Diamond National Glass Co.

National Labor Relations Board - Board Decisions

Jun 30, 1995

317 N.L.R.B. 1048 (N.L.R.B. 1995)

1048
317 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge’s recommended Order required the Respondent to
cease and desist from its unlawful conduct, post the notice at its fa-
cility, and mail a copy of the notice ‘‘to each of the picketers who
picketed Respondent’s premises during the picketing which com-
menced on July 20 or 21, 1993.’’ In its exceptions, the Respondent
contends that the judge erred in requiring, without explanation, that
the notice be mailed to picketers, who are not employees of Re-
spondent, including those who were not present at the Respondent’s
facility at the time of the unlawful conduct. Although we agree with
the judge that under the circumstances of this case it is appropriate
to make the notice reasonably available to picketers, we find that in-
dividual mail notice to each picketer, and particularly to those not
present during the incident found unlawful, is unnecessary to effec-
tuate the policies of the Act. We therefore modify the remedy to re-
quire the Respondent to post the notice at its facility and mail a copy
of the notice to the Union for posting.
Diamond National Glass Company, a Division of
Diamond Worldwide Industries, Inc. and Gla-
ziers, Architectural Metal & Glass Workers
Union, Local 636, International Brotherhood of
Painters and Allied Trades, AFL–CIO. Case
21–CA–29616
June 30, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On November 21, 1994, Administrative Law Judge
Earldean V.S. Robbins issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Dia-
mond National Glass Company, a Division of Dia-
mond Worldwide Industries, Inc., Paramount, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Mail a copy of the notice for posting to Gla-
ziers, Architectural Metal & Glass Workers Union,
Local 636, International Brotherhood of Painters and
Allied Trades, AFL–CIO.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice and mail a
copy of this notice for posting to Glaziers, Architec-
tural Metal & Glass Workers Union, Local 636, Inter-
national Brotherhood of Painters and Allied Trades,
AFL–CIO.
WE WILL NOT condone and/or ratify our employees’
assault, or attempted assault, of union picketers with
company trucks.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
DIAMOND GLASS COMPANY, A DIVISION OF DIA-
MOND WORLDWIDE INDUSTRIES, INC.
Yvette H. Holliday-Curtis, Esq., for the General Counsel.
Herbert A. Moss, of Santa Ana, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge. This
case was heard before me in Los Angeles, California, on
April 21, 1994. The charge was filed by Glaziers, Architec-
tural, Metal & Glass Workers Union, Local 636, Inter-
national Brotherhood of Painters and Allied Trades, AFL–
CIO (the Union), on September 13, 1993, and served on Dia-
mond National Glass Company, a Division of Diamond
Worldwide Industries, Inc. (Respondent), on September 14,
1993. The complaint, which issued on October 26, 1993, al-
leges violations of Section 8(a)(1) of the National Labor Re-
lations Act (the Act). The principal issues herein are whether
employee Steven Blackwood assaulted and/or attempted to
assault union picketers with Respondent’s truck; and, if so,
whether this action was condoned and/or ratified by Re-
spondent.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
posthearing briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent, a California cor-
poration with an office and place of business in Paramount,
California, has been engaged as a glazing contractor in the
construction industry. During the 12-month period preceding
the issuance of the complaint herein, Respondent, in the
course and conduct of its business operations, purchased and
received at its Paramount, California facility goods and mate-
1049DIAMOND NATIONAL GLASS CO.
1 Unless otherwise indicated, all dates herein are in 1993.
2 Respondent’s president, Gary Brown, testified that Respondent
has parked trucks at the curb before and from time to time has re-
ceived parking tickets for doing so.
3 I do not credit Blackwood’s testimony that he parked about 6 to
7 feet from the curb and about 3 feet from the chairs and the picket-
ers.
4 Blackwood testified that when he returned to the facility, he also
called the police.
5 It is undisputed that, at the time, Respondent’s parking lot was
not full. Blackwood, however, claims that only two parking spaces
were available.
6 Brown’s testimony does not include any mention of the truck,
however, he does not specifically deny Blackwood’s testimony that
he said the picketers were accusing him of hitting them with the
truck.
rials valued in excess of $50,000 directly from suppliers lo-
cated outside the State of California.
The complaint alleges, the parties stipulate, and I find that
Respondent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
at all times material herein Respondent has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent’s facility is located at the top of the curve of
a cul-de-sac. Its parking lot is in front of the facility, with
two driveways to the street. One driveways leads to the of-
fice and one to the warehouse and parking area. There are
no sidewalks along the cul-de-sac, but there are 2-hour park-
ing spaces at the 60- to 70-foot-long curb between the drive-
ways (the curb parking space).
Following the October 31, 1992 expiration of its collec-
tive-bargaining agreement with Respondent, the Union com-
menced picketing Respondent’s facility during the first week
of November 1992, which picketing continued until July 9,
1993,1 when the Union lost a representation election. The
Union commenced picketing again on July 20 or 21 with
signs protesting Respondent’s refusal to hire two named
union glaziers. The parties stipulate that the picketing was
lawful. The picket line consisted of several picketers who pa-
trolled, carrying signs, along the curve of the cul-de-sac.
The picketers parked their vehicles at the curb parking
space until they were informed by the sheriff that the vehi-
cles would have to be moved every 2 hours. Thereafter they
parked elsewhere but placed folding chairs in the curb park-
ing space where they sat when they were not patrolling. In
mid-July, after the second picketing began, Respondent
began parking at least one of its trucks at the curb parking
space.2 Prior thereto, Respondent’s trucks were parked inside
the warehouse at night and in the parking lot during the day.
Further, on at least one occasion in mid-July, when one of
Respondent’s trucks was moved from that space, one of Re-
spondent’s employees moved his personal vehicle from the
parking lot to the parking space just vacated by Respondent’s
truck.
On July 28, when picket line captain Ben Arreola arrived
at the facility about 5:20 a.m., he reserved space for the
picketers by parking his van at the curb parking space. By
6:05 a.m., four other picketers had arrived. At that time,
Arreola moved his van and the picketers set up chairs in the
vacated parking space. Five or ten minutes later, one of Re-
spondent’s trucks driven by Respondent’s employee Steve
Blackwood began to slowly exit Respondent’s facility by the
driveway immediately adjacent to where picketers were seat-
ed or standing in the curb parking space. It is undisputed that
Blackwood asked the picketers to move so he could park
there; and that they refused, stating they were there first.
However, what occurred thereafter is disputed.
I credit Arreola and picketer Lynn John Gross as to what
occurred. They corroborate each other and are further cor-
roborated by the testimony of Deputy Sheriff Holly Perez as
to what she observed when she was dispatched to the scene.
I find, in accordance with the testimony of Gross and
Arreola, that Blackwood exited the driveway, turned to the
left and began inching the truck, at an angle, into the parking
space where they were seated. Blackwood continued to inch
the truck forward parallel to, and about 2 to 4 feet from, the
curb until he ran over the tip of Gross’ toe and grazed the
back of Arreola’s left leg and shoulder with the glass rack
mounted on the side of the truck, pushing him one or two
feet.3 Blackwood then stopped the truck and went into Re-
spondent’s facility. Blackwood denies hitting anyone with the
truck or having any intent to do so. He admits, however, that
when he stopped the truck, he heard one of the picketers say,
‘‘Oh, this guy just ran me over.’’ Another picketer laughed
and said, ‘‘Yeah, Yeah, call the cops. I’m a witness.’’
Arreola telephoned the sheriff’s department.4 When Dep-
uty Perez and another deputy responded to the call, Arreola
identified Blackwood as the driver of the truck and showed
them the truck, which Perez observed to be parked about 1
inch from two of the chairs and on top of the metal frame
of another chair. Arreola reported that the truck struck him
in the back and Perez observed a scratch/abrasion injury ap-
proximately 12 to 14 inches in length which ran from his
knee up the back of his thigh. Gross reported that the truck
had run over his toe. When Perez spoke to Blackwood, he
said he wanted to move the truck from the parking lot onto
the street because the picketers had no right to be there.
Blackwood was arrested, however, the district attorney elect-
ed not to prosecute.
Blackwood testified that he moved the truck onto the street
because a large delivery of glass was expected that day in
a 40-foot tractor-trailer rig and space was needed in the park-
ing lot to accommodate the unloading.5 The closest available
street parking was out of sight, around the corner, and unac-
ceptable because the truck was fully loaded.
Both Blackwood and Respondent’s president, Gary Brown,
admit that when Blackwood returned inside the facility,
Brown inquired what was going on and Blackwood re-
sponded that the picketers were accusing him of hitting them.
Blackwood specifically testified that he told Brown, ‘‘These
guys out here are accusing me of hitting them with the
truck.’’6 Brown did not respond. Brown admits he made no
further attempt to find out what had happened either from
Blackwood or the deputy, although he admits observing the
deputies speaking to, and arresting, Blackwood. He also testi-
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Although Blackwood actually hit only two of the picketers with
the truck, I find that he engaged in an attempted assault of all the
picketers stationed at the curb parking space.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
fied that he has no knowledge as to what actually occurred
between Blackwood and the picketers, and that he did not
speak to the picketers.
After Blackwood was arrested, but before the deputies left
the area, Brown went outside to where the truck was parked.
According to Gross and Arreola, he asked them to move so
he could park the truck. According to Brown, he did not
speak to the picketers, but rather, asked the deputies to tell
the picketers to move so he could park the truck. The depu-
ties declined to become involved. The picketers did not move
and Brown parked the truck in the parking lot. According to
Brown, he moved the truck because it was in the middle of
the street. Brown further testified that he is not involved with
all deliveries and had no knowledge as to whether a big de-
livery was expected that day.
There is no contention that Respondent instructed Black-
wood to assault the picketers with the truck. However, it is
stipulated that it was Respondent’s truck and that at the time
of the incident, Blackwood was acting in the course of his
employment.
B. Conclusions
It is well established that an employer is liable for unfair
labor practices committed by a rank-and-file employee who
acts as the agent of the employer. In determining agency sta-
tus, the Board applies common law principles, particularly
that of apparent authority and ratification. Whether the spe-
cific conduct was actually authorized or subsequently ratified
is not controlling. Apparent authority results from a mani-
festation by the employer to a third party that creates a rea-
sonable basis to believe that the employee’s conduct was au-
thorized by the employer. Thus, either the principal must in-
tend to cause the third person to believe that the agent is au-
thorized to act for him, or the principal should realize that
his conduct is likely to create such belief. The test is wheth-
er, under all the circumstances, the employees ‘‘would rea-
sonably believe that the employee in question (alleged agent)
was reflecting company policy and speaking and acting for
management.’’ Waterbed World, 286 NLRB 425 (1987);
Great American Products, 312 NLRB 962 (1993).
Ratification is ‘‘the affirmance by a person of a prior act
that did not bind him but which was done or professedly
done on his account, whereby the act, as to some or all per-
sons, is given effect as if originally authorized by him.’’ Re-
statement 2d, Agency § 82. Section 83 defines ‘‘affirmance’’
as either (a) a manifestation of an election by one on whose
account an unauthorized act has been done to treat the act
as authorized, or (b) conduct by him justifiable only if there
were such an election. Finally, Section 94 states that [a]n af-
firmance of an unauthorized transaction can be inferred from
a failure to repudiate it.’’ Service Employees Local 87 (West
Bay Maintenance), 291 NLRB 82 (1988); Dentech Corp.,
294 NLRB 924 (1989).
Applying these principles, I find that Respondent is re-
sponsible for Blackwood’s conduct in assaulting, and at-
tempting to assault,7 the picketers with Respondent’s truck.
Generally, Respondent’s trucks had been parked in the ware-
house or the parking lot. However, following the picketers
use of the curb parking space, Respondent began parking its
trucks in that space. This reasonably created the belief by the
picketers that Respondent was trying to prevent them from
using the parking space, and that Blackwood’s parking of the
truck was in implementation of this goal.
Clearly, Blackwood parked the truck in the course of his
job duties. His comment to the deputy that he moved the
truck into the curb parking space because the picketers had
no right to be there indicated that he moved the truck into
the curb parking space with the intent to interfere with the
picketing activity. Subsequently, Brown not only failed to
take any affirmative steps to disassociate Respondent from
Blackwood’s actions, but made the same request, as had
Blackwood, that the picketers move from the parking space.
In these circumstances, I find that Brown should have known
that his conduct, coupled with the earlier attempts to use Re-
spondent’s parked trucks to prevent use of the space by pick-
eters, would likely create the belief that Blackwood acted
with Respondent’s knowledge and approval. I therefore find
that Brown affirmed Blackwood’s conduct and that Black-
wood had apparent authority to assault and/or attempt to as-
sault the picketers with Respondent’s truck. Accordingly, I
find that Respondent violated Section 8(a)(1) of the Act by
Blackwood’s assault, and attempted assault, of the picketers.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By condoning and ratifying an employee’s assault, and
attempted assault, of union picketers with a company truck,
Respondent has violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, it is recommended that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Since posting of the notice
in the usual places will not reach the picketers, I shall rec-
ommend that, in addition to the usual posting, copies of the
notice, after being signed by Respondent’s authorized rep-
resentative, be reproduced and mailed to each picketer who
picketed Respondent’s premises during the picketing which
commenced on July 20 or 21, 1993.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Diamond National Glass Company, a Di-
vision of Diamond Worldwide Industries, Inc., Paramount,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
1051DIAMOND NATIONAL GLASS CO.
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Condoning and ratifying its employees’ assault, and/or
attempted assault, of union picketers with company trucks.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Paramount, California, copies of
the attached notice marked ‘‘Appendix.’’9 Copies of the no-
tice, on forms provided by the Regional Director for Region
21, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) After the aforesaid notices have been signed by an au-
thorized representative of Respondent, copies shall be dupli-
cated and mailed by Respondent to each of the picketers who
picketed Respondent premises during the picketing which
commenced on July 20 or 21, 1993.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.