United Steelworkers of America

National Labor Relations Board - Board Decisions

Mar 17, 1959

123 N.L.R.B. 277 (N.L.R.B. 1959)

UNITED STEELWORKERS OF AMERICA, AFL-CIO 277
United Steelworkers of America , AFL-CIO [Lau Blower Com-
pany] and George Allen , Robert Poffenberger , Jesse Sherrets
Local Union 4545, United Steelworkers of America , AFL-CIO
and Cale H. Yoho, George Allen, Lawrence Baker, Charles E.
Booher, Lawrence Baldwin , Dale L. Hoops , Robert Poffen-
berger, Jesse Sherrets , Edward C. Williams
Owen Girten, agent, United Steelworkers of America , AFL-CIO
and Robert Poffenberger
Robert Givens , agent, United Steelworkers of America, AFL-
CIO and Charles E. Booher
Dorsie Childers , agent, United Steelworkers of America, AFL-
CIO and George Allen. Cases Nos. 9-CB-376, 9-CB-376-1,
9-CB-376-2, 9-CB-377, 9-CB-377-1, 9-CB-377-2, 9-CB-377-3,
9-CB-377-4, 9-CB-377-5, 9-CB-377-6, 9-CB-377-7, 9-CB-377-8,
9-CB-378, 9-CB-379, and 9-CB-380. March 17, 1959
DECISION AND ORDER
On September 10, 1958, Trial Examiner C. W. Whittemore, issued
his Intermediate Report 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 copy
of the Intermediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report with a support-
ing brief, and the Respondents filed an answer to the General Coun-
sel's brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman Leedom and Mem-
bers Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, brief, and answer, and the
entire record in the cases, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the
additions and modifications noted below.
1. The Trial Examiner found that mass picketing, violence, and
threats of violence, were directed against employees who refused to
participate in a strike against the Company, that Respondents were
responsible for such conduct, and that they thereby violated Section
8(b) (1) (A) of the Act. No exceptions were filed to these findings
of the Trial Examiner, which we hereby adopt.
123 NLRB No. 35:
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Nor have exceptions been filed to the Trial Examiner's con-
clusion that no finding of a violation is warranted based upon the
poststrike incident detailed in the Intermediate Report involving the
complainant Poffenberger and Respondent Girten. Consequently, we
also adopt this finding of the Trial Examiner.
3. The Trial Examiner deemed it unnecessary to make specific
findings regarding the occurrence of certain poststrike threats and
acts of violence for the reasons that Respondents could not be held
accountable for such conduct and, even if responsible therefor, no
different order from that recommended in the Intermediate Report
would be necessary . The General Counsel has excepted both to the
Trial Examiner 's failure to find further violations of Section S (b)
(1) (A) on the basis of poststrike incidents and to the scope of the
order recommended by him.
. Even were we to decide that Respondents violated Section 8(b)
(1) (A) of the Act by virtue of poststrike activity, the order would
be similar to the one which we are utilizing to remedy the violations
found above. It is therefore unnecessary to pass upon the issues
raised by the General Counsel 's exceptions to the Trial Examiner's
failure to find further violations in the instant connection.
THE REMEDY
Having found that Respondents have violated the Act, we shall
order that they cease and desist therefrom and take certain affirma-
tive action in order to effectuate the policies of the Act.
As indicated above, the General Counsel has excepted to the scope
of the order recommended by the Trial Examiner . We agree with
the General Counsel that the order as recommended is not adequate
herein. Considering the acts of violence engaged in by Respond-
ents, we shall , in order fully to effectuate the policies of the Act,
order Respondents to cease and desist from engaging in such con-.
duct as is found unlawful herein and from otherwise restraining and
coercing employees of the Company in the exercise of rights guaran-
teed in Section 7 of the Act.
ORDER
Upon the entire record in these cases and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondents, United
Steelworkers of America, AFL-CIO, its Local Union 4545, and
their officers , representatives , and agents , including Respondents
Owen Girten, Robert Givens, and Dorsie Childers, shall:
1. Cease and desist from :
(a) Trailing and assaulting and threatening to assault employees
of Lau Blower Company because of their refusal to engage in con-
certed activities.
UNITED STEELWORKERS OF AMERICA, AFL-CIO 279
(b) In any other manner restraining or coercing the employees of
Lau Blower Company in the exercise of the rights guaranteed in
Section 7 of the Act, including the right to refrain from any or all
concerted activities as guaranteed by the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at the offices and meeting halls of the United Steel-
workers of America, AFL-CIO, and its Local Union 4545 in con-
spicuous places where notices to members are customarily posted,
copies of the notice attached hereto marked "Appendix." 1 Copies
of said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by representatives of the Re-
spondent Unions and individually by Respondents Owen Girten,
Robert Givens, and Dorsie Childers, be posted by these Respondents
immediately upon receipt thereof and maintained by them for a
period of at least 60 consecutive days thereafter. Reasonable steps
shall be taken by the Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Ninth Region signed
copies of the notice attached hereto marked "Appendix," for post-
ing at the premises of Lau Blower Company, the Company willing,
in places where notices to its employees are customarily posted.
Copies of said notice, to be furnished by the Regional Director for
the Ninth Region, shall, after being signed as provided in paragraph
2(a) of this Order, be forthwith returned to the Regional Director
for such posting.
(c) Notify the Regional Director for the Ninth Region in writing,
within 10 days from the date of this Order, what steps Respondents
have taken to comply herewith.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED STEELWORKERS OF AMERICA,
AFL-CIO, AND ITS LOCAL 4545, AND TO ALL EMPLOYEES OF LAU
BLOWER COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT trail and assault or threaten to assault em-
ployees of Lau Blower Company because of their refusal to
engage in concerted activities.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner restrain or coerce employees
of Lau Blower Company in the exercise of the rights guaranteed
in Section 7 of the Act, as amended, including the right to re-
frain from any or all concerted activities as guaranteed by the
Act.
LOCAL UNION 4545, UNITED STEELWORK-
ERS of AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
Dated---------------- By-------------------------------------
(ROBERT GIVENS, Agent)
UNITED STEELWORKERS OF AMERICA,
AFL-CIO,
Labor Organization.
Dated-------- -------- By-------------------------------------
(Representative ) ( Title)
Dated---------------- By-------------------------------------
(OWEN GIRTEN, Agent)
Dated---------------- By-------------------------------------
(DORSIE CHILDERS , Agent)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and served; an order consolidating the above-entitled
cases, a complaint and notice of hearing thereon having been issued and served
by the General Counsel of the National Labor Relations Board; and an answer
having been filed by the above-named Respondents, a hearing involving allega-
tions of unfair labor practices in violation of Section 8(b) (1) (A) of the National
Labor Relations Act, as amended, was held in Dayton, Ohio, on July 29, 30, and
31, 1958, before the duly designated Trial Examiner.
At the hearing all parties were represented by counsel, were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, to introduce evidence
pertinent to the issues, to argue orally upon the record, and to file briefs and
proposed findings of fact and conclusions of law. General Counsel argued orally.
Disposition of the Respondents' motion to dismiss, upon which ruling was re-
served at the conclusion of the hearing, is made by the following findings, con-
clusions, and recommendations.
Upon the entire record in the case, and from my observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER INVOLVED
Lau Blower Company is an Ohio corporation with its principal office and place
of business at its plant in Dayton, Ohio, where it is engaged in the manufacture,
sale, and distribution of fans, ventilators, and related products. Events in issue
arose during a strike of this Employer's employees in 1957.
During the 12-month period before issuance of the complaint, this Employer
sold and shipped from its Dayton plant products valued at more than $1,000,000
to points outside the State of Ohio.
UNITED STEELWORKERS OF AMERICA, AFL-CIO 281
The Respondents do not deny, and it is found, that the Employer is engaged
in commerce within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, and its Local Union 4545 are
labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
Upon the expiration of its contract with the Employer on April 30, 1957, the
Respondent United Steelworkers and its Local 4545-apparently following a vote
of members-called and participated in a strike which continued from that date
until July 15, 1957, when a new contract was executed. Employees numbering
about 400 returned to work on or about July 17.
Since all issues raised by the complaint involve alleged conduct either by or
attributable to responsible agents of the Respondent United or its Local, it may
be well at this point to identify certain of such individuals. At the hearing it
was stipulated that the following is a list of employees holding offices noted
opposite their names, in Local 4545, at times material to the complaint:
Glenn Hall, president.
Karl Reingraber, vice president.
George Givens, outside guard.
Robert Givens, recording secretary.
Q. G. Speck, financial secretary.
Jack L. Kirkland, treasurer.
E. W. Denham, guide.
Dallas Hale, trustee.
And the shop committeemen during the strike were:
Troy Combs Howard Denny
Delmus Witt Floyd Hill
Ray Taylor Claude Blackurn
Charles Lowe Joe Fitzgerald
It was stipulated that at the material times the following named were staff repre-
sentatives of the Respondent United:
Floyd Hill 1 Frank Hardesty
Dorsie Childers Stanley Wade
Owen Girten
The major issues raised by the complaint include allegations of mass picketing,
violence and threats of violence during the period of the strike, and certain acts
and threats of violence after the conclusion of the strike, responsibility for all
of which are claimed to be attributable to the Respondents.
B. The strike conduct in issue
It appears that most if not all of the Employer's 400 employees participated in
the strike from its inception until June 14 when 14 of them abandoned the
strike and returned to work (a right clearly accorded them by Section 7 of the
Act). Although none of the several charges filed by individuals nor the com-
plaint as issued before the hearing claim any violence or threats of violence earlier
than June 14, at the opening of the hearing General Counsel amended the com-
plaint to allege that on June 8, at a meeting of the Respondent Local, three
responsible representatives of the Respondent United (Childers, Wade, and Hill)
threatened retaliation against any employee who "attempted to work during the
strike."
The evidence concerning this meeting will first be considered before turning to
actual events on the picket line-which will be described in chronological order.
Five of the complainants testified concerning the meeting of June 8. None of
the five impressed the Trial Examiner as having any clear recollection of what,
if anything, was said by any one of the United's representatives. None of them
implicated Wade as having said anything. After repeated leading questions General
Counsel succeeded in drawing from witness Booher, the first to testify on the
'A different individual than the above-named shop committeeman.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident , the claim that Hill had said that "there had better not be anybody try
to cross a picket line." The next two witnesses-Baker and Poffenberger-said
they could not recall or did not hear what was said. Finally, the last witness
of the day, Sherrets, said that Childers told the strikers that he "would see" that
"anybody that tried to cross the picket line . . . didn't get there," and that Hill
said "he had heart trouble" or would be out there "to keep us from going across."
Childers was not a witness, but other United officials denied that any threats were
made at this meeting. Not only because of the extreme difficulty General Counsel
encountered in drawing from two of his five witnesses testimony about the am-
biguous and questionable threats quoted above, but also because of the surrounding
circumstances, the Trial Examiner considers the evidence insufficient to sustain this
allegation of the complaint. The union meeting occurred a week before any of
these witnesses or others attempted to go back to work. There is no evidence that
on June 8 any of them had announced to anyone their intention to dissociate
themselves from their fellow members. It is clear that while there was a dispute
at this union meeting, its nature was not, so far as the record shows, concerned
with crossing the picket line to return to work.
Before turning to a recital of picket line events and other strike conduct in
issue, the general question of accountability should be considered. That both
Respondent United and Respondent Local 4545 were jointly responsible for the
conduct of picketing was in effect conceded by counsel for all Respondents when
he stated: "We don't deny that there was a strike and that United Steelworkers
of America participated in the strike." As witnesses certain International repre-
sentatives admitted that they were assigned to the strike at this plant.2 According
to the testimony of one such representative, Wade, the hierarchy of strike "super-
vision"-in descending order below representatives of United, included the officers
of the Local, and then the picket captains.
At this point, and upon the foregoing factor as well as others established by the
record, the Trial Examiner concludes and finds that the Respondents United and
Local 4545 must be held responsible for the conduct of pickets during the strike.
Incidents of June 14, a.m.: Early on the morning of this date employee Booher
and six others abandoned the strike and went to the plant, arriving in Booher's
car. They parked across the street from the employees' entrance to the plant.
As they crossed the street they were approached by some 15 to 20 pickets who
had been sitting on a nearby fence. In summary, undisputed testimony establishes
that in the following few minutes these acts and threats of violence occurred: (1)
pickets rushed toward the seven returning employees, shouting that they "were
not going to work"; Booher was shoved backwards by Robert Givens (previously
identified as the Local's recording secretary) and was then struck in the face by
striking employee Charles Daley; (2) striking employee Calvin Marlowe hit
returning employee Lawrence Baldwin; and (3) when police broke up the alter-
cation, arresting Marlowe, Givens, and Daley, pickets threatened the returning
workers that they would "get them" when they came out of the plant. Later that
morning Booher and Baldwin went to the local police station to file charges of
assault. The two returned to the plant under police escort. As Booher stepped
from the car he was struck by Harold Fisk, International representative of the
Respondent United.
June 14, p.m.: When the few employees who returned to work were ready to
leave the plant that afternoon, local police were present to escort them across
the street to the parking lot. No actual violence occurred, but it is undisputed
that a large crowd of strikers and others shouted threats that the "scabs" would
not be guarded by police all of the time and that they would "get them."
Ample evidence establishes, and it is found, that mass picketing was engaged
in on this occasion.
June 17, a.m. and p.m.: A few more former strikers returned to work on
Monday, June 17. Again a large crowd of strikers, plainly constituting "mass
picketing," shouted threats to the returning employees as they were escorted by
police into the plant in the morning, and out of the plant in the afternoon. Both
United representatives and officers of the Local were present. It is undisputed
by him, and is found, that Respondent Dorsey Childers, agent of United, assaulted
returning employee Allen during the morning episode and was arrested by the
police. Returning employee Michaels, during the same melee , was shoved to the
sidewalk.
Girtentestified : "I was assigned to be out on the picket line and was there practically
every clay of the strike." Both Fisk and Wade said that they were "stationed" In
Dayton at the "commencement" of the strike.
UNITED STEELWORKERS OF AMERICA, AFL-CIO 283'
Leaving the plant that afternoon, by automobile, several of the returning em-
ployees were followed by strikers in another car. When they reached the home
of one of the returning workers, Libecap, the strikers rammed their car, got out
and threw pop bottles and other material at the "scabs' " car, and only retreated
when threatened by Libecap's wife, who came out armed with a gun. Among the
group of strikers were Kirkland, the Local's treasurer, and Fitzgerald, a com-
mitteeman.
June 18: Although a number of the returning employees did not report for
work on this date, it appears that employee Cale Yoho did work. As he drove
into his own driveway that afternoon, striker John Crum, who got out of a car
driven by striker James Molitte, chased him into his home while Molitte shouted,
"We will get you the next time."
June 19: Upon leaving work the next day, Yoho in his car was followed by
striker Crum and two other strikers, Rose and Skaggs. He finally drew up near
a construction project, where he figured he would have witnesses, and stopped.
The strikers got out of their car and proceeded to throw pop bottles and other
objects at his car. Not until the construction workers threatened to start heaving
things themselves did the strikers retreat. Yoho then went into a nearby house
to call for the police.
On the same day it is undisputed that mass picketing again occurred at the
plant entrance , and continued for the next 2 or 3 weeks.
C. Conclusions as to strike conduct
Although the record reveals certain other minor incidents of threats of violence,
as to which credible testimony is undisputed, the foregoing narration is sufficient,
in the opinion of the Trial Examiner, to warrant the conclusion, here drawn, that
during the period of the strike the Respondents United and Local 4545 engaged in
a clear pattern of mass picketing, violence, and threats of violence, designed to
coerce employees in the exercise of their right, guaranteed by the Act, not to
participate in the strike. In view of the nature of the picket line events, also, the
Trial Examiner concludes and finds that the Respondent United and Respondent
Local must be held responsible for the above-described threats and attacks upon
returning workers made after they had left the plant. In effect, such conduct
merely extended the picket line into an area where police protection was not
immediately available. Even in the absence of local officials or committeemen the
Respondents must be considered accountable for the strikers ' more distant actions,
since such conduct was of a nature either initially instigated or tacitly approved
by officials on the picket line.
D. Poststrike issues
In his complaint General Counsel also claims, and ample credible evidence
establishes, that some of the "scabs," or employees who had abandoned the strike
and returned to work, were harassed by certain shop committeemen and other
employees, on a number of occasions after the new contract was executed, the
strike itself was abandoned, and all employees had returned to work. Such
harassment, General Counsel contends, was prompted not only as retaliation for
desertion from the strike ranks but also by an intention to discourage victims
from ever again exercising their right to refrain from striking , in the event an-
other strike occurred. The Trial Examiner has no doubt that such an inference is
reasonable and warranted.
Under the circumstances, however, the Trial Examiner considers it unnecessary
to make specific findings or recommendations concerning such poststrike matters.
Such circumstances include: (1) the fact that responsible officials of both Re-
spondents-United and Local 4545-disavowed such conduct; and (2) the suffi-
ciency of the broad cease and desist recommendation below to cover such conduct
where attributable to the Respondents. As to point (1) : it is undisputed that
top officials of both the United and Local 4545 met with management concerning
these poststrike incidents between former strikers and nonstrikers and candidly
told management , in the words of representative Hardesty, that "anyone . . .
causing any trouble in that plant . should be disciplined and corrected in an
orderly fashion regardless of who they might be." Management and union offi-
cials agreed that this would be the policy to be followed thereafter. It is also
undisputed that immediately upon the execution of the contract, at a general meet-
ing of employee members of Local 4545, the International representatives made
it clear that there was to be no retaliation against "scabs."
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above-described circumstances of point (1), the Trial Examiner believes,
warrant the conclusion that neither the Respondent United nor Respondent Local
may reasonably be held accountable for the poststrike conduct of individual em-
ployees in such terms as would be necessary to support a finding of violation of
Section 8(b)(1)(A) of the Act.
The record also contains disputed testimony concerning an incident at the com-
pany parking lot about a month after the strike ended, involving Complainant
Poffenberger and International Representative Owen Girten. It is the one inci-
dent raised, apparently, by the charge in Case No. 9-CB-378. It appears that-
when leaving the plant after work Poffenberger and three other employees crossed
the street into the parking lot, and at the lot passed by Owen Girten, who had
just parked his car at the curb of the street. Girten, it is undisputed, although
still an International representative had completed his assignment in Dayton with
the ending of the strike in July, had been on vacation, and on this occasion had
come to the plant to visit certain friends. One hand had previously been injured,
and the arm was in a sling. At this point, testimony is in sharp dispute. Accord-
ing to Poffenberger, somebody stepped on his shoe, and when he straightened up.
after replacing it Girten struck him in the face and called him a "son of a bitch
scab." According to Girten, Poffenberger brushed by, his shoe came off, and as he
straightened up he called him a "union son of a bitch," whereupon he struck him
with his uninjured hand. As witnesses, Poffenberger and Girten each denied
having called the other a name. Poffenberger claimed that at the time he did
not know Girten, had never seen him before, and did not know how Girten was
aware he had been a "scab." On the other hand Girten readily admitted he knew
that Poffenberger and the others with him on this occasion had been "scabs."
None of the others present testified about the incident. The Trial Examiner con-
fesses difficulty in determining what precipitated the blow. There is no ready
explanation as to why Girten, chancing to be at this point, should select one of
four men passing him on the street to strike and call a "scab," if, as he says, he
knew all of them to have been "scabs," without some more immediate provoca-
tion. It would seem more probable that Girten did, accidentally or intentionally,
step on Poffenberger's heel, and that the latter, being angered, called him a name,
whereupon Girten struck him.
In any event, it was an isolated incident, obviously and wholly unrelated to the
Respondent Unions' illegal conduct during the strike and not of sufficient import
to warrant a conclusion that on this occasion, Girten, as agent for the Respondent
United, violated Section 8(b)(1)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring in
connection with the operations of the Employer described in section I, above,
have a close, intimate, and substantial relation to trade, traffice, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices the
Trial Examiner will recommend that they cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO, and its Local 4545 are labor
organizations within the meaning of Section 2(5) of the Act. Owen Girten,
Robert Givens, and Dorsie Childers, and each of them, are agents of United Steel-
workers of America, AFL-CIO.
2. By restraining and coercing employees in the exercise of rights guaranteed
by Section 7 of the Act, the Respondent labor organizations and their above-
named agents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]