United Furniture Workers of America

National Labor Relations Board - Board Decisions

Feb 23, 1949

81 N.L.R.B. 886 (N.L.R.B. 1949)

In the Matter of UNITED FURNITURE WORKERS OF AMERICA, LOCAL 309,
CIO ; UNITED FURNITURE WORKERS OF AMERICA, CIO, AND THEIR
AGENTS AND OFFICIALS, INCLUDING, INTER ALIA, FRED FULFORD,
JOHN QUIMBY , EDGAR BURGER , GERALD MAYS, GENE SMEDLEY,
MARJORIE GORMAN, ANGELINE JACKSON, AND WINCEL HARMON and
SMITH CABINET MANUFACTURING COMPANY, INC.
Case No. 35-CB-3.-Decided February 23, 1949
DECISION
AND
ORDER
On April 23, 1948, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that United Furniture Workers
of America, Local 309, CIO, herein called the Local, and United Furni-
ture Workers of America, CIO, herein called the International, jointly
called the Unions, cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the exceptions, modifications,
and additions noted below.
1. We find, as did the Trial Examiner that the following conduct
attributable to the Respondents or their agents, as more fully de-
scribed in the Intermediate Report, constituted restraint and coercion
within the meaning of Section 8 (b) (1) (A) : (1) the carrying of
sticks by the pickets on the picket line; (2) the open piling of bricks
for use by the pickets; (3) the blocking of plant entrances by (a)
railroad ties, (b) automobiles, (c) raised gutter plates, and (d) tacks;
3 The General Counsel filed a brief with the Trial Examiner prior to the issuance of the
Intermediate Report
81 N. L. R. B.. No. 138.
886
UNITED FURNITURE WORKERS OF AMERICA 887
(4) the threat of violence to the non-striking employees over the loud-
speaker; (5) the threats of bodily harm to non-striking employees
Homer Williams, Ruby Winslow, Dorothy Strange, and Wylie
Williams; (6) the intimidation of and threats of violence to non-
striking employees, including specifically Walter Hilton, Milt Trinkle,
Ralph Dobbins, Mabel Asher,2 and Mirel Mount, as they sought to
enter the plant; (7) the warning given non-striking employee Albert
Holt that "when we get in with the Union you old fellows won't have
a job"; 8 (8) the placing of pickets in such a manner as to prevent
non-striking employees from performing their work during the box-
car incidents; (9) the "goon squad" mass assaults upon various non-
striking employees, and the overturning of the automobile belonging
to employee James Hyde on that occasion ; (10) the assaults com-
mitted upon non-striking employees Hobart Walton, Homer Williams,
and Walter Brickey, and upon non-striking employee Rowe White and
his family; (11) the damage to the automobile of White during the
aforesaid assault; (12) the barring from the plant of Superintendent
Simpson and Foreman McKinney by force and intimidation; (13)
the assaults upon Superintendent Simpson; and (14) the attempt to
upset Foreman McKinney's automobile as he sought to enter the plant,
and the damage thereto as McKinney later drove past the plant!
The Respondents contend that (1) inasmuch as the Company's
refusal to bargain precipitated the strike the Board should not "lend"
its support to the Company by processing this complaint, (2) that
their activity herein was and is protected by the 1st and 5th Amend-
ments to the Constitution and that Section 8 (b) (1) -(A) is unconsti-
tutional and void insofar as it proscribes that activity,' and (3) that
2 Asher sought to enter the plant merely for the purpose of getting her tools. The
Illegality of the conduct which prevented her from doing so lies therefore , not in the
interference with an employee 's right to work in the face of a strike ( see page 888 , infra),
as is the case with respect to the others , but in the effort to coerce her into joining the
Unions or participating in the concerted activity.
8 The majority finds this statement to be coercive because it is a threat of loss of em-
ployment reasonably calculated to have an effect on the listener without regard to the
question of the Unions ' ability to carry out the threat.
Chairman Herzog and Member Houston do not rely upon this statement in finding a
violation of Section 8 (b) (1) (A). Unlike their colleagues , they find that the threat of
loss of employment inherent in this remark was not reasonably calculated to restrain or
coerce employee Holt, because the Unions , even if eventually successful in gaining recog-
nition, were powerless , under the amended Act , to affect Holt's employment status with
the Company ( unless, of course, a union-shop contract was then properly executed and
Holt refused to become a union member or was unwilling to pay union initiation fees or
periodic dues ). In these circumstances they view such a declaration , the implementation
of which is deferred , and conditioned upon a circumstance not certain to happen in the
first place , and impossible of accomplishment in any event , as falling within the protection
of Section 8 (c) of the amended Act.
* As appears hereinafter, the incidents involving Simpson and McKinney occurred
within sight of non-striking employees
In this connection, the Respondents argue, in effect , that all acts and conduct occurring
in connection with the picketing at the plant constituted picketing and, as such, are
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the above acts, even if committed, do not constitute restraint or coer-
cion for the reasons that (a) they failed to accomplish their purpose
of deterring the employees from working during the course of the
strike, and (b) the interference with the right to work in the face of
a strike is not, in any event, a violation of the Act.
Like the Trial Examiner, we find these contentions to be without
merit. With respect to the first contention, we have heretofore held
that the single issue in cases of this type is whether or not the Respond-
ent has unlawfully restrained and coerced employees by its activities
during the course of a strike, and that employer practices which
prompted the calling of the strike are not material to the resolution
of that issues We therefore find it unnecessary to consider, as did
the Trial Examiner, the propriety of the Company's refusal to recog-
nize and bargain with the Unions. The second contention raises a
constitutional question which we leave to the courts, it being inappro-
priate for us to pass upon the validity of congressional enactments .7
As to the issues raised by the third contention, we hold, as we did in
the Sunset case, (1) that to constitute restraint and coercion within
the meaning of the Act, it is immaterial that the acts in question, which
we find were calculated to restrain and coerce employees in the exercise
of rights guaranteed by Section 7 of the Act, failed to accomplish that
purpose,8 and (2) that the interdependent guarantees of Section 8
(b) (1) (A) and Section 7 of the Act include the protected right of
employees to work in the face of a strike .9
The Respondents further argue that the Board is not warranted
in finding that the acts directed against the Company's supervisors
violated Section 8 (b) (1) (A) because that Section protects "employ-
ees" only. However, we note with respect to the incidents involving
Superintendent Simpson and Foreman McKinney, adverted to above,
that non-striking employees witnessed them, or were in the immediate
vicinity at the time of their occurrence. In these circumstances, we
find, like the Trial Examiner, that these employees might have reason-
ably regarded these incidents as a reliable indication of what would
entitled to the constitutional protection afforded to picketing. However, such conduct as
we have found unlawful herein exceeded the bounds of peaceful picketing. Therefore, unlike
the Trial Examiner, we find it unnecessary for purposes of this case to determine what
impact these unlawful acts had on utterances or conduct which might otherwise have
constitutional protection as picketing.
d Matter of Sunset Line and Twine Company, 79 N. L. R. B. 1487.
'Matter of Rite-Form Corset Company, Inc., 75 N. L. R. B. 174; Matter of Maritime
Union of America, 78 N. L. R B. 971.
8 Nor is it material that certain of the above acts may have been "temporary " in char-
acter and "voluntarily abandoned."
Since the illegality of virtually all the acts herein stems from the interference with
this right (see footnote 2, supra ), we find it unnecessary for purposes of establishing
coercion to explore, as did the Trial Examiner, the effect of such interference upon the
employee's role in the strike. We therefore do not adopt the Trial Examiner 's findings in
that regard.
UNITED FURNITURE WORKERS OF AMERICA 889
befall them if they sought to work during the strike. The coercive
effect of such conduct on "employees" within the meaning of the Act is
therefore clear.10 And inasmuch as the illegality of coercive activity
directed against supervisors is found to depend upon its commission in
the presence of non-striking employees or under such circumstances
as to insure that these employees would hear of it, we shall reject the
Trial Examiner's findings with respect to the threats to company offi-
cials which were not made in such a context 11 Accordingly, we do
not find, as did the Trial Examiner, that Section 8 (b) (1) (A) was
violated by Burger's warnings to the Company's president and vice
president that there would be "trouble" if they attempted to bring cars
into the plant, and that the windshields of such cars would be smashed.
2. We do not agree with the Trial Examiner's findings that the
statement by Burger to employee Mount, who was voicing objection to
using the Company's lumber for picketing purposes, that he Burger,
"knowed where . . . [Mount] live[d]," violated the Act. Under the
circumstances, we regard this statement as too vague to constitute
restraint and coercion within the meaning of the Act.
3. We agree with the Trial Examiner's finding that both the Local
and the International should be charged with responsibility for the
various acts of restraint and coercion. In reaching this conclusion we
have considered the facts herein in the light of the common law rule of
agency, controlling in cases of this type, that a principal may be re-
sponsible for the act of his agent within the scope of the agent's au-
thority, even though the principal has not specifically authorized or,
indeed, may have specifically forbidden the act in question 12
As appears in the record, the several individuals named as Respond-
ents, as well as George Little and Oscar Spurgeon'13 assumed leading
roles in the calling of the strike and in the conduct thereof, and either
personally engaged in the unlawful strike activity or directed and
incited the others who took part therein 14 If, therefore, while thus
engaged, these individuals were acting as agents of the Unions within
10 In finding a violation of the Act in this conduct , we are not subscribing to the alter-
native reason of the Trial Examiner for so finding.
11 Cf. Matter of Reeves -Ely Laboratories, Inc., 76 N. L. R. B . 728; Matter of Rosenblatt's
Friendly Line, 59 N. L. R. B. 769.
' See Matter of Sunset Lane and Twine Company, footnote 6, supra; Matter of Perry
Norvell Company, 80 N L . R B. 225.
"The fact that Little and Spurgeon are not named as respondents does not, of course,
preclude the Board from imputing their conduct to either or both labor organizations In
accordance with applicable law.
34 In this connection , the Intermediate Report does not adequately reflect that portion of
the record which shows that the pickets were , on various occasions , instructed by Fulford
and Quimby "not to let anybody in , regardless ," and by Burger "not to let no one go
through." And in the light of all the evidence in the record , we find that no real attempt
was made to countermand these instructions and they continued in effect during the
entire period involved herein.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the scope of their authority, the Unions would, in accordance with the
aforementioned agency principle, be responsible for their conduct,
including that which was not "specifically authorized or ratified."
That these individuals had the authority to bind the Unions is estab-
lished unequivocally by the record. Thus, during all time material
herein Fulford was not only the International's Regional Director of
District 6, which encompassed the Company's plant in Indiana, but
also its International representative and its district representative on
the General Executive Board. During this same period, Quimby was
one of four International representatives serving under Fulford. Ful-
ford, in his capacities as International representative and district rep-
resentative, and Quimby, as an International representative, were
members of the International's organizational department, and both
operated under the general direction of the International's director of
organization. The International paid Quimby's entire salary, 50 per-
cent of Fulford's salary, and all the latter's expenses.
The other individual Respondents, as well as George Little and
Oscar Spurgeon, were the principal officers of the Local and the mem-
bers of its Executive Board which, during the strike meeting, was
authorized by the membership to take such action as it deemed neces-
sary to "get the Company to recognize the Union." This delegation of
power included the authority to call the strike and to direct the manner
in which the strike was conducted. Burger, Mays, Smedley, Gorman,
and Jackson were also members of the Local's strike committee which
was created at the strike meeting, and Harmon also had occasion to
serve thereon.
In view of the foregoing, and based upon the entire record,15 we find
that the officials of the International and the local referred to above
were acting as agents of their respective organizations while engaged in
the calling of the strike, and in the strike activity which we have found
to be unlawful. It is equally plain that these individuals were acting
within the scope of their authority on these occasions, for the strike was
admittedly precipitated by the Company's refusal to bargain with the
International or the Local, and the strike activity which we have char-
acterized as unlawful was obviously designed to make a success of the
strike by hampering the Company's operations for the purpose of
forcing it into granting recognition. We therefore conclude and find
that the acts of restraint and coercion which they committed, directed,
"Like the Trial Examiner , we find it unnecessary to rest our findings with respect to
the International upon the pleadings Of consequence herein, however , though not con-
tained in the Intermediate Report, is Fulford's testimony that he "assumes" (1) that he
recommended a strike to the Local, (2) that he consulted the International "before going
into anything as serious as a strike ," and (3 ) that the International in accordance with
its policy , was consulted by the Local before the strike was called.
UNITED FURNITURE WORKERS OF AMERICA 891
or incited became, at the least, the acts of their respective principals,
the Unions herein, and that each Union thereby violated Section 8 (b)
(1) (A) of the Act. It is additionally clear from the foregoing that
the International and the Local, charged as they are with the acts of
their agents herein, did not act independently of one another in calling
the strike and in the strike activity, but that their participation therein
was in the nature of a joint venture. We find further, therefore, that
the International and the Local are responsible, as found above, not
only for the acts committed and directed by their respective agents, but
that both the Unions are responsible for all the acts which we have
attributed to either of them 16
4. We agree with the Trial Examiner that the individuals named as
Respondents also violated the Act. However, we do not, under the
circumstances of this case, thereby adopt the Trial Examiner's sub-
sidiary findings (a) that the pickets on the picket line were agents
of the individual Respondents, and. (b) that each individual Re-
spondent is chargeable with the unlawful acts of any one of them.
Rather we rest our finding solely upon the fact that each of the in-
dividual Respondents, by participating in acts of restraint and co-
ercion as an agent of the Unions in furtherance of the purposes of
the strike thereby individually violated the Act.
THE REMEDY
Although the Trial Examiner finds, as do we, that the Unions as
well as the individual Respondents violated Section 8 (b) (1) (A) of
the Act, his recommended order is not coextensive with that finding
in that it is directed against the Unions alone. We shall accordingly
correct this apparent inadvertence and include these individuals within
the scope of our order herein. We shall also require that a copy of
the notice attached as an Appendix hereto, signed by the Unions'
official representatives and the individual Respondents, be posted, in
19 In so concluding , we find it unnecessary to adopt the Trial Examiner 's finding that
the Unions ' act of setting up a picket line at the Company 's plant entrances raised a
presumption in law that the individuals on the picket line were their agents with
authority to act for , and bind, them as principals . For, as noted above, the pickets were
directed and incited in their unlawful conduct by union agents and, in determining the
Unions' responsibility for their conduct, it therefore becomes immaterial whether we
regard the pickets as mere impersonal instrumentalities utilized by these union officials,
or as agents of the Unions in the technical legal sense. Responsibility for their acts
attaches to the Unions in either event. See Matter of Sunset Line and Twine Company,
footnote 6, supra. Nor do we, for similar reasons, find it necessary to adopt the Trial
Examiner 's finding that the Unions ' responsibility for Robert Foster 's unlawful threat to
Ruby Winslow on September 19 stems from the fact that Foster was acting as agent of
the Union on that occasion . Foster's remarks, when viewed against the background of
violent acts and an apparent predisposition on the part of the Unions to violence , and the
nature of his mission and the attendant circumstances , convince us that Foster 's unlawful
conduct, like that of the pickets on the picket line, was incited by union agents.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the manner prescribed therein, in the business offices of both the Local
and the International.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that United Furniture Workers of
America, Local 309, CIO, and United Furniture Workers of America,
CIO, and their officers, representatives, and agents, including Fred
Fulford, John Quimby, Edgar Burger, Gerald Mays, Gene Smedley,
Marjorie Gorman, Angeline Jackson, and Wincel Harmon, shall :
1. Cease and desist from restraining and coercing employees of
Smith Cabinet Manufacturing Company, Inc., Salem, Indiana, in the
exercise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
and to refrain from any or all such activities, as guaranteed to them
by Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the business office of the Local in
Salem, Indiana, and in the business office of the International in New
York City, where notices to members are customarily posted, copies
of the notice attached hereto as an Appendix.17 Copies of said notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by official representatives of the Local and the
International, and individually by Fulford, Quimby, Burger, Mays,
Smedley, Gorman, Jackson, and Harmon, be posted by these Re-
spondents immediately upon receipt thereof and maintained by them
for a period of sixty (60) days thereafter. Reasonable steps shall be
taken by these Respondents to insure that said notices are not altered,
defaced, or covered by any other material ;
(b) Mail to the Regional Director for the Ninth Region signed
copies of the notice attached hereto as an Appendix, for posting, the
Company willing, on the bulletin board of Smith Cabinet Manufactur-
ing Company, Inc., where notices to employees are customarily posted.
The notice shall be posted on the Company's bulletin board and main-
tained thereon for a period of sixty (60) days thereafter. Copies
of said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being signed as provided in paragraph 2 (a) of
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words, "A DECISION AND ORDER ," the words,
"A DECREE OF TIIE UNITED STATES COURT OF APPEALS ENFORCING."
UNITED FURNITURE WORKERS OF AMERICA 893
this Order, be forthwith returned to the Regional Director for said
posting ;
(c) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondents restrained and
coerced employees by Burger's statements to Mirel Mount, and to the
company officials.
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED FURNITURE WORKERS OF AMERICA,
LOCAL 309, CIO, AND UNITED FURNITURE WORKERS OF AMERICA,
CIO, AND TO ALL EMPLOYEES OF SMITH CABINET MANUFACTURING
COMPANY, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT restrain or coerce employees of SMITH CABINET
MANUFACTURING COMPANY, INC., SALEM, INDIANA, in the exercise
of their right to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all of such activities, as guaran-
teed to them by Section 7 of the Act.
UNITED FURNITURE WORKERS OF AMERICA,
LocAL 309, CIO
Labor Organization.
By -------------------------------------------------
(Agent or Representative ) ( Title)
UNITED FURNITURE WORKERS OF AMERICA, CIO,
Labor Organization.
By -------------------------------------------------
(Agent or Representative ) ( Title)
FRED FULFORD.
JOHN QUIMBY.
EDGAR BURGER.
GERALD MAYS.
GENE SMEDLEY.
MARJORIE GORMAN.
ANGELINE JACKSON.
WINCEL HARMON.
Dated--------------------
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
INTERMEDIATE REPORT
Mr. Philip Fusco, for the General Counsel.
Mead and Mead, by Mr. Walter G. Mead, of Salem, Ind., for the Company.
Weinstock and Tauber, by Messrs. Harry Weinstock and Joseph Tauber, of
New York, N. Y., and Mr. Oliver A. Switzer, of South Bend, Ind., for the Re-
spondents.
STATEMENT OF THE CASE
Upon a charge filed on November 26, 1947, by Smith Cabinet Manufacturing
Company, Inc., herein called the Company, the General Counsel of the National
Labor Relations Board, herein called the General Counsel and the Board, re-
spectively, by the Regional Director for the Ninth Region (Cincinnati, Ohio),
issued a complaint on November 28, 1947, against United Furniture Workers of
America, Local 309, CIO; United Furniture Workers of America, CIO; and
their agents and officers, including, inter alia, Fred Fulford, John Quimby, Edgar
Burger, Gerald Mays, Gene Smedley, Marjorie Gorman, Angeline Jackson,
and Wincel Harmon, herein called collectively the Respondents,' alleging that
the Respondents had engaged in and were engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (b) (1) (A) and Section
2 (6) and (7) of the Labor Management Relations Act of 1947, herein called
the Act? Copies of the Complaint, the Charge, and Notice of Hearing thereon
were duly served upon the Respondents and the Company.
With respect to the unfair labor practices, the Complaint, as amended at the
hearing, alleged, in substance, that the Respondents on or about September 4,
1947, did cause employees of the Company to engage in a strike and that at all
times thereafter Respondents and others acting for them and in their behalf
did restrain employees of the Company in the exercise of the rights guaranteed
them in Section 7 of the Act by :
(1) Obstructing the entrances to the Company's plant by mass picketing
and by causing automobiles, timbers, and other physical objects to be placed
sa as to forceably prevent the entry of employees and other persons to the plant,
(2) Preventing or attempting to prevent, employees and other persons from
entering the plant by force and threats and by acts of violence or damage to
persons or property ;
(3) Threatening employees with reprisals by discriminatory treatment and
loss of jobs ; and
(4) By the aforesaid acts, the Respondents have engaged in and are engag-
ing in unfair labor practices within the meaning of Section 8 (b) (1) (A) of
the Act.
By an Answer filed on December 10, 1947, the Respondents admitted that
the Local and the International were labor organizations within the meaning
of the Act, admitted that on or about September 4, 1947, the Local and the Inter-
national called a strike against the Company, and denied the commission of any
unfair labor practices. The Answer further alleged, by way of affirmative
defense, that pursuant to an agreement for a consent election to determine a
1 Local 309 and its parent organization are also referred to hereinafter as the Local
and the International, respectively.
2 The National Labor Relations Act, 49 Stat. 449, as amended June 23, 1947 by Public
Law 101, 80th Cong, Chap. 120, 1st Sess.
UNITED FURNITURE WORKERS OF AMERICA 895
collective bargaining representative, the Local and the International won an
election conducted by the Board on August 19, 1947; that the Company there-
after refused to recognize the Local and the International as the collective bar-
gaining representative of its employees ; that this refusal of recognition by
the Company constituted a violation of Section 8 (a) (5) of the Act; and that
as a result of this denial of recognition, the Respondents called a strike against
the Company on September 4 for the purpose of obtaining recognition. The
Respondents further allege that their conduct was and is a lawful exercise
of their constitutional right of freedom of speech and assembly within the pro-
tection of the First and Fifth Amendments of the United States Constitution,
and that Section 8 (b) (1) (A) of the Act is unconstitutional. During the bear-
ing, a motion was granted over objection to add another defense, namely, that the
Company was itself guilty of unfair and unconscionable conduct and came before
the Board with unclean hands.
Respondents also filed a Motion for Bill of Particulars, which was granted in
part and denied in part by Trial Examiner George Bokat on December 16, 1947,
after which date Particulars were filed and served on the parties by the General
Counsel.
Pursuant to notice, a hearing was held at Salem, Indiana, on various dates
between January 6 and February 26, 1948, before the undersigned Trial Exam-
iner, Martin S. Bennett, duly designated by the Chief Trial Examiner. The
General Counsel, the Company, and the Respondents, were represented by
counsel. All parties participated in the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues.
At the commencement of the hearing, the undersigned denied motions by
the Respondents to quash the charge, dismiss the Complaint, exclude the Com-
pany as an allegedly improper party to the proceeding, and strike certain para-
graphs of the Bill of Particulars previously furnished by the General Counsel.
A motion by the General Counsel to strike certain of the paragraphs of Respond-
ents' Answer was denied. The undersigned granted, over objection, a motion
by the Respondents to amend their answer so as to withdraw from paragraphs
3, 20 and 21 thereof the statement that the International had called the strike of
September 4, 1947.$ During the hearing, the undersigned granted, over objec-
tion, two motions to amend the Complaint by extending the time within which
the alleged unfair labor practices took place to a more recent date beyond the
original date of the Complaint and, corollary thereto, further particulars were
furnished the Respondents by the General Counsel. In addition, additional
time was granted Respondents to meet the allegations thereby added to the
Complaint.
At the close of the General Counsel' s case in chief, the undersigned denied
motions by the Respondents to strike certain testimony from the record and to
dismiss the complaint. The motion to dismiss was renewed at the close of the
hearing and ruling was reserved. It is hereby denied. A motion by the Gen-
eral Counsel to conform the pleadings to the proof with respect to purely formal
matters was granted. The parties waived oral argument at the conclusion of
the case and were afforded an opportunity to file briefs and/or proposed find-
ings of fact and conclusions of law•by the undersigned'
+ Paragraph 23 of the Answer, which alleges that the strike was called by both
Respondents, was not affected by the motion.
4 After the close of the hearing, the undersigned , on his own motion, ordered the
correction of a number of errors in the transcript of testimony.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Smith Cabinet Manufacturing Company, Inc., is an Indiana corporation having
its principal office and place of business at Salem, Indiana, where it is engaged
in the manufacture of radio cabinets.' The principal raw materials used by the
Company in its business operations consist of lumber, plywood, cabinet hard-
ware and finishing materials. During the year 1947 the value of the Company's
purchases of raw materials was approximately $1,938,000, over 50 percent of
which was shipped to its Salem, Indiana, plant from points outside the State
of Indiana. During the same period, the Company produced and sold finished
products valued at approximately $3,679,000, of which approximately one-third
was shipped to points outside the State of Indiana.
The undersigned finds that the Company is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Furniture Workers of America, Local 309, CIO, and United Furniture
Workers of America, CIO, are labor organizations within the meaning of the
Act, admitting to membership employees of the Company.
III. THE UNFAIR LABOR PRACTICES'
Restraint and Coercion
A. Background and setting
1. The plant and its entrances
The incidents set forth hereinafter took place in Salem, Indiana, which is a
small community with a population of approximately 3,500 and is the county
seat of a rural area. The Company's factory is the largest plant in the town
and there are but two other plants of any size. The plant property, which is
situated near the outskirts of the town, is bounded on the north by East Market
Street, on the east by the Blue River, on the south by the Blue River and a
wire fence, and on the west by the tracks of the Monon Railroad.' The plant
has five entrances, although one, the Main Office entrance, provides entrance for
pedestrians to the office of the Company and is not generally used by rank and
file production personnel. The other four entrances, which are more directly
involved in this proceeding, are situated as follows :
At the northeast corner of the property is the bridge entrance, also referred
to as the river or fill entrance, which runs off East Market Street along the west
side of the Blue River and part of which has been built up by a land fill. Ingress
5 The Company was operated as a partnership prior to July 1, 1947, on or about which
date it was incorporated with, insofar as the record indicates, no material changes in the
nature of its business.
6 The findings hereinafter are based upon uncontrsverted testimony. Respondents called
but one witness and he was not questioned concerning the merits of the various incidents
set forth hereinafter.
This description of the plant, its boundaries and entrances, is based upon testimony,
exhibits in the record, and a view taken of the premises by the undersigned in con unction
with the parties
UNITED FURNITURE WORKERS OF AMERICA 897
and egress by cars is had by passage from the street over a steel gutter plate
12.5 feet wide which bridges the gutter at the side of the road. The plant run-
way then continues on to various parking lots on the Company property. The
northwest entrance is generally referred to as the main or railroad entrance,
and runs south off East Market Street almost parallel and just to the east of the
Monon Railroad tracks as they enter Salem from Louisville, Kentucky, approx-
imately 45 miles distant. This entrance is approximately 18 feet wide. The
Main Office entrance, referred to above, is situated directly off East Market
Street, is approachable directly from the street, and is about midway between
the two entrances described above.
At the southwest corner of the property is the Small Street entrance, which is
approximately 16 feet wide, whereby entrance is had to the plant by crossing
the Monon Railroad tracks, referred to above. The remaining entrance is a
pedestrian entrance known as the Swinging Bridge, which is near the southeast
corner of the property and runs across the Blue River. It consists of a station-
ary walkway 23 to 26 inches wide on the respective banks of the river, which is
a narrow stream, connected by a swinging span strung across the river from
the walkways with wires on either side at waist level serving as guard rails.
The suspension bridge is 22 inches wide on its walking level and the guard rails
are 37 inches above this level.
2. Negotiations between the parties before and after the strike of
September 4, 1947
There is no evidence of any collective bargaining history between the Com-
pany and any labor organization prior to the advent of the Respondents in
Salem. Commencing in March 1947, International Representative John Quimby
of the Respondent International was assigned to organize the employees of the
Company. The organizational campaign took place, recognition was requested
by the International, and ultimately an agreement for a consent election was
entered into. The election was held on August 19, 1947, and resulted in a
majority vote for the International.8 Subsequent to the election, recognition
was requested by the International and the Company took the position that it
would not recognize the International until certified by the Board. This is
apparently still the Company's position.
On August 22, 1947, various amendments to the Act took effect. As of that
date, the Board had not certified any bargaining representative in accordance
with the consent election agreement. Neither the International nor the Local
had complied with the filing requirements of Section 9 (f) and (h) of the Act
by October 31, and on November 18, 1947, the Regional Director for the Ninth
Region dismissed the International's petition for Investigation and Certification
of Representatives.
B. Responsibility of the Respondents
1. For calling the strike
As set forth above, the International in March 1947, assigned John Quimby
to organize the employees of the Company. Quimby is a full-time International
Representative employed by the International, works under the direction of the
International's Director of Organization, Ernest Marsh, and his salary is paid
entirely by the International. He reports to the Director of Organization, but
8 Case No. 9-IR-1367. The Local was chartered on or about August 1, 1947 , but did
not appear as such in the representation proceeding.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while active in District 6 of the International, which embraces Indiana and
northern Kentucky, he is supervised in some degree by Fred Fulford, Regional
Director of District 6. Fulford has been an International Representative since
1941, is a member of the International's General Executive Board, and has been
Regional Director of District 6 since 1946. He too operates under the general
supervision of Marsh, the Director of Organization. Fifty percent of his salary
is paid by the International and the remainder by the CIO itself.
Quimby was active in the organizational campaign and Fulford participated
in some degree in the various steps of the representation proceeding. The Com-
pany having refused to recognize the International absent certification by the
Board, a meeting of Local 309 was held on the night of September 3, 1947.9
Quimby and Fulford represented the International at the meeting, as Quimby
testified, and the various officials of Local 309 were present 1° President
Burger, Fulford and Quimby addressed the meeting and the membership was
told of the Company's refusal to recognize the Respondent Unions. A motion
to authorize the Executive Board of the Local to take whatever action it deemed
necessary was passed." According to Quimby, it was explained that this in-
cluded strike authority. Later that evening after the close of the meeting, the
Executive Board voted to strike the next day, September 4. This vote was
taken with the expressed approval of Fulford and Quimby. In view of the
above, the undersigned finds that the strike of September 4 was called by Local
309 and also, contrary to the contention of counsel for the Respondents, with
the advice, assistance and in part, at least, direction of the International."
2. For activities during the strike
As has previously been found, the strike of September 4 was called by both
the Local and the International. With respect to subsequent events, Fulford
admitted that he was in charge of the strike between September 4 and 12;
that thereafter he was in charge but part of the time ; and that in his absence
John Quimby was in charge of the strike. Both Quimby and Fulford were
active, as appears hereinafter, in the conduct of the strike, the arrangement of
the picket lines, and in certain specific incidents appearing below in more
° See footnote 8, supra.
10 The officers of the Local were selected during August 1947 and are as follows :
Edgar Burger, president.
Gerald Mays, vice president. Replaced by Herman Taylor 3 or 4 weeks before
January 9, 1948.
Gene Smedley, treasurer. Replaced by Flossie Harmon 5 or 6 weeks before January
9, 1948.
Marjorie Gorman, financial secretary.
Angeline Jackson, recording secretary. Replaced by Patty Shocke 6 or 7 weeks
before January 8, 1948.
George Little, trustee.
Oscar Spurgeon, trustee.
Kenneth Branaman, trustee.
Wincel Harmon, sergeant at arms.
"The Executive Board had been set up some weeks earlier and included all the officers
of the Local.
12 The General Counsel also contends that the original text of Respondents' Answer,
admitting that both the Local and the International called the strike, constitutes an ad-
mission of fact, although a motion to delete reference to the International therein was
granted by the undersigned. Although a superseded or amended pleading is generally
competent as an admission of a fact, the undersigned deems it unnecessary in view of the
findings above to pass upon this contention. See Boots V. Canine, 94 Ind. 408; Wtigmore
on Evidence, Sec. 1048, at seq.
UNITED FURNITURE WORKERS OF AMERICA 899
detail . In fact, direction of the picket line at one of the entrances was handled
in part over a loud speaker brought to Salem by Fulford and mounted on his
automobile. The speaker was also mounted on the automobile of the Vice
President of the Local, Gerald Mays. The record indicates that the Interna-
tional supported the strike with financial contributions and that additional
organizational personnel was sent to Salem to assist with the conduct of the
strike.
The Local set up a strike committee consisting of its five top officials not
including trustees and the sergeant at arms. It was empowered to organize the
picket line and take charge of strike activity. The direct participation of Local
members and officials in various specific incidents also appears below in more
detail.
In view of the above, the fact that the International and the Local collaborated
not only in the calling of the strike but also in the conduct of the strike, and the
direct participation of International and Local officials in incidents which appear
below, the undersigned is impelled to conclude that the strike and its corollary
activities were participated in by the International and the Local as a joint
venture and that both are legally responsible for the performance of such acts
in furtherance of the common purpose , as are hereinafter found to be attributable
to either one.
C. Sequence of events
The strike commenced on September 4, 1947, and was still continuing at
the time of the instant hearing. The plant did not operate on September 4 and
thereafter until September 12 on which date it reopened. It has continued to
operate since that date. Because the events alleged to constitute restraint and
coercion lend themselves to such a breakdown the undersigned has subdivided
the sequence of events into three categories :
1. Those from September 4 to 12, when the plant did not operate.
2. Those from September 12 to 20.
3. Those on or after September 20.
As will be seen, the subject matter will be treated chronologically although some
overlapping is unavoidable.
1. Events between September 4 and 12, 1947
(a) Nature of the picket line activities
Composition and numbers
Immediately before the strike the Company had slightly in excess of 400
employees. On the morning of September 4, prior to the usual reporting hour of
7 a. in., approximately 75 to 100 pickets appeared at plant entrances and on sur-
rounding roads. The number appearing on East Market Street alone appears
to have varied from 50 to 100. A consensus of the testimony indicates that at the
main entrance 35 to 40 pickets were on duty, of whom at least 12 to 15 were
walking in a circle directly in the mouth of the entrance. Lesser numbers of
pickets were stationed at the other entrances . According to Quimby, the number
of pickets varied from 25 to 40 percent of the plant's complement on September
4, but the number fluctuated and varied thereafter. As appears below, clubs
were carried by many of the pickets. There is evidence that the marching pickets
were so close together that it was physically impossible for a pedestrian to
enter without displacing them.
829595-50-vol 81 58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The home of Company President Chester Smith is on East Market Street,
332 feet directly west of the main entrance. Some 75 to 100 nonstriking em-
ployees congregated there on the morning of September 4 and at least some of
them informed their foremen who were present that they were willing to work.
Others apparently did not so commit themselves.
Carrying of sticks or Blabs by pickets
While it appears that pickets were carrying sticks or clubs prior to 7 a. M.
on September 4 at the Small Street entrance, this particular activity chiefly
manifested itself at the main entrance at and after 7 a. in. Fulford spoke to
the pickets over a loud speaker mounted on a car near the entrance and announced
that a foreman was coming down the hill [from Chester Smith's home] with his
men and would attempt to pass through the picket line. The versions of his
subsequent remarks over the speaker vary. According to picket Madge Campbell,
he instructed the pickets not to let anyone through and said , "You better not try
it or there will be trouble." Marie Rodman testified that he instructed the
pickets not to let anyone through. According to Superintendent George Newlon,
who heard these statements over the loud speaker while in the vicinity of the
Smith home, Fulford said, "Let's show them we can fight as good as they can."
It also appears that International Representative Quimby and Local President
Burger instructed the pickets to carry sticks at this time and not to let anyone
through.
Immediately after Fulford's announcement, the picket line secured sticks which
were taken from the Company's lumber stack immediately adjacent to the main
entrance. These or similar sticks were carried by pickets on picket duty from then
until September 12. Wincel Harmon, sergeant at arms of the Union and a
member of the Executive Board, and for a period of time a strike committee
member, distributed sticks to some of the pickets. These sticks were pieces of
lumber 6 feet long which had been broken in two. The majority of the pickets,
both at the entrances and along the streets, carried these sticks.
The day watchman, Mirel Mount, noticed three pickets, Wingler, Purdee and
Medlock, remove sticks from the Company lumber pile early in the morning
of September 4 and break them up in the presence of President Burger of the
Local. He testified that these were the same sticks he saw pickets carry later
in the day. In fact, Mount remonstrated with the three men for removing the
lumber and President Burger informed him that the Union had come to stay
and "I know where you live." Significantly, Albert Wingler, one of these men
and a striking picket, was, according to Quimby, a picket captain in charge of
picketing at a plant entrance.
On Friday, September 12, the plant, which had been shut down since September
4, was reopened, three days after the Circuit Court of Washington County,
Indiana, issued on September 9, upon application of the Company, an order
restraining the Local and a number of named individuals from, inter alia,
the use of clubs and sticks while on picket duty." On the 12th of September,
according to picket Madge Campbell, she discarded her club after Fulford, Quimby
and a number of Local officials said that on that date that "We were supposed to
put our clubs down and to not even say anything to anybody. Just stand and
let them walk in." There is also considerable testimony that Fulford, Quimby
and various officials of the Local were present in and about the picket lines and
'e On September 13 a temporary injunction was issued by the same Court which is
apparently still outstanding . The action against the International , however, was dismissed.
UNITED FURNITURE WORKERS OF AMERICA 901
never instructed any of the pickets, prior to September 12, to cease carrying these
clubs or sticks.
Bricks
On September 4, President Burger brought some building bricks to the picket
line, broke them into small pieces and deposited them in several piles along
Market Street in the vicinity of the main plant entrance and close to the pickets.
As he deposited them he said, "There is something if we have trouble." The
bricks, which were in plain view of all passersby as well as the various Union
officials on the scene were removed after the pickets were told on September 12
to discard their sticks."
Blockade of the main entrance
Before 7 a. m. on September 4, automobiles were observed parked bumper-to-
bumper on the south side of East Market Street near the main entrance ; the line
extended both west and east of the entrance. This was reported to the Chief of
Police by the plant superintendent and the Chief spoke to Fulford and Quimby.
The machines were then removed from the entrance between 7 and 8 a. m."
On or about September 5, two large railroad switch ties were placed in the
main plant entrance in such a way that automobiles could not pass. The picket
line was in operation at the time and some of them sat on the ties. Some of
the pickets carried clubs at the time and at least one picket, Rex McCrary,
instructed several female pickets who were sitting on the ties to remain where
they were. According to Superintendent lyewlon, no one connected with the
plant management had anything to do with the placing of the ties. On the other
hand, Fulford and Quimby and various Local officials were in attendance while
the picket line was in operation in front of the ties as well as occupying the ties.
Plant management complained to the Chief of Police and after several days the
ties were removed.
Steel Gutter Plates
Steel gutter plates 12.5 feet long and 2 5 feet wide bridge the gutter or drainage
ditch which runs along the south side of East Market Street at the bridge entrance
and they are permanently attached to a concrete base by hinges on the plant
side of the plates. On or about September 4 or 5, pickets raised these plates
about 10 or 12 inches from the ground and inserted bricks and blocks beneath
them so that they remained in an erect position, thus preventing the passage of
automobiles into the plant. The pickets, including Albert Wingler, who was a
strike captain, according to John Quimby, took charge of lowering and raising
them. They did lower them to permit Superintendent Newlon to drive into the
plant. The plates were kept in an erect position for periods variously estimated
from 3 to 6 days.
After several days, Vice-President Lee Smith, accompanied by the Chief of
Police, went to the plant and asked President Burger of the Local to lower the
plates. Burger agreed to do so but threatened to smash the windshields, if
Smith attempted to bring cars in. Shortly thereafter, noticing that the plates
had not been lowered, Smith and the Chief of Police returned and renewed their
request. After the Chief stated that Smith had promised "not to crash the
picket line" Burger assented and in a short time the plates were lowered.
Almost all of the Union officials were in attendance when these plates were in
their raised position.
14 A number of witnesses did not notice the bricks until on or about September 5.
25 As appears below, the Small Street entrance was also blocked by cars that morning.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Small Street blockade
Before 7 a. m on September 4, the Small Street entrance was blocked by
parked cars which were angled across the narrow road in .such a manner that
other automobiles could not pass and enter the plant grounds over the railroad
crossing ahead. The entrance was blocked in this manner for a period of 3 to 5
days and during this period a number of pickets stood between the cars and
would-be passers along the road. President Burger was seen in the picket line
at this point and Vice-President Mays' car was among the parked cars ; in fact,
he was seen sitting in it on one occasion. These pickets also carried clubs as
will appear hereinafter in a specific incident.
Ultimately, Company officials requested Burger to move the cars in the event
of fire so as to provide ingress for the fire department. Burger agreed to do this
after warning, according to Vice-President Lee Smith, that "there will be trouble"
in the Company attempted to bring cars into the plant. Within several hours
the cars were reparked along the side of the road.
Nails
At various times throughout the strike, large quantities of nails appeared on
the roadways leading to the plant and in the entrances. Management denied
all knowledge as to the means of their placement and found it necessary to
obtain a powerful electromagnet in order to remove them. The record does not
indicate how, under what circumstances, or by whom the nails were placed in
the plant area.
Contentions and conclusions
Coverage of Section 8 (b) (1)
The Congressional record is replete with discussion as to what conduct
Section 8 (b) (1) is intended to encompass. It is clear that at least in cases
of intimidation or use of force Section 8 (b) (1) of the Act is intended to include
such conduct as would be violative of Section 8 (a) (1). In the opinion of the
undersigned, a statement by Senator Taft, one of the sponsors of the 1947
amendments to the Act, is highly persuasive of the Congressional intent in this
field. He said,
The effect of the pending amendment is that the Board may call the
union before them, exactly as it has called the employer, and say, "Here
are the rules of the game. You must cease and desist from coercing and
restraining the employees who want to work from going to work and earning
the money which they are entitled to earn." The Board may say, "You can
persuade them ; you can put up signs ; you can conduct any form of propa-
ganda you want to in order to persuade them, but you cannot, by threat of
force or threat of economic reprisal, prevent them from exercising their
right to work." As I see it, that is the effect of the amendment 16
The agency problem
As with the other incidents and conduct to be set forth below, the problem
arises whether or not the conduct alleged to have been violative of the Act was
committed by "a labor organization or its agents." 21
16 93 Cong. Rec. 4562, May 2, 1947.
27 Section 8 (b) of the Act.
UNITED FURNITURE WORKERS OF AMERICA 903
In this case the membership of Local 309 voted to give its Executive Board
authority to take whatever action it deemed necessary including the right to call
a strike. The strike was called and commenced on the next day with the approval
of representatives of the International . It was an official undertaking by a
majority of the Union membership. Picket lines were set up and officials of
both the Local and the International appeared both as pickets and as directors
of their conduct and activities. There is no question but that the Unions through
their duly selected leaders and officials established these picket lines at the plant
entrances as part of the over-all strike technique.
Under the circumstances the undersigned is of the opinion that by .setting up
picket lines at the plant entrances, the Respondents have manifested a consent
to third persons, including all employees of the Company, that the individuals
on the picket line were their agents and that they were endowed with apparent
authority to act for the principals, the Respondents, with respect to such third
persons and to perform acts on the principals' account.18 This is not to say that
the Respondents would be responsible for all conduct of a picket line. For
example, there may be a serious question of responsibility for the action of
unidentified persons on a picket line under aggravated circumstances. It is
reaffirmed, however, that in the circumstances of this case with identified pickets
taking part in officially authorized picket lines, there is a prima facie presump-
tion that the principal Respondents had manifested their consent that these
pickets were their agents acting in the Respondents' behalf, and as the under-
signed finds, their conduct is attributable to the Respondents as principals.
Respondents' contentions
Respondents have raised the contention, in effect, that a mere attempt to
restrain or coerce does not constitute an unfair labor practice and that the
attempted unfair labor practice must have proceeded to the point where it
successfully restrained or coerced employees of the Company in order to consti-
tute a violation of the law. Accordingly, Respondents moved to strike the testi-
mony of a number of witnesses relating to certain incidents, predicating their
argument on the fact that these individuals continued to report for work after
the alleged restraint and coercion took place, the argument being that the alleged
restraint and coercion was therefore ineffective and hence not a violation of the
law.
It has been well established in many decisions under the Act, prior to its
recent amendments, that the remedies of the Act are just as much available
where coercion fails as where it succeeds. In the opinion of the undersigned,
the same criteria should be applied in this respect in proceedings under Section
8 (b) (1) of the amended Act as were applied under Section 8 (1) of the old Act.
This contention is accordingly rejected 1°
Respondents also contend that the First Amendment to the Constitution pro-
tects even threats of reprisal or force, urging that this conduct must first be trans-
lated into action before it can constitute an unfair labor practice. In view of
18 See Restatement of Agency, Vol. 4, Sees 8 and 27.
18N. L. R. B. v. Crown Can Company, 138 F. (2d) 263 (C. C. A. 8), cert. denied 321
U. S 769; Rapid Roller Company v. N. L. R. B., 126 F. (2d) 452 (C. C. A. 7)„ cert. denied
317 U S. 650; Western Cartridge Company v. N. L. R. B., 134 F. 2d 240 (C. C. A. 7), cert.
denied 320 U. S. 746 ; N. L. R. B. v. Brezner Tanning Company, 141 F. 2d 62 (C. C. A. 1) ;
N. L. R. B. v. Winona Textile Mills, 160 F. 2d 201 (C. C. A. 8) ; Matter of Keystone Steel
aE Wire Company, 62 N L R. B 683
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the language of Section 8 (c) of the Act, however 20 the undersigned rejects this
contention. Further, the Board is an administrative agency of the Federal
Government and it is inappropriate for the Board to pass upon questions regard-
ing the constitutionality of Congressional enactments 21
Respondents also contend that the activity set forth above is not violative of
the Act because it was directed against the employer and not the employees.
Although it is true that this conduct may have been directed against the employer,
the undersigned fails to see how this factor serves to protect said conduct, if in
fact it restrains or coerces, or tends to restrain or coerce, the employees of the
Company in the exercise of the rights guaranteed by Section 7 of the Act. For
example, in this strike for recognition, if the picket line, in its activities set
forth above, engaged in conduct which tended to restrain and coerce employees
from entering the plant it perforce compelled them to partake in the strike and
coerced them in their right, guaranteed by Section 7, to refrain from participating
in said strike for recognition. This contention is therefore rejected.
Respondents also raise the contention that the Company, having refused to
recognize and bargain with the Respondents, is itself guilty of the commission
of an unfair labor practice and that inasmuch as the Company is the charging
party in this proceeding, the Board should not lend its processes to a charging
party which is itself guilty of an unfair labor practice, arguing, in effect, for the
application of the equity "unclean hands" doctrine. The undersigned is of the
opinion that this contention lacks merit for several reasons :
(1) It is established that an employer may properly, as is the case here, take
the position in good faith that it will not recognize and bargain with a labor
organization until such time as said organization has been certified by the
Board 22
(2) Assuming that the Company herein was guilty of a refusal to bargain
within the meaning of Section 8 (b) (3) of the Act, the procedures of the Board
are available to remedy that unfair labor practice. Assuming further that the
strike was an unfair labor practice strike, following a refusal to bargain by the
Company, this, in the opinion of the undersigned, would not constitute a defense
to the use of restraint and coercion by the Respondents in this proceeding. Sec-
tion 8 (b) (1) is obviously directed to the conduct or method of carrying on of a
strike or organizational activity and not to its purposes. Hence the cause of
the strike and its conduct by the Respondents are clearly distinguishable and
accordingly may be separately proceeded againstY3
Respondents have further contended that picketing as such is free speech and
is constitutionally protected24 Several other expressions on the subject by the
Supreme Court indicate that while peaceful picketing as such is subject to the
constitutional protection, this protection may disappear in a context of violence
21 Section 8 (c) states "The expressing of any views, arguments, or opinion . . . shall
not constitute or be evidence of an unfair labor practice . . . if such expression contains
no threat of reprisal or force . . (Emphasis supplied.)
21 See Matter of Rote-Form Corset Company, Inc., et al., 75 N L. R. B. 174.
22 See, for example, Matter of Chamberlain Corporation, 75 N. L. R B. 1188, and Matter
of Roanoke Public Warehouse. 72 N. L. R. B. 1281.
23 This is not to say that under certain circumstances, when the "unclean hands" doctrine
is pleaded by way of defense, and the conduct complained of on the part of the charging
party is closely linked up with the conduct complained of on the part of the respondent
party, in point of substance, that in all equity this doctrine ought not to be applied. See,
for example, Matter of Times Publishing Company, 72 N. L. R. B. 676. This, however, is
not the case here.
24 See A. F. L. v. Swing, 312 U. S 321; Thornhill v. Alabama, 310 U. S. 88, and Carlson
v. California, 310 U. S. 106.
UNITED FURNITURE WORKERS OF AMERICA 905
and of physical restrains 26 Thus, in the Meadowmoor case, the Supreme Court
said "Peaceful picketing is the working man's means of communication * * *
But utterance in a context of violence can lose its significance as an appeal to
reason and become a part of an instrument of force. Such utterance was not
meant to be shattered by the Constitution * * s." It is clear that the picket-
ing in the instant case had elements of compulsion set in a background of violence
which went beyond the peaceful communication of ideas and in the undersigned's
opinion, the instant case falls within the latter group of cases cited above.
Respondents' contention is accordingly rejected.
Conclusions
The undersigned finds that by the carrying of sticks or clubs by pickets on the
picket line, the threats expressed by Union officials, the blocking of the plant
entrances by railroad ties, by automobiles and by the raising of gutter plates,
and the open piling of bricks for use by pickets, the Respondents have restrained
and coerced employees of the Company in the exercise of the rights guaranteed
by Section 7 of the Act thereby violating Section 8 (b) (1) thereof.16
(c) Other incidents on September 4
Ralph Dobbins
On the morning of September 4, 1947, maintenance man Ralph Dobbins and
Robert Minturn, an inspector for the Magnavox Company,' approached the
Small Street entrance on foot. The entrance was blocked by parked cars which
prevented ingress, as described above, and some 6 to 8 pickets carrying clubs
were standing across the road in front of the cars. The group of pickets included
Gene Smedley, Treasurer of the Local, member of the strike committee and
member of the Executive Board, as well as employee Bob Rottet. Smedley was
the only spokesman for the group. He announced to Dobbins and Minturn that
a strike was on and that no one could enter, including Minturn. Dobbins argued
that he, as a maintenance man, had a right to enter "according to insurance
laws," as Minturn testified. Smedley insisted that no one could enter until
President Chester Smith of the Company informed them whom he wanted to
enter the plant. Minturn and Dobbins then departed.'
Walter Hilton
Shortly before 7 a. m. on September 4, employee Walter Hilton rode to work
with a neighbor in the latter's car and approached the Small Street entrance.
He noticed parked cars blocking the approach to the railroad crossing and the
plant, got out of the car and walked over to a group of pickets patrolling in front
of the parked cars. This group totaled 10 to 12 in number, and Hilton recog-
nized most of them as employees of the Company including Smedley and Rottet.
25 Milk Wagon Drivers Union, Local 753 v. Meadowmoor Dairies, Inc., 312 U S. 287;
Hotel and Restaurant Employees International Alliance v. Wisconsin Employment Relations
Board, 315 U S. 437.
16 In view of these findings, the undersigned deems it unnecessary to pass upon whether
the number of pickets per se and the presence of nails in the vicinity of the plant are
violative of the Act.
17 Minturn is a full-time employee of the Magnavox Company He is assigned to regular
duty at the Smith plant to inspect cabinets manufactured for his employer by the Company.
"This incident was offered by the General Counsel in support of the contention that
Dobbins was restrained and coerced , but not as applying to Minturn.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smedley held a club in his hand at the time. According to Hilton , the following
conversation then ensued:
I said , "What 's the matter , why can 't we drive on into the factory?" He
said , "There's a strike on." I said, "Well , why can 't I go on in anyway?
I have got to work in there ." He said , "I just got through telling you,
there's a strike on there. You can't go in."
Hilton then asked what would happen if he went through the picket line. Smed-
ley replied , "I hate to think what would happen if you walked in there", and, as
he said this, Smedley moved his club in front of him and held it with both hands.
Hilton then departed.
Milt Trinkle
At or about 7 a. m. on September 4, employee Milt Trinkle approached the
main entrance . Elmer Colglaziei , a picket and a striking employee , placed his
hand on Trinkle 's chest and stated , in the presence of a group of pickets , "There's
nobody going in this morning." Colglazier informed Trinkle that there was a
strike and Trinkle indicated his desire to report for work . At this point Re-
gional Director and International Representative Fred Fulford came over to
the scene and stated , according to Trinkle , "Don't start no argument this
morning." As heretofore noted, the picket line at the main entrance was carry-
ing clubs at about this time . Trinkle then departed.
Herbert Simpson
Shortly before 7 a. m. on September 4, Foreman Herbert Simpson started to
enter the plant grounds in the vicinity of the Main Office entrance . Pickets Rex
Boston and James Ragains, who were carrying clubs, seized Simpson by the
arms and stated, "No one goes in this morning ." This took place in the presence
of a number of employees including strikers and non -strikers.
Jason McKinney
Jason McKinney , a foreman , approached the Main Office entrance of the plant
shortly after 6 a. m. on September 4. Six to eight pickets , including Paul
Dowling and James Ragains, approached him and asked where he was going.
McKinney continued to walk in the direction of the Main Office, explaining that
he desired to see Plant Superintendent Newlon . As he arrived at the office steps
the pickets surrounded him and Dowling said, "Now, don ' t go in Jase . I think
after a little bit we are going to let you foremen in ." Just then McKinney was
told that Newlon was not in the office at the time, and left. According to Mc-
Kinney, the pickets were carrying sticks at the time and non-strikers were just
across the street.
Between 10 and 11 a. m., McKinney started to drive his car into the river
entrance . A group of pickets was at the entrance and in addition some non-
strikers were just across the street . As McKinney proceeded into the driveway
at a slow rate of speed , some of the pickets, including Ragains and Dowling,
stepped in front of the car and McKinney stopped the car in order to avoid strik-
ing them. Other pickets remained at the sides of the car . Ragains and Dowling
said that McKinney could not enter and just at that time, McKinney felt the
car being lifted from the right side in the direction of the Blue River which is
adjacent to the left side of the bridge entrance . McKinney immediately threw
his car into reverse and was able to back out.
UNITED FURNITURE WORKERS OF AMERICA 907
Still later that morning, McKinney happened to drive along East Market Street
past the plant . As he came opposite a group of pickets at the Main Office entrance
on the south side of the street, including James McDonald, Ragains and Albert
Wingler, he saw Wingler , who has been identified as a picket captain by Interna-
tional Representative John Quimby, throw a stone which hit and shattered. the
right front window glass on McKinney's car. At about the same time, another
stone struck the right rear glass of his car. McKinney did not see who threw the
second stone and he continued on his way. As in the case of the earlier incidents,
there were non-striking employees in the vicinity at the time.
(d) Later Incidents
Mabel Asher
On September 6, Mabel Asher, an employee of the Company, drove to the swing-
ing bridge entrance where she encountered four pickets, Oscar Spurgeon, who was
a Trustee of the Local and a member of the Executive Board, Newt Clem, Davie
Voyles, and Alvie Curtis. She asked If she might enter the plant to get her tools
because she had obtained another job In Louisville. Alvie Curtis walked over to
her car, which was just over half the width of the two-lane highway from where
the pickets were standing, and told her that she could not go in. Although Mrs.
Asher is very hard of hearing, Curtis' statement was said In a loud enough voice
for her to hear. The other three pickets shook their heads indicating "No" as
Curtis spoke to her."
Homer Williams
Employee Homer Williams was engaged in some private work near the plant on
September 6 and had occasion to turn his car around on East Market Street in
the vicinity of the entrance. Picket Captain Albert Wingler stepped over from
the picket line, asked Williams what he was doing in that vicinity, and then ac-
cused him of coming there for surveillance purposes. Just then another picket,
Kenneth White, stepped out of the picket line, motioned with his club up the hill
whence Williams had just come, and said, as Williams testified, "Now we have
warned you." Williams then left80
Mirel Mount
On September 6, the regular day watchman, Mirel Mount, approached the main
entrance and attempted to enter the plant. The picket line was in operation at
the time and carried clubs. President Burger of the Local interposed himself in
front of Mount and stated, as Mount testified, that "he had a feller in there in my
place," and that "one at a times' all that went in." a Local Treasurer Smedley
also spoke to Mount at the time and said that "somebody else could take care of
that [watching the factory] as well as I could." Picket James Richardson then
told Mount that he could not go in until "he got a union card."
20 The record indicates that Mrs. Asher worked in Louisville for four days until the
plant was reopened at which time the Company recalled her. Under the circumstances, it
is found that Mrs. Asher had not permanently abandoned her employment at the time of
this incident.
80 The direction which White pointed out with his club was west along East Market
Street and away from the plant property.
ffi Burger apparently referred to Laughty Curtis who was a night watchman before the
strike , and who had served in the picket line . Curtis had not been sent in by the Company
and, in fact , on September 9 was informed by Superintendent Newlon that he would no
longer draw his pay if he remained in the plant . Management bad nothing to do with
the sending in of Curtis as a watchman on this occasion.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mount informed Superintendent Newlon that he was unable to enter whereupon
Newlon instructed Mount to report for work on September 8. Mount reported
to the main entrance on that date and was met by a group of pickets with clubs
including Picket Captain Wingler who informed Mount that "they had a feller
there in my place."
Ralph Dobbins
On the morning of September 11, employee Ralph Dobbins and Superintendent
Newlon went to the plant to repair a broken steam pipe. As they approached the
main entrance, four pickets including International Representative Quimby, Clint
Robinson and James Ragains, stepped in front of them. Quimby then stated, as
Dobbins testified, that no one "was going in there, only the night watchman."
Dobbins and Newlon left.
Herbert Simpson
On the morning of September 11, Foreman Herbert Simpson and President Ches-
ter Smith approached the Main Office entrance. As Simpson started up the steps,
pickets Harold Patton and Lawrence Robbins came over and, as Simpson testified,
said "we could not enter." Both pickets and non-strikers were in the vicinity at
the time. It will be recalled that the majority of the picket line carried clubs
until on or about September 12.
On several occasions after September 12, one or two rows of pickets would stand
shoulder to shoulder in Simpson's path as he left the plant together with other
non-strikers. The latter group generally deviated from the usual path of egress
on those occasions, but Simpson adhered to his customary line of travel and had
to force his way through the lines of pickets. On some of those occasions he was
kicked by the pickets and was also stuck with needles which he later pulled from
his flesh. He identified pickets Belle Van Laningham and a Mrs. Coffey as two
of those who had stuck him with the needles. These incidents took place in the
presence of non-striking employees.
Contentions and conclusions
In addition to the other contentions of Respondents, which have been discussed
and disposed of heretofore, they specifically raise the contention herein that in
view of the definition of employees in Section 2 (3) of the Act and the exclusion
therefrom of supervisory employees' incidents involving Foremen Simpson and
McKinney may not constitute an unfair labor practice because Section 8 (b) (1)
of the Act makes it an unfair labor practice only "to restrain and coerce
employees."
These incidents are offered, however, by the General Counsel not because they
allegedly tended to restrain and coerce supervisory employees but because they
tended to restrain and coerce rank and file employees of the Company. Although
conduct of this nature would perforce be more direct in its impact on the im-
mediate recipients thereof, namely, the foremen, it is nevertheless true, in the
opinion of the undersigned, that incidents of this nature, involving supervisory
employees, would reasonably tend to have an effect on rank and file employees,
especially where, as here, similar conduct was engaged in with respect to rank
and file employees. Firstly, the exclusion of supervisory employees from the
plant together with threats and assaults tending to restrain and coerce them
from appearing at the plant is significant because a plant cannot, as a general
82 Section 2 (3) states in part : "The term `employee ' should include any em-
11ployee . . . but shall not include ... any individual employed as a supervisor . . .
UNITED FURNITURE WORKERS OF AMERICA 909
rule, operate without supervisory employees. Such conduct therefore restrains
or tends to restrain production employees from working and coerces them in
their rights guaranteed by Section 7 of the Act to refrain from engaging in con-
certed activity, and,. in effect, coerces them to engage in concerted activity.
Secondly, violence or threats to supervisory employees occurring , as these did,
in the sight and hearing of employees of the Company would reasonably tend
to restrain and coerce such rank and file employees. These incidents would
inescapably be interpreted by employees as a reliable indication of what might
befall employees who sought to enter the plant 88
According to International Representative Quimby, the Respondents appointed
a picket captain at the outset of the strike to be in charge of the picket line at
each gate, and this policy remained in effect up to and including September 12.
He further alleged that he had ordered that no one be kept from the plant and
that this order was given to the picket captains. His testimony is offered, it
would seem, to show that no restraint or coercion was engaged in in and about the
picket lines by the Respondents in their official capacities. The record indi-
cates, however, as set forth above, the nature of the activities engaged in by the
picket lines under the express direction of Local and International officials in-
cluding Quimby himself. In fact, Albert Wingler who was identified by Quimby
as a picket captain, was one of those who distributed sticks to the pickets on the
morning of September 4. It can hardly be urged that responsibility for this
picket line activity can be shed by the appointment of minor strike officials with
instructions to engage in no violence or improper activities where, as is the case
here, the top hierarchy of both Respondents personally engaged in the actual
conduct alleged to constitute restraint and coercion.
It has previously been found that there is a prima facie presumption that the
Respondents manifested their consent to the activity of the picket lines and the
pickets or their agents. The undersigned therefore finds that by the conduct set
forth above, all of which was engaged in by identified pickets and in large part
by officials of the Local and representatives of the International, Respondents
have restrained and coerced employees of the Company in the exercise of the
rights guaranteed by Section 7 of the Act, thereby violating Section 8 (b) (1)
thereof.84
2. Events between September 12 and 20
The Company decided to reopen the plant on September 12 and on September
10 and 11, sent a form letter to all of its employees stating that work would be
resumed on the morning of September 12. The letter further stated that "any-
as The situation here is not one where the conduct complained of in respect to supervisory
employees was not witnessed by other employees. Although unwitnessed conduct may well
be of such a nature that it may reasonably be expected to come to the attention of employees
in due course, that problem is not present here See, for example, Matter of Reeves-Ely
Laboratories, Inc., 76 N. L. R. B. 728 Of course, whether such conduct was witnessed
or not would be immaterial to the first reason assigned above.
84 The undersigned has not relied herein on an incident involving employee John Land
on the morning of September 4. Land while on his way to the plant and in the company
of several other employees -was spoken to by a picket, Robert Foster, about 150 feet from
the plant and told that he could not go in because a strike was on
In the incidents set forth above involving Mirel Mount, the undersigned has not relied
on incidents involving Mount on September 4, 5, and 9 On the 4th he was admitted to
the plant via the swinging bridge by picket Oscar Spurgeon after first being told that he
could not enter. When he left that day, President Burger told him that thereafter he
would have to enter by the main entrance. On the 5th he was admitted by President
Burger after first being told by pickets that he could not enter. Mount was also admitted
on the 9th by Burger after being told by a picket that he could not enter.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one not reporting for work at that time would no longer be considered on the
payroll ," as Vice-President Smith testified .'' The plant resumed operations on
the morning of September 12, as planned . The picket line continued to function,
although they no longer carried clubs or sticks . Pickets were not present at the
swinging bridge entrance, however, at all times although they usually were there
when employees left the plant at the noon hour for lunch. The incidents which
follow all preceded the arrival of Indiana State troopers on the scene on Sep-
tember 20. Their arrival resulted from a request for additional police protec-
tion by the Company after the incidents occurring on September 19, which appear
below.
a. The Hobart Walton incident
On September 15, 1947, employee Hobart Walton was returning to work at
approximately 12: 45 p. in. after having gone home for lunch . Walton walked
along State Route 60 in the direction of the swinging bridge entrance and noticed
employee Mabel Asher proceeding along the road a short distance ahead of him
and in the same direction. He saw Mrs . Asher pass four men who were standing
close to the walkway which leads to the swinging bridge, " and cross the bridge
without event ; she proceeded to the plant without event. As Walton was about
to step up on the walkway, two of the four men quickly stepped on ahead of him.
Walton entered behind them, whereupon the other two men immediately stepped
on after him. The first two men stopped, after proceeding some feet to where
the walkway joins the bridge, turned around and one of them put out his arm
thereby blocking further passage by Walton. The other two men also pro-
ceeded up the walkway after Walton and they too stopped Immediately to his
rear. Walton, in the meantime, had turned sideways and was able to observe all
four men. The following conversation then took place, according to Walton's
uncontroverted testimony:
The first one that entered the bridge in front of me asked me where I was
going. I told them I had planned on going to work where I was employed.
And he in turn asked me to stay out, and if I couldn't join them on the
picket line I could go home.
Then the conversation was brought up by one of the men that was behind
me, and he asked me if I was going on to work or if I was going to stay out.
I told him I had planned on going. About that time the last one had entered
the bridge and started to swing at me and hit me on the right cheekbone.
After being struck, Walton managed to get around the men to his rear, got
off the bridge, and hastened west along State Route 60 whence he had originally
come. He there encountered John Bowers and his daughter, Mrs. Maysel Agan,
who had witnessed the incident from the front porch of Mr. Bowers' home on
Route 60 and had hurried to the scene.87 The four men, none of whom were then
known to Walton, had in the meantime run from the bridge to an automobile
which was parked east of the bridge on Route 60 and had driven away. Mrs.
Agan recognized one of them as Clyde Knight, an employee and a striker. After
some conversation with Bowers, during which both Bowers and Mrs. Agan
noticed a bruise on his cheek, Walton decided to return to the plant. He imme-
diately asked Mrs. Asher if she could identify the four men she had seen at the
M The letter was not introduced in evidence.
"It will be recalled that this walkway, a picture of which is in evidence , is about 23
to 26 inches wide.
11 Mrs. Asher and Mrs. Agan are sisters and are the daughters of Mr . Bowers. All three
had lunched at the Bowers' home that day.
UNITED FURNITURE WORKERS OF AMERICA 911
bridge. Mrs . Asher, who has been in the Company's employ for approximately
24 years and has been there steadily for the past 12 years, said that she did
recognize the four men and' wrote their names on a piece of paper, which, she
handed to Walton. The names were : Clint Robinson, Clyde Knight, Robert Foster
find Gail 8' Shocke, all of whom had regularly been performing picket duty both
before and after this incident 8° During the entire period that this incident took
place there was not, insofar as the record indicates, anyone other than those
named above in the vicinity of the swinging bridge and Bowers and his two
daughters were the only witnesses to the incident."
The General Counsel offers as corollary to the above an incident which took
place on the following night, September 16. At about 11: 30 p. in. a rock went
through and shattered a front window of the Bowers' home. Nothing was to be
seen in the immediate vicinity other than an automobile disappearing down the
road. The General Counsel also offers an incident involving employee James
Hyde, who had previously expressed his antipathy to the Union. On the evening
of September 16, a building brick went through and shattered a window of his
home. The following morning he discovered a stick of dynamite in his front
yard, the fuse of which had burned one-half through and had been extinguished
in some fashion.
b. The box car incident of September 16
On the morning of September 16, a number of employees of the company were
assigned to load cabinets into an empty railroad box car which had been shunted
into a railroad siding located approximately one quarter of a mile from the plant
and near the Monon Railroad depot in Salem. These employees included Walter
Hilton, Liebert Gorman, Bob Davis and Floyd Lyles, who were brought to the
box car in the first trip made by a Company truck driven by employee Ralph
Howard. After the first load was transferred from the truck to the box car,
Howard returned to the plant for another load and the other four employees
remained in the car to await his return.
Shortly thereafter, a number of pickets began to arrive and congregate at the
railroad siding. These included Fred Fulford, John Quimby, August Bahr, Frank
Schmitz and Rex Bosten. Fulford then counted the pickets and said, according
to Hilton, "Twenty, that's enough, let's go." The group of pickets immediately
organized a circular picket line directly in front of the open box car door, some
of them carrying placards referring to the strike. The inner side of the circular
picket line was close to the box car and, as Hilton testified, "They were so close
to the box car that the four of us could not have gotten out * * * without
jumping on them or over them." Hilton also estimated this distance as 6 inches.
In a short time, the truck returned with the second load of cabinets, and began
to back up toward the box car door. As this took place, Fulford said to the
pickets, "Stay in there, boys, he'll not back over you." According to truck driver
Ralph Howard, he stopped some feet short of the picket line so as to avoid back-
ing into them. All operations then suspended at this point for approximately 45
minutes" The county sheriff and the Salem Chief of Police appeared on the scene
sa Also spelled in the record as Gale.
30 In fact, on the following day Walton observed one of the four on the picket line.
40 The findings herein are based upon the testimony of Walton , Bowers , Maysel Agan and
Mabel Asher , which is in substantial agreement and is uncontroverted . Respondents did
not make a sufficient showing that the four individuals to whom the swinging bridge
incident was attributed were unavailable
^ During this delay Quimby informed Howard that if he backed into the pickets, he,
.Quimby, would put him "in the hospital".
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after this interval and spoke to the pickets, informing them that they would have
to leave. The pickets did not leave and the police officials departed. Fifteen to
20 minutes later the police officials returned, conferred with Fulford and Quimby,
and again told the pickets they would have to leave. On this occasion the pickets
obeyed and drew back some 50 feet from the box car door. Apparently there
was only heckling and name calling thereafter, and the truck then backed up to
the door and work was resumed."
c. The assaults and car overturning of September 19
On September 19, 1947, a number of assaults were committed on employees of
the Company in the vicinity of the main entrance, as the employees were leaving
the plant. The action took place over a period of a very few minutes, consider-
able excitement was prevalent and a large number of people was involved ; in
addition, only portions of the incident were seen by some of the witnesses. As
a result, there are some variations as to the exact sequence of events herein as
told by the witnesses who included both victims of the assaults and eye witnesses
thereof. The respective versions are, however, in substantial agreement as to
the details of participation therein, the direction of the assailants, the names of
the injured and the manner of their injury.43
It will be recalled that the main entrance consists of a narrow roadway which,
as it nears East Market Street, is almost parallel to and immediately adjacent
to the Monon Railroad tracks. There is no fence of any sort between the entrance
roadway and the tracks and employees frequently cross over the tracks at dif-
ferent points as they near the street. As the employees proceeded down the
roadway or on the railroad tracks on their way to East Market,Street, just after
5 p. m. on September 19, 1947, some of them were in a small group, others in
another small group, some were walking individually, and still others were riding
in the automobile of James Hyde who was departing from the plant along the
entrance roadway at a slow rate of speed. As the first employees approached
East Market Street, they observed a group of strangers consisting of young men
variously estimated from 6 to 12 in number. Regional Director and International
Representative Fred Fulford was also there and was standing near the railroad
tracks close to the main entrance.
Just then Fulford pointed his finger at employee Gareth Rodman and said,
"You get that one," whereupon one of the strangers struck Rodman in the head,
knocking him down. Several others of the strangers joined in the melee and
Rodman was struck or kicked several times while on the ground. Fulford was
the only person to direct these strangers in their activities, and employed the
same technique with respect to several other employees. In each case he pointed
out the intended victim and instructed the strangers to "get him." In this
fashion William Hinds was struck down by one of the strangers who said, as
he struck him, "Here's what we think of scabs." " Employee Nora (Flora)
42 Findings herein are based upon the uncontroverted testimony of Hilton, Howard and
Davis, which is in substantial agreement .
98 The findings which follow are based upon testimony of these witnesses, all called by
the General Counsel. They are: Stella Allen, Nora (also spelled Flora) Lee, Dorothy
Strange, Gareth Rodman, Virgie Bowling (also spelled Bolling), Fern Adams, Katherine
Shelby, William Hinds, James Trinkle, James Hyde, and Rowe White. Their testimony was
not controverted by any witnesses for the Respondents Fred Fulford, who is referred to
hereinafter, testified only when called for cross examination by the General Counsel. He
was not questioned concerning these incidents.
94 When Hinds raised his dinner bucket to protect himself his attacker told him that he
would be a "dead duck" If he hit him with it.
UNITED FURNITURE WORKERS OF AMERICA 913
Lee, who had observed this assault , picked up a rock and threatened to throw
it at Hinds' assailant if he struck him again . Fulford noticed this and told
her, as she testified , "You get up there on the bank [a nearby elevation] and attend
to your damned business ." As Hinds attempted to get away from his assailant,
he was pushed into some shrubbery by one of the attackers.
Fulford pointed out James ( Milt ) Trinkle, a man 71 years of age , and told one
of the strangers to "get this one." Trinkle was struck behind the right ear and
suffered a contusion which later required medical attention.
The record also indicates that during this short period when Fulford directed
the assaults described above, another employee, Everett Taylor, was chased
by several of the strangers who were striking at him . In fact , one of the
strangers had his hands on Taylor 's neck and was seen choking him as Taylor
attempted to escape . Also, at about this time, the strangers jumped upon the
truck of Alfred Sons, which was on the driveway. It is not clear whether
Sons fell out or was thrown out of the truck, but in any event, he managed to
escape. In addition, another employee, Lloyd Elrod, was struck by one of the
strangers as these assaults continued.
Employee James Hyde customarily drove several other employees to and from
work in his car. As he proceeded along the driveway that afternoon with his
three passengers, all ladies, in the car, he was forced to stop short of East Market
Street because the truck in front of him had also stopped. Just about then,
Fulford pointed to Hyde's car and said, "There they are, get that one." A
number of the strangers dashed over to the car and told the women to get out,
saying they would not be hurt. Then Hyde was grabbed by the collar and force-
ably jerked from the car. He was knocked down and was unconscious momen-
tarily. The next thing Hyde knew he was on his feet, as he testified, and one
of the men was shaking him and saying, "Get up over the hill and don't you
come back here in the morning." Hyde's car was overturned by these strangers,
damaging it severely , and as Hyde started toward town to summon police, a
thrown stone broke the windshield of the car.
As stated above, these activities by the group of strangers were directed by
Fulford alone, insofar as the record indicates . In addition , a number of officials
of the Local were present including President Burger, who was standing near
Fulford . Treasurer Smedley, Sergeant at Arms Harmon and Recording Secre-
tary Jackson were also in the vicinity at the time. In fact, Jackson and
Smedley were observed talking and laughing while the assaults took place.
The record also indicates that one of the stranger assailants , identified as $
"man in blue," who had assaulted several of the employees , sat down and spoke
with Smedley while Hyde's car was being set back on its wheels.
After the assaults were over , the strangers grouped themselves and Fulford
then said, "That's enough, boys, we'd better get going." The strangers then
hastened to a group of cars, estimated to be six in number , and departed. There
was no evidence of any disavowal by any Local or International official of the
acts of these men, nor , for that matter , is there evidence of any disavowal of
any of the incidents set forth above or hereinafter.
d. The Ruby Winslow incident
On the evening of September 19, after these assaults had taken place, Robert
Foster , who was a striker and a picket , called at the home of employee Ruby
Winslow. He sounded his horn and Mrs. Winslow , who was acquainted with
Foster , came out to the car. The following conversation took place , according
to Mrs. Winslow :
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
* * * He asked me not to return to work for a week. And I said, "Well,
I'll have to have a good excuse or a good reason before I can promise anything
like that." And he told me, he says, "Well, now, there was a car overturned
in the factory tonight and that is only the beginning." He says, "I can't
be certain that anything will happen, but I feel like there will be, and if
it does it will be within the next week." And he says, "We have between
two and three hundred people we can bring in here at any time to help us,
and the next time there will be women in the group to handle the women
here at the factory because the men aren't allowed to touch the women."
And he said, "There won't be an equal number, but the women here will be
outnumbered four or five". * * *. Four or five to one, and that they
would beat us up and probably strip our clothes off, and that the cars on the
fill would be turned over.
According to International Representative Quimby, Foster was authorized to
visit the homes of employees after September 12. Quimby's testimony was as
follows :
Trial Examiner BENNETT. What do you mean when you say you sent
out committees?
The WITNESS. We sent out committees to the people that went back in
after the Company sent the letter out, to talk to them and inform them what
their rights were.
Trial Examiner BENNETT. When you say "we" sent out, whom do you
mean by "we"?
The WITNESS. The Union sent out.
Trial Examiner BENNETT. Was that done with your knowledge or advice?
The WITNESS. Yes.
* * * * * * *
Q. (By Mr. Fusco.) Were Union members and pickets and Union officials
authorized by the Unions in this case to go to people's homes to persuade
them not to go to work after September 12?
A. No, they were not authorized to do that by the Unions or the
Representatives or the Executive Board.
Q. What were they authorized to do, Mr. Quimby, on these visits?
A. They were authorized to visit the people that were working to inform
them what their rights were, to inform them that if they stayed out, supported
the strike, that the Company couldn't fire them, that an employee couldn't
be fired or discharged as the Company had threatened to do to everyone
when the strike was in progress, they couldn't fire a striker, discharge a
striker, and to inform them what the Union's aims were and what the Union
would like in the way of co-operation from them. [Emphasis supplied.]
Q. That is customary in any strike, isn't it?
A. Certainly, it is.
Q. And you did it in this strike?
A. Certainly.
* * * * * * *
Q. (By Mr. Fusco.) What about Robert Foster?
A. I don't know for sure whether Bob Foster went out, or not.
Q. Did he have a right to?
A. He would have had a right to. [Emphasis supplied.]
UNITED FURNITURE WORKERS OF AMERICA
e. Contentions and conclusions
915
Respondents ' contention that the Company herein is guilty of "unclean hands"
was considered previously in Section III (C) (b). Respondents raise it again
here, arguing that the letter of September 10 and 11 sent to the employees by
the Company and stating that anyone not reporting for work on September 12
would no longer be considered on the payroll, constitutes a violation of Section
8 (a) (1) of the Act and should be taken into consideration in determining
whether unfair labor practices have been committed herein by the Respondents.
Assuming, as Respondents contend, that the issuance and circulation of such a
letter constitutes an unfair labor practice, the undersigned considers this con-
tention as lacking in merit. As set forth previously, (1) the Board's remedies are
available to remedy this action, should it constitute an unfair labor practice,
and, (2) Respondents' contention relates to subject matter which is distinguish-
able in point of substance from the conduct of the strike, which is all we are
concerned with herein.
With respect to the swinging bridge incident on September 15, it is clear that
Hobart Walton was assaulted by four pickets as he attempted to enter the
plant grounds. The undersigned has previously found that, under the circum-
stances of this case, with identified pickets participating in an officially author-
ized picket line, there is a prima facie presumption that the Respondents have
manifested their consent that these pickets were their agents acting in the Re-
spondents' behalf. In the undersigned's opinion, the Walton incident falls within
the scope of this responsibility and is hence attributable to the Respondents."
With respect to the box car incident, a picket line. under the direction of
International Representatives Fulford and Quimby prevented a Company truck
from backing up to the box car where employees were waiting to unload it. The
Company employees were thereby compelled, against their desires, to engage in
a concerted activity and refrain from working.
As for the mass assaults and violence on September 19, at the main entrance
of the plant, they were specifically directed by International Representative
and Regional Director Fulford in the presence of Local officials. At no time
did anyone connected with either the Local or the International disclaim re-
sponsibility for them. In the opinion of the undersigned, responsibility of the
Respondents for their commission is not open to question.
The statements to employee Winslow on September 19 were made by Robert
Foster, a member of the Local, who was authorized by the Local with the advice
and knowledge of International Representative Quimby to visit employees at their
homes. He did visit Ruby Winslow and the context of his remarks, quoted above,
clearly reveals a threat of the use of force and unseemly conduct should she
return to work 98 In view of the above, it is found that Foster was authorized as
agent for the Respondents to contact employees in their homes and inform them
what the Union would expect from them in the way of cooperation. Insofar as
Mrs. Winslow was concerned, it is found that she had reasonable cause under the
circumstances to believe that Foster had authority to make the statements which
46 Although the incident of the rock being thrown through a window of the Bowers home
after the assault on Walton is highly suspicious, the undersigned , in making the above
finding, does not rely or pass upon it No findings are made concerning responsibility for
the incident at the James Hyde home that same evening.
° Winslow did, in fact , continue to work. Respondents ' contention that the conduct com-
plained of must have the desired effect in order to constitute evidence of an unfair labor
practice has been previously considered and rejected.
829595-50-vol 81-59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did, and at no time was she ever informed or put on notice that lie was not
authorized to make the statements reported above. The undersigned finds that
the Respondents, under the circumstances herein, are responsible for the con-
duct of Foster on this occasion.
The undersigned finds that by the attack upon Walton on September 15, 1947,
the restraint in the loading of the box car on September 16, the various assaults
at the main entrance on September 19, and the threat to Ruby Winslow on Sep-
tember 19, Respondents have restrained and coerced employ ees of the Company in
the exercise of the rights guaranteed by Section 7 of the Act, thereby violating
Section 8 (b) (1) thereof.
3. The events of September 20 and thereafter
As stated above, a number of assaults and the overturning of an automobile
took place on September 19. Immediately thereafter, the Company requested
additional police protection, and, as a result thereof, State troopers were as-
signed to strike duty at the Smith plant on September 20. They have continued
to be present at plant entrances since that date, particularly at times of ingress
and egress, and were still serving during the instant hearing. The Mayor
of Salem also appointed a number of employees of the Company as special
deputies; their authority, insofar as the record indicates, was confined to the
plant and its entrances. The strike was still in effect on the dates of hearing
herein, although the Company has continued to operate since September 12 with
an expanding complement of personnel.
a. The box car incident of September 20
It is the custom, when a box car on the Company siding has been laden with
manufactured cabinets, for the Monon Railroad to send a locomotive to the
siding to pick up and haul away the car. After this is done, the loading gang
will then load another car. On September 20, 1947, a Monon engine attempted
to back in and pick up a box car which had just been laden by employees of the
Company. Approximately 20 pickets, under the direction of Fred Fulford, then
formed a picket line across the railroad tracks in the path of the locomotive.
Fulford instructed the pickets, according to Walter Hilton, "Stay on there, he
won't run over you" The pickets remained on the tracks and the engine was
forced to come to a stop. After about 10 minutes, the pickets were ordered off
the tracks by the State troopers who were stationed at the plant, and the loco-
motive proceeded down the tracks and removed the box car. The Company
employees were then able to continue with the loading of other cabinets."
b. The Dorothy Strange incident of September 2i
Dorothy Strange is an employee of the Company who returned to work on
September 12 and continued in the Company's employ thereafter. On the night
of September 24, as she walked home from work, International Representative
John Quimby and Financial Secretary Marjorie Goiman of the Local drove up
beside her. Someone in the car summoned her and Strange, recognizing Quimby's
car, walked over to it and said, "Well, why don't you go on and attend to your
97 This incident is considered by the undersigned only insofar as it related to or tended
to affect emplo3ees of the Smith Company Although Section 2 (3) of the Act states "the
term `employee' shall include any employee and shall not be limited to the employees of a
particular employer * * *" it also excludes from its purview "* * * any in-
dividual employed by any employer subject to the Railroad Labor Act * * * "
UNITED FURNITURE WORKERS OF AMERICA 917
own damned business." Quimby then said, according to Strange, "I want you
to quit going through the picket line down there. You are going to get picked
off and going to get in trouble." Strange continued to work and about one week
later, she discovered late in the evening that her automobile had been damaged.
The radiator cap was gone, oil was in the radiator, spark plugs had been re-
moved and sand was in the motor. Between October 1 and 15, she also discovered
one evening that her tires had been slashed, leaving cuts 6 to 8 inches long.
c. The Wylie Williams incident of September 24
Wylie Williams has been a cabinet maker in the Company's employ a number
of years and is 61 years of age. On the evening of September 24, Vice-President
Gerald Mays of the Local, called at his home. Mays was referred by Mrs.
Williams to a grocery store where Williams had gone on an errand, and Mays
proceeded to the store. When Williams left the store, he noticed Mays in a
car parked in front of it. Mays and another man got out of the car, leaving
President Burger of the Local in the car, and walked about 20 feet to where
Williams was standing. Mays said to Williams, "I want to have a friendly
talk with you. Things are going to get hot down there, and you had better stay
away." Williams replied, "That's where I make my living and I'll be there."
Mays then said, "I've warned you."
d. The Albert Holt incident of October 1
On the evening of October 1, Albert Holt, an employee 63 years of age, was
visited at his home by George Little, a Trustee of the Local and a member of its
Executive Board. Little stated that "he was representing the Union" and
asked Holt to remain away from work for two weeks. At that point, Holt's
wife entered the room and told Little to leave the house. Little left and a q
he departed, said, "There's one thing about it * * * When we get in with
the Union you old fellows won't have a job."
e. The Homer Williams incident of October 318
Shortly before 7 a. in. on the morning of October 3, employee Homer Williams
drove east along East Market Street in the direction of the bridge entrance ou
his way to work. Approximately 20 pickets were at the entrance, of whom ] 0
or 12 were marching in a circle across the entrance. Williams, driving at a
rate of about 10 miles per hour, blew his horn once or twice and started to turn
in. The outer part of the picket circle opened up but the inner circle did not.
Williams immediately applied his brakes and stopped short of the inner live
and about 6 inches from picket Naomi Murrell, who was jerked from the path of
the car by picket Frank Schmitz as Williams stopped. The car did not strike
Murrell.
As the car stopped, Fred Fulford, who was standing on Williams' left, shouted,
"He hit her. Take him out of there." When Fulford said this, he reached
through the window of Williams' car and made a grab at Williams. This grab
consisted of a downward swoop of the hand which broke Williams' glasses, nicked
his chin and tore his shirt. Some scuffling then took place between the two as
Fulford attempted to take hold of or strike Williams and the latter attempted
118 It will be recalled that Williams had been warned on September 6 to stay away from
the plant . The record also indicates that on the night of September 16, the rear tires
and tubes on Williams ' car were badly slashed by persons unknown as the car was parked
in front of his home.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to fight him off or retaliate.'' At this moment, with the scuffling continuing, a
State trooper who had observed the entire incident from. his car parked near
the main entrance, drove up. The trooper, Harold Lewis, verified through Wil-
liams that he had been struck by Fulford, and arrested the Iatter.60
f. The Rowe White incident of October 3
Rowe White has been in the Company's employ for approximately 4 years.
The record does not indicate exactly when he returned to work after the shut-
down of the plant between September 4 and 12, but it does reveal that he was
back by September 19. On October 13, White returned home from work and
between 6 and 6: 30 p. in. he and his wife, together with their 5-year-old
daughter, decided to drive to an outlying service station to purchase some soft
drinks. Although it was not fully dark at the time, his car head lights were
turned on. White drove east along East Market Street past the main and
bridge entrances to the plant, noticing some female pickets in the vicinity of the
entrance at the time. He followed East Market Street to its intersecion with
a rural highway and then turned right. Some distance along this rural highway,
it intersects State Route 60 at which intersection the service station, Zink's, is
located on the outskirts of the town of Salem.
As White turned from East Market Street onto the rural highway, Mrs.
White looked out the rear window and noticed an automobile following at a
rapid rate of speed. This car also turned right on the road leading to Zink's
and sounded its horn, whereupon White pulled over to the right to permit it
to pass. The car passed White's car and then cut sharply to the right and
stopped suddenly thus cutting off and blocking White's car 51 White was forced
to stop suddenly to avoid striking the car and his wife and child struck their
heads against the windshield or dashboard. White's car at that time was about
50 to 75 feet from Zink's and within several feet of the other car, with his
headlights illuminating the other car, particularly the right side thereof, and
revealing it to be a gray Buick 4-door sedan.
The first person White and his wife noticed was Robert Pennington 62 as he
got out of the right side of the Buick and came over to the left side of White's
car where White was sitting. Mrs. White, as she testified, "hollered to him to
go away and let us alone." Pennington continued on and told White "to get out
and that he was gonna stomp hell out of him." Mrs. White told White to get
a revolver which he carried,in the glove compartment of the car. White did so
and leveled the gun at Pennington, believing he could frighten him away."
Pennington reached in the open window and grabbed White's right hand which
held the gun, forcing it around so that it pointed at White's chest and saying,
"Now, damn you, pull it off." He then managed to get control of the gun and
49 Williams is 58 years of age and has a crippled right hip which has caused his right
leg to be 5 inches shorter than the left.
60 Findings herein are based upon the testimony of Williams, Trooper Lewis and Harry
Hardy, which is in substantial agreement.
"When the car came to rest, It was directly in the path of White's car and facing
diagonally across the road to the right ; the angle was, however, sufficient to permit the
car to pull away at a later time
62 Pennington was not a member of the Union and it is not clear whether he was au em-
ployee of the Company. He was, however, prominent in the strike activities and was
active on the picket line. The Union, as it did in the case of all pickets, paid for his meals
in a restaurant adjoining the main plant entrance
s' The Whites used this revolver for target shooting and customarily kept it in the car.
According to White, he never carried it on his person.
UNITED FURNITURE WORKERS OF AMERICA 919
wrested it away from White. While this was going on, Wincel Harmon, Ser-
fgeant at Arms of the Local who also had gotten out of the right side of the
Buick immediately after Pennington, grasped White's left hand, forced it through
the open window, and twisted it so as to bring extreme pain to White. After
Pennington got the gun away, Harmon struck White in the rear of his left
ear with a hard object causing bleeding and swelling. The gun, which ap-
parently was loaded, was not discharged at any time during the incident.
As Pennington and Harmon were devoting themselves to White, Frank Schmitz
and Clyde Knight, who had also gotten out of the car, were concentrating on
Mrs. White arid the child." As Schmitz opened the right door of the car, Knight
took the child from Mrs. White's lap and set her down on her feet by the side
of the road. Knight then reached in, took Mrs. White by the arm and pulled
her from the car, whereupon Schmitz jumped in the car through the right
doorway and seized White by the right arm. Mrs. White, who was attempting to
break loose, kicked Knight twice and broke loose as Knight shouted, according
to Mrs. White, "Hit her boys, let her have it."
It will be recalled that Schocke and Patton had disappeared some minutes
earlier to the rear of the White vehicle. At about this time there was a loud
shattering of glass and Shocke and Patton came to the front of the car." Mrs.
White, who was still free of Knight, shouted that she intended to call the police
and began to run in the direction of Zink's service station together with her
child. As she ran, she noticed part of the license plate number of the car.
At this point, the entire group of six apparently decided to leave and started
for their car. As Pennington and Schmitz got in the Buick sedan, White
stepped out of his car and asked Pennington to return his gun, whereupon
Pennington, according to White, "told me to get away from there and leave him
alone or he would shoot my damned head off." The car then left. Although
White saw all six run toward the Buick, he specifically noticed only Pennington
and Schmitz enter. However, after the car pulled away he saw no one in the
vicinity. The car passed about 4 feet from Mrs. White just as she got to Zink's
station and she noticed that both seats of the car appeared to be fully occupied.
There is no evidence whatsoever of any personal difficulties between the
Whites and any of this group of assailants and the only possible inference is
that his working during the strike after having signed a Union card, as lie did,
motivated the assault by the six pickets, including a Union official. In fact,
on September 19, White was near the main entrance of the plant when James
Hyde's car was overturned, as set forth above, and at that time Frank Schmitz
shouted to him, "Rowe, you come up. You'll be next." "
g. The John Land incident of October 21
As previously noted, quantities of nails appeared in and about the various
entrances of the plant on a number of occasions while the strike was on. On
October 21 at noon, and as a number of employees driving home in their cars
were about to pass through the river or bridge entrance, large quantities of
nails were discovered by the plant deputies in the roadway and on the steel
gutter plate. The number on the plate alone was estimated to be from 400 to
" Gail Shocke and Harold Patton were also in the group who had gotten out of the
Buick They had in the meantime disappeared to the rear of White's car.
65 White later discovered that his rear window had been broken by these men. Also,
the rear tires and tubes were slashed and the wiring pulled out of the tail lights
°8 Findings herein are based upon the credible testimony of both Mr . and Mrs. White,
which is uncontroverted.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
600. The deputies managed to pick up those in the driveway but in order to
speed up the task before the cars came through, they commenced brushing the
nails off the steel gutter plate toward the side of the road with their feet. There
were 12 to 15 pickets present at the time.`'
John Land, who was one of the deputies so engaged, then noticed that each
time lie kicked the nails to the side of the gutter plate and off the roadway,
President Burger of the Local, who had been at the entrance, was effectively
undoing his efforts by kicking the nails back to the center of the plate and in
the path of cars each time that Land kicked them." This happened several
times and finally Land requested Burger to move back off the gutter plate.
Burger swore at Land but did move back about 15 feet. His cursing was loud
enough to be heard 30 or 40 feet away by State Troopers Tevis and Blades who
witnessed the entire incident. Burger then threatened to whip Land if Land
would cross the road to where he was standing. Land did cross the road to
where Burger was standing, at which time Troopers Tevis and Blades came
up to the scene and arrested Burger."
h. The blowing up of the Payne car on October 22
Irvin Payne, who was one of the employees who reported for work on Septem-
ber 12, continued thereafter in the Company's employ. His wife is also em-
ployed at the plant, and was back to work at least by September 13. Early in
the morning of October 22, Payne, who lives on a farm outside of Salem with no
other habitation nearby, was awakened by an explosion outside his home. He
hastened outside and discovered that an explosive had been set off on the ground
beneath the front end of his car. The car was badly damaged and a window
pane of the house blown in 60 No one was in sight at the time and Payne noticed
only an automobile passing down the road in the distance.
Corollary to the above incident, the General Counsel also offers an earlier
incident involving Payne and his wife. They drove in via the Small Street en-
trance on September 13 and after being momentarily blocked by pickets then
proceeded north along the driveway which parallels the railroad tracks. Frank
Schmitz, who it will be recalled was one of the participants in the Rowe White
assault set forth above, ran along the railroad track beside the car, swore at and
cursed Payne, and then said, "I'll get even with you if it takes six months."
i. The Walter Brickey incident of December 17
Walter Brickey, who had previously worked for the Company, returned to its
employ in November 1947 during the strike. On December 17, at about 12: 45
p. in., he was returning to the plant after having gone to town for lunch. While
still some distance from the plant and proceeding along East Market Street, three
67 It will be recalled that this plate is 12 5 feet long and automobiles must pass across it
in order to leave the plant.
11 The record also indicates that Deputy Ivan Weston was brushing the nails off the
plate on the opposite side and that picket Bea Shocke was brushing them back in the
same fashion as Burger.
59 These findings are based upon the testimony of Land, Tevis , Blades, and Harry Hardy,
which is in substantial agreement. There were , however, several minor variations therein.
According to Blades, Burger , as he swore at Land, confronted him with his fist clenched.
According to Tevis, Burger did shove his hand out at Land . Hardy recalled that Burger
said to Land, "Don't you never lay hands on me again ," but also testified that Land did
not touch Burger
60 A picture of the damaged car was introduced in evidence.
UNITED FURNITURE WORKERS OF AMERICA 921
pickets including Robert Pennington, and Robert Foster, stepped in front of him.81
Brickey attempted to get away from the three men and Pennington struck him
with his fist on the right shoulder. Brickey got around Pennington and started
for the plant. Pennington, however, went after him and kicked him in the seat
of the pants, saying, according to Brickey, "Now don't let me hear another
damned word out of you down the hill." G2 Pennington had reviled Brickey on
several prior occasions as Brickey passed through the picket line, and Brickey had
replied in a similar vein. In fact, five days earlier on December 5, Pennington
invited Brickey out on the road if "he wanted anything."
j. The Marvin McKillip incident of December 17
McKillip entered the Company's employ on or about October 1, 1947, and had
received considerable ridicule from the pickets to which he had replied. On
December 17, McKillip and another employee, Mrs. Escoll Redus, were walking
home from work shortly after 5 p. in. They had proceeded about 13/2, blocks
from the main entrance when they observed three men ahead of them in their
path , one of whom was Loren Philpott, a regular picket. After they came
abreast of the trio, one of the men grabbed McKillip by the shoulder and struck
him in the jaw with a hard object ; another one of the three struck McKillip in
the eye. Mrs. Redus ran away as the men assaulted McKillip and the latter,
after being struck, also managed to break away. The three men chased McKillip,
with Philpott in the lead and shouting, "If I catch you, I'll cut your guts out."
McKillip , however, managed to get away.
About one week later, on Christmas eve, Herbert Hobson, who had entered
the Company's employ on October 15, met Philpott in a rural store. In the con-
versation, Philpott asked Hobson if he had observed what he had done to McKil-
lip "for working down there at the factory." He admitted having beaten him
up and warned Hobson "You better quit down there. Before long something
might happen to you."
1. The Land incident of January 12, 19483
On January 12, employee John Land drove a Company truck along East Market
Street after the regular quitting hour, with another employee, James (Milt)
Trinkle beside him in the cab. There were 10 or 12 employees in the body of
the truck whom Land was driving home from work. As the truck proceeded
west along East Market Street and passed the main entrance it slowed down
to cross the railroad tracks beside the main entrance. Just then a stone was
thrown from the direction of a group of approximately 15 pickets in the picket
line standing near the railroad track and the main entrance. The pickets in-
cluded Frank Schmitz, Harold Patton, Rex Boston, Alvie Curtis and Mike Sease.
The stone struck the cab,of the truck just to the rear of the side window.
in. Conelussons
On September 20, 1947, as set forth above, the picket line under the personal
direction of International Representative and Regional Director Fred Fulford
Si At the time Brickey was 75 to 100 yards west of the home of Company President
Chester Smith, which is itself about 100 yards west of the main entrance.
63 Obviously referring to the plant at the foot of the hill.
63 This took place while the instant hearing was in progress.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prevented the removal of a laden box car, thereby preventing employees of the
Company from continuing with other loading operations and coercing them to
engage in the concerted activities of the strikers.
The Dorothy Strange, Wylie Williams, and Albert Holt incidents are of a
similar pattern as each was threatened with injury or discrimination by an
official of one of the Respondents. Thus, on September 24, Strange was
threatened by International Representative Quimby with physical injury ;
Williams was warned by Vice-President Mays of the Local on September 24 to
stay away from the plant ; and Holt was threatened by Local Trustee Little on
October 1 with the loss of his job "when we get in with the Union."
The Congressional debates have spelled out conduct almost identical with
these three incidents as the type of conduct which was intended to be brought
within the purview of restraint and coercion. Senator Taft stated : " "An
employer cannot go to an employee * * * and threaten physical vio-
lence * * *. Now it is proposed that the union be bound in the same way."
And Senator Ball stated : °" "In * * * many organizational campaigns union
agents * * * threaten that when they get a majority * * * they will
take care of the recalcitrant employees * * *." It is found that by the
above threats Respondents have engaged in conduct which constitutes restraint
and coercion of the employees of the Company 88
The next three incidents, chronologically speaking, also fall within a pattern
as they were all committed by officials of the Local and International Thus,
on October 3, employee Homer Williams was assaulted by Fulford when he
attempted to drive into the plant grounds ; on October 13, Rowe White, his wife
and child, while on a peaceful drive were brazenly assaulted by Wincel Harmon,
Sergeant at Arms of the Local, together with five other pickets and strikers.
In view of the direct participation in these incidents by officials of the Re-
spondents despite the fact that the Rowe White incident took place away from
the picket line, this conduct of these officials and of their co-participants must
perforce be held attributable to the Respondents. By the very appointment of
these men to office the organizations have manifested an intent to be repre-
sented by these officials and are bound by their activities in the absence of any
evidence to the contrary. When duly selected officials and representatives of
labor organizations engage in conduct forbidden by the Act, the only inference
to be drawn is that they are acting within the scope, actual or apparent, of their
employment and that their co-participants have likewise been authorized to so
act. It is found that the above acts of physical violence committed upon em-
ployees constitute restraint and coercion which is attributable to the Respondents.
The remaining incident is that involving the activity of President Burger of
the Local who, with another picket, shoved and kicked nails in the path of the
cars of employees who were required to drive through the picket line at the
bridge entrance. It will be recalled that Deputy John Land pushed the nails
off the gutter plate, in order to permit passage of the cars, only to have Burger
repeatedly shove them back in the path of the cars until Burger was removed
from the scene by police. It is found that by the above conduct, Respondents
84 93 Cong Rec , 4142, April 25, 1947
86 93 Cong Rec., 4559, May 2, 1947.
^^ Although the deliberate damage to the automobile of Dorothy Strange on two different
occasions was suspicious , especially when considered with the similar damage inflicted upon
a number of automobiles belonging to other employees not participating in the strike, the
undersigned does not rely thereon in arriving at the above conclusions.
UNITED FURNITURE WORKERS OF AMERICA 923
have restrained and coerced employees of the Company in the right to refrain
from engaging in concerted activities.`
Walter Brickey was assaulted while on his way to work by several pickets
including Robert Pennington, on December 17, 1947. This took place some
distance from the plant"end it is clear that these pickets were not in a picket
line at the time. The question then arises whether this conduct, which is clearly
of a coercive nature, is attributable to the Respondents. It will be recalled that
in the assault upon Rowe White some weeks earlier on October 13, the participants
were Wincel Harmon, Sergeant at Arms of the Local and a member of the
Executive Board, together with five other pickets including Pennington. Pen-
nington's participation in the prior incident in conjunction with and under the
apparent sanction of an official of the Local, in the undersigned's opinion, gives
rise to the conclusion that in this incident, which as in the other case involved
violence away from the picket line, Pennington was acting as an agent of the
Local. That is not to say that as a general proposition a picket is an agent of
a union when away from the picket line' It is a matter of proof. But in the
instant case, the very employment of Pennington in conjunction with a Local
official in the commission of a prior assault of a similar nature upon employees
of the Company, would, on this record, lend itself to no other plausible explana-
tion. The employment of Pennington in the previous Rowe White assault and
Pennington's subsequent commission of a similar assault upon this non-striker
is indicative to the undersigned that Pennington was authorized either explicitly
or implicitly to engage in similar conduct against other non-strikers, was en-
couraged therein by an official of the Local, and his conduct is therefore held
attributable to the Respondents. It is found that by the above assault upon
Brickey, Respondents have engaged in restraint and coercion.'
The undersigned finds that by the incidents set forth above, Respondents have
restrained and coerced employees of the Company in the exercise of the rights
guaranteed by Section 7 of the Act, thereby engaging in conduct violative of
Section 8 (b) (1) of the Act.69
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in Section III, above, occurring
in connection with the operations of the Company, described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Respondents contend, in effect, that no remedy should issue against them as
a result of this proceeding because the subject matter is moot. It is argued,
87 The undersigned does not find that Respondents or their agents placed the nails there,
although no one connected with management did, and Burger's conduct gives rise to some
suspicion as to the source of the nails The determinative factor here is, in the opinion
of the undersigned, the fact that President Burger utilized the nails and kicked them in
defiance of Company efforts to remove them from the path of vehicles, thereby perforce
coercing the employees who sought egress from the plant.
"" See Restatement of Agency, Sections 26 and 213.
" In arriving at the above conclusions, and in view of the nature of the findings made,
the undersigned has not relied upon three incidents, namely, the damaging of the Irvin
Payne automobile on October 22, the assault of McKillip on December 17, and the throwing
of a rock at a truck driven by John Land on January 12, 1948.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support thereof, that all picketing has been "peaceful" since September 12.
In the undersigned's opinion, this contention lacks merit, firstly, because it has
been found that subsequent related strike activities on the part of the Respond-
ents have been violative of the Act, and secondly, assuming that no conduct viola-
tive of the Act took place since the picketing became "peaceful" on September 12,
this begs the question. The criterion here is, just as in the case of employer
unfair labor practices, whether the effect of certain illegal conduct can be dis-
sipated by anything less than an appropriate order by the Board in the perform-
ance of the public purposes of the statute. In the undersigned's opinion,, such
an order is herein required.
It has been found that the Respondents have engaged in unfair labor practices
within the meaning of Section 8 (b) (1) of the Act. Although the violence in
and about the picket lines established by Respondents at the plant entrances,
as well as violence removed from the picket line, may have temporarily abated,
there is a possibility, if not a probability, that similar acts may be repeated
in the future by the Respondents.7° If will therefore be recommended that the
Respondents, their agents and officers cease and desist from restraining and
coercing employees of the Company in the exercise of the rights guaranteed by
Section 7 of the Act, and that they also take certain affirmative action designed
to effectuate the policies of the Act.
Upon the above findings of fact, and upon the entire record in the case, the
undersigned makes the following :
CONCLUSIONS OF LAW
1. Smith Cabinet Manufacturing Company, Inc., an Indiana corporation, is
engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. United Furniture Workers of America, Local 309, CIO, and United Fur-
niture Workers of America, CIO, are labor organizations within the meaning
of Section 2 (5) of the Act.
3. By the carrying of sticks or clubs by pickets, the threatening of employees,
the blocking of the plant entrances by railroad ties, automobiles and raised gutter
plates, the piling of bricks for use by pickets, and the assaults upon employees
of the Company, United Furniture Workers of America, Local 309, CIO, and
United Furniture Workers of America, CIO, and their agents and officers, have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (b) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that United Furniture Workers of America, Local
309, CIO, and United Furniture Workers of America, CIO, their officers and
agents, shall :
1. Cease and desist from :
(a) Restraining and coercing employees of the Smith Company in the exer-
cise of the rights guaranteed in Section 7 of the Act, to refrain from self-organi-
zation, to refrain from joining and assisting United Furniture Workers of
America, Local 309, CIO, or United Furniture Workers of America, and in the
R° It should be noted herein that the membership of Local 309 is apparently confined to
employees of the Smith Company only.
UNITED FURNITURE WORKERS OF AMERICA 925
right to refrain from engaging in concerted activities for the purposes of collec-
tive bargaining.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Post in a conspicuous place at the business office of Local 309 in the
city of Salem , Indiana, where notices or communications to members are cus-
tomarily posted, a copy of the notice attached hereto as an appendix , and furnish
copies thereof to each member of Local 309 either by mailing or by hand.
Copies of the notice , to be furnished by the Regional Director for the Ninth
Region, shall , after being signed by representatives of Local 309 and United
Furniture Workers of America, CIO , be immediately handed or mailed to the
members of Local 309 , as aforesaid , and be posted and maintained for a period
of sixty ( 60) days thereafter . Reasonable steps shall be taken by the Respond-
ents to insure that the posted notice shall not be altered, defaced, or covered
by any other material;
(b) Mail to the Regional Director of the Ninth Region signed copies of the
notice attached hereto as an appendix for posting , the Company willing, on the
bulletin board of the Smith Cabinet Manufacturing Company, where notices to
employees are customarily posted, where such notice shall be posted and main-
tained for a period of sixty ( 60) days thereafter . Copies of the notice, to be
furnished by the Regional Director for the Ninth Region, shall , after being
signed by representatives of Local 309 and of United Furniture Workers of
America, CIO , be forthwith returned to the Regional Director for said posting;
(c) Notify the Regional Director for the Ninth Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the Respond-
ents have taken to comply herewith.
It is further recommended that, unless the Respondents shall within ten
(10) days from the receipt of this Intermediate Report notify said Regional
Director in writing that they will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the Respondents
to take the action aforesaid.
As provided in Section 203 46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party may within
twenty ( 20) days from the date of service of the order transferring the case
to the Board , pursuant to Section 203.45 of said Rules and Regulations , file with
the Board , Rochambeau Building, Washington 25, D. C., an original and six
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding ( including rulings upon
all motions or objections ) as he relies upon, together with the original and six
copies of a brief in support thereof ; and any party may, within the same period,
file an original and six copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said Sec-
tion 203.46, should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days from
the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the afore-
said Rules and Regulations , the findings , conclusions , recommendations and
recommended order herein contained shall, as provided in Section 203.48 of said
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions and order, and all objections and exceptions thereto shall be deemed
waived for all purposes.
MARTIN S. BENNETT,
Trial Examiner.
Dated April 23, 1948.
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED FURNITURE WORKERS OF AMERICA, LOCAL 309,
CIO, AND TO ALL EMPLOYEES OF THE SMITH CABINET MANUFACTURING COMPANY,
INC.
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act of 1947, we hereby notify our members and employees of the
SMITH CABINET MANUFACTURING COMPANY, INC., that:
WE WILL NOT restrain and coerce employees of the SMITH CABINET MANU-
FACTURING COMPANY, INC., in the right to refrain from self-organization, to
refrain from joining and assisting United Furniture Workers of America,
Local 309, CIO, or United Furniture Workers of America, CIO, and in the
right to refrain from engaging in concerted activities for the purposes of
collective bargaining.
UNITED FURNITURE WORKERS OF AMERICA, LOCAL 309, CIO,
Labor Organization.
By -----------------------------------------------------------
(Agent or Representative ) (Title)
UNITED FURNITURE WORKERS OF AMERICA, CIO,
Labor Organization.
By -----------------------------------------------------------
(Agent or Representative ) (Title)
Dated: --------------------
This notice must remain posted for sixty (60) days from the date hereof,
and must not be altered, defaced, or covered by any other material.