United Steelworkers of America, AFL-CIO, Etc.

National Labor Relations Board - Board Decisions

May 10, 1962

137 N.L.R.B. 95 (N.L.R.B. 1962)

UNITED STEELWORKERS OF AMERICA, AFL-CIO, ETC. 95
or other rights and privileges , to all -those employees who were on strike on
and after May 12 , 11961, and who have not already been reinstated to their
former or substantially equivalent positions , without prejudice to their seniority
or other rights and privileges , dismissing , if necessary , any persons hired by us
on or after May 12, 1961 , who were not in our employ on that date.
WE WILL NOT solicit any strikers or pickets to abandon the strike , offer them
inducements to do so, or threaten them with reprisals if they fail to do so.
WE WILL NOT engage in any like or related acts or conduct interfering with,
restraining , or coercing our employees in the exercise of their rights to self-
organization , to form labor organizations , to join or assist Amalgamated
Association of Street , Electric Railway and Motor Coach Employees of America,
AFL-CIO, Division 1174, or any other labor organization , to bargain collec-
tively through representatives of their own choosing , and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or .to refrain from any and all
such activities.
All our employees are free to become or remain , or to refrain from becoming,
or. remaining , members of the above-named Union, or any other labor organization.
WILLIAM S. SHURETT , D/B/A GREYHOUND TERMINAL,
Employer.
Dated------------------- By-------------------------------------------
(WILLIAJI S. .SHURETT)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other -material.
Employees may communicate directly with the Board 's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana , Telephone
Number, 529-2411, if they have any questions concerning this notice or compliance
with its provisions.
United Steelworkers of America , AFL-CIO,' and Local No. 2772,
United Steelworkers of America , AFL-CIO 2 and Vulcan-
Cincinnati , Inc.' Case No. 9-CB-928. May 10, 1962
DECISION AND ORDER
On March 28, 1961, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, recommending
that the complaint be dismissed in its entirety, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the General Counsel and
Vulcan filed exceptions to the Intermediate Report and supporting
briefs, and Respondents filed a brief in support of the Intermediate
Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
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 exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner 's findings , conclusions,
and recommendations to the extent consistent herewith.
' Hereinafter referred to as Respondent International.
s Hereinafter referred to as Respondent Local.
Hereinafter referred to as Vulcan.
137 NLRB No. 9.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The General Counsel alleged in his complaint that during the
course of a strike, the Respondents engaged in certain conduct which
violated Section 8(b) (1) (A) of the Act. The Trial Examiner found
that certain of the conduct relied upon by the General Counsel did
in fact occur, and that certain conduct constituted restraint and
coercion in violation of Section 8(b) (1) (A). The Trial Examiner
nevertheless concluded that it would not effectuate the policies of the
Act to issue an order against the Respondents, and recommended that
the complaint be dismissed in its entirety, for the reason that --every
possible wrong here had been effectively remedied long before the fil-
ing of any charges in this matter . . . and . . . the present attempt to
use the Board's processes for a further rehash of these same events at
least verges on the vexatious . . . ." The "remedies" to which the
Trial Examiner referred were a State court injunction and a State
court criminal action.
We do not agree with the Trial Examiner that the existence of
other possible remedies, or the fact that the same events may be
litigated in more than one forum, warrants dismissal of the complaint.
Under Section 10 (a) of the Act, the Board's power to prevent unfair
labor practices "shall not be affected by any other means of adjust-
ment or prevention that has been or may be established by agreement,
law, or otherwise." The Board has long held that it is not bound by
State court decisions,4 and it has further held that dismissal of a com-
plaint is not warranted by the pendency of other litigation involving
the same issues.5 These Board decisions, in our opinion, are applicable
and controlling here. Accordingly, we shall consider whether the
record supports the allegations of the complaint, and shall issue an
order appropriate to remedy any violations found.
2. In agreement with the Trial Examiner, we find that the record-
ing by pickets of the license numbers of automobiles approaching the
plant, accompanied by threats that the pickets would locate the drivers
of such automobiles and "get" them, constituted restraint and coercion
in violation of Section 8(b) (1) (A). Although not reflected in the
Intermediate Report, the record establishes that Rosen, the president
of Respondent Local, participated in this conduct.
3. The Trial Examiner found that pickets, in effect, threatened to
push a prospective employee's automobile into a ditch, when the em-
ployee indicated rejection of the pickets' request not to cross the
picket line, and stated that this individual otherwise drove through
without incident. The Trial Examiner concluded that this threat
could be dismissed as isolated. He also found that when Smith first
4 E g , H. N Thayer Company, 99 NLRB 1122 , 1128-1130 ; Combustion Engineering
Company, Inc, and Conibnstion Engineering-Superheater, Inc, 86 NLRB 1264, 1266-
1267, The Grace Company, 84 NLRB 435, 436
G Local Union 1418, Genes at Longshore Workers, International Longshoremen 's Asso-
ciation , AFL (Lykes Brothers Steamship Co, Inc ), 102 NLRB 720, 722
UNITED STEELWORKERS OF AMERICA, AFL-CIO, ETC. 97
drove in to report for work, a picket placed his hand on Smith's arm
and suggested "jerking" him out of the automobile. The Trial Ex-
aminer concluded that even if this latter conduct amounted to an
assault, it did not warrant a Board order. Although the Trial Ex-
aminer did not identify the driver of the automobile which the pickets
threatened to push into a ditch, the record establishes that it was
Smith; the record also establishes , contrary to the Trial Examiner,
that all of the foregoing conduct affecting Smith was in fact part of
a single incident. In addition, the record establishes that Local Griev-
ance Committeeman Grimes was present when this conduct occurred,
and that he did not repudiate it. Under all the circumstances, we do
not adopt the Trial Examiner's characterization of this conduct, and
we find that such conduct constituted restraint and coercion in viola-
tion of Section 8(b) (1) (A).
4. Although we agree in general with the Trial Examiner that the
language used on the picket line did not violate Section 8(b) (1) (A),
we disagree as to certain statements, in addition to the foregoing.
Thus, the record establishes that Morris, vice president of Respondent
Local, told employee Meyer, as the latter was leaving the plant, that
if he came back again he had better bring a gun with him. As, in our
opinion, the only reasonable construction of this statement was that
Meyer would need a gun for purposes of self-defense, we find that
Morris' statement was tantamount to a threat of bodily harm in viola-
tion of Section 8(b) (1) (A). The record also establishes that during
the course of the picketing, International Representative Childers
publicly urged the pickets not to let nonstrikers through the picket
line. Such public exhortation not to "let" nonstrikers through the
picket line is, in our opinion, a threat directed at the nonstrikers
that if necessary force would be used to accomplish that objective,
and thus a violation of Section 8 (b) (1) (A).
5. Contrary to the Trial Examiner, we find that Local President
Rosen warned Foreman Perry Kelly that his brother, Martin, was
"liable to lose his life" if he persisted in working at the plant. The
Trial Examiner refused to credit Perry Kelly's uncontradicted testi-
mony regarding Rosen's threat because he considered it improbable
that Rosen would utter such a threat in a public place. There is,
however, no evidence that anyone else was within earshot when the
threat was made; moreover, as found above, Rosen was among those
who threatened to "get" the drivers of automobiles approaching the
plant. Under all the circumstances, we find no merit in the Trial
Examiner's reason for refusing to credit Perry Kelly's uncontradicted
testimony.6 As this testimony is uncontradicted, and as it is consist-
' As the Trial Examiner ' s credibility resolution was not predicated on demeanor, it is
not entitled to the weight normally accorded such resolutions See William L Davis,
Joseph Valence and Marco Valenci, d/b/a V & D Machine Embroidery Co , 134 NLRB
879 ; Mayrath Company , 132 NLRB 1628
649856-63-vol 137-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent with Rosen's conduct under other circumstances, we credit it. As
Martin Kelly was in the room at the time the threat was uttered, it is
reasonable to infer, and we find, that the threat was intended to be
and was communicated to Martin by his brother.' Such a threat, we
find, constituted restraint and coercion in violation of Section
8(b) (1) (A).
6. As indicated, all of the conduct set forth above was either
engaged in by agents of the Respondent Local or Respondent Inter-
national, or occurred in the presence of such agents and was not repudi-
ated by them. Each Respondent is thus responsible for such conduct.'
In addition, the record establishes that both Respondent International,
the certified representative of Vulcan's employees, and Respondent
Local authorized and sanctioned the strike; that representatives of
both participated therein and engaged in unlawful conduct; and that
the strike resulted from the inability of both Respondents to reach
agreement with Vulcan on a new contract. Under all the circum-
stances, we find that both Respondents conducted the strike as a joint
venture, and that both are jointly responsible for the conduct of the
agents of either.'
7. In agreement with the Trial Examiner, we shall dismiss the
remaining allegations of the complaint.10 As found by the Trial
Examiner, the record fails to establish that the alleged mass picketing
blocked either ingress or egress; in these circumstances, the mere
presence of a number of pickets in front of the gate does not of itself
violate the Act.l1 As there is no showing that the conduct of picket
Schwemberger or the alleged assault on and threat to employee
Meyer were authorized or ratified by Respondents or occurred in the
presence of any of Respondents' responsible officials, and there is no
other sufficient basis in the record for imputing liability to Respond-
ents for such conduct, we find that Respondents did not violate the
Act with respect thereto.
THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in
connection with the operations of Vulcan as set forth in section I
of the Intermediate Report, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
i Cf. Tex-Tan, Inc. , 134 NLRB 253.
8Loeal 5881 , United Mine Workers of America ( Grundy Mining Company), 130
NLRB 1181.
9Industrial Union of Marine and Shipbuilding Workers of America, AFL -CIO and its
Locals Nos . 5 and 90 ( Bethlehem Steel Company ), 130 NLRB 412, 425-427.
19 For the reasons set forth in his separate opinion, Member Leedom does not agree that
the remaining allegations of the complaint should be dismissed
11 See H N . Thayer Company, 99 NLRB 1122, 1130-1131, where 100 men circled in front
of the entrances to the plants , but permitted egress and ingress , and this was held to be
lawful picketing
UNITED STEELWORKERS OF AMERICA, AFL-CIO, ETC. 99
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order that they cease and desist therefrom and
take certain affirmative action that we find necessary to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Vulcan-Cincinnati, Inc., is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Respondents are labor organizations within the meaning of
Section 2 (5) of the Act.
3. By restraining and coercing employees of, and applicants for
employment by, Vulcan-Cincinnati, Inc., in the exercise of rights
guaranteed by Section 7 of the Act, the Respondents have violated
Section 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
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 the Respondents, United Steel-
workers of America, AFL-CIO, and Local No. 2772, their officers,
agents, representatives, successors, and assigns, shall :
1. Cease and desist from threatening employees of, and applicants
for employment by, Vulcan-Cincinnati, Inc., with bodily harm and
property damage, or in any like or related manner restraining or
coercing them in the exercise of the rights guaranteed 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 the Respondents' business offices and meeting halls,
copies of the notice attached hereto marked "Appendix." 11 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
Respondents, be posted by the Respondents immediately upon receipt
thereof, and be maintained by them for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to members
12 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Mail to the Regional Director for the Ninth Region signed
copies of the aforementioned notice for posting by Vulcan-Cincinnati,
Inc., if it be willing, in places where notices to employees are cus-
tomarily posted. Copies of said notice, to be furnished by the Re-
gional Director for the Ninth Region, shall, after being signed by the
Respondents, as indicated, be forthwith returned to the Regional
Director for disposition by him.
(c) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
MEMBER LEEDOM, concurring in part and dissenting in part:
I agree with my colleages, except that I would also find that Re-
spondents engaged in mass picketing, in violation of the Act, and that
they were responsible for the conduct of picket Schwemberger.13 As
the Trial Examiner found in substance, with respect to the mass
picketing, the pickets sought to deter employees and prospective em-
ployees from entering the plant, not by means of appeals to reason,
loyalty, solidarity, or other similar considerations, but by means of
their physical presence in superior numbers. Moreover, as we have
found, this picketing was accompanied by threats of bodily harm and
property damage, including the public exhortation by International
Representative Childers not to let nonstrikers through the picket line.
Thus, although this picketing did not prevent ingress or egress, that
fact, in my opinion, is not controlling. Although picketing which
physically prevents ingress or egress clearly violates the Act, it does
not follow therefrom that picketing which does not physically prevent
ingress or egress does not violate the Act. The question in each case,
whether the picketing be called "mass picketing" or by some other
name, is whether the manner in which the picketing was conducted
was intended to or necessarily tended to restrain or coerce.14 As the
manner of picketing here was such as to impede entrance into the
plant and was accompanied by threats, I find that it was so intended,
and necessarily had that effect." With respect to the picketing in
H. N. Thayer Company, 99 NLRB 1122, 1130-1131, relied on by my
colleagues, the Board there found "that the pickets had been spe-
cifically instructed by their strike leaders to permit nonstrikers to^
enter and leave the plant, and there is no evidence that any employee
was refused prompt entry." That case is therefore clearly distinguish-
-s As any finding with respect to the assault on Meyer would in my view be cumulative,
I need not consider the question of Respondents ' liability therefor
14 See , e.g., Sunset Lsne and Tw tne Company, 79 NLRB 1487, 1505
15Id at 1506.
UNITED STEELWORKERS OF AMERICA, AFL-CIO, ETC. 101
able from this case, and accordingly, is not authority for my col-
leagues' conclusion that this picketing did not violate the Act.
I would also find that Respondents were responsible for the conduct
of picket Schwemberger, in throwing objects at the cars of Cartwright
and McGaw, and that they hereby further violated Section
8(b) (1) (A). The Trial Examiner found, and I agree, that Schwem-
berger threw a metal bolt into Cartwright's car. Unlike the Trial
Examiner, I would further find that Schwemberger threw the object
which hit and cracked the windshield of McGaw's car. As reflected
in the Intermediate Report, only minutes before Schwemberger threw
the metal bolt into Cartwright's car, as McGaw's car was approaching
gate 4, Schwemberger was seen to reach over, as if picking something
up, and to make a motion as if throwing something; "as or after"
McGaw's car passed gate 4, an object hit and cracked its windshield.
In view of the very short lapse of time between the moment when
Schwemberger was seen to make a throwing motion and the moment
when the object hit the windshield, and the fact that only minutes
thereafter Schwemberger engaged in substantially identical conduct,
I think that the only reasonable inference to be drawn from the facts
is that Schwemberger threw the object which hit and cracked the
windshield of McGaw's car.
Although Respondents' pickets had been cautioned not to engage in
violence, and Schwemberger's conduct did not occur in the presence
of any responsible official, these facts cannot, in my opinion, exculpate
Respondents here. Schwemberger was duly designated by Respond-
ents to act as one of the two pickets permitted at this gate under the
State court injunction, and the above-described conduct occurred while
he was so acting. In addition, as we have found, Respondents' officials
had themselves previously engaged in conduct which violated Section
8(b) (1) (A). Under these particular circumstances, I believe Re-
spondents must be deemed responsible for the conduct of those to
whom they choose to entrust such picketing duties, whether or not
those pickets would under other circumstances be deemed their re-
sponsible agents.
I would therefore find that by virtue of the foregoing conduct, the
Respondents further violated Section 8(b) (1) (A), and, in addition
to the Order entered by my colleagues, would enter an order appro-
priate to remedy such further violations.
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS, AND AGENTS AND TO ALL
EMPLOYEES OF VULCAN-CINCINNATI, 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:
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten to inflict bodily harm or property dam-
age on employees or applicants for employment at the plant of
Vulcan-Cincinnati, Inc., at Woodlawn, Ohio, in order to prevent
them from crossing our picket lines.
WE WILL NOT in any like or related manner restrain or coerce
employees of Vulcan-Cincinnati, Inc., or applicants for employ-
ment, in the exercise of the rights guaranteed by Section 7 of the
Act, as amended, including the right to refrain from any and all
concerted activities.
UNITED STEELWORKERS Or AMERICA,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
LOCAL No. 2772, UNITED STEELWORKERS
or AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Transit Building, Fourth and Vine Streets, Cincinnati 2, Ohio,
Telephone Number, Dunbar 1-1420, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed respectively on September 20
and 26, 1960, by Vulcan-Cincinnati, Inc., hereinafter referred to as Vulcan or the
Company, through its attorney, J. Mack Swigert, the General Counsel of the
National Labor Relations Board, hereinafter called the General Counsel 1 and the
Board, respectively, by the Regional Director for the Ninth Region (Cincinnati,
Ohio), issued his complaint dated November 9, 1960, against United Steelworkers
of America, AFL-CIO, and Local No 2772, United Steelworkers of America, AFL-
CIO, hereinafter respectively called the Respondents. The complaint alleges that
the Respondents , and each of them , 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, 1947, as amended,
herein called the Act. Copies of the charges, the complaint, and notice of hearing
thereon were duly served upon the Respondents and Vulcan.
Respondents duly filed their answers admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing thereon was held at Cincinnati, Ohio, from January 4
through 6, 1961, before the duly designated Trial Examiner. All parties appeared
at the hearing, were represented by counsel, and were afforded full opportunity to be
heard , to produce , examine, and cross-examine witnesses , to introduce evidence
material and pertinent to the issues, and were advised of their rights to argue orally
upon the record and to file briefs and proposed findings and conclusions or both.
1 This term specifically includes the counsel appearing for the General Counsel at the
hearing
UNITED STEELWORKERS OF AMERICA, AFL-CIO, ETC. 103
Oral argument was waived. Briefs were received from Respondents and Vulcan
on February 20, 1961.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF VULCAN
Vulcan-Cincinnati , Inc., an Ohio corporation with its principal office at 120
Sycamore Street, Cincinnati , Ohio, and its factory at Glendale Road, Woodlawn,
Hamilton County , Ohio, is engaged at all times material herein in the business of
designing and fabricating pressure vessels and chemical process equipment for sale
to customers in all parts of the United States. During the past 12-month period,
which period is representative of all times material hereto, the Company sold and
shipped from its Woodlawn , Ohio, plant to points outside of said State , products
of a value in excess of $50,000.
The Trial Examiner finds that the Company is engaged in commerce and in opera-
tions affecting commerce.
II. THE RESPONDENTS
United Steelworkers of America, AFL-CIO, and Local No. 2772, United Steel-
workers of America, AFL-CIO, are labor organizations admitting to membership
employees of Vulcan.
III. THE UNFAIR LABOR PRACTICES
A. The facts
This is another in that rapidly growing list of cases where a strike following the
collapse of negotiations at the bargaining table between the certified bargaining
agent of the employees and the employer is being made the instrument, with an
assist from the Board's processes, by which all union employees and union repre-
sentation are eliminated from the plant involved. This is all accomplished with
exacting legalism through a deluge of legal encounters in an assortment of courts
and before the Board. The present hearing is but one in the series of such legal
maneuvers here. To date this list includes in this matter at least: a State court suit
for injunction, a Section 10(1) suit for a temporary restraining order, actions alleging
large sums of money as damages filed by both the Company and the Unions, plus
various and sundry police court actions in addition to the instant matter, all of which
legal actions cover the same identical basic facts and result from a basic breakdown
or failure of collective bargaining-a failure which, due to the charges filed, is not
even an issue here. It is, therefore, no exaggeration to say that this matter has
become a "gold mine" of legal experience, at least for the lawyers involved Like-
wise it is no exaggeration to say that the instant matter deals exclusively with sub-
sidiary matters of small consequence while the basic problem, i.e., the failure of
collective bargaining, remains untouched.
The issues and the facts at issue are simple and , for the most part, clear, but, like
the rest of the multitudinous litigation mentioned above, concerns itself exclusively
with matters far from the core of the problem.
The present case deals with alleged violations of Section 8(b)(1)(A) by Local
2772 and/or United Steelworkers of America for actions of pickets at the strike-
bound Vulcan-Cincinnati plant in July 1960. The complaint alleges four specific
activities of the pickets which are said to have "restrained and coerced employees
of the employer." Each of these will be discussed separately hereinafter.
The facts leading up to the issues involved here follow.
On July 11, 1958, United Steelworkers of America, the certified bargaining agent
of Vulcan's 90 production and maintenance employees, and Vulcan entered into a
2-year collective-bargaining agreement. Pursuant to a reopener clause in said con-
tract this master agreement was supplemented on June 11, 1959, by an agreement pro-
viding for an 8-cent per hour wage increase for the remainder of the 1-year term of
the master contract.
Apparently prior to the expiration of this master contract on June 10, 1960, the
parties made some efforts at bargaining for a new contract which proved ineffectual
for reasons not at issue under the complaint here and, therefore, not disclosed in this
record. During these negotiations Business Representative Harvey Boland of
United Steelworkers of America warned that the employees would go out on strike
unless an agreement was reached prior to the expiration of the contract. Vice Presi-
dent Romell, of Vulcan, recognized this eventually both from Boland's words and
from the well-known principle of "no contract, no work " The contract expired.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The strike began All 90 production and maintenance employees of Vulcan went
out on strike. The parties stipulated that this was an economic strike
The first month of the strike was peaceful and quiet with only some 8 or 10 pickets
parading with signs reading, "On Strike United Steelworkers of America " before
the 4 gate-roadways leading to various parts of the Vulcan plant from Glendale Road.
These pickets were all striking employee-members of Local 2772 assisted on innumer-
able occasions by United Steelvn orkers Business Representatives Boland , "Dorsie"
Childers, and others.2 Glendale Road is, in the words of the Vulcan brief, a quiet
"side road or a country type road approximately 20-24 feet wide" used almost ex-
clusively for access to the Vulcan plant and to that of the White Baking Company
and, therefore , a little traveled road.
Then on the afternoon of July 10,3 there appeared in the Cincinnati newspapers, as
well as in a number of surrounding out-of -State newspapers , help-wanted ads re-
questing applicants for employment to apply for work at the Vulcan plant on Glen-
dale Road.
The evidence leaves no doubt but that the publication of Vulcan's help-wanted
ads acted as a declaration of war with the result that each side in this contest girded
its loins and beefed up its strength for the coming economic struggle.
Beginning the following day, July 11, the quiet character of Glendale Road by the
Vulcan plant changed considerably . The number of pickets and strikers around
the Vulcan plant on Glendale road increased 3- or 4-fold from the previous 8 or 10.
At least Boland and Childers of the Steelworkers business representatives were pres-
ent. Traffic on Glendale Road was further augmented by numerous automobiles
bearing Ohio and out-of -State license plates bearing persons apparently answering
the Vulcan help-wanted ads or mere spectators out to see the fun in prospect.
In addition, on that day Vulcan's attorney or attorneys appeared at the plant
together with a number of photographers , both professional and amateur, with
cameras, both movie and still. Furthermore , the numerous pictures taken by these
Vulcan photographers show that the crowds along Glendale Roard were further
augmented by various supervisors and salesmen assigned by Vulcan to stations at
or near the various gate -roadways to the plant whose duties seem to have been to
counter the arguments of pickets made to work applicants and others to respect the
picket line and to induce those third persons to cross the picket lines and apply for
work. Then, of course , there were the plainclothes guards from the Cal Crimm
Detective Bureau, a well -known Cincinnati establishment , and on occasion, there
would appear a policeman from each of the Woodlawn , Glendale , and Evandale
police forces to direct traffic.
Obviously each side prepared itself fully for the coming economic battle as each
had the legal right to do under the rules of the game as they now exist
The only question at issue in this proceeding , however, is whether Local No. 2772
and/or the Steelworkers violated the further rules of the game which in Section
8(b)(1)(A) makes it an unfair labor practice for a union or its agents "to restrain
or coerce employees in the exercise of the rights guaranteed in Section 7" of the Act.
It is now juridically determined that a union has a right to engage in picketing the
primary employer at least at the situs of the primary dispute , to publicize the facts
of that primary dispute and to persuade third persons to assist in that dispute with
the primary employer so long as that persuasion does not cross over that fine line of
distinction between "persuasion" and "restraint and coercion."
The General Counsel complains first that the Respondents engaged in:
1. Mass picketing
The complaint charges that the Respondents , and each of them, violated Section
8(b)(1)(A) by "massing pickets at Employer's said plant from July 11 through July 15,
1960. who engaged in and incited others to engage in cursing , shouting , pushing,
blocking the ingress and egress of , and assaulting employees , job applicants and others
who were attempting to enter and or leave the Employer's said premises."
The evidence , both the movies and still pictures taken by the Vulcan photog-
raphers ,4 show that on occasion as many as six or seven pickets lined up 3 or 4 feet
z In his testimony Boland insisted on the incongruous distinction that he was never
"on the picket line" although admitting that lie was often "around the picket line" talk-
ing to and assisting the pickets Boland even pleaded inability to recognize easily recog-
nizable pictures of himself standing in groups of pickets The Trial Examiner was not
impressed with Boland's testimonial trustworthiness in this case
a All dates are in the year 1960 unless othei wise noted herein
4 Many of the still photographs depict either identically the same scenes as the movies
or else such similar scenes as to be indistinguishable In fact, the Trial Examiner is in-
clined to believe that many of the still pictures were made from the movies
UNITED STEELWORKERS OF AMERICA, AFL-CIO, ETC. 105
apart across the whole entrance of the gate -roadway into Glendale Road. These
pickets with a number of other persons , including some of the Vulcan officials and
photographers , gathered in the immediate vicinity so that several of the pictures
show as many as 18 or 20 persons on or alongside the road These pictures, both
still and movie , quite conclusively show Vice President Romell's testimony of having
seen pickets "solidly shoulder to shoulder" across the gate-roadway to have been
rather grossly exaggerated.5
Although neither in the number of pickets or in their activity could the picket
line in the instant matter qualify as "mass picketing which blocked ingress or egress,"
it is still true that the presence of the pickets across the gate-roadway combined
with their obvious reluctance or hesitation to remove themselves from the path of
oncoming automobiles did tend to slow down, hinder, and hamper traffic turning
into one of Vulcan 's gate-roadways on occasion . However, due to the fact that
none of these ever-vigilant photographers was ever able to picture such an instance,
the evidence indicates that not one such vehicle was physically prevented from
entering or leaving said roadways , albeit many of them were considerably retarded
in making such maneuvers . The movies prove that , despite a temporary annoyance,
it was always possible for a vehicle to enter or leave the Vulcan plant.
In fact there is in this record only one instance , shown both in the movies and
in still pictures and much commented upon by company officials, where a picket
was so slow in removing himself from the path of an oncoming vehicle that he had
to place his hand on the fender of the car and jump in order to avoid being hit.
However, the evidence is clear that the manner in which the pickets were stationed
across the roadways , combined with their slowness of movement , hindered and
slowed traffic to and from the Vulcan plant but did not stop ingress or egress
It is true that numerous automobiles came up to the picket line and stopped, the
drivers talked to the pickets and thereafter decided not to enter the gate-roadways,
and so drove off on Glendale Road without entering the plant. Except in two
possible instances , there is no showing that the intention of such drivers was changed
by anything except legitimate persuasion by the pickets . One witness , who was
employed by Vulcan at this time, testified that, when he indicated his rejection of
the pickets ' arguments , he was asked if he would like to have his car pushed into
the ditch . 6 Otherwise he drove through without incident and secured employment.
A second such witness decided not to drive his new car through the picket line but,
instead, to park his car some distance away and walk to the plant through the
fields. Otherwise the evidence indicates that the pickets used nothing except legal
requests to respect their picket line and legitimate arguments to the same effect.
The Trial Examiner believes that the threat of damage to the automobile above
mentioned can be dismissed here as an " isolated incident."
However, Romell testified to the use by pickets and strikers of some rather color-
ful language , profanity , and name calling , all of which has been reproduced in Vul-
can's brief where it is interesting to note that the writer felt impelled to omit the
spelling of only three words. None of this language was either new or novel. Ad-
mittedly it is not the language of diplomacy or of the drawing room . But, un-
fortunately , the language of the factory seldom is and, more realistically, may
never become such . Even the language referred to by Romell is certainly no worse
than that appearing in cases where the Board , without condoning its use, has held
that the use of such language did not violate Section 8(b)(1) (A). Being bound
by such decisions , the Trial Examir must dismiss the allegations in regard to the
language used as not being violative of Section 8(b) (1) (A).
On the other band, however, Romell testified , and in this respect other evidence
in the record appeared to corroborate his testimony , that some of the pickets ap-
peared to write down the license numbers of automobiles driven through the picket
line and then shout warnings that by means of this method of identification they
would locate the driver and "get him " later. Just as the apparent photographing
by employers of employees accepting union handbills from union organizers (even
though those cameras may have been unloaded or the film never developed) consti-
tutes a threat of future coercive action in violation of Section 8(a)(1),7 just so
the threat of possible future coercive action by the pickets against the owners of
the automobile license plates apparently being recorded must also be held to consti-
tute coercion and restraint in violation of Section 8(b) (1) (A ). The Trial Examiner
so finds.
e Vulcan's photographers having been present for the express purpose would certainly
have caught such a scene if it had happened.
6 According to Romell these threats against automobiles appeared to have been without
number
7 Tennessee Packers. Inc . 124 NLRB 1117
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel introduced the testimony of two applicants for work who
were hired by Vulcan on or about July 15 and are still so employed apparently to
justify the allegations regarding "assaults." The first of these witnesses was one
William H . Smith who testified that on July 15, when he first drove in to report for
work , a picket placed his hand on Smith's arm and suggested "jerking" him out of the
automobile but the assault , if such be an assault , ended when Smith put his foot on
the gas and drove on into the plant . Technically , perhaps, this was an assault but
it hardly seems of sufficient moment to require an order of this Board to correct.
The other witness produced by the General Counsel was a timid soul named
Jack E. Meyer whom the pickets persuaded not to drive into the plant. Meyer
thereupon left but subsequently telephoned the plant and , after being informed
by a Vulcan official that everything was "legal," parked his car and walked across
the fields into the plant to apply for work . His actions subjected him to a consid-
erable amount of name calling . After being hired and being convinced by another
Vulcan official that it was "legal " to walk through gate No. 1 and down Glendale
Road to where he had parked his automobile , Meyer did so. But he testified that,
as he was walking down Glendale Road looking back over his shoulder , "one of the
guys" got into his automobile and tried to run Meyer down on Glendale Road from
which Meyer was able to save himself only by jumping between two conveniently
located trees alongside the road . Sometime within the next 1 or 5 minutes and
either before or after Meyer had gone into the offices of the White Baking Company,8
the driver of this car allegedly told Meyer that before Meyer would get his job,
the man would kill him . The following day Meyer testified that he identified the
driver of the automobile from pictures shown to him by Vulcan officials. As this
rather fantastic testimony is uncontradicted on the record , the Trial Examiner will
have to accept it, albeit most skeptically.
Then the General Counsel introduced the affair of the delivery of a B & 0 Railroad
car to the Vulcan siding on July 11 . This time Romell was the sole witness to the
incident . Romell testified that Vulcan ordered in a railroad car on July 11, that the
B & 0 dispatched what Romell described as a "blue ribbon crew" but that Train-
master Holt reported that because of some nasty things said by Business Representa-
tive Childers that the train crew was "afraid " to attempt the delivery. Romell
admitted that he heard nothing Childers had to say, if anything . However, a few
minutes after receiving this report from Holt, Romell did hear Childers tell Holt
that they would not interfere with the siding operation which was thereafter accom-
plished without incident . Without giving full faith and credence to a hearsay report
given to a not unbiased witness, who admittedly did not hear the episode in question,
the Trial Examiner can do nothing with this incident except to dismiss the same.
Acting upon the application of Vulcan and with the consent of Respondents, on
July 16 an Ohio State court issued an injunction against Respondents limiting the
number of permissible pickets at each gate to two and otherwise effectively remedy-
ing any and all other illegal activities which may have occurred upon the picket line
to that date.
In fact Vulcan charged, the complaint alleged, and the testimony here proved no
further illegal picket line activities by Respondents subsequent to the issuance of
this said injunction . Hence it must be assumed that through that injunction Vulcan
obtained a complete and satisfactory remedy in the forum of its own choosing for
all the picket line activity above described.
2. Incidents of July 28
The next allegations in the complaint concerned charges that on July 28 picket
Schwemberger "and/or pickets unknown" threw an unknown "hard object" at the
automobile driven by employee McGaw and a bolt into the automobile driven by
employee Cartwright.
The testimony regarding the "hard object" striking the McGaw automobile indi-
cates that McGaw's was the first car out of the employee parking lot (gate No. 3)
at 4:05 p in. on July 28 and that, as or after the automobile passed gate No. 4 where
Schwemberger was on duty as a picket, something hit the windshield of the auto-
mobile and cracked same. McGaw, the sole occupant of the car, admittedly saw
nothing hit the car or anyone throw anything at the car. Schwemberger was iden-
tified by one Joseph Turner, a Cal Crimm Detective Bureau employee stationed at
gate No 3, who testified that he saw Schwemberger some 50 to 100 feet away at
gate No 4 reach over "as though he was picking up something" and then, as the
McGaw car approached gate No. 4, "made a motion as though he had throwed fsici
something." Turner admitted that he did not see Schwemberger pick up anything
8 Meyer testified both ways on each count
UNITED STEELWORKERS OF AMERICA, AFL-CIO, ETC. 107
or throw anything and that all he did see was the "as though" motions referred to
above. Although Turner 's detective duties during this strike included that of in-
vestigating accidents and other untoward incidents , neither he nor his plainclothes
sergeant took one step to investigate this so-called incident . In fact the main duties
of the plainclothes sergeant appear to have been to protect the Vulcan photographers
during the strike.
As the Trial Examiner is not permitted the luxury of speculation in these cases,
he must dismiss this incident.
Apparently within minutes of the above incident an automobile driven by em-
ployee Cartwright followed the McGaw car from gate No. 3 and passed gate No. 4
where occupants thereof testified that they saw picket Schwemberger , whom they did
not know at the time, pick up a bolt lying in the road and throw it into the automobile
where, rather miraculously , it came through an open rear window , hit the ceiling
of the automobile and bounced onto a carry-all behind the rear seat without doing
any damage to the automobile or its occupants . This automobile was also im-
mediately stopped-although Cal Crimm Operative Turner, still on duty, failed to
note the same-and then drove on again . The following morning the incident was
reported to Vulcan , the bolt delivered to it , and with the help of a Vulcan official
the picket identified.
Under cases decided by this Board actions similar to this one have been held
to violate Section 8 (b) (1) (A) even though the police court seems the proper and
more expeditious place to properly remedy the situation especially where, as here,
it is undisputed that the pickets had been instructed against engaging in any violence.
Therefore , Schwemberger's action , if it occurred , which the Trial Examiner must
accept in the absence of a denial by Schwemberger who did not testify here, appears
to have been the unauthorized act of an individual punishable by criminal action
rather than the action of the Union cognizable under the National Labor Relations
Act.
The above activities were made the subject of a criminal action in the Ohio courts
against Schwemberger in which the Vulcan attorney participated . It is to be assumed
that justice prevailed.
3. The affair of Klaene's Bar 9
The final incident referred to in the General Counsel's complaint is this affair at
Klaene's Bar.
This affair began about 5:45 p.m. on July 15 as Foreman Perry Kelly drove his
car out of gate No. 1, accompanied by his brother, Martin Kelly, Foreman Morris,
and assistant personnel director, Mrs. Roberts. Perry Kelly stopped his automobile
on Glendale Road when striker Tom Roberts, a long-time friend and neighbor in
Covington, Kentucky, held up his hand. When the car stopped, Roberts put his
hand into the automobile, pointed at Martin Kelly, and, according to the testimony
of Perry Kelly and Mrs. Roberts, said, "Martin, you s.o.b., we'll get you tonight.
You're worse than your one-eyed brother." 10 The only real difference in Tom
Roberts' testimony was that, according to him, he told Martin that "we will see you
tonight," a word change which makes a world of difference in the meaning of the
sentence. After making this statement Roberts withdrew and the Kelly car drove
off 11
The scene now shifts to about 10 p.m. at Klaene's Bar in Covington, Kentucky,
which apparently is a neighborhood club of which Perry Kelly is a member
After having driven Martin and the others home, Perry Kelly and Martin decided
to go to Klaene's Bar for a drink.12 About 10 p.m. Rosen, then president of Local
2772, Tom Roberts, who subsequently succeeded to the presidency, and striking
employees Burris and Shepherd walked into the bar, greeted the Kellys with a "Hi,"
and were offered drinks by Perry Kelly which they accepted. Roberts addressed
Martin by saying, "Okay, Martin, why did you go in there'' You are the only one
of us that didn't stick together." Rosen conferred with Martin privately out of the
hearing of the others.i3
e Also spelled in the complaint and transcript as "Klane's "
10 This last was a reference to Perry Kelly who had suffered an injury to one eye
11The attorney for Vulcan elicited testimony from Perry Telly that, during this stop,
he noted through his rearview mirror an ex-emnloyee named Scott "shadow boxing" while
facing the Kelly car The exact significance of this testimony is hard to comprehend
11 And, according to Perry Kelly, to get some soft drinks and potato chips for the
children
"This conversation is not related in this record as Martin was not called as a witness.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Then Roberts spoke privately with Martin inquiring again why Martin had re-
turned to work, whether it was due to a lack of money, and urged him not to return
to work because he was the only union member who had done so . 14 Martin gave
Roberts no assurances but indicated that it was not due to any lack of money that
he had returned to work.
While this was going on, Rosen asked Perry, "Why don't you get your brother out
of that place , he is liable to lose his life." Perry answered , "Well, Clem, you wouldn't
do anything like that" to which, according to Perry, Rosen replied , "Well, we
wouldn't but we have higher ups that would."
After all the men had had a drink or two more at the bar, the Kelly's left Klaene's
Bar. But Martin has never returned to work at the Vulcan plant.15
The affair of Klaene's Bar was innocuous. It is altogether understandable that the
strikers wanted to see Martin Kelly about his having returned to work over the picket
line because he was, after all, the sole break in the strike solidarity . Naturally the
strikers wanted to convince him not to break ranks . That, however , is a far cry from
wanting to "get" Martin . If the strikers had wanted to "get" Martin, at least in the
sense the General Counsel and Vulcan attorneys want that word interpreted , Klaene's
Bar, apparently quite a public place , would seem logically to be one of the last places
where the strikers would care to see him. Yet the strikers went to Klaene 's Bar to
see Martin , which convinces the Trial Examiner that all Roberts told Martin in the
automobile on Glendale Road was that he would "see " Martin that evening. Based
on much the same reasoning, the Trial Examiner does not believe that in such a
public spot Rosen would indicate that "the higher ups" would be willing to "kill"
Martin. The Trial Examiner is convinced that these two phrases were never said
or implied and, in addition , that no threats were made or implied , even to Perry
Kelly in regard to his brother . Accordingly , the Trial Examiner will recommend the
dismissal of the complaint insofar as it relates to the affair of Klaene's Bar.
B. Conclusions
After 3 days of acrimonious hearing enlivened , if not enlightened , by such trap-
pings as motion pictures , still photography , and private eyes, one single violation of
Section 8 (b) (l) (A) is to be gleaned from all the evidence presented , to wit, the
implied threat of possible future coercive action against persons apparently being
identified through the appearance of recording automobile license plate numbers-
a violation based in large measure on the testimony of a not unbiased witness and
which was never carried into execution and, in fact , not mentioned in the charges
filed, nor, under a technical interpretation of pleadings , alleged in the complaint.
Furthermore , under the allegations of the complaint as well as under the evidence
presented , this single Section 8(b) (1) (A) violation has been promptly and effectively
remedied by the consent injunction issued by the State court on July 16, 1960 , as there
is no evidence , nor claim, that there has been any subsequent recurrence of this
activity by pickets.
In addition the evidence shows that the events of July 28 have also been before the
State courts having more appropriate jurisdiction over such events than has this
Board and the wrongs , if any, committed presumably adequately remedied there.
Among the basic tenets of American jurisprudence are the following:
( 1) For every wrong there is a remedy.
( 2) A person may not be vexed by a multiplicity of suits.
Accordingly , as every possible wrong here had been effectively remedied long
before the filing of any charges in this matter as shown by the evidence and by the
cases listed earlier based upon these same identical events, and as the present attempt
to use the Board's processes for a further rehash of these same events at least verges
on the vexations , the Trial Examiner will recommend that no order be issued in this
case and that the complaint here be dismissed in toto.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case , the Trial Examiner makes the following:
14 Martin had last worked for Vulcan in the year 1959 but had returned on July 15,
1900 , at the urging of his brother Perry.
15 The attorney for Vulcan introduced through Perry Kelly the fact that on the evening
of July 15 a brick had been thrown at the Kelly home and that sometime after the Kellys
had returned from Klaene's Bar , the Kelly automobile caught fire burning out the wiring
When counsel admitted that he had no evidence to connect these events to the Respond-
ents except " the circumstantial evidence ," the Trial Examiner struck the testimnoy from
the record on motion of Respondent 's counsel
GLOBE SECURITY SYSTEMS, INC. 109
CONCLUSIONS OF LAW
1. United Steelworkers of America , AFL-CIO, and Local No. 2772, United Steel-
workers of America, AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
2. Vulcan-Cincinnati , Inc., is engaged in commerce within the meaning of Section
2 (7) of the Act.
3. It would not effectuate the policies of the Act to issue an order against Respond-
ents herein.
The Trial Examiner recommends that this complaint be dismissed in its entiretly.
Globe Security Systems, Inc. and Security Officers and Watch-
men's Union , Local No. 1, International Brotherhood of Fire-
men and Oilers, AFL-CIO . Case No. A0-35. May 10, 1962
ADVISORY OPINION
This is a petition filed by Globe Security Systems, Inc., herein
called the Employer, for an advisory opinion in conformity with Sec-
tions 102.98 and 102.99 of the Board's Rules and Regulations, Series
8,.as amended.
A. In pertinent part, the petition alleges that :
(1) Security Officers and Watchmen's Union, Local No. 1, Inter-
national Brotherhood of Firemen and Oilers, AFL-CIO, herein
called the Union, filed with the Pennsylvania Labor Relations Board,
herein called State Board, a petition (Docket No. 27, year of 1962)
for the certification as representative of various guards employed
by the Employer at the plant of Daroff & Sons, Inc., in Philadelphia,
Pennsylvania. The State Board has not as yet made specific findings
as to its jurisdiction or lack of jurisdiction over the Employer.
(2) The Employer is a Pennsylvania corporation with its principal
place of business in Philadelphia and is engaged in the business of
providing plant protection services for employers located in 28 States.
The Employer annually furnishes guard services valued in excess of
$50,000 to employers at plants located outside of Pennsylvania; and
it also annually furnishes guard services valued in excess of $50,000 to
local Pennsylvania employers, such as DarofF & Sons, Inc., who them-
selves annually ship goods valued in excess of $50,000 outside of
Pennsylvania.
(3) For the purposes of this Advisory Opinion, the Board has
taken official notice of the jurisdictional facts of recent proceedings
in which it asserted jurisdiction over the Employer's operations.'
(4) There are no representation or unfair labor practice proceed-
ings involving the Employer pending before this Board 2
1 See, e . g., Cases Nos . 14-CA-2628 ( Intermediate Report issued January 3 , 1962) ;
14-RC-4167 ( consent election held November 2, 1961 ) ; 8-RC-4463 (petition filed Novem-
ber 2, 1961 , but dismissed on grounds other than jurisdiction).
2 Since the filing of the petition herein , the Board ' s records show that Case No.
5-RC-3783 is presently pending in the Board ' s Fifth Regional Office at Baltimore
Maryland.
137 NLRB No. 12.