328 F.2d 850 (3rd Cir. 1964), 14286, Local 542, Intern. Union of Operating Engineers, AFL-CIO v. N. L. R. B.

Docket Nº:14286.
Citation:328 F.2d 850
Case Date:March 13, 1964
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 850

328 F.2d 850 (3rd Cir. 1964)




No. 14286.

United States Court of Appeals, Third Circuit.

March 13, 1964

Argued Oct. 10, 1963.

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Abraham E. Freedman, Philadelphia, Pa. (Martin J. Vigderman, Wilfred F. Lorry, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for petitioner.

Leo Maguire, Atty., N.L.R.B., Washington, D.C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin Pollack, Atty., N.L.R.B., on the brief), for respondent.

Earle K. Shawe, Baltimore, Md. (Sidney J. Barban, Baltimore, Md., Daniel P. Dooley, (Drinker, Biddle & Reath, John Markle, Jr., Philadelphia, Pa., on the brief), for Giles & Ransome, Inc., amicus curiae.

Before STALEY, HASTIE and SMITH, Circuit Judges.

WILLIAM F. SMITH, Circuit Judge.

This proceeding, under Section 10, subdivisions (e) and (f) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 160(e) and (f), is before the Court on a petition for review filed by Local 542, etc., the Union, and a cross-petition for enforcement filed by the Board. The

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Union has joined in its petition for review a claim for affirmative relief against the Board.


Apparently as a result of the usual organizational activities, the Union on March 5, 1962, filed with the Board a petition for certification as the bargaining agent for the parts and service department employees of Giles & Ransome, Inc., the Company. This action was followed by the layoff of seven employees in the unit. Thereafter, on March 13, the employees of the Company met and, after they were addressed by a Union representative, voted to strike. The strike commenced on the following day and continued thereafter for approximately ten weeks. It should be noted that the strike occurred at a time when the Union representatives were engaged in their organizational activities.

A picket line, under the direction and supervision of a Union official, was maintained at the entrance to the Company's premises on a round-the-clock basis. As a consequence of a series of incidents which occurred while picketing was in progress, the Company, on March 27, filed with the Board an unfair labor practice charge on the basis of which a complaint issued. A hearing on the complaint was held on June 6, after the strike had terminated. It is clear from the record of this hearing that the Union had supported the strike.

At the hearing before the Trial Examiner there were six witnesses, five of them victims of the picketers' conduct, who testified about incidents which occurred on March 16, 17, 22 and 27, at the entrance to the Company's plant and elsewhere. The testimony of these witnesses was not substantially contradicted. We are persuaded, as was the Trial Examiner, that much of the testimony offered by the Union was negative, evasive, and lacking in probative value. The Trial Examiner, having decided that the testimony offered by General Counsel was credible, found that the Union threatened to inflict bodily injury upon employees, damaged property of the Company and others, and interfered with or blocked ingress and egress of employees and others to the premises of the Company. These factual findings are supported by substantial evidence and may not be disturbed.

The Trial Examiner concluded that the course of conduct pursued by the Union was an unfair labor practice within the meaning of § 8(b)(1)(A), 29 U.S.C.A.§ 158(b)(1)(A), in that it restrained and coerced employees in their exercise of the right to refrain from union activities, a right guaranteed by § 7 of the Act, 29 U.S.C.A. § 157. The findings of fact and conclusions of the Trial Examiner were adopted by the Board and the cease and desist order here in question issued.

The Union contends that the evidence was insufficient to support the ultimate determination that it had been guilty of an unfair labor practice within the meaning of the statute. It is argued that the episodes upon which the determination rests were so minor and isolated that they cannot be regarded as coercive. We cannot agree. The argument seems to overlook the setting in which the incidents occurred. It is significant that the incidents occurred in the early days of the strike and within the relatively short period of eleven days, when the Union was most active in its organizational effort; they were not spread over the ten weeks of the strike, as the Union here contends. It is clear from the evidence that the conduct of the offenders created an atmosphere of coercion and intimidation.

The Union...

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