Local 888 of Int'l Union, United Automobile, Etc.

National Labor Relations Board - Board DecisionsSep 27, 1963

144 N.L.R.B. 897 (N.L.R.B. 1963)

LOCAL 888 OF INT'L UNION, UNITED AUTOMOBILE, ETC . 897 Local No. 888 of the International Union , United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, and its Agents , Donnie Riggs, George Riggs, and Noah Barga and Miami Plating Co. International Union, United Automobile , Aerospace and Agri- cultural Implement Workers of America, UAW-AFL-CIO, and its Agent, Edgar Hinton and Miami Plating Co. Cases Nos, 9-CB-1086-1 and 9-CB-1086-2. September 27, 1963 DECISION AND ORDER On May 29,1963, Trial Examiner Sidney Sherman issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 Interme- diate 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 Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report and the entire record in the case, including the excep- tions and brief, and hereby adopts the findings, conclusions 2 and recommendations 3 of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following modification : 1. The prefatory paragraph of the Recommended Order is amended by deleting therefrom the words "and its Agents, Donnie Riggs, George H. Riggs." 1 Respondent 's request for oral argument is denied as, in our opinion , the record, in- cluding the exceptions and brief , adequately present the issues and positions of the parties. 2 We find it unnecessary to adopt or pass upon the Trial Examiner ' s holding that a respondent may be responsible for incidents which occurred outside the presence of its agent, inasmuch as the facts here reveal that an official of the Respondent was in fact present at each event herein. 3 We do not adopt the Trial Examiner's statement that the local would be bound by the conduct of pickets only if they were acting as its agents and that, as agents of the Union, pickets are liable as Respondents for their conduct on the picket line and subject to a remedial order . The basis of union responsibility for improper conduct by pickets is not an agency relationship of the pickets . Rather, it is responsible because it instigated or fostered the improper conduct. Accordingly , we shall dismiss the complaint insofar as it names the individual pickets as Respondents and shall modify the remedial order accordingly. 144 NLRB No. 84. 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The following shall be added to the Recommended Order as a new paragraph 3: 3. IT IS FURTHER ORDERED that the complaint insofar as it alleges that Donnie Riggs and George H. Riggs, as Agents of Local No. 888, violated Section 8(b) (1) (A), be, and it hereby is, dismissed. INTERMEDIATE REPORT The charges herein were served on Respondents on January 8, 1963, a consolidated complaint issued on February 21, and the case was heard before Trial Examiner Sidney Sherman at Dayton, Ohio, on April 10 and 11. The issues litigated were whether the Respondents violated Section 8(b)(1)(A) of the Act by blocking plant entrances, and by assaulting, and threatening to assault, employees and other persons. After the hearing, briefs were filed by the General Counsel and the Respondents. Upon the basis of the entire record,' and from my observation of the witnesses, I adopt the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Miami Plating Co., hereinafter called the Company, is an Ohio corporation, and is engaged at its plant in Dayton, Ohio, in the business of processing and repairing auto- mobile parts. During the year ending June 30, 1962, the Company shipped products valued at more than $50,000 from its plant to retail automobile dealers within the State of Ohio, each of whom had annual gross sales in excess of $500,000, and received from out-of-State points automobiles valued in excess of $50,000. During the same period the Company received directly from out-of-State points supplies valued in excess of $2,400. It is found 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. II. THE LABOR ORGANIZATIONS INVOLVED Local No. 888 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, hereinafter sometimes called the Respondent Unions, are labor organizations as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint as amended at the hearing, alleges that the Respondents violated Section 8(b)(1)(A) of the Act by barring ingress to the Company's plant and by assaulting and threatening to assault employees and others as they attempted to enter or leave the plant. A. Sequence of events A contract between the Company and the Respondent Unions covering the em- ployees at the instant plan expired on November 30 in the midst of negotiations for a new contract. The union negotiators were Hinton, an International representative of the UAW, and Roberts and Barga, the members of Local 888's bargaining com- mittee. On November 30 the contract was orally extended to December 7 to permit further negotiations. No agreement having been reached on December 7, the employees struck at midnight of that day. About 9 a in. on December 8, Carey, the president of the Company, seeking to enter the plant, was met near the plant entrance by a group of pickets, including Barga and the three Riggs brothers (Donnie, George, and Joe). There is conflicting evidence, which will be considered later, as to what efforts the pickets made to deter Carey from entering the plant. It is clear, however, that Carey did not enter but returned to his car. In the meantime, George, one of the Company's driver-salesmen , had arrived on the scene. Carey signaled him to leave and both drove off. Early in the morning of December 10, when George and another driver-salesman, Booker, drove up in a truck, they were accosted at the plant entrance by several pickets, including Barga and George Riggs. There followed an incident involving 1 See Appendix B for corrections of the record. LOCAL 888 OF INT'L UNION, UNITED AUTOMOBILE, ETC. 899 physical contact between the driver-salesmen and the pickets, the details of which will be considered later. At the direction of a deputy sheriff, who intervened, the driver-salesmen left the premises. The next day the two driver-salesmen drove up to the plant entrance in their trucks, with Jurick, the Company's vice president and general manager. Upon emerging from the lead truck, Jurick was addressed by the pickets, the nature of the remarks being in dispute. At Jurick's direction, the driver-salesmen made no effort to enter the plant, but backed away from the company parking lot and remained in their vehicles on a public street near the plant for about half an hour, until they received instructions regarding their assignment for the day, whereupon they drove off. B. Discussion 1. The coercive acts a. The Carey incident on December 8 Carey testified that about 9 a.m. on December 8, when he arrived at the plant park- ing lot, his car was surrounded by a group of pickets , including Barga and the three Riggs brothers , ( Donnie, George , and Joe); that Barga told him he could not enter the plant; that he nevertheless proceeded to the door of the plant and inserted a key in the lock; that Donie Riggs threw his arms about Carey's chest and spun him around, causing some slight damage to his clothing ; that Charles George ( a company salesman ) had in the meantime driven up in his truck ; that Carey, after signaling George to leave, drove off; and that Carey returned later that day with a deputy sheriff and entered the plant. George asserted that he drove up during the encounter between Carey and the pickets and saw Donnie Riggs pinion Carey and spin him around , whereupon Carey motioned George to leave and he drove off. Barga denied the admonitory remark imputed to him by Carey , and was cor- roborated in this respect by Joe and Donnie Riggs. As for his alleged assault on Carey, Donnie Riggs testified that, when Carey drove up, the witness announced that the men were on strike and asked Carey to respect the picket line; and that, when Carey, nevertheless , got out of the car, the witness repeated those remarks and laid his hand on Carey's shoulder, after Carey had walked past him. The foregoing version was corroborated by Barga, and by Joe and George Riggs. All these witnesses agreed , however, with Carey and George, that, after the foregoing events, Carey returned to his car and, after signaling George to leave, drove away himself. I was more favorably impressed by the demeanor of Carey and George than by that of Respondents ' witnesses 2 Accordingly, I credit Carey and George and find that on December 8 Donnie Riggs attacked Carey to prevent him from entering the plant, and that such attack was coercive within the meaning of Section 8 (b) (1) (A).3 b. The George incident on December 8 George testified that, immediately after observing the incident last described and before leaving in response to Carey's signal, he was approached by three or four pickets, and one of them-Barga-told the witness that the employees were striking and that he could not go into the plant. Barga, on the other hand, insisted that he merely asked George to honor the picket line, and he was corroborated on this point by Donnie Riggs. For reasons already stated, I credit George as against Barga and Donnie Riggs, and find that immediately after Donnie Riggs attacked Carey, as found above, Barga told George he could not go into the plant, which 2 Moreover, Donnie Riggs' version fails to supply a credible explanation for his conduct. When asked why he laid his hand on Carey's shoulder, Donnie Riggs answered that he thought that Carey had not heard his initial remarks and that the witness wanted Carey "to hear what [he] had to say." However, while Donnie Riggs' testimony was silent on this point, his brothers and Barga acknowledged that, when Donnie Riggs first called Carey's attention to the fact that the men were on strike, Carey answered that he was aware of that fact Absent any direct contradiction of the foregoing estimony, I credit it, and, in view thereof, find incredible Donnie Riggs' testimony that he thought that Carey had not heard him. s See footnote 15, below, for a discussion of Respondents ' contention that any attack by Donnie Riggs upon Carey could not be deemed coercive under Section 8(b) (1) (A) because "all the employee spectators joined in the alleged misconduct." 727-083-64--vol. 144-58 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessarily implied to him, particularly in view of Carey's experience, that any effort by him to enter would be resisted by force. I find therefore that Barga's remark was coercive. c. The George-Booker incident on December 10 Charles George testified that in the morning of December 10 he and the other salesman, Booker, drove into the plant parking lot in a truck; that a group of pickets, including Barga, were stationed between the truck and the plant entrance; that, as he reached the picket line, Barba declared that he was "not going in" and pushed him back, that when George, after retaliating in kind, attempted to walk around him, Barga jumped on his back; and that at this point a deputy sheriff emerged from the plant and directed George and Booker to leave, which they did According to Booker, when he and George got out of the truck, the pickets ap- proached and declared that they could not go in, and when he, nevertheless, started toward the plant entrance he was pushed back by George Riggs, whereupon he re- taliated in kind, but eventually found himself backed up against the wall of the plant by his adversary. At this point the deputy intervened. Carey testified that he ar- rived on the scene during the foregoing incident; that there were six pickets on hand; that he saw the pickets pushing Booker and George; and that he saw Booker "pinned" against the front wall of the plant by George Riggs. Jurick testified that, observing the incident from a plant window, he saw Barga push Charles George. George Riggs admitted that on the occasion in question the pickets were standing in close formation between the truck and the plant entrance, but both he and Barga insisted that it was the salesman who pushed against the pickets, rather than the contrary, and that the pickets offered no resistance. They denied further that the pickets warned the salesmen against going in. Frank, president of Local No. 888, testified that he witnessed the foregoing inci- dent from his automobile, which was parked on a public street abutting the plant premises; that he saw the salesmen push the pickets; that Barga did not jump on George's back; and that George Riggs was pushed by Booker against the front wall of the plant. Frank, was a singularly unimpressive witness, both from the standpoint of de- meanor and the tenor of his testimony.4 Murphy, a former president of a sister local of Local No. 888, testified that on December 10 he was sitting in Frank's car and observed the encounter between the salesmen and the pickets; that he was present because Frank had asked him to lend his "moral support", that he was not certain whether there was enough room for a man to walk between the pickets; that the salesmen walked or "piled" into the pickets; that "some scuffling developed"; that all he saw "was some pushing that went on"; and that he did not see any picket get on the back of a salesman. Murphy was hardly a disinterested witness, and his testimony was marred by vagueness Moreover, even if his version were credited, it would not suffice to ex- onerate the Respondents. Clearly, his testimony that there was a "scuffle" and "some pushing" falls short of corroborating the testimony of Respondents' other witnesses that the salesmen pushed against unresisting pickets, and is, if anything, more consistent with the salesmen's version that there was pushing on both sides. While he directly contradicted George's testimony about Barga's jumping on his back, I do not credit him in this respect, as George impressed me as a more candid and reliable 5 witness, the specificity of his testimony being in striking contrast to Murphy's vagueness. As for George Riggs and Barga, their demeanor impressed me less favorably than that of Booker and Charles George. Moreover, Jurick and Carey, whom I have found to be a credible witness, corroborated the testimony of Booker and George that the pickets resisted their advance by pushing against them. Accordingly, I credit George and Booker, and find that on December 10, several pickets, including George Riggs and Barga, placed themselves in close formation across the salesmen 's path as they sought to enter the plant, announced , in effect, that they would not be allowed to enter and pushed against them when they sought to go through the picket line; that, when Charles George sought to walk around 4 Although George Riggs admitted , as related above, that the pickets were standing in close formation, Frank asserted that they were about 10 feet apart. Frank's testimony is marred, moreover , by frequent resort to evasive and argumentative answers 6 The unreliability of Murphy 's recollection of the incident is demonstrated by his in- sistence that the salesmen arrived in two trucks, whereas all the other witnesses who testified on this point agreed that they arrived together in the same truck. LOCAL 888 OF INT'L UNION, UNITED AUTOMOBILE, ETC. 901 him, Barga leaped on his back; and that George Riggs pushed Booker against the front wall of the plant. I find further that such conduct of the pickets was coercive.6 d. The December 11 incident Jurick testified that about 9 a.m. on December 11 he arrived in the vicinity of the plant in a truck driven by Charles George, with Booker following in another truck; that Jurick emerged from the truck on the public street in front of the plant, and instructed George and Booker to pull into the plant parking lot; that International Representative Hinton remarked that if "Jurick was trying to bring the trucks in" he was "asking for trouble"; that Joe Riggs, standing nearby, echoed this sentiment; that some pickets stationed themselves between George's lead truck and the entrance to the plant parking lot and one of them, Donnie Riggs, shook his fist at George shouting, "You get out of that truck and I'll show you what I'll do to you"; that Jurick signaled the trucks to leave, and started toward the plant, whereupon Donnie Riggs advanced toward him, saying, "Don't you get smart, or I'll change your face"; that George Riggs chimed in with a threat to alter a different part of Jurick's anatomy; that Hinton was less than 10 feet away at the time; and that, after leaving the scene, the salesmen parked their trucks some distance from the plant and waited for half an hour until they received instructions, by way of radio receivers installed in the trucks, to see as many of their outside customers as possible, and did not return to the plant that day. Charles George testified that, on the occasion in question, as his truck approached the plant gate, the pickets formed a line across his path, forcing him to stop; that he recognized the three Riggs brothers, Barga, and another picket; and that Donnie Riggs threatened him, as related above by Jurick. He was not asked about the threats allegedly addressed to Jurick. Booker corroborated the foregoing testimony as to the blocking of the trucks' ingress by the picket line, but testified that he did not hear any statements by the pickets and that he could not recognize the pickets because he did not "pay that much attention." Both Booker and George could not recall having seen Hinton during the foregoing incident. Frank testified that he was in the vicinity of the plant at the time and saw Jurick arrive with George and Booker, but denied that he observed any untoward incident. Barga and the three Riggs brothers admitted that they were at the scene but insisted there were no threats. According to Joe Riggs, the pickets merely asked Jurick to honor the picket line. All these witnesses denied that the pickets formed a line in front of the trucks. Hinton denied that he was at the plant at any time during the morning in question and he was corroborated in varying degrees by Barga and Frank, and by the three Riggs brothers. However, only Barga and Frank were unequivocal in their denial that Hinton was on the scene, and Frank's credibility in this regard is impaired not only by the considerations already cited but also by his admitted inability to recall what pickets were on the scene other than Joe Riggs. The testimony of Barga, as well as that of the Riggs brothers, has been rejected as to other matters. In denying that there were any threats at all, on December 11, Joe Riggs repre- sented the pickets here, as elsewhere, as merely asking Jurick to honor the picket line. However, the rest of Respondents' witnesses would not concede even that much, insisting that there were no statements at all by the pickets to Jurick or the salesmen on December 11. 6 Respondents contend that thefact that the deputy sheriff directed George and Booker to return to their trucks indicates that in his judgment they were the ones who provoked the incident of December 10. However, apart from the hearsay nature of such evidence, it is clear that the deputy did not arrive on the scene until toward the end of the incident and so could not have determined who had initiated the fracas Respondents would have an adverse inference drawn from the failure of the General Counsel to call the deputy as a witness. However, such failure was satisfactorily explained at the hearing Moreover, as the deputy was presumably a neutral and equally available to both parties, it is not clear how the failure of both to call him could reflect any more on the one than the other. The Respondents appear to contend that the salesmen were at fault in that they pro- voked the affray on December 10 by not walking around the pickets. However, the failure of the pickets to open ranks when the salesmen approached them would, apart from any- thing else, be debarring. In any event , it is clear that Barga's attack on George when he did try to walk around Barga cannot be justified even under Respondents ' "provocation" theory. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I credit Jurick's testimony that Hinton was present and made the threat attributed to him. In so finding, I have given due weight to the fact that Booker and George confessed their inability to recall Hinton's presence. The fact that Hinton was a stranger to them would at least partly explain their failure to note, or recall, his presence, and the failure of Booker to hear Hinton's alleged threat is adequately ex- plained by Jurick's uncontradicted testimony that neither Booker nor George was within earshot at the time. In thus crediting Jurick as to the Hinton incident, I have been influenced by the candor of his demeanor, the spontaneity of his testimony, and the circumstantial nature of his account of the events of December 11, as well as by the deficiencies noted above in the testimony offered in corroboration of Hinton. Moreover, as to the events of December 11 generally, I have determined to credit the General Counsel's witnesses, not only on the basis of demeanor, but also in view of (1) the contradiction noted above between the testimony of Joe Riggs and that of Respondents' other witnesses, and (2) the fact that their account of the events of December 11, unlike Jurick's, supplies no logical motivation for his conduct in ordering his salesmen to drive away from the plant,7 and requiring them to wait outside the plant for half an hour to receive instructions by radio. Such extraordi- nary measures could hardly have been resorted to if all that had happened was that, as Joe Riggs testified, the pickets asked Jurick to respect the picket line, or, as the Respondents' other witnesses testified, there was nothing at all said or done by the pickets to deter the salesmen from entering. Accordingly, I credit (1) Jurick as to the threats addressed to him by the three Riggs brothers, (2) Jurick and Charles George as to the threats addressed to the latter by Donnie Riggs, and (3) Booker, George, and Jurick as to the blocking of the trucks by the pickets. I find further that such threats and blocking of ingress were coercive.s 2. Union responsibility Respondents contend that, even if it be found that the misconduct alleged in the complaint occurred, no violation should be found as the Respondent Unions did not authorize, condone, or ratify such misconduct, and the individuals involved were therefore not acting as union agents. However, as to Local No. 888, it has been found that on December 8, Barga, in the presence of other pickets, warned Carey and George not to enter the plant, under circumstances rendering such warnings coercive; that on December 10, Barga, by his warning to, and assault upon, Booker, barred him from entering the plant; and that Barga was present on December 8 during the assault on Carey, and there is no evidence that he repudiated it. Barga was one of the two members of Local No. 888's bargaining committee or "shop committee," whose function it was to negotiate contracts and process grievances. He admitted, moreover, that on December 8 he considered himself "in charge" of the picketing. Accordingly, his involvement in the foregoing incidents suffices to render Local No. 888 liable not only for those incidents, but also for the other, like incidents, related above, whether or not oc- curring in his presence.9 Similarly, in view of Frank's position as president of the local, I find that the fact that he witnessed the incidents of December 10 and 11, without repudiating or opposing them,1° suffices to establish the local's responsibility for those incidents, as well as the others related above, which were all of like nature. 7 It is not disputed that Jurick gave such an order shortly after emerging from George's truck and that the salesmen complied. s Local Union No. 5895, United Steelworkers of America, AFL-CIO; et al. (Carrier Corporation), 132 NLRB 127, 141-142; Bonnaz Embroideries Tucking and Pleating and Allied Crafts Union Local 66, International Ladies' Garment Workers' Union, AFL-CIO (William L Davis, et al, d/b/a V. & D. Machine Embroidery Co.), 134 NLRB 879, 881. See also footnote 15, below. 'International Longshoremen's and Warehousemen 's Union, C.Z.O.; et al. ( Sunset Line and Twine Company), 79 NLRB 1487, 1512; Local No 3887, United Steelworkers of America, AFL-CIO (Stephenson Brick & Tile Company ), 129 NLRB 6 ; International Woodworkers of America, AFL-CIO, et al, Local 3-426, et al (W. T. Smith Lumber Company), 116 NLRB 507, 509; United Steelworkers of America, AFL-CIO, and Local No. 2772, etc (Vulcan-Cincinnati, Inc.), 137 NLRB 45 (failure of grievance committeeman to repudiate misconduct) ; International Woodworkers of America, AFL-CIO (Region 5) (Pioneer Lumber Corporation), 140 NLRB 602 (IR). 10 See Local 5881, United Mine Workers of America (Grundy Mining Company), 130 NLRB 1181 However, I do not find that Frank participated in the picketing on that date, notwithstanding George Riggs' testimony to that effect. Frank's testimony that he arrived on the scene after the clash between the pickets and the salesmen is credibly corroborated by Barga and by Murphy, who accompanied Frank. C) LOCAL 888 OF INT'L UNION, UNITED AUTOMOBILE, ETC. 903 There was evidence also, and I find, that Joe Riggs held office in Local No. 888, thereby rendering it responsible not only for his own misconduct, found above, but also for the incidents which he witnessed and failed to repudiate. As for the International, I have found that its representative, Hinton, was present during the December 11 incident and, himself, uttered one of the threats addressed to Jurick on that occasion. That fact would suffice to render the International liable, not only for Hinton's remark, but also for the like remarks of the other pickets on that occasion, which were not disavowed by Hinton, as well as the debarring picket line.li Moreover, the International's responsibility for all the foregoing incidents may be predicated on the ground that the strike was a joint venture on the part of the International and the local. Both were parties to the contract which expired on November 30, both being recognized therein as the joint representatives of the employees, and, as such representatives, both participated in the unsuccessful negotia- tions for a new contract, and the strike was called in aid of such negotiations. While the members of the local initiated the strike action by voting therefor at a meeting of the Miami Plating unit of the local,12 such action was approved by the International, as required by the applicable provisions of its constitution, and strike benefits were paid by it. In view of these circumstances, it is clear that the International was responsible for all misconduct by the local or its agents in furtherance of the common objective of the joint venture, which was to secure an acceptable contract from the Company.13 Nor can the International avoid such liability by proof that its representa- tive, Hinton, as he testified, counseled (or directed) the employees not to engage in coercive conduct, particularly as he himself, disregarded his own counsel.14 I find, therefore, that both Respondent Unions are liable for the misconduct found above, and that they violated Section 8(b) (1) (A) in the following respects: 1. On December 8, by Donnie Riggs' assault on Carey and Barga's threat to Charles George. 2. On December 10, by the debarring of Charles George and Booker, and more specifically by the conduct of Barga and George Riggs in forcibly opposing the efforts of Charles George and Booker to enter the plant. 3. On December 11, by the threats addressed to Jurick by Hinton and the three Riggs brothers, by Donnie Riggs' threat to Charles George, and by the blocking of the trucks by the pickets.15 "Hinton insisted that he was acting merely in an "advisory capacity" during the strike and that a statement he made to the strikers regarding their duty to refrain from violence and interference with ingress merely expressed the policy of the International. Frank likewise asserted that Hinton's strictures to the pickets were in the form of advice rather than "directives." However, elsewhere Frank admitted that one of Hinton's duties was "to maintain an orderly" picket line, thereby placing on him responsibility for the con- duct of the pickets. Moreover, the testimony of Barga and of Joe and George Riggs indicates that Hinton' s remarks were in the nature of instructions to the pickets. Thus, George Riggs quotes Hinton as telling the employees that "he didn't want no violence over there out of us He wanted a peaceful picket " Particularly revealing is Barga's ad- mission that on December 8 he considered himself in charge of the picketing since, in the absence of Hinton (among others) Barga was the highest ranking union representative on the scene. I find from the foregoing that Hinton was authorized to, and did, direct the picketing 12 The local was an amalgamated body comprising the employees of several plants. The employees of each plant formed a separate "unit" of the local and each unit apparently acted independently of the others in matters that concerned only that unit. Is Vulcan -Cincinnati, Inc, supra ; Pioneer Lumber Corporation , supra; Local #1150, United Electrical, Radio & Machine Workers of America, etc. (Cory Corporation), 84 NLRB 972. 14 See Cory Corporation, supra, at 978 ; District 50, United Mine Workers of America (Tungsten Mining Corporation), 106 NLRB 903, 908, footnote 5. 11 The General Counsel adduced evidence of an incident on December 8 involving an encounter between Jurick and certain of the pickets, including Barga and the three Riggs brothers, which evidence, if credited, would seem to establish that all four obstructed Jurick's ingress. However, in his brief, the General Counsel makes only a passing refer- ence to this incident and makes no specific contention that the pickets' conduct on that occasion violated the Act. Possibly, the General Counsel was influenced by the absence of any evidence that the incident was witnessed by any employees other than the pickets actively involved. While there are cases holding misconduct by pickets unlawful even under such circumstances, the rationale in such cases has been that the misconduct was so flagrant and shocking as to insure that it would come to the attention of other em- 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find further that Barga, as an agent of Local No. 888 violated Section 8(b) (1) (A) of the Act by his participation in the coercive conduct described in paragraphs 1 and 2, above, and that Hinton, as an agent of Respondent International, violated Section 8(b) (1) (A) by his threat of December 11. In addition to the foregoing Respondents, the complaint names Donnie and George Riggs as Respondents in their capacity as agents of Local No. 888. There is no evidence that these two individuals held any office in the local or that they were anything other than rank-and-file pickets. While I am aware of no case where rank-and-file pickets have been named as respondents in a proceeding under Section 8(b) of the Act, there appears to be no reason, logically speaking, why this may not be done. As to both these Respondents, it has been found that Local No. 888 was responsible for their coercive acts because of the ex- ample set by Barga, an agent of the local, and his failure, and that of Frank, the local's president, to repudiate such acts. However, such a finding necessarily pre- supposes that by reason of these circumstances Donald and George Riggs became agents of the local, as, under the controlling principles of common law,16 the local would be bound by their conduct only if they were acting as its agents.17 I find therefore that Donnie and George Riggs engaged in the coercive conduct found above as agents of the Respondent Local and the order herein will be directed against them. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents 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 Respondents have engaged in certain unfair labor prac- tices , I shall recommend that they be required to cease and desist therefrom and ployees. E g., Local 140, United Furniture Workers of America, CIO, etc (Brooklyn Spring Corporation and Lorraine Fibre Mills, Inc.), 113 NLRB 818, enfd 233 F 2d 539 (C A 2) (severe beating of company president). It is doubtful whether the instant alleged misconduct of the pickets was of such a nature In any event, as any finding on this point would be merely !cumulative, and, as the matter appears to have been abandoned by the General Counsel, I do not pass thereon. However, I find no merit In Respondents' contention that the assault on Carey on December 8 was not coercive under Section 8(b) (1) (A) because It was not directed against an employee and not witnessed by any employees other than those participating therein. See footnote 3, above The only picket directly involved in the assault was Donnie Riggs. Under Board precedents, the fact that an assault on a supervisor by a picket was wit- nessed by other pickets would suffice to render it coercive. W T. Smith Lumber Company, supra, at 508; Pioneer Lumber Corporation, 140 NLRB 602 (IR, footnote 10) (Moreover, here, it has been found that the assault was witnessed also by a nonstriking employee, Charles George ) Similarly, the threats addressed to Jurick on December 11 must be deemed coercive, even though not overheard by George or Booker, because of the presence of pickets other than those uttering the threats (Joe Riggs acknowledged that there were eight or nine pickets at the scene on December 11.) 1i See Sunset Line and Twine Company, 79 NLRB 1487, 1507. 17 While, as already noted, it does not appear that the Board has heretofore had occa- sion to rule on the propriety of naming mere pickets as respondents in a case under Sec- tion 8(b), the Board has had occasion to hold labor organizations responsible for their acts. However, in at least two such cases the Board has expressly refrained from deter- mining whether the pickets were "agents" of the respondent unions, holding that such a determination was unnecessary because (1) the pickets were not named in the complaint as agents and no order against them was requested; and (2) the respondent unions were responsible for the conduct of the pickets whether they be regarded as "agents" or as "mere impersonal instrumentalities" of the respondents or their officers. Sunset Line and Twine Company, supra, at 1511 (footnote 49) ; United Furniture Workers of America, Local 309, CIO, et of. (Smith Cabinet Manufacturing Company, Inc ), 81 NLRB 886, 891 (footnote 16). Here, as the two pickets, Donnie and George Riggs, are named in the complaint as agents of the Respondent Local and as, themselves, Respondents, the issue may not be avoided by characterizing them as, in any event, "instrumentalities" of the local. LOCAL 888 OF INT'L UNION, UNITED AUTOMOBILE, ETC. 905 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. Miami Plating Co. is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. Edgar Hinton is an agent of Respondent International and Noah Barga and George and Donnie Riggs are agents of Respondent Local within the meaning of the Act. 4. By barring plant ingress, and by assaulting, and threatening to assault, em- ployees and others to prevent their ingress, the Respondents have coerced and restrained employees of Miami Plating Co. in the exercise of rights guaranteed by Section 7 of the Act, thereby violating Section 8 (b) (1) (A) of the Act. 5. 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 con- clusions of law, it is recommended that the Respondents, Local No. 888 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, and its Agents, Donnie Riggs, George H. Riggs, and Noah Barga, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, and its Agent, Edgar Hinton, and their other agents, officers, representatives, successors, and assigns, shall: 1. Cease and desist from threatening employees of Miami Plating Co., or other persons, with bodily harm, or inflicting bodily harm upon them, or 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 the Respondents' business offices, copies of the attached notice marked "Appendix." 18 Copies of said notice, to be furnished by the Regional Di- rector for the Ninth Region, shall, after being duly signed by official representa- tives of the Respondents, be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter in conspicu- ous places, including all places where notices to members of the Respondent Local are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Ninth Region signed copies of the aforementioned notice for posting by Miami Plating Co., 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 Ninth Region, shall, after being signed by the Respondents, as indicated, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for the Ninth Region, in writing, within 20 days from the date of receipt of this Intermediate Report, what steps have been taken to comply herewith.19 18If 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, this notice shall be further amended by substituting for the words "A Decision and Order" the words "A Decree of the United States Court of Appeals, Enforcing an Order " 11 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 11 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL OFFICERS , AGENTS, AND MEMBERS OF LOCAL No. 888 OF THE INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-AFL-CIO, AND INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-AFL-CIO, AND TO ALL EMPLOYEES OF MIAMI PLATING CO. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT threaten to inflict , or inflict , bodily harm upon employees or other persons at the plant of Miami Plating Co . at Dayton , Ohio, 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 Miami Plating Co ., 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. LOCAL No. 888 OF THE INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-AFL-CIO, AND ITS AGENTS, DONNIE RIGGS, GEORGE RIGGS, AND NOAH BARGA, Labor Organization. Dated------------------- By------------------------------------------- (Representative) Title) INTERNATIONAL UNION, UNITED AUTOMOBILE , AEROSPACE AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-AFL-CIO, AND ITS AGENT, EDGAR HINTON, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) Dated------------------- By------------------------------------------- (DONNIE RIGGS) Dated------------------- By------------------------------------------- (EDGAR HINTON) Dated------------------- By-------------------------------------------(NOAH BARGA) Dated------------------- By------------------------------------------- (GEORGE H. RIGGS) 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, Transit Building, Fourth and Vine Streets, Cincinnati 2, Ohio, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. APPENDIX B The transcript of testimony herein is hereby ordered corrected in the following respects: 1. Page 186, line 6, strike "Trial Examiner" and insert in lieu cf the asterisks, "You don't have to." 2. Page 186, line 15, insert "Trial Examiner" before "I think." 3. Page 220, line 19, insert "autonomy" in lieu of asterisks. 4. Page 391, line 4, strike "knowing" and insert "calling him."