Railway Carmen, Local No. 543

National Labor Relations Board - Board Decisions

Mar 11, 1980

248 N.L.R.B. 285 (N.L.R.B. 1980)

RAILWAY CARMEN, LOCAL NO, 543 285
Brotherhood of Railway Carmen of the United
States and Canada, Local No. 543, AFL-CIO,
CLC and North American Car Corporation.
Case 18-CB-964
March 11, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On November 19, 1979, Administrative Law
Judge Thomas A. Ricci issued the attached Deci-
sion in this proceeding.' Thereafter, Respondent
filed exceptions and a supporting brief.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions3 of the Administrative Law Judge and
I The instant case was originally consolidated for hearing with Case
18-CC-763. Pursuant to a settlement stipulation mutually entered into by
the parties therein, the Board issued a Decision and Order in Case 18-
CC-763 on October 25, 1979 (not reported in volumes of Board Deci-
sions), in which it approved the said settlement stipulation
2 Respondent excepts to the Administrative Law Judge's denial of its
motion to postpone the hearing until the unfair labor practice charges it
filed against the Employer could have been investigated by the Region,
and, if found meritorious, consolidated in one complaint with the charges
litigated here Before the hearing, the Regional Director denied Respon-
dent's motion, and, at the hearing, the General Counsel opposed the
granting of a similar motion.
Under Sec 102.33 of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the authority to consolidate cases is
vested in the General Counsel, and is a matter within his discretion. Not-
withstanding the fact that the matters alleged in Respondent's charges
against the Employer may have been factually related to the charges liti-
gated here, and could have been consolidated in one proceeding had a
complaint issued, we find there was no abuse of discretion in denying Re-
spondent's motion. Thus, we affirm the Administrative Law Judge's
denial of the motion. Beck Corporation, d/b/a Jessie Beck's Riverside Hotel
and Casino, 231 NLRB 907 (1977). Respondent's charges were subse-
quently dismissed by the Regional Director.
3 Respondent excepts only to the Administrative Law Judge's proce-
dural ruling denying Respondent's motion to postpone the hearing until
its unfair labor practice charges against the Employer could have been
fully investigated. In the absence of exceptions to the Administrative
Law Judge's substantive findings, we adopt, pro forma, the Administra-
tive Law Judge's other findings and conclusions. However, we note that,
while the Administrative Law Judge also found that Respondent unlaw-
fully coerced "supervisors" in the presence of striking and nonstriking
employees, he inadvertently designated them as employees. and neglected
to include the word "supervisors" in his Conlusions of Law, recommend-
ed Order, and notice to members. See Service Employees International
Union, Local 254, AFL-CIO (Massachusetts Institute of Technology), 218
NLRB 1399 (1975); District 20, United Mine Workers of America (Harbert
Construction Corporation), 192 NLRB 565 (1971). We shall modify the
Conclusions of Law, recommended Order. and notice to members ac-
cordingly.
Although in his notice to members the Administrative Law Judge in-
cluded broad cease-and-desist language, he inadvertently omitted a broad
cease-and-desist clause in his recommended Order. We agree with the
Administrative Law Judge that Respondent's egregious and widespread
strike misconduct warrants issuing a broad order, and shall modify the
recommended Order accordingly. See Hickmout Foods, Inc., 242 NLRB
No. 177 (1979). Contrary to his majority colleagues, Chairman Fanning
248 NLRB No. 42
to adopt his recommended Order, as modified
herein.
AMENDED CONCIUSIONS OF LAW
Based on the foregoing, the Board adopts the
Administrative Law Judge's Conclusions of Law,
as modified below:
1. Substitute the following for paragraph 1:
"1. By threatening to inflict personal bodily
injury upon employees and supervisors, by threat-
ening to cause trouble, by searching the vehicles of
employees and supervisors before permitting them
entry to their place of work, by mass picketing
plant entrances so as to physically prevent entry by
employees and supervisors, by otherwise blocking
entry into the plant, by carrying iron bars, nailed
boards, and other weapons in front of the plant en-
trances, by physically attempting to destroy the
private property of employees and supervisors, and
by actually damaging the automobile tires of em-
ployees and supervisors, Respondent has violated,
and is violating, Section 8(b)(l)(A) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Brotherhood of
Railway Carmen of the United States and Canada,
Local No. 53, AFL-CIO, CLC, its officers, agents,
and representatives, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
"(a) Threatening to inflict personal bodily injury
upon employees and supervisors, threatening to
cause trouble, searching the vehicles of employees
and supervisors before permitting them entry to
their place of employment, mass picketing plant en-
trances so as to physically prevent entry by em-
ployees, otherwise blocking entry into the plant,
carrying iron bars, nailed boards, and other weap-
ons in front of plant entrances, physically attempt-
ing to destroy the private property of employees
and supervisors, or actually damaging the auto-
mobile tires of employees and supervisors. In any
other manner restraining or coercing employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
finds a broad remedial order inappropriate here, and would modify the
recommended Order to use the narrow injunctive language, "in any like
or related manner"
-^ -
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act
and has ordered us to post this notice. We intend
to abide by the following:
WE WILL NOT threaten to inflict personal
bodily injury upon employees or supervisors.
WE WILL NOT threaten to cause trouble
when people try to cross a picket line.
WE WILL NOT search the vehicles of em-
ployees or supervisors before permitting them
entry to their place of employment.
WE WILL NOT mass picket plant entrances
so as to physically prevent entry by employees
or supervisors.
WE WILL NOT otherwise block entry into
any plant.
WE WILL NOT carry iron bars, nailed boards
and other weapons in front of plant entrances
while picketing.
WE WILL NOT physically attempt to destroy
the private property of employees or supervi-
sors.
WE WILL NOT damage the automobile tires
of employees or supervisors.
WE WILL NOT in any other manner restrain
or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the
Act.
BROTHERHOOD OF RAILWAY
CARMEN OF THE UNITED STATES
AND CANADA, LOCAL No. 53, AFL-
CIO, CLC
DECISION
STATEMENT OF THE CASE
THOMAS A. RIccI, Administrative Law Judge: A hear-
ing in this proceeding was held in Brainerd, Minnesota,
on July 18 and 19, 1979, upon complaint of the General
Counsel of the National Labor Relations Board against
Brotherhood of Railway Carmen of the United States
and Canada, Local No. 53, AFL-CIO, CLC, herein
called the Respondent or the Union. The complaint
issued on June 14, 1979, upon a charge filed on April 16,
1979, by North American Car Corporation, herein called
the Company or the Charging Party. The issue to be de-
cided is whether the Respondent violated Section
8(b)(1)(A) of the National Labor Relations Act, as
amended, by the coercive conduct of its agents on a
picket line. After the close of the hearing, briefs were
filed by the General Counsel and the Respondent.
Upon the entire record and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
North American Car Corporation is a Delaware cor-
poration with one of its places of business in Staples,
Minnesota, where it is engaged in the repair of railroad
cars and related products. A reasonable projection of the
Company's anticipated operations in this location, where
it started to do business in November 1978, is that in the
normal conduct of its business there it will annually sell
and ship products and goods valued in excess of $50,000
directly to out-of-state locations. On a similar basis the
normal expectancy is that it will also purchase and re-
ceive at this one location goods and materials valued in
excess of $50,000 annually from out-of-state sources. I
find that this Company is engaged in commerce within
the meaning of the Act.
1I. THE I.ABOR ORGANIZATION INVOLVED
I find that Brotherhood of Railway Carmen of the
United States and Canada, Local No. 53, AFL-CIO,
CLC, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Case in Brief
On November 3, 1978, North American Car Corpora-
tion, purchased the plant which a company called
Transco, Inc., had long owned and operated. Local 53,
the Respondent, for some years had represented the em-
ployees of Transco under collective-bargaining agree-
ments. The last contract expired on December 11, 1978,
and the Union negotiated with the succcessor employer,
North America Car Corporation, towards a renewal
agreement. There was no results, and on December 13,
1978, the Union called the employees on strike. Of the
approximately 40 employees then at work, all but I
walked off the job. Picketing started that day and was
still going on at the time of the hearing in this case 7
months later. During the first 4 months of the strike, not
one rank-and-file employee worked in the place; what-
ever work was performed was done by plant supervisors
or supervisors brought by the Company from other of its
locations. At the beginning of April the Company started
to hire replacements, and by July 1979 there were about
40 employees, all new hires.
During the picketing, the Union, through its agents,
was responsible for a great number of threats of personal
injury, acts of physical violence, mass picketing, obstruc-
tion of entrances, etc., all detailed in the complaint and
called multiple violations of Section 8(b)(1)(A) of the
Act. This is all that this case is about, and the only
remedy sought is an order restraining the Union from
repetition of such conduct plus posting of the usual no-
tices.
RAILWAY CARMEN, LOCAL NO. 543 287
A number of witnesses testified for the General Coun-
sel-management agents and employees who crossed, or
tried to cross, the picket line. They told repetitive stories
of one incident after another, many of exactly the same
kind. The General COunsel also called Frank Haisman,
the chairman of the Local Union, elected picket line cap-
tain, and a conceded agent of the Respondent, and ques-
tioned him on subjects other than picket line activity. On
cross-examination, Haisman denied, in conclusionary
terms, having threatened anyone, or in any way having
misbehaved on the picket line. He did not address him-
self to any of the many incidents in which, according to
the prosecution's witnesses, he personally participated.
The Respondent called no witnesses in defense.
Apart from the general denials by the chairman of the
Local Union, what is really no more than a restatement
of the Respondent's answer to the complaint, all of the
direct testimony stands uncontradicted. Many strikers,
pickets, and union agents were identified by name as
direct actors in the strike misconduct of which the wit-
nesses spoke. Unfair labor practices under this section of
the statute are committed by "a labor organization or its
agents." The parties stipulated on the record that the fol-
lowing persons were in fact agents of the Respondent at
the time of the events: Frank Haisman, local chairman;
Archie Starrett, local union president; and Kenneth
Dukowitz, vice president. There is dispute as to whether
two other persons-Nelson and Gaugert, also striking
employees and members of the Union-were agents of
the Respondent so that the Union can be held account-
able for actions in which they participated. In addition,
the General Counsel contends that 10 other persons, all
called "pickets" in the complaint and individually named,
were agents of the Union within the meaning of the Act.
The Union disputes this broadside assertion.
I have no reason for discrediting any of the witnesses
who testified in support of the complaint. Their testimo-
ny was direct, consistent, plausible, and, of course, abso-
lutely uncontradicted-despite the fact one of the princi-
pal activists on behalf of the Union, as to whose agency
status there is no dispute, was present throughout the
hearing and chose not to testify.
In a case of this kind, no useful purpose would be
served by restating in detail every jot and tittle of the
testimony, else this Decision would be virtually as long
as the over 200 pages of transcript. Many of the inci-
dents, albeit separate acts violative of statute, are of the
same kind. The conclusionary findings of illegality, the
cease-and-desist order, and the notice to be posted would
be the same in any event. With three of the direct par-
ticipants being conceded agents of the Respondents, it
would be pointless to burden this Decision with extended
discussion acting on the orders, or with the implied ap-
proval, of union agents. The unfair labor practices com-
mitted are so clear, the appropriate order to be issued so
warranted, and the possible contempt conduct that might
later occur so unquestioned that it is hardly the case for
straining to establish new principles of law.
In her post-hearing brief, the General Counsel makes a
number of conclusionary statements aimed at holding the
Union responsible for participation in the strike miscon-
duct by a number of persons on the grounds of agency.
Some of these arguments I am not sure I understand. At
one point she says pickets need not be identified individ-
ually-by name, I suppose-so long as there is proof that
misconduct was in fact committed by pickets. There also
appears the flat statement that "all picketing employees
are agents of the Respondent." At the hearing the Gen-
eral Counsel proved that the Union paid strike benefits
to its members. From this one fact she then argues that
for such reason alone the members became agents of the
Respondent under the statute, so that whatever they did
on the picket line is chargeable to their Union. It is not
at all clear that the case precedent cited in support of
these broad legal contentions really serves that purpose.
The Respondent did appoint picket line captains, and
these included not only the three conceded agents listed
above, but also Elliott Yeske. Picket line captains have
clearly been held to be agents of the picketing union.
Local 3, International Brotherhood of Electrical Workers,
AFL-CIO (New Power Wire and Electric Corp., et al.),
144 NLRB 1089 (1963). And it is also true that when all
the striking employees, members or not members of the
union, engage in repeated violence and mass picketing in
the presence of admitted union agents, there is implied
approval of their misconduct by the officials, and there-
fore even the acts of simple strikers in those circum-
stances are deemed unfair labor practices by their union.
Beyond this, the finer points of law were not litigated
by the parties, and this is not the case for establishing
precedent.
B. Violations of Section 8(b)(1)(A)
1. Only a day or so after the strike started, early in
December, Lynn Peterson, driving a fuel truck for an in-
dependent supplier, was stopped by two pickets as he ap-
proached the plant to make a delivery. They told him
they would probably slash his tires if he tried to enter;
he left. He later did make the delivery with a police
escort. Shortly thereafter, the same day, a group of strik-
ers appeared at Peterson's home station, asked him why
he had made the delivery, and then told him "they were
going to go do some head banging." In this group of
strikers who went to threaten Peterson were Haisman
and Dukowitz, two of the admitted union agents.
I find that, by the conduct of these two men in the
common threat to inflict bodily injury upon Peterson,
the Respondent violated Section 8(b)(1)(A) of the Act.
One of the two strikers who stopped Peterson when he
first arrived at the plant was Richard Cloakey, who was
the Union's sergeant at arms. Whether the later appear-
ance of the two real union agents at Peterson's work
place, where they in effect reaffirmed the earlier threat
voiced by ordinary pickets, could be called retroactive
encouragement of misconduct by plain strikers is a close
question of law. Also, whether, under Board law, a ser-
geant at arms, who, so far as this record shows, does no
more than look over the Union's meeting hall, must be
deemed a union agent under the intendment of Section
8(b)(1)(A) of the Act is a much closer question. These
are the kinds of issues-minor and not really important
to the decision in this case-that I do not think need be
decided here.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. On February 2, 1979, Robert Archer, a company
car inspector, arrived at the plant and was stopped by
some pickets-Haisman again present-who told him to
turn back "because there might be trouble this morning."
Starrett, also present, asked what did he have in his
truck. When Archer said, "Nothing," Starrett insisted on
seeing for himself. Because he had no choice, Archer let
him look. After a 5-minute delay, and after Starrett had
searched his truck and found nothing to be brought into
the plant, Archer was permitted to enter.
I find that by Haisman's threat that there would be
trouble if the employees insisted on entering the plant to
work, and by Starrett's conduct in delaying Archer's en-
trance and searching his vehicle, the Respondent com-
mitted further unfair labor practices.
3. When Plant Manager Kenneth Latham arrived at
the plant at 7 a.m. on February 13, he was confronted by
no less than about 25 pickets blocking entrances to the
parking lot, many of them carrying ax handles, iron bars,
signs, and boards with large nails protruding from them.
They blocked the entrance so that he was unable to pass
through. It took a police officer to disperse the crowd so
he could come in. Among the pickets were all three of
the conceded union agents-Haisman, Dukowitz, and
Starrett. I find that by the activities of all these people so
engaged together with the union leaders in the mass
picketing, and by the implicit threat of physical violence
shown in their carrying damaging tools in their hands,
the Respondent violated Section 8(b)(1)(A). District 20,
United Mine Workers of America (Harbert Construction
Corporation), 192 NLRB 565 (1971).
4. Shortly after this, that same morning, three cars ar-
rived carrying supervisory personnel and company attor-
neys. And their entrance also was blocked by upwards of
25 pickets. The same union agents were participants in
this crowd. They formed a line across the entrance road,
and then seized the cars and rocked them first backwards
and forwards and then from side to side in what was an
obvious attempt to overturn them. The cars were de-
tained for about 45 minutes before the police again had
to be called; this time the cars turned around and left the
premises. Again, I find that by the mass picketing, by the
blocking of the entrances, by the physical violence in at-
tempting to destroy the automobiles and property of ar-
riving employees or supervisors, the Respondent violated
Section 8(b)(1)(A).
5. A like incident was described as happening on Feb-
ruary 21. Now Plant Foreman Holtzum was prevented
from entering the plant by about 20 to 25 pickets who
blocked him off. And again the pickets were carrying
boards with 10-penny nails protruding, pick handles, and
iron bars. One of the pickets destroyed a tire on the car
of the supervisor by placing his nailed board under the
wheel. Among the pickets so carrying on again was
Haisman. See Drivers, Salesmen, Warehousemen, Milk
Processors, Cannery, Dairy Employees and Helpers Union
Local No. 695., etc. (Yellow Cab & Transfer Co.), 221
NLRB 647 (1975).
6. The story goes on and on. The next day again a
picket slashed a tire on Supervisor Latham's car and,
with a knife in his hands, asked, "Do you want me to cut
the rest of them?" Among the named pickets, again car-
rying destructive tools, were all three of the already
named union officers. I find that by all of this conduct in
blocking entrances, destroying property, threatening to
inflict property and bodily injury upon arriving people,
and actually damaging their automobiles, the Union vio-
lated Section 8(b)(l)(A).
7. Shortly thereafter, behind Latham arrived again Su-
pervisor Holtzman. The pickets blocked his entrance,
too, and tried to tip his car over. When one of the pick-
ets hit his tire with a knife, the crowd cheered. Another
picket kicked in the side door of the supervisor's car, and
someone else punched in a plastic window of the car.
The police finally helped Holtzman into the plant. All
this occurred in the presence, and with the participation,
of the same union officials. I make the same findings of
illegality already listed a number of times above.
8. The threats and violence continued into April, when
the Company started hiring applicants as replacements
for the strikers. Gerald Carpenter started work on April
9. As he drove home at the end of his first day he was
followed by a number of pickets in cars. At his home
they came from their cars and gathered around him in
front of the door. Among other things the two union
agents-Starrett and Dukowitz-told him: "If you go
back to work possibly you could get beat up and you
could get a busted arm or a busted leg so you couldn't
work anyway." Carpenter never again dared go back to
the place. I find that by these threats of personal vio-
lence spoken by the two union agents to the employee
the Respondent violated Section 8(b)(1)(A).
No one was immune from the misconduct. On May 4
a group of pickets went to a restaurant to talk to some
security guards working for an employer whose contract
provided protection services to the Company at its
struck premises. Among other things Starrett, the union
president, told security guard Belanger, in the presence
of other guards, "to get out of town because they were
going to have 200 to 300 motor cycle riders, called the
Grim Reapers, come to town and were going to get the
scabs and the building." When Belanger went to his car
outside he found all four tires flattened. I find that by
Starrett's threat to that employee, albeit working for an-
other company, and by the damage to his car, of necessi-
ty caused by Starrett's associates, the Respondent again
committed further unfair labor practices.
As stated above, other unfair labor practices, no differ-
ent from those described above, were committed by
agents of the Respondent, or by ordinary pickets in their
presence, and therefore with their approval. No purpose
will be served by detailing them all here. See America
Federation of Musicians, Local 76, AFL-CIO (Jimmy
Wakely Show), 202 NLRB 620 (1973).
IV. THE EFFECT OF THE UNFAIR LABOR PRACICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of North America Car Corporation described in section
I, above, have a close, intimate, and substantial relation-
ship 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.
----------
RAILWAY CARMEN, LOCAL NO. 543 289
CONCLUSIONS OF LAW
1. By threatening to inflict personal bodily injury upon
employees, by threatening to cause trouble, by searching
the vehicles of employees before permitting them to
enter their place to work, by mass picketing plant en-
trances so as to physically prevent entry by employees,
by otherwise blocking entry into the plant, by carrying
iron bars, nailed boards, and other weapons in front of
the plant entrances, by physically attempting to destroy
the private property of employees, and by actually dam-
aging the automobile tires of employees, the Respondent
has violated and is violating Section 8(b)(1)(A) of the
Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER '
The Respondent, Brotherhood of Railway Carmen of
the United States and Canada, Local No. 53, AFL-CIO,
CLC, Staples, Minnesota, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from threatening to inflict personal
bodily injury upon employees, threatening to cause trou-
ble, searching the vehicles of employees before permit-
ting them entry to their place of employment, mass pick-
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
eting plant entrances so as to physically prevent entry by
employees, otherwise blocking entry into the plants, car-
rying iron bars, nailed boards, and other weapons in
front of plant entrances, physically attempting to destroy
private property of employees, or damaging the auto-
mobile tires of employees for the purpose of restraining
them in the exercise of the rights guaranteed them in
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix. " 2 Copies of said
notice, on forms provided by the Regional Director for
Region 18, after being duly signed by its authorized rep-
resentative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Deliver to the Regional Director for Region 18
signed copies of said notices in sufficient numbers for
posting by North American Car Corporation, the Em-
ployer being willing, at all locations inside its place of
business where notices to employees are customarily
posted.
(c) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order (if the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"