Local 456, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Oct 23, 1964

149 N.L.R.B. 49 (N.L.R.B. 1964)

LOCAL 456, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 49
Local 456, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Strauss Paper Co.,
Inc. Cases Nos. 2-CB-3.917 and 3-CC-844. October 23, 1964
DECISION AND ORDER
On June 30, 1964, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled case, finding that the 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 Decision. The Trial
Examiner also found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint. Thereafter,
the Respondent and the Creneral Counsel filed exceptions to the De-
cision, and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its power in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers 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. The Board has considered the De-
cision, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the exception noted below,' and with the
following modifications in the remedy.
REMEDY
The Trial Examiner found that the Respondent violated Section
8(b) (1) (A) but did not include a provision remedying these viola-
tions in his Recommended Order. We shall therefore provide such a
remedy and , in view of the serious nature and extent of such conduct,
issue a broad order requiring Respondent to cease and desist from
engaging in such conduct and in any other manner restraining or
coercing employees in the exercise of their Section 7 rights.
The Trial Examiner recommended that the Respondent be pro-
hibited from using the services of Peter Calabrese as its business
1 It is clear from the record that the primary employer , Strauss Paper Co., Inc , is en-
gaged in commerce and meets the Board 's jurisdictional standards and this case is thus
one over which the Board will assert jurisdiction . Sheet Metal Workers , International
Association , Local Union No. 299 , etc (S . M. Kisner and Sons ), 131 NLRB 1196, 1198-
1199; Local 3, Intonational Brotherhood of Electrical Workers, AFL-CIO (New Power
Wire and I9lectric Corp. and P if L Services , Inc, 144 NLRB 1089 , footnote 2. We, there-
fore , find it unnecessary to adopt the Trial Examiner's finding that the Twin Maples
Restaurant is engaged in commerce or in an industry affecting commerce within the mean-
ing of the Act
149 NLRB No. 14.
770-076-05-vol 149-5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent for a period of 1 year. We do not believe this extraordinary
remedy appropriate to the facts of this case and, accordingly, do not
adopt it.
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 the Respondent, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with the following
modifications :
(1) Delete paragraph 1(b) of the Order and the second paragraph
of the Notice.
(2) Delete paragraph 2(c) and renumber paragraph 2(d) accord-
ingly.
(3) Insert as paragraph 1(b) the following:
'Restraining or coercing employees of Strauss Paper Co., Inc., in
the exercise of the employees' rights guaranteed in Section 7 of the
Act (including the right, to refrain from joining or assisting Local
450, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America) by (a) threatening or inflicting
bodily harm; (b) interfering in any way with the safe and proper
operation by employees of motor vehicles; (c) blocking ingress or
egress of employees of Strauss while delivering or attempting to de-
liver merchandise to any customer; or in any other manner."
(4) Insert the following paragraph as the second indented para-
graph of the Notice:
WE,, wti,i, No,r restrain or coerce employees of Strauss Paper
Co., Inc., in the exercise of their Section 7 rights by : threaten-
ing or inflicting bodily harm; interfering in any way with their
safe and proper operation of company motor vehicles; blocking
their ingress or egress to the premises of other employers while
they are delivering or attempting to deliver merchandise to any
customer; or in any other manner, restrain or coerce employees
of Strauss Paper Co., Inc., in the exercise of their rights under
the National Labor Relations Act, including their right not to
join or assist us.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on January 2, 1964, by Strauss Paper Co., Inc., the Regional
Director for Region 2 of the National Labor Relations Board, herein called
the Board, issued complaints on behalf of the General Counsel of the Board
on January 31, 1964, and an order consolidating them on February 10, 1964,
against Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpeis of America, Respondent herein, alleging a violation of Sec-
tion 8 (b)(1)(A), (4)(i) and (u)(B) of the National Labor Relations Act,
LOCAL 456, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 51
as amended (29 U.S.C. 151 et seq.), herein called the Act. In its duly filed answer
Respondent , while admitting certain allegations of the complaint , denied the com-
mission of any unfair labor practice.
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher
in New York, New York, on February 24, 1964, where all parties were represented
by counsel and afforded full opportunity to be heard and to present oral argument.
The hearing was adjourned to permit counsel for the General Counsel to initiate
court proceedings to enforce compliance with subpenas issued to several witnesses
who refused to testify . On the occasion of reconvening the hearing on March 9,
1964, counsel for Respondent failed to appear and offered no excuse for his failure
until counsel for the General Counsel, at my direction, telephoned him at his office
and learned for the first time that counsel would not attend the hearing claiming a
prior court engagement At this point, having assured myself on the record that on
February 24, in the presence of Respondent's counsel and its secretary-treasurer,
Peter Calabrese, the hearing had been specifically adjourned to March 9, 1964, at a
set time and place, that the transcript of the hearing so indicated, and that the offi-
cial reporter had thereafter supplied Respondent's counsel with a copy of this
transcript, I thereupon proceeded to hear the remainder of the case, directing
counsel for the General Counsel to send a copy of my remarks to counsel for the
Respondent by registered mail. Counsel's covering letter, and the receipt for it
signed by one H. Rinker, as agent for counsel, appears in the record as Trial
Examiner's Exhibit No. 1. As counsel has not since communicated any expla-
nation or excuse to me or to any other representative of the National Labor
Relations Board I have assumed that upon the adequate notice of resumption of
the hearing supplied him he has elected, in behalf of his client, not to participate
further in this proceeding. Although I directed counsel for General Counsel to
notify Respondent's counsel that I had fixed April 6, 1964, as the final date for the
filing of briefs with me I have not received one. General Counsel, having argued
orally upon the conclusion of his case -in-chief, elected, with my acquiescence, not
to file a brief
Upon consideration of the entire record in this case, and upon my observation of
each witness appearing before me I make the following:
FI4DINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE EMPLOYERS
Strauss Paper Co., Inc., is a New York corporation with its principal office, plant,
and place of business at Elmsford, New York, where it is engaged in the wholesale
distribution and sale of paper products, including bags, cups, and wrapping paper.
During 1963 Strauss purchased and caused to be transported and delivered to its
plant paper and paper products valued in excess of $100,000, of which goods and
materials valued in excess of $50,000, were transported and delivered to it in inter-
state commerce directly from States of the United States other than the State of
New York. Upon the foregoing facts admitted in the pleadings I find Strauss
Paper Co., Inc., to be an employer and a person engaged in commerce and in an
industry affecting commerce within the meaning of Sections 2(1), (2), (6), and
(7), and 8(b)(4) of the Act.
Skibee, Inc., is a New York corporation with its principal place of business in
White Plains, New York, where it is engaged in the performance of various services,
including the arrangement of ski tours to locations in the States of New York, Mas-
sachusetts, Vermont, Maine, and New Hampshire, and the rental of ski equipment.
Skibee operates as a broker under authority of the Interstate Commerce Com-
mission to provide , as a "package" ski tour, transportation , lodging, meals, ski
instructions, and entertainment, said tours originating in New York State and 60
percent to 70 percent being to the points in neighboring New England States noted
above. Skibee annually receives gross revenue in the approximate amount of
$150,000, approximately $127,000 of which is derived from tours described above,
and the remaining income from iental of ski equipment.'
Sam Kesselman and Jack Kesselman, copartners doing business and referred to
herein as Parkway Wines and Liquors, maintains its principal place of business in
White Plains, New Yoik, where it is engaged in the retail sale and distribution of
wine, liquor, and related products.
i The credited tentiniony of Sidhee ',, Ine.ideut , Sanford Colby.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parkway annually does a gross volume of business in excess of $200,000, de-
rived from purchases delivered to it of wines, liquors, and related products valued
in excess of $175,000. Of the goods and materials thus delivered, although sup-
plied by local suppliers, none of it originates within the State of New York, and
40 percent of all goods and materials purchased, being Scotch whiskey, Canadian
whiskey, and imported wines, cordials, and vermouths, are transported and delivered
from points outside the United States.'
119 Elmsford, Inc., doing business as Muffin Man Restaurant, herein referred to
as The Muffin Man, is a New York corporation maintaining a place of business at
Elmsford, New York, where it is engaged in the business of operating a restaurant
for the general public and the sale and distribution of prepared food and drink and
related products. It annually does a gross volume of business in the approximate
amount of $225,000. During the course and conduct of its business it annually
purchased and caused to be delivered to it meats, fish, vegetables, dairy products,
and other goods and materials estimated to be in excess of $90,000. Of these
purchases meats valued at approximately $15,000 were annually purchased from
a local distributor. Frozen orange juice valued in excess of $2,000 was likewise
purchased locally. As I took official notice that oranges are not grown commer-
cially in New York State I find and conclude that the frozen orange juices pur-
chased are transported and delivered to The Muffin Man from States other than
the State of New York. In addition The Muffin Man purchases its paper supplies
from Strauss Paper Co., Inc., whom I have already found to be engaged in inter-
state commerce, as well as from other sources.'
John Palacio and Ray Bazinet are copartners doing business as Elmsford Produce
Market, with a place of business in Elmsford, New York, where they are engaged
in the retail sale and distribution of foods, meats, vegetables, household supplies,
and related products. Annually they do a gross volume of business of approxi-
mately $150,000. During the course and conduct of their business they purchase
annually and cause to be transported and delivered to their place of business
canned goods, meats, vegetables, and other goods and materials valued at approxi-
mately $135,000, of which canned goods valued at approximately $10,000 were
delivered to it by truck from Connecticut and New Jersey and other points outside
of the State of New Yoik.4
Mor-Ja Restaurant, Inc., doing business as Twin Maples Restaurant, is located in
Elmsford, New York, where it is engaged in operating a restaurant for the general
sale and distribution of prepared food and drink and related products. It purchases
paper products from Strauss Paper Co., Inc., whom I have already found to be
engaged in commerce. In addition, it was credibly testified that the usual variety
of meat and dairy dishes were served on a general menu. As I am not obliged, as
trier of the facts, to ignore what are matters of common knowledge I conclude and
find that at least some of the food sold and consumed at Twin Maples (or at any
other New York restaurant of comparable size) originated in and were transported
from States other than the State of New York.
Upon the foregoing I conclude and find that Skibee, Inc., Parkway Wines and
Liquors, The Muffin Man, Elmsford Produce Market, and Twin Maples are each
engaged in commerce and are in an industry affecting commerce within the mean-
ing of Sections 2(1), (2), (6), and (7) and 8(b)(4) of the Act'
If. THE LABOR ORGANIZATION INVOLVED
Respondent Local 456, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is conceded to be a labor organization
within the meaning of the Act and I so conclude and find.
2 The credited testimony of Sam Resselman
3 The credited testimony of The Muffin Man's president, Nathan Friedlander.
4 The credited testimony of John Pnlacio.
5 Cf. Local 20 , Sheet Metal Workers International Association , AFL-CIO (Bergen Drug
Company, Inc.), 132 NLRB 73, 76. Sheet Metal Workers International Association,
Local 299, etc. (S. M. Kisner and Sons ), 131 NLRB 1196; International Association of
Heat and Frost Insulators and Asbestos Workers, AFL-CIO, et at. (Speed-Line Mfg. Co.,
Inc.), 139 NLRB 688.
LOCAL 456, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 53
III. THE UNFAIR LABOR PRACTICES
A. The events
1. The pickets
During December 1963, a strike among Strauss Paper Co.'s employees was in
progress and a picket line was established in front of its premises with pickets carry-
ing signs stating that the employees were on strike and bearing the legend "no
contract-no work." Among those who participated in the picketing were employees
Robert Plenty and Sylvester Moody. On December 23 employee Allen Moran,
regularly employed as assistant bookkeeper, was assigned the task of assisting with
the Company's regular deliveries, an assignment made necessary by the strike situa-
tion. He was assisted by employee Fred Berchin, a young man hired to begin work
that day and whose duties included helping with the driving. As Berchin appeared
for work he passed the pickets. Whereupon the Respondent's secretary-treasurer,
Peter Calabrese, approached him and told him not to go to his job as the Company
was on strike and he would be breaking the picket line. Berchin nonetheless
entered the premises. When thereafter, in the company of employee Moran, he
was about to enter the truck preparatory to making his deliveries employee Plenty
told him "not to step in the truck or trouble would occur."' Employee Moran
quoted the pickets as stating on this same occasion, "Don't go out or there will be
trouble for you."
2. The chase
Moran and Berchin took off, with Berchin driving, to deliver the Company's
merchandise. They headed first for White Plains Hospital. To reach their desti-
nation they proceeded for some distance along the New York Thruway, a limited
access highway. About a mile along their route they observed that they were being
followed by a car driven by Respondent's Peter Calabrese, with Plenty as his
passenger.
As the company truck proceeded along the Thruway, Calabrese on five or six
occasions executed the hazardous driving tactic known as "cutting off." Thus he
would pass to the left of the truck and immediately upon passing it swerved to the
right into the lane occupied by the truck and directly in front of it, causing it
either to quickly slow down or veer right to avoid collision. Traffic on the Thru-
way at this time was not crowded and no need for this measure was otherwise
suggested.
3. The hospital delivery
In spite of Calabrese's peculiar driving behavior Moran and Berchin negotiated
the trip safely to their first destination, White Plains Hospital, where they proceeded
to make their delivery. While attempting to do so Calabrese, who had followed
them into the hospital parking area, came shouting upon the scene, identifying
himself as a union representative, telling the hospital receiving personnel that the
Company's employees were on strike and that they should not accept the delivery.
During the same scene Calabrese also told Berchin not to deliver anything or he
would get hurt. The delivery was nonetheless accepted by the hospital and the
men drove on to their next stop.
4. The Twin Maples incident
When Moran and Berchin reached the Twin Maples Diner in Elmsford, Cala-
brese and Plenty were right behind them. The delivery men entered through the
kitchen of the diner and sought to make their delivery to one of the chefs who
stated they would have to speak to someone in authority. They were referred to
the manager to whom they were explaining the strike situation and requesting his
acceptance of the delivery of the merchandise when Calabrese came in and nn-
mediately interrupted the conversation by identifying himself as the union repre-
sentative, telling the manager that Strauss' employees were on strike, and advising
him not to accept the delivery of the merchandise, referring to it in distinctly earthy
6 The testimony of Berchin whom I credit generally and whose testimony, together with
that of employee Moran, whom I also credit, forms the basis of my findings throughout
this Decision.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
language. Calabrese elaborated his point by explaining to the manager that if the
goods were accepted he, Calabrese, would cut off all their sources of supply. As
the conversation progressed Calabrese frequently directed his remarks to the de-
livery men, telling them not to "touch any of the merchandise in the truck," and
calling employee Beichin "a little punk." The manager refused to accept the
delivery.
Before leaving the diner Moran and Berchin each sat at the counter and had a
cup of coffee. Calabrese sat down on Berchin's left while Plenty sat next to
Moran. In the conversation which followed Calabrese told Berchin that he con-
sidered him a scab and said that he and Moran "were going to get hurt." Mean-
while Plenty expressed surprise to Moran that he was going against the employees
and told him "not to carry on or we would be in trouble if we carried on."
5. The Skibee delivery
Later on the same afternoon the same two employees went to the premises of
Skibee, Inc., at the White Plains Shopping Center to make a delivery of mer-
chandise This time they used a station wagon owned by the Company and were
again followed by Calabrese and Plenty.
Upon entering the premises of Skibee in the company of Berchin, Moran spoke
to the office manager, Ellen Cassidy, explaining that they were there to make a
delivery for Strauss Paper Co. Cassidy had been alerted, however, to the fact
that something unusual was taking place. Before the arrival of the men from
Strauss a man whom she identified as Calabrese rushed into office, said, "I'm
warning you not to take it," and departed. Cassidy was understandably mystified
by Calabrese's hasty arrival, departure, and cryptic remark, but Moran's and
Berchin's arrival immediately thereafter provided the explanation. They explained
to her that they were delivering a case of cups from Strauss and asked if she
would accept delivery. Midway through the conversation Calabrese returned in a
highly agitated state, shouting for the person in charge, repeatedly telling Cassidy
not to take the delivery, and on one occasion, as Moran or Berchin was talking,
telling them to shut tip. Meanwhile Sanford Colby, Skibee's president, left his
desk located at a more distant point in the office and joined the discussion. Cala-
brese repeated to him substantially the same request not to accept delivery as he
had made to Cassidy, adding that the men making the delivery were scabs and that
he would see to it that the many union people who went skiing did not use Skibee's
services and equipment and that the premises would be picketed. Skibee accepted
the delivery and both Calabiese and the delivery men left.'
6. The Parkway Liquor incident
From Skibee employees Moran and Berchin went next to the nearby liquor store,
Parkway, to make a delivery, where Moran advised Kesselman, one of the owners,
that the Strauss employees were on strike and that he and Berchin were making
deliveries. He asked if Parkway would accept the merchandise that they had in
their station wagon. As this conversation progressed Calabrese repeated his routine
of the two previous deliveries by appearing on the scene, identifying himself as a
union representative, and telling Kesselman that the Strauss employees were on
strike and that he should not accept the goods. Kesselman replied that it was his
affair and that he would accept the goods if he so chose. Whereupon Calabrese
informed Kesselman of his strong union connections and threatened to shut off
deliveries to the liquor store if the goods were accepted. At about this time Moran
went out to the station wagon, parked some distance down the street from the
store, and returned with large packages in both arms. As he attempted to open
the glass door into Parkway Calabrese inserted himself in a position that would
block the door as it opened outward. Moran, however, used greater force in open-
ing the door and as he did so was able to push Calabrese's body away with the
door. Peculiarly, the door opened outward against a protruding abutment of the
building. Consequently, as Moran succeeded in making a passageway for himself,
he also managed to squeeze Calabrese, a rather portly gentleman, between the glass
door and the brick wall. The delivery was accomplished.
7. Calabrese 's assault
Immediately upon making the delivery to Parkway, Moran, followed by Berchin,
returned down the street to the station wagon. As they walked along Moran de-
tected a disturbance and motion immediately behind him and turned to find Berchin
4 The foregoing is a synthesis of the mutually corroborative testimony of Colby, Cassidy,
and employees Moran and Berchin, all of whom I credit.
LOCAL 456, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 55
falling to the ground on his back and bleeding from the mouth , with Calabrese
standing beside him. As Berchin describes the incident Calabrese walked im-
mediately behind him as they left the store and a few yards along the way hit him
with his fist on the right side of his face
Moran picked up Berchin and helped him to a nearby drugstore where first aid
was administered . They then went to the local police station and reported the
incident and from there returned to the Strauss establishment.
8. Other alleged misconduct
Late in the afternoon of December 27, Nathan Friedlander, the president of The
Muffin Man, a restaurant in Elmsford, New York, visited Strauss Paper Co. As
he sought to enter the premises one of the pickets in front told him that the place
was on strike and that he should not cross the picket line. Thereupon he was
called over to a car parked at the curb and the occupant said, "I'm asking you in
a nice way please do not cross the picket line, the place is on strike." Friedlander
testified that he could not identify the person to whom he spoke as it was getting
dark. He did not go into the Strauss establishment but walked on.
Thereafter on January 6, 1964, Friedlander gave an unsigned statement to counsel
for the General Counsel which I deem to more accurately describe the events than
Friedlander's halting and evasive failure to recollect anything of significance as he
testified before me. Thus Friedlander stated to counsel:
On December 27 at about 4 p.m. I was passing by Strauss Paper Co. I saw
the pickets and started to go in to talk to Henry Strauss. Muffin Man does
business with Strauss. As I was about to enter a picket pointed to the sign
and said "hey, strike," I kept walking when a man seated in a Pontiac in front
of Strauss called out to me, "Hey you, I want to talk to you." I went over to
the car and he said, "I'm asking you in a nice way not to go in, the place is on
strike." 1 said l was there for a social call. He said, "I'm telling you again if
you go in there we'll throw a picket line in front of your place." He did not
mention the name of my place but I assumed he knew who I was so I turned
around and walked away.
I did not recognize him but he was of swarthy complexion. He stayed in the
car the entire time.
Upon Attorney Bennett's affirmation that the statement accurately describes the
incident as Friedlander described it to him I accept it and reject Friedlander's sub-
sequent denials before me as incredible. However, as Friedlander at no time
specifically identified the individuals who spoke to him as being connected with
Respondent I base no findings of violation of the Act upon either his testimony or
upon the statement earlier made by him, even if I were to accept it as substantive
evidence
Thereafter on January 3, 1964, Arthur Stern, a butcher employed by Elmsford
Produce Market, went, in the company of his superior Jack Palacio, to the Strauss
Co., for wrapping paper. When questioned by counsel for the General Counsel at
the hearing he was singularly uncommunicative, evasive, and forgetful, but he
testified that the sworn statement which he gave to Attorney Bennett on January 6,
1964, "was true at the time " Because I deem this statement to more accurately
describe the incident than Stern's evasive testimony which I reject (accepting only
his reaffirmation of his earlier statement), I will set it forth thus:
On January 3, 1964, I went with my boss, John Palacio to Strauss Paper Co.,
to pick up some butcher paper. I got out of the truck and Palacio stayed in
the truck. As I got outside the entrance a picket (wearing a picket sign) told
me he would appreciate it if I didn't cross the picket line. I told him I needed
the material and went in. I came out with a roll of paper and went to the
truck. At this point a man came out of a car paiked in front of Strauss. This
man had been speaking to the pickets. He came over to me and said that he
wanted me to return the paper, that he had gone on strike and we shouldn't
patronize Strauss. I explained I needed the paper. He kept insisting I return
the paper. He said it was a local situation, that he was from Elmsford and if
I didn't return the paper he could possibly cause trouble at the store where I
worked. I then returned the paper.
However, as Stern neither in his testimony nor his earlier sworn statement identified
the individual who spoke to him I conclude that there is not sufficient evidence to
s International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO,
Local No. 61 (Groveton Paper Company), 144 NLRB 939.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attribute the alleged misconduct to a representative of the Respondent and accord-
ingly do not rely upon the incident in any finding I make herein.
B. Analysis and conclusions
1. Section 8(b) (4) (i) (B) conduct
It is alleged that Respondent in furtherance of its demand for recognition and a
contract from Strauss, notwithstanding that it had not been certified as the repre-
sentative of Strauss' employees, threatened an employee of Skibee, Inc., that it
would picket Skibee if the Strauss delivery were accepted, and that by such other
conduct Respondent induced and encouraged an individual employed by Skibee to
engage in a strike and a refusal in the course of employment to use, manufacture,
process, transport, and otherwise handle and work on goods, articles, materials, and
commodities, and to perform services for Skibee, thus violating Section 8(b)(4)(i)
(B) of the Act.
When Union Secretary-Treasurer Calabrese entered the premises of Skibee and
loudly demanded that they should not accept the Strauss delivery he addressed the
office manager, Ellen Cassidy, in the presence of everyone else in the office, Cassidy
having credibly testified that "all the office help were there at the time." That is
when he announced that a picket line would be established at Skibee and that union
members would be urged not to patronize the establishment if they accepted the
cups being delivered. It was obvious to the employees subjected to his loud an-
nouncement that they and their employer were being asked to reject the ordered
cups and refrain from using them and that this was being demanded, as Calabrese
had told them repeatedly, because Strauss employees were on strike. This is the
customary form of inducement and encouragement of employees of neutral em-
ployers proscribed by Section 8(b)(4)(i)(B) in situations where, as here, the labor
organization making, the demand is doing so when not certified, as required. I
accordingly conclude and find that by Calabrese's conduct with respect to Skibee's
employees Respondent has violated the Act in this particular.'
Throughout the presentation of his oral argument counsel for the General Counsel
contended that Calabrese's conduct constituted inducement and encouragement as to
Office Manager Cassidy as well as to the other employees present. To so hold I
must first analyze Cassidy's occupational functions to determine whether it is as a
"low level" or "high level" supervisor that she is or is not an individual subject to
inducement and encouragement proscribed by the Act, as interpreted by the Board."
As I have already found and concluded that all of the office employees were present
when Calabrese constantly repeated his shouting threat to picket I hardly deem it
necessary to weigh the legal criteria attached to Miss Cassidy's job simply to note
the addition of one more employee to the group induced and encouraged.
2. Section 8(b)(4)(ii)(B) conduct
It is further alleged that Respondent on the various dates more particularly de-
noted above (supra), in furtherance of its demands upon Strauss for recognition and
a contract notwithstanding it was not certified as representative of Strauss' em-
ployees, warned Skibee, Parkway Liquors, Twin Maples, The Muffin Man, and
Elmsford Market not to buy from or accept delivery from Strauss and threatened
to picket these customers, stop other deliveries to them, cause them to lose business
and otherwise cause them trouble if Respondent's warning were ignored, thereby
threatening, coercing, and restraining the employees neutral to Respondent's labor
dispute with Strauss in violation of Section 8(b) (4) (ii) (B) of the Act.
I have already noted the absence of sufficient probative evidence to support this
allegation as it relates to either The Muffin Man or Elmsford Market and have
recommended that the complaint be dismissed in this particular. As to Skibee,
Parkway Liquor, and Twin Maples, however, it is clear from my findings and
conclusions that Secretary-Treasurer Calabrese, as Respondent's admitted agent, on
the occasion of the delivery made to each establishment loudly and vigorously pro-
claimed to the owner or manager in each case the strike status of Strauss' employees,
demanding that they cease doing business with Strauss by refusing the delivery of
merchandise and by threatening each with a picket line and other union reprisal if
they failed to comply. Specifically this is evidenced by Calabrese's conversations
and demands made to Office Manager Cassidy and Owner Colby of Skibee, threaten-
oTeamateia, Chauffeurs, d Helpers Union, Local 279 (Wilson Teaming Company), 140
NLRB 164, 166-166 , International Association of Heat and Frost Insulators and Asbestos
Workers, at at (Speed-Line Manufacturing Co , Inc ), 137 NLRB 1410, 1411.
i°Loeal 505, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, at at. (Carolina Lumber Co.), 130 NLRB 1438, 1444.
LOCAL 456, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 57
ing them not only with a picket line but the withdrawal of business by union mem-
bers who ski (supra), his threat to the manager of Twin Maples that he would cut
off his source of supply (supra), and his threat to Kesselman to do likewise if
Parkway Liquor accepted the delivery, coupled at that establishment with the demon-
stration of the urgency of his demand by forcefully blocking the delivery at the door,
and by assaulting Berchin thereafter only a few feet down the street (supra). Such
is the conduct that has repeatedly been viewed as threats, restraint, and coercion of
an employer." Under the circumstances herein I conclude and find that Respon-
dent, through its agent Calabrese, thereby threatened, restrained, and coerced the
management of Skibee, Twin Maples, and Parkway Liquor for the purpose of forc-
ing each of them to cease doing business with Strauss Paper Co., Inc., with the
further objective of forcing and requiring Strauss to recognize and bargain with
Respondent notwithstanding that Respondent had not been certified as the repre-
sentative of Strauss' employees, and I further find and conclude that Respondent
has thereby violated Section 8(b)(4)(ii)(B) of the Act.
3. The restraint and coercion of employees Moran and Berchin
Quite apart from the fact that Respondent, through Calabrese, committed the
foregoing conduct directed at neutral employers and their employees, there is also
abundant evidence that by this same conduct and other incidents detailed above
(supra), employees Moran and Berchin were restrained and coerced by Respondent
through Secretary-Treasurer Calabrese and the two picketing employees Plenty and
Moody. Thus, on December 23, 1963, from the time the two delivery men were
told not to get into the truck or there would be trouble (supra), until they appeared
at the police station that evening to report Calabrese's assault upon Berchin (supra),
each of them was subjected to a variety of threats and verbal abuse, not to men-
tion being also subjected to Calabrese's hazardous manipulation of an auto on the
New York State Thruway (supra)-all of it because they refused to join in the
labor dispute at the Strauss plant and because they persisted in going about their
assigned duties in the face of the strike and picketing.
Citation of authority is unnecessary to establish that such conduct by Respon-
dent's agents restrains and coerces employees in the exercise of rights guaranteed
them by Section 7 of the Act, and I so conclude and find here. I accordingly con-
clude and find that Respondent has thereby violated Section 8(b)(1)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, which I have found
to be violative of the Act, occurred in connection with the operations of Strauss
Paper Co., Inc., Skibee, Inc., The Twin Maples, and Parkway Liquors, 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.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices.
I will recommend that it cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act. I have specifically found that the
foregoing unfair labor practices were committed by Respondent's agent, Secretary-
Treasurer Peter Calabrese, who has previously been found by the Board to have
committed, as Respondent's agent, violations of the same provisions of the Act,
Section 8(b)(4)(ii)(B).2 Calabrese's terrorizing tactics, as described herein, oc-
cured on December 23, 1963, 6 months following the Board's Order restraining
Respondent , and its agents, from the commission of conduct far less grievous than
that which I have found herein. Calabrese's continuing misconduct, as described
herein, and its more flagrant character, persuades me that the Board's previous
11 District 65, Retail, Wholesale & Department Store Union, AFL-CIO (Eastern Camera
& Photo Corp.), 141 NLRB 991, 990; New York Typographical Union No. 6, International
Typographical Union, AFL-CIO (Gavrsn Press Corporation), 141 NLRB 1209, 1212-1213,
citing General Drivers, Chauffeurs, and Helpers, Local Union No. 886 (The Stephens Com-
pany), 133 NLRB 1393; Local 1156, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and helpers of America (Sid Harvey Westchester Corp.), 142 NLRB 1409,
where, as here, Respondent's secretary-treasurer, Calabrese, engaged in threatening con-
duct found there to constitute a violation of Section 8(b) (4) (ii) (B).
12 Local 1156, International lirotheihood of Teamsters, Chauffeurs, Warehousemen and
Helpers ofAmeiica (Sid Harvey Westchester Corp.), 142 NLRB 1409, 1411, 1417.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order has had no restraining effect upon his apparent propensity for violating the
Act. Under such circumstances, therefore, and to impress upon him and his princi-
pal respect for the Board's orders and processes, I shall further recommend that
Respondent cease and desist from using Calabrese's services as its agent in matters
relating to collective bargaining -between employers and employees in its area of
geographical jurisdiction for a period of one year and that affirmatively it so notify
employers in this said area by the publication of a notice to that effect in a daily
newspaper of general- circulation in Westchester County, New York 13
RECOMMENDED ORDER
Upon the entirpecord in` is ease , and pursuant to Section 10(c) of the National
Labor Relations,A'f, asded, I recommend 14 that Respondent Local 456, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Inducing and encouraging individuals employed by Skibee, Inc., or any other
person engaged in commerce or in an industry affecting commerce, to refuse in the
course of their employment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials , or commodities, or to perform any
services; or threatening, coercing or restraining Skibee, Inc., Twin Maples Restau-
rant, Parkway Wines & Liquor, or any other person engaged in commerce or in an
industry affecting commerce; where in either case, and object thereof is to force
or require Skibee, Inc., Twin Maples Restaurant, Parkway Wines & Liquor, or any
other employer or person to cease doing business with Strauss Paper Co., Inc.
(b) Using the service of Peter Calabrese as its agent in matters relating to col-
lective bargaining with employers and employees who are located within its geo-
graphical jurisdiction for a period of one year from the date of this Recommended
Order.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act
(a) Post in Respondent's business offices and meeting halls , copies of the attached
notice marked "Appendix." 16 Copies of said notice, to be furnished by the Re-
gional Director for Region 2, shall, after being duly signed by Respondent's author-
ized representative, be posted by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that such notices are not altered, de-
faced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional Director for
Region 2 for posting, by each of the employers named in the preceding paragraphs
who are willing, at all places where notices to their respective employees are custom-
arily posted.
(c) Within 10 days of the date of this Recommended Order cause to be pub-
lished in Westchester County, New York, in a daily newspaper of general circula-
tion of Respondent's own choosing, a notice to the effect that for a year thereafter
Peter Calabrese will not represent it as its agent in matters relating to collective
bargaining with employers and employees who are located within its geographical
jurisdiction.
13 Cf. N L R.R v. Express Publishinq Co., 312 U.S 426, 4P6-437; Salant of Salant, Inc.,
66 NLRB 24, 108, 111, 118, enfd 183 F. 2d 462, 463 (C A 6). But see* Hopwood Re-
tinning Co., Inc., 4 NLRB 922, 943, enforcement denied as to specific paragraph of order,
98 F 2d 97, 101 (CA 2).
14 In the event that this Recommended Older be adopted by the Board, the word "Rec-
ommended" shall be deleted from its caption and wherever elve it thereafter appears; and
for the words "I Recommend" there shall be substituted 1.. Phe National Labor Relations
Board Hereby Orders "
15 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the word', "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 "a Decision
and Order."
CLETUS H. PATTERSON & SONS, INC. 59
(d) Notify the Regional Director for Region 2, in writing , within 10 days from
the date of this Recommended Order what steps the Respondent has taken to
comply herewith'
IT IS FURTHER RECOMMENDED that so much of the complaint in this proceeding
as alleges violations of the Act by the Respondent with respect to The Muffin Man
and Elmsford Market be dismissed.
16 In the event that this RecommendedOrder be adopted by the Board, this provision
shall be modified to read: "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 MEMBERS OF LOCAL 456, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
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 Rela-
tions Act, we hereby notify you that:
WE WILL NOT induce or encourage employees of Skibee, Inc., or any other
person engaged in. commerce or in an industry affecting commerce, to refuse in
the course of their employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, materials, articles, or commodities, or
to perform any services; nor will we threaten, coerce, and restrain Skibee, Inc.,
Twin Maples Restaurant, Parkway Wines & Liquor, or any other person en-
gaged in commerce or in an industry affecting commerce; where in any case
an object is to force or require the aforesaid employers to cease doing business
with Strauss Paper Co., Inc.
WE WILL NOT, for the period of a year from the date of this notice, use the
services of Peter Calabrese as our agent in matters relating to collective bar-
gaining with employers and employees who are located within our geographical
jurisdiction.
LOCAL 456, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
Members may communicate directly with the Board's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. Plaza
1-5500, if they have any question concerning this notice or compliance with its
provisions.
Cletus H. Patterson & Sons, Inc. and William C. Miller
Cletus H. Patterson & Sons, Inc. and Robert V. Harvey
Cletus H. Patterson & Sons, Inc. and Gordon A. Gillespie. Cases
Nos. 8-CA-3393-1, 8-CA-3393-2, and 8-CA-3393-3. October 23,
1964
DECISION AND ORDER
On June 25, 1964, Trial Examiner W. Gerard Ryan issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take cer-
149 NLRB No. 6.