Operating Engineers Local 17 (Hertz Equipment Rental)

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 578 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 578
International Union of Operating Engineers, Local
Union No. 17 and Hertz Equipment Rental
Corp. Case 3–CB–7607
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
On July 17, 2000, Administrative Law Judge George
Alemán issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel and the Charging Party filed answering briefs.
The National Labor Relations Board has delegated 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,1 findings,2 and conclusions
and to adopt the recommended Order as modified.3
Throughout the course of this proceeding the Respon-
dent has asserted that the complaint should be dismissed
and the case reassigned to another Region for a new in-
vestigation because the Respondent’s counsel was not
present when the Board agent assigned to investigate the
charge took an affidavit from the Respondent’s organizer
and agent, Gerald Franz. The Respondent renews this
contention in its exceptions. The Respondent’s excep-
tions are without merit.

1 On May 16, 2000, the Respondent filed with the judge a motion to
correct the record to indicate that the Respondent’s counsel had ex-
cepted to the judge’s rulings at the hearing denying the Respondent’s
motion to dismiss the case and quashing subpoenas. The Respondent’s
motion asserts that the General Counsel and the Charging Party con-
sented to the correction. The judge denied the Respondent’s motion on
the grounds that he was not persuaded from the context of the disputed
passage that the Respondent’s counsel was, in fact, objecting to the
judge’s rulings. The disputed transcript passage shows that the Respon-
dent’s counsel stated that “I respectfully accept both decisions from
your Honor.” The judge also observed that the Respondent’s averment
that the General Counsel and the Charging Party had consented to the
correction was uncorroborated.
The Respondent has excepted to the judge’s ruling on the motion to
correct the record. Under all the circumstances, we find, contrary to the
judge, that the Respondent’s motion should be granted as the proposed
correction is fully consistent with the transcript as a whole and no party
has opposed the motion. In this regard, the General Counsel, in his
answering brief, states that he was contacted by the Respondent’s coun-
sel following the hearing and verbally indicated that he did not oppose
the motion to correct the transcript. The Charging Party’s answering
brief fails to address this issue.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify par. 2(a) of the judge’s recommended Order to
omit the requirement relating to notice mailing in the event that the
Respondent goes out of business or closes the facility involved in this
proceeding. See, e.g., Laborers Local 1184 (Nicholson Rodio), 332
NLRB 1292 (2000). Consistent with the Board’s standard remedial
practice, we shall further require the Respondent to return to the Re-
gional Director signed copies of the notice for posting by Hertz, if
willing, at all places where notices to employees are customarily
posted. We shall also correct the judge’s recommended notice to con-
form to the language of his recommended Order.
It is undisputed that, prior to any entry of appearance
of counsel on behalf of the Respondent, the Board agent
assigned to investigate this case contacted Franz and
made an appointment to take his affidavit. Prior to the
date of the appointment, the Respondent’s counsel en-
tered a notice of appearance, which requested that all
contacts with the Respondent be initiated through coun-
sel.4 Upon receiving this notice, the Board agent at-
tempted to contact the Respondent’s attorney and left a
phone message advising him of the scheduled appoint-
ment to take Franz’ affidavit.5 The Board agent also
called Franz and asked if he wished to go forward with
the affidavit in light of the entry of appearance. Franz
voluntarily agreed. Franz’s affidavit was not used at the
hearing, and Franz was not called to testify by any party.
Section 10056.6 of the Board’s Casehandling Manual6
provides, in pertinent part, that
Where the respondent is represented by counsel or
other representative and cooperation is being extended
to the Region in connection with its investigation of un-
fair labor practice charges, the charged party’s counsel
or representative is to be contacted and afforded an op-
portunity to be present during the interview of any su-
pervisor or agent whose statements or actions would
bind a respondent. This policy will normally apply in
circumstances where: (a) the charged party or the lat-
ter’s counsel or representative is cooperating in the Re-
gion’s investigation; (b) counsel or representative
makes the individual to be interviewed available with
reasonable promptness so as not to delay the investiga-
tion; and (c) during the interview counsel or representa-
tive does not interfere with, hamper, or impede the
Board agent’s investigation. In cases involving indi-
viduals whose supervisory status is unknown, this pol-
icy would not be applicable.
This policy does not preclude the Board agent
from receiving information from a supervisor or
agent of the charged party where the individual
4 According to the Respondent’s attorney, it is his practice never to
provide an affidavit in cases where his client is the charged party.
5 The Respondent’s attorney avers that he did not read the message
left for him until after the affidavit had been taken.
6 The Casehandling Manual provides procedural and operational
guidance to Agency employees in the administration of the Act, and is
not binding authority on the Board or the General Counsel.
335 NLRB No. 47
OPERATING ENGINEERS LOCAL 17 (HERTZ EQUIPMENT RENTAL) 579
comes forward voluntarily, and where it is specifi-
cally indicated that the individual does not wish to
have the charged party’s counsel or representative
present. In those cases in which the witness does not
object to the presence of counsel, the appointment
for an interview should be made and counsel advised
of the date, time, and place of the interview.

As discussed above, the Board agent initiated contact
with Franz at a time when no notice of appearance had
been received. Following the entry of appearance, the
Board agent promptly asked Franz if he wished to go
forward with the affidavit. Franz voluntarily agreed to
proceed with the interview. The Board agent also
promptly contacted the Respondent’s attorney to advise
him of the appointment. The fact that the Respondent’s
attorney delayed in obtaining his telephone messages
until after the affidavit had been secured does not, in
these circumstances, establish that the Region acted im-
properly. For all of the foregoing reasons, in addition to
those stated by the judge in his decision, we find that the
investigation of this charge complied with the principles
set forth above, and we deny the Respondent’s motion to
dismiss the complaint.7
Our colleague asserts that the Board agent engaged in
misconduct by proceeding with the Franz affidavit in the
circumstances of this case. According to the concurrence,
the Board agent should have delayed further efforts to
take the affidavit until he had made personal contact with
the Respondent’s counsel, once he had received notice of
the entry of appearance. Our colleague also asserts that
Franz did not come forward voluntarily to provide his
affidavit. Instead “the Board agent solicited his participa-
tion at a time when the Board agent knew that Franz’s
employer was represented by counsel.” We respectfully
disagree.
As an initial matter, we stress that there is no evidence
that the Board agent solicited Franz to go forward with
the affidavit after the Respondent’s counsel had entered a
notice of appearance. To the contrary, it appears that the

7 We additionally affirm the judge’s ruling quashing subpoenas
served by the Respondent on the Regional Director and other Board
agents in support of its contention that the complaint should be dis-
missed. The General Counsel has denied the Respondent’s request for
authorization to allow the subpoenaed individuals to testify and provide
the requested documents. The Respondent has presented no evidence
tending to contradict the facts set forth above, and has failed to identify
any purpose to be served by these subpoenas other than a generalized
desire to “complete the record.” In these circumstances, we find that the
subpoenas were properly quashed.
Chairman Hurtgen agrees with the quashing of the Respondent’s
subpoenas. However, he does not rely on the General Counsel’s failure
to consent. Instead, he relies upon the fact that the Respondent failed to
set forth the specific purpose of the subpoenas.
Board agent advised Franz of the entry of appearance,
and asked him if he wished to proceed with the previ-
ously scheduled appointment to take his affidavit. After
being advised of the circumstances, Franz agreed to pro-
ceed with the previously scheduled appointment. Our
colleague does not appear to contend that the Board
agent’s initial contact with Franz, before the Respon-
dent’s counsel had entered an appearance, in which the
appointment to take Franz’s affidavit was made, was
improper. In our view, the concurrence fails to give the
proper weight to the fact that the Board agent’s initial
contact with Franz was indisputably entirely proper.
More fundamentally, we do not agree with our col-
league’s suggestion that, regardless of Franz’ willingness
to be interviewed, the Board agent had a duty not to pro-
ceed until he had made personal contact with the Re-
spondent’s counsel, and afforded counsel the opportunity
to be present. The facts show that the Board agent called
the Respondent’s attorney on December 17, 1999, at
11:43 a.m., to advise him of the appointment. The Re-
spondent’s attorney inexplicably did not retrieve the
message until December 20, after the interview earlier
that day. Thus, if the Respondent’s attorney had not been
tardy in returning the message, he could have been pre-
sent at the interview.
In any event, Section 10056.6 of the Board’s Casehan-
dling Manual, which is quoted in full above, is clear that,
while counsel is normally to be notified of interviews of
supervisors or agents conducted in the course of investi-
gating a charge, and given an opportunity to be present,
the witness ultimately has the right to be interviewed,
without the presence of counsel, if that is the witness’s
desire. Our colleague’s proposed standard is inconsistent
with the Board’s Casehandling Manual, and we decline
to fault the Board agent for failing to act in a manner
consistent with the views set forth in the concurrence.
Our colleague also asserts that our finding that there
was no misconduct in this case is somehow foreclosed by
the Board’s March 1, 2000 Order denying the Respon-
dent’s motion to dismiss the complaint and transfer the
case to another Region. We do not agree. The Board’s
Order denied the Respondent’s motion, “without preju-
dice to renewal of the motion before the Administrative
Law Judge, who may also entertain any request that tes-
timony or evidence from Gerald Franz be limited or ex-
cluded, or that the use of the affidavit of Gerald Franz be
limited or excluded.”
Contrary to our colleague, there is absolutely nothing in
the Board’s Order to suggest that the Board had “recog-
nized that the Board agent’s conduct might have been im-
proper, but concluded that dismissal of the complaint was
not the proper remedy.” Nor does the Order indicate, as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 580
our colleague suggests, that the Board had “suggested that
a remedy might only be appropriate if the Respondent
could show that it was somehow prejudiced at the hearing
because of the actions of the Board agent.” Rather, the
Board’s Order, by its express terms, referred the entire
matter, including the motion to dismiss the complaint, to
the judge assigned to the case, and reserved any ruling by
the Board until the issuance of the judge’s final decision in
this case, upon the filing of exceptions by any party. We
decline to read into the Board’s prior Order in this case the
interpretation placed upon it by our colleague. Because
that Order effectively deferred any decision on the merits
of the Respondent’s motion, we also do not agree that it
places any limitation, as “law of the case,” on our disposi-
tion of the matter in this decision.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Interna-
tional Union of Operating Engineers, Local Union No.
17, Tonawanda, New York, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post at
its business offices and meeting halls copies of the at-
tached notice marked “Appendix.”13 Copies of the notice,
on forms provided by the Regional Director for Region
3, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
and members are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.”
2. Add the following new paragraph 2(b) and reletter
the subsequent paragraph.
“(b) Sign and return to the Regional Director sufficient
copies of the notice for posting by Hertz Equipment
Rental Corporation, if willing, at all places where notices
to employees are customarily posted.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER WALSH, concurring.
I agree with the result reached by my colleagues in this
case. Contrary to my colleagues, however, I conclude
that the Board agent did not follow proper procedure in
interviewing the Respondent’s agent without the pres-
ence of his counsel. In my view, once the Board agent
had ascertained that the Respondent was represented by
counsel, he should not have gone forward with the inter-
view until he made personal contact with the Respon-
dent’s counsel, so that he could be assured that the coun-
sel knew that the interview was going to take place and
would have an opportunity to be present. In the circum-
stances of this case, Franz’s agreement to go forward
with the interview at the Board agent’s request cannot
truly be considered the equivalent of an individual “com-
ing forward voluntarily” and “specifically indicating”
that he does not wish to have the Union’s counsel pre-
sent. Franz did not ‘come forward voluntarily.’ In fact,
the Board agent initially solicited his participation in the
interview, and later contacted him to ascertain if he still
wished to have the interview after his counsel had en-
tered an appearance. In my view, this is a far cry from a
witness ‘coming forward voluntarily’ to give a statement
knowing that he is an agent of a party that is represented
in the proceeding. Accordingly, as a matter of fundamen-
tal fairness, the Board agent should have waited at least
until he was assured that the counsel knew about the in-
terview before going forward.1
The Respondent previously filed a motion to dismiss
the complaint in this case directly with the Board. On
March 1, 2000, a Board panel, which included Member
Truesdale, denied the motion, “without prejudice to re-
newal of the motion before the Administrative Law
Judge, who may also entertain any request that testimony
or evidence from Gerald Franz be limited or excluded, or
that the use of the affidavit of Gerald Franz be limited or
excluded.” In my view, a fair reading of this Order re-
veals that the Board panel recognized that the Board
agent’s conduct might have been improper, but con-
cluded that dismissal of the complaint may not be the
proper remedy. Instead, the panel suggested that a rem-
edy might only be appropriate if the Respondent could
show that it was somehow prejudiced at the hearing be-
cause of the actions of the Board agent. I consider that
prior ruling to be the law of the case. My colleagues,
however, ascribing no substantive meaning to the ruling
at all, have decided to rule that the Board agent’s actions
were proper. For the reasons stated below, it is my view
(in agreement with the judge) that in fact no prejudice
has been shown. Thus, it is completely unnecessary to

1 My colleagues rely on the fact that the Board agent notified the Re-
spondent’s counsel of the interview on December 17, 1999, and the Re-
spondent’s counsel did not respond until December 20, after the interview
had been conducted. A quick look at a 1999 calendar shows that Decem-
ber 17 was a Friday, and December 20 a Monday, which means that in
fact the Board agent allowed the Respondent’s counsel less than one
business day to respond before proceeding with the interview.
OPERATING ENGINEERS LOCAL 17 (HERTZ EQUIPMENT RENTAL) 581
reach out and rule on whether the Board agent’s conduct
was proper or not. Because my colleagues have con-
cluded that such a ruling is necessary, however, I feel
compelled to set forth my contrary view.
However, I agree with the judge that the Respondent
has not in fact shown that it was prejudiced by the con-
duct of the investigation. No party sought to introduce
Franz’ affidavit, and he was not called as a witness. In
addition, the Respondent has neither contended nor
shown that its decision not to call Franz as a witness was
influenced by the manner in which his affidavit was
taken. Accordingly, solely for these reasons and the rea-
sons stated by the judge, I agree that his decision to deny
the Respondent’s motion was correct.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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 vio-
lated 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 representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT restrain or coerce employees of Hertz
or of any other employer by blocking their ingress to or
egress from Hertz’ Tonawanda, New York facility.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL UNION NO. 17

Rafael Aybar, Esq., for the General Counsel.
Richard D. Furlong, Esq., for the Respondent.
Richard C. Heffern, Esq., for the Charging Party.
DECISION
GEORGE ALEMÁN, Administrative Law Judge. A hearing
in the above matter was held on April 10, 2000, in Buffalo,
New York, pursuant to an unfair labor practice charge filed by
Hertz Equipment Rental Corp. (Hertz) on December 9, 1999,
and issuance of a complaint by the Regional Director for Re-
gion 4 of the National Labor Relations Board (the Board) on
January 21, 2000. The complaint alleges that International Un-
ion of Operating Engineers, Local Union No. 17 (Respondent
or Local 17) violated Section 8(b)(1)(A) of the National Labor
Relations Act (the Act) by impeding “the entrance to and exit
from the employer’s facility by employees and supervisors, in
the presence of employees.” In an answer to the complaint
dated March 14, 2000, the Respondent denies engaging in
unlawful conduct.1
All parties at the hearing were afforded full opportunity to
call and examine witnesses, to submit oral and written evi-
dence, and to argue orally on the record. On the entire record
before me, including my observation of the demeanor of the
witnesses, and after considering briefs filed by the General
Counsel, the Respondent,2 and the Charging Party, I make the
following3

1 The complaint and answer are found in GC Exh. 1.
2 The Respondent has filed a motion to correct the record, claiming
that transcript p. 19, L. 14, which reads, “MR. FURLONG: I respect-
fully accept both decisions from your Honor,” is incorrect in that its
counsel, Mr. Furlong, was not agreeing with, but rather taking excep-
tion to, my rulings denying its motion to dismiss (discussed below) and
granting the General Counsel’s petition to revoke subpoenas duces
tecum and ad testificandum issued by the Respondent to Regional
Director Sandra Dunbar and other Board agents (see R Exhs. 1 and 2).
It asks that the record be corrected to read, “MR. FURLONG: I respect-
fully except both decisions from your Honor . . .” and avers that the
General Counsel and the Charging Party have consented to the correc-
tion. Regarding the latter assertion, I have received nothing either from
the General Counsel or the Charging Party expressing their agreement
with, or lack of opposition to, the Respondent’s motion. Further, I
perceive nothing in the context in which Furlong made his remark to
suggest that the latter was, in fact objecting to my rulings. Indeed, I find
it unlikely that Furlong, whose verbal expression at the hearing was
clear and concise, would have verbalized an exception to my rulings in
the manner described by him. Rather, I find it more likely that if Fur-
long had intended to object to the ruling, the preposition “to” or “from”
would have followed his alleged use of the term “except”, so that his
response to my ruling would have read, “ I respectfully except to (or
from) both decisions from your Honor.” (See, e.g., Furlong’s response
to my ruling at Tr. 124.) In sum, I am not persuaded that the record at p.
19, L. 14 is in error, as claimed by the Respondent and, accordingly,
deny its motion to correct the record.
3 In its brief, the Respondent renews a motion, initially denied without
prejudice by the Board on March 1, 2000, and again denied by me at the
start of the hearing, to dismiss the complaint and to have the unfair labor
practice charge transferred to and reinvestigated by different a regional
office. In support of its motion, it argues that the Regional Director for
Region 3 and her subordinates engaged in a breach of ethics by taking a
sworn affidavit from Local 17 Agent Jerry Franz at a time when Local 17
was represented by legal counsel and without first having obtained the
latter’s consent or approval. I adhere to my ruling denying the motion. In
so doing, I note that the Respondent has made no claim, either at the
hearing or in its brief, that it was somehow prejudiced by the procurement
of Franz’ affidavit without the purported consent of its counsel. Nor do I
find that it was prejudiced in any way in the presentation of its case by
this alleged breach of ethics, for Franz was not called as a witness by
either side, nor was his affidavit or its contents used any point throughout
the hearing. Rather, the General Counsel called just two witnesses in
support of his case, Hertz officials Timothy Welch and Melissa Kwoka,
while the Respondent, for its part, called none. Thus, other the limited
reference made by the Respondent, at the start of the hearing, to the Franz
affidavit in support of its motion to dismiss, the affidavit was never men-
tioned or discussed during the hearing. Therefore, assuming, arguendo,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 582
A. Findings of Fact
1. Jurisdiction
Hertz Equipment Rental Corp., a corporate entity with an of-
fice and place of business at 125 Milens Rd., Tonawanda, New
York, is engaged in the nonretail rental of construction equip-
ment. Annually, Hertz purchases and receives at its Tonawanda
facility goods valued in excess of $50,000 directly from points
located outside the State of New York. The complaint alleges,
the parties agree, and I find, that Hertz is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The parties further agree, and I find, that the Respon-
dent, Local 17, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Factual background
The salient facts in this Case are not in dispute. On October
2, 1998, following a Board-conducted election, Local 17 was
certified as the exclusive collective-bargaining representative of
“all full-time and regular part-time tractor trailer drivers, me-
chanics ‘A’ (including the lead mechanic) and mechanics ‘B’
employed by [Hertz] at its 125 Milens Road, Tonawanda, New
York location.”4 It appears that in or around September 1999,5
the parties were engaged in contract negotiations, and that be-
ginning some time in early September, the Respondent also
engaged in some picketing at the main entrance to the Hertz
facility.6 By letter dated November 9, signed by business repre-
sentative Thomas Freedenberg, Local 17 notified Hertz that it
was engaged in a strike because of Hertz’ use of “persons other
than bargaining unit members” to do their work (GC Exh. 5).
The precise nature and extent of Local 17’s picketing was de-
scribed by Hertz branch manager Welch, and Hertz branch
administrator Kwoka who, as noted, were the only two wit-
nesses called to testify.
Welch became branch manager at the Tonawanda facility in
September. He testified that he first learned about the picketing
at that facility in August, before his arrival, but witnessed the
picketing first hand on his arrival at the facility the Wednesday
after Labor Day, 1999. He recalls that on that date, he observed
Freedenberg, Gerald Franz, and Mark Kirsch, all admitted
agents of Local 17, on the picket line. (Tr. 23, 40.) According
to Welch, Local 17 continued picketing the facility through
early October, ceased at that point, and resumed again on a
daily basis on November 8. He testified that when he arrived to

that the taking of the Franz affidavit somehow amounted to a breach of
ethics, it is patently clear that the Respondent was in no way been preju-
diced by the conduct. Accordingly, for this and other reasons stated at the
hearing, I find no basis for reversing my ruling denying the Respondent’s
motion to dismiss.
4 Excluded from the bargaining unit are all other employees em-
ployed at this location, including salespersons, office clerical employ-
ees, guards and supervisors as defined in the Act (GC Exh. 2). Local 17
was again certified by the Board on November 5, 1999, as exclusive
collective-bargaining representative of the same employee unit follow-
ing an election held pursuant to a decertification petition (GC Exh. 3).
5 All dates are in 1999, unless otherwise indicated.
6 The main entrance is located at the western end of the Hertz facility
(see GC Exh. 4). Another entrance located at the southwestern corner
of the facility was not in use (Tr. 36).
work on the morning of November 8, Local 17 pickets were
walking in a circular motion at the entrance, effectively block-
ing vehicles from entering or leaving, and that after being pre-
vented from entering the facility for about 5 minutes, the pick-
ets, numbering between six to nine, eventually moved away
from the entrance and allowed him to proceed. Welch recalls
that one of the pickets that day was Freedenberg. After entering
the facility, Welch was told by Kwoka that a driver from Hertz’
Albany facility had earlier been prevented from entering the
Tonawanda facility and that the police had been called. The
driver, according to Welch, was then contacted and asked to
return to the Tonawanda facility, receiving assurances that the
police would be called. The driver in fact returned and was
permitted to enter.7
The picketing, according to Welch, typically began around
6–6:30 a.m. each day and lasted, on some days until 11 a.m.,
and on other days to around 2–2:30 in the afternoon, with the
number of pickets dwindling as the day wore on from a high of
around nine in the morning to two pickets by late morning or
early afternoon (Tr. 45-46). Regarding the involvement of Lo-
cal 17’s agents in the picketing, Welch recalls seeing Freeden-
berg, Franz, and Kirsch, the former two more than the latter, on
the picket line at least once a week picketing for a set period of
time, and that Hertz employees Leonard Zilowkowski, Paul
Ziegelhofer, and Dan Shively also took part in the picketing
before reporting for work each day around 6:30-6:55 a.m.
Welch testified that’the ability of employees and drivers to
gain access to the facility during the picketing varied from day
to day and depended on the time of day entry was being at-
tempted and on who happened to be on the picket line at that
particular time. For example, he claims that on some days,
drivers seeking to enter in the morning would have to wait
some 10 minutes before being allowed through the main en-
trance, but that on other days the wait would be only about 5
minutes long. Welch admits that there were times when em-
ployees or drivers had no difficulty entering or leaving the
Hertz facility, such as when the pickets stationed themselves to
the side of the entrance without blocking it, or when they were
inside a nearby trailer. However, he also recalled that there
were times when picketers would allow a driver to enter with-
out interference, only to subsequently prevent their departure
from the facility, and that such departure at times lasted some
20 minutes. He testified that as a general rule, he summoned the
police for assistance when the picketing delays lasted more than
5 minutes.
Welch recalls that on November 9, he called the police after
pickets blocked an outside hauler from entering the facility. He
claims that he called the police some 5 minutes after he first
noticed the hauler trying to enter the facility, and believes the
hauler had already been detained for an extended period of time
before he first observed the incident. This same hauler, Welch
further testified, was also detained for some 40-45 minutes
when he tried to exit the facility, although he admits he did not
personally observe the hauler being prevented from leaving. A
7 Welch admitted not being present the first time the driver sought
entry, but testified he did observe the driver return to the facility and be
allowed to enter with police intervention (Tr. 44).
OPERATING ENGINEERS LOCAL 17 (HERTZ EQUIPMENT RENTAL) 583
similar blocking incident, Welch claims, also occurred on No-
vember 24. On that day, several vehicles, including one he was
driving, tried to exit the facility but were prevented from doing
so by Local 17 pickets. According to Welch, each vehicle that
day was detained for about 5 minutes in what he described was
a “wait your turn” procedure in which each vehicle lined up to
leave would be held up for 5 minutes after the one in front of it
had departed. Welch testified that after being detained for 10
minutes, he called the police. According to Welch, between
November 8 and mid-December, he had to call the police at
least once a day in response to the pickets refusal to allow in-
gress and egress to the facility.
Kwoka testified that she worked for Hertz from April 30,
1998, until leaving “for personal reasons” on February 4, 2000.
(Tr. 105.) She recalls that the Local 17 picketing began some-
time in August, stopped on October 4, and resumed on Novem-
ber 8. Like Welch, Kwoka testified to seeing Freedenberg,
Kirsch, and Franz take part in the picketing, that the picketing
was more intense during the early morning hours, with picket-
ers numbering anywhere from six to nine, but that their num-
bers tapered off to about two or three by late morning. At times,
the pickets, according to Kwoka, carried picket signs stating
that Hertz was unfair to organized labor.8 Kwoka claims that
when vehicles approached seeking entry, the pickets would
circle in front of the vehicle for about 5 minutes to prevent its
entry and would thereafter allow it to proceed. Like Welch, she
too recalled that employees Zilokowski, Ziegelhofer, and Shiv-
ley took part in the picketing early in the morning before work-
ing hours. Regarding the length of time that vehicles were de-
tained, Kwoka said it varied “anywhere from 5 to 7 minutes,
sometime longer.”
Kwoka testified that on November 8, she observed the Al-
bany driver attempt to enter the facility and leave when he was
denied entry by the pickets. The driver then called the Hertz
facility from a local pay phone to explain the problem, and
Kwoka, who took the call, advised him to stay put, that she was
going to call the police. When the police arrived, the driver was
permitted to enter the facility, load his vehicle, and leave with-
out further incident. Kwoka recalls Freedenberg being on the
picket line that day, and testified to having observed at least
one Local 17 agent present on the picket line on a daily basis.
She also recalled another blocking incident that occurred on
December 2, when some three vehicles were lined up outside
the entrance waiting to get in but were prevented from doing so
by pickets who blocked the entrance for approximately 30-45
minutes. The police were eventually called by Welch.
Kwoka, like Welch, recalls picketing occurring on a daily
basis, and that the police had to be called “probably two to four
times a week” to restrain the pickets in their blocking activity,
testifying that either she or Welch would make the call. She
explained that she was particularly aware of the pickets’ con-
duct because it was “something that I was keeping an eye on
for when the branch manager was not present, to make sure that
everybody was able to come and go as they needed to perform
their job” (Tr. 101). Kwoka also testified, without contradic-
tion, to having been verbally accosted and threatened by a fe-

8 Welch did not recall seeing picketers carrying signs.
male picket as she was returning from lunch one day. Thus, she
testified that after waiting behind a truck that was entering the
facility, Kwoka immediately drove through as the truck en-
tered, at which point the female picket began calling her
“nasty” names. Kwoka avoided a confrontation and simply kept
driving (Tr. 114).
3. Analysis
The complaint, as noted, alleges, and the General Counsel and
Charging Party contend, that the Respondent’s conduct in block-
ing the ingress and egress of vehicles to and from the Hertz facil-
ity during its picketing was coercive and violated Section
8(b)(1)(A) of the Act. The Respondent denies the allegation,9
arguing that if some blocking did occur the conduct did not
amount to restraint or coercion but rather constituted nothing
more than a minor inconvenience lasting at most 5 minutes, a
length of time which the Respondent contends was acquiesced in
by Hertz (R. Br. at 2, 5).10 I find merit in the allegation.
Initially, the record evidence makes clear, and I so find, that
at various times during the picketing that began November 8,
Local 17 pickets intentionally blocked vehicles from entering
or leaving the Hertz facility by positioning themselves between
the vehicles and the entrance to the facility. Both Welch and
Kwoka so testified without contradiction. From a demeanor
standpoint, Welch and Kwoka came across as sincere witnesses
who, I am convinced, testified honestly and truthfully.11 I there-
9 However, the Respondent does not deny that its agents took part in
the picketing. Nor, for that matter, does it deny overall responsibility
for the picketing.
10 Welch testified that when he began working at the Hertz Tona-
wanda facility, he became aware of a “gentlemen’s agreement” be-
tween Local 17 and the local police, acquiesced in by Hertz, which
allowed Local 17 pickets to deny vehicles access to and from the facil-
ity for 5 minutes, but that the police would be called if went beyond 5
minutes (Tr. 86–87). The Respondent contends on brief that under this
agreement, pickets were allowed to delay each vehicle seeking to enter
or exit the Hertz facility for 5 minutes. I find nothing in Welch’s testi-
mony to support the Respondent’s contention. Rather, Welch testified
only that the pickets were allowed to block the entrance for 5 minutes,
and made no reference to a “five-minute per car” delay period.
11 During its cross-examination of Kwoka, the Respondent sought to
question her on whether she had ever been accused of stealing from
Hertz. I sustained the General Counsel’s objection to this line of ques-
tioning. The Respondent on brief contends that it should have been
allowed to inquire into Kwoka’s purported prior bad conduct arguing
that such questions are permissible under Federal Rules of Evidence §
608(b) for purposes of attacking her credibility and establishing her
lack of truthfulness. I disagree. Rule § 608(b) expressly prohibits the
use of “extrinsic” evidence of a witness’ conduct (except for certain
types of criminal convictions) to impeach the witness, but permits
inquiry into such conduct if, in the discretion of the court, such conduct
is probative of truthfulness or untruthfulness. See, U.S. v. Morrison, 98
F.3d 619, 628 (D.C. Cir. 1996); Ponderosa Granite Co., 267 NLRB
212 (1983). Here, the mere fact that Kwoka may have been “accused”
of stealing does not, in my view, establish a predisposition on her part
for untruthfulness. Saddle West Restaurant & Casino, 269 NLRB 1027,
1036 (1984). Kwoka, in any event, implicitly denied having been ter-
minated for misconduct when she testified that she left Hertz’ employ
for “personal reasons.” The Respondent was therefore precluded by her
denial from cross-examining her further on the subject. Bronx Metal
Polishing Co., 276 NLRB 299, 303 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 584
fore credit their mutually corroborative claim of having person-
ally observed on numerous occasions Local 17 pickets blocking
the ingress and egress of vehicles to and from the Hertz facility,
and their further assertion that the delays caused by the pickets’
actions at times extended from 30 to 45 minutes. I reject in this
regard the Respondent’s contrary claim that whatever blocking
may have occurred only lasted for no more than 5 minutes, for
it has presented no evidence whatsoever to support its position
or to contradict Welch’s and Kwoka’s account. Thus, even if I
were to agree, which I do not, with the Respondent’s conten-
tion, on brief (p. 5), that Hertz “acquiesced in the five (5) min-
ute per car delay protocol,” Welch’s and Kwoka’s credited
testimony, that vehicles at times remained blocked for 30–45
minutes and that the police were often called to intervene,
makes clear that Local 17 had not been complying with said
“protocol.” The Respondent, it should be noted, offered no
evidence to refute Welch’s and Kwoka’s claim that the police
were called on numerous occasions to clear the entrance of
pickets so as to enable vehicles to proceed.
In sum, I find, in agreement with the General Counsel and
the Charging Party, that during the picketing of the Hertz facil-
ity that began November 8, Local 17’s pickets physically
blocked vehicles driven by Hertz employees and clients from
entering or leaving the Hertz facility for periods ranging from
under 5 minutes to between 30–45 minutes, and that on numer-
ous such occasions access to and from the facility occurred
only after police were called to intervene. The Board has long
held that the blocking of ingress to and egress from an em-
ployer’s facility constitutes coercive conduct violative of Sec-
tion 8(b)(1)(A) of the Act. Tube Craft, 287 NLRB 41, 493
(1987); Longshoremen ILA Local 1291 (Trailer Marine), 266
NLRB 1204 (1983). The Respondent here, as noted, suggests
that the brief blocking by pickets of vehicles trying to enter or
leave the Hertz facility were simply “low level confrontations”
amounting to nothing more than an “annoyance or inconven-
ience” that does not qualify as, or fit the description of, restraint
and coercion under Section 8(b)(1)(A). I disagree for, as found
above, the blocking of vehicles at times lasted between 30–45
minutes. The Board in any event has held that the blocking of
vehicles, even for a short period of time and, as was the case
here, until broken up by police to allow entrance or exit, is
likewise coercive and violative of Section 8(b)(1)(A). See Sheet
Metal Workers Local 19 (Delcard Associates), 316 NLRB 426,
431 (1995), Big Horn Coal, 309 NLRB 255, 258 (1992), and
Carpenters (Reeves, Inc.), 281 NLRB 493, 498 (1986), citing to
Iron Workers Local 455 (Stokvis Multi-Ton), 243 NLRB 340
(1979). As pointed out by the Board in Delcard supra, a union
cannot “arrogate to itself the right to determine when and under
what conditions employees could pass through its picket lines.”
Accordingly, I find that, as alleged in the complaint, the Re-
spondent’s conduct here in blocking vehicles seeking to enter
and leave the Hertz facility was indeed coercive and violated
Section 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. The Charging Party, Hertz Equipment Rental Corp., is an
employer engaged in commerce with the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondent, International Union of Operating Engi-
neers, Local Union No. 17, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By blocking ingress and egress to the Hertz facility, the
Respondent has engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(b)(1)(A) and Sec-
tion 2(6) and (7) of the Act.
4. The above unfair labor practice has a close, intimate, and
adverse effect on the free flow of commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, 1 find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, the Respondent shall be
ordered to cease and desist from blocking vehicles seeking to
enter or exit the Hertz facility in Tonawanda, New York, and to
post an appropriate notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, International Union of Operating Engi-
neers, Local Union No. 17, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Blocking vehicles seeking to enter or leave the Hertz
Equipment Rental Corp. facility in Tonawanda, New York.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.,
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its of-
fice in West Seneca, New York, copies of the attached notice
marked “Appendix.”13 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees and members are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
13 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
OPERATING ENGINEERS LOCAL 17 (HERTZ EQUIPMENT RENTAL) 585
notice to all current employees and former employees em-
ployed by the Respondent at any time since November 8, 1999.