Teamsters Local 507 (Klein News)

National Labor Relations Board - Board Decisions

Jan 23, 1992

306 N.L.R.B. 118 (N.L.R.B. 1992)

118
306 NLRB No. 26
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Respondent has been changed to reflect the new
official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 We correct the following errors or misstatements by the judge:
(1) in sec. II,B,2, final paragraph, ‘‘Dabry’’ is corrected to read
‘‘Gabre’’; (2) in sec. II,B,4, par. 14, the citation to Council’s Center
for Problems of Living is amended to read, 289 NLRB 1122 (1988),
enf. denied 897 F.2d 1238 (2d Cir. 1990); (3) in sec. II,B,5, par. 7,
the cite to Schaeff Namco, Inc. is corrected to read 280 NLRB 1317,
1319–1320 (1986); and (4) in the section entitled ‘‘Final analysis,
conclusions and findings,’’ par. 23, where the judge discusses Allou
Distributors, 201 NLRB 47 (1973), we note that the Board reversed
the judge and found that the union’s assault of a supervisor violated
Sec. 8(b)(1)(A).
None of these misstatements or errors affect the outcome of this
case. With regard to the Second Circuit’s refusal to enforce the
Board’s decision in Council’s Center for Problems of Living, we
note that there is no exception to the judge’s treatment of that deci-
sion.
4 All dates are in 1987 unless noted.
5 The judge found that the April 17 threat coerced Fitzpatrick as
well as Klein. No exception was taken to this finding.
International Brotherhood of Teamsters, Local No.
507, AFL–CIO1 and George R. Klein News
Company. Cases 8–CB–6094, 8–CB–6098, and
8–CB–6123
January 23, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On December 29, 1989, Administrative Law Judge
Robert G. Romano issued the attached decision. The
Respondent and General Counsel filed exceptions and
supporting briefs, and the Employer filed a brief an-
swering the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions
and to adopt the recommended Order only to the ex-
tent consistent with this Decision and Order.
I. BACKGROUND
The judge found that International Brotherhood of
Teamsters, Local 507, AFL–CIO (the Respondent) did
not violate Section 8(b)(1)(B) when it threatened the
Employer’s owner, George Klein, on Good Friday,
April 17, 1987,4 or when its agents followed the car
of the Employer’s general manager, Fitzpatrick, on
June 22. Although the judge concluded that the threat
to Klein and harassment of Fitzpatrick were coercive
within the meaning of Section 8(b)(1)(B),5 and further
found that Klein and Fitzpatrick were 8(b)(1)(B) rep-
resentatives, the judge determined that neither Klein
nor Fitzpatrick was performing covered functions at
the time of the challenged union conduct. Further, the
judge found that the April 17 threat was directed at
Klein’s performance of unit work on that date, rather
than at Klein’s exercise of 8(b)(1)(B) duties. On these
bases, and relying particularly on Florida Power Co.
v. Electrical Workers IBEW Local 641, 417 U.S. 790,
805 (1974), the judge concluded that neither the April
17 threat nor the June 22 harassment violated Section
8(b)(1)(B).
The General Counsel excepts, contending that the
judge’s interpretation of Section 8(b)(1)(B) is overly
restrictive. The General Counsel asserts that 8(b)(1)(B)
representatives need not be engaged in covered func-
tions precisely when the coercion occurs for the Act to
be violated. The General Counsel additionally argues
that the judge erroneously viewed the events of April
17 and June 22 in a vacuum. Thus, the General Coun-
sel observes that the Respondent’s threat to Klein was
not merely directed at his performance or assignment
of unit work on Good Friday, April 17, when most
unit employees did not report to work because of the
Respondent’s contention that it remained a paid holi-
day. The threat necessarily intertwined the parties’ un-
derlying contract dispute over that very point. Simi-
larly, the General Counsel contends that tailing Gen-
eral Manager Fitzpatrick on June 22 was not a discrete
act, but occurred during the same period that the Re-
spondent was contacting the Employer’s customers and
encouraging them to cease doing business with the
Employer. In these circumstances, and since the April
17 and June 22 incidents coerced the Employer’s only
two 8(b)(1)(B) representatives—neither of whom were
members of the Respondent—the General Counsel as-
serts that Section 8(b)(1)(B) was violated.
For the following reasons, we find merit in the Gen-
eral Counsel’s exceptions and conclude that the Re-
spondent violated Section 8(b)(1)(B) by threatening
Klein on April 17. Although we agree with the judge’s
conclusion as to the June 22 incident, that the Re-
spondent did not violate Section 8(b)(1)(B), we do not
adopt the judge’s analysis.
II. FACTS
A. Overview
The relevant facts are as follows. The Employer,
George R. Klein News Company, distributes news-
papers, magazines, and other publications. Its president
and sole owner, George Klein, and its vice president
and general manager, Brian Fitzpatrick, represent the
119TEAMSTERS LOCAL 507 (KLEIN NEWS)
6 The applicable contract provisions are detailed in sec. II,A,3, of
the judge’s decision.
7 A full discussion and analysis of the Respondent’s contract argu-
ment is set forth in sec. II,B,5, of the judge’s decision. We adopt
the judge’s findings and analysis that the parties bargained to im-
passe for a successor to the 1983–1986 contract, after which the Em-
ployer lawfully instituted its final offer on March 13.
8 This threat was not alleged to violate the Act.
9 The judge found that the ‘‘visit’’ by this unusually large number
of business agents was lawful. For purposes of this Decision and
Order, we find it unnecessary to pass on this finding.
10 The judge credited Klein’s testimony and drew an adverse infer-
ence based on Cika’s failure to testify.
11 No exceptions were taken to this finding.
12 At the gas station, Fitzpatrick called the Employer’s warehouse
manager to report that he was being followed, in case anything hap-
pened.
Employer in collective bargaining and grievance proc-
essing. Neither Klein nor Fitzpatrick is a member of
the Respondent.
The Respondent long has represented the Employ-
er’s warehouse and clerical employees under succes-
sive collective-bargaining agreements. The most recent,
negotiated agreement was effective from May 1, 1983,
through May 1, 1986. Under this agreement, inter alia,
the Respondent’s business representatives had access
to the Employer’s facility to determine whether the
contract was being observed, and supervisors were pro-
hibited from performing unit work unless they were
members of the Respondent.6
In February 1986, the Respondent timely served no-
tice that it wished to modify the contract. From at least
September 1986 through January 1987, the parties bar-
gained for a new contract. No agreement was reached.
On January 17, 1987, the Employer presented the
Respondent with its final contract offer. This final
offer provided, inter alia, that five existing paid em-
ployee holidays would be eliminated. No further bar-
gaining occurred. On March 12, the Employer’s owner,
Klein, wrote to the Respondent, declaring impasse, and
stating that he would implement the Employer’s final
offer the following day. The Respondent protested
Klein’s action, arguing that the termination provision
of the 1983–1986 contract had not been revoked and
that, therefore, the contract remained in effect. The Re-
spondent pursued its contract claim by filing unfair
labor practice charges against the Employer which
were dismissed.7 In addition, shortly after March 13,
several of the Respondent’s business agents, including
John Cika, confronted Klein. Cika told Klein that if the
Employer did not sign the Union’s contract, someone
would get hurt.8
B. April 17 Incident
One of the holidays eliminated under the Employ-
er’s final offer was Good Friday, which fell on April
17 in 1987. Prior to April 17, Klein notified the unit
employees that the Employer had implemented its final
contract offer, abolishing Good Friday as a holiday.
Klein instructed employees to report to work on April
17 or lose that day’s pay. The Respondent continued
to insist that the 1983–1986 contract remained in ef-
fect. It urged unit employees to disregard Klein’s in-
structions and not to work on Good Friday.
Klein anticipated that unit employees might not re-
port to work and arranged for certain managers, super-
visors, and other nonunit employees to be available. At
7 a.m. on April 17, only 2 of approximately 43 unit
employees reported for work. Klein directed the stand-
by nonunit employees to assist unit personnel. Klein
also performed unit work, while General Manager
Fitzpatrick roved about the plant.
Shortly after work commenced, two to four of the
Respondent’s business agents entered the Employer’s
facility. This number quickly grew to 9 or 10 agents.9
Initially, the business agents clustered around the two
working unit employees and told them that they should
not be at work. The agents then dispersed and loudly
told individual nonunit employees that they were not
union employees, that they should not be performing
unit work, and that they should stop. In order to avoid
a confrontation, Fitzpatrick instructed the employees to
stop work. Business Agent Cika then told Klein that
it was a union shop, and that the Employer did not
have a right to do this. When Klein did not respond,
the 6 foot 6 inch, 250 pound Cika told him, ‘‘I might
end up in jail for 40 years, but you’re going to end
up in the hospital if this continues.’’10 Klein stopped
working and waited for the police, who had been sum-
moned. After the police arrived, the business agents
gradually left the Employer’s facility. Work resumed at
9 or 9:30 a.m.
At least two nonunit employees overheard Cika’s
threat to Klein. The judge additionally found that
Fitzpatrick and at least some unit employees certainly
must have heard or learned of the threat.11
C. June 22 Incident
On June 22, General Manager Fitzpatrick observed
Business Agents Vorell and Letner in the Employer’s
parking lot, slouched down in one of the Respondent’s
cars. A third unidentified individual was also in the
car. As Fitzpatrick drove out of the parking lot, he
waved at the Respondent’s agents. The business agents
pulled out behind Fitzpatrick and tailed him to his
home, approximately 14 miles. The Respondent’s
agents pulled over when Fitzpatrick stopped for gas.12
When Fitzpatrick arrived home, the business agents
parked outside his house for several minutes before
leaving.
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Sec. 8(b)(1)(B) states:
It shall be an unfair labor practice for a labor organization or
its agents—
to restrain or coerce . . . an employer in the selection of his
representatives for the purposes of collective bargaining or the
adjustment of grievances. . . . .
14 The Board long has held that contract interpretation is an
8(b)(1)(B) duty. In Typographical Union No. 18 (Northwest Publica-
tions), 172 NLRB 2173 (1968), the Board found an 8(b)(1)(B) viola-
tion when a union coerced an employer by disciplining its super-
visors for the manner in which they interpreted the applicable collec-
tive-bargaining agreement. Similarly, in Operating Engineers (Stone
& Webster), 295 NLRB 223, 224 (1989), the Board upheld its earlier
determination that a union violated Sec. 8(b)(1)(B) by disciplining
a supervisor in order to control the manner in which he ‘‘exercised
his supervisory authority with respect to the administration of the
contract.’’ See also Teamsters Local No. 856 (Industrial Employers),
195 NLRB 967 (1972).
15 In explicating the Florida Power Co. test, the Supreme Court
stated in NLRB v. Electrical Workers IBEW Local 340 (Royal Elec-
tric), 481 U.S. 573 (1987), that
[D]iscipline of a supervisor-member is prohibited under §
8(b)(1)(B) only when that member is engaged in § 8(b)(1)(B)
activities—that is, collective bargaining, grievance adjustment,
or some other closely related activity (e.g., contract interpreta-
tion, as in Oakland Mailers). [481 U.S. at 586. Emphasis
added.]
We do not interpret the language in Royal Electric or, indeed, in
Florida Power Co., supra, as requiring that the 8(b)(1)(B) represent-
ative be engaged in covered functions precisely when the proscribed
conduct occurs for a violation to be found. It is sufficient if the chal-
lenged union conduct is directed at, or in response to, an employer
representative’s exercise of 8(b)(1)(B) responsibilities. For example,
a union violates the Act where it fines a supervisor because that su-
pervisor previously crossed a picket line to perform, inter alia, cov-
ered functions. Operating Engineers Local 101 (St. Louis Bridge),
297 NLRB 485 (1989). Similarly, Sec. 8(b)(1)(B) is violated if a
union disciplines a supervisor in retaliation for an earlier interpreta-
tion of the collective-bargaining agreement. Operating Engineers
(Stone & Webster), supra. Further, a violation will be found if the
effect of the union sanctions is to prevent supervisors from perform-
ing any future work including their 8(b)(1)(B) duties. Sheet Metal
Workers Local Union 68 (DeMoss Co.), 298 NLRB 1000 (1990).
To read Royal Electric otherwise—and limit 8(b)(1)(B)’s applica-
tion to union conduct occurring contemporaneous with a supervisor’s
performance of covered duties—would eviscerate the statute and per-
mit unions to evade liability by strategically timing coercive conduct.
Clearly, that was not the Supreme Court’s intent.
Member Devaney did not participate in Sheet Metal Workers Local
68 (DeMoss Co.), above, and does not pass on the Board’s decision
there or the proposition for which it is cited in the preceding para-
graph.
16 No exceptions were taken to the judge’s conclusion that Klein’s
status as the sole owner of the Employer did not take outside the
scope of Sec. 8(b)(1)(B) Cika’s threat to Klein, which did not di-
rectly concern selection of employer representatives. We also find it
unnecessary to pass on the judge’s apparent acceptance of the theory
that Cika’s threat to Klein could violate Sec. 8(b)(1)(B) based on the
threat’s coercive effect on Fitzpatrick.
III. ANALYSIS
A. Overview
Section 8(b)(1)(B)13 does not proscribe all restraint
and coercion of an employer in the selection of its col-
lective-bargaining or grievance representatives. The
proscribed conduct must take one of two forms. It may
be applied directly against the employer to force the
employer to select or replace an 8(b)(1)(B) representa-
tive or indirectly against the employer’s 8(b)(1)(B) rep-
resentative in order to ‘‘adversely affect’’ the manner
in which the representative performs the covered func-
tions of collective bargaining, grievance processing, or
related activities—like contract interpretation.14 Flor-
ida Power Co. v. Electrical Workers IBEW Local 641,
417 U.S. 790, 805 (1974).
An ‘‘adverse effect’’ will not be found in every in-
stance where a union coerces an employer’s 8(b)(1)(B)
representative. Only where the union’s conduct may
‘‘adversely affect the supervisor’s conduct in perform-
ing the duties of, and acting in his capacity as, griev-
ance adjuster or collective bargainer on behalf of the
employer,’’ will a violation be found. Id. at 804–805.15
[Emphasis added.] Thus, only where the representative
is coerced for performing covered functions is it pre-
sumed that the union’s conduct will adversely affect
the representative’s future performance of 8(b)(1)(B)
duties. American Broadcasting Cos. v. Writers Guild,
437 U.S. 411, 430 (1978).
B. April 17 Incident
Initially, we agree with the judge that Klein pos-
sessed 8(b)(1)(B) responsibilities and that Cika’s threat
to Klein was coercive within the meaning of Section
8(b)(1)(B).16 Contrary to the judge, however, we find
that Klein’s performance and assignment of unit work
on April 17, at which Cika’s threat was directed, in-
volved contract interpretation and therefore constituted
an 8(b)(1)(B) activity. Cf. Florida Power Co., supra.
Rather, under all the circumstances, we conclude that
Cika’s threat was in retaliation for Klein’s exercise of
8(b)(1)(B) responsibilities.
The Employer maintained in negotiations that the
1983–1986 contract had expired, that a bargaining im-
passe had been reached, and that its final contract offer
lawfully had been implemented. By directing employ-
ees to report to work on Good Friday, and by ulti-
mately performing and assigning unit work to others
that day, Klein was enforcing the Employer’s final
offer eliminating Good Friday as an employee holiday.
The Respondent had consistently, and strenuously,
objected to the Employer’s position. It had filed unfair
labor practice charges against the Employer, signifi-
cantly increased its visits to the Employer’s facility,
and threatened Klein that someone would be injured if
the Union’s contract were not signed. The Union also
repeatedly had advised employees not to work on April
17, Good Friday, claiming that it remained an em-
ployee holiday. When some unit employees nonethe-
less reported to work on April 17, the Respondent’s
business agents further championed the Respondent’s
position by telling those employees that they should
not be there. In this context, when Cika threatened to
121TEAMSTERS LOCAL 507 (KLEIN NEWS)
17 Contrary to the judge, we do not find that the April 17 threat
is governed by the Supreme Court’s holding in Florida Power Co.,
supra. In Florida Power Co., the union disciplined its supervisor-
members because they performed struck work, not because of any
8(b)(1)(B) activity in which they engaged. Here, however, Cika’s
threat to injure nonmember Klein for assigning and performing unit
work necessarily encompassed the parties’ ongoing dispute over
whether the 1983–1986 contract survived, and whether Good Friday
remained an employee holiday. Thus, the Respondent’s position that
Klein was performing work of unit employees whose absence was
in observance of a (disputed) contractual holiday, not an economic
strike, distinguishes the present case from Florida Power Co.
18 The General Counsel argues in his brief that the June 22 inci-
dent did not arise in a vacuum, but occurred while the Respondent
was visiting each of the Employer’s clients and encouraging them
to cease doing business with the Respondent. The judge found, how-
ever, that evidence of these visits and the resultant unfair labor prac-
tice charges which the Employer filed against the Respondent were
not relevant to this proceeding. No exceptions were taken to the
finding. Accordingly, we reject the General Counsel’s argument.
19 Member Raudabaugh would find that the harassment of June 22
violated Sec. 8(b)(1)(B). The collective-bargaining contract interpre-
tation dispute that gave rise to the 8(b)(1)(B) violations of April 17
continued to exist on June 22. The Respondent’s harassment of
8(b)(1)(B) representative Fitzpatrick was related to that dispute.
Hence, Member Raudabaugh would find that the harassment was un-
lawful under Sec. 8(b)(1)(B).
injure Klein if he did not stop performing unit work
or assigning the work outside the unit, Cika was ad-
vancing the Respondent’s stance that the contract re-
mained in effect and that, therefore, the unit employees
were entitled to a day off from work under the con-
tract’s Good Friday holiday and the Employer was vio-
lating the contract by having nonunit employees per-
form unit work on that day. Further, Cika’s threat was
a challenge to the Employer’s position that the termi-
nation provision of the contract had been properly in-
voked, so that after the parties bargained to impasse
over a new contract the Employer had properly imple-
mented its final offer, which eliminated the Good Fri-
day holiday.
In these circumstances, and particularly as Klein’s
assignment and performance of unit work was inex-
tricably intertwined with the Employer’s interpretation
of the contract, we find that the Respondent violated
Section 8(b)(1)(B) when its agents threatened Klein on
April 17. Typographical Union No. 18 (Northwest
Publications), 172 NLRB 2173 (1968); Operating En-
gineers (Stone & Webster), 295 NLRB 223 (1989).17
C. June 22 Incident
We agree that Respondent’s harassment of
Fitzpatrick, by following his car on June 22, did not
violate Section 8(b)(1)(A) because it did not occur in
the presence of employees nor was it likely to come
to the attention of employees. With respect to the
8(b)(1)(B) allegation, we agree with the judge that
Fitzpatrick is an 8(b)(1)(B) representative who regu-
larly engages in collective bargaining and grievance
processing. We also agree that the Respondent coerced
Fitzpatrick when its agents followed his car on June
22. Although we additionally adopt the judge’s finding
that the June 22 incident did not violate Section
8(b)(1)(B), we do so because there is not a sufficient
nexus between the Respondent’s coercive conduct and
Fitzpatrick’s performance of covered functions.
Unlike Cika’s April 17 threat, which clearly was
linked to the parties’ contractual dispute, the June 22
incident occurred in isolation. It arose more than 2
months after the Respondent’s April 17 8(b)(1)(B) vio-
lation, and there is no evidence connecting it to the
parties’ contract dispute.18 Nor does the record dem-
onstrate that, by following Fitzpatrick’s car, the Re-
spondent’s agents were challenging his performance of
covered duties.
In these circumstances, we find that the June 22 in-
cident did not restrain or coerce the Employer in the
selection of its 8(b)(1)(B) representatives.19
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Teamsters,
Local No. 507, AFL–CIO, Cleveland, Ohio, its offi-
cers, agents, and representatives, shall take forth the
action in the Order as modified.
1. Insert the following as paragraph 1(c) and reletter
the subsequent paragraph.
‘‘(c) Restraining or coercing the Employer in the se-
lection of representatives for collective bargaining,
grievance adjustment, or related activities by threat-
ening Klein News President George R. Klein that
Klein would end up in the hospital if he and other in-
dividuals do not desist from performing work ordi-
narily performed by employees represented by the Re-
spondent, in violation of Section 8(b)(1)(B).’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT restrain or coerce employee-members
by threatening President George R. Klein in their pres-
ence that Klein would end up in the hospital if he and
other nonunit employees did not stop performing work
ordinarily performed by employees represented by
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1987 unless otherwise indicated.
International Brotherhood of Teamsters, Local No.
507, AFL–CIO.
WE WILL NOT restrain or coerce employee-members
by threatening them with possible physical harm if
they crossed the Union’s picket line.
WE WILL NOT restrain or coerce any employer in the
selection of representatives for the purposes of collec-
tive bargaining, grievance processing, or related activi-
ties by threatening President George R. Klein that
Klein would end up in the hospital if he and other
nonunit employees did not stop performing work ordi-
narily performed by employees represented by Inter-
national Brotherhood of Teamsters, Local No. 507,
AFL–CIO.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL NO. 507, AFL–CIO
Paul C. Lund, Esq., for the General Counsel.
Keith R. Wolgamuth, Esq. and Thomas McCormack, Esq.
(Motta, McCormack & Wolgamuth Co., PA), of Cleveland,
Ohio, for the Respondent Union.
Lee J. Hutton, Esq. (Duvin, Cahn & Barnard), of Cleveland,
Ohio, for the Charging Party Employer.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. The
above cases were tried in Cleveland, Ohio, on May 24 and
25, 1988. George R. Klein News Company (Klein News or
Charging Party) filed the original charge in Case 8–CB–6094
against International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 507
(Local 507 or Respondent Union) on May 1, 1987.1 Klein
News filed the original charge in Case 8–CB–6098 against
Local 507 on May 8. An initial consolidated complaint there-
on issued on June 16. Klein News filed the original charge
in Case 8–CB–6123 against Local 507 on June 26. There-
after, amended consolidated complaint (complaint) issued in
the above consolidated cases on July 31, alleging certain vio-
lations of Section 8(b)(1)(A) and (B).
More specifically, the complaint alleges that on or about
April 17, by the conduct of its business agent, John J. Cika,
Respondent Local No. 507, at Klein News’ facility in Cleve-
land, Ohio, in the presence of employees, threatened Klein
News President George R. Klein (Klein) with violence if
Klein and certain other individuals did not desist from per-
forming work ordinarily performed by employees represented
by the Respondent, in violation of Section 8(b)(1)(A) and (B)
of the Act.
The complaint further alleges that on or about May 6, by
the conduct of its business agent, Terry Freeman, Respondent
Local No. 507, at Klein News’ facility in Cleveland, Ohio,
in the presence of employees, threatened employees with vio-
lence if they crossed a picket line to be established by Re-
spondent Union at Klein News’ facility, in violation of Sec-
tion 8(b)(1)(A) of the Act.
The complaint further alleges that on or about June 22, by
the conduct of Business Agents George Vorrell and John
Letner, Respondent Local 507 threatened and coerced Vice
President and General Manager Brian Fitzpatrick by fol-
lowing in their vehicle Fitpatrick in his vehicle from Klein
News facility in Cleveland, Ohio, to Fitzpatrick’s home, and
by then parking their vehicle outside Fitzpatrick’s residence,
in violation of Section 8(b)(1)(A) and (B) of the Act.
By answer to complaint filed on August 20, Respondent
Union denies that it has in any manner violated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, Respondent Union, and the
Charging Party on or about July 19, I make the following
FINDINGS OF FACT
I. JURISDICTION
Klein News, an Ohio corporation, has an office and place
of business in Cleveland, Ohio, where it has been, and is en-
gaged in the distribution of magazines, newspapers and
books. Annually, Klein News purchases and receives at its
Cleveland Ohio facility products, goods, and materials valued
in excess of $50,000 directly from points located outside the
State of Ohio. The complaint alleges, Respondent Union ad-
mits in answer, and I find that Klein News is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act; and I further find that Respondent
Local 507 is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The history of collective bargaining
Klein News has had a bargaining relationship with the
Teamsters for some 30 years, and since a certain local union
merger, apparently the last 20 with Local 507. Local 507
represents a unit of the Employer’s warehouse and office
clerical employees, excluding supervisors and certain secre-
taries. In material times there were approximately 31–32
warehouse employees and 11 office clerical employees in the
unit. (Teamsters Local 473 represents the Employer’s driv-
ers.) Klein News and Local 507 have been signatory to a se-
ries of collective-bargaining agreements. The most recent had
duration on its face from May 1, 1983, through May l, 1986.
The parties are in dispute whether it expired.
2. The parties’ representatives
a. Local 507
Harold Friedman is president of Local 507. In material
times Local 507 employed approximately 15–18 business
agents, including in so far as named in the complaint allega-
tions herein, John Cika, Terry Freeman, George Vorrell and
John Letner. However, only Business Agent Freeman (and
Robert A. Sweet) have testified as witnesses for Respondent
Local 507 in this proceeding.
123TEAMSTERS LOCAL 507 (KLEIN NEWS)
b. Klein News
George R. Klein (Klein) is president, a member of the
board of directors, and (sole) owner of all shares of (com-
mon) stock of Klein News. Klein has responsibility for the
overall management of Klein News, as well as several other
companies. However, about 25–35 percent of the time Klein
is not present at Klein News. During such times, Brian
Fitzpatrick is in charge.
Klein News has employed Fitzpatrick for 13 years, the last
10 years as its vice president and general manager.
Fitzpatrick is a member of the board of directors. While he
owns certain shares of stock in Klein News, neither
Fitzpatrick nor any member of his family has an ownership
interest in the company. (Fitzpatrick, in addition to receiving
a weekly salary, participates in a profitsharing plan in a per-
centage amount second only to President Klein.) Fitzpatrick’s
responsibility is to oversee all the operations of Klein News,
including labor negotiations and grievance handling. Klein
has corroborated that Fitzpatrick actively participates in the
formulation of company policy, and in its response to griev-
ances.
3. Relevant contract provisions
a. Union rights and liability
(1) Hiring hall, conditions of employment
Pursuant to article II, the Union operates a hiring hall
under which terms and practices (essentially) the Employer
may hire whomever it wishes, but the new hire reports to the
hall for referral out to the job; and after the 31st day of em-
ployment the employee essentially becomes a member in the
Union, and continues membership in good standing as a con-
dition of employment.
(a) Re unit work performance
Article II–Conditions of Employment, section 6, in perti-
nent part thus specifically provides:
The Union shall be the only source of applicants for the
furnishing of the type of labor covered by this Agree-
ment, but the employer shall retain the right to refer ap-
plicants for employment to the Union hiring hall, and
any applicant referred by the Employer shall be given
preference over all other applicants.
Article XI–Status of Supervisor Employees provides relat-
edly:
No Shop Superintendent, Assistant or supervisory Em-
ployee shall be permitted to do any work regularly per-
formed by members of the Union, unless said Shop Su-
perintendent, Assistant or Supervisory Employee is a
member of the Union.
The Company was also contractually prohibited in article
XIII—Union Jurisdiction, ‘‘from using the employees of an-
other Employer to perform any bargaining unit work.’’
(2) Cooperation (visitation)
Article VIII–Cooperation provides:
The accredited Business Representatives of the Union
shall be permitted to enter the Employer’s premises
during all working hours, for the purpose of
ascertaining whether this Agreement is being properly
observed, without unduly interfering with the work.
(3) Grievance, arbitration, and related no-strike
provisions
The Union’s no-strike undertaking under the contract
terms is related to grievance-arbitration resolution. Thus, arti-
cle XIV, Grievance Committee and Arbitration Board, pro-
vides in pertinent parts:
1. If any controversy or difference shall arise be-
tween the Union and the Employer, or between any em-
ployees and the Employer, with respect to the interpre-
tation or effect of this Agreement with regard to the
rights, obligations, or liabilities of the parties hereunder
or otherwise, such controversy or difference, in order to
be considered a grievance under this Agreement, must
be submitted in writing by a Local Union member with
the shop steward or at the Local Union office within
seven (7) days of the date on which said grievance, dis-
pute, controversy, or the like occurred. Once a griev-
ance is timely filed in accordance with this Paragraph,
the grievance shall be processed as follows:
. . . .
4. It is agreed that during such proceedings there
shall be no lockouts, strikes, or stoppage of work. Fur-
thermore, the costs of arbitration shall be shared equally
by the Union and the Employer.
(4) Liability of the Union
Article XV, Liability of Union for Unauthorized Conduct,
provides severally: in section 1 that the Union is not to be
held liable for conduct of its agents unless authorized by the
Union; but that any employee who participates ‘‘in any un-
lawful strike, slowdown or other stoppage of work is subject
to immediate discharge without recourse to the grievance
procedure.’’ Section 2 provides that if a business agent has
caused the strike, etc., the Union will within 24 hours post
an appropriate notice disavowing the strike, etc., as unauthor-
ized, and call upon its members to resume work. Section 4
then provides that, ‘‘It shall not be a violation of this con-
tract if any employee or employees refuse to go through a
picket line authorized by Teamsters Joint Council No. 41.’’
b. Contract duration
Article XXII, Duration, Modification and Termination,
provides:
This agreement shall be and remain in full force and ef-
fect from May 1, 1983 until May 1, 1986 inclusive, and
thereafter from year to year; provided that this Agree-
ment will terminate at the expiration of the initial term
or any renewal term if either party gives written notice
to the other of its desire for termination at least sixty
(60) days before such expiration date; and provided that
if this Agreement is not so terminated and neither party
gives written notice to the other of its desire to change
or modify this Agreement at least sixty (60) days before
any such expiration date, then this Agreement shall re-
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
main in full force and effect after such expiration date
until a new Agreement (the terms of which shall be ret-
roactive to such expiration date) has been negotiated
and signed or until either party gives the other seven
(7) days’ written notice of termination, and provided
further that no termination of this Agreement shall af-
fect the duration of the obligations of the parties con-
cerning payment for employee health and welfare bene-
fits, pensions, dues and assessments.
4. The status of negotiations; an impasse, and company
implementation of its last offer of certain economic
terms for a new agreement
By letter of February 28, 1986, Teamsters Local 507
served notice on the Employer of proposed modification of
the agreement between them, along with sending an appro-
priate notice to the Federal Mediation and Conciliation Serv-
ice (FMCS). Neither party subsequently served a notice of
termination of the agreement on the other, or FMCS. The
record is unclear as to negotiations conducted prior to Sep-
tember 1986. In September, Klein and Fitzpatrick became ac-
tively involved, along with Attorney Duvin, in the negotia-
tions with Friedman for a new contract. Fitzpatrick has testi-
fied that he attended the five to six such negotiation meetings
held between September 1986 and January 1987.
By letter dated October 24, 1986, Fitzpatrick wrote Fried-
man, thanking Friedman for a recent candid meeting between
Friedman, Klein, and Fitzpatrick, but noting that appreciable
difference remained between the Union and the Employer for
terms of a new contract. In general, the Employer asserted
that its labor costs were much higher than its competitors;
and, it sought relief in several areas of direct payroll costs;
time off; pension; and health and welfare—for its (asserted)
survival. By letter dated January 27, Fitzpatrick presented the
Employer’s final offer for a discussion it proposed be held
that week between the Union and employees, and Klein,
Fitzpatrick, and Duvin. The meeting was not held. Indeed,
there were no additional negotiation meetings with the Union
in the times material herein. (The last actual negotiation
meeting was held with FMCS seemingly in the late fall.)
Fitzpatrick testified that prior to January 1987 usually two
business agents would visit Klein News once a month, brief-
ly; and 25 that after negotiations broke down, 2–3 business
agents began to visit Klein News daily, sometimes more
often; and they would visit longer in the afternoon.
Fitzpatrick related that all the business agents visited in that
manner. Fitzpatrick also recalled that in the period of Janu-
ary–March there were some work stoppages in that the busi-
ness agents would have meetings with the employees in the
basement when employees were supposed to be working.
The work stoppages were more likely in March. The Em-
ployer registered formal written complaint thereon by
Fitzpatrick letter of March 28 to Friedman; and the work
stoppages ceased thereafter.
By letter dated March 12, 1987, Klein had in the interim
written Friedman, specifically declaring an impasse, and noti-
fying the the Union that the Employer would (and it subse-
quently did) implement its final offer (of January 27) on
March 13. Inter alia, the Employer implemented a reduction
of five holidays, including, in so far as material herein, Good
Friday. In 1987, Good Friday occurred on April 17.
Local 507 contended that by its terms the old contract had
remained in effect; and it filed charges (apparently) con-
tending that an impasse had not been reached and that the
Employer had thus acted unilaterally. However, the Union’s
charges were dismissed following an initial determination
that an impasse had been reached; and, that Klein News’ im-
plementation of its final offer was not unlawful. The General
Counsel subsequently denied the Union’s further appeal. Re-
spondent Union nonetheless continued to contend at hearing
that the prior contract is still in effect.
The Union would explain its (essentially) conceded in-
creased presence at Klein News, in terms of a union reaction
to certain conduct of the the Employer, designed to weaken
the Union, infra. On cross-examination Fitzpatrick recalled
that he was present at a meeting of Klein and unit employees
previously held on March 12. Fitzpatrick denied that the
Company said at this meeting (or in a later meeting held on
April 15 or on April 17) that the employees could take with-
drawal cards from the Union until this problem was over,
and then join the Union again; or, that the employees could
withdraw from the Union and continue to work for Klein
News at the same wages and benefits. (No evidence is of-
fered to support any company offer to employees to forego
last offer reductions if the employees withdrew from the
Union.)
Initially Fitzpatrick also didn’t recall if there was a discus-
sion of a strike; or, a company offer to provide employees
with police or other escort through a picket line if estab-
lished. On other occasion, Fitzpatrick acknowledged that the
Company may have suggested that in the event of a strike,
if anyone wished to cross the picket line, that the Company
would try to provide safe egress and exit (sic). But then
Fitzpatrick didn’t recall when it was said; and, he didn’t re-
member if it was said before April 17. Fitzpatrick’s testi-
mony in this area was not very convincing.
Klein has more candidly revealed that he had held separate
meetings with groups of bargaining unit employees on March
12, i.e., with a warehouse group (and then with an office
clerical group (and with the department supervisor present,
respectively). Moreover, Klein recalled Fitzpatrick was also
present. Klein explained to the employees what the Com-
pany’s position at that time was, namely, that they had
reached impasse; and that the Company was going to imple-
ment its last offer (effective the next day). Inter alia, Klein
told the employees that they (the Employer) did not include
Good Friday as a holiday; and, in a discussion at this meet-
ing (or in a similar meeting on April 15, if not at both),
Klein told the employees that if they didn’t show (for work),
the only thing that would happen would be that they would
lose a day’s pay.
Klein denied that in this meeting that he had also told em-
ployees that in the event of a strike or picket line the em-
ployee-members could get temporary withdrawal cards from
the Union, and later rejoin (the Union) after the strike. The
Union established however, on cross-examination of Klein,
that Klein had probably done so. Thus, the Union estab-
lished, that in a prior Klein affidavit given on June 12, Klein
had said, ‘‘I explained that if the employees wanted to work
during the strike they could get temporary withdrawal cards
during the strike. They could work during the strike and re-
join (the Union) after the strike.’’
125TEAMSTERS LOCAL 507 (KLEIN NEWS)
Klein denied that the above statement was made to em-
ployees in the meeting held on March 12, but then he could
not recall when he had specifically made the statement. Klein
confirmed that he had another meeting with employees on
April 15, but then he also recalled that he had made the
above statement even before that, seemingly on April 5.
The Union has also established that in a prior affidavit,
Klein had testified: ‘‘I again reviewed that if there was a
picket line on Friday they could get temporary withdrawal
cards and come to work’’ (emphasis supplied). Klein also
therein stated, ‘‘I said that once all this was settled they
could reapply for membership. I pointed out that if the Union
would not accept them back as members, they could still
work at Klein News Company—or at the Company.’’
Whether at the meeting of March 12, or April 15, or
sometime in between (April 5), or, as appears more likely,
on more than one such occasion, I conclude and find that
Klein made the above statements he has acknowledged he
made in his prior affidavit, (at least) prior to April 17; and
that he more likely did so first, shortly after, if not at the
time of Klein’s mid-March initial announcement of the Em-
ployer’s intended implementation of its last offer to the
Union for the new contract.
Klein otherwise relates that when he announced to em-
ployees the impasse (presumably first) on March 12, a num-
ber of the employees then had related questions, e.g., what
their position would be if a (union) picket line were put up;
and, some employees asked what they would do if they
wanted to work. Klein relates that one of the employees’
concerns was about being fined if they crossed a picket line,
which led to the statements he made to employees.
According to Klein, they (the Employer) had gone to
counsel and found out that the people (unit employees, each
and all union members) could get temporary withdrawal
cards from the Union, and re-up (rejoin) once the contract
was settled; and, that they (the employees) would not be
fined during that period of time. Klein asserts that when they
were asked that question (later by employees), they re-
sponded with that answer. (The Union urges that was the
Company’s approach to its members.) On inquiry, Klein did
not know the name of any employee who had asked the
question; and, Klein didn’t recall if it was asked of him. No
corroboration of a related employee inquiry to Klein (or
Fitzpatrick) is offered. Klein more candidly acknowledged
that it was their intent all along to have whatever protection
they could get at the picket line to escort any employees
across the picket line who wanted to come to work.
The Employer was undoubtedly concerned about the num-
ber of employees who would be reporting for work on April
17. However, I also have no doubt on this record that the
Employer was concerned as well about the prospect of the
Union’s establishment of a picket line at the Employer’s fa-
cility even earlier, viz, with the Employer’s first implementa-
tion of its last offer was made effective March 13. However,
the Union at that time took the position that the terms of the
contract were still in effect; and, it thereafter urged unsuc-
cessfully in prior charge filed with the General Counsel that
the Employer’s implementation violated Section 8(a)(5) of
the Act.
B. The Evidence
1. The incidents on April 17 (Good Friday)
The complaint alleges that by the conduct of its Business
Agent John J. Cika on April 17, at Klein News’ facility in
Cleveland, Ohio, in threatening President Klein with violence
in the presence of employees, if Klein and certain other indi-
viduals did not desist from performing work ordinarily per-
formed by employees in the bargaining unit represented by
the Union, Respondent Local 507 has thereby engaged in
conduct in violation of both Section 8(b)(1)(A) and (B) of
the Act.
Fitzpatrick relates that the Union had urged employees not
to report for work on Good Friday, April 17; to observe the
holiday; and that the Union said employees would be paid
sometime later. The Employer otherwise acknowledges that
it in contrast sought to encourage the employees to come in.
Of some 42–43 unit employees, only 3 unit (2 warehouse
and 1 office clerical) employees came in to work on April
17. (Actually only two warehouse unit employees came in at
7 a.m., the start of the regular warehouse unit employee
workday.)
Fitzpatrick testified that the Employer’s products are per-
ishable in the sense they contain dated sales/advertizing in
radio, TV, and newspaper publishings. Accordingly, Klein
arranged for certain nonbargaining unit individuals, viz, man-
agers (including himself), secretaries and clerks to be avail-
able on April 17, to perform as necessary (along with the
bargaining unit employees that showed up at 7 a.m.) the nor-
mal unit shipping work scheduled for that day.
The Employer’s plant is quite long. Within the plant there
is a shipping line containing a conveyor belt that runs north
and south, and stretches 180–190 feet in length. Warehouse
employees normally work on one side and at either end of
the line. At the designated front end of the line there is a
T station where the shipping invoice is first put on the line,
and where small draw titles are picked. In that regard, Klein
relates that there are usually about 140 individual magazine
titles for picking (selection) to fill orders. There are normally
9–10 pick stations, which are manned by 9–10 pickers who
pick the designated number of magazines in accordance with
the invoice/order. Two or three employees work at the end
of the line. One ties the bundles (with a plastic strap ma-
chine), and one marks the bundles. The bundles are then
placed in interbodies (carts) that are rolled into the back of
trucks for loading. There is also one employee regularly as-
signed to run a tow motor to replenish stock, and otherwise
to work the line.
Fitzpatrick relates that on April 17 the work started at 7
a.m. Klein was on the shipping line; and Fitzpatrick was rov-
ing around the plant, seeing that the drivers, who were mak-
ing a delivery that day, got out. The work scheduled to be
performed by unit employees that day was to pick and bun-
dle product for a driver delivery on the following Monday.
Klein confirmed that when only two warehouse employees
showed up at the 7 a.m. starting time, Klein had the back
up staff, namely himself, several managers, some secretaries,
RDA clerks, and the two unit employees who had shown up
for work, start the unit work. Materially, Klein was at pick
station 2, and notably two nonbargaining unit employees
(Marilyn Schmitt and Margaret O’Malley) were nearby.
Fitzpatrick recalled that early that morning he was by the
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
strapping machine at the end of the line. The controls for
stopping the line are located in that area.
Fitzpatrick recounts that shortly after 7 a.m., a couple of
business agents came in; and, shortly after that, a larger
group of business agents arrived. Fitzpatrick recalled that at
this time there were seven to eight business agents present.
According to Fitzpatrick, in a loud voice they (the business
agents) told everybody to stop working. He recounts that the
business agents went up and down the shipping line telling
the people, in no uncertain terms, not to touch anything.
Fitzpatrick recalled specifically that they had said, ‘‘Stop the
line. This is bargaining unit work. You’re not supposed to
touch anything here. Everybody stop working.’’
Klein confirms that when it was obvious at 7 a.m. that the
unit employees were (in general) not coming in, they put the
staff group on the tie line to assemble the bundles for the
preparation of the orders to be delivered the following Mon-
day to meet the publisher sales dates. Klein recalled that
shortly thereafter 8–12 business agents came into the plant.
He also recalled that the business agents came from various
locations, including from a door to the employees’ parking
lot, that had been supposedly secured by a combination lock.
The business agents also came in from the front door. Klein
testified that he had never seen that many business agents in
the plant before (at one time).
Klein testified that the business agents were rather loud
and boisterous. Klein recalled that at first the business agents
had clustered around the two warehouse unit employees
(Terry Musiack and Rick Wisniewski), who had come in to
work. Most first went to Musiack, a union member who reg-
ularly operated the tow motor, and otherwise works the line;
and then they went to Wisniewski, who works the tie line.
Klein could not hear what the business agents said to
Musiack and to Wisniewski. However, the General Counsel’s
witness, O’Malley, testified credibly that she heard the busi-
ness agents tell Musiack that he should not be there.
The business agents then went to the far end of the line,
Klein recalls that there was a lot of shouting and yelling.
Klein heard the business agents say in a loud voice, sever-
ally: ‘‘that this was all bargaining unit work; that we didn’t
have Union cards; that we had no right to be doing that
work; and, we shouldn’t be doing the work.’’ Klein relates
that as the business agents would leave each pick station, the
employee would back away from what they were doing on
the line, and stop working.
Fitzpatrick’s recollection, however, was that both he and
Klein had told the people to stop working because they
didn’t want to see any violent (sic, in context violence).
Klein has testified that he did not first tell the employees to
stop work. However, Klein acknowledged that Fitzpatrick
told Klein that he did, when the business agents had started
down the line, confronting the employees and yelling at them
that they didn’t belong to the Union, and to stop doing the
unit work.
Fitzpatrick testified relatedly that when he saw that their
(the union business agents’) intentions were to stop anybody
from working, and, as they also gave Fitzpatrick the impres-
sion that they would do whatever they had to do to stop the
people from working, Fitzpatrick told the people not to work,
because he didn’t want to see anybody get hurt. Fitzpatrick
recalled that the people stayed at their workstations, but they
did not work.
Klein testified that the business agents (eventually) worked
back down the line to him. Some 8–12 business agents hov-
ered around. At that time Business Agent John Cika had a
20-second direct conversation with Klein. Klein testified that
Cika came up to Klein, nose to nose. Cika said, ‘‘This is a
Union shop. You guys don’t have any right to do this.’’
Klein ignored Cika’s remarks. Klein testified relatedly, that
he didn’t want to provoke anything. According to Klein,
Cika then said, ‘‘I might end up in jail for 40 years, but
you’re going to end up in the hospital if this continues.’’
Klein relates that Cika, is a very big guy; and, without con-
test, Klein has described Cika as 6 feet 6 inches, 250–260
pounds. Klein otherwise testified that Cika had (earlier) been
screaming and yelling. Klein did not answer. However, Klein
also quit assembling the orders he had been working on.
Klein then stood around with the others for some 7 minutes,
until the police arrived.
Terry Freeman testified that the Teamsters have employed
him for 15 years, and Local 507, for the last 12 years. Free-
man related generally that Local 507 has some 500 compa-
nies (or shops) being serviced at various stages of collective
bargaining by 18–20 business agents. The shop units rep-
resented vary in size from a 1-man unit, to 20–30 man units,
to units of 400–600 employees. In general, every such shop
is set up for a visit by a business agent(s) at least once in
a 2-week period; and some, more often, depending on what
is going on. Freeman testified relatedly that the Klein News
unit of 43 employees was not considered a small unit.
According to Freeman, each business agent runs a route
daily. No business agent is assigned to a particular company;
and each business agent is effectively made responsible for
all companies. Business agents receive rotating assignments
(scheduled by President Friedman) in three books, which are
set up geographically.
On a normal day, anywhere from one to three (but as
many as four) business agents go out together on their as-
signed routes. Business agents regularly drive union vehicles,
which are all dark blue Chevrolet Caprices. In running the
routes, a business agent may have the same partner for 1, 3,
or 5 (consecutive) days, though a business agent may also
have occasion to switch an assignment. The number of stops
(companies visited) that the business agent(s) may make on
a given route varies, from apparently as high as 20, to some-
thing less, depending on such factors as the number of the
employers in a route area, involved distances, unit sizes, and,
the number of business agents assigned to go out on the
route. However, Freeman also testified that a business agent
does not do the same route the next day.
Freeman relates in general that the responsibility of a busi-
ness agent on the given stop, is to ensure that any existing
contract is being lived up to; to make sure that members are
doing the unit work; to check on any outstanding monies due
employees, the Union, or certain Funds; and, to answer any
employee-member questions, with occasion to particularly do
so at contract negotiation time. Freeman testified otherwise
that normally the business agents try to talk to everyone in
the shop; and, on a regular basis, they do talk to 95–100 per-
cent of the unit employee members.
In regard specifically to Klein News, and in contrast with
the Employer, Freeman testified that Local 507 visited Klein
News on a regular basis that could have been every week.
However, Freeman also readily acknowledged that from De-
127TEAMSTERS LOCAL 507 (KLEIN NEWS)
cember 1986 through June 1987 Freeman had visited Klein
News more often. In general, Freeman testified that many
contracts are negotiated after the purported expiration date of
the contract; and, that at contract negotiation time there are
many more questions from the unit employee/members who
want to know what is happening on the new contract, and
who have questions in regard to any prospective raise in
wages and/or new benefits. In that regard, and unlike most
shops, Freeman testified that Klein News regularly engaged
its employees in conversations about the negotiations, which
raised a lot of member questions, and which occasioned a lot
of phone calls to the Union.
Freeman specifically relates, e.g., that members told Free-
man that after he had visited and left Klein News’ facility,
the Company had then rounded the employees up in the
basement, and told the employees that the Company had a
problem being competitive in the area; and, that it felt they
should give certain things back to the Company. Freeman
also relates that some (members) had difficulty with that, be-
cause the distributor competition for Klein News, was not
visible in the area.
Freeman recounts also that employees told him that the
Company kept saying to them that it was going to protect
the employees; and the Company then told the employees,
that if they (employees) wanted to cross a picket line, or, if
they wanted to get out of the Union, they would be fully
protected; and, that the employees should come and get out
of the Union; and the employee-members asked him what it
all meant. Freeman testified in summary that it sort of cre-
ated an uneasiness among the members.
Freeman testified that he thought the members had also
said that Klein had told them, that Klein could bring in re-
placements; but, Freeman then didn’t initially recall what his
response had been. However, the General Counsel then es-
tablished that in a prior affidavit, Freeman had there not only
recorded that the employees had told Freeman that Klein had
told them that Klein would bring in replacements, but that
Freeman’s response to the employees was, ‘‘I told them that
this had been done in the past by other companies many
years ago and I indicated what problems had arisen many
years ago at other companies when they brought in strike re-
placements.’’ (The affidavit does not recount the nature of
the problems referenced.)
At hearing Freeman vaguely recalled a question about
strike breakers. It is Freeman’s related testimony that he told
the employees that strike breakers had started many years
ago; ‘‘that companies used to hire people to come and club
you [employees] over the head’’ to make the employees
break up their strike and cross the line; and, that he told the
employees, ‘‘You tell them that companies have tried that in
the past.’’
Freeman also testified (generally) that President Friedman
is present for negotiations, along with whatever business
agent(s) is (are) available for negotiations. With regard to ne-
gotiations conducted with Klein News, Freeman did not par-
ticipate in any of the negotiations. However, Freeman re-
called that he was given a brief update, and he did read some
related correspondence in regard to breaks that the Union felt
it had earlier given to the Employer.
Freeman also testified that the past practice of Klein News
(and many other companies) was to keep the contract in
force in accordance with certain terms found in all their con-
tracts, until a new contract is negotiated. However, the Em-
ployer then established on cross-examination of Freeman,
that though Freeman was aware that there was talk of a
March implementation, Freeman was not aware of terms that
were actually implemented by the Employer. Moreover, al-
though Freeman recounted that every year some 20–30 con-
tracts are reached after the so-called expiration date, and he
remained adamant that the Klein News-Union contract was
still in effect, Freeman also acknowledged that he didn’t
know of any (company) that had implemented a last offer to
the Union, other than Klein.
Fitzpatrick testified that he recognized some of the busi-
ness agents that were there on April 17, naming: John Cika
and John Irby; (at various times) Jack Herskobitz and Bill
Geravicious; and also Terry Freeman, though Fitzpatrick
didn’t think that Freeman was there at the beginning. Klein
testified that he was not as familiar with the business agents’
names, because he doesn’t deal with them a lot; and, that he
sort of knows their faces. However, Klein testified that he
knew it was Cika who had spoken to him in the above-re-
lated manner that day.
Klein explained that after he had implemented (on March
13) the last contract offer, Cika had come in with a bunch
of other business agents. On that occasion Cika told Klein,
that if we didn’t quit fooling around and if ‘‘we didn’t sign
their (Union’s proposed) contract and get this thing settled,
that somebody was going to get hurt.’’ Klein testified that
after that visit he looked at house organs (publishings) and
found out it was John Cika. The complaint does not allege
this earlier remark as being independently violative of the
Act.
Klein testified that the two nonunit employees working on
the line near Klein on April 17 had also heard Cika’s threat-
ening remark to Klein that day. Klein News has employed
Marilyn Schmitt for 13 years, presently as RDA manager,
but at the time of the incident on Good Friday, as a(n unrep-
resented) distribution analyst under Product Planning Man-
ager Sherri Natoli. An analyst reviews distributions by title,
retailer, and sales reports; and, the analyst adds/decreases
(product) where necessary. Schmitt had not performed any
bargaining unit work before.
Schmitt testified that there was talk that the people (unit
employees) were not going to come in and that ‘‘we [Schmitt
and other nonbargaining unit employees] would work for
them.’’ Schmitt recalled that on the day before, thus April
16, Natoli had notified Schmitt that they would be doing the
bargaining unit work in the shipping room. Schmitt con-
firmed that on April 17 at 7 a.m. they began working the line
because union personnel were not there.
Schmitt recalled about 7–10 business agents came in short-
ly after that; and, that they said to stop working because it
was a union shop; ‘‘we were doing union work; and he [sic]
wanted us to stop.’’ Schmitt specifically confirms that she
was about 15 feet away from Klein when Cika came up to
Klein, and had a conversation with Klein. Schmitt testified
she didn’t hear the conversation up until she heard Cika say,
‘‘I may go to jail, but you’re going to end up in the hos-
pital.’’
Klein News has employed Margaret Mary O’Malley for 10
years. O’Malley is presently employed as an assistant to the
product planning manager, and on April 17, as a(n unrepre-
sented) marketing secretary. O’Malley had been previously
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employed in a bargaining unit position and was then rep-
resented by Local 507 from 1978–1982.
O’Malley recalls that it was on April 15, that her super-
visor, Ron Clark, had requested O’Malley to come to work
on April 17 at 7 a.m. dressed to work in the warehouse. At
7 a.m. she went to the warehouse to see if anybody from the
Union (unit employees) had come to work. O’Malley cor-
roborates Klein, that when nobody showed but two (unit)
employees, they promptly assumed the positions on the ship-
ping line and began working. O’Malley’s recollection is that
about 7:15 a.m., nine business agents entered and walked by
the shipping line. They first went to the other end of the line
where they surrounded Musiack. O’Malley heard them say to
Musiack, ‘‘You should not be here.’’
O’Malley also recalled that the business agents then came
over to the end of the line, where they split up, and they then
came up the line. O’Malley confirms that they told the em-
ployees there to stop working. A business agent named Al,
one of two who were in front O’Malley, told her to ‘‘Stop
working.’’ She stopped working. O’Malley relates that most
of the employees, after stopping their work, travelled up the
line to hear what was said. In any event, O’Malley has as-
serted that she did, and as she approached the female em-
ployee working in back of Klein, O’Malley heard Cika yell
at that employee to stop working.
While 10 feet away O’Malley also heard Cika speak to
Klein. O’Malley heard Cika say to Klein, ‘‘This is a Union
shop; this is Union labor, you should not be here working.’’
Significantly, O’Malley corroborates Klein and Schmitt, that
she heard Cika also say to Klein, ‘‘I may very well be going
to jail, but you’re going to the hospital.’’ O’Malley recalled
that a few minutes later, Brian (Fitzpatrick) came into their
area; and a few minutes after that they heard that the police
were on the way.
Fitzpatrick went to his office, and he called the offices of
the Employer’s attorneys, reaching Attorney Lee Hutton.
Fitzpatrick told Hutton that Klein News had been visited by
a large number of business agents; and, we had stopped
work. Fitzpatrick asked for Hutton’s assistance. Hutton
promptly called the Cleveland police. Klein confirmed that
he heard that the attorney and the police had been called;
and, that at that point, he felt the best thing was for every-
body to just sort of stand (around) and wait and see what
happened; but not provoke any incident with any of the busi-
ness agents.
After Schmitt heard that the police were called, Schmitt
went upstairs to the office, where she worked for the remain-
der of the day. O’Malley confirmed that a number went up-
stairs to see if they could help out with the work being done
there. However, O’Malley relates that after they were up-
stairs about 10 minutes, word came that the police had ar-
rived and they were needed downstairs. O’Malley recalls that
they were later told to resume their spaces (pick stations) on
the line; and that they began work again at about 9:30 or
9:45 a.m.
Fitzpatrick recalled that the police had arrived in about 5–
10 minutes. Fitzpatrick confirmed the police negotiated (sic)
with the business agents, which continued for an extended
period of time. Fitzpatrick testified that he wasn’t a party to
any of the discussions between the police and the business
agents; and he had no discussion with the Union while the
police were there.
Fitzpatrick testified that the business agents began to drift
out. Though Fitzpatrick recalled that some new business
agents had arrived in the interim, he relates the overall num-
ber began shrinking. This went on for about an hour until
an agreement was reached, and everybody was able to re-
sume work around 9 a.m. Fitzpatrick recalled the most busi-
ness agents present at one time as 11–12; and that the last
couple of business agents left shortly before 10 a.m..
Klein relates that a police lieutenant arrived and quickly
took charge. Attorney Hutton also arrived; and he initially
spoke with the police. According to Klein the police lieuten-
ant immediately started talking to Cika. Indeed, Klein re-
called that the police lieutenant climbed up on a skid to look
Cika eye to eye. The lieutenant then asked Cika to get out
of the building, saying, that he had no right to be doing what
he was doing. On other occasion, Klein recalled that the po-
lice lieutenant told Cika to get his guys out of there. Klein
relates that Cika kept telling the police lieutenant he should
call his superiors who would tell the lieutenant that he (Cika)
had every right to do what he was doing; and on other occa-
sion that Cika said, he had every right to be there; and he
wasn’t going to leave. Klein relates that this went on for 3–
4 minutes.
Klein corroborates both that the business agents began to
dribble out, and that more business agents (and more police)
had also arrived. According to Klein’s recollection the busi-
ness agents were there in force until about 9:15 a.m. Klein
confirmed that all the business agents had left by 9:45–10
a.m.; and, Klein recalled that once the business agents had
left, they started up the line, and completed the orders in the
rest of that day.
Freeman confirms that he was at the plant on April 17.
Freeman readily acknowledged that he didn’t arrive at 7
a.m.; and otherwise asserted that he was not sure what time
he got there. It is very clear of record however that by the
time Freeman had arrived, the above complaint incidents of
April 17 had already occurred. Freeman thus testified that
when he arrived it seemed like there were 15 policemen al-
ready present. Freeman recalled them all standing against the
wall at the time. Freeman also recalled that on arrival he had
seen Attorney Hutton, and spoke to him. Finally, Freeman
related that he didn’t see many of the business agents there
when he arrived, perhaps two to three. It is clear that Free-
man was one of the last business agents to arrive.
In agreement with the General Counsel and the Charging
Party I conclude and find that by the time Freeman arrived
at the Klein News facility on April 17, the material incidents
of that day had already occurred, and that Freeman’s ac-
counts do not substantially contradict them.
Freeman otherwise testified that he personally talked to the
police lieutenant, who asked Freeman how long he was
going to be at the Company. Freeman replied he didn’t
know, he was going to talk to the members; and it would
be until he finished talking to the members that he would be
there. The police lieutenant told Freeman he would be there
also. Freeman acknowledged that the police were still there
when he left. Freeman testified that at no time did the police
try to make him leave; and, no company officer, or employee
told him to leave.
In that regard Freeman testified that he believed the con-
tract gave him the right to be there; that he was there to en-
force the contract; and, that the Union had never agreed to
129TEAMSTERS LOCAL 507 (KLEIN NEWS)
waive the contract and allow nonbargaining unit employees
to do the bargaining unit work on Good Friday. Klein has
essentially countered that with Good Friday no longer a con-
tractual holiday (by virtue of a now determined lawful imple-
mentation following impasse) the unit work was there for the
bargaining unit employees to perform on April 17, if they
were there to perform it; and, if not (lawful) arrangements
had been made with others to perform the work timely.
In rather revealing related testimony, Freeman otherwise
testified that whenever you have problems at a shop, it is
(put) on everybody’s route. It is thus especially notable addi-
tionally that Klein News’ facility is located close to the
union hall, i.e., within six blocks. Freeman conceded that the
Klein News facility was visited daily, and sometimes more
than once. Indeed Business Agent Robert A. Sweet has ac-
knowledged that President Friedman had held a related meet-
ing with all of the business agents; and that Friedman had
specifically told all the business agents that whoever was in
the area was to stop in, and make sure that everything was
alright.
Local 507 has employed Sweet as a business agent for 4
years. On other occasion Sweet reaffirmed that the instruc-
tion he had received from Friedman was, if Sweet was in the
area he was to stop by Klein News to see what was going
on, and make sure everything is alright. Sweet denied that
the purpose was to put pressure on union members.
Sweet had arrived at Klein News facility on April 17 ear-
lier than Freeman. Indeed, Sweet was one of the first busi-
ness agents to arrive there. Thus, Sweet initially related that
when he arrived there were just four business agents there,
naming himself and his partner that day, George Vorrell, and
Cika, and Cika’s partner that day, whom Sweet could not re-
call. As noted earlier, Klein has described Cika as being 6
feet 6 inches and 260 pounds. Sweet described himself as
being 6 feet 2 inches and 250 lbs, and Vorrell as being about
6 feet 1–2 inches and 230 lbs. Sweet acknowledged that he
also saw one to two Local 507 members in training there;
and, in the end, he conceded that there were at least 8 busi-
ness agents (of 16–18 business agents employed at that time)
present, during the period that he was there.
Sweet testified that prior to arriving he did not know how
many unit employees were going to be there. Nonetheless,
after observing that there were but two, Sweet has asserted
that all the business agents were there to answer questions
and find out whether everything was alright for the (two)
unit employees, with whom he spoke.
Sweet states that he spoke with each of the two unit em-
ployees for 5–10 minutes, just asking them how they were
doing, and if everything was alright. Sweet has denied that
he heard any business agent tell any employee, or individual,
‘‘You’re not supposed to be working.’’ In that regard, Sweet
recounts that Sweet just said, ‘‘Well, its a holiday, you’re
supposed to be getting holiday pay.’’ Be that as it may, I
credit O’Malley’s account that she heard union business
agents tell (at least) unit employee Musiack, that he should
not be here. I further find that business agents loudly told
the others present to stop the work on the line.
Sweet recalled that he observed Cika talk directly to
Klein; and that they talked face to face, 1–2 inches apart, for
2–5 minutes. Sweet related that he was 20 feet away, and
that he had an unobstructed view of them. Sweet asserts that
he was not close enough to hear the conversation. Sweet also
related: that he didn’t recall any unit employees near Klein;
that there were some people out on the line, but the closest
was (also) 20–30 feet away. On cross-examination Sweet
said that at the time he was just standing around, watching
them talk, though Sweet asserts that they weren’t talking
loud enough for him to hear the conversation.
Sweet has otherwise acknowledged that at some point he
had gone to the restroom. According to Sweet when he re-
turned, a police officer asked Sweet to leave. Sweet replied
that they had every right in the world to be there. Sweet told
the officer that he didn’t have to leave; that he came there
to talk with their members; and, that the contract states that
they can come in at any time and talk with their members.
Sweet recalled that he then took the police officer over to
the employees’ bulletin board where a copy of the contract
was posted. Sweet showed it (art. VIII, supra) to the officer;
and the officer then said, ‘‘All right. Fine. I can’t force you
to leave the premises now.’’ Sweet relates that he stayed 30–
45 minutes.
Klein stated (relatedly) that the Company’s position was
that as long as there was a bargaining unit employee work-
ing, a business agent had a right under the (expired) contract
to come in and talk to an employee; but (Klein felt) 10–14
business agents there was not right. However, they had no
way to physically stop them. On cross-examination Klein tes-
tified that he didn’t know whether the Union had a right to
have a business agent visit the plant from the ‘‘expired con-
tract,’’ or from the Company’s implemented offer (or other-
wise). Klein viewed that as a legal question.
Klein affirmed that he did not ask the business agents to
leave until the police arrived. Klein explained, they were try-
ing not to provoke any type of violence; and, we wanted to
freeze everything, and wait till the police arrived, who would
deal with the situation.
According to Fitzpatrick, at least two business agents have
visited Klein News daily. There were days when Klein News
had three visits by business agents. The business agents
would remain for 1/2 to 1 hour per visit. Visitation in this
manner continued through April and most of May. In June
it started to fall off. After June, they would visit two to three
times a week; and, then they tapered off in the winter to one
to two a week, as it is presently. The complaint does not al-
lege that the continued visitations were unlawful.
Freeman acknowledged that the unit employees of Klein
News worked Good Friday in 1988. Freeman then asserted
that he didn’t know if employees (in 1988) were either paid
the prior contract’s double-time rate, or had filed a grievance
on it. I find Freeman’s assertions in this area particularly un-
convincing, noting the same as incongruous with Freeman’s
earlier assertion that the prior presence of multiple business
agents at Klein News on April 17 was with purpose to keep
the business agents informed, and not to threaten or intimi-
date the working employees or the Employer. On this record
it is clear, and I find, that the unit employees worked Good
Friday in 1988; did not receive the old contract’s double rate;
and, that no grievance was filed thereon.
2. The alleged threats on May 6
The complaint alleges that on or about May 6, by the con-
duct of its business agent, Terry Freeman, Respondent Local
507, at Klein News’ facility in Cleveland, Ohio, in the pres-
ence of employees, threatened employees with violence if
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they crossed a picket line established by Respondent Union
at Klein News’ facility, in violation of Section 8(b)(1)(A) of
the Act.
Klein News has employed Mary Denzine for 22 years.
Denzine has been a member of the Teamsters Union for 22
years. Denzine was on vacation in March, but she was aware
that the Union and the Company were trying to negotiate a
contract; that it had been a year and they had not settled any-
thing; and that the employees were concerned. Denzine did
not work on April 17. Subpoenaed and called as a witness
by the General Counsel, Denzine testified as to a certain con-
versation she had with, and one she heard between Business
Agent Terry Freeman and other employees on May 6.
Denzine recalled that on May 6, unit employee Jenny
Rosnick was next to Denzine. On that occasion Freeman told
them that they would be on strike soon, and they should
gave their money. Both Denzine and Rosnick told Freeman
that they did not want to be on strike. About 10 minutes
later, at breaktime, Denzine (but not Rosnick) went to the
back and sat down near unit employees Dave Gabry and
Rick Wisniewski. Denzine heard a conversation between
Gabry and Freeman who was also there.
Gabry started the conversation with Freeman. Gabry
asked, if we went on strike, if the Company could bring in
outside help, and if we would be allowed to cross the picket
line. According to Denzine, Freeman said, ‘‘No, that we
wouldn’t be allowed to do that and if we did, someone would
get hurt.’’ On cross-examination Denzine testified that Free-
man told them ‘‘we wouldn’t be allowed to come in’’; and
they (the Employer) wouldn’t be allowed to bring any out-
side help in. Denzine recalled that Gabry then asked if there
would be police protection. Freeman said, ‘‘Yes, there would
or could be, but it would not be available at all times, and
somebody could get hurt when they weren’t around.’’
Denzine added that Freeman also said, that ‘‘there would be
a lot of people out there. They have a big union. There
would be a lot of people, around 300. No one would know
who hurt them if somebody got hurt. No one would know
who did it to them.’’ Denzine testified that these statements
of Freeman scared her a lot, and Denzine told her supervisor
at the time.
Freeman has testified that he didn’t remember a specific
conversation with Denzine, Gabry, or Wisniewski, though
Freeman generally remembered that he had talked to every-
one, practically about everything under the gun.
At hearing Freeman testified that he did not recall: (a) tell-
ing any employee at Klein News that in the event of a strike,
the Company would not be permitted to bring in replace-
ments; (b) saying if there was a strike, that there would be
a couple of hundred people outside; or (c) that if anything
happened there’d be too many people around for anyone to
know, and that people would never be able to prove who
hurt them; (d) that the police couldn’t always be there, and
the people who tried to work during a strike would get hurt
when no one was looking; or (e) that any employees that
crossed the picket line would end up in the hospital.
In a prior affidavit (introduced by the General Counsel)
Freeman had earlier specifically denied: ever telling any em-
ployee that they would get hurt; threatening any employee
with reprisal if they crossed a picket line; or, telling any em-
ployees at any time that if they crossed a picket line they
would end up in a hospital. With regard to Denzine’s relation
that she had listened to such a conversation between Freeman
and Gabry, Freeman responded that there are hundreds of
times that he never knows that an employee has listened into
a conversation, and gotten it all screwed up.
Preliminary analysis
Apart from an indicated change in the degree of definite-
ness in Freeman’s nonrecall testimony at hearing, e.g., as
compared with his outright denials in prior affidavit, I do not
otherwise find Freeman’s (essentially) urged simple discount
of Denzine’s testimony on this incident very convincing.
Freeman offers implicit explanation that without his aware-
ness, employee-member Denzine has simply this and/or mis-
understood something that Freeman had said to another em-
ployee. If it were but one statement that Denzine had attrib-
uted to Freeman which Freeman would thus have sought to
explain that Denzine had misunderstood, that would be one
thing. But here, Denzine has attributed several related state-
ments with common theme running through them on a matter
of direct interest to her. Moreover, Denzine is a long-term
member of the Union; and, in keeping with Union’s position
urged upon her, she did not report for work on April 17. In
the end, I am more convinced that Denzine did not make up
the statements she has attributed to Freeman. Rather, I find
that Denzine’s account appears the more credible, under all
of the circumstances, and I credit it.
Accordingly, I find that on May 6, at the Employer’s
plant, after Freeman had first informed Denzine and another
employee that they would be on strike soon, and that they
should save their money, both the unit employees then told
Freeman that they did not want to be on strike; and, that
only about 10 minutes later, during break, Denzine heard
employee-member Gabry ask Freeman, if the Company could
bring in outside help, and if the employees would be allowed
to cross the picket line, if there was a strike. I further con-
clude and find on credited evidence above that in responding
thereto, Freeman had told Gabry, but in the presence of other
unit employee-members, including Denzine, that in the event
of a strike: (a) that the Company would not be allowed to
bring any outside help in; and (b) that the employees would
not be allowed to cross the picket line. Freeman then said,
severally: (c) that if they did, someone would get hurt; (d)
that they (the Teamsters) have a big Union, and there would
be a lot of people out there, around 300; (e) that there would
or could be police protection, but it wouldn’t be available at
all times, and somebody could get hurt; and, if someone got
hurt, no one would know who did it to them.
3. The union car-following incident of June 22
The complaint alleges that on June 22, Union Business
Agents George Vorell and John Letner, in their union vehi-
cle, followed Vice President and General Manager
Fitzpatrick in his vehicle (after regular workhours), from
Klein News facility in Cleveland, Ohio, to Fitzpatrick’s
home; and that they had then parked their union vehicle out-
side the residence of Fitzpatrick. The complaint alleges that
by such conduct Respondent Local 507 has threatened and
coerced Fitzpatrick and the Employer’s employees in viola-
tion of both Section 8(b)(1)(A) and (B) of the Act.
On June 22, Business Agents George Vorell and John
Letner visited the Employer’s facility. They left the facility
131TEAMSTERS LOCAL 507 (KLEIN NEWS)
at 4:30 p.m. Production and maintenance and warehouse em-
ployees leave at 3:30 p.m. Office clerical employees (in the
unit) leave at 4:30 p.m. Fitzpatrick left the facility that day
at 5:10 p.m.
On leaving the plant Fitzpatrick recognized a business
agent’s car parked unusually on the other side of the Em-
ployer’s 80-foot by 100-foot parking lot, rather than (as
usual) out on the street. Fitzpatrick drove over to the Union’s
car. At this time Fitzpatrick observed three individuals
slouched down in the car, with only the top of their heads
visible, and just their eyes, showing. He recognized two busi-
ness agents, viz, Vorrell who was in the driver’s seat, and
Letner who was in the front passenger side. Fitzpatrick did
not recognize the third person in the car, who has otherwise
remained unidentified of record.
Fitzpatrick had known Vorrell for 10 years, though his
dealings with Vorrell have been limited to about four to five
(grievances) in all, and at the grievance rate occurrence of
about once every other year. Fitzpatrick however relatedly
testified that several years earlier he had been in the office
of the Employer’s attorney, Bob Duvin, on an occasion when
Duvin had received a call about Vorrell being involved in an
act of violence with a manager at a chemical plant. At that
time, Duvin told Fitzpatrick that Vorrell had broken the jaw
of either a general manager or a manager at the chemical
plant, and that legal action was being taken against Vorrell.
Duvin explained to Fitzpatrick that the call was from some-
one asking Duvin to see if he could get the company not to
prosecute. Fitzpatrick also understood that Vorrell was later
convicted.
The General Counsel established relatedly that on June 23,
1983, Vorrell had plead no contest to a charge of (simple)
assault on October 12, 1982; and, that Vorrell was at some
time thereafter found guilty of a misdemeanor. Fitzpatrick
acknowledged that it (Vorrell’s misdemeanor assault of a dif-
ferent the employer’s manager, several years earlier) hadn’t
affected Fitzpatrick’s dealings with Vorrell after that.
Respondent established that on June 22, Fitzpatrick had
waved to the (slouched) business agents, but Fitzpatrick
added that he didn’t expect them then to follow him.
Fitzpatrick recounts that after waving to the business agents,
Fitzpatrick drove up to the street to exit the parking lot.
Fitzpatrick next observed the business agents’ car driven by
Vorrell had pulled up behind him abruptly, or suddenly.
It will be recalled that the Union’s business office is only
six blocks from the Employer’s facility. Fitzpatrick pro-
ceeded south on 30th Street. They (the business agents) fol-
lowed closely behind him. Fitzpatrick also observed them
still driving in the slouched position, which he thought pecu-
liar. Fitzpatrick next turned west on Prospect Street. Vorrell
did too. After driving for 2 miles, Fitzpatrick entered the
‘‘Interbelt’’ (a three-lane, one-way highway). Vorrell’s car
did too, initially merging two cars behind Fitzpatrick’s car.
Fitzpatrick next observed Vorrell drive the ‘‘Interbelt’s’’
berm (a shoulder lane available for disabled vehicles), and
practically cut off the car that was immediately in back of
Fitzpatrick’s vehicle in taking up a position immediately be-
hind Fitzpatrick. Fitzpatrick drove the ‘‘Interbelt,’’ exiting on
Interstate 90 west, driving in all for 10 miles, and with the
business agents’ car remaining immediately behind him.
Fitzpatrick next exited Route 90, at Hillard Avenue and
Rocky River. The Union’s vehicle did too. Fitzpatrick
stopped at a gas station for gas. Vorrell pulled the Union’s
car into the side of the gas station, and waited. Fitzpatrick
observed that all the occupants of the business agents’ car
were still slouched down. At that point, Fitzpatrick phoned
Tom Lisy, the Employer’s warehouse manager, to report that
he was being followed (just) in case anything happened.
Fitzpatrick explained on cross-examination that he had called
Lisy at that point so that at least Lisy would know who was
following him, and who might be responsible, if anything
happened to Fitzpatrick.
Fitzpatrick did not consider driving to the police. At the
time, he felt the safest course was to stay on heavily trav-
elled roads and go directly home. When Fitzpatrick left the
gas station, he was immediately again followed by the busi-
ness agents’ car. Fitzpatrick then drove the additional 2
miles, driving south on Wooster to Center Ridge, west on
Center Ridge to Horseshoe, where Fitzpatrick lived. Vorrell’s
car followed. Fitzpatrick pulled into his own driveway; and
he then went into his house.
Fitzpatrick next observed the business agents’ car drive by
two houses further, pull into that drive(way), turn around,
and come back and park in front of Fitzpatrick’s house,
where it remained for several minutes before leaving.
Fitzpatrick testified that no business agent had ever visited
his home before.
On cross-examination, Fitzpatrick denied that he had ever
suddenly applied his breaks, or pretended to apply his breaks
with the business agents’ car behind him. Fitzpatrick testified
that he had deliberately driven under the speed limit. There
was no evidence of a high speed chase.
Neither Vorrell nor Letner has testified. Nor did Respond-
ent present any other witness on this incident. I credit
Fitzpatrick’s account of the June 22 car-following incident in
its entirety. Moreover, I conclude and find that by the con-
duct of Vorrell and Letner in following Fitzpatrick from the
plant to Fitzpatrick’s home in the above manner, Respondent
Union has engaged in conduct constituting clear union har-
assment of Fitzpatrick on this occasion. Fitzpatrick has ac-
knowledged that he has since handled grievances with the
Union, but not with Vorrell or Letner.
On cross-examination Fitzpatrick acknowledged in general
that for 10 years he has handled grievances for the Em-
ployer; that he has had some disagreements with the Union,
and he has argued over the grievances; and that during that
period, no one had attempted to physically hurt him. How-
ever, Fitzpatrick then asserted that since the June (car-fol-
lowing) incident, Vorrell had threatened him.
Fitzpatrick explained that at an employees’ Christmas
party held last December, Fitzpatrick had initiated a physical
contact of Vorrell, in that he touched Vorrell’s shoulder. The
occasion was in an effort to keep Vorrell from either entering
or remaining at the party. At this time the Company was
having a Christmas luncheon for its warehouse employees,
when a group of uninvited business agents came into the
luncheon area. Fitzpatrick promptly asked them to leave.
Thus, Fitzpatrick relates, inter alia, that as Vorrell had
walked by, Fitzpatrick touched Vorrell on the shoulder and
said, ‘‘George, please don’t come in.’’ According to
Fitzpatrick, Vorrell said on that occasion, ‘‘You touch me
again, I’ll do [sic]’’; some—don’t touch me again, that type
of thing. Fitzpatrick then added that Vorell had said, ‘‘I’ll
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
knock your head off, or I’ll kill [sic]’’; or ‘‘Don’t lay a hand
on me, or don’t touch me.’’
In short, Fitzpatrick has testified disjointedly as to what
Vorrell actually said at the time, though Fitzpatrick kept on
with an effort to do so, clearly in an attempt to impart, by
continued proffer of example, a sense that Vorrell’s conduct
on that occasion had threatened Fitzpatrick. However, the
evidence offered by Fitzpatrick as to what Vorrell actually
said, albeit undenied, in this instance (I find) is simply too
distended in its variances for credit beyond the general sense
credibly conveyed by Fitzpatrick, that Vorrell had told
Fitzpatrick on that occasion, in a manner that Fitzpatrick
probably viewed as ominous, that Fitzpatrick was not to
touch Vorrell again.
While in any event deemed unnecessary to any of the find-
ings on unfair labor practices made hereinafter, I conclude
and find from Fitzpatrick’s undenied account as above cred-
ited, that at a subsequent Company Christmas luncheon held
for employees and to which Vorrell was not invited, Vorrell
had overreacted to a nonbelligerent physical contact by
Fitzpatrick on the occasion of Fitzpatrick asking Vorrell to
leave, by telling Fitzpatrick in a (at least) warning manner
that Fitzpatrick was not to touch Vorrell again. However,
even if this matter is one to be considered fully litigated, I
am not persuaded by the credible evidence offered, and I
consequently do not find that Vorrell did so in a manner or
under circumstances such as to warrant further conclusion,
that Vorrell’s conduct on that occasion was independently
violative of the Act.
Neither is the Vorrell Christmas luncheon incident of a na-
ture deemed helpful in the resolution of the alleged unfair
labor practices that had occurred 6 or more months earlier;
and particularly so in the light of the above independent find-
ing already made that Union had harassed Fitzpatrick by the
conduct of Vorrell and Letner in more material time on June
22.
There then remains but to consider the procedural ques-
tions of (a) the restricted evidentiary use of other more time-
ly but settled alleged union 8(b)(4)(B) (boycott) activity; and
(b) in contrast therewith, the Union’s permitted use of certain
contract contentions and evidence it has sought to offer in
support of its defense of the conduct of its business agents
alleged to constitute the unfair labor practices herein. The
Union’s evidence was previously advanced and urged in sup-
port of dismissed prior union-related charges, viz, that the
contract had extended by its terms; that the Employer’s im-
plementation of last offer terms for a new contract was itself
unlawful; and, that the Union’s conduct on April 17, in vis-
iting the plant floor was itself contractually based and with
lawful purpose to enforce governing contract terms providing
for the performance of unit work by unit workers.
4. The prior boycott charges; related settlement
agreement; and the restricted use of alleged
boycott evidence
Fitzpatrick testified that in early June, thus after the April
and May alleged threats, and before the June 22 union car-
following incident, the business agents also began to regu-
larly visit all the retailers (customers) of Klein News.
Fitzpatrick thus relates that the Employer’s customers would
call Klein News and report that they were visited by people
who had identified themselves as business agents of Team-
sters Local 507.
Fitzpatrick testified that Klein News’ customers told him,
variously, that they: (a) were told to stop doing business with
Klein News; (b) were given the names of some other maga-
zine wholesalers; (c) were told that Klein News had a labor
dispute, and they should not do business with Klein News;
and, (d) were told that Klein News would be going on strike.
Fitzpatrick summarized different business agents had appar-
ently told the Employer’s retailers different stories.
From early June through early July, Fitzpatrick became
aware of 40–50 such incidents, including some involving the
Employer’s major chain accounts, viz, Revco Drug Stores,
Inc., representing 50 stores, and Heinen’s, Inc., with 11–12
stores. By the end of June, Klein News learned that Team-
sters Local 507 had the Company’s customer list; and, the
business agents had visited virtually every customer, and vis-
ited some, two–three times.
The General Counsel also established that Klein News
filed a related charge in Case 8–CC–1340 alleging Respond-
ent Union had violated Sections 8(b)(4)(i) and (ii)(B). This
charge was later informally settled, with provision made for
an appropriate union notice to members that was posted on
August 18. Although the settlement agreement was one uni-
laterally entered and approved, no claim or evidence is pre-
sented otherwise that the Employer had ever sought formally
to contest the settlement agreement as inadequate.
The settlement agreement contains a union nonadmission
clause in term as follows: ‘‘(Execution of this Settlement
Agreement does not constitute an admission that the charged
Party has violated the Act.)’’ The settlement agreement also
purported to reserve the right in the General Counsel to use
the charge’s boycott evidence in support of the instant
8(b)(1)(A) and (B) complaint allegations brought before the
Board.
The settlement agreement by its terms is specifically lim-
ited to 8–CC–1340; and it otherwise provided:
Counsel for the General Counsel specifically reserves
the right to introduce evidence regarding the allegations
which are the subject of this agreement in support of
alleged violations of the Act which are not the subject
of this settlement agreement and which may be subse-
quently litigated. However, Counsel for the General
Counsel shall not seek further remedy of the settled al-
legations.
The General Counsel has urged the ‘‘CC’’ (boycott) evi-
dence is relevant to show the pressure that Respondent
Union had exerted on the Company on a wide front. The
Employer relatedly urged the receipt of the boycott evidence
to show that the Union had engaged in an ongoing series of
threatening conduct and that the Union did not comply with
the law over an extended period of time from April 17
through June.
The General Counsel did not contend that the Respondent
Union had subsequently breached the terms of the settlement
agreement in any particular; nor did he seek to have the prior
settlement agreement set aside on that or any other account.
The settlement agreement entered on the alleged 8(b)(4)(B)
boycott activity occurred well after the unfair labor practices
alleged in this complaint. The reservations that the General
Counsel made in the settlement agreement itself did not di-
133TEAMSTERS LOCAL 507 (KLEIN NEWS)
minish the efficacy of the nonadmission clause as an agreed
term and condition of that settlement.
At hearing I ruled accordingly, that the General Counsel’s
prior acceptance of the settlement agreement, absent breach
(or some other enabling reason), had effectively precluded
any present determination in this proceeding that the Re-
spondent Union had actually violated Section 8(b)(4)(i) or
(ii)(B) of the Act, as had been previously charged and was
now settled. The related charge and settlement agreement
were ruled admissible to establish that the Employer had re-
ceived reports of what it perceived were ongoing unlawful
boycott pressures being placed upon its retail customers; had
timely pursued them through the filing of the above 8(b)(4)
(i) and (ii) charges; and to establish the nature of the
charge’s settlement disposition.
However, at hearing I declined to allow the General Coun-
sel (or the Employer) to additionally litigate in this pro-
ceeding (any of) the alleged specific ‘‘CC’’ charge violations
that had been settled in the above manner. In that regard, I
specifically ruled that an effect of the prior settlement agree-
ment entered on the charge was that no alleged violation of
Section 8(b)(4)(i) or (ii)(B) of the Act could properly be
brought before me for a present unfair labor practice deter-
mination thereof. I relatedly ruled that Respondent Union did
not have to defend herein any assertion being made of its
prior violation of Section 8(b)(4)(i) or (ii)(B).
The ruling made at hearing thus effectively was that only
evidence of the reports received by Fitzpatrick (e.g., as might
bear on his state of mind, and/or serve in partial explanation
of his own subsequent actions), as well as the evidence of
the charge the Employer had filed, and its disposition, were
(limitedly) relevant and admissible. Moreover, since the now
settled charge appeared to have covered (at least) all
presettlement incidents of the alleged unlawful union induce-
ment, restraint or coercion of secondary employees, and, any
unlawful union threats, restraint or coercion of secondary
employers (with alleged union objective to have them cease
doing business with the Employer), no related finding(s) of
such union conduct violating the law (unfair labor practice
findings) were properly to be made in this proceeding. It ap-
peared to follow that evidence of the Union’s commission of
any such alleged unfair labor practices was properly to be
excluded from extensive litigation in this proceeding.
Preliminary Analysis of the Issue of Restricted Use of
Settlement Agreement Evidence
The notion that a settlement agreement disposes of even
only matters encompassed by the terms of the settlement
agreement was one early rejected by the Board, Hollywood
Roosevelt Co., 235 NLRB 1397 (1978). In that very regard,
‘‘The Board has consistently held that a settlement agree-
ment disposes of all issues involving presettlement conduct
of the parties, unless prior violations of the Act were either
unknown to the General Counsel and not readily discover-
able by investigation, or specifically reserved from the settle-
ment agreement by the mutual understanding of the parties.’’
Cambridge Taxi Co., 260 NLRB 931 (1982); Universal
Blanchers, Inc., 275 NLRB 1544, 1545 (1985).
The settlement agreement has the effect of barring a deter-
mination of prior unfair labor practices whether a charge on
a given matter encompassed by the settlement agreement is
being raised pre or postsettlement, or, by the same or dif-
ferent charging party, cf., Cambridge Taxi Co., supra; E.S.I.
Meats, 270 NLRB 1430, 1431 (1984); Laminite Plastics
Mfg., 238 NLRB 1234 (1978); and Hatfield Trucking Serv-
ice, 270 NLRB 136 (1984). Collaterally, any specific charge
(and/or issues) being reserved from the coverage of a settle-
ment agreement for a future Board resolution, must be estab-
lished clearly by affirmative evidence, Cambridge Taxi Co.,
supra. (The specific limitation of the settlement agreement to
Case 8–CC–1340 would appear sufficient for that purpose,
but not exempt unfair labor practices encompassed in that
case.)
Moreover, a settlement agreement will not be set aside un-
less a respondent fails to comply with the terms of the agree-
ment, or the respondent commits other unfair labor practices
subsequent to the signing of the agreement, or, it has com-
mitted presettlement misconduct of which the Regional Di-
rector was without fault unaware at the time the Regional Di-
rector approved the agreement. Council’s Center for Prob-
lems of Living, 289 NLRB 1122, 1141 fn. 44 (1988). No
such claim is raised, nor to be found supported by the evi-
dence presented in this record.
In entering a settlement agreement with a respondent
charged with commission of certain alleged unfair labor
practices, the General Counsel may nonetheless reserve the
right to introduce, and then subsequently introduce available
evidence bearing on or supportive of the settled charges if
also materially supportive of other alleged unfair labor prac-
tice(s) contained in a charge and/or complaint reserved for
the Board’s resolution.
Thus, if evidence of a settled matter may be shown to
have an independent probative value (tendency to prove)
some necessary or material element of another matter, e.g.,
Respondent’s motivation in regard to an open matter, the
urged evidence may be received if shown useful to shed a
material light on certain of the alleged unlawful conduct that
has not been settled by the parties, id. at 1142. However,
some substantive probative value must itself readily appear,
be convincingly shown, or be otherwise preserved of record
to show such (as by a timely offer of proof).
The Board will even then not make a finding of a respond-
ent’s actual commission of any unfair labor practice (pre-
viously settled) on the evidence when shown relevant for
submission, Superior Sanitation, Inc., 234 NLRB 454, 467
(1978); and Metropolitan Allous Corp., 233 NLRB 966
(1977). Seemingly solely excepted is the unique case present-
ment where the parties reasonably understood the Board
would be required to address and determine a previously set-
tled unfair labor practice matter, i.e., on the very issue of
whether the settled incident constituted an (unlawful) unfair
labor practice, in order to effectively resolve some other un-
fair labor practice allegation that the parties to the settlement
agreement had clearly agreed and/or understood was to be re-
served for the Board’s later determination.
Thus, the Board has had occasion to address the issue of
an alleged discriminatory discharge allegation, though one
previously settled, when it was required to do so in order to
determine a related and reserved issue of whether the nature
of an ensuing strike was, on that account, an unfair labor
practice strike, or not, cf., Council’s Center for Problems of
Living, supra at 1142. Seemingly the parties, at the time of
the settlement therein, had fully understood that the nature of
the strike remained in issue between them; and they had thus
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reasonably intended and/or in effect agreed that the discharge
matter, though settled, would be further addressed and deter-
mined by the Board, but only to the extent of resolving the
remaining issue of the nature of the alleged unfair labor prac-
tice strike (and its effects) that had been clearly reserved to
the Board.
As the issue is presented herein, any incidents (evidence)
of union business agents’ alleged inducement and encourage-
ment of secondary employees, and/or of the business agents’
alleged threats, coercion, and restraint of secondary employ-
ers, with the Union’s asserted purpose being to accomplish
alleged illegal 8(b)(4)(B) cease doing business objectives (the
only boycott activity charged as involved), are clearly each
and all to be viewed on this record as alleged unfair labor
practices covered by the settlement agreement in Case 8–
CC–1340. No boycott activity alleged thereunder is inde-
pendently shown necessary to be addressed for the resolution
of any of the distinctly different alleged 8(b)(1)(A) and (B)
threats, or acts of restraint and coercion that are presented by
the complaint in this proceeding. Under the above-cited au-
thority, and contrary to the urging of the Employer in that
regard, clearly no instance of the alleged unlawful boycott
activity, previously settled, is now warranted to be independ-
ently determined as unlawful in this proceeding, e.g., as in
violation of Section 8(b)(4)(i) and (ii)(B) of the Act.
The remaining question of whether there is any material
use to be made of the above boycott evidence on the matters
raised in complaint in this proceeding appears to be, whether
evidence of the (settled) union activity alleged to be in viola-
tion of Section 8(b)(4)(i) and (ii)(B) may also appear in some
other evidentiary sense to be probative of any material issue
herein; i.e., to in effect have a reasonable tendency to prove
some element of the specific allegations of unfair labor prac-
tice advanced herein.
Since the instant allegations are all clearly of a different
and independent nature from the alleged unlawful 8(b)(4)(i)
and (ii)(B) boycott activity, in that the instant complaint alle-
gations assert that the Union has unlawfully coerced and re-
strained Klein News management and employees by certain
union business agents’ threats of physical harm, and their
conduct in also following Fitzpatrick home, in violation of
Section 8(b)(1)(A) and (B), I think not. At least not other
than would appear under all the circumstances to be too re-
mote to provide any real, or substantive probative value in
establishing the instantly alleged unfair labor practice threats
and coercion.
The General Counsel does not establish how the Union’s
motivation, such as might be evidenced by any alleged cease
doing business boycott objective and activity (if established)
would be then additionally relevant to any instant issue of
motivation, assuming (without presently deciding) union mo-
tivation may be material to the 8(b)(1)(A) and/or (B) allega-
tions herein. (On the issue of the relevancy of subjective in-
tent, provocation, or actual effect, see and compare Boiler-
makers Local 686 (Boilertube), 267 NLRB 1056, 1057
(1983).) Nor has the General Counsel or the Employer
shown directly (or by offer of proof), how any such evidence
might otherwise serve to shed some material light on any of
the complaint allegations, i.e., beyond the generalized urging
that the Union may have violated the act within a general
category of illegal threats. The latter could only be estab-
lished and determined by revisit(s) of the specific instance(s)
of alleged illegal boycott threat(s), involving the very deter-
minations that were specifically and voluntarily foregone by
the earlier entry of the settlement agreement thereon.
The argument advanced thus appeared to be (only) the
general one that evidence that would establish that 8(b)(4)(B)
(cease doing business) boycott pressures (threats) existed on
a wide front, or scale, would also tend to prove that Re-
spondent Union had engaged more directly in still other, spe-
cifically alleged different threats of physical harm to, or
other coercive conduct directed at the (primary) Employer’s
management and its employees in violation of Section
8(b)(1)(A) and (B). Since I view the urging as to wide
spread boycott (cease doing business) threats as evidencing
a difference in degree of occurrence, but not as imparting a
probative value that is itself supportive of occurrence of a
wholly different type threat, for all of the above-stated rea-
sons, I remain unpersuaded by the argument advanced.
Assuming (without finding) merit to alleged boycott inci-
dents, any such threats do not appear to tend to prove any
specific material fact, or any specific element of proof that
is material to the complaint’s particularized and different
union threats of physical harm to employees, or Klein, or
other acts of union coercion of the Employer’s management
official(s). E.g., neither the General Counsel nor the Em-
ployer has contended that the Respondent Union’s business
agents had specifically threatened any secondary employees
and/or secondary employers with any physical harm, or, that
the Union’s business agents had engaged in any similar con-
duct of following any of the secondary employers’ manage-
ment officials home. Indeed, Fitzpatrick, in testifying on the
nature of the above reports that he had received from his re-
tail customers certainly didn’t indicate that was the case; and,
in some respects, Fitzpatrick has indicated receipt of (at
least) some report(s) of what would appear on surface as but
lawful union business agent notice of existence of a union
dispute with the primary Employer.
In any event, short of a present (in my view) improper de-
termination of specifically alleged and settled secondary boy-
cott threats, the conduct of the union business agents in ap-
proaching the Employer’s retailers (customers) does little to
advance proof that certain of the Union’s business agents had
made the instant independent threats of physical harm, and/or
engaged in the other alleged coercive conduct towards the
Employer’s management and employees in violation of
8(b)(1)(A) and (B).
In light of the above authorities, and under all the above
circumstances, I remain of the view that any probative value
to be found in the alleged boycott evidence (threats) is slight,
and/or remains on its face too remote in probative value to
aid in resolution of the materially different issues of alleged
threats of physical harm, or other coercive 8(b)(1)(A) and
(B) acts that are presented herein. Accordingly, the evi-
dentiary rulings that have essentially restricted the General
Counsel and the Employer from general, and/or specific liti-
gation of the boycott threats without some more specific, or
definitive showing of materiality, are reaffirmed.
5. Union’s permitted use of certain dismissed charge
contentions in defense of its business agents’ conduct
In contrast with the above settlement agreement evidence
restrictions imposed on the General Counsel (and the Em-
ployer), I permitted the Union, as the Respondent herein, to
135TEAMSTERS LOCAL 507 (KLEIN NEWS)
effectively renew in its defense of the unfair labor practices
alleged in the instant complaint, Union’s prior contentions
advanced before the General Counsel (essentially) that the
terms of its contract with the Employer had renewed and
continued. Cf., General Teamsters Local 43, 289 NLRB 924,
925 (1988). This is so though the base for the Union’s argu-
ment clearly rested on a matter that had been previously ad-
dressed in a prior charge that the Union had brought, and
which the General Counsel, after investigation and due con-
sideration, had determined was without merit. The Union’s
charge had alleged (essentially) that in violation of Section
8(a)(5) and (1) of the Act, the Employer, by its implementa-
tion of its last contract offer, had itself unlawfully unilater-
ally changed certain of the terms and conditions of the con-
tract that Union contrarily contended had already been re-
newed by certain terms of the parties’ prior contract.
The Union’s initial course of conduct was consistent with
that view. At the indicated expiration date of the agreement
the Union did not immediately strike or picket. Neither did
it do so with the Employer’s implementation of the terms of
the Employer’s asserted final offer, effective March 13.
Rather, the Union questioned the Employer’s implementation
of last offer terms as itself unlawful conduct. Accordingly,
I conclude and find that in material times the Union had evi-
denced a consistent view that the terms of the prior contract
were extended by the terms of the agreement, in light of nei-
ther parties’ declaration of a termination of the agreement;
the Union’s timely notice given to the Employer of the
Union’s intent (only) to negotiate modifications in the prior
agreement; and the overall terms of the duration clause other-
wise.
At hearing the General Counsel conceded the Union’s con-
trarily held position, that (despite union request to negotiate
certain modifications) contract terms had renewed, was not
a position unreasonably held. However, the General Counsel
concluded that very matter, ultimately, contrarily in the dis-
missal of the Union’s charge alleging that there had been (on
that account) an unlawful unilateral action in the Employer’s
implementation of the terms of its last offer. Thus, in union
charge dismissal and denied appeal, the General Counsel had
necessarily concluded that the Union had not sustained its re-
quired burden of establishing an automatic renewal extension
of the parties’ contract terms, either as based on the explicit
terms of the contract’s duration clause; or on the basis of the
Union’s urged interpretation of the related terms.
The Union has continued to urge in its defense presented
at hearing that the contract terms had renewed, though in
brief it seemingly has moderated that at the time it had be-
lieved that the contract terms had been renewed by the terms
of the contract and (seemingly) in any event, was privileged
to so contend. General Counsel (rightly) does not appear to
contest Respondent Union’s right to continue to seek to raise
as a defense to instant complaint allegations, e.g., as in keep-
ing with the Board’s adjudicatory responsibility, a union po-
sition earlier rejected by the General Counsel, see, e.g., Hotel
& Restaurant Employees Local 274 (Warwick Caterers), 269
NLRB 482, 483 (1984).
However, the General Counsel’s position thereon (as ex-
pressed in brief) is that the parties’ previous contract had ex-
pired by its terms; and (alternatively), that article XXII, the
‘‘Duration, Modification and Termination’’ clause, rather
than automatically effecting a renewal of the contract, is in
fact on that point confusing and possibly self-contradictory.
In agreement with the General Counsel’s latter position, I
find that the terms of the prior agreement appear too unclear
and/or ambiguous to support the position urged by Union;
and, I further conclude and find that the Union did not meet
its burden of establishing that the contract’s expiring terms
were renewed, for reasons to be discussed next.
It is elementary that parties to a contract may provide in
their contract that at a mutually agreed time under their exist-
ing contract, either party will have the right to declare a ter-
mination of their agreement (as, e.g., is frequently made ef-
fective upon the expiration of the term of duration provided
by the contract); or, alternatively provide that either party
may otherwise timely declare only a present intent to seek
a modification of certain terms of the contract. The parties’
understanding on the latter may be stated, or be deemed nec-
essarily implicit (as, e.g., from a resulting mutual agreement
to change the contract), that either party is thereafter free to
negotiate any desired modification of the terms of the con-
tract. In making provision for negotiation of any desired
modification of contract terms, the parties may also provide
for a termination of the agreement, or not. Within statutory
constraints, the parties are free to make their own bargain.
The Supreme Court has held the (60-day) statutory notice
requirements of Section 8(d) are applicable to both fixed-
term and reopener contractual provisions, NLRB v. Lion Oil
Co., 352 U.S. 282 (1957). The Board has observed in that
regard,
[T]he Court construed the term ‘‘expiration date’’ in
Sections 8(d)(1) and 8(d)(4) as applying both to the
date set for expiration of a fixed-term contract and to
the date on which a clause providing for reopening is
invoked. [Lion Oil, 352 U.S. at 290.]
Where the parties have already agreed to terms under which
there is to be effectively no termination or modification of
the terms of the contract (as, e.g., may be the case if special
arrangements are made for the negotiation of third-year wage
terms), then the above statutory notice may not be required,
cf. Schaeff Namco, Inc., 280 NLRB 1317, 1319–1320 (1986).
Here, in any event, the Union had provided any required stat-
utory notice.
Statutory notice requirements aside, the parties (and they
alone) have great freedom in establishing what will be the
terms of their agreement, H. K. Porter Co., 397 U.S. 99
(1970). This may be inclusive of making any special arrange-
ments desired in regard to: length of contract; reopener pro-
visions; length of the period for the negotiation of a new
agreement; and any strike limitation, and/or related rights and
restrictions on party cancellation and/or termination of an ex-
isting agreement, see, e.g., EPE, Inc., 273 NLRB 1375
(1985). For some other examples of the combinations of con-
tractual arrangements that may be made, see, e.g., party re-
striction of the area for reopener negotiations, even with ex-
ercise of right to strike (there with appropriate 8(d) notice),
Hydrologics, Inc., 293 NLRB 1060, 1061 fn. 11 (1989);
Speedrack, Inc., 293 NLRB 1054, 1055, 1056 (1989). See re-
latedly the compared cases cited in footnote 12; and (as is
deemed particularly noteworthy here), cf. KCW Furniture
Co., 247 NLRB 541 (1980), enfd. 634 F.2d 436 (9th Cir.
1980), as to which the Board has later observed:
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘[T]he contract provided that mere invocation of the
reopener provision was not intended either to terminate
the contract or to forestall its automatic renewal. Under
those circumstances, the Board found that the employer
violated Sec. 8(a)(5) when, acting as if the contract pro-
visions had terminated, the employer unilaterally imple-
mented its final offer after impasse in the reopener ne-
gotiations and after the automatic renewal date had
passed.’’ [Speedrack, Inc., supra at 1057 fn. 12.]
Absent some specific limitation in the contract, bargaining
on reopened subject(s) is viewed to proceed in the same nat-
ural course as the parties’ bargaining may take when there
is no contract in effect. This may include an employer’s eco-
nomic decision to unilaterally implement its last offer terms,
upon reaching good-faith impasse; or, a union’s election to
geek economic enforcement of its position through an at-
tempt at an initiation of effective strike action. Hydrologics,
Inc., 293 NLRB 129 (1989).
It would appear to follow from all the above that there
would be nothing unlawful in the parties’ prior entrance of
contractual arrangements to accomplish an intended contrac-
tual relationship of general nature being here urged by the
Union. Thus there would have been nothing inherently un-
lawful for the parties in their existing contract to have pre-
viously agreed, as the Union has (essentially) urged they did
herein, that all existing terms of their prior contract would,
absent a party’s explicit declaration of termination, and even
with a declared desire by a party to negotiate modifications,
in the interim, continue in effect as contract terms; and
renew under certain circumstances. They might have ar-
ranged to do that with, or without (as here) an additional
prior agreement that, either: any modifications desired to be
negotiated would be made retroactive, and be for the agreed
period of the new contract when negotiated; or, have made
simultaneous provision that upon the parties being unable to
reach an agreement on mutually desired modifications, that
either party might then terminate the entire agreement upon
giving the other party some agreed additional (e.g., seven)
written days notice of termination, if lawful notice (as here-
in) were given under the circumstances.
Nonetheless, if such was the Union’s contractual intention
here, I conclude and find in the end in essential agreement
with the General Counsel, that the Union simply did not ef-
fectively provide for such clearly enough in the terms it
agreed to in its prior contract with the Employer. In KCW
Furniture, supra, e.g., the parties explicitly agreed that the
reopener provided there could not be construed as a termi-
nation, or as forestalling an automatic renewal of the agree-
ment. In contrast, here there is no such explicit declaration;
and I conclude and find otherwise that the contract duration
clause’s (second) proviso is left too ambiguous to effect an
intended contract term extension (consideration of
defeasibility aside). The fact that under the first proviso the
parties have not declared their specific intent to terminate the
agreement at best only creates an ambiguity as to their
(unstated) intendment on an agreement termination in the in-
stance of a party’s declaration of intent to modify the agree-
ment. The ambiguity is but enhanced by the fact that the par-
ties had also previously specially agreed that certain benefits
would continue unaffected by contract termination. (In regard
to continuation of similar benefits as terms and conditions of
employment otherwise generally, see Beitler-McKee Optical
Co., 287 NLRB 1311, 1312 (1988), and compare Iron-
workers Local 455 (Precision Fabricators), 291 NLRB 385,
387 fn. 1 (1988).)
Under the instant duration clause second proviso, at least
one party (the Union) had timely declared its intent to mod-
ify contract terms. The existing contract terms (I find) do not
clearly evidence a prior agreement of the parties in that cir-
cumstance that contract terms were to continue in the (defea-
sible) interim while the parties attempted to negotiate mutu-
ally desired modifications; or, would simply automatically
renew, if the desired changes were not successfully nego-
tiated by a certain time. If anything, the special (limited)
contractual arrangements made for certain benefits to con-
tinue despite a termination and/or modification would appear
to more indicate the contrary. In any event, the Board will
not alter agreements which do not violate the Act,
Hydrologics, Inc., 293 NLRB 1060 (1989). Neither is the
Board to impose upon the parties, a contract term not agreed
to by the parties, H. K. Porter Co., supra, 397 U.S. 99
(1970).
As the Employer’s bargaining obligation is otherwise to be
considered, an employer’s obligation to comply and give ef-
fect to the terms and conditions of employment embodied in
a collective-bargaining agreement continues after the agree-
ment expires, until the employer has fulfilled, or been re-
lieved of its duty to bargain about changing the existing
terms and conditions of employment, as, e.g., where the par-
ties have bargained to impasse, and the changes thereafter
made are consistent with any bargaining proposal previously
advanced by the employer (as here); or, where (clearly inap-
plicable here), the union had effectively waived its right to
bargain on the subject matter subsequently changed. Cf.,
Beilter-McKee Optical Co., 287 NLRB 1311 (1988).
Where a contract is to be viewed expired by virtue of the
effect of its terms, and there is no contract any longer in ef-
fect, all an employer is then required to do is to give notice
of its planned changes, and afford a reasonable opportunity
to the union for good-faith bargaining thereon. Gibbs & Cox,
Inc., 292 NLRB 757 (1989). Where the parties thereafter
reach a good-faith impasse in the negotiations, an employer
then does not violate Section 8(a)(3) and (5) by a subsequent
implementation of changes that are actually consistent (as
here) with those last proposed to the union, Taft Broad-
casting Co., 163 NLRB 475 (1967), enfd. sub. nom. Tele-
vision Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir.
1968).
In the light of the above precedent, and on the basis of
the evidence presentment on the Employer-Union bargaining
history leading to the Employer’s January last offer, and con-
sidering the Union’s own effective silence thereon during a
subsequent material period of some 2 (or more) months, I
further conclude and find that the Employer’s subsequent
March 13 implementation of its last offer terms was with an
appearance of following a good-faith impasse, even with a
full consideration being given also to the Union’s contentions
on certain related discussions that Klein had contempora-
neously held directly with employees, cf. El San Juan Hotel,
289 NLRB 1453, 1454 fn. 5 (1988). The Employer has in
effect (I find) substantiated that it lawfully implemented its
last offer after impasse; and, the Union’s evidence offered
does not show the contrary.
137TEAMSTERS LOCAL 507 (KLEIN NEWS)
The evidence offered in support of Union’s proffered con-
cern about the nature of Klein’s discussions with employees
prior to implementation, does not warrant a different conclu-
sion. In general, an employer’s attempt to deal directly with
its employees rather than with their designated bargaining
representatives concerning terms and conditions of employ-
ment is unlawful, and violative of Section 8(a)(5), Krolicki
Wholesale Meats, 270 NLRB 941, 944 (1984), enfd. 763
F.2d 215 (6th Cir. 1985); Medo Photosupply Corp. v. NLRB,
321 U.S. 678, 683–684 (1944). However, the statements
made by Klein herein, came essentially at the time of the
Employer’s declaration of an impasse lawfully arrived at in
prior good-faith bargaining, and shortly before implementa-
tion of the Employer’s last offer terms. Indeed, with the
Union’s election not to meet directly with the Employer dur-
ing the prior 2 months, at least in so far as material to holi-
day work assignment changes that were clearly negotiated to
point of impasse and implementation, Klein’s notice to the
employees of the holiday changes appear here to be at once
both reasonable in imparting effectively an Employer’s ad-
vance notice to employees that there would be a regular
work assignment for unit employees on the upcoming Good
Friday, April 17; and, as being also with design more for ef-
fecting the employees’ eventual acceptance thereof by the
statement of the Employer’s intended moderated enforce-
ment.
In any event, the Employer’s implementation of the terms
of its last offer to the Union, inter alia, thereafter deleting
Good Friday as a paid holiday, is not herein shown by the
Union to be in violation of the Act. It follows that thereafter,
Good Friday was no longer a paid holiday, but a regularly
scheduled day of work. It also follows that Union’s basic
contention thereon that because the terms of the prior con-
tract had continued, Good Friday as a paid holiday had con-
tinued, and the unit employees were entitled to take Good
Friday off as a holiday (or be paid double time in accordance
with the contract for working that holiday), however reason-
ably held, is not established.
In that regard, employees cannot pick and choose the work
they will do, or when they will do it, cf. Paperworkers Local
5 (International Paper), 294 NLRB 1168, 1170–1171 fn. 14
(1989). Klein’s discussions and announced projection of only
a loss of a regular day’s pay to any employee absent on the
(now) regularly scheduled workday of Good Friday, April
17, would appear to reflect a significantly moderated discipli-
nary approach, more importing the Employer’s design to ob-
tain unit employees’ eventual acceptance of the terms of the
Employer’s lawfully implemented last offer, rather than
being instance, as urged by the Union, of an attempt on the
Employer’s part to deal directly with the unit employees to
the wrongful exclusion of, or to undermine the majority sta-
tus of their long-established collective-bargaining representa-
tive. On the other hand, although not raised as an unfair
labor practice by the complaint herein, Klein’s advisements
otherwise, viz, that employees might leave the Union to
avoid fines, and rejoin the Union later after the dispute was
all over, was conduct reasonably capable of generating just
such a suspicion in the Union.
Thus, this is not to say, in light of their rights of plant vis-
itation, that the union business agents had acted unreasonably
in commencing to effect a closer watch on the developments
in the plant, as they might affect the employees’ terms and
conditions of employment overall. Neither is it to question
the Union’s more frequent exercise of their contractually
based, privileged attempts to seek to keep the employees that
they represented, appropriately and fully informed of the
Union’s position in the negotiations that was being reason-
ably contrarily held in these matters. Thus the Union in gen-
eral justifies its more frequent plant visitation, and commu-
nication with all the unit employees that the Union rep-
resented. Id. at 1168 fn. 4. (I need not however extend such
consideration to, and do not otherwise pass upon the Union’s
more questionable indicated earlier holding of meetings with
employees during established worktime. I do note it occurred
for only a limited time, and not after the Employer registered
formal complaint thereon with the Union.)
Whether advanced as a term of a continued contract, or ar-
gued alternatively as a term that was unaddressed in the
modification negotiations, and thus urged as unaffected by
the Employer’s lawful implementation of its last offer, the
Union has also argued that the Company had thereafter im-
properly assigned the unit work to nonbargaining unit per-
sonnel, in that article XI of the contract continued to forbid
the nonmember supervisory employees, and (so the Union ar-
gues) other nonunit individuals to do any unit work.
The Union’s related argument is, that when the business
agents entered the Employer’s plant on April 17, they were
not only there by continued contractual right, but they were
there lawfully to enforce contract terms. the Employer as
much as has concededuUnion visitation was not a contractual
term it had previously sought to renegotiate. Indeed, in re-
gard to the business agents’ presence at the plant on April
17, at hearing Klein relatedly testified that except for the
threats, he probably would not have even filed a charge on
the presence of all the business agents in the plant that day,
if they were there (only) to observe what was going on.
The prior contract did make general provision for business
agents access to the plant to enforce the contract, without
any apparent restriction on the number that might elect to do
so on any given day; and that provision and/or practice con-
tinued unaffected by the Employer’s implementation of its
last offer terms. Indeed, apart from Klein’s unsupported argu-
ments based on urged implicit reasonable intendments, the
only prior contractual restriction explicitly stated did not reg-
ulate the number of visiting business agents, nor state any re-
quirement that the Union had to obtain the Employer’s per-
mission for entry, but was (solely) that the business agents’
visitations would be accomplished, ‘‘without unduly inter-
fering with the work.’’
Where a contract allows for a business agent’s plant access
for business without restriction, and thus (in effect) access
for all legitimate union business purposes, the Union is en-
gaged in a related legitimate business purpose when it is
there to observe if existing terms and conditions of employ-
ment (however based) are being adhered to; when it attempts
to speak to unit employees in the workplace, without undue
work interference; and, even when it informs an employee-
member personally that (lawful) union charges have been
filed against the member for conduct that is perceived as en-
gaged in contrary to the Union, cf. Gilliam Candy Co., 282
NLRB 624, 625 (1987).
Under the terms of the Union’s plant visitation right here,
the Union had long enjoyed a right of plant access that en-
compassed a right to observation of the Employer’s adher-
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ence to applicable terms and conditions of unit employment,
whether it be of terms of an existing unexpired contract; or
(as I find herein), not only the unchanged terms of an ex-
pired contract (viz, to the extent the same remained unaf-
fected by the implemented last offer changes), but also for
a union observance of the nature and scope of the implemen-
tation of the last offer terms themselves. The Union’s right
of visitation extended as well to observations of employment
conditions that would serve as basis for any grievances it
might elect to file on positions it (even erroneously) might
hold in good faith. The Union was not there for a legitimate
business purpose within the meaning of Section 8(b)(1)(A)
however, if it was there to seek to unlawfully interfere with
a performance of lawfully scheduled unit work by any one,
either physically or by threats or other coercion of unit em-
ployees.
The provision on the Union’s right of visitation was not
a term that was addressed in the Employer’s last offer. Even
with an expiration of the contract that visitation right would
continue, itself not subject to an Employer’s unilateral
change, without a negotiation thereon with the Union. Thus,
even with the Employer’s effective implementation of its last
offer, the Union (I find) had retained the right of access to
the plant for purpose of its own observations for a lawful en-
forcement of any then (perceived) applicable terms and con-
ditions of employment, with (only) the above restriction still
applying, viz, that the visiting business agents would not un-
duly interfere with the work.
Not only did the Union continue a contractually based en-
titlement of visitation at the Employer’s facility, there was no
evidence that there had been any prior restriction in practice
thereunder on the number of business agents that could visit
the plant. While the business agents upon arrival on April 17
would promptly have determined very few (two to three) unit
employees were present to perform the work, the business
agents did not know that before they arrived there. The only
evidence of record on the point is that the Union did not
know ahead of time how many of the 43 unit employees
would be present that morning.
As for the number arriving, given the general instruction
of the Union’s president to the business agents, and the addi-
tional circumstances of the proximity of the Union’s hall to
the Employer’s premises, the initial presence of anywhere
from 4 to 7–8, or even eventually as many as (I find) 9–10
business agents there on April 17, was not in itself inherently
unlawful. (Klein’s reference to as many as 12, or 14, being
present at one time is deemed somewhat exaggerated, and
not credited.) It is a matter of what they did there.
In regard to the number of business agents present at one
time, it is established not only that the business agents regu-
larly traveled as many as four (4) to a car, and that the
Union’s hall was but a short distance from the Employer’s
plant, but also that the Union had instructed its business
agents generally to check on the Employer’s employees. In
those circumstances, it is deemed to be especially significant
that the Union’s business agents did not have to secure per-
mission of the Employer before exercising their right of ac-
cess.
In that regard, in the circumstances of this case, the Em-
ployer’s urged reliance in brief on the holding of Retail
Wholesale Union District 65 (B. Brown Associates), 157
NLRB 615 (1966), which involved wholly disparate facts, is
simply misplaced. Thus, the Brown Associates case not only
clearly did not present an underlying union right of access
(as is evident here) based on an explicit prior contractual
union right of plant entry, Brown Associates otherwise essen-
tially involved a union’s plan for initial organization that had
occasioned (repeated) forced and coercive trespass entry into
several (different) the employers’ plant premises; accom-
plished with larger numbers of agents; with the union’s ap-
pearance always unannounced, and the union uninvited; and
with union presence there without permission of the involved
the employer, indeed obtained in some instances only by the
union’s agent(s) overriding attempts of some employers to
bar the access of the union to its plant property; involved
conduct continued in the face of the employers’ repeated re-
quests made to the union agents to leave; and finally, with
the union’s attempted organizational approach to employees
otherwise often accomplished on the plant floor in various
degree of threatening and coercive manner. Brown Associates
is deemed wholly inapposite on its facts.
The complaint does not allege that the business agents’
conduct on April 17, other than Cika’s threat to Klein, was
in violation of Section 8(b)(1)(A), though the conduct of the
business agents upon arrival that day in speaking to unit and
nonunit employees was fully litigated and is described by the
General Counsel and/or the Employer in brief as unlawful
conduct.
The Union’s defense on the alleged Cika threat builds on
the base of its contentions that the initial presence of four
to eight business agents in the plant that morning was lawful.
Because the Union’s business agents had then observed that
unit work was being done (essentially) by nonunit individ-
uals, the Union additionally contends the business agents did
not violate Section 8(b)(1)(A) when they told the two to
three unit employees present and working that they should
not be there; or, when they told other individuals (essen-
tially) to stop doing the unit’s work.
As noted, I have previously found that the Union’s busi-
ness agents were initially lawfully present at the plant on
April 17. Even assuming that the business agents had ini-
tially arrived in a group of four, I find the group almost im-
mediately grew in number to 7–8, though it only later be-
came as many as 9 or 10. I now additionally find that the
business agents on arriving were privileged to communicate
the Union’s position to the (two) unit employees who were
initially present, and whom the Union represented, that they
should not be there, cf., Taxi Drivers Union, 174 NLRB 1,
2–3 (1969). Contrary to the apparent general circumstances
in the Employer’s other case urgingg in brief, there was no
evidence of any specific threat being made directly to any
unit, or nonunit employee that morning, other than Cika’s
threat to Owner Klein.
The Union’s second line of defense for its business agents’
conduct on April 17 rests on other contract provisions, which
are urged herein as left unchanged by the parties’ negotia-
tions, and which are essentially thus contended to provide as
before that unit work would be done only by unit employees.
The Union’s argument fails wholly of persuasion, at least in
so far as the Union advanced it as applying to prohibit
nonunit employees’ performance of work scheduled on Good
Friday in the circumstances of this case.
There was no specific agreement shown negotiated to that
effect. Indeed, there was no evidence presented that the
139TEAMSTERS LOCAL 507 (KLEIN NEWS)
clause relied upon had heretofore precluded unit work being
done by others if the unit employees elected not to do the
unit work when lawfully scheduled (as here), without con-
tract justification. Rather, the Employer had lawfully bar-
gained to impasse on certain holiday changes; and it had then
lawfully implemented the change on Good Friday. It had no-
tified the unit employees of the change, and that they would
loose a day’s pay if absent. Contrary to union urging, the
Employer did not by the latter additionally forego getting the
work done by others if the unit employees, without any con-
tractual justification, did not show up to perform the work
that the Employer had lawfully scheduled for them.
Thus the controlling fact that seems to me to be inescap-
able is that the unit employees who had been lawfully sched-
uled to perform the work, without any contract justification
therefor, did not appear to perform the assigned work as
scheduled. See and compare Paperworkers Local 5 (Inter-
national Paper Co.), 294 NLRB 1168, 1169–1170 (1989). It
was only when the absent unit employees had wrongfully
failed to meet the established (newly implemented) employ-
ment condition in effect calling for work that day, that Klein
performed, and had then directed other nonunit personnel to
perform the unit’s work. Klein, as the Employer, was entitled
to proceed on the basis of a right to get the work done on
time (even) by use of other prearranged means, because the
unit employees who were regularly scheduled to perform the
work, had, without actual contract justification, elected not to
appear to perform the work for their Employer as scheduled.
The employees who did not appear to perform their as-
signed work on Good Friday, being without contractual foun-
dation to claim an excused holiday absence (and thus with
an arguable concurrent implied right to perform the unit
work later), have engaged in conduct that in effect may be
more properly likened to a partial strike by the unit employ-
ees, id. at 1170. The Employer’s disposition to preannounce
a lesser discipline (only a loss of day’s pay) for a unit em-
ployee’s absence, does not serve to obfuscate the fact that
the employees in the above-determined circumstances had ef-
fectively in concert withheld their labor from the Employer
for that workday, whether they had done so concertedly in
support of the Union’s (erroneous) position on the contract
(that Good Friday holiday terms were still in effect), or oth-
erwise (in a concerted attempt to impose by economic force
the Union’s urged position in that matter upon the Em-
ployer). the Employer in turn (in either event) was privileged
to take all reasonable steps necessary to ensure that the law-
fully scheduled work that day would be done on time, if not
by the unit employees, then by others, as it might be able
to arrange.
Accordingly, I further find as collateral to the Employer’s
lawful schedule change of Good Friday, April 17, from a
previously paid holiday, to a regular workday, that though
the Union was thereafter entitled to have unit work initially
performed as scheduled by unit employees, it was not enti-
tled, in the absence of bargaining unit employees’ willing-
ness to report and perform the work when lawfully scheduled
that day, to then have the work scheduled on Good Friday
not performed by anyone.
Although it is unnecessary to the resolution of the issue
of Cika’s threat herein, I do observe that it is clear on this
record that some of the business agents present that morning
were not fully informed as to the circumstances leading to
the Employer’s implementation of its last offer contract
terms. In any event (I find), all the business agents herein
were in error in advancing the basic underlying contractual
position that Respondent Union had then maintained, namely,
that the contract had renewed, and that accordingly Friday,
April 17, was a paid holiday for the unit employees that they
represented, and, that consequently the unit employees were
privileged not to come to work that day, with pay.
Resultingly, I further find that the conduct of the business
agents that morning, in telling others not to do the work, had
the effect, whether intended or not, of interfering with a law-
ful performance of the scheduled work that day by nonunit
employees. The question whether such constituted work in-
terference such as to forfeit the Union’s continued right of
access to the plant floor is one thing; and any consideration
of it constituting an unfair labor practice is still another.
With these factual determinations made on the status of
the contract and the pertinent existing terms and conditions
of employment, the framework for the final resolution of the
complaint’s 8(b)(1)(A) and (B) allegations is in place; and
the same may now be finally evaluated and resolved .
Final Analysis, Conclusions, and Findings
The 8(b)(1)(A) allegations
The governing 8(b)(1)(A) precedent may be briefly stated.
In general, Section 8(b)(1)(A) was ‘‘a grant of power to the
Board limited to authority to proceed against union tactics
involving violence, intimidation, and reprisal or threats there-
of.’’ NLRB v. Teamsters Local 639, 362 U.S. 274, 290
(1960). Section 8(b)(1) (A) makes it an unfair labor practice
for a union or its agents to restrain or coerce employees in
the exercise of rights guaranteed them in Section 7 of the
Act. Included within Section 7 is the right of statutory em-
ployees to refrain from union activity; and no less impor-
tantly so when the employees may elect to exercise their
right at time of an expired contract.
The Board has consistently ruled that a union’s threatening
employees with bodily harm for exercising their Section 7
right to refrain from participating in a strike (or withdrawing
therefrom) is violative of Section 8(b)(1)(A) of the Act.
Thus, where a union threatens and/or inflicts bodily harm
and/or property damage in preventing or attempting to pre-
vent employees from entering or leaving their work premises,
it violates Section 8(b) (1) (A). Cf. Lumberworkers Local
3171 (Louisiana-Pacific), 274 NLRB 809, 814 fns. 11 and
12 (1985).
It is also conduct violative of Section 8(b)(1)(A) for a
union to restrain and coerce unit employees in an effort to
compel them to accept a union’s unilateral change of prac-
tices under an existing contract that would amount to a uni-
lateral change in terms and conditions of employment, Pa-
perworkers Local 5, supra, 294 NLRB 1169. See also the
impropriety of a union’s threat to strike where a contract has
already renewed, Electrical Workers IBEW Local 3 (Bur-
roughs Corp.), 281 NLRB 1099 fn. 2 (1986), enfd. 828 F.2d
936 (2d Cir. 1987).
It would thus readily appear to be similarly violative of
Section 8(b)(1)(A) for the Union to restrain and coerce unit
employees in the exercise of their right to refrain from sup-
porting the Union, as is being (essentially) urged here, to
compel them to not accept a lawful implementation of the
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Employer’s last offer terms; though it would not be a unit
employee’s correlative right under the Act to act contrary to
the provisions of an existing lawful contract (or otherwise es-
tablished working conditions). In short, it depends on what
the business agents said to the employees, and the overall
circumstances under which they said it.
It has been long settled that the incidence of union re-
straint and coercion directed against supervisors and manage-
rial personnel under circumstances where the conduct be-
came, or was sure to become known to the Company’s strik-
ing or nonstriking employees also constitutes union restraint
and coercion of employees in the exercise of their statutory
rights within the meaning of Section 8(b)(1)(A) of the Act,
Mine Workers District 20 (Herbert Construction), 192 NLRB
565, 566 (1971). Accord: Teamsters Local 115 (Oakwood
Chair), 277 NLRB 694, 698 (1985).
The underlying rationale ‘‘is that employees may reason-
ably regard such threats as a reliable indication of what
would befall them if they refrain from supporting the Union
as is their right under Section 7.’’ Taxi Drivers Union, supra,
174 NLRB at 3. But where an incident involves a union vice
president’s infliction of damage to an employer’s property, in
the presence of a security guard, but it is not witnessed by
any unit employee (or does not occur under circumstances
where it is likely to come to the attention of any unit em-
ployees), and there are thus no employees present whose
Section 7 rights might be affected, the Board has held that
the Union does not violate Section 8(b)(1)(A) of the Act by
its agent’s commission of such an act, Lumberworkers Local
3171 (Louisiana-Pacific), 274 NLRB 809, 813, 815 (1985).
Freeman’s initial response to employee-member Gabry’s
inquiry at breaktime on May 6 was to the effect that in the
event of a strike, the Company would not be allowed to
bring in any outside help; and, that employees would not be
allowed to cross the Union’s picket line. It readily follows
from the above precedent, that, in the above context, by
Union Business Agent Freeman’s additional statements made
directly to employee-member Gabry, in the presence of em-
ployee-member Denzine (and others) at breaktime, that if
they (employees) did (cross the picket line), someone would
get hurt; that the Teamsters have a big union, and there
would be a lot of people out there, around 300; and that
(though) there would or could be police protection, it
wouldn’t be available at all times, and somebody could get
hurt; and that if someone got hurt, no one would know who
did it to them, Union Business Agent Freeman has thereby
effectively threatened employees with the possibility of phys-
ical harm if they were to cross the Union’s picket line. By
such conduct, Respondent Union has restrained and coerced
employees in the exercise of their right to refrain from the
Union and other protected concerted activity, in violation of
Section 8(b)(1)(A) of the Act. Cf. Operating Engineers Local
295–295C, 282 NLRB 273, 275 (1986); Painters Local 558
(Forman Ford), 279 NLRB 150 (1986); Teamsters Local 810
(Kate’s Art), 268 NLRB 1378, 1379 (1984); and General
Teamsters Local 959, 248 NLRB 743, 745 (1980).
The visitation of the business agents earlier at the plant on
April 17, I have found, was pursuant to established prior
contract term and practice that had remained unchanged by
the parties’ negotiation. Though there in unusual number, the
business agents even on arrival in such numbers were ini-
tially present under a colorable claim of right to visit the
Employer’s plant for legitimate union business reasons. I
need not resolve whether the business reason privilege of that
presence specifically extended to the union business agents’
advancement of (even erroneous) contract positions that
nonunit employees were then improperly performing bar-
gaining unit work, since that conduct is not alleged to be the
unfair labor practice in this matter. See and compare Paper-
workers Local 5, supra, 294 NLRB at 1169–1170. I do note
that Section 8(b)(1)(A) speaks of union acts of restraint and
coercion of employees, in the exercise of their Section 7
rights, and not noncoercive union interference therewith.
In regard to the alleged Cika threat of physical harm to
Klein on April 17, however, what Respondent Union and its
business agents were clearly not privileged to do was to seek
to enforce the Union’s positions (held in good-faith error, or
otherwise) upon employees by any unlawful threat or coer-
cion. Klein’s testimony, substantially corroborated as it is by
the testimony of witnesses Schmitt and O’Malley (I find), is
the more creditworthy, especially when close analysis of both
Sweet’s and Freeman’s urged countertestimony has revealed
that the same did not really confront, let alone appear to be
of nature to prevail over the generally consistent, corrobora-
tive, and I thus find more credible testimony of General
Counsel’s witnesses clearly establishing a Cika threat.
Moreover, despite those circumstances, Respondent Union
has neither called Cika as a witness to testify on this inci-
dence, nor has the Union shown any reason why it did not
do so. The General Counsel and the Employer have urged
that an adverse inference should be drawn that Cika’s testi-
mony would not have been favorable to or would not have
supported the Union’s contention (essentially) that Cika had
not spoken to Klein in the above threatening fashion. I agree;
and I shall draw the appropriate adverse inference. Martin
Luther King, Sr. Nursing Center, 231 NLRB 15 fn. 1 (1977);
Publishers Printing Co., 233 NLRB 1070, 1071 fn. 1 (1977),
enfd. 625 F.2d 746 (6th Cir. 1980); and cf. Goodyear Tire
& Rubber Co., 190 NLRB 84, 86 fn. 3 (1971).
Thus, I conclude and find that after Respondent’s business
agents had first (permissibly) told two represented unit em-
ployees on April 17 that they should not be there, proceeding
(at best) in contractual error, the business agents spread out
and individually told all the nonunit individuals (including
certain of the Employer’s supervisors), whom they observed
doing unit work, that they were not union employees, should
not be doing (essentially) the unit’s work, and they should
stop doing the unit’s work.
Materially, I further find that Union Business Agent John
Cika had then directly confronted Klein as owner, and told
Klein, personally, that Klein News was a union shop; that
Klein didn’t have the right to do this; and with the central
meaning in overall context, in my view, shown clearly
enough to be, that, as a union shop, Klein did not have the
right to do the unit work himself, nor to have the unit’s work
done by supervisors of Klein News, nor to have it done by
any other nonunit employees, as he was then doing. I further
conclude and find that upon Cika’s failure (once again) to
elicit any, let alone a favorable Klein response to Cika’s as-
sertions, Cika had this time publicly threatened Klein with
physical harm by saying, ‘‘I might end up in jail for 40
years, but you’re going to end up in the hospital if this con-
tinues.’’
141TEAMSTERS LOCAL 507 (KLEIN NEWS)
This statement was a clear and substantial threat of phys-
ical harm made openly to president Klein on the Employer’s
production floor, in the presence of at least two nonunit em-
ployees who have substantially corroborated that the threat
was made as Klein has recalled it. Moreover, the threat was
made after a decidedly unusual, but (I have found) not un-
lawful number of business agents had visited the plant and
just passed through the assembled mixed work force; and,
inter alia, had previously (a) told the two represented unit
employees that they should not be there, and (b) loudly, and
erroneously directed that the other nonunit work force (in-
cluding some managers and supervisors) then performing
unit work, should immediately stop doing so. That the Cika
threat to Klein under those circumstances would escape the
attention of others assembled and presently doing the work
at the time of the business agents’ arrival and with the union
business agents’ above immediate and broad response to
their doing the work, seems to me to be inherently unlikely.
Cika’s threat to President Klein is alleged to have violated
both Section 8(b)(1)(A) and 8(b)(1)(B). Cika’s threat as
made to President Klein in the above circumstances (I pres-
ently find) violated Section 8(b)(1)(A). This is so because I
readily conclude under all of the circumstances shown above
that it is assuredly likely that it came to the immediate atten-
tion of (at least) the two unit employees present, who have
not testified to the contrary (indeed, who have not testified
herein at all); and because the Cika threat to inflict physical
harm to Klein was of such a substantial nature as to clearly
coerce and restrain employees (on their becoming aware of
the threat) in the exercise of their Section 7 right to refrain
from conduct in support of the Union.
Moreover, I am also persuaded, and I further conclude and
find, that Cika’s threat to Klein was of such nature and made
under such open and unusual circumstances on the plant
floor as to be also very likely to have later come to the atten-
tion of still other unit employees, who were not present there
that day.
Neither Cika’s likely developed frustration with Klein, nor
Klein’s readily discernible perseverance in getting the unit
work done on the (newly) implemented workday schedule,
ameliorates the coercive effect of Cika’s clear threat of phys-
ical harm to Klein, nor do those circumstances obscure the
threat’s reasonably apparent tendency to also coerce those
employees who became aware of it. For all of the above rea-
sons, I conclude and find Cika’s threat to Klein has coerced
and restrained employees in violation of Section 8(b)(1)(A).
See and compare Steelworkers Local 1397, 240 NLRB 848,
849 (1979); and Laborers Local 496 (Newport News of
Ohio), 258 NLRB 1105 fn. 2 (1981); and see Viele & Sons,
227 NLRB 1940, 1941, 1944 (1977).
While wholly unnecessary to the above findings of Re-
spondent Union’s violation of Section 8(b)(1)(A), but as fur-
ther background to certain related alleged union violations of
Section 8(b)(1)(B), infra, and as urged by the General Coun-
sel, I further find that on or shortly after March 13, thus
about a month earlier, Cika had told Klein (to no avail, and
without eliciting any apparent Klein response at the time),
that if Klein News didn’t sign the Union’s (proposed) con-
tract, somebody would get hurt. There is no evidence pre-
sented that any employee ever became aware of this initial
threat to Klein, nor was it alleged as violative of the Act.
I specifically do not find that the Union has thereby violated
Section 8(b)(1)(A).
In regard to the June 22 incident, in as much as the record
does not reveal that the Vorrell and Letner car-following in-
cident, though constituting a clear union harassment of
Fitzpatrick, had occurred in the presence of any employee;
nor was it shown to have come, or appear likely to have
come to the attention of any unit employee, I am not per-
suaded to conclude on the evidence presented, that the Union
has violated Section 8(b)(1)(A) by Vorrell’s and Letner’s un-
warranted harassment of Fitzpatrick in following Fitzpatrick
home that day.
The General Counsel has argued to the contrary on the
basis of the holding of Broadway Hospital, 244 NLRB 341,
345–346 (1979), and Allou Distributors, 201 NLRB 47
(1973), that it is not necessary to be shown that employees
have witnessed every act of intimidation, as the employees
might be expected to become aware of the incident. The inci-
dents relied upon by the General Counsel in the above cases
took place either during a strike, or following an employer
sponsored decertification petition. The cases appear even oth-
erwise to be significantly distinguishable.
In Broadway Hospital, in strike circumstances, two union
agents coerced and restrained employees by following one
management representative immediately after that supervisor
had dropped off certain employees for work at 3:30 p.m.;
and where, inter alia, on the next day at 11:30 p.m., the same
management representative car, on leaving, was then blocked
by pickets and a business agent. It was concluded that the
union’s following of the supervisor’s car the day before, after
the supervisor had dropped off employees for work, was co-
ercive, and, that it had occurred in circumstances that would
have reasonably come to the attention of employees.
The record in Broadway Hospital additionally established
that instances of picket line misconduct had occurred on still
other occasions, inter alia at 7 p.m., and that a union busi-
ness agent had yelled at the (same) supervisor as she was
leaving at 7 p.m. and that on another occasion two business
agents had also followed a company attorney (who had left
the hospital at 7 p.m.) for a substantial distance and period.)
In Allou Distributors, notably in a background of an em-
ployer-sponsored decertification petition, six business agents
initially came on an employer’s plant premises under author-
ity of an enabling clause in a current contract. The Board af-
firmed the administrative law judge’s finding, however, that
the number and conduct of the union’s business agents under
the circumstances present there, was such as to be designedly
intimidating and violative of the Act. To be sure, there, as
here, the union agents claimed a contractual right to be
present. In Allou Distributors, however, unlike here, the em-
ployer specifically requested that the business agents leave,
which they did not do.
Moreover, the union agents in Allou Distributors did more
than just tell employees to stop work. Although the business
agents had threatened to inflict physical violence on super-
visory employees, in the presence of employees (if the decer-
tification petition were not revoked), unlike here, the busi-
ness agents’ conduct there also included direct threats to em-
ployees that the employees, or their family, would suffer
bodily injury, or other harm, 201 NLRB at 54. It is noted
in passing that the administrative law judge did not find a
violation of 8(b)(1)(A) where employees were not shown to
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be aware of the union’s assault on a certain supervisor, id.
at 55.
Here, in contrast with the union business agents’ following
of cars in Broadway Hospital strike circumstances, the
Vorell-Letner car incident occurred well after unit employee
workhours. No evidence is presented that a strike was ongo-
ing at the time. Fitzpatrick does not assert that he informed
any unit employees of the incident. Fitzpatrick’s sole report
of the incident was to a warehouse supervisor, undertaken as
a precautionary measure to cover an exigency that never oc-
curred. Fitzpatrick was not hospitalized; and he otherwise
had suffered no visible injury, such as might have reasonably
later come to the attention of employees on that account, cf.,
Furniture Workers Local 140 (Brooklyn Spring Corp.), 113
NLRB 815, 821–822 (1955).
Moreover, Fitzpatrick did not report this incident to the
police; and there was no followup (other than by the instant
charge) that would arguably have created a likelihood of
some notoriety. Indeed, as noted no evidence is presented
that this incident even ever came to the actual attention of
any employee; nor is any evidence presented as to any spe-
cial circumstances or considerations under which the incident
is to be deemed otherwise likely to have come to the atten-
tion of employees, other than apparently the fact that it oc-
curred, and is presently litigated.
The car-following incident itself is reasonably shown to
have been one triggered when Fitzpatrick drove over to a
recognized union business agent’s car which was unusually
parked on the Employer’s parking lot, well after (unit) work-
ing hours; and it occurred only after Fitzpatrick had waved
at the business agent occupants, who at the time had pre-
sented appearance to Fitzpatrick of attempting to conceal
their presence on the Employer’s lot. Nonetheless, the busi-
ness agents’ election to follow Fitzpatrick, and their act of
following Fitzpatrick’s car all the way home, in the manner
they did on June 22, was unquestionably conduct that con-
stituted a clear union harassment of Fitzpatrick.
There is no pattern of union business agent car-following
in strike circumstances, nor circumstantial indication that em-
ployees had become aware of any specific such incident, as
in Broadway Hospital, supra. Rather, the circumstances of
the instant conduct of Business Agents Vorell and Letner ap-
pear more to be likened to the above union assault of a su-
pervisor that does not occur in the presence of employees,
nor appear reasonably to have come to their attention, Allou
Distributors, supra; or to the instance of a union vice presi-
dent’s clear infliction of damage upon an employer’s prop-
erty in the presence of a security guard in Lumberworkers
Local 3171, supra, but which otherwise occurred in cir-
cumstances that were deemed not to have come to the atten-
tion of any employee, and where accordingly, the related
8(b)(1)(A) complaint allegation(s) was (were) earlier dis-
missed. Any appropriate remedy for civil tort to person or
property is for other forum. Thus, I remain unpersuaded by
the General Counsel’s and the Employer’s arguments that an
8(b) (1) (A) violation has been made out in the Vorrell-
Letner car-following incident of June 22.
Accordingly, I shall recommend that the complaint allega-
tion that Respondent Union violated Section 8(b)(1)(A) by
the conduct of its business agents, Vorrell and Letner, in fol-
lowing Fitzpatrick home on June 22 be dismissed.
The 8(b)(1)(B) allegations
The complaint (essentially) alleges, and the General Coun-
sel contends that Respondent Union has violated Section
8(b)(1)(B) of the Act: (a) by its business agent’s, Cika, threat
to Klein on April 17, to inflict physical harm upon President
Klein, if (as I have found), despite being a union shop, Klein
and certain other individuals, viz, supervisors and other
nonunit employees, continued do the unit’s work; and, (b)
also by the conduct of its business agents, Vorrell and
Letner, later on June 22, in following in their car, Vice Presi-
dent and General Manager Fitzpatrick, from the Employer’s
plant to Fitzpatrick’s home: but not allegedly otherwise, as
by any of the determined interim 8(b)(1)(A) threats of Busi-
ness Agent Freeman on May 6.
Section 8(b)(1)(B) of the Act provides:
It shall be an unfair labor practice for a labor organi-
zation or its agents—
(1) to restrain or coerce . . . (B) an employer in
the selection of his representatives for the purposes
of collective bargaining or the adjustment of griev-
ances.
The Board early held that Section 8(b)(1)(B) of the Act
proscribed a union’s restraint or coercion of an employer in
the direct selection of the employer’s representative for the
purposes of collective bargaining or adjustment of griev-
ances, in a number of circumstances presenting that issue.
Indeed the Supreme Court observed in that very regard
that the Board had for decades interpreted and applied Sec-
tion 8(b)(1)(B) as making it unlawful for a union to apply
direct pressure on an employer: to require it to dismiss its
representatives because they were hostile to the union; to
force an employer into, or out of a multiemployer bargaining
unit; to compel an employer to select representatives from
the ranks of union members; or to otherwise seek to directly
affect the employer’s choice of its representative for the pur-
pose of collective bargaining or the adjustment of grievances
in the course of administering an existing contract, cf. Flor-
ida Power & Light Co. v. IBEW, 417 U.S. 790, 799 (1974)
(and see the cases cited thereat); American Broadcasting
Cos. v. Writers Guild, 437 U.S. 411, 423 (1978); and NLRB
v. Electrical Workers Local 340 (Royal Electric), 481 U.S.
573 (1987). The Union has relied on each of these cases in
its defense.
In Florida Power, supra, 417 U.S. at 813, the Supreme
Court held that unions do not violate Section 8(b)(1)(B) of
the Act when they discipline their supervisor-members for
crossing the union’s picket line and performing rank-and-file
struck work. The Union basically contends that only certain
limited acts of union restraint and coercion are proscribed by
Section 8(b)(1)(B), and it relies on the Court’s additional
statement made in connection with the Court’s creation of an
‘‘adverse effect’’ test, id. at 804:
No where in the legislative history is there to be found
any implication that Congress sought to extend protec-
tion to the employer from union restraint or coercion
when engaged in any activity other than the selection
of its representatives for the purposes of collective bar-
gaining and grievance adjustment. The conclusion is
thus inescapable that a union’s discipline of one of its
143TEAMSTERS LOCAL 507 (KLEIN NEWS)
members who is a supervisory employee can constitute
a violation of 8(b)(1)(B) only when that discipline may
adversely affect the supervisor’s conduct in performing
the duties of, and acting in his capacity as, grievance
adjuster or collective bargainer on behalf of the em-
ployer.
In Florida Power the Court had also observed the Board’s
earlier holding in San Francisco-Oakland Mailers’ Union
No. 18 (Northwest Publications), 172 NLRB 2173 (1968),
wherein, despite the absence of union pressure or coercion
aimed at securing the replacement of certain foremen, the
Board had held that the union had violated Section
8(b)(1)(B) by seeking to influence the manner in which the
foremen interpreted the contract. On other occasions the
Court explicated that in Oakland-Mailers, ‘‘the union had
disciplined its supervisor-members for an alleged misinter-
pretation or misapplication of the collective-bargaining agree-
ment, and the Board had reasoned that the natural and fore-
seeable effect of such discipline was that in interpreting the
agreement in the future, the supervisor would be reluctant to
take a position adverse to that of the union.’’ (Emphasis sup-
plied.) Id. at 801.
The Court in Florida Power then said of the Board’s hold-
ing in Oakland-Mailers, supra at 805:
We may assume without deciding that the Board’s
Oakland Mailers decision fell within the outer limits of
this test, but its decisions in the present case clearly do
not. For it is certain that these supervisors were not en-
gaged in collective bargaining or grievance adjustment,
or in any activities related thereto, when they crossed
union picket lines during an economic strike to engage
in rank-and-file struck work.
In American Broadcasting, supra, 437 U.S. at 426–429,
434, the Court upheld the Board’s subsequent application of
the above ‘‘adverse effect’’ test, and the Board’s related
finding that the union had violated Section 8(b)(1)(B) when
the union disciplined its supervisor-members for crossing its
picket line during a strike and performing only supervisory
functions, which did not include a performance of bargaining
unit work, but did include performance of certain 8(b)(1)(B)
duties, specifically grievance adjustment. The decision rested
on a carryover effect, one concluded as illegally operative
whenever the discipline might be shown to have adversely
affected the supervisor’s conduct in his capacity as grievance
adjuster or collective bargainer. Id. at 429. (Cf. also NLRB
v. Electrical Workers, supra at 574.)
In American Broadcasting, the Court said relatedly, id. at
430:
[W]e are of the view that the Board correctly under-
stood FP&L to mean that in ruling upon a 8(b)(1)(B)
charge growing out of union discipline of a supervisory
member who elects to work during a strike, it may—
indeed, it must—inquire whether the sanction may ad-
versely affect the supervisor’s performance of his col-
lective-bargaining or grievance-adjustment tasks and
thereby coerce or restrain the employer contrary to
§ 8(b)(1)(B).
In Electrical Workers Local 340, supra, after a review of
the Court’s prior holdings in both Florida Power & Light,
supra at 574, and American Broadcasting, supra, including
revisit of the Board’s prior expanded holding in Oakland
Mailers, supra, that included an employer-representative’s
ongoing interpretation of a contract on behalf of the em-
ployer as a related activity of collective bargaining, the Court
then said relatedly:
[W]e conclude that discipline of a supervisor-member is
prohibited under 8(b)(1)(B) only when that member is
engaged in 8(b)(1)(B) activities—that is, collective bar-
gaining, grievance adjustment, or some other closely re-
lated activity (e.g., contract interpretation, as in Oak-
land Mailers).
As compared with the threat and harassment incidents that
are presented herein as violative of Section 8(b)(1)(B), many
of the cases that the parties have advanced for consideration
thereon (including the three Supreme Court cases above), ad-
dress 8(b)(1)(B) coercion question as it arises from under-
lying circumstances where a union has imposed disciplinary
sanctions upon a supervisor member. In that regard, however,
it was observed in American Broadcasting, supra, 437 U.S.
at 429, that:
The opinion in FP&L expressly refrained from ques-
tioning Oakland Mailers or the proposition that an em-
ployer could be coerced or restrained within the mean-
ing of 8(b) (1) (B) not only by picketing or other direct
actions aimed at him, but also by debilitating discipline
imposed on his collective bargaining or grievance ad
justment representative. [Emphasis supplied.]
In general, the Union has observed correctly from the sev-
eral Supreme Court holdings in Florida Power & Light,
supra, American Broadcasting, supra, and Electrical Workers
Local 340, supra, and the Court’s review therein of prior
Board holdings, that: it is now well established that the scope
of the Union’s proscribed restraint and coercion of the Em-
ployer in Section 8(b)(1)(B) is limited; and thus, not every
union restraint and coercion of the Employer is to be deemed
proscribed by Section 8(b)(1)(B).
In summary thereof then, Electrical Workers Local 340,
supra, most recently would appear to teach and/or reaffirm,
pertinently: It is the Employer, not the supervisor (be the su-
pervisor a union member or not), who is protected from the
Union’s coercion by the statutory scheme. The Employer is
protected by Section 8(b)(1)(B) whether the parties have a
contract or not. However, the Employer is protected in Sec-
tion 8(b)(1)(B) from union coercion, only in the Employer’s
selection of its representatives ‘‘for the purposes of collective
bargaining or the adjustment of grievances,’’ but not as to
their performance of any other (unrelated) exercise of super-
visory or management functions for the Employer, because
Congress did not design Section 8(b)(1)(B) (vis a vis other
applicable sections of the Act), to guarantee the Employer
the individual loyalty of its 8(b)(1)(B) representatives.
Section 8(b)(1)(B) not only prevents the Union from exert-
ing any direct pressure upon the Employer in his selection
of covered representatives, but the Board has held that Sec-
tion 8(b)(1)(B) would protect (the Employer) as well from
the Union’s placement of indirect pressure on the Employer’s
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
selection via (discipline) pressure imposed on the Employer’s
selected representatives, and of nature designed to compel
them to take prounion positions in interpreting a collective-
bargaining agreement (in the future), because the Employer
then, ‘‘would have to replace its foremen or face de facto
nonrepresentation by them.’’
Thus, the Board has previously held in Oakland Mailers,
supra, and held so (at least) with subsequent review of, with-
out the Court’s apparent disapproval thereof, that Section
8(b)(1)(B)’s covered duties, ‘‘of collective bargaining or the
adjustment of grievances’’ extends to ‘‘closely related activi-
ties’’; and further, that the Employer’s selected representa-
tives’ interpretation of the contract when exercised on behalf
of their employer, is an activity so closely related to collec-
tive bargaining, as to be reasonably included therein.
Assuming, as discussed and found infra, that the above
Board and court holdings in 8(b)(1)(B) union discipline cases
do provide (at least) some broad guidance for the resolution
of the Section 8(b)(1)(B) threat and/or coercion cases pre-
sented herein, then, as is seemingly being argued therefrom,
coercion emanating from a union threat, as well as from
union discipline of a supervisor (-member) can constitute a
violation of Section 8(b)(1)(B), ‘‘only when that discipline
(or seemingly threat) may adversely affect the supervisor’s
conduct in performing the duties of, and acting in his capac-
ity as grievance adjuster or collective bargainer on behalf of
the employer.’’
The Union’s threat must also affect a supervisor who actu-
ally performs covered 8(b)(1)(B) duties and/or functions, be-
cause Section 8(b)(1)(B) prohibits union coercion in the form
of union discipline (and thus of union threat) of only those
supervisory (members) who actually perform the above-cov-
ered 8(b)(1)(B) duties and/or functions, thus coercing the
Employer in regard thereto. Question arises whether an ad-
verse effect on future 8(b)(1)(B) activities from a threat (as
in the case from union discipline) would exist only when the
Employer’s representative is threatened (disciplined) for be-
havior that occurs while the Employer’s representative is en-
gaged in 8(b)(1)(B) duties, ‘‘—that is, collective bargaining
or grievance adjustment, or . . . any activities related there-
to.’’
A Union’s threat made to supervisors because they have
performed struck unit work, as is the case in a union’s dis-
cipline of supervisor-members for crossing a picket line for
that reason, would seemingly appear not to be violative of
Section 8(b)(1)(B) because the Court has already held in
Florida Power & Light, supra, that a union’s discipline of
supervisor-members was not a violation of Section 8(b)(1)(B)
because the supervisor-members were clearly not engaged in
covered collective bargaining, or adjustment of grievances, or
any activity related thereto for their employer, when they
crossed the the Union’s picket line during an economic strike
and performed rank-and-file struck work for their employer,
for which they were disciplined.
The Board must make an eventual finding that the Union’s
sanction (threat) may adversely affect the representative’s
performance of 8(b)(1)(B) covered duties before the
8(b)(1)(B) violation can be sustained. It is a familiar prin-
ciple that it is the responsibility of the administrative law
judge to apply Board precedent which the Supreme Court or
the Board has not overruled. Of course, it ultimately remains
the burden of the General Counsel to sustain the proof of the
unfair labor practice alleged in the complaint, by a prepon-
derance of all the relevant evidence, International
Computaprint Corp., 261 NLRB 1106, 1107 (1982).
Klein and Fitzpatrick are both management representatives.
Each has been directly involved in the recent past as man-
agement representatives engaged in the functions of collec-
tive bargaining and the adjustment of grievances for Klein
News. There is no evidence presented, however, that Klein
or Fitzpatrick was either a member of the Union, or dis-
ciplined by the Union as such in times material herein.
Nonetheless, the General Counsel contends that a finding
of an 8(b)(1)(B) violation on the Cika threat to Klein is sup-
ported herein, on the basis of the Board’s (earlier) holding
in Teamsters Local 856, 195 NLRB 967, 971 (1972). In
Teamsters Local 856, the Board has affirmed findings of the
administrative law judge who had determined that a (multi-
employer association) management representative, who had
been assaulted and battered by a union business agent at a
picket line site of a member-employer of the association, was
functioning as a representative of that the Employer when he
had advised a driver (immediately before the union business
agent’s assault) in regard to the question of the driver cross-
ing the union’s picket line, to do what the driver thought was
right.
It was specifically found therein that the conduct of the
management representative had definitely related to a matter
of contract application and potential grievance; and, the
Board affirmed the finding that the violence perpetrated by
the union’s business agent upon the management representa-
tive (Briggs) had violated Section 8(b)(1)(B) of the Act.
Of the effect of violence, or threats of violence, in Team-
sters Local 856, supra, the administrative law judge had also
said, with seeming approval of the Board, in later adopted
findings, that:
Where the necessary result of violence or threats in a
labor dispute would limit the ability of a management
representative or supervisor to perform his bargaining
or grievance functions, it would accordingly appear to
be covered by the rationale of the fine cases, and, there-
fore, also constitute a violation of section 8(b)(1)(B)
even though the violence or the threats were not di-
rected towards compelling retention or rejection of a
particular bargaining representative or person handling
grievances. Herein the violence was directed toward
Briggs as a management representative at a time when
he was engaged in performing functions as such. Inex-
tricably the violence might stop the truck, but it also
necessarily would restrain and coerce Briggs in per-
forming his functions.
There appears some suggestion therein that there may have
also been a consideration extended to the possible effect on
the general loyalty interests of management representatives,
a factor no longer viable as a consideration in these matters,
cf. Florida Power & Light, supra.
In any event, both the General Counsel and the Employer
would appear to additionally rely on rationale such as was
later applied in the holding of Broadway Hospital, Inc., 244
NLRB 341, 345–346 (1979). There it was (again) found that
a union had violated Section 8(b)(1)(B) by the conduct of its
business agent(s), who had, in a provocative and coercive
145TEAMSTERS LOCAL 507 (KLEIN NEWS)
manner, repeatedly threatened and verbally and vulgarly
abused an attorney who was the employer’s collective-bar-
gaining negotiator.
The union’s business agents had also otherwise engaged in
threatening conduct, including committing certain assaults
and batteries that were made upon (other) company attorneys
who represented the employer. The Employer has contended
relatedly that Cika’s threat of physical harm made directly to
Klein was also of nature specifically designed to adversely
affect the Employer’s (Klein News’) chosen bargaining rep-
resentative (Klein) in the performance of his collective-bar-
gaining tasks.
With regard to the Cika threat of physical harm to Presi-
dent and Owner Klein, the Union firstly defends by calling
for the dismissal of any business agent threat made to Klein
as a violation of Section 8(b)(1)(B), for the same reason that
the Board has long heretofore interpreted Section 8(b)(1)(B)
as not protecting a supervisor-member from union sanctions
(fine), in circumstances where the supervisor-member is also
the sole owner of the employing company, Sheetmetal Work-
ers Local 146 (Aarctic Heating & Cooling Co.), 203 NLRB
1090 (1973). Accord: Heat & Frost Insulators Local 19, 211
NLRB 592, 594–594 (1974); and Bricklayers Local 1 (Barr
Floors, Inc.), 209 NLRB 820 (1974).
The Union would have it observed relatedly that in Brick-
layers Local 1, supra at 822, the Board approved the holding
that any attempt to distinguish between an incorporated em-
ployer (as, e.g., Klein News here) and a sole stockowner
(Klein) must fail. The Union advances further reliance on
Glaziers & Glassworkers Local 1621, 221 NLRB 509, 512
(1975), where the Board plainly stated (at least) as applicable
to alleged coercion arising from a union sanction of a super-
visor-member who is the employer:
There is no restraint or coercion against the em-
ployer in the selection of his representatives for the
prohibited objects where the employer himself is acting
as the representative for these purposes. This dichotomy
in treatment of union sanctions imposed on an employ-
er’s supervisors as opposed to those levied directly
against the employer himself may also be explained by
the fact that it is difficult to envision circumstances
where the employer would be greatly influenced in the
performance of his grievance-adjustment or collective-
bargaining functions where any decision he makes in
those respects directly works to his benefit or detriment
depending on how he decides it. [Emphasis in the origi-
nal.]
The General Counsel would appear to have essentially
countered that a different rationale of violation should apply
in a case of violence, or the threat of violence. In any event,
the General Counsel has in that regard further argued that a
threat of extreme physical violence such as is evidenced
herein, viz, that if this continued Klein would end up in the
hospital, would surely tend to influence Klein in the perform-
ance of his undertaken 8(b)(1)(B) collective-bargaining or
grievance adjustment functions (or closely related activities)
on behalf of the Employer.
The Employer argues relatedly that Glaziers & Glass-
workers Local 1621, supra, and similar such cases, do not
hold that a union can never violate Section 8(b)(1)(B) if the
owner acts as his own negotiator. The Employer contends to
the contrary (though without apparently any further citation
of supporting authority), that such a union’s interference (sic,
but coercion and restraint) of an employer is violative of
Section 8(b)(1)(B), even where an owner has chosen himself
to be the Employer’s representative to negotiate with the
Union.
The Board’s earlier holding in Heat & Frost Insulators
Local 19 (Insulation Industries), 211 NLRB 592, 593 (1974),
however, if it does not suggest the contrary (at least in union
discipline case), it would appear (at least) dispositive of any
urging being presently made by the Employer herein that
there is any substantial distinction to be made in this matter
between Klein News, and Klein as selected bargaining rep-
resentative of Klein News. Accordingly, I firstly conclude
and find here (as was found on the similar facts there), that
for the material purpose of any alleged violation of Section
8(b)(1)(B), as sole stock owner, Klein is to be viewed herein
as the same legal entity as Klein News, thus as the Em-
ployer.
The resolution of the issue then (at least), insofar as Cika’s
direct threat of physical harm to Klein is asserted to be viola-
tive of Section 8(b)(1)(B), would appear to squarely rest on
the contention being made for application of a different ra-
tionale on the coercion arising in the case of a direct threat
of physical harm to an employer, that supports an 8(b)(1)(B)
violation. One major consideration then is whether the Cika
threat of physical injury to Klein has coerced Klein within
the meaning of Section 8(b)(1)(B), although (in other cir-
cumstances) the pressure arising from a Union’s sanction dis-
cipline would clearly not have coerced Klein, as the Em-
ployer, under the above Court, and Board precedent.
Business Agent Cika’s threat of physical harm to influence
Klein (as the Employer) can not be regarded in any accept-
able sense as but a permissible appeal of the Union to influ-
ence an exercise of Klein’s (the Employer’s) financial or
economic interest that the Employer can be relied upon to
evaluate in its own best interests, as in the case of a fine im-
posed upon a supervisor-member of the Union, who is an
employer. In the latter instance a supervisor-member, who is
an employer, is deemed essentially able to evaluate where his
real financial or economic interest may lie.
In contrast here, the very nature of the Cika threat that
Cika would essentially inflict such physical harm upon Klein
that Klein would end up in the hospital, if Klein persisted
in his present course of action in having nonunit employees,
inter alia, Klein himself, and the Employer’s
managers/supervisors do the unit work, could only serve in
the above circumstances to have the economic dispute then
existing between the Employer and Union resolved by the
debilitating persuasion of a clearly coercive force, effectively
preventing any prospect of a Klein-reasoned evaluation of the
Employer’s economic position as in the case of permitted
union discipline of a supervisor-member who is an employer.
Thus, I agree with the General Counsel that the coercive
threat in general calls for a different rationale approach in the
evaluation of the 8(b)(1)(B) violation; and I conclude and
find relatedly that the coercion associated with such a threat
of physical harm to Employer Klein is not to be viewed at
all the same as the perceived manageable pressure arising
from union discipline of a voluntary supervisor-member who
is also an employer.
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The question then, in so far as Klein 8(b)(1)(B) coercion
is concerned, is not whether Klein was coerced by the threat,
but rather whether Klein, in arranging for Klein, and the Em-
ployer’s other supervisors, and others to perform the unit
work on April 17, if and when unit employees did not show
to perform the assigned unit work, is engaged in covered
8(b)(1)(B) functions under the holdings of Electrical Workers
Local 340, supra; and/or Oakland-Mailers, supra; or whether
the circumstances of the economic dispute presented herein,
in final analysis, are essentially the same as existed in Flor-
ida Power & Light, supra, and thus controlled by that hold-
ing.
The facts of this case appear in the end thus to present
some measure of Oakland-Mailers and Florida Power ten-
sion arising anew from the Employer’s (Klein’s) basic con-
tract interpretation and Klein’s continued related bargaining
process leading up to the Employer’s April enforcement of
the Employer’s last offer terms, as a thus indicated covered
8(b)(1)(B) function (viz, contract interpretation and/or collec-
tive bargaining), and, Florida Power & Light’s central deter-
mination that a supervisor(-member)’s performance of struck
work is not to be regarded as an 8(b)(1)(B) function (albeit
here occurring neither during a declared strike, nor behind a
union picket line, as in Florida Power & Light, supra).
The General Counsel has argued alternatively, that since
the Cika threat of physical harm to President Klein was ex-
treme, and had occurred openly on the plant floor, it oc-
curred in circumstances under which it was surely likely to
also come to the attention of Vice President and General
Manager Fitzpatrick, whom the General Counsel asserts is
clearly not the Employer, and as clearly is shown to be a
management representative who in material times had pos-
sessed and exercised an employer-designated representative
status for the purposes of both collective bargaining, and the
adjustment of grievances.
Under rationale urged as similar to that heretofore found
applicable by the Board in construing certain union threats
made to supervisor/managers in the presence of employees as
there effecting an 8(b)(1)(A) restraint and coercion of em-
ployees in the exercise of their Section 7 rights, the General
Counsel contends an 8(b)(1)(B) restraint and coercion of
Fitzpatrick is similarly made out by the likely coercive effect
on Fitzpatrick of the Union’s threat to Klein. The Union in
turn has relatedly urged that the degree of Fitzpatrick’s own
ownership of profitsharing stock in the Employer, which is
second only to Klein, is such as should then be viewed to
constitute the equivalent of an offset ownership interest in
him.
The Employer also contends alternatively, but even more
broadly, that since Cika’s threat to President Klein would
reasonably have been overheard and/or conveyed to all of the
Company’s managerial staff (at least), certain of which were
present on April 17, Cika’s threat of physical injury to Klein
has restrained and coerced Klein News selection of its rep-
resentatives (for collective bargaining and adjustment of
grievances) in that neither the Employer’s owner or any other
managerial/supervisory staff member would be thereafter
willing to represent the Company in (contract/grievance)
dealings with the Union.
There is no persuasive evidence presented that any
managers/supervisors other than Klein and Fitzpatrick have
actually engaged in 8(b)(1)(B) covered duties. Apart from the
argument(s) being urged by both the General Counsel and
the Employer as applying to President and Owner Klein, and
to Vice President and General Manager Fitzpatrick, it seems
to me that the Employer is here (essentially) advancing as an
alternative argument for an urged 8(b)(1)(B) coercion, one
that is essentially based on a contended effect the threat
would have on the general loyalty of its other managers/su-
pervisors and/or on the employer-perceived limitation of the
possibility of their future willingness to serve in some
8(b)(1)(B) representative capacity on a ‘‘reservoir doctrine’’
type rationale.
However, the Board’s prior rationale for an application of
the referenced ‘‘reservoir doctrine’’ (involving the concept
that supervisors not presently possessing covered 8(b)(1)(B)
functions no less constitute a pool, or ‘‘reservoir’’ of super-
visors available for selection as 8(b)(1)(B) representatives) is
one that has been addressed and specifically rejected by the
Supreme Court, NLRB v. Electrical Workers Local 340,
supra , 481 U.S. at 575. The Board has since held, e.g., that
a union’s discipline of supervisor-members violates Section
8(b)(1)(B) only if those individuals actually perform collec-
tive bargaining or grievance adjustment functions, Paper-
workers Local 5, 294 NLRB 1168 fn. 3 (1989).
The Employer’s arguments based on Cika’s threat to Klein
also producing 8(b)(1)(B) coercion and restraint of super-
visors other than Klein and Fitzpatrick, who are not shown
of record to participate in collective bargaining, or grievance
adjustment, or related functions in the circumstances pre-
sented in this case, are thus presently concluded to be with-
out merit.
In so far as the Union would contend that Fitzpatrick is
also an employer, in Glaziers & Glassworkers Local 1621,
supra, 221 NLRB at 513, the Board held that individuals
who ‘‘either personally, or together with other family mem-
bers, had more than 25-percent ownership interest in their
companies are employers.’’ It follows logically that those
who have less than the stated 25-percent interest, are not to
be viewed as employers. It would also appear to follow as
readily to be concluded therefrom that the Union’s related ar-
gument that is based on Fitzpatrick’s substantial profitsharing
stock interest, but which is clearly shown not to be an enter-
prise ownership interest under the above existing Board
precedent, is not the type of ownership in Klein News that
is sufficient to constitute Fitzpatrick an employer.
The above Cika threat of physical harm to Klein was such
as to reasonably produce a direct and immediate coercive ef-
fect on Klein. Moreover, that coercive effect as an 8(b)(1)(B)
consideration then would appear to draw arguable additional
support in the Supreme Court’s observation that, ‘‘Direct co-
ercion of an employer’s selection of a § 8(b)(1)(B) represent-
ative would always be a 8(b)(1)(B) violation whether or not
the union has or seeks a bargaining relationship with an em-
ployer.’’ NLRB v. Electrical Workers Local 340, supra at 576
fn. 13. In my understanding of the above precedents how-
ever, showing must still be made that the threat had an effect
on Klein, as the Employer, in carrying out a covered
8(b)(1)(B) function, viz, in selecting the Employer’s rep-
resentatives for covered functions, or, as the Employer’s se-
lected representative actually engaged in those functions of
collective bargaining, grievance adjustment, or closely related
activity, such as in contract interpretation.
147TEAMSTERS LOCAL 507 (KLEIN NEWS)
Fitzpatrick is clearly an employer management representa-
tive who had exercised covered functions within the meaning
of Section 8(b)(1)(B) in the recent past. I am also persuaded
by the General Counsel’s arguments and I find that the Cika
threat objectively viewed would reasonably have produced
the same claimed coercive effect on Fitzpatrick, as it did on
Klein. In the case of Fitzpatrick (as well as with Klein) how-
ever, a showing must still be made that the Cika threat of
physical harm to Klein, had an effect on Fitzpatrick’s car-
rying out a covered 8(b)(1)(B) function of ‘‘collective bar-
gaining, grievance adjustment, or some other closely related
activity (e.g., contract interpretation, as in Oakland Mail-
ers).’’
An additional consideration arises in this instance whether
the fact that Fitzpatrick was initially not actually engaged in
performing a covered function that morning, is as significant
in the coercive circumstance of a threat as it is in union dis-
cipline cases, where the discipline itself must be shown
awarded for the supervisor-member’s actual engagement in a
covered function.
On April 17, neither Klein nor Fitzpatrick was engaged in
the direct selection of an Employer’s representative for either
purpose of collective bargaining or the adjustment of griev-
ances. Neither was the Union, through the conduct of its
business agents that day, reasonably shown to be seeking to
directly influence the Employer’s choice of representative
designations in that regard. The only viable theory of
8(b)(1)(B) violation in this case is thus that of alleged union
coercion of an employer-representative’s engagement in cov-
ered collective bargaining, adjustment of grievances, and/or,
in the closely related collective-bargaining activity of Oak-
land-Mailers’ contract interpretation.
Initially, Fitzpatrick was not involved during the morning
of April 17, in collective bargaining, or adjustment of griev-
ances, or even in doing the unit’s work at the time, but rather
in getting the drivers’ (another unit’s) work out that morning.
Union discipline of a supervisor-member, who is not an em-
ployer, who performs covered functions, but was not en-
gaged in such activities, and was not disciplined for same,
would not violate Section 8(b)(1)(B).
The overall question may then be more precisely put,
whether a violation of 8(b)(1)(B) is made out on Union Busi-
ness Agent Cika’s threat of violence to Klein, either by vir-
tue of having produced a direct coercive effect on Klein as
Employer for a proscribed 8(b)(1)(B) selection of representa-
tive object; or, by the threat producing an indirect coercion
of the Employer by the threat’s coercive effect on Fitzpatrick
in the future, since though Fitzpatrick was initially not actu-
ally engaged in a covered 8(b)(1)(B) function Fitzpatrick
would reasonably be expected to be involved in covered
functions in the future and the threat would reasonably have
a continuing coercive effect on Fitzpatrick in that sense, if
the threat be shown sufficiently related to covered function.
E.g., as general manager, Fitzpatrick would in the future
surely be routinely instrumental in carrying out the Employ-
er’s newly implemented last offer terms. When the business
agents arrived and began to confront the assembled workers
with assertions that they should stop doing the unit’s work,
Fitzpatrick at that point had directed certain nonunit workers
to stop doing the unit work. Although in that respect,
Fitzpatrick may be viewed to have participated in the same
activity as Klein for purposes of an 8(b)(1)(B) threat, he es-
sentially was not engaged in a covered function at the time.
The former consideration of reasonable reach of the threat’s
coercion to future enforcement activity is deemed the more
substantial consideration.
In that regard, a threat of physical harm (particularly of
type presented here) may be viewed to have an ongoing ef-
fect for a reasonable period. In my view, such a threat need
not occur at the time the 8(b)(1)(B) representative is func-
tioning as such, to have a coercive effect on that function,
but rather it is enough if, as here with Fitzpatrick, the
8(b)(1)(B) representative has performed covered functions in
the recent past and reasonably appears likely to be called on
to do so in the near future; provided, however, that the threat
is shown in the first instance as directly related to an exer-
cise of a covered function. In regard to the evaluation of the
nature of that activity as actually constituting an 8(b)(1)(B)
covered function, Fitzpatrick would appear to stand in no
better position than Klein, who was that morning more di-
rectly involved.
In one sense Klein may be firstly viewed as inextricably
involved in a continued pursuit of Klein’s (the Employer’s)
initial and underlying basic contract-interpretation position (a
position held contrary to the Union’s interpretation thereof),
viz, that the prior contract had not renewed by its terms; and
secondly, that Klein (the Employer) was continuously en-
gaged thereafter in pursuit of his (the Employer’s) collective-
bargaining position based thereon that had previously encom-
passed the Employer’s bargaining lawfully to impasse on its
last offered terms for a new contract; a previously announced
the employer implementation of those terms; and, presently,
essentially an employer enforcement of that collective-bar-
gaining position on April 17.
On the other hand the similarity between Klein and other
supervisors’ performance of unit work (in the absence of unit
employees), which I have concluded and found was essen-
tially struck unit work that morning, albeit Klein and
managers/supervisors did not cross a picket line to perform
it, is deemed very akin to the circumstances considered in
Florida Power & Light, in which no violation of Section
8(b)(1)(B) was found, because the supervisors in performing
the rank-and-file struck work there, were found not to be en-
gaged in collective bargaining, grievance adjustment, or any
closely related activity. It appears that it was not the cir-
cumstance that a supervisor was a member of the union that
caused the performance of rank-and-file work by supervisors
to be viewed as not covered 8(b)(1) (B) function. Rather it
was the different nature of the rank-and-file work being per-
formed by the supervisor in economic dispute circumstances
that was in my view the paramount consideration, in the
Court’s view in Florida Power & Light, that covered
8(b)(1)(B) function was not there involved. Although the dis-
pute’s origin in the collective-bargaining process was present
there, it was not the controlling factor.
Thus, in another view, the Employer and the Union, here
as there, were involved in essentially an economic dispute,
one which, if not as visibly ongoing, or accompanied by an
actual or declared strike, is no less identifiable as essentially
reflecting an ongoing economic contract dispute, with em-
ployees concertedly withholding their labor from scheduled
work activity; and thus, in my view, a case presentment to
be deemed very much akin in nature to that presented in
Florida Power & Light, supra.
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If 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
Cika’s threat was not directed at affecting the selection, or
election of Klein as a negotiator for the Employer. Although
the issue is otherwise deemed close, I conclude and find that
the instant case circumstances essentially describe super-
visory performance of rank-and-file work on an occasion of
unit employees withholding labor in context of an ongoing
economic dispute, and thus essentially depicts a contract eco-
nomic dispute of the type addressed in, and, in my view,
controlled by the holding of Florida Power & Light, supra,
argued by the Union.
Accordingly, I shall recommend that the complaint allega-
tion that by Cika’s threat of physical harm to Klein, Re-
spondent Union has violated Section 8(b)(1)(B), be dismissed
on the basis that neither Klein nor Fitzpatrick at the time
were engaged in covered 8(b)(1)(B) functions.
The complaint also alleged that Respondent Union violated
Section 8(b)(1)(B) by the conduct of Business Agents Vorrell
and Letner following Fitzpatrick home on June 22.
Fitzpatrick was not involved in any function of his selected
8(b)(1)(B) representative status at that time.
Thus Fitzpatrick was not engaged in the evening of June
22 in collective bargaining, adjustment of grievances, or any
closely related matter. Neither was he involved on that occa-
sion in an act in support, or in pursuit of any apparent inter-
pretation of the prior contract. I thus agree with the Union’s
contention that essentially) Section 8(b)(1)(B), as explicated
by the Supreme Court and the Board above, simply doesn’t
extend a protective coverage to the Employer from the coer-
cive conduct of Business Agents Vorrell and Letner com-
plained of herein.
As it is the burden of the General Counsel to establish the
commission of the unfair labor practice by a preponderance
of all the relevant evidence, and the evidence presented
doesn’t establish that Respondent Union has violated Section
8(b)(1)(B) by the conduct of its business agents, Vorrell and
Letner, following Vice President and General Manager
Fitzpatrick all the way home on June 22, I shall recommend
that this allegation also be dismissed.
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 507 (Re-
spondent Local 507) is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. George R. Klein News Company (Klein News) is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
3. By the conduct of its business agent, John J. Cika, at
Klein News’ facility in Cleveland, Ohio, in threatening Klein
News President and Owner George R. Klein, in the presence
of employees, that Klein was going to end up in the hospital
if Klein and certain other individuals did not desist from per-
forming work ordinarily performed by the employees rep-
resented by the Respondent Union, Respondent Local 507
has thereby engaged in conduct in violation of Section
8(b)(1)(A) of the Act.
4. By Union Business Agent Terry Freeman’s statements
made to employees at breaktime in Klein News’ facility at
Cleveland Ohio, that if they (employees) did cross the Re-
spondent Union’s picket line someone would get hurt; that
the Teamsters have a big union, and there would be a lot of
people out there, around 300; and that (though) there would
or could be police protection, it wouldn’t be available at all
times, and somebody could get hurt; and that if someone got
hurt, no one would know who did it to them, Union Business
Agent Freeman has thereby effectively threatened employees
with the possibility of physical harm if they were to cross
the Union’s picket line; and, by such conduct, Respondent to
Local 507 has restrained and coerced employees in the exer-
cise of their Section 7 right to refrain from union and other
protected concerted activity, in violation of Section
8(b)(1)(A).
5. Respondent Union has not violated the Act other than
as found above.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it is necessary that it be or-
dered to cease and desist therefrom, and that it take certain
affirmative action designed to effectuate the policies of the
Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
No. 507, Cleveland, Ohio, its officers, agents, and represent-
atives, shall
l. Cease and desist from
(a) Threatening Klein News President and Owner George
R. Klein, in the presence of employees, that Klein is going
to end up in the hospital if Klein and certain other individ-
uals do not desist from performing work that is ordinarily
performed by the employees represented by the Respondent
Local 507, in violation of Section 8(b)(l)(A) of the Act.
(b) Telling employees at breaktime in Klein News’ facility
at Cleveland Ohio, that if the employees cross Respondent
Local 507’s picket line, someone would get hurt; that the
Teamsters have a big union, and there would be a lot of peo-
ple out there, around 300 and that (though) there would or
could be police protection, it wouldn’t be available at all
times, and somebody could get hurt; and that if someone got
hurt, no one would know who did it to them, thereby effec-
tively threatening employees with the possibility of physical
harm if they were to cross the Union’s picket line; and,
thereby restraining and coercing employees in the exercise of
Section 7 right to refrain from Union and other protected
concerted activity, in violation of Section 8(b)(l)(A).
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its office and meeting halls in Cleveland, Ohio,
copies of the attached notice marked ‘‘Appendix.’’3 Copies
149TEAMSTERS LOCAL 507 (KLEIN NEWS)
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.’’
of the notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
members and employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(b) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting at the premises of the Employer,
George R. Klein News Company, if willing, at all places
where notices to employees are customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.