Local 918, Teamsters

National Labor Relations Board - Board Decisions

Oct 12, 1973

206 N.L.R.B. 382 (N.L.R.B. 1973)

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 918, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America
and Tale-Lord Manufacturing Company , Inc. Case
29-CB-1178 '
October 12, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 22, 1973, Administrative Law Judge
Thomas S. Wilson issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Charging Party filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The unfair labor practice charges in this case arise
out of Respondent's activities during an organiza-
tional campaign among employees of Tale-Lord
Manufacturing Company, Inc. (hereinafter Tale-
Lord), in the spring of 1972. Specifically, Respondent
is alleged to have violated Section 8(b)(1)(A) of the
Act by: (1) threatening, in the presence of employees
of Tale-Lord, officers of Tale-Lord with bodily injury
and damage to their property; (2) threatening employ-
ees of Tale-Lord with bodily injury and damage to
their property if they refused to honor a picket line set
up by Respondent at the Tale-Lord plant, or other-
wise refused to support and assist Respondent, and
carrying out these threats; (3) attempting to prevent
and preventing employees from entering and leaving
the Tale-Lord plant; and (4) throwing eggs and other
objects at employees as they attempted to enter and
leave the Tale-Lord plant.
The Administrative Law Judge recommended dis-
missal of all the allegations as not supported by credi-
ble evidence, and, in the case of some of the threats
to Tale-Lord officers, as provoked by similar threats
and name-calling directed by officers of Tale-Lord
toward Respondent. For the following reasons we
t Case 29-RC-1956 was originally consolidated with the instant case for
the resolution of certain issues arising with respect to an election conducted
pursuant to an agreement for consent election . Prior to the transfer of Case
29-CB-1178 to the Board , Case 29-RC-1956 was severed and remanded to
the Regional Director for further appropriate action . Accordingly,
Employer's exceptions insofar as they relate to the Administrative Law
Judge's findings and recommendations in Case 29-RC-1956 are not before
the Board for determination , and we make no findings as to them.
find merit in the Charging Party's and General
Counsel's exceptions to the Administrative Law
Judge's recommended dismissal of the complaint.
The Threats to Tale-Lord Officers
Jack Fecter, Respondent's president, was alleged to
have made threats to Ira Boshnack (hereinafter I.
Boshnack), production manager of Tale-Lord and son
of Teddy Boshnack (hereinafter T. Boshnack), Tale-
Lord's president, to the effect that some of
Respondent's adherents were going to knife him, and
he was going to end up in a hospital. These threats
were made in the course of a confrontation between
Fecter and T. Boshnack at the plant gate, several days
after employee supporters of Respondent struck Tale-
Lord and were picketing the premises. While the two
men had agreed to meet concerning the execution of
a contract that would settle the strike, T. Boshnack
would meet with Fecter only, whereas Fecter insisted
that he be accompanied by an in-plant negotiation
committee and other agents of Respondent. The
threats were attested to by T. Boshnack and his other
son and Tale-Lord attorney, Dennis Boshnack (here-
inafter D. Boshnack), all of whom were standing next
to I. Boshnack and Fecter during this time. Fecter
denied making the threats.
The Administrative Law Judge, conceding that the
threats may have been made, concluded that they did
not violate the Act because they were provoked by the
following actions by Tale-Lord officers: (1) T. and D.
Boshnack arrived at the plant to meet with Fecter
5-1/2 hours late, a delay caused by their personal
convenience; (2) T. Boshnack then refused to allow
the in-plant employee committee and other Respon-
dent agents to accompany Fecter at the negotiations,
after D. Boshnack had earlier assured Fecter their
presence would be permitted; (3) immediately prior to
this confrontation, I. Boshnack, according to Fecter,
was taking pictures of the Respondent's delegation as
well as the employees on their picket line, and (4) as
T. Boshnack and Fecter faced each other, I. Boshnack
urged his father not to speak to these "gangsters" and
"hoodlums." Such name-calling by I. Boshnack, con-
cluded the Administrative Law Judge, reduced the
alleged unlawful threats by Respondent to "mutual
caterwauling" by both sides. He therefore recom-
mended that this allegation of the complaint be dis-
missed.
We disagree on two grounds. First, the record does
not support the Administrative Law Judge's conclu-
sion that Respondent's threats were provoked. While
Fecter had arrived for the meeting 5-1/2 hours before
the Boshnacks appeared at the plant, there is no evi-
dence that any specific time for the meeting had been
206 NLRB No. 102
LOCAL 918, TEAMSTERS
arranged. Nor is there evidence to suggest that the
Boshnacks' so-called "delay" was caused by their own
personal convenience. The record shows only that
they were detained at the Board's Regional Office in
New York City, and that Fecter was not angered by
the delay. As for the reversal by T. Boshnack of D.
Boshnack's assurances to Fecter that he could be ac-
companied in negotiation sessions by the employee
committee and other Respondent officers, there is not
evidence in the record that I. Boshnack took pictures
on the day the threats were made by Fecter. He admit-
ted he took some pictures during the strike but
couldn't recall specifically if he took pictures that day.
And Fecter testified that he did not see him taking any
pictures that day. Finally, there is no evidence what-
soever that I. Boshnack referred to Fecter or any of
his associates as gangsters or hoodlums or any other
names. At most, there is testimony by T. Boshnack
that I. Boshnack warned him that Fecter was trying
to browbeat him, but nothing more.2
In summary, there is very little evidence, if any,
tending to establish that the threats by Fecter to I.
Boshnack were in any way provoked by either T.
Boshnack or his two sons.
Secondly, assuming arguendo that such provocative
conduct did occur, conduct by a union agent other-
wise coercive and thus violative of Section 8(b)(1)(A)
of the Act cannot be justified merely because an em-
ployer agent also engaged in unlawful activity.' We
find Fecter's threats to I. Boshnack to be unlawful.
The complaint also alleges that I. Boshnack was
threatened with a gun by Respondent Organizer
Frank Roman one day during the strike. I. Boshnack
testified that Roman took from the front seat of his
car a small object resembling a revolver covered with
a handkerchief and carried it toward him in the palms
of his hands, after which he removed the handker-
chief, revealing a gun, and said, "You see this, this is
for you." I. Boshnack then yelled for his father, and
Roman put the gun back in the car. Roman denied
ever threatening I. Boshnack with a gun, but did ad-
mit making a mock threat towards him with a half-
eaten banana; i.e., pointing the banana at Ira and
saying, "Paw! Pow!" Roman maintained that the ba-
nana was always in plain view, never hidden by a
handkerchief.
The Administrative Law Judge credits neither I.
Boshnack's nor Roman's version of what happened.
Instead, he finds that Roman approached I. Bosh-
nack with a banana covered by a handkerchief, an
2 There was one reference to Fecter as a hoodlum , but that was by T.
Boshnack after Fecter's threats to I. Boshnack were made.3 United Steelworkers of America, AFL-CIO, and its Local 2118 (Worcester
Stamped Metal Company), 153 NLRB 1561; Communications Workers of
America, AFL-CIO (Ohio Consolidated Telephone Company), 120 NLRB 684.
383
event that does not-appear in the record at all. Evi-
dently, the Administrative Law Judge has combined
elements of both I. Boshnack's testimony (an object
covered by a handkerchief) and Roman's testimony
(the banana) into a confused and unwarranted syn-
thesis which we find unacceptable.
We are thus faced with two diametrically opposed
versions of Roman's alleged threat against I. Bosh-
nack. Roman's story appears improbable. Roman tes-
tified that he pointed the banana at I. Boshnack so as
to make a fool of him. This makes no sense at all.
Moreover, I. Boshnack testified, and the Administra-
tive Law Judge found, that after Roman brandished
the banana, I. Boshnack called for his father, who
was working nearby. It strains credulity to believe that
an adult would be moved to panic and fear upon
being confronted with a half-eaten banana. I.
Boshnack's story, on the other hand, appears much
more consistent with the other facts in the record.
Thus, if Roman wanted to make a fool of I. Bosh-
nack, or scare him, a gun, toy or genuine, covered by
a handkerchief, would effectively accomplish this
purpose, especially if the handkerchief was suddenly
removed, leaving the gun for I. Boshnack to behold.
Moreover, the fact that I. Boshnack, a 23-year-old
man, was frightened enough to call for help leads one
to believe that such fear was justified. An exposed gun
in the palm of Roman's hand could reasonably engen-
der fear.
Moreover, we are not unmindful of Roman's lack
of credibility as manifested elsewhere in the record.
At one point at the hearing, Roman specifically de-
nied ever throwing eggs while on the picket line. How-
ever, the Administrative Law Judge credited the
testimony of an employee who testified to having seen
Roman throw an egg which hit another employee.
And, as will be set forth in detail below, there is evi-
dence in the record that Roman threw eggs on other
occasions as well . Furthermore, while Roman, during
his testimony, acknowledged his status as a union
organizer for Respondent, and while, in a pretrial affi-
davit, he admitted that he was a business representa-
tive for Respondent, in a sworn affidavit pertaining to
a collateral state court litigation,4 Roman denied
being either a business agent or organizer of Respon-
dent. These inconsistent statements, made under
oath, do not enhance Roman's credibility as a witness.
Having credited I. Boshnack, we find that
Roman's exhibition of a gun constituted a threat. It
matters not whether the gun was a toy or the genuine
article. Nor does it matter that Roman merely showed
4 Tale-Lord had filed a civil suit against Fecter and Roman in the New
York Supreme Court, County of Queens . Roman's affidavit , sworn to in
August 1972, was submitted to the court in an effort to have his name stricken
as a party defendant. This affidavit was admitted at the heanng as a General
Counsel's exhibit.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it to I. Boshnack rather than menacingly pointing it
at him. The accompanying words, "this is for you,"
could only have one meaning to I. Boshnack or any
person in his position; i.e., that Roman was threaten-
ing to use the gun on him. The Administrative Law
Judge's speculation that Roman's words connoted a
gift of the gun to I. Boshnack flies in the face of
reality.
This threat by Roman was made in the presence of
at least one Tale-Lord employee, Elizabeth Martinez,
who was sitting in the car from which Roman origi-
nally took the gun to show to I. Boshnack.
For the foregoing reasons, we find, contrary to the
Administrative Law Judge, that Fecter's and Roman's
threats of bodily harm to I. Boshnack, made in the
presence of Tale-Lord employees, restrained and
coerced employees in the exercise of the rights guar-
anteed in Section 7 of the Act and therefore are viola-
tive of Section 8(b)(1)(A) of the Act.5
The Threats to Tale-Lord Employees and
the Consummation Thereof
The General Counsel adduced at the hearing a sub-
stantial amount of evidence in support of the allega-
tion that Respondent threatened certain employees of
Tale-Lord who did not participate in the strike called
by Respondent, and, in one instance, carried out the
threat. The Administrative Law Judge addressed one
such incident; i.e., the flattening of the tires of non-
striker Manuel Perez' car. He considered but discred-
ited the testimony of General Counsel's witness,
Tale-Lord employee Maria Hernandez, to the effect
that she saw one of the strikers, Ada6 flatten Perez'
rear tires with a nail.
Ordinarily, the Board will defer to the factual credi-
bility resolutions of the Administrative Law Judge,
unless the preponderance of all evidence convinces
the Board that his resolution was incorrect.' Here, we
are presented with one of those few occasions in
which we find the evidence preponderating against
the Administrative Law Judge's credibility resolution.
Hernandez testified categorically, through a Spanish
interpreter, that one day during the strike she saw Ada
pick up a nail in the gutter outside the plant and kneel
behind each of Perez' two rear tires and stick the nail
therein after which the air started coming out. Her-
nandez testified to seeing police making their rounds
around the plant area, but Ada managed to puncture
the tires while the police were walking away from that
specific spot toward some other part of the premises.
The Administrative Law Judge summarized Her-
5 Communications Workers of America, supra.
6 Ada's last name is unknown.
7 Standard Dry Wall Products, Inc., 91 NLRB 544.
nandez' testimony as the "story of a seamstress crawl-
ing around an auto while police wandered around and
puncturing a tire with her bare hands and a nail" and
concluded that this testimony was "so inherently im-
probable as to be unbelievable." 8 Aside from the fact
that we find nothing "inherently improbable" about
a woman puncturing a tire with her bare hands and
a nail, the Administrative Law Judge has apparently
misread the record. Hernandez never testified that
Ada was crawling around under the car. The Admin-
istrative Law Judge seemingly relies on Hernandez'
testimony that Ada "went under" the car. However,
she immediately went on to say that when she referred
to going under the car, she meant that Ada "bent
down to the side near where the tire was." Given the
fact that Hernandez spoke Spanish and had to testify
through an interpreter it is easy to explain her seman-
tic confusion. But the thrust of her testimony is clear:
Ada knelt beside the car as she punctured the tires.
The Administrative Law Judge cites no testimony
to contradict Hernandez. Indeed, there was no rebut-
tal testimony in the record, by Ada or anybody else.
The preponderance of the evidence convinces us that
striker Ada flattened Perez' tires.
We likewise find that Ada's act of vandalism was
tolerated, if not encouraged, by Respondent Organiz-
er Roman. Hernandez testified that Roman, standing
nearby, gestured to Ada that there were nails in the
street. Again, the Administrative Law Judge con-
cludes that the story is "inherently improbable."
However, we find nothing improbable about Roman's
gestures. If police were walking nearby, Roman would
be foolish to call out to Ada to pick up a nail. A
surreptitious gesture, i.e., pointing the nails out to
Ada, would be a much more probable course of ac-
tion. Roman acknowledged seeing Perez' tires in a
flattened state but denied either authorizing or ever
having seen their flattening; this denial was seemingly
credited by the Administrative Law Judge. However,
there is evidence in the record, totally ignored by the
Administrative Law Judge, which would, if credited,
establish Roman's tacit, if not explicit, approval of
Ada's tire puncturing.' Harvey Berman, Tale-Lord
shipping clerk, testified that when later witnessing the
flat tires on Perez' car, Roman warned him that the
same thing would happen to him if he persisted in
crossing the picket line and going to work. Roman, in
his testimony, never denied making that threat to Ber-
5 ALJD, sec. III, B, 1.
Roman's status as agent for Respondent is not questioned. He himself
testified that he was sent by Respondent to Tale-Lord, after the employees
struck , in order to organize and administer the picket line. While he was not
officially designated as in charge of the picketing, he told all the pickets what
to do, as the picket line was made up of predominantly Spanish-speaking
Puerto Rican women and he , unlike the picket captain , spoke Spanish. Ro-
man, by his own admission , was present on the picket line for virtually the
entire time the line was in operation.
LOCAL 918, TEAMSTERS
man.10 We therefore credit Berman's testimony and
find that Respondent Agent Roman sanctioned the
flattening of Perez' tires.
Aside from the flattening of Perez' tires, the record
contains more testimony that Respondent agents
threatened nonstriking employees with damage to
their persons or their property if they continued to
work for Tale-Lord. All of this testimony is uncontro-
verted; yet the Administrative Law Judge fails to cite
or discuss it in his Decision. There is the threat by
Roman to Berman discussed above. Berman also tes-
tified that, shortly after he himself was threatened, he
heard one of the strikers, Elizabeth Martinez, call out
to Perez that he would get beaten up if he continued
going to work. This threat, according to Berman, was
made in Roman's presence. Based on the foregoing
we find that Respondent threatened employees of
Tale-Lord with injury to their persons and property if
they did not participate in a strike in support of Re-
spondent, and, in the case of Manuel Perez, Respon-
dent carried out this threat by flattening Manuel
Perez' tires. In engaging in this conduct, we find that
Respondent violated Section 8(b)(1)(A) of the Act."
Blocking Ingress and Egress of
Tale-Lord Employees
The Administrative Law Judge summarily dis-
missed this allegation of the complaint, finding no
evidence in the record to sustain any such charge. But
there is substantial testimony by employee witnesses
that Respondent, by acts of violence, attempted to
prevent nonstriking employees from entering or leav-
ing the plant. Manuel Perez testified that, on two
occasions during the strike, he offered to drive two
female employees home from work. As he was at-
tempting to drive out of the plant premises in the late
afternoon, his car was pelted with eggs and rocks and
was confronted by several strikers who proceeded to
rock the car, pound on the windows, and scream at
him. On another occasion during the strike, as Perez
was trying to leave the factory to take a shipment of
goods to the Post Office, striker Martinez smashed a
bottle against his tires. During each of these incidents,
Perez testified, Roman was present and did nothing to
stop the strikers. To be sure, Perez' testimony is not
uncontroverted. Roman, in his testimony, denied in a
general way participating in or authorizing the throw-
10 Roman did deny generally that he ever warned employees that they
would be visited with the same damage that occasioned other employees who
crossed the picket line. We will not, however, give weight to such a general
denial, when a specific allegation goes rebutted
I1
With regard to the threat by Martinez, the mere presence of Respondent
Agent Roman is sufficient to establish Respondent's responsibility for the
threat Food Store Employees Union, Local347 (Davis Wholesale Co., Inc), 165
NLRB 264, fn. 1.
385
ing of stones or eggs. However, as he never specifical-
ly rebutted Perez' testimony concerning the attempt-
ed blockage or the smashing of the bottle, we will
accord his testimony little weight. We therefore credit
Perez and find that Respondent physically attempted
to block access of nonstriking employees to and from
the plant, thus violating Section 8(b)(1)(A) of the
Act.12
Egg-Throwing Incidents
Upon analyzing the record in this case, we cannot
concur with the Administrative Law Judge's conclu-
sion that the flurry of egg-throwing ceased shortly
after the strike began, when Roman told the strikers
such activity would be counterproductive, and that
Roman at no time, but for " a single proved aberra-
tion," participated in or sanctioned the egg throwing.
The record is replete with instances of egg-throw
ing, not only during the first few days of the strike, but
throughout the entire strike period." None of these
latter incidents were mentioned by the Administrative
Law Judge in his Decision, nor were they specifically
rebutted by Respondent. Harvey Berman testified to
having seen eggs thrown at Manuel Perez' car after
the first week of the strike. Nonstriking employees
Fortunata Anderson testified to seeing eggs thrown as
she left the plant on April 24 and 25. Another non-
striker, Barbara Williams, testified to seeing Roman
himself throwing an egg sometime during the last
week in April. And, as was noted earlier, Perez testi-
fied that eggs were thrown at his car as he attempted
to drive away from the plant on April 24 and 25.
That all of these egg-throwing incidents were attri-
butable to strikers is not open to serious question. The
fact that identity of some of the egg throwers was
unknown is of little importance, given the fact that the
nonstriker witnesses invariably identified the eggs
thrown as coming from the direction of the strikers.
The Administrative Law Judge's hypothesis that the
eggs might have been thrown by male employees of a
nearby factory who frequently visited with strikers at
the picket line is pure speculation. There is no evi-
dence in the record that any of those men ever threw
any eggs or showed any other hostility to those em-
ployees of Tale-Lord who chose not to honor the pick-
et line.
12 The General Counsel also adduced considerable testimony to the effect
that, on numerous occasions during the strike , nonstriking employees were
pelted with eggs as they arrived for work in the morning and left for home
in the afternoon We find, for the reasons set forth in a separate section
below, that such egg-throwing did occur, was sanctioned by Respondent, and
thus constitutes another example of Respondent's blocking ingress and
egress . These incidents are more fully discussed in a separate section due to
the existence of a separate allegation in the complaint dealing with egg-
throwing.
13 The strike began on March 28, 1972, and ended on May 2, 1972
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also beyond serious question is Respondent Agent
Roman's responsibility for this egg-throwing. It is in-
deed true that Roman, during the first week of the
strike, told the strikers to cease their egg-throwing.
However, subsequent developments rebut the Admin-
istrative Law Judge's conclusion that Roman's 'in-
junction was bona fide and thus absolved Respondent
from all responsibility for the egg-throwing. We note
that, on two separate occasions after Roman told the
strikers to cease their egg barrage, he threw eggs him-
self. This hardly comports with the image of a con-
cerned union agent trying to control unruly strikers.
Furthermore, whether or not this egg-throwing by Ro-
man is an "aberration," as the Administrative Law
Judge phrases it, is immaterial, given Roman's pres-
ence on the picket line during all of the egg-throwing
incidents and his failure to take action to stop them.
It is well settled that where picket 'line misconduct
takes place in the presence of a union agent, and the
agent does nothing to disavow such misconduct or
discipline the offenders, the union assumes responsi-
bility for such misconduct.14 In view of the foregoing
evidence, we find Respondent responsible for the
throwing of eggs at nonstriking employees, and thus
in violation of Section 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. Tale-Lord Manufacturing Company, Inc., the
Employer herein, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Respondent herein, Local 918, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By threatening employees of Tale-Lord Manu-
facturing Company, Inc., and, in the presence of em-
ployees of Tale-Lord, threatening officers,
supervisors, foremen, agents, and representatives of
Tale-Lord, to inflict bodily injury to them, and threat-
ening to inflict, and inflicting, damage to their proper-
ty, attempting to block entrances to and exits from
Tale-Lord's plant and premises and attempting to
prevent employees of Tale-Lord from entering and
leaving the said plant and premises, and throwing
eggs at employees of Tale-Lord as the said employees
attempted to enter and leave Tale-Lord's plant and
premises, the Respondent has restrained and coerced
employees in the exercise of their rights guaranteed by
Section 7 of the Act, and has thereby engaged in and
14 Davis Wholesale Co., Inc., supra : Teamsters Local # 115, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent (E. J. Lavino & Company), 157 NLRB 1637.
is engaging in unfair labor practices within the mean-
ing of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
The Respondent, having violated Section
8(b)(1)(A) of the Act by (1) threatening employees of
Tale-Lord Manufacturing Company, Inc., and, in the
presence of employees of Tale-Lord, threatening offi-
cers, supervisors, foremen, agents, and representatives
of Tale-Lord, to inflict bodily injury to them, and
threatening to inflict and inflicting damage to their
property, (2) attempting to block entrances to and
exits from Tale-Lord's plant and premises and at-
tempting to prevent employees of Tale-Lord from en-
tering and leaving the said plant and premises, and (3)
throwing eggs at employees of Tale-Lord as the said
employees attempted to enter and leave Tale-Lord's
plant and premises, will be ordered to cease and desist
from said violations of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Local
918, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, its of-
ficers, representatives, and agents, shall:
1. Cease and desist from:
(a) Threatening employees of Tale-Lord Manufac-
turing Company, Inc., and, in the presence of employ-
ees of Tale-Lord, threatening officers, supervisors,
foremen, agents, and representatives of Tale-Lord, to
inflict bodily injury to them, and threatening to inflict
and inflicting damage to their property.
(b) Attempting to block entrances to and exits
from Tale-Lord's plant and premises and attempting
to prevent employees of Tale-Lord from entering and
leaving the said plant and premises.
(c) Throwing eggs at employees of Tale-Lord as the
said employees attempt to enter and leave Tale-Lord's
plant and premises.
(d) In any like or related manner restraining or
coercing employees of Tale-Lord in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action:
(a) Post at its offices, hiring halls, and meeting halls
copies of the attached notice marked "Appendix." 15
Copies of said notice, on forms provided by the Re-
15 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
LOCAL 918, TEAMSTERS
gional Director for Region 29, after being duly signed
by the Respondent Union's authorized representative,
shall be posted by the Respondent Union immedi-
ately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent Union to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Mail to the said Regional Director copies of the
aforementioned notice for posting by Tale-Lord, if
willing, at its place of business in Brooklyn, New
York, in places where notices to employees are cus-
tomarily posted. Copies of said notice, to be furnished
by the Regional Director, after being signed by a
representative of Respondent Union, shall be forth-
with returned to the Regional Director for posting.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to com-
ply herewith.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT make threats against any officer,
supervisor, foreman, agent, or representative of
Tale-Lord Manufacturing Company, Inc., in the
presence of any employees of Tale-Lord.
WE WILL NOT through our pickets, or our
agents, make any threats against any Tale-Lord
employees who attempt to cross the picket line
maintained by us at Tale-Lord Manufacturing
Company, nor will we damage the property of
any employee who so attempts to cross said pick-
et line.
WE WILL NOT through pickets at Tale-Lord who
are subject to our control attempt to block en-
trances to and exits from the Tale-Lord plant and
premises and attempt to prevent employees from
entering and leaving there.
WE WILL NOT through pickets at Tale-Lord who
are subject to our control throw eggs at any em-
ployees of Tale-Lord who attempt to enter and
leave the Tale-Lord plant.
WE WILL NOT in any like or related manner re-
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
387
strain or coerce employees of Tale-Lord in the
exercise of the rights guaranteed by Section 7 of
the Act.
LOCAL 918, INTERNATIONAL
BROTHERHOOD OF TEAM-'
STERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF
AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
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Any questions concerning this notice or compli-
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DECISION AND REPORT OF OBJECTIONS
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge: Upon a
charge filed on March 31, 1972, by Tale-Lord Manufactur-
ing Company, Inc., herein referred to as Tale-Lord, Charg-
ing Party, or Employer, the General Counsel of the
National Labor Relations Board, referred to herein as the
General Counsel 1 and the Board, respectively, by the Re-
gional Director for Region 29 (Brooklyn, New York), issued
its complaint dated May 10, 1972, against Local 918, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , herein referred to as the
Union, 918, or Respondent.
This complaint alleged that Respondent Union had en-
gaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (b)(1)(A) and
Section 2(6) and (7) of the Act of the Labor Management
Relations Act, 1947, as amended, herein referred to as the
Act.
Respondent duly filed its answer admitting certain allega-
tions of the complaint but denying the commission of any
unfair labor practices?
By order dated July 7, 1972, Regional Director for Region
29 consolidated the above case for the purposes of "hearing,
ruling and decision by a Trial Examiner" 3 with the
i This term specifically includes the attorney appearing for the General
Counsel at the hearing.
2 Neither Local 169 nor Local 178 appeared at the hearing In fact, Local
169, had previously withdrawn its objections to the election . Local 178 had
filed none.
3 The title of " Trial Examiner" was changed to "Administrative Law
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's Objections 2,3, 4, and 5, made to an election
held May 5, 1972, by said Region pursuant to petition for
certification filed by the Union in Case 29-RC-1956 on
March 31, 1972, for the alleged reason that said objections
were "substantially similar" to some of the issues involved
in Case 29-CB-1178.4
Pursuant to notice, a hearing on such issues was held
before me in Brooklyn, New York, on October 24, 25, 26,
27, 31, and November 1, 1972. All parties, except the In-
tervenors in Case 29-RC-1956, appeared at the hearing,
were represented by counsel, and were afforded full oppor-
tunity to be heard, to produce and cross-examine witnesses,
and to introduce evidence material and pertinent to the
issues. At the conclusion of the hearing, oral argument was
waived. Briefs have been received from General Counsel,
Employer, and Respondent Union on December 14, 1972.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
The complaint alleged, it was admitted, and I find that:
Tale-Lord Manufacturing Company, Inc. is, and has
been at all times material herein, a corporation duly organ-
ized under, and existing by virtue of, the laws of the State
of New York. At all times material herein, the Employer has
maintained its principal office and places of business at
56-23 Cooper Avenue, Ridgewood, Borough of Brooklyn,
in the city and State of New York, herein called the Ridge-
wood plant, where it is, and has been at all times material
herein, engaged in the manufacture, sale, and distribution
of dungaree trousers and related products. During the past
year, 1971, which period is representative of its annual oper-
ations generally, Employer, in the course and conduct of its
business, purchased and caused to be transported and deliv-
ered to its Ridgewood plant textiles, finishings, and dungar-
ee cloth and textile, sewing machinery, and other goods and
material valued in excess of $50,000, of which goods and
materials valued in excess of $50,000 were transported and
delivered to its Ridgewood plant in interstate commerce
directly from the States of the United States other than the
State of New York.
Accordingly, I find that the Employer is, and has been at
all times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE RESPONDENT
Local 918, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization admitting to membership employees of
the Employer.
The same can be said for the other locals named.
Judge" effective August 19, 1972.
The fact that the issues raised by these obejctions were not similar to
those alleged in the unfair labor practice case created numerous procedural
difficulties throughout this hearing.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Basic Facts
The warp and the woof of this case follows:
The president of Tale-Lord is Theodore (Teddy) Bosh-
nack, who will be referred to herein by his nickname "Ted-
dy" in order to distinguish him from his two sons who figure
prominently in the facts under consideration here, Dennis
Boshnack, the attorney for the Tale-Lord, and Ira Bosh-
nack. The sons will also be referred on a first name basis
herein for the same purpose. The business was founded
many years ago by Teddy's father. Teddy became the owner
and operator thereof some 35 years ago or at about the time
the Wagner Act was declared constitutional. With the busi-
ness Teddy also inherited a contract with Local 178. In
1962, the business was incorporated under its present name
with Teddy as its president. Teddy still operates and man-
ages the business, albeit in a self-proclaimed "semi-retired"
status, i.e., working only 20 days per month. On those occa-
sions when Teddy is absent from the plant, Ira becomes the
plant manager, otherwise he is the shipping clerk. Such has
been his position for 4 years. He is now 23 years of age.
Dennis was recently admitted to the New York bar. To
date the present matter is Dennis' self-proclaimed "biggest
case." Except as its present attorney, Dennis has no official
capacity with the corporation.
At its Ridgewood plant, Tale-Lord employs about 70
persons of whom all but a few are women, mostly of foreign
extraction who generally speak little, if any, English. As it
developed, a few of these employees had no "residency
permits" and, therefore, according to the United States Im-
migration Service, were immigrants residing illegally in the
United States.
This matter began on the afternoon of Monday, March
27, 1972,5 when Frank Roman, an organizer for 918 who
was born in Puerto Rico and is fluent in both English and
Spanish, started to hand out leaflets to some of the employ-
ees of Tale-Lord. Roman was seen doing so by Teddy and
Ira. Teddy ordered him off the company property and
called for a policeman to execute that order. Teddy told
Roman that 918 could not get into the plant because the
Company had a contract with 178.6 Roman and a group of
Spanish-speaking employees thereupon moved onto the
sidewalk. Ira then came out and bothered the group, also
repeating that 918 could not get into the plant because it has
a contract with 178. The group then moved further away
from the plant and continued their discussion. No authori-
zation cards were signed that day.
Upon his return to the plant, Teddy checked and discov-
ered that only 18 of the employees had ever belonged to 178.
He thereupon telephoned the offices of 178 and, all officers
being on vacation, told the office secretary about the organ-
izing effort being made by 918. The secretary then agreed
to send 178 application cards to the Company immediately.
5 All dates are in the year 1972 unless otherwise specified.
6 No such contract was produced at the hearing. This contract apparently
was the one which Teddy inherited from his father at the time Teddy took
over the business. In his 4 years at the plant, Ira has never seen any union
representative at the plant. In fact, he thought the Local 178 representative
had died many years ago.
LOCAL 918, TEAMSTERS 389
Ira's testimony indicated that, in fact, he personally went to
the offices of 178 and secured such application cards.
On the afternoon of Tuesday, March 28, Teddy had the
178 application cards distributed to the employees for those
who "cared to" to sign. Teddy also spoke over the plant
loudspeaker system, telling the employees that Tale-Lord
had "a 100 percent union shop" contract with 178 so that
those who signed 178 cards could work the next day "but
that, if you don't sign the card, you may not be able to work
tomorrow." 7
At this point, employee Elizabeth Martinez stood up at
her machine and said, "Let's not wait for tomorrow , girls,
let's go on strike today." Thereupon some 30 Spanish-
speaking women and two or three men left the plant. This
exodus was reported to Roman. He proceeded to the plant,
produced picket signs, and the strike was on. The strikers
signed application cards for'918. Maria Hernandez, who
spoke Spanish but no English, was among the strikers at this
time s
According to Teddy, "more than half" his employees
signed the 178 application cards at this time .9 He then sent
the signed 178 application cards together with his check in
a sum less than $1,000 as payment of initiation fees to 178.10
The next day, Wednesday, March 29, Dennis, the lawyer,
having learned of Teddy's patent unfair labor practices of
the previous day, wrote the following letter in " legal lan-
guage" for Teddy's signature:
Ladies and Gentlemen:
We are sorry that some of you went on strike yester-
day. Each of you may return to work immediately.
No one is fired. No one shall lose pay or otherwise
be penalized for the time already spent on strike by
him.
Further under no circumstances shall we benefit or
penalize anyone because he joined or refuses to join
any labor union.
I trust that this letter will eliminate any misunder-
standing that may exist between us and that all of you
will return to work without delay.
After this letter had been signed, Ira attempted to distrib-
ute copies to all the strikers. Most of the strikers refused to
accept them. Thereupon Tale-Lord got out accelerated pay-
checks for the money then due its employees to which they
attached copies of this letter. However most strikers, upon
receiving their paychecks with the letter attached, detached
the letter and left it in the Tale-Lord office. Nobody desert-
ed the picket line.
Also, on March 29, Dennis telephoned President Jack
Fecter of 918 and inquired what "it would take" for him to
call off the strike. Fecter answered either a signed contract
7 The above quote is Teddy's version of his statement . Other versions were
even more definite about not having work the following day. Signing applica-
tion cards under either version can hardly be classified as a "voluntary" act.
8 Hernandez testified that she joined the strikers at this time because they
"threatened" not to help her with her English
9 Teddy was not sure whether this was half of his whole complement of
employees or half of those who remained in the plant.
i It is noteworthy that 178 received no"votes in the election.
or a consent election. Dennis replied that he "would get
back" to Fecter.
About 10:30 a.m. on March 30, President Jack Fecter,
together with 918 Officials Charles Mauro and Joseph Bar-
resi, arrived outside the Tale-Lord plant to keep an appoint-
ment with Teddy and Dennis. As the group parked in front
of the plant, Ira came out and informed them that Teddy
and Dennis had been unavoidably delayed but would be
there soon for the appointment." About 4:30 p.m., after a
number of other similar announcements of further delays
by Ira, Teddy and Dennis arrived at the plant. The union
group was still waiting in the parked automobile . Dennis
came to the car and asked if Fecter "still" wanted to talk.
Fecter was willing, provided he could be accompanied by
an employee committee. Dennis agreed. Fecter, the two
other union officials, and an employee committee of three
approached the plant entrance. Ira was taking movies of this
group and of employees on the picket line, a daily occupa-
tion of his. At the plant entrance, Teddy and Ira refused the
group admission. A few pleasantries to be discussed herein-
after were exchanged between the groups. The union group
then retired. The schedule meeting was never held.
On April 3, Dennis requested a meeting with Fecter at the
918 office. He kept that appointment and remained in
Fecter's office for 6 hours. During that time, Dennis ac-
knowledged to Fecter that he knew nothing about labor
relations and requested Fecter's help on that subject.12 Fi-
nally in the afternoon, while studying a form contract given
him by Fecter, Dennis apparently asked again what it would
take to call off the strike. Fecter thereupon sent to the plant
for an employees' committee. Upon the arrival of this com-
mittee at the office, the committee told Dennis that they
wanted either a signed contract or a consent election. They
got neither at that time.
On or about April 5, Dennis got in touch with the Federal
Bureau of Investigation about his labor problem. He and
Teddy had admittedly been "in constant contact with the
FBI" since the strike began.13 Ultimately, as will be devel-
oped, this contact led Teddy and Dennis to the Immigration
Service. i4
On April 6, Teddy closed down the production portion of
the plant for a 2-week vacation. Ira and the cutter, Manuel
Perez, continued to operate the shipping department.
On April 25, the parties hereto agreed upon a consent
election with the election to be held on May 5.
The plant reopened again for production on April 26. At
this time, one operator, Maria Hernandez, deserted the
11 Who requested this meeting could not be determined at the hearing.
That information was a bit of the "trivia," Teddy's word, which neither
Teddy nor Fecter could recall Nor could any of the other witnesses.
i2 Fecter testified that during this period Dennis was asking for a "sweet-
heart" contract
13 During his testimony, Teddy refused to divulge the name of Tale-Lord's
contact with the FBI on the grounds that this was "privileged information"
and that, even the night before he testified, this contact had convinced him
that "2 years of investigation" would be wasted if his name were divulged
Thereupon counsel for 918 announced that 918 had known for 2 years that
one-Sam Dukes of the FBI had been investigating labor racketeering and that
918 was included in Duke's mvestigation. Dennis acknowledged that Dukes
was his contact.
14 Prior to the hearing, two Tale-Lord striking employees had been deport-
ed"and a third, Maria Hernandez , was at the time of the hearing scheduled
for deportation on November 8, 1972.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picket line and returned to work because, as she testified,
she needed the money.
The picket line remained otherwise intact with Roman
still in charge.
On May 1, Roman offered to call of the strike and to have
the strikers return to work.
On May 2, the strikers returned to work.
On May 4, Ira and Teddy accused Elizabeth Martinez, a
long-time employee and a leader of the 918 faction, of "sa-
botaging" production with bad work and discharged her.
Immediately the discharge became known and all the 918
adherents, with the exception of Maria Hernandez, fol-
lowed Elizabeth Martinez out of the plant and on strike
again.
On May 5, the consent election was held. It resulted in 30
votes for 918, 29 votes for 169, 0 votes for 178, and 1 no-
union vote.
B. Allegations of the Complaint
1. Threats to employees and supervisors
The first violation of the Act alleged in the complaint was
that Respondent 918:
(a) Threatened various employees of Tale-Lord and
in the presence of employees of Tale-Lord threatened
various officers, supervisors, foremen, agents and rep-
resentatives of Tale-Lord to inflict and inflicted bodily
injury and other harm to their persons, and threatened
to inflict and inflicted damage to their property.
As the first-and most important-incident under this
heading in his brief 15 General Counsel cited the testimony
of Dennis as his leadoff witness. Dennis testified that on
March 30 President Jack Fecter in the presence of employ-
ees made the following three threats against Ira, presum-
ably, within a period of, in his estimation, 3 minutes without
any other intervening conversation so far as Dennis could
recall in his direct testimony:
1. "If he [Ira] continues that [taking pictures]-these
guys are going to knife him";
2. "Someone is going to knife him"; and
3. Ira "has a big mouth and he is going to wind up
in a hospital."16
Ordinarily threatening words such as these by a union
official would be sufficient to hold that the Union had
violated Section 8(b)(1)(A).
However, it soon became apparent through cross-exami-
nation that Dennis had not testified on direct to all there
15 In this portion of the Decision , I will refer to those incidents cited in
General Counsel 's brief which he considered important . Unfortunately the
Tale-Lord brief consists of only five pages in which counsel sets forth the
"facts" by days without any indication as to which he considers to be impor-
tant or why. Some of the "facts" cited were not proved . The remaining five
pages of this brief consisted of mere transcript citations.
6 Fecter denied making any such statements.
was to this incident.
It developed that Fecter, according to Dennis, made these
remarks between 4:30 and 5 p.m. on March 30 as Fecter,
two union officials, and three employee committeewomen
were approaching the plant gate for the long-scheduled con-
ference with Dennis and Teddy. This conference had been
postponed from time to time by Dennis' calling the plant on
numerous occasions and informing Ira that he and Teddy
were "inadvertently delayed" in New York City but would
reach the plant shortly. Ira had conveyed these messages to
Fecter and his two union officials from time to time during
the day as they sat in the automobile awaiting the confer-
ence, until Dennis and Teddy finally arrived back at the
plant about 4:30 p.m. At that time, Dennis had walked to
the automobile where the union party had been waiting
since 10 :30 or 11 a.m. and inquired if Fecter "still" wanted
to talk. Fecter agreed to talk if he could have a three-person
employee committee present. Dennis agreed. Thereupon
Fecter, the two union officials, and the three-employee com-
mittee then walked the 60 feet from the parked automobile
to the plant gate. Fecter noted that Ira was then taking
pictures of the employees on the picket line as well as the
group approaching the plant entrance. As he approached
the entrance, Dennis testified that Fecter made his first
remark. When the group reached the entrance, Teddy, over
the objection of Dennis, refused to permit anyone but Fec-
ter in the plant. In this refusal, Ira aided and abetted his
father by urging him not to speak to these " gangsters" and
"hoodlums." At this point (and not in the total silence the
testimony of Dennis implied), Fecter made the other two
alleged remarks, according to Dennis.
I do not intend to condone the use of such threatening
language by union officials or company officials. But the
fact of the matter is that Fecter's remarks were definitely not
unprovoked. He and his party had been kept waiting from
10:30 or 11 a.m. until 4:30 p.m. for the sole convenience of
the Boshnacks. Ira was taking pictures of not only the
group, but also the employees of the picket line, a rather
palpable unfair labor practice in, of, and by itself." Then
Dennis agreed that Fecter and the union officials could be
accompanied by three employee committeewomen, but at
the plant door Dennis was overruled by Teddy, who stated
that he would only talk to Fecter alone while, finally, Ira
kept urging Teddy not even to only talk to these "gangsters"
and "hoodlums." 18
First, contrary to Dennis' most innocent testimonial ver-
sion of this affair, Fecter's threats, even if made,19 were far
from being unprovoked.
The 5-1/2-hour delay of the scheduled meeting caused
solely for the personal convenience of the Boshnacks,20 the
17 See Tennessee Packers, Inc., 124 NLRB 1117.
18 Perhaps Fecter and party were "hoodlums" and "gangsters ," although
at the hearing Dennis never attempted to prove more than that Fecter had
had his name legally changed by court action, which hardly justified the
terms bandied about by Ira. Moreover , even actual gangsters and hoodlums
resent being referred to as such.
191 was not impressed with Fecter's honesty as a witness , but, on the other
hand, as will be explained hereinafter, the Boshnack credibility was sorely
shaken by the testimony of both Dennis and Teddy, particularly in regards
to their contacts with the Immigration Service and other matters.
20 Inconveniencing others proved to be a strong characteristic of the Bosh-
nack family.
LOCAL 918, TEAMSTERS 391
unfair labor practice moving picture taking, the strange and
sudden reversal of the agreement to allow an employee
committee to be present at the conference, together with the
uncalled for name-calling, was sufficient to provoke some
retaliation in kind on the part of Fecter. Name-calling hard-
ly ever remains one-sided during labor disputes unfortu-
nately. The present instance proved to be no exception.
However, any employee who might have been within hear-
ing distance would recognize this for what it was: merely a
mutual caterwauling.
Under the circumstances here, this mutual caterwauling
can hardly be realistically dignified by being found to con-
stitute a violation of Section 8(b)(1)(A). I so find.
The second episode which General Counsel finds of suffi-
cient importance to mention in his brief under this allega-
tion of his complaint is the testimony of nonstriking
employee Evelyn Gravesande, who testified that during the
week the factory reopened (April 24) she saw Frank Roman
throw an egg at a named employee entering the plant. This
egg-throwing and the Union's responsibility therefor will be
discussed in a subsequent section of this Decision.
The next incident cited in General Counsel's brief is an
incident occurring during the week of April 17 21 when,
according to the brief, Frank Roman "threatened" Ira with
a gun. Ira's testimony is that on this occasion Roman stated
to him, "I have something to show you" or "I got something
for you," thereupon returned to his car and returned with
a "revolver" covered by a handkerchief in his outstretched
palms with a comment, "This is for you."
Characterizing this testimony as a "threat" to Ira seems
to be absurd on its face. There is in this incident, even as
described by Ira, no showing of any intent in anyway on the
part of Roman to harm Ira in any fashion. At best the
incident is ambiguous, as perhaps Roman merely wanted to
show Ira a nice "revolver" or perhaps make him a present
of it-until Ira panicked and yelled for help from Teddy.
This becomes even more apparent when, on cross-examina-
tion of Ira, it developed that at the time Ira saw and recog-
nized the covered object to be a "revolver," Roman was
admittedly 30-40 feet away from him with an object wrap-
ped in a handkerchief lying flat in his two outstretched
palms. Ira testified that he assumed it to be a revolver by
its shape under the handkerchief. Roman did flip the cover-
ing part of the handkerchief back for a moment so that Ira
"knew" that it was a revolver, real or toy. Even assuming
the object was a real revolver, it constituted no threat to Ira
while lying in Roman's two outstretched hands in the posi-
tion Ira described it to be. In fact, even if it had been a real
revolver, in the position Ira described it to be, it never
became dangerous. But Ira panicked and yelled for Teddy.
Roman's prank had succeeded, probably beyond his wildest
hopes. Teddy did not see the object.
Roman testified that the object covered by the handker-
chief was, in fact, a banana. I am inclined to agree with
Roman.
The apparent reason for this testimony by Ira seems to
21
Originally Ira set the date as May 5 but ultimately, with the request that
we not hold him to the dates, set the event as occurring between April 6 and
24.
have been to cover up the fact that during the strike Ira
admittedly did carry a shotgun from his truck to the factory.
Ira testified that the shotgun was loaded which, in turn,
means that the shotgun was assembled. Teddy testified that
the gun was unassembled and unloaded at all times to the
best of his knowledge. Neither could agree as to when or
why the shotgun got to the plant. The Boshnack testimony
regarding this shotgun did not help to enhance the credibili-
ty of either witness.
This whole gun episode must be dismissed because it is
quite obvious that Ira's youthful imagination once again ran
away with him.
Ira testified that he and Roman had daily "nose-to-nose,"
Ira's description, arguments during which Ira acknowl-
edged that he retaliated threat for threat with Roman.
Hence I cannot take seriously Ira's testimony that Roman
said, "I wouldn't be surprised if there was a shooting here"
or that on another occasion Roman said that he would not
be surprised "if the plant went" and then made gestures
which Ira interpreted to mean "blown up." Ira further testi-
fied that Roman made threats to harm Ira's and Teddy's
automobiles, with Ira retaliating again in kind. Any employ-
ee hearing this caterwauling between Ira and Roman would
have recognized it for exactly what it was: mutual cater-
wauling. In addition, Ira proved himself to be an imagina-
tive, and well coached, witness whose testimony indicated
that he thought he knew what testimony was necessary and
sought to supply it. However, Ira did admit to taking pic-
tures of the striking employees on the picket line daily.
As is not unusual in a strike of this sort, some six or eight
tires were flattened by person or persons unknown. The sole
attempted identification of any individual responsible for
such action was made by Maria Hernandez as an
employer's "rebuttal" or "newly discovered evidence" wit-
ness, after she had previously testified in Employer's case in
chief without having mentioned the incident or the purport-
ed identification.
Hernandez testified that she had seen striking employee
Ada pick up a nail in the gutter, after Roman who was
walking around talking to the striking employees some dis-
tance away "made a gesture" that nails were there, and then
"went under the car" and punctured two tires with the nail
and her bare hands. In fact, according to Hernandez, due
to the presence of police wandering around, Ada had to go
under the car twice in order to accomplish this trick.
This story of a seamstress crawling under an auto while
the police wandered around and puncturing a tire with her
bare hands and a nail appears to be so inherently improba-
ble as to be unbelievable even with tires as old as the owner
of the car testified they were. This same applies to the "ges-
ture" which Roman was supposed to have made with his
hands to indicate nails in the gutter. Further comments on
the credibility of Hernandez will be made hereinafter.
The fact is that four of Manuel Perez' tires were flattened.
I am not so naive as not to suspect that perhaps a striker did
the deed even though Teddy paid for the repairs. But I
cannot accept Hernandez' description of the method used
nor the individual allegedly involved. Nor can I make a
finding based on mere suspicion or surmise that Respon-
dent Union was in fact responsible for these actions. Thus
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this portion of General Counsel's case has to be dismissed
for lack of probative proof.
General Counsel argues in his brief, however, that I
should believe that the Union's "designated agents" did all
of the above because Roman and Ada, for instance, failed
to deny what evidence the General Counsel presented and
in part because Roman was not a truthful witness. This
argument puts the cart before the horse. Before Roman's
lack of credibility, if any, enters the picture, there must be
some probative evidence of union responsibility and union
identification. There was none such presented as to the
allegations of paragraph 8(a) of General Counsel's com-
plaint. Hence, I will dismiss this allegation of the complaint.
2. Blocking ingress and egress
Paragraph 8(b) of the complaint alleges that the same
union officials and agents "attempted to block and blocked,
entrances to and exits from Tale-Lord plant and premises
and attempted to prevent and prevented employees of Tale-
Lord entering and leaving the said plant and premises."
General Counsel does not even argue this point in his
brief. In this he was correct. There is no evidence in this
record to sustain any such charge.
Accordingly, I will dismiss the allegations of paragraph
8(b) of General Counsel's complaint.
3. Egg-throwing
By amendment General Counsel added paragraph 8(c) to
his complaint, alleging that Respondent by Jack Fecter,
Frank Roman, and "by other agents whose names are pre-
sently unknown" 918:
(c) threw eggs and other objects at employees of
Tale-Lord as the said employees attempted to enter
and leave Tale-Lord's plant and premises.
Admittedly there was considerable egg-throwing during
the first 2 or 3 days of this strike. The testimony showed that
these eggs appeared to come from the direction of the picket
line and landed on or near employees entering or leaving the
plant . This is just about the sum and substance of the testi-
mony presented by General Counsel and Employer.
Thereafter there was little, if any, egg-throwing following
the first few days when Roman said, "No, no" to the strikers
and told them that they were not doing their cause any good
by such tactics . This action by Roman appeared to practi-
cally stop all egg-throwing.
Of course egg-throwing should not be countenanced even
during a strike . If the Union is responsible for egg-throwing
at nonstriking employees , then the Union is violating Sec-
tion 8(b)(1)(A).
The identification of the throwers of these eggs in this
record is practically nil. The proof of the Union 's responsi-
bility for the egg-throwing is even less.
One witness , Maria Perez , testified that in the first 2 days
of the strike three named strikers threw eggs . She also heard
Roman tell these three , "No, no" regarding their throwing
eggs. Thereafter these three aparently ceased their efforts
along this line because, according to her, eggs were only
thrown the first 2 days.
There was one incident about the same time when striker
Rominita Marero threw an egg from a distance of about 6
feet and hit nonstriker Eva Watt as she and others then
working were leaving the plant. Watt thereupon knocked
Marero flat by hitting her with her handbag which had
previously been loaded with metal filings for just such a
purpose.
There is no showing that the Union or Roman authorized,
suggested , or otherwise sanctioned Marero's action on this
occasion. In fact it appears to have been an instantaneous,
spontaneous incident or, perhaps, a personal vendetta be-
tween the two combatants.
The evidence shows that after this incident the nonstrik-
ers followed the lead of Watt by putting hard metal objects
and/or salt and pepper in their handbags for protection.
The evidence further showed that none of this protective
equipment was thereafter ever used, except in the Marero-
Watt incident.
Ira also testified that he once saw Roman during the first
days of the strike "throw an egg" at him but that the egg
burst in air. On a separate occasion, Ira testified that he saw
Roman "cock" his arm but could not see what, if anything,
Roman held in his hand-except that Ira "thought" he saw
a rock drop from Roman's hand behind his back on this
occasion.
Ira's final identification of a thrower or throwers was as
follows:
A. . . . and then when she walked into the place, I
saw Elizabeth Martinez and Frank Roman throw an
egg at the car, at-
JUDGE WILSON: Did they both throw the same egg?
THE WITNESS: I saw them throw the eggs.
JUDGE WILSON: The egg or eggs?
THE WITNESS: Eggs.
JUDGE WILSON: At?
THE WITNESS: At her car-you know, at her son's car.
By Mr. Friedman:
Q. And who threw the first egg?
A. Well, I saw the eggs come flying. You know, it
could have been one or the other. [Emphasis supplied.]
This rather characteristic type of testimony from Ira is
hardly probative.
With one exception this is as far as General Counsel and
Employer proceeded in identifying the guilty parties. It falls
far short of proving the Union responsible for the egg-
throwing. This is especially so as the undisputed evidence
proved that male employees from a nearby paper factory,
over whom the Union had no control, were frequently in
and about the picket line of striking women employees of
Tale-Lord. It is also a well-known physiological fact that
male throwing arms are much better than the female varie-
ty. This is further corroborated by the fact that at
Respondent's request the strike area was almost always un-
der the eyes of the New York police department and it was
admitted that no arrests were ever made during the period
of the strike.
However, nonstriker Evelyn Gravesande positively iden-
tified Frank Roman as having thrown one egg which hit an
LOCAL 918, TEAMSTERS 393
employee as she entered the factory on April 25 or 26.
Gravensande was an obviously careful and truthful witness
whose testimony I credit over Roman's denial that he threw
any egg.
Roman was a generally honest witness . However, in his
affidavit given to a Board agent prior to the hearing he
denied having seen any eggs thrown . At the hearing, he
admitted that eggs were, in fact, thrown but was unable to
identify anyone who threw them. He continued to deny, as
stated in his affidavit, that he had thrown any eggs. I am
convinced from Granvesande 's credited testimony that he
threw one egg on or about April 25-26 even though it was
well established that few, if any eggs, were thrown after the
first few days of the strike.22
This single proved aberration, however, is an isolated
incident which would not create responsibility on the Union
for the other eggs previously thrown by persons unknown,
especially in the light of the undisputed testimony that Ro-
man had instructed the strikers not to throw eggs, as previ-
ously noted.
As General Counsel and Employer failed to produce any
probative proof that union agents engaged in, authorized,
endorsed, or encouraged the throwing of eggs in any way,
I cannot hold the Union responsible for the eggs which were
thrown . The burden of proof was on General Counsel and
Employer to produce such proof of union responsibility.
This they have failed to do. As I am not permitted to specu-
late or surmise , I must, therefore, dismiss this allegation of
the complaint.
4. Further cited episodes
General Counsel's brief next cites an incident which also
occurred apparently the same day on which Manuel Perez,
the nonstriking cutter at Tale-Lord, heard through an anon-
ymous call, according to his testimony , that the tires of his
automobile had been flattened. That day, March 29, he
went to lunch with a friend but returned to the plant alone
carrying a-full coke bottle in a paper sack. As he attempted
to pass the picket line, which that day was led by two women
carrying a strike banner and a Puerto Rican flag, Perez
claimed that he was "surrounded" by 10-15 women strikers
in the presence of the police . "Somehow" he managed to
break through this line of women and ran from the girls to
the factory. As he arrived at the plant door, an individual
named Jesus Padilla swore at him . According to Perez, Per-
ez then said, "I'm telling you that you are a man and you
shouldn't call me like. We have to see -about this later on."
Then, still according to Perez, as Padilla walked towards
Perez, he "made a move" so Perez struck Padilla in the
mouth whereupon Padilla hit Perez back.
According to the strikers, as Perez went past the picket
line on this occasion, he made an attempt to strike Alma
Guzman who was carrying the Puerto Rican flag , the corner
of which may have brushed Perez as he was passing. It was
^ Despite its present expense, egg-throwing during crises appears io be
endemic to New Yorkers . The New York papers were full of accounts of
egg-throwing during school busing crises in the Canarsie district of New York
which occurred simultaneously with the present hearing Such may soon go
out of style because of its increasing expense
this attempt by Perez to strike Guzman with the coke bottle
which brought Padilla and the police to the scene.
The only thing clear in this little fracas is that Perez struck
the first blow. This incident also appears to be one of those
spontaneous personal affrays which will occur during
strikes. Even accepting the Perez testimony at face value,
there is no proof here of union responsibility therefor. In
fact, the episode was too insignificant for even police action.
Subsequently, on May 5, Perez and Padilla shook hands.
The final incident relied on in General Counsel's brief is
that, when Maria Hernandez returned to work on or about
April 26 when the plant reopened after the 2-week holiday,
a striker, Ana Rivera, told Hernandez that she "was going
to see blood."
For reasons which are not altogether clear, General
Counsel does not appear to rely on other testimony by
Hernandez which, if believed, constitutes probably the most
viciously coercive threat I have ever encountered in a Labor
Board hearing. It would appear that he, like I, do not believe
that that threat was made by 918. This last threat is treated
under the objections section of this Decision.
Suffice it to say here in regard to the present threat, which
General Counsel does appear to rely upon, that this alleged
threat does not appear to have bothered Hernandez for the
simple reason that on May 4 Hernandez was invited by the
same persons to attend a preelection meeting of 918 and
willingly attended that meeting with them. It is apparent
that this alleged threat, even if made, did not bother Her-
nandez. In fact it is doubtful that Hernandez would have
attended the meeting if the alleged threat had been made.
Again General Counsel and Employer have failed to es-
tablish by any probative evidence the Union 's responsibili-
ties for any of the incidents which General Counsel
considers important enough to cite in his brief. In fact Gen-
eral Counsel's argument on the question of union responsi-
bility amounts to no more than the following:
The cases have held that where a picket line is the
scene of repeated acts of misconduct, to the knowledge
of the Union conducting the picketing, the Union has
the duty to take steps reasonably calculated to curb the
misconduct and failing this the Union may be held
responsible for resulting restraint and coercion of em-
ployees. Local 5881, United Mine Workers (Grundy
Mining Co.,) 130 NLRB 1181 enf. 296 F.2d 734, United
Steel Workers of America (Vulcan-Cincinnati) 137
NLRB 95.
I agree with this principle of law but find it inapposite
here. General Counsel forgets that the proof shows that the
only thing which Roman knew about, according to the evi-
dence presented, was the egg-throwing and that it is undis-
puted that he told the egg throwers, "No, no," and, that such
tactics would not aid their cause. Thereafter there was little,
if any, egg-throwing.
Actually for a strike lasting from March 29 to May 5 the
number of untoward incidents was very small and, with one
exception covered in the objections section hereof, hardly
worthy-of note.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, although some of these incidents should not
have occurred, General Counsel and Employer have failed
in their burden of proving that the Union was responsible
for such untoward acts. I will, therefore, dismiss Case 29-
CB-1178 in toto.
C. Objections to Election
Following the election on May 5 with the results previ-
ously noted herein, together with challenges to 12 voters,
which fortunately are not at issue here, Employer by its
attorney, Dennis, by letter dated May 10, filed the following
"Objections to Election":
With respect to the election conducted by the Na-
tional Labor Relations Board at Tale-Lord Manufac-
turing Co., Inc. on May 5, 1972, Tale-Lord objects to
the conduct of the election and to conduct effecting
[sic] the results of the election.
The reasons for this objection include, but are not
limited to, the following:
1. All or a substantial number of the voting instruc-
tions given by the Board's agents to prospective voters
on May 5, 1972, were inaudible and therefore also
either unintelligible or misleading to many of these
voters.
2. Teamsters Local 918 committed the following of-
fenses between March 30 and May 5, 1972:
(a) Conversations with prospective voters who
were waiting to vote in the polling area on May 5,
1972,
(b) Electioneering at the polls on May 5, 1972.
(c) Dissemination of illegitimate campaign propa-
ganda between April 27 and May 5, 1972, e .g., misre-
presentation of benefits obtained from other
employers and of Tale-Lord's disciplining of em-
ployees.
(d) Intimidation of prospective voters between
March 30, and May 5, 1972, e.g., breaking eggs on
these voters, damaging their cars and threatening
their lives, threatening to get five of these voters in
trouble with various governmental agencies if they
voted in the election or if they did not vote for Team-
sters Local 918, slashing Fortunada Anderson's coat
in the locker room at Tale-Lord on May 4, 1972, and
placing poster -containing threats of violence in this
'locker room on May 4, 1972.13
On July 7, in his Report on Objections, the Regional
Director considered the Employer's objections, which he
restated and numbered as follows:
EMPLOYER OBJECTIONS
1. All or a substantial number of the voting instruc-
tions given by the Board 's agent to prospective voters
23 During the hearing , Dennis handed me a photostatic copy of this letter,
which at that time I assumed to be a copy of an exhibit already admitted in
evidence . However, I find no such letter among the exhibits . Therefore,
because of certain minute differences between this letter and the Regional
Director's description thereof in his Report on Objections , I hereby take the
admittedly unorthodox step of marking my photostatic copy of the letter as
"Trial Examiner's Exhibit 2" and admitting same in evidence . I can perceive
no prejudice to any party by this action.
on May 5, 1972 were inaudible and therefore also either
unintelligible or misleading to many of the voters.
2. Local 918 converged with prospective voters who
were waiting to vote in the polling area on May 5, 1972.
3. Electioneering at the polls on May 5, 1972 by
Local 918.
4. Local 918's dissemination of illegitimate cam-
paign propaganda between April 27, 1972 and May 5,
1972, e.g., misrepresentation of benefits obtained from
other employers and of Tale-Lord's disciplining of em-
ployees.
5. Local 918's intimidation of prospective voters be-
tween March 30, and May 5, 1972, e.g., breaking eggs
on these voters, damaging their cars and threatening
their lives, threatening to get five of these voters in
trouble with various governmental agencies if they vot-
ed in the election or if they did not vote for Teamsters
Local 918, slashing Fortunada Anderson's coat in the
locker room at Tale-Lord on May 4, 1972, and placing
posters containing threats of violence in their locker
room on May 4, 1972.
In his first report, after considering the evidence present-
ed, Regional Director dismissed Objections I and 4 and
combined the remaining objections for "hearing, ruling and
decision by a Trial Examiner" along with Case 29-
CB-1178. By letter dated July 13, Employer requested re-
consideration of that first report of the Regional Director,
particularly as to its Objection 4. In the Regional Director's
Second Report on Objections dated August 15, 1972, the
Regional Director ruled that "the [new] allegations that the
petitioner [918] circulated a marked facsimile of the Board's
official ballot" created a issue of fact and consolidated the
same for hearing as above.
By letter dated August 22, Employer "offered further
evidence in support of its Objections No. 5," i.e., the alleged
"intimidation of prospective voters" by 918. In his Third
Report on Objections dated September 15 said Regional
Director overruled this new allegation "without considering
the timeliness of the new evidence."
With this past history the merits of, and Employer's good
faith in, filing its objections must also be viewed in the light
of the following admission made by its attorney during the
instant hearing:
MR. BOSHNACK: Your Honor, if I may be heard? I say
in late May or early June I spoke to the Department of
Justice.
I would point out that in making objections, the party
who makes them does not necessarily or need to know the
facts on which the objections are based at the time he
makes them.
JUDGE WILSON: What? 24
MR. BOSHNACK: He must make objections within five
days in order to protect his right to make objections.
MR. GOLDBLATr: No matter what they are?
24 This was an exclamation of astonishment and incredibility which pho-
netically probably would be more accurately written as "wha-a-at!"
LOCAL 918, TEAMSTERS 395
MR. BOSHNACK Yes.
So I made an objection on a ground that I thought
might have existed.
Most of the information I, had was on, you know,
hearsay.
When I went to investigate these things, when I went
to get the facts, this was all in October after our last
hearing was adjourned, you know, between then and
now. [Emphasis supplied.]
This verges upon an abuse of the Board's processes.
So now we turn to the Tale-Lord Objections to the Elec-
tion.
Employer's Objections 2 and 3
In the Regional Director's original report he found that
Objections 2 and 3 were so similar that they could be, and
were, treated together. I agree. However, it is obvious that
the evidence on this point mentioned in the Regional
Director's report is not the evidence which was presented at
the instant hearing. According to the Regional Director's
report, the evidence before him indicated that there were
groups, large and small, of unnamed, but alleged, 918 adher-
ents wandering in and about the polling area talking to
prospective voters waiting in line to cast their ballots and
that these conversations continued for substantial periods
of time.
At the instant hearing, these alleged "groups of women"
appeared to have been reduced to one woman, Postacia
Rodrigues.
According to the evidence presented in the instant matter
by a few Employer witnesses who themselves were loafing
in or near the polling area throughout the 2 hours during
which ballots were cast, Postacia spent that same time either
waiting in line to vote or walking close to others in the line
and speaking to them. Not one witness was produced to
testify that Postacia had spoken to her or him while in the
line or that Postacia had had anything to say to them, except
one witness who testified that Postacia had offered to per-
mit him to go ahead of her in the line of voters.
These same witnesses also testified that during the above
alleged endeavors Postacia also flashed to prospective vot-
ers a paper containing four boxes (the official ballot also
had four boxes) with an "x" marked in the last box (the 918
box). This "paper" was variously described as an ordinary
piece of paper or as a facsimile copy of the official ballot.
Not one witness was produced who testified that he or she
saw this while waiting to vote. The witnesses also testified
that Postacia held this paper, whatever it was, folded up in
the palm of her hand. Under these circumstances, it is im-
possible that she was palming a copy of the official ballot
due to size alone. In fact, it is impossible to believe the
testimony presented. Even if true, this evidence would not
invalidate the election.
The election of May 5 was conducted by two Board
agents. Local 918 requested permission of the Regional Di-
rector to produce these two Board agents as witnesses. The
request was refused. Local 918 thereupon made telephonic
and telegraphic request to the Board in Washington for the
right to produce these two Board agents as witnesses. The
request was denied. Such denials did not assist the search
for the truth 25
Postacia herself denied the allegation against her except
that she was for a considerable period in the same area as
that occupied by the witnesses against her.
Under the circumstances here, I have to credit the denial
of Postacia and find no violation of the Board's rules con-
cerning the conduct of election.26
On the evening of May 4, the night before the election,
a group of striking Spanish-speaking 918 adherents, includ-
ing Maria Hernandez, gathered in the home of another
Spanish-speaking employee where Roman and Elizabeth
Martinez, using a sample facsimile ballot, explained to the
group in Spanish the voting procedures which could be
followed the next day. Maria Hernandez testified that this
sample ballot contained a printed "x" in the 918 box. Anoth-
er witness saw this same sample ballot after Roman's talk
with a penciled "x" in the 918 box. Others at the meeting saw
no "x" in any box at any time. Nobody testified to seeing
anyone place an "x" printed or penciled, on this sample
ballot. Under these circumstances, especially the circum-
stances in which Maria Hernandez unfortunately found
herself, which will be more fully developed hereinafter, I am
unable to credit the testimony that 918 used a marked sam-
ple facsimile ballot, or marked a sample ballot, for this
explanation of the voting procedures.27
Not being able to credit the evidence presented on this
point by the Employer, I cannot find that there was any
"illegal electioneering" at the polls and, therefore, dismiss
this objection.
In its letter of May 10, the Employer objected to what it
chose to call "illegitimate campaign propaganda" by "mis-
representation of benefits obtained" by 918. The Regional
Director dismissed this objection. No such evidence was
presented at the instant hearing. Hence I agree with this
dismissal.
However, Employer did put in evidence a cartoon posted
in the ladies' room of the plant on May 4. This cartoon
depicted a Tale-Lord employee holding two cats by their
tails, one labeled "Local 169'r and the other "Local 178."
The employee is saying, "We want Teamsters Local 918 to
represent us. You cats belong in the river with our boss."
The 169 cat is saying, "It looks like they know Boshnack
brought us in. They're wise to us." The 178 cat says, "We're
all wet anyway."
Originally the Regional Director dismissed this objection
but apparently reversed himself in part in his, August 15,.
1972, second report. I see no reason for that reversal in
25 In fact the Employer's original objections included criticism of these
Board agents for not giving their election instructions in a loud enough voice
so that the instructions could be heard and understood. This objection was
rather cursorily dismissed by the Regional Director. Many Board agents,
including this one, do not care for such "administrative white washes."
26 It is noteworthy that the claims made here against Postacia were appar-
ently not presented to the Regional Director or, if they were, he decided the
issue sub silentzo against the Employer.
27 In Employer's original objections this marked ballot claim was not made
but arose only on July 13 in Employer's motion for reconsideration. At that
time, the claim was made that such marked facsimile of the official election
ballot was "distributed or mailed" to the employees. No such contention was
made at the instant hearing. Instead the above testimony as to this election
meeting in May was presented. This evidence had not been presented previ-
ously
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard to the above cartoon. In the light of Teddy's loud-
speaker announcement to the employees on March 29, the
cartoon constitutes "fair comment," if not the absolute
truth 28
Accordingly, the evidence requires the dismissal of
Employer's Objections 1, 2, 3, and 4.
That brings up Objection 5.
At the hearing, Dennis contended that the egg-throwing,
the threats, the rip in Fortunada Anderson's coat, and the
cartoon "containing threats of violence," plus another alle-
gation to be discussed immediately hereinafter, created such
an atmosphere of "chaos and fear" as to deprive the em-
ployees of their ability to freely choose their representative
in the election of May 5. Yet every voter who testified here,
with the exception of Maria Hernandez, testified credibly
that she freely voted her choice at that election.
I have already found heretofore that eggs were broken,
automobiles were damaged, and names were called, as well
as the cartoon posted. Except for the cartoon, none of these
things should accompany a strike-but unhappily they do.
Also heretofore I have found that there is no evidence in
this record upon which the Union can be held responsible
for the above-mentioned activities, with the exception of
one egg thrown by Roman on April 25-26. As noted, I am
not so naive as not to suspect that perhaps strikers were
involved in other incidents. But the courts refuse to allow
me to speculate and, therefore, I must base my findings on
proven facts, not on speculation. General Counsel and Em-
ployer both failed to prove facts sufficient to hold 918 res-
ponsible.
Moreover, the type of misconduct listed above is unfortu-
nately'endemic to labor disputes and is insufficient to create
the "fear and chaos" which would deprive the voter of his
freedom of choice. If this were not so, our working people
would be of much weaker fibre than they are in fact and
in addition, few, if any, elections, Board or national, could
ever be held.
Also, as a matter of fact, the "violence" alleged here was
relatively mild, a few eggs thrown the first few days of the
strike, six or eight flat tires, and a few unpleasant personal
remarks. Nothing here is sufficient to set aside the present
election-even if those events could be-held to be the res-
ponsibility of 918 which, of course, legally they can not be.
There was-the strange incident to Fortunada's coat. It was
ripped by person or persons unknown. Nobody saw anyone
rip the coat. It is an interesting sidelight that, among the
employees inside the plant, the strikers were blamed for the
incident but Teddy took $50 dollars out of his pocket and
paid Fortunada for her coat.
28 Employer's description of this cartoon as a "threat of violence " is cer-
tainly farfetched.
However there is no evidence here as how 169 got into the picture. The
fact that 169 took over all the votes from 178 despite Boshnack 's efforts on
behalf of 178 on March 29 is cause for suspicion at least.
It appears that Employer secured the Regional Director 's reversal of his
dismissal of Objection 4 with the claim that 918 "distributed a marked
facsimile" of the Board's official ballot . Yet Employer presented not one
word of testimony in the instant case regarding any "distribution" of a
marked ballot . Thus, it appears that the "distribution" claim was another
objections based on what "might have happened." Therefore this change
appears to be nothing more than a delaying tactic and a further abuse of the
Board's processes.
This last was apparently not, known to the employees
inside the plant. Also it was apparently not known to Den-
nis, who started to impeach his own father as a witness on
the stand because, as Dennis then stated, Fortunada had
denied to him that Teddy paid for the coat. Dennis was right
about one thing: somebody lied.
Teddy's immediate $50 payment for the coat creates even
further doubt as to who tore Fortunada's coat and why. But
the coat tear did serve to solidify feelings against 918 among
the nonstriking employees.
The Employer's final allegation is the piece de resistance:
that 918 was "threatening to get five of these voters in
trouble with various governmental agencies if they voted in
the election or if they did not vote for Teamsters Local 918!'
If true, this is, without doubt, the most vicious type of
coercion I have yet encountered in my many years with the
Board, especially in a plant manned so nearly completely
with individuals recently immigrating to the United States.
"Residency permits" are worth more than gold to these
recent immigrants. So valuable are they, in fact, that some
are afraid to carry them on the streets of New York for fear
of losing them. Without them the immigrants are subject to
deportation.
From the results it appears that some such threat was
indeed made-and carried out. The Immigration Service
raided the plant on June 22, 1972. Two employees had been
deported by the time of the hearing and Maria Hernandez
and family were scheduled for departure on November 8,
after having been given a delay since October 19 so that she
could testify on behalf of Employer here. The two deportees
were strikers. Maria Hernandez had started as a striker but
returned to work on April `24. No nonstrikers were deported.
Although General Counsel failed to cite the incident in
his brief, he called Maria Hernandez as a witness in his
case-in-chief. On this occasion on the witness stand, Her-
nandez testified that she went out on strike with the 918
supporters on March 29 but abandoned the strike on or
about April 24 or 25 and returned to work. At the time of
her return to work, she testified, "There was a little group
there [i.e. in front of the factory], that was Gladys [?], Ada
[Siebens ? ], and I don't remember the other names of strik-
ers" who she testified said to her, "For example, if 918 didn't
win, they were going to send Immigration there because
they knew we didn't have it [i.e., residency permits]."
Hernandez was the only witness called who testified that
any striking employees-admittedly not in the presence of
any 918 agent-made such a threat to her or in her presence.
Hernandez further testified that Margareta Perez, Esparan-
za Perez, and Ettervina were present when this threat was
made. Yet these three named individuals were either not
called as witnesses or failed to corroborate Hernandez's
testimony as to this threat.
Intake this finding in the disjunctive solely because this
record proves that many of the women in the plant were
referred to in the record by two or more different names.
Two women witnesses named Perez testified at the hearing,
but neither corroborated this part of Hernandez's testimo-
ny. Nor did any other witness. Nor were any of these indi-
viduals proved to be available. In this state of the record,
it is a fair inference that, if called, the testimony of these
named individuals would have been unfavorable to General
LOCAL 918, TEAMSTERS 397
Counsel and/or Employer. I draw this inference.
Thus Maria Hernandez is the sole witness who testified
that any threat regarding the Immigration Service was made
by any adherent of 918.
Logically it would seem that this vicious threat, if made
by 918, would have caused Hernandez to remain on the
picket line with the 918 adherents because Hernandez did
not have a residency permit and was thus subject to depor-
tation. Yet promptly after the threat was allegedly made,
Hernandez deserted the picket line and returned to work
despite the threat and allegedly because she needed money.
In addition, although Hernandez testified that this threat
caused her to be "afraid," she was invited to, and did attend
t 9 preelection meeting of 918 held on the evening of May
There is also a statment by Dennis in the record to the
effect that on or about April 24 he was told by Manuel Perez
that three girls in the factory were talking about this threat.
Manuel Perez did not so testify. Nor were the three girls
Manuel Perez was supposed to have overheard talking
about this threat called to testify as witnesses . Thus Maria
Hernandez still remains the only witness in this proceeding
who testified to any threat regarding immigration made by
any adherent of 918.
Yet, on June 22, the Immigration Service did raid the
Tale-Lord plant looking for illegal immigrants with the re-
sult above noted.
Maria Hernandez had originally been scheduled for de-
portation on October 19, but that date was postponed by the
Immigration Service when notified by Dennis that he had
subpenaed Hernandez to testify on behalf of Employer at
the instant hearing. According to Dennis, Hernandez was
his "best witness" on the allegedly marked facsimile ballot.
There is in this record not one word of evidence that 918
ever approached the FBI or the Immigration Service.
But this record is replete with testimony that Employer
was "in constant touch with FBI since the strike began."
At page 755 of the transcript Dennis testified as follows:
But later on, 918 was doing things in the factory-well,
we thought they were; I don't say that you were. You
know, sabotaging work, causing disruptions , dissen-
tions and I called up a government agency, the FBI. I
said on the 5th of April when the locks were jammed
with nails . I said that they were sabotaging the work.
I said that they were threatening, you know, by extor-
tion to get people to vote for them by saying that they
would report them to Immigration if 918 didn 't win the
election, you know , these girls. If they would find this
out, they'd get something on, you know, Jack Fecter
whom I believe was being investigated by various agen-
cies.
It could have been that based on my statement, they
contacted Immigration, and Immigration came down
to the factory. [Emphasis supplied.]
29 As found heretofore, Hernandez testified to the allegedly marked fac-
sumle official ballot used in the discussion of the voting procedures by
Roman and Elizabeth Martinez. Hernandez' testimony regarding this event
was at variance from that of other witnesses
However on page 759 of this same transcript Dennis testi-
fied as follows:
I said that Local 918 was threatening-and I want to
make on thing clear; my conversations with the-with
anyone regarding Immigration in any way occurred in
early June or late May, you know, well after the election
of May 5. [Emphasis supplied.]
Teddy's testimony on this point is slightly different. He
testified that he was not in touch with any representative of
Immigration Service about this manner until "late May-
early June." He also testified that the raid of June 22 oc-
curred after the Immigration Service had notified them that
the raid would be made.
It is noteworthy that, if Dennis' first above-quoted testi-
mony can be believed, he was complaining to FBI as early
as April 5 about the alleged threat by 918 to bring in the
Immigration Service, although the only witness to whom
that threat was supposedly made by adherents of 918 placed
the date of the threat as about April 24-25. Employer's
objections, dated May 10, contained the following item:
-threatening to get five of these voters in trouble with
various governmental agencies if they voted in the elec-
tion or if they did not vote for Teamsters Local 918,-
In addition, Dennis acknowledged receipt of hearsay in-
formation from Manuel Perez about April 24 that three
employees inside the plant had been talking about this al-
leged threat. In the light of his avowed purpose to help FBI
"get something on" Jack Fecter, it is difficult to believe that
persons "in constant contact" with FBI from the inception
of the strike,-or at least April 5 at the latest, would withhold
this choice item from FBI until "late May or early June."
The aforementioned conflicting testimony did not enhance
the Boshnack credibility.
So now it appears obvious that the Employer was respon-
sible for the lead given to the Immigration Service which
resulted in the raid of June 22. This fact, however, does not
establish necessarily the identity of the party responsible for
the original threat, if made, to bring in the Immigration
Service.
According to the only testimony of probative value, ad-
herents of 918 made this alleged threat to bring in the Immi-
gration Service to Maria Hernandez and three other named
employees in the same conversation. According to some
hearsay testimony here, three other named employees were
overheard in the plant talking about this same alleged
threat. Yet Maria Hernandez was the only one of the seven
witnesses who testified to the alleged threat in the instant
hearing. Furthermore, Dennis admitted to having inter-
viewed all the employees at the plant, except Maria Aguilar,
in July or October. But these interviews produced no other
witness to testify to this threat. This causes one to pause
before accepting Hernandez' testimony at face value. This
pause is extended when one recalls her almost unbelievable
testimony regarding the puncturing of tires by a seamstress
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with her bare hands and a nail . It is further extended by the
very unfortunate circumstances Hernandez found herself
awaiting deportation at the time she gave testimony. As
Hernandez did not want to leave the United States and as
her stay here had once before been extended through the
efforts of Dennis, I fear that Hernandez testified as she did
and as the Employer wanted her to in the forlorn hope of
perhaps being able to secure further help from the same
source for extending her stay in the United States. She was
the unfortunate victim of circumstances beyond her control.
Because of her unfortunate plight, I can not help but sym-
pathize with her, but under all the circumstances I cannot
credit her testimony.
This finding eliminates the only probative evidence in this
record that 918 was in any way responsible for this alleged,
and vicious, threat to bring in the Immigration Service
which, in turn , along with the findings above made, elimi-
nates Employer's Objection 5. Accordingly I must, and
hereby do, dismiss Employer' Objection 5.
Accordingly, I find no merit in any of the Employer's
objections to the election as made on May 10, 1972, or as
subsequently added to by the Employer.
CONCLUSIONS OF LAw
1. Tale-Lord Manufacturing Company, Inc., is an em-
ployer within the meaning of Section 2(2) of the Act and is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 918, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Local 918, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America has
not been proved to have committed any violation of Section
8(b)(1)(A).
4. The evidence fails to sustain Employer's Objections 1,
2, 3, 4, and 5 to the election of May 5, 1972, and also fails
to sustain Employer's contention that an atmosphere of
chaos and fear existed at the time of the election depriving
the employees of their freedom to vote their choice in said
election.
[Recommended Order omitted from publication.]