Dairy Employees, Local 695

National Labor Relations Board - Board Decisions

Nov 13, 1975

221 N.L.R.B. 647 (N.L.R.B. 1975)

DAIRY EMPLOYEES, LOCAL 695 647
Drivers , Salesmen, Warehousemen, Milk Processors,
Cannery, Dairy Employees and Helpers Union
Local No. 695, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Yellow Cab
& Transfer Co. Case 30-CB-793
November 13, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On September 19, 1975, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions. and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent , Drivers, Salesmen, Warehousemen, Milk Pro-
cessors, Cannery, Dairy Employees and Helpers
Union Local No. 695, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Madison, Wis-
consin , its officers, agents, and representatives, shall
take the action set forth in the said recommended
Order as so modified:
1. Substitute the following for paragraph 1(a):
"(a) Restraining or coercing employees of the
Yellow Cab & Transfer Co. by physical assaults
upon employees and supervisors at or away from the
picket line , by harming employees or supervisors
otherwise at or away from the picket line, by
threatening to harm or otherwise to engage in
reprisals against employees, their families, or other
persons at or away from the picket line, by following
or harassing employees, by damaging or threatening
to damage vehicles or other property of the Employ-
er, or other persons at or away from the picket line,
by mass picketing, or by otherwise barring or
hindering ingress to or egress from Yellow Cab &
221 NLRB No. 95
Transfer Co. premises in order to discourage such
employees in the exercise of their right not to join or
support any strike.
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
r We agree with the Administrative Law Judge that the Respondent
engaged in several acts of misconduct both at and away from the picket line
in violation of Sec , 8(b)(1)(A) of the Act We find ment in the exceptions
filed by the General Counsel, however, that the recommended Order failed
to provide for Respondent to cease and desist'from its unlawful conduct at
and away from the picket line. Accordingly, we shall modify the Order in
this regard
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce the employees
of Yellow Cab & Transfer Co. by physical
assaults upon employees and supervisors at or
away from the picket line, by harming employees
or supervisors otherwise at or away from the
picket line, by threatening to harm or otherwise to
engage in reprisals against employees, their
families, or other persons at or away from the
picket line, by following or harassing employees,
by damaging or threatening to damage vehicles or
other property of the employer, or- other persons
at or away from the picket line, by mass
picketing, or by otherwise barring or hindering
ingress to or egress from Yellow Cab & Transfer
Co. premises in order to discourage such employ-
ees in the exercise of their right not to join or
support any strike. -
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of rights guaran-
teed in Section 7 of the Act.
DRIVERS, SALESMEN,
WAREHOUSEMEN, MILK
PROCESSORS, CANNERY,
DAIRY EMPLOYEES AND
HELPERS UNION LOCAL
No. 695, AFFILIATED
WITH THE
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: This case
was heard before me in Madison, Wisconsin, beginning on
May 19 and concluding on May 22, 1975, based-upon
charges filed on April 9 by Yellow Cab & Transfer Co.,
herein referred to as Yellow, and the complaint issued by
the Regional Director,for Region 30 on April 25, 1975,
charging that the Respondent, or Union, violated Section
8(b)(1)(A) of the National Labor Relations Act. Briefly
stated , the issues are whether (a) the acts described
restrained and coerced employees in the exercise of their
rights under Section 7 of the Act, and (b) the Respondent
should be held responsible for these acts.
Upon the basis of the entire record in the case, including
my observation of the witnesses as they testified and
consideration of the briefs filed with' me on or about July
11, 1975, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF YELLOW
Yellow operates a taxi cab business in Madison,
Wisconsin, which comes within the Board's jurisdictional
standards.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Union and Yellow commenced negotiations in
about February 1975 for a new collective-bargaining
agreement , inasmuch as the then current agreement was to
expire on April 1, 1975. After extended negotiations; the
parties were not able to reach -agreement and, on March
31, the membership of the Union rejected Yellow's final
offer and voted to go on strike, beginning at I minute after
midnight on April 1. In view of this circumstance, Yellow
endeavored to'continue operating by using nonstrikers and
by hiring replacements. However, this effort was not
particularly successful, and operations stopped on April 5.
During the first 5 days of that month, and at some other
times during April and May, the Union, according to the
record, allegedly engaged in a considerable number of
activities both at and away from the premises of Yellow
which were of a threatening -nature and involved the
blocking of Yellow's vehicles and individuals, as well as
damage to its property. Counsel for the General Counsel,
in his comprehensive brief, divides these incidents into two
categories: those which allegedly occurred near Yellow's
premises and -those which occurred away from the
premises . A number of these incidents are undenied, and,
for purposes of brevity, I shall first undertake to discuss
those which are not disputed and, if necessary, thereafter
consider those as to which there is some conflict in
testimony.
A. ' Incidents at or Near the Employer's Premises
Mark Goldberg, a regular full-time driver of Yellow, was
one of the strikers. Dawn Lovell, at the time of the hearing,
was Yellow's business administrator. She testified that on
April 1 she went to work at Yellow's premises between 7:30
and 8 in the morning, and late in the evening of April 1 she
was in the dispatch room with one Steven Hartlaub, a
driver, who at the time was answering the telephone. While
there she saw a number of strikers on the outside,
picketing. She related that she observed Goldberg walking
on the picket line "pounding on the window and shouting
through the window." She became somewhat perturbed at
this, and related that Goldberg said, "You are going to get
yours." Goldberg testified that he did not make this
statement attributed to him by Lovell.
Late in the afternoon of April 1, striker James Green-
wald threatened to strike the automobile of nonstriker
Steven Hartlaub with a picket sign as Hartlaub drove
across the picket line. Greenwald testified that he remem-
bered picketing in front of the building and that an
automobile "started to come in," that he "was holding the
[picket] sign as if it were a cane," and "stopped and lifted
the sign up out of the way." He said that Lovell, who may
have touched his arm, said something to the effect that his
conduct was "not nice."
At approximately 2:45 in the afternoon of April 2, a
nonstriker, Buss Jr. was endeavoring to leave Yellow's
premises. At that point, Goldberg told Buss that he was
going to "get" Buss for taking his job. Although Goldberg
was called as a witness, he was not questioned about this
statement.
About 6:30 on the morning of April 3, nonstrikers Buss
Sr. and Buss Jr. were entering the side door of Yellow's
premises and, at the time, a number of pickets were on the
sidewalk, including Roh, a member of the Union's
bargaining committee, and one Ylvisaker. They were told
that matters were about to get rougher. Neither Roh nor
Ylvisaker was called as a witness, although, so far as it
appears, they could have been.
Shortly after noon on April 4, nonstrikers Woods and
Daggett were in the process of leaving Yellow's premises.
Striker. Goldberg, in the presence of a number of other
strikers, including John August, a union steward, allegedly
told Woods that the latter would be killed if, he continued
driving for Yellow, and also asked Woods if he wished to
fight. Goldberg denied that he had threatened to kill
Woods and testified that, as the taxi cab of Woods came
toward Witte Hall, he was "in front of it" and that Woods
"took off' and almost hit him. Then, as he acknowledged,
he "yelled something" to one Tubby, nicknamed Cheese-
burger, to the effect that he would "stuff him" in a
"meatgrinder or something like that." He denied that he
DAIRY EMPLOYEES, LOCAL 695 649
said he would break both the arms and legs of Cheesebur-
ger.
According to nonstriker Gerry Seely, at approximately
12:15 in the morning, as he was in the dispatch office, an
unidentified picket approached the office window and told
him that he would need a 24-hour armed guard to stay
alive. The Union, quite understandably, adduced no
testimony to controvert Seely.
Lovell testified that she worked on April 5 and, late that
morning, she saw Robert Kilkelly, Yellow's attorney, as he
drove up in his car. She then was at the window in the
office of Kenneth Ossmann, the owner and president of
Yellow, "watching a group of pickets who were talking to
Mr. Micher in the parking lot." William Micher was a
strike replacement. She identified two pickets as striking
employees, Tom Blackwood and Nick Ylvisaker, who were
there with a number of other pickets. She related that
Kilkelly got out of his car and walked over to the group
conversing with Micher and that Victor Wightman, a
striker, went "along the 'empty lot headed toward Mr.
Kilkelly." Ossmann testified that Wightman "pounded on
the picture window and hollered at Russ Daggett that, I
will kill you, Daggett." Daggett was a nonstriker.
Early in the morning of April 1, nonstriker Spataro, as he
tried to enter the premises of Yellow, was forced to stop
because there were some 10 pickets in the driveway. After
stopping, strikers Perna and August came to the car
window and spoke with Spataro for 2 or 3 minutes. During
the course of this conversation, pickets continued to walk
in the driveway in front of Spataro's car and, after the
conversation with Perna and August concluded , Spataro
was allowed to enter the premises. At approximately 1
o'clock that afternoon, Spataro was prevented from leaving
Yellow's premises by strikers Roh, Goldberg,, and another
picket, not identified. Since the pickets walked very slowly
in the drive, Spataro had to stop. While stopped, several
pickets, including Goldberg, Camper, and union steward
Varco, told him that he should come out of the automobile
and fight, so that they could "beat the, living ... out of
me." After about 5 minutes, Spataro proceeded out of the
driveway and, while so doing, an identified picket, who had
been in the group with Goldberg, Camper and Varco,
kicked his automobile. Varco denied that he was present
on that occasion and Camper denied that he made ' any
statement to the foregoing effect. However, there is no
evidence contradicting the fact that Spataro was blocked
or that his automobile was kicked.
At approximately 12:15 a.m. on April 1, nonstriker Mike
Bayles sought to leave Yellow's premises, driving a taxi.
Some 15 to 20 strikers, including Stewards August and
Nealy, either stood or milled about in the driveway. Bayles
stopped some 15 feet away from, the' picket line. Perna
denied that Bayles was blocked from going out, the
driveway and testified that he stopped before the picket
line. There is further testimony that at about 9:45 ' that
morning Bayles was again ' attempting to leave Yellow's
premises with a taxi and that some 10 or 15 strikers stood
in the driveway. Bayles again stopped some feet from the
picket line. There is considerable testimony that the pickets
customarily walked slowly, close to one another and, on
occasion, stopped in the driveway.
There is further testimony that Bayles, also on the
morning of April 1, sought to cross a picket line at the west
entrance to Yellow's premises, but was prevented from
doing so for approximately 5 minutes by about a dozen
pickets, including August and Perna. Many of the pickets
on this occasion were carrying signs supplied by the
Respondent Union. Bayles was unable to enter the
premises until police, who had been called by Ossmann,
arrived. Although August was called as a witness, he did
not deny having taken part in the blocking of Bayles'
automobile . Perna testified that she was present when a
number of people went over to the window of Bayles'
automobile and that she "might have stopped at the front
of the car because he wasn't making an attempt to come
in" and that "as soon as it was clear" that Bayles desired to
enter the driveway "then the people moved away from the
driver's window" and she moved.
There is uncontradicted testimony that during the
afternoon of April 2 nonstrikers Buss Sr. and Buss Jr., in
attempting to leave Yellow 's premises , were prevented
from doing so or were blocked by groups of pickets. On
one occasion, the taxi driven by Buss Jr. was kicked by a
picket who was not identified.
Early in the morning of April 2, Supervisor Showers was
attempting to plow snow on Yellow 's premises and, in that
process, crossed the driveway where the picket line was in
order to pile the snow in one area. On one occasion, while
crossing the picket line, bargaining committeeman Roh
stood between the truck and the extended plow, which
caused Showers to stop. Roh remained in this position for
a few seconds until Showers again began to move slowly.
At the time, there were some 10 unidentified pickets on'the
picket line near Roh. Roh was not called as a witness.
At approximately 9:45 on the morning of April 3, a job
applicant, Betty Speth, came to Yellow's front door. Some
10 or 12 pickets were gathered inside the recess of the door
and Speth was unable to enter. After waiting a moment,
Speth went back to her car. When she returned, in another
attempt to enter, she was "pushed back by at least two girls
in the front row." She identified one of these as Perna. As
she was being pushed she fell and hit her head and back.
Nonstriker Seely testified, without contradiction, that on
the morning of April 4, while he was endeavoring to walk
to Yellow's premises, about eight pickets stood on the
sidewalk and at least partially blocked his progress. While
approaching the door to the premises, he was prevented
from entering by five or six pickets, including Steward and
picket captains Nealy and August and bargaining commit-
teeman Roh. Eventually, Seely was led around to a side
door by Attorney Kilkelly.
On the morning of April 5, Attorney Kilkelly drove to
Yellow's parking lot and observed a nonstriker talking to a
number of strikers in the parking lot. As Kilkelly started to
walk over to the nonstriker, striker Wightman came from
the picket line and stood in Kilkelly 's path and pushed
him. According to Wightman, Kilkelly first pushed him
before he pushed Kilkelly.
There is further testimony about other incidents alleged-
ly occurring at or near the premises of Yellow, but in my
view it would serve no useful purpose to detail these.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Incidents Away From the Employer's Premises
Witnesses produced by counsel for the General Counsel
testified as to a number of incidents which occurred at
various points away from Yellow's premises which, except
as to detail, did not significantly vary from those which
have been related above as having occurred at or near the
premises.
During the morning of April 1, according to nonstnker
Bayles, he was followed to a certain address, where he was
to make a delivery, by strikers Perna, August, and another
unidentified striker. When Bayles came to his automobile
after making the delivery, so he testified, he saw Perna,
who was carrying a picket sign, walking near his cab. He
noted that the left rear view mirror had been broken and
that his cab had been spat upon. As Bayles was entering his
cab, Perna told him, so he testified, that if he wished to see
his child born he should stop driving the cab. Perna
testified that she did not make the statement attributed to
her, but that she did adjust the mirror. She also testified
that she did not spit on the cab. Supervisor Showers
testified that he worked the day Bayles drove his cab and
that he repaired the mirror on the driver's side of Bayles'
cab by replacing the "peg that holds the mirror on the
bracket that holds it on the car."
During the morning of April 2, nonstrikers Buss Sr. and
his son were driving to the State Laboratory on the
university campus, to deliver a package. They were
followed by three strikers, including August and Ylvisaker.
After the senior Buss had made the delivery, August spoke
to him for a few moments about the strike and, as Buss
sought to drive away, August, so Buss testified, opened the
door of the cab and allegedly stated that he wished to
"settle this matter now." August testified that he did not
open the door or make any threatening remarks, but that
he said he wished to finish the conversation. August, when
asked as to the manner in which he spoke to Buss, testified
that because of his "self-consciousness [sic] manner" he
"wanted definitely to finish the conversation because I had
a very emotional feeling about him and about the
conversation and 1, thought that the worse [sic] that could
happen is that he would drive away." He denied that he
told Buss the conversation would end in a fist fight. During
this same conversation, so the younger Buss testified,
Ylvisaker stated that "it would be made very rough for my
dad if he came back to work." The testimony of the
younger Buss in this respect was not denied . Buss Jr. also
related that early on the morning of April 3 he received a
call and, as a result, proceeded to an address on a certain
dead end street. Shortly after he reached his destination,
strikers Perna and Goldberg arrived. He related that as
Perna was talking to him he heard a noise from the rear of
the vehicle. Upon turning around, he observed that the
antenna had been bent, which was not its condition when
he departed from the premises of Yellow.
About 12:15 on the morning of April 4, nonstrikers
Woods and Daggett were driving in the Capitol Square. As
they proceeded, they noticed a 1964 Chevrolet, containing
Perna and another striker named Johnson, and a 1969
Mustang containing Steward Varco and striker Goldberg,
following on, different sides of their vehicle. According to
Woods, the Chevrolet swerved toward the taxi several
times and attempted, so Woods testified, "to force me off
onto the side of the Mustang." Perna admitted that she was
in an automobile following Woods and Daggett as the
latter two were circling the square, and that she and her
associates "just followed them around the square." She
denied that the automobile in which she was riding veered
toward the cab and said that she did not observe the other
striker-driven vehicle deviating from its lane. Some 15
minutes later, nonstrikers Woods and Daggett, while
driving a cab, received a call and proceeded to a certain
address on South Park Street. They were followed by a
1964 Chevrolet and a 1969 Mustang. When they arrived at
their destination, the Chevrolet pulled in front of them and
the Mustang stopped behind. About five pickets, including
Perna and Goldberg, got out of the two automobiles and
began talking to the customers. According to Woods,
Perna and Goldberg "started harassing .the customers" and
advised them that "they shouldn't take the cab because of
the strike." Moreover, Woods related that a striker, whom
he thought to be August, told the customers that they and
the driver of the cab could get hurt if they took the cab.
About 10:30 on the morning of April 4, driver Seely was
followed by two automobiles loaded with pickets after he
left Yellow's garage. He first stopped at a Greyhound
station and, while there, about six pickets carrying picket
signs got out of the automobiles; among them was Perna:
While Seely was attempting to load the passenger's luggage
in the trunk of the cab, Perna slammed the trunk shut.
Perna testified that she had been at the Greyhound bus
terminal near the cab driven by Seely, but denied that she
slammed the trunk as Seely endeavored to place luggage in
it. According to her, Seely pulled up to the curb and,, as he
did so, she noticed "an elderly woman and a young woman
helping her come out of the apartment building." Perna
testified that she and the person accompanying her, went
up to the older woman and that she told the intended
passenger that she remembered her, having driven her
previously. Moreover, she related that she told the lady
that the "person in the cab has never worked" for Yellow,
that it was his first day as a driver, and that "we are on
strike and we'd appreciate if you wouldn't take the cab."
The intended passenger, according to Perna, stated that
she was aware of the labor dispute but that she had to go to
the hospital, whereupon Perna and her associate stated that
they would be "happy" to give her a ride to the hospital,
which they did.
Seely testified that from the Greyhound station he drove
the two passengers to Witte Hall. There, striker Goldberg
picketed the car and told Seely, so the latter testified, that
he would beat up Seely. After the passengers got out of the
cab, so Seely related, Goldberg stood in front of his cab for
a moment and, as Seely endeavored to drive away,
Goldberg "jumped on the hood" of his cab as he was
pulling out and very shortly jumped off. According to
Goldberg, it was necessary for him "to leap on top' of the
hood in order to get out of under the cab" and that "he was
carried some 20 yards" before he fell off. Goldberg stated
that Seely "took off at a moderate speed, slow takeoff
speed." In view of this, counsel for the General Counsel, in
his brief, inquired why "was Goldberg forced to jump on
the hood?" He points out, quite logically, that if Goldberg's
DAIRY EMPLOYEES, LOCAL 695 651
account were true, "comon sense dictates that when the
vehicle came to a stop, the force of inertia would have
thrown Goldberg off the front."
Seely, a nonstriker, testified that at approximately 11 in
the morning of April 4 he received a radio call to proceed
to a certain address. He was followed by pickets who, when
Seely reached his destination, got out of their car and,
carrying picket signs, stood on the sidewalk speaking to the
customers. While this was taking place, Seely stayed in the
taxi. Goldberg approached the window of Seely's car and
stated that he was going to put Seely in a meat grinder and
make hamburger out of him, and, in addition, that he
would break both of Seely's arms and legs if he caught
Seely in an alley. Goldberg denied that he said anything
about breaking Seely's arms and legs although, from the
context, it would appear that he related the incident ' to
what occurred at Witte Hall. After reaching his destination
on the call dust related, Seely received, another message to
go to a certain address. Again he was followed by the
automobiles of strikers . Upon arriving at his destination,
the customer was already in conversation with other
strikers who had arrived earlier. When Seely asked the
customer if he was going to.ride with Yellow Cab, the
customer replied in the negative. While attempting to radio
the dispatch office, Seely's radio would not operate. He
then noticed that the antenna had been broken off and that
Goldberg was at the rear of the automobile near the
antenna. The radio in the taxi had been in operating
condition on the previous call that Seely had received and,
while at that location, an unidentified picket had told Seely
that he would get hurt if he dept dnving. No testimony
controverting Seely in this respect was offered.
On the afternoon of April 4, Woods, a nonstriker, in the
company of his girl friend, Nancy McKenna, went to the
Metropolitan Mall pursuant to a radio call. Upon arriving,
two automobiles that had been observed previously on the
picket line were there, occupied by Greenwald, Hartlaub,
and Ostrom, who, pulled up behind him, and two of the
strikers got out and spoke to the customer. One of the
pickets told Woods that he could be hurt or killed if he
continued to drive; although this individual was not
identified, he had been observed, both before and after this
incident, on the picket line.
The following morning , April 5, Woods, accompanied by
nonstriker Daggett and the latter's girl friend, were
followed to the Excel Inn from Yellow's premises by striker
Wightman and several others who were not identified
except as persons who had been on the picket line. Upon
reaching the inn, two pickets blocked the exit of two
customers from the building. According to Woods,
Wightman stated that he could not wait to find Woods
alone because. he would tear his eyes out and, if Woods
continued to drive, he would be killed. Woods testified that
Wightman then went to Daggett's side of the taxi and, after
speaking to Daggett , returned to Woods' side and told the
latter that Daggett would be killed too. Woods further
testified that as he and Daggett were leaving Wightman
told them that they would wake up dead in the morning if
they continued to drive and that he hoped their health
insurance was paid up. According to Wightman, Woods
stated that he was "going to get" Wightman and then went
into a "diatribe about how hard he was and how many
people he had beaten up and how he wanted to fight me
but he wasn't given the chance."
Seely testified that during the morning of April 5, while
stopped at a traffic light, strikers Ostrom and Thompson
were behind him and that Ostrom, the driver, pushed Seely
into the intersection while Seely had his foot on the brake.
Ostrom denied, having done this, and testified that Seely
pulled into the intersection and stopped; however, he did
admit bumping Seely in the intersection. Thereafter, Seely
left this location and was followed by nonstrikers Kaplan
and Wightman. At about 10:30 in the morning, Seely
stopped at a gas station and. Kaplan and Wightman also
pulled up and, according to Seely, Wightman stated that he
"wanted to let the air out of my tires" and both of them
attempted to pull him out of the cab. As Seely started to
drive away, Wightman kicked off the passenger side mirror
and then walked around to the driver's side and broke that
mirror. Although Wightman appeared as a witness, he did
not deny making the foregoing statements -to Seely;
however, Kaplan, upon being asked if he had yelled out
"threats or anything," replied that "We never said anything
like that." Wightman admitted that he talked of letting the
air out of Seely's tires but stated that'-this was only a joking
statement made in order to afford Seely "a perfect excuse
not to drive."
Early in the afternoon of April 5, nonstriker Woods and
his girl friend proceeded to a supermarket to pick up a
customer, an elderly lady. Woods 'was followed by two cars
containing pickets and, upon arrival, three or four pickets
carrying picket signs got out of the automobiles . Striker
Goldberg stood in front of the taxi door preventing the
customer from entering while several other strikers spoke
to the, customer. Greenwald told the customer that she
would get hurt if she continued to take Yellow cabs. As
Woods started to leave, a picket asked him how it felt
knowing that he would get killed on the job. Although a
number of witnesses for the Respondent appeared who had
been present at the supermarket, none testified as to what
actually happened on that occasion . After leaving the
supermarket with the customer in his taxi, Woods
proceeded to drive her to her destination and, on this
journey, several cars containing strikers followed his cab.
Upon reaching his destination, Woods proceeded to carry
the purchases made by his "customer to her door. An
unidentified picket, who had been seen on the picket line
on several occasions, approached ' Woods as he was
carrying the groceries and told him he would get hurt if he
kept driving a taxi. After making the delivery, Woods was
required to wait several minutes until the automobiles
driven by the pickets were moved.
During the latter part of the afternoon of Aprils, Woods
was dispatched to another destination ' and was followed by
several automobiles containing strikers . Upon arrival, one
of the pickets, whom Woods identified as Camper, grabbed
the door of the taxi and told him to get out of the cab
"right now unless you want to die." Camper denied having
been present on this occasion. While Woods was talking to
striker August, Goldberg was adjacent to the rear passen-
ger tire. Woods asked, him what he had been doing and
Goldberg replied that he had'been letting the air out of the
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tire . As Woods was driving his girl friend home, the rear
passenger tire did go flat. Supervisor Showers testified that
later he tightened the valve core on that tire and put air
into it . In substantial part , the testimony of McKenna, who
accompanied Woods, corroborated that of Woods.
There was testimony that on the morning of May 19,
while the hearing in this case was in process , striker
Goldberg asked nonstriker Seely if he wanted the cheese-
burger that he (Goldberg) had in his hand. Seely made no
response and, according to the testimony, Goldberg then
told Seely in a low voice that if Seely were not out of the
courtroom in 10 minutes two carloads of people would be
sent to his home. Shortly thereafter, Seely left and did not
return' the following day. Goldberg denied that he had
made any such statement to Seely.
C. Discussion and Conclusions
In his brief, counsel for the General Counsel notes that,
while there is considerable evidence from witnesses
produced by the Government that was either admitted or
not denied by the Respondent, there are some credibility
issues . In this regard,, he notes that Government witnesses
"answered questions directly while much of Respondent's
witnesses' testimony was evasive , self-serving or constitut-
ed only vague general denials or conclusions by persons on
the periphery of the misconduct." He also points out that
many witnesses produced by the Government "have
nothing to gain from the proceeding; there is no reason for
them to color or change the testimony in any way." With
respect to witnesses Spataro and Buss Sr. he argues that
"their testimony is even more credible when it is remem-
bered that these two men worked with the strikers and will
work with them again after the strike ; they have risked
future antagonism."
Counsel for the Respondent states that the Supreme
Court has interpreted Section 8 (b)(1)(A) as indicating "that
the Congress sought to protect rank-and-file workers
working at a struck firm from physical violence directed
toward their persons, property , and work tools; economic
reprisals ; and threats of such violence and reprisals. They
were not to be relieved from the usual inconveniences and
psychological pressures which are the lot of those who
cross picket lines to take work." Noting that this section
regulates behavior, he states that in the process of
determining whether the behavior of a union is of a
coercive or restraining nature with respect to other people,
"a decision-maker may take into account that person's
reactions and feelings - subjective facts," and that the
impact of behavior on others as measured by their
subjective reaction "is an element of determining whether
the behavior should be subject to sanction" and that
"direct testimonial -evidence of that reaction is admissible
and probative , although not conclusive ." Finally he points
out that not every person who takes part in a strike
sponsored by a union becomes an agent of that organiza-
tion for the purposes of Section 8(b)(1)(A) and that the
Board',, has consistently ^ held that the responsibility of a
labor organization for strike behavior `is to be determined
by reference to common law principles of agency." He
states that if union leaders actively participate in allegedly
unlawful conduct or have "reliable knowledge of such
behavior before or after the fact, and stand passively by,
thus tacitly approving of such behavior," then the labor
organization becomes responsible for such behavior;
however, the mere presence of a union leader in the
geographical area of violent or threatening conduct does
not in and of itself make the union responsible for such
behavior although presence may be evidence of knowledge.
Turning to the instant case , counsel for the Respondent
states that, assuming that some physical violence or threats
thereof occurred, it 'is incumbent upon the General
Counsel to demonstrate that it is more probable than not
that the persons established to be'agents of the Union, such
as Secretary-Treasurer Rutland and others, including
August and Perna, "either participated in such conduct, or
had actual knowledge of the behavior (before or after the
fact) and actively or passively reinforced such behavior."
He' argues that the incidents involving alleged threats to
Lovell and Kilkelly, by Goldberg and Wightman, respec-
tively, were upon supervisors or independent contractors
acting as agents of Yellow , and that, inasmuch as these
persons are not employees within the meaning of the Act,
the striker conduct against them "cannot be a violation" of
Section 8(b)(1)(A) for the reason that that section "is
designed for the protection of rank-and-file, workers." It is
the contention of counsel for the Respondent that it was
the effort of counsel for the General Counsel to argue that,
although the behavior was directed against nonemployees,
two employees "happened to be physically near," i.e.,
Hartlaub in the case of Lovell and Micher in the case of
Kilkelly, and that these employees "were somehow coerced
and restrained by these transactions." Inhis view, no direct
evidence was adduced that these individuals observed the
transactions and neither was called as, a witness which, he
suggests, indicates' that "had they appeared at trial they
probably would not have supported the claim that they
were restrained or coerced." It is counsel's contention that,
applying general principles, no liability attaches in those
circumstances in which strike replacements or 'nonstrikers
"halted 'their private automobiles or the cabs' they were
driving at points 3 to 5 yards from driveways and adjacent
sidewalks when entering or leaving the premises :" He states
that no nonstriker ever asked to obtain access to premises
of the Employer and was denied, and that there was no
"systematic obstruction of anyone actively seeking to get a
vehicle off or on to the street or Company premises." 'In
consequence, it is his view that there was no violation of
Section 8(b)(l)(A) in these instances, although he' acknowl-
edges that there was inconvenience caused of a purposeful
nature. But he concludes that the "general pressure" 'of
strikes is not "the heart of liability" but, under decisions of
the Supreme Court, only "that picketing which imposes
violence , or threatens violence, 'or in fact keeps 'a non-
striking worker 'out of the premises, violates the law."
I am persuaded that the evidence in th'is'case 'abundantly
establishes 'that agents of the Respondent made numerous
threats 'both at and away from, 'the premises' of Yellow,
blocked the movement of vehicles and persons both at
Yellow's • premises ' and away therefrom, and inflicted
damage ' on Yellow taxi cabs. Such conduct, under well-
established' Board principles, 'is violative of Section
8(b)(1)(A) of the Act. I so find. Concerning the question
DAIRY EMPLOYEES, LOCAL 695 653
whether the Respondent Union is responsible for such
misconduct, I am of the opinion that it is. There can be no
question that the Respondent Union authorized, sanc-
tioned, and organized the strike and the picketing. It had
pickets and picket captains at the -premises of Yellow on a
24-hour basis from the beginning of the strike on April 1.
During the first week of the strike, a business agent of the
Union was present at Yellow's premises at all times. The
Union ordered, paid for, and distributed the picket signs; it
designated picket captains, held daily meetings of picket
captains, and issued instructions to the membership and
the picket captains. It also paid weekly strike benefits to
union 'members who engaged in picketing.
For years the Board, in considering cases arising under
Section 8(b)(1)(A), has held that the traditional tests of
agency would be applied to determine whether a labor
organization should be held responsible for the acts of
individuals. Twenty-seven years ago the Board, in Interna-
tional , Longshoremen's and Warehousemen's Union, C10,-
Local 6, ILWU (Sunset Line and Twine Company), 79
NLRB 1487, 1509 (1948), stated:
A principal may be responsible for the act of his agent
within the scope of the agent's general authority, or the
"scope of his employment" if the agent is a servant,
even though the principal has not specifically author-
ized or indeed may have specifically forbidden the act
in question. It is enough if the principal actually
empowered the agent to represent him in the general
area within which the agent acted.
It is clear that the Union, by instituting the strike and
authorizing pickets to be present on the picket line,
empowered the pickets to act as its representatives and in
its interests . It necessarily follows, therefore, that the
conduct of pickets on the picket line is the responsibility of
the Respondent Union.
There are many decisions which uphold this view. In
Teamsters, Chauffeurs, Helpers & Taxicab Dr(vers Local
Union 327, a/w IBT (Coca-Cola Bottling Works of Nash-
ville), 184 NLRB 84 (1970), the Board adopted the
following statement made by Trial Examiner Bott:
It is well known that in authorized strikes unions are
normally responsible for the acts of authorized pickets.
Threats and the employment of force on a picket line,
even though forbidden, are reasonably to be expected,
and so "within the scope of employment of pickets for
which the labor organization is responsible." 184
NLRB at 94.]
Moreover, it is the obligation of a labor organization
properly to police its picket lines and maintain order or, if
it fails to do so, bear the responsibility of misconduct of
pickets. Thus, in Drivers, Salesmen, Warehousemen, Milk
i John Gibbons, who had been employed by Yellow from November
1970 until June 1972, first as a driver and later as a dispatcher, testified that
on the morning of April 3, as he pulled into the Company's west parking lot,
two or three persons tried to block his car. Later, as Gibbons was talking to
striker August, Secretary-Treasurer Rutland came over and August
identified him as a business agent . Gibbons asked Rutland if the strike was
sanctioned and Rutland assured him that it ,was. Thereupon Gibbons asked
Rutland "what about my getting spit in [the] face and he [Rutland ] Just sort
Processors, Cannery, Dairy Employees and Helpers, Union
Local 695, IBT (Tony Pellitteri Trucking Service, Inc.), 174
NLRB 753, 758 (1969), the Board approved the finding of
the Trial Examiner that "a union which calls a strike and
authorizes picketing must retain control over the pickets in
whatever manner it deems necessary, in order, to 'insure
that they do not act improperly. If a union is unwilling, or
unable, to take the necessary steps to control, its pickets, it
must then bear the responsibility for their misconduct."
More recently the Board, in International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers &
Helpers, Local 696 (The Kargard Company), 196 NLRB 645,
647 (1972), adopted the following findings made by Trial
Examiner Stone:
Board law reveals that where a union authorizes a
picket line, it is required to retain control over the
picketing. If a union is unwilling or unable to take the
necessary steps to control its pickets, it must bear the
responsibility for their misconduct. If a union author-
izes a picket line without supervision or control, it must
bear the responsibility for misconduct on the picket
line. If a union exercises control and supervision on a
picket line, properly disavows and corrects misconduct,
naturally such misconduct would not appear to be
pursuant to its authority.
In the, present case there is no significant evidence that
the Union took any steps to correct the misconduct of
pickets on the picket line, although at all times it had picket
captains stationed there who had authority to control and
direct the pickets. Nevertheless, there is no evidence that
any disciplinary action was taken against any picket or that
the Respondent imposed fines upon anyone or removed
anyone from the picket line. Secretary-Treasurer Rutland
testified that no committee was established to investigate
any misconduct, although the instructions issued to pickets
provided that they were not to "block or obstruct traffic
entering or leaving the plant or terminal" and not to
threaten or shout obscenities to persons entering or leaving
the Employer's premises. With respect to vehicles driven
by nonstrikers, the instructions provided that two or three
pickets were to follow each vehicle leaving the premises but
not to "block, obstruct, threaten or harass non-strikers:"
Rutland testified that he was present on the picket line
only once, and that there were no organized or union-
called meetings of the pickets during the course of the
strike.' Upon the evidence, I find that the Union is
responsible for the conduct of pickets both at and away
from the premises of Yellow . In this connection, it is to be
noted that the Union's' instructions to pickets urged them
to follow taxis and, in its written instructions , stated that
the picket line was "a legal, roving, primary picket line." I
find applicable the observations of Trial Examiner Reel in
Teamsters Local 783, IBT (Coca-Cola Bottling Company of
of shrugged his shoulders ." As the automobile of a nonstriker was
attempting to get in the driveway a "mass of pickets"prevented his,getting
through. Gibbons testified that he asked Rutland why the car could not get
through and Rutland answered that the driver could if he wished to, that he
saw no , one stopping him. Thereupon , so Gibbons testified, he asked
Rutland , "What's he , supposed to do, drive over the people," and that
Rutland Just shrugged his shoulders and,didn't give an answer.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louisville), 160 NLRB 1776, 1779 (1966), where he stated
that where a picket line is a scene of repeated outbreaks
"the union which is in charge of the picketing and which
maintains some supervision over it, is responsible for such
repeated misconduct even though it did not direct the
wrongful action and even if its responsible leaders did not
participate in the action or even themselves observe it." He
further held that ."when a union dispatches pickets to
follow trucks and the pickets repeatedly engage in violence,
the union is legally responsible for the repeated outbreaks
if it takes no effective action to curb the perpetrators and
continues to dispatch the same individuals on similar
picket duty with similar consequences." The Board, in
agreeing with Trial Examiner Reel, stated that it did so
"based on the fact that Respondent, which authorized the
strike , knew of the acts of misconduct and violence but
took no steps reasonably calculated effectively to stop such
acts."
Finally, the suggestion of counsel for the Respondent
that the impact of behavior on others, as measured by the
subjective reaction of such persons, is an element in
determining whether behavior should be the subject of
sanctions is not determinative. The Board has long held
that the test of misconduct is not whether it succeeds or
fails but, rather, whether the alleged offender engaged in
conduct which tends to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed them in
the Act: Thus, in Local 542, International Union of
Operating Engineers [Giles & Ransome] v. N.L.R.B., 328
F.2d 850, 852 (C.A. 3, 1964), cert. denied 379 U.S. 826; the
court stated that the circumstance "that no one was in fact
coerced or intimidated is of no relevance. The test of
coercion and intimidation is not whether the misconduct
proves effective. The test is whether the misconduct is such
that, under the circumstances existing, it may reasonably
tend to coerce or intimidate employees in the exercise of
rights protected under the Act." Upon all the evidence, I
conclude' and find that the Respondent Union engaged in
conduct, as detailed above, both at and away from the
premises of Yellow, violative of Section 8(b)(1)(A) of the
Act.2
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship 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.
IV. THE REMEDY
Having found that the Respondent has engaged in and is
engaging in certain unfair labor practices, it shall be
2 In so finding, I have resolved conflicts in testimony concerning
disputed incidents in favor of the version given by witnesses for the General
Counsel, as I view their accounts to be the more logical and credible.
3 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
recommended that it cease and desist therefrom, and take,
certain affirmative action designed to effectuate the
policies of the Act.
In view of the -nature of the unfair labor practices
committed, the commission by the Respondent of similar
and other unfair labor practices may be anticipated. It
shall, therefore, be recommended that the Respondent
cease and desist from in any manner restraining or
coercing employees in their rights guaranteed by Section 7,
of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Yellow Cab & Transfer Co. is an employer within
the meaning of Section 2(6) and (7) of the Act.
2. Drivers, Salesmen, Warehousemen, Milk Processors,
Cannery, Dairy Employees and Helpers Union Local No.
695, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Drivers, Salesmen, Warehousemen, Milk Processors,
Cannery, Dairy Employees and Helpers Union Local No.
695, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, has violated Section 8(b)(1)(A) of the Act
through the commission of acts of restraint and coercion
which interfere with the exercise of rights. of employees
guaranteed by Section 7 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.
Upon the foregoing fmdings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Respondent, Drivers, Salesmen, Warehousemen, Milk
Processors, Cannery, Dairy Employees and Helpers Union
Local No. 695, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees of the Yellow Cab
& Transfer Co. by physical assaults upon employees and
supervisors, by harming employees or supervisors other-
wise; by threatening to harm or otherwise to engage in
reprisals against employees, their families, or other per-
sons; by following or harassing employees; by damaging,
or threatening to damage, vehicles or other property of the
Employer, or other persons; by mass picketing; or by
otherwise barring or hindering ingress to or egress from
Yellow Cab & Transfer Co. premises in order to discourage
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
DAIRY EMPLOYEES , LOCAL 695 655
such employees in the exercise of their right not to join or
support any strike.
(b) In any other manner restraining or coercing employ-
ees in the exercise of rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which will
effectuate the policies, of the Act:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix. " 4 Copies of said
notice, on forms provided by the Regional Director for
Region 30, after being duly signed by its representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
4 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
where notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent to, insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Sign, as aforesaid, and mail sufficient copies of the
said attached notice to the Regional Director for Region
30, for posting at the Yellow Cab, & Transfer Co., the
Employer being willing, at places where notices to
employees are customarily, posted. Such copies of the
notice shall be furnished the Respondent by the said
Regional Director.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to , comply-herewith.
to a Judgment of the United States Court of Appeals Enfoicmg_an Order of
the National Labor Relations Board " -
11