Local 810, IBT

National Labor Relations Board - Board Decisions

Mar 13, 1978

235 N.L.R.B. 40 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 810, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Russell Plastics Technology, Inc. Case 29-
CB-2671
March 13, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On November 8, 1977, Administrative Law Judge
Irwin Kaplan issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed a statement of opposition to Respondent's
exceptions and brief.
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 brief
and statement of opposition and has decided to
affirm the rulings, findings,' and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
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 the Respondent, Local 810,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, New York,
New York, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: This case
was heard at Brooklyn, New York, on June 6-8, 1977. The
charge was filed by Russell Plastics Technology, Inc.,
herein called the Company or Russell Plastics, on October
28, 1976, and a complaint issued on December 5, 1976
(amended at the hearing). The complaint and amendment
thereto alleged that Local 810, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union or the Respondent,
engaged in strike and picket line misconduct including,
inter alia, throwing and scattering bottles, glass, nails, and
other objects across the entrance way and in the parking lot
of Russell Plastics facility, and threatening and causing
bodily injury and property damage in violation of Section
8(b)(1)(A) of the Act. The Respondent filed an answer
conceding, inter alia, certain jurisdictional facts but deny-
ing all allegations that it committed any unfair labor
practices. Further, the Respondent denied that certain
individuals are and have been acting as agents on its
behalf. After the hearing the Charging Party filed a brief.
Upon the entire record, and my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Russell Plastics is, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of Delaware and is engaged
in the manufacture, sale, and distribution of reinforced
plastic parts, and related products, at its principal office
and plant in Lindenhurst, New York. During the past year,
Russell Plastics, in connection with the operations of its
Lindenhurst plant, manufactured, sold, and distributed
products valued in excess of $50,000, of which products
valued in excess of $50,000 were shipped from said
Lindenhurst plant in interstate commerce directly to States
of the United States other than the State in which it is
located. Respondent admits and I find that Russell Plastics
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
A. The Alleged Strike and Picket Line Misconduct
The Union was certified in August 1976' as the exclusive
collective-bargaining representative for a unit consisting of
all production and maintenance employees, including
shipping and receiving employees and drivers employed by
Russell Plastics at its Lindenhurst, New York, facility. The
parties thereafter met and conducted approximately five
negotiating sessions from on or about September 21, to on
or about October 19, without reaching agreement on an
initial contract. On October 20, the Union conducted a
I All dates hereinafter refer to 1976, unless otherwise indicated.
235 NLRB No. 6
40
LOCAL 810, IBT
meeting of unit employees just outside of the Company's
premises and Union Representative and Chief Negotiator
Thomas Auld announced that a strike would commence
the following morning. The parties have met a number of
times subsequent to the commencement of the strike
(October 21) and at the time of the instant hearing had not
yet reached agreement on a contract. Further, the strike
and picketing established and maintained by the Union
was still in progress at the time of the hearing. Most of the
approximately 65-member unit have participated in the
strike. The General Counsel contends that, from near its
inception, the strike and concomitant picketing were
conducted illegally and with acts of violence in violation of
Section 8(b)(l)(A) of the Act. On the other hand the Union
denies that it engaged in acts of violence or that it
otherwise engaged in unlawful picketing. Further, it denies
that Thomas Auld, Brian Honahan, and a number of other
named individuals are or have been agents of the Union
acting on its behalf or that it is otherwise responsible for
conduct engaged in by said individuals.
In support of the allegations in the complaint nearly a
score of witnesses testified that pickets in the presence of
union representatives committed, inter alia, acts of physical
assault, property damage, bottle throwing, and placing
nails, glass, and other debris in the Company's entrance
way and parking lot: Thus, Donald Terrell who worked for
Russell Plastics from November 5 to on or about June 1,
1977, testified that he was assaulted by striker Daniel Hoyt
and other strikers in the presence of Union Representative
John Mikalinis on November 4, because he did not honor
the picket line and applied for employment. According to
Terrell at approximately 12:30 p.m., on November 4, in
response to a newspaper advertisement, he appeared at the
Company's facility to be interviewed for a job. John
Mikalinis and a few pickets were at the front door of the
building on Kent Avenue 2 as Terrell was prepared to enter
the building and Mikalinis called him a "son-of-a-bitch"
for crossing the picket line. Terrell entered the building and
sat down in the reception area near the front door. The
front door is made of glass, and Terrell observed individu-
als in the presence of Mikalinis making finger gestures
directed at him. One of them opened the door and said
"you don't think too much of your life do you buddy" and
shut the door. Terrell filled out an employment application
and was interviewed by Lillian Loy, personnel director.
After Terrell was interviewed, he opened the front door to
leave the premises and was met by Mikalinis and four or
five strikers who asked him what he did inside the building.
Terrell told him that he filled out an application. Mikalinis
and four or five of the strikers began to push Terrell toward
12th Street. Mikalinis called him a "son-of-a-bitch" and
uttered some other obscenities and threatened to rub his
face in concrete, and added that his life wouldn't be worth
anything if he ever appeared in the area again. Mikalinis
2 The Lindenhurst facility is stretched over one square block. The front
main entrance is on Kent Street. Facing the main entrance on Kent Street,
the street to the right is South 12th Street, a left turn on South 12th Street
leads to West Hoffman (back end of the facility), another left turn leads to
South 13th Street (parking lot entrance).
3 For reasons stated in a separate credibility section below. I have
credited General Counsel's witnesses over the Union's witnesses in all
material areas where the testimony conflicts.
stepped back a few feet and the strikers continued to push
him toward 12th Street. Daniel Hoyt, a striking employee,
picked up a rock and struck Terrell in the head, causing
Terrell to fall to his knees. Another striker kicked Terrell in
the side. At this time Mikalinis, who watched the entire
incident, was approximately 15 to 20 feet away. Terrell got
up and ran with Hoyt chasing him. Terrell slipped and fell
down, ripping his jacket, and was kicked again, this time by
Hoyt. Terrell shortly thereafter phoned the police and
waited until they arrived at the plant. Lillian Loy's
testimony corroborates the account given by Terrell in
material respects. Loy testified that, after the interview was
conducted and Terrell stepped outside the front door, she
could observe from the window Mikalinis and several
striking employees including Hoyt and Garmarsh "finger
punching" (jabbing) Terrell and pushing him toward 12th
Street. She could also hear him called "a fucking strike
breaker" and other obscenities. Loy testified that she
opened the window and asked them to leave Terrell alone.
Mikalinis responded that she (Loy) should get her "fucking
face back out [inside] the window." They continued to
push Terrell around the side of the building and gradually
disappeared from Loy's view. Loy saw Terrell about 20
minutes later in the reception area with policemen. She
credibly testified 3 that Terrell's clothes were ripped, he was
holding his head, and there was blood all over his hands.4
The Company has utilized guards employed by IBI
Security Services (herein called IBI) since the first week of
the strike. During the first days of the strike, IBI guards
were employed around the clock, 24 hours a day. Scott
Skellington, an IBI supervisory guard, was assigned to the
premises from late October 1976, to on or about January 1,
1977. His responsibilities involved patrolling the area and
observing and logging the activities of the pickets. He
called the police from time to time to report rock throwing
and other incidents involving the pickets. While the police
generally came within minutes, no arrests were made.
Skellington credibly testified that on October 28 as he
drove up to the entrance way of the parking lot he met
some 20 pickets around the front gate. After an unspecified
time, the pickets moved aside and he spotted a lot of glass
and nails out front. As Skellington pulled some 10 to 15
feet into the lot, a piece of glass was thrown against the rear
of his car. While Skellington did not see who threw the
piece of glass, he asserts that it came from the direction of
the pickets. He could hear the pickets shouting obscenities.
Skellington got out of the car and heard the pickets
shouting for him to leave, that it (the labor dispute) was
none of his business, and that he was intruding with their
livelihood. Mikalinis told him "to get the hell out of there."
Later that day while Skellington was on patrol with his
back to the gate a rock landed very close to him. When he
turned toward the direction the rock came from, he saw
Mikalinis and 15 to 20 pickets approximately 30 feet away
4 Sean Goodwin was also confronted by Mikalinis when he applied for a
job on or about November 9. At or about 3 p.m. he drove into the company
parking lot and as he got out of the car he was met by Mikalinis and two
other individuals. Mikalinis asked Goodwin if he were going into the
building. On hearing Goodwin said that he was going to see Mrs. Loy,
Mikalinis ordered Goodwin to get in his car and added "get the hell out of
here. Don't ask questions. The Teamsters are on strike. I don't want to see
you again." Goodwin left the premises.
41
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laughing. Mikalinis said "What's the matter are you afraid
of a rock?" Still later that day while inside the building he
observed Mikalinis and an unnamed striker throw four or
five rocks into the central part of the parking lot. There
were approximately 20 cars parked in the lot at that time.
On November 2, at or about 10 a.m., Skellington observed
Mikalinis throwing rocks again in the direction of employ-
ees' cars parked in the lot. There were 10 to 15 pickets in
the area of whom about 6 were huddled around him. There
were approximately 15 cars in the lot at that time. At
approximately 3:40 p.m., Skellington looked at two cars
which were damaged. One was a Cadillac with the rear
windshield shattered, 5 the other a black Grand Prix in
which the vinyl had been torn. Skellington noticed a few
large rocks inside the cadillac on the back seat and red
brick on and around the Grand Prix. Skellington testified
that he had observed Mikalinis throwing rocks in the
direction of these two cars. Walter Thewes, a foreman, also
testified with regard to the November 2 incident. He
observed Mikalinis at approximately 3:15 p.m. pick up an
object from the ground and motion as if he were throwing
it into the parking lot. Shortly after, he observed the
window in Thomas McLaughlin's Cadillac broken. Thewes
testified that he happened to notice McLaughlin's car a
short time earlier, and it was not damaged. Executive Vice
President McLaughlin testified that he saw his car about
3:30 p.m. The rear window was smashed, with two rocks
inside the car, and several similar rocks just outside and
around the car. There were also dents on the trunk and
hood of the vehicle. In addition, he noticed a 6-inch tear in
the vinyl roof of Foreman Rocky Stone's car with a piece
of concrete on the ground beside the car. Peter Bonadonna,
the Company's treasurer, observed the damaged cars at
approximately 3:40 p.m. on November 2 and described the
damaged condition in substantially the same manner as the
other witnesses.6
Further incidents of picket line misconduct were testified
to by employee Margaret Mueller. On October 21, at 7
p.m., the day the picketing commenced, Mueller experi-
enced difficulty driving out of the parking lot. As she
approached the gate she observed strikers Jeanne and
Diane Wichrowski hitting her car with picket signs and
heard them say that they were going to get her. There were
approximately 10 other pickets present at that time. In
addition, Union Representatives Mikalinis and Auld were
standing right next to the Wichrowskis. On October 26, in
the company of Ernest Schultz and Bob Gliamas, she was
driven to work in Schultz' car and arrived at the facility
about 8:30 a.m. As they stepped out of the car, striking
employee Brian Honahan 7 shouted from the gate, "Peggy's
dead." Margaret Mueller is also known as Peggy. There
were approximately 30 pickets outside the gate. While
Schultz, vice president in charge of operations, and
I See G.C. Exh. 9.
6 Mikalinis testified that he was told by a picket that McLaughlin's car
windshield was broken. When asked to give the date when told and to
identify the picket who told him of the damaged car, Mikalinis responded
that he couldn't and added, "I don't know if it ever happened." I find that
Mikalinis' responses in this area were less than candid. As previously
indicated (fn. 3) and for reasons set forth more fully below, I have rejected
Mikalinis' testimony in all matenal respects.
T Mueller and a number of other witnesses considered Honahan a shop
Gliamas, operation manager, could not identify who
actually shouted the remark, they testified that it came
from the direction of the pickets who were standing outside
the gate about 30 to 40 feet away. In all other respects, they
corroborate Mueller's testimony regarding the October 26
incident. Further, Gliamas testified that he noticed Mikali-
nis in the crowd of pickets. On December 3, at or about
noontime, Mueller was leaving the facility by car to go to
lunch when she was met by Maria Carter at the gate who
said, "You fucking bitch, I am going to fucking kill you."
There were about 10 other pickets around Mueller's car.
On December 8, Maria Carter in the presence of Mikalinis
and other pickets hit Mueller's car with a snowball from a
distance of about 10 feet. On February 6, 1977, at or about
8:15 a.m., Maria Carter, from about 20 feet, threw a cup of
coffee all over the back of Mueller's car in the presence of
about 20 pickets. Patrick Amorese also threw a cup of
coffee in the presence of 20 pickets over Mueller's car the
following day. The next day, February 8, Amorese and
other pickets at lunchtime threw snowballs at Mueller's
car. On her way back from lunch, Amorese hit Mueller's
car with a "dark object" which made a loud noise on
contact. Mueller parked her car and examined it and
noticed a big dent underneath the rearview mirror. Mueller
testified that there was no such dent on the car prior
thereto. According to Mueller's uncontradicted testimony,
the police was summoned and she swore out a complaint
and identified Amorese to a police officer who took him
away.8
In addition to the above-described strike misconduct,
testimony was adduced for the period October 25, 1976,
through March 1977, showing further that Union Repre-
sentative Mikalinis, Honahan, and other striking employ-
ees, inter alia, threw objects including snowballs, bottles,
rocks, and spread glass, nails, and other debris in and
around the parking lot and blocked ingress and egress
thereto. In this regard Robert Gliamas testified that on
October 25 at or about 5 p.m. he, Rocky Stone, and Tom
Murphy were about to enter Rocky Stone's automobile.
Gliamas opened the car door to allow Murphy to enter and
pushed the seat back when he noticed Brian Honahan from
the rear window making some kind of motion toward the
car. A bottle landed approximately 8 to 10 feet in front of
Gliamas and splattered at his feet.
Hassan Hamza, a company truckdriver, testified that on
March 1, 1977, while making deliveries from the Linden-
hurst facility to Sperry Gyroscope in Great Neck, New
York, he was followed in a car and harassed by Mikalinis
and another union representative whose name he couldn't
recall. Thus, Mikalinis' car on several occasions along the
Oyster Bay expressway pulled in front of Hamza's truck
and the brakes therein were applied thereby forcing Hamza
to slam on his to avoid hitting Mikalinis' car in the rear. On
steward. Honahan did not testify and Mikalinis asserted that no shop
steward has or will be selected until the parties have a contract. However,
Mikalinis also testified that Honahan served as chairman of the employee
negotiating committee. In any event, for reasons discussed below, I find that
at all times material herein, Honahan is and has been an agent of the Union
acting on its behalf.
I Patrick Amorese and Maria Carter are and have been at all material
times herein employee-members on the union negotiating committee.
42
LOCAL 810, IBT
March II, Mikalinis followed and tailgated Hamza's truck
and, according to Hamza, Mikalinis' car at times was so
close that he was unable to see through his rearview mirror.
Hamza testified that there were other occasions in March
whereby Mikalinis followed him in the manner described
above. Mikalinis admits that he followed Hamza, but
asserts that he was never closer than 35 feet and denies
harassing him in any way. According to Mikalinis he
followed Hamza to learn whether the Company had
established dropoff points for truckdrivers who refused to
cross the picket line.9
With regard to other strike misconduct, Hamza testified
that he saw striking employee Anthony Ponzini, on March
2, 1977, throw a bottle into the parking lot. Further, in
December 1976, and January 1977, while pulling in to the
gate, he was constantly pelted with snowballs, iceballs, and
other objects by Mikalinis and striking employees. In
addition to Mikalinis, Union Delegate Thomas Auld was
present on some of these occasions and Union Representa-
tive Anthony Longobardi was present as often as Mikali-
nis.
Thomas Murphy and John Turner testified to acts
engaged in by striking employee Jim Rigney. Murphy
testified that on October 26, while leaving work, striking
employee Rigney in the presence of about 30 pickets
standing immediately next to the gate as Murphy pulled
out uttered "You worked we'll get you." Mikalinis was on
the other side of the car and said "Yeah, that's right." John
Turner testified that, on October 26, he saw Rigney in the
presence of 15 to 20 pickets throw a bottle into the parking
lot. Walter Thewes testified that, on October 27, he saw
striking employee Tom Baez in the presence of 10 to 12
striking employees throw glass bottles into the parking lot.
Van Corkins testified that on the same day (October 27) he
saw striking employees John Garmarsh and Joe Damroth
in the presence of Mikalinis place nails across the entrance
way to the parking lot. On October 28, Thewes saw striking
employee Bernadett Garrelli kick nails which he, Thewes,
had swept away, into the parking lot. Thewes also testified
that on November 4 he saw striking employees Marina
Morena and Jeanne Wichrowski pick up nails from the
ground and stick them through the lid of coffee containers
and spread the containers in the entrance way to the
parking lot. Still further, Thewes testified that, on or about
February 2, he saw Mikalinis throwing nails into the
parking lot.
Thewes, Turner, and Corkins, and other witnesses,
testified that during the first 2 months of the strike they had
to sweep away glass, nails, rocks, and other debris nearly
every day. On or about November 3, at or about 2 p.m.,
while Thewes and Corkins were sweeping away some of the
nails and other debris, Mikalinis threatened to break
Corkins'1 0 head open and challenged him to step outside
9 As previously stated I have rejected Mikalinis' testimony in all material
respects. See fn. 3, above.
m° Par. 10, subpar. (c), of the complaint alleges in pertinent part that
Mikalinis in the presence of employees threatened various nonstriking
supervisors with bodily injury. The record reveals that at all times material
herein Van Corkins has been employed in the autoclave, film and winding
department and was promoted from assistant foreman to supervisor
approximately 2 years ago. All department employees including Corkins are
hourly paid, punch a limeclock, and receive time-and-one-half pay for
overtime, Corkins, who reports to the production manager, does not have
the gate. There were about 6 striking employees approxi-
mately 20 to 25 feet from Mikalinis when the threat was
made.
Richard Stemen, a production employee, testified that on
February 1, 1977, while sweeping a lot of glass away at the
13th Street gate, striker John Vento with a group of pickets
behind him confronted Stemen and uttered that Stemen
had taken his job away. According to Stemens' uncontra-
dicted testimony, he tried to ignore Vento and the pickets
behind him who were yelling at Stemen, when Vento
suddenly grabbed Stemen's broom. The two of them
wrestled for the broom for about a minute when Turner
and another employee got Stemen back inside the parking
lot. Turner's testimony corroborated Stemens in material
respects. In addition Turner placed Mikalinis at the scene
of the incident.
B. Credibility
The complaint alleges that the Union by its representa-
tives, pickets, and agents engaged in numerous acts of
strike misconduct. In support thereof the General Counsel
paraded nearly a score of witnesses. The Union on the
other hand provided only Union Representative Mikalinis
and striking employee Daniel Hoyt. Hoyt's testimony
which will be treated below relates only to the alleged
assault on November 4 by him on applicant Donald
Terrell.
As previously described in detail Terrell testified that
Hoyt smashed him in his head with a rock, kicked him, and
otherwise assaulted him, with help from other striking
employees in the presence of Mikalinis. Mikalinis and
Hoyt deny having any physical contact with Terrell or
seeing anyone else touch him. According to Hoyt, he was
at his post picketing the 13th Street gate (parking lot) on
November 4 and in order to break the "monotony" he
decided to walk around the building on Kent Street (main
door). On Kent Street he observed Mikalinis and a few
pickets outside the main door and asked Mikalinis what
was going on. Mikalinis told him that "somebody had just
broken through our picket line." Hoyt asserts that he
waited 5 to 10 minutes for Terrell to come out because "I
wanted to see what his excuse was." Hoyt testified that
when Terrell came out, Terrell was asked why he went into
the plant and the strikers made reference to their families.
Hoyt told him to get a job some place else. Hoyt testified
that nearly everyone (strikers) present had something to
say. However, Hoyt claims that he did not hear Terrell
respond. According to Hoyt, Terrell never broke stride and
continued to walk toward 12th Street. Hoyt claims immedi-
ately thereafter he went back to his post on 13th Street.
Hoyt who admittedly was served with a police summons
for the alleged assault testified that Terrell came back to
the authority to hire or discharge employees. On the other hand he earns
$5.25 per hour as compared to department leadmen who earn $3.90 to $4
and other production department employees who earn from $2.75 to $3 per
hour. Corkins assigns the department work and can independently move
employees from one job to another. In addition he can independently give
employees time off and assign overtime. He has given employees both
verbal and written reprimands. In these circumstances I find that Van
Corkins exercises independent judgment, responsibly directs employees, and
is a supervisor within the meaning of Sec. 2(I1 ) of the Act.
43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the premises in a police car, but that physically he looked
all right to him. However he admitted that he could not see
whether Terrell was bleeding. Terrell was seated in the
police car looking straight ahead and not at Hoyt who was
across the street at the time he observed Terrell. Hoyt
testified that the charges were later dropped. I find that
Hoyt was evasive, unresponsive, and unconvincing. His
explanation for waiting 5 to 10 minutes for Terrell to come
out of the plant because he wanted to hear Terrell's excuse
for going in does not smack of candor. I do not credit his
assertion that neither he nor anyone in his presence
physically made contact with Terrell. In this connection as
noted previously, Lillian Loy, personnel director, testified
that she could see through the window and observe
Mikalinis and striking employees, including Hoyt and
Gamarsh, "finger punching" and "pushing" Terrell toward
12th Street until they disappeared from her view. I found
Lillian Loy straightforward, responsive, and her testimony
worthy of belief. Further, she corroborated the testimony
of Terrell in all material respects. In these circumstances
and noting particularly the demeanor of the several
witnesses, I reject the testimony of Hoyt as unreliable.
With regard to John Mikalinis, I find that he was
equivocal, unresponsive, and unpersuasive. The following
exchange between Mikalinis and the Union's attorney on
direct examination regarding any discussion with Terrell as
he came out of the plant on November 4 serves to
illustrate:
Q. Did you have any conversation with Mr. Torrell
[sic ] when he came out of the plant?
A. I believe I probably asked him if he took the job
or not.
Q. What do you recall that Mr. Torrell [sic] said?
A. I believe he said he didn't take the job.
Q. What happened - was there any further con-
versation at that point between yourself, Mr. Torrell
[sic] and Mr. Hoyt?
A. I believe I told him he shouldn't have gone in
the first place, why didn't he look for a job in a place
that wasn't on strike.
Q. What if anything did he say?
A. He said -- again he told me he had a hardship. I
don't know with his wife or I forgot what he told me -
he told me he got the job or he didn't - he didn't say
he got the job. No, he didn't say he got the job.
Q. What happened then if anything?
A. He left.
A moment or two later the following additional questions
and answers further serve to illustrate the equivocal nature
of Mikalinis' responses:
Q. At any point in that conversation did you or
Mr. Hoyt say to Mr. Torrell [sic] in words or effect that
he better watch out and that he better not come back to
the plant?
A. No, I don't believe so.
The agency status of Auld, Longobardi, and Honahan is treated
below.
Q. At any point did you or Mr. Hoyt tell Mr.
Torrell [sic] that his face would be rubbed in concrete if
he came back to the plant again?
A. No, I don't believe so.
At this point, I deemed it necessary to inquire regarding
"I don't believe so." Mikalinis responded by saying the
answer is no.
As noted earlier, I have credited Lillian Loy's account of
what transpired between Terrell on one hand, and Mikali-
Pis and the strikers including Hoyt on the other. Further, I
have found Terrell to be a credible witness, and note that
his testimony has been corroborated in material respects.
On the other hand, I find that the testimony of Hoyt is
somewhat at odds with Mikalinis. Thus, Hoyt testifie. that
he did not hear Terrell make any response. According to
Hoyt, Terrell, on coming out of the plant, never broke
stride and continued walking toward 12th Street. Mikalinis
on the other hand testified that Terrell said that he didn't
take the job. Mikalinis asserts that he then asked Terrell
why he went in the plant in the first place and inquired of
Terrell why he didn't look for a job in a place that wasn't
on strike. According to Mikalinis, Terrell said something
about a hardship and made reference to his wife and then
Hoyt said "Why don't you get a job somewhere else, the
people are on strike here with children and families." In
addition to the foregoing incident, other witnesses testified
that they observed Mikalinis on the picket line throwing
bottles and other objects. They also observed striking
employees in the presence of Mikalinis hurling a variety of
missiles at persons or cars in the company parking lot.
While Mikalinis concedes that he was present at the
Company's facility frequently, some weeks every day, he
denies throwing objects at persons or property or that he
observed anyone else engage in such acts. For reasons
stated heretofore noting particularly that much of it is
uncorroborated, I reject Mikalinis' testimony. In contrast I
have found General Counsel's witnesses responsive, gener-
ally consistent, and persuasive. In this regard it is noted
that a substantial portion of their testimony is uncontra-
dicted, particularly the strike misconduct engaged in or
observed by Union Representatives and Agents Thomas
Auld, Anthony Longobardi, and Thomas Honahan.'1 In
these circumstances, and the record as a whole, I credit the
testimony of General Counsel's witnesses in all material
respects.
C. Discussion
(I) Agency
At the hearing the Union conceded that John Mikalinis
is and has been at all times material herein a union
representative, acting on its behalf. However, it denies the
agency status of Thomas Auld, Anthony Longobardi, and
Brian Honahan, alleged herein as delegate, field represen-
tative, and shop steward, respectively.
The record reveals that Auld has been a union delegate
for 15 to 20 years, is and has been the Union's chief
negotiator, and has attended all the negotiating sessions
44
LOCAL 810, IBT
(approximately 15). Further, Auld participated in orga-
nizing the Company's employees, and presided over a
number of union-employee meetings. Still further, he asked
for a strike vote, thereafter announced the strike, and has
participated in strike and picket line conduct. In these
circumstances I find that Auld at all times material herein
is and has been an agent of the Union acting on its behalf.
With regard to Anthony Longobardi the record reveals
that he attended at least one negotiating session and has
been at the picket line nearly every day from the inception
of the strike. Mikalinis, an admitted union representative,
when asked to name other union representatives who had
been at the Russell Plastics picket line responded "Tom
Auld and Anthony Longobardi." Further, the record
reveals that Longobardi gave out picket signs to strikers
and distributed strike benefits. In view of the foregoing and
the record as a whole, I find that Longobardi is and has
been at all times material herein a union representative
acting on its behalf.
With regard to Brian Honahan, the complaint alleges,
inter alia, that at all times material herein, he is and was a
shop steward and agent of the Union acting on its behalf.
A number of the General Counsel's witnesses referred to
Honahan as shop steward. However, much of this testimo-
ny appears to be based on hearsay evidence. For example,
employee Thomas Murphy testified that Bob Brisco, a
member of the employee negotiating committee, told him
that Honahan was elected shop steward. In this regard it is
noted that Lillian Loy credibly testified that Honahan
conceded to her on or about October 29 that he was made
the shop steward. Honahan did not testify. As noted
earlier, the Union denies that Honahan is or has been a
shop steward. Mikalinis asserts that no shop steward has or
will be selected until the parties have a contract. On the
other hand Mikalinis also testified and I find that Honahan
is and has been at all times material herein chief of the
union employee negotiating committee. In addition to
attending the negotiating sessions, Honahan and other
members of the employee negotiating committee sit at the
same table with Auld and other union representatives at
union meetings. In these circumstances noting particularly
that Honahan at all times material herein has been chief of
the employee negotiating committee, I do not deem it
critical to determine whether Honahan is or was a shop
steward. Accordingly, I find that at all times material
herein, Honahan is and was an agent of the Union acting
on its behalf.'2
(2) Union responsibility
It is undisputed that the Union since the inception of the
strike on October 21 established and maintained a picket
line at Russell Plastics facility. It is also undisputed that
Union Representative Mikalinis has appeared on the
picket line frequently, some weeks every day. With regard
to Union Representatives Auld, Longobardi, and Mikalinis
testified that they too appeared on the picket line, with
Longobardi as often as Mikalinis. The credible testimony
reveals that at least one of the aforenamed union represen-
i2 See International Woodworkers of America, 4FI CIO (Region 5). 140
NLRB 602,606 (1962).
tatives and agents appeared on the picket line at all times
material herein. Further, striking employee Brian Hona-
han, previously determined herein to be a union agent, has
also been on the picket line frequently.
As previously indicated a substantial portion of the
General Counsel's case related to alleged strike misconduct
which occurred at times when Auld, Longobardi, and
Honahan were present either individually or collectively on
the picket line.' 3 For example, Margaret Mueller credibly
testified that on the first day of the strike, October 21, at or
about 7 a.m., as she arrived at the gate to the entrance way
to the company parking lot, she was threatened by striking
employees Jeanne and Diane Wichrowski, that they were
going to get her and they hit her car with their picket signs.
There were approximately 10 pickets at the scene with
Auld and Mikalinis standing immediately next to the
Wichrowskis. Mueller also credibly testified that, on
October 26, Brian Honahan shouted to her in an intimidat-
ing manner "Peggy's dead" Honahan's remark was shout-
ed in the presence of about 30 pickets just as Mueller
(known as Peggy) got out of a car in the parking lot. In
addition, Robert Gliamas and Thomas Murphy establish-
ed that, on October 25, Honahan hurled a glass bottle
which splattered at their feet as they were about to enter a
car approximately 30 feet from the main entrance. Further,
the Company Driver Hassan Hamza credibly testified that
on approximately a dozen occasions in December 1976 and
January 1977 he was pelted with ice balls, snowballs, and
other objects thrown by Mikalinis and striking employees
and placed Auld and Longobardi on the picket line when
some of these incidents occurred. Still further, Hamza
credibly testified that frequently during the months of
December 1976 and January and February 1977 from 3 to
15 pickets stood in the middle of the gate blocking Hamza
from driving into or departing from the parking lot. Hamza
had to drive in low gear and "creep" into and out of the
entrance way and the pickets moved aside only when the
truck was dangerously close. As Hamza passed through,
pickets including Bernadette Garrelli and Maria Carter in
the presence of Mikalinis and Auld uttered obscenities and
slammed his truck with their hands.
In addition to the largely uncontradicted testimony
establishing strike misconduct engaged in or observed by
Auld, Longobardi, and Honahan as set forth above, the
record reveals that Mikalinis was also involved in serious
strike misconduct including violence. In this regard the
credible evidence reveals that, on November 3, Mikalinis in
the vicinity of six striking employees threatened to break
Supervisor Van Corkins' head open. Further, on November
9, Mikalinis ordered Sean Goodwin an applicant for
employment to get into his car and never return to the
premises again. More graphic than the foregoing is Mikali-
nis' involvement in the assault on applicant Ernest Terrell
on November 4. The record reveals that after Mikalinis
learned that Terrell had completed an application for
employment, he, Mikalinis, in the presence of other striking
employees threatened to rub Terrell's face in concrete and
added that his life would not be worth anything if he
returned. Mikalinis then stepped back a few feet and
13 It is noted that Auld, Longobardi, and Honahan were not called to
testify.
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permitted Daniel Hoyt with help from other striking
employees to strike and kick Terrell forcing him to drop to
his knees. Hoyt had smashed Terrell in the head with a
rock.
With regard to other alleged strike misconduct, the
credible evidence established that Mikalinis in the presence
of striking employees, on October 28, November 2, and on
various occasions in December 1976, and January and
February 1977 hurled objects including rocks, glass bottles,
snowballs, and nails into the Company's parking lot
causing damage to cars parked therein. Further, on several
occasions in March 1977, Mikalinis tailgated a company
truck while the driver was engaged in making deliveries
and Mikalinis otherwise harassed the company driver. In
addition, the record discloses that picketing employees
threw bottles and other objects in the presence of Mikali-
nis. There is no evidence tending to show that Mikalinis or
any other union representative ever disavowed the picket
line misconduct or attempted to prevent it from occurring.
The Board recently stated that, where an authorized
union representative participates in picketing misconduct
or is present at the time the misconduct occurs, it will not
hesitate to find that the Union is responsible.' 4
Applying the foregoing statement to the case at hand, I
find that the acts and conduct as described herein, which
occurred on or in the vicinity of the picket line and were
engaged in and observed by Mikalinis, Auld, Longobardi,
and Honahan clearly amount to restraint and coercion
within the meaning of Section 8(b)(l)(A) of the Act.Is In
addition, Mikalinis' threat to break open Supervisor Cor-
kins' head in the presence of employees independently
violates Section 8(b)(1)(A) of the Act.16
Still further, the record reveals that on various occasions
from near the inception of the strike (October 21) to and
including the month of March 1977 striking employees
engaged in misconduct at times when Union Representa-
tives and Agents Mikalinis, Auld, Longobardi, and Hona-
han were not placed at or near the picket line. For example,
striking employees Jim Rigney, Tom Baez, and Anthony
Ponzoni, on October 26-27, 1976, and March 2, 1977,
respectively, threw bottles into the company parking lot.
Further, on November 4, striking employees Morena and
Jeanne Wichrowski placed coffee containers with nails
sticking out therefrom in the Company's driveway. On
February 1, 1977, striking employee John Vento in the
presence of a group of about five pickets accused nonstrik-
ing employee Richard Stemen of taking his job and
grabbed Stemen's broom and otherwise impeded the
latter's efforts to sweep away glass and nails which had
been strewn in the parking lot. One of the pickets urged
Vento to kick Stemen in his vitals. Other strike misconduct
involved nonstriking employee Margaret Mueller. Thus, on
December 3, striking employee Maria Carter in the
14 Teamsters Local 860, International Brotherhood of Teamsters. Chauf-
feurs, Warehousemen and Helpers of America (Delta Lines, Inc.), 229 NLRB
993 (1977).
1i See Local 810, Steel, Metals, Alloys & Hardware Fabricators &
Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America (Scales Air Compressor Corp), 200 NLRB
575, 583-585(1972), involving the same union.
16 Teamsters Local No. 115 International Brotherhood of Teamsters
Chauffeurs, Warehousemen and Helpers of America, Independent (E. J. Lavino
& Company), 157 NLRB 1637 (1966).
presence of 10 pickets shouted obscenities at Mueller and
threatened her with physical harm. Again, on February 6,
1977, Carter in the presence of approximately 20 pickets
threw coffee over Mueller's car as she was leaving the
company parking lot. On February 7, striking employee
Patrick Amorese' 7 in the presence of 20 pickets also threw
coffee over Mueller's car. On February 8, Amorese threw
at Mueller's car what Mueller described as a "dark object"
which made noise on contact and which caused a dent
underneath the rearview mirror. On the same day, other
pickets threw snowballs at Mueller's car and otherwise
impeded her movement into the parking lot. The pickets
after an unspecified time moved out of the way so that
Mueller could proceed without hitting anyone.
Without regard to union responsibility for strike miscon-
duct, as set forth above, occurring at times when union
representatives were not on or near the picket line the
following abstract of Administrative Law Judge Reel's
decision in Teamsters Local 78318 is particularly appropri-
ate:
The widespread and serious nature of the miscon-
duct in this case, and the Union's failure to take
effective steps to insure its discontinuance, lead me to
find that the Union was legally responsible therefor and
hence violated Section 8(bXlXA) of the Act. In so
holding, I do not rely on the fact that some of the
offenders were members of the bargaining committee, a
group which as a committee played no role in the
conduct of the strike. Where a picket line is the scene of
repeated outbreaks of the sort here described, the union
which is in charge of the picketing and which maintains
some supervision over it, is responsible for such repeated
misconduct even though it did not direct the wrongful
action and even if its responsible leaders did not partici-
pate in the action or even themselves observe it. [Emphasis
supplied.]
Administrative Law Judge Peterson more recently in
Yellow Cab & Transfer Co.19 noted Administrative Law
Judge Reel's observations and also commented:
It is clear that the Union, by instituting the strike and
authorizing pickets to be present on the picket line,
empowered the pickets to act as its representatives and
in its interests. It necessarily follows, therefore, that the
conduct of pickets on the picket line is the responsibili-
ty of the Respondent Union.
In the instant case, the preponderance of the credible
evidence clearly establishes that union representatives
themselves consistently from the inception of the strike
engaged in serious strike misconduct in the presence of
striking employees. These acts set in motion the numerous
l' As noted previously Carter and Amorese at all times material herein
were members of the employee negotiating committee.
18 Teamsters Local 783, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Coca Cola Bottling Company of
Louisville), 160NLRB 1776, 1779(1966).
19 See Drivers, Salesmen, Warehousemen. Milk Processors, Cannery, Dairy
Employees and Helpers Union Local No. 695 (Yellow Cab & Transfer Co.), 221
NLRB 647, 653 (1975).
46
LOCAL 810, IBT
additional acts of misconduct engaged in by striking
employees in and out of their presence. Further, the nature
of the acts committed by the striking employees comported
with the pattern set by union officals. In these circum-
stances the Union cannot absolve itself of responsibility for
acts not occurring in the presence of its designated
representatives. Accordingly, I find that the acts of miscon-
duct by striking employees as described in detail herein
notwithstanding the absence of designated union represen-
tatives additionally violates Section 8(b)(1)(A) of the Act.20
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is
engaging in certain unfair labor practices, it shall be
recommended that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
In view of the widespread and serious nature of the
unfair labor practices committed, the commission by the
Respondent of similar and other unfair labor practices may
be anticipated.2 1 It shall, therefore, be recommended that
the Respondent cease and desist from in any manner
restraining or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.22
CONCLUSIONS OF LAW
I. Russell Plastics Technology, Inc., is an employer
within the meaning of Section 2(6) and (7) of the Act.
2. Local 810, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Thomas Auld, John Mikalinis, Anthony Longobardi,
and Brian Honahan at all times material herein are and
have been representatives and agents of the Respondent
acting on its behalf.
4. Local 810, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, has
violated Section 8(b)(1)(A) of the Act through the commis-
20 Local 542, International Union of Operating Engineers AFL-CIO (Giles
I Ransome, Inc.), 139 NLRB 1169, 1175 (1962); Local 28, International
Organization of Masters, Mates and Pilots, AFL CIO (Ingram Barge
Company), 136 NLRB 1175, 1184 (1962); Local 810, Fabricators & Ware-
housemen (Scales Air Compressor Corp.). supra at 585: Drivers, Salesmen,
Warehousemen. Milk Processors, Cannery, Dairy Employees and Helpers
Union Local No. 695 (Yellow Cab & Transfer Co.), supra.
2I See Local 810, Fabricators & Warehousemen etc. (Scales Air Compressor
Corp), supra at 586, involving the same union.
22 Drivers, Salesmen, Warehousemen, tMilk Processors, Canner), Dairy
Employees and Helpers Union Local No. 695 (Yellow Cab & Transfer Co.),
supra.
sion of acts of restraint and coercion which interfere with
the exercise of rights of employees guaranteed by Section 7
of the Act.
5. The Respondent by its agents Thomas Auld, John
Mikalinis, Anthony Longobardi, Brian Honahan, and
other striking employees, by engaging in threats of physical
violence and by engaging in actual violence against
employees and supervisors in the presence of employees;
by damaging or threatening to damage vehicles or other
property in the company parking lot by following or
harassing employees at or away from the picket line; by
hindering ingress to or egress from Russell Plastics Tech-
nology, Inc., premises in order to discourage employees in
the exercise of their rights not to join or support any strike,
thereby engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(b)(XI)(A) and 2(6)
and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 23
The Respondent, Local 810, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, New York, New York, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Restraining and coercing employees of Russell
Plastics Technology, Inc., in their right not to join or
support any strike by threats of physical violence and by
actual violence upon employees and supervisors in the
presence of employees, and by following and otherwise
harassing company employees at or away from the picket
line.
(b) Blocking ingress to or egress from the Company's
premises either by blocking the gate or in inflicting damage
or throwing objects including glass bottles and rocks at
vehicles parked or employees driving in or out of the
Company's parking lot.
(c) In any other manner restraining or coercing employ-
ees in the exercise of their rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix." 24 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by its representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
23 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, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
24 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Sign, as aforesaid, and mail sufficient copies of the
said attached notice to the Regional Director for Region
29, for posting, Russell Plastics Technology, Inc., being
willing, at places where notices to employees are customari-
ly posted. Such copies shall be furnished the Respondent
by the said Regional Director.
(c) Notify the 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.
APPENDIX
NOTICE TO
EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of The United States Government
WE WILL NOT restrain or coerce the employees of
Russell Plastics Technology Inc., by threats of physical
violence or by actual violence upon employees and
supervisors, by harming employees or supervisors oth-
erwise, by following or harassing employees at or away
from the picket line by throwing objects including rocks
and bottles, or by otherwise damaging or threatening to
damage vehicles at the premises of the employer, or by
barring or hindering ingress to or egress from Russell
Plastics Technology Inc., premises in order to discour-
age such employees in the exercise of their right not to
join or support any strike.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of rights guaranteed in
Section 7 of the Act.
LOCAL 810, INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
48