PBA Inc.

National Labor Relations Board - Board Decisions

May 31, 1984

270 N.L.R.B. 998 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PBA Incorporated and Teamsters Local No. 115
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 4-CA-11292 and 4-CA-11404
31 May 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 September 1983 Administrative Law
Judge Marion C. Ladwig issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed a brief
in support of the judge's decision.
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, as modified herein, and to adopt the
recommended Order.
1. On 31 July 19802 the Respondent's employees
struck for union recognition and to protest the Re-
spondent's unfair labor practices committed during
the previous week. The judge found the strike to
be an unfair labor practice strike from its incep-
tion. 3 As shown by the record, approximately 20
i The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance 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 re-
versing the findings.
We note that it was acceptable for the judge to credit the General
Counsel's witnesses only in part when they testified about the alleged
8(aXI) conduct. The judge did not credit these same witnesses when their
accounts of the strike misconduct incidents differed from the versions
given by the Respondent's witnesses. The trier of fact is not required to
accept the entirety of a witness' testimony, but may believe some and not
all of what a witness says. Brinkman Southeast, 261 NLRB 204 (1982);
Giovanni's, 259 NLRB 233 (1981); Maxwell's Plum, 256 NLRB 211 (1981);
NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950).
We correct the following inadvertent errors in the judge's decision,
which are insufficient to affect our general agreement with the judge's
decision. At sec. II,C,2(a), the record shows that the door was slammed
in a fashion "almost hitting [the driver] in a forceful manner" or "nar-
rowly missed hitting the driver" and not "coming close to crushing the
driver's leg," as found by the judge. At sec. li,C,2(b) and (c), the judge
indicated that Miguel Garcia was the driver and his brother Pedro the
passenger in the vehicle following the Miquon Paper truck. From the
record, it is unclear which of the Garcia brothers was the driver and
which was the passenger, but we find that resolution of their roles is un-
necessary since their very presence in the vehicle and complicity in the
conduct is what is crucial to assessing their behavior as serious miscon-
duct. At sec. II,E, the promises by the Respondent's official, Secretary-
Treasurer Cohen, were made "after" recognition was demanded and
"before" the strike ensued, not in the time frame found by the judge.
a All dates are in 1980 unless otherwise indicated.
3 No exceptions were taken to this finding.
270 NLRB No. 143
out of a total of 24 or 25 employees participated in
the strike, including Rolando Marquez, Pedro
Garcia, Hipolito Perea, and Francisco Quinones.
On various dates in December, these four strikers
each applied for reinstatement at the Respondent's
facility. None was reinstated by the Respondent.
Along with two other strikers, they were refused
reinstatement on the basis of alleged serious strike
misconduct. 4
The judge found that these four strikers actually
engaged in the misbehavior attributed to each by
the Respondent. Since culpability was established,
it is necessary to assess the misbehavior to ascertain
if it was serious enough to deprive the individual
employee of reinstatement. Without citing any
Board precedent, the judge found the misconduct
serious enough to sustain the Respondent's action.
The General Counsel has excepted to the judge's
conclusion that the denial of reinstatement of these
strikers was lawful. We agree with the judge's de-
termination, but for the reasons stated in our recent
decision in Clear Pine Mouldings. 5
In Clear Pine Mouldings we adopted the objec-
tive test as to "whether the misconduct is such
that, under the circumstances existing, it may rea-
sonably tend to coerce or intimidate employees in
the exercise of rights protected under the Act." We
further stated that we would apply an analogous
standard to the assessment of strikers' verbal and
nonverbal conduct against persons who do not
enjoy the protection of Section 7 of the Act.6 Ap-
plying the above principles to the present case, we
find that strikers Marquez, Pedro Garcia, Perea,
and Quinones exceeded the bounds of protected
strike activity. Marquez and Pedro Garcia engaged
in rock throwing at vehicles of nonstriking employ-
ees and company officials. Marquez' rock throwing
was at a stationary vehicle, smashing one of its rear
lights. Pedro Garcia's rock throwing resulted in a
state court conviction of harassment. He also was
involved in a hazardous car-truck chase and, as
either perpetrator or the accomplice, hit a custom-
er's moving truck with a board. Perea and Quin-
ones made various threats of assault while at the
picket line. Perea's threats directed to the Miquon
Paper truckdriver, customer Lynn Stanton, and the
Reno Bar owner clearly had a reasonable tendency
to coerce and intimidate them, regardless of wheth-
er they are employees or nonemployees, within the
standards set forth in Clear Pine Mouldings. In ad-
dition, Perea's threats to the Reno Bar owner were
4 No exceptions were taken to the judge's conclusion that the denial of
reinstatement of the other two strikers was not an unfair labor practice.
Thus, these matters are not on review before the Board.
5 268 NLRB 1046 (1984).
"Id. at 8 fn. 14.
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PBA INC.
accompanied by the throwing of tacks under the
latter's vehicle. Quinones' carrying, waving, and
swinging a baseball bat on different occasions at
customers, management personnel, and nonstriking
employees are sufficient to disqualify him from re-
instatement under Clear Pine Mouldings. Addition-
ally, Quinones' threat to "break [Secretary-Treasur-
er Cohen's] head with a baseball bat" runs afoul of
the Clear Pine Mouldings strictures governing
peaceful picketing.
In view of the foregoing, we find that the Re-
spondent acted lawfully when it denied these strik-
ers reinstatement, and we uphold the judge's dis-
missal of the portion of the complaint relating to
them. 7
2. The judge did find that the Respondent had
committed various unfair labor practices in this
proceeding, but rejected the General Counsel's
contention that these warranted a bargaining order
under NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). The unfair labor practices found were
8(a)(1) violations committed by the Respondent's
foreman and two of its company officials.8 These
unfair labor practices were in the nature of threats
and promises primarily communicated before the
strike commenced. On 22 July, the first day of or-
ganizing at the Respondent's plant, Foreman
Rentas told employee Rodriguez that if he filled
out a union organization card, he would lose his
job because the Company would not accept the
Union. Despite Rentas' warning, Rodriguez signed
a union card that very day at his lunch break, but
was not discharged. By 23 July, 18 of 24 or 25 bar-
gaining unit employees had signed union cards. On
24 July, in a group meeting of the night-shift em-
ployees, Foreman Rentas promised them a wage
increase and other benefits if they rejected the
Union; warned them that the Company would
never sign a contract and that a strike was inevita-
ble; and threatened to close the plant if they struck.
Then, on 30 July, Secretary-Treasurer Cohen
promised several employees a wage increase and
other benefits to induce them not to have the
Union in the plant. About a month into the strike,
in late August, stockholder Brenner promised em-
ployees at the picket line higher wages if they
abandoned the strike and returned to work. None
of the pickets did so, and the strike continued. The
I In reaching this conclusion, we reaffirm our recent position that
"[b]alancing the misconduct of strikers against the seriousness of the em-
ployer's unfair labor practice is inappropriate because it condones mis-
conduct on the part of employees as a response to the employer's unfair
labor practice and indeed makes it part of the remedy protected by the
Act." Clear Pine Mouldings, supra at 11 fn. 25.
For the reasons stated in the Clear Pine Mouldings concurrence,
Member Dennis joins her colleagues in adopting the judge's conclusion
that the Respondent lawfully denied reinstatement to the four strikers.
S No exceptions were taken to these unfair labor practice findings.
judge found that when the Union demanded recog-
nition, it had majority status in the stipulated bar-
gaining unit, but that the Respondent refused to
recognize the Union. The judge found, however,
based on the 8(a)(1) violations alone, no bargaining
order was warranted and any lingering effects from
these violations could be erased by the Board's tra-
ditional remedies. We agree with the judge's con-
clusion that a bargaining order is not appropriate
here. However, we wish to elucidate our reasons
for not issuing a bargaining order.
Determination of the appropriateness of a bar-
gaining order is not based on "automatic formu-
lae"9 involving any set combination or type of
unfair labor practices. Rather, the impact on em-
ployees' choice and the election process is what is
critical. Here we are not faced with a situation
where the respondent's 8(a)(1) conduct is coupled
with any unlawful disciplinary action against any
employee. Moreover, six of the unit employees af-
fected by the threats and promises, about one-
fourth of the unit, have since lawfully been denied
reinstatement because of their strike misconduct.
We conclude that "[w]hile we do not consider the
violations Respondent committed to be trivial, they
are of neither a nature or number indicating 'the
tendency to undermine majority strength and
impede the election process." ' "°
We recognize that threats of plant closure be-
cause of union activity are flagrant interferences
with Section 7 rights and are likely to destroy elec-
tion conditions for a considerable period of time.
See NLRB v. Gissel Packing Co., supra. But, in this
case, significant are the circumstances underlying
the particular threats uttered by Foreman Rentas.
Foreman Rentas' threat of plant closing was condi-
tioned upon the employees' actually striking. The
strike occurred, but no plant closing ever hap-
pened. We think it unlikely that this particular
threat of plant closure, made 3-1/2 years ago and
contingent upon the act of striking, would sustain a
fear that employees would lose employment if they
persisted in union activity or would prevent the
holding of a fair election. Equally important in this
regard is the strike participation by over 80 percent
of the Respondent's employees. Such a large em-
ployee turnout weakens any contention that the
Respondent's unlawful conduct had a reasonable
tendency to undermine the Union's strength." In
the same vein, two-thirds of the Respondent's em-
ployees signed union cards on the heels of Fore-
o NLRB v. K & K Gourmet Meats, 640 F.2d 460 (3d Cir. 1981).
'o L M. Berry & Co., 266 NLRB 47 (1983).
l See NLRB v. K & K Gourmet Meats, supra; Red Oaks Nursing Home
v. NLRB, 633 F.2d 503 (7th Cir. 1980), denying enf. in relevant part 241
NLRB 444 (1979).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man Rentas' threat to discharge employee Rodri-
guez if he signed a union card. There is no evi-
dence that Rodriguez communicated this threat to
other employees. Even if Rodriguez had done so,
the large number of card signers indicates, if any-
thing, that the employees chose to exercise their
Section 7 rights in disregard of Rentas' threat. 12
In concluding that a bargaining order is inappro-
priate here, we have considered the extensiveness
of the Respondent's unfair labor practices and the
likelihood of their recurrence in the future. We
find that the Respondent's unlawful conduct, i.e.,
illegal threats and promises, was confined to a
short time span, had no lingering effect on the em-
ployees' exercise of their Section 7 rights or their
continuing their support for the Union, and was in
the circumstances unlikely to be repeated.
For all the above reasons, we find that a bargain-
ing order is inappropriate. The 8(a)(1) violations
can be adequately remedied by a cease-and-desist
order and a posted Board notice.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, PBA Incor-
porated, Pennsauken, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
"2 Red Oaks Nursing Home v. NLRB, supra.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge.
These cases were tried at Philadelphia, Pennsylvania,
September 13-15, 1982. The charges were filed by the
Union August 1 and September 9, 19801 (amended April
8 and 10, 1981); a complaint was issued September 19;
and a consolidated complaint was issued October 31 and
amended July 7, 1982, and at the trial. Following an un-
succesful strike, during which an injunction was issued in
state court against continuing violence, the Company re-
fused to reinstate six former strikers who were charged
with strike misconduct.
The primary issues are whether the Company, the Re-
spondent, (a) made unlawful threats and promises of ben-
efits to employees, causing an unfair labor practice strike,
(b) refused to reinstate and drop criminal charges against
the six former strikers, (c) conditioned reinstatement on
the employees' abandoning their union support, and (d)
unlawfully refused to bargain while preventing a fair
election, necessitating a bargaining order, in violation of
I All dates are in 1980 unless otherwise indicated.
Section 8(a)(l), (3), and (5) of the National Labor Rela-
tions Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, the Company, and
the Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a Pennsylvania corporation, recuts and
wholesales paper tape at its facility in Pennsauken, New
Jersey, where it annually receives materials valued over
$50,000 directly from outside the State. The Company
admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Threats and Promises of Benefits
By the time of the night shift on July 22, the first day
of the union organizing at the plant, Night Shift Fore-
man Miguel Rentas was already aware that union author-
ization cards were being signed. Machine operator Juan
Rodriguez was warming up his machine at the beginnng
of the shift when, as Rodriguez credibly testified, Rentas
"told me that if I filled out the card, I was going to lose
my job . . . that the company was not going to agree
with the union, it was not going to accept the union."
(Tr. 282-283.) Despite this warning, Rodriguez later
signed a card when machine operator Hipolito Perea
gave him one in the cafeteria at the lunchbreak. (Tr.
282.) (Rentas was present in the cafeteria at the time.
Perea did not ask him to sign a card (Tr. 293).)
About 4:15 at the beginning of the night shift 2 days
later, July 24 (after the Union made its first request for
recognition earlier that day), Foreman Rentas called a
meeting of the night-shift employees. As employee Perea
credibly testified, "Everybody went to the cafeteria, and
then Mike Rentas went to the office, came back," and
told the employees that Secretary-Treasurer Sol Cohen
said if we turned down the union, he would give them a
30-cent wage increase, another week's vacation, and holi-
day pay for their birthday. (Tr. 98-99.) When Perea re-
sponded that they would not turn down the Union,
Rentas "got mad . . . walked away, but he came back"
and told the employees that Cohen said that he was
never going to sign a contract, that that would cause a
strike, and that if they struck, he would close down (Tr.
100, 110).
At a meeting toward the end of the day shift on July
30 (the day before the strike), Sol Cohen himself made a
similar offer to day-shift employees and to arriving night-
shift employees (Tr. 139, 284). As credibly testified by
employee Jose Jimenez, who acted as Cohen's interpret-
er to the Spanish-speaking employees, Cohen "started to
talk by asking us why we didn't give him a chance to
correct some of the complaints" and "asked what some
of our problems were." "I told him the guys were com-
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PBA INC.
plaining about the foremen pushing too much . . . poor
pay . . . three weeks' vacation and some other things."
(Tr. 154.) Cohen offered that, "To not get in the union,"
he would give the employees more money, 3 weeks' va-
cation, and holiday pay for their birthday (Tr. 141). Ji-
menez asked the employees what they wanted to do and
they said they wanted to stay with the Union. (Tr. 155.)
On Friday in August, several weeks after the strike
began, stockholder Peter Brenner went to the picket line
and spoke in English to about five of the strikers. As em-
ployee Perea (who spoke English the best) credibly testi-
fied, Brenner first asked if they were getting ready to
return to work. Perea responded that if Brenner wanted
to sign a contract, they would go back, and Brenner
asked why should he. Brenner then said that if they all
went back to work that Saturday, he would pay them
double for the day and "some extra money under the
table." (Tr. 102, 132.)
The Company's defense was flat denials that these
threats and promises of benefit ever occurred. When
shown the allegations in the complaint referring to him,
Foreman Rentas denied all of them (Tr. 353). Cohen ad-
mitted meeting with some of the employees the day
before the strike, but claimed that he merely told them
that he would take their requests under consideration
(Tr. 728.) Brenner denied any meeting with the strikers
and claimed the allegation in the complaint that he made
them certain promises was "absolutely false" (Tr. 385).
When so testifying, the three company witnesses im-
pressed me as being less than candid, and I discredit the
denials. Although I do not credit some of their testimony
concerning the strike violence, employees Jimenez,
Perea, and Rodriguez impressed me by their demeanor
on the stand as being forthright witnesses when testifying
about these and other matters.
The Company's other defense was that Rentas was not
a foreman, but merely a leader with no supervisory au-
thority. I find that this defense is fabricated.
Rentas worked under President William Carley on the
4:15-12:15 night shift until about 5:30 or 6 p.m. when
Carley customarily went home (Tr. 686), and responsibly
directed the 10 or 12 employees for the rest of the shift.
Although claiming that Rentas was only a leader, Carley
twice referred to him as "foreman" when testifying
about conversations with him ("over the time that he
was a foreman" and "Over the entire period that he was
foreman") (Tr. 687.) Even though machine operator
Perea was being paid $6.35 an hour (20 cents more than
Rentas (Tr. 61, 719)) when transferred to the night shift,
Rentas told Perea he had to do everything Rentas told
him because Rentas was the foreman (Tr. 65). Carley
also told Perea that Rentas was the night foreman (Tr.
61). Although Carley (who impressed me as being less
than candid when so testifying) claimed that Rentas
merely carried out his orders and consulted him by tele-
phone "Several times a week" (Tr. 685), Rentas recalled
telephoning him "only a couple of times" in the 6-month
period before the strike (Tr. 357-358). The evidence is
clear that the employees considered Rentas to be their
immediate supervisor (Tr. 277, 293). In fact, the belief
that Night-Shift Foreman Rentas "was ordering us too
much things to do" was a deciding factor in the employ-
ees' decision to seek union representation (Tr. 69). I find
that Rentas possessed and exercised the authority to re-
sponsibly direct the night-shift employees and that he
was a supervisor.
Having rejected the Company's defenses, I find that
(a) about July 22, the Company acting through Foreman
Rentas made at least an implied threat to close the facili-
ty, telling employee Juan Rodriguez that if he filled out
a union organization card, he would lose his job because
the Company would not accept the Union; (b) that on
July 24, the Company acting through Foreman Rentas
(1) promised the employees a wage increase and other
benefits if they rejected the Union, (2) warned that the
Company would never sign a contract and that a strike
was inevitable, and (3) threatened to close the plant if
the employees went on strike; (c) on July 30, the Compa-
ny through Secretary-Treasurer Cohen promised the em-
ployees a wage increase and other benefits to induce
them not to have the Union in the plant; and (d) in late
August, the Company acting through stockholder Bren-
ner promised employees at the picket line higher wages
to induce them to abandon the strike and return to work.
I find that each of these statements tended to coerce the
employees in the exercise of their Section 7 rights and
violated Section 8(aXl) of the Act.
B. Unfair Labor Practice Strike
By July 23, 18 of the 24 or 25 bargaining unit employ-
ees had signed union authorization cards. The following
day, union representatives appeared at the plant and re-
quested union recognition. Secretary-Treasurer Cohen
refused to sign a recognition agreement, stating he
wanted time to talk to his lawyer. Union Representative
Joseph Yeoman told him that was no problem, "we'll be
back in a few days to give you a chance to get hold of
your lawyer." (Tr. 27.)
That same evening, July 24, Foreman Rentas held the
meeting of night-shift employees, informing them what
Cohen said about a wage increase and benefits if they
turned down the Union and about never signing a con-
tract, causing a strike, and closing down if they struck.
Then, toward the end of the day shift on July 30, Cohen
himself held an employee meeting and offered employees
a wage increase and other benefits not to have the Union
in the plant.
The next day, July 31, union representatives returned
to the plant. They refused to talk about bargaining de-
mands until Cohen signed the recognition agreement,
and Cohen stated, "I talked to my lawyer, and I can't
sign the agreement." Union Representative Yeoman re-
sponded that "we'd have to go out and talk to the em-
ployees, and . . . some action may be taken" because
"all we recognize you're doing now is just stalling for
time so that you can reduce the majority to a minority
. . .you have been out threatening employees and prom-
ising them benefits." (Tr. 29-30.)
In a meeting outside the plant, as Representative
Yeoman credibly testified, he explained to the employees
what had happened and asked them whether they
wanted to give Cohen "a few more days to see if he
would come around" or to set up a picket line immedi-
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ately. "They said, no, we don't want to wait because
. . . the company has [been] putting pressure on us, and
have been trying to buy some guys off and promising us
benefits . . . if we get rid of the union . . . we don't
want to wait, we want to stay together." They went
across the street, made signs reading, "Teamsters Local
115 on strike, PBA Company, unfair labor practice," and
began picketing. (Tr. 31-33.)
Thus, between the first and second times the Union
sought recognition, a foreman and a top official of the
Company had attempted to undercut the Union's majori-
ty by making threats and promises. When the Company
refused the second time to grant recognition, the Union
accused the Company of "just stalling for time" while
threatening employees and promising them benefits, ne-
cessitating some action. Then when the Union asked the
employees if they wanted to give the Company "a few
more days to see if [Secretary-Treasurer Cohen] would
come around," they answered no because the Company
was "trying to buy some guys off and promising us bene-
fits" to "get rid of the union ... we don't want to wait,
we want to stay together." The employees went on
strike and began picketing with signs protesting the
unfair labor practices.
An unfair labor practice strike is one that is caused in
whole or in part by an unfair labor practice. Tufts Bros.
Inc., 235 NLRB 808, 810 (1978). I find that the employ-
ees were striking not only for union recognition but also
to stop the Company's unlawful attempts to undercut the
Union's support. I therefore find that the Company's un-
lawful conduct constituted a contributing cause of the
strike and that the strike was an unfair labor practice
strike from its inception.
C. Refusal to Reinstate and Drop Charges
1. Conflicts in testimony
Despite the conflicts in the testimony, the evidence is
clear that (a) the Union did not have a policy requiring
its striking supporters to maintain a lawful, peaceful
picket line (one or more union representatives sometimes
being present when acts of violence were occurring), (b)
arrests were made before and even after the strike vio-
lence was enjoined in state court, and (c) all six of the
former strikers whom the Company refused to reinstate
were convicted April 29, 1981, of criminal charges,
given a suspended $100 fine, and assessed $25 in court
costs on each charge.
The Company contends that there were repeated and
continuing acts of misconduct and violence throughout
the strike and that it refused to reinstate the six striking
employees because of their violence and unlawful picket-
line conduct against the Company and its management
and against other employees, customers, and innocent
parties.
The General Counsel contends that the company wit-
nesses "gave very unreliable testimony," which was em-
bellished concerning various alleged incidents and which
at times "appeared to be contrived." He contends that
"the six named discriminatees did not engage in these in-
cidents." He argues that, even if they did, none of the
incidents "rise to the level of serious misconduct" that
would preclude reinstatement-the alleged conduct
being merely "impulsive," minor misbehavior "that can
be expected on a picket line during the course of a
lengthy and tense strike." Southern Florida Hotel, 245
NLRB 561, 564 (1979). The Union contends that the
Company's evidence is incredible at best and that the re-
buttal testimony should be credited.
Although I agree with the General Counsel that some
of the Company's testimony appears to be embellished
and contrived at times, I find that some of the inconsist-
encies resulted from faulty memory caused by the 2-year
lapse of of time before the trial. After weighing all the
evidence (and disregarding the apparently untrustworthy
testimony of administrative assistant Andrea Novin), I
conclude despite the denials that credible evidence sup-
ports the following
2. Findings of strike misconduct
a. Rolando Marquez
On August I Marquez was in a group of strikers who
attempted to prevent a Miquon Paper driver from pick-
ing up an order. After the driver succeeded in opening
the truck's trailer door to load the order, Marquez tried
to slam the door closed, coming close to crushing the
driver's leg (although the driver escaped injury). (Tr.
390, 756.)
Later the same day, Marquez and other strikers fright-
ened customer Jerry Udell away, preventing him from
picking up an order. An 8-year-old girl was with Udell.
As striker Hipolito Perea (another alleged discriminatee)
was shouting, "You ain't getting no fucking paper. Get
that fucking car out of here," Marquez was pounding his
fist on the fender, near the girl. (Tr. 761-764.)
On August 13, Craig Brenner and Peter Carley (sons
of stockholders) were leaving the plant in stockholder
Peter Brenner's car. Marquez threw rocks at the car,
smashing one of the rear lights. (Tr. 400-402.)
On August 21, Marquez and Miguel Garcia (another
alleged discriminatee) were arrested and charged with
harassment when they pressed against the front doors of
the plant and refused President Carley's repeated de-
mands that they leave so he could go home. Both were
convicted of the charge.
b. Miguel Garcia
On August 1, Miguel Garcia was present when Mar-
quez attempted to slam the door closed on the Miquon
Paper truck. After the truck was loaded and as the
driver began driving away, Miguel Garcia followed in
his car. He drove alongside the truck while Pedro
Garcia (another alleged discriminatee) was leaning out
the right window of the car and striking the truck with a
board. (Tr. 392-393.)
Miguel Garcia was with strikers Perea and Marquez
when they accosted customer Jerry Udell later the same
day and prevented him from picking up an order. (Tr.
761-764.)
On August 6, Miguel Garcia and striker Perea threw
rocks at a rental truck that stockholder Brenner and a se-
curity guard were using to make a delivery. (Tr. 399.)
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PBA INC.
On August 21, Miguel Garcia was arrested along with
striker Marquez when they pressed against the front
doors of the plant and refused President Carley's repeat-
ed demands that they leave. Both' of them were convict-
ed of harassing Carley.
On September 5, as two customers were picking up an
order, Miguel Garcia threw a rock at their parked car
and shattered the windshield. (Tr. 787-793.)
Also on September 5, Miguel Garcia was charged
with criminal trespass and later convicted. (R. Exh. 16.)
c. Pedro Garcia
On August 1, after being present with Marquez and
Miguel Garcia when Marquez attempted to slam the
door closed on the Miquon Paper truck, Pedro Garcia
followed the truck in Miguel Garcia's car, leaned out the
car window, and repeatedly struck the truck with a
board. (Tr. 393-394.)
Sometime in early August, Pedro Garcia threw a rock
that hit the back of the van truck being driven by stock-
holder Brenner to make a delivery. (Tr. 641, 646.)
On September 5, after the Company began hiring
strike replacements, the wife of one of the new employ-
ees drove up with children in the car. A guard escorted
three or four of the new employees to the car. As they
were driving away, Pedro Garcia heaved a large rock at
the car. (Tr. 402-403.) He was convicted of harassment,
for "throwing stones at the cars of employees." (R. Exh.
7.)
d. Hipolito Perea
On August 1, when striker Marquez was attempting to
slam the door closed on the Miquon Paper truck, Hipo-
lito Perea was shouting at the driver, "This will be the
most expensive pickup you ever made in your life; we're
going to get you." (Tr. 390.)
Later that day, when striker Marquez was pounding
his fist on the fender of customer Jerry Udell's car, near
the girl riding in the car with Udell, Perea was shouting,
"Get this mother fucking car out of here, pal. You ain't
getting no fucking paper. Get that fucking car out of
here." Udell left without picking up his Order. (Tr. 763-
764.)
On August 4, when bookkeeper Christine Salvatore es-
corted customer Lynn Stanton back through the picket
line to Stanton's car with an order of paper, Perea shout-
ed, "We are on strike. Do not come back to get any
more paper or we will bang up the car the next time we
see it." He told Salvatore, "Chris, do not help any more
customers," and warned, "you will get hurt, you will be
in trouble if you help any more customers." As she was
walking back into the building, Perea repeatedly shouted
to her, "If you help any more customers, we are going
to bang up your car." (Tr. 626-630.)
On August 6, Perea and Miguel Garcia threw rocks at
the truck that stockholder Brenner and a guard used to
make a delivery. (Tr. 399.) Perea then got into a car
driven by a union representative and followed the truck
several miles. They sometimes cut in front of the truck
and also drove alongside the truck, with Perea shouting,
"What's the idea of driving and breaking the strike?"
(Tr. 400.)
Around the middle of August, stockholder Brenner
drove a truck from the plant to make a delivery. Perea
threw a stone and hit the truck. He then went over and
picked up the stone from the street, juggling it in his
hand and laughing with other strikers as he walked back
and sat down with them. (Tr. 656-661.)
On August 19, Perea threw tacks under a car driven
by the owner of Reno's Bar and told the driver, "Don't
you ever dare come the fuck back into this place again."
(Tr. 797.)
On September 5, after Perea arrived in a car driven by
a union representative, a police officer found a folding
knife in the seat of the car where Perea had been sitting
and filed a charge that Perea had possesion of the knife
"with a purpose to use it unlawfully." (R. Exh. 13.) He
was convicted of the downgraded charge of disorderly
conduct. (Tr. 302.)
e. Juan Rodriguez
On August 12, customer Ed Stucker was escorted in
and out of the plant, where he picked up an order. As he
was driving away, Juan Rodriguez ran after his car and
threw two large rocks toward it. The first rock struck
the car in the bumper area, and "a large cheer went up"
from the other strikers. (Tr. 775, 777, 782-783.)
On August 13, Rodriguez hurled a large rock at Secre-
tary-Treasurer Cohen as Cohen was approaching an Ei-
senberg Paper truck with an order of paper. The rock
barely missed Cohen's head and went through the wind-
shield. The police arrested Rodriguez and filed a crimi-
nal charge against him for smashing the windshield. He
was convicted. (Tr. 670, 784-787, R. Exh. 9.)
On September 5, Rodriguez was arrested, and later
convicted, for criminal trespass. (R. Exh. 11.)
f. Francisco Quinones
Quinones, who did not testify, participated in several
incidents, waving a baseball bat (or what appeared to be
a baseball bat).
On August 1, he was carrying the bat in the group of
strikers who attempted to prevent the Miquon Paper
driver from picking up an order (when striker Marquez
tried to slam the trailer door closed) (Tr. 388, 625). On
the same day he was present, waving the bat, when the
group of strikers frightened customer Jerry Udell away
(Tr. 766).
On August 4, Quinones was swinging the bat at book-
keeper Salvatore and customer Lynn Stanton when strik-
er Perea was making threatening remarks to the two
women. (Tr. 629.) Later that day, after Salvatore went
outside the building again and caught Quinones remov-
ing the valve cap from a tire on her car, he began shout-
ing something in Spanish and swinging the bat first at
her and then at her car (although not touching either her
or her car). After another striker told Quinones to leave
her alone, she went back inside, telling Quinones,
"Please, just leave my car alone." He had replaced the
valve cap, but when when she went outside again on the
way home, the tire was fiat. (Tr. 633-636.)
On August 21 Quinones was arrested with striker Mar-
quez and Miguel Garcia and also charged with harassing
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Carley. He was convicted of the offense (R.
Exh. 17).
On September 4, 2 days after the state court injunction
was issued against continuing violence, Secretary-Treas-
urer Cohen insisted that Quinones leave the front lawn,
telling him, "Do you mind? The injunction said you
people . . . must be outside, on the curb line, walking.
You cannot stand in front of our tree pointing your base-
ball bat." Quinones responded, "Fuck off. I'll break your
head with this baseball bat." (Tr. 799.)
Having found that the many instances of continuing
strike violence and other misconduct did occur, contrary
to the denials, I reject the General Counsel's contention
that they were merely "impulsive," minor misbehavior.
Southern Florida Hotel, 245 NLRB at 564. I find instead
that, although the six strikers were engaged in an unfair
labor practice strike, each of them engaged in such seri-
ous misconduct that the Company was warranted in re-
fusing to reinstate them. I therefore find that the 8(a)(1)
and (3) refusal-to-reinstate allegations must be dismissed.
3. Refusal to drop criminal charges
The complaint alleges that about November 14, the
Company refused to request dismissal of the criminal
charges against the six alleged discriminatees "because
they had continued to support the strike." The General
Counsel presented no evidence to support this allegation.
Moreover, even if there had been evidence that the
Company refused a request during the continued strike in
the fall of 1980 to drop the charges against the strikers,
the refusal would not be unlawful merely because the
Company did drop the trespass charge against another
striker, Luis Murria, who was charged by mistake. (Tr.
936.) I therefore find that these 8(aX)() and (3) allegations
must also be dismissed.
D. Unlawful Condition for Reinstatement
The complaint was amended at the trial to allege that
the Company, acting through Secretary-Treasurer
Cohen, conditioned reinstatement of striking employees
on their abandonment of their union support.
All six of the alleged discriminatees applied to Cohen
for reinstatement. Rodriguez made an oral request Sep-
tember 15. (Tr. 285-286.) Marquez made an undated
written request. (G.C. Exh. 8.) Quinones made a written
request December 24. (G.C. Exh. 13.) (It is clear that his
handwritten note, promising "that if I return to work
. . I will not participate in any strike, "was an applica-
tion for reinstatement.) About the same time, Perea also
made a written application. (G.C. Exhs. 6 and 7.) A
short time later, Miguel Garcia submitted his written ap-
plication to Cohen. (Tr. 233, G.C. Exh. 10.) Pedro
Garcia submitted his on December 19. (G.C. Exh. 11.)
The only direct evidence that Cohen conditioned rein-
statement on the employees' abandonment of their union
support was the testimony of Miguel Garcia, who testi-
fied that he "understood" that Cohen (speaking in Eng-
lish) said he would have to give up the Union. (Tr. 238.)
Miguel testified through an interpreter and understands
only "a little bit" of English. (Tr. 232.) I credit Cohen's
denial (Tr. 824) and discredit the testimony that Cohen
told him "to try to leave the union behind" (Tr. 232) or
to "forget about the union." (Tr. 240.)
I find that the General Counsel has failed to prove the
belated allegation and that it must be dismissed.
E. Alleged Unlawful Refusal to Bargain
On July 24, when the Union made a valid demand for
recognition, a majority of the bargaining unit employees
had signed valid union authorization cards. By July 23,
18 of the 24 or 25 employees in the stipulated appropri-
ate bargaining unit ("All full-time and regular part-time
production and maintenance employees, warehousemen
and truckdrivers employed by the Employer at its Penn-
sauken, New Jersey facility; excluding office clericals,
guards and supervisors as defined in the Act") had
signed the union cards. I find it unnecessary to rule
whether Marcellino Colin, the day-shift foreman, was a
supervisor who should be excluded from the unit.
The General Counsel and the Union contend that the
Company's unfair labor practices are sufficiently serious
to warrant the imposition of a bargaining order. NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969). The Company
argues to the contrary, even if the alleged violations are
proved.
As found above, the only unfair labor practices that
the General Counsel has proved are 8(a)(1) violations by
a minor supervisor (threats and promises) and an official
(promises made at a meeting) before the demand for rec-
ognition and strike, and by an official (promise of higher
wages) during the strike. Although these were serious
violations of the employees' Section 7 rights, I find that
the General Counsel has failed to show that the lingering
effects could not be sufficiently erased by the use of tra-
ditional remedies to ensure a fair election.
I therefore find that the General Counsel has failed to
prove that a bargaining order is necessary and that the
Company unlawfully refused to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By threatening to close the plant if the employees
joined the Union or went on strike, by warning that the
Company would never sign a contract and that a strike
was inevitable, and by promising a wage increase and
other benefits to induce employees not to support the
Union, the Company engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(l) and Section 2(6) and (7) of the Act.
2. By promising striking employees higher wages to
induce them to abandon the strike and return to work,
the Company violated Section 8(a)(l).
3. The strike that began July 31, 1980, was an unfair
labor practice strike from its inception.
4. The Company did not violate Section 8(a)(3) and (1)
by refusing to reinstate Miguel Garcia, Pedro Garcia,
Rolando Marquez, Hipolito Perea, Francisco Quinones,
and Juan Rodriguez, or by refusing to request dismissal
of the criminal charges against them.
5. The Company did not condition reinstatement of
striking employees on their abandonment of their union
support.
1004
PBA INC.
6. The General Counsel has failed to prove by a pre-
ponderance of the evidence that the Company unlawful-
ly refused to bargain in violation of Section 8(a)(5) and
(1) and that a bargaining order is necessary to erase the
lingering effects of the Company's unfair labor practices.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, PBA Incorporated, Pennsauken,
New Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening to close the plant if the employees join
a union or go on a strike caused by its refusal to sign a
union contract.
(b) Warning employees that it would never sign a
union contract and that a strike is inevitable.
(c) Promising to increase wages and grant employees
other benefits to induce them not to support a union.
(d) Promising to increase wages to induce employees
to abandon a strike and return to work.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed 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 facility in Pennsauken, New Jersey,
copies of the attached notice marked "Appendix." 3
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
I 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.
3 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
APPENDIX
NOTICE To 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 or-
dered 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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT threaten to close the plant if you join a
union.
WE WILL NOT threaten to close the plant if you go on
a strike caused by our refusal to sign a union contract.
WE WILL NOT warn you that we will never sign a
union contract, causing you to go on strike.
WE WILL NOT promise an increase in wages and other
benefits to induce you not to support a union.
WE WILL NOT promise to increase wages to induce
you to abandon a strike and return to work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
PBA INCORPORATED
1005