Service Employees Intl. Un., Loc. 254

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1399 (N.L.R.B. 1975)

SERVICE EMPLOYEES INTL. UN., LOC. 254 1399
Service Employees International Union , Local 254,
AFL-CIO and Massachusetts Institute of Technol-
ogy. Case 1-CB-2717
June 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On March 18, 1975, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. The Charging Party
filed a memorandum in support of the complaint and
the General Counsel filed a brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, briefs,
and memorandum and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , Service Employees
International Union , Local 254, AFL-CIO, Cam-
bridge , Massachusetts , its officers , agents, and
representatives, shall take the action set forth in the
said recommended Order.
1 Member Fannmg would not adopt the Administrative Law Judge's
finding that Respondent violated Sec 8(b)(IXA) of the Act by the action of
Falsetter, a picket, sinking Goldberg, as he believes the evidence is
insufficient to establish that Falsetter was an agent of Respondent , or that
Respondent authorized or condoned such activity
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Administrative Law Judge: Upon
a charge filed by Massachusetts Institute of Technology,
herein called MIT or the Institute, on September 23, 1974,
a complaint against Service Employees International
Union, Local 254, AFL-CIO, herein called the Union, was
issued on November 20, 1974, alleging that the Union has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the National Labor
Relations Act, as amended. In substance, the complaint, as
amended at the hearing, alleges that in connection with a
218 NLRB No. 215
strike of MIT employees during the period from September
12 to October 8, 1974, the Union restrained and coerced
employees of MIT in the exercise of rights guaranteed in
Section 7 of the Act by threatening to and inflicting bodily
harm on employees, and by blocking ingress and egress of
employees to the premises of MIT. Respondent filed an
answer denying generally that it had engaged in the alleged
unfair labor practices. A hearing in this proceeding was
held on January 15 and 16, 1975, in Boston , Massachusetts.
Pursuant to permission granted at the hearing, the parties
filed post trial briefs with the Administrative Law Judge.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges and the Respondent admits that
the Union is a labor organization within the meaning of
Section 2(5) of the Act. The Union represents employees of
MIT and these proceedings anse out of a strike called by
the Union against the Institute. MIT, a Massachusetts
corporation which maintains facilities in Cambridge and
Lexington, Massachusetts, is a private, nonprofit educa-
tional institution. Its annual gross income exceeds $1
million and its annual purchases of goods and materials
from points outside the Commonwealth of Massachusetts,
which are shipped through channels of interstate com-
merce to its facilities within the Commonwealth, exceed
$50,000. The complaint alleges, the answer admits, and I
find that during all times material hereto MIT was an
employer within the meaning of Section 2(2) engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
Ii. THE UNFAIR LABOR PRACTICES
The Union represents the service and maintenance
employees of MIT. In order to exert pressure upon MIT in
connection with pending negotiations, the Union called a
strike on September 12, 1974, and began picketing various
installations of the Institute the next morning. The strike
ended on October 8, 1974.
On September 12 Michael J. Muse, the attorney for the
Union, distributed a memorandum to the business agents
to guide their conduct during the strike. The business
agents, in turn, relayed the instructions to the picket
captains. The memorandum is, as follows:
To: Business Agents
From: Michael Muse
Re: Picketing
September 12, 1974
It is imperative that all picketing be done in an orderly
fashion with no occurrences of violence, threats,
rudeness, cursing, or other activities which might lead
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to such occurrences or cause the Union to be cast in the
role of a "villian. 11
To achieve these ends all Business Agents must:
1. Appoint responsible picket captains to supervise
the lines during the absence of the Business
Agents.
2. Instruct all pickets of the fact that they are to be
orderly and controlled and that no rudeness or
unruly interference will be tolerated and in the
event that such does occur disciplinary action will
be taken.
3. They are not to gather in groups, to block entries or
exits.
4. They are to march with five (5) feet between them.
5. They may request vehicles and pedestrians to
honor their line but they may not prohibit them
from going through the line.
All Business Agents will keep accurate reports on the
activities of the day with respect to picket lines; take
care to note any unusual occurrence as precisely as
possible.
Movie cameras, cameras, and tape recorders will be
provided when needed.
The picketing and related activities were initiated and
supervised by a strike committee of six persons, which
included Union President Joseph Sullivan. According to
Joseph Sullivan, the committee instructed the pickets that
employees of MIT had a right to go through the picket line
but the strikers "also had a right to walk the picket line."
General Counsel alleges that conduct of the pickets or
other agents of the Union on six occasions in the period
between September 13 and 20 violated Section 8(b)(1)(A).
The first two alleged unlawful incidents involved threats
to service employees who purportedly were working during
the strike. Larry Webster, who is the assistant house
manager of a dormitory called Burton House and who is
an acknowledged supervisor, testified that about 8:30 a.m.
on September 13 he received a telephone call from Bea
Santos , a union steward and a member of the Union's
negotiating committee , who said, "You tell Frank [Rizzuto,
the maintenance man in Burton House] to get the f- out
of the building." Webster asked what she was talking about
and Santos replied, "You know what I mean. Frank's
working in the building. You tell him and Ralph [Del-
gemo] to get out of the building." Webster denied that
Rizzuto was in the building. Santos concluded the
conversation with the remark, "Frank's in a lot of trouble
and so are you. You tell them to get the h- out of the
building."
Later in the same day Webster met Santos outside
another MIT building and she remarked to him, "I'm very
disappointed in you, Larry. You're letting Frank work in
the building." Webster again denied the charge and Santos
I In its brief Charging Party argues that "Union officers further evinced
their inclination to permit a pattern of misconduct to develop " The single
threat made by Union President Joseph Sullivan , discussed below , does not
establish a "pattern " Contrary to Charging Party, I fmd that the evidence
does not establish that in connection with the instant strike the Union,
responded, ". . . He's in the building and you'd better tell
him to get out because there's going to be a lot of trouble if
he doesn't leave. . . . You're both in a lot of trouble."
Webster testified that he tried to telephone Frank
Rizzuto the same day but Rizzuto wasn 't home. Webster
finally contacted Rizzuto by telephone on Monday,
September 16, at which time Webster relayed to Rizzuto
the substance of his conversations with Santos.
With respect to the above-described incident the com-
plaint alleges that the Union unlawfully restrained and
coerced employees of MIT by threatening "to inflict bodily
harm on certain employees of M.I.T." The alleged
threatening remarks were not made to any employee but to
a supervisor, who is not an employee within the meaning of
the Act. General Counsel argues that Respondent intended
and should have anticipated that the alleged threats would
be transmitted by Supervisor Webster to the affected
employee. In this case the threat was communicated to
Rizzuto by Webster. I believe the argument of General
Counsel is meritorious. When Santos advised Webster that
both he and Rizzuto were "in a lot of trouble" she intended
that Webster should advise Rizzuto that if he continued
working he would be in trouble. However, there is nothing
in this record which permits me to infer that the statements
made by Santos to Webster, to wit that Webster and
Rizzuto were in a lot of trouble, connoted that they were
subject to "bodily harm."' Accordingly, I find that the
described incident does not support paragraph numbered
8(a) of the complaint which alleges that Respondent
"threatened to inflict bodily harm on certain employees of
M.I.T."
A second incident occurred on the same day. Cecil
Saunders, who is manager of McGregor House, an
undergraduate dormitory, and an acknowledged supervi-
sor, received a telephone call from Bea Santos who said,
"You've got Ralph [Delgemo ] working in the building and
get him out of the building." Saunders denied that
Delgenio was working. About an hour and a half later
Saunders met Bea Santos in the street in front of an MIT
building. She was in the company of two men, including
Union President Joseph Sullivan. Also present was Donald
T. Hubbard another dormitory manager for MIT. The
accusation was made that Delgemo was working in the
building which Saunders denied. Sullivan then said, "Yes,
he is working in the building, and if you don't get him out
of the building there will be trouble, and if you don't get
him out soon we'll come up there and get him out and
somebody's liable to get hurt."2 Saunders testified that he
did not relay to Ralph Delgenio the threats made to him by
Santos and Sullivan. However, "[i]t has been long settled
that restraint and coercion directed against supervisors and
managerial personnel under circumstances where the
conduct became or was sure to become known to the
Company's striking or nonstriking employees constitutes
restraint and coercion of employees in the exercise of their
directly, or indirectly , encouraged its supporters to inflict bodily harm or to
make such threats.
2 Sullivan dented that he made any threat on the occasion in question.
Santos did not appear as a witness . I credit Saunders, whose testimony was
substantially corroborated by Hubbard, as to what was said
SERVICE EMPLOYEES INTL. UN., LOC. 254 1401
statutory rights within the meaning of Section 8(b)(1)(A) of
the Act."3 Furthermore, Bea Santos, an employee, was
present and heard Sullivan's threat. Accordingly, I fmd
that the statement by Joseph Sullivan that "we'll come up
there and get him out and somebody's liable to get hurt,"
in the circumstances, constitutes a violation of Section
8(aXl)(A).
One of the facilities operated by MIT is its Lincoln
Laboratory which is located on the Hanscom Air Force
Base in the town of Lexington, Massachusetts. There are
four gates which employees normally use to enter and
leave the base. Employees of the Institute's Lincoln
Laboratory can reach their places of work through any of
the four gates. However, MIT employees primarily use gate
3. That gate is manned by security guards employed by
MIT while the other gates are manned by Air Force police.
About 50 percent of the MIT Lincoln Laboratory
employees normally use gate 3 and about 700 vehicles
enter that gate on a normal working day of which
approximately 50 percent carry MIT employees.
The Union began picketing gate 3 at 7 a.m. on
September 13.4 The pickets patrolled across the entrance
spaced at intervals of 5 to 7 feet. Thus, an automobile was
unable to enter the gate unless the pickets made way for it.
Although the pickets permitted drivers of vehicles who
insisted upon entering the gate to go through, the pickets
impeded ingress into the base. At some point during that
day, officers of the Lexington police department appeared
on the scene and compelled the pickets to move away from
the entrance to gate 3. Picketing was thereafter confined to
the sides of the road so that there was no longer any
impediment to automobiles entering or leaving the gate.
According to Robert B. Driscoll, the assistant security
officer employed by MIT, a majority of the automobiles
that approached gate 3 on September 13 did not enter the
base through that gate although they could have done so.
As enforced by the Lexington Township police, picketing
at gate 3 on September 14, 15, and 16 was limited to the
sides of the road and there was no interference with ingress
and egress at the gate.
On September 16 a temporary restraining order was
issued by the Superior Court for Middlesex County of the
Commonwealth of Massachusetts which directed the town
of Lexington, its chief of police, and others "to desist and
refrain from interfering with the orderly picketing done by
said plaintiffs [the Union] on the federal property at
Hanscom Air Force Base gate being a gate used to gain
access to Lincoln Lab." This order was served on the
appropriate police officers and others in the early morning
of September 17. Thereafter, the township police did not
interfere with establishment of a line of pickets, who
followed one another at a distance- of 5 to 7 feet, which
patrolled the entrance to gate 3. The picketing interfered
with automobiles entering and leaving the base through the
gate , although pedestrians, some of whom arrived in buses,
had unimpeded access. It is undisputed that as a result of
the picketing on September 17 a major traffic jam
developed at gate 3. There is a conflict of testimony as to
whether the picketing halted all vehicular traffic through
the gate. Robert B. Driscoll testified that he was at gate 3
between 7 and 11 a.m. and he did not see any vehicle enter
the gate. On the other hand, Union Business Agent
Frederick Cadigan testified that between 7 a.m. and 9 a.m.
about 300 cars passed through gate 3. Neither General
Counsel nor Respondent produced other witnesses to
corroborate the testimony of Driscoll or Cadigan. If it were
important to establish that no vehicles passed through the
gate it would seem that the General Counsel was under an
obligation to produce corroborating witnesses . However, I
find based on the undisputed testimony, that the Union's
activities at gate 3 on September 17 blocked the ingress of
vehicles and, in the circumstances, constituted a violation
of Section 8(b)(1)(A).5 MIT did not open gate 3 on
September 18 and kept it closed until the end of the strike.
Thus, there were no further incidents at that gate.
Two days later, on September 19, at gate 4 to the
Hanscom Air Force Base which gate then was being used
by employees of MIT,6 the Union engaged in activities
which General Counsel contends constituted unlawful
blocking of entry to and exit from the premises. According
to Robert Driscoll, whose testimony in this respect is
undisputed, beginning about 7 a.m. the Union formed
patrols of about 15 or 16 pickets on each side of the road
leading to gate 4. As automobiles turned into the gate one
of the picketing groups would walk across the entrance
way which would cause the oncoming vehicles to come to a
stop before reaching the gate. The second group of pickets
then would seek out a vehicle occupied by an MIT
employee, which is distinguished by a decal attached to its
front license plate, and would walk in front of that
automobile which prevented the car from moving. While
the car was at a standstill Joseph Holland, a union steward
and a member of the Union's negotiating committee,
walked in front of the vehicle and appeared to take a
photograph of the vehicle. As Holland was doing this,
another picket appeared to be writing down the license
plate number of the vehicle. Although a majority of the
vehicles which came to gate 4 on September 19 eventually
drove into the base, the described blocking constituted a
violation of Section 8(bxl)(A). Furthermore, the photo-
graphing of MIT employees who were driving into the base
was inherently coercive. They would tend to understand
that the Union was making a record of MIT employees
who crossed the picket line in order, at a later time, to
engage in reprisals against such persons.?
The only incident of actual violence occurred on
September 19 between 2:15 and 3 p.m. as Allen Goldberg,
a graduate student, research assistant, and resident tutor,
was driving from the loading dock of the student center
when he came to a stop at the crosswalk before turning
into the street. One of the pickets jumped in front of
Goldberg's car. The picket then walked to the driver's
window of the car, accused Goldberg of trying to run him
down, and punched Goldberg on the jaw knocking
3 District 20, United Mine Workers of America (Harbert Construction No 67 (Alto-Cad Nickel Plating Corporation), 200 NLRB 335, 336 (1972),
Corporation, 192 NLRB 565, 566 ( 1971). and cases there cited.
4 MIT employees of the Lincoln Laboratory arrive at work between 7 6 MIT employees could be identified by distinguishing decals which were
a.m. and 8 30 a in. attached to their front license plates
3 Metal Polishers, Buffers, Platers and Helpers International Union Local 7 Dover Corporation, Norris Division, 211 NLRB 955 (1974).
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goldberg's glasses off his face. Although the picket,
Michael Falsetter, is about 62 years old, about 5 feet, 6
inches tall, weighs only 150 pounds, and caused Goldberg
only minimal injury, nevertheless, the conduct constitutes a
violation of Section 8(b)(1)(A) on the part of the Union.
The Union argues that Falsetter was not its agent and was
not authorized on its behalf to engage in such conduct.
However, as Falsetter at the time was picketing on behalf
of the Union and was wearing a union armband which
said, "Local 254 on strike," the Union is responsible for his
conduct.
The last incident covered by the complaint took place on
September 20. John Miller, a graduate student and
research assistant, and two other students, Gene Mele and
Ken Luey, were exchanging cylinders of compressed gas at
the MIT Cyrogenic Engineering Laboratory. To enter the
premises they had to walk around some lengths of wood
which had been placed in the road. As they were doing so
about six pickets, who were patrolling the road into the
Laboratory, called "names" at them and sought to engage
them in conversation. When the three men left the building
they were forced to come to a stop because the wood pieces
had been pushed together to completely block the road. At
first the pickets refused to let them pass and engaged the
three in conversation. The pickets explained why they
shouldn't cross the picket line. Some of the pickets made
remarks like , "We'll crack your head" and "Wait until the
strike is over. We'll take care of you then." After about 10
minutes the three were permitted to proceed. I find that
this incident also constitutes a violation of Section
8(b)(1)(A) of the Act.8
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with MIT's operations
described in section I, above, have a close, intimate, and
substantial relationship to trade , traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of the Act, I shall recommend
that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
8 In each case where I have found that a violation of the Act occurred,
other than the September 13 incidents , the unlawful conduct took place in
the vicinity of a picket line authorized and maintained by the Union and
was the result of action by a picket or pickets duly appointed by the Union..
In the circumstances, the conduct of the pickets is attributable to the Union.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
CONCLUSIONS OF LAW
1. In violation of Section 8(b)(1)(A) of the Act
Respondent has restrained and coerced employees of MIT
in the exercise of the rights guaranteed in Section 7 by (a)
on September 13, 1974, threatening to inflict bodily harm
upon an employee; (b) on September 17 and 19, 1974,
blocking ingress of vehicles through gates 3 and 4,
respectively, of the Hanscom Air Force Base, where MIT
maintains its Lincoln Laboratory; (c) on September 19 by
photographing employees seeking to cross its picket line;
(d) on September 19 by physically assaulting an employee
who was leaving a facility operated by MIT; and (e) on
September 20 blocking the egress of MIT personnel from
the Institute's Cryogenic Engineering Laboratory.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDERS
Respondent, Service Employees International Union,
Local 254, AFL-CIO, Cambridge, Massachusetts, its
officers, representatives, and agents, shall:
1. Cease and desist from:
(a) Restraining or coercing employees of Massachusetts
Institute of Technology by blocking automobiles, in which
nonstriking employees are riding, from entering or leaving
any of the gates or access roads to the properties of the
Institute or by placing wooden obstructions in the road or
by mass presence of pickets preventing or impeding MIT
employees from entering or leaving any of the premises of
the Institute.
(b) Restraining or coercing employees of Massachusetts
Institute of Technology by physically assaulting, or
threatening to inflict bodily harm upon, Institute employ-
ees who do not honor the Union's picket line and by
photographing employees seeking to cross the Union's
picket line.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them in
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Post at the business offices and meeting halls copies
of the attached notice marked "Appendix." 10 Copies of
said notice, on forms provided by the Regional Director
for Region 1, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
io In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
SERVICE EMPLOYEES INTL. UN., LOC. 254 1403
including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Mail to the Regional Director for Region 1, signed
copies of said notices for posting by Massachusetts
Institute of Technology, if the Institute shall be willing to
post such notices, at places where notices to the Institute's
employees are customarily posted.
(c) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
automobiles, in which nonstriking employees are
riding, from entering or leaving any of the gates or
access roads to the properties of the Institute or by
placing wooden obstructions in the road or by mass
presence of pickets prevent or impede MIT employees
from entering or leaving any of the premises of the
Institute.
WE WILL NOT restrain or coerce employees of
Massachusetts Institute of Technology by physically
assaulting, or threatening to inflict bodily harm upon,
Institute employees who do not honor our picket lines
and by photographing employees seeking to cross our
picket lines.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
SERVICE EMPLOYEES
WE WILL NOT restrain or coerce employees of INTERNATIONAL UNION
Massachusetts Institute of Technology by blocking LocAL 254, AFL-CIO