Teamsters Local 703 (Kennicott Bros.)

National Labor Relations Board - Board Decisions

Jul 20, 1987

284 N.L.R.B. 1125 (N.L.R.B. 1987)

TEAMSTERS LOCAL 703 (KENN1COTT BROS.)

1125
Produce, Fresh and Frozen Fruits, and Vegetables,
Fish, Butter, Eggs, Cheese, Poultry, Florist,
Nursery, Landscape and Allied Employees
Union Chicago and Vicinity, Illinois Local 703,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of Amercia and Kennicoft Bros. Com-
pany
Kennicott Bros. Company and Michael C. Tincher,
Petitioner. Cases 13-CB-9768 and 13-RD-
1373
20 July 1987
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
On 12 August 1982 Administrative Law Judge
Frank H. Itkin issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed cross-exceptions and a
supporting and 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.
In adopting the Order, we reject both the Re-
spondent's contention that the unfair labor prac-
tices did not warrant setting aside the election and
the Charging Party's contention that certain addi-
tional remedies should be given.
The Respondent excepted to the judge's setting
aside the election based on his finding that its un-
lawful conduct on 11 December 1981 prevented
the holding of a fair and free election in April
1982. The Respondent contends that this fmding
lacks substantive proof that the atmosphere of the
election was tainted by that conduct, which not
only occurred 3 months prior to the election but
was the sole misconduct engaged in by the Re-
spondent.
Contrary to the Respondent, we agree with the
judge that the Respondent's conduct was such that
its effects could not reasonably be expected to have
dissipated during the 3-month period between the
coercive conduct and the election. On 11 Decem-
ber the Respondent's representatives, Stroud and
Senese, went into the Employer's premises and
threatened employee Tincher, who had filed the
decertification petition, with physical harm, threat-
ened members of management, and brutally assault-
ed the Employer's president, Kennicott, and its
manager, Schmoeller, in the presence of approxi-
284 NLRB No. 115
mately 15 unit employees and customers. This was
after the police had removed them earlier that day
from the premises for creating a disturbance. Con-
sidering these circumstances, which occurred
during the critical preelection period, we find that
the unit employees, many of whom witnessed the
assault on their superiors, would not fail to heed
the message that any opposition to the Respondent
could result in physical retaliation. Therefore, we
fmd that the judge needed no further substantive
proof than this conduct of Stroud and Senese to
find that the election was not held in an atmos-
phere free of coercion. Accordingly, we fmd that
the Respondent's exceptions lack merit.
Contrary to our dissenting colleague, we also
reject the Charging Party Employer's request for
additional remedies, i.e., decertification of the Re-
spondent without an election or issuance of an
order prohibiting the Respondent or the unit em-
ployees from designating Stroud or Senese as rep-
resentatives in any future bargaining that may take
place between the Respondent and the Employer.
The precedents on which our dissenting colleague
principally relies do not support the remedies in
question.
In Allou Distributors, 201 NLRB 47 (1973), the
Board relied on violent conduct by the union's rep-
resentatives as a basis for declining to give a bar-
gaining order as a remedy for the employer's un-
lawful conduct, which included withdrawal of rec-
ognition on the basis of a tainted decertification pe-
tition. The Board, however, directed "a remedial
election so that the employees, themselves, can de-
termine the representation status of the Union." 201
NLRB at 48. That is what we have directed here.
In seeking to rebut our distinction of Allou on
these grounds, our dissenting colleague attempts to
brush aside the direction of election there by sug-
gesting that it was overshadowed by the denial of
the Gissel bargaining order, which sent a "signal"
that a union would pay a heavy cost for engaging
in violence. But the Union in the present case pays
the cost of not reaping the results of its victory in
the decertification election, which it won by a vote
of 12 to 10, with 1 nondeterminative challenged
ballot after all the other challenges were resolved.
More importantly, our basis for holding an election
in Allou was, as it is here, to give the employees
the right to decide whether they wanted the union
that represented them to continue to represent
them in spite of its agents' violent and intimidating
misconduct in response to a decertification peti-
tion.' That purpose is quite distinct from the issue
As the Board there noted, "Wile policies of the Act will best be ef-
fectuated by directing a remedial election so that the employees, them.
Continued
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of whether a union's right to a bargaining order
should be forfeited as a sanction for its misconduct.
Were we faced with a similar bargaining order
issue here, we might very well deny the order as in
Allou. That issue is not before us here, however,
and contrary to the dissent's argument, the direc-
tion of election here is consistent with the direction
of an election in Allou.
In Union Nacional de Trabajadores (Carborundum
Co.), 219 NLRB 862 (1975), the Board took the un-
usual step of decertifying the union, but in doing so
it relied not only on the union's violent conduct in
the immediate case, but also relied on "its extensive
record of similar aggravated misconduct in other
recent cases." 219 NLRB at 863 (footnote omitted).
Our dissenting colleague contends that the Union's
record of misconduct in other cases was in no way
essential to the decertification order in Union Na-
cional (Carborundum), but was merely bolstering
for an order that rested solely on the violence in
the immediate case. We cannot agee with that
reading of a decision in which the justification for
the decertification order commences within this
sentence: "This labor organization, by its brutal
and unprovoked physical violence in this case and
by its extensive record of similar aggravated mis-
conduct in other recent cases [footnote citing those
cases] has evinced an intent to bypass the peaceful
methods of collective bargaining contemplated in
the Act and commonly accepted and practiced by
labor organizations and employers throughout the
country." Supra 219 NLRB at 863. We note also
that one court of appeals, commenting in dictum
on the decertification order in Union Nacional
(Carborundum), observed that apparently "a princi-
pal factor in the Board's decision" was the Board's
"belief that revoking the Union's certificate would
be an effective means of remedying the pervasive
and flagrant misconduct of the Union at other
Puerto Rican jobsites [i.e., jobsites other than the
one concerned in Carborundum]." NLRB v. Union
Nacional de Trabajadores, 540 F.2d 1, 14 (1st Cir.
1976), cert. denied 429 U.S. 1039 (1977). That
strikes us as a sensible reading of the decision.
In Fitzsimmons Mfg. Co., 251 NLRB 375 (1980),
affd. 670 F.2d 663 (6th Cir. 1982), the Board was
confronted directly with the issue whether an em-
ployer violated Section 8(a)(5) of the Act by refus-
ing to bargain with certain union representatives
who had previously behaved violently in bargain-
ing sessions. In the present case there is no 8(a)(5)
charge and it is entirely speculative whether the
Charging Party Employer will be called on to ne-
gotiate with Stroud and Senese.
selves, can determine the representation status of the Union." 201 NLRB
47 at 48.
Finally, our dissenting colleague contends that
our failure to take the rare and extreme step of de-
certifying the Union as a remedy for its 8(b)(1)(A)
violations requires more explanation than we have
given. This overlooks the question of where the
burden of justification lies in the case of unusual
remedies. Were this a case, such as Iron Workers
Local 111 v. NLRB, 792 F.2d 241 (D.C. Cir. 1986),
on which our colleague relies, in which the Board's
order represented an unexplained departure from a
venerable authority that had never been overruled,
his point might be well taken. Instead, as we have
demonstrated in distinguishing the cases relied on
by our colleague, we have simply declined to enter
an order of a sort that has rarely been issued and
that has never been entered in any case on point to
this. Indeed, with regard to the case in which the
Board did give such an order, the First Circuit,
after acknowledging that it lacked jurisdiction to
review the order directly in the case before it,
went out of its way to comment on what it regard-
ed as the "troublesome issue" whether the Board
should issue such an order even on the record of
egregious union violence there. NLRB v. Union
Nacional Trabajadores, supra, 540 F.2d at 12-15.
The court concluded "that a decertification order
is an extreme measure and should be entered only
when the Board has first demonstrated that there
are no equally effective alternative means of pro-
moting the objectives of the Act [citation omit-
ted]." Id. at 13. In setting out factors it thought
should be taken into account in determining wheth-
er decertification should be ordered, the court in-
cluded evidence of "proclivity for unlawful con-
duct" (i.e., evidence of misconduct in other cases),
but emphasized that "because of the important em-
ployee interests that are at stake the focus should
be on promoting peaceful collective bargaining and
not on fashioning sanctions to deter Union miscon-
duct." Id. at 15. Similar employee interests are at
stake here, and while we do not for a moment take
lightly the seriousness of the violent conduct that
occurred in this case, we cannot conclude that we
should grant the extraordinary remedies our icol-
league urges upon us here.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Produce,
Fresh and Frozen Fruits and Vegetables, Fish,
Butter, Eggs, Cheese, Poultry, Florist, Nursery,
'In the absence of exceptions we pro forma adopt the judge's finding
that Keith Schmoeller is entitled to vote as a unit employee.
Finally, we have modified the judge's notice to conform with this rec-
ommended Order.
TEAMSTERS LOCAL 703 (KENNICOTT BROS.) 1127
Landscape and Allied Employees Union, Chicago
and Vicinity, Illinois Local, 703, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Chi-
cago, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Order,
except that the attached notice is substituted for
that of the administrative law judge.
IT IS FURTHER ORDERED that, as we have adopt-
ed the judge's recommendation to sustain all Ken-
nicott Brothers Company's objections to the con-
duct of the election, the election is set aside, and
that this case is remanded to the Regional Director
for Region 13 for appropriate action.
[Direction of Second Election omitted from pub-
lication.]
CHAIRMAN Doasom dissenting.
I agree with my colleagues' adoption of the
judge's finding that the Respondent violated Sec-
tion 8(b)(1)(A) of the Act and engaged in objec-
tionable conduct. However, contrary to the majori-
ty, I conclude that certain additional relief is neces-
sary to effectuate the purposes and policies of the
Act.
On several occasions prior to the filing of the de-
certification petition herein, the Respondent's rep-
resentatives, Frank Stroud and Lucien Senese, dis-
rupted the Charging Party's workplace and co-
erced unit employees into work stoppages because
of their displeasure with the decertification effort.
On the morning of 11 December 1981, after the pe-
tition was filed, Stroud and Senese appeared at the
Charging Party's premises. They met the Charging
Party's assistant manager, Cech, whom they cursed
and spit on. The Charging Party's president, Harri-
son Kennicott, was informed of their presence and,
accompanied by Manager James Schmoeller, con-
fronted Stroud and Senese on the main floor of the
building. Keimicott asked Stroud what his business
was. Stroud replied with a string of obscenities,
which he kept repeating in a loud voice in the
presence of unit employees. Kennicott asked
Stroud and Senese to leave and when they refused,
he asked Schmoeller to call the police. Stroud ad-
monished Kennicott: "I'm going to get you, you
son of a bitch." Stroud then proceeded to the base-
ment where the nonunit bouquet workers were lo-
cated. Stroud told the employees that Kennicott
was a "cheap sucker," that he was underpaying
them by at least $2 per hour, and that they should
join the Union. Kennicott protested the disruption
of the work. Stroud replied that they should go
outside where he would make mincemeat out of
Kennicott. The police arrived and arrested Stroud
and Senese for disorderly conduct and assault.
About 2 p.m. that same day, Stroud and Senese
returned to the Charging Party's premises. They
encountered the Petitioner, Michael Tincher, as
they entered the facility. Stroud placed his hand on
Tincher's arm and stated that Tincher would have
to watch his step from there on in. Stroud and
Senese were met at the basement stairs by Kenni-
cott and Schmoeller in the presence of 15 unit em-
ployees and customers. Kennicott asked them what
they wanted and Stroud told him to get out of the
way. Stroud and Senese attacked Kennicott. They
knocked him down and proceeded to kick and
punch him when he was on the floor. Kennicott
sustained a black eye, a swollen face, sore ears and
chest, and experienced trouble breathing. Senese
also punched Schmoeller in the face. Schmoeller
"fell down on the floor completely dazed"—his
glasses were broken and his face was bloodied. He
was hospitalized later in the day. After employees
came to Kennicott's and Schmoeller's rescue,
Stroud and Senese ran from the building, jumped
in their car, and sped away. The police subsequent-
ly arrived and additional criminal charges were
filed.
The judge found that the Respondent violated
Section 8(b)(1)(A) by threatening an employee
with violence and by threatening and attacking
representatives of the Charging Party on 11 De-
cember 1981. The judge further found that the Re-
spondent's conduct interfered with and prevented
the holding of a fair and free election on 2 April
1982 and ordered a new election. The judge reject-
ed the Charging Party's contention that certain ad-
ditional relief, such as decertification of the Re-
spondent and an order prohibiting the Respond-
ent's agents Stroud and Senese from serving as the
Respondent's designated representatives on the
Charging Party's premises, was necessary because
of the egregious nature of the Respondent's con-
duct. In so doing, he noted that requests for addi-
tional relief "usually arise in the context of a Sec-
tion 8(a)(5) violation where an Employer has re-
fused to bargain." The judge further noted that
consideration of such matters was "premature" and
presumably must await a victory by the Respond-
ent in the rerun election and a subsequent refusal to
bargain by the Charging Party.
I do not agree with my colleagues' adoption of
the judge's finding that consideration of the Charg-
ing Party's request for additional relief is inappro-
priate in the present posture of these cases. Under
Section 9 of the Act, the Board is empowered to
investigate and resolve matters related to the elec-
tion and certification of collective-bargaining repre-
sentatives. We have long held that our responsibil-
ities in this area require that we provide laboratory
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conditions in election proceedings such that the un-
inhibited desires of the employees may be deter-
mined. General Shoe Corp., 77 NLRB 124 (1948).
In addition, we have used the broad discretion
granted us under Section 10 of the Act to fashion
special remedies as necessary to correct the effects
of unfair labor practices, including those occurring
in the context of election proceedings. See, e.g.,
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
rehearing denied 396 U.S. 869 (1969).
In the instant cases, on learning of the decertifi-
cation effort, the Respondent embarked on a course
of violent and intimidating conduct, designed to
ensure employee adherence to the Union. In similar
circumstances, the Board has used its broad reme-
dial powers to deny a bargaining order to the of-
fending union even in the face of an employee's
unfair labor practices' and, in cirsumstances of re-
peated violence (as here) by a union, has ordered
its decertification as the employees' exclusive rep-
resentative. 2 Further, the Respondent's misconduct
was of such a serious nature that its coercive
impact would not have been erased from the em-
ployees' minds even in the 4-1/2 years that has
elapsed from the time of the assaults.
That this Board refuses in the end any meaning-
ful remedy for the violent behavior exhibited dem-
onstrates a current inability to coordinate means
and ends. The majority's Order comprehends es-
sentially the same action the Board would have
taken had Respondent Union ignored Savair stand-
ards or held a Peerless Plywood mass meeting—the
election is to be set aside and another conducted.3
That the Board's action in cases involving formal
solicitation requirements or employee meetings is
identical with that involving two savage beatings
will strike nearly everyone as strange. It is yet an-
other example of treating unlike cases alike and,
sadly, another example of this Board's continuing
inability to come to grips with the issue of labor vi-
olence and its effects on employees and Board
processes.4
After reviewing the record herein, I find that the
multiple flagrant conduct of the Respondent's rep-
resentative Stroud and Senese warrants decertifica-
tion of the Respondent. Where union representa-
tives engage in brutal and unprovoked physical ac-
Allou Distributors, 201 NLRB 47 (1973).
2 Union Nacional de Trabajadores (Carborundum Corp.), 219 NLRB 862
(1975).
-3 Posting of notices in the CB case does not materially alter the case.
4 Compare Avis Rent-a-Car System, 280 NLRB 580 (1986), and John M.
Horn Lumber Co. 280 NLRB 593 (1986), with Sequatchie Valley Coal
Corp., 281 NLRB 726 (1986). The election was set aside in Sequatchie
based on oral threats In Horn Lumber, on the other hand, a physical as-
sault arguably taking place within 2 weeks of the election was insufficent
grounds on which to set aside an election where a vote change would
have affected the outcome.
tions, the Board should not continue to certify that
union as qualified bargaining representative. The
employees have a Section 7 right to be represented
by a representative of their own choosing and if
the employees desire to have Respondent as their
representative, they may do so by means of a rep-
resentation election following the filing of a proper
representation petition. However, in view of this
violent conduct, I would revoke the current certifi-
cation.
My colleagues attempt to distinguish Allou Dis-
tributors and Union Nacional de Trabajadores. In
those cases, as here, the unions resorted to violence
on the employer's premises in their outrage at the
filing of a decertification petition (Allou) or unsuc-
cessful bargaining (Union Nacional). In both cases,
the Board moved decisively within the procedural
context of those cases effectively to strip the
unions of their representative status and to subject
them to fresh tests of support within the very elec-
torates over which they had recently run rough-
shod. Unlike my colleagues, I would do no less in
the instant case. As the Board stated in Allou, quot-
ing from its opinion in Laura Modes Co., 144
NLRB 1592, 1596 (1963):
[T]he employees' right to choose the Union as
their representative survives the Union's mis-
conduct. But we believe it will not prejudice
the employees unduly to ask that they demon-
strate their desires anew in an atmosphere free
of any possible trace of coercion.
This agency contributes nothing to employees
free choice—a leading statutory motif—by attempt-
ing subtle and esoteric distinctions in cases that call
for decisive action. Read aright, precedent here
supports the decisive action of revoking certifica-
tion rather than the routine direction of another
election.
In distinguishing Allou, my colleagues ignore
both the procedural and substantive aspect of the
case. Allou was, inter alia, an 8(5) case. The routine
action in Allou would have been the imposition of a
bargaining order to remedy the employer's viola-
tion. Instead, the Board reacted to violence against
employees by the nonroutine act of directing an
election. My colleagues say, "That is what we
have directed here." But the same action taken in
the different context of Section 9 of the Act send a
totally different signal. The perpetrator in Allou
learned that violence would cost it the bargaining
order that the employer's ,conduct would normally
necessitate. The perpetrator, here learns that the
costs of violence are no more than those associated
with routine violations of election standards. Allou
demonstrated Board expertise in accommodating
TEAMSTERS LOCAL 703 (KENNICOTT BROS.)

1129
remedial means to public policy ends in a nonrou-
tine Section 8 setting. My colleagues in this non-
routine Section 9 case send no signal concerning
labor violence and fail totally to accommodate
their remedial means to any public policy purpose.
The majority distinguishes Union Nacional de
Trabajadores, decided 2 years after Allou, on the
ground that the union there had an "extensive
record of similar aggravated misconduct in other
recent cases." Unfortunately, the Board nowhere
stated in Union Nacional that the mainfold nature
of the union's conduct occasioned its remedial
holding. The Board clearly recognized that the
union's historical record bolstered its decision. That
prior record was not, however, the material of effi-
cient cause of that decision. My colleagues imply
that the Union Nacional Board would have granted
the normal bargaining order in the absence of all
but the improper conduct in the immediate case.
That this is not so is demonstrated by the Board's
favorable citation of Laura Modes Co.„ 144 NLRB
1592 (1963), in both Allou and Union Nacional.
Laura Modes is, indeed, the only case cited as
precedent for the Union Nacional decision. The
Board's Allou decision is almost wholly devoted to
a discussion of Laura Modes as the controlling
precedent. 5 Neither Laura Modes nor Allou con-
tains any reference to a prior history of violence on
the part of the involved unions.
This case differs from Laura Modes, Allou, and
Union Nacional in one important respect. Those
cases all involved significant alleged employer
unfair labor practices—a refusal to bargain or, in
Allou, employer inception of an antiunion peti-
tion—whereas the Employer in this case is wholly
unoffending. The Board was faced with a dilemma
in the prior cases: Should it protect the public in-
terest in discouraging violence or fully remedy the
employer unfair labor practices? In each of the
former cases, the Board elected effectively to dis-
courage violence.
In the instant case where the Board is faced with
no such dilemma, it elects de facto to ignore vio-
lence by treating the matter as a routine election
set-aside case. In so doing, it ignores precedent and
encourages brinkmanship.
The courts have commented frequently on the
Board's failures to present adequate rationale for its
actions in terms of precedent and its experience.
5 Significantly, the Allou Board reversed the judge's attempt to distin-
guish Laura Modes on the ground that the latter involved an initial orga-
nizing situation while Allou involved an existing collective-bargaining re-
lationship. That Board thus signaled its intent where violence was con-
cerned not to draw distinctions "more nice than obvious."
Judge Scalia 6 of the Court of Appeals for the Dis-
trict of Columbia had recently stated:7
The purpose of the APA requirement that
there be included in the agency's decision the
"conclusions, and the reasons or basis there-
fore, on all the material issues of. . . law" is
only secondarily to enable reviewing courts to
discern irrationality. Its primary purpose is to
impose a discipline upon the agency itself, as-
suring that it had undergone a process of rea-
soned decision-making rather than haphazardly
reach a result that could (on one or another
basis of analysis) be sustained. . . . In the cir-
cumstances of this case, we think it was un-
questionably incumbent upon the Board to ex-
plain why it did not consider its decision a de-
parture from the principles established in its
prior cases, or why it considered a departure
appropriate.
In NLRB v. Metropolitan Life Insurance Co., 380
U.S. 438, 442-443 (1965), the Supreme Court
stated:
On the other hand, due to the Board's lack of
articulated reasons for the decisions in and dis-
tinctions among these cases, the Board's action
here cannot be properly reviewed. When the
Board so exercises the discretion given to it by
Congress, it must "disclose the basis of its
order" and "give clear indication that it has
exercised the discretion with which Congress
has empowered it." [Citations omitted.]
In light of the violent and intimidating nature of
Stroud's and Senese's conduct, and the fact that
this conduct was directed to unit employees and
occurred in front of them, I also conclude, con-
trary to the majority, that a fair and free election
cannot be held so long as these individuals are per-
mitted to enter the Charging Party's premises and
threaten employees by their presence. Moreover,
the Board had held in another context that an em-
ployer is under no obligation to bargain with a spe-
cific union representative whose violent conduct
has made good-faith bargaining impossible. Fitzsim-
mons Mfg. Co., 251 NLRB 375 (1980), affd. 670
F.2d 663 (6th Cir. 1982). Under the circumstances,
I would find, since an election is directed, that the
purposes and policies of the Act will be effectuated
by an Order which requires that the Respondent
prevent Frank Stroud and Lucien Senese from en-
tering on the Charging Party's premises, and which
removes Stroud and Senese from responsibilities
for representing the Respondent in matters related
Now Associate Justice of the Umted States Supreme Court.
7 Iron Workers Local 111 v. NLRB, 792 F.2d 241, 247 (D C. Cir. 1986).
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the terms and conditions of employment of the
Charging Party's employees.8
8 My colleagues argue that this aspect of my proposed remedy is un-
necessary because "it is entirely speculative" whether the Charging Party
would ever be called on to negotiate with Stroud and Senese. The short
answer to my colleagues is that I agree that it is speculative, and I would
simply ensure, in consequence of the violent misconduct of these two
union representatives, that the Charging Party never be put in the posi-
tion of actually having to bargain with them. The longer answer to my
colleagues is that mere speculation about whether respondents in general
will, at some future time, commit additional unfair labor practices does
not obviate the appropriateness of remedial provisions requiring respond-
ents to refrain in the future from violating employee rights in like, relat-
ed, or (if warranted) other manner; indeed, just such arguably "specula-
tive" remedial provisions are contained m the very Order which my col-
leagues today adopt.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten representatives of the
Employer, Kennicott Bros. Company, or its em-
ployees with violence.
WE WILL NOT engage in violence by physically
attacking representatives of the Employer.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
PRODUCE, FRFSH AND FROZEN
FRUITS AND VEGETABLES, FISH,
BUTTER, EGGS, POULTRY, FLORIST,
NURSERY, LANDSCAPE AND ALLIED
EMPLOYEES UNION, CHICAGO AND
VICINITY, ILLINOIS LOCAL 703, AF-
FILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA
Roberta Brown, Esq., for the General Counsel.
John Schauer and Jill Goldy, Esq., for the Employer.
William Lennon, Esq., for the Union.
DECISION
FRANK H. ITKiN, Administrative Law Judge. The Em-
ployer is engaged in the wholesale distribution of flowers
and other floral supplies at its facility on West Randolph
Street in Chicago, Illinois, and is admittedly engaged in
commerce as alleged. The Union has represented for a
number of years an appropriate unit of employees work-
ing at the West Randolph Street facility, and is admitted-
ly a labor organization as alleged. The most recent col-
lective-bargaining agreement between the Union and the
Employer expired on September 30, 1981. Thereafter, on
October 27, 1981, employee Michael Tincher filed a peti-
tion with the Board's Regional Director in Case 13-RD-
1373, alleging that a substantial number of the unit em-
ployees assert that the Union is no longer their represent-
ative. A hearing was conducted on this petition and, on
March 3, 1982, the Regional Director issued a Decision
and Direction of Election. A secret-ballot election was
conducted among the unit employees on April 2, 1982,
Of approximately 33 eligible voters, 12 votes were cast
for the Union, 10 votes were cast against the Union, and
10 ballots were challenged. Subsequently, on April 9,
1982, the Employer filed with the Regional Director ob-
jections to conduct affecting the results of this election.
In the meantime, on December 30, 1981, the Regional
Director had issued an unfair labor practice complaint in
Case 13-CB-9768, alleging that the Union had violated
Section 8(b)(1)(A) of the National Labor Relations Act
by threatening to inflict and inflicting physical harm on
representatives of the Employer and, further, by threat-
ening to inflict harm on employee Tincher. Because the
conduct alleged to be unlawful in the unfair labor prac-
tice case is essentially the same as the conduct claimed to
be objectionable in the related representation proceeding,
the Regional Director, on May 5, 1982, ordered that the
issues thus raised in the two proceedings—pertaining to
the unfair labor practice allegations, the objections, and
the challenges—be consolidated for purposes of hearing
and decision. Consequently, hearings were conducted
before me in the consolidated cases on May 19, 20, and
21, 1982, in Chicago, Illinois. And, on the entire record,
including my observation of the demeanor of the wit-
nesses, and after due consideration of the briefs filed by
all counsel, I make the following.
I. FINDINGS OF FACT IN CASE 13—CB--97681
Harrison Kennicott, president of the Employer, testi-
fied that the Union has had a collective-bargaining rela-
tionship with his Company for about 30 years; that their
most recent collective-bargaining agreement expired on
September 30, 1981 (G.C. Exh 2); that, as of December
11, 1981, there were some 23 employees in the contract
unit; and that, although the Employer then employed
about eight "bouquet makers" at its West Randolph
Street facility, the "bouquet makers" are not represented
by the Union and are not covered by the collective-bar-
gaining agreement. Kennicott further testified that nego-
tiations with the Union for a new collective-bargaining
agreement commenced during late August 1981; that, on
December 9, 1981, there was a hearing before a Board
hearing officer on the petition filed by employee Tincher
in Case 13-RD-1373, principally concerning the question
of whether the bouquet makers are unit employees; and
that, about this same time, a related issue concerning the
bouquet makers was pending before an arbitrator under
1 The unfair labor practice complaint was amended at the hearing. Ad-
ditionally, the Union's name, as appearing in the caption, has been cor-
rected by stipulation.
TEAMSTERS LOCAL 703 (KENNICOTT BROS.) 1131
the contract. (See, generally, G.C. Exh. 6, the Regional
Director's Decision and Direction of Election, fns. 2 and
3, and G.C. Exh 5, the arbitrator's award.)2
The conduct of the Union's representatives, which is
alleged in the complaint to be violative of Section
8(b)(1)(A) of the Act, occurred on December 11, 1981.
Harrison Kennicott described that conduct, as follows:
About 9:30 a.m. on December 11, Kennicott was "told"
by Manager James Schmoeller that Union Representa-
tives and Agents Frank Stroud and Lucien Senese "had
been taunting" Assistant Manager Thomas Cech and, in
fact, "had been spitting on him." Kennicott then spotted
Stroud and Senese on the premises, "coming forward
from the back door." Kennicott approached Stroud and
"asked him what his business was?" Stroud replied by
calling Kennicott a "cocksucker, motherfucker and dirty
bastard . ." Keimicott repeatedly asked Stroud "why
he was here" and if Kennicott "could help him" Stroud
"responded the same way again in a louder tone . . . ."
Unit employees and customers were "working in the
area." Finally, Kennicott asked Stroud "to leave now."
Stroud repeated the above-quoted obscenities. Kennicott
asked James Schmoeller to call the police. Stroud ad-
monished Kennicott: "I'm going to get you, you son of a
bitch. . . ."
Stroud then went down the stairs of the Employer's
facility, to the basement, where the bouquet makers are
stationed. There, as Kennicott testified:
Mr. Stroud was saying that I was a cheap sucker,
that I had been underpaying the bouquet makers by
at least $2 per hour for a long time and they ought
to join his Union. . . . I [Kennicott] told him that
he couldn't disrupt our business, these people
weren't under his contract, and he'd have to talk to
them on his own time, that he had no right to be
there uttering this kind of language, and talking to
people, and I asked him to leave,. . . He then said
to me, maybe I would like to go outside with him,
that he'd take real good care of me, that he would
really get me, that he'd make mincemeat out of me,
and that I'd wish I was never born.. . . He contin-
ued to call me the same names,. . . and repeatedly
said that he would get me, that I should go outside
with him
The police then arrived. Stroud and Senese persisted
in their refusal to leave the premises and, consequently,
Kennicott advised the police that he would press crimi-
nal charges. The police arrested Stroud and Senese, and
Kennicott filed disorderly conduct and assault charges
2 Keunicott noted that about late October 1981, when employee
Tincher's petition was being filed, Umon Recording Secretary and Busi-
ness Agent Frank Stroud visited the West Randolph Street facility;
Stroud was "very excited" and accused assistant manager "Tom Cech
and management people" of "helping to circulate a petition; "Stroud ran
around like a wild man grabbing people"; and Stroud caused a "work
stoppage." Kennicatt recalled that Stroud caused other work stoppages.
On one occasion, Stroud was overheard telling employees "in the front
of our store" that the Union "would no longer negotiate with" the Em-
ployer. Stroud was also overheard "saying" to employees that Assistant
Manager Cech was "a 90-day wonder" "not knowing his ass from a hole
in the ground."
against them at the police station. Keimicott returned to
the West Randolph Street facility about 11 a.m.
About 2 p.m. that same day, as Kennicott further testi-
fied, Stroud and Senese returned to the Employer's
premises. Kennicott was in the basement in a meeting
room. He was summoned to the main floor. He "went to
the top of the stairs," whereupon Stroud and Senese ap-
proached him. Kennicott recalled:
I asked them why they were there, what they
wanted. Mr. Stroud said, "Get out of my way,
motherfucker." . . . As I got to the top of the
stairs, Mr. Stroud either pushed or shoved me or hit
me, and somehow I got on the other side of him,
whereby he was on the top of the stairs and I was a
couple of steps forward from the top . . . My next
memory is that Mr. Stroud took a punch at me, a
full haymaker type of swing, and I ducked and he
missed me completely, and he fell on the floor.. . .
Then, I was hit from the side or behind somehow
. . . several times, and I was on the floor.
Kennicott explained that Senese had "hit" him "at that
point." Kennicott continued:
Then, I remember a few seconds of being on the
floor, and Mr. Stroud and Mr. Senese were both
there, and I was being hit or kicked from behind
and from the front.
Kennicott attempted to "get up"; he "still was being
hit"; and he observed James Schmoeller "standing beside
Senese"—Schmoeller "had blood all over his face" and
"his glasses were broken." All this occurred in the pres-
ence of some 15 unit employees and customers. Stroud
and Senese left the premises. The police returned to the
premises and additional charges were filed. Kennicott
sustained a black eye, a swollen face, his ears and chest
were sore, and he experienced trouble breathing. Kenni-
cott denied striking or attempting to strike either Stroud
or Senese.3
James Schmoeller, manager at the West Randolph
Street facility, testified that during the morning of De-
cember 11, Assistant Manager Cech "came to me and
told me that Frank Stroud and Lucien Senese were in
the parking lot, and they had swore at him, using names
like pussy, cocksucker and jagoff, and they had spit on
him" Schmoeller then observed Stroud and Senese "on
the main floor" of the premises. Sclunoeller testified:
The shouted obscenities to me. . . . Frank Stroud
called me again across the tables, pussy, cocksucker,
jagoff, and lackey.
There were, as noted, unit personnel in the area. Kenni-
con "asked them if he could help them with anything
3 During this incident, as Kennicott testified, employee Keith
Schmoeller, son of Manager James Schmoeller, yelled to Senese, "Don't
get my father, don't hurt my father." Keith "was holding a knife that he
used at work in his hand." Kennicott instructed Keith "to just get over to
the side out of the way," and Keith "did that." Senese, however, was
heard to say to Keith: "Oh, you've got a knife," and "it appeared that
[Senese] was trying to taunt him into attacking."
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
• . . ." Stroud and Senese "started walking to the base-
ment and the bouquet department. Kennicott followed
them. Schmoeller instructed a salesman "to be sure that
the police were called."
In the basement, Stroud told the bouquet makers that
the Employer's representatives "are a bunch of cheap
bastards, and they are getting screwed by" Kennicott.
Schmoeller noted that Kennicott apprised the "bouquet
makers" that "this is completely untrue"; Stroud, in turn,
told Kermicott that "he'd like to hit him" Ketmicott re-
plied:
I'm sure you probably would like to hit me, but that
does not change the situation here. These people
are not part of your unit, and you're not to be talk-
ing to them on Company time
Stroud was "loud" and "boisterous." The police arrived
and then Stroud and Senese were arrested after they "re-
fused to leave."
James Schmoeller next recalled the return of Stroud
and Senese to the premises during the afternoon of De-
cember 11, as follows:
The first thing I saw was Frank Stroud swinging at
Red Kennicott, missing entirely, then spinning
around and fell right on the floor. Lucien [Senese]
then started hitting Red, finally knocked him down.
And, by that time, Frank Stroud got up again, and
they both started kicking and hitting him.
Schmoeller elsewhere noted:
Lucien tried to push Red aside, and Red moved
back in front of him, and then Lucien moved Red
real hard with his right arm to the side, pushing
him back out of the way, and at the same time, he
[Senese] came back and hit me with his right fist in
my face. . . .
Schmoeller "fell down on the floor completely dazed"—
his "glasses were broken" and he was "bleeding."
Schmoeller denied that either Kermicott or he had at-
tempted to hit or had struck Stroud or Senese. Schmoller
went to the hospital later that day.4
Assistant Manager Thomas Cech testified that during
the morning of December 11:
I was approached by Senese and he said to me,
"why did you call me a jagoff?" I said, "I didn't say
anything to you." He repeated, "why did you call
me a jagoff?" I said "sir, I didn't call you any-
thing." And he sairl, "Then you're a pussy" and he
4 Sclunoeller further noted that he too yelled at his son, Keith, to
"leave him alone" and not get involved. Schmoeller further noted that
previously, during late October 1981, he had attended a bargaining ses-
sion at the Federal Mediation Building; and that
Frank Stroud and Lucien [Senese] broke into the room and an-
nounced that they had just gotten word that they were not negotiat-
ing with Kennicott under any circumstance . . . . And, all of a
sudden. . . Frank Stroud. . . pointed to me and he said, "I want
you out of here now."
Stroud "charged around the table trying to get at" Schmoeller. Senese, in
like vein, warned: "You'd better get going, get out of here." The media-
tor escorted Sclunoeller out of the budding and into a "cab."
spit at me. . . . When I was spit at by Mr. Senese,
he hit me in the right check and on the right shoul-
der.
Cech then related this incident to Schmoeller.
Cech further testified that during the afternoon of De-
cember 11:
Frank Stroud went to throw a punch at Red [Ken-
nicott], but he slipped on the ground. There was
water on the floor and he slipped on the floor and
fell down. Red backed up as a defense to the punch
and backed up in a bent over position. Lucien
Senese grabbed him with a right arm around the
waist and brought a left hand into his face.
Cech observed James Schmoeller "laying on the floor
bleeding from the face." Cech denied attempting to
strike or striking Stroud or Senese. Cech denied witness-
ing any representative of management "physically strike
Stroud or Senese."5
Michael Tincher, a unit employee and a member of the
Union, testified that he filed the decertification petition
in Case 13-RD-1373; that he appeared at the Board's of-
fices for a hearing on this petition on December 9, 1981;
and that, as he was leaving the Board's offices on De-
cember 9, 1981; Stroud said to him: "I see the son of a
bitch finally came to life." Later, during the morning of
December 11, Stroud, as he was being escorted by the
police out of the West Randolph Street facility, called
Tincher "a cunt." And, during the afternoon of Decem-
ber 11, as Stroud was about to enter the facility, "Stroud
told me [Tincher], I'd better watch my step from here on
in . . . ." Stroud, at the time, "placed his hand on"
Tincher's "arm."
Lucien Senese, vice president and business representa-
tive of Local 703, testified that, during the morning of
December 11, as he started to enter the Employer's
premises, Assistant Manager Cech "started yelling
things." Senese claimed: "I think he [Cech] called me a
jagoff." Senese then "Walked over to" Cech and Cech
said: "I didn't say nothing." Senese denied spitting on or
hitting Cech. Senese then testified, in part as follows:
Q. What happened next?
A. We walked into the building, talked to a
couple of employees. I walked around, not talking
to as many. I walked to the front, we walked
around, went down in the basement—I'm sorry.
When we went downstairs, Frank [Stroud] went
down first, Red [Kennicott] went down right after
Frank, and I went down right behind him.
Q. Was there a conversation or a confrontation
of any kind between Red Kennicott and Frank
Stroud at that point in time? That you could hear?
5 Richard Johnson, vice president of the Company, did not witness the
above incident. Johnson, however, recalled observing Senese and Stroud
at the facility during the afternoon of December 11. l-le said "good after-
noon" to them "in the back area," and Senese then "spit on me." Senese
also called Johnson "a cunt." Johnson then notified Kennicott of then
presence.
TEAMSTERS LOCAL 703 (KENNICOTT BROS.)

1133
A. No.
Q. How far away from them were you?
A. Twenty, 30 feet.
Q. Okay. Now, when did you rejoin Frank
Stroud?
A. As we were going down the stairs.
Q. To the basement?
A. Correct.
Q. And was Red Kennicott with him at that
time?
A. He was right in back of him.
Q. How close?
A. About a step away.
Q. Was Red Kemiicott saying anything to him,
or was he saying anything to Red Kennicott?
A. Red kept on saying, "What do you want
here?" Frank says, "I just want to look around."
Q. When you got to the bottom of the stairs,
what happened?
A. Frank and I proceeded to walk around. We
were explaining at one time to the bouquet makers
that we were in arbitration, we are waiting for the
decision, and so on, and Frank was still talking to
them At this time whatever Frank would do, he
would interrupt—Red would interrupt Frank.
Whenever Frank would, you know, try to say, you
know, "Excuse me. I just want to talk to the
people," and he started yelling out about the cab
drivers, "Frank, these are not cab drivers." . . .
Every time Frank would speak, Red would kind of
lean against Frank's shoulder and say, "Frank, I
want you to leave.". . . Schmoeller was down, the
person, that I know as Jack now, was down.
Q. In the basement?
A. Correct. And I remember—Red was yelling at
Frank, and Frank said, "You really want me to hit
you, don't you?" Red says, "I just want you to
leave," and he was getting real—started yelling. He
was shaking, and he just wanted Frank to leave.
Q. What happened next?
A. I heard someone say, "Call the police," and
shortly thereafter I remember the police coming.
Senese then related his return to the facility that after-
noon. Senese claimed that "we felt very embarrassed to
get taken out of there because we represented the
people." Senese testified, in part, as follows:
When I approached the stairs, I see Mr. Red
Kemficott. I said, "Excuse me,"—he was by the
stairs, by the rails, and he said, "I want youse to
leave now." I said, "We are not leaving, we have a
right to be here." And / said, "Excuse me," and I
put my hands up in the air like this (indicating), and
I tried to go around by the stairs, and at that point,
Mr. Kennicott pushed me into the rail, and I went
down.
The next thing I knew is, Frank [Stroud] was
getting like bombarded. I remember I couldn't even
see Frank's head. There was his jacket pulled over
his head. Frank couldn't get—Mr. Johnson, Mr.
Jack—who I had talked to Frank with Mr. Kenni-
cott—I remember I was trying to pull Mr. Johnson
off.
At this point, Mr. Schmoeller came running,
grabbed me, I hit him, kept on trying to get the
people off Frank. At one point, with—everybody
was up, I had Red by the arm, and I was pushing
him away, trying to push Mr. Cech away, and Mr.
Kennicott swung and tried to hit me. The first one
he missed, the second one he hit me towards the
higher calf, then I did hit him. And I proceeded to
go downstairs.
Senese claimed, inter alia, that Kennicott, during the
afternoon of December 11, "attacked" him and also "at-
tacked" Stroud. Senese acknowledged that Stroud "hit
Red Kennicott and was punching him" "when every-
body was on the floor." Senese acknowledged that
Stroud had stated to Kennicott earlier that day: "If
you're really looking for a fight we can all go to the
parking lot and I'll kick your ass." Senese is 25 years old,
weighs 260 pounds, and is 5 feet 10 inches tall. Kennicott
is 44 years old, weighs 160 pounds and is 5 feet 10 inches
tall. James Schmoeller is 49 years old, weighs 170
pounds, and is about 5 feet 10 inches tall.
Frank Stroud, business representative, trustee, and re-
cording secretary for the Union, testified that during the
morning of December 11, as he and Senese attempted to
visit with the membership at the Employer's West Ran-
dolph Street facility, Kennicott "came to me and asked
me was there anything that he could do for me." Stroud
replied, "not at this time," and Stroud "started walking
away." Stroud claimed that Kennicott "walked . . .
right along with me. . . he was right on me. . . over
my shoulder." Kennicott repeated his question to Stroud,
and Stroud replied: "First, get out of my face." Stroud
again "walked away." Kennicott repeated his question.
Stroud "shouted":
Red, are you hard of hearing . . . . There's not a
damn thing you can do for me at this time. . . . I
would appreciate it if you would get out of my
way. I don't want you with me when I'm talking to
these Union members.
Stroud "walked away again." Kennicott followed, re-
peating his question. Stroud "went down the steps to the
basement" of the facility, and Stroud "stopped to ask
again, was he [Kennicott] hard of hearing." Stroud then
spoke to the bouquet makers in the basement. Kennicott
again repeated his question. According to Stroud, "At
this time I was trying to ignore him."
Stroud further testified that:
Mr. Kennicott . . went in a rage, and he told me I
don't want you talking to these people, and he
really got up in my face close, real close, and he
said, you have no right talking to these people.
These people don't belong to you.
Stroud stated to Kennicott:
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Red, you would love for me to touch you or start a
fight with you in here so you would have a reason
to throw me out, wouldn't you?
Then, Kennicott said, "You've got to leave." Stroud re-
plied: "No, I'm not going." Kennicott "yelled to Mr.
Schmoeller to call the police." Stroud claimed that "Red
just kept ranting and raging." Stroud admittedly stated
to Kennicott:
Red, if you really want a fight, I'm not going to
fight you on your premises. If you really want to
fight, I'll go outside with you. . . . I'll go outside
with you and Schmoeller.
The police subsequently arrived and Stroud and
Senese, after refusing to leave the premises, were arrest-
ed. Stroud testified that he had apprised the police:
I'm a Union representative, officer of the Local, and
we have a contract here with these people, with a
visitation clause. I have a right to be here, I've done
nothing wrong.
It is undisputed, however, that the Union's contract with
the Employer had expired on September 30, 1981, and
this expired contract contains no "visitation clause."
Stroud further testified that he and Senese returned to
the Employer's facility that afternoon, after the police
had "released" them. 6 Stroud related this second visit, in
part, as follows:
I turned to look for somebody else to talk to and I
saw Mr. Senese and Mr. Kennicott at the stairway.
Mr. Kennicott was pushing against Lucien, and
Lucien was trying to squeeze around past him to go
down the steps, and Mr. Kennicott gave Lucien a
shove. Lucien went back against the rail of that
stairway, and it appeared that he was in pain. He
was like falling and his—this part of his part of his
body (indicating) was leaning on the rail. I walked
over towards them. Mr. Kennicott took a swing at
me and I hit him I don't remember whether he
hit me or not, but when he swung at me, I hit him.
Mr. Kennicott, as he was falling, he grabbed me by
both of my legs and he was trying to wrestle me to
the floor, turn me over, so I went down on him.
And that's—I was pounding away.. . . I continued
to hit Mr. Kennicott and he was wrestling with me.
Stroud added:
Well, there were people on my back, then there
were legs. I could see feet, movement around me. I
couldn't see no further than the knees because I had
not time to look up. . . . They was hitting me. . . .
Finally, I heard Lucien yell, "Get off his back. Get
up," and he said "Get up. I said get off his back."
And then Mr. Kennicott and I both came off the
floor.
6 According to Stroud, his labor relations' attorney, William Lennon,
had advised him: "You should go back there and let the people know
. . what happened.
I believe Lucien was saying that he pulled Mr.
Kennicott this way, he shoved me this way, he said,
"Take a walk, move out, take a walk," like this [in-
dicating], and it was just about broken up, and Mr.
Kennicott was standing there, charged at me, or
something, and Lucien held him back. He said,
"Take a walk," and then Mr. Kennicott swung at
Lucien twice, and Lucien hit him. . . Then it was
broken up. . .
Stroud and Senese hurriedly left the premises.
Stroud denied, inter alia, that he or Senese had had a
confrontation earlier that day with Assistant Manager
Cech in the parking lot. Stroud also denied calling Ken-
nicott obscenities. Stroud elsewhere acknowledged that
"it's possible" he used "vulgar words." Stroud claimed
that following the December 11 incident, he was hospi-
talized for about 4 days. He later explained that this hos-
pitalization was about 2 weeks after the incident. Fur-
ther, Stroud acknowledged that "Mark Sepe is the repre-
sentative [who] usually services the contract at Kenni-
cott" Sepe, who testified in this proceeding with respect
to, inter alia, visitation rights and related matters, did not
witness the December 11 incident.1
Michael Brown, a stockman employed at the facility,
testified, in pertinent part as follows:
At 2:00 o'clock I was working at the grange depart-
ment and I seen Frank and Lucien walk into the
door, and Lucien was headed downstairs and Red
was coming up the stairs. And I seen Red push
Lucien—on the floor, and Norman, the salesman
employed at Kennicott, was separating, telling
them, "You guys stop," you know, trying to sepa-
rate them. . . . And Schmoeller and Frank—I
couldn't see them too clear because the floor was
right there, and the next thing you know I see
Schmoeller, Jr., came from nowhere and was
swearing and he had a knife, but I didn't know
what he was going to do with it, but he had a knife
in his hand. And that was all I seen.
On cross-examination, Brown claimed, inter alia, that he
did not "see Senese hit Red Kennicott in the face" "or
anywhere"; that he did not see "anybody hit Mr.
Sclunoeller"; and the he did not "see Frank Stroud
throw any punches." Brown, however, acknowledged
that Schmoeller "was bleeding and blood was dripping
down his face . . . ." See G.C. Exhs. 7(a) and (b).
Brown also acknowledged that Kennicott "had a knot on
his eye." See G.C. Exhs. 4(a), (b), and (c).8
I credit the testimony of Harrison Kennicott, James
Sclunoeller, Thomas Cech, Richard Johnson, and Mi-
chael Tincher as summarized above. Their testimony is
in significant part mutually corroborative. They im-
7 Stroud noted, and it is undisputed on this record, that he and Senese
were found not guilty in the criminal proceedings resulting from the
charges filed as a consequence of the above incident
Fred Coelter, a salesman at the facility, similarly gave us his limited
version of the December 11 incident. Coeher, however, mistakenly iden-
tified Max Kleinberg, a gentleman seated at the Union's counsel table, as
a participant.
TEAMSTERS LOCAL 703 (KENNICOTT BROS.)

1135
pressed me as reliable and trustworthy witnesses. Their
testimony is also substantiated in part by admissions and
acknowledgements of both Lucien Senese and Frank
Stroud as recited above. Insofar as the testimony of
Senese and Stroud conflicts with the above testimony of
Kennicott, SchmoeIler, Cech, Johnson, and Tincher,
am persuaded on this record that the testimony of the
latter witnesses represents a more reliable and accurate
recitation of the pertinent sequence of events. The testi-
mony of Senese and Stroud was at times incomplete,
contradictory, and unclear. Senese and Stroud did not
impress me as credible or trustworthy witnesses. In
short, I am persuaded here that Kennicott and
Schmoeller did not attack or hit Senese or Stroud as
claimed. Instead, as discussed below, I find that Stroud,
accompanied by Senese, threatened representatives of
management and employee Tincher with violence and
later, without provocation, physically attacked Kezmicott
and Schmoeller as alleged.9
Discussion
Section 7 of the National Labor Relations Act guaran-
tees employees "the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through represenatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or mutual aid or protection," as
well as the right "to refrain from any or all such activi-
ties . . . ." Section 8(b)(1)(A) of the Act makes it an
unfair labor practice for a labor organization or its agents
"to restrain or coerce . . . employees in the exercise of
the rights guaranteed in Section 7." And, it is not settled
law that where a labor organization or its agents threaten
employees in such acts of violence in the presence of the
employees, such conduct tends to interfere with employ-
ee protected rights and, consequently, runs afoul of this
statutory proscription. See, generally, Union National de
Trahajadores, 219 NLRB 862 (1975), enfd. as modified
540 F.2d 1 (1st Cir. 1976).
The credible evidence of record, as detailed supra,
makes it clear that Union Representatives Stroud and
Senese, angered because of the decertification petition
filed by employee Tincher and the impending election,
went to the Employer's premises. There, Stroud threat-
ened management and employee Tincher with physical
harm. Senese spit on representatives of management.
Stroud and Senese uttered obscenities to representatives
of management and, fmally, physically attacked repre-
sentatives of management. Such conduct, occurring for
the most part in plain view of the employees, clearly
tends to impinge on their rights protected in Section 7 of
the Act.
Counsel for Respondent Union asserts, inter alia, that
management representatives provoked and incited the
g The testimony of Michael Brown and Fred Coeher was at times con-
fusing, unclear, and mcomplete I therefore do not rely on their testimo-
ny in making my fmdings here. As for the testimony of Marck Sepe, he
did not witness the December 11 incident. Insofar as his testimony other-
wise conflicts with the Kenincott and Schmoeller, I credit the latter as
more complete, detailed, and trustworthy
above incident. The credible evidence of record is to the
contrary. Counsel for Respondent Union also argues that
the Union's conduct was in some way privileged because
of a claimed right of visitation on the Employer's prem-
ises. I note, however, that the expired contract between
the parties contains no such provision. And, in any
event, any right of visitation existing as the result of
custom or practice cannot, on this record, be reasonably
interpreted to include and protect the right of union rep-
resentatives to threaten, spit, curse, and physically attack
representative of management, or otherwise disrupt, as
here, the production of unit and nonunit personnel.
In sum, I find and conclude here that Respondent
Union violated Section 8(b)(1)(A) of the Act, as alleged
in the complaint.
II. THE REPRESENTATION PROCEEDING; REPORT IN
CASE 13—RD-1373
A. The Challenges
The Employer—in addition to its facility on West
Randolph Street in Chicago—also operates separate fa-
cilities in Milwaukee, Wisconsin; Hammond, Indiana;
Waukegan, Illinois; and Aurora, Illinois. However, the
Employer and the Union expressly stipulated before the
Regional Director about December 9, 1981, at the repre-
sentation hearing in Case 13-RD-1373, that employees
"at its facility located at 1317 West Randolph Street"
constitute an appropriate unit here. Consequently, Re-
gional Director, in his Decision and Direction of an
Election issued on March 3, 1982, found the following
unit to be appropriate:
All full time head packers, wrappers, and stockmen,
packers, wrappers, stockmen, general warehouse
help and drivers of trucks employed by the Em-
ployer at its facility located at 1317 West Randolph
Street, Chicago, Illinois; but excluding bouquet
makers, supply and design department employees,
sales employees, office clerical employees, guards
and supervisors as defmed in the Act.
The Regional Director ordered that the Employer file
within 7 days of his Decision an election eligibility list.
The Regional Director also apprised the parties of their
right to request review of his decision.
Subsequently, following the filing of the election eligi-
bility list, counsel for the Union petitioned the Regional
Director to reopen the record in order to include "cer-
tain employees who were allegedly employed at a loca-
tion (Aurora, Illinois) other than the only location of the
Employer with regard to which any of the parties have
heretofore raised any issues . . . ." (R. Exh 2) The Re-
gional Director noted that the parties had stipulated the
unit at the hearing as stated above and denied the
Union's petition on March 19, 1982 (R. Exh. 2). The
Union did not attempt to appeal the Regional Director's
March 3 Decision or his Order entered on March 19,
1982.
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thereafter, at the decertification election, seven
Aurora employees cast challenged ballots." The Union's
position, as the Regional Director noted in his supple-
mental decision of May 5, 1982, was that Wagner, E.
Oros, and Stob are eligible unit employees. (See G.C.
Exh. 1(h).)11
The challenges to the ballots cast by the seven Aurora
employees named above are sustained. The parties ex-
pressly stipulated before the Regional Director that an
appropriate unit includes employees "at its facility locat-
ed at 1317 West Randolph Street." The Regional Direc-
tor so found. He later denied the Union's petition to
reopen the record to include Aurora employees. No at-
tempt was made by the Union to seek Board review of
these determinations. Under these circumstances, I am
bound by the Regional Director's unit determinations
and, for this reason, must sustain these challenges. Cf.
Guyan Machinery Co., 155 NLRB 591, 594-595 (1965). In
any event, "here, the intent of the parties is expressed in
their stipulation of the appropriate unit in clear and un-
ambiguous terms"; the parties clearly intended to include
in the unit only the West Randolph Street employees;
and "the agreement does not violate any express statuto-
ry provisions or established Board policies." Cf. White
Cloud Products, 214 NLRB 516, 517 (1974). Accordingly,
these challenges are sustained.
An eighth Aurora facility employee, Tom Kuntsman,
also cast a challenged ballot. The Employer contends
that Kuntsman, unlike the seven other employees named
above, "has been a part of the historically recognized
unit (as described in the . . . stipulation) by express
agreement of the parties" (Co. Br. p. 49). Kuntstnan is a
salesman at Aurora. Counsel for the Employer acknowl-
edges that "salesmen in the Chicago store are not cov-
ered by the contract" (Co. Br. p. 58). However, counsel
for the Employer contends, citing principally the testi-
mony of Kennicott, that "about 1965 the Company did
enter [into] an express oral agreement with the Union
specifically to include Tom Kuntsman under the Chicago
collective bargaining agreement" (Co. Br. p. 58). The
Employer nevertheless failed to raise this question before
the Regional Director; never sought leave to reopen the
representation record; never appealed the Regional Di-
rector's decision; and did not even include Kuntsman's
name on the voter eligibility list.
The challenge to Kuntsman's vote is sustained. The
Regional Director's determination as to the facility en-
compassed by the unit is controlling here. The Employ-
er, like the Union, is also found by its clear and unambig-
uous stipulated unit, which covers only employees at the
West Randolph Street operation. And, this agreement, in
Kuntsman's case, does not violate any express statutory
10 Those seven employees are:
Richard Wagner Tom Schuster
Edward Oros Dale Lipke
Jack Stob William Hilderbrand
Victor Oros
11 Counsel for the Union restated his position on the challenges at the
hearing before me and would also include Hilderbrand. (See Tr. 776-
785.)
provisions or established Board policies. Cf. Guyan Ma-
chinery Co., supra, and White Cloud Products, supra."
Lawrence McKennie, a truckdriver on the payroll of
the Employer's Waukegan facility, also cast a challenged
ballot. For the reasons stated above, the challenge to
Mckennie's ballot is also sustained. The Union, however,
argues that McKennie is in fact an employee at the West
Randolph Street operation. The essentially uncontrovert-
ed evidence of record is to the contrary. It is true that
McKennie starts his workday by punching in at West
Randolph Street. There, flowers to be handled at the
Waukegan operation are loaded on Mckennie's truck. He
then proceeds to Waukegan where he spends essentially
most of his day, under the separate supervision there,
performing duties principally unrelated to the West Ran-
dolph Street operation. In short, McKennie's contact
with West Randolph Street is, in essential part, the park-
ing of a truck there overnight and delivering the bulk of
flowers to Waukegan. McKennie is therefore not an em-
ployee at West Randolph Street, under the clear and un-
ambiguous stipulated unit.
Finally, the Union challenged the ballot cast by Keith
Schmoeller. Kennicott credibly testified that Keith per-
forms unit work; receives the same benefits as other unit
employees; and is not accorded any special assignments
or privileges. Keith's father, James Schmoeller, is the
manager of the West Randolph Street facility. James
Schmoeller is not an owner of or officer in the corpora-
tion. He lives apart from his son. Under all the circum-
stances present here, Keith Schmoeller is entitled to vote
as a unit employee. Cf. Queen City Paving Co., 243
NLRB 71, 72 (1979).
B. The Objections
As noted, the Employer's objections to the Union's
conduct filed herein are essentially predicated on the
conduct found coercive above. On December 11, 1981, 2
days after the hearing before the Regional Director on
employee Tincher's decertification petition, Union Rep-
resentatives Stroud and Senese, angered at the filing of
this petition and the impending election, went to the Em-
ployer's facility. Stroud threatened members of manage-
ment with violence; threatened employee Tincher with
violence; and Stroud and Senese physically attacked rep-
resentatives of management in the presence of some 15
unit employees. This violence occurred after the police
had removed the Union's representatives from the facili-
ty and criminal charges had been lodged against them.
Under all the circumstances present here, I fmd that
the Union's conduct on December 11 prevented the
holding of a fair and free election. Absent an order pro-
hibiting such conduct and requiring the posting of a
notice containing such a prohibition, the unit employees
12 Brom Machine & Foundry Co., 227 NLRB 690 (1977), cited by the
Employer, is inapposite here. In Brom, as the Board majority noted, "a
question exists over whether, when the stipulation was executed, there
was in fact a meeting of the mmds as to the unit placement of the pattern
makers and parttime janitor . . ." In the instant case, the parties clearly
and unmistakenly stipulated that, in effect, only employees at West Ran-
dolph Street were involved. Indeed, as noted, Kuntsman's name was even
omitted from the Employer's eligibility hat.
TEAMSTERS LOCAL 703 (10ENNICOTT BROS.) 1137
cannot reasonably be expected to make a voluntary
choice on decertification. The 10-to-12 vote recorded on
April 2 was not result of a fair and free Board-conducted
election.
Therefore, the election results must be set aside and a
new election held.
CONCLUSIONS OF LAW
1.Respondent Union is a labor organization as alleged.
2. Charging Party is an employer engaged in com-
merce as alleged.
3. Respondent Union violated Section 8(b)(1)(A) of the
Act by threatening the Employer's represenatives and
employee Tincher with violence and by attacking repre-
sentatives of management.
4. The conduct found unlawful here affects commerce
as alleged.
5. All challenges to ballots, except with respect to the
challenge to the ballot of Keith Sclunoeller, are sus-
tained. The challenge to the ballot of Keith Schmoeller
is overruled.
6. The conduct of the Union's representatives, as
found above, interfered with and prevented the holding
of a fair and free election and, therefore, the election re-
sults of April 2, 1982, are set aside.13
REMEDY
To remedy the conduct found to be violative of Sec-
tion 8(b)(1)(A) of the Act, Respondent Union will be or-
dered to cease and desist from engaging in such conduct
or like or related conduct and to post the attached
notice. In addition, a new election will subsequently be
conducted at a time to be determined by the Regional
Director. Counsel for the Employer also seeks, inter alia,
as additional remedies (Co. Br. pp. 82-86, 103-104), the
right to be relieved, in total or in part, of its bargaining
obligation. These and related contentions, as the cases
cited by the Employer show, usually arise in the context
of an 8(a)(5) violation when an employer has refused to
bargain. Resolution of such matters is premature at this
time. In any event, an order enjoining the Union here
from engaging in the above conduct, under penalty of
civil or criminal contempt, and requiring the posting of
the notice attached, will in my view reasonably effectu-
ate the purposes and policies of the Act.14
15 Because the ballot of Keith Scimpeller will not materially affect the
results of the April 2 election, and because a new election must be held,
his challenged ballot need not be opened for a revised tally.
14 The General ConntPl's motion to correct the record, which is unop-
posed, is granted
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'5
ORDER
The Respondent, Produce, Fresh and Frozen Fruits
And Vegetables, Fish, Butter, Eggs, Cheese, Poultry,
Florists, Nursery, Landscape and Allied Employees
Union, Chicago and Vicinity, Illinois Local 703, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening representatives of the Employer, Ken-
nicott Bros. Company, or its employees, with violence.
(b)Engaging in violence by physically attacking repre-
sentatives of the Employer.
(c) In any like or related manner restraining or coerc-
ing employees of the Employer 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 offices, facilities, and meeting places
copies of the attached notice marked "Appendix."16
Copies of the notice, on forms provided by the Regional
Director for Region 13, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. Copies of the notices
shall also be made available to the Employer for posting
at its facility on West Randolph Street in Chicago, Iffi-
nois.
(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 results of the
election conducted on April 2, 1982, in Case 13-RD-
1373 be set aside, and the Regional Director shall con-
duct a rerun election at such time as he deems the cir-
cumstances permit a free choice on the issues of repre-
sentation.
15 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
15 If this Order it enforced by a judgment of a United States court of
appeals, the words m 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."