Plumbers Local 195 (McCormick-Young Corp.)

National Labor Relations Board - Board Decisions

Dec 9, 1977

233 N.L.R.B. 1087 (N.L.R.B. 1977)

PLUMBERS, LOCAL UNION NO. 195
United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the
United States and Canada, Local Union No. 195,
AFL-CIO and McCormack-Young Corporation.
Case 23-CB-1948
December 9, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
MURPHY AND TRUESDALE
On April 19, 1977, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, General Counsel filed a
brief in support of the Administrative Law Judge's
Decision, and the Charging Party filed a brief in
opposition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found that Respon-
dent violated Section 8(b)(1)(A) of the Act by
engaging in mass picketing and other picket line
misconduct on October 18 and 19, 1976, at the
Anahuac, Texas, jobsite of McCormack-Young
Corporation. Respondent contends that the evidence
fails to establish that Respondent is responsible for
the alleged picket line misconduct. We find merit in
Respondent's contention.
The facts of this case, as more fully set forth by the
Administrative Law Judge, are not materially in
dispute and may be summarized as follows: Com-
mencing in July 1976, McCormack-Young Corpora-
tion was engaged in the construction of a compres-
sor-booster station at Anahuac, Texas. On Friday,
August 13, 1976, Pete Ellis, Respondent's business
manager, and Eddie Wise, an agent of the IBEW,
approached Project Superintendent James B. Watts
at the jobsite. Ellis asked Watts if Local 195 could
organize the job. Watts replied that he had no
authority to grant that request and pointed out that
the job was an "open shop." After a brief discussion,
Ellis told Watts, "We'll be back," and then departed
with Wise.
On Monday through Wednesday, August 16-18,
1976, small groups of pickets from two unions, the
Operating Engineers and the IBEW, appeared at the
site with signs that "informed the public that
233 NLRB No. 172
McCormack and Young had no agreement with" the
respective unions. These pickets at no time blocked
access to the site and there was no work stoppage as
a result of their picketing. No one contends that this
was anything but lawful informational picketing.
Approximately 2 months later, on October 18,
1976, Watts arrived at thejobsite at 7 a.m. and found
approximately 40 people blocking the access road to
the site. Two pickets carried signs which read: "On
Strike Pipefitters Local 195 Against McCormack and
Young Const. for Wages and Conditions." Watts
approached the group in his truck and stopped. One
of the men who crowded around his truck told Watts
that he did not "work here anymore, the job is shut
down." The picket also told Watts that tomorrow
"We'll have 3,000 people out here" and "I'm just the
man who can stop you from going on the job." Watts
asked several pickets to identify themselves, but they
declined to do so.
Watts drove away and called McCormack-Young
to inform them of the picketing. On returning to the
site later that morning he found that the police had
arrived. After some effort the officers parted the
crowd sufficiently to permit Watts, preceded by an
electrical subcontractor's truck, to move through
slowly. As the two vehicles proceeded through the
crowd, the pickets variously shouted and beat on the
trucks with their fists, damaged a small electric
heater taken from the back of the first truck, and
jabbed at Watts with the butt end of a Local 195
picket sign. Except for one office clerical employee,
no employees came through the picket line to the
jobsite that day.
On Tuesday, October 19, Watts arrived at 6 a.m.
and saw more than 100 pickets blocking the access to
the jobsite. The same picket who had spoken to him
on the previous day came over to his truck and told
Watts, "[Y]ou're not going in this morning." As a
highway patrolman tried to part the picket line,
Watts began to drive through. The pickets yelled at
him and beat on his truck; someone struck him
through the open window of his truck, giving him a
black eye; and an exterior rear view mirror was
broken off his truck. Later, the pickets rolled a large
culvert pipe across the access road. No employees
came to work on October 19. At the instruction of
McCormack-Young's president, Watts instructed
employees by telephone to stay off the job on
Wednesday and Thursday.
On Tuesday, the Charging Party obtained a
temporary restraining order. Carrol E. Wilborn, Jr.,
assistant district attorney of Liberty and Chambers
Counties, testified without contradiction that he
observed Pete Ellis being served with the temporary
restraining order in the Chambers County court-
house. In a subsequent discussion at the courthouse,
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William A. Jones, an attorney for the Charging
Party, asked Ellis if he was going to be out there the
next morning and whether or not he could control
his people out there. According to Wilborn's testimo-
ny, Ellis replied that either he or another business
agent, a Mr. Hill,1 would be there and that he "felt
that he could control his people, but he couldn't
speak for any others . .. that were out there."2
On Wednesday morning, October 20, at or about
5:30 a.m., Wilborn went to the jobsite accompanied
by 50-60 police officers. Approximately 180-250
pickets were congregated at the entrance to the
access road, and several (not more than 3) carried
Local 195 picket signs. At 8 a.m. Wilborn addressed
the pickets with a bullhorn and read them the
temporary restraining order. Thereafter all but about
10 or 15 of the pickets left.
Based on the foregoing, the Administrative Law
Judge found that Respondent violated Section
8(b)(1)(A) of the Act. In finding Respondent respon-
sible for the mass picketing and the picket line
misconduct, the Administrative Law Judge relied on
the following factors: (I) the failure of Pete Ellis,
Local 195's business manager, when served with a
temporary restraining order on October 19, 1976, to
disclaim or disavow the conduct proscribed by that
order; (2) Ellis' statements, in a discussion subse-
quent to the service of the order, to the effect that he
or Bruce Hill would be on the picket line the next
day and could control "his" people out there, but
that he could not speak for any others; (3) Ellis, 2
months prior to the picketing, had asked Project
Supervisor James Watts if Local 195 could organize
the job and, on being rebuffed by Watts, told him,
"We'll be back"; (4) the "introduction," at the picket
line on October 20, 1976, of a Local 195 business
agent to Carrol E. Wilborn, Jr., assistant district
attorney for Liberty and Chambers Counties, Texas;
and (5) the use of picket signs of Local 195 at the
picket line. For the reasons set forth below, we find
that these factors are insufficient to establish that
Respondent authorized, ratified, condoned, or is
otherwise responsible for the picketing and the
misconduct of the unidentified pickets on October 18
and 19, 1976.
1 Bruce Hill is Local 195's assistant business manager.
2 The Administrative Law Judge states that Wilborn testified that earlier
in the day. "Tim Byrum, who identified himself as an agent of Respondent.
and Respondents attorney, Alto Watson . . told him that Local 195
wanted to file charges against J. B. Watts for having driven a truck through
the picket line injuring the pickets." Wilborn's testimony, however, shows
that Byrum introduced himself as a member of the Respondent, and Local
195 was not mentioned as the charging party. Furthermore, Wilborn did not
originally testify that Watson identified himself as anything but "an
attorney," and later testified that Watson said he was the lawyer for the
"Pipefitters" only after the Administrative Law Judge posed a series of
leading questions to which the obvious answer was "the Pipefitters."
3 See, e.g.. International Brotherhood of Boilermakers, Iron Ship Builders,
It is, of course, well established that "where a union
authorizes a picket line, it is required to retain
control over the picketing. If a union is unwilling or
unable to take the necessary steps to control its
pickets, it must bear the responsibility for their
misconduct." 3 Similarly, if pickets engage in miscon-
duct in the presence of a union agent, and that agent
fails to disavow that conduct and take corrective
measures, the union may be held responsible. 4 The
burden, of course, is on the General Counsel to come
forward with sufficient evidence to establish either
that the union authorized the picketing or that the
union had knowledge of the misconduct and failed to
disavow it and take corrective action. Absent such
proof, the Board cannot hold a union liable for
picketers' misconduct, however reprehensible. In the
instant case, a careful examination of the record
leads us to conclude that the General Counsel has
not met his burden.
There is no direct evidence that Respondent
authorized the picket line. No one picketing at the
McCormack-Young jobsite or arrested as a result of
incidents connected with that picketing was identi-
fied as a member or agent of Local 195. Nor is there
evidence that Local 195 knew of or condoned the
misconduct of unidentified persons on the picket line
on October 18-19, 1976. As for the presence of Local
195 picket signs on the line, that fact does not
establish that the Respondent authorized or was
aware of their use, considering the physical appear-
ance of such signs. From the record it seems that the
signs had been printed for use in connection with the
picketing of another company on a previous occa-
sion; the name of the other company had been
covered with tape and McCormack-Young's name
had been written over the tape. These "leftover"
signs bearing the name of Local 195, therefore, could
have been carried by Local 195 members or by
anyone, but no evidence shows that they were carried
at the direction of Local 195, 5 or with its knowledge.
Consequently, we find that the Administrative Law
Judge's reliance on these signs is unfounded.
Similarly unconvincing as a reason for holding
Respondent responsible for the picketing and the
picketers' misconduct is Ellis' "We'll be back"
statement, made 2 months prior to the commence-
Blacksmiths, Forgers d Helpers, Local 696 (The Kargard Company), 196
NLRB 645, 647 (1972), followed in Squillacote v. Local 248, Meat & Allied
Food Workers, affiliated with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO), 390 F.Supp. 1180, 1184 (D.C. Wis.,
1975).
4 Laborers' International Union of North America, AFL-CIO, et al. (Apex
Contracting, Inc.), 219 NLRB 142 (1975); International Association of
Machinists and Aerospace Workers, AFL-CIO, and its agent, Juan L.
Maldonado (General Electric Company Circuit Protective Devices Department,
Cariu' Plant Operations, et al.), 189 NLRB 50 (1971).
5 Cf. International Brotherhood of Electrical Workers, Local Union No. 43,
A FL CIO (Executone of Syracuse, Inc.), 172 NLRB 621, 624 (1968).
1088
PLUMBERS, LOCAL UNION NO. 195
ment of the picketing at issue herein. Such a
statement clearly contains no explicit threat to
picket. Furthermore, we note that Local 195 was not
a participant in the informational picketing of
McCormack-Young's jobsite on August 16-18,
which occurred shortly after Ellis made this state-
ment. Surely, had Ellis meant by his comment to
imply that picketing would follow, it is likely that his
union would have joined in that picketing. That
Respondent did not tends to show that no such
implication was intended by Ellis when he stated,
"We'll be back." In any event, that statement is too
ambiguous and removed in time to constitute
evidence that Respondent authorized the picket
line. 6 For example, Ellis' statement could have meant
that he would be back to discuss further the
possibility of organizing the job, or that he would set
up a peaceful, lawful, informational picket line.
When a statement is susceptible to varying interpre-
tations, some indicative of a lawful motive and others
of an unlawful motive, we must construe the
statement, in the absence of other indicia of unlawful
motive, in the light most favorable to the declarant.
Likewise, Ellis' silence when served with the
temporary restraining order is sufficiently ambiguous
as to be an inadequate basis for an inference that
Respondent was responsible for the misconduct
proscribed therein. His silence certainly does not, in
these circumstances, constitute an admission. Simi-
larly, his prospective statement that he could control
his people out there, but that he could not speak for
others, cannot be said to constitute an admission that
Respondent either authorized the picket line or knew
of and condoned the misconduct of unidentified
persons. His statement could just as easily be
construed to mean that he could control any Local
195 members who might be engaged in the picketing,
and that, as far as he was concerned, if anyone
engaged in misconduct subsequent to the court
order, it would be persons other than Local 195
members involved.
Finally, contrary to the Administrative Law
Judge's finding that Wilborn was introduced to a
Local 195 business agent at the picket line on
October 20, Wilborn testified explicitly that a Local
195 "business agent" was "identified to me, not
introduced, Your Honor, he was. . . pointed out to
me by Mr. Jones." Mr. Jones is the attorney for the
Charging Party. However, even if Wilborn were
introduced to a Local 195 agent at the picket line on
October 20, this would not establish that Local 195
authorized the picketing or condoned the picket line
misconduct on prior days. At most, this evidence
would show that Local 195 was seeking to comply
with the restraining order with regard to any of its
members who might be on the picket line thereafter,
as indicated by Ellis the day before.
In view of the foregoing, we find contrary to the
Administrative Law Judge that the evidence does not
establish that Respondent was involved in the
picketing on October 18-19, 1976. As stated above,
there is no evidence that any member or agent of
Local 195 participated in the picketing on those
dates. Indeed none of the pickets was identified.
Likewise absent is any evidence showing that Local
195 expressly authorized the picket line or knew of or
condoned the alleged misconduct. Accordingly, the
inference drawn by the Administrative Law Judge
that Respondent is responsible for the picketing and
misconduct that occurred is unwarranted.
Although the circumstances of this case are
suspicious, we do not decide cases on surmise and
speculation. Much of the conduct shown to have
occurred on this picket line would, of course,
constitute violations of Section 8(b)(IXA) if engaged
in by Local 195 or its agents. However, the General
Counsel has failed to establish by a clear preponder-
ance of all the relevant evidence that Respondent
authorized the picketing or was otherwise responsible
for the picket line misconduct. Accordingly, as the
General Counsel has not established that Respon-
dent violated Section 8(b)(l)(A) of the Act, we will
order that the complaint herein be dismissed in its
entirety.7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
6 See. e.g., N.LRB. v. Patrick Plaza Dodge, Inc., 522 F.2d 804 (C.A. 4.
1975). Puerto Rican Distillers, Inc., 218 NLRB 729 (1975).
7 In finding that Respondent engaged in the unlawful conduct alleged,
the Administrative Law Judge noted that Respondent called no witnesses to
contradict the testimony of the General Counsel's witnesses. However, it is
Respondent's position that the General Counsel failed to show that Local
195 was responsible for the picket line or the alleged misconduct, and,
therefore, the burden of going forward with the evidence never shifted to
Respondent. Inasmuch as we find, in light of the above discussion, that
counsel for the General Counsel failed to come forward with sufficient
evidence to establish a pnnra Jacie violation, the burden never shifted to
Respondent to present rebuttal evidence.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: The
hearing in the above-captioned case was held before me on
January 6, 1977, in the Jefferson County Courthouse,
Beaumont, Texas, pursuant to a complaint and notice of
hearing issued on November 12, 1976, by the Regional
Director of the National Labor Relations Board for Region
23, against United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of the
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States and Canada, Local Union No. 195, AFL-
CIO, herein called Respondent. The complaint alleges
violations of Section 8(b)(1)(A) of the National Labor
Relations Act, as amended, herein called the Act, by
Respondent's mass picketing preventing ingress and egress,
damaging property, and attempting to injure and injuring a
supervisor. The charge giving rise to the complaint was
filed on October 22, 1976, by McCormack-Young Corpora-
tion, herein called McCormack-Young or the Charging
Party.
Respondent's duly filed answer to the complaint admits
the jurisdictional allegations thereof, concedes its own
status as a labor organization within the meaning of
Section 2(5) of the Act, and denies the commission of any
unfair labor practices. Additionally, Respondent admits
that Pete Ellis, business manager, and Bruce Hill, assistant
business manager, of Respondent, at all material times,
were agents of Respondent, acting on its behalf within the
meaning of Section 2(13) of the Act.
On February 18, 1977, all parties filed timely briefs
which have been considered.
Upon the entire record in this case, based on my
observation of the witnesses and the briefs filed herein, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
At all material times herein, McCormack-Young Corpo-
ration has been and is a corporation duly organized under
the laws of the State of Texas, maintaining its principal
office and place of business at 8700 Commerce Park Drive,
Houston, Texas, where it is engaged in the business of
general contracting for industrial construction. During the
past 12 months, a period representative of its business
operations generally, McCormack-Young purchased goods
and materials in an amount in excess of $50,000 from
suppliers located in States of the United States other than
the State of Texas, which goods and materials were shipped
directly to it in the State of Texas. The complaint alleges,
Respondent admits, and I find that McCormack-Young, at
all times, has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded by Respondent that it has been, at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Background
McCormack-Young Corporation is a contractor which,
commencing July 1, 1976, was engaged in the construction
of a compressor-booster station at Anahuac, Texas, near
Interstate Highway 10. The function of the station, built for
the Union Carbide Corporation, is to transmit gas along
interstate pipelines.
I Respondent called no witnesses.
2 The access road provides the sole means of entrance to and exit from
the jobsite.
A. The Testimony of James B. Watts'
The uncontradicted testimony of James B. Watts, the
Charging Party's project superintendent on the job, and the
highest supervisor of the Charging Party at the jobsite, was
that on or about Friday, August 13, 1976, at the jobsite, he
spoke with two union agents: Pete Ellis, business manager
of Respondent, and Eddie Wise, an agent of the Interna-
tional Brotherhood of Electrical Workers. Ellis asked
Watts if Local 195 could organize the job and have its
members work on the job. Watts told him that he had no
authority to make any such commitment; stated that it was
his understanding that this particular job was an open-shop
job; and that he knew of no union contract that the
Company had. Wise asked him how many electricians
would be working on the job and Watts said he did not
know but there would be an electrical subcontractor on the
job. Watts told them the name of the electrical subcontrac-
tor. Ellis told Watts that they were there because Respon-
dent's members were concerned about the job and wanted
Ellis to look into the matter. As the union agents left Watts,
Ellis turned around, pointed his finger at Watts, and said:
"We'll be back."
A picket line was posted at the entrance to the jobsite on
Monday, August 16. The picket signs, as Watts recalled,
stated that they were informational pickets directed against
McCormack and "Jones." The picket sign identified the
picketing union as the Operating Engineers. On the next
day, August 17, the International Brotherhood of Electrical
Workers had pickets present with a picket sign carrying the
name McCormack-Young and informing the public that
McCormack-Young had no agreement with the I.B.E.W.,
or with the Beaumont Building Trades Council. The sign
noted that the picketing union would not stop anyone from
crossing the line. On Wednesday, August 18, 1976, the
Operating Engineers returned to picket. There was no work
stoppage on the 3 days of picketing. On August 16 and 17,
there were two pickets, and on August 18 there were four
pickets. The picketing occurred at the junction of a service
road parallel to Interstate Route 10 and a newly construct-
ed access road running perpendicular to the service road
which led, after some 1,200 feet, to the McCormack-Young
jobsite.
No picketing occurred after August 18 until October 18,
1976.
B. The Picketing of October 18, 19, and 20, 1976
(1) Monday, October 18: Around 7 a.m., October 18,
1976, the usual starting time of Watts as job superinten-
dent, he drove up to the junction of the service road and
the access road leading to the jobsite in his pickup truck.
He saw 40 people at the junction of these two roads
blocking the entrance to the access road to thejobsite. 2 He
stopped his truck and the persons crowded around his
truck. One of them asked him if he worked there, and,
when he told them that he did, the person said, "You don't
work here any longer; the job is shutdown." No names
were given and no indications of representation were given
except that two picket signs were produced. The apparent
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PLUMBERS, LOCAL UNION NO. 195
spokesman refused to give Watts his name or status. The
picket signs read: "On Strike Pipefitters Local 195 Against
McCormack and Young Const. for Wages and Condi-
tions." Watts then drove away and telephoned McCor-
mack-Young. He told company representatives that the
plant was shut down. He then returned to the jobsite about
9:30 a.m., and found two patrol cars of the Texas Highway
Patrol and the Sheriffs Office of Chambers County. He
drove up to the picket line, but saw ahead of him a pickup
truck bearing both the foreman and an employee of the
electrical subcontractor (E.D.G. Company). Watts testified
that normally McCormack-Young had 23 employees on
the jobsite; that the electrical subcontractor had a foreman
and 5 employees on the job; and that the fence builder
subcontractor on the job (Astro Fence) had 4 employees on
the job. In addition to these subcontractors' normal staff of
employees on the job, Watts testified that the Don Love
Company had a separate direct contract with Union
Carbide to install suction and discharge lines at the
compressor station; and that Allied Towers Co. had three
employees on the job erecting foundations for the micro-
wave towers which control operation of the station. He
testified that all such employees had to use the newly
constructed access road in order to reach the jobsite.
In any case, he saw the electrical subcontractor's truck
ahead of him as both of them tried to go through the picket
line. The highway patrol officers at first were unsuccessful
in having the pickets give way, but finally waved the
pickets away to let Watts and the electrical subcontractor's
vehicles through. They got through by about 9:30 a.m.,
more than 2 hours after the usual starting time. Watts
testified that he saw the pickets pound on the electrical
subcontractor's pickup truck with their fists and saw one of
the pickets pull a small electric heater out of the back of the
pickup truck, throw it on the ground, and break it. One of
the police officers arrested the picket as the electrical
subcontractor stopped the truck to pick up the heater. As
Watts followed the electrical subcontractor's pickup truck
through the picket line, a picket repeatedly jabbed the butt
end of the pole holding a picket sign through the open
window at the driver's side of Watts' pickup truck while
Watts was driving. Watts testified that the sign on the pole
was the Local 195 picket sign.
No construction employees of McCormack-Young or the
employees of any of the other subcontractor employers or
direct employers worked on the jobsite that day. Watts
remained until quitting time, 5:30 p.m. He testified that the
only employee who came to work was the McCormack-
Young female office clerical who arrived about an hour
after her usual time, 8:30 a.m. He saw the pickets leave
about I p.m. Watts testified that when he had earlier
returned to the picket line at 9:30 a.m., the pickets asked
him how many employees were on the job and he told them
40. The picket said that there were enough employees to
give work to everyone of the pickets at the jobsite. The
picket also said to Watts: "If you think you've seen
anything today, wait until tomorrow. We'll have 3,000
people out here; and I'm just the man that can stop you
from going on the job." In response to questions from
3 A picture of Watts (G.C. Exh. 8) taken the next day shows a
considerable "shiner" and swelling, closing the eye half way.
Respondent's counsel, Watts testified that he construed (a)
the jabbing of the picket pole through the window in front
of his face while he was driving the pickup truck, (b) the
statement that there would be 3,000 pickets there the next
day, and (c) the picket's statement concerning stopping
Watts from coming on the job as threats of bodily harm.
He also testified that when he went through the picket line
that morning behind the electrical contractor's truck, the
pickets parted on each occasion only when the police asked
the pickets to move; otherwise he could not move forward
without running them over with his pickup truck.
(2) Tuesday, October 19: On the next day, Tuesday,
October 19, 1976, Watts came to the job about an hour
before he usually did, at 6 a.m. He saw more than 100
pickets at the junction of the service and access roads
blocking the entrance to the jobsite. He stopped again. He
rolled down his window and saw the same man who spoke
to him the day before come over to him. He asked the
picket to move away and let him go through and the picket
said: "No, you're not going in this morning." Watts
testified that the highway patrolman who was already there
tried to part the picket line. At that point, Watts drove
slowly through the picket line, all the pickets were yelling at
him and beating on his pickup truck. While Watts was
driving through the picket line with the pickup truck
window half open, a picket punched him in the left eye and
at the same time either that picket or another one, who had
his hand on the outside rearview mirror wrenched it off. As
a result of the punch in the eye, Watts suffered a black
eye.3 At or about 10:30 a.m., Watts observed from his
office window, through binoculars, that the pickets appar-
ently rolled a piece of corrugated iron culvert pipe
measuring about 36 inches in diameter and about 20- to 30-
feet long (weighing about 450 pounds) across the junction
of the two roads effectively blocking the access road. No
employees came to work that day and the pickets stayed
until about 5 p.m. Watts remained until about 5:30 p.m.
On that day, Watts observed three of the above Local 195
picket signs in the hands of the pickets. After Monday
morning (October 18), police and sheriff cars with police in
them were present at all times at the picket line.
(3) Wednesday, October 20: On October 20, no McCor-
mack-Young employees went to work. James McCormack,
president of McCormack-Young, instructed Watts to tell
the employees to stay off the job and not to report on
Wednesday or Thursday, October 20 or 21. Watts did so
instruct the employees. Watts testified that the only vehicle
that he observed (through binoculars) being turned away
from the jobsite entrance was one that approached the
picket line on October 19; but all he saw were the pickets
blocking the entrance across the road, the automobile
approach the picket line, and then turn around and drive
away.
On Friday, October 22, Watts returned to work in
conjunction with about half of the McCormack-Young
employees.
The record shows that the picketing continued until on
or about October 20, 1976, when Respondent was re-
strained from picketing by a temporary restraining order of
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the District Court of Liberty County, Texas, entered at
noon, October 19, 1976 (G.C. Exh. 3).4 The order
restrained mass picketing, insulting language, obstructing
entrances, acts of force and attempts regarding such acts.
C. The Testimony of Robert Williams
Robert Williams, employed since September 1976, by the
Charging Party as a rig welder at the jobsite, testified
without contradiction that on October 18, he came to work
between 6:40 and 7 a.m., drove up to the access road, and
saw 40 to 45 men standing around. He stopped and asked
them what was going on. One of them approached him and
asked him if he worked for McCormack-Young, and, upon
being told that he did, the picket answered: "Correction.
You did. You no longer have a job there. You might as well
look for employment somewhere else." Williams asked by
whose authority the person was speaking and who was
shutting down the job, and the person said: "Local 195 out
of Beaumont has the job shutdown." Another picket
produced a picket sign from the crowd. Williams recalled
the sign said Local 195 on strike against McCormack-
Young for wages and conditions. Williams told the picket
that he thought it was an open-shop job and that the Union
had no authority to shut down the job. The picket said:
"You can either move that truck or you can get it burned
with you in it. You have got a choice." Williams left the
jobsite.
D. The Testimony of Carrol E. Wilborn, Jr.
Wilborn, assistant district attorney of Liberty and
Chambers Counties, Texas, testified that in his office in the
Chambers County (Texas) Courthouse, on the morning of
October 19, he was met by two persons: Tim Byrum, who
identified himself as an agent of Respondent, and Respon-
dent's attorney, Alto Watson. They told him that Local 195
wanted to file charges against J. B. Watts for having driven
a truck through the picket line injuring the pickets. After a
discussion with them regarding presenting the facts to the
grand jury, they left. Wilborn, later that day, saw them with
Pete Ellis together with persons arrested on October 19 due
to events described above.
Later, in the afternoon of that day, he met with two
attorneys for the Charging Party, Pete Ellis, the local
sheriff, and a captain of the Texas department of public
safety in the commissioner's courtroom in the courthouse
of Chambers County. At that time, Pete Ellis, who had
been identified to Wilborn as a business agent "with the
Pipefitters local," was served with the temporary restrain-
ing order (G.C. Exh. 3), supra. In a discussion at that time,
Ellis said that either he or Hill 5 would be out on the picket
line the next day (October 20, 1976). Wilborn asked Ellis
whether there was going "to be any problem the next
morning with the strikers." Charging Party Attorney Jones
asked Ellis if he (Ellis) "could control his people out there."
Ellis said he could but couldn't speak for any others.
Wilborn said he wanted no officers hurt and Ellis said he
believed it would be a "peaceful demonstration."
4 A temporary injunction was thereafter issued on October 21, 1976
(G.C. Exh. 2), on consent. The injunction provided for a limitation of two
pickets at the jobsite entrance.
Ellis did not disclaim knowledge of, or responsibility for,
the picketing at that time or any other time.
Lastly, Wilborn, on October 19, 1976, saw Ellis posting
bail for persons charged with offenses arising out of the
picketing. There was no definition as to who these persons
were, nor was there particularization of the nature of the
offenses.
On the next morning, Wednesday, October 20, at or
about 5:30 a.m., Wilborn went to the jobsite along with 50
to 60 deputy sheriffs, highway patrolmen, and police. He
saw about 180 to 250 persons standing across the entrance
of the access road and he saw picket signs which counsel
for Respondent conceded were signs carrying the legend of
Local 195. Wilborn was introduced by one of the attorneys
of the Charging Party to a Local 195 business agent whose
name he could not recall. At or about 8 a.m., Wilborn
addressed the pickets over a bullhorn and read the
temporary restraining order to them. By about 10 a.m., the
number of pickets had shrunk to about 10 to 15.
E. Discussions and Conclusions
1. Union responsibility
The October 19 discussions between Wilborn, Jones, and
Ellis in the Chambers County courthouse when the
restraining order was served on Ellis indicate that Ellis
acknowledged that at least some of the pickets included
members of Local 195, or at least were under the control of
Local 195. In addition, he said that the next day, either he
or Union Agent Hill would be on the picket line to "control
his people." Moreover, when Ellis, a Local 195 agent, was
served with the order restraining Local 195 from engaging,
inter alia, in mass picketing, blocking entrances, assaulting
persons, etc., he did not suggest a lack of responsibility for
the activities of the pickets or seek to reject the document
as served on an innocent party. In addition, on the next
day, at the picket line, Wilborn was introduced at the
picket line to someone he identified as a Local 195 business
agent. Furthermore, 2 months before, in the August 13,
1976, meeting, Ellis told Watts that he wanted to organize
the job and put union members on it and significantly told
Watts that the Union would be back. Moreover, the only
picket signs, on this record, identified as appearing at the
jobsite on October 18-20, 1976, were picket signs identi-
fying Respondent as the picketing union. Lastly, Respon-
dent at no time attempted to disavow any of the conduct at
the picket line, or repudiate any responsibility, but
according to Wilborn's credited testimony, expressly
accepted responsibility for the pickets. In light of the above
circumstances, I find that there is a preponderance of
evidence showing that agents of Respondent knew of,
failed to disclaim, and accepted responsibility for, and
without objection accepted legal restraint regarding, the
establishment and continuance of the picket line in the
period October 18-20, 1976, and thereafter. Again, it
should be noted, that Respondent called no witnesses. The
testimony and other evidence available from General
Counsel's witnesses clearly demonstrated that Local 195
s As above noted, Pete Ellis is the business manager and Bruce Hill, the
assistant business manager of Respondent, and its agents, within the
meaning of Sec. 2(13) of the Act.
1092
PLUMBERS, LOCAL UNION NO. 195
was present at the picket line and accepted responsibility
for, and failed to disavow the actions there.
Respondent argues that Ellis' statements to Wilborn
indicate the existence of other labor organizations 6 at the
picket line whose pickets may have engaged in the conduct
which I now ascribe to Respondent. Respondent may be
correct in that other labor organizations were present; this,
however, does not absolve Respondent and its agents, who
were present at or who had, indeed, authorized the picket
line, from responsibility for unlawful conduct by others
there. The Board, in considering cases arising under
Section 8(b)()(A), has held that the test for establishing
responsibility for acts on the picket line is that of common
law agency. In Sunset Line & Twine Co., 79 NLRB 1487,
1509 (1948), the Board stated:
A principal may be responsible for the act of his agent
within the scope of the agent's general authority, or the
"scope of his employment" if the agent is a servant,
even though the principal has not specifically autho-
rized or indeed may have specifically forbidden the act
in question. It is enough if the principal actually
empowered the agent to represent him in the general
area within which the agent acted.
It is clear that Respondent, by the above acts and failure to
disclaim, and by its presence on the picket line, ratified, or,
indeed, authorized the conduct of the pickets. It necessarily
follows, therefore, that the conduct of all pickets on the
picket line, even if not specifically authorized, is the
responsibility of Respondent. Local 810, Steel, Metals,
Alloys & Hardware Fabricators & Warehousemen, IBT
(Scales Air Compressor Corp.), 200 NLRB 575 (1972);
Drivers, Salesmen, Warehousemen, Milk Processors, Can-
nery, Dairy Employees and Helpers Union Local No. 695,
IBT (Yellow Cab & Transfer Co.), 221 NLRB 647 (1975). A
labor organization is also under an obligation to properly
police a picket line and maintain order, take corrective
measures to avoid repetition of disorderly acts, or, if it fails
to do so, bear the responsibility of the misconduct of the
pickets. Drivers, Salesmen, Warehousemen, Milk Processors,
Cannery, Dairy Employees and Helpers Union Local 695,
IBT (Tony Pellitteri Trucking Service, Inc.), 174 NLRB 753
(1969); International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers, Local 696 (The
Kargard Co.), 196 NLRB 645 (1972); Vera Ladies Belt &
Novelty Corp., 156 NLRB 291 (1965) and cases cited at 296.
On August 13, Ellis told Watts that Respondent would be
back at the jobsite. On October 19, he promised to have a
union agent on the picket line to "control his people."
There is no need, under such conditions, for other evidence
to show Local 195's express authorization of the picket line.
Mass picketing of that nature, with Local 195 picket signs,
is seldom spontaneous. Local 195 fulfilled its August 13
promise to Watts, and, by the above conduct, acknowl-
edged its responsibility, from the beginning, for the picket
line. Its actual presence on the line is actually only a
further element of proof unnecessary to infer authorization
6 The restraining order and injunction also mentioned other organiza-
tions. The evidence shows that service was on Respondent and fails to show
that other labor organizations were served with such restraint on picketing.
7 No agency relationship may be inferred from Respondent bailing out
and responsibility. 7 Lithographers and Photoengravers Inter-
national Union, AFL-CIO, CLC, Local 223 (Holiday Press,
a Division of Holiday Inns, Inc.), 193 NLRB 11, 19-20
(1971).
2. The acts of restraint and coercion
(a) The blocking of ingress and egress, mass
picketing, and threat of physical harm
The complaint alleges that on or between October 18-20,
1976, by mass picketing, Respondent blocked ingress to
and egress from the jobsite. The unrefuted evidence shows
that on October 18, 40 pickets blocked the access road
entrance way and on October 19, about 200 pickets
blocked the entrance way and placed the 20-foot-long iron
culvert pipe directly across the access road. Respondent
argues that the pickets parted at the direction of the police
and that Watts and the electricians were detained only
momentarily in going through the picket line. The issue, it
seems to me, is not innocently resolved by the fact that the
pickets, at the direction of the police, permitted Watts and
the electrical employees to go through the line. The
question is whether they blocked ingress both by their
intent and by their numbers. That they did. The appear-
ance of the police in the matter was the only method by
which these employees and supervisors were permitted to
enter the plant. Employees seeking ingress to or egress
from the plant are not obliged to call upon police
assistance. The action of the police does not negate
Respondent's unlawful blocking of ingress, even for a few
moments. Lithographers, Local 223 (Holiday Press), supra;
Metal Polishers, Buffers, Platers and Helpers International
Union, Local No. 67 (Alco-Cad Nickel Plating Corporation),
200 NLRB 335 (1972); Local 1150, United Electrical
Workers (Cory Corp.), 84 NLRB 972, 975 (1949).
Similarly, Watts' testimony is fully credited that the
pickets rolled a yard wide, 20-foot-long culvert across that
road's entrance way, effectively blocking the entrance.
Each of these acts of blocking ingress separately violates
Section 8(bX)()(A). The fact that only one car approached
and was turned away from the picket line at that time and
that no cars were seen to be blocked by the culvert, again,
does not negate the fact that the picketing and the culvert
blocked ingress and egress. Watts, the electrical subcon-
tractor foremen, supervisors, and Williams, an employee of
McCormack-Young, and the electrical subcontractor em-
ployee were either blocked or turned away. Williams was
forced away with the threat of being burned along with his
truck.
The Board has long held that the test of misconduct, in
any event, is not whether it succeeds or fails, but whether
the alleged offender engaged in conduct which tends to
interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in the Act. As the court said in
Local 542, International Union of Operating Engineers,
AFL-CIO [Giles & Ransome, Inc.] v. N.LR.B., 328 F.2d
850 (C.A. 3, 1964), cert. denied 379 U.S. 826, 852:
unidentified persons-not described as strikers-because of unidentified
offenses. Cf. Local 695, IBT (Tony Pellitteri), supra at 758, cited by Charging
Party.
1093
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The test of coercion and intimidation is not whether the
misconduct proves effective. The test is whether the
misconduct is such that, under the circumstances
existing, it may reasonably tend to coerce or intimidate
employees in the exercise of rights protected under the
Act.
Furthermore, Section 7 of the Act vests employees with
the right to refrain from joining protected activities, which
right Respondent's conduct here described attempted to
limit. Hoisting Engineers, Local 101 (Herrman's Excavating,
Inc.), 209 NLRB 59 (1974); District 65, Retail, Wholesale &
Department Store Union, AFL-CIO (Eastern Camera &
Photo Corp.), 141 NLRB 991, 995 (1963).
The mass picketing, blocking ingress and egress on
October 18-20, and the erection of the culvert by Local
195, blocking ingress, and the threat to employee Robert
Williams, to burn him in his truck if he did not leave,
constituted separate violations of Section 8(b)(1)(A) of the
Act in blocking ingress and a threat of physical harm.8 I so
find. Local 810, IBT (Scales Air Compressor Corp.), supra.
(b) The damage to electrical subcontractor's property
The complaint alleges that on October 18, 1976,
Respondent damaged property of an employee as he was
entering the jobsite by lifting an electric heater out of the
pickup truck and breaking it by hurling it to the ground.
The evidence of record shows that a picket, indeed, took
the heater out of the back of the electrical subcontractor's
truck, hurled it to the ground, and broke it. The truck held
the foreman and an employee of the electrical subcontrac-
tor. Other pickets beat on the truck with their fists. I
conclude that the unlawful and unprivileged lifting of the
property out of the possession of the electrical subcontrac-
tor's pickup truck, and hurling it to the ground and
breaking it, and beating on the truck were acts of restraint
and coercion in violation of Section 8(b)(1)(A) of the Act,
being performed in the presence of an employee.
(c) Respondent's use of the picket sign pole
I conclude that, on October 18, one of the pickets, as
Watts testified, repeatedly jabbed at Watts through the
window of Watts' moving pickup truck with the butt end of
the Local 195 picket sign pole. I find that this use of the
picket sign pole was a physical attack on Watts and,
although there was no touching or battery in the act at that
time, I find that it cannot on that ground be called trivial or
otherwise acceptable conduct. As an act of violence against
a supervisor on the picket line, it constitutes restraint and
coercion in violation of Section 8(b)(1)(A) of the Act as
alleged. Lithographers, Local 223 (Holiday Press), supra, 193
NLRB at 17.
s The threat to Robert Williams was not separately alleged in the
complaint. Respondent did not object to receipt of the testimony and the
matter was fully litigated at the hearing. Teledyne-Allvac, Inc.. 217 NLRB
886, 889 (1975).
9 Respondent did not object to the proof on this point or move to dismiss
the complaint insofar as the "failure of proof' on this otherwise material
(d) Respondent's beating on Watts' pickup truck
Similarly, the complaint alleges that, on October 18, the
pickets beat on Watts' truck. I find this to be a separate
violation of Section 8(bX(IXA) of the Act because such acts
have a foreseeable intimidating effect. Local 3887, United
Steelworkers of American, AFL-CIO (Stephenson Brick &
Tile Company), 129 NLRB 6, 10(1960).
(e) Respondent's picket punches Watts, removes the
mirror
The complaint alleges that, on October 19, Watts was
punched in the right eye by a picket. Watts' testimony and
the photograph of Watts in evidence are uncontradicted
that the picket punched Watts in the left eye.9 I find that
the picket, on October 19, by striking Watts in the left eye
in the presence of employees and pickets, engaged in an act
of restraint and coercion in violation of Section 8(bXIXA).
Lithographers Local 223 (Holiday Press), supra, 193 NLRB
at 16. The complaint alleges, in addition, that, on October
18, the rearview mirror on Watts' truck was wrenched off.
As Watts credibly testified, this also occurred on October
19. I conclude that by wrenching off the rearview mirror,
thus damaging Watts' truck, Respondent's pickets violated
Section 8(b)(1)(A) of the Act. Lithographers Local 223,
supra. District 20, United Mine Workers of America (Harbert
Construction Corp.), 192 NLRB 565, 566 (1971). These acts
of Respondent chill employees' rights to refrain from
joining in concerted activity. Teamsters and Chauffeurs
Local Union No. 729, etc. (Penntruck Co., Inc.), 189 NLRB
696 (1971).
In the instant case, the presence of nonstriking employ-
ees at the picket line is demonstrated by the presence of
Robert Williams and the electrical subcontractor's employ-
ee. But even in their absence, Respondent's acts of violence
would come to the immediate attention of other nonstrik-
ing employees and coerce and restrain them. Allou
Distributors, Inc., 201 NLRB 47, fn. 4 (1973). Watts'
telephone call to hiS superiors on October 18 and the
response thereto-keeping employees away from work-
could have no other effect. See N.L.R.B. v. Union Nacional
de Trabajadores, 540 F.2d I (C.A. 1, 1976), for a general
exposition on the statutory limits of Section 8(bXI)(A).
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operation de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
allegation was concerned. The issue is not raised in Respondent's brief In
view of these circumstances, I conclude that the complaint, sub silenrio, was
amended to conform to the proof. If Watts' credibility on this point had
been placed in issue, in this case, I would not necessarily have viewed the
discrepancy so lightly.
1094
PLUMBERS, LOCAL UNION NO. 195
V. THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, certain unfair labor practices, it shall be
recommended that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the
policies of the Act. In view of the nature of the unfair labor
practices committed here, the commission by Respondent
of similar and other unfair labor practices may be
anticipated. It shall, therefore, be recommended that
Respondent cease and desist from restraining or coercing
employees in any manner in their rights guaranteed by
Section 7 of the Act.
Upon the basis of the following findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. McCormack-Young Corporation is an employer
within the meaning of Section 2(6) and (7) of the Act.
2. United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local Union No. 195, AFL-CIO,
Respondent herein, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By physically blocking ingress to and egress from the
McCormack-Young jobsite at Anahuac, Texas, by threat-
ening employees of McCormack-Young Corporation and
employees of other employers employed at said jobsite with
physical violence, by punching a McCormack-Young
supervisor, by threatening and assaulting him with a picket
sign; by striking the sides of his truck and the vehicles of
employees of other employers and by breaking equipment
and property of employees and supervisors, all in the
presence of employees of McCormack-Young Corporation
or of employees of other employers employed at the above
jobsite or under conditions where said employees would
soon learn of the events, Respondent Local 195 unlawfully
restrained and coerced employees in violation of Section
8(b)(I)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
1095