trial Examiner, except as modified herein.
Additional Conclusions of Law4
2. By mass picketing and blocking of ingress to
and egress from the Eureka Chemical Company
I The Trial Examiner's references to Lynch, in the fifth
paragraph of section III, 2, of his Decision, are inadvertent; it is
clear both from the context and the record that he intended to
refer to Chief Chemist Stanton
2 As uncontradicted record evidence clearly reveals that the
pickets responsible for the acts set forth in the Trial Examiner's
Decision came from the Respondent's hiring hall, we find it
unnecessary to rely on the portions of the third paragraph of
section III, 1, of the Trial Examiner's Decision, in which he
indicates his reliance on "certain probabilities" and the "laws of
probability" to support certain of his findings and conclusions
For the purposes of this case, we adopt the meaning ascribed to
the word "pickets" by the Trial Examiner in fn 3 of his Decision
S The General Counsel excepts to the Trial Examiner's failure
to find that blocking of ingress to and egress from the Eureka
premises by the Respondent violated Section 8(b)(1)(A) of the Act
We find merit in the General Counsel's exceptions The record in
this case is replete with evidence that Respondent engaged not
only in mass picketing but in the blocking of ingress to and egress
from the Eureka building and parking lot Moreover, the Trial
plant and parking lot, Respondent has violated
Section 8(b)(1)(A) of the Act.
3. By engaging in threats of physical violence and
by committing acts of physical violence upon
supervisors and employees of Eureka Chemical
Company, Respondent has violated Section
8(b)(1)(A) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
International Longshoremen's and Warehousemen's
Union, Local No. 6, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees of Eureka
Chemical Company by threatening to commit or
committing acts of physical violence upon
employees, or by such conduct with regard to
supervisors or officers of Eureka Chemical
Company, in the presence of such employees, or
under circumstances in which the employees are
likely to become aware of such conduct.
(b) Restraining and coercing employees of Eureka
Chemical Company by mass picketing or blocking
and interfering with ingress to and egress from the
Eureka Chemical Company building or parking lot.
(c) In any other manner interfering with,
restraining, or coercing the employees of Eureka
Chemical Company in the exercise of rights
guaranteed in Section 7 of the Act, as amended.
2. Take the following affirmative action which the
Board finds will effectuate the purposes of the Act:
(a) Post at its offices and dispatching or hiring
hall on Harrison Street in San Francisco, California,
copies of the attached notice marked "Appendix."5
Examiner (section III, 2, of his Decision) specifically detailed
these incidents in his findings of fact We, therefore, find that the
actual blocking of ingress and egress which accompanied the
mass picketing, is a violation of Section 8(b)(l)(A) of the Act, and
have modified the Conclusions of Law, Recommended Order, and
notice (Appendix) accordingly
The General Counsel also excepts to the Trial Examiner's
failure to include provisions in his Conclusions of Law and
Recommended Order with respect to the acts of violence
committed by the Respondent, and to his failure to include
provisions in his Conclusions of Law, Recommended Order, and
notice with respect to the mass picketing engaged in by
Respondent The General Counsel points out that the Trial
Examiner, in his concluding findings, found the mass picketing
and acts of violence violative of Section 8(b)(1)(A) We find merit
in the General Counsel's exceptions Accordingly, as requested
by the General Counsel, we have modified the Conclusions of
Law, Recommended Order, and notice (Appendix) so that they
conform to the Trial Examiner's findings
" The Trial Examiner's Conclusion of Law 2 is hereby deleted
and Conclusion of Law 3 is hereby redesignated as 4
164 NLRB No. 161
I.L.W.U., LOCAL 6
Copies of said notice, to be furnished by the
Regional Director for Region 20, after being duly
signed by a representative shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Promptly upon receipt from the said Regional
Director of additional copies of the said notices,
cause such additional copies to be signed as
aforesaid and returned to the Regional Director for
posting by Eureka Chemical Company, if that
Company is willing.
(c) Notify the Regional Director for Region 20, in
writing, within 10 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
5 In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL
LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION,
LOCAL No. 6
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT threaten to commit or commit
physical violence on any employee or any other
individual which will tend to restrain or coerce
the employees of Eureka Chemical Company.
WE WILL NOT restrain or coerce the
employees of said Company by mass picketing
or by blocking or preventing the entrance to or
exit from the said Company's building or
parking lot.
WE WILL NOT in any other manner coerce or
restrain employees of Eureka Chemical
Company in the exercise of their rights under
the National Labor Relations Act, as amended.
INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN'S
UNION, LOCAL No. 6
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
1159
If members have any questions concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 13050 Federal Building, 450 Golden Gate
Avenue, Box 36047, San Francisco, California 94102,
Telephone 556-0335.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE K. KENNEDY, Trial Examiner: This matter was
tried in San Francisco on October 27 and 28, 1966. It
involves various alleged violations of Section 8(b)(1)(A) by
International Longshoremen's and Warehousemen's
Union, Local No. 6, herein called the Union.' Upon
consideration of the entire record and briefs submitted by
Respondent and the General Counsel, and demeanor of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE
JURISDICTION OF THE BOARD
Eureka Chemical Company, herein called Eureka, is,
and at all times material herein has been, a California
corporation with places of business in San Francisco,
California, and Mobile, Alabama. It is engaged in the
processing and manufacture of chemical products. During
the past year, Eureka purchased and received in
California goods and materials valued in excess of $50,000
which were shipped to it directly from outside the State of
California. During the past year, Eureka sold and shipped
goods and materials valued in excess of $50,000 directly to
customers located outside the State of California. Eureka
is now, and has been at all times material herein, an
employer engaged in commerce and in operations
affecting commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Longshoremen's and Warehousemen's
Union, Local No. 6, herein called Respondent or
Respondent Union, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Eureka's operation is situated in a 50-foot-wide two story
building. The front portion faces Sheridan Street and the
rear portion, which is composed of a storage area and
parking lot, faces on Harrison Street. Directly across from
this area is Respondent Union's office and hiring and
dispatching hall.
On March 11, 1966, Leroy King, an International
representative of the International Longshoremen's and
Warehousemen's Union, herein called the I.L.W.U., in
company with Keith Eickman, a business agent of
Respondent Union, requested recognition of Respondent
as the bargaining representative of Chalmers Jones,
' The charge was filed March 28, 1966, and the complaint was
issued June 29, 1966
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marion Brooks, and Archie Brown, Eureka's employees,
who had signed authorization cards for Respondent
Union in King's presence on March 8, 1966. Hess,
Eureka's vice president, refused to recognize Respondent
at the March 11 meeting with him. Jones, Brown, and
Brooks were terminated on March 16, 1966. King had
unsuccessfully tried to reach Hess earlier that day.
Undoubtedly because of these events there were about
30 to 40 men present in the vicinity of Eureka' s premises
on the morning of March 16, 1966. At the outset, certain
probabilities dictate terminology and conclusions that will
be used herein. The proximity of Respondent's hiring hall
to Eureka's premises and the provoking reason for their
presence as sympathizers with Jones, Brooks, and Brown,
warrants characterizing the various numbers of men
encountered by Eureka officers and employees as pickets.
Whether or not they were actually picketing is not crucial
to any issue in this case. A description of their activities is
what is significant together with the obvious fact they were
acting either as agents or in concert with officers of
Respondent. In either event the responsibility of
Respondent would be the same.2 The various individuals
who the laws of probability establish, came from
Respondent's hiring hall to the vicinity of Eureka's
premises, were clearly present as part of the protest of the
firing of Jones, Brown, and Brooks, and the failure by
Eureka to recognize Respondent as their bargaining agent.
The same laws of probability establish that certain acts
were performed by individuals within the legal
relationship just described with attendant responsibility
for such acts on Respondent.
Since the question was specifically put in issue the
factors that make Respondent liable for the acts of Leroy
King will be noted. His job is that of an International
representative for the I.L.W.U. As part of his job, he
assists various locals in organizing employees. In the case
at hand he went to Eureka's premises in company with
Keith Eickman, business representative of Respondent.
King requested Eureka to recognize Respondent as
bargaining agent for the employees. He had Jones, Brown,
and Brooks sign cards authorizing Respondent as their
bargaining agent and not the I.L.W.U. He used the offices
and telephones of Respondent when needed and whether
he be characterized as an agent or a joint actor with
Respondent it is clear Respondent is liable for the acts of
King done in furtherance of Respondent's business. In
King's own words this liability is acknowledged by his
statement "We posted a picket line at Eureka Chemical's
premises at about 7:30 a.m. to 7:45 a.m.
2. The illegal activity
On March 17, 1966, Jones, Brown, and Brooks, along
with 20 to 30 pickets3 about 8 a.m., were walking in front of
Eureka's entrance. Four of them were carrying signs
reading "Locked Out." They were walking 2 inches to 10
inches apart in a close circle in front of the office door,
which is the entrance used by employees to gain access to
the building. Supervisory and nonsupervisory Eureka
personnel were impeded in entering and Chief Chemist
Thomas Stanton was nudged as he passed through the
tightly assembled pickets.
Eureka Chemist Lynch arrived at the parking lot about
7:55 a.m. on March 17, 1966. There was a car parked in
front of the entrance to the parking lot and there were
groups of men standing across the street in front of
Respondent's hiring hall and also a group near the parked
car. The group standing in- front of the hiring hall crossed
the street and stood in front of the parking lot entrance.
Because of the assembled pickets Lynch was prevented
from driving his car into the parking lot. Later the same
day the car that was blocking Eureka's parking lot
entrance was removed by an individual who came from
Respondent's hiring hall. On March 18, 1966, 20 to 30
pickets, including King, Brooks, Brown, and Jones, were
assembled in front of the Sheridan entrance to the EurekaA
plant. King was present at 8 a.m. and for most of the day.
As Plant Manager Mikesell got out of his car and
approached the entrance, King blocked his passage and
grabbed his arm and stated: "You are not going in today.
We told you not to do any work yesterday. If you try to get
in today you are going to get hurt." King then warned
Mikesell: "You may get in this morning, but you have to
come out tonight." Discharged employees Jones, Brooks,
and Brown were among the pickets when this event
occurred.
On March 18, 1966, a cardboard sign reading "Unfair to
Local 6 I.L.W.U." was taped on the loading door of
Eureka's premises on Sheridan Street. At 9 a.m. after the
police had arrived, Mikesell entered the plant through the
picket line 1 hour and 10 minutes after he had arrived at
the plant. His delay apparently was caused by the
presence of the pickets and the threats made by King on
March 17, 1966, and he accordingly waited until the police
arrived to enter. On the following day, March 19, 1966, 4 of
the 15 pickets located in front of the Eureka plant on
Sheridan Street wore armbands bearing the legend
"Picket I.L.W.U. Local 6." Similar armbands reading
"I.L.W.U. Local 6" were worn by pickets on or about
April 24, 1966, and subsequently.
On March 22, 1966, there were about 15 pickets present
including Leroy King and Archie Brown when employees
Lawrence and Lynch approached the Sheridan Street
entrance about 8 a.m. King said to Lynch "You are not
going in" and struck Lynch in the stomach three times
with his elbow. Employee Lawrence saw King hit Lynch.
Lynch filed a complaint with the San Francisco Police
relative to this incident.4
On May 19, 1966, at or about 5:15 p.m., Chief Chemist
Thomas Stanton and Eureka's secretary, Anna Hess, were
attempting to remove 30 drums of fluid film from the plant
and load them onto a truck parked on Sheridan Street. A
group of 35 to 40 men surrounded the truck and blocked
the doorway to the Eureka entrance. One of the leaders
2 The general rule is that each member of a joint enterprise acts
both as principal and agent of the others as to those things done
within the apparent scope of the business of the project and for its
benefit 30 Am Jur 980
3 In this Decision pickets are used in the sense that they came
from Respondent 's hiring haall and were associated with
Respondent in its dispute with Eureka and manifested such
association by congregating in front of Eureka's premises.
4 Respondent filed a motion to reopen the record to take King's
testimony relative to this incident because King was acquitted in a
trial At the hearing King was advised by Respondent's attorney
not to testify relative to this or other incidents of alleged violence
and threats Because of the other incidents involving King which
would not be affected by testimony in a reopened record on the
basis requested by counsel for Respondent and because of the
highly questionable merit in Respondent 's position in refusing to
permit King to testify originally the motion to reopen the record is
denied
I.L.W.U., LOCAL 6 1161
was Respondent's dispatcher, Billy Lufrano, with offices
across from the rear portion of Eureka's plant. Lufrano
told Stanton: "You can't do this" and said to the men who
accompanied him: "We are not going to let them get away
with this." Lufrano then pushed a drum of fluid film onto
the street. It was at this point that of the total group of 40
to 50, about 30 more men arrived and when Lufrano was
being questioned by the police about the incident he
turned to the men on the sidewalk and said "There are 30
longshoremen over there who saw this drum fall to the
street." Then a police sergeant told Stanton he would have
to get the drum off the street . Lynch heard a man identify
himself to the police as Curtis McLain, business agent of
Local 6, I.L.W.U. He also heard Lufrano and a man named
Valter give their names to the police. The complaint
alleged and the answer admits that a George Valter is
secretary-treasurer of Respondent. Lynch heard Lufrano
say that if we were permitted to load this truck it would be
dynamite and the truck would be turned over on its side
and the next morning someone would wind up in the street
with a split head. Lynch also heard Valter make the
following statement to the police, "If these people persist
in doing this operation, the police are going to have trouble
on their hands" and also said "You remember the
dynamiting?" The police sergeant ordered Lynch to get
the drum off the street and told Lynch that if he would
agree not to unload the truck that evening, he would let
him get the drum off the street and enter the plant. The
attempt to load the truck was abandoned and Lynch, who
worked closely with employee Lawrence, told him about
these events the next morning.
On at least one occasion when Plant Manager Mikesell
was standing at the laboratory window in the rear of the
building, Respondent's dispatcher shouted across the
street, "You son of a bitch ... just keep on working, we'll
get you yet. Keep working and we'll kill you."
On September 22, 1966, employee Lawrence loaded
some Eureka products into his station wagon for delivery.
As he started to open the parking lot gate on Harrison
Street, about 15 men came across Harrison Street from
Respondent's hiring hall and stood right in front of the
gate, thereby blocking his egress. Lufrano, Respondent's
dispatcher, was present, and demanded to know whether
Lawrence "was going to deliver these materials" and
warned Lawrence that he and his men would stop him and
he would never get out of the parking lot. When Lawrence
tried to open the gate, one of the men in the group from
Respondent' s hiring hall leaned against the gate, holding it
so Lawrence could not open it . Lawrence asked him to
move, but the individual refused and continued to lean
against the gate and challenged Lawrence to move him.
One of the men blocking the gate grabbed Lawrence's
arm, one held onto him and spun him around- further
restraining his egress until he jerked his arm free.
Lawrence abandoned his attempt to drive the vehicle out
of the parking lot until about 9:45 a.m. when 3 San
Francisco policemen escorted him through a crowd of
about 60 men. One of the men bent the radio antenna on
the vehicle and another said "come on, lets tip him over."
On the same day Plant Manager Mikesell was one block
from the Eureka plant in the vicinity of 9th and Folsom
Streets waiting for employee Lawrence. At the same time
Leroy King was in the same area . Just before Lawrence
drove up in the station wagon , King walked up next to
Mikesell and said: "I finally got you alone." Mikesell
stepped back and King approached him and said: "Now
I'll get a chance to work you over," and punched Mikesell
twice in the back. At this time Lawrence drove up in the
station wagon and Mikesell got in. King shouted "It won't
do you any good, we are going to follow you all over town."
Mikesell immediately told employee Lawrence about the
threats and being punched by King.
On September 23, 1966, employee Lawrence arrived at
the Eureka plant about 8 a.m. Lufrano, Respondent's
dispatcher, came out of Respondent's Harrison Street
hiring hall and shouted "Get him, he's by himself."
Immediately at least 12 men came out of Respondent's
hiring hall and crossed Harrison Street to the Eureka
parking lot gate. Meanwhile employee Harvey Chang, a
laboratory technician, who had been hired after the
picketing •began in March 1966, waited for Lawrence to
lock the parking lot gate and together they entered
Eureka's premises.
At or about 8:30 a.m. the same day, Chemist Ray Lynch,
a supervisor, arrived at the same parking lot gate. By this
time approximately 50 men had come across the street
from Respondent's hiring hall and were standing by the
sidewalk in front of the gate. Although a policeman was
present, Lynch got his car through the crowd and into the
parking lot only after a delay of 5 minutes or more.
Lufrano, who again was present, warned Lynch: "You can
go in but you can't come out."
Concluding Findings
The activities recited above, as far as they relate to
coercion of employees and violations of Section 8(b)(1)(A),
may be classified into three groups:
1. Threats and violence directed against employees.
2. Threats and violence directed against supervisors in
the presence of employees.
3. Threats and violence directed against supervisors
outside the presence of employees.
The activity of restraining or tending to coerce
employees and directed towards them, needs no legal
authority to demonstrate its illegal nature.
Threats and violence committed against supervisors in
the presence of employees is equally unlawful. Teamsters
Local #115 (E. J. Lavino & Company), 157 NLRB 1637;
Wright Line Division of Barry Wright Corporation, 146
NLRB 71; United Furniture Wkrs. of America, Local 309
(Smith Cabinet Mfg. Co.), 81 NLRB 886.
The General Counsel also cites as authority for
violations of 8(b)(1)(A) language from the Trial Examiner's
Decision, supra, in E.J. Lavino & Company. The Board in
a footnote refused to adopt the following quotation from
the Trial Examiner's Decision in Lavino:
In those few instances where the threats of violence
were directed solely against supervisors without the
presence of nonstriking employees or other strikers it
must be concluded, nevertheless, that the restraint
and coercion was of employees for several reasons.
First, such supervisors were working in the jobs of the
unit employees. Second, the restraint or coercion was
carried out in such circumstances as to render it
likely that all of the nonstrikers in this small plant
would know of them. In addition, the presence of the
labor squad was the daily reminder of the risk of
violence. Under all these circumstances there is
ample precedent for finding restraint and coercion of
employees within the meaning of Section 8(b)(1)(A).
[Citing authorities.]
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is believed that a more precise statement of pertinent
authority may be found in Smith Cabinet, supra at 889,
when the Board stated as follows relative to the question
under examination.
And inasmuch as the illegality of coercive activity
directed against supervisors is found to depend upon
its commission in the presence of nonstriking
employees or under such circumstances as to insure
that these employees would hear of it, we shall reject
the Trial Examiner's findings with respect to the
threats to company officials which were not made in
such a context.
In the case at hand the context strongly favors the
probability that all employees, officers, and supervisors
would hear of threats or acts of violence. The total number
of people in the plant was about 10. They were all working.
They were engaged in a highly emotional struggle against
the Union. For example, Plant Manager Mikesell told
employee Lawrence that King struck him and Chief
Chemist Stanton told Lawrence about Lufrano throwing a
drum of fluid off the truck into the street and about the
crowd preventing him from loading the truck and
delivering the materials. The size of the plant, the close
working relationship of about 10 people sharing a struggle
against the Union makes it probable that all threats and
violence directed against supervisors outside the presence
of nonstriking employees would naturally be related to
them and would have a coercive effect and provides the
context for violations of Section 8(b)(1)(A), as required by
Smith Cabinet, supra.
In summary, it is found that the mass picketing, threats
of violence, and actual violence as detailed above are
violations of Section 8(b)(1)(A).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. Eureka Chemical Company is engaged in commerce
and in business affecting commerce and International
Longshoremen 's and Warehousemen ' s Union , Local No.
6, is a labor organization within the meaning of the Act.
2. By making threats and committing acts of physical
interference with employees and supervisors of Eureka,
the Union has violated Section 8(b)(1)(A) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
THE REMEDY
Having found that Respondent has engaged in violations
of Section 8(b)(1)(A) of the Act, it will be ordered that
Respondent cease and desist therefrom and take certain
affirmative action as provided in the Recommended Order
below which is necessary to effectuate the policies of the
Act.
Because of the scope and nature of the unfair labor
practices committed by Respondent, the Recommended
Order will include a prohibition from violating the Act in
any other manner.
[Recommended Order omitted from publication.]