Int'l Woodworkers of America (Region 5)

National Labor Relations Board - Board Decisions

Jan 14, 1963

140 N.L.R.B. 602 (N.L.R.B. 1963)

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To protect himself, the worker tries to get as much as possible for his life. By
himself this is difficult with employers organized. He can be broken like a stick. But
breaking a bundle of sticks is not so easy Men are forced by circumstances to
organize. Unionism has brought about better working conditions, more leisure
for the worker to enjoy his life, reasonable pay, more job security, vacations, pen-
sions and many other benefits It is an ignorant man who values his life cheaply, sells
it cheaply and works long weeks to make his employer rich to the extent that he
keeps himself poor.
Well-paid organized labor is good for business in any town or city. The more
the worker earns, the more he has to spend on his needs. The more he has to spend,
the better for the merchant, the farmer and everyone else.
Come to the meeting Tuesday and let us reason together.
1/25/62
UNITED STEELWORKERS OF AMERICA
APPENDIX B
Martin J. Brewer Andrew Hendley Marcellus H. Threlkeld
Steve J. Giva Alva T. Lynch Robert B. Turner
Milford Scott
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to a recommendation of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify you that.
WE WILL NOT discourage membership in or activities on behalf of United
Steelworkers of America, AFL-CIO, or any other labor organization, by refusing
to reinstate or in any other manner discriminating against employees in regard
to their hire or tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in any
other concerted activities for the purpose of collective bargaining or other
mutual air or protection, or to refrain from any or all such activities.
WE WILL make whole the following named individuals for any loss of pay
they may have suffered by reason of the discrimination against them:
Martin J. Brewer Alva J Lynch Robert B. Turner
Steve J Giva Milford Scott Gerald Williams
Andrew Hendley Marcellus H. Threlkeld
R C. CAN COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone No
Edison 5-5341, if they have any question concerning this notice or compliance with
its provisions.
International Woodworkers of America, AFL-CIO (Region 5)
and Pioneer Lumber Corporation. C, a.se .Yo. 6-CB-922. Janti-
arP1 14, 196-3
DECISION AND ORDER
On August 9, 1962, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above-entitled proceeding , finding that
140 NLRB No. 61.
INT'L WOODWORKERS OF AMERICA ( REGION 5) 603
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejuricial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report and the entire record in the case, including the exceptions
and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications and addi-
tions noted below.1
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
'We do not adopt the Trial Examiner's finding of "condonation " in his footnote 16,
based on Campbell 's statement at the conference with the law enforcement officers
Rather , we find , such statement was an attempted justification of the pickets ' unlawful
conduct and not "condonation " thereof.
In addition to the reasons advanced by the Trial Examiner for finding Respondent
responsible for the unlawful acts of the pickets , we also rely on the constitution of the
Respondent , in support of such conclusion Thus, under the constitution , the Respondent
Council is formed by the locals of the geographical area and its officers and executive
board are directly elected by the members of the locals, per capita taxes aie collected
from the members of the locals for its support and, In turn , Respondent expends its funds
in assisting the locals in organizing , local members also pay a monthly tax for a Council
emergency fund which is used , inter alia, for strike benefits Moreover, article IX, sec-
tion 4 , of the constitution provides the manner and method of the expenditure of such
benefits, Including a requirement that the local establish a strike committee to administer
the benefits under conditions laid down therein, one of which is the performance of picket
duty or other strike duty prescribed by the strike committee
INTERMEDIATE REPORT
The charge herein was served upon the Respondent on April 17, 1962, and the
complaint was issued on May 29. Hearing was held before Trial Examiner Sidney
Sherman on June 21, 1962, at Elkins, West Virginia. The issues litigated were
whether International Woodworkers of America, AFL-CIO (Region 5) 1 violated
Section 8(b)(1)(A) of the Act by alleged strike misconduct. After the hearing
the Respondent and General Counsel filed briefs.
Upon the entire record and my observation of the witnesses, I adopt the following
findings and conclusions:
I. THE BUSINESS OF THE COMPANY
Pioneer Lumber Corporation, a West Virginia corporation, hereinafter called
the Company, maintains its principal office and plant at Dailey, West Virginia.
It commenced operations at that plant on October 1, 1961, where it engaged in
the processing, sale, and distribution of lumber and wood products. The complaint
alleges, and the answer admits, that the value of goods shipped from said plant
t Hereinafter called the Respondent. It appears from the record that the official name
of the Respondent Is Southern States Regional Council, Region V, International Wood-
workers of America, AFL-CIO, and it is so designated In my Recommended Order, below
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since October 1, 1961 , to out-of-State points, if projected over a 12-month period,
would exceed $ 50,000.
I find that the Company is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to assert jurisdiction herein.
It. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find, that the Respondent is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint as amended at the hearing alleges that Respondent on various
dates in the spring of 1962 2 (1) prevented employees and supervisors of the Com-
pany from entering or leaving the plant, ( 2) inflicted , and threatened to inflict , bodily
harm on such employees and supervisors because of their refusal to honor Respond-
ent's picket line, ( 3) threatened employees with loss of employment for failing to
observe the picket line, and ( 4) placed sharp objects in roadways and parking lots
used by employees and supervisors , and that by such acts the Respondent violated
Section 8 ( b) (1) (A) of the Act.
The answer controverts these allegations.
The Strike
Local 5-198 of the Respondent had been in existence at the Company 's plant
for some time prior to the events related below. However, when , in December
1961, a representation petition was filed with the Board , it was not filed by the
Local but by a body with which the Local was affiliated , the Respondent , and, on
January 24 , the Respondent was certified as the representative of the employees
Soon thereafter the Company met in negotiations with Campbell , a representative
of the Respondent , and a bargaining committee consisting of members of the Local.
On March 22 , dissatisfied with the progress of negotiations , the employees voted
to strike. Picketing began on March 23 and continued to the date of the hearing.
Threats
On March 23, the first day of the strike , a group of pickets , including picket captain
Mauller,3 approached Supervisor Victor Dingess and his son , MacArthur, on the
plant premises . Mauller asked MacArthur to join the strikers and, upon being
rebuffed , asserted that when the strike was settled MacArthur would not have a job.
On March 26, Victor Dingess and his son , on their way home, passed a group
of pickets which included Mauller and Huffman, a member of the bargaining com-
mittee. Huffman adjured the elder Dingess to keep his son out of the plant, adding,
we are going to get him and we are going to get you , too, if you don't keep
him out of here." Although the younger Dingess , who was walking ahead of his
father, did not hear this threat , it was reported to him soon afterward by his father.
Obstruction of Ingress and Egress
On March 24, Supervisor McDaniels and employees Cook and Weese approached
the walkway leading to the dimension mill on the plant premises ; 10 to 15 pickets
were massed in front of , and near, the walkway , which was only 3 feet wide. The
pickets did not prevent McDaniels from entering , but when Weese and Cook attempted
to follow they were attacked by the pickets . Among them was Roy Welch , who, after
declaring that no one was going through , seized Weese and forced him to the ground.
As the attackers drew off , one of them , Hogue, asserted that Cook and Weese would
"never go in no more." Campbell arrived on the scene toward the end of the incident.
The next day, Supervisor Roth, while driving out of the plant grounds, was con-
fronted by three pickets waving clubs. One of the pickets remained in the path of
Roth's car until the last moment , before jumping aside to avoid being struck. As
the car passed the pickets , Roth heard some "thumps " on the side of the car A
fourth picket was on the scene but did not participate actively in the incident.
On March 27 , 6 employees and 3 supervisors approached a line of about 20
pickets assembled around the walkway to the dimension mill. One of the employees
and two of the supervisors crossed the line without interference . However, when
'All events hereinafter related occurred in 1962 unless otherwise stated
3 Manlier was also president of the Local and chairman of the bargainine committee
INT'L WOODWORKERS OF AMERICA ( REGION 5) 605
Supervisor Dingess next attempted to pass through, the pickets closed ranks and
blocked his path, one of the pickets asserting that he would not be allowed to pass.
When Dingess attempted to push his way between two of the pickets, they attacked
him as well as several of the employees who were attempting to enter with him.
Dingess was struck several blows about the head and was kicked in the ribs, causing
him to fall to the ground. Weese was also struck by a picket about the head.
Cook, Shockey, and Dingess' son, MacArthur, were similarly attacked, the last
by Roy Welch. Police intervention brought an end to the incident.
All the findings as to the foregoing incidents are based on the uncontroverted
and credible testimony of General Counsel's witnesses. There was conflicting testi-
mony, however , relating to the nail-throwing incidents next discussed.
Supervisor Price testified that on April 30 he observed Iseli, a striker, crouched
near the gate of one of the private roads leading from the highway to the Com-
pany's plant, that his hands were stretched out in front of him, that he moved
across the road in that posture, that Respondent's representative, Gorman, was
near Iseli and was pointing at the area in which Iseli was operating , and that about
10 minutes later Price approached the gate with another supervisor and picked up
30 to 35 roofing nails, together with 2 pieces of tin or other material adorned by a
cluster of nails, with the points sticking up.4 According to Price, Gorman was still
at the gate when the nails were picked up but made no comment.
Weese testified that early in May, while a company truck was leaving by the
south road, he saw Gorman make a motion as if throwing some objects under the
wheels of the truck. Cook testified about a similar incident, which he reported to
Supervisor Roth. Roth corroborated this, testifying that upon investigating the
area indicated by Cook, he found a couple of handfuls of nails on both the Company
side and the public side of the gate to the south road, and that Gorman was standing
nearby.
While admitting having seen nails on company premises, Gorman testified that
he had had to pick up tacks from the area between the gate to the south road and
the highway ,to protect his own tires.5 He denied that he had placed any nails in plant
approaches or had seen any of the pickets do so.0
It is clear that roofing nails were found at various times in May along the south
entrance to the plant in the vicinity of the picket station at that point. However, I
was favorably impressed by Gorman's demeanor and I credit his denial that he ever
participated in, or observed, any nail throwing by strikers. In view of this, and as
the General Counsel's witnesses in testifying about the foregoing incidents were un-
able to state positively either that Iseli was throwing 7 anything on the road or that
the objects in Gorman 's hands were nails or similar objects, I find that the General
Counsel has not established by the preponderance of the evidence that Gorman, or
that Iseli in Gorman 's presence , was involved in any nail-throwing incident a
Findings of Coercion
Upon consideration of the foregoing , I find to be coercive the following conduct:
1. Mauller's threat on March 23 that MacArthur Dingess would lose his job if he
did not join the strike.9
2. The attack on Cook and Weese on March 24, as they sought to enter the
dimension mill.
3. The brandishing of clubs and striking of Roth 's car as he drove out of the plant
grounds on March 25.10
4 General Counsel's Exhibits Nos 3 and 4
'There was a picket station at this point , which was frequented by Gorman
6 Gorman testified credibly that about the middle of April he had seen unidentified
individuals throw nails on the south road , and that he had rebuked them and picked up
the nails He also testified that on two occasions he had seen company supervisors throw
nails into areas occupied by strikers' cars The supervisors involved did not dispute the
after testimony and, in one case, frankly admitted the conduct charged
7 Price was not certain whether Iseh was placing objects on the road or picking them up.
8It is hardly likely that any Company employee would throw nails in the entrance to
the south road , which was used by employees ' cars as well as by company trucks How-
ever, there is nothing in the record to negate the possibility that the nails were placed
there without the knowledge of Gorman, by persons sympathizing with the strikers
9 See Harbor Carriers of the Port of New York . 136 NLRB 815
IU The fact that this incident was observed only by strikers is immaterial 11' T Smith
Lumber Company, 116 NLRB 507, 508
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The threat on March 26 to "get" Victor Dingess and his son."
5. The barring of ingress to the dimension mill on March 27, and the related attack
on Victor Dingess, his son, Weese, Cook, and Shockey.12
Responsibility of Respondent
Respondent contends that even if it be found that the pickets engaged in coercive
conduct, Respondent may not be charged therewith, as the pickets were not its agents,
and their misconduct was not authorized, condoned, or ratified by Respondent's
agents.
However, it is undisputed that agents of the Local either participated in certain
of the foregoing acts or witnessed such acts without repudiating them Thus, Mauller,
who was president of the Local as well as picket captain and chairman of the bar-
gaining committee, uttered the threat of March 23 and was on the scene when Huff-
man delivered the threat of March 26. Huffman, himself, was a member of the
Local's bargaining committee. Roy Welch, who, as related above, participated
actively in the attacks of March 24 and 27, was a member of the Local's bargaining
committee.
I find therefore that the Local was responsible for all the misconduct of the pickets
related above, since such pickets were either officers of the Local or members of
its bargaining committee 13 or were following the example set by such representatives
in the incidents of March 23, 24, and 26.14
There remains the question whether the liability of the Local for such misconduct
may be imputed to the Respondent. The record shows that the Respondent was the
certified representative of the employees at the struck plant, that the Local collaborated
with the Respondent in contract negotiations, that the strike was called by the Local in
aid of such negotiations and was approved by the Respondent, and that Campbell, the
Respondent's representative, played a significant role in the management of the
strike. According to his own testimony, he advised the Local bow to organize and
conduct the picketing, and was in frequent attendance at or near the picket lines until
he was relieved by Gorman in the afternoon of March 27, after the affray of that date
related above He also represented the pickets on March 24 and 26 in negotiations
with local law enforcement agencies concerning measures to be taken to maintain
order during the strike. Gorman admitted that the Respondent gave financial aid to
the strikers and that he, himself, was on the picket line every day of the strike after
March 27, giving advice to the strikers and attending to their material needs
In view of all the foregoing circumstances, I find that the Respondent and the Local
were engaged in a joint venture 15 and that the Respondent was therefore responsible
for the acts of the Local's agents, in connection with the conduct of the picketing 16
11 United Steelworkers of America, AFL-CIO, and Local No 2772, etc (Vatlcan-
Cincinnati, Inc ), 137 NLRB 95
12 Respondent appears to contend that the attack was provoked by Victor Dingess'
attempt to force his way through the pickets However, the record is clear that the
pickets presented a solid front to Dingess, thereby effectively barring his ingress, even
before he engaged in any provocative conduct Moreover, the nominal force exerted by
Dingess to effect entry did not justify the violence of the attack upon him, or, a fortiori,
upon the others, who were innocent of any provocation
12 Although there was no evidence as to the authority of the bargaining committee with
respect to the strike, the Board has held a union chargeable with strike misconduct con-
doned by a member of its grievance committee, even though there was no evidence that
lie had any special function in connection with the strike. United Steelworkers of
America, 4FL-CIO, and Local No 2772, etc (Vulcan-Cincinnati, Inc ), 137 NLRB 95
Sherman Welch and Hogue, who participated in the incidents of March 24 and 27, were
members of the bargaining committee at the time of the hearing, but were not such at
the time of those incidents. Accordingly, they are not treated as agents of the Local for
the purpose of this case.
14 Stephenson Brick & Tile Company, 129 NLRB 6, 10, W T Smith Lumber Coin pane,
satpra, at p. 509.
15 United Steelworkers of America, AFL-CIO, and Local No 2772, etc (Vulcan-
Cincinnati, Inc ), .supra; Cory Corporation, 84 NLRB 972
10 In view of this finding it is unnecessary to evaluate the conflicting evidence in the
record concerning the extent of Campbell's involvement in the incidents of March 23
and 24 As I have imputed to the Respondent responsibility for the coercive acts of the
Local's agents, any misconduct of its own agents would not be essential to a violation
finding Conversely, the fact that Campbell, as he testified, counseled the strikers not to
engage in violence or other misconduct could not exonerate the Respondent, as its re-
INT'L WOODWORKERS OF AMERICA (REGION 5) 607
It follows, and I find, that the Respondent violated Section 8(b) (1) (A) by reason
of the incidents of March 23, 24, 25, 26, and 27, related above.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with
the operations of the Company, as set forth in Section I of this report, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it be required to cease and desist therefrom and take certain
affirmative action deemed necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I adopt the following.
CONCLUSIONS OF LAW
1. Pioneer Lumber Corporation is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
3. By restraining and coercing employees of Pioneer Lumber Corporation in the
exercise of rights guaranteed by Section 7 of the Act, the Respondent has violated
Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case and the foregoing findings of fact and conclu-
sions of law, it is recommended that the Respondent, Southern States Regional
Council, Region V, International Woodworkers of America, AFL-CIO,17 Its officers,
representatives, agents, successors, and assigns, shall be required to:
1. Cease and desist from threatening employees of Pioneer Lumber Corporation
with bodily harm or loss of employment, inflicting bodily harm upon them, barring
their ingress to, or egress from, their place of employment, or in any like or related
manner restraining or coercing them in the exercise of the rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action, which is deemed necessary to effectuate
the policies of the Act:
(a) Post in conspicuous places in the Respondent's business office, and in places
where notices to members of its affiliated Local 5-198 are customarily posted, copies
of the attached notice marked "Appendix." 18 Copies of said notice, to be furnished
by the Regional Director for the Sixth Region, shall, after being duly signed by an
official representative of the Respondent, be posted by the Respondent immediately
upon receipt thereof and be maintained by it for 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Sixth Region signed copies of the
aforementioned notice for posting by Pioneer Lumber Corporation, if it be willing,
in places where notices to employees are customarily posted. Copies of said notice,
to be furnished by the Regional Director for the Sixth Region, shall, after being
sponsibility is predicated not on any condonation by Campbell of coercive acts, but on
the conduct of agents of the Local. However, if evidence of condonation of picket line
misconduct by Campbell be deemed material, I would find such condonation on the basis
of the credible testimony of Wilson, the Company's general manager, that at one of his
meetings with local law enforcement agents, Campbell defended the misconduct of the
pickets on March 24 on the ground that they were merely "protecting their . . jobs."
(Campbell did not directly contradict this testimony.)
"ISee footnote 1, above.
"If this Recommended Order Is adopted by the Board , the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner "
If the Board's Order is enforced by a decree of a United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Courts of Appeals, Enforcing an Order "
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed by the Respondent as indicated , be forthwith returned to, the Regional Director
for disposition by him.
(c) Notify the Regional Director for the Sixth Region , in writing , within 20 days
from the date of receipt of this intermediate Report , what steps have been taken
to comply herewith.ls
10 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing , within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR OFFICERS AND AGENTS AND TO ALL MEMBERS OF LOCAL 5-198
INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES
OF PIONEER LUMBER CORPORATION
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as -amended, we hereby notify you that:
WE WILL NOT threaten to inflict, or inflict, bodily harm upon, or threaten with
loss of employment, employees at the plant of Pioneer Lumber Corporation at
Dailey, West Virginia, in order to prevent them from crossing our picket lines,
and we will not bar their ingress to, or egress from, said plant.
WE WILL NOT, in any like or related manner, restrain or coerce employees
of Pioneer Lumber Corporation in the exercise of the rights guaranteed by
Section 7 of the Act, as amended, including the right to refrain from any and
all concerted activities.
SOUTHERN STATES REGIONAL COUNCIL,
REGION V, INTERNATIONAL WOOD-
WORKERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 2107 Clark
Building, 701-717 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone No. Grant
1-2977, if they have any question concerning this notice or compliance with its
provisions.
Spartan Department Stores I and Retail Clerks International
Association , AFL-CIO, Local 1680, Petitioner. Case No. 16-RC-
3163. January 14, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John F. White, hearing offi-
cer. The hearing officer 's rulings are free from prejudicial error and
are hereby affirmed 2
1 The hearing officer, without objection, granted leave to amend the petition to name
all operators of licensed departments as parties to this proceeding. Because these parties
received adequate notice and since we find them to be joint employers of the employees
in the unit sought by Petitioner, we hereby amend the caption to include the following
parties as Employers: Marrud, Inc. ; Miles Shoe Corporation ; Benjamin Kraft & Sons,
Inc. ; Kay Jewelry Stores, Inc. ; Dine-O-Rama, Inc. ; Play-More Sales Company, Inc. ;
Top Value Auto Supply ; Babdo Sales, Inc. Appliances, Inc. ; and Crank Drug Store.
2 At the hearing, Retail & Department Store Employees, Amalgamated Clothing Work-
ers, AFL-CIO, hereinafter referred to as the Intervenor, moved to dismiss the petition
on the following grounds: (1) The petition failed to list its name as a labor organization
140 NLRB No. 59.