Warehouse and Mail Order Employees, Local 743

National Labor Relations Board - Board Decisions

Sep 27, 1963

144 N.L.R.B. 888 (N.L.R.B. 1963)

888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehouse and Mail Order Employees Union , Local 743, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America and Phil -Maid, Inc.
Warehouse and Mail Order Employees Union , Local 743, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America and Phil-Maid , Inc. Cases Nos.
13-CP-62 and 13-CB-1315. September 27, 1963
DECISION AND ORDER
On May 20, 1963, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease sand desist therefrom
and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondent and the Charging
Party filed exceptions to the Intermediate Report and the Charging
Party filed a supporting brief. The General Counsel 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 these cases to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
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 exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings,' conclusions, and recom-
mendations 2 of the Trial Examiner with the modifications indicated
herein.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
1. Add the following as provision 1(a) :
(a) Picketing, or causing to be picketed, for a period of 1 year
from November 19,1962, Phil-Maid, Inc., Chicago, Illinois, where
1 We find without merit the contention of the Respondent that the Trial Examiner
showed bias or prejudice . A consideration of the entire record shows no basis whatever
for a finding of bias or prejudice.
2 The Charging Party excepted , inter alla, to the Trial Examiner's failure to recommend
an order requiring cessation of the Union's picketing for a 12 -month period from Novem-
ber 19, 1962 , on which day the picketing was enjoined There is no evidence that it has
since been resumed. In accordance with Board policy as announced in Retail Store
Employees ' Union Local No. 692, Retail Clerks International Association , AFL-CIO
(Irvins, Inc ), 134 NLRB 686, we find merit in this exception, and shall amend the
Order and notice to conform with that policy.
144 NLRB No. 87.
WAREHOUSE AND MAIL ORDER EMPLOYEES, LOCAL 743 889
an object thereof is to force or require Phil-Maid, Inc., to recog-
nize orbargain collectively with the Respondent or to force or re-
quire the employees of Phil-Maid, Inc., to accept or select the
Respondent as their collective-bargaining representative.
2. Change the designation of provisions 1(a), 1(b), and 2 of the
Recommended Order to 1(b), 1(c), and 1(d), respectively.
3. Renumber paragraph 3 of the Recommended Order as para-
graph 2.
4. Change the notice attached to the Intermediate Report as "Ap-
pendix" by inserting, as the first indented paragraph, the following :
WE WILL NOT picket or cause to be picketed, for a period of
1 year from November 19, 1962, Phil-Maid, Inc., Chicago, Illinois,
where an object thereof is to force or require Phil-Maid, Inc.,
to recognize or bargain collectively with us or to force or require
the employees of Phil-Maid, Inc., to accept or select us as their
collective-bargaining representative.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on November 8, 1962, the General Counsel of the
National Labor Relations Board for the Regional Director for the Thirteenth
Region (Chicago, Illinois ) issued a complaint on December 7, 1962, in Case No.
13-CP-62 against Warehouse and Mail Order Employees Union, Local 743, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Respondent or the Union , alleging that it had engaged
in certain unfair labor practices affecting commerce within the meaning of Section
8(b) (7) (B ) of the National Labor Relations Act, as amended , 61 Stat. 136, herein
called the Act. Upon a charge duly filed on December 11, 1962, a complaint
against the same Respondent was issued on December 14, 1962, in Case No.
13-CB-1315, alleging that it had engaged in certain unfair labor practices affecting
commerce within the meaning of Section 8(b) (1) (A) of the Act. The Respond-
ent's answer denies the allegations of unlawful conduct as alleged in the complaints.'
Pursuant to notice , a hearing was held in Chicago , Illinois, on March 19, 20, 26
and 27, 1963. All parties were represented by counsel and were afforded full op-
portunity to adduce evidence , to examine and cross-examine witnesses , and to file
briefs. Briefs were received from the General Counsel and the Charging Party
and they have been carefully considered.
Upon the entire record in this case ,2 and from my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
Phil-Maid, Inc., hereinafter also referred to as the Company, is an Illinois cor-
poration with its plant and place of business located in Chicago, Illinois, where it
is engaged in the manufacture , sale, and distribution of ladies' garments.
During the last calendar year, the Company shipped products manufactured by
it valued in excess of $50,000 from its plant in Chicago, Illinois, directly to points
and places located outside the State of Illinois. During the same period, it pur-
chased and received goods and materials valued in excess of $50,000 from points
1 On December 19, 1962, the Regional Director ordered that the above cases be con-
solidated At the hearing Trial Examiner John P. von Rohr denied a motion by the
Respondent that the cases be severed.
2 At page 134 , line 14, the transcript in this case Is hereby corrected by adding the word
"without" preceding the word "precluding."
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and places located outside the State of Illinois . I find that the Company is and has
been engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Warehouse and Mail Order Employees Union, Local 743, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The 8(b)(7)(B) conduct
1. The facts
The complaint alleges that the Respondent Union violated Section 8(b)(7)(B)
of the Act by picketing Phil-Maid's premises in order to force and require Phil-Maid
to recognize and bargain with Respondent, and in order to force and require the
employees of Phil-Maid to accept and select Respondent as their collective-bargaining
representative, at a time when a valid election among the employees of Phil-Maid had
been conducted under Section 9(c) of the Act.3
At the times material herein, Phil-Maid, a garment manufacturer, employed ap-
proximately 400 production and maintenance employees. At the time of the events
herein these employees were not represented by a labor organization.
In a telephone conversation on September 17, 1962, Donald Peters, president of
Local 743, informed Joseph Stein, the Company's general counsel, that the Union
had been organizing the Company's employees and that he was now ready to talk
with Seymour Katz, the Company's president, before a "fight" or "loggerhead"
developed. Stein said that he would discuss the matter with Katz. On October 3
Stein called Peters and said there would be no real purpose in Peters meeting with
Katz but that the Company would be willing to have a Board election to determine
whom the employees wanted as bargaining representative. Peters replied if Katz
did not want to meet with him it would be a matter for the organizers to decide;
that this could mean a picket line or a strike.
On the morning of October 16, 1962, without any prior notice, the Respondent
began picketing at Phil-Maid's premises. The picket signs stated: 4
Phil-Maid does not have a contract with Local 743, IBT
That same morning (October 16) the Company received a telegram from the
Respondent which stated as follows:
Warehouse and Mail Order Employees Union, Local 743, I.B.T. has been
designated by a majority of your employees in a unit composed of all production
and maintenance employees to act as their collective bargaining representative
in all matters pertaining to their wages, hours and working conditions We are
prepared to demonstrate this majority choice to your representatives at any
time you request proof of the same. We demand that a meeting be arranged
at the earliest possible time between our respective representatives for the
purpose of discussing the foregoing subjects of vital concern to your employees
and arriving at a collective bargaining agreement containing mutually satisfactory
provision relating to the same. So that there will be no unnecessary delay in
commencing this meeting we are as of October 16, 1962 instituting measures to
publicize the fact that your firm does not at this time have a collective bargaining
agreement containing terms and conditions of employment satisfactory to our
employees. This publicity campaign will continue until you indicate a willing-
ness to commence discussions with us toward arriving at such a contract.
Pursuant to a telephone call between the parties, a meeting was held on the
afternoon of October 16 in the office of Melvin L. Rosenbloom, Respondent's at-
torney. Present at this meeting were Peters and Rosenbloom for the Union, with
Stein and Howard Naft, the latter Phil-Maid's assistant vice president, representing
the Company. Stein opened the discussion by referring to the telegram which the
Company had received from the Union that morning. Without belaboring all the
testimony on the matter, Peters made it clear, as indeed he conceded at the hearing,
that the Respondent claimed to represent a majority of the employees and that it
3 Unless otherwise noted, the facts concerning this aspect of the case are undisputed
4 The picket signs bore the same legend throughout the entire period of picketing, which
ended on November 19, 1962.
WAREHOUSE AND MAIL ORDER EMPLOYEES, LOCAL 743 891
was demanding recognition as the employees' collective-bargaining representative.5
The company representatives refused to grant such recognition but stated that the
employees should be given the right to determine this matter for themselves in a
Board-conducted election.6 According to the unrefuted testimony of Naft, whose
testimony I credit, Peters replied that the Union recently had lost an election at
another plant and that he was not in any position to "gamble" on an election. Con-
tinuing, Naft testified, "He [Peters] also said that he was going to keep the picket
line out at our plant, and we would either recognize him or he would shut us down.
And he went on to say that he picked the Christmas season to picket us because
they figured that that would be where we would be hurt the most." According to
Stein, who was corroborated by Naft, Peters also talked in terms of making "a deal
with them as far as representing the employees were concerned." The conversation
then turned to just what the Union was seeking by way of economic demands. After
Peters indicated that the cost to the Company would roughly amount to $6 per
month for each employee, Stein responded by saying, "What you are talking about,
then, really relates to something in the neighborhood of 80 or 100 thousand dollars
that it would cost the Company. You might just as well make an offer for the
company, and then you can turn around and pay the people whatever you want to."
One further aspect of the discussion at this meeting remains to be mentioned.
Thus, the testimony reveals that Peters, in connection with the Company's proposal
for an election, accused the Company of such matters as having threatened to move
its plant down South and of having purchased new machinery for its employees, all
this allegedly during the Union's organizational campaign. Naft denied that the
Company made any threats and explained that the purchase of certain new ma-
chinery was for economic purposes and was not out of the ordinary. The meeting
terminated without any resolution of the matters under discussion.?
Respondent's picketing of Phil-Maid's premises continued without interruption
from October 16 to November 19, 1962. On the latter date the picketing was en-
joined and was discontinued pursuant to court order.8
In the meantime, the Company invoked the Board's representation procedures
by filing a representation petition on October 16, 1962.9 Pursuant to the said peti-
tion, the Regional Director for the Thirteenth Region on October 24, 1962, directed
that an election be held in the appropriate unit (maintenance and production) among
Phil-Maid's employees. The election was conducted on October 26, 1962, with the
result that out of approximately 398 eligible voters, 305 votes were cast against the
Respondent Union and 62 votes were cast for the Respondent Union.
On November 2, 1962, the Respondent filed objections to conduct affecting results
of the election. Following his investigation of the matter, the Regional Director
issued a supplemental decision under date of November 7, 1962, in which he ruled
adversely to the Respondent's claimed objections and certified that a majority of the
valid votes had not been cast for the Respondent Union and that no labor organiza-
tion was the exclusive representative of the employees in the unit within the meaning
of Section 9(a) of the Act. The Respondent did not appeal the Regional Director's
decision as aforesaid.
2. Conclusions
From the facts in this case it is beyond any doubt, and I find, that an objective of
Respondent's picketing Phil-Maid's premises was to secure recognition and a con-
tract from the Company. Not only did Respondent's telegram of October 16 so
state on its face, but, as noted in the preceding section, Respondent's representatives
adhered to this position during the meeting with company representatives on the
afternoon of the same day. While under Section 8(b) (7) (B) of the Act the issue
8 The events of this meeting were testified to by Stein, Naft, and Peters There was no
substantial dispute over the essence of the conversation which occurred at this time
6 In fact, the Company had filed a petition for an election with the Chicago Regional
Office that same morning.
4 Although at one point Peters offered to prove a majority by having a third party make
a check of union authorization cards, there is a conflict in the testimony as to whether
Peters offered this check to be made before or after recognition and a contract Although
I am satisfied that Respondent would have accepted a contract on the spot, it is im-
material to the issues herein whether the Respondent was willing to attempt to prove a
majority either before or after any recognition was granted.
8 The court order was obtained through action of the Board's General Counsel acting
under Section 10(1) of the Act
9 Case No 13-RM-656 On the same date it also filed a charge in Case No 13-CP-59
alleging that Respondent had violated Section 8 (b) (7) (C) of the Act. The latter charge
was dismissed by the Regional Director on October 24, 1962.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here is confined only to the legality of the picketing which occurred subsequent to
October 24, 1962, the date of the election, it is equally clear, and I find, that Re-
spondent's objective during the postelection stage remained the same as it was at the
outset, i.e., to achieve recognition and bargaining. Indeed, Respondent has made
no contention that there was any change in its objective after the election.1° But
aside from Respondent's apparent concession to this latter effect, there is no overt
evidence whatsoever to show that Respondent abandoned or any way changed its
initial objective of seeking recognition and bargaining. To the contrary the legend
on the picket signs remained the same from the first day of the picketing to the last.
Moreover, and in addition to the continuity of purpose which the picket signs thus
indicated, it is well settled that a statement on a picket sign that an employer does
not have a contract with a labor organization in itself clearly implies a recognitional
and bargaining object. Local Union 429, International Brotherhood of Electrical
Workers, AFL-CIO (Sam Melson, General Contractor), 138 NLRB 460; Local
Joint Executive Board of Hotel and Restaurant Employees and Bartenders, etc.
(Leonard Smitley and Joseph W. Drown d/b/a Crown Cafeteria), 135 NLRB 1183,
1185.11
Accordingly, and in view of all the foregoing, I find that Respondent's picketing
for recognition and a contract, occurring as it did within 12 months after a valid
election which the Respondent lost, violated Section 8(b) (7) (B) of the Act. Assum-
ing arguendo that one purpose of the picketing was to protest alleged company unfair
labor practices, this cannot serve as a defense since it need be established only that
an object of the picketing be one proscribed by the Act.12 International Hod Car-
riers' Building and Common Laborers' Union of America, Local 840, AFL-CIO
(C. A. Blinne Construction Company), 135 NLRB 1153; District 65, Retail, Whole-
sale & Department Store Union, AFL-CIO (Eastern Camera & Photo Corp.), 141
NLRB 991.
At the hearing, and presumably as its chief defense, the Respondent sought to
attack the Regional Director's supplemental decision, report and objections, and
certification of results of election which issued on November 7, 1962. Upon the
basis of Section 102.67(f) of the Board's Rules and Regulations, I rejected evidence
to this effect.13 It is well settled that a failure to request review at the representation
stage forecloses litigation of the issue concerning representation in a subsequent com-
plaint case. Carquinez Lodge No. 492, International Association of Machinists, AFL-
CIO (The Firestone Tire & Rubber Company), 139 NLRB 1477 I also rejected evi-
dence which the Respondent sought to adduce in support of the alleged Section
8(a)(1) unfair labor practices which were the subject of a charge filed by the Re-
spondent in Case No. 13-CA-5225. The latter charge was dismissed by the Regional
10 As noted hereinafter, Respondent' s defense appears to be predicated upon its challenge
to the validity of the election in the first instance.
11 It may be noted that a second proviso to Section 8(b) (7) (C) relative to "publicity" is
not a defense to an 8(b) ( 7) (B) case. Retail Store Employees' Union Local No. 692,
Retail Clerks International Association, AFL-CIO (Irwins, Inc.), 134 NLRB 686; Local
182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Woodward Motors , Inc ), 135 NLRB 851 ; Retail Clerks Union Local 321 and
Retail Clerks Union Local 770, both affiliated with Retail Clerks International Association,
AFL-CIO (Barker Bros. Corp and Gold's, Inc ), 138 NLRB 478
12 Peters testified that he told company representatives at the October 16 meeting, inter
alga, that one of the "reasons" for picketing was "for recognition, and also, to straighten
out the unfair labor practices " I am inclined to discredit Peters' conclusionary testimony
to the effect that one purpose of the picketing was "to straighten out the unfair labor
practices " In this regard, I deem it significant that Respondent's telegram to the Com-
pany earlier in the day referred to recognition only, there being absolutely no mention of
any alleged employer unfair labor practices. While the testimony refl ects that during this
meeting Peters did mention an alleged threat to move the plant as well as certain alleged
company benefits to employees during the organizational campaign, I am inclined to view
these self-serving statements as afterthoughts or as having been made to establish an
anticipatory defense to the picketing herein . Thus, it hardly need be said that at the
October 16 meeting the Respondent's representatives were well aware that the Company
sought to have the picket line removed. But in making accusations of alleged employer
unfair labor practices (which the Company explained or denied), Respondent's representa-
tives failed to suggest any action which the Company could take to alleviate the situation
and thereby cause the pickets to be removed
13 This section provides: "The parties may, at any time, waive their right to request
review Failure to request review shall preclude such parties from relitigating, in any re-
lated subsequent unfair labor practice proceeding, any issue which was, or could have
been raised in the representation proceeding."
WAREHOUSE AND MAIL ORDER EMPLOYEES, LOCAL 743 893
Director on October 25, 1962. Following an appeal, the General Counsel on
December 13, 1962, apprised the Respondent that he was sustaining the Regional
Director's refusal to issue a complaint in the case. As to Respondent's attempt to
reopen this matter in the instant hearing, it is equally well settled that the General
Counsel's refusal to issue a complaint cannot be collaterally attacked in a subsequent
proceeding Woodward Motors, Inc., supra; Times Square Stores Corporation, 79
NLRB 361, 364.14
B. 8(b)(1) (A) Conduct
The complaint alleges that certain incidents occurring at the proximity of the
plant and others involving Phil-Maid's employees while making deliveries away from
the plant violated Section 8(b) (1) (A) of the Act.
The picketing of Respondent's premises at all times was of the so-called "stranger"
type, that is the pickets were not the Company's employees but consisted of agents
of the Respondent or individuals paid by the Respondent. The evidence reveals
that from the outset the picketing effectively caused employees of outside trucking
concerns to refuse to pick up or deliver goods and materials at Respondent's plant.
In order to continue operations Respondent thus found it necessary to rent a Hertz
truck and to purchase another truck to hold in reserve. On October 19, 1962,
the Company hired Clifford Zimbler as driver for the Hertz truck and on October 23
it employed Anthony Spagnola as Zimbler's helper. It is undisputed that throughout
the course of the picketing Respondent's representatives trailed Phil-Maid's truck
(usually one at a time) when it made pickups or deliveries.15 With this background,
we turn to the incidents alleged to be violative of Section 8(b) (1) (A). They will be
identified by date.
October 23: On this date Zimbler, while making deliveries in the Hertz truck, was
followed by Scotty Deans, Jose Cedre, Raymond Hamilton, and Don Thibeau, all
official representatives of the Respondent.18 Deans admittedly took pictures of the
truck and its driver on this and other occasions. While stopping to make a delivery
at the Fast Service Company, Respondent agents came up to the cab of the truck
and one of them said to Zimbler, "You are protected by the police now, but will they
take you home and bring you back to work?" 17
October 24: About 7 a.m. some five or six Respondent representatives 18 came up
and surrounded Zimbler and Spagnola as they got out of their car on Phil-Maid's
parking lot. According to the testimony of Zimbler and Spagnola, which is credited,
Thibeau came up to Zimbler and punched him in the chest five or six times, at the same
time asking him where he came from, why he was working for Phil-Maid and how
much money he was making. Hamilton then pointed to Zimbler and said, "I am
going to tell you to your teeth, you are going to get it, and you are not the first one
that I done it to." In the meantime, Deans and Cedre accosted Spagnola. Deans
"shouldered" Spagnola and stated, "We take care of guys like you." As Zimbler
and Spagnola finally managed to walk away toward the plant, one of the members of
the group, described by Zimbler as a gray-headed man, called after them, "We put
guys like you in trunks." When the employees approached the building, Vice
President Hamity unlocked the Van Buren Street door and shouted to them to come
inside. At ,this point, according to the credited testimony of Hamity, a member of the
Respondent group came up to him, shouted profanities at him, and physically at-
tempted to push him inside the building. Hamity finally closed the door and Zimbler
and Spagnola entered the building through another entrance.
Later this same day a group of union representatives came up to Zimbler and
Spagnola as they were pulling their truck out of the Company's garage. One of them,
identified by Spagnola as Max Padowsky, a Respondent business representative,
stated on this occasion, "Three cars will take care of these guys." Still later that
day, as Zimbler and Spagnola were making a delivery to Martin Cartage Company,
Thibeau and Hamilton accosted Spagnola at the rear of the truck and told him,
"The police can watch you now, they can't always watch you at home."
14In any event, and as heretofore discussed, the evidence Is abundantly clear that an
objective of Respondent's picketing during the critical period was to obtain recognition
and bargaining.
15 It was customary, also, for a police detail to follow the truck (with the trailing
union representative) to its destination.
16 Thibeau, Hamilton, and Deans were ibusiness representatives of the Respondent.
Cedre was a union organizer.
17 The credited testimony of Zimbler. I do not credit the general denials of Deans,
Hamilton, and Thibeau to the effect that they never threatened Zimbler or Spagnola on
this or any other occasion.
11 These Included Hamilton, Thibeau , Cedre , and Deans.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 5: On this date Zimbler was admittedly approached by Thibeau and
Hamilton as he was making a delivery at the dock of the Fast Service Company.
Zimbler credibly testified that on this occasion Thibeau and Hamilton came up
and began to pound the truck doors and to pull the door handles. At this point
Thibeau stated, "We will take a little walk . . . I can take care of all three of you."
Shortly thereafter the police arrived and Zimbler, who did not leave the truck, was
arrested for carrying a gun in the cab.19
November 15, 1962: In the latter part of the morning a trailer truck arrived at
the Company's loading dock to pick up garbage which had been accumulating at the
plant. Jose Cedre was on picket duty at the time and observed the truck arrive.
Cedre testified that he went over and "tried to talk to the driver . . . he didn't want
to talk to me." Whereupon, as Cedre conceded, he called the union office and told the
girl he "needed more men" ,and that Respondent Union should send "any men avail-
able" to the plant. In the meantime the truck pulled into the loading dock, which
was located inside the plant, and the loading began. A short while later a number of
cars arrived carrying 10 or more members and representatives of the Respondent
Union.20 By this time a number of police had also arrived upon the scene. Two
of the police entered the building and requested that someone come out and close
the rear doors of the trailer truck when it pulled out of the dock in order that it not
be necessary for the driver and his helper to leave the cab. Naft and Hamity
responded to this request. When the truck pulled out of the loading dock a scene
of great confusion occurred. Naft and Hamity attempted to close the doors to the
truck but found that the lock was broken. While so engaged they were surrounded
by Respondent's representatives who begun shouting obscenities at them. Finally,
members of the crowd started to confuse the driver of the truck by yelling directions
at him to "stop" or "go." When questioned about this on cross-examination,
Hamilton testified, "Yes, depending on what the truck was doing. If it was going
I yelled, `Stop,' and if it was stopped, I yelled `Go' . . . Maybe a few boxes could
have fallen on somebody." Naft finally started toward the front of the truck to
talk to the driver. As he did so he was accosted by Hamilton who knocked him back-
wards by striking him several times in the chest with his folded arms. As Naft then
turned to return to the rear of the truck, a group of five or six Respondent representa-
tives, including Thibeau and Cedre, jumped at Naft from the side, tore his shirt from
his back, and began to beat him with their fists. Naft was finally extricated by
intervention of the police. Hamity also was accosted by the group. Just before Naft
left for the front of the truck Hamilton came up and lunged at Hamity, forcing
his back against the rear of the trailer. Shortly thereafter Hamity was jumped and
struck by members of the Respondent as he attempted to go forward and assist Naft.21
Both Naft and Hamity suffered personal injuries and torn clothing as a result of
the foregoing attacks. The entire fracas was observed by numerous of the Company's
employees who had watched the scene while gathered around windows inside the
plant.22
19 Zimbler testified that he had the gun because of the threats which Respondent repre-
sentatives previously had made to him He also said that on this occasion the gun was
carried disassembled in a paper bag next to him in the seat of the cab. Respondent wit-
nesses, who themselves gave conflicting versions of this incident , testified that Zimbler
wore the gun under his belt. Whatever the fact of the matter, the manner in which
Zimbler carried the gun is not an issue before me Even if I did not credit Zimbler's gun
incident testimony in its entirety, I still would credit his account of what initially tran-
spired upon his arrival at the Fast Service Company on this day As stated by Judge
Learned Hand in N.L.R.B. v. Universal Camera Corporation, 179 F. 2d 749 (C A 2), "it
is no reason for refusing to accept everything a witness says, because you do not believe
all of it ; nothing is more common in all kinds of judicial decisions to believe some and
not all."
20 Identified and included among those on this occasion were Cedre , Hamilton, Thibeau,
Deans, Padowsky, Frank Masla, and Elizah Buffington. The latter two individuals, not
heretofore identified , were organizers of the Respondent Union
21 Thibeau was definitely identified by Hamity as one of the group who jumped him at
this time.
21 The above account of the November 15 incident is based upon my consideration of all
the testimony on the subject. Where the versions differed, I have credited the testimony
of Naft, Hamity, and corroborating employee witnesses over the testimony of Respondent
witnesses who participated in the fracas . I do not credit the denials of Respondent wit-
nesses of not having assaulted the company officials or that they only acted in self-defense
From my observation of the witnesses , and from the inherent plausibility of all the testi-
mony, it is crystal clear to me what occurred.
WAREHOUSE AND MAIL ORDER EMPLOYEES, LOCAL 743 895
From all the foregoing , I find that Respondent in the incidents cited above com-
mitted flagrant violations of Section 8(b)(I)(A ) of the Act by: (1) assaulting em-
ployees of the Company; (2) threatening employees with bodily harm, and (3)
assaulting and inflicting bodily harm upon company officials in the presence of com-
pany employees 23
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with
the operations of Phil-Maid , Inc., 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 obstructing commerce and the free flow
of commerce.
V. THE REMEDY
It having been found that Respondent engaged in certain unfair labor practices
in violation of Section 8(b)(7)(B) and (1) (A) of the Act, I shall recommend that
it cease and desist therefrom , and take certain affirmative action designed to
effectuate the policies of the Act. Furthermore, in consideration of the acts of
violence engaged in by the Respondent, it will be recommended that in order fully
to effectuate the policies of the Act , Respondent be ordered not only to cease and
desist from such conduct as is found unlawful herein, but from otherwise restraining
and. coercing employees of the Company in the exercise of the rights guaranteed
them by Section 7 of the Act.24
CONCLUSIONS OF LAW
1. Phil-Maid , Inc, is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act , and the Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
2. By picketing Phil-Maid since October 26, 1962, with an object of forcing or
requiring Phil-Maid to recognize or bargain with it as the collective -bargaining
representative of Phil -Maid's employees , or forcing or requiring such employees
to accept or select it as their collective -bargaining representative , although contrary
to the results of a valid election under Section 9(c) held within the preceding 12
months, the Respondent has engaged in an unfair labor practice within the meaning
of Section 8(b) (7) (B ) of the Act.
3. By employing and threatening to employ physical violence against employees
and by employing physical violence against Phil-Maid's officials and supervisors in
the presence of employees , the Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that Respondent Warehouse and Mail Order Employees Union,
Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, its officers, representatives , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Picketing , or causing to be picketed , Phil-Maid, Inc., with an object of forcing
or requiring Phil-Maid to recognize or bargain collectively with it as the representa-
tive of Phil-Maid's employees , or to force or require the employees to select it as
their collective -bargaining representative , where within the preceding 12 months
a valid election under Section 9(c) of the Act has been conducted which the
Respondent Union did not win.
(b) Restraining and coercing the employees of Phil-Maid by assaulting or threat-
ening to assault employees and other individuals.
2. In any other manner restraining and coercing the employees of Phil-Maid,
Inc., in the exercise of rights guaranteed them by Section 7 of the Act , including
the right to refrain from any or all concerted activities as guaranteed by the Act.
3. Take the following affirmative action which I find will effectuate the policies
of the Act.
23 See Eastern Camera & Photo Corp , supra, and cases cited therein
24 United Steelworkers of America, AFL-CIO (Lau Blower Company ), 123 NLRB 277.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post in Respondent Union's business offices and meeting halls, copies of
the attached notice marked "Appendix." 25 Copies of said notice to be furnished
by the Regional Director for the Thirteenth Region, shall, after being duly signed
by official representatives of the Respondent, be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its members are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for the Thirteenth Region signed copies of
the aforementioned notice for posting by Phil-Maid, the Company willing, in places
where notices to employees are customarily posted. Copies of said notice to be
furnished by the Regional Director for the Thirteenth Region, shall, after being
signed by Respondent, as indicated, be forthwith returned to the Regional Director
for disposition by him.
(c) Notify the Regional Director for the Thirteenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith 26
It is further recommended that, unless within 20 days from the date of receipt
of this Intermediate Report and Recommended Order, Respondent notify said
Regional Director, in writing, that it will comply with the foregoing Recommended
Order, the National Labor Relations Board issue an order requiring Respondent
to take the aforesaid action.
25 In the event that this Recommended Order Is adopted by the Board, the words "A Deci-
sion and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
29 In the event that this Recommended Order Is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF WAREHOUSE AND MAIL ORDER UNION, LOCAL 743,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA
Pursuant to the Recommended Order of a Trial Examiner 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 picket or cause to be picketed Phil-Maid, Inc., where an
object thereof is to force or require Phil-Maid, Inc., to recognize or bargain
collectively with us as the representative of its employees, or to force or require
such employees to accept or select us as their collective-bargaining representa-
tive. where a valid election which we did not win has been conducted by the
National Labor Relations Board among such employees within the preceding
12 months.
WE WILL NOT restrain or coerce the employees of Phil-Maid, Inc., by as-
saulting employees and supervisors or by threatening them with physical
violence.
WE WILL NOT in any other manner restrain or coerce employees of Phil-Maid,
Inc., in the exercise of the rights guaranteed them by Section 7 of the National
Labor Relations Act, as amended, including the right to refrain from any or
all concerted activities as guaranteed by the Act.
WAREHOUSE AND MAIL ORDER EMPLOYEES UNION, LOCAL 743,
INTERNATIONAL BROTHERHOOD OF TEAMS? ERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago 3, Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.