Teamsters Local 812 (Pepsi-Cola Newburgh)

National Labor Relations Board - Board Decisions

Aug 19, 1991

304 N.L.R.B. 111 (N.L.R.B. 1991)

111
304 NLRB No. 22
TEAMSTERS LOCAL 812 (PEPSI-COLA NEWBURGH)
1 The Respondent has excepted, inter alia, to the judge’s finding that the Re-
spondent violated Sec. 8(b)(1)(A) of the Act when a picketer deposited nails
(jack rocks) at the plant gate that became imbedded in a company truck’s tire.
The Respondent contends that driver David Jados’ testimony on this matter
is hearsay and that he never really saw what was in the tire. On the contrary,
the credited testimony of Jados is that on August 9 or 10, as he and his super-
visor were returning to the facility, they were stopped by 20 to 30 picketers
on the line. As they inched their way into the driveway, they were stopped
again. When they finally got through the crowd of picketers, someone in the
truck behind them told them something had been thrown underneath their
truck. After parking the truck, according to Jados, they ‘‘looked and found a
jack rock imbedded in the passenger rear wheel of the trailer.’’ The statement
by someone in the other truck that something was thrown under the truck was
hearsay. However, it was not offered for the truth of the statement, but was
offered only to show what happened next, i.e., what prompted Jados to look
under the truck. Therefore, the judge properly overruled the Respondent’s ob-
jection to Jados’ testimony concerning the statement made by someone in the
other truck. Further, the judge reasonably inferred from the strong circumstan-
tial evidence that one of the picketers threw the jack rock under the truck.
2 We agree with the judge’s findings that picketer Schneider’s statement to
driver Mangus that he was ‘‘going to send you all home in body bags,’’
Schneider’s pulling of a gun on Mangus, and Business Agent Russo’s state-
ment to driver Carli in July that ‘‘they were going to put [him] in a body
bag and send [him] home and that there was no way [he] was going to live
through the strike’’ all violated Sec. 8(b)(1)(A) of the Act. We find that these
statements and action–-for which the Respondent was responsible–-constituted
threats to physically injure and threats to kill and we will modify the rec-
ommended Order accordingly.
In concluding that the Respondent was not responsible for the conduct of
Schneider, our dissenting colleague asserts that the Respondent, after the inci-
dent involving Schneider, took steps to remove him from the picket line. In
our view, quite apart from whether such a removal would absolve the Re-
spondent from responsibility, there is no record evidence that the Respondent
took such steps. There is only the evidence that Schneider did not reappear
at the picket line.
3 The General Counsel excepts to the judge’s failure to discuss or pass on
various complaint allegations that the Respondent violated Sec. 8(b)(1)(A) by
threatening to kill and threatening to physically injure various persons. Al-
though the Board does not condone the judge’s total failure to address certain
issues raised in the complaint and fully litigated at trial, a remand would only
unduly delay these proceedings for findings that would be cumulative and
would not materially alter the recommended Order. We have, however, modi-
fied the Order to include, as sought by the General Counsel, proscriptions on
threats to kill and threats to injure based on the violations already found. We,
therefore, find it unnecessary to pass on the complaint allegations that the
judge failed to address.
4 Cutler’s testimony establishes that Yannucci was in fact responsible for
propelling the steel balls.
Soft Drink Workers Union Local 812, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO
and Pepsi-Cola Newburgh Bottling Company,
Inc. Case 2–CB–12932
August 19, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On April 27, 1990, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief, excep-
tions, and a supporting brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
The General Counsel excepts, inter alia, to the
judge’s dismissal of the complaint’s allegation that the
Respondent violated Section 8(b)(1)(A) of the Act
when striking employee Tony Yannucci attempted to
injure nonstriking employee Brian Cutler outside a su-
permarket in Middletown, New York. The judge
impliedly credited driver Brian Cutler’s testimony that
he was unloading his truck in a parking lot when 10
or more steel ball bearings began flying at him, hitting
the truck and its merchandise. According to Cutler, the
police were called and Cutler saw the police take steel
ball bearings and a wrist rocket slingshot from
Yannucci’s vehicle.4 Relying on his interpretation of
Teamsters Local 783 (Coca-Cola Bottling Co.), 160
NLRB 1776 (1966), and the lack of evidence establish-
ing the Respondent’s knowledge of Yannucci’s mis-
conduct away from the picket line, the judge rec-
ommended dismissal of this allegation.
As a general proposition, the judge is correct that a
union will not be held liable for striker misconduct that
occurs away from the picket line unless there is a
showing of knowledge of that specific misdeed. In this
case, however, the Respondent had previously been
made aware that Yannucci had engaged in misconduct
away from the picket line and had failed to repudiate
it or take steps to stop his misconduct from recurring.
Briefly, as found by the judge, in July and August,
striker Dennis Freeman assigned other strikers to fol-
low company trucks. In mid-July, as driver Carli was
returning to the facility, Yannucci repeatedly drove his
vehicle in front of Carli’s truck and repeatedly braked
it in a manner that almost caused an accident. Business
Agent Russo was made aware of the incident when
Carli confronted Yannucci about it back at the picket
line. Russo then told Yannucci not to talk to Carli and
went on to advise the picketers that Carli was the one
‘‘they were supposed to get.’’ Thus, the Respondent
knew of this specific act of misconduct and did not
disavow it. Indeed, the Respondent approved and en-
couraged such misconduct against CARLI. As noted
above, Yannucci later engaged in the misconduct of
projecting steel ball bearings at nonstriker Cutler. Con-
cededly, this misconduct was aimed at a different em-
ployee and involved a different form of coercion.
However, these differences do not absolve the Re-
spondent of responsibility. The message from the Re-
spondent to Yannucci was clear: coercive acts against
nonstrikers are condoned and even encouraged.
Yannucci acted on this message and thus the Respond-
ent is clearly responsible therefor. We therefore find
that through Yannucci’s shooting the metal balls at the
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I agree that Business Agent Russo’s statement to driver Carli constitutes
a threat to kill and by that statement the Respondent violated Sec. 8(b)(1)(A).
Contrary to my colleagues, however, I would not find that the Respondent vio-
lated Sec. 8(b)(1)(A) through picketer Schneider’s conduct. In its exceptions
the Respondent contends, inter alia, that it took action by keeping Schneider
off the picket line after it became aware of this incident. I find merit in the
Respondent’s exception. The judge found that after the date of the incident
Schneider was no longer on the picket line, in contrast to his previous daily
presence. The judge noted in finding the violation, however, that Schneider
continued to come to the Respondent’s camper several times weekly, and that
there was no evidence that he had been reprimanded or disciplined by the Re-
spondent. I find that by removing Schneider from the picket line following his
misconduct the Respondent took steps reasonably calculated to control the
misconduct. Teamsters Local 60 (Delta Lines), 229 NLRB 993, 994 (1977).
Therefore, I conclude that Schneider’s actions did not constitute a violation of
Sec. 8(b)(1)(A).
I note that no exceptions have been filed to the judge’s conclusions that the
Respondent unlawfully photographed employees using a telephoto lens and re-
corded employees’ license numbers. In view of these violations, I find it un-
necessary to determine whether the judge also found the Respondent’s
videotaping of employees unlawful, because such an additional violation
would be cumulative and would not materially affect the Order.
truck and its contents, the Respondent violated Section
8(b)(1)(A) of the Act.
The Respondent has also excepted to what it per-
ceived as the judge’s finding that the Respondent had
violated the Act by stationing a video camera across
the street from the plant and directing it at the main
gate for a 4- to 5-week period. The Respondent con-
tends that, as the Employer had a video camera on the
premises to record the events as they occurred 7 days
a week, for 4 to 12 hours a day, it was also proper
for the Union to have a video record. The judge dis-
cussed this video recording in the context of his dis-
cussion of picketers recording license plate numbers
and of a picketer on the line with a camera with a tele-
photo lens photographing employees as they entered
and exited the building. A close reading of the judge’s
actual finding of a violation reveals, however, that the
judge did not include the Respondent’s video recording
as a violation. It was only the picketers’ conduct in re-
cording license plate numbers and the use of the tele-
photo lens to photograph employees entering and
exiting the building that he concluded constituted a
violation of the Act. We adopt this conclusion.
We also adopt the remedial relief recommended by
the judge, except that we shall alter the provision re-
quiring the Respondent to cease and desist from violat-
ing employee rights ‘‘in any like or related manner’’
to ‘‘in any other manner.’’ In our view the Respondent
has shown a proclivity to violate the Act and a general
disregard for employees’ fundamental statutory rights
and therefore we shall impose a broad order. See
Hickmott Foods, 242 NLRB 1357 (1979).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Soft
Drink Workers Union Local 812, International Brother-
hood of Teamsters Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO, Scarsdale, New York,
its officers, agents, and representatives, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Restraining or coercing employees of Pepsi-
Cola Newburgh Bottling Company, Inc., in the exercise
of their rights under Section 7 of the Act by throwing
rocks, displaying guns, blocking ingress and egress,
physically threatening and spitting at employees, re-
cording license numbers and photographing employees,
placing nails in front of vehicles, damaging employees’
vehicles, throwing liquid at employees, dangerously
interfering with the driving of employees, threatening
to physically injure employees, and threatening to kill
employees.’’
2. Substitute the following for paragraph 1(b).
‘‘(b) In any other manner restraining or coercing
employees in the exercise of their rights under Section
7 of the Act.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER DEVANEY, concurring in part and dissenting
in part.
I agree with my colleagues’ conclusion that the Re-
spondent violated Section 8(b)(1)(A) through the nu-
merous incidents of misconduct engaged in by employ-
ees and the Respondent’s representatives on the picket
line.1 In reaching this conclusion, however, I find it
unnecessary to pass on the judge’s and my colleagues’
reliance on vis Rent-a-Car, 280 NLRB 580 (1986).
In determining union liability for picket line mis-
conduct, the Board as traditionally applied general
principles of agency law and found the union liable
‘‘only where it is shown that the union, either actually
or impliedly, authorized the picket’s conduct before-
hand or ratified the conduct after it occurred.’’ Delta
Lines, supra at 993, 994. Thus, the Board has found
a violation where a union representative participated in
the misconduct, was present when it occurred, or had
knowledge of the misconduct but failed to take steps
reasonable calculated to control it. Id. I find that the
Respondent was liable under this standard for the mis-
conduct that occurred on the picket line here, without
regard to the more far-reaching approach to union li-
ability articulated in the Board’s dicta in Avis.
The 14 incidents of picket line misconduct at issue
here, excluding Schneider’s display of a gun, took
place between early July and late October 1989. The
judge found that one or more representatives of the
Respondent, including President Rumore and Business
Agents Russo and Vitta, were present for or partici-
pated in at least six of these incidents. Thus the Re-
spondent’s agents personally engaged in or witnessed
misconduct involving throwing liquid at a driver,
throwing rocks at the Company’s facility, blocking in-
113TEAMSTERS LOCAL 812 (PEPSI-COLA NEWBURGH)
2 I agree with my colleagues’ adoption of the judge’s conclusion that the
Respondent also violated Sec. 8(b)(1)(A) through misconduct away from the
picket line when employee Yannucci interfered in a dangerous manner with
the driving of employee Carli. Contrary to my colleagues, however, I agree
with the judge’s dismissal of the allegation concerning Yannucci’s subsequent
misconduct involving the shooting of metal balls at driver Cutler in a super-
market parking lot because, as found by the judge, the evidence does not show
that the Respondent knew of or later became aware of that incident.
1 All dates refer to 1989 unless otherwise specified.
gress and egress at the front gate, threatening a non-
striking employee, threatening to assault a security
guard, and spitting at employees. It is clear that the
Respondent is liable for the actions of its own agents,
as well as for misconduct by other picketers while its
agents stood by. I therefore agree with my colleagues
that by each of the above acts of misconduct the Re-
spondent violated Section 8(b)(1)(A).
I further find that under the circumstances of this
case the Respondent is liable for other acts of mis-
conduct, even though its agents may not have been
present on the picket line itself when misconduct oc-
curred. This misconduct includes additional incidents
of the types found unlawful above, as well as other
violations found by the judge involving recording li-
cense plate numbers of nonstriking employees,
photographing employees entering and leaving the
Company’s facility, throwing nails under a company
truck, and damaging vehicles.
In this regard, the record in this case clearly indi-
cates that, even if Business Agents Vitta and Russo did
not witness or specifically authorize each incident of
misconduct, they had reason to know of this pattern of
behavior at the picket line and took no action to pre-
vent it. Thus, the judge found Business Agents Vitta
and Russo supervised the picket line daily, and that
each was at the Company’s facility approximately 12
hours per day. Although the business agents spent
much of this time in the Respondent’s camper, the
camper was located directly at the picket site. I find
that because of their proximity to the picket line, Vitta
and Russo could not reasonably have been unaware of
the picketers’ actions. The incidents at issue here were
not isolated events; rather, 12 of the 14 incidents took
place in relatively close succession during the months
of July an August. Moreover, the agents themselves, as
well as the Respondent’s president, repeatedly partici-
pated in or witnessed misconduct, beginning with the
first occurrence at issue and extending until August 31.
Far from attempting to control the picketers’ actions,
the agents, by their participation, promoted the mis-
conduct of others. Therefore, based on the daily pres-
ence of the Respondent’s agents at the picket site with
responsibility to supervise the picket line, their per-
sonal participation in unlawful conduct, the closeness
in time of the repeated misconduct by picketers, and
the failure of the agents to take steps to prevent the
recurrence of such incidents, I find that the Respondent
violated Section 8(b)(1)(A) by each of these additional
acts of misconduct. See Dover Corp., 211 NLRB 955,
956–957 (1974); Teamsters Local 810 (Russell Plas-
tics), 235 NLRB 40, 46 (1978).2
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT restrain or coerce employees of Pepsi-
Cola Newburgh Bottling Company, Inc., in the exer-
cise of their rights under Section 7 of the National
Labor Relations Act, by engaging in the following ac-
tivities:
1. Blocking entrance to or exit from the facility of
Pepsi-Cola Newburgh Bottling Company, Inc.
2. Throwing rocks, displaying guns, physically
threatening employees, or spitting at employees.
3. Placing nails in front of vehicles, damaging em-
ployees’ vehicles, throwing liquid at employees, and
interfering in a dangerous manner with the driving of
employees.
4. Recording license numbers of employees’ vehi-
cles and photographing employees who cross the pick-
et line.
5. Threatening to physically injure employees or
threatening to kill employees.
WE WILL NOT in any other manner restrain or coerce
employees of Pepsi-Cola Newburgh Bottling Company,
Inc., in the exercise of their rights under Section 7 of
the National Labor Relations Act.
SOFT DRINK WORKERS UNION LOCAL
812, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
AFL–CIO
Richard L. DeSteno, Esq., for the General Counsel.
Sidney Fox, Esq. (Shapiro Shiff, Beilly, Rosenberg & Fox),
of New York, New York, for the Respondent.
Howard G. Estock, Esq. (Clifton, Budd & DeMaria), of New
York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York, New York, on November
13–16 and 20–21, 1989.1 On a charge filed on August 11,
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The certificates of dismissal and related documents were admitted into evi-
dence as ALJ Exh. 2.
3 General Counsel’s motion to correct transcript is hereby granted.
a complaint was issued on September 25, alleging that Soft
Drink Workers Union Local 812, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO (Respondent or the Union) violated Sec-
tion 8(b)(1)(A) of the National Labor Relations Act (the
Act). Respondent filed an answer denying the commission of
the alleged unfair labor practices.
On January 3, 1990, counsel for Respondent filed a motion
to reopen the hearing for the submission of evidence relating
to the dismissal of charges against certain union members.
On February 13, 1990, the hearing was reopened for the sole
purpose of admitting into evidence the certificates of dismis-
sal and related documents.2
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by General
Counsel and by Respondent on March 8 and 9, 1990, respec-
tively.
On the entire record of the case,3 including my observa-
tion of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Pepsi-Cola Newburgh Bottling Company, Inc. (the Com-
pany), a New York corporation, with an office and place of
business in Newburgh, New York, is engaged in the business
of the bottling and nonretail distribution of soft drinks. Re-
spondent admits, and I find, that the Company annually pur-
chases and receives at its facility products and materials val-
ued in excess of $50,000 directly from points located outside
the State of New York. Respondent also admits, and I find,
that the Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
In addition, Respondent admits, and I find, that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Company operates a soft drink bottling facility in
Newburgh, New York. It sells and delivers various soft
drinks to supermarkets and other retail outlets. The Company
and the Union have been parties to a series of collective-bar-
gaining agreements. After the parties were unable to reach
agreement on a contract to succeed the one which expired on
July 3, 1989, the Union called a strike on July 4 and prompt-
ly commenced picketing the Company’s facility. Shortly after
the strike began the Union stationed its recreational vehicle
(the camper) behind the facility. Union officials have main-
tained a daily presence at the facility. This proceeding in-
volves numerous allegations that the Union violated Section
8(b)(1)(A) of the Act from July through October 1989 as a
result of misconduct occurring at the picket line and at loca-
tions away from the picket line.
2. Applicable legal principles
In Teamsters Local 860 (Delta Lines), 229 NLRB 993,
994 (1977), the Board succinctly stated the applicable prin-
ciples of when picketers’ activities are attributed to the
union:
In determining whether a union is responsible for the
misconduct of persons engaged in picketing, the Board
applies the ‘‘ordinary law of agency.’’ The Board will,
in applying these agency principles, impute the conduct
of the union’s pickets to the union only where it is
shown that the union, either actually or impliedly, au-
thorized the picket’s conduct beforehand or ratified the
conduct after it occurred. For example, where an au-
thorized union representative such as a union official or
picket captain participates in picketing misconduct or is
present at the time the misconduct occurs, the Board
will not hesitate to find that the union is responsible.
Similarly, where the union has knowledge of its pick-
ets’ misconduct, but fails to take steps ‘‘reasonably cal-
culated’’ to control that misconduct, the Board readily
imputes responsibility for the misconduct to the union.
See also Laborers Local 721 (Crouse Nuclear), 256 NLRB
195, 200 (1981).
More recently, in Avis Rent-a-Car System, 280 NLRB 580
fn. 3 (1986), the Board stated the following with respect to
the responsibility of a union for the misconduct of its pick-
ets:
When a union authorizes a picket line, ‘‘it is re-
quired to retain control over the picketing. If a union
is unwilling or unable to take the necessary steps to
control its pickets, it must bear the responsibility for
their misconduct.’’
The Board further stated (ibid.):
A union is responsible for the acts of its authorized
pickets even if not specifically authorized or indeed
specifically forbidden. Nor is it necessary to establish
the identity of the picket engaging in the misconduct
. . . . We find the Union had an affirmative obligation
to control the actions of the unidentified picket, and
cannot escape responsibility by simply contending that
neither Business Agent . . . nor picket captain . . .
was present when the misconduct occurred.
In Dover Corp., 211 NLRB 955, 957 fn. 3 (1974), enfd.
as modified, 535 F.2d 1205 (10th Cir. 1976), cert. denied
429 U.S. 978 (1976), the Board stated:
[l]n instances where there have been repeated outbreaks
of misconduct not participated in or even observed by
the union but the union has failed to take steps to halt
further outbreaks of such misconduct, union liability
has been found.
3. The complaint allegations
a. Preliminary considerations
Paragraph 6 of the complaint contains the allegations of
misconduct. At the hearing the complaint was amended to in-
115TEAMSTERS LOCAL 812 (PEPSI-COLA NEWBURGH)
clude additional allegations constituting paragraphs 6(bb)
through 6(ii). At the conclusion of the hearing General Coun-
sel moved to withdraw paragraphs 6(n), 6(x), and 6(dd). The
Charging Party objected to the withdrawal of paragraphs 6(n)
and 6(x) and decision was reserved. The motion to withdraw
paragraph 6(dd) was granted. Inasmuch as I find insufficient
evidence in the record to sustain the allegations in para-
graphs 6(n) and (x), General Counsel’s motion to withdraw
those allegations is likewise granted.
The Union’s business agent, Joseph Vitta, testified, and I
so find, that he ran the strike at the facility and supervised
the picket line on a daily basis. He testified that he shared
equal responsibility with John Russo, also a union business
agent, and that each of them was at the facility approxi-
mately 12 hours per day.
b. Throwing of rocks and eggs
The Company’s vice president for sales and marketing,
Thomas Strahle, credibly testified that on the evening of July
14 a large crowd of individuals, including strikers, gathered
outside the plant. The Union’s president, Anthony Rumore,
was present. While the crowd was there rocks were thrown
at the facility. While Strahle testified that he did not see who
threw the rocks, under Avis, supra, it is not necessary to es-
tablish the identity of the picket engaging in the misconduct.
I find that the rock throwing constituted misconduct within
the meaning of Section 8(b)(1)(A) of the Act. See Lumber
Workers Local 3171 (Louisiana-Pacific), 274 NLRB 809,
813–814 (1985).
Paragraph 6(c) of the complaint alleges that on July 24
Respondent’s agents threw rocks and eggs at nonstriking em-
ployees. Jeffrey Carli testified that as he approached the
plant at around 8:30 or 9 p.m., when it was ‘‘starting to get
dark,’’ two or three individuals were throwing eggs and
rocks from the hill behind the plant. When he was asked
whether he knew who these individuals were, he testified
‘‘they looked rather familiar as some of the strikers, but you
know I couldn’t be sure.’’ When he was asked whether he
ever saw the individuals on the picket line, he testified ‘‘it
was . . . getting dark and I couldn’t be positive.’’ I find that
Carli was unable to identify the individuals as picketers. Ac-
cordingly, the allegation is dismissed.
Employee Jeffrey Warren testified that at around 9:30 a.m.
on October 20, he was sent to the roof of the plant to locate
the source of a leak. As Warren was examining the roof and
making measurements, striker and picketer, Michael
Schiaraldi Jr., and several other strikers began yelling ob-
scenities at him from the union camper. After a few minutes,
rocks began flying up against the roof from the direction of
the camper. Warren testified that he could not see who threw
the rocks but he saw people in the camper and he saw John
Russo in the driver’s seat of the camper. Russo testified that
he was at the camper at around 8:30 that morning but that
he was not there when the rocks were allegedly thrown.
Under the applicable legal precedents it is immaterial wheth-
er Russo was there at the actual time of the rock throwing.
See Avis, supra. Under the circumstances, I find that the rock
throwing constituted a violation of Section 8(b)(1)(A) of the
Act.
c. Display of gun
Frank Mangus, a driver, credibly testified that at approxi-
mately 11:30 p.m. on July 19 Herbert Schneider started curs-
ing him, saying such things as ‘‘I’m going to send you all
home in body bags.’’ After about 15 minutes he pulled a gun
on Mangus. The police were called and Schneider was ar-
rested. Schneider testified that just prior to the incident he
had about 8 to 10 drinks at a bar and that he was under the
‘‘influence of alcohol.’’ Mangus credibly testified that at the
time of the incident several other picketers were present and
they did nothing to stop Schneider. Schneider, who had pre-
viously been a union steward and was on the negotiating
committee, testified that prior to July 19 he had been on the
picket line everyday, but that he has not been on the picket
line since that time. He further testified, however, that he has
been in the union camper numerous times since July 19.
It is clear that the brandishing of a gun to an employee
at a picket line is a coercive act. Cf. Ford Bros., 294 NLRB
107 (1989). Schneider was an individual who had close ties
to the Union and who had been a daily picketer. There is no
evidence indicating that the Union took any action to rep-
rimand or discipline Schneider for his action. On the con-
trary, Schneider continued to come to the union camper sev-
eral times weekly after the incident. I find, therefore, that
through Schneider’s conduct Respondent violated Section
8(b)(1)(A) of the Act.
d. Blocking ingress and egress
Strahle credibly testified that as he was attempting to drive
out of the gate around noon on July 29, in the presence of
several picketers, two of the picketers blocked his path,
pounded on and kicked his car, spat on his car and yelled
obscenities at him. The blocking, hitting and kicking of vehi-
cles by pickets are within the parameters of picket line mis-
conduct. See Carpenters (Reeves, Inc.), 281 NLRB 493 fn.
3 (1986); Laborers Local 721 (Crouse), supra, 256 NLRB at
200. This conduct violates the Act despite the fact that
Strahle was a manager, since the incident occurred at the
picket line in open view of employees, including the other
picketers. See Lumber Workers Local 3171 (Louisiana-Pa-
cific), supra at 814 fn. 10.
Several witnesses testified concerning ‘‘Family Day’’
which took place on August 31. During that day the Union
carried out mass picketing with striking employees and their
families. Strahle, Mangus, Michael Schiraldi Sr., and Charles
Gagliano testified that between 30 to 60 people gathered at
the front gate on the morning of August 31 at the time the
trucks were leaving for their deliveries. The crowd consisted
of striking and picketing employees, their wives and children
and at least one official of the Union, John Russo. The evi-
dence also contains a video tape of the event showing trucks
proceeding slowly and pickets standing in front of the trucks.
Striking employees and their wives placed themselves and
their small children in front of the trucks as they attempted
to leave. Security guards were required to surround the
trucks and escort them out inch-by-inch in order to avoid in-
juring any of the picketers or their children. While Russo tes-
tified that he told the people to ‘‘keep on moving,’’ the evi-
dence shows that the vehicles were blocked. As stated pre-
viously, the blocking of vehicles by picketers violates the
Act. See Carpenters (Reeves, Inc.), supra at 493. Accord-
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Inasmuch as I have previously found that the Union violated Sec.
8(b)(1)(A) for damaging vehicles, it is not necessary that I consider whether
ingly, Respondent violated Section 8(b)(1)(A) of the Act ln
connection with its activities on ‘‘Family Day.’’
e. Physical threats
Carli credibly testified that one day during July, as he was
returning to the plant, Business Agent Russo said, in the
presence of other picketers, ‘‘I was the one that they were
supposed to get.’’ Russo also said ‘‘they were going to put
me in a body bag and send me home and that there was no
way I was going to live through the strike.’’ I find that this
constituted a threat of a serious nature by a union official.
It was coercive of employees’ rights and violated Section
8(b)(1)(A) of the Act. See Lumber Workers Local 3171
(Louisiana Pacific), supra at 813.
Paragraph 6(i) of the complaint alleges that on August 8
Russo assaulted a security guard in the presence of employ-
ees and threatened to shoot a nonstriking employee. Carli
credibly testified that on August 8 he heard Russo and Vitta
yelling at a security guard and telling him to ‘‘get off the
street or they are going to kill him.’’ Afterwards Russo
reached into the back seat of his vehicle and pulled out what
appeared to Carli to be a pickaxe. Carli also testified that
Russo pulled out what looked like a pistol and pointed it at
him. On cross-examination Carli conceded that it was rain-
ing, it was dark and he did not know whether Russo had a
pistol. Vitta testified that Russo grabbed the steering wheel
lock and proceeded to get out of his vehicle. Similarly,
Russo testified that he took the steering wheel bar and got
out of the car. With respect to the allegation that Russo
threatened to shoot a nonstriking employee, inasmuch as
Carli testified that it was dark and raining and he could not
tell whether or what Russo had, I find that General Counsel
has not proven the allegation. Accordingly, the allegation is
dismissed. With respect to the allegation that Russo assaulted
a security guard, I find that by Russo’s taking the steel bar
out of the car he threatened to assault the security guard, in
violation of Section 8(b)(1)(A) of the Act.
f. Spitting at employees
Employee David Jados credibly testified that on August 8
as he was pulling into the Company’s driveway, about 15 or
20 picketers blocked his car, spit at it and kicked it. Carli
credibly testified that on August 12, as he was leaving the
plant, picketers blocked his truck, pounded on it, and Vitta
spit at him. The blocking and kicking of vehicles by pickets
constitutes picket line misconduct within the meaning of Sec-
tion 8(b)(1)(A). Spitting at employees by pickets also vio-
lates Section 8(b)(1)(A). See Service Employees Local 87
(Pacific Telephone), 279 NLRB 168, 178 (1986). Accord-
ingly, I find that Respondent violated Section 8(b)(1)(A) of
the Act by the blocking of ingress and egress, the kicking
of the car and the spitting at employees.
g. Recording license numbers and photographing
employees
Jados credibly testified that during the week of August 7
three men from the picket line approached his automobile in
the Company parking lot. One of them, who had a pad and
pencil and was taking down Jados’ license plate number, said
to Jados ‘‘we’re going to find out where you live and come
and get you.’’ Jados also credibly testified that during the
same week someone on the picket line was using a telephoto
lens and photographing employees as they entered and exited
the building. Strahle credibly testified that the Union had a
video camera stationed across the street from the plant and
directed at the main gate for a 4- to 5-week period beginning
September 6. This testimony was corroborated by Gagliano
and Monroe. I find that photographing of employees by a
picketer and recording of license plate numbers by picketers
constitutes picket line misconduct in the context of this case.
See Dover Corp., supra, 211 NLRB at 958.
h. Placing nails in front of vehicles
Jados credibly testified that on August 9 or 10, as he was
returning to the plant in a company truck, 20 to 30 picketers
stopped him at the gate by blocking his vehicle. After pass-
ing through the line, he noticed that a ‘‘jack rock’’ (two
twisted nails welded together) was embedded in one of the
truck’s tires and air was leaking from the tire. Although
Jados did not see any particular picketer throw the jack rock
under the truck, it is reasonable to infer from the strong cir-
cumstantial evidence that one of the picketers committed the
act. See Avis, supra, 280 NLRB at 580 fn. 3; Dover Corp.,
supra, 211 NLRB at 958. The depositing of nails in such a
manner constitutes picket line misconduct, violative of Sec-
tion 8(b)(1)(A). See Machinists District 34 (Wolf Machine),
254 NLRB 282 (1981).
i. Damage to vehicles
Mason credibly testified that on August 14, as he was
pulling out of the facility, striking employee Richard
Schiraldi stepped out of the union camper and threw a rock
at his truck. It caused a 6-inch dent in the upper part of the
cab. Mason also credibly testified that on the same day An-
thony Yannucci put two dents in his truck with his fist. I
find that this activity constituted misconduct within the
meaning of Section 8(b)(1)(A) of the Act. See Lumber Work-
ers Local 3171 (Louisiana-Pacific), supra, 274 NLRB at
813–814.
Employee Charles Gagliano credibly testified that on Sep-
tember 13, as he was leaving the facility in a truck with a
coworker, a picketer jumped onto the truck and twisted the
side-view mirror, so that it was facing the opposite way. This
was accompanied by name calling from the picketers. I find
that the bending of the mirror constitutes a violation of Sec-
tion 8(b)(1)(A) of the Act. See Boilermakers Local 696
(Kargard Co.), 196 NLRB 645, 649 (1972).
Paragraph 6(z) of the complaint alleges that on September
14 William Ives inflicted damage on a vehicle operated by
a nonstriking employee. Todd Monroe testified that on Sep-
tember 14 Ives, a picketer, twisted and then broke the mirror
on his truck. On cross-examination Monroe identified Ives as
having a mustache. Ives, however, testified that he never has
had a mustache. While I credit Monroe’s testimony that a
picketer bent and broke the mirror on his truck I believe he
was mistaken as to the identity of the picketer. Inasmuch as
paragraph 6(z) specifically alleges that Ives inflicted the
damage, I find that General Counsel has not proven the alle-
gation and accordingly, the allegation is dismissed.4
117TEAMSTERS LOCAL 812 (PEPSI-COLA NEWBURGH)
the September 14 incident should constitute a violation if committed by a
picketer other than the one identified in the complaint.
Paragraph 6(aa) of the complaint alleges that on Septem-
ber 14 Tudico inflicted or attempted to inflict damage on a
vehicle operated by a nonstriking employee. Patrick
Mahoney testified that on September 14, as he arrived at the
plant, two picketers, John Collins and Sam Tudico, sur-
rounded his car and began pounding on the windows and
yelling names at him. Mahoney testified that Tudico ‘‘more
or less walked into my vehicle and the rear bumper caught
him.’’ Tudico testified that the back fender of the truck hit
him in the leg causing bruises to his leg and elbow. I find
that General Counsel has not shown in this incident that
Tudico inflicted or attempted to inflict damage on
Mahoney’s vehicle. Accordingly, the allegation is dismissed.
j. Throwing liquid
Michael Schiraldi Sr., the Company’s division manager for
Duchess County, credibly testified that on July 8, as he was
riding in the passenger seat of a trailertruck, Russo ran up
to the truck on the driver’s side and threw some kind of liq-
uid from a cup at the driver. The liquid hit the driver in the
face. In Dover Corp., supra, 211 NLRB at 958, the throwing
of coffee at an employee was found to be picket line mis-
conduct. I find that the throwing of the liquid constitutes
picket line misconduct in violation of Section 8(b)(1)(A) of
the Act.
k. Alleged misconduct away from the picket line
With respect to misconduct occurring away from the pick-
et line, in Teamsters Local 783 (Coca-Cola), 160 NLRB
1776 (1966), the Board affirmed the Judge’s decision holding
the Union responsible for certain misconduct occurring away
from the picket line. The judge’s decision stated (at 1779):
When a union dispatches pickets to follow trucks and
the pickets repeatedly engage in violence, the union is
legally responsible for the repeated outbreaks if it takes
no effective action to curb the perpetrators and contin-
ues to dispatch the same individuals on similar picket
duty with similar consequences.
In affirming, the Board pointed out that ‘‘our agreement
. . . is based on the fact that Respondent, which authorized
the strike, knew of the acts of misconduct and violence but
took no steps reasonably calculated effectively to stop such
acts’’ (at 1776). See also Dairy Employees Local 695 (Yel-
low Cab), 221 NLRB 647, 654 (1975).
(1) Interference with driving
Strahle credibly testified that during July and August Den-
nis Freeman, a striker, using the union camper as his base
of operations, assigned strikers’ cars to follow Company
trucks. Carli credibly testified that in mid-July, as he was re-
turning on the highway to Newburgh, Yannucci repeatedly
drove his car in front of Carli’s truck and kept on braking
in a manner which almost caused an accident. On his return
to the plant, Carli called over to the picketers, which now
included Yannucci, and told Yannucci that had he seen a po-
lice car he would have reported Yannucci. Russo then came
to the fence, told Yannucci not to talk to Carli and told the
picketers that Carli was the one ‘‘they were supposed to
get.’’
Russo was made aware of the incident, yet there is no evi-
dence in the record that Respondent took any steps to stop
such acts. Accordingly, pursuant to Teamsters Local 783,
supra, I find that through Yannucci’s conduct Respondent
violated Section 8(b)(1)(A) of the Act.
(2) Propelling metal balls
Brian Cutler, a driver for the Company, testified that on
August 16 at a Shoprite parking lot in Middletown, someone
shot steel balls out of a sling shot while he was unloading
the truck. The police were called and Cutler testified that he
saw the police take steel ball bearings and a sling shot from
Yannucci’s vehicle. There is no evidence that the Union
knew of or later became aware of the episode. Accordingly,
the allegation is dismissed. See Teamsters Local 783, supra.
(3) Physical threats
Paragraphs 6(ff) and 6(gg) of the complaint allege that on
September 14 and 15, Steve Powles, a striker, threatened to
inflict physical injury on a nonstriking employee outside a
supermarket in Middletown. Anthony McGregor testified that
on September 14, as he was coming out of a Shoprite in
Middletown, he saw Powles leafletting outside the Shoprite.
McGregor testified that Powles said to him ‘‘get the fl out
of the truck right now big man, I’ll kick your fl ass and
fl kill you.’’ McGregor also testified that on September 15,
outside of Shoprite in Middletown, Powles said to him ‘‘we
know where you live and you’d better watch your ass going
home.’’ There is no indication that the Union knew of or
later became aware of Powles’ action. Accordingly, the alle-
gation is dismissed. See Teamsters Local 783, supra.
(4) Posthearing evidence
On January 3, 1990, Respondent filed a motion to reopen
the hearing to submit evidence concerning dismissals of har-
assment charges brought against several individuals. On Feb-
ruary 13, the hearing was reopened for that limited purpose.
Respondent filed certificates from the court clerk of the
Newburgh City Court that the harassment charges against Jo-
seph Vitta and John Russo were dismissed and the criminal
mischief charge against William Ives was dismissed. In addi-
tion, Respondent filed a certificate from the court clerk that
the harassment charge against Salvatore Tudico was ‘‘ad-
journed in contemplation of dismissal for six months to June
18, 1990.’’ Presumably Respondent intends by its submission
to show that the individuals were not guilty of the charges
and that should bear weight in terms of the findings in this
proceeding. There is no evidence that the charges were dis-
missed after a trial. It appears, instead, that the charges
against Vitta, Russo and Ives were dismissed because of the
failure of the complaining witnesses to attend the criminal
hearings.
Rule 803(22) of the Federal Rules of Evidence allows evi-
dence of certain kinds of criminal judgments to be admitted
in subsequent criminal or civil proceedings ‘‘to prove any
fact essential to sustain the judgment.’’ The judgment of con-
viction must have been entered after trial or have been based
on a plea of guilty. Judgments of acquittal, on the other
hand, are almost always excluded because of the lack of rel-
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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 objec-
tions to them shall be deemed waived for all purposes.
6 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
evancy since they do not necessarily prove innocence but
may indicate only that the prosecution failed to meet its bur-
den of proof beyond a reasonable doubt as to at least one
element of the crime. McKinney v. Galvin, 701 F.2d 584,
586 fn. 5 (6th Cir. 1983); 4 Weinstein’s Evidence,
§ 803(22)[01] at 803–354. Since it appears that the dismissals
were not the result of a judgment after a trial and since, in
any event, judgments of acquittal are almost always ex-
cluded, I believe the dismissals bear no weight in determin-
ing whether the individuals were guilty of the misconduct al-
leged in the complaint. Accordingly, while the certificates of
dismissal were admitted into evidence, I have not considered
them in determining whether or not the individuals were
guilty of the alleged acts of misconduct.
CONCLUSIONS OF LAW
1. At all pertinent times the Company was an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and the Union was a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By throwing rocks, displaying a gun, blocking ingress
and egress, physically threatening and spitting at employees,
recording license numbers and photographing employees,
placing nails in front of vehicles, damaging employees’ vehi-
cles, throwing liquid at an employee and interfering with an
employee’s driving away from the picket line, Respondent
has engaged in unfair labor practices in violation of Section
8(b)(1)(A) of the Act.
3. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
4. Respondent has not engaged in any unfair labor practice
not specifically found herein.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(b)(1)(A) of the Act, I rec-
ommend that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Soft Drink Workers Union Local 812,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO, Scarsdale,
New York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Restraining or coercing employees of Pepsi-Cola New-
burgh Bottling Company, Inc., in the exercise of their rights
under Section 7 of the Act by throwing rocks, displaying
guns, blocking ingress and egress, physically threatening and
spitting at employees, recording license numbers and
photographing employees, placing nails in front of vehicles,
damaging employees’ vehicles, throwing liquid at employees
and dangerously interfering with the driving of employees.
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its meeting halls and offices copies of the at-
tached notice marked ‘‘Appendix’’6 Copies of the notices on
forms provided by the Regional Director for Region 2, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Mail or deliver to the Regional Director for Region 2,
signed copies of the Appendix for forwarding to Pepsi-Cola
Newburgh Bottling Company, Inc., for posting if the com-
pany agrees, on all bulletin boards and other places where
notices to employees are customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that those allegations of the com-
plaint as to which no violations have been found are hereby
dismissed.