Before STALEY, HASTIE and SMITH, Circuit Judges.
SMITH, C. J.: 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 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 urges in support of its argument that the episodes "had no effect upon the operation of the employer's business, and they coerced or intimidated no one." That no one was in fact coerced or intimidated is of no relevance. The test of coercion and intimidation is not whether the misconduct proves effective. The test is whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act. Highway Truck Drivers & Helpers Local 107 v. NLRB, 273 F.2d 815 (D.C. Cir. 1959); Time-O-Matic, Inc. v. NLRB, 264 F.2d 96, 99 (7th Cir. 1959); Progressive Mine Workers v. NLRB, 187 F.2d 298, 301 (7th Cir. 1951), NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948). The misconduct of the Union in this case met this test.
The several Supreme Court decisions cited by the Union in support of its position are clearly inapposite. The cases involved situations in which state courts enjoined the maintenance of picket lines because of violence which occurred during the course of strikes. The cease and desist order in this case was directed solely to misconduct which violated the Act.
CLAIM FOR AFFIRMATIVE RELIEF
The petition for certification, hereinabove referred to, was filed on March 5, 1962, and formal hearings thereon were held on March 27 and April 3. This was at or about the time that the Company filed its unfair labor practice charge. Thereafter, the Regional Director apparently held further action on the petition in abeyance.
The pertinent provisions of § 9(c)(1), 29 U.S.C.A. 159(c)(1), with reference to petitions for certification, read as follows:
"Whenever a petition shall have been filed, in accordance with such regulations as may be ...