District 50, Allied And Technical Workers

National Labor Relations Board - Board Decisions

Sep 5, 1972

198 N.L.R.B. 1184 (N.L.R.B. 1972)

1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 50, Allied and Technical Workers, Local
14055 and Austin Company. Case 7-CB-2549
FINDINGS AND CONCLUSIONS
1. JURISDICTION
September 5, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On June 13, 1972, Trial Examiner Melvin Pollack
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a
supporting brief, and the Charging Party filed an
answering brief to Respondent's exceptions.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
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 Trial Examiner and hereby orders
that the Respondent, District 50, Allied and Techni-
cal Workers, Local 14055, Bay City, Michigan, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's recommend-
ed Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: This case was heard
on April 25, 1972,1 at Bay City, Michigan, pursuant to a
charge filed on February 8, and a complaint issued on
March 7 and amended on April 4. The complaint alleges
that Respondent District 50, Allied and Technical Work-
ers, Local 14055, engaged in mass obstructive picketing
and other conduct violative of Section 8(a)(1)(A) of the
National Labor Relations Act, as amended. The General
Counsel and the Respondent presented oral argument at
the conclusion of the hearing. The Respondent and the
Charging Party have filed briefs. Upon the entire record,
and my observation of the witnesses as they testified, I
make the following.
I All dates are in 1972 unless otherwise stated
The Austin Company, herein referred to as Austin, an
Ohio corporation , furnishes construction and maintenance
services to industrial and commercial concerns in various
states, including the Dow Chemical Co., herein referred to
as Dow , as its plant in Bay City, Michigan . During the year
ending December 31, 1971, a representative period , Austin
performed maintenance services for Dow valued at more
than $3,000,000 . Respondent concedes that Dow is an
employer under the Act. I find that Austin and Dow are
employers within the meaning of Section 2 (6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
District 50, Allied and Technical Workers, Local 14055,
herein referred to as the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Union represents the Dow employees at the Bay
City, Michigan, plant. The Union called a strike on
February 6 and picketing of the Bay City plant began on
February 7. The strike and picketing were still going on
when this case was heard on April 25. This case is
concerned with picketing incidents at the East Gate and
South Main Gate of the Bay City plant.
A. The Picketing at the East Gate
A driveway off Wilder Road in Bay City leads to the
East Gate of the Dow plant. The driveway is about 50 feet
wide and 150 feet long. The entrance to the driveway was
partially blocked during the week of February 7 by cars
parked on either side, leaving a space from 12 to 15 feet
wide for the passage of cars. A varying number of pickets
occupied this space during the incidents described below.
On Monday morning, February 7, Harold Smith, an
Austin unit superintendent, was permitted to drive through
when he identified himself to the pickets as a salaried
Austin employee. Smith recognized three of the pickets as
Dow employees Larry Dean, Bill Schmidt, and Carl Heim.
Another Austin employee, Chief Clerk Frank Schreck, had
to stop his car because the pickets stood in the driveway.
Several pickets approached the car and asked Schreck
what he wanted to do. Schreck said he wanted to go to
work. He was told to "take a vacation for today, since
nobody else is going in." Schreck backed out and left.
Superintendent Smith was the only Austin employee to
enter the plant that day.
On Tuesday, February 8, at 7 a.m., South and attorney
Borda drove up to the driveway entrance, which was again
partially blocked by vehicles on both sides of the driveway.
They stopped at the picket line and got out of the car.
Larry Dean said to Smith, "I remember you from
yesterday and I'm going to remember you for a long time."
Borda identified himself as the lawyer for Austin. Smith
198 NLRB No. 179
DISTRICT 50, ALLIED AND TECHNICAL WORKERS
and Borda returned to their car and drove into the plant.
They were told that Union President Raymond Arnot was
"in the line" and returned to the picket line to talk to
Arnot. Borda asked Arnot about a telephone call the night
before. At this point, Union Vice President Clarence
Walczak said , "I feel these men are harassing our picket
line and if they don't stop , we'll not be responsible for what
happens." Chief Clerk Frank Schreck was stopped again
by the pickets when he attempted to enter the plant that
morning. The man who had spoken to him on Monday
said, "Well, you took yesterday off, why don't you take
today off too." Schreck backed his car out and left.
On Wednesday morning, February 9, Superintendent
Smith again drove to the driveway entrance . He pulled up
at the picket line. Union President Arnot walked over to
the side of his car . Smith said he was a salaried supervisor
and was not going to do any of the strikers ' work. Arnot
said, "Oh, well you're one of the scabs. Go ahead. Just
don't hit anybody ." Smith parked his car inside the gate
and walked back to the picket line where he saw a "great
number of people" step in front of a car driven by Al Bell,
an Austin employee. Bell backed up and "pulled off the
side of the road ." Smith walked over to Bell and told him
to "stick around for a while until we see what 's going to
happen ." That morning Schreck tried a third time to enter
the plant. He told the pickets he was "on salary" and had
nothing to do with their jobs. Someone shouted, "Lay
down. He's trying to get in." Schreck was asked, "Well,
what are you going to do now?" Schreck said , "Do you
think I 'm crazy," and left.2 Austin Project Superintendent
Owen Colley and Project Supervisor Jerry Barton were
permitted to drive past the picket line after they had
identified themselves . Colley parked the car and walked
back across the picket line and spoke to several Austin
employees whose cars were parked in the vicinity. That
morning Colley observed from 10 to 28 pickets who
blocked "cars that drove up to the line."
On Friday morning, February 11, the Austin employees
formed a caravan of 60-75 cars headed by Colley. Some 50
pickets stood in the partially blocked entrance to the
driveway. The sheriff and four deputies cleared the way for
the passage of the caravan . As Colley drove through , picket
Jerry McPeak, a Dow employee, wearing a chain around
his waist, bumped Colley's car. The pickets closed in
behind Colley's car and blocked the next car driven by
Superintendent Smith . The sheriff told Smith to "keep
proceeding slowly ahead. They'll move." Smith followed
the sheriff's instructions and the pickets moved away and
then closed in to block the next car. The pickets repeated
this maneuver of blocking each car and then moving away,
so that it took about 1-1/2 hours before the last car in the
caravan passed through the picket line.
On Tuesday morning, March 28, three or four pickets
stood in the driveway , so preventing a truck which had
delivered a load of gravel from leaving the plant. Project
Superintendent Colley called the sheriff, who cleared the
pickets from the driveway. The truckdriver returned to the
plant several times that day with additional loads of gravel.
1185
He was held up by the pickets and lost about 1-1/2 hours
waiting for the sheriff to get him in and out of the plant.
On Wednesday morning, April 12, Superintendent
Colley found Wilder Road blocked by a "mass of people"
in the area around the Dow plant Main Gate, which is
about 1 ,000 feet from the East Gate. Colley used an
alternate way to get to the East Gate entrance way. As he
approached the East Gate picket line, he observed "boards
with nails in them completely across the road from the
pickets." He asked a deputy sheriff on the scene to remove
the boards . The deputy sheriff did so and said to Colley,
"Wait a few minutes . The sheriff's coming. Don't go
through ." The sheriff arrived in about 10 minutes and
spoke to the pickets . The pickets moved out of the way and
Colley entered the plant . The Austin employees , who were
parked in their cars along Wilder Avenue , did not report
for work that day. Colley had observed 20 to 25 men
talking to them.
On Thursday morning, April 13 , the sheriff cleared four
pickets out of the way and Colley drove through to the
plant . Austin employees behind him in their cars were
again spoken to by a group of men along the sides of
Wilder Road and did not report to work that day.
Superintendent Smith found Wilder Road blocked at the
Main Gate area by "a lot of people milling around in the
road." Smith had a cup of coffee in a nearby restaurant
and then tried again to drive down Wilder Road to the
East Gate . He was stopped by a deputy sheriff who said,
"The women are having a march down the road and its
going to take them quite a while."
On Friday, April 14 , the pickets stepped out of the way
and permitted Colley to enter the driveway to the East
Gate . Colley drove 30-50 feet and stopped his car because
a large mass of nails had been dumped out of a barrel onto
the driveway . Colley walked past the picket line and spoke
to several Austin employees , who said they would report
for work if the nails were picked up. Colley obtained a
magnet and cleared the driveway . A number of Dow
employees spoke to the Austin employees parked along
Wilder Road , Colley, Smith , and two office employees
were the only Austin employees to report for work that
day.
On Tuesday , April 18, the pickets at the East Gate
stopped a truckdriver delivering a load of concrete and
spoke to him . Superintendent Smith came over and asked
what was the problem . Picket Larry Dean said, "Is Austin
going to hire this man after he loses his union card ?" Smith
said the Teamsters local had cleared the East Gate for their
truckdrivers . The driver went into the plant, made a
telephone call, returned to the picket line, and drove into
the plant . The driver delivered additional loads of concrete
through the East Gate that day.
J
B. The Picketing at the South Main Gate
The Union maintained picket lines before the entrances
to the refinery on the Dow premises . James Gardner, a
Dow salesman acting as a security officer during the strike,
testified to several incidents at the South Main Gate to the
2 Schreck estimated that 30 to 35 men blocked the driveway with
approximately 6 to 10 men "directly in front" of his car.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refinery. On Wednesday, February 16, Gardner observed
picket Glen Knopp, Jr., use a mirror with a 3-foot diameter
to flash sunlight into the eyes of a salaried Dow employee
operating a refinery truck. Knopp began to reflect light
into the driver's eyes as he was loading an extremely
inflammable material into the truck. Knopp continued to
shine light into the driver' s face "as he was proceeding
back out to the picket line."
On Wednesday, March 22, Gardner was at the picket
line waiting for someone from the sheriff's department to
clear the way for a truck blocked by the pickets. Three men
pulled up in a car, including President Arnot and Vice
President Walczak of the Union. Arnot joined the pickets
and started walking back and forth before the truck.
Gardner was standing at the Dow property line. Walczak
came over to him and said that Gardner had no right to
step across the Dow property line and, if he did so,
Walczak would knock his teeth down his throat and if that
was not sufficient he would beat his head in. The union
officers spoke to the pickets for about 10 minutes and left.
About 15 minutes later, a deputy sheriff arrived and
cleared the way for the truck to enter the refinery.
On Wednesday, March 29, Gardner saw Jerry Brandell,
a Dow employee, place a spike before the right drive wheel
of a truck trying to get through the picket line.3 Gardner
had seen similar spikes placed on Prairie Street, the street
before the South Main Gate, and at two other entrances to
the refinery area.
On another occasion, Gardner saw roofing nails thrown
into Prairie Street from a housetrailer used by the pickets.
When Gardner tried to pick the nails up, picket Terrance
McPeak tried to step on his fingers. Gardner called the
sheriff so that he could clean up the area.
C. Conclusions
about 1-1/2 hours waiting for the sheriff to- get him in and
out of the plant.
4. By blocking Superintendent Colley's car in the
presence of Austin employees on April 13 until the sheriff
directed the pickets to move out of the way.
5. By blocking a truck at the South Main Gate on
March 22 until a deputy sheriff ordered the pickets away. I
further find, in connection with this incident, that
Respondent violated Section 8(b)(1)(A) of the Act by
Walczak's threat of physical harm to Acting Security
Officer Gardner.
On Wednesday, February 16, a picket used a mirror to
reflect sunlight into the eyes of a Dow employee as he
drove a truck out of the South Main Gate. On March 29,
Acting Security Officer Gardner saw a picket place a spike
before the wheel of a truck trying to get through the picket
line at the South Main Gate. Gardner at other times
observed spikes before the entrances to the refinery area
and, on one occasion, he saw roofing nails thrown into the
street before the South Main Gate from a housetrailer used
by the pickets. On April 12, Superintendent Colley had to
stop his car before reaching the East Gate because boards
with nails had been placed in the driveway. Colley was
again delayed on April 14 by a large quantity of nails
dumped on the driveway.
I consider it unlikely that the foregoing events would not
have come to the attention of Arnot and Walczak.
Although pickets were clearly involved in several of them,
Respondent did nothing to repudiate the conduct of the
pickets. I find, accordingly, as alleged in the complaint,
that Respondent violated Section 8(b)(1)(A) by impeding
access to the Dow plant by placing spikes and nails in
roadways, and by reflecting sunlight into a truckdriver's
eyes.
President Arnot and Vice President Walczak were at the
picket line on the mornings of February 8 and 9 when the
pickets blocked the driveway to the East Gate and
prevented Schreck and other Austin employees from
reporting to work. Arnot and Walczak also participated in
the blocking of a truck at the South Main Gate on March
22. I find from these circumstances that Respondent is
responsible for the conduct of its pickets in blocking
Austin supervisors and employees, and employees of other
employers from entering the Dow premises. Cf. United
Electrical Radio and Machine Workers of America (U.E.)
and its Local 218, 178 NLRB 284, 285-286. Accordingly, I
find that Respondent violated Section 8(b)(1)(A) of the Act
by the following conduct:
1. By blocking the driveway to the East Gate on
February 7, 8, and 9 and turning away Schmidt and other
Austin employees who attempted to go to work.
2. By obstructing the caravan of cars driven by Austin
supervisors and employees on February 11.
3. By blocking a truck attempting to deliver loads of
gravel to Austin on March 28, so that the driver spent
CONCLUSIONS OF LAW
1. The Austin Company and Dow Chemical Co. are
employers within the meaning of Section 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. The Union has engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act.
THE REMEDY
It having been found that the Union has engaged in
conduct violative of Section 8(b)(I)(A) of the Act, it will be
recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: 4
3 The spike was a metal rod sharpened at both ends and so twisted as to findings, conclusions , recommendations , and Order herein shall, as
come up with a sharpened end no matter how dropped provided in Section 102 48 of the Rules and Regulations , be adopted by the
4 In the event no exceptions are filed as provided by Section 102 46 of Board and become its findings , conclusions, and Order, and all objections
the Rules and Regulations of the National Labor Relations Board , the thereto shall be deemed waived for all purposes.
DISTRICT 50, ALLIED AND TECHNICAL WORKERS 1187
ORDER
Respondent , District 50, Allied and Technical Workers,
Local 14055, its officers , agents, and representatives , shall:
1. Cease and desist from:
(a) By its pickets, blocking ingress to and egress from the
Dow Chemical Co.'s Bay City, Michigan plant for
employees and supervisors of Austin Company, Dow
Chemical Co ., and other employers.
(b) Threatening with physical harm any employee
working for Dow Chemical Co., Austin Company, or any
other employer doing business with Dow Chemical Co. or
Austin Company during a strike by Respondent against
the Dow Chemical Co.
(c) Blocking ingress to and egress from the Dow plant by
placing spikes and nails in roadways.
(d) Blocking egress from the Dow plant by using mirrors
to reflect sunlight into truckdrivers' eyes.
(e) In any like or related manner , restraining or coercing
employees 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 the Union's offices and meeting halls copies
of the attached notice marked "Appendix ." 5 Copies of said
notice , on forms provided by the Regional Director for
Region 7 , shall, after being duly signed by an official
representative of the Union, be posted by it immediately
upon receipt thereof , and be maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to its members are customarily
posted . Reasonable steps shall be taken by the Union to
insure that said notices are not altered , defaced , or covered
by any other material.
(b) Mail to the Regional Director for Region 7 signed
copies of the notice for posting by Dow Chemical Co. and
Austin Company, said employers being willing, at all
locations where notices to their employees are customarily
posted.
(c) Notify said Regional Director , in writing, within 20
days from the receipt of this Decision what steps have been
taken to comply herewith .6
5 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 be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board
6 In the event that this recommended Order is adopted by the Board,
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 7, in writing , within 20 days from
the date of this Order, what steps Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify members of District 50, Allied and
Technical Workers Local 14055 and all employees of Dow
Chemical Co. and Austin Co. that:
WE WILL NOT, by our pickets prevent employees of
Austin Company, Dow Chemical Co., or other employ-
ers from entering or leaving the Dow Chemical Co.'s
Bay City, Michigan, premises, by blocking their cars,
trucks, or other vehicles.
WE WILL NOT threaten with physical harm any
employee of Dow Chemical Co. or Austin Company, or
any other employer doing business with Dow Chemical
Co. or Austin Company, during a strike against the
Dow Chemical Co.
WE WILL NOT block access to or egress from the Dow
plant by placing spikes and nails in roadways, or by
using mirrors to reflect sunlight into truckdrivers' eyes.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their rights under
the Act.
DISTRICT 50, ALLIED AND
TECHNICAL WORKERS,
LOCAL 14055
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.