N.L.R.B. v. Union Nacional de Trabajadores, s. 75-1372

• Decision Date: 21 June 1976
• Docket Number: 75-1374,Nos. 75-1372,s. 75-1372
• Citation: 540 F.2d 1
• Parties: 92 L.R.R.M. (BNA) 3425, 79 Lab.Cas. P 11,522 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNION NACIONAL de TRABAJADORES and its agent, Arturo Grant, Respondents (two cases). NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNION NACIONAL de TRABAJADORES and its agent, Alcides Serrano, Respondents. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNION NACIONAL de TRABAJADORES and its agent, Obreros en Huelga de Catalytic, Respondents. to 75-1376.
• Court: U.S. Court of Appeals — First Circuit

Page 1

540 F.2d 1

92 L.R.R.M. (BNA) 3425, 79 Lab.Cas. P 11,522

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNION NACIONAL de TRABAJADORES and its agent, Arturo Grant,

Respondents (two cases).

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNION NACIONAL de TRABAJADORES and its agent, Alcides

Serrano, Respondents.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNION NACIONAL de TRABAJADORES and its agent, Obreros en

Huelga de Catalytic, Respondents.

Nos. 75-1372, 75-1374 to 75-1376.

United States Court of Appeals First Circuit.

Argued Feb. 10, 1976.

Decided June 21, 1976.

Robert A. Giannasi, Asst. Gen. Counsel, Washington, D. C., with whom John S. Irving, Jr., Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Andrew F. Tranovich, Washington, D. C., were on brief for petitioner.

Paul Schachter, Hato Rey, P. R., with whom David Scribner, Elizabeth Schneider, New York City, Luis M. Escribano, Hato Rey, P. R., Ralph Shapiro, New York City, and Ismael Delgado Gonzalez, San Juan, P. R., were on brief, for respondents.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

In this consolidated proceeding, the National Labor Relations Board petitions this court for enforcement of the orders it issued against the Union Nacional de Trabajadores (Union) and its agents in four separate unfair labor practice proceedings. The orders were issued to remedy numerous unfair labor practices that arose from violent incidents occurring at four Puerto Rican jobsites and involving several different companies and members and officials of the Union all of whom are listed in the margin. ¹ The major issues before us are the propriety of the Board's conclusions that the Union was guilty of the unfair labor practices found to have been committed and the appropriateness of the remedial features of the four orders.

In each of the four cases, the Board concluded that the Union had violated § 8(b)(1)(A) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(b)(1) (A), by threatening employees, supervisors, and/or outsiders under circumstances in which the result was interference with the rights conferred by § 7 of the Act, 29 U.S.C. § 157. In addition, in No. 75-1376, the Board also found that the Union had violated § 8(b)(4)(i) and (ii)(B) of the Act, 29 U.S.C. § 158(b) (4)(i) and (ii)(B) by threatening and actually inflicting physical harm upon employees of third parties in order to force those third parties to terminate business relations with Catalytic, one of the companies with which the Union had differences. In each of the four proceedings, the Board issued orders requiring the Union to cease and desist from the unfair labor practices found and from infringing in any other manner upon the § 7 rights of the employees. ² In each case, the Board's orders require that the Union not only post copies of the notices at their offices and meeting places but also mail copies to all the employees of the companies that were involved and publish copies in every newspaper of general circulation in the Commonwealth.

In addition to finding that the Union had committed various unfair labor practices, the Board, in proceedings related to No. 75-1374, dismissed the Union's complaint that the employer had unlawfully refused to bargain with it and entered an order revoking the Union's certification as the Carborundum employees' collective bargaining representative and denying the Union the right to invoke the statutory procedures in aid of a demand for recognition until such time as the Carborundum employees demonstrate their support for the Union anew in an atmosphere free from the effects of the Union's coercion.

In opposing enforcement, respondents challenge the Board's substantive conclusions, the remedies it selected, and the procedures the Board followed in reaching its conclusions. ³ Because the substantive and remedial challenges to the Board's orders present discrete issues, we will discuss them separately. The facts will be stated together with the substantive discussions. Several of respondents' arguments are too frivolous to warrant any discussion.

I. The Union's Unfair Labor Practices ⁴

No. 75-1372. Here the Board concluded that the Union and its agent and president, Arturo Grant violated § 8(b)(1)(A) by (1) brutally assaulting Macal's president, Manuel Calderon, in the presence of several of its employees, and (2) threatening Macal employees, on two separate occasions, with serious physical harm if they continued to work during a Union sponsored strike. ⁵ The Union maintains that none of these actions occurred under conditions in which they could constitute violations of § 8(b)(1)(A).

The assault on Macal's president occurred in Calderon's office on April 22, 1974, the day before a Union sponsored strike began. Although respondents concede that Grant's actions were reprehensible and violative of local law, they maintain that the admitted misconduct did not violate the Act because Grant did not have the required intent. They contend that the record clearly shows that the purpose of Grant's confrontation with Calderon was to force Macal to reinstate certain employees whom Grant mistakenly, but honestly, believed had been fired because of their Union sympathies and activities. In actuality, the employees had resigned. Respondents characterize Grant's actions as bona fide attempts to promote the § 7 rights of the former employees, and they maintain that such acts, as a matter of law, cannot form the basis for a § 8(b)(1)(A) violation. Secondly, respondents note that at the time of the assaults, there was no strike or other concerted activity in progress. They argue that ongoing concerted activity is a necessary condition for a § 8(b) violation because only then is there a possibility that the Union action will affect the exercise of § 7 rights. We find no merit in either contention.

Preliminarily, we observe that, although § 8(b)(1)(A) makes it an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of the rights guaranteed by § 7, threats directed against a non-employee can constitute a § 8(b) violation if they occur in contexts in which employees are likely to learn of them. See NLRB v. Imparato Stevedoring Corp., 250 F.2d 297 (3d Cir. 1957); NLRB v. Furriers Joint Council, 224 F.2d 78 (2d Cir. 1955). The reason for this rule is clear. An employee might reasonably regard such threats as a reliable indicator of what would befall him if he were to refrain from joining concerted activity in support of the Union. See Taxi Drivers Union, 174 N.L.R.B. 1 (1969). In reviewing a Board determination that a labor organization's violent assault of a non-employee constituted unlawful restraint and coercion of employees, the question is whether there is substantial evidence that the coercive conduct was likely to discourage legislatively protected employee activity. Evidence of specific intent to restrain or coerce employees is not required. See NLRB v. Local 140, 233 F.2d 539, 541 (2d Cir. 1956).

With this background, both of respondent's contentions seem meritless. The mere fact that Grant may have perceived himself as promoting only the interests of certain employees who supported his Union does not eliminate the possibility that the violent and brutal assaults on Macal's president in his office would have had a coercive effect on any employees who wished to refrain from joining concerted activity on behalf of the Union. Indeed, the assault occurred under conditions in which one would expect it to influence the actions of employees. It took place at the Macal plant, suggesting to employees that they would not even be safe at work if they were to oppose the Union, and arose from a Union dispute with management. An employee who either observed the assault or learned of it thereafter may well have construed it as a signal of the Union's probable response to anyone who might oppose the Union's program.

Nor can the fact that a strike or other concerted activity might not have been in progress at the time of the assault be conclusive of the absence of a likely coercive effect on protected activity. A strike was called the next day, and it is highly improbable that the violent assault would have been forgotten when the employees had to decide whether to join the strike. Under the circumstances, there was clearly sufficient evidence that the assaults were likely to chill the employees' exercise of their § 7 rights.

The Union also challenges the Board's conclusion that the threats directed against the Macal employees during the strike constituted violations of the Act. The first incident is a classic case of a § 8(b)(1)(A) violation. There Grant approached Jose Malabet and eight other Macal employees who were sitting in front of the plant waiting to go to work and repeatedly demanded that they not enter the plant. His final words illustrate the tone of his remarks: "This is Union Nacional and we kill people. So leave." ⁶ The second incident involved one Miguel Ortiz. Notwithstanding the Union's assertions, the Board was warranted in finding him an employee at the time of the incident. Although this was not nearly so flagrant as the first threat, it too involved a clear threat of bodily harm if an employee continued to report for work.

Respondents object to each of the Board's determinations on the ground that, insofar as the record shows, none of the individuals who were threatened were in fact coerced into honoring the strike. This argument misconceives the scope of § 8(b)(1)(A). As our earlier discussion indicates, it is not required that the victim of the Union misconduct actually refrain from exercising § 7 rights; indeed, the direct victim need not be an employee. A violation is established if the natural tendency of the coercive misconduct is to deter the exercise of § 7 rights by the employees who either witness it or learn of it. See ...