Service Employees Union

National Labor Relations Board - Board Decisions

Jan 4, 1974

208 N.L.R.B. 117 (N.L.R.B. 1974)

SERVICE EMPLOYEES UNION
Service Employees International Union, Local No. 50,
AFL-CIO and Our Lady of Perpetual Help
Nursing Home, Inc. Cases 14-CB-2547 and
14-CB-2615
January 4, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 21, 1973, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief.
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 and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative 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 No. 50, AFL-CIO, St.
Louis, Missouri, its officers, agents, and representa-
tives, shall take the action set forth in said recom-
mended Order, except that the attached notice is
substituted for the Administrative Law Judge's
notice.
i The notice to members is modified to conform to the Order.
For the reasons expressed in his dissenting opinion in Union de
Tronquistas de Puerto Rico, Loc 901, Teamsters (Lock Joint Pipe & Co of
Puerto Rico), 202 NLRB No 43, Chairman Miller would expand the
remedial order to include an award of backpay to Ensley, Richardson, and
Trice, nonstriking employees who were compelled to cease working as a
consequence of the Respondent's unlawful and coercive activities. Accord-
ingly, although agreeing with his colleagues in all other respects, Chairman
Miller dissents from their failure to fully remedy the unfair labor practices
committed by Respondent by imposing backpay liability upon it for these
three employees.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a'trial at which all parties had the opportuni-
ty to present their evidence, it has been found that we
117
violated the law by committing unfair labor practices
and we have been ordered to post this notice and to
keep the promises that we make in it.
WE WILL NOT threaten any employees of Our
Lady of Perpetual Help Nursing Home, Inc., or
any other employer doing business with it, with
physical harm or any other reprisals, hit their cars
with any object, physically block or harass them,
or restrain or coerce them in any like or related
manner because of their desire to cross a picket
line at Our Lady of Perpetual Help Nursing
Home, Inc., or because they seek to exercise their
rights guaranteed in Section 7 of the Act.
SERVICE EMPLOYEES
INTERNATIONAL UNION,
LOCAL No. 50,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 210 North 12th Boulevard, Room
448, St. Louis, Missouri 63101, Telephone
314-622-4167.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: On
November 6, 1972, the charge in Case 14-CB-2547 was
filed. On December 29, 1972, Respondent and the Acting
Regional Director entered into an informal settlement
agreement disposing of the charge. However, on March 5,
1973, Respondent gave notice that it would not comply
with the settlement agreement. On March 12, 1973, the
settlement agreement was vacated and set aside and a
complaint issued alleging that Respondent violated Section
8(b)(1)(A) of the Act by various acts of misconduct during
October and November 1972, in conjunction with picket-
ing at a nursing home operated by the Charging Party.
Respondent filed an answer denying the commission of
any unfair labor practices. A hearing on this complaint
opened on April 10, 1973. At the conclusion of the General
Counsel's case, Respondent and the General Counsel again
entered into an informal settlement agreement, over the
objection of the Charging Party. After argument, the
hearing was continued indefinitely pending compliance
with the new settlement agreement.
On April 23, 1973, the charge in Case 14-CB-2615 was
filed, and on May 16, 1973, the complaint issued in that
208 NLRB No. 10
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case alleging that Respondent had further violated Section
8(b)(1)(A) by further acts of misconduct in January,
February, and April 1973, in conjunction with picketing at
the nursing home. On May 23, 1973, the General Counsel
moved to set aside the settlement agreement in Case
14-CB-2547, to consolidate the two cases, and set them for
further hearing. On June 11, 1973, that motion was granted
over Respondent's objection.' Respondent in the mean-
time filed an answer denying the commission of any unfair
labor practices in Case 14-CB-2615.
A further hearing was held on the consolidated com-
plaints on July 9 and 11, 1973. At the conclusion of the
hearing oral argument was waived. A brief has been
received from the General Counsel.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
The Charging Party, Our Lady of Perpetual Help
Nursing Home, Inc., is a nonprofit corporation which
operates a nursing home in St. Louis, Missouri. During the
calendar year 1971, a representative period, the Employer
derived gross revenues in excess of $100,000 from the
operation of its nursing home and purchased goods and
materials valued in excess of $5,000 which were delivered
to it directly from points outside Missouri. I find that the
Charging Party is an employer engaged in commerce
within the meaning of the Act and that it will effectuate the
policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent's business representative, Ann Spears, was
its principal representative responsible for the strike.
Spears visited the picket line regularly and stayed for from
one to several hours at a time. Other staff representatives
of Respondent also occasionally visited the picket line.
Three picket captains were appointed to be in charge of the
picketing in the absence of other representatives of
Respondent. They were John Williams, Sadie Caldwell,
and Jo Ann Gathing. Each was responsible for an 8-hour
period each day, and picketing was maintained on a 24-
hour basis. Four pickets were assigned to each shift, with
two assigned to picket and two as relief. The relief pickets
were to remain in a car or a nearby house when not
picketing.2 Those who were scheduled to picket were paid
strike benefits by Respondent. At all times material there
were police present at the picket line.
At the outset of the picketing on the instruction of
Respondent's President John Sorbie, Spears orally instruct-
ed the pickets that the picketing was to be peaceful and
nonviolent, that the pickets could talk to persons seeking to
enter the nursing home, that they could not block their
entrance, and that there were to be no disturbances.
According to Spears she repeated these instructions almost
daily after the picketing started.3
In early January 1973, after the first settlement
agreement in Case 14-CB-2547 was executed, Respon-
dent's counsel prepared written instructions which were
read to the pickets by Spears. These instructions insofar as
material herein provided that pickets were not to block
exits or entrances, to converse with anyone, to record
license numbers , or to take any photographs. Affirmative-
ly, pickets were advised to refer all questions to Respon-
dent's business agents and to conduct themselves peaceful-
ly and politely at all times.
The principal issues raised at the hearing are whether
Respondent's business representatives themselves were
responsible for or condoned any misconduct and whether
Respondent is responsible for the conduct of others at and
away from the picket line.
A. Background
In July or August 1972, Respondent furnished employees
of the nursing home with authorization cards to sign, and
in late August it filed a petition seeking a representation
election. A consent-election agreement was entered and an
election was scheduled for September 26, 1972. However,
on September 25 the Regional Director postponed the
election. On or about October 4 a meeting of the
employees was held at which they voted to strike against
the nursing home. Respondent did not authorize a strike at
that time, but when the employees again met on October 9
and again voted to strike, Respondent authorized a strike
to begin on October 11, 1972. A picket line was instituted
and maintained at the nursing home until April 23, 1973,
when the strike ended.
i The order granting the motion provided that if the evidence failed to
sustain the allegations of the second complaint, the setting aside of the
settlement agreement would be subject to reconsideration As I find merit in
most of the allegations of the second complaint, there is no occasion to
consider reinstating the settlement agreement , and the merits of the
allegations of both complaints are considered below
B. The Alleged Misconduct
1. On or about October 18, Lee Matthey, president of
National Laundry Company, arranged to meet one of his
drivers, Willie Garner, at the nursing home to assist him in
delivering laundry to the home. Matthey joined Garner in
the truck which proceeded up an alley to the delivery
entrance at the rear of the nursing home. Respondent's
Representative Spears and several others were standing
there. While Matthey was making the delivery, Spears said
to him, "You can't make a delivery here. He's going to get
into trouble," referring to Garner who was standing next to
Matthey. Matthey replied that they were going to make the
delivery. Another woman who was standing near Spears
pointed to Garner and said, "We're going to get you."4
Spears' statement to Matthey in the presence of Garner
2 The evidence indicates , however , that at most times material there were
more than two persons picketing at a time
3 Minnie Lee Bell testified that on one occasion Spears told the pickets
that if they laid down in front of a truck or car, the nursing home could get
an injunction She told them to keep it cool and not to threaten people
4 Matthey so testified Garner was not called as a witness, but James
SERVICE EMPLOYEES UNION
clearly conveyed that Garner would be in trouble if the
linen delivery was made. While Spears was not explicit as
to the kind of trouble Garner might anticipate, the
statement of the unidentified woman standing in the group
at the gate was a commonly understood threat of direct
physical reprisal, which in the absence of clarification or
disavowal by Spears gave similar coloration to Spears'
threat. Spears was admittedly an agent of Respondent. Her
conduct and that of the unidentified woman standing with
the group at the gate are properly attributed to Respon-
dent.-5 I find that by this conduct, Respondent threatened
Garner with reprisal and violated Section 8(b)(1)(A) of the
Act.
2. A few days later Matthey again joined his driver to
make a delivery to the nursing home. A man subsequently
identified by Matthey as Respondent' s Business Repre-
sentative Walter Murphy stood near the entrance while the
delivery was made and seemed to be taking notes. Matthey
went to Murphy, identified himself, and said that he was
the one who made the delivery and crossed the picket line.
Murphy replied, "I don't care about you, he's the man
we're after," referring to the driver who was standing next
to Matthey. There was a lot of shouting and profanity from
those assembled at the gate. Some one said that if the
driver didn't keep the truck out of there, they were liable to
wreck it and that they would take care of him.6
Murphy, like Spears, was an admitted agent of Respon-
dent. Within the hearing of the driver Murphy threatened
that the driver was the man they were after. As in the
previous incident the vague statement by Murphy was
followed by more explicit threats of reprisal, which
Murphy did not disavow , against the driver by those
assemb' led at the gate. I find that Murphy's statements and
those directed at the driver by others in Murphy's presence
are attributable to Respondent and violated Section
8(b)(1)(A) of the Act.
3. About 2 or 3 weeks after the strike started, in
response to questions by some of the pickets, Spears told
them they could copy down license numbers, telephone
numbers, and local union numbers from trucks making
deliveries to the nursing home.? Picket Minnie Bell took
down license numbers of the National Linen and Top Mist
Foods trucks and turned them over to union representa-
tives. She made no attempt to conceal this from drivers
making deliveries. Other pickets took down numbers also.
According to Spears, the information was recorded so that
Respondent could call the companies and ask them to
honor the picket line.
In the light of Spears' testimony, it is clear that
Respondent authorized pickets to record license numbers
and other information pertaining to trucks making deliver-
Redstone , business manager of the nursing home, testified to another
version of this incident attributing more explicit threats to Spears . Spears
denied making the statements attributed to her by Matthey and Redstone
and denied that Redstone was present when Matthey made the delivery.
Matthey did not identify Redstone as present , and there are sufficient
variances between the testimony of Matthey and Redstone to warrant the
conclusion that if Redstone witnessed the incident , he did so from a
distance and was not in a position to observe it closely. I do not rely on
Redstone's version of the incident. However, Matthey appeared to be a
disinterested witness who testified forthrightly and without hyperbole. I
have credited Matthey and reject Spears' version of the incident
5 Teamsters Local No 115 (E.1 Lavino & Company), 157 NLRB 1637,
119
ies to the nursing home, at least until Respondent 's counsel
furnished contrary written instructions in early 1973. The
General Counsel contends that the recording of this
information violated Section 8(b)(1)(A) relying on Local
316, United Cement, Lime, and Gypsum Workers Interna-
tional Union, AFL-CIO (National Gypsum Company), 133
NLRB 1445. In that case, the union recorded license
numbers of cars of nonstriking employees and published
them in a publication distributed to union members in the
area. Here the information recorded did not pertain to
personal vehicles of employees, and there is no evidence of
publication of the recorded information. There is no
evidence that the recorded information was put to any
improper use. I find that the recording of license numbers
and other identifying information relating to trucks
making deliveries to the nursing home was not coercive
within the meaning of Section 8(b)(1)(A) of the Act .8
4. During the first 2 or 3 weeks of the strike on several
occasions as nursing home Business Manager Redstone
crossed the picket line, picket Yvonne Dodd told Redstone
that they would hang his "ass" from a pole and use the
pole as his backbone. Other striking employees who were
picketing were present when these statements were made.
On one occasion in the latter part of October, Sister Mary
Modesta, supervisor of maintenance and housekeeping,
observed such an incident and saw Spears standing no
more than 20 feet away with a group of pickets. Spears said
nothing.9
There is no question that Dodd's repeated statements to
Redstone constituted threats of physical retaliation against
him for continuing to work at the nursing home during the
strike. Although Redstone was himself not an employee
within the meaning of the Act, Dodd's statements were
made in the presence of other striking employees and
constituted restraint and coercion of them within the
meaning of Section 8(b)(1)(A).i0 Dodd was identified as a
striking employee and a picket, but not as a picket captain.
The pickets were posted and paid by Respondent and at
least in theory under the direction of a business representa-
tive or picket captain. Spears and Murphy had participated
in and condoned by silence other threats made to persons
crossing the picket line contemporaneous with these
incidents. Indeed, as set forth above, Spears stood by
silently at one of Dodd 's threats to Redstone . As found
below, picket captains for whose conduct Respondent was
responsible also made threats of physical reprisal later in
the strike. I find that Spears and Murphy set the example
for the threats made by Dodd and other pickets on these
and later occasions and that Respondent through its agents
took no effective action to disavow or stop such conduct.
In these circumstances, neither the presence of police at the
1642-43
6 Matthey so testified without contradiction and is credited.
7 Bell and Spears both so testified
s See Local 1150, United Electrical Workers (Cory Corporation), 84 NLRB
972, 974.
9 Redstone and Sister Mary Modesta so testified to these incidents
without contradiction. Although Redstone testified that he did not know
whether any of Respondent's representatives were present and did not
believe that they were, I have credited Sister Mary Modesta's testimony
identifying Spears as present on one such occasion.
10 District 20, United Mine Workers of America (Harbert Construction
Corporation), 192 NLRB 565.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picket line nor the verbal instructions given the pickets by
Respondent absolve it from responsibility for the conduct
of Dodd and other pickets.' i I find that by Dodd's threats
to Redstone, Respondent violated Section 8(b)(1)(A) of the
Act.
5. Ruby Ensley and her daughter Suzanne Richardson
worked at the nursing home from 11 p.m. to 7 a.m. for
three nights starting in late October. As Ensley left work
after the first night, Spears approached her and sought to
dissuade her from crossing the picket line, telling her that
the women there had held jobs from 2 to 17 years and
weren't going to give them up for "no women in the street,
no people from Magnolia House and no drunkards."
Spears told her that when they finished with the nursing
home, Ensley wouldn't have a job, and would have to leave
anyway so that she might as well leave then.12 Spears also
said that if she wanted to work in a hospital she should go
to the Union and it would send her to a hospital job.
The General Counsel contends that Spears' statement
implied that Respondent and the pickets were willing to
resort to any means, including violence, to prevent others
from working during the strike. There is no doubt that
Spears stated her appeal in forceful terms. However, I do
not find in her assertion that the strikers would not give up
their jobs for nonstrikers, whom she disparagingly de-
scribed, the alleged implied threat of reprisal. Indeed, the
offer to refer Ensley to another job indicates a desire to
achieve Respondent's purpose by cooperative rather than
coercive means. I find that Spears' statements to Ensley
did not violate Section 8(b)(1)(A) of the Act.
6. On the next morning as Ensley left work, one of the
pickets left the line, approached her at a nearby bus stop,
and a,-ked her if she had just left work. Ensley said that she
had. Several other women, including pickets Minnie Bell
and Johnnie Mae Johnson, joined them. The first picket
who had questioned Ensley said that they came around to
do something to her but that since she hadn't lied they
wouldn't do anything to her. Minnie Bell, who was in the
group, said "she was so tired of taking shit she didn't know
what to do, and she wanted to bust us so bad she didn't
know what to do." Bell was holding a soda bottle and a
paper cup with a piece of concrete in it which she kept
throwing up out of the cup as she spoke. Ensley's bus
came, and she boarded it and left.13
The threatening and coercive nature of this conduct is
clear and need not be spelled out. The only question is
whether Respondent was responsible for it. Those identi-
fied by Ensley as the speakers had been picketing
immediately before speaking to her. Although they left the
line and moved a short distance to talk to her, theirs was
not an abandonment of picketing to engage in some
unrelated conduct, but rather a redirection of their
picketing to reach one in the class of prime objects of the
picketing. I find that the conduct of the pickets toward
Ensley was part and parcel of the picketing and that
Respondent was responsible for the pickets' conduct for
11 Teamsters Local No 115 (EJ Lavino & Company), 157 NLRB 1637,
1642-43; United Rubber Workers, Local 796 (Tennessee Wheel and Rubber
Company), 166 NLRB 165, 166-167, Drivers Local 695 (Tony Pellitteri
Trucking Service, Inc), 174 NLRB 753, 758
12 Ensley so testified Spears testified that she did not recall talking to
Ensley and never heard her name I have credited Ensley
reasons stated above Accordingly, I find that the threats to
Ensley made by pickets violated Section 8(b)(1)(A) of the
Act.
7. On the morning after the third night that Ensley and
Richardson worked, they left work together, were escorted
to the bus stop by a policeman, and boarded a bus. A few
blocks from the nursing home, Minnie Bell , Johnnie Mae
Johnson and the unidentified picket who had previously
spoken to Ensley boarded the bus. Two of them sat behind
Ensley and Richardson, and one sat to one side of them.
Ensley told Richardson that she didn't like to sit with
people behind her who didn't like them and were mad at
them. Ensley and Richardson got up to move. Johnnie
Mae Johnson took Ensley by the arm and escorted her to
the back of the bus. Johnson said, "I thought I told you not
to come back here." Ensley said she was just trying to
make her money like Johnson was trying to do. The
unidentified woman told Ensley that people like her were
the reason Sister Louise wouldn' t sign "those papers."
When Ensley and Richardson reached their stop, they
left the bus and the others followed them. Ensley said she
would see them later , and they asked where she was going
and continued to follow. One of the women said, "You
came on our job, so we're going to walk on your house like
you walked on our job." Ensley asked why they were
coming to her house because she didn't invite them. Bell
said, "We may be coming to steal something, you don't
know what we are coming for, we may be coming to steal."
Ensley then walked up the steps of her house and told them
to come in. After they entered Bell said "she was tired of
talking, she was tired of taking shit, and she was ready to
bust ass, she wanted to bust somebody' s ass so bad she
didn't know what to do." She also said that "if she wasn't
going to bust no ass she was ready to go, because she come
to bust ass, she didn't come to talk, she was tired of
talking." One of the women who had remained outside
called for the others to come out. Johnson explained to
Ensley why they should find another hospital to work in
and not to return to the nursing home. The women then
left. Ensley and Richardson did not go back to work at the
nursing home again.
During the bus ride and the conversation Bell held a
soda bottle in a paper bag in one hand and waved it in
front of Ensley's face when she spoke to her. She held a
cup with the piece of concrete in her other hand, and
repeatedly threw the concrete out of the cup and caught
it. 14
After this incident, Richardson called the Union and
asked for Ann Spears whose name had been given her by
one of the pickets. She was referred to someone who
identified himself as a Mr. Forbie or Sorbie and a director
or something of the Union. She told him what had
happened at her house. He said they shouldn't cross the
picket line.i5
Again the coercive nature of the conduct of those who
followed Ensley and Richardson home is clear and the
13 Ensley so testified without contradiction and is credited
14 Ensley and Richardson testified to this incident without contradiction
Is Richardson so testified Respondent's president , John Sorbie, testified
that he never heard the name Sue Richardson before, that he never had a
telephone conversation with her during the period of the picketing, and that
he never spoke to anyone whom he told that she shouldn 't cross the picket
SERVICE EMPLOYEES UNION 121
only question is one of responsibility. Unlike the previous
incident involving Ensley, here there is no evidence that
those who followed Ensley and Richardson left the picket
line immediately before following them, although the
inference is strong that they had been at the nursing home
and had observed Ensley and Richardson board their bus.
But the participants were the same as on the previous day
and the nature of the threatening conduct, apart from its
locus, was closely related and a continuation of the threats
of the previous day. While Respondent disclaims any
knowledge of this incident, I have credited Richardson that
after the pickets left her mother's home, she telephoned the
union hall, spoke to a Mr. Forbie or Sorbie, and told him
what had just happened. I have also credited her that his
response was that she and her mother should not cross the
picket line. In addition to Respondent's President Sorbie,
who denied speaking to Richardson, the evidence shows
that among Respondent's representatives was his son Dan
Sorbie, who also occasionally visited the picket line. From
these facts the inference is warranted that Richardson
spoke to one of the Sorbie's who by his response condoned
the conduct of those who followed Richardson and Ensley
home. In these circumstances, I find that Respondent is
responsible for their conduct and thereby violated Section
8(b)(1)(A) of the Act.
8. In January and February 1973, Eugenia Dunn 16
worked at the nursing home as a nurse's aide. Sometime in
January three pickets carrying signs told her they were
going to kick her "ass." 17 I have previously found that
Respondent's representatives engaged in similar threaten-
ing conduct and were aware of such conduct by others on
the picket line. Shortly before this incident Respondent
had entered into a settlement agreement disposing of the
charges based on that misconduct and had communicated
new written instructions to the pickets. Plainly, however,
those instructions were no more effective or sufficient than
previous oral instructions to stop the threats by pickets.
There is no evidence that Respondent took any further
steps to remove offenders from the picket line or prevent
recurrence of such conduct. I find that Respondent must
bear responsibility for the threats directed at Denu and
thereby violated Section 8(b)(1)(A) of the Act.18
9. On three occasions in February rocks were thrown at
Denu from a car parked outside the nursing home. She
identified the car from which they were thrown as a brown
Plymouth Fury and testified that these incidents occurred
at or about 8 p.m. when it was dark. Although Denu
testified that she recognized those in the car as pickets she
had seen walking with signs, her testimony as a whole is
equivocal as to whether she was able to see or recognize
those in the car. Although she also testified that the car was
always parked outside the nursing home when she arrived
at work and that pickets normally used it, no other witness
identified the car or testified as to its regular use by pickets.
I find that her testimony as a whole is not sufficient to
establish the identity of those who threw rocks at Denu.
There is also no evidence that these incidents were
observed by anyone other than those directly involved.
The rock throwing described by Denu is different from
any of the previous misconduct by pickets, all of which was
verbal. The identity of those who threw the rocks is not
established, and there is no evidence other than the
testimony of Denu as to the regularity of the appearance of
the car outside the nursing home or its use by pickets.
There is also no evidence that the rock throwing was
observed by Respondent's representatives or was called to
their attention. While the inference is strong that the rock
throwing was not mere coincidence and was attributable at
least to persons who were in sympathy with the strikers, I
find the evidence insufficient to establish that Respondent
was responsible for the rock throwing by the unidentified
persons in the car. Accordingly, I find that Respondent did
not violate Section 8(b)(1)(A) of the Act by this conduct.
10. During April 1973, Linda House worked at the
nursing home as a nurse's aide from 6:30 a.m. to 3 p.m. On
April 5, she left the nursing home at 8 a.m. to take care of
some personal matters. Picket captain Jo Ann Gathing,
who was walking in front of the nursing home with a picket
sign, told her "You'd better not come back." When House
returned at or about 10:15 a.m. Gathing said to her,
"We're going to get you now." 19
As a picket captain, Gathing was one of those through
whom Respondent carried out its policies in striking and
picketing the nursing home. Regardless of the limiting
instructions given her, Gathing's conduct was within the
general scope of her authority. I find that Respondent is
responsible for her conduct, that it constituted a coercive
threat, and that Respondent thereby violated Section
8(b)(1)(A) of the Act.20
11. When House left work that day, she started to drive
home in her car. Less than a block from the nursing home,
a car pulled out of an alley behind her and started to
follow her. About four blocks from the nursing home,
House stopped for a traffic light and the car pulled up
beside her. She then saw that a man was driving, Gathing
was in the back seat , and three other women from the
picket line were in the car. While they were stopped
Gathing called out to her, asked her why she kept crossing
the picket line, and told her to stop it and quit working
there. The driver yelled out, "Let's wreck her and her car,"
and Gathing asked her how she would like to shed her
blood like "the boy" had done, which House took as a
reference to a nursing home employee who had been
beaten up the night before.21 At that point House drove
through the red light which had not changed, and the other
car followed. When House reached her home a few blocks
away, the car was still following. She went past her house
and shortly thereafter the car stopped following her.
While this conduct occurred away from the nursing
home, it commenced as House left work. With the
exception of the driver of the car, those involved were
pickets and included Gathing, a picket captain with
line I credit Richardson's description of the call she made.
16 Her name incoirectly appears as Virginia Demu in the transcript.
17 Denu so testified without contradiction
18 Drivers Local 695 (Tony Pellitteri Trucking Service, Inc), 174 NLRB
753, 758
19 The uncontradic ted testimony of House as to this and other incidents
described below is credited
20 Teamsters Local No. 115 (EJ Lavino & Company), 157 NLRB 1637,
1642, United Rubber Workers, Local 796 (Tennessee Wheel and Rubber
Company), 166 NLRB 165,166-167
21 There is no allegation that the beating was attributable to Respondent
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsibility for the conduct of the picketing. Gathing
was a willing and active participant in the incident. Indeed,
it is evident that the following of House and the threats
directed at her were a continuation and fulfillment of
Gathing's threat to House earlier that day. I find that
Respondent was responsible for Gathing's conduct and for
that of those who joined with her in following and
threatening House. I find that Respondent thereby violated
Section 8(b)(1)(A) of the Act.
12. On April 12, about a week later, when House came
to work in the morning Gathing was in front of the nursing
home. Gathing asked her "how I would like to be a bloody
mess and she told me she would hurt me or kill me in some
way and she would see that she got me sooner or later."
For the reasons previously expressed, Respondent was
responsible for Gathing's threat. Indeed, in the light of the
fact that the second informal settlement agreement was
executed on April 10, only 2 days before this incident, its
occurrence and the incidents described below which
followed soon after give strong reason to believe that its
terms were taken seriously neither by Respondent nor the
pickets and that whatever the verbal instructions which
may have been given, they were regarded by all as more
formal than substantial. I find that by this threat of picket
captain Gathing, Respondent violated Section 8(b)(1)(A).
13. Caldon Trice had been employed by the nursing
home for a number of years before the strike. During the
strike she worked only on April 13, 14, and 15. On April
13, as she left work at or about 3 p.m., Yvonne Dodd,
Mary Normandy, and several other pickets were present.
Dodd approached her and said, "So, you ... you was the
nigger that they wanted to get" Dodd said they wouldn't
allow her to work there and draw a check while they were
walking the picket line.22 For reasons previously expressed,
I find this conduct of the pickets attributable to Respon-
dent. I further find it a threat of reprisal in violation of
Section 8(b)(1)(A).
14. On April 14, when Trice left work at 3 p.m. Yvonne
Dodd said to her, "So, you're back to work again." Dodd
told her, that "I was the mother - they wanted to get, a
nigger, and they would like to mess me up good." Dodd
then said, "Your old sister can't walk. She's all crippled up,
and we'll cripple you up just like that. We will get you."23
As above, Respondent is responsible for Dodd's threat and
thereby violated Section 8(b)(1)(A).
15. On the next day, April 15, as Trice left work, Mary
Normandy, Yvonne Dodd, and picket captain Sadie
Caldwell were picketing. Dodd said "This is illegal. We
wants to get her and mess her up." Caldwell said, "You
aren't going to work here. We're walking a picket line."
Trice said nothing and got into a car that was waiting for
her. After she closed the door, Caldwell hit the side
window of the car with her umbrella.24 Caldwell rejoined a
group of pickets and shouted, "We'll get you too, Sister
Louise," to Sister Mary Louise who was standing inside the
22 Trice's uncontradicted testimony as to this and other incidents is
credited
23 Dodd had previously worked with Trice's sister at the nursing home.
24 The pickets carried umbrellas with strike legends printed on them
25 In an affidavit given by Stneve she placed these incidents on different
dates than in her testimony. She testified that she had difficulty
door of the nursing home . Trice did not work again until
after the strike.
I find that Respondent is responsible for the threats and
conduct of Caldwell and Dodd and thereby violated
Section 8(b)(1)(A).
16. On April 17 , Jo Ann Gathing was again outside the
nursing home when Linda House arrived for work at 6:30
a.m. Gathing approached her with three other women, two
of whom had been in the car with Gathing 5 days earlier.
Gathing blocked House 's path . House tried to go around
her, but Gathing stopped her . Gathing handed her a picket
sign and told her to walk with them . House ignored her
and tried to get around her. Gathing pinned House against
a pole in front of the nursing home with the sign pushed up
against her chest . Gathing said , "You've had it now, I'm
tired of you. We are on strike and I wish you would quit."
A police officer came out and told Gathing to release
House . As House went into the nursing home , Gathing
said , We will get you ." By Gathing 's physical obstruction
and harassment of House and by her further threat,
Respondent violated Section 8(b)(1)(A) of the Act.
17. Rita Strieve started to work at the nursing home in
April 1972, and worked through the strike . During April
1973, as Strieve was coming to work , picket Louise Jordan
told her they were going to kill her old mother . Jordan was
walking the picket line at the time with two other pickets.
Later in April , Jordan told her, "You 're supposed to be
dead ." 25 Again these picket line threats are attributable to
Respondent and violated Section 8 (b)(1)(A).
I. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Employer described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several states, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be ordered
to cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
CONCLUSIONS OF LAW
1. Service Employees International Union Local No.
50, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
2. Our Lady of Perpetual Help Nursing Home, Inc., is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
remembering dates. While it appears that Strieve's recollection of dates was
uncertain and that the dates on which she placed these incidents may be
inaccurate, her testimony was uncontradicted and her demeanor while
testifying left no doubt that she vividly recalled these incidents and credibly
described them.
/ SERVICE EMPLOYEES UNION 123
3. By threatening employees with physical harm or
other reprisals for crossing its picket line at the Employer's
nursing home, by striking an employee's car with an
umbrella, and by physically obstructing and harassing an
employee seeking to enter the nursing home on various
dates from October 1972 through April 1973, Respondent
has restrained and coerced employees in the exercise of
rights guaranteed by Section 7 of the Act and has engaged
in unfair labor practices affecting commerce within the
meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER26
Respondent, Service Employees International Union
Local No. 50, AFL-CIO, its officers, agents, and represent-
atives, shall:
1. Cease and desist from threatening employees of Our
Lady of Perpetual Help Nursing Home, Inc., or any other
employer doing business with it, with physical harm or
other reprisals because of their desire to cross a picket line,
striking their cars with any objects, physically obstructing
or harassing them, or in any like or related manner
restraining or coercing them in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its offices and at any place where its meetings
are customarily held, copies of the attached notice marked
"Appendix." 27 Copies of said notice, on forms provided by
the Regional Director for Region 14, after being duly
signed by an official representative of Respondent, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its
members are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Mail signed copies of the notice to said Regional
Director for posting, Our Lady of Perpetual Help Nursing
Home, Inc., willing, at all locations where notices to its
employees are customarily posted.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of receipt of this
Decision, what steps the Respondent has taken to comply
herewith.
26 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.
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
27 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."