Production Workers' Union Local No. 10, Afl-Cio

National Labor Relations Board - Board Decisions

Aug 24, 1987

285 N.L.R.B. 382 (N.L.R.B. 1987)

382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Production Workers' Union Local No. 10 , AFL-CIO
and Block and Company , Inc. Case 13-CB-
11509
24 August 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 14 April 1987 Administrative Law Judge
Lowell Goerlich issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed cross-exceptions, a
supporting brief, and an answering brief.
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 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Production
Workers' Union Local No. 10, AFL-CIO, its offi-
cers, agents, and representatives, shall take the
action set forth in the Order.
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
The Respondent has excepted to the judge 's finding that it admitted
Joe Silvia, Nicky Ehlem, Nancy Mattson, Sidronio Arellano, Maximino
Bonilla, Pascual Delgado, Magdalano Dominguez , Tony Martinez, Clau-
dino Trinidad, and Javier Hernandez were its agents within the meaning
of Sec 2(13) of the Act We find merit in this exception The record and
exhibits reflect that the Respondent amended its answer to the complaint
at the time of the hearing and admitted only the agency status of Gus
Caravelli, Steve Torello, and Gladys Rivenburgh This inadvertent error
by the judge, however, does not affect the result
Julie Hughes, Esq., and Marting Barr, Esq., for the Gener-
al Counsel.
David Matthews, Esq., of Chicago, Illinois , for the Re-
spondent.
Ralph E. Brown, Esq., of Chicago, Illinois, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. The
original charge filed by Block and Company, Inc. was
served on Production Workers' Union Local No. 10,
AFL-CIO (the Respondent or the Union), by certified
mail on 2 October 1986. A complaint and notice of hear-
ing was issued 10 November 1986. The original answer
to the complaint was filed on 21 November 1986 and the
original amended answer to the complaint was filed on 4
February 1987. On 5 February 1987 an amended charge
was filed by Block and Company, Inc. An amendment to
the complaint was allowed at the hearing.
The complaint, as amended among other things, al-
leges that the Respondent during a strike against Block
and Company violated Section 8(b)(1)(A) of the National
Labor Relations Act (the Act).
The case came on for hearing in Chicago, Illinois, on
10 and 11 February 1987. Each party was afforded a full
opportunity to be heard, to call, to examine and cross-
examine witnesses, to argue orally on the record, to
submit proposed findings of fact and conclusions, and to
file briefs. All briefs have been carefully considered.
On the entire record in this case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT,' CONCLUSIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF THE EMPLOYING ENTERPRISE
At all times material , the Employer, a corporation
with an office and place of business in Wheeling, Illinois
(the Employer's facility), has been engaged in the pro-
duction, warehousing, and sale of office supplies. During
the past calendar or fiscal year, a representative period,
the Employer, in the course and conduct of its business
operations described above, sold and shipped from its Il-
linois facility products, goods, and matrerials valued in
excess of $50,000 directly to points outside the State of
Illinois. The Employer is now, and has been at all times
material , an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.2
H. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
First: The Respondent has admitted the following
facts:
At all times material , the following named persons
have occupied the positions set forth opposite their re-
spective names, and are now, and have been at all times
i The facts found here are based on the record as a whole and the
observation of the witnesses The credibility resolutions have been de-
rived from a review of the entire testimonial record and exhibits, with
due regard to the logic of probability, the demeanor of the witnesses, and
the teaching of NLRB v Walton Mfg Co, 369 U S 404, 408 (1962) As
to those witnesses testifying in contradiction to the findings, their testi-
mony has been discredited either as having been in conflict with the testi-
mony of credible witnesses or because it was in and of itself incredible
and unworthy of belief
All testimony has been reviewed and weighed in the light of the entire
record No testimony has been pretermitted
2 Admitted by the Respondent
285 NLRB No. 68
PRODUCTION WORKERS LOCAL 10 (BLOCK & CO.) 383
material , agents of the Respondent within the meaning of
Section 2(13) of the Act:
Steve Torello--Business Agent
Gus Caravelli-Business Agent
Gladys Rivenburgh-Steward
Eusebio Mena-Assistant Steward and Member of
Negotiating Committee
Joe Silvia-Member of Negotiating Committee
Nicky Ehlem-Member of Negotiating Committee
Nancy Mattson-Picket
Sidronio Arellano-Pick el.
Maxirnino Bonilla-Picket
Pascual Delgado-Picket
Magdalano Dominguez- (Picket
Tony Martinez-Picket
Claudino Trinidad-Picket
Javier Hernandez-Picket
Since 8 July 1986, and continuing to date, the Re-
spondent has engaged in, authorized, sanctioned, and/or
directed its members to engage in, a work stoppage and
picketing at or in the vicinity if the Employer's facility.
Second: The evidence offered:
A. The Union Meetings
General Counsel's witness Nancy Flores, a non-
striker,3 testified that prior to the strike she attended a
union meeting at which Torello advised employees:
He said that they could-the people could sneak up
on different truck companies, crossing over and
making delivery and they had cut tires or anything
they care to do, just don't get caught doing it. And
for the people crossing , like myself who came to
work everyday, that once we got off the company
property, they could do as they pleased. Just don't
get caught.
On cross-examination Flores added that Torello told
employees "[t]hat they could sneak up and out the tires
when they were backing in, or they could make threat-
ening phone calls to the companies, but don't get caught
doing it." Mario Flores, Nancy's husband, who also -was
a nonstriker, testified that he did not hear Torello refer
to "slashing tires" at any union meeting.
Steve Torello testified he told employees at a union
meeting that "we didn't want .any violence out there." In
regard to replacements, employees were told "[a]s fox
stopping them from crossing the picket line, all we could
do is talk to them.... [T]he best we could do is talk to
these people, talk to the truck drivers. We cannot phys-
ically stop them from crossing the picket line." Torello
testified that he told employees "we could talk to them
and if they want to cross after we talk to them, they
cross." Torello did not deny, however, that employees
on the picket line called those who crossed the picket
line "scabs," "mother fuckers," and "sons of bitches."
Gladys Rivenburgh, chief steward and strike captain,
testified that the union officials told employees "they
warned us, they didn't want guns, any knives, sticks,
3 The strike was still in progress at the time of the hearing.
eggs or anything done at the strike-on the strike be-
cause we would get thrown off line. They didn't want
any violence whatsoever." Rivenburgh specifically
denied that she had heard at any of the union meetings
union officials state, "We can't do anything to the people
at the property, but once they leave the property, then
we can do something," or "the delivery trucks' tires can
be slashed, we can sneak up on them and slash tires."
She further testified that she had not heard at any union
meeting reference to tire slashing or breaking wind-
shields, and that union officials had told the employees
that "they did not want any violence' .... We have to
keep moving on the line."
B. Picket Line Activity
Robert Preston, director of plant operations, testified
that November 1986 picket line activity has been as fol-
lows: "The activity presently is signs being placed at the
driveways and the pickets are sitting in cars across the
street." Preston further testified, "At the beginning of
the strike there were, I would say, a maximum of 48,
maybe 50 people. They were walking up alongside of the
building, down the public right-of-way. They had signs
out. They were wearing vests. That diminished down
after I'd say two months, ' three months, to maybe 35
people." Preston further testified: "I would say during
the second or third week of the strike, somewhere in that
time frame, they had a pile of rocks on the southeast
corner where loading dock, shipping and receiving docks
are. The pickets were carrying rocks and they were the
size of league balls on up to a baseball. They were walk-
ing in front of the driveway, pacing back and forth, and
they were throwing them up like a juggler."4
Torello was among those seen carrying a rock. Ac-
cording to Preston and Jagdish Tripathi, company con-
troller, the rock carrying continued-for around 2 weeks
after which the piled rocks disappeared.
Preston complained to the police who were present at
the picket line about the rock carrying. The police ad-
vised Preston that "[a]s long as they physically did not
damage any property, they weren't going to do anything
about it, or injure someone."
Rivenburgh admitted off-color language was used on
the picket line and employees going through the picket
line were referred to as "scabs."5
C. Accosting Trucks Crossing the Picket Line
Michael Donald McCabe, an employee of H. Diamond
Iron and Metal Scrap Company, drove a truck to the
Respondent's premises in July in order to load it with
scrap . When McCabe approached the premises, a picket
explained to him why they were picketing and "would
[he] please not cross their picket line." McCabe respond-
ed that he .would not honor the picket line and then pro-
ceeded about his business. McCabe noticed a man (Tor-
4 Union witnesses admitted the rock-carrying incidents.
5 Scab is defined in The New American Heritage Dictionary of the Eng-
lish Language, New College Edition, as follows-
4 Informal. (a) A worker who refuses membership in a labor organi-
zation (b) an employee who works while others are on strike (c) a
low or contemptible person.
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ello) writing "something on a pad of paper." Thereafter,
McCabe saw him "at the end of the driveway at the
street with his hands in the air, like so, with a rock in his
right hand . . . [m]aybe the size of a baseball."s The
man was "probably 40, 50 feet" removed from McCabe.
McCabe has had no problem crossing the picket line
since this incident.
Preston relates another truck incident that occurred
during the first week of the strike. Torello jumped on
the running board of an Intermodial truck as it crossed
the picket line. The police intervened and as Torello left,
Preston quotes him as saying to the truckdriver "You
fucker, we'll get even with you."7 According to Preston,
addressing him, Torello called him a "mother fucker,"
and remarked, "You sleep with your mother.... You're
no better than the scabs over there." In Preston's opinion
Torello was "very emotional."
D. Alleged Automobile Damage
On 8 July 1986, according to Loeuth Seng, someone
on the picket line told her that "if she continue[s] to
work, Mr. Block would take her car away." During the.
night of 9 July 1986 at 9 o'clock "somebody" cut the
two left tires on Seng's car. Seng did not recognize the
culprit or culprits.
According to Cacio Roman, when he left his house on
14 July 1986, he saw "the windows of both cars were
broken. And also the tires of [his] car." (Three tires were
torn.)
Further testifying, Roman said that when he ap-
proached the picket line that same day "they" remarked,
"Dad, where's your car, where is your car?" "They" re-
ferred to Teresa, some Cambodians, Wotha and Droka,
and "other ones."
Mario Flores testified that when he walked through
the picket line around the second day of the strike
"[t]hey say mother fucker" and said, "but they didn't say
[it] directly to me. Everybody was coming, leaving at
night." "They say that we slash the tires and break the
windshields." "The first one was Joe Silvia and followed
by the group." "They say it all together." It was repeat-
ed for about 3 days. Flores claimed Torello was present
in the group. "They say that we slash the tires and break
the windshields" of "[t]he ones who cross the picket
line."
Flores testifying further said that on 14 July 1986, he
discovered "the windshield broke, and it was a rock on
top of the car" and four "slashed" tires on one car and
two "slashed" tires on another car. When Flores arrived
at the picket line he testified that Terry Romerez called
him a "cheater."
Flore's affidavits did not reveal that he had been
threatened with damage to his car.
Nancy Flores, wife of Mario Flores, testified that
when she went through the picket line, approximately
the first week of the strike, strikers called her a "god
damn scab" and that Nancy Mattson told her she should
"watch" her new car, "that she knew where [she] lived."
Standing with Mattson were Gladys Rivenburgh, Terry
Romerez, and Joe Silvia. As to her new car Flores testi-
fied, "I had scratches made on my back door" a couple
of days after. That night when she arrived home she dis-
covered the scratch. If the scratch had occurred while
Flores was at work, the car, parked near the dock, 30
feet from the picket line, would have been in full view of
the security guards and also (for some of the time) the
police.
E. Doorbell Incident
Hose Antonio Sugranes, who was employed by the
Respondent 16 July 1986, and headed the decertification
movement," was called as a witness by the General
Counsel and his testimony can be summarized as follows:
On 24 January 1987, around midnight someone rang
Sugranes' doorbell. When Sugranes answered no one re-
sponded. The doorbell rang two more times without re-
sponses after which Sugranes dressed and went outside,
but found nobody. Sugranes went off to the police sta-
tion. His wife was scared and cried.
On 4 February 1987 Sugranes discovered two flat tires
on his car. "I got real mad." The air had been released
from the tires. After he had changed his tires he discov-
ered an envelope on the windshield on the driver's side.
"[I]t says I would be sorry." Sugranes went to the police
station and filed a complaint. His wife "started crying
again, she got scared."
Sugranes testified that he had never heard any picket
"threaten to damage anybody's car, yours or anybody
else."
F. Conclusions and Reasons Therefor
Demeanor having been considered , I do not find that
the General Counsel has produced sufficient credible evi-
dence or evidence of sufficient probative weight to sus-
tain the allegations of her complaint except for the rock-
handling incidents, which were admitted . In this respect
the General Counsel has not established that the Re-
spondent was responsible for the incidents connected
with automobile damage. I do not believe the testimony
of Flores and other General Counsel witnesses that ap-
pears to me to have been tailored to involve the Re-
spondent in such conduct .9 Moreover, I cannot believe
that the Union 's representatives were so unsophisticated
and stupid as to have laid the Union open to liability by
the remarks which were attributed to them . Moreover, I
believe the Respondent's witnesses when they testified
that they did not encourage strike misconduct . Addition-
ally the General Counsel 's case is not supported by valid
in Ferences. For instance it does not follow that because
nonstrikers were addressed as "scabs," "mother fuckers,"
"cheaters," and "sons of bitches," "if she continues to
work, Mr. Block would take her car away ," "Dad,
where's your car," and a doorbell was rung without re-
6 Preston testified, in respect to the H Diamond truck incident, that he 8 A decertification election was held on 28 January 1987
saw Torello on its running board with a rock Tripaths testimony was the 9 The omission from Mario Flore's affidavit was not of a kind that
same could ordinarily be attributed to an oversight or to the interviewer's fail-
s Torello denied that he had uttered his remark ure to place the appropriate question.
PRODUCTION WORKERS LOCAL 10 (BLOCK & CO) 385
sponse, the Union was responsible for the nonstriker's
damage to their automobiles . Nor does it follow that if a
striker said to a nonstriker that she should "watch" her
new car because "she knew where she lived ," that the
Union was responsible for a scratch on the back , door of
her car parked adjacent to the Employer 's dock in view
of security guards.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and it will effectuate the purposes of the Act for jurisdic-
tion to be exercised here.
2. The Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. By handling rocks in such a manner on the picket
line as to give the impression that they might be used as
a deterrent to employees or others who crossed the
picket line, the Respondent violated Section 8(b)(1)(A) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed 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-
ed10
(b) In any like or related manner restraining or coerc-
ing 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 office in Wheeling, Illinois, copies of the
attached notice marked "Appendix."11 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
sectuive days in conspicuous places oncluding all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent 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 RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found in this decision.
I I If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELAITONS BOARD
An Agency of the United States Government
ORDER
The Respondent , Production Workers' Union Local
No. 10, AFL-CIO, its officers , agents, and representa-
tives, shall
1. Cease and desist from
(a) Handling rocks on the picket line adjacent to the
Employer's premises in such a manner as to' give the im-
pression to employees and others who desire to cross the
picket line that the rocks may be used as a deterrent to
their crossing.
10 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, 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 purposes.
The National Labor Relations Board has found that
we violated the National Labor Relations Act and has
ordered us to,post and abide by this notice.
WE WILL NOT handle rocks on the picket line adjacent
to premises of Block and Company, Inc. in such a
manner as to give the impression to employees or others
who desire to cross the picket line that the rocks may be
used as a deterrent to their crossing.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
PRODUCTION WORKERS' LOCAL No. 10,
AFL-CIO