Metal Polishers, Buffers, Intl. Local 67

National Labor Relations Board - Board Decisions

Nov 17, 1972

200 N.L.R.B. 335 (N.L.R.B. 1972)

METAL POLISHERS, BUFFERS , INTL. LOCAL 67 335
Metal Polishers , Buffers, Platers and Helpers Interna-
tional Union, Local No. 67 and Alco-Cad Nickel
Plating Corporation . Case 21-CB-4138
November 17, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On April 21, 1972, Trial Examiner David E. Davis
issued the attached Decision in this proceeding.
Thereafter, General Counsel filed exceptions and a
supporting 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 Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions as modified
herein.
1. The Trial Examiner found, and we agree, that
the evidence does not warrant a finding that the
Union was responsible for the puncture of employee
Williams' tire and was thereby in violation of Section
8(b)(1)(A) of the Act.
2. The Trial Examiner found, and we agree, that
the evidence that four labor pool employees were
followed by a group of pickets does not warrant a
finding that the incident constituted a violation of
Section 8(b)(l)(A) of the Act.2
3. The Trial Examiner found that the refusal by
Vela, admittedly an agent of Respondent within the
meaning of Section 2(13) of the Act, to allow
employee Smith to open the Company's plant was
not violative of Section 8(b)(1)(A) of the Act. We do
not agree.
It is clear upon the record, through the uncontra-
dicted and undemed testimony of Smith, that in
addition to telling Smith he could not open the plant,
Vela physically prevented Smith from doing so by
blocking the door so it could not be opened.3 There
is absolutely no evidence to support the Trial
Examiner's finding that Smith used Vela's presence
on the morning of October 18, 1971, as an excuse to
avoid opening the plant that morning. Rather, the
record shows that Smith arrived a few minutes before
5 a.m. with the specific intention of opening the
i The General Counsel has excepted to certain credibility findings made
by the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect 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.
plant, that he attempted to open the door but was
stopped from doing so by Vela who had placed
himself in front of the door, and that, upon being
denied access to the plant, Smith returned home after
calling his wife and instructing her to call the plant
superintendent and report the incident. Further,
from September 1 to October 20, October 18 was the
only day Smith failed to open the plant.
Thus, it is clear that, by Vela's informing Smith
that he could not open the plant and by his
physically blocking the door and thereby preventing
Smith from doing so, Vela's words and conduct
restrained and coerced Smith, denying him access to
the plant. We therefore find that by this conduct of
its agent Respondent violated Section 8(b)(1)(A) of
the Act.
4. The Trial Examiner further found that Vela's
presence on the freeway as both Smith and employee
Olivares drove home was merely a coincidence and
was not coercive following in violation of the Act.
We disagree.
The evidence, undenied and uncontradicted, shows
that Smith left work at 4:30 p.m. on October 19,
1971, and that as he drove home on the Santa
Monica Freeway, Union Agent Vela drove first
behind him and then in front of him. Further, the
undenied testimony of employee Olivares establishes
that on that same afternoon, between 5 and 5:30,
only 30 minutes to an hour after Vela was on the
Santa Monica Freeway with Smith, Vela entered the
Golden State Freeway and began driving in front of
Olivares and pumping his brakes for 2 or 3 minutes,
although there was no car within 200 or 300 feet in
front of him. Vela never testified, nor did any witness
offer any explanation for such activity.
Under these circumstances, Vela's having begun a
pattern of restraining nonstriking employees by
blocking Smith's entrance to the plant on the
previous day, we are unable to accept the Trial
Examiner's conclusion that, on the second day of the
strike, Vela's presence on the Santa Monica Freeway
near employee Smith and on the Golden State
Freeway near employee Olivares only 30 minutes to
an hour later was a mere coincidence. In light of the
uncontradicted and undenied testimony of both
Smith and Olivares, therefore, we find that the
conduct of Union Agent Vela clearly conveyed an
implied threat of bodily harm and constituted
2 No exception was taken to this finding.
3 The Trial Examiner described this incident as happening "when he
[Smith ] opened the door" This account does not reflect the transcript
correction , made pursuant to General Counsel's unopposed motion, to this
portion of the transcript which now reads "when he [Smith ] came to open
the door."
200 NLRB No. 51
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercive following in violation of Section 8(b)(1)(A)
of the Act.4
5. The Trial Examiner also found that neither
Paud nor Vela nor any other picket blocked ingress
to the plant in such a manner as to warrant a finding
that there was a violation of Section 8(b)(1)(A). We
do not agree.
On the morning of October 19, when employees
Olivares and Molina arrived at the plant, according
to Olivares' undenied and uncontradicted testimo-
ny,5 Union Agent Vela stood in front of Olvvares'
car, denying them ingress to the plant. When Vela
did not move after 2 or 3 minutes, Olivares drove
away.6
Further, Cline, an officer of the Employer, testified
that during the strike his car was stopped by pickets,
in the presence of Union Agents Vela and Paud,
approximately four different times as he transported
labor pool employees to work, and that he witnessed
the pickets preventing employee Henry from entering
the gate on one such occasion.? Although Union
Agent Paud denied that such activity took place
while he was present,8 or at his suggestion or advice,
the Trial Examiner did not discredit Cline's testimo-
ny and, in fact, acknowledged that "automobiles
were stopped momentarily from entering the
gates... ." He concluded, however, that "a delay of
one to five minutes under peaceful circumstances
hardly constitutes blocking or barring ingress so as to
constitute a violation of the Act." Such a construc-
tion is at variance with established Board law.9
Section 7 of the Act guarantees to all employees the
right to refrain from participation in union activities,
including strikes. Clearly, by physically blocking
access to the plant of cars in which nonstriking
employees and other persons were seeking to enter
the gates, Respondent has interfered with the
nonstriking employees in their exercise of these
rights.10 Accordingly, we find that Respondent,
through the conduct of Union Agent Vela and other
4 Sunset Line and Twine Company, 79 NLRB 1487, 1505.
5 While this testimony was not denied by Vela or any witness, the Trial
Examiner chose to accept Olivares ' previously sworn statement as a more
accurate account of the picketing In any event, it is uncontradicted and
undenied that Olivares was forced to drive away from the gate because,
according to his prior statement, credited and relied on by the Trial
Examiner, "[p ]icketers were walking back and forth in front of [his ] car and
[he] could not drive into the yard."
6 Olivares' testimony is corroborated by employee Taylor whom the
Trial Examiner refused to credit because he had not filed a prior statement
with the Board and because Taylor estimated that Vela blocked Olivares'
car for a period of 5 to 10 minutes , a difference of 2 to 7 minutes from
Olivares' estimate While finding it unnecessary to rely on Taylor's
testimony , we disavow the Trial Examiner's reference to Taylor's failure to
furnish the Board with a statement prior to testifying as having any
significance whatsoever in deternunmg his credibility
7 This portion of Cline's testimony is corroborated by employee Henry
The Trial Examiner refused to give any weight to Henry's testimony
because his account "was adduced . chiefly through leading and
suggestive questions " Upon reviewing the record of such testimony , we fail
pickets in his presence , blocked ingress to the plant
in such a manner as to violate Section 8 (b)(1)(A) of
the Act.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section
8(b)(1)(A) of the Act, we shall order that the
Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 3 from the Trial
Examiner's Decision and insert Conclusions of Law
3 and 4, as follows:
3. By refusing to allow employee Smith to open
the plant on the morning of October 18, 1971, by
following employees' automobiles, and by blocking
ingress to the plant of cars of nonstriking employees,
Respondent restrained and coerced employees in the
exercise of rights guaranteed them in Section 7 of the
Act, in violation of Section 8(b)(1)(A).
4. The aforesaid acts are unfair labor practices
affecting commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Metal Polishers, Buffers, Platers and Helpers Inter-
national Union, Local No. 67, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees of Alco-Cad
Nickel Plating Corporation by physically blocking
access to the doors of the plant, by blocking access to
the plant of cars in which nonstriking employees and
to ascertain the necessity for such a remark ; however, we find it
unnecessary to rely on the testimony of Henry in order to find that both
Cline and Henry were blocked from entering the plant by pickets
B Paud admitted that he was absent from the picket activities at various
times and could, in fact, verify his presence on only one of the days during
which these blocking incidents were alleged by Cline to have taken place
Neither Vela nor any witness testified regarding these other incidents,
leaving Clme',s testimony in that regard undenied and uncontradicted.
9 Lithographers and Photoengravers International Union, AFL-CIO, CLC,
and Memphis Local 223, Lithographers and Photoengravers International
Union, AFL-CIO, CLC (Holiday Press, A Division of Holiday Inns, Inc.), 193
NLRB No. 9
io The absence of physical violence does not lessen the restraining effect
of Respondent 's conduct Here, as in Sunset Line and Twine Company, supra
at 1506.
[t]he car drivers were faced with the choice of running down the
pickets, at the risk of inflicting serious injury, or driving away. This
interposition of passive force to prevent employees from going to work
is, we believe, a form of restraint proscribed by Section 8(bXIXA).
METAL POLISHERS, BUFFERS, INTL. LOCAL 67 337
other persons are seeking to enter the plant gates,
and by engaging in coercive following of cars of
nonstriking employees.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Post at conspicuous places in the business
offices, meeting halls, and other places where it
customarily posts notices to its members copies of
the attached notice marked "Appendix."" Copies of
said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by an
authorized representative, shall be posted by the
Respondent immediately upon receipt thereof, and
be maintained by the Respondent for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to
the Regional Director for Region 21 for posting by
Alco-Cad Nickel Plating Corporation, if willing, in
all places where notices to its employees are
customarily posted.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of Section 8(b)(1)(A) of the Act not specifically
found herein.
11 In the event that this 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
read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
guarantees to all employees the right to refrain from
participating in union activities, including strikes.
WE WILL NOT restrain and coerce the employ-
ees of Alco-Cad Nickel Plating Corporation in
the exercise of their Section 7 rights.
More specifically:
WE WILL NOT block ingress to the plant by
refusing to allow nonstriking employees to open
plant doors.
WE WILL NOT physically block access to the
plant of cars in which nonstriking employees and
other persons are seeking to enter the plant gates.
WE WILL NOT follow the automobiles of
nonstriking employees.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights under the National Labor Relations
Act.
METAL POLISHERS,
BUFFERS, PLATERS AND
HELPERS INTERNATIONAL
UNION, LOCAL No. 67
(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, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.
TRIAL EXAMINER'S DECISION
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice and to keep
our word about what we say in this notice.
Section 7 of the National Labor Relations Act
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner : This case was tried
before me at Los Angeles, California, on March 1, 1972,
pursuant to a charge filed on October 22, 19711 and a
complaint issued on December 2, amended on January 10,
1972, by the General Counsel of the National Labor
Relations Board, which alleged that Metal Polishers,
Buffers, Platers and Helpers International Union Local
No. 67, herein called Respondent Union or Union,
violated Section 8(b)(1)(A) of the National Labor Rela-
tions Act, herein called the Act, by engaging in certain
unlawful acts against employees of Alco-Cad Nickel
Plating Corporation , herein called Alco-Cad or the
1 The original charge was served on Respondent Union on October 22,
1971
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charging Party, during the course of a strike commencing
about October 18, 1971.2 Respondent Union in its answer
admitted certain allegations of the complaint as amended
but denied that it had engaged in any unfair labor
practices.
Upon consideration of the entire record3 and of the
briefs filed by the General Counsel and Respondent
Union, I make the following:
FINDINGS OF FACT
1. THE BUSINESS INVOLVED
It was stipulated4 and I find that:
1. At all times material herein, Alco-Cad Nickel Plating
Corporation, herein called Alco-Cad, has been and is now
a corporation with its principal place of business in Los
Angeles, California, where it engaged in job shop electro-
plating.
2. Alco-Cad, in the normal course and conduct of its
business operations, described in paragraph 1 above,
annually purchases goods, materials, and supplies valued
in excess of $50,000 from suppliers in the State of
California, which suppliers have received the said goods,
materials, and supplies directly from points outside the
State of California.
3. Alco-Cad is, and has been at all times material
herein, an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Accordingly, I find that assertion of jurisdiction herein is
warranted in order to effectuate the purposes of the Act:
II. THE LABOR ORGANIZATION INVOLVED
It is alleged, admitted, and I find that Respondent Union
is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Findings
It is admitted that Quentin Rex Paud, herein also
referred to as Rex or Rex Paud, was at all times material
herein a business representative of Respondent Union and
an agent within the meaning of Section 2(13) of the Act. It
is likewise alleged and admitted that employees of Alco-
Cad, under the direction and guidance of Respondent
Union acting through Paud and Ruben Vela engaged in a
strike and picketed Alco-Cad's premises in Los Angeles,
California, from October 18 to January 7, 1972.5
B. The Evidence
Elmon W. Smith testified that he has been employed at
Alco-Cad for 12 years as a maintenance man; that part of
his duties include opening the plant every morning about 5
a.m.; that on October 18 when he opened the plant door he
2 Hereafter all dates will refer to the year 1971 unless otherwise specified
3 The General Counsel filed an unopposed motion to correct certain
portions of the transcript of the hearing. The motion is granted.
4 G. C. Exh. 2.
was met by Paud and Vela and told that they were calling a
strike that morning; that Paud added, "I would like for you
not to open up this morning because were calling a strike.
We can't get a contract." Paud offered Smith a picket sign
which Smith declined to take and then Paud suggested that
Smith should call Mr. Fitzgerald.6 Smith testified that he
then made a move to open the door but brushed against
Vela who was standing in front of the door; "so I touched
him but he didn't seem to move, so I let it go at that."
Smith also said that Vela said he couldn't open up that
morning, he then testified that he said, "You mean I can't
open up if I want to open up? He said, `No.' " I do not
find this incident violative of Section 8(b)(1)(A) as alleged
in the complaint. I believe Smith was searching for an
excuse to justify his failure to open on that morning and
exagerated the impact of Vela's words and physical
presence: The entire incident seems barren of any coercive
conduct by Paud and Vela.
Smith then proceeded to his car, drove to a public
telephone where he called his wife and told her to call the
plant superintendent, a Mr. Pappas, to inform him what
had happened and to tell him that Smith was on his way
home. Pappas called Smith at his home about 6:30 a.m.
and as a result Smith returned to the plant between 7 to
7:30 a.m. He found the plant open and worked the rest of
the day.
About 4:30 p.m. on the next day, October 19, when
Smith left the plant to drive home, Vela entered the Santa
Monica freeway behind Smith, passed Smith and then
drove in front of Smith. When Smith got to the Harbor
freeway, he turned off to go home and from that point lost
sight of Vela. Smith referred to this incident as the time
when Vela followed him. The General Counsel contends
that this constituted coercion following in violation of
Section 8(b)(1)(A). I disagree. On the basis of the evidence,
I conclude that Vela's presence on the freeway was a mere
coincidence. A coercive interpretation of this incident is
unwarranted, speculative, and imaginery.
Smith, in further testimony, told about an incident
occurring in October when he saw Jacob Cline 7 drive into
the shipping yard of Alco-Cad and stopped because 8 to 10
pickets were circulating around his car. He heard Cline
blowing his horn and that it took Cline 2 or 3 minutes to
get through.8
Leroy Williams testified that he has been employed by
Alco-Cad for 14 years as a truckdriver. Williams described
two incidents, the first, some time in November, when
pickets walked in front of Cline's automobile and prevent-
ed him from entering for about 1 minute. The second
involved an incident when Williams was driving into the
plant premises and saw "one of the pickets make a move
toward my left front tire and said Leroy you have a flat."
When Williams drove inside he heard air escaping from the
tire. When he examined the tire he saw that it was
punctured. Williams testified that he examined his tires
every morning and that he had noticed no defects in the
tires that morning.
5 It was stipulated that picketing ceased as stated above.
6 Alco-Cad's president
7 Vice president and sales manager of Alco-Cad.
8 This incident will be further discussed, infra.
METAL POLISHERS , BUFFERS , INTL. LOCAL 67 339
I find no violation of the Act in the two incidents
testified to by Williams. A delay of 1 minute by those
engaged in picketing at an entrance to the plant hardly
constitutes "blocking" so as to bar ingress within the
meaning of Section 8(b)(l)(A): The evidence adduced with
regard to the tire incident proves that there was a flat tire
on Williams' truck resulting from unknown causes. I
consider the evidence concerning the tire incident flimsy,
tenuous, and speculative.9 It hardly warrants the conclu-
sion that a union picket caused the tire puncture.
Ramon Olivares employed by Alco-Cad for the past 16
years as a lathing machine operator was scheduled to work
on the night shift on October 18. He was called in the
morning by Pappas and told that there was a strike and to
report at once. When he came to work and saw the picket
line, he refused to cross it. He then went home and called
Pappas who told him to pick up Jesus D. Molina, another
employee, the next day and report at 7 a.m. When he
reported with Molina the next day, Vela stood in front of
his automobile for about 2 or 3 minutes. As a result
Olivares drove back to Molina's house and called Pappas.
Pappas instructed him to proceed to a certain filling station
where Pappas picked them up and took them into the
plant. At the conclusion of the workday about 5 p.m.,
Pappas drove Olivares and Molina back to the filling
station. Olivares in driving home on the Golden State
freeway saw Vela enter it and drive alongside. After a
quarter of a mile Vela passed Ohvares and drove in front
of him pumping his brakes for a distance of two or three
300 feet. Olivares was a "little scared" and left the freeway
at Main Street rather than his normal exit at Broadway.
Following this incident, Olivares did not drive to work but
was picked up by Pappas for the next 2 or 3 weeks.
On cross-examination the following statement given to a
Board agent on November 2 by Olivares was read to him:
Picketers were walking back and forth in front of my
car and I could not drive into the yard. The strikers
were on the sidewalk. None of the strikers stopped in
front of my car. None of the strikers said anything to
me at that time. None of the strikers made any gestures
to me at this time.
Olivares insisted that the statement was incorrect
and that Vela did stand in front of the car. I
do not credit Olivares' repudiation of his sworn
statement. The statement appears to have been careful-
ly prepared with precise details soon after the event and
at a time Olivares' memory was fresh. I accept the
sworn statement as a more accurate account of the
picketing. Accordingly, I find that neither Vela nor any
other picket blocked Olivares' ingress into the plant in
such a manner as to warrant a finding that there was a
violation of Section 8(b) (1)(A). I likewise find no
violation in the alleged following of Olivares' automo-
bile. It is clear that Olivares was apprehensive because
he was working during the strike and seeing Vela on the
freeway near him led him to conclude he was being
followed. I arrive at a contrary conclusion. It is
common knowledge that the particular freeway in
9 The testimony of Frank Nepi, a service station operator, to the effect
that in his expert opinion the tire was damaged by an ice pick or some other
sharp object contributes nothing as to how the tire was damaged or who
damaged it.
10 Labor pool employees are casual employees recruited and sent by a
question is highly congested during the evening rush
hours and certainly a vehicle in front of another is
required to apply brakes quite frequently. The factual
evidence of "following" is meagre, inconclusive and
unconvincing. I find no following in violation of
Section 8(b)(1)(A). In arriving at the foregoing conclu-
sions I have considered the testimonial account of
Molina who was Olivares' passenger on the above
occasion and testified to both incidents. Molina did not
impress me as a credible witness especially when he
testified that no vehicle was in front of Vela at that time
on the freeway. This statement is unbelievable to
anyone who has had the slightest exposure on this
freeway during the rush hours or at any other time.
The testimonial account of Lonnie R. Henry, apparently
a casual employee employed during the first 2 weeks of the
strike, was adduced by the General Counsel chiefly
through leading and suggestive questions. I do not give any
weight to Henry's testimony except as indicated hereafter.
Elwin H. Taylor testified that he was employed as a
security officer by Alco-Cad from October 19 to January
1972; that on one occasion, October 19, while stationed in
the yard near the parking area he saw a picket step in front
of Olivares' automobile; that he walked out and told the
picket to move; that the picket refused to move; that he
picked up his night stick; that when the picket again
refused to move he asked the manager to call the police;
that the car was stopped from 5 to 10 minutes ; that on the
following Saturday about 4 p.m. he observed four labor
pool employees 10 being followed for a distance of four
blocks by about six pickets. Taylor drove up to the
employees and told them he would take them where they
were going; the employees entered Taylor's auto.
Taylor did not furnish the Board with a prior statement.
His evidence concerning the length of time Vela stood in
front of Olivares' automobile conflicts with Olivares'
estimate of 2 minutes and Molina's estimate of 1 to 2
minutes. I am not persuaded that I should reverse my
finding above concerning the Olivares' incident because of
Taylor's testimony. Accordingly, I reaffirm my previous
finding that the Olivares' incident does not warrant a
finding that ingress to the plant was blocked so as to
constitute a violation of Section 8(b)(1)(A). I further
conclude that Taylor's evidence and conclusion that four
labor pool employees were followed by a group of pickets
does not warrant a finding that the incident constituted a
violation of Section 8(b)(1)(A) as there is no evidence of
any violence or any threats of violence.
Jacob M. Cline testified that he was vice-president and
sales manager of Alco-Cad; that during the strike he was
stopped about four times when he attempted to enter the
plant premises; that the first time this occurred was on
November 1 about 7 a.m. when pickets were standing in
front of his automobile; that he honked his horn ii and
after 3-5 minutes the pickets moved enabling him to enter
the premises; that the pickets were employees and included
Vela and Paud; that on November 2 about 7 a.m. several
labor broker who contracts with the employer and pays the employees
himself
11 Cline testified that the police authorities told him not to honk his horn
again under similar circumstances.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pickets at the same gate sat on the hood of his automobile
when he attempted to enter; that Paud and Vela were
present at the time; that again he was thereby delayed from
3 to 5 minutes from entering the plant premises; that on
November 3 at about the same time and place Paud sat in
front of his car and delayed him for 3 to 5 minutes; that
other pickets and Vela were at the side of his vehicle at the
time ; that after he went through the gate, he noticed that
Henry's automobile which was directly behind him was
being held up; that he went to Henry and asked if he
needed help; that Henry said, "No." Cline testified that his
car was stopped on December on numerous occasions by
pickets standing in front of his automobile when he
attempted to enter the plant premises.
In defense, Respondent Union called Paud who testified
that he was the business representative of the Union; that
he never advised or suggested that striking employees who
were picketing should block people from going on to the
company premises; that he did not recommend or suggest
following employees on foot or in a vehicle; that the
picketing on the days testified to by Cline consisted of the
pickets merely walking back and forth at an even pace
when Cline's vehicle approached; that the pickets were
always moving; that Cline and another employee had a
habit of driving through the picket line without stopping;
that Paud complained to the police about it; that one day
Paud decided that he himself would picket and that Cline
hit Paud when he went through the gate without stopping;
that Paud thereupon jumped on the hood and then got out
of the way.
Analysis and Conclusions
I fail to see where the Union has engaged in conduct
violative of Section 8(b)(1)(A) of the Act. The complaint
alleges that Respondent Union through Paud, Vela and
other striking employees threatened bodily harm and other
unlawful injury to employees, followed autos, stopped
autos and blocked and barred plant gates against employ-
ees. The evidence, in my opinion, fails to establish that
Paud, Vela, or any other strikers engaged in any of the acts
so alleged. The possible exception is that automobiles were
stopped momentarily from entering the gates by reason of
the marching of the pickets before the gate. There is no
evidence that police intercession was necessary on any
particular occasion to compel ingress.12 There is not a
single occasion where any violence was engaged in or
threatened to any employee seeking entrance 13 to the plant
premises. I appraise the strike picketing from October 18 to
January 7, 1972, as being conducted with a minimum of
12 In fact the only instance of police interference was testified to by Cline
who admitted that he was told not to honk his horn.
13 1 do not credit Henry's assertion that he was hit by a rock in the back.
Even if true, union responsibility is far from established.
disturbance and complete absence of violence or threats of
violence. Apparently Cline, like the General Counsel,
wanted the pickets to immediately step aside when a
vehicle approached the gate. I don't understand Board law
to require such instant obedience. The pickets have a right
to continue there picketing, and to talk to individuals who
cross their picket line as they did to Henry; surely a delay
of one to five minutes under peaceful circumstances hardly
constitutes blocking or barring ingress so as to constitute a
violation of the Act. The General Counsel cited Sunset
Line and Twine Company 14 and Teamsters Local 783,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America 15 in support of his
position. It seems to me that the widespread misconduct,
violence and threats of violence present in those cases
clearly demonstrate that the instant case is in a separate
and distinct category and it is easily distinguishable from
the cases relied upon by the General Counsel.
Having in mind the background of unfair labor prac-
tices 16 engaged in by Alco-Cad in the recent past, it seems
that the strike and resulting picketing has been conducted
in rather exemplary fashion.
I conclude there has been no violation of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. Alco-Cad Nickel Plating Corporation is and has
been at all times material herein an employer within the
meaning of Section 2(2) of the Act and engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union, Metal Polishers , Buffers, Platers and
Helpers International Union Local No. 67, is and has been
at all times material herein , a labor organization within the
meaning of Section 2(5) of the Act.
3. As found above , Respondent Union has not violated
Section 8 (b)(1)(A) by any of the acts alleged in the
complaint.
ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this case
proceeding, I recommend that the National Labor Rela-
tions Board enter an order dismissing the complaint in its
entirety.
14 179 NLRB 1506.
15 160 NLRB 1776.
16 Alco Plating Corp. and Metal Polishers, Buffers, Platers and Helpers
International Union, AFL-CIO, 179 NLRB No. 20; affd . 436 F.2d 1378.