Local 810, Fabricators & Warehousemen

National Labor Relations Board - Board Decisions

Nov 29, 1972

200 N.L.R.B. 575 (N.L.R.B. 1972)

LOCAL 810, FABRICATORS & WAREHOUSEMEN
Local 810 , Steel, Metals, Alloys & Hardware Fabrica-
tors & Warehousemen , International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America and Scales Air Compressor Corp
Cases 29-CC-307 and 29-CB-1 142
November 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 20, 1972, Administrative Law Judge'
Samuel Ross issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and a supporting brief, and the Employer filed
exceptions and answering Memorandum of Law and
Exceptions to the 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
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order,3 as
modified herein
575
in an industry affecting commerce, where in either
case an object thereof is to force or require the
above-named persons or any other person to cease
using, selling, handling, transporting, or otherwise
dealing in the products of Scales Air Compressor
Corp, or to cease doing business with Scales Air
Compressor Corp "
2 Substitute the attached notice for the Adminis-
trative Law Judge's notice
I The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Boards established policy not to
overrule an Administrative Law Judge s resolutions with respeLt to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
In the absence of exceptions we adopt the Administrative Law Judge s
findings that the evidence was insufficient to establish that Respondent was
responsible for the firebombing of company trucks and for cot rcive
statements allegedly made by strikers Long and Thistle to Sales Enl,ineer
Thomas J McNiff Jr Accordingly no findings of violation of Section
8(b)(1)(A) are based on these incidents
3 The Administrative Law Judge on the basis of the violations in the
instant case and of a past record of unfair labor practices the latt st of
which occurred in 1957 recommended a broad order in this proceeding In
the circumstances of this case and particularly in view of the length of time
that has elapsed since the last previous Board adjudication of unlswful
conduct we do not believe the proposed remedy is warranted at this time
Raymond Buick Inc 173 NLRB 1292
APPENDIX
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Local 810, Steel,
Metals, Alloys & Hardware Fabricators & Ware-
housemen, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
its officers, agents, and representatives, shall take the
action set forth in the recommended Order, as
modified below
(1) Delete paragraph 1(b) from the recommended
Order of the Administrative Law Judge, and substi-
tute the following
"(b) Engaging in, or inducing or encouraging
employees of Gateway Tire Co , Technical Crafts,
Inc, the State of New York, Division of Military
Affairs, or any other person engaged in commerce or
in an industry affecting commerce to engage in, a
strike or a refusal 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 threaten-
ing, coercing, or restraining any of the above-named
persons or any other person engaged in commerce or
200 NLRB No 81
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF 'I HE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice
and we intend to carry out the order of the Board
The Act gives all employees these rights
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things
WE WILL NOT do anything that interferes with
these rights More specifically,
WE WILL NOT block efforts by employees of
Scales Air Compressor Corp, of of any other
employer, to enter Scales' premises and go to
work
WE WILL NOT threaten employees of Scale,, or
any other employer with physical violence, loss of
employment, or any other reprisal, either because
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their failure or refusal to join or participate in
our strikes, or to observe our picket lines
WE WILL NOT harass employees of Scales, or of
any other employer in the performance of their
services for their employer, and WE WILL NOT
damage or threaten to damage Scales' vehicles or
property
WE WILL NOT in any other manner restrain or
coerce members or employees in the exercise of
their rights guaranteed in Section 7 of the Act
which are described above
WE WILL NOT (a) engage in, or induce or
encourage employees of Gateway Tire Co,
Technical Crafts, Inc, the State of New York,
Division of Military Affairs, or any other person
engaged in commerce or in an industry affecting
commerce to engage in, a strike or a refusal 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 (b) threaten, coerce,
or restrain Gateway Tire Co, Technical Crafts,
Inc, the State of New York, Division of Military
Affairs, or any other person engaged in commerce
or in an industry affecting commerce, where in
either case an object thereof is to force or require
Gateway Tire Co, Technical Crafts, Inc, the
State of New York, Division of Military Affairs,
or any other person, to cease using, selling,
handling, transporting, or otherwise dealing in the
products of, or to cease doing business with
Scales Air Compressor Corp
LOCAL 810, STEEL,
METALS, ALLOYS &
HARDWARE FABRICATORS
& WAREHOUSEMEN,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN &
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
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
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor,
Brooklyn, NewYork 11204, Telephone 212-596-3535
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner On charges filed on
February 9, 1972, by Scales Air Compressor Corp (herein
called the Company), two separate complaints issued on
March 9, 1972, which allege that the above-named Umon
(herein called the Union, or the Respondent), had engaged
in and is engaging in unfair labor practices within the
meaning of Sections 8(b)(1)(A), 8(b)(4)(i) and (n)(B), and
2(6) and (7) of the Act On March 20, 1972, the
Respondent Union filed answers to the two complaints
which deny their substantive allegations and the comnus-
sion of unfair labor practices On March 22, 1972, an order
issued consolidating the two complaints for hearing and
decision
Pursuant to due notice, a hearing on the two complaints
thus consolidated was conducted before me at Brooklyn,
New York, on March 27, 28, 29, and April 11, 12, and 13,
1972 Upon the entire record , and my observation of the
witnesses and their demeanor , and after due consideration
of the briefs filed by the General Counsel and the Charging
Party,' I make the following
FINDINGS OF FACT
I COMMERCE
The Company is a New York corporation whose
principal office and place of business is located at 88
Windsor Avenue, Mineola, New York The Company also
operates two parts storehouses and assembly areas at 245
Jericho Turnpike, Mineola, New York, and at 185
Woodward Avenue, Brooklyn, New York At all three
locations, the Company is engaged in the business of
assembling , servicing, selling , and distributing new and
rebuilt air compressors and related products During the
past year, a representative period, the Company purchased
and caused to be shipped to its plants directly from points
and places located outside the State of New York air
compressors and parts valued in excess of $50,000
On the foregoing admitted facts, I find that the
Company is engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act
II THE LABOR ORGANIZATION INVOLVED
At all times material herein, the Respondent Union has
been and is a labor organization within the meaning of
Section 2(5) of the Act
i The Respondent Union has filed no brief and has not requested an
extension of time to file one
LOCAL 810, FABRICATORS & WAREHOUSEMEN 577
III THE UNFAIR LABOR PRACTICES
A The Respondent's Labor Dispute With the
Company
On February 2, 1972,2 the Company laid off two
employees, Raymond Kowalski and William Jessberger
On Friday, February 4, at about 2 30 p in, two business
agents of the Respondent Union, Thomas Auld and James
Robinson, together with Kowalski and Jessberger, visited
the Company's office at 88 Windsor Avenue, Mineola,
New York, and Auld demanded of Company President
William Scalchunas, also known and referred to in the
record as Bill Scales, that Kowalski and Jessberger be
reinstated, and that Scales sit down and negotiate a
contract with the Union Scales, in reply, told Auld to call
his attorney and he handed Auld a piece of paper on which
the telephone number of the Company's attorney was
written Auld asked Scales for permission to use the
Company's phone, but Scales replied that there was a
"phone outside " Auld then said, according to Scales'
credited testimony, "You better talk to me," and "there is
going to be trouble here," and he and his companions then
left the Company's premises The following Monday
morning (February 7), the Respondent Union began a
strike against Scales and picketing of its Mineola plant and
warehouse
When the Respondent's strike began, the Company
employed about 9 clerical and about 30 nonclerical
employees, the latter being principally mechanics who
repair and rebuild air compressors at the Company's plant,
and driver mechanics who repair and/or install the air
compressors at customers ' places of business Including
Jessberger and Kowalski who had been laid off the
previous Wednesday, only 10 of the Company's employees
joined the strike,3 and the Company continued to operate
its business All of the strikers came to the Respondent's
principal plant on Windsor Avenue at about 7 30 a in on
the morning of February 7, and were there furnished by
Business Agent Auld with picket signs upon which there
appeared the following legend
SCALES AIR COMPRESSOR
is
UNFAIR
LOCAL 810
STEEL, METALS, ALLOYS & HARDWARE
FABRICATORS AND WAREHOUSEMEN
IBT
10E 15St NY 3,N Y 691-4100
In addition to the 10 strikers , the Respondent Union also
2 All dates will hereafter refer to 1972 unless otherwise noted
3 The other eight employees who participated in the strike were Thomas
Thistle Robert D Long Anthony Gunnell Raymond Knollhoff Larry
Chin, Robert Montgomery Israel Vargas and Thomas Canary
4 Union Delegate Herman Fngand one of the Respondents delegates
who admittedly was present when the strike and picketing began so
had seven of its "delegates" present at the Company's
premises when the strike and picketing commenced on the
morning of February 7 4 Since the inception of the strike,
the Respondent 's pickets and one or more of its "dele-
gates" and business agents have been present at the
Company's plants every working day during the working
hours of Scales' employees The pickets sometimes wear
the Union's picket signs on their shoulders , or they set
them on their cars parked on the street near the Company's
plant while the pickets sit in the cars When delivery men
and/or customers of the Company approach the picketed
premises, the pickets and/or the union agents admittedly
try to persuade them not to cross the picket line and enter
the plant 5 At the end of each day, the pickets take their
picket signs home, and bring them back the following day
Each of the striking pickets receives weekly compensation
or "strike benefits" from the Respondent for picketing,
initially $25 per week, but since increased to $50 All of the
pickets receive identical compensation and admittedly are
required to be present at the picket line each day , unless
permission not to be there is given them by one of the
Union's delegates As of the close of the hearing in the
instant cases , the Union's strike and picketing still
continues
B The Alleged Violations of Section 8(b)(1)(A)
From its very inception, the Respondent's strike and
picketing have been attended by numerous incidents of
conduct by pickets and delegates which are alleged in the
complaint as unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act In this regard, I find as
follows
Anthony John Phocas, an inside mechanic employed by
the Company,6 credibly testified that on the Monday
morning when the strike began , he, accompanied by Bill
Papadopolus, another employee (who spoke no English),
drove up to the plant to go to work Phocas attempted to
park his car "in front of the work shop," but couldn't do so
because "Ray" Kowalski, "Larry" Chin, and "Bill"
Jessberger were in the way As Phocas waited , Kowalski
opened the right side door of Phocas ' car and said, "Man,
can't you see we are on strike " Phocas answered , "I don't
know what is going on " Phocas then waited for the pi< kets
to move so that he could park, but "nobody moved" until
George Tsaoussis, a vice president of the Company, came
out of the plant and threatened to call the police unless the
pickets let Phocas park Then the pickets moved aside and
Phocas was able to park his car As Phoc as walked toward
the plant, Kowalski told Phocas to convey an obscenity to
his "boss "
At about 9 a m on the first day of the strike, Eugene
James Czelada, a maintenance man employed by Lourdes
Industries , drove a small truck to the Company's main
plant to pick up a valve which his employer "needed
badly" for an air compressor According to Czelada's
testified and I credit his testimony to this extent
5 Except for the specific incidents set forth infra it is not contended that
this conduct violated the Act
6 Phocas the Company s principal stockholders and officers and many
of its employees , are of Greek ethnic origin
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credited testimony, a group of six or seven men were
standing near the plant, and one of them shouted to him,
"This place is on strike I hope you are not going through
this [picket] line " Czelada paid no attention to the pickets
and went into the plant and picked up the valve On the
way back to his truck, however, the men outside the plant
cursed Czelada, and one of them said, "If I were you, I
wouldn't get into that truck It's liable to blow up"
Czelada nevertheless got in the truck, and as he drove
away, he heard "a shot" as if "they hit the truck with
something " He continued on, however, and when he later
examined the truck, he found no evidence of damage
Company Vice President George Tsaoussis saw Czelada,
both when he arrived at the plant in his "blue van," and
when he left According to Tsaoussis' credited testimony,
he saw strike pickets Kowalski, Long, Thistle, and Union
Delegate Herman Frigand speak to Czelada before he
came into the plant, but did not hear what they said to him
When Czelada left the plant, however, Tsaoussis heard
Frigand tell him, "Watch out, you got (sic) to have an
accident," and he also saw Kowalski, Long, and Thistle go
to the far side of the truck and then heard a "bang,
somebody hit the truck I don't (sic) see who "7
On the first morning of the strike, Company President
William Scales observed a trailer truck of the New Penn
Motor Express Company drive up to his plant, saw Union
Delegate Frigand speak to the driver, and then saw the
truck start to drive away As the truck pulled away from
the plant, Scales ran out to get the name of the truck and
the license plate number, and Frigand said to him, "We
scared the shit out of him, Bill "8
At about 5 p in on the second day of the strike
(February 8), as employee Phocas and his car pool rider
Papadopolus were leaving the Company's plant at the end
of the day's work, Phocas observed union pickets Kowalski
and Jessberger sitting in the back of a large car As Phocas
walked by the car, Kowalski rolled down the window and
asked Phocas to join the strike Phocas replied that he
could not, that it was "too late " Kowalski responded,
"Listen, if you don't we will come in and when we come in,
we kick you out " Phocas then said that in that event, he
would "find another job "9
On the same day (February 8), as Supervisor David
Wood was backing a truck into the parking lot area of the
Company's premises, picket Kowalski and a mustached
stranger came over to the cab of the truck and engaged
Wood in conversation According to Wood's undisputed
and credited testimony, the stranger told Wood to "tell my
boss that I have a problem" Wood said, "I have no
7 Union Delegate Frigand testified that a man who said he needed a
valve approached him and asked his permission to cross the picket line and
go into the plant According to Frigand he told the man, Go ahead make
Bill Scales rich In the light of the Respondent s quite obvious efforts to get
employees and delivery men to respect its picket line I do not believe
Frigand s testimony that he magnanimously gave permission to a man
(Czelada) to go into the Company s plant to pick up a valve Indeed based
on both demeanor and the implausibility of his testimony I regard Frigand
as a witness whose testimony is unworthy of much if any reliance
s The findings above are based on Scales credited testimony Frigand
denied making the statement attributed to him by Scales, but I regard
Scales testimony as more reliable than Frigand s denial and I do not credit
the latter
9 The findings above are based on the uncontroverted and credited
testimony of Phocas
problem " The stranger replied, "Tell your boss that your
wife doesn't want you to drive your truck" Wood said,
"My wife didn't say that " The stranger said, "I know, I
said it " Kowalski then told the stranger to leave Wood
alone, "He [Wood] is a good guy" At the time of this
conversation, there was a union picket sign on Long's car
which was parked nearby in front of the plant
On the morning of either February 8 or February 9,
Supervisor Wood was about to get into his car parked near
the plant when he was approached by Union Delegate
Herman Frigand who said to Wood, "Dave, tell your boss
to come to his senses-he is foolish, we have more money
than he has " Wood replied, "Apparently he doesn't think
so," and Fngand responded, "Well, they're foolish, they
will blow the joint "i0
The third day of the strike (February 9) at about 8 30 to
9 a in, John Pratnicki, an employee of the Company who
also is known as Jai, observed Union Delegate Frigand
and Business Agent Auld talking to each other as a station
wagon of French & English Furniture, a customer of the
Company, drove up to the plant As the driver backed up
to the Company's platform, Pratnicki opened the overhead
door, and Auld came over and shouted to the driver, "You
know, we are having a strike here, you are looking for
trouble" The driver responded, "You are the one who
seems to have the trouble," and went into the plant 11
That same afternoon (February 9) at about 2 to 2 30
p in, Richard Sanders, an employee of Artisan Stationers,
drove up to the Company's plant in a van truck to make a
delivery As Sanders walked toward the plant, Union
Delegate Frigand and another unidentified man were
standing nearby, and Frigand yelled to Sanders, "There's a
strike going on, don't go in there " Sanders nevertheless
went into Scales' premises and made his delivery However,
when he came out a short while later, Fngand was standing
alongside Sanders' truck, and he asked Sanders whether he
belonged to a union Sanders replied that he did not, and
Fngand then called him "a fucking scab," and told
Sanders that he had no right to cross the picket line and
that he would "kick my ass in if I did it again " About a
week later, Sanders returned to Scales' plant to make a
delivery and saw Frigand in front of the plant Sanders
asked Fngand whether the strike was still on, and when
Frigand said, "yes," Sanders got back in the truck and
drove off without making the delivery 12
C The Secondary Boycott Conduct of the Union
The third day of the strike (February 9) also was
1° The findings above are based on Woods credited testimony
According to Frigand this incident occurred on February 8 and he
admittedly said what Wood attributed to him
13 Auid denied making the statement either to Scales customer French
& English Furniture or to any other delivery man but I regard Pratnicki s
testimony as more reliable and I do not credit Auld s denial
12 The findings above are based on Sanders testimony which I regard as
reliable and credit Frigand denied making the statements attributed to him
by Sanders According to Frigand Sanders came to the plant at 10 30 a in
on February 9 Frigand asked him please don t cross the picket line and
Sanders took off As previously noted I regard Frigand s testimony as
generally unreliable and in respect to this incident I regard the testimony
of Sanders a disinterested witness as more reliable than Frigand s which I
do not credit
LOCAL 810, FABRICATORS & WAREHOUSEMEN )79
attended by conduct by the Union which is alleged as
violations of Section 8(b)(4)(i) and (ii)(B) of the Act The
conduct on which these alleged violations are based was as
follows
On February 9, nonstriking employees Joseph Conklin
and Tim McCabe drove a company truck from the
company plant to deliver and install some air compressors
at customers' premises Their truck was followed from the
plant by picketing strikers Robert D Long and Raymond
Kowalski riding in Long's car Conklin's and McCabe's
first stop was at the National Guard Armory in Hemp-
stead, Long Island, where Conklin told Armory Superin-
tendent William M Kempey and another armory employ-
ee that he was ready to install the Armory's air compressor
which the Company had repaired At this juncture,
Kowalski intervened in the conversation and told Kempey
that Conklin was a strikebreaker, that he and Long were
"from Local 810," and that he would appreciate it if
Kempey honored their "picket line " Kempey replied, "We
need that compressor " Whereupon Kowalski threatened
to "have pickets surround the building in minutes," and
warned Kempey that in that event, if he expected any
deliveries, "You won't get them " Kempey in turn
threatened that if Kowalski brought pickets there he would
have "the National Guard down here " Conklin then drove
the truck through the fence to the National Guard Armory
and installed the compressor Insofar as the record
discloses, no picketing of the Armory occurred 13
Upon completion of their installation of the air compres-
sor at the National Guard Armory, Conklin and McCabe
drove to the premises of Gateway Tire Co, in Freeport,
Long Island They again were followed by Long and
Kowalski riding in Long's car Upon arrival at Gateway's
premises, Conklin went into the building and told Albert
Sauchelli, secretary-treasurer of Gateway, that he was
ready to install Gateway's air compressor which the
Company had repaired Kowalski came into the building at
this point and said, "I am Ray Kowalski, with Local 810 of
the Teamsters Union This man [Conklin] is a strikebreak-
er Scales is on strike and we would appreciate it if you
would honor our picket line " Sauchelli replied, "I need
that machine " Kowalski responded, "I will have pickets
around here in ten minutes," and he told Sauchelli that if
he was expecting any deliveries, he would not get them
Sauchelli then instructed Conklin to back his truck into
Gateway's garage, whereupon Kowalski ran into Gate-
way's shop and shouted, "at the top of his lungs" to
Gateway's 20 employees, "Strike, strike, strike " Sauchelli
ordered Kowalski out of his shop and threatened "to call a
cop" if he didn't Kowalski complied Then, while Conklin
backed the company truck into Gateway's garage and until
he and McCabe left, Kowalski picketed Gateway's
13 The findings above are based on the uncontroverted and credited
testimony of Conklin and Kempey
14 The findings above are based on the credited testimony of Conklin
and Sauchelli which for the most part is uncontroverted Long a witness
for the Respondent Union admitted that he and Kowalski followed
Conklin and McCabe to Gateway Tire and that Kowalski took the Union s
picket sign with him when he went into the premises but he denied that he
or Kowalski picketed at Gateways premises For demeanor and other
reasons I regard Long s testimony as less reliable than that of Conklin and
premises with a sign either the same or similar to that
which the Union used to picket Scales' plant 14
After delivering Gateway's air compressor, Conklin and
McCabe then drove to Technical Crafts C orp in Linden-
hurst, Long Island, to deliver and install an air compressor
which the Company had repaired for Technical Crafts
They again were followed by Kowalski and Long in Long's
car Upon arrival at the premises of Technical Crafts, a
repetition of the events at the National Guard Armory
occurred Conklin told William Aullback, Technical
Crafts' president, that he had his air compressor and was
ready to install it Kowalski intruded, introduced himself
as "from the Teamsters Union," and told Aullback that
Scales was on strike, Conklin was a strikebreaker, and that
he would appreciate it if Aullback honored his picket line
Aullback replied that he needed the compressor, and
Kowalski threatened to throw up a picket line in 10
minutes, and that Technical Crafts would then not get any
deliveries Aullback nevertheless instructed Conklin to
deliver and install the air compressor Conklin did so
without further incident, and no picketing occurred 15
D Additional Alleged Restraint and Coercion of
Employees
The secondary boycott activity described above was not
thereafter repeated, but additional conduct which allegedly
restrained and coerced employees in violation of Section
8(b)(1)(A) of the Act continued to occur In this regard, the
following incidents transpired
Garry Burns is one of Company's employees who did not
join the Union's strike On about February 9 at about 4
p m ,16 a truck driven by Supervisor David Wood in which
Burns was a passenger returned to the plant, and Burns
alighted to open the garage door so that the truck could
back in Three of the strikers, Robert Long, Ray Kowalski,
and Thomas Thistle, who were sitting in a nearby station
wagon, yelled obscenities at Burns, and also said,
"You have had it You have got (sic) involved They are
going to get you Your house is going to be bombed "
Burns disregarded these comments, ope ned the garage
door, and was on his way back to the truck to reenter it
when Kowalski blocked his way and accused Burns of
reporting striker Long to the police Burns denied
Kowalski's accusation and said, "I don't know what you're
talking about " Kowalski responded, "Yes, you do I ought
to-I am going to break your head open," and he started to
advance towards Burns Burns started to step back, threw
his coat off, put up his arms in self-defense, and said,
"Look, if you want to talk to me, you stand back and you
talk to me, but you don't get up in my face " Kowalski,
nevertheless, continued to advance and he called Burns "a
fucking Jehovah' s witness " Kowalski then repeated, "I am
going to break your head open " At this juncture, Buirns
Sauchelli and I do not credit Long s denial of the picks ting
15 The findings above are based on the uncontroverted and credited
testimony of Conklin and Aullback
16 According to Bums this incident occurred somewhere between
February 7 and 9 However Company President Scales who kept notes of
the Union s conduct during the strike testified that this incident occurred
on February 9 I regard Scales testimony regarding the date of this incident
as the more reliable one
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stopped his retreat and said, "I am standing right here I
am not moving any further " Kowalski then "backed off "
Before any physical contact occurred, Supervisor Wood
came between them, pushed them apart, and directed
Burns to go inside the plant As Burns proceeded to do so,
Long, Thistle, and Kowalski yelled that Burn's car (which
was parked down the street) would not start By this time
many of the Company's employees had came out of the
building to observe what was transpiring and Burns said to
President Scales, "They said my car's not going to start "
Thereupon, Burns went down to his car, got in, started it
without trouble, and drove it close to the plant When
Burns got there, Kowalski and Long came over to his car,
one on each side, and began knocking on the windows
Burns opened the window on the right side where
Kowalski was standing, and the latter said, "You know I'm
out to break your head open " Burns replied, "Well, here I
am" With that, he got out of the car, locked it, and
returned to the plant without further incident President
Scales then closed the garage door and as he did so, he
heard Kowalski tell striker Thistle, "Tom we are going to
kill Joe Conklin " 17 On the following morning (February
10) Kowalski and Respondent's Business Agent James
Robinson approached Burns at the coffee wagon on the
street outside the plant, and Kowalski apologized to Burns
and said, "I'm sorry about what I did yesterday "Is
On Wednesday, February 9, at about 4 p in, employee
John Pratmcki started out from the Company's plant in the
car of President William Scales to pick up some pulleys
from the Beardsley Transmission Co located about a mile
or two away As Pratnicki pulled away from the Compa-
ny's premises, Long and Kowalski followed him in Long's
car When Pratnicki stopped for a traffic light, Kowalski
got out of Long's car, knocked on the window of Scales'
car, and asked Pratmcki to open up and pull over, saying,
"We dust want to talk to you, we don't want to hurt you "
Pratnicki refused, and when the light turned green, he
proceeded towards his destination Long again followed,
then pulled in front of Pratnicki, and, according to
Pratnicki, "They play[ed] cat and mouse with the car "
Upon arrival at his destination, Pratnicki got out of Scales'
car and waited for the traffic to clear up before crossing
the street Long and Kowalski came up to him and shouted
that Pratnicki didn't realize how poorly they were paid by
Scales Long also said, "It would be unhealthy for you to
drive Bill's car," and Kowalski interjected, "Yes, we
wouldn't want to see you get hurt " They then proceeded
17 As previously noted Conklin was the nonstriking employee who had
been followed by Kowalski and Long earlier that day to the premises of the
Company s customers
18 The findings above are based on the credited testimony of Garry
Burns whom I regard as a reliable witness and upon the corroborating
credited testimony of Supervisor Wood and President Scales Business
Agent James Robinson a witness for the Respondent who was not present
when the incident occurred admitted that on the following day and in his
presence Kowalski apologized to Burns as found above Kowalski was not
called by the Respondent to testify However Long and Thistle, who
admittedly were present did testify and according to their version of what
occurred it was Burns and not Kowalski who was the aggressor and who
threatened to assault Kowalski but was prevented from doing so by Wood s
intervention In view of the strikers undisputed efforts to enlist participa-
tion in their strike by all of the Company s employees Burns refusal to join
the strike and Kowalski s later apology to Bums I regard Long s and
Thistles testimony that Burns was the aggressor in this incident as
to tell Pratnicki "that things are going to get worse", that
"next week they are going to start on the equipment, and if
that doesn't work, you people in the office will be out on
strike also because you will have no place to go even if we
have to burn the place down " Long told Pratnicki,
"It is not us It is out of our hands Look Jai [Pratmcki],
we don't want to see anyone get hurt, but these union
guys are crazy We have had to speak out against them
on more than one occasion to keep the violence to a
minimum These guys want to see Scales go out of
business "
Pratnicki then walked across the street and entered
Beardsley's premises with Long and Kowalski "about four
steps behind me " Pratnicki asked the man at Beardsley to
call Scales and tell him that he was being followed
Kowalski then shouted, "Is this a union shop?" The man at
Beardsley said, "Yes," and Kowalski responded, "All right,
we are just checking because we want to make sure this
place is squared away " Pratmcki then picked up the
pulleys and left, again followed by Long and Kowalski On
the way back to his car across the street, Long said to
Pratnicki, "And, don't let me catch this guy Conklin alone
I'm really going to fuck this guy up," and Kowalski added,
"Yes, that goes for me, too " Finally, before Pratmcki got
back into Scales' car, he was told by Long and Kowalski,
"Well, look, Jai, you know we are just trying to tell you be
careful " On the way back to the plant, Pratmcki again was
followed by Long and Kowalski, but they didn't cut in
front of him, as they had on the way to Beardsley, and he
was not further harassed or threatened 19
At 5 p in that same afternoon (February 9), as the
Company's employees left the plant at the end of the day's
work, striker Kowalski said to employee Teddy Parais "We
know where you [and] all the Greeks live in Astoria, and
we will come there " Parais replied, "All right, if you have
the guts you come there and we will fix you "20
That same night, striking employees Robert Long and
Tom Thistle visited the home of Thomas J McNiff, Jr, a
sales engineer employed by the Company According to
McNiff's credited testimony, the visit lasted from about
7 30 p in to 9 30 p in and in the course of that visit, Long
and Thistle said21 that they "were afraid" because the
Union had threatened to break windows, slash tires of the
Company's trucks, burn company trucks, and burn the
Company's premises , and because the Union also had
threatened violence against Joe Conklin, Tim McCabe,
and Dave Wood because they were scabs who were
transparently implausible and unworthy of credence Moreover based on
their demeanor while testifying and the nature of their testimony , I regard
both Long and Thistle as unreliable witnesses whose testimony is generally
unworthy of credence
is The findings above are based on the testimony of Pratnicki which I
regard as reliable and credit As previously noted Kowalski was not called
to testify by the Respondent and Long a witness for the Respondent did
not deny that he and Kowalski followed Pratmcki from the Company s
premises to that of Beardsley Transmission Co Long did however, deny
that he and Kowalski made the threats and statements attributed to them by
Pratnicki As previously noted I regard Long s testimony as generally
unreliable and I do not credit his denials of Pratnicki s testimony
20 The findings above are based on the credited uncontroverted
testimony of Anthony Phocas
21 McNiff admittedly could not recall which specific statements were
made by Long and which by Thistle
LOCAL 810, FABRICATORS & WAREHOUSEMEN 581
crossing the picket line Long and Thistle also told McNiff
that they also were afraid that if they "walked off the
picket line, the union would burn their houses " McNiff
told Long and Thistle that violence "would not win their
case of trying to get a union into the business," and
that their cause would be better served by proceeding with
their strike "in a legal manner " According to McNiff,
Long and Thistle agreed with him in this regard, and told
him that they would continue to strike and picket, but if
violence occurred, they would "abandon the picket line "22
On Saturday (February 19), George Tsaoussis, a vice
president of the Company, received a series of telephone
calls from an unidentified caller whose voice Tsaoussis
recognized as that of Raymond Kowalski According to
Tsaoussis' uncontroverted and credited testimony, Kowal-
ski told him during the first telephone call that he wanted
to arrange a meeting with all of the Company's officers "to
solve the problem" because there was "going to be a lot of
violence," and he didn't want to be involved in something
like that Tsaoussis told Kowalski that he would try to
contact his partners and suggested that he call back in a
half hour However, Kowalski called Tsaoussis again in 15
minutes before the latter could contact his partners, and
Tsaoussis asked Kowalski to please wait for another half
hour before he called again Tsaoussis then managed to
contact only President William Scales before Kowalski
called again at 3 05 p in and Tsaoussis told Kowalski that
he had been unable to locate Peter Scales, the Company's
other vice president and secretary Tsaoussis suggested that
the meeting which Kowalski had requested should include
the Company's and the Union's lawyer "to be legal "
Kowalski replied that he didn't want any lawyers at the
meeting Tsaoussis said that the meeting had to include the
Company's lawyer Kowalski responded, "no lawyer," and
then added that he understood that "there is going to be a
lot of violence," and that his purpose in asking for the
meeting was to try "to stop that violence " Tsaoussis then
asked for additional time to contact his partners and
Kowalski agreed to call again at 4 10 p in Kowalski called
again at the agreed time, and repeated his desire to meet
with Company's officials without lawyers and stop the
anticipated violence About 30 to 45 minutes later,
Tsaoussis received a final telephone call from Kowalski
whose muffled voice he recognized, and on this occasion,
Kowalski said, "Well starting tonight, your house, Bill['s]
house, Pete['s] house, goodby "23
1 The puncturing of tires
Since the Union commenced its strike against the
Company, the latter's trucks, and the car of its president,
suddenly acquired a propensity for developing flat tires
when they were parked in front of the Company's picketed
premises In this regard , the uncontroverted record
discloses that on a single afternoon about 2 weeks after the
strike began, the company truck which Joseph Conklin had
parked in front of the Company 's premises for 10 minutes
had a flat tire caused by a broken valve At the same time,
Conklin observed that there were two flat tires on another
company truck , and a flat tire on President Scales' car,
both of which also were parked in front of the Company's
premises When Conklin observed these flat tires, there
were pickets of the Respondent in the vicinity The car
driven by Company President William Scales seemed
particularly susceptible to acquiring flat tires in front of the
Company's main plant, notwithstanding that it was a
comparatively new car 24 Thus, on 2 successive days,
Thursday and Friday, February 17 and 18, two different
tires on Scales' car developed flat tires in front of the
Company's building from puncture holes, and inner tubes
were installed into these previously tubeless tires 25 In the
quite reasonable belief that the flat tires were caused by
sabotage, the Company engaged the services of Andover
Protection Service to guard its premises, and Alexander
Kalmowski, an employee of Andover, was assigned on
February 19 to guard the Company's building and to
protect Scales from damage to its property Kalinowski
performed guard services for the Company on February
19, 20, 21, and 22 On the latter date at about 4 50 p in ,
Kalinowski was in the second floor loft of the Company's
building looking out of the window at the street in front of
the plant He observed two cars parked on the opposite
side of the street and saw President Scales park his car
alongside the two cars and walk towards the building He
then saw a man come out the right (passenger side) of one
of the parked cars, move towards Scales' car in a crouching
position with an object in his hand , and start jabbing at
Mr Scales' right front tire Kalinowski then saw the man
crouch and duck back into the car from which he had
previously emerged Kalinowski described the person
whom he had so observed as a "tall, thin, fellow, redheaded
guy, about 6 feet," and "about 25 years old" 26 and he later
"pointed out this fellow [whom he ] saw do the piercing to
Mr William Scales " Scales later identified the person
whom Kalinowski pointed out to him as Raymond
Kowalski Both the car to which Kowalski returned and
the other car parked next to it left the scene almost
immediately thereafter Scales then went down to his car
and heard air escaping from the right front tire The new
inner tube in this tire was later found to have a puncture
hole in it Scales then called the police , and he later made a
report of the incident to the precinct 27
At about I p in on February 29, President Scales was in
front of the Company's main building in the parking lot
22 Long and Thistle admitted that they visited McNiff s house on the
night of February 9 but they denied the statements attributed to them by
McNiff According to Long and Thistle it was McNiff who suggested that
the Union should engage in violence to further its cause and they had
responded If that nonsense starts happening we will leave them [the
Union I I regard Long s and Thistle s version of the conversation as pure
fabrication and I credit their testimony in respect to this conversation only
to the extent that t accords with McNiff's testimony
23 Insofar as the record discloses nothing untoward has occurred to the
homes of the Company s officials since Kowalski s last phone call
24 It was a 1971 Buick about a year old with about 17 000 to 18 000
miles on the odometer
25 Another employee David Wood also expenem ed a flat tire on the
Company s station wagon after he left the plant Upon examination of the
tire Wood found two holes but no foreign substance to account for the
presence of the holes
26 This description accords with that ascribed to Raymond Kowalski by
Company s employees and by Union Agent James Robinson
27 The findings above are based on Kalinowski s uncontroverted and
credited testimony As previously noted the Respondent did not call
Kowalski to testify
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area when Union Delegate Herman Frigand said to him,
"Hey, Bill , you ain't worried , yet? You'll worry " At the
time this statement was made, there were pickets present,
namely, Union Business Agent James Robinson, and
strikers Robert Long, Thomas Thistle, and Anthony
Gussell 28
2 The firebombing of two company trucks
In addition to Supervisor David Wood, the Company
had two driver mechanics in its employ who had refused to
join the Union's strike, namely, Joseph Conklin and
Robert Guthy These driver mechanics performed their
services for the most part at the premises of the Company's
customers where they repaired and/or installed air com-
pressors which the Company had sold to or repaired for
the customer It was the practice of the driver mechanics to
load their company trucks each evening at the plant with
whatever equipment and supplies they would need for the
next day, to drive the trucks home and keep them there
overnight, and to start directly on their rounds the next day
from their home In accordance with this practice, over the
weekend from Friday evening March 10 to Monday
morning March 13, Conklin had a company truck parked
in front of his house at Port Jefferson Station, Long Island,
and Guthy had his company truck parked in the driveway
of his home in Richmond Hill, in the Borough of Queens,
City of New York During the early morning hours of
Monday, March 13, although these trucks were geographi-
cally separated by about 50 miles, both were firebombed,
and one, that driven by Conklin, was completely de-
stroyed
Thus, on March 13 at about 1 30 am, Conklin was
awakened from sleep by his wife who said she had heard
an explosion, and when Conklin went outside, flames were
rising 20 to 25 feet from the cab and motor of the truck
The fire eventually was extinguished by the fire depart-
ment, but not before the truck was completely destroyed 29
Later that morning, after a visit from the police to
Conklin's home, Conklin notified President Williams
Scales that he was quitting his job and not returning to
work for the Company
As noted above, the company truck driven by Guthy was
parked over the same weekend in the driveway of his
home On Monday morning, March 13, at about 6 45 a in
when Guthy got into the truck to go on his rounds, he
noticed a smell of something burned He nevertheless
started the engine and began to back the truck out of his
driveway when he heard the crunch of broken glass under
a tire and stopped He then got out of the truck and
observed glass under the front left tire, soot all over the
right side and front of the truck, and that the front right
28 The finding above is based on Scales credited testimony Frigand in
effect denied making the statement attributed to him by Scales but I regard
his testimony as unreliable and I don t credit his denial
29 It eventually was towed away from Conklin s home and oil and debris
from the truck were cleaned up and removed
30 The findings above are based on Wood s testimony which I credit In
a signed statement given to a Board agent Wood stated that Fngand also
said they [the bosses] are going to wind up in a box However at the
hearing Wood testified that he was not quite certain about the accuracy of
the latter statement because Frigand was quite a distance from him and
it [the box statement] was too low for me to hear In the light of this
tire was "charred, burnt [and] flat" On further investiga-
tion, Guthy found pieces of a "Fleishmanns gin bottle,"
held together by the label on the bottle, on the right side of
the truck, and a rag "which looked like a handkerchief"
with some burn holes in it Guthy also observed a large
circular burn mark on the blacktop paving of his driveway
where the truck had been parked Guthy replaced the right
front tire, which was burned, dried up from the heat, and
"completely cracked," with a spare tire He then washed
the soot from the truck, and proceeded on his rounds for
the Company
At 8 30 on March 13, the same day that the two
company trucks earlier had been firebombed, Supervisor
David Wood came out of the plant to get something out of
his car Union Delegate Herman Frigand was then
standing across the street next to a car in which Robert
Long and other union pickets were seated and laughing
Fngand yelled across to Wood, "Hey, Dave, what
happened9" Wood, who already had heard about what
happened over the weekend, merely shrugged his shoul-
ders Fngand then continued, "I leave it up to you, Dave,
to talk to your bosses They are going to bury them-
selves "30
On March 22, just 5 days before the hearing in this case
began, employee John Pratnicki drove one of the Compa-
ny's trucks from its principal premises to the gas station
around the corner He was closely followed by union
pickets Raymond Kowalski and Thomas Thistle riding in
Kowalski's car As Pratnicki entered the gas station,
Kowalski first tried to cut off the truck Pratnicki was
driving, and not succeeding, he forcibly "bumped" into the
rear of the Company's truck 31 On the way back to the
plant from the gas station, Kowalski followed the Compa-
ny's truck "so close," that to use Pratnicki's figure of
speech, "the paint of my truck had to be on the hood of his
[Kowalski's ] car " Moreover, when Pratnicki stopped in
front of the plant and put the truck in reverse thereby
lighting the backup lights, Kowalski, instead of passing
Pratnicki's truck pulled in right behind and thereby
prevented Pratmcki from backing in to the plant A short
time later, however, Kowalski pulled out and passed
Pratnicki's truck, and he was able to back up 32
That same afternoon, Pratmcki drove over to the
Company's warehouse about a mile from its main plant to
pick up driver mechanic Robert Guthy As Pratmcki and
Guthy came out of the warehouse, union pickets Kowalski
and Thistle came over, and Kowalski, who had a union
picket sign with him, said to Pratnicki, "Hey Jai [Pratnicki ],
you take that truck home9" Pratmcki answered, "Yes "
Kowalski then said, "That could be very unhealthy They
are inflammable and catch fire easily "33
testimony by Wood I place no reliance on the latter statement allegedly
made by Fngand Fngand denied making the statements attributed to him
by Wood and indeed denied being at the plant premises from 7 15 a in on
March 13 until after March 14 As previously noted I regard Fngand as a
generally unreliable witness and I do not credit his denials of Woods
testimony above
3i In Pratmcki s idiom he [Kowalski]just bumped behind me to break
my balls
32 The findings above are based on Pratnicki s uncontroverted and
credited testimony
33 The findings above are based on the credited testimony of Pratmcki
LOCAL 810, FABRICATORS & WAREHOUSEMEN 583
E Concluding Findings
1 The issues
The General Counsel and the Company contend that the
incidents and conduct found in sections B and D of this
Decision constitute restraint and coercion of employees in
the exercise of their rights, guaranteed by Section 7 of the
Act, that the Respondent Union is responsible for said
conduct and incidents, and that it thereby violated Section
8(b)(1)(A) of the Act The General Counsel and the
Company further contend that the conduct found in
section C above constitutes unlawful secondary boycott
activity for which the Union is accountable, and that it
thereby engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the Act Absent
a brief from the Respondent Union, these contentions and
my findings above present for further consideration the
following issues (a) Whether the conduct found in sections
B and D constitutes restraint and coercion within the
meaning of Section 8(b)(1)(A) of the Act, (b) whether the
Union is legally responsible for the conduct found to have
occurred, (c) whether the conduct found in section C
above violates Section 8(b)(4)(i) and (n)(B) of the Act
These issues will be considered seriatim
2 Restraint or coercion
Section 8(b)(1)(A) of the Act provides that it is an unfair
labor practice for a labor organization or its agents
to restrain or coerce (A) Employees in the exercise of
the rights guaranteed in Section 7
Section 7 of the Act grants to employees not only the
protected right to form, join and assist labor organizations,
but also the right to refrain from such activities The rights
thus protected include the right to refrain from striking, or
in other words, the right to work in the face of a strike 34
The Act contains no affirmative definition of the terms
"restraint" and "coercion," but they consistently have been
held to proscribe threats of physical harm and of loss of
employment
In the light of these well established principles, I find
that the following conduct and incidents involved restraint
and/or coercion of employees within the meaning of
Section 8(b)(1)(A) of the Act
(a) The conduct of three union pickets found in B 1,
supra, which blocked the efforts of nonstriking employee
Phocas to park his car and go to work on the first day of
the strike, and which persisted until Vice President George
Tsaoussis threatened to call the police
(b) The warning or threat of Union Delegate Herman
Frigand (see B 2, supra) to the employee of Lourdes
Industries who had ignored the picket line that his truck
might blow up, and the action of the pickets in hitting the
side of Lourdes' truck as it left the Company's premises
(c) The conduct of Union Delegate Herman Frigand (B
3, supra) which scared a driver of New Penn Motor Express
Company into leaving the Company's premises without
making his delivery
(d) The threat of union picket Raymond Kowalski (B 4,
supra) that if the Union came in to the Company's plant,
nonstriking employee Anthony John Phocas would be
kicked out of his job
(e) The threat or warning of Union Business Agent
Thomas Auld to a customer of the Company (French and
English Furniture) in the presence of an employee (B 7
above) that the customer was looking for trouble if he
crossed the picket line
(f) The threat by Union Delegate Herman Fngand (13 8
above) to inflict physical violence on Richard Sanders, the
driver of Artisan Stationers, if he crossed the picket line
again
(g) The threat or warning by union pickets to nonstriking
employee Garry Burns that his house would be bombed,
the threat by union picket Kowalski to "break opt n"
Burns' head, Kowalski's physical menancing of Burns as
found in section D 1, supra, and his statement in the
presence of Bums and other employees that "We are going
to kill Joe Conklin [a nonstriking employee ] "
(h) The conduct of union pickets Robert Long and
Raymond Kowalski (described in section D 2, supra) in
playing "cat and mouse" with nonstriking employee John
Pratnicki while he drove to the Beardsley Transmission
Co, their warning to Pratnicki that it would be "unht al-
thy" for him to drive President Scales' car , their further
statements to Pratnicki which implied that the Union
intended to burn the Company's premises and engage in
violence, if necessary, to win the strike, and their thieat
conveyed to Pratnicki which clearly implied that they
would physically hurt nonstriking employee Joe Conklin if
they caught him alone
(i) The threat of violence implicit in union picket
Kowalski's statement to nonstriking employee Parais that
the union pickets knew where Parais and the Company's
other nonstriking Greek employees lived, and that they
intended to go there (See D 3, above)
(l) The threats conveyed by union pickets Long and
Thistle to nonstriking employee McNiff that the Union
intended to break company windows, to slash its tires, to
burn its trucks, and to physically harm nonstriking
employees Joe Conklin, Tim McCabe, and Dave Wood
(See D 4, supra)
(k) The puncturing by union picket Kowalski of the tire
of President Scales' car while it was parked across the
street from the plant (See D 6, supra)
(1) The firebombing by an unknown person or persons
during the early morning hours of March 13 of two
company trucks while they were parked at the widely
separated homes of Joseph Conklin and Robert Guthy
(See D 8, supra)
(m) In the context of the March 13 firebombing of two
company trucks which almost immediately becamt a
matter of common knowledge, the statement of Union
Delegate Herman Frigand made later that morning to
Supervisor Wood in the presence of striking employees, "I
leave it up to you, Dave, to talk to your bosses, they are
going to bury themselves," which clearly implied that the
which was corroborated by Guthy and not controverted As previously
noted Kowalski was not called to testify and Thistle testified only that he
(Thistle) did not make the statement which Pratnicki and Guthy attributed
to Kowalski not Thistle
34 International Longshoremen s and Warehousemen s Union (Sunset Line
and Twine Company) 79 NLRB 1487 1504
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, whether or not it was responsible therefor, claimed
credit for the firebombing (See D 9, supra)
(n) The conduct of union pickets Kowalski and Thistle
described in D 10 supra, in closely following a company
truck driven by nonstriking employee John Pratnicki,
bumping into it in the gas station, and closely following it
on Pratmcki's return to the plant
(o) In the context of the firebombing of two company
trucks on March 13, the statement on March 22 by union
picket Kowalski to nonstriking employee Pratnicki that it
would be "unhealthy" to take a company truck to his home
because "they are inflammable and catch fire easily " (See
D 11, supra)
I further find that the evidence is insufficient to establish
restraint or coercion of employees within the meaning of
Section 8(b)(1)(A) in respect to the following incidents
(a) As found in B 5, supra, Supervisor Wood was told by
a stranger who was accompanied by union picket Kowalski
that Wood should tell his boss that his wife did not want
him to drive a truck I am not persuaded that this
statement, even assuming union responsibility, carried with
it an implicit threat to Wood
(b) As found in B 6, supra, Frigand told Supervisor
Wood to "tell his boss to come to his senses," that the
Union had more money than the Company and that
"they're foolish, they will blow the joint" The General
Counsel apparently construes Fngand's statement as a
threat by the Union to "blow [up] the point," but I regard
the statement as ambiguous, and that, in the context in
which it was uttered, it was equally susceptible to an
interpretation that the Company could not financially
withstand the effects of the strike
(c) As found in section D 5, supra, on February 19, union
picket Kowalski, in a series of telephone calls, in effect told
Company Vice President Tsaoussis that there would be "a
lot of [union] violence" in connection with the strike, and
that the vice president's home and that of the other
company officers would be destroyed There is, however,
no evidence that these threats were made in the presence
of, or otherwise conveyed to, statutory employees whose
rights are guaranteed in Section 7
(d) As described in section D 7, supra, on February 29,
Union Delegate Frigand in the presence of union pickets
asked President Scales whether he was "worried yet," and
predicted, "You'll worry " The complaint in Case
29-CB-1142 was amended during the hearing to allege that
the Union violated Section 8(b)(1)(A) by this statement of
Frigand However, I can perceive no implicit threat of
misconduct by the Union in Frigand's vague remark and
conclude that it does not violate Section 8(b)(1)(A) of the
Act
3 The responsibility of the Respondent Union
for the restraint and coercion of employees
We come then to the issue of whether the Respondent
Union is responsible for the acts of restraint and coercion
previously found The conduct which has been found to
constitute restraint and coercion was engaged in by Union
Delegate Herman Frigand, Union Business Agent Thomas
Auld, and union pickets Raymond Kowalski, Robert
Long, and Thomas Thistle In determining whether or not
the Union is responsible for their conduct, the ordinary law
of agency applies Section 2(13) of the Act specifically
provides
In determining whether any person is acting as an
"agent" of another person so as to make such other
person responsible for his acts, the question of whether
the specific acts performed were actually authorized or
subsequently ratified shall not be controlling
Indeed, a principal may be held responsible for the act of
his agent within the scope of the agent's general authority,
even if the act of the agent was specifically forbidden by
the principal 35
Viewed in the light of the foregoing principles, it is quite
apparent that the Respondent Union is responsible for the
conduct engaged in by its agents Fngand and Auld
According to the stipulation of the parties, Frigand and
Auld are delegates and full-time employees of the Union
whose functions include organizing and representing
employees in shops under contract with the Union Auld is
a business agent of the Union, and Frigand, a former
police detective, is "chief of security for the Union " Auld
admittedly was the representative who demanded recogni-
tion and bargaining with the Union by the Company It
was upon his report of the Company's refusal to comply
with his demands that the strike against the Company and
its attendant picketing were authorized At its inception,
Auld was in charge of the strike and picket line and it was
he who distributed the picket signs to the Company's
striking employees when the strike started on February 7
Auld was assisted in his strike duties at the Company's
premises by Frigand, and by a number of other regularly
paid union representatives, including James Robinson and
Joseph Lovell With relatively few exceptions, Frigand was
at the Company's premises at the picket line every day
from about 7 a in to 4 p in The general purpose of the
strike was to hamper the Company's operations by the
withdrawal of its labor force, to dissuade employees from
working during the strike, and to dissuade customers and
deliverymen from entering the Company's premises The
conduct of Auld and Frigand, which was found above to
constitute restraint and coercion of employees, clearly was
engaged in the furtherance of these general strike objec-
tives of the Union I therefore conclude that the Union was
responsible for the conduct of Auld and Frigand, and that
it thereby engaged in unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act
This leaves for consideration the question of the
Respondent Union's responsibility for the restraint and
coercion of employees which, as found above, was engaged
in by union pickets Kowalski, Long, and Thistle For the
reasons hereinafter stated, I find that the Union must be
held accountable for their said conduct
According to admissions elicited from the Respondent's
paid agents, with minor exceptions, one or more of them
was at the picket line every day of the strike, and on the
infrequent and brief occasions when no union agent was
present, Long, Thistle, and other pickets were left in charge
to "take care of things " As found above, each of the
31 Sunset Line and Twine Co supra at 1509
LOCAL 810, FABRICATORS & WAREHOUSEMEN 585
pickets was assigned a sign by the Union which he
thereafter used on the picket line and took home at the end
of the day The pickets were paid a weekly stipend by the
Union for picketing, initially $25 per week, but later
increased to $50 All of the pickets received identical
compensation for which they admittedly were required to
be present at the picket line each day, or receive prior
permission to be absent from one of the Union's delegates
Some of the coercive conduct engaged in by Kowalski,
Long, and Thistle occurred at the picket line, and thus
obviously was known by the Union's paid delegates, one of
whom was almost always present There is no evidence that
the Respondent ever disavowed the picket line misconduct
of the pickets, or ever attempted to prevent its occurrence
Moreover, the Respondent's agents Frigand and Auld
clearly set the pattern for the Union's pickets to follow by
the acts of restraint and coercion of employees in which
they personally engaged as found above The Union
therefore clearly is responsible for the coercive conduct
which its pickets engaged in at the picket line 36 Further-
more, since the pickets required prior permission of the
Union's agents to absent themselves from the picket line,
and since the various departures from the picket line by
Kowalski, Long, and Thistle were not disapproved by any
paid union agent, I infer that their excursions to follow the
Company's trucks and President Scales' car either were
authorized by the Union's agents (one or more of whom
almost always were present at the picket line), or ratified
by them Accordingly, I conclude that the Union is
responsible for the various acts of restraint and coercion of
employees found above in which Kowalski, Long, and
Thistle engaged when they left the picket line, and it
thereby engaged in unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act 37
4 The violations of Section 8(b)(4)(1) and (ii)(B)
of the Act
As more fully described in section C above, on February
9, the third day of the strike, when employees Joseph
Conklin and Tim McCabe drove a company truck from the
plant to deliver and install air compressors at customers'
premises, they were followed by union pickets Kowalski
and Long, and at each of three customers' places of
business, Kowalski first asked the customer not to receive
the compressor and to honor the Union's picket line, and
36 Local 542 International Union of Operating Engineers (Giles &
Ransome Inc) 139 NLRB 1169 1175 International Woodworkers of
America (W T Smith Lumber Company) 116 NLRB 507 509 Local 28
International Organization of Masters Mates and Pilots Inc (Ingram Barge
Company ) 136 NLRB 1175, 1184 District 50 United Mine Workers of
America (Tungsten Mining Corporation) 106 NLRB 903 908
as I do not however find the Union responsible for the coercive
statements made by Long and Thistle to employee McNiff as found in
section D 4 above because that visit was made at night not from the picket
line and because their is no evidence that the Union s paid agents either
authorized the visit knew about it or ratified it
There is moreover no evidence as to who perpetrated the firebombing of
two widely separated company trucks during the early morning hours of
March 13 and despite my suspicions I regard the evidence insufficient to
establish the Union s responsibility therefor
38 Section 8(b)(4)(i) and (u)(B) of the Act provides as follows
Sec 8(b) It shall be an unfair labor practice for a labor organization
or its agents-
when the customer refused to accede to Kowalski's request,
Kowalski then threatened to picket the customer and to
thereby cut off his receipt of deliveries In addition, at one
customer's premises , that of Gateway Tire Co, Kowalski
ran into the shop and shouted, "strike strike , strike," to
Gateway's employees, and Long picketed in front of
Gateway's premises while Conklin and McCabe made their
delivery The complaint in Case 29-CC-30 7 alleges that by
this conduct, the Union violated Section 8(b)(4)(i) and
(n)(B) of the Act 38
Insofar as here relevant, this section of the Act (with
whose violation the Respondent is charged) prohibits
unions and/or their agents from engaging in strikes against
secondary or neutral employers, and from threatening,
restraining, or coercing such secondary or neutral employ-
ers, where, in either case, an object of said conduct is to
force or require the secondary or neutral employer to cease
doing business with the primary or disputing employer or
person This section is generally known as the secondary
boycott provision, and as the Board and the courts have
repeatedly pointed out, it is aimed at "shie ldmg unoffend-
ing employers and others from pressures in controversies
not their own "39 As stated by Learned Hand, Chief Judge
of the Court of Appeals, Second Circuit 40
The gravamen of a secondary boycott is that its
sanctions bear, not upon the employer who alone is a
party to the dispute, but upon some thu d party who has
no concern in it
However, as the proviso makes clear, this provision does
not prohibit or make unlawful "any primary strike or
primary picketing "
Viewed in the light of these principles, the record clearly
discloses that the Respondent Union violated Section
8(b)(4)(i) and (ii)(B) of the Act Thus, the Union clearly
had no labor dispute with any of the Company's custom-
ers, and Kowalski's threat to picket them if they accepted
the delivery of their air compressors from the Company
constituted threats, coercion, and restraint within the
meaning of Section 8(b)(4)(ii) Moreover, the picketing, of
Gateway Tire by Long while the air compressor was being
delivered by Conklin and McCabe, and the shouts of
"strike, strike, strike," to Gateway's employees by Kowal-
ski, clearly constituted inducement of Gateway's and other
employees not to perform services Furtht rmore, it cannot
be gainsaid that an object of the said conduct was to force
(4)(i) to engage in or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in a strike or a n fusal in the cour,e of
his employment to use manufacture process transport or otherwise
handle or work on any goods articles materials , or commodities or to
perform any services or (n) to threaten coerce or restrain any person
engaged in commerce or in an industry affecting commerce where in
either case an object thereof is
(B) forcing or requiring any person to cease u' ing selling, handling
transporting or otherwise dealing in the products of any other
producer processor or manufacturer or to cea,e doing business with
any other person Provided That nothing contained in this clause
(B) shall be construed to make unlawful where not otherwise unlawful
any primary strike or primary picketing
39 N L R B v Denver Building and Construction Trades Council (Gould &
Preisner) 341 U S 675 692
40 International Brotherhood of Electrical Workers Local 501 [Samuel
Langer] v NLRB 181 F 2d 34 37 (CA 2), affd 341 US 694
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or require the Company's customers to cease doing
business with the Company by not accepting the delivery
of the compressors 41
Accordingly, I find that by the foregoing conduct the
Respondent Union violated Section 8(b)(4)(i) and (ii)(B) of
the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Union set forth in
section III, above, occurring in connection with the
operations of the Company 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 com-
merce and the free flow of commerce
V THE REMEDY
Having found that the Respondent Union has engaged
in certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Both the General Counsel and the Charging Party
contend that, in view of the Respondent Union's current
and past violations of both Section 8(b)(1)(A) and Section
8(b)(4)(i) and (ii)(B) of the Act,42 a board order is required
which will enjoin the Union from any further such
violations as to any employer In addition, the Charging
Party contends that "only an order dismissing the Union's
petition" for certification as the collective-bargaining
representative of the Company's employees,43
and barring it from any organizational activity at
Scales for a two years period, would compensate for the
fear and harassment that the Scales' employees have
lived through during the period February 7-April 1,
1972
In the light of the Respondent's record of unfair labor
practices, and those found herein, I regard the requested
broad order appropriate, and I shall so provide However, I
deny the Charging Party's additional request to dismiss the
Union's petition and for other relief, since I regard that
request as one which more appropriately should be
directed to the Regional Director, or the Board, and I leave
to their discretion the determination of when the effects of
the unfair labor practices found above will have dissipated
sufficiently to permit the holding of a fair election
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
1 Local 810, Steel, Metals, Alloys & Hardware
Fabricators & Warehousemen, International Brotherhood
41 My reasons for holding the Respondent Union responsible for this
excursion of Kowalski and Long from the picket line have already been
stated above
42 N L R B v Local 810 etc (R B Wyatt Mfg Co) 253 F 2d 832 (C A
2 1958) enforcing 117 NLRB 700 N L R B v Local 810 etc (Main Steel
& Wire Corp) 274 F 2d 688 (C A 2 1960) enforcing 123 NLRB 1226
N L R B v Accurate Forming Corporation and Local 810 etc 288 F 2d
818 (C A 3 1961) enforcing 128 NLRB 653 NLRB v Loca1810 etc
(Fein Can Corp )
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning of
Section 2(5) and 8(b)(4) of the Act
2 Scales Air Compressor Corp is an employer or
person engaged in interstate commerce, or in an industry
affecting commerce, within the meaning of Sections 2(6)
and 8(b)(4) of the Act
3 By restraining and coercing employees of Scales Air
Compressor Corp and of other employers, in the exercise
of rights guaranteed in Section 7 of the Act, the
Respondent, Local 810, Steel, Metals, Alloys & Hardware
Fabricators & Warehousemen, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act
4 By inducing and encouraging employees of Gateway
Tire Co to engage in a strike or refusal in the course of
their employment to perform services, and by threatening,
coercing, and restraining Gateway Tire Co, Technical
Crafts, Inc, and the State of New York, Division of
Military Affairs, with an object of forcing or requiring
Gateway Tire Co , Technical Crafts, Inc, and the State of
New York, Division of Military Affairs to cease doing
business with Scales Air Compressor Corp, the Respon-
dent, Local 810, Steel, Metals, Alloys & Hardware
Fabricators & Warehousemen, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(b)(4)(i) and
(n)(B) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended 44
ORDER
Respondent, Local 810, Steel, Metals, Alloys & Hard-
ware Fabricators & Warehousemen, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, & Helpers
of America, its officers, agents, and representatives, shall
I Cease and desist from
(a) In any manner restraining or coercing employees in
the exercise of their rights to self-organization, to form
labor organizations, to join or assist any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from
engaging in such activities, except to the extent that such
rights may be affected by an agreement requiring member-
299 F 2d 636 (C A 2 1962) enforcing 131 NLRB 59
43 Case 29-RC-1913
44 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations automatically become the findings
conclusions decision and order of the Board and all objections thereto
shall be deemed waived for all purposes
LOCAL 810, FABRICATORS & WAREHOUSEMEN 587
ship in a labor organization as a condition of employment,
as authorized by Section 8(a)(3) of the Act
(b) Engaging in, or inducing or encouraging employees
of Gateway Tire Co, Technical Crafts, Inc, the State of
New York, Division of Military Affairs, or any other
employer or person engaged in commerce or in an industry
affecting commerce, to engage in, a strike or refusal 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 (c) threatening, coercing, or restraining any of
the above-named employers or any other person engaged
in commerce or in an industry affecting commerce, where
in either case an object thereof is to force or require the
above-named employers, or any other person to cease
using, selling, handling, transporting, or otherwise dealing
in the products of Scales Air Compressor Corp, or any
other employer or person, or to cease doing business with
Scales Air Compressor Corp, or any other employer or
person
2 Take the following affirmative action which it is
found will effectuate the policies of the Act
(a) Post at its business office and meeting, halls copies of
the attached notice marked "Appendix" 45 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by them for a period of
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) Furnish the said Regional Director with signed copies
of the aforesaid notice for posting by Scales Air Compres-
sor Corp, if willing, at all places where notices to
employees are customarily posted
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of the receipt of this
Decision, what steps have been taken to comply here-
with 46
I further order that the complaint herein be dismissed
insofar as it alleges violations of the Act other than those
found above
45 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall be changed to read
Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board
46 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall bi modified to read
Notify said Regional Director for Region 29 in writing within 20 days
from the date of this Order what steps the Respondent has taken to comply
herewith