Dist. 65, Retail, Wholesale and Dept. Store Union

National Labor Relations Board - Board Decisions

Feb 23, 1962

135 N.L.R.B. 1249 (N.L.R.B. 1962)

DIST. 65, RETAIL, WHOLESALE & DEPT. STORE UNION 1249
Both Thames and Coburn , while conceding that they knew the identity of all
union officers , including Robinson , denied that Robinson 's position with the Union
had anything to do with his selection for layoff or that the Union was ever men-
tioned in connection with any discussion relating to his layoff . They testified, also,
that temporary layoffs, such as Robinson 's, do not affect an employee 's seniority
and that Powell could not possibly , therefore , have acquired greater seniority than
Robinson even if Powell had not also been laid off . Ryals' testimony , insofar as
it attributes to Coburn any mention of the Union or any expression of an intent
to permit Powell to acquire seniority over Robinson , sounded contrived and is
unworthy of belief. I credit the testimony of Thames and Coburn that Robinson's
layoffs were motivated solely by economic considerations and find that they were
not in violation of Section 8(a)(3) or ( 1) of the Act.
IV. THE REMEDY
Respondent 's only conduct which I have found constituted an unfair labor prac-
tice consists of its request and persistent urging of employee New to attend a union
meeting and report back to it on union action with respect to a possible strike.
While I do not regard this conduct , because of its isolated nature , as a serious
violation of the statute , I nevertheless believe that , under all the circumstances of
this case, it will serve a salutary purpose and effectuate the policies of the Act to
issue the normal type of remedial order for this unfair labor practice.
Upon the basis of the foregoing findings of fact and upon the entire record, I
hereby make the following:
CONCLUSIONS OF LAW
1. Respondent , by requesting and persistently urging an employee to attend a
union meeting and report back to Respondent the Union's decision with respect to
strike action , has engaged in an unfair labor practice within the meaning of Section
8 (a)( I) of the Act.
2. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
3. The General Counsel has not established by a preponderance of the evidence
that Respondent engaged in surveillance of union meetings or coercively interrogated
any employee within the meaning of Section 8 ( a) (1) of the Act.
4. Respondent , by laying off John D. Robinson on April 14 and May 4, 1961,
did not engage in an unfair labor practice within the meaning of Section 8(a)(3)
or (1) of the Act.
[Recommendations omitted from publication.]
none did he say that Ryals had attributed his layoff to union activities. Instead,
Robinson told the Board agent that Ryals "didn 't know the reason" and "no reason for
my layoff was ever given me." Robinson was so thoroughly discredited on cross.
examination , that I place no reliance upon his testimony.
District 65, Retail , Wholesale and Department Store Union,
AFL-CIO and Rachman Bag Co., Inc. Case No. 20-CC-658.
February 23, 1962
DECISION AND ORDER
On December 14, 1961, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
135 NLRB No. 127.
634449-62-vol . 135-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and-Brown].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge in the above -entitled case having been filed and served , 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 Respondent Union, a hearing involving allegations of unfair labor
practices in violation of Section 8(b) (4) (i ) and (ii ) ( B) of the National Labor Rela-
tions Act, as amended , was held in New York, New York, on -November 20, 1961,
before the duly designated Trial Examiner. -
All parties were represented at the hearing and were afforded full opportunity to
present evidence pertinent to the issues , to argue orally , and to file briefs. Briefs
were waived. -
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS INVOLVED
Rachman Bag Co., Inc., the Charging Party, is a New York corporation, with
principal office and place of business in New York, New York, where it is engaged in
the reprocessing , reconditioning , manufacture , sale, and distribution of burlap bags
and related products . During the year preceding issuance of the complaint this em-
ployer sold and distributed products valued at more than $50,000 to points outside
the State of New York.
Young & Metzner, Inc., involved herein as an alleged neutral employer, is a New
York corporation, with principal office and place of business in New York, New York,
where it is engaged in reprocessing , reconditioning, manufacture , sale, and distribu-
tion of bags and related products . During the year preceding the issuance of the
complaint this employer sold and shipped products valued at more than $50,000 to
points outside the State of New York.
The complaint alleges, by stipulation at the hearing the Respondent Union ad-
mitted, and it is here found that both of the above-named employers are engaged
in commerce within the meaning of the Act.
II. THE RESPONDENT LABOR ORGANIZATION
District 65, Retail, Wholesale and Department Store Union , AFL-CIO, is a labor
organization admitting to membership employees of the Charging Employer.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and issues
The setting is succinctly described in a written stipulation of facts entered into
by the parties at the opening of the hearing . Relevant excerpts are:
(The) Respondent (Union ) was certified as collective bargaining representative
on June 2 , 1961 , for the . . . employees . . . of Rachman Bag Co., Inc.
Negotiations between Rachman Bag Co ., Inc. and (the) Respondent did not
result in the execution of a collective bargaining contract ,- and on September 19,
DIST.' 6 5, RETAIL, WHOLESALE & DEPT. STORE-UNION 1251
1961, approximately , 7 of the 10 employees of Rachman Bag Co ., struck and
commenced picketing Rachman Bag Co., Inc. • Picketing has continued to date.
The complaint alleges -and the answer denies that : ( 1) On September 26, 1961,
agents of the Respondent Union "induced and encouraged individuals employed by
Young & Metzner and other persons engaged in commerce " to "engage in a strike"
and (2 ) on the same date the Respondent "threatened , coerced and restrained Young
& Metzner and other persons engaged in•commerce ," by action of its agent in threaten-
ing Herbert Shore , an officer of Young & -Metzner, with physical harm and picketing
if he did not cease doing business with the Charging Employer.
B. Relevant events
There is no dispute that agents of the Respondent Union, after the beginning of the
strike on September 19, approached -officials of some 10 concerns doing business
with Rachman and solicited their support and aid, in withholding business from
Rachman . Such conduct was lawful , as the Board has found in, Carolina Lumber
Company, 130 NLRB 1438.
The only employer of the 10 approached by such union agents and alleged by the
complaint to have been the victim of unlawful conduct on their part is Young &
Metzner, although the charge, sworn to. by an officer of Rachman , cites a number of
other employers whose rights under the Act he claims were violated.
As to the alleged threats against Young & Metzner, General Counsel rested his
case-in-chief upon the brief testimony of Vice President Shore who testified , in sub-
stance, that on September 26 he was "approached" by; Union Representative Carlos
Ortiz alone "in front of our offices." Ortiz , ; according to Shore , asked him if he "was
doing business for the Rachman ,Bag Company," whereupon he replied that "it was
none of his business and I wouldn 't answer the question." Also according to Shore,
Ortiz then declared : "Well, we know you are doing the work for them , and if we
cannot get your cooperation by peaceful means, we will get it by physical means"
and added , "I'll have two or three hundred men to picket your place ." Immediate
doubt upon the credibility of Shore's testimony on direct examination is cast by the
fact that early in cross -examination on this event he declared that he did not know
about the Rachman strike until "a month at least" after it started on September 19.
Far more credible, in the opinion of the Trial Examiner , is the testimony of Ortiz
and Jesus Castro , the latter a striking employee of Rachman. Their testimony is
to the effect that on September 26 they both went to the Young & Metzner offices
and spoke to E. J . Mihan , secretary of the corporation . After introducing himself as
a representative of District 65, Ortiz said that they were there to "see if you can
cooperate with us ." Mihan replied that the "boss"-Shore-was not there, and sug-
gested that they come back later . Both Ortiz and Castro did come back, the next day,
according to their testimony , and after parking their car across the street , came over
to the plant . They were met at the street by both Mihan and Shore . The latter
angrily shook his fist at Ortiz , called him a crook , accused him of coming to picket
his place , and said he was going to call the cops . Ortiz protested that he came there
"peacefully" to speak to him, and had no intention of picketing the plant. Shore
insisted that he was going to call the police , and turned back to the office . Ortiz and
Castro remained on the sidewalk and within a few minutes police arrived. After
going into the plant, apparently to talk to Shore , the police came to Ortiz. It is
undisputed that one of them , a sergeant , simply said to Ortiz , "You know you can't
picket here," and that Ortiz replied : "I know that , the law doesn 't permit me to picket
here." The police did not order either Ortiz or Castro to leave , or direct them to
move their car . Nor is there any evidence that any charge of threatened violence
was brought against Ortiz, or even reported to the police, by either Shore or Mihan.
Although Mihan , who had been in the hearing room throughout the testimony, was
belatedly called in rebuttal by General Counsel to corroborate Shore 's claim that
Ortiz had threatened "physical means" and picketing by- "one hundred or two hun-
dred men ," the Trial Examiner can place no reliance upon such testimony.
Had Ortiz actually threatened to use "physical means" to gain "cooperation" it
is reasonable to suppose that Shore would have so reported to the police , and that
the police would have warned the union representative about such threats. And
there ' being no evidence that Ortiz uttered threats of picketing at any of the other
plants visited by him, it is hardly likely that he would have made such threats to
Shore.
According to Shore's own testimony, he is in close business association with the
Rachman brothers , who operate the struck plant, and has been for the past 10 years
In short, the Trial Examiner finds that credible evidence does not support the
allegation that union representatives threatened picketing or violence against Young
& Metzner on September 26, or at any other time.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
., As to the alleged "attempt" to induce employees of Young & Metzner to cease
work , General Counsel offered testimony from two such employees : Linares and
Vargas. The substance of their testimony is to the effect that as they came out
of the plant-apparently on the same day and after the Shore-Oritz incident de-
scribed above-Ortiz gave them organizing literature of the Charging Union, told
them they were on strike at Rachman's, and asked for their help. According to
Linares, he asked Ortiz what help he wanted , and the latter suggested that they stop
work "for a couple of hours ." He replied that they belonged to another union,
worked for another employer , and could not follow the suggestion.
On the other hand , both Ortiz and Castro flatly denied asking for help from these
employees , but contended that they merely gave them union literature and suggested
that if they were dissatisfied with their own bargaining agent they turn to District 65.
In urging that the Trial Examiner believe his witnesses Linares and Vargas, and
to disbelieve Ortiz and Castro , General Counsel was in an unenviable position. In
the morning of the same day the same counsel had produced Castro as one of his
chief witnesses in Case No . 2-CA-8175, in which the charging and respondent
parties were reversed . While it is of course possible that an individual may tell the
truth about one incident in the morning and an untruth about another incident in
the afternoon , the Trial Examiner is not persuaded that Castro did so on this
occasion.
In short , the Trial Examiner is not convinced that either Ortiz or Casto asked,
as a means of help to the striking employees of Rachman that they stop work, for
any length of time . Even if the Board does not adopt his resolution of this cred-
ibility issue , the Trial Examiner points out that even if the incident occurred as
Linares described it, it was isolated , and that Ortiz' response was in reply to his own
question as to how he could help . There is not the slightest evidence that Ortiz or
any other union representative approached employees of any other of the 10 em-
ployers for "help" of any kind, or that it was for this purpose that Ortiz and Castro
came to the plant of Young & Metzner that day. They came there for the lawful
purpose of asking officers of that corporation for help.
C. Conclusions
The Trial Examiner concludes and finds that the preponderance of credible
evidence fails to support General Counsel 's allegations that the Respondent Union
has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and
(ii) (B) of the Act.'
[Recommendations omitted from publication.]
' In view of these conclusions , the Trial Examiner considers it unnecessary to deter-
mine the question , raised in the answer and by certain evidence , as to whether or not
Young & Metzner in effect is an employer allied with Rachman in working upon struck
goods.
International Union of Operating Engineers, Local No. 12, AFL-
CIO [Engineers , Limited and Pacific Pipeline Construction
Company, as a joint venture] and Lloyd D . Sands. Cases Nos.
21-CB-1495-2 and 21-CB-1495-5. February 26, 1962
DECISION AND ORDER
On August 4, 1960, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and, desist therefrom and take certain af-
firmative action as set forth in the Intermediate Report attached
hereto. Thereafter the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
135 NLRB No. 119.