North American Meat Packers Union (Geo. A. Hormel & Co.)

National Labor Relations Board - Board Decisions

Dec 16, 1987

287 N.L.R.B. 720 (N.L.R.B. 1987)

720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
North American Meat Packers Union (Geo. A.
Hormel & Company) and United Food and
Commercial Workers International Union,
Local P-9, AFL-CIO. Case 18-CB-1629
16 December 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 26 March 1987 Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Charging Party also filed exceptions and
a brief in support of exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions except as modified below and to adopt
the recommended Order' as modified.
This case arose in the context of the Austin,
Minnesota UFCW Local P-9 strike against Geo.
A. Hormel & Company (Hormel). In an effort to
end the strike after certain unsanctioned activity by
Local P-9, the UFCW International 'sought to
impose a trusteeship on Local P-9. A 2 June 19,862
preliminary injunction by Judge Edward J. Devitt
of the United States District Court for Minnesota
confirmed the validity of the trusteeship and or-
dered suspended 'Local P-9 officers and their
agents to' comply with its imposition. Findings of
fact in this decree included the finding that sus-
pended officers, agents, and employees of Local P-
9 had threatened, harassed, and intimidated deputy
trustees Kenneth J. Kimbro and Jack Smith, agents
of the International, by, inter alia, threats of vio-
lence and mass demonstrations at the temporary
International office established by Kimbro and
Smith in Austin. On 2 July Judge Devitt issued an-
other order, transferring to the trustee the P-9
asset known ,as the Austin Labor Center (ALC), a
building leased by P-9 for office and meeting facili-
ties.
Having secured the 2 July judicial order, UFCW
representatives, including General Counsel George
Murphy, took physical possession of the ALC that
same day from suspended P-9 officials after a con-
frontation with 80-120 protesters. The protest
' The General Counsel's request that the remedial Order include a vlsi-
tatonal clause is denied
2 All dates are in 1986 unless otherwise indicated
group included unidentified P-9 members3 as well
as some members of the Respondent NAMPU, re-
cently formed by a charter membership of seven
striking ,P-9 members. Murphy told the Respond-
ent's Merrill Evans, who led the protesters ,in per-
sistent acrimonious questioning, that he would
return on 3 July to answer numerous questions
posed about UFCW and the P-9 trusteeship. Also
on 2 July, the NAMPU had filed a representation
election petition with the Board in an effort to oust
the P-9 trusteeship's representation of Hormel unit
employees.
The Active Retirees (AR) was a social group
that supported P-9 strike activities against Hormel.
AR -President James Rogers and several AR mem-
bers were also participants in the 2 July confronta-
tion. Rogers sought assurances from UFCW Coun-
sel Murphy that the AR would be able to continue
its twice weekly meetings at the ALC. The next
such meeting was scheduled for 3 July. Murphy
told him that the, AR could use the facility but
should "check in the morning."
Contrary to his stated intentions, Murphy did not
return to the ALC on 3 July. UFCW deputy trust-
ees Kimbro and Smith entered the side fire door of
the ALC with seven other UFCW agents at '8:30
that morning. (The front 'doors, of the building
were barred shut.) They observed that the interior
was a "complete mess." Kimbro concluded that
this disarray precluded use of the building by the
AR. He informed AR President Rogers about this
when the latter arrived.
Soon thereafter, a group of retirees angrily de-
manded access and use of a meeting room for the
AR. Concurrently, the Respondent's agent Evans
appeared along with' a group, some of whom were
unidentified P-9 members. Kimbro adhered to his
refusal to permit the retirees use of the meeting
room. He also told Evans that Murphy had re-
turned to Washington, D.C. and was not there to
answer questions. For a period of at least 10 min-
utes, Evans stood among those at the side doorway
and engaged Kimbro in angry conversation while a
vituperative crowd of 50 to 60 persons shouted in-
sults at the trustee's representatives. At one point,
AR member Raymond Arens prevented Kimbro
from closing the door. When police summoned by
the UFCW officials arrived, AR President Rogers
felt constrained to calm the crowd because "we
didn't need any people in jail." The two police offi-
cers, the UFCW agents, Evans, and AR represent-
3 Although the employment affiliation of P-9 members in crowds at
the ALC on 2 and 3 July was not definitively established, it is undisputed
that, as found by the judge, the vast majority of P-9 members are in the
Hormel employee unit
287 NLRB No. 74
MEAT PACKERS (HORMEL & CO.)
atives then ended the incident by leaving the ALC
for a meeting elsewhere.4
The General Counsel contends that the massed
demonstration of retirees, P-9 members, and others
at the ALC on 3 July was unlawfully coercive.
The judge found that their crowding around the
threshold and blocking of the door closure was no
more "than a brief boisterous expression of frustra-
tion and exasperation." The judge further found
that the crowd could not possibly have remained
jammed in the doorway and yet permitted, as
Kimbro testified, a clear view of the adjacent
VFW parking lot, from the doorway as well as un-
disputed passage through the crowd by both VFW
representatives and deputy trustee Smith during the
confrontation. Consequently, the judge concluded
that the General Counsel did not meet the burden
of proof as to this allegation in the complaint.
Under the circumstances here, noting particular-
ly the' acrimonious union factionalism that had de-
veloped during Local P-9's extended strike against
Hormel, we cannot agree with the judge's charac-
terization of this encounter. It matters little that
there were no incidents of actual physical violence
and property damage or that the protesters did not
effectively prevent individuals from passing
through their midst. By itself, the act of massing a
hostile crowd before a small door to confront and
insult rival union officials, and at one point to pre-
vent closing that door, would reasonably tend to
coerce and threaten employees from engaging in
protected activities in support of the Local P-9
trusteeship.5 Indeed, such misconduct seems indis-
tinguishable from the type of conduct which, as
previously engaged in by suspended P-9 officers
and their agents, had been enjoined by the Federal
district court's order. 6
We further find that the conduct of Evans and
the participants in the mass demonstration on 3
July is attributable to Respondent NAMPU. As
stated by the judge, Evans was "a well recognized
° The foregoing narrative of events is limited to credited testimony.
There are no exceptions to the judge's credibility based findings that
Evans and others in the crowd on 3 July did not physically restrain,
threaten , or assault Kimbro or verbally threaten him with violence. In
the absence of exceptions, we pro forma adopt the judge's credibility res-
olutions. In so doing , Member Babson stresses that he has serious reserva-
tions concerning the judge 's basis for discrediting certain testimony.
There are also no exceptions to the ALJ's findings that Evans and the
Respondent's agents did not violate Sec. 8(b)(1)(A) other than by photo-
surveillance during incidents on 11 and 14 July 1986.
5 It is well established Board law that conduct directed against nonem-
ployee third parties can violate Sec. 8(b)(1)(A) where such conduct, as
here, became or was sure to become known to employees and would rea-
sonably tend to restrain or coerce them in the exercise of Sec. 7 rights.
See, e.g., Lumber Workers Local 3171 (Louisiana-Pacific), 274 NLRB 809,
814 (1985); Teamsters Local 115 (Oakwood Chair), 277 NLRB 694, 698
(1985).
e Furthermore, our dissenting colleague's views to the contrary not
withstanding "broken promises " or "disinvitations " do not justify the un-
lawful massing and blocking engaged in by the Respondent here.
721
and vociferously active agent of NAMPU . . . en=
gaged in activities calculated to cause the ouster of
the UFCW as bargaining agent, and its replace-
ment by NAMPU." Independent of the retirees,
who had their own representative (Rogers) during
the events in question, Evans assumed the role on
both 2 and 3 July of leader and spokesman for the
numerous nonretiree P-9 members who opposed
the trusteeship. In doing so, he clearly acted within
the scope of his agency as the Respondent's charter
member/organizer when he stood at the head of a
mass demonstration in confrontation with the
UFCW officials and angrily argued with Kimbro.
His conduct encouraged insults and hostility from
others in the crowd, in direct contrast to the con-
duct of Rogers who eventually felt the need to
calm the crowd. Under these circumstances, we
find that the Respondent, through Evans' participa-
tion and leadership, violated Section 8(b)(1)(A) by
engaging in and encouraging a mass demonstration
at the ALC on 3 July.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, North American Meat Packers Union,
Austin, Minnesota, its officers, agents, and repre-
sentatives, shall take the action set forth in the
Order as modified.
1. Insert the following as paragraph 1(a) and re-
letter subsequent paragraphs.
"(a) Restraining or coercing employees of Geo.
A. Hormel & Co. in the exercise of their rights
under Section 7 of the Act by mass demonstrations
to harass and impede representatives of the trustee
for United Food and Commercial Workers Interna-
tional Union, Local P-9 AFL-CIO.
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER JOHANSEN, dissenting.
As fully described in the judge's decision and as
discussed by my colleagues, this case arose in the
context of the much-publicized UFCW Local P-9
strike against Geo. A. Hormel & Company
(Hormel). After the UFCW International succeed-
ed in imposing a trusteeship on Local P-9, the
trustee secured a judicial decree transferring to him
the P-9 asset known as the Austin Labor Center
(ALC), a building leased by P-9 for office and
meeting facilities. The trustee failed in a concom-
mitant attempt to gain control over the operations
of the United Support Group (USG), a nonem-
ployee strike support association. The Active Retir-
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees was a social group that aides USG in its activi-
ties.
On 2 July 1986 UFCW representatives including
General Counsel George Murphy took physical
possession of the ALC from suspended P-9 offi-
cials after a confrontation with 80-120 protesters.
This group included some members of Respondent
NAMPU, recently formed by a charter member-
ship of seven former P-9 members. The Respond-
ent's attorney helped to quell the protesters' anger
on this occasion.
President James Rogers and several Active Re-
tirees were also participants in the 2 July confron-
tation. Rogers sought assurances from UFCW
Counsel Murphy that the Active Retirees would be
able to continue its twice weekly meetings at the
ALC. The next such meeting was scheduled for 3
July. Murphy told him that the Active Retirees
could use the facility but should "check in the
morning." Murphy also told the Respondent's Mer-
rill Evans that he would return on 3 July to answer
numerous questions posed about UFCW and the P-
9 trusteeship.
Contrary to stated intentions, Murphy did not
return to the ALC on 3 July. Deputy trustees Ken-
neth Kimbro and Jack Smith entered the side fire
door of the ALC with seven other UFCW agents
at 8:30 that morning: (The front doors of the build-
ing were barred shut.) They observed that the inte-
rior was a "complete mess." Kimbro concluded
that this disarray precluded use of the building by
the Active Retirees. He then informed Active Re-
tirees President Rogers about this when the latter
arrived.
Soon thereafter, a group of retirees angrily de-
manded entrance and use of a meeting room for
the Active Retirees. Concurrently, the Respond-
ent's agent Evans appeared along with a group,
some of whom were identified as P-9 members but
most of whom were unidentified. They sought to
resume their confrontation with UFCW Counsel
Murphy. Both groups loudly protested, shouted
their objections, and insulted the UFCW represent-
atives until Rogers felt constrained to calm them.
Kimbro adhered to his refusal to permit the retirees
use of the meeting room. Also he told Evans that
Murphy had returned to Washington, D.C. and
was not there to answer questions. After about 10
minutes, police summoned by the UFCW agents
arrived. The two police officers, the UFCW
agents, Evans, and Active Retirees representatives
then ended the incident by leaving the ALC for a
meeting elsewhere.
The General Counsel contends that the ALC
was closed down on 3 July because of an unlawful-
ly coercive massed demonstration of retirees and
P-9 members. The judge found that their crowding
around the threshold and blocking of the door clo-
sure was no more "than a brief boisterous expres-
sion of frustration and exasperation." The judge
found that the crowd could not possibly have re-
mained jammed in the doorway and yet permitted,
as Kimbro testified, a clear view of the adjacent
VFW parking lot from the doorway as well as un-
disputed passage through the crowd by both VFW
representatives and deputy trustee Smith during the
confrontation. Consequently, the judge concluded
that the General Counsel did not meet the burden
of proof as to this allegation in the complaint.'
Unlike my colleagues, and in agreement with the
judge, I cannot find that a violation of Section
8(b)(1)(A) has been established. While the events of
3 July were tumultuous, they did not create a coer-
cive or threatenting atmosphere. Based on the
credited testimony, the confrontation with UFCW
trustee representatives did not involve any threats
or acts of violence attributable to agents of Re-
spondent NAMPU. In fact, Evans was the only
agent or member of the Respondent (which appar-
ently included no more than its seven "charter
members") identified as present at the scene. There
could hardly be any basis for an unfair labor prac-
tice finding against the Respondent stemming from
Evans' service as a spokesman for Local P-9 mem-
bers, particularly because UFCW Counsel Murphy
had promised on the previous day to return to
answer questions about the trusteeship. Further, in
light of this ultimately broken promise and the con-
current reversal of the 2 July indication that the
Active Retirees' meeting could take place as sched-
uled at the ALC,2 I see no basis for finding that
the crowding of 50 or more suddenly disinvited
persons around the ALC's only entrance for 10
minutes on 3 July was somehow coercive of em-
ployees' statutory rights.
Surely, the situation here is significantly and
critically different from that in the cases on which
my colleagues rely. In Teamsters Local 115 (Oak-
wood Chair), 277 NLRB 694 (1985), a union was
held responsible for mass picketing, the blocking of
entries, the jostling of supervisors, and threats. In
' There are no exceptions to the judge's credibility based findings that
Evans and others in the crowd on 3 July did not physically restrain,
threaten , or assault Kimbro or verbally threaten him with violence
There are also no exceptions to the judge's findings that Evans and the
Respondent 's agents did not violate Sec 8(b)(1)(A) other then by photo-
surveillance during incidents on 11 and 14 July 1986
2 My colleagues ' characterization of the conduct in issue as "the act of
massing a hostile crowd" is highly questionable Employees had been
told that questions would be answered about the trusteeship and retirees
had been tentatively approved to hold their regular meeting Thus, the
individuals congregating on 3 July were there because they were, in
effect, invited by the Charging Party-not because the Respondent had
acted to mass a hostile crowd
MEAT PACKERS (HORMEL & CO)
Lumber Workers Local 3171 (Louisiana-Pacific), 274
NLRB 809 (1985), a union was found to have
threatened and inflicted bodily injury and property
damage and prevented, or attempted to prevent,
employees from entering or leaving their work
premises.
Here, at issue is a confrontation basically limited
to the hurling of insults. As noted, the confronta-
tion did not include threats or acts of violence. The
Supreme Court, in Letter Carriers v. Austin, 418
U.S. 264 (1974), noted that the NLRA contem-
plates "uninhibited, robust, and wide-open debate"
including "intemperate, abusive, and inaccurate"
statements.3 In NLRB v. Teamsters Local 639, 362
U.S. 274, 290 (1960), the Court held that Section
8(b)(1)(A) was "a grant of power to the Board lim-
ited to authority to proceed against union tactics
involving violence, intimidation, and reprisal or
threats thereof." The use and exchanging of insults,
in the circumstances of this case, cannot support
the finding of an 8(b)(1)(A) violation. I would
adopt the judge's decision and dismiss the com-
plaint's allegation regarding the events of 3 July.
3 The Board has long recognized the reality that labor relations are
often accompanied by heated and bitter language As stated in Longview
Furniture Co, 100 NLRB 301, 304 (1952), "Although the Board does not
condone the use of abusive and intemperate language , it is common
knowledge that in a strike where vital economic issues are at stake , strik-
ing employees resent those who cross the picket line and will express
their sentiments in language not altogether suited to the pleasantries of
the drawing room or even to the courtesies of parliamentary disputa-
tion "
APPENDIX
NOTICE To MEMBERS AND EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT restrain or coerce employees of
Geo. A. Hormel & Company from engaging in
their rights guaranteed in Section 7 of the Act by
engaging in mass demonstrations to harass and
723
impede representatives of the trustee for UFCW
Local P-9 at the Austen Labor Center.
WE WILL NOT restrain or coerce employees for
the Employer from engaging in their rights guaran-
teed in Section 7 of the Act by photographing or
pretending to photograph employees of Geo. A.
Hormel & Company and other persons entering or
leaving the premises of the Austin Labor Center.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
NORTH AMERICAN MEAT PACKERS
UNION
Larry L. Witherell, Esq, for the General Counsel.
David S. Twedell, Esq., of Dallas, Texas, for the Re-
spondent.
Roger A. Jenson, Esq. (Peterson, Bell, Converse & Jenson),
of St. Paul, Minnesota, for the Charging Party.
Robert E. Funk, Esq, Associate General Counsel, United
Food & Commercial Workers, Washington, D.C, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. This
case was tried before me in Minneapolis, Minnesota, on
17 October 1986, pursuant to an unfair labor practice
charge filed by the United Food and Commercial Work-
ers International Union, Local P-9, AFL-CIO (UFCW),
on 18 July 1986, and a complaint issued by the Regional
Director for Region 18, on 3 September 1986 against
North American Meat Packers Union (NAMPU or Re-
spondent) The complaint alleged that Respondent inter-
fered with employees' Section 7 rights by engaging in
acts of intimidation, harassment, threats of physical as-
sault, physical assault, and vandalism toward the persons
and property of UFCW representatives at the UFCW of-
fices in the Austin Labor Center in Austin, Minnesota,
on the dates of 3, 11, and 14 July 1986. By its timely
filed answer, Respondent admitted the jurisdictional and
agency allegations of the complaint but denied the alle-
gations attributing misconduct to its agents. At the trial
all parties were given full opportunity to introduce rele-
vant evidence and to examine and to cross -examine wit-
nesses. The General Counsel stated at the trial that at
3:35 p.m. on the day preceding, UFCW had filed an ad-
ditional charge against Respondent which was docketed
as Case 18-CB-1663, which alleged other similar acts of
misconduct by the Respondent on 28 and 29 June 1986.
In accordance with the position of the General Counsel
and acquiescence of Respondent, but in opposition to the
Charging Party, I decided not to postpone the litigation
of the instant case, or to adjourn it after litigation to
await the results of the Regional Director's investigation.
The trial was closed. I advised the parties that I would
consider a posttrial motion to reopen and consolidate this
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
case with any new complaint that the Regional Director
might issue regarding the alleged incidents of June 1986,
on a showing that such course of action was appropriate
and expeditious.
The parties declined the opportunity to argue orally,
each indicating an intention to file briefs . About 15 De-
cember 1986 , I received briefs from the General Counsel
and the UFCW, and written notification from Respond-
ent that it would file no brief despite the absence of an
oral statement of position in the record.
Subsequently , I received no notification of the disposi-
tion of the investigation of Case 18-CB-1663 , nor of the
existence of subsequent unfair labor practice charges.
Nor have I received any motions for consolidation with
any other complaint . My decision is necessarily limited
to the facts litigated before me.
On the record in this case , and on my observation of
the demeanor of the witnesses , and on consideration of
the briefs , I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material, Geo. A. Hormel & Company
(the Employer), a corporation with an office and place
of business in Austin, Minnesota (the Employer's Austin,
Minnesota facility), has been engaged in the processing
and nonretail sale and distribution of meat and related
products. During the 12-month period ending 31 Decem-
ber 1985, the Employer, in the course and conduct of its
business operations, purchased and received at its Austin,
Minnesota facility products, goods, and materials valued
in excess of $50,000 directly from points outside the
State of Minnesota. During the same 12-month period
the Employer, in the course and conduct of its business
operations, sold and shipped from its Austin, Minnesota
facility products, goods, and materials valued in excess of
$50,000 directly to points outside the State of Minnesota.
It is admitted, and I find, that the Employer is now,
and has been at all material times, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that the Respondent is now,
and has been at all material times, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The issues in this case are factually simple, i.e, wheth-
er agents of Respondent unlawfully interfered with the
rights of employees to engage in union activities by coer-
cive conduct on three specific dates alleged. This case
appears to be one facet of a dispute between UFCW and
dissident members who have formed their own labor or-
ganization, NAMPU, in reaction to the UFCW Interna-
tional Union's imposition of a trusteeship on its Local
Union P-9 for the purpose of ending and settling a labor
dispute with the Employer, the terms of which settle-
ment are disapproved of by NAMPU. (See News and
Background Information, 123 LRRM 25, September 8,
1986.)
The Charging Party has represented a unit of the Em-
ployer's employees for bargaining purposes. Its member-
ship is over 1000, the vast preponderance of which are
Hormel employees. Local P-9 does represent employees
of several other employers to a lesser extent. A strike
sanctioned by UFCW commenced 17 August 1985
against the Employer. Because of certain unsanctioned
strike activity engaged in by Local P-9, the International
Union imposed a trusteeship in May 1986, appointed
Joseph T. Hansen as a trustee, and suspended all Local
P-9 officers. The trusteeship imposition was resisted by
the suspended officers in litigation before the United
States District Court for the District of Minnesota in a
breach of contract action, i e., the contract is the UFCW
constitution between the International Union and its sub-
ordinate affiliate On 2 June 1986, Judge Edward J.
Devitt of the U.S. district court issued a preliminary in-
junction that orders the immediate transfer of all assets
of Local P-9 to the custody and control of the trustee
and ordered the suspended officers to recognize the le-
gally appointed trustee and "to permit him peaceably to
manage [those assets] and to conduct Local P-9's affairs
as trustee." In his decision Judge Devitt found that the
suspended officers, agents, and employees of Local P-9
had engaged in numerous acts of defiance of the trustee
including, inter alia, threats, harassment, intimidation
toward UFCW agents, and mass demonstrations and sur-
veillance at the International office set up by deputy
trustees Kenneth Kimbro and Jack Smith.
By motion dated 12 June 1986, the trustee raised with
the Court, the issue of whether the Austin Labor Center
(ALC) and the United Support Group (USG) are "local
P-9 assets" subject to the Court's prior transfer order.
The ALC is a building leased by Local P-9 for the pur-
pose of maintaining its own offices and meeting facilities
and for subleasing a smaller portion to other labor orga-
nizations. The USG is a group of persons who volun-
teered their services in aid of the cause of the strikers.
The evidence in this case revealed that these persons dis-
tribute food to the strikers and operate out of a store-
front facility on the same street as the ALC but several
blocks away. In the opposite direction from the ALC on
the same side of the street, about 200 yards away, is lo-
cated the rented storefront facility that is used by
NAMPU as its headquarters.
In his decision dated 2 July 1986, Judge Devitt ruled
that the ALC was an asset to be transferred to the trust-
ee. In that decision he found that the USG commenced
existence in 1984 as an independent entity in support of
Hormel strikers, but that a "closer interrelationship"
evolved as the USG expanded fundraising on behalf of
the strikers in 1985. He found that although the USG
was independently formed by retirees, friends, and rela-
tives of the Employer's employees, some degree of con-
trol was manifested by Local P-9 which provided their
meeting space free of cost and which made decisions
concerning its activities. Judge Devitt found that the in-
terest of USG, supportive of a continued strike and sus-
pended officers, were now inapposite to that of the trust-
MEAT PACKERS (HORMEL & CO) 725
ee. He found that of two categories of USG assets, one
included caps, buttons, banners, and grocery products
which were related directly to the continuation of the
strike which he found to be a legitimate objective and
therefore ought not to pass to the trustee. With respect
to the second category of assets, this consisted of several
accounts in the Hormel credit union Judge Devitt con-
cluded that the trustee is not entitled to this asset. By an
order dated 2 July 1986, Judge Devitt ordered that the
suspended officers, executive board members, members,
agents, etc., of Local P-9 recognize the trustee and "de-
liver to him the custody and control of the [ALC] and to
permit him peaceably to manage it and to conduct Local
P-9's affairs as trustee."
The complaint and the General Counsel allege that
Respondent interfered with employees' Section 7 rights
by engaging in acts of coercion calculated to prevent
representatives of UFCW from taking custody of the
ALC and in conducting business there on the dates of 3,
11, and 14 July, and thereby frustrating employees in
their efforts to engage in union activities and to maintain
union membership in the UFCW.
1. 2 July 1986
UCFW Counsel George Murphy and 12 representa-
tives of UCFW as a group entered and took possession
of the ALC from the suspended P-9 officers on the
afternoon of 2 July 1986 after a confrontation in front of
the building with a group of about 80-120 persons in-
cluding several of the suspended officers. The confronta-
tion continued inside Although it is clear that the assem-
bled group shouted objections to the transfer of posses-
sion, there is a dispute whether the UFCW representa-
tives were greeted by non-NAMPU members with pro-
fanities, curses, insults (other than "scab"), told they
ought to be whipped, and a statement by non-NAMPU
member Allan McDowell in the presence of NAMPU
Attorney Twedell and NAMPU charter member/-
organizer and agent Merrill Evans that the UFCW rep-
resentatives do not belong in Austin and would not be
safe there It is also clear that NAMPU Attorney Twe-
dell successfully defused these emotions and caused the
crowd to disperse by reiterating Judge Devitt's order.
Thereafter, the UFCW took possession of the ALC. It is
not necessary to resolve credibility issues about the al-
leged utterances of 2 July because they were not alleged
in the complaint In any event, Attorney Twedell effec-
tively demonstrated NAMPU disavowal of any conduct
inimical to Judge Devitt's order by his instructions to the
crowd to disengage.
During the course of the 2 July confrontation, a dis-
cussion ensued between James Rogers and Murphy.
Rogers retired as a Hormel employee in 1982. In May
1986 he was elected as president of an unincorporated as-
sociation of about 30 Hormel retirees called the "Active
Retirees" (AR). Rogers testified that he and "some retir-
ees" were part of the group at the ALC on 2 July which
included some NAMPU members. He explained that AR
met religiously every Tuesday and Thursday of the week
in a basement conference room of the ALC. On 2 July, a
Wednesday, he met Murphy and inquired whether the
retirees could continue to meet there, specifically the
next day He testified that Murphy agreed that they
could use the facility but that they should "check in the
morning." Evans testified that the AR is a "social"
group that aids the USG in soliciting funds and support.
NAMPU was originally formed by seven charter
members, six of whom were alleged in the complaint and
admitted to be organizers and responsible agents of Re-
spondent:
Merrill Evans
Connie Dammen
Larry Gullickson
Rod Huinker
Daniel Allen
Richard Shatek
The seventh member was Peter Kennedy. All are unre-
turned strikers and members of P-9. Dammen testified
without explanation that the only kind of membership in
NAMPU is charter membership and that its charter
membership has remained constant at seven persons.
None of these are identified as former P-9's officers,
agents, or employees although they are P-9 members. It
is unclear when NAMPU was first formed Evans testi-
fied that its storefront headquarters were rented about 2
July.
According to Evans, a large part of those persons who
had congregated at the ALC on 2 July were P-9 mem-
bers Evans testified without contradiction that he ad-
dressed numerous questions to Murphy concerning
UFCW objectives which went unanswered and that he
loudly accused the UFCW of acting improperly by im-
posing the trusteeship. He also testified without contra-
diction that Murphy promised to return to the ALC the
next day to answer Evans' questions as well as the ques-
tions of numerous other P-9 members which they had
also shouted at him.
On 2 July 1986 a representation petition was filed by
NAMPU in Case 18-RC-13981 covering the Hormel
unit.
2. 3 July 1986
On the evening of 2 July, deputy trustee Kimbro ar-
rived in Austin and discussed with Murphy the events of
that day, including the Rogers conversation Murphy in-
dicated that he did not object to the AR use of the hall
although he described the building as being in a "mess."
According to the testimony of Kimbro, the following
events occurred on 3 July. At 8:30 a.m., Kimbro, Smith,
and about seven other UFCW agents entered the ALC
by the side fire door to which they possessed a key The
front doors had been chained and padlocked by the lock-
smith because they were unlockable otherwise due to the
theft of their "crash bars," i.e., handles or opening levers.
The locksmith retained the key. On entering the build-
ing, Kimbro observed stains on the carpeting, paper
strewn throughout the building, and upended chairs in
the hallway. Kimbro concluded that this constituted a
"complete mess" which precluded use of the building by
the AR Jim Rogers and his wife, Carmine, also an AR
officer, entered the building and confronted Kimbro with
a request to hold the AR meeting. Kimbro displayed the
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
area to the Rogers and told them that it was "in no way,
shape or form" to be available for a meeting until the
following week. As they talked he heard "knocking or,
loud banging" at the front door. Kimbro observed Evans
and Dale Francis "banging and kicking" on the glass
front doors but no one else. Francis was not identified as
a NAMPU member or agent, but appears to be a P-9
member and and employee of unidentified status.
After some conversation Kimbro asked the Rogers to
inform the AR members that the facility would be made
available "as soon as we could." Rogers went outside to
speak to a group of retirees waiting there. Rogers testi-
fied that between 20-30 retirees had accompanied him on
the expectation of holding their meeting pursuant to
Murphy's representation. '
After several minutes Kimbro heard a "large pound-
ing, banging and kicking" on the side metal windowless
fire door through which he had entered. Kimbro and
Smith approached the fire door. Kimbro unlocked it.
The door was flung open. An unidentified person placed
his hand over Kimbro's hand, which apparently retained
hold of the swiftly opening door. Kimbro went "out
with the door" and was pressed against the outside wall
of the building by the bodies,of several individuals, of
whom he identified Ray Arnes, a retiree not identified as
a NAMPU agent. He identified Evans and Beno Schaef-
fer who were standing "a bit back somewhat." Beno
Schaeffer was identified as an employee who had retired
after this incident. He was not identified as an agent of
NAMPU. A small, bespectacled, gray-haired man re-
mained hold on his hand. All these persons shouted in-
sults and vulgar epithets. An unidentified person shouted
"let's castrate the little [expletive], bring the little faggot
out here, let's lynch him." Kimbro described the group
as a crowd of about 70-100 persons and could only at-
tribute certain comments to two specific individuals,
Evans and Arnes.
Evans demanded to know Murphy's presence. On
being told that Murphy had returned to Washington,
D.C., Evans poked and pushed at Kimbro and in ob-
scene terminology characterized Murphy as a liar who
broke a promise to meet with the P-9 members that
morning . Arnes stood in front of Kimbro, smoking a
large pipe, and shouted- unspecified comments in Kim-
bro's face and spat in his face. Kimbro wiped the spittle
and thereupon was subjected to mass spitting from the
crowd which included Evans. Kimbro demanded that
they let him free and warned that they were "dangerous-
ly close to violating a- federal court order." Evans re-
sponded, "F- your federal order." The confrontation up
to this point took place in a "relatively short span of
time."
Jack Smith pulled Kimbro back inside the threshold.
In cross-examination Kimbro testified that the "smaller"
person who had held him gestured with his fist as
Kimbro pulled his hand away. The crowd shouted un-
specified comments Kimbro responded from within that
no meeting could be held on that date, that he tried to
explain to Rogers, and that if the crowd did not disperse
he would call the police. Evans responded, "f- the
police-you don't have a phone." In fact the P-9 tele-
phone was disconnected. Kimbro instructed one of the
UFCW agents next to him to summon the police from a
telephone in one of the ALC tenant's offices. He and
Smith together remained face-to-face with the crowd
across the threshold. Evans invited Kimbro to return
outside so he could kick him and on Kimbro's refusal "at
this point," Evans offered to leave his phone number so
that when Kimbro departed the ALC, Evans could
"make arrangements" to beat and kick him. The precise
verbage of this threat changed during cross-examination
of Kimbro.
The site of this confrontation is an asphalt paved lot
between the ALC and the VFW building. Kimbro and,
other UFCW agents had parked their automobiles in that
area in the space designated reserved for the neighboring
VFW visitors. There is no clear demarcation between
the ALC portions of the lot and the VFW portion. He
heard Jack Smith call out "they're messing with our
cars!" which were located about a point 10-15 yards
from the fire door. From the threshold Kimbro observed
"up along the building," at a distance of 10 to 15 yards,
and unidentified 17-year-old boy scampering back and
forth over the top length of his car. He saw a person he
identified later as Lawrence Benson maneuvering over
the automobile door lock, as Evans simultaneously con-
tinued a conversation with Smith at the door wherein
Evans disparaged Kimbro as a "snot nosed kid." For
about 15-20 minutes the crowd peppered Evans and
Smith with unspecified "verbal abuse" prior to the arriv-
al of police. Kimbro did not explain how it was possible
to view the automobiles from a threshold area which he
described was jammed "chest to chest, face to face, toe
to toe" with a crowd of 100 protestors, all of whom he
testified seemed to stand in the threshold of the side
door. A representative from the VFW building ap-
proached at 9:20 a.m., apparently able to freely reach the
entrance, and ordered Kimbro and Smith to move their
automobiles. UFCW Agents Plumb, Jack Smith, and Art
Smith went to move all the cars, apparently unimpeded
and unmolested by the crowd. Unspecified persons in the
crowd closed the ALC fire door The UFCW agents
within forced the door open and found a broken section
of 2-by-4-inch lumber on the ground nearby which they
presumed had been wedged against the door. Retiree
Alfred Simon picked up the piece of wood, held it over
his head, and shouted to UFCW Agent Lesley George
standing there with Kimbro and Reuben Salazer," come
out here [racial epithet], I want to bash your head in "
Kimbro could not see Evans' whereabouts when that
statement was uttered, and there is no evidence he was
aware of it. The crowd moved toward the parked auto-
mobiles, the door locks of which were discovered by
Smith already jammed with toothpicks and thus rendered
inaccessible.
About 9:30 a.m. police officer Stinegar arrived and
inside the building suggested that Kimbro close the
building because he could not quarantee his safety
Kimbro responded that he was willing to do so but he
feared "getting out . . alive . . . ." Officer Stinegar
went outside, returned shortly, and stated that the crowd
was upset because Kimbro had denied them the use of
the building. Thereafter, Stinegar arranged a meeting at
MEAT PACKERS (HORMEL & CO) 727
the Austin Law Enforcement Center about 10.30 a.m. be-
tween Kimbro, Jack Smith, Evans, Rogers, Bernie
Thompson, and Merrill Christianson, with officer Stine-
gar. Kimbro identified Thompson as a retiree. He was
not otherwise identified as a NAMPU agent. Christian-
son's status was never explained. At this meeting, in
answer to Kimbro, Evans admitted to having told
Murphy earlier that he does "work for" NAMPU, and
stated in response to Kimbro's question whether he
thought NAMPU could win a decertification election,
"our victory will be when the UFCW is decertified and
ran out of town." Christianson sat next to him nodding
affirmatively
Nothing was "resolved" at the meeting as a request
was repeated for a retiree meeting as Murphy had prom-
ised, and Kimbro reasserted his opinion that the building
was not fit for use. In his testimony Rogers opined that
he and his wife could have cleared it in 1 hour as it
merely involved picking up scattered papers and upend-
ed chairs. At the meeting Thompson accused Kimbro of
ignorance. Thompson accused the UFCW of stealing the
ALC from the rank-and-file employees. After some fur-
ther recriminations the meeting concluded. On returning
to the ALC, Kimbro found his automobile had a broken
radio antenna, broken headlights, was posted with "scab"
stickers, was dented and scratched to an unspecified
degree, and tires punctured by unidentifed persons in
their absence. The UFCW agents gained entry to their
cars and departed having closed the building.
Neither officer Stinegar nor any other disinterested ob-
server was called to testify. Kimbro reported no threat
to Stinegar nor did he file any criminal complaints. He
explained that the Hormel strike had created a "very
highly emotion charged situation" in the community of
Austin and that since his arrival in Austin in mid-May
1986 he and other UFCW agents had been subjected to
such a large number of threats, including death threats,
that he considered such conduct "had almost become
routine."
Kimbro testified further:
Since coming to Austin and being in the store-
front [temporary headquarters prior to possession of
the ALC] we have had the windows broken at the
storefront We have had them broken at the Austin
Labor Center. The cars have been continually van-
dalized. I have received numerous threats Jack has.
Others of our party have. We have had Hormel
products thrown on the windows. We have had
people come in and throw things inside the offices.
It is become [sic] a constant continuing situation.
We have not-quite honestly, there has been many,
many acts taken palce in Austin of vandalism and
other things. It's my understanding there have been
no arrests or prosecution of those. I felt it to be ab-
solutely fruitless to try to make any charges or pro-
ceed in that manner.
Jack Smith, deputy trustee, the only other General
Counsel witness to this incident, corroborated Kimbro
only as to some of the events on 3 July. According to
Smith, the following occurred. On arrival with Kimbro
at 8.30 a.m., he observed initially only about nine retirees
congregated outside of the building. Just before 9 a.m.,
Smith stood on a chair in the ALC library and looked
out a window 1-1/2 blocks up the street to the left of the
ALC. He observed between 25 to 40 persons exit
NAMPU's headquarters and walk toward the ALC. The
only one he recognized was Beno Schaeffer He did not
observe Evans in that group. Thereafter Smith heard
pounding at the front door and the loud demands of
Evans and Francis that the retirees be permitted to hold
their meeting. Then he heard heavy pounding at the fire
door. He saw Kimbro go out with the door at it was
hurled open. He failed to testify that anyone laid hands
on Kimbro Rather, he testified that Kimbro "had hold
of the door-he went with it, and then they held it so
we couldn't get the door shut." Arnes, Evans, and un-
identified persons crowded immediately about Kimbro
and Smith. He estimated 70-100 persons were out there.
Kimbro was heard to warn the crowd about the Federal
court order. He heard Evans' obscene verbal response.
He heard Kimbro demand that the crowd release the
door and "release them" but he failed to testify who, if
anyone, was held Unidentified persons spat on Kimbro,
as Smith talked directly with Evans who remonstrated
that Smith was experienced and ought to know better
than to do what he was doing Despite the proximity he
did not see Evans spit at Kimbro. Smith pulled Kimbro
into the building. Unidentified persons in the crowd
forced the door to be held open for an unspecified length
of time. As to utterances of the crowd at that point, he
had a limited recollection. He heard Schaeffer ask
Kimbro how he liked being spat on, He heard Arnes ex-
press concern for the Rogers who were inside. Pursuant
to a leading question, Smith testified that Arnes stated
that the Rogers might need help and "let's take the
building." However, Arnes alone did "walk into the
building" and was seen by Smith leaving later with the
Rogers.
Although Smith and Kimbro were in close proximity
at the threshold of the door, according to Kimbro "chest
to chest" with the crowd, Smith failed to corroborate
Kimbro concerning threats of physical harm, the insults
to Kimbro, the spitting and poking of Kimbro by Evans,
and his invitation to beat and kick Kimbro and that any
specific person in the crowd actually physically re-
strained or prevented Kimbro or anyone else from exit-
ing or returning into the ALC He also failed to corrobo-
rate Kimbro regarding the conversation between Kimbro
and Evans concerning the police.
Smith observed a crowd of persons around the UFCW
automobiles, which were only 35 feet away in view from
the doorway, and discovered that the locks were
jammed by toothpicks and the exterior finish was
scratched to unspecified extent. It is unclear how he had
a clear view of the cars if a crowd of 100 persons had
massed at the doorway "chest to chest " According to
Smith, apparently the crowd had disengaged from the
side door sufficiently to allow passage from the ALC to
the automobiles or it was not as congested as alleged
Smith was silent about the blockade of the door with a
2-by-4-inch piece of wood although, according to
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kimbro, both he, Plumb , and Art Smith had dust exited
at the time and were just outside of that door when it
was closed and blocked . Just before approaching his car,
Smith was asked by Evans whether he was paid enough
"to take this kind of harassment " He responded, "I'm
here ." Smith testified to no other incidents on 3 July
Regarding 3 July, Respondent adduced the testimony of
Evans, James Rogers, Arnes, and Simon
Evans testified without controversion that he was the
only NAMPU charter member present at the ALC on 23
July, and that he was there pursuant to Murphy 's prom-
ise of 2 July' to answer his questions . His corroborated
testimony about Murphy 's promise is not contradicted
and must be credited . According to Evans, the following
events occurred . Evans arrived at 9:30 a in. or later and
found a crowd present at the front doors who explained
that the doors were locked and that Murphy was not
there Evans exclaimed that this was contrary to Mur-
phy's promises . After knocking and shouting a demand
to know "what was going on" and after no response, he
moved to the side fire door where he found a "bunch of
people" and he saw a large number of retirees He did
not recall seeing Dale Francis there. He knocked. Smith
opened it and responded to his questions that^the ALC
was closed and he knew nothing about the arrangement
with Murphy , nor Murphy's whereabouts Evans protest-
ed Kimbro stood next to Smith . He testified that the en-
counter lasted only about 10 minutes . He was not rebut-
ted on this point In view of the failure of Kimbro and
Smith to testify to a specific timeframe , I credit Evans
that this encounter was brief. '
Evans denied the ,use of profanity, spitting at Kimbro,
threatening to fight him, or touching him. He observed
no other person do so. He did see an unidentified person
not associated with NAMPU force the door to remain
momentarily open That person stated to Kimbro, "Look
we want to talk to you , and you 're not going to dust run
back inside ." According to Evans, ' Kimbro said to him
something to the ` effect that he, Kimbro, would "get
even" with Evans , and he responded by offering to dis-
close his telephone number which Kimbro rejected, stat-
ing he already had it and then Kimbro turned and went
inside the threshold . Thereafter, two police officers, Ser-
geant Miken and Captain Stinegar, arrived and informed
them that the UFCW trustees wanted them to leave the
area which they advised doing to avoid an accusation of
being in violation of a court order. The officer went
inside and returned and suggested the' meeting at the
Law Enforcement Center to which Evans was invited by
retirees Thompson and Rogers , and where he and the re-
tirees loudly and emotionally , but without threats or pro-
fanity, accused the UFCW of deceit and noncompliance
with Murphy 's promise to use the ALC for a meeting
that day. Kimbro did not relent on his refusal to let the
retirees use the ALC basement meeting room on 3 July,
although he stated that it might be available in perhaps a
week.
Evans' testimony was augmented by James Rogers.
The Rogers were permitted to enter the ALC . Rogers
testified that he observed no great effort required to
clean the littered papers, etc., and that they engaged in a
fruitless discussion with Kimbro . On emerging , Rogers
observed about 50-60 persons outside the fire door, of
whom 25-30 were retirees . Unidentified nonretirees came
off the street The only nonretiree he recognized was
Evans. Rogers did not recall observing Dale Francis in
that group . He observed Smith standing in the doorway
with a smiling Kimbro. There was no spitting , no curs-
ing, no violence , no broken boards, and no vandalism, al-
though there was a good deal of shouted insults, e g.,
"scabs." Rogers observed Kimbro's car and saw that it
was without any dents or damage to the roof.
After the meeting Rogers and the retirees did not
return to the ALC. Rogers, who often visits the
NAMPU headquarters for a cup of coffee and a "word
of friendship ," did not visit it on 3 July Rogers ' testimo-
ny implied that the crowd was sufficiently aroused to
some conduct which caused his concern . He testified:
and about that time when the police came, I
was talking to the policeman because they wanted
to know what was going on, and I felt that maybe I
could speak with some of those people and get
things settled down. We didn't need any people in
jail. We have had enough of that.
Ray Arnes, an elderly retiree from the Weyerhaeuser
Co., testified that he was with the group of Hormel Co.
retirees at the side door on 3 July and it was he who put
his foot in the threshold to keep the door open because
the retirees wanted an explanation for the refusal of
access and that - Kimbro threatened to call the police
thereafter . Neither he nor anyone else spat at Kimbro,
nor did he or anyone else gesture menacingly . He heard
Evans argue with Kimbro He admitted that there may
have been "verbal abuse," i.e., insults such as "scab
lovers," but he observed no violence or vandalism He
went into the building because he did not want Rogers
and his wife to be alone in there He did not deny stating
"let's take the building " Another elderly retiree, Al
Simon , a former Hormel employee, testified that he
merely picked up a piece of wood that was lying in the
path of a parking slot and tossed it aside in a nonmenac-,
ing fashion . He denied that he or Evans spat on or
threatened Kimbro.
3. 11 July 1986
The UFCW had arranged for the distribution of bene-
fits to the nonrecalled strikers in the nature of a check
made out to the specific striker . Kimbro characterized
the beneficiary as a "p°rmanently replaced striker." Ar-
rangements were made for the beneficiaries to come to
the ALC personally to receive the check on 11 July be-
tween 10 a m. and 3:30 p.m NAMPU members were
among the recipients, including Evans ,
At 9:30 a.m . cotrustee Jack Smith observed a group of
15 to 25 persons exit from the NAMPU storefront head-
quarters and proceed to the ALC Of those , he identified
Schaeffer. Evans was not with that group but had been
observed earlier standing across the street . Kimbro esti-
mated that group to be much larger (40 persons), of
whom he identified NAMPU Agent Daniel Allen and
Lynn Houston , a former P-9 officer but nonagent of
NAMPU. Within a few minutes, a larger group, estimat-
MEAT PACKERS (HORMEL & CO)
ed at 50 persons by Kimbro, but merely "large" by
Smith, emerged from the USG headquarters 4 to 5
blocks up the street and moved to the ALC In cross-
examination , Kimbro inflated his estimate to 50 and 60
for the respective groups, and characterized the USG
group as "possibly" a larger group. Both groups arrived
before the 10 a.m scheduled opening. The group from
USG demanded immediate issuance of their checks and
carried signs that disparaged the national UFCW officers
and which bore legends accusing the UFCW of miscon-
duct by appropriating Local P-9 funds. The NAMPU
group carried no signs . Both groups apparently intermin-
gled in front of the ALC and moved about the doors in
close formation as members of the group took turns in
entering and accepting benefit checks. An unknown
number of them, including two former P-9 officers and
Dammen, lingered at the coffee area inside After receipt
of benefit checks prior to 10 am and some lingering
inside, each protestor returned to the milling crowd at
the front door.
UFCW had hired security guards Two guards were
on duty on this day. They did not testify The two
guards on duty instructed the crowd not to block in-
gress. Neither Kimbro nor Smith testified with specifici-
ty about the protestors' exact conduct in compliance or
noncompliance with these requests. Kimbro described
the effects of the protestors' conduct in response to sug-
gestive questions put to him by counsel for the General
Counsel. He was vague, generalized, and conclusionary.
He testified that "the protestors would tend to bunch up
and block the entrance to the door so the people could
not get in ." It is not clear from this testimony that this
was done by the crowd outside, or by the protestors
who had come inside to obtain a check and who had lin-
gered therein at the "coffee area ." He did not elucidate
on the "difficulty" those lingerers caused on the flow of
check recipients. From Kimbro's testimony it cannot be
determined whether the nature of the check recipients'
behavior was anything more than normal crowd confu-
sion . He identified only three check recipients who did
not leave the building immediately but, according to
him, they did not block the doors but rather "went inside
to the coffee area and stood around there." He gave no
details. Two of those persons were former P-9 officers,
and one was NAMPU Agent Connie Dammen. The
impact of lingering at the coffee area on ingress or egress
is not explained sufficiently.
Apparently ingress and egress was not completely
stopped as beneficiaries did enter, obtain their checks,
and exit at the side door throughout the day In cross-
examination Kimbro testified that he could not identify a
single person whose ingress or egress had been blocked.
There was no identification of a NAMPU agent in the
crowd at the front door continuously throughout the
day, Evans remained across the street Allen was seen by
Smith moving "up and down the street," soliciting signa-
tures in support of a petition for a Board-conducted de-
certification election Kimbro testified that he observed
Allen directly in front of the ALC door However, he
did not testify that Allen remained there for any length
of time.
729
Dammen testified that she also stayed throughout the
day from 10 a.m. to 3.30 p m and solicited signatures
She testified without rebuttal that she observed Evans at
one time leaning against the outside wall of the ALC en-
gaged in discussion with some people, and that the bal-
ance of the time he stationed himself across the street
with a group in front of a retail store near which Evans
remained situated. The petition was ultimately filed with
the Board's Regional Office It is her uncontradicted tes-
timony that NAMPU collected 650 signatures from P-9
members who visited the ALC that day in the course of
those few hours during which she observed persons en-
tering and leaving Her estimate of the maximum number
of persons in the crowd at any one time was 30 persons
Dammen's estimate falls within the range of the lower
estimate given by Smith, and I find it therefore more
credible and closer to an accurate estimate than either of
Kimbro's two sets of figures.
Kimbro testified that when he observed Evans, the
latter was across the street from the ALC standing near
a pickup truck with a small group about him. He failed
to identify the presence of Evans' automobile He testi-
fied to no further conduct of Evans. Smith, however,
testified pursuant to a leading question that he saw Evans
across the street 30 feet away, inside of an automobile
owned by him, holding a camera to his eye in a manner
of photographing toward the ALC as people "were en-
tering and leaving." His testimony was not corroborated
by Kimbro who, on the contrary, did not observe any
photography on 11 July.
Evans testified that on 11 July he obtained his benefit
check at the ALC on his arrival there directly from his
residence. He argued with no one within, accepted his
check, and he proceeded outside to a location across the
street where he remained for about an hour and con-
versed about the Board's decertification process with a
group of friends He testified that he did not have a
camera in his possession, did not take photographs, did
not block ingress or egress and that he observed no one
else do so Dammen testified that Evans had nothing in
his hands. Although Kimbro testified that as of 11 July
the UFCW had positioned observers outside its ALC
premises for the purpose of combatting vandalism, no
other persons corroborated the testimony of Kimbro and
Smith as to the events of that day Kimbro testified that
an unspecified number of beneficiaries failed to appear at
the ALC on 11 July, and pursuant to telephone calls
from these persons he arranged for subsequent delivery
of an unknown number of checks. None of these persons
were called to testify. Significantly, Smith's testimony is
devoid of any reference to the blocking of ingress or
egress by the crowd.
4. 14 July 1986
The UFCW scheduled and announced a meeting to be
held at the ALC at 10 a m. on 14 July for the purpose of
addressing and soliciting the membership of non-P-9
members actively employed by the Employer in the bar-
gaining unit. UFCW Representative Duane Karmen pre-
sided over that meeting, as he had over a series of such
meetings. According to Kimbro, at the outset of the
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meeting one of the posted UFCW, outside observers
shouted "here they come again." Kimbro exited and ob-
served a crowd of, he guessed, about 50 persons walking
from the direction of NAMPU's headquarters. He identi-
fied in that group Evans and two suspended P-9 officers
who are not alleged as NAMPU agents. Kimbro testified
that the following events occurred. The crowd came to
the front doors. Karmen told them that the meeting was
not intended for members, but an,unidentified voice de-
manded a membership meeting. After repeated refusal
and request, Kimbro suggested that if the members want
to meet they might do so in the downstairs meeting
room while Karmen met with the nonmembers upstairs.
Kimbro went downstairs to speak to the members whom
he described as without any single spokesperson, i.e.,
"everyone was talking." The basement room can accom-
modate 300 persons. About 30 members descended with
Kimbro. The remainder of the group of 50 stayed out-
side chanting, "scabs upstairs, P-9 downstairs." NAMPU
charter member/organizer Gullickson was among those
downstairs . A question-and-answer session ensued. Evans
was not present. Suspended P-9 officer Houston entered
with a tape recorder. When he entered, about half the
people departed. One person complained about the tape
recorder. Kimbro asked Houston to turn off the record-
er. He refused. He was ordered to leave. He refused.
Police were summoned, and Houston relented and
turned off the recorder. As the police departed, Evans
arrived with enough unidentified persons to bring the
group up again to about 30 persons despite the fact that
5 or 10 more left on his arrival Evans shouted insults.
He called the UFCW "a bunch of liars, no good,", its
international officer a thief, Kimbro a "sleaze," the
UFCW representatives a bunch of "dummies ," and sug-
gested that if the UFCW charged its entire nationwide
members each a dollar that the strike could be perpetuat-
ed. Kimbro did not describe how the meeting downstairs
culminated.
Smith testified that on 14 July he arrived at the ALC
and, observed "a big demonstration going on in front."
He walked in and discovered that a second meeting was
being conducted downstairs. He did not describe the
demonstration nor did he estimate their number. Smith
testified that he descended to the basement and heard
Evans standing up and asking "negative and derogatory
questions." He did not specify. He testified that Evans
refused to be silent when asked by Kimbro and that "fi-
nally another 'international agent rep said to Merrill
[Evans] would you please be quiet and sit down." Evans
complied. Despite a leading question, Smith failed to de-
scribe Evans as "loud."
Kimbro testified that at an unspecified time on 14 July,
he received a telephone call from actively employed bar-
gaining unit employee Chad Young who told him that
unspecified persons told him that they would not attend
the informational meeting because "crazies were out
front" and Evans was taking photographs from his auto-
mobile. Young corroborated him. Kimbro testified that
he thereupon went outside and observed Evans across
the street seated in an automobile "taking pictures of ev-
erybody," as they entered and departed. Kimbro ex-
plained that therefore he retrieved his own camera from
the - ALC office and asked UFCW Representative Carl
McCaffrey to photograph Evans. McCaffrey identified
the photographs he had taken purportedly of Evans
taking photographs on 14 July. He testified that from a
distance , for 5 minutes he saw Evans position his camera
to his eye numerous times aimed at persons coming and
leaving the ALC. Employee Young testified that he also
observed Evans on 14 July sitting in his "Polera" car
with a camera pointed at anybody going in or out of the
union hall. He identified Evans and the car that he,'was
in. Young is it participant in the UFCW inplant organiz-
ing committee and had solicited employee attendance at
the meeting.
According to Evans, the events of 14 July and their
sequences occurred as follows: At 3:30 p.m. Evans was
present at NAMPU headquarters when some entered and
disclosed that a meeting was being held at the ALC.
Evans exclaimed that it was about time that a meeting"
was convened Inasmuch as his automobile had by
chance been parked in a limited time parking zone, he
decided to drive the extremely short distance and park
across from the ALC. He was accompained by P-9
member and non-NAMPU officer Mike Bustead who
had just happened to come into the NAMPU, door,
having just returned from photographing an alleged em-
ployer sludge drop at the Cedar River. Bustead sponta-
neously suggested that he go with Evans "and see what's
going on." While the two sat in Evans' automobile ob-
serving persons entering the ALC, McCaffrey exited and
immediately photographed Evans. In retaliation Evans
photographed McCaffrey with Bustead's camera. He tes-
tified, "So I made a big deal out of taking his picture."
He may "possibly" have also photographed Jack Smith.
He insisted that he used the camera for no other purpose,
and remained seated in the car, for about one-half hour,
for no other purpose than to observe persons entering
the ALC. He did not explain why he failed to go into
the ALC "to see what's going on." Nor did he explain
why he simply did not make a telephone inquiry.
An unidentified P-9 member came, out of the ALC
and went over to him and stated that a meeting was
being held for "the people that were outside the plant
that were not working . . . down in the basement." Ac-
cordingly, Evans went to the basement meeting area in
the ALC at the moment when the Houston tape recorder
incident was concluding. Kimbro "preached" to the P-9
members the error of their ways. Evans stated he had, a
question but was abruptly told to "shut up'.',by a UFCW
organizer who "kind of tried" to shove him. Evans ques-
tioned Kimbro about UFCW strike policy. The meeting
lasted 20 minutes. He denied the use of profanity, threats,
or violence, but otherwise he specifically denied no'other
aspect of Kimbro 's testimony not raised in his own testi-
mony, i.e., the number of persons involved and their
placement, e.g, the chanting by a group in front of the
entrance , and his own shooting of insults at Kimbro
during the course of the meeting.
B. Factual Findings and Conclusions
A factual dispute exists about what actually transpired
at the ALC on the three dates in July 1986. The burden
MEAT PACKERS (HORMEL & CO) 731
of proof is on the General Counsel. As proof in support
of the 3 July allegations, the General Counsel elicited the
testimony of only -two . of a potentially much larger
number of witnesses The General Counsel did not elicit
the testimony of noninterested persons such as police of-
ficers, the VFW building occupants, or nearby mer-
chants or their customers. Rather, the prosecution of the
facts of this incident is premised on two agents of the
Charging Party which is interested in the maintenance of
its unfair labor practice charge against it rival NAMPU.
The General Counsel has further limited its testimonial
evidence by not corroborating the testimony of those
two agents with the testimony of the seven additional
UFCW agents who as a group took possession of the
ALC with Kimbro and Smith on 3 July and who were
immediately behind them during the confrontation. Par-
ticularly noteworthy is the absence of the testimony of
UFCW Agent 'Lesley George who, according to
Kimbro, was the object of a threat of violence and racial
slur. In view of the sworn denials of the several Re-
spondent witnesses, the corroboration of Kimbro by
Smith of the alleged unlawful conduct is highly critical.
Surely Smith was proffered as a witness who was
present with Kimbro and was able and willing to testify
as to all events of which he had recollection. As a wit-
ness I found Smith to be thoughtful, reflective, and delib-
erative, but at times hesitant Kimbro exhibited a tenden-
cy to engage in an eager, extended narrative. Counsel for
the General Counsel often resorted to leading questions
to elicit Smith's' responses. Smith was a more conserva-
tive witness than Kimbro as, for example, in regard to
the estimates of crowd size, which Kimbro further inflat-
ed in cross-examination. Smith appeared to limit his at-
tention to the events he was questioned about. Kimbro
often managed to insert generalized allusions to past in-
stances of alleged harassment. Smith did not appear to be
a witness of poor recollective abilities. He, above all the
other UFCW agents, was chosen by the General Counsel
to corroborate Kimbro Yet Smith did not corroborate
Kimbro as to numerous crucial incidents that ran to the
thrust of the complaint allegations and he was inconsist-
ent with Kimbro in several areas . Kimbro's testimony
contained vivid references to acts of stark misconduct. It
is very difficult to understand how Smith, who was very
detailed about the events of 2 July, could have simply
failed to recall the events of 3 July if they had occurred
as testified to by Kimbro. -
Paragraph 5(a) of the complaint alleged that Respond-
ent, by its admitted agent Evans and "other agents," in
the, presence of employees at the the ALC "physically
restrained and threatened and assaulted" a representative
of the UFCW. In view of the failure of Smith to cor-
roborate Kimbro, I discredit Kimbro and credit the deni-
als of Respondent 's witnesses to the following incidents:
the prodding, raised fist, laying of hands on and physical
restraint of Kimbro, the threats of violence to Kimbro,
Smith, or any other UFCW agent by Evans or anyone
else, the specific act of spitting on Kimbro by Evans, the
blockading of the side door with a 2- by 4-inch piece of
lumber, the racial slur and threat of violence to Lesley
George. I must therefore conclude that Kimbro's testi-
mony was embellished and exaggerated to the point
where it became unreliable. I find his uncorroborated
hearsay testimony about the police officer's subjective
conclusions of the state of the crowd to be equally unre-
liable and of no probative value as I do his own alleged
subjective conclusion that he feared being able to leave
the building for fear of his life
With respect to the alleged spitting, although Smith
did testify that Kimbro was spat on, I find the testimony
of both agents so inconsistent as to present any finding
that mass spitting occurred within the knowledge or ap-
proval of Evans, the only NAMPU agent present.
Kimbro testified that Arnes initially spat at him where-
upon unidentified other persons as well as Evans joined
in. Kimbro testified that he then demanded to be let
loose from the hold of a crowd member at which point
Smith pulled him within. Smith testified that he observed
Evans and Arnes, who were immediately present at the
door at that moment, but saw none of them spit. In view
of the congestion at the door it does not appear possible
that he could have observed many more persons. He tes-
tified that as Kimbro was spat at, Evans was engaged in
direct discussion with him, not spitting at Kimbro.
Therefore, according to Smith when counsel for the
General Counsel asked directly whether Kimbro was
physically able to reenter the building at that moment, he
testified that he heard Kimbro demand that the crowd
"release the door and release them." But he did not testi-
fy that anyone actually held either of them, and thus he
did not respond to the suggestive question put to him.
Furthermore, even Kimbro claimed that it was only he
who was physically held. I therefore cannot find that
Kimbro was forceably held and spat on by the crowd
with either the participation or approval of Evans I
must credit the testimony of Respondent's witnesses that
the incident did not occur.
With respect to the contention that egress was blocked
by a hostile crowd and thus coercive in itself, I find that
the evidence fails to support it. The facts disclosed that a
group of retirees angrily demanded entrance and use of a
meeting room to which they had some reason to believe
was promised to them Concurrently Evans appeared
along with a group, the vast preponderance of whom
were not identified. Some of the group were identified as
P-9 members whose employee status was not clearly de-
lineated. They appeared to resume a confrontation with
Murphy whom they had reason to believe would be
present for that purpose. Both groups loudly protested,
shouted their objections, and insulted the UFCW repre-
sentatives to the point where Rogers felt constrained to
calm them But I cannot find that their crowding at the
threshold and blocking of the door closure was more
than a brief boisterous expression of frustration and exas-
peration. The facts as testified to by Kimbro and Smith
necessarily prevent a contrary conclusion The crowd
could not possibly have remained jammed in that door-
way as described by Kimbro and yet permitted a clear
view of the parking lot, through which both VFW rep-
resentatives and Smith had unimpeded, free movement.
The evidence does not sustain the General Counsel's ar-
gument that the ALC was closed down because of the
persisting massed demonstration of retirees and P-9
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
members, rather than because the building was unfit for
use as Kimbro claimed I find that the General Counsel
has failed to prove the operative factual allegations of
subparagraph (a) of paragraph 5 of the complaint, and it
is therefore unnecessary to evaluate whether conduct not
directly perpetrated by, Respondent 's agent Evans ought
to be attributed to it
Paragraph 5(b) of the complaint alleged that on 3 July
Respondent , by its "agents , members and supporters, in-
cluding Laurence Benson ," in the presence of employees
with knowledge , approval , and ratification of its agent
Evans attempted to and did damage UFCW agents' auto-
mobiles.
In cross-examination Kimbro testified that he observed
Benson "hunched over " at Kimbro 's vehicle and it "ap-
peared " that he was "either trying to open or put some-
thing in my lock ," but he had no observation that
Benson engaged in any actual vandalism at that moment.
According to Kimbro, when he made that observation
Evans was still situated at the threshold arguing with
Jack Smith with 100 protestors pressed up behind Evans
and thus he could have had no awareness of what was
transpiring 35-45 feet away. , According to Kimbro,
Smith engaged in argument with ,Evans and yet simulta-
neously was able to see past the crush of people at the
door to notice activity at the automobiles and then cry
out a warning . Smith testified that at an unspecified point
in the confrontation he, observed not, one person, but
rather a "group of people" around his car and one at the
lock and assumed that the locks were being jammed at
that moment. Accordingly , he and Art Smith "walked
directly" to the car, apparently without difficulty
through the mass of 100 shouting protestors jammed at
the door, and discovered that toothpicks had been insert-
ed in the locks. He confirmed that Evans had remained
at the door . No one identified the persons at the automo-
bile as having been either retirees or as the indivduals
who had accompanied Evans, or as relatives or friends
of NAMPU, or as other persons in the community hos-
tile to the UFCW who had previously vandalized
UFCW property Laurence Benson 's status is unclear
If I were to credit the testimony of Kimbro and Smith,
the only damage to the automobiles proven to have been
perpetrated during the presence of a NAMPU agent con-
sisted of toothpicks inserted in the door locks and un-
specified scratches to Smith 's car inflicted by unidenti-
fied persons at a time when Evans remained arguing at
the doorway with 100 shouting protestors behind him.
Thus, even if ,I were to credit Kimbro and Smith, Evans
could not have been aware of the alleged vandalism and
therefore he was not shown to have instigated, ap-
proved , or ratified it. However , because of the testimony
as adduced in this record , I am not able to find that the
cars were readily visible If they were visible , then the
conduct of the crowd could not have comported with
Kimbro's and Smith 's descriptions However, if the cars
were visible, I still cannot credit Kimbro and Smith be-
cause of their unreliability as witnesses to the conduct of
the crowd at the door . Accordingly, I must find that the
General Counsel has not adduced sufficient , clear, and
credible evidence to sustain the allegation of fact in para-
graph 5(b) of the complaint.
1. 11 July 1986
Paragraph 5(c) alleged that on 11 July Respondent, by
its agents , members, and supporters , including Evans,
"harassed, intimidated and otherwise impeded access of
employees to the [ALC]." Paragraph 5(d) alleged that
Evans photographed, the employees as they enterd or de-
parted the UFCW on 11 and 14 July.
Kimbro's testimony concerning the behavior of anti-
UFCW protestors on 11 July at the ALC is uncorrobor-
ated by Smith except for Smith's observation of a lesser
number of persons who emerged from NAMPU and
USG headquarters and congregated in front of the ALC.
Neither the testimony of Kimbro nor Smith'reveals with
sufficient clarity that the protestors did actually impede
the ingress or egress of any person, nor that any action
was engaged in by any member of the group which
might have tended to intimidate employees from engag-
ing in membership in or conduct on behalf of the
UFCW. At most, the protestors picketed - with signs
which disparaged the UFCW and sought support for a
decertification election. The protestors do not appear to
have coercively interfered with the entry of other per-
sons for the object which was the same as their own
entry, i.e., to obtain benefit checks.
With respect to the alleged photographs by Evans on
11 July, the allegation is premised on the sole testimony
of Smith. Kimbro not only failed to corroborate Smith,
but his testimony is inconsistent with Smith in important
detail as noted above. Smith's demeanor concerning the
incident was uncertain. He admittedly was confused
whether Evans was situated in his car, or whether he
was standing, and speculated that he might be confusing
it with the events of 14 July I credit the corroborated
testimony of Evans and conclude that Smith was incor-'
rect to' the extent that Evans photographed visitors to
the ALC on I1 July
Accordingly, I find that the General Counsel has
failed to prove the 11 July allegation of paragraphs 5(c)
and (d) of the complaint by clear, coherent, credible tes-
timony.
2. 14 July 1986
With respect to the events of 14 July, the allegations
of misconduct are limited solely to the conduct of Evans
whom it alleged in paragraph 5(e) "in the presence of
employees, disrupted a meeting of employees conducted
by representatives of the UFCW at the [ALC] and
shouted obscenities at and, threats to representatives of
the UFCW."
The General Counsel does not allege any misconduct
by any other agent or person acting on behalf of
NAMPU on 14 July. There is no allegation that
NAMPU impeded ingress or egress at the ALC, nor that
it coerced individuals by virtue of the presence of a
group of protestors demonstrating outside the ALC, nor
that it coercively intimidated any employee by virtue of
its instigation , approval, or ratification of that protest
Kimbro testified that he acquiesced and invited the
protesting P-9 members to attend a meeting downstairs
while an organizational meeting of nonstriker-non-
members was held upstairs There is no evidence that the
MEAT PACKERS (HORMEL & CO) 733
upstairs meeting was internally disrupted The only evi-
dence of possible disruption consists of what occurred
downstairs among the meeting of P-9 members who did
not appear to interact with the nonstrikers upstairs. Len
Houston, a non-NAMPU member, is not alleged to have
acted as an agent of NAMPU on 14 July. In any event,
his conduct in attempting to tape record the meeting was
protested by a member of the P-9 group itself and had
absolutely no impact on UFCW's organizational activi-
ties among nonmembers upstairs, and was not approved
of or ratified by Gullickson. Evans was not even present
when it occurred.
With respect to Evans, there is no evidence to support
the complaint allegation that he "disrupted a meeting and
shouted obscenities at and threats to representatives of
the UFCW." What he did was to attend an ad hoc meet-
ing of P-9 members of whom he claims he is one, stand
up and for an unspecified duration vociferously express-
ing his disapproval of the UFCW leadership strike
policy, disparage its leadership, and argue on behalf of a
continued strike.
Smith described Evans' conduct as follows:
Well, his behavior basically was, he was asking neg-
ative questions, putting the UFCW down, you
know, always showing fault with the UFCW. They
were derogatory to the UFCW
The evidence reveals that he was effectively silenced and
seated by an UFCW agent. Moreover, his conduct was
witnessed by fellow protestors and sympathizers of un-
specified employee status and not by the nonstriker-non-
members attending the upstairs organizing meeting.
Under these circumstances, I cannot find that Respond-
ent, by its agent Evans, coercively interfered with em-
ployees' rights to engage in union activities as alleged in
paragraph 5(e) of the complaint.
With respect to the allegations in paragraph 5(d) of the
complaint concerning the alleged photography by Evans
on 14 July, I find there is merit. I find that Evans' uncor-
roborated testimony with respect to how and why he
came to be situated with a camera in his automobile
across from the ALC to consist of too many fortuities
and non sequiturs to be credible. Additionally, his de-
meanor was such that conveyed an impression of lack of
conviction if not actual chagrin in hearing himself nar-
rate such and explanation.
I credit the testimony of the General Counsel's wit-
nesses concerning this event. They were spontaneous,
convincing, and mutually corroborated.
As the General Counsel correctly argues, the Board
has held it to be coercive conduct for an employer to
engage in photographing of employees in a context that
tends to coerce them into either engaging in or refraining
from protected activities as, for example, the photo-
graphing of striking employees for no valid reason. See,
for example, Brunswick Hospital Center, 265 NLRB 803,
808 (1982). In this case a well-recognized and vociferous-
ly active agent of NAMPU was engaged in activities cal-
culated to cause the ouster of the UFCW as bargaining
agent, and its replacement by NAMPU. In the course of
those activities, he ostentatiously situated himself in a po-
sition to appear to employees entering a UFCW organiz-
ing meeting that they were being surveilled and photo-
graphed. That is to say they were given the impression
by this conduct that if they entered the ALC in the pres-
ence of an anti -UFCW protest group , NAMPU would
memorialize their conduct by retaining their photographs
in some sort of file or dossier. The natural inference to
be made by the subjects of the photographs was that
they were being targeted for retaliation.
CONCLUSION OF LAW
I conclude that Respondent, by its agent Merrill
Evans, as alleged, in the complaint with respect to 14
July, engaged in the appearance of surveillance and ap-
parent photographing of employees entering and leaving
an organizational meeting of the UFCW on 14 July 1984
for no justifiable reason, and thereby violated Section
8(b)(1)(A) of the Act.
THE REMEDY
I recommend a remedial order whereby Respondent
be ordered to cease and desist from its unlawful conduct
and take affirmative action to inform employees and
members of their rights to union membership and activi-
ties or to refrain from such.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed'
ORDER
The Respondent, North American Meat Packers
Union, Austin, Minnesota, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Photographing or pretending to photograph em-
ployees of Geo. A. Hormel & Company or other persons
entering or leaving the premises of the Austin Labor
Center for the purpose of restraining or coercing em-
ployees of Geo. A. Hormel & Company from engaging
in their rights guaranteed in Section 7 of the Act.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of their rights guaranteed
to them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its offices and meeting halls used by or fre-
quented by its members copies of the attached notice
marked "Appendix."2 Copies of the notice, on forms
provided by the Regional Director for Region 18, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
' If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
2 If 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 Nation-
al 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 "
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
members and employees are customarily posted Reason-
able steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Sign and mail to the Regional Director copies of
the aforementioned notice for posting at the premises of
the Employer (Geo. A. Hormel & Company, in Austin,
Minnesota, and for posting at the Austin Labor Center
by United Food and Commercial Workers International
Union if it so desires), if the Employer is willing.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.