United Mechanics' Union Local 150-F, Etc.

National Labor Relations Board - Board Decisions

Mar 3, 1965

151 N.L.R.B. 386 (N.L.R.B. 1965)

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Mechanics ' Union Local 150-F , Fur, Leather & Machine
Workers Union , Amalgamated Meat Cutters & Butcher Work-
men of North America, AFL-CIO, and Joint Board, Fur,
Leather & Machine Workers Unions, Amalgamated Meat Cut-
ters & Butcher Workmen of North America, AFL -CIO and
American Photocopy Equipment Company
United Mechanics ' Union Local 150-F , Fur, Leather & Machine
Workers Union , Amalgamated Meat Cutters & Butcher Work-
men of North America , AFL-CIO and American Photocopy
Equipment Company. Cases No. 29-CC-6 (formerly 2-CC-849),
29-CB-18, and 29-CB-18-2 (formerly 2-CB-3940, 2-CB-3940-2).
March 3, 1965
DECISION AND ORDER
On July 31, 1964, Trial Examiner Sidney D. Goldberg issued
his Decision in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also found that
the Respondents had not engaged in certain other unfair labor
practices alleged in the complaint, and recommended dismissal
of the complaint as to them. Thereafter, the Respondents and the
General Counsel filed exceptions to the Trial Examiner's Decision
and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed.' The Board has con-
sidered the Trial Examiner's Decision, the exceptions and briefs,
and the entire record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.
1 Subsequent to the hearing herein but prior to the issuance of the Trial Examiner's
Decision , the Charging Party, on July 21 , 1964, requested leave to withdraw the charges
The General Counsel opposed the request and on July 29, 1964. the Trial Examiner issued
an order denying it. On August 13, 1964 , the Respondents filed with the Board a motion
to grant the Charging Party' s request to withdraw charges. The General Counsel opposed
the motion.
When an unfair labor practice charge is filed , the General Counsel proceeds , not in the
vindication of private rights, but as the representative of an Agency entrusted with
the enforcement of public law and the assertion of the public interest therein. We con-
clude the Trial Examiner was correct in denying the request to withdraw the charges
Accordingly , we deny Re'pondents ' motion . New York Central Transpoi t Company,
141 NLRB 1144, 1145
151 NLRB No. 33.
UNITED MECHANICS ' UNION LOCAL 150-F, ETC. 387
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order
recommended by the Trial Examiner and orders that the Respond-
ents, United Mechanics' Union Local 150-F, Fur, Leather & Machine
Workers Union, Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL-CIO, and Joint Board, Fur, Leather &
Machine Workers Unions, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO, their officers, agents, and
representatives, shall take the action set forth in the Trial Examin-
er's Recommended Order 2
2 Section 3(a), (b), and ( c) of the Trial Examiner ' s Recommended Order is amended
to show the copies of the Notice marked "Appendix A" and "Appendix B" are to be
furnished by the Regional Director for Region 29 for posting by Respondents , signed
copies are to be sent by Respondents to the Regional Director for Region 29 for posting
by each of the Employers , who are willing ; and Respondents shall notity the Regional
Director for Region 29 what steps they have taken to comply herewith.
The addresses given below the signatures in the appendixes attached to the Trial
Examiner ' s Decision are amended to read* "Fourth Floor , 16 Court Street , B rooklyn, New
York, Telephone No. 596-3535 "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
In Case No . 2-CC-849, the complaint 1 alleges that the above-named Respond-
ents, herein called the Local and the Joint Board , respectively , in aid of their labor
dispute with the Charging Party, herein called APECO, induced employees of Man-
Ray Special Delivery Service , Inc., herein called Man-Ray , to strike and subjected
its management to threats and coercion with an object of forcing Man-Ray to cease
doing business with APECO and that Respondents thereby violated Section 8(b)(4)
(i) and ( ii)(B) of the National Labor Relations Act, as amended , herein called the
Act. Respondents , by answer , denied all the material allegations of the complaint.
The complaint in Cases Nos. 2-CB-3940 and 2-CB-3940-2 2 alleges that the Local
threatened bodily harm to employees of APECO and conducted mass picketing and
demonstrations at their homes, thereby restraining and coercing them in the exercise
of rights guaranteed in Section 7 of the Act and violating Section 8(b) (1) (A) thereof.
The Local, by answer, denied threatening the employees or violating the Act and,
while admitting that it had picketed at the employees ' homes, claimed constitutional
protection therefor under the First Amendment.
With the issuance of the second complaint the Regional Director entered an order
consolidating the cases . A hearing on the issues raised by the complaints and the
answers thereto was held before Trial Examiner Sidney D. Goldberg, at New York,
New York, on May 4, 1964, at which all parties were represented and afforded an
opportunity to adduce evidence , cross-examine witnesses , and argue upon the facts
and law. By letter dated July 21, 1964, APECO informed me that it had entered
into a contract with Respondents and requested leave to withdraw the charges. The
General Counsel opposed the request and, by order dated July 29, I denied it.
For the reasons set forth in detail below, I find that Respondents committed the acts
alleged in both complaints and that, by such conduct, Respondents violated Section
8(b) ( I ) (A) and Section 8(b) (4) (i) and (ii) (B) of the Act.
i Issued Alarch 26, 1964 , on charges filed February 13 and 26, 1964.
2 Issued March 31, 1964 , on charges filed February 3 and ,March 11, 1964
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based upon the entire record in this case, including the demeanor of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED
APECO, an Illinois corporation engaged in the manufacture and sale of photocopy
machines, photocopy paper, and related products , maintains its principal office and
place of business in Evanston , Illinois, and has manufacturing plants and other places
of business in Missouri , California , Pennsylvania , Michigan , Ohio, New Jersey, and
New York. Respondents admit, and I find, that APECO is engaged in commerce
within the meaning of the Act.
Man-Ray, a New York corporation , is engaged in rendering trucking and package
delivery service to establishments in the metropolitan area of the city of New York,
including those in the waterfront freight terminals and the wholesale flower market.
It operates several trucks and maintains a warehouse at 705 East 12th Street, Man-
hattan, in the city of New York. APECO's place of business at Long Island City in
the city of New York is its largest single customer and its annual revenue from this
account alone is about $30 ,000. It is admitted , and I find, that Man-Ray is a person
engaged in an industry affecting commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondents are labor organizations within the meaning of the Act. The Joint
Board is the organizational superior of the Local.
III. THE UNFAIR LABOR PRACTICES
A. Background
On November 7, 1963, the Local was certified by the Board as the collective-
bargaining representative of the service representatives and repairmen of APECO at
its Long Island City plant.3
Thereafter , the Joint Board and the Local entered into negotiations with APECO
but, having no success in teaching an agreement , on January 30, 1964,4 they struck
APECO and commenced picketing the plant. At the time of the hearing the strike
was still in progress.
B. Secondary conduct against Man-Ray
1. Threats, coercion , and restraint
The procedure customarily followed by Man-Ray in its work for APECO was for a
Man-Ray truck to call at the APECO plant late each afternoon , dropping the packages
consigned to the plant and picking up shipments to be delivered to APECO's cus-
tomers the following day . The truck would then return to the Man-Ray warehouse
where the packages were unloaded and sorted according to Man-Ray 's operating routes
for delivery the next day.
On January 30 the Man -Ray driver returned from APECO without having made
the stop because he declined to cross the picket line.5 About 7 p.m . Emanuel Zap
and Raymond Taibi, the principals in Man-Ray, each took a truck and drove it to the
APECO plant. When they arrived they found pickets at the loading platform and
Solomon Friedman , a business agent of the Local,6 admittedly in charge of the picket-
ing. According to Zap, Friedman said "among other things ," that he was a member
of the National Maritime Council and would keep Man-Ray off the docks and piers
and out of the flower market.
Zap and Taibi loaded their trucks and drove back to the Man -Ray warehouse.
When they arrived they found Friedman and some of the pickets waiting for them.
Zap asked Friedman why he "was acting the way he was " and Friedman said that
unless Man -Ray stopped "picking up and delivering for APECO ," Man-Ray would find
s 2-RC-12982.
4 All dates hereinafter are 1964 unless otherwise stated.
6 Man -Ray's drivers are members of Local 807 , Teamsters
e It was stipulated that Solomon Friedman and Benjamin Parnes are business agents
of the Local and agents of both Respondents It was also stipulated that Henry Foner
Is president of the Joint Board and an agent of both Respondents
UNITED MECHANICS ' UNION LOCAL 150-F, ETC. 389
its place picketed and would be kept off the docks and piers.? Zap replied that
APECO was Man-Ray's largest customer and that he could do nothing about it.
The following morning, Zap was visited at the Man-Ray warehouse by Benjamin
Parnes, the other business agent of the Local and, until just a few days previously,
its president. Parnes, according to Zap, said that it was a "legitimate" strike at
APECO and asked Man-Ray "not to do their work any longer." When Zap answered
that APECO was his largest account and he "couldn't simply let them go," Parnes
appeared dissatisfied with the answer and replied: "We'll fix you." 8
On the following workday, Monday, February 3, Parnes returned to Man-Ray's
warehouse accompanied by Henry Foner, president of the Joint Board. Robert Gist,
a Man-Ray driver, was on the dock loading his truck. According to Gist, they
walked directly to him and asked him whether he was carrying "anything for APECO"
on the truck. They then said' "Aren't you a union man yourself?" "Don't you
recognize a company that's on strike?" and "It's illegal for a union 9 man to carry
struck merchandise." Gist was telling them that he had nothing to do with APECO
and the strike and Foner had started toward the truck when Ray Taibi, the other
principal of Man-Ray, joined the group. Taibi told Foner not to touch the truck
and that he had no right to be in the warehouse. Foner then reached out his arm
toward Gist as if to draw him aside and Taibi directed Foner to "leave my man
alone." 10
The noise of the argument attracted Zap's attention and he asked Foner and
Parnes to come into the office. They did so and Gist completed loading his truck.
In the office , Foner, according to his own testimony, continued to urge Man-Ray
"not to do business with APECO" and argued that Man-Ray "was doing business with
a struck firm." Zap again protested that Man-Ray was not involved in the strike;
that APECO represented a large part of its work and that Man-Ray could not continue
to operate without APECO's business. At this point, according to Zap, Parnes again
said: "We'll fix you."
A few minutes after the beginning of the conversation in the office, Gist, driving his
loaded truck out of the warehouse, stopped for a moment at the open door of the office
and spoke with Ray. He then left and the union agents left a short time thereafter.
2. Inducement of employees
At the time of these incidents, the Man-Ray warehouse was located on East 12th
Street which is a one-way, eastbound, street. Accordingly, Gist proceeded easterly
on 12th Street to the first intersection; he then made a left turn and drove north to
14th Street, made another left turn and drove west on that street. He had driven
some distance along 14th Street and had reached Irving Place when he noticed, in
his rearview mirror, that the union agents who had been at the warehouse were in a
car directly behind him. He thereupon continued to drive west on 14th Street but
began an effort to "lose" the union agents' car. His route called for him to follow
14th Street to 8th Avenue, turn right and proceed northward. He followed his pre-
scribed course and, as he did so, continued to try to shake off the car, but it was still
close behind him. As he reached 20th Street he noticed that there were three
uniformed police officers on the northwest corner of the intersection and he pulled
over to the curb near them, stopped his truck, and got out.
Parnes and Foner stopped their car immediately behind the truck and also got out.
Parnes asked Gist whether he was carrying anything from APECO; stated that
APECO was on strike and that he wanted Gist, as a union man, to cooperate with
them because if he, Gist, went out on strike, they would cooperate with him. Parnes
also said that "as long as someone carries APECO's merchandise, they can operate
'Friedman testified that both at the APECO plant and at the Man-Ray warehouse
he merely asked Zap "to cooperate" and not cross the picket line at APECO. He also
testified, however, that he asked Zap to "go along with us and cooperate so it will shorten
the question of the strike " Based upon this statement, which is corroborative of Zap's
testimony that Friedman asked him to "stop picking up and delivering for APECO,"
Friedman's interest in the proceeding and his demeanor while testifying, and the testimony
of Foner that he asked Man-Ray "not to do business with APECO because it will help us
to settle the strike more quickly," I credit Zap's testimony rather than Friedman's and
find that Friedman made the statements set forth above.
Parnes did not testify I find that he made the statements attributed to him by Zap.
The word "legal" is in the transcript at this point but all the testimony concerning
this incident convinces me that this is either an error by the reporter or a slip of the
tongue by the witness and that the word "union" was used
]1 Gist's account of this incident is accepted and Foner's denial is rejected
390 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
and our strike will be a worthless cause." Gist replied that he was headed for the
Bronx, that he had nothing from APECO, and that APECO ships very little to the
Bronx. Foner contributed the statements that they "couldn't get to all of the fellows"
and that they would "just have to put a picket line around the place."
The foregoing account is based on the testimony of Gist and I find that it occurred
as he described it. Foner's denials are rejected 11 Accordingly, I find that on
February 3, at the corner of 8th Avenue and 20th Street, Respondents, by Parnes and
Foner, induced and encouraged Gist to refuse to perform services for his employer in,
delivering APECO goods and that an object of such inducement was to force or
require Man-Ray to cease doing business with APECO
After the events set forth, above, Man-Ray was not subjected to further direct
molestation. However, since the strike and picketing continued at the APECO plant,
Man-Ray did not send its drivers there. For a 2-week period around the end of
February, Man-Ray suspended its work for APECO but some arrangement was
thereafter made and the handling of APECO's deliveries was resumed. There is no^
evidence in the record of any interference with Man-Ray's operations on the docks
and piers or in the flower market.
3. Conclusions concerning activity against Man-Ray
The threats of Friedman to keep Man -Ray "off the piers and docks" and "out of
the flower market" cannot be interpreted except as a threat of unlawful action since
Man-Ray was not engaged in a labor dispute with Respondents and no version of the
threatened action could be justified as lawful activity . Accordingly, the unlawful
object being manifested by the many requests that Man-Ray cease doing business with
APECO, >;uch threats were in violation of Section 8(b) (4) (ii ) (B) of the Act.12
Similarly, Parnes' threat to Zap that Man-Ray's warehouse would be picketed if it
continued to do business with APECO also violates Section 8 (b) (4) (ii) ( B).13
The statements made to Gist in the warehouse by Foner and Parnes, taken together,
were an appeal to him, as a union man , not to carry APECO's freight because it was
"struck merchandise " and constituted inducement that he not perform services for
his employer . 14 In view of the unlawful object, as expressed by Respondents' agents,
it was in violation of Section 8(b)(4)(1 )(B). Similarly , the request made to Gist by
Respondents ' agents at 20th Street and 8th Avenue that he cooperate in not carrying
or delivering APECO merchandise because APECO was on strike was violative of
the same section.
11 My reasons for accepting the testimony of Gist and rejecting that of Foner are based
not only on the demeanor of Gist, who impressed me as disinterested, forthright, and
truthful witness, and of Foner, who did not, but upon evidence which reflected credibility
upon Gist's account and other factors which cast doubt on Foner's. Specifically: Toner
testified that he parked his car, a blue Catalina, on the street outside when he went into
the warehouse. Gist, therefore, had never seen it when he recognized Parnes and Foner
immediately behind his truck at the Irving Place intersection Nevertheless, Gist de-
scribed the car following him as a "blue Bonneville," which is also a Pontiac and closely
resembles the Catalina Accordingly Gist's testimony had an air of authenticity that
was not in any way impaired by Respondent Foner, on the other hand, first testified
that he and Parnes were in the Man-Ray office for 10 to 15 minutes and for about 10 min-
utes after Gist left with his truck. Even when confronted with his pretrial affidavit,
he insisted that this period of time was "at least 10 minutes " In his pretrial affidavit
of February 26, however, he stated that the conversation in the office "took at most
three or four minutes " This affidavit was taken on the same day that the amended
charge was filed alleging Inducement of Man-Ray's employees and it Is a reasonable
assumption that Foner was not aware of any need, at that time, to claim that he and
Parnes remained at the Man-Ray premises any particular length of time I find that
his affidavit contains a correct statement of this fact and that his testimony is untrue
I also find that Foner and Parnes left the Man-Ray warehouse almost immediately after
Gist, followed him as he described, and that the encounter occurred In accordance with
his testimony.
12 General Drivers, Chauffeurs, and Helpers, Local Union No. 886 (The Stephens Com-
pany), 133 NLRB 1393 Compare: District Council of Painters #48, etc. [Hamilton
Materials, Inc.] (Golding & Jones, Inc.), 144 NLRB 1523; Electrical Workers Local 26,
etc. (McCloskey & Co.), 147 NLRB 1498
Is District Council of Pmenters #48, etc. [Hamilton Materials, Inc.] (Golding if Jones,
Inc.), supra ; New York Typographical Union No. 6, etc (Gavrin Press Corporation, d/b/a
Gavrin Business Forms Company, Inc ), 141 NLRB 1209, 1213.
14 District Council of Painters tt48, etc, supra.
UNITED MECHANICS' UNION LOCAL 150-F, ETC. 391
C. Conduct against nonstriking employees
1. Threats at the picket line
The complaint in Cases Nos. 2-CB-3940 and 2-CB-3940-2 alleges that the Local,
by Sol Friedman, its business manager, threatened to inflict bodily injury or harm to
"various employees at APECO." In support of this allegation, Louis Samuel testified
that he had started driving a truck for APECO after the strike began and that he
transports APECO's freight to the Man-Ray warehouse; that on March 3 Friedman
said to him, as he drove his truck up to the plant, "I warned you once- the next time
I'm going to get tough" but that there was no one standing with Friedman at the
time, no threatening gesture accompanied the statement, and he was not frightened
by it.
At the time of the hearing, the strike was still on, Samuel was still driving the tiuck
for APECO and there had been no repetition of any similar statement to him by
Friedman or anyone else. Although I accept Samuel's testimony and find that the
statement was made by Friedman, the relatively flaccid context in which it was uttered
as well as the absence of its repetition or implementation lead me to regard this
isolated incident-as Samuel did-as trivial.
2. The home demonstrations
The complaint also alleges-and the Local's answer admits-that on or about
March 7, "striking employees and Respondent" picketed the homes of APECO
employees.
The evidence of the General Counsel's witnesses on this aspect of the case was not
controverted, either by testimony on behalf of the Respondent Local or by serious
cross-examination on this point.15 Even in his oral summation, Respondent's counsel
accepted the testimony and confined himself to the claim that the picketing was pro-
tected by the first amendment.
As described by the General Counsel's witnesses, therefore, I find that on Saturday,
March 7, the following occurred:
Paul Wright: a field technician for APECO, who had gone out on strike January 30
but returned to work on February 6, lived in an apartment on the second floor, rear,
at 33-24 228th Street, Astoria, which is in the city of New York. His mother-in-law
has her apartment on the same floor but at the front of the building.
On Saturday, March 7, about 10 a.m., Wright went down to the street to warm
up his automobile preliminary to driving his wife and her mother "downtown." Just
as he was about to get into his car, an automobile carrying two striking employees of
APECO came to a halt nearby. The strikers got out of their car and approached him,
calling him a "scab." At this time Wright's wife joined the group and referred to the
fact that her husband had been beaten up just before he returned to work. One of
the strikers, Robert Norman, addressed Mrs. Wright in foul language. She became
hysterical and Wright, fearing trouble, escorted his wife and her mother back into the
house. Within a few minutes, several additional striking employees, led by Friedman
and Parries, business agents of the Local, and Ulysses Jones, the shop steward at
APECO, arrived in front of the house. Norman, in a loud voice, called attention to
the tires of Wright's car and Jones answered, "It would be too bad if anything hap-
pened to them."
About a dozen striking employees, under the command of Friedman, began to
march in front of the house, five of them carrying signs reading as follows:
YOUR NEIGHBOR
PAUL WRIGHT
33-24 228th Street
IS SCABBING
ON HIS FELLOW EMPLOYEES
AT APECO
UNITED MECHANICS
Local 150
A.M.C. & B.W. of N.A. AFL-CIO
1s Paul Wright was the only witness on this part of the case whom Respondent at-
tempted to discredit His description, however, of the demonstration in front of his
home was not controverted and was practically identical with that of the other witnesses
whose homes received similar treatment. Accordingly, 7 credit Wright's testimony
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The words "SCABBING" and "APECO" are about 21/2 inches tall and the other
lettering (except the two bottom lines) is about 11/2 inches tall. The signs, profes-
sionally prepared, measure 14 by 22 inches, and the lettering is in dark blue or black
paint, except the names which are in red.is
The striking employees, including those carrying signs, walked back and forth on
the sidewalk in front of the entrance to the building, while Friedman and Parries
stood at one side.
Shop Steward Jones would shout a question to the other marchers and they would
answer in chorus. Jones shouted: "Who is taking the bread out of my kids' mouths"
and the marchers shouted: "Paul Wright." Jones shouted: "Who is driving two
cars" and the marchers cried- "Paul Wright." The shouting could be heard clearly
in Wright's apartment and his wife was in hysterics. After the demonstration had
continued for about 15 minutes police officers, summoned by Wright, arrived on the
scene. They compelled the marchers to cease shouting and confined them to a
small area in front of the building. A few minutes later, the demonstration ended
and the marchers left.
Louis Mistretta: a service technician at APECO for over 2 years, who did not go
out on strike, lives at 126-17 Liberty Avenue, Richmond Hill, in the city of New
York. He and his wife occupy the rear apartment above two stores. The stairway
giving access to the upstairs apartments opens on the street beside the store fronts.
On Saturday, March 7, at 11 a.m. he was at home with his wife. The doorbell
rang and he went down the stairs to open the door. When he reached a point four
steps from the bottom of the stairs, he saw through the glass in the door, "all these
men yelling and screaming." He recognized Friedman and some of the strikers.
They were carrying signs similar to that described above-but with his name and
address on them-yelling that he was a "scab" and that he was taking the bread out
of their mouths. Mistretta was "scared and petrified" and went back upstairs The
shouting could be heard in his apartment and his wife was seriously disturbed, so
he called the police. The shouting continued for about 20 to 30 minutes and, during
that period, his doorbell was rung three or four times more.
Throughout the demonstration, Mistretta remained in his apartment with his
pregnant wife, who was "very upset." They heard the shouting and they knew that,
after about half an hour, it stopped but they had no firsthand knowledge of what
brought the demonstration to an end.
Louis Versaci: a service technician at APECO for over 2 years, who did not join
in the strike, lives in a two-family house in Franklin Square, just outside the city
of New York.
About 1:30 p.m. on Saturday, March 7, he was visiting a friend in the neighbor-
hood: his wife and child were at home and his father-in-law, Anthony Gianetto,
with whom he shares the house, was working in the yard. Three automobiles drew
up in front of his house and 14 or 15 people engaged in a noisy demonstration that
brought a crowd of onlookers.
Gianetto asked Friedman what the trouble was and Friedman replied: "Your son-
in-law is at home, why don't you let him come out?" Gianetto said that his son-in-
law was not at home. He also questioned their right "to make trouble in front of
my house," protesting that he was not a member of the Union and did not work
for APECO. The demonstrators were carrying signs similar to those used at the
homes of Wright and Mistretta but bearing Versaci's name and address. They
shouted: "Lou Versaci is a scab; Boo! He takes the bread from my kids; Boo' Boo!
Why doesn't he come down?" Mrs. Gianetto called the police and the officers
arrived about 10 to 15 minutes later. They ordered the demonstrators to stop shout-
ing and, after viewing the situation, sent for their sergeant.
Versaci returned home about 2:15 p.m. but avoided the demonstrators by enter-
ing through the rear. The demonstrators, now quiet under the orders of the police
officers, continued walking in a circle in front of the house for another 10 minutes
and then left. Mrs. Gianetto was made ill by the incident.
3. Conclusions regarding the demonstrations at the homes of nonstrikers
The complaint alleges that the Local, by the acts set forth above, "restrained and
coerced" the employees in their exercise of rights guaranteed in the Act and thereby
violated Section 8(b)(1) (A) thereof. Respondent, in addition to invoking consti-
tutional protection for this activity as "free speech" contends that "picketing by
between 12 and 14 people for half an hour" is not intimidatory or coercive.
ie The signs can be easily read at a distance of more than 30 feet.
UNITED MECHANICS' UNION LOCAL 150-F, ETC. 393
Section 8 (b) (1) (A) was the subject, shortly after its enactment, of several deci-
sions 17 in which the Board, after setting forth the legislative history, concluded that
its interdictions related to physical violence and intimidation, or threats thereof,
rather than to the more remote or legal effects of other, nonviolent , action. In the
National Maritime Union case, the Board, at pages 984-985, pointed out that the
Act contains no definition of what constitutes "restraint" or "coercion" but, to illus-
trate, quoted portions of the legislative history which stated:
. the only purpose [of Section 8 (b) (1) (A) ] is to protect the rights of
employees, to free them from the coercion of goon squads ...
. It would outlaw threats against employees. It would not outlaw anybody
striking who wanted to strike. It would not prevent anyone using the strike
in a legitimate way, conducting peaceful picketing or employing persuasion.
All it would do would be to outlaw such restraint and coercion as would prevent
people from going to work if they wished to go to work.
In holding that the union's strike in that case, while violative of Section 8(b) (2)
and 8(b) (3) of the Act, did not constitute conduct violative of Section 8(b) (1) (A),
the Board wrote, at page 986:
The touchstone of a strike which is violative of Section 8(b)(1)(A) is normally
the means by which it is accomplished, so long as its objective is directly related
to the interests of the strikers, and not directed primarily at compelling other
employees to forego the rights which Section 7 protects.
This construction of the section was confirmed by the Supreme Court in the Curtis
Bros. case,18 the Court writing, at page 290.
... Section 8 (b) (1) (A) is a grant of power to the Board limited to authority to
proceed against union tactics involving violence, intimidation, and reprisal or
threats thereof-conduct involving more than the general pressures upon per-
sons employed by the affected employers implicit in economic strikes.
and citing with approval, certain of the Board's earlier interpretations of the section,
leading with the National Maritime Union of America (The Texas Company), supra,
case.
In developing its interpretation of Section 8(b)(1)(A), first set forth in the
NMU case and refined in International Longshoremen's and Warehousemen's Union,
C.I.O. (Sunset Line & Twine), supra, and United Shoe Workers, et al. (Perry Norvell
Company), supra, the Board, in International Typographical Union etc. (American
Newspaper Publishers Association), 86 NLRB 951, 956, held that:
... its proscriptions were limited to situations involving actual or threatened
economic reprisals and physical violence by unions or their agents against spe-
cific individuals or groups of individuals in an effort to compel them to join the
Union or to cooperate in a union 's strike activities.
This case, together with Clara-Val Packing Company, 87 NLRB 703, which was based
upon it, have become the foundation for frequent findings of "derivative violation
of Section 8(b)(1)(A) in cases where violation of Section 8(b)(2) is predicated
upon conduct constituting direct restraints upon employees' rights under the Act.19
Measured against this legal background, I find that these demonstrations, by a
dozen or more marching, shouting, strikers under the evident command of their
leaders, constituted a coercive force directed at the nonstriking employees . The signs
accusing them of "scabbing" permit of no other inference since the word "scab," in
today's industrial society, is a term of opprobium. The demonstrators, shouting the
name of the nonstriker and that he was "taking the bread out of the mouths of our
kids," carrying placards with his name and address, and parading on Saturday in
residential neighborhoods, held the nonstrikers up to ridicule and sought public con-
17Natioaial Maritime Union of America, etc. (The Texas Company), 78 NLRB 971;
International Longshoremen 's and Warehousemen 's Union, C.I 0. (Sunset Line and Twine
Company ), 79 NLRB 1487; United Shoe Workers; Perry-Norvell Shoe Workers Com-
mittee (Perry Norvell Company), 80 NLRB 225.
),18N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639, etc. (Curtis B) as
362 U.S. 274.
11 Bernhard-Altmann Texas Corporation , 122 NLRB 1289, 1292-1293, enfd sub nom In-
ternational Ladies' Garment Workers' Union v. N L R.B , 280 F 2d 616, 620-621
(C.AD.C.) ; affd. 366 U.S. 731, 738.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demnation for their failure to join in the strike.20 Such conduct constitutes, I find,
coercion and restraint. Moreover, implicit in any such demonstration is the threat
that it will be continued or repeated until its object is attained
Respondents' argument that this activity was picketing and, therefore, entitled to
the protection accorded such conduct under Thornhill v. Alabama, 310 U. S. 88, and
other decisions protecting the right of free speech, must be rejected. The conviction
of Thornhill was based upon his conduct, on a picket line outside a struck plant, in
endeavoring peacefully to dissuade one who proposed to go to work in the plant and
this conduct, the Supreme Court held, was protected. Here, on the contrary, Respond-
ents' activities occurred miles away from the struck plant, at the homes of individual
employees who had exercised rights guaranteed under the Act and it consisted of
conduct which, I have found, constituted restraint and coercion upon them. It is
to be noted that in both Thornhill (at 105) and in Bakery and Pastry Drivels v. Wohl
(315 U.S. 769 at 775-776), the Supreme Court pointed out that, in the cases before
it, there was no "invasion of the right of privacy" and that the conduct in question
consisted of approaching the premises of employers and publicizing-without vio-
lence or coercion-in the facts of a labor dispute.
The conduct in question in this case, moreover, even if called "picketing" is not
conduct protected by the first amendment. In Allen-Bradley Local No. 1111, etc. v.
Wisconsin Employment Relations Board, et al., 315 U.S. 740, the Supreme Court
refused to set aside, as unconstitutional because repugnant to the provisions of the
Act, an order of the State board which directed that the union cease and desist from,
inter alia, "Picketing the domiciles of employees." The union argued that the con-
duct enjoined by the order was not (at that time-1942) prohibited by the Act; that
the Act preempted the field and the State, therefore, could not act with respect to it.
The Court rejected this argument, stating that the Act did not, by its mere enactment,
exclude State regulation of the type exercised and that it was not shown that, by the
State order, "any employee was deprived of rights protected or granted by the fed-
eral Act." More directly relevant here, the Court also held that there was no ques-
tion "as to constitutional limitations on state control of picketing under the rule of
Thornhill's case." If Wisconsin's curb on the picketing of employees' homes was
not unconstitutional under the Thornhill doctrine, neither would be a Board order
herein. To the same effect is Youngdahl v. Rainfair, Inc, 355 U.S. 131.
2° In Thornhill v. Alabama, 310 U.S. 88, 100-101, relied upon by Respondents, the
Supreme Court pointed out that "the vague contours of the term `picket' are nowhere
delineated" and, in this connection, referred to the article by Hellerstein entitled "Picket-
ing Legislation and the Courts" in 10 No. Car L. Rev 158, 186n (1931), in which
an attempt was made to perform this task. The portion of the article set forth by the
Court reads, in part, as follows.
A picketer may: (1) Merely observe . . (2) Communicate information . . (;)
Persuade employees or customers not to engage in relations with the employer
(4) Threaten employees or customers: (a) by the mere presence of the picketer,
the presence may be a threat of, (1) physical violence, (ii) social ostracism, being
branded in the community as a "scab" . . [Emphasis supplied I
I also deem pertinent here the decision of the Supreme Court in Youngdahl v. Rainfair,
Inc., 355 U S 131, affirming that portion of a state court injunction which prohibited
acts of violence, Intimidation, and threats of violence and rejecting the argument that
such conduct in connection with a labor dispute was constitutionally protected On the
use of language, the Court wrote, at pages 138 to 139:
Petitioners urge that all of this abusive language was protected and that they
could not, therefore, be enjoined from using it. We cannot agree. Words can
readily be so coupled with conduct as to provoke violence See Chaplinshy v, State
of New Hampshire, 315 U S. 568, 571-572. Petitioners contend that the words used,
principally "scab" and variations thereon, are within a protected terminology. But
if a sufficient number yell any word sufficiently loudly showing an intent to ridicule,
insult or annoy, no matter how innocuous the dictionary definition of that word,
the effect may cease to be persuasion and become intimidation and incitement to
violence . . . . When, in a small community, more than 30 people get together
and act as they did here, and heap abuse on their neighbors and former friends, a
court is justified in finding that violence is imminent
UNITED MECHANICS ' UNION LOCAL 150-F, ETC.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
395
The activities of Respondents set forth in section III, above, in connection with
the operations of APECO and Man-Ray, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain affirma-
tive action in order to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. Respondents are labor organizations within the meaning of Section 2(5) of the
Act.
2. APECO is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
3. Man-Ray is a person engaged in an industry affecting commerce within the
meaning of Sections 2(7) and 8(b) (4) of the Act.
4. By threats that Man-Ray would be kept off the docks and piers and out of the
flower market and by stating that they would "fix" Man-Ray and picket its premises
unless it ceased doing business with APECO and engaged in an unfair labor practice
within the meaning of Section 8(b) (4) (ii) (B) of the Act.
5. By requesting Robert Gist not to make deliveries for Man-Ray of APECO
merchandise, Respondents induced and encouraged an individual employed by a
person engaged in an industry affecting commerce to engage in a strike or refusal
in the course of his employment to perform services with an object of forcing or
requiring Man-Ray to cease doing business with APECO, and engaged in an unfair
labor practice within the meaning of Section 8(b) (4) (i) (B) of the Act.
6 By demonstrations at the homes of nonstriking employees of APECO, Respond-
ent Local restrained and coerced employees in the exercise of rights guaranteed in
Section 7 and engaged in an unfair labor practice within the meaning of Section
8(b) (1) (A) of the Act.
7. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. Respondents have not engaged in the other unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions of law, and upon the entire record
in this case, pursuant to Section 10(c) of the National Labor Relations Act, as
amended, I hereby recommend that.
1. United Mechanics' Union Local 150-F, Fur, Leather & Machine Workers
Union, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-
CIO, and Joint Board, Fur, Leather & Machine Workers Unions, Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, and each of them, their
officers, representatives, agents, successors, and assigns, shall cease and desist from
inducing or encouraging any individual employed by Man-Ray Special Delivery
Service, Inc., or by any other person engaged in commerce or in an industry affecting
commerce, to engage in a strike or a refusal in the course of his employment to use,
manufacture, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services, and cease and desist from
threatening, coercing, or restraining the aforenamed Employer or any other person
engaged in commerce or in an industry affecting commerce, where, in either case,
an object thereof is to force or require Man-Ray Special Delivery Service, Inc., to
cease doing business with American Photocopy Equipment Company.
2. United Mechanics' Union Local 150-F, Fur, Leather & Machine Workers
Union, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-
CIO, its officers, representatives, agents, successors, and assigns, shall cease and
desist from, by demonstrations at the homes of employees of American Photocopy
Equipment Company, or in any other like or related manner, restraining or coercing
employees of said employer in the exercise of rights guaranteed in Section 7 of the
Act.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The following affirmative action , necessary to effectuate the policies of the Act,
should be taken:
(a) Respondent , United Mechanics ' Union Local 150-F , shall post, in conspicu-
ous places , in its business offices, meeting halls, and all places where notices to mem-
bers are customarily posted, copies of the attached notice marked "Appendix A."
Respondent Joint Board shall post, in conspicuous places, in its business offices,
meeting halls , and all places where notices to members are customarily posted , copies
of the attached notice marked "Appendix B." 21 Copies of said notices to be fur-
nished by the Regional Director for Region 2, shall, after being duly signed by the
authorized representatives of the appropriate Respondents , be posted by them as
directed immediately upon receipt thereof and be maintained by each of them for
60 consecutive days. Reasonable steps shall be taken by Respondents to insure that
such notices are not altered , defaced, or covered by any other material.
(b) Respondents and each of them shall furnish to the Regional Director for
Region 2 signed copies of the appropriate aforementioned notices for posting by
each of the Employers named in the preceding paragraphs who are willing , in places
where notices to employees are customarily posted Copies of said notices, to be
furnished by the Regional Director , shall, after being signed by Respondents , as indi-
cated, be forthwith returned to the Regional Director for disposition by him.
(c) Respondents and each of them shall notify the said Regional Director , in writ-
ing, within 20 days from the date of receipt of this Decision and Recommended
Order, what steps such Respondent has taken to comply herewith.22
4. I further recommend that the complaint be dismissed insofar as it alleges other
violations of the Act.
a In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner ," in each of the notices In the further event that the Board 's Order
be enforced by a decree of a United States Court of Appeals , the words "a Decree of the
United States Court of Appeals , Enforcing an Order " shall be substituted for the words
"a Decision and Order."
22 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing , within 10 days
from the date of this Order , what steps the Respondents have taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES OF MAN-RAY SPECIAL DELIVERY SERVICE, INC.
AND AMERICAN PHOTOCOPY EQUIPMENT COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and to effectuate the policies of the National Labor Relations Act,
as amended , we hereby notify you that
WE WILL NOT induce or encourage any individual employed by Man-Ray
Special Delivery Service, Inc., or by any person engaged in commerce or in an
industry affecting commerce , to engage in a strike or a refusal in the course of
his employment to perform any services , and WE WILL NOT threaten , coerce, or
restrain the aforenamed employer, or any other person engaged in commerce or
in an industry affecting commerce , where, in either case, an object is to force
or require Man-Ray Special Delivery Service , Inc , to cease doing business with
American Photocopy Equipment Company.
WE WILL NOT , by demonstrations at the homes of employees of American
Photocopy Equipment Company, or in any other like or related manner,
restrain , or coerce employees of that employer in the exercise of rights guaran-
teed in Section 7 of the Act.
UNITED MECHANICS ' UNION LOCAL 150-F, FUR, LEATHER &
MACHINE WORKERS UNION, AMALGAMATED MEAT CUTTERS
& BUTCHER WORKMEN OF NORTH AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone No. Plaza 1-5500 , if they have any ques-
tion concerning this notice or compliance with its provisions.
THEO HAMM BREWING COMPANY 397
APPENDIX B
NOTICE TO ALL EMPLOYEES OF MAN-RAY SPECIAL DELIVERY SERVICE, INC.
AND AMERICAN PHOTOCOPY EQIPMENT COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and to effectuate the policies of the National Labor Relations Act,
as amended , we hereby notify you that:
WE WILL NOT induce or encourage any individual employed by Man-Ray
Special Delivery Service, Inc., or by any other person engaged in commerce or
in an industry affecting commerce , to engage in a strike or a refusal in the
course of his employment to perform any services , and WE WILL NOT threaten,
coerce, or restrain the aforenamed employer or any other person engaged in
commerce or in an industry affecting commerce , where, in either case, an
object is to force or require Man-Ray Special Delivery Service, Inc., to cease
doing business with American Photocopy Equipment Company.
JOINT BOARD , FUR, LEATHER & MACHINE WORKERS UNIONS,
AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF
NORTH AMERICA, AFL-CIO,
Labor Organization.
Dated----- -------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any ques-
tion concerning this notice or compliance with its provisions.
Theo Hamm Brewing Company and Floyd Smith
Local 111 , International Union of United Brewery, Flour , Cereal,
Soft Drink and Distillery Workers of America, AFL-CIO and
Floyd Smith. Cases Nos. 23-CA-16415 and 23-CB-487. March 3,
1965
DECISION AND ORDER
On July 7, 1964, Trial Examiner Fannie M. Boyls issued her
Decision in the above-entitled proceeding, finding that Respondent
Company had not engaged in certain unfair labor practices and
that Respondent Union had engaged in certain unfair labor practices
and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in her attached Decision.
Thereafter, the General Counsel filed exceptions to the Decision
with a supporting brief, and Respondent filed a brief in support
of the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with these cases to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
151 NLRB No. 42.