Distributive Workers of America

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 469 (N.L.R.B. 1974)

DISTRICT 65, DISTRIBUTIVE WORKERS
District 65, Distributive Workers of America and
S.N.S. Distributing Service and Newburgh Dyeing
Company and Pinto Service Corporation.' Cases
22-CC-549, 22-CC-561 (formerly 2-CC-1304),
and 22-CC-562 (formerly 29-CC-396)
June 12, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On February 28, 1974, Administrative Law Judge
Thomas A. Ricci. issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel,
S.N.S. Distributing Service, a Charging Party, and
Concord Fabrics Inc., a Party in Interest, filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions3 of the Administrative
Law Judge and to adopt his recommended Order, as
herein modified.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
District 65, Distributive Workers of America, New
York, New York, its officers, agents , and representa-
tives, shall take the action set forth in the said
recommended Order as so modified:
1. Delete paragraph 1 and substitute the follow-
ing:
"1. Cease and desist from inducing or encourag-
ing any individual employed by S.N.S. Distributing
Service, Newburgh Dyeing Company, Pinto Service
Corporation, or any other person engaged in com-
merce or in an industry affecting commerce, to
engage in a strike or a refusal in the course of his
employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services;
or threatening, coercing, or restraining the said
persons, or any other persons engaged in commerce
or in an industry affecting commerce, where in either
case an object thereof is forcing or requiring any of
469
the above or any other persons to cease doing
business with Concord Fabrics Inc."
2. Substitute the attached notice for the notice of
the Administrative Law Judge.
1 The Administrative Law Judge granted the General Counsel 's motion,
made at the hearing , to consolidate Cases 22-CC-561 and 562 with
22-CC-549, and to amend the complaint to allege that Respondent engaged
in unlawful secondary activities with respect to Newburgh Dyeing
Company and Pinto Service Corporation . The Administrative Law Judge,
however, apparently by inadvertence , did not rule on the General Counsel's
additional motion to amend the caption to conform to the amended
complaint. We hereby grant this motion and correct the caption.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
3 In adopting the Administrative Law Judge 's conclusion that S.N.S.
Distributing Service was not an economic ally of Concord Fabrics Inc., the
primary employer herein, we agree that Brewery Workers Union No. 8,
International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery
Workers of America, AFL-CIO (Bert P. Williams, Inc.), 148 NLRB 728, is
distinguishable from the instant case . In Williams the Board concluded that
an ally relationship existed, finding , inter alia, that the primary employer's
subcontracting of its work was caused by the imminent failure of
negotiations with the union concerning future terms and conditions of
employment and represented an attempt to continue its operations
notwithstanding a strike by its employees . The Board further found in that
case that the secondary employer was aware that its contract with the
primary employer was contingent on the outcome of the latter's negotiations
with the union and that , by entering into a final contract with the primary
employer only after the commencement of the strike, it knowingly
performed work which but for the strike would have been performed by the
employees of the primary employer.
In contrast , the record in the instant case discloses that Concord's
subcontracting of its work and closing of its plant were the result of
legitimate business considerations in no way related to a concurrent strike
by its employees. Thus, Respondent did not picket Concord's premises until
almost 2 months after Concord had begun subcontracting its work to S.N.S.
Distributing Service and some 3 weeks after Concord had completely
abandoned its plant. In these circumstances, it cannot be said that
Concord's actions were devised to avoid the consequences of a strike by its
employees or that S .N.S. Distributing Service did work which otherwise
would have been performed by Concord's employees.
4 In the circumstances of this case , where Respondent's unlawful
conduct was directed only against those employers doing business with
Concord Fabrics Inc., we do not believe the Administrative Law Judge's
recommended Order prohibiting all secondary activity, regardless of the
primary employer, is warranted . We shall , however, in accordance with our
usual practice, prohibit such conduct against any other secondary
employers where an object is to force or coerce them to cease doing business
with Concord Fabrics Inc. See, e.g., Journeymen Plasterers' Protective and
Benevolent Society of Chicago, Local No. 5, AFL-CIO (Royal- Rin Builders,
Inc.; Imperal Carpentry, Inc., et al.), 158 NLRB 1608, 1619.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any individ-
ual employed by S.N.S. Distributing Service,
Newburgh Dyeing Company, Pinto Service Cor-
poration, or any other person engaged in com-
merce or in an industry affecting commerce, to
engage in a strike or a refusal in the course of his
211 NLRB No. 62
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment to use , manufacture , process , trans-
port, or otherwise handle or work on any goods,
articles , materials , or commodities or to perform
any services ; or threaten , coerce , or restrain the
said persons, or any other persons engaged in
commerce or in an industry affecting commerce,
where in either case an object thereof is forcing or
requiring any of the above or any other persons to
cease doing business with Concord Fabrics Inc.
DISTRICT 65,
DISTRIBUTIVE WORKERS
OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , Federal Building, 16th Floor, 970
Broad Street , Newark , New Jersey 07102 , Telephone
201-645-2100.
DECISION
THOMAS A. Ricci , Administrative Law Judge: A hearing
in this proceeding was held on three hearing dates,
November 26 and 27 , 1973, and January 21, 1974, on
complaint of the General Counsel against District 65,
Distributive Workers of America , here called the Respon-
dent . The initial charge was filed on September 7, 1973, by
S.N.S. Distributing Service, and complaint issued on
October 16, 1973. The issue presented is whether the
Respondent violated section 8(bx4)(i)(B ), and 8(b)(4)(ii)
(B), of the statute.- Briefs were filed by the General
Counsel and the original Charging Party.
Upon the entire record and from my observation of the
witnesses I make the following:
Company itself does business in a number of locations, but
the only one with which this case is concerned is an
operation it ran for some years in North Bergen, New
Jersey . Here, with machinery and about 70 employees, it
received and finished cloth , cut it into appropriate
quantities , folded it and placed it on boards , stacked it all,
and shipped it to customers . Concord does more than
$50,000 of business annually from out-of-state sources.
S.N.S. Distributing Service has for some years been in
business at Carlstadt , New Jersey. Its employees, again
with the same kind of machinery used by Concord at
North Bergen, do precisely the same type of work, i.e.,
receive finished fabrics, cut it and fold it and roll it on
boards , stock it, and ship it to purchasers . S.N.S. is, and
has always been , only a service company doing work for
others ; it does not own any of the cloth, in any form or at
any time . It performs these services for about 25 companies
like Concord on a strictly contract basis . As of the time of
the events giving rise to this case , it had never done
business with Concord . S.N.S. does more than $50,000 of
business from out-of-state sources.
Newburgh Dyeing Company has a plant in the City of
Newburgh, New York State , where it dyes and finishes
gray and raw cloth, with about 80 employees. It does not
own any of the fabrics ; it receives cloth belonging to the
companies which utilize its services , dyes and finishes it,
stores it, and then ships it as directed to the purchaser
customers of the owners of the cloth . Newburgh itself has
about 200 customers who do business with it ; among these
for the past 2 years has been Concord . Newburgh receives
over $50,000 annually from out-of-state customers in
payment for its services.
Pinto Service Corporation is also a service company; it
folds , refolds, and bundles second quality or irregular
pieces of fabric , stores it in its premises on behalf of the
companies who do business with it, and then ships it to the
purchaser customers of the owners of the cloth . Like S.N.S.
and Newburgh, Pinto also does not own any of the
material it works on . Eight years in this business, it
operates with 30 or 35 employees , has about 15 customers,
and has done work for Concord all this time . Pinto receives
over $50,000 annually for work performed on behalf of
out-of-state customers.
I find that Concord Fabrics , Inc., S.N.S. Distributing
Service, Newburgh Dyeing Company , and Pinto Service
Corporation are engaged in commerce within the meaning
of the Act.
FINDINGS OF FACT
1. COMMERCE ; THE BUSINESS INVOLVED
This is a secondary picketing case , in which the
Respondent Union is charged with putting unlawful
pressure upon neutral or secondary employers, as a
roundabout method for winning its labor dispute with the
primary employer . The primary company is Concord
Fabrics , Inc., which both produces and buys raw and gray
cloth, dyes and finishes it (called converting), cuts and puts
it on rolls, and sells it to purchasing customers of all kinds.
In its total operations, Concord has some portions of these
various functional steps of its business performed by other
companies on a regular contract payment basis. The
II. THE LABOR ORGANIZATION INVOLVED
I find that District 65, Distributive Workers of America,
is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Pertinent Facts
The Respondent represented the employees in Concord's
North Bergen place of business for some years ; its last
contract expired on June 30, 1973. In the spring of the year,
Concord advised the Respondent it intended to discontin-
DISTRICT 65, DISTRIBUTIVE WORKERS 471
ue entirely that operation and in its place have all that
work performed by some other company. Its stated reason
was economic necessity. Representatives of Concord and
of District 65 discussed this matter a number of times
before June 30; no agreement of any kind was reached,
and the contract expired by its terms at the end of June. A
few days later Concord decided with finality it would close
the location; it advised District 65 of this decision by letter
dated July 6. On July 9, it dismissed 55 employees and on
August 17 the remainder, about 20 persons. Four or five
office clerical employees were transferred to Concord's
New York City main office, where they have since
continued working. By August 17 also, part of the
machinery at North Bergen was sold; the building has
stood unoccupied ever since, Concord's lease for the
property having a number of years yet to run.
On about July 10, David Caplan of Concord spoke to
Samuel Sales of S.N.S. and said he wished to send some of
his work to him right away. Sales agreed to do it, and the
material began to arrive at the S.N.S. plant in a few days.
The two men, Caplan and Sales, had spoken some months
earlier while Caplan was canvassing the market for prices,
and the understanding in July was Concord would pay
what price Sales had quoted earlier. S.N.S. has since that
time continued to do precisely the kind of work previously
performed by some of Concord's former employees at
North Bergen-receiving all kinds of fabric, rolling, cutting
and folding it, storing it, and sending it, on instruction
from Concord, to the purchaser consumers, retail and
wholesale, of Concord.
Agents of the Union talked to Concord officers after the
closing of the North Bergen operation, attempting to
persuade them to reopen it, to rehire some if not all of the
discharged employee members of District 65. The employ-
ees of S.N.S. are represented by another union, Textile
Workers of America. Unable to persuade Concord to
revert to its old method of doing business and to hire its
members again, District 65 decided to resort to indirect
pressure to achieve its objectives, i.e., to prevail in its
dispute with Concord, the primary employer. As Vice
President Al Dicker, of District 65, said at the hearing:
". . . we were going to be hitting Concord all over, that
would be at dye plants, finishing plants, other locations
where they had any goods and in those locations the Union
was going to try to stop all goods from coming out."
Perhaps a week after S.N.S. had begun doing Concord's
work, Dicker told Sales that District 65 would picket his
place of business unless S.N.S. ceased doing business with
Concord. Sales refused to do so. On September 7, the
Respondent established a picket line in front of the S.N.S.
plant; it remained there until late November, and was
removed in compliance with a Federal district court
injunction restraining picketing. A very substantial number
of scheduled deliveries to S.N.S. by truck were not made
during the picketing because the drivers of the trucks,
employed by other companies, refused to cross the picket
line. On September 7, District 65 also, for the first time,
The activities of the Respondent vis-a-vis Newburgh and Pinto were
added to the complaint as proposed amendments during the first stage of
this hearing , on November 27, 1973, and the hearing was then adjourned to
established a picket line at the now 1 month vacant
Concord building in North Bergen.
In late August, Dicker also went to the premises of Pinto,
in Brooklyn, and told one of the partners, Arthur Pinto,
District 65 would picket his shop if Pinto did not stop
doing business with Concord. Pinto refused, saying such a
concession meant discharging about 75 percent of his total
complement of employees. Dicker then proposed a way out
for Pinto: If that company would agree not to ship out
from its premises any of Concord's goods-i.e., receive it,
process it, completely prepare it, store it, but never send
any of it to Concord' s customers as it had always
done-District 65 would not picket the place. After
thinking about the threat of the picket line, Pinto yielded to
the half measure, indirect restraint upon its business. But
when Dicker proposed having a few of his men wander
about inside Pinto's shop to be sure no Concord fabrics
ever left the place, Pinto balked again . In the end it was
agreed, still, of course, as the alternative to the pure and
simple picket line threat, that District 65's representatives
would stand outside the building at the loading docks and
check out each and every carton of fabrics leaving the
premises to be certain nothing ever went out that belonged
to Concord. The agents of District 65, varying in number
from two to six each day, have been picketing Pinto's
premises ever since, and were still there on the last day of
the hearing in this case , on January 21, 1974. And all of
Concord's fabrics, on which Pinto's employees have
worked throughout the entire period, were simply standing
idle in that plant, with District 65 effectively enforcing its
will upon the Pinto operation and its employees.
On November 8, 1973, Patton, another District 65 vice
president, went to the offices of the Newburgh Dyeing
Company, in Newburgh, New York, and invited that
company to cooperate with the Respondent by discontinu-
ing the business it was doing with Concord. When James
Paladino, of Newburgh, refused, Patton said he would
picket the plant. On November 12, 1973, District 65
established pickets at Newburgh' s premises ; they were still
there on January 21, 1974. Paladino's best recollection of
the legend on the picket signs was : "Concord Fabrics on
strike. Newburgh Dye is doing work for Concord Fabrics.
Please do not handle piece goods. District 65." The pickets
effectively interfered with normal deliveries to that
company, even as late as 1 week before January 21.
B. Conclusions,- Purported Defenses
I find , as alleged in the complaint, that by threat to
.picket their premises, as voiced by Dicker to S.N.S. and
Pinto, and by Patton to Newburgh, and by conduct of
District 65 in picketing the premises of S.N.S. and
Newburgh and in placing "observers" at the entrances of
the Pinto plant, the Respondent violated Section
8(b)(4)(ii)(B) of the Act. I also find that by placing the
pickets as set out above, and the "observers" at the Pinto
premises, the Respondent violated Section 8(b)(4)(i)(B) of
the Act.'
No clearer picture of secondary, as distinguished from
afford the Respondent adequate time to respond to the added unfair labor
practice allegations . Thereafter Newburgh filed its own charge against the
Respondent-Case 2-CC-1304 in the New York Regional Office and Pinto
(Continued)
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
primary, pressure upon employees and employers could be
proved than is shown on this record. The employees of all
the three companies-S.N.S., Newburgh, and Pinto-are
represented by unions other than District 65. However the
Respondent's remaining disagreement with Concord in
August and thereafter be named-even assuming there can
be a "labor dispute" with an employer no longer engaged
in the business whose employees were once represented by
a labor organization-there simply existed no labor dispute
between District 65 and the other companies. All that the
Respondent wanted of them, as evidenced not only by the
clear facts but indeed by Dicker's own words to them at
the time of the events, was that they literally "cease doing
business" with its primary opponent--Concord.2 New-
burgh and Pinto were doing no more in 1973 in their
business relationships with Concord than they had been
doing for years. To S.N.S. Concord became just one more
customer among the many it always had. These were the
true innocent bystanders whom the statute was expressly
intended to insulate from the labor disputes of others. The
Respondent's determination to force Concord to do
business in accordance with the economic concepts
deemed proper by the Union, regardless of the method
-lawful or unlawful-it cared to use, is beyond question,
and its widespread and total disregard for the statutory
proscriptions must be stopped.
A number of arguments are made in defense, some based
upon conclusionary assertions bearing virtually no rela-
tionship to the facts. The major one seems to be that
S.N.S., if not the others, was not a neutral, or secondary
employer, but an ally of Concord in its dispute with
District 65. The support for this "ally" theory is said to be
the following facts, or asserted facts: (1) S.N.S. knew of
Concord's intention to close the North Bergen plant before
June 30, the expiration date of the Respondent's contract;
(2) Concord once suggested S.N.S. might leave its own
premises and take over the Concord lease at North Bergen,
to do both its [S.N.S.'] own business plus what it might do
for Concord under contract; (3) Concord and S.N.S.
discussed the idea of Concord later doing business with
S.N.S. while District 65 was talking the problem over with
Concord during April and May; (4) District 65 was on
strike against Concord while S.N.S. was doing "struck"
work. These assertions, plus others only hinted at obliquely
by Respondent's counsel and Dicker at the hearing,
bespeak a "clean hands" theory of defense, and it is that
somehow Concord defrauded the Union in closing the
shop, was dishonest in claiming economic need,3 did not
deal with it in good faith-honestly make a fair effort at
preserving the jobs of the Union's members. At one point
the Respondent disclaimed such a theory-that miscon-
did the same in the Brooklyn Regional Office-Case 29-CC-396 These
charges apparently were filed as prerequisites for further application by the
General Counsel for injunctions under Sec . 10(1) of the statute in the United
States District Court for the Southern District of New York. The two cases
were then transferred by the General Counsel to the Board 's Newark
Regional Office and joined with Case 22-CC-549 in the proper interests of
administrative regularity.
2 The pertinent language from the statute reads as follows:
It shall be an unfair labor practice for a labor organization or its
agents ... (4)(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the course of
duct, whether criminal misbehavior or statutory unfair
labor practices, by the primary employer excuses secondary
action-threat or inducement-by the Union against
neutral and secondary companies. But I view the totality of
the defense as no more than just that; in fact the
Respondent filed Labor Board charges against Concord
alleging it violated Section 8(a)(3) and (5) of the Act by
refusing to bargain with it in good faith, and by dismissing
its employees. The charge was dismissed.
But the law is clear in any event. "To the extent that this
defense amounts to a reliance on a `clean hands' doctrine,
it is rejected; the fact that an employer may be violating
the Act is no justification for proscribed conduct by a
union, either in retaliation or in defense." United Mine
Workers of America, 160 NLRB 913. "No matter how
legally unfair the primary employer's conduct may be the
union may not use the weapon, either in retaliation or
defense, of a proscribed 8(b)(4XA) and (B) picket line."
Superior Derrick Corp. v. N.LRB., 273 F.2d 891 (C.A. 5,
1960). And even where the primary employer is in fact
engaging in conduct violative of Section 8(a)(3) and (1) of
the Act, it does not excuse illegal conduct in violation of
Section 8(b)(4) by a Respondent Union. "One unfair labor
practice does not excuse another." Plumbers Union of
Nassau County, Local 457, 131 NLRB 1243.
The record does not clearly reflect the exact wording of
the signs carried by the pickets at either S.N.S. or
Newburgh. Sales, of S.N.S., recalled the picket legend as:
"Concord on Strike. S.N.S. Doing Work Formerly Per-
formed by Concord Employees. Locked Out." Dicker
testified that the sign at S.N.S. read: "S.N.S. is an
economic ally of Concord Fabrics, whose employees are
on strike. Please do not patronize." It takes more than the
words of the Respondent's vice president, whether voiced
in defense at the hearing or written on his pickets' signs, to
prove the fact of a strike setting or the validity of a legal
argument. The ally theory of defense for secondary
picketing started with Douds v. Metropolitan Federation of
Architect (Ebasco), 75 F.Supp. 672 (D.C.N.Y., 1948), was
clarified in the Second Circuit Court, N.L.R.B. v. Business
Machines and Office Appliance Mechanics Conference Board
(Royal Typewriter Co.), 228 F.2d 553 (C.A. 2, 1955), and
was reaffirmed thereafter. The cardinal rule was once
stated that to be deemed a neutral the secondary employer
must at least appear to be "wholly unconcerned in the
disagreement between an employer [the primary one] and
his employees." The fact that District 65 was unable,
despite a certain amount of talk, to persuade Concord to
abandon its intention of closing down the North Bergen
operation, certainly can be said in the end to have
"concerned" S.N.S., for had the results of the talk been
his employment to use , manufacture, process , transport, or otherwise
handle or work on any goods, articles, materials, or commodities or to
perform any services ; or (ii) to threaten, coerce , or restrain any person
engaged in commerce or in an industry affecting commerce , where in
either case an object thereof is . . . (B) forcing or requiring any person
to cease using, selling , handling, transporting, or otherwise dealing in
the products of any other producer, processor , or manufacturer, or to
cease doing business with any other person ... .
3 The Respondent 's offer to prove that in a trade journal published
during the events it was reported that Concord Fabric, Inc., was operating
profitably was rejected.
DISTRICT 65, DISTRIBUTIVE WORKERS
otherwise it would not -have acquired another customer to
work for. But this is not the "concern" of which the cases
speak. All S.N,S: did was establish a business relationship
with Concord as it already had with any other customers.
"Since the object of every secondary boycott is really to
cause a cessation of business between two independent
companies, the Labor Act's prohibitions would be nullified
if a union were allowed to claim that the very business
relationship it seeks to end makes both parties `primary'
employers," N.L.R.B. v. Milk Drivers Local 584, 341 F.2d
29 (C.A. 2, 1965), enfg. 146 NLRB 509.
When canvassing the market to learn what it would cost
his company to have the North Bergen work performed
under contract by strangers, Caplan toyed with the idea
S.N.S. might move right into the Concord leased building.
This, of course, would have meant moving the S.N.S.
employees into the Concord plant, using perhaps some of
Concord's existing machinery, and merging with, or maybe
just replacing, the old cadre of employees with a new
group. Aware that this would create problems, Sales, of
S.N.S., had the officers of District 65 discuss the idea with
agents of TWA, the union representative of his own
employees. Discussion led nowhere, and Sales washed his
hands of the entire proposal; he was not going to embroil
himself with the troubles of Concord. And when he did
accept Caplan's offer to send him work, he simply mingled
Concord's work with that of his other customers, continued
to use the same employees he always had, and made no
change whatever in his method of operations.
As to the idea S.N.S. was working on "struck" goods and
thereby made itself an ally of the primary employer, the
assertion really merits no comment at all. There was no
strike; all that happened is that the primary employer
made an economic decision, carried it through, and
discontinued a business operation where once District 65
had a representative status. To characterize some union
members patrolling an abandoned building as strikers is to
mouth words without meaning .4 Sometimes the collective-
bargaining process works to the advantage of a union;
sometimes it does pot. The resultant reality is not altered
by the possibility the employer representatives may have
asked the bargaining agent , during negotiations, not to
strike. None of the principles of Ebasco, Royal Typewriter,
et al.,!are apposite at all. And this is equally true of Brewery
Workers Union, No. 8, 148 NLRB 728, the Board decision
primarily cited by the Respondent. The one thing that
surely cannot be said of the case at bar is that any of the
secondary employers "knowingly does work which would
otherwise be done by the striking employees of the primary
employer."
The Respondent moved for dismissal of the entire
complaint on the ground that all these companies are part
and parcel of the garment industry, excluded, it is argued,
by statutory proviso from application of Section 8(b)(4)(B)
of the Act. A considerable amount of cloth and other
4 Warehouse Union Local 6, 153 NLRB 1051, 1064
5 And shortly after Pinto filed its charge against the Respondent, an
agent of Teamster Local 707 appeared at its dock while a truck belonging to
Carolina Freight was unloading a shipment of fabrics being delivered to
Pinto The Teamster agent told the driver to stop what he was doing, and
explained to Pinto the reason was because his local was in sympathy with
District 65. The truck was unloaded and the material driven away. I credit
473
fabrics produced, processed, and sold to consumers and
other enterprises by these companies is eventually used in
the garment industry, in the production of clothing. The
proviso in question, however, is expressly limited to
"persons in the relation of a jobber, manufacturer,
contractor, or subcontractor working on the goods or
premises of the jobber or manufacturer or performing parts
of an integrated process of production in the apparel or
clothing industry." And the legislative history clearly
shows it was intended to relate only to the integrated
process of production, that is, designing garments , cutting
cloth to size and pattern, operating sewing machines, and
the complex ownership of the clothing itself, enmeshing
owner and contractor into a single ball of wax. Congres-
sional provisos are to be read literally, and not to be
expanded on a case-to-case basis. Were there any merit to
this defense of the Respondent, it would follow any textile
producing mill in the country, to say nothing of chemical
producers of yarn synthetics and the cotton fields,
themselves, could be picketed by a union seeking to
enforce economic demands upon a clothing manufacturer
in New York City.
Dicker testified, at the hearing, that the Pinto Company,
with no pressure at all from District 65, volunteered to
cooperate by freezing all Concord's merchandise in its
plant, and in that way hamstringing the business Pinto
used to do work with Concord. Dicker did not in so many
words say it was Pinto's idea and not his, that the business
between the primary and the secondary company be cut
off, but he spoke as though that fact were understood. I do
not believe the hinted purport of his words, and I would
not have believed him had he spoken clearly and
unequivocally to that effect. Dicker even tried to make it
appear it was Mr. Pinto who desired to have the
"observers" of District 65 stand at his loading dock and
inspect every carton leaving the place.
I rather credit Arthur Pinto. He quoted Dicker as saying
if the Pinto Company did not stop doing Concord's work,
"he [Dicker] would put pickets around our place." It seems
that in Pinto's mind, in Brooklyn, unlike the city of
Newburgh, the pickets of District 65 might be very
effective and as he did not want to release his employees,
he agreed to the checkout system to be supervised by
Dickey's agents . In November, when the Federal court
injunction issued against District 65, Concord called Pinto
to say it was now free to ship out the material, because
District 65 could no longer legally restrain anyone. Quickly
Pinto tried to do this, but as it was loading up a truck to
ship out, Dicker called to say stop because as he read the
injunction it gave relief to S.N.S. but not to Pinto. Again
Pinto put the stuff back in the attic. It then filed its own
charge against District 65. This was hardly the behavior of
a secondary employer anxious to surrender its neutrality,
or enthusiastic to join forces with a stranger union.5
That the Respondent threatened one neutral company
Arthur Pinto's testimony that he then called Dicker to complain about
interference with deliveries into the plant, and that Dicker ". . . said that
the reason he's stopping the trucks from coming in, because we filed a
petition for an injunction." The "petition for an injunction," of course, was
reference to Pinto's charge to restrain the secondary pressure by the
Respondent
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after another is so clear on this total record that of course it
also appears from Dickey 's testimony even where he
attempted to obscure it. On cross-examination Pinto's
"cooperation" was voiced as follows according to Dicker:
"... Arthur Pinto said he would not ship out any Concord
work, but he wanted all of Concord 's work to go in there
without any interference , because he said he would not
have to lay off anybody."
Pinto's cooperation with District 65 was surrender to
pure threat . It would demean the judicial process to
explain at length why there is no merit in the ultimate
defense that because the victim of improper conduct
bowed docilely and accepted what at the moment seemed
its inevitable lot, the illegal hurt to which he was subjected
must be excused . And the Respondent's "observers," also
placed at the entrances of Pinto's place of business to
enforce the Respondent 's demand that Concord's material
not leave the premises , were no more than pickets under
another name . They no less induced and encouraged
Pinto's employees not to work at their normal task than
any pickets who ever walked a picket line. When early in
December Arthur Pinto believed District 65 had been
enjoined from imposing its will upon other companies, it
had its employees load a truck with Concord 's goods.
Those same employees then had to unload the truck
because the "observers" reported to the high officers of the
Respondent , who saw to it that the observer 's function was
honored.
IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the operations of all
four of the companies discussed above , have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent and its agents have
engaged in certain unfair labor practices, the statutory
scheme requires that an order be entered requiring them to
cease and desist from such practices. The violations of the
proscriptions of the statute revealed on this total record are
so flagrant and extensive as to show a total disregard for
the dictates of law . The Respondent must therefore be
enjoined not only to cease and desist from hereafter
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
violating Section 8(bX4Xi) and (iiXB) with respect to
S.N.S., Newburgh , and Pinto and the employees of these
companies, but also with respect to any other companies
and their employees which do business with Concord
Fabrics, Inc., wherever and whenever they operate. The
Respondent, in the circumstances , must also be ordered to
cease and desist from such conduct with respect to any
other employers or employees.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I recommend the following:
ORDER6
Respondent, District 65, Distributive Workers of Ameri-
ca, its officers , agents , and representatives, shall:
1. Cease and desist from inducing or encouraging
individuals employed by S.N.S. Distributing Service,
Newburgh Dyeing Company, Pinto Service Corporation,
or any other individuals employed in an industry affecting
commerce , to refuse in the course of their employment to
perform services for their employers , and from threatening,
coercing, or restraining the said employers or any other
employer with an object of forcing any of the above or any
other person or employer engaged in an industry affecting
commerce to cease doing business with Concord Fabrics,
Inc., or with any other employer engaged in an industry
affecting commerce.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix ." 7 Copies of said
notice, on forms to be furnished by the Regional Director
for Region 22, after being duly signed by an authorized
representative of District 65, Distributive Workers of
America, shall be posted immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to its members are customarily posted . Reasonable
steps shall be taken by Respondent to insure that notices
are not altered , defaced, or covered by any other material.
(b) Sign and mail sufficient copies to the Regional
Director for Region 22, for posting by S.N.S. Distributing
Service, Newburgh Dyeing Company , and Pinto Service
Corporation, such employers being willing, at all places
where notices to their employees are customarily posted.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
7 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."