Local 150, IUOE, Etc.

National Labor Relations Board - Board Decisions

Oct 22, 1964

149 N.L.R.B. 29 (N.L.R.B. 1964)

LOCAL 150, IUOE, ETC. 29
Local 150, International Union of Operating Engineers, AFL-
CIO, and Its Agent A. J. Meagher ; Local 582, International
Hod Carriers , Building and Common Laborers ' Union of
America, AFL-CIO, and Its Agent William Grozias; Local 330,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Frisch Contracting
Service Company, Inc. Cases Nos. 13-CC-359,13-CC-360, and
13-CC-358. October 2N, 1964
DECISION AND ORDER
On December 10, 1963, Trial Examiner William Seagle issued his
Decision in the above -entitled proceeding , finding that the Respondents
had engaged in certain unfair labor practices and recommending that
they cease and desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner 's Decision . He also found
that the Respondents had not engaged in certain other alleged unfair
labor practices and recommended dismissal thereof . Thereafter the
General Counsel and respondents filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs . Respondent Locals 150 and
582 also filed an answering brief to the brief of the General Counsel.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Chairman McCulloch and Members
Leedom and Jenkins].
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 .1 The Board has considered the Trial Ex-
aminers' Decision, the exceptions and briefs , the answering brief, and
the entire record in the case,2 and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner , except as noted
herein.'
1 At the hearing, the General Counsel was permitted to amend the complaint to allege,
inter al,a, that Deputy Sheriff Baumgartner of Kane County, Illinois, and Attorney
Daniel S. Shulman had violated Section 12 of the Act. While the Trial Examiner errone-
ously interpreted the Board's Decision in Kohler Co , 128 NLRB 1062, 1100-1101, in per-
mitting an alleged section 12 violation to be litigated for resolution by the Board, no
prejudicial error was committed its the Trial Examiner recommended dismissal of these
allegations.
2 Daniel S. Shulman's request for oral argument pertaining to those findings and con-
clusions of the Trial Examiner which relate to his conduct is hereby denied, in view of
our findings herein. Moreover, the record, briefs, and answering brief adequately present
the issues raised herein relative to such conduct.
3 While the conduct of Attorney Daniel S. Shulman at the hearing before the Trial
Examiner is subject to criticism, in view of his apology and under all the circumstances
herein, we do not deem further action against him necessary.
149 NLRB No. 9.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the order recom-
mended by the Trial Examiner and orders that Respondents, Local
150, International Union of Operating Engineers, AFL-CIO, and its
agent A. J. Meagher; Local 582, International Hod Carriers, Building
and Common Laborers' Union of America, AFL-CIO, and its agent
William Grozias; and Local 330, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, their of-
ficers, other agents, representatives, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order.'
4 The new address of the Regional Office is: 881 US Courthouse and Federal Office
Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No 828-7572.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges and amended charges filed against the Respondents on May 28 and
July 9, 1963, respectively, a consolidated complaint was issued against them on
July 31, 1963, alleging the violation of Section 8(b) (4) (ii) (B) of the Act. The
violation alleged was that on May 16 and again on May 17, 1963, the Respondents
jointly threatened to picket Cynclar Corporation, which was then engaged in the
construction of homesites known as Elgin Estates, in furtherance of their dispute
with the Charging Party, Frisch Contracting Service Company, Inc., the object of the
threat being of compel Cynclar to cease doing business with Frisch.
Issue having been joined by the answers of the Respondents, a hearing was held
before Trial Examiner William Seagle with respect to the allegations of the complaint
at Chicago, Illinois, on October 17 and 18, 1963. All counsel waived oral argument
at the conclusion of the hearing and, subsequently, counsel for the General Counsel
and for Local 150 and 582 filed briefs which have been duly considered.
Upon the record as a whole, and in view of my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE RESPONDENTS
Local 150, International Union of Operating Engineers, AFL-CIO; Local 582,
International Hod Carriers, Building and Common Laborers' Union of America,
AFL-CIO; and Local 330, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are labor organizations within the meaning
of Section 2(5) of the Act.
II. THE BUSINESS OF THE EMPLOYERS
Frisch Contracting Service Company, Inc., is a corporation engaged in water main
construction and in the excavation and grading of building sites. The office of the
corporation is at Cary, Illinois. During the past year, in the course of its operations,
Frisch has purchased cast iron pipe valued at approximately $38,000, and this cast iron
pipe was shipped to it from the State of West Virginia; during the same period, Frisch
has purchased vitrified clay pipe valued at approximately $22,000, and this vitrified
clay pipe was shipped to it from the State of Indiana. In addition, during the past
year, Frisch has purchased trucks. company cars, tractors, cranes, diesel engines, re-
pair parts, gasoline, fuel oil, and tires in connection with its operations. These items,
valued at approximately $80,000, have been purchased through distributors located
in the State of Illinois but they were produced or manufactured outside the State of
Illinois. .
LOCAL 150 , IUOE, ETC. 31
Cynclar Corporation , which is located at Elgin , Illinois, is a corporation engaged
in the construction , and sale, of residences called Elgin - Estates, located in the vicinity
of Elgin , Illinois. Cynclar does not have any employees of its own, and the homes
sold by it are constructed entirely, through subcontractors .- Thus, Cynclar itself
does not,purchase any materials or supplies that move in interstate commerce.
Since the operations of Frisch affect commerce and satisfy the Board 's jurisdiction
standard for a nonretail enterprise , it would seem to be immaterial that the opera-
tions of Cynclar are not in themselves in commerce or satisfy the Board 's jurisdic-
tional requirement.' I conclude that the Board has and should exercise jurisdiction.
- III. THE UNFAIR LABOR PRACTICES
A. As alleged in the original complaint
Cynclar Corporation is the personal business of its president , Beverly Matisko.
Indeed, she is the corporation , for except for some stock held by an aunt, she is
its sole stockholder and employee-if .it is permissible to characterize the president of a
corporation as an employee. Not having any employees of her own , her business may
be described as getting homes built rather than building them , as acting as a promoter
and general contractor rather than as a builder . In addition , she acts, however, as
manager for another corporation known as Marlborough Homes which owns homes in
the same Elgin subdivision.
Beverly Matisko first met Marvin A. Frisch , the president of the Frisch Contracting
Service, in the summer of 1962 when he was doing the excavating work for Marl-
borough Homes on nine houses of the Elgin Estates. Having observed his work,
and being pleased with it, she invited him to submit a bid on the excavating work for
the homes she was having built, and he did so on or about May 1, 1963. His bid
was accepted and he commenced excavating on May 15. On that day, and the two
following days , he had only one employee working on the Cynclar building site.
This employee was Vernon Anderson , a caterpillar tractor operator, who was a mem-
ber of Local 150 of the Operating Engineers.
Frisch himself was , however, a nonunion contractor. He did not observe the area
wage scales or other working conditions and he did not pay anything into the union
health and welfare fund. This was well known to the union business agents in the
area, and the record shows that one of them , A. J. Meagher , had visited Frisch three
or four times prior to May 15 to discuss the working conditions on his jobs. Frisch's
status as a nonunion contractor was also known to Beverly Matisko when she accepted
his bid , for to remove the possibility of subsequent recriminations , he informed her
that he was having union difficulties because he had refused to sign a union contract
which would require him to pay into a union health and welfare fund, in which he
did not believe.
Having an active dispute with Frisch , the union business agents in the area did not
long delay in approaching Beverly Matisko. These business agents were William
Grozias of the Hod Carriers; Red Andrews of the Teamsters , and the aforementioned "
A. J. Meagher of the Operating Engineers . The getting together of the three
business agents was facilitated by the fact that the offices of all three of them were in
Elgin, and Grozias and Andrews actually shared the same office . About 8 a.m. on
May 16, Grozias telephoned Meagher to tell him that Frisch was excavating on the
Elgin Estates , and soon thereafter the three business agents were on their way to pay
a visit to Beverly Matisko. Apparently , they drove - to the Elgin Estates in Andrews'
car. The trip took only about 5 minutes , and they arrived at their destination between
8:30 and 9 a.m.
Upon their arrival , Grozias, who had previously had occasion to visit Beverly
Matisko at the Elgin Estates , introduced his two companions to her 2 and they got
down to the object of their visit. -
According to the testimony of Beverly Matisko , Grozias -first asked her who was
doing her excavating , and when she stated that it was Frisch , Meagher went on to ask
her whether she was aware of the fact that Frisch was a nonunion contractor. When
she explained the circumstances under which she had come to employ Frisch as a
contractor , Meagher informed her that it would be better "all the way round to use
union labor"; and that it would be fairer to the people ,in the area and to Frisch's
employees if Frisch abided by union rules and paid into the health and welfare fund,
as well as paid the union wage scale . Meagher went onto say, however, that , although
they had allowed Frisch to "get away with it in past years, they were determined now "to
1 See Local S, International Brotherhood of Electrical Workers. AFL-CIO (New Power
Wire and Electric Corp. and P & L Services , Inc.), 144 NLRB 1089, footnote 2.
2 Actually , Beverly Matisko had seen Andrews before and knew who he was.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stop him one way or the other ," and that if she continued to allow him to work on the
premises , "they were going to picket Elgin Estates ," and stop the other trades "from
coming in one the job ." Her reply to this was that she would not care for that type
of publicity , which she could ill afford , and Meagher asked if she realized how much
delay could cost her. Andrews , during the course of the conversation , "didn't say
too much of anything ," since the Teamsters were not yet involved , but he did
intimate that they might get involved when the time came "for them to bring the
trucks in ," and that the trucks would then be stopped.
In giving her testimony, Beverly Matisko , explicitly denied that she had invited
any of the three business agents to return the following day after she had had an
opportunity to talk to Frisch . Nevertheless , she had a second visit the following
day from the same three business agents about the same time as in the morning of
May 16. This time they came in two cars, and were accompanied by a fourth
individual whom she could not identify . She testified as follows with respect to the
conversation on the occasion of this second visit:
Mr. Meagher asked me what I was going to do about Mr . Frisch . I asked
him what was I supposed to do about him, and he said as far as stopping the
work. I made no comment , and he said that-I told them again that I
wanted no trouble or no problem, and he said that they were going to stop
the job, which-that was about the end of the conversation , and they went
out and stopped the job.
Stopping the job in this instance was very simple, since only one of Frisch's em-
ployees was working on the site , namely, Vernon Anderson , the caterpillar operator
already mentioned . As she looked out of her window , Beverly Matisko could see
Meagher and the unidentified person who had accompanied the three business agents
on their second visit, walking toward the point where Anderson was working, and
then engaging the latter in conversation. Naturally, she could not hear this con-
versation but shortly thereafter she observed Anderson getting off the "cat," cover-
ing it up , and departing in hispickup truck.
What the substance of this conversation was appears from the testimony of
Anderson , who was one of the General Counsel 's witnesses , as well as from the
testimony of Meagher , who admitted to having such a conversation with Anderson.
Meagher asked Anderson for his union card , and from this he took Anderson's
name and address . He then told Anderson that Frisch was a nonunion contractor
and that he , a union man , should not be working for him . While Meagher did
not order Anderson to get off the job he did tell the latter that if he continued to
work for Frisch , he would have to file charges against him. Anderson further
testified that since he did not quite know what to do he decided to stop working,
cover up his machine , and go back to the Frisch office.
Frisch's job at the Elgin Estates was never picketed by any of the Respondent
Unions but, during the last week in May, Local 150 commenced picketing at Frisch's
office at Cary, Illinois, and this picketing continued for about 2 weeks.
Shortly after the visit of the three business agents to Beverly Matisko, and during
the period that Frisch 's office was being picketed, Local 150 also sought to dis-
courage two of Frisch's employees who were members of the Union , from work-
ing for him.
On May 22, one of these employees, George Freund , was working at a housing
development known as the Hutchman Subdivision when he was approached by
Robert McDonald , a business agent of Local 150 , who threatened that if Freund
continued to work for Frisch, he would take his card . "What am I supposed to do
in the meantime , starve ?" asked Freund . McDonald's reply was that that was his
worry. During the night of June 3 , McDonald , accompanied by Meagher this
time, again paid a visit to Freund at his home , and threatened to take his union
card if he continued to work for Frisch.
Vernon Anderson also continued to be subjected to pressure by Local 150. Dur-
ing the morning of May 28 , McDonald came up to Anderson while he was work-
ing at Major Industries , located at Crystal Lake, and told the latter that he should
not be working for Frisch . Anderson replied that he had been working for Frisch
for 6 years without objection from anyone . When McDonald also asked why
he continued to work for Frisch, Anderson replied: "It is a living . I have to live,
just like anybody else." McDonald's comment on this was that, apparently , Freund
thought more of his job than of his union card , whereupon Freund remarked: "If
you put it that way, I guess I'd have to say yes." This led McDonald to observe
that Anderson had better hope that Frisch stayed in business for a long time. Dur-
LOCAL 150, IUOE, ETC. 33
ing the morning of the following day, McDonald , accompanied by another un-
identified man, returned and took a picture of Anderson with a flashbulb camera
while he was working on the job.
Andrews of the Teamsters did not testify at the hearing but Grozias of the Hod
Carriers and Meagher of the Operating Engineers took the stand , and denied that
during their visits to Beverly Matisko on May 16 and 17 , they had threatened to
picket the Elgin Estates if Frisch continued to work there . According to both of
them , the purpose of their visits was entirely informational . Grozias' testimony
was that the business agents merely told Beverly Matisko that Frisch was mas-
querading as a union contractor but that actually he did not pay the area wage
scale, or time and a half for overtime , or pay into the union health and welfare
fund ; that Beverly Matisko said that she was unaware of all this and thought that
Frisch was a union contractor; and that she asked them to return the following
day to give her an opportunity to talk to Frisch that night; that, in accordance with
this understanding , they returned the following morning but found Beverly Matisko
wholly uncooperative and attempting to shrug the whole matter off, saying that she
had talked to Frisch but that he had said he was unwilling to pay into the union
health and welfare fund and that there was nothing that she could do about it.
The testimony of Meagher was substantially to the same effect, so far as the
conversations with Beverly Matisko are concerned. But the testimony of Grozias
and Meagher differs with respect to Meagher 's approach to Vernon Anderson.
Grozias testified that neither on May 16 nor May 17 did he observe anyone talking
to anyone else. But Meagher admitted in his testimony that he had talked to
Vernon Anderson and threatened to prefer charges against the latter because he
was working for Frisch , who was a nonunion contractor . Meagher was , however,
greatly confused as to whether this conversation took place on May 16 or 17,
testifying that it occurred "on or about May 16 ," and before he and the other two
business agents talked to Beverly Matisko. It seems quite impossible that Meagher
talked to Vernon Anderson on May 16 but , even assuming that he talked to him
on May 17 before joining the other two business agents in talking to Beverly
Matisko , it is plain that the testimony of Grozias and Meagher is contradictory.
I credit Beverly Matisko 's testimony concerning her conversations with the three
business agents, and I reject, therefore , the denials of Grozias and Meagher that
they ever threatened to picket the Elgin Estates . Apart from the demeanor of the
witnesses , there are substantial reasons for doing so. Not only did Grozias and
Meagher give contradictory testimony with respect to the approach by the latter
to Vernon Anderson but they gave versions of their conversation with Beverly
Matisko that do not ring true . They betrayed themselves by attributing to Beverly
Matisko a wholly unbelievable ignorance of Frisch 's status as a nonunion contractor.
That this was in fact known to her is clear from Frisch 's testimony that he told her
about his difficulties with the Union before undertaking the job . Grozias and
Meagher were not present , of course, during the conversation between Frisch
and Beverly Matisko on this occasion, and they could not know , therefore, what
passed between them . But it is nevertheless unreasonable to suppose that Beverly
Matisko would pretend for no good reason that she had no knowledge that Frisch
was a nonunion contractor . Once it is assumed that she possessed this knowledge,
it becomes apparent that Grozias and Meagher introduced elements of fiction into
their testimony , and that among these fictions was the denial of the threats to picket,
as well as to mobilize the support of the other building trades unions in the area .3
The behavior of Meagher , as well as of McDonald , toward Vernon Anderson and
Freund was, moreover , that of determined business agents who were prepared to
stop Frisch if at all possible . The fact that the pressure put on Anderson and
Freund may have been legal nowise alters this conclusion.
On the other hand , I find no substantial contradiction or improbabilities in the
testimony of Beverly Matisko. She did not , as counsel for Locals 150 and 582
seem to contend , contradict herself in testifying with respect to her discussions of
the union health and welfare fund with the three business agents. She never denied
that the health and welfare fund was discussed , or that "nothing at all" was said
about it at any time. She denied only that anything was said at particular points in
the conversations , or that she discussed with Frisch himself his refusal to pay into
the fund , because it was none of her business . I also do not find it remarkable
9 As financial secretary of the Kane County Building Trades, Grozias was in an excep-
tionally good position to do so. ( The reference to the "King County Building Trades" on
page 324 , lines 23 and 24, of the transcript is erroneous , and is corrected accordingly.)
770-076-65-vol. 149-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that in testifying about the threat to picket she stated , at some points in her testi-
mony, that "they" threatened to picket, although she had testified already that it was
Meagher who gave voice to the threat. Obviously, she regarded Meagher as the
spokesman for all three of the business agents, as indeed he was. Finally, I attach
no significance whatsoever to the fact that in the affidavit which she gave to a Board
agent there is nothing indicating that Meagher stated that he would stop the job.
The failure of an affiant to recall a particular detail in an affidavit-especially when
it is a particular phrase-is never a contradiction in itself, for whether it is recalled
often depends on the thoroughness of the agent doing the questioning . In this case,
the claimed contradiction is particularly pointless , since in fact Meagher did attempt
to stop the job.
As all three of the business agents acted in concert, the threats made by their
spokesman are attributable to all of them.4 In addition, Andrews of the Teamsters
made the threat to join in the picketing when members of the union became in-
volved. The fact that this threat was in futuro would seem to be immaterial. It
would also seem to be immaterial that actual picketing might have been permissible
under the Moore Dry Dock doctrine.5 The fact that Cynclar Corporation whose
alter ego was Beverly Matisko had no employees of its own did not , finally, make
the threats of the three business agents any the less a violation of Section 8(b) (4)
(ii) (B) of the Act. This provision of the Act does not run in terms of "primary"
and "secondary" employees , but in terms of "threats " of various kinds, and such
threats were made in the present case.
B. As alleged in the amended complaint
I have considered thus far the allegations of the original complaint. The complaint
was amended, however, at the hearing itself as a result of a number of incidents which
occurred thereat.
Rather unexpectedly, the first witness called by counsel for the General Counsel
turned out to be a deputy sheriff from Kane County, Illinois, by the name of Frank
K. Baumgartner.6 The reason for his presence was soon made apparent. Desiring to
serve a subpena on Beverly Matisko in connection with a possible "ally" defense, the
Union had contacted the office of the sheriff of Kane County, and was informed
by the sheriff that he was also looking for her to arrest her on a warrant charging
her with embezzlement. Having obtained this information, Daniel S. Shulman, one
of the union attorneys, had contacted Gerard Smetana, one of the counsel for the
General Counsel, who informed Shulman that Beverly Matisko had been subpenaed
to testify on behalf of the General Counsel and that she would be present at the
hearing. Shulman had then proceeded to inform the sheriff of Kane County that she
would be present at the hearing, and when the hearing opened Deputy Sheriff
Baumgaitner was there in order to arrest Beverly Matisko. In an attempt to forestall
this, the deputy sheriff had been served with a subpena by General Counsel'7 and
himself put upon the stand. While he was on the stand, I attempted to obtain from
him the assurance that he would make no attempt to arrest Beverly Matisko until she
had completed her testimony but he would only give the assurance that he would not
arrest her while she was actually on the stand. A few minutes later Beverly Matisko
appeared in the hearing room, and Shulman jumped up and pointed her out to the
sheriff. Despite prior warnings that he would be interfering with the proceeding,
and that he would also be violating Section 12 of the Act, Deputy Sheriff Baumgartner
put her under arrest. However, he requested a short recess to enable him to contact
the office of the State 's attorney to seek instructions . The recess was interrupted by an
attempt on the part of Baumgartner, assisted by another deputy sheriff by the name
of Robert Kollwelter, who was in plain clothes, to remove Beverly Matisko forcibly
from the hearing room. However, the recess had apparently enabled counsel for the
General Counsel to send for two United States marshals, who arrived at this juncture
and, upon my instructions, prevented the two deputy sheriffs from carrying out their
intention to remove Beverly Matisko from the hearing room. The deputy sheriffs
4 See International Woodworkers of America , AFL-CIO, etc, Locals 5-436 and S-439
(IV. T. Smith Lumber Company), 116 NLRB 507, 509, enfd. 243 F. 2d 745 (CA. 5).
5 See General Drivers, Chauffeurs, and Helpers , Local Union No. 886 ( The Stephens
Company), 133 NLRB 1393, 1395.
6 The deputy sheriff was in uniform and armed , his pistol being prominently displayed
on his hip
7 The deputy sheriff turned this suhpena over to Shulman, who put it into his pocket,
and a little later handed it to the Trial Examiner.
LOCAL 150, IUOE, ETC. 35
left the hearing room without her but waited for her in the hall during the remainder
of the day , in the afternoon of which she completed her testimony.8
But the attempted arrest of Beverly Matisko was not the only ordeal of the day.
Shortly alter the hearing opened my attention was called by Smetana to the presence in
the hearing room of a photographer , with camera and flashgun in hand , who, Smetana
declared , had been sent by the Union in order to intimidate the witnesses . Thereupon,
Shulman stated to me that Local 150 of the Operating Engineers and Local 582 of
the Hod Carriers had asked the photographer , who was the editor of a local paper, to
be present , and assured me that there was no intention to have the photographer take
pictures in the healing room. Upon this assurance , I permitted the photographer
to remain but directed him to put his camera away, which he did.
After the noon recess, the photographer , whose name was Theodore Graham, was
called as the second witness on behalf of the General Counsel , and Shulman engaged
in conduct that was plainly contemptuous . Despite my direction to Graham to
take the stand , Shulman instructed him repeatedly not to do so, stating that he was
Graham 's lawyer and that he was advising him not to testify . It was not until I had
warned Shulman that I would exclude him from further participation in the hearing
that he finally yielded and ceased to countermand my direction to Graham to take
the stand.
As a witness , Graham revealed that he was not only the editor and publisher of the
Northern Illinois Labor Bulletin but that he was a business agent for the Carpenters
Union in Crystal Lake, Illinois, as well as president of the Building Trades Council
of McHenry County, of which Local 150 of the Operating Engineers is a member,
and that his office , as well as that of the Bulletin , was in the labor temple at Crystal
Lake. He also revealed that he had come to the hearing at the request of the Building
Tiades Council , and that he had conferred with Shulman upon his arrival . "I would
have taken pictures of the whole proceedings ," Graham testified , and there is little
doubt from his testimony when evaluated in the light of the attempted arrest of Beverly
Matisko at the hearing , that his principal objective had been to secure a photograph of
the arrest of the General Counsel 's star witness.
On the second day of the hearing, Shulman himself was called as the General
Counsel 's last witness , and was represented by personal counsel, but his testimony
threw little additional light on his actions or motives. He had already made the
statement in his capacity of counsel that confirmed what was obvious , namely, that
he knew that Beverly Matisko was the General Counsel's star witness and that he
hoped to undeimine her credibility by getting her arrested on a criminal charge at the
hearing.
Shulman also comported himself in an unseemly manner in other respects at the
hearing. At one point , when a witness was being questioned about an affidavit, he
rushed up to the witness stand, and, snatching the affidavit from the witness, ran off
with it toward his own counsel table. While another witness was being examined,
he perched himself insolently on a small table in front of the rostrum , so as to obscure
my view and tower over the witness . He had to be instructed to return to his
customary place at the counsel table , and to conduct the examination of the witness
from there. At various times he also made wholly unfounded and even absurd
accusations against opposing counsel , such as that Smetana was attempting to
intimidate the aimed deputy sheriff.
In the end, before putting in the case for the Respondents . Shulman, who was
becoming increasingly concerned that he might be subjected to disbarment Proceedings,
apologized to opposing counsel and to me for conduct which he himself characterized
as "unbecoming ." Indeed, he apologized for having "created a circus at the hearing."
As usual in such circumstances , he attributed his unfortunate conduct to mistaken
zeal on his part.
8In their brief , counsel for the General Counsel state that after the hearing was re-
cessed for the day the deputy sheriffs from Kane County " took Mrs Matisko to jail in
Elgin , Illinois ." I have no reason to doubt that this happened but I have no direct and
personal knowledge of this event . However, Matisko put in no appearance the second
day of the hearing, and was never called as a witness by any of the Respondents. Sub-
sequent to the hearing-on December 21, 1963-I received a telegram from Smetena,
asking me to take administrative notice of the fact that on November 27, 1963, Judge
Edward Westerman of the court of the city of Elgin , Kane County , Illinois , after a pre-
liminary hearing in the ease of Beverly Matisko, had vacated the warrant for her arrest
and dismissed the complaint against her. I cannot take administrative notice of this
alleged fact , which could only be established by reopening the record . I see no necessity
for this however , since I have credited Beverly Matisko's testimony notwithstanding the
issuance of the warrant of arrest against her.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At various points in the proceedings, the complaint was amended so as to in-
corporate allegations based on some of the events that had occurred at the hearing
itself, or shortly prior thereto. Essentially, the amendments were that (1) Local 150
of the Operating Engineers , through its officers and agents, had coerced and restrained
Cynclar Corporation and its agent, Beverly Matisko, in furtherance of their dispute
with Frisch by interfering with the Board's agents and processes, and had thereby
violated Section 8(b) (4) (u) (B) of the Act; (2) Local 150 of the Operating Engineers
as well as Local 582 of the Hod Carriers, through its officers and agents, had restrained
and coerced employees of Frisch who were present at the hearing in the exercise
of rights guaranteed to them under Section 7 of the Act, and had thereby violated
Section 8(b) (1) (A) of the Act; and (3) Deputy Sheriff Baumgartner of Kane County
and Daniel Shulman, by willfully interfering with the Board's agents in the perform-
ance of their duties, had violated Section 12 of the Act.
Insofar as the allegation of further violation of Section 8(b) (4) (ii) (B) of the
Act is concerned, it would seem to be doubtful that the attempted arrest of Beverly
Matisko, and the intention to photograph her while she was being arrested constituted
independent violations of this provision of the Act, which, so far as pertinent here,
makes it an unfair labor practice for a labor organization or its agents "to threaten,
coerce or restrain any person engaged in commerce or in an industry affecting com-
merce, where in either case an object thereof is forcing or requiring any person .
to cease doing business with any other person." It would seem that the true "object"
of Local 150 of the Operating Engineers and its counsel was simply to interfere
with the Board's agents and processes in order to escape being found guilty of the
original charges, and to intimidate Beverly Matisko from resorting to the Board's
agents and processes in the future to secure the vindication of her rights. It seems
to me, however, that there is no need to decide the question whether this would
constitute a further violation of Section 8(b) (4) (ii) (B) of the Act, since even if it
were taken to be established, it would in no way expand the scope of the remedy.
Section 8 (b) (1) (A) of the Act makes it an unfair labor practice for a labor orga-
nization to restrain or coerce employees in the exercise of their Section 7 rights.
It appears to be the contention of the General Counsel that this provision was violated
when the acts directed at Beverly Matisko occurred in the presence of Anderson and
Freund, the two employees of Frisch who were present at the hearing, and who
had previously been threatened with expulsion from Local 150 by Meagher. I am
unable, however, to accept this contention. While the Board has frequently held
that one of the Section 7 rights of employees is to vindicate their rights in Board
proceedings, and has also held that employees may be coerced or restrained by acts
directed not only against their own employers but also against independent contractors
seeking to do business with their employers,9 I am unable to perceive how an
attempt to arrest or photograph Beverly Matisko, which, moreover, was unsuccessful,
would have the necessary effect of restraining or coercing any of the employees of
Frisch from attempting to vindicate any rights of their own in Board proceedings.
I come, finally, to the question of the violation of Section 12 of the Act. I permitted
this amendment because the Board in the Kohler Company case 10 had reversed the
Trial Examiner for rejecting evidence offered to show a violation of Section 12 of the
Act.11 In doing so, the Board declared:
In view of the very purpose of this section of the Act, it is clear that allega-
tions of Section 12 violations are not limited by the pleadings or the issues in a
proceeding. Indeed, alleged violations of Section 12, and any supporting
evidence thereof, may be brought to the Board's attention either formally or
informally at any time during the course of a proceeding. [Emphasis supplied.)
While in conformity with this ruling, I permitted the complaint to be amended to
allege the violation of Section 12 of the Act, I believe that what the Board had in mind
was simply the preservation of the evidence in case it should determine that a prosecu-
tion for violation of the Act should be instituted. It would seem clear, however, that
such a prosecution could be brought only in a district court of the United States in
which alone it could be determined whether the Act had been violated.
But, while I can make no formal findings, I believe it to be not inappropriate to
express the view that there is reason to believe that Section 12 of the Act was in fact
6 See International Woodworkers of America, AFL-CIO, etc, Locals 5-426 and 5-429
(W. T. Smith Lumber Company ), supra, at 508.
n" 128 NLRB 1002, 1100-1101.
u It provides: "Any person who shall willfully resist, prevent, impede, or interfere with
any member of the Board or any of its agents or agencies in the performance of duties
pursuant to this Act shall be punished by a fine of not more than $5,000 or by im-
prisonment for not more than one year or both."
LOCAL 150, IUOE, ETC. 37
violated by Deputy Sheriff Baumgartner and Shulman. I believe the deputy sheriff
to have been ignorant of the rule that exempts from arrest witnesses under subpena
while in attendance for the purpose of giving testimony. It is possible, although
less likely, that Shulman shared the deputy's ignorance. But since in the administra-
tion of the criminal law, ignorance of the law is not an excuse, this ignorance would
not constitute a defense. Shulman contended that in aiding the sheriff to effect the
arrest he was actuated by civic zeal but his real motive was, of course, to discredit
the General Counsel's principal witness. He proceeded to assist the sheriff's office
to effect the arrest, although he must have known, moreover, that mere arrest may
not be shown to discredit a witness.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that the activities of the Respondent Unions set forth in section III, A, hereof,
occurring in connection with the operations of the Employers set forth in section II,
hereof, 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 of commerce.
V. THE REMEDY
Having found that the Respondent Unions have engaged in unfair labor practices
in violation of Section 8(b) (4) (u) (B) of the Act, I shall recommend that they cease
and desist therefrom and that they take certain affirmative action to effectuate the
policies of the Act.
So far as the misconduct of Daniel S. Shulman is concerned, the General Counsel,
taking into consideration doubtless the apologies tendered by him, recommends only
that he be reprimanded and censured for such conduct, and that he be put on notice
that any repetition of such conduct will lead to disciplinary action. I shall not go,
therefore, beyond this recommendation. In view of the fact that the hearing was not
actually disrupted, I shall also not recommend any criminal prosecution under Sec-
tion 12 of the Act.
CONCLUSIONS OF LAW
1. Local 150, International Union of Operating Engineers, AFL-CIO; Local 582,
International Hod Carriers, Building and Common Laborers' Union of America,
AFL-CIO; and Local 330, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. Frisch Contracting Service Company, Inc., and Cynclar Corporation are either
engaged in commerce or in an industry affecting commerce.
3. By threatening to picket Cynclar Corporation, and by other threats, as set forth
in section III, A, hereof, the Respondents have engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(b) (4) (ii) (B) of the Act.
4. By attempting to induce the arrest of Beverly Matisko, the president of Cynclar
Corporation, and in attempting to photograph her in the act of being arrested, as set
forth in section III, B, hereof, the Respondent Unions have not engaged in unfair labor
practices affecting commerce within the meaning of Section 8(b) (4) (ii) (B) or Sec-
tion 8 (b)(1)(A) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , I hereby
recommend that the Respondents shall:
1. Cease and desist from threatening, coercing , or restraining Cynclar Corporation,
or any of its officers or agents, or any other person engaged in commerce or in an in-
dustry affecting commerce, where an object thereof is to force or require said
corporation or persons or any other employer or person to cease doing business with
Frisch Contracting Service Company, Inc.
2. Take the following affirmative action in order to effectuate the policies of
the Act:
(a) Post at its business offices and meeting halls, copies of the attached notice
marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director
for Region 13, shall, after being duly signed by representatives of Respondent
Unions, be posted by the Respondents immediately upon receipt thereof, and be
12 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "it
Decision and Order."
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintained by them for 60 consecutive days thereafter , in conspicuous places, in-
cluding all places where notices to members are customarily posted . Reason-
able steps shall be taken by the Respondents to insure that said notices are not
altered , defaced , or covered by any other material.
(b) Mail to the Regional Director for Region 13 signed copies of the aforemen-
tioned notice for posting by Cynclar Corporation , Inc., or any of the employers
affected by the unfair labor practices found herein, at the election of such em-
ployers. Copies of said notices , to be furnished by the Regional Director for
Region 13 , shall, after being signed by the Respondents , be forthwith returned to
the said Regional Director for disposition.
(c) Notify the Regional Director for Region 13, in writing, within 20 days from
the date of receipt of this Decision, what steps have been taken to comply
therewith.13
In the event of the failure of the Respondents to comply with this Recommended
Order, it is also recommended that the Board issue an order requiring the Respond-
ents to take the aforesaid action.
It is further recommended that the complaint be dismissed, insofar as it alleges
violations of the Act based on the events occurring at the hearing, but that Daniel
S. Shulman be censured for his misconduct at the hearing, and warned that dis-
ciplinary action will be taken against him if there is any repetition of such
misconduct.
13 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to rend: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF FRISCH CONTRACTING
SERVICE COMPANY, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT in violation of Section 8(b) (4) (ii) (B) of the Act threaten,
coerce, or restrain Cynclar Corporation , or its president , Beverly Matisko,
or any other person engaged in commerce or in an industry affecting commerce,
where an object thereof is to force or require the said Cynclar Corporation or its
president , Beverly Matisko, or any other person engaged in commerce , to cease
doing business with Frisch Contracting Service Company , Inc., or its president,
Marvin Frisch.
LOCAL 150, INTERNATIONAL UNION OF
OPERATING ENGINEERS , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
LOCAL 582 , INTERNATIONAL HOD CARRIERS , BUILDING AND
COMMON LABORERS ' UNION OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
LOCAL 330, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
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.
Interested persons may communicate directly with the Board 's Regional Office,
Midland Building , 176 West Adams Street , Chicago, Illinois, Telephone No. Cen-
tral 6-9660 , if they have any question concerning this notice or compliance with
any of its provisions.