Joint Board, Cloak, Suit, Skirt etc., ILGWU

National Labor Relations Board - Board Decisions

Feb 26, 1963

140 N.L.R.B. 1428 (N.L.R.B. 1963)

1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
18-B, United Furniture Workers of America, AFL-CIO, or any other labor
organization
WE WILL NOT threaten to discharge our employees, curtail their hours of
work, eliminate paid holidays, overtime work, and bonus money, or threaten
to discriminate against them in any other manner because of their union or
concerted activities.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice or not to engage in any
union activities.
All our employees are free to become or remain members of Furniture and
Bedding Workers Union, Local 18-B, United Furniture Workers of America, AFL-
CIO, or any other union, and they are also free to refrain from joining any union
unless in the future we should enter into a valid union-shop contract with a union
which represents our employees.
PLAYSKOOL MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Reprosentative) (Title)
This notice must remain posted for 60 days from the date of posting, and must
not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176 West
Adams Street, Chicago 3, Illinois, Telephone No. Central 6-9660, if they have any
question concerning this notice or compliance with its provisions.
Joint Board , Cloak, Suit, Skirt and Reefer Makers Union, Inter-
national Ladies' Garment Workers Union , AFL-CIO and Free-
Play Togs , Inc. Case No . 2-CB-3405. February 26, 1063
DECISION AND ORDER
On November 13, 1962, Trial Examiner John F. Funke issued his
Intermediate Report in the above-entitled proceeding, finding that Re-
spondent 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 attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief. Respondent also filed a brief.
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 [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, and the entire record in the case, including the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
i Except, however, that we do not adopt his comments relating to the issuance and prose-
cution of the complaint appearing in footnotes 27, 28, and related portions of the Inter-
mediate Report These are clearly unnecessary and extraneous to the decision of the case
140 NLRB No. 144.
JOINT BOARD, CLOAK, SUIT, SKIRT, ETC., ILGWU 1429
[The Board dismissed the complaint.]
MEMBER RODGERS, concurring :
I concur in the result.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed March 16, 1962, by Free-Play Togs, Inc., herein called Free-
Play, against Joint Board, Cloak, Suit, Skirt and Reefer Makers Union, ILGWU,
AFL-CIO, herein called the Joint Board or the Respondent, the General Counsel
issued complaint and amended complaint alleging the Respondent had violated
Section 8(b) (1) (A) of the National Labor Relations Act, as amended. This pro-
ceeding, with all parties represented was heard before Trial Examiner John F. Funke
at New York, New York, on September 11, 12, and 13, 1962.
The complaint alleged, in substance, that Respondent, on or about March 14, 1962,
established a picket line at the premises of Free-Play and thereafter attempted to
block and blocked egress to the premises; inflicted and threatened to inflict bodily
harm upon employes of Free-Play and other persons; threatened employees of other
employers with bodily harm and with loss of jobs.
The answer denied the commission of any unfair labor practices.
At the conclusion of the hearing the General Counsel submitted oral argument i
and a brief was received from counsel for Respondent on October 12.
Upon the entire record in this case, and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Free-Play is a New York corporation maintaining its principal office and place of
business at 106 West 32d Street, New York, New York. It is engaged in the manu-
facture, sale, and distribution of children's sportswear and related products. Dur-
ing the past year Free-Play sold and distributed products valued in excess of $50,000
from its New York plant of which products valued in excess of $50,000 were sold
and shipped to States other than the State of New York.
I find that Free-Play is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
On March 13, 1962,2 Max Horowitz and Bernard Saslaw, manager and assistant
manager of the organization department of the Joint Board, decided, for reasons which
are not germane to this proceeding since the object of the picketing is not an issue
under Section 8(b) (1) (A), to establish a picket line at Free-Play. Morton Beckler
was appointed to supervise the picketing and Barnet Lazarus and Paul Rosa were
selected as alternate pickets (The weather in March of 1962 was inclement in New
York and the pickets were to spell each other every hour or as they saw fit.) On
testimony which I credit, I find that Beckler, Lazarus, and Rosa, after receiving in-
structions with respect to their conduct on the picket line,3 left the Joint Board
offices about 11:30 a.m. on the 13th, went to Bickford's for lunch, and arrived at
Free-Play about 1:30 p.m. Contrary to the testimony of witnesses for the General
Counsel, I find that only one picket sign was prepared and used for the picketing
and that no more than one picket was on duty at any one time. It is true that during
the first week Beckler was present daily but only for 1 to 11/2 hours Beckler left on
- It is now the practice In certain regions to submit oral argument in lieu of briefs It
should be stated that oral argument does not and cannot present the facts with the same
clarity nor the argument with the same cogency as does a brief.
3 Unless otherwise stated all dates are 1962
3I do not find the instructions given the pickets relevant to determination of the issues
herein The record does not contain any evidence that any of the instructions received
directed them to engage in any unlawful conduct.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation on March 23 and after he returned he visited the picket line only when
requested by Saslaw and the visits lasted, according to his testimony, no more than
20 minutes to one-half hour .4 The pickets themselves testified that as each picketed
he would remain near the curb, would not enter the building lobby, and would con-
fine the picketing to the length of the building entrance, stipulated as 44 inches. This
testimony , although contradicted , in certain instances , 1 credit as to the general
conduct of the pickets.
The incident upon which General Counsel relies to prove violation of Section
8(b)(l)(A) were separate and unrelated except, of course, that taken in toto they
might show a pattern of continuing coercion , a contention the General Counsel urged
with some zeal.
The testimony of the witnesses for the General Counsel will be reviewed as those
witnesses appeared, together with the rebutting testimony of the witnesses for
Respondent.
1. The testimony of John Mailas
John Mailas, 53 years old, testified that he had been a delivery boy for Mohawk
Button Company for approximately 15 years and that on March 19 5 he was given a
package to deliver to Free-Play. (It was his first delivery to Free-Play.) Arriving
at the premises, he testified that two men were standing inside the doorway wearing
picket signs; that they asked him where he was going and that when he told them he
was making a delivery to Free-Play they told him he could not go in, that Free-Play
was on strike. He then went to the restaurant next door and called Alfred Moses,
president of Mohawk, told him the pickets would not let him enter, and was told to
wait in the restaurant. Later a Free-Play employee came and took the package from
him. The two pickets then asked him if he had called his boss and when he said he
had he testified that they said they would break his neck and chased him to Sixth
Avenue. Asked if he could identify the men (Beckler, Rosa, and Lazarus were in
the hearing room), he identified Lazarus as the picket who chased him but could
not identify the other, in fact he stated he was not in the hearing room. On three
or four subsequent occasions he made deliveries to Free-Play without incident.
Lazarus, the only picket identified, is 65 years old, 5 feet 2 inches in height, and
weighs about 180 pounds.6 (Lazarus also had quit work as a cutter because of
rheumatism and heart trouble.) Lazarus testified he had never seen Mailas, that he
never stopped Mailas or anyone else from entering the building, that he never
threatened anyone with bodily harm and that, since he could not run (a fact apparent
from the difficulty he had in walking to the witness stand), he could not chase
anyone.
Even apart from demeanor I must credit Lazarus. I have credited the testimony
that only one picket was on duty at any one time and that only one picket sign was
prepared and used, yet Mailas, who could not read, testified that there were two
picket signs as well as two pickets. I think it clearly incredible that two pickets,
whom he testified were about 70 years old, would threaten to break his neck and chase
him down the street, particularly since the one whom he identified as chasing him
was unable to run . Moreover there are serious inconsistencies between Mailas ' testi-
mony and his pretrial affidavit. In his affidavit he stated that he took the package
back to his boss, Moses, and told him what happened. In testifying, however, he
stated he called Moses and then waited and gave the package to the Free-Play em-
ployee and that he did not tell Moses he had been threatened or chased. Again I
find it incredible that if he had been chased to Sixth Avenue and threatened with a
broken neck, he would not have told Moses. These are not commonplace events in
life, even in New York. Apparently, too, he had no hesitation about making the
subsequent deliveries which were made without incident. I have some difficulty in
believing that the witness, who could neither read nor write, had a sufficient flare for
fiction to devise the entire scenario , but I would have no means of determining where
fact left off and fiction began. Moses, who testified for the General Counsel, was
not interrogated as to what Mailas told him on the telephone or what he told him
when he returned to the shop. This failure to make use of available corroborative
testimony is significant.
I therefore find a lack of sufficient credible testimony to support the charge Re-
spondent violated Section 8(b) (1) (A). An incongruity between testimony and
S There is no contradiction of Beckler's testimony and, on the record, there is no reason
why he should have remained at the picketing area
5 The discrepancy between the date of March 19 given in his testimony and the date of
March 28 given in his pretrial affidavit I consider inconsequential
6 Mailas testified that one picket (Lazarus) was about 70 to 75 years old and the other
about 70.
JOINT BOARD, CLOAK, SUIT, SKIRT, ETC., ILGWU 1431
proven physical facts is a better ground for resolving credibility than demeanor, for a
liar may be convincing and an honest witness hesitant and inconsistent. Physical
facts, on the other hand, once established, cannot be altered. In this instance
incongruity and demeanor both lead to a rejection of Mailas' testimony.
2. The testimony of Helena Freeman and Pendola
Helena Freeman, secretary-treasurer of Free-Play and wife of the owner, testified
that on March 23 she was awaiting a shipment when she saw an Eastern Freightways
truck pull up to the entrance and she and Michael Walker, Free-Play's shipping clerk,
went down to the truck. According to Mrs. Freeman, Walker went over to the truck
and two pickets, whom she identified as Lazarus and Rosa, followed, as did she.
Walker asked the driver to drop the shipment, at which point the pickets told him not
to deliver, that Free-Play was on strike, to which Mrs. Freeman replied they were
not on strike. The driver, Paul Pendola, then asked to see the sign, which was rest-
ing behind a fire hydrant. He read the sign and told the pickets their union did not
recognize his union, that he did not believe the Company was on strike, and that he
would make the delivery. At this point the pickets, still according to Mrs. Freeman's
testimony, asked Pendola for his license number, his union card, his name, and
threatened to have him fired. The driver then dropped the shipment and Walker
picked it up and brought it in.
Paul Pendola, a truckdriver employed by Eastern and a member of Teamsters Lo-
cal 506, testified that when he pulled up at Free-Play on March 23 Mrs. Freeman and
Walker came to the truck and Mrs. Freeman asked him to pull around the corner
because "they" were having a little trouble and her man would pick up the delivery
there Pendola, a young man of robust physique, said he would be the judge of that
and that as he walked over, two men, Lazarus and Rosa, identified by Pendola as
"the two little guys," asked him not to make the delivery In his own words, "So I
just glanced [at the sign]-I happened to see the International Lady Garment Work-
ers Union and I got a personal beef against them, so I says, `Well,' I said, `this thing
will be delivered"' He then told Mrs. Freeman, "'Lady,' I says, `there is no trouble,
nobody is bothering me or nothing: I am going to drop the packages off, that's it."'
He then dropped the packages off and gave them to Walker. As to what the pickets
said to him Pendola stated, "Me only thing, one of them says to me, he said, `Look,
we will take your license number down, and you know you could get into trouble,'
which . . which any picket I come across will tell you the same thing out of a
thousand unions that I know of." He further testified that, ". . . nobody used any
violence on me. They wouldn't have got away with it to start with" and that the
only thing that was said to him was, "Driver, we will take your plate number down
and you could get into trouble."
While I believe Mrs. Freeman was a truthful witness I believe Pendola's version
to be the more accurate one.7 Pendola had no hesitancy in testifying, apparently
recalled the incident in full detail, and showed some relish in retelling it. I credit his
testimony. From that testimony it is not only evident that he was neither restrained
nor coerced but that he was contemptuous of the pickets 8 and their requests and
would have welcomed any show of coercion
Since the pickets had no authority over Pendola's employment nor, it may be
assumed, over the Motor Vehicle Bureau of the State of New York, I find their
threat to have him fired, if made, and their request for his license number void of any
significance.
As to this incident I find an utter failure to establish a prima facie case.
3. The testimony of Michael Walker
Michael Walker, employed as a shipping clerk by Free-Play and a member of the
Amalgamated Textile Workers, was a witness for the General Council.
Walker testified that when he went to work about 8:45 or 9 a.m. on March 13,
he saw three pickets outside the building at 106 East 32d Street. He identified
them as Beckler, Lazarus, and Rosa. As Walker approached the building Beckler
asked him where he was going and when he said to the second floor Beckler told
him he was not going up, the shop was on strike. Walker said he was going up anyway
and went. He then testified that as he was going to lunch about noon he saw six
7 Walker, although a witness for the General Counsel, was not interrogated as to this
delivery although she was present, according to Mrs. Freeman. I can only assume that
his testimony would not have corroborated her testimony.
8 Rosa, the other picket, was, like Lazarus , 5 feet 2 Inches, but weighed only 120 pounds.
He was 57 years old.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pickets 9 at the entrance, identified as the three who were there in the morning and
Saslaw, Weiner, employed by Respondent as a chauffeur, and another identified only
as a Puerto Rican. Walker stated that Weiner 10 followed him into Drake's cafeteria
and asked him, as a favor, not to take packages out for his (Walker's) boss. Weiner
also told him he would get him a better job and insurance plan and showed him a
Blue Shield and Blue Cross card which the Union had to offer him. Walker walked
away and that concluded his contacts with representatives of the Joint Board on the
first day of picketing.
Walker testified that on March 14 between 10:30 and 11 a.m. he was entering the
building with a package on a handtruck. Beckler, Lazarus, and Rosa were again
at the building entrance. Beckler told him he could not go in because the place
was on strike and that if his union came in the shop Walker would be going out.
Walker went into Drake's and called Freeman, who came down. Walker then took
the handtruck with the package into the building and, as he did so, Beckler nudged
him in the chest with his shoulder. Beckler had both his hands in his overcoat
pockets when he nudged him and Walker told him if he did it again he would
"knock him on his ass." 11 Freeman was present when this occurred but was not
called by the General Counsel to corroborate Walker. The delivery was made.
On the next day, March 15, Walker was entering the building with his handtruck
when Beckler shook his head at him and said, "You will get a vacation sooner than
you expected."
On March 23, Free-Play was expecting a delivery by Preston Trucking Company
and Walker went down to the street to meet the truck. When it arrived Walker told
the driver to open the doors and throw off the shipment. While he was talking to
the driver the pickets (Lazarus and Rosa) came over and Rosa told the driver he
would lose his license and his job because the shop was on strike. The driver asked
Walker if he was afraid and Walker told him no. When the driver failed to throw
the shipment Walker went to get Freeman. Freeman (not called as a witness to this
incident either) mounted the truck and pushed the cartons toward the doors.
According to Walker the pickets were trying to push the cartons back but since they
weighed 300 to 400 pounds the pickets got out of the way when the cartons dropped.
Walker delivered them into the building on his handtruck.
On April 16, Powers Trucking Company made a delivery to Free-Play. Walker
testified that he crossed 32d Street to meet the driver when Rosa came over and told
the driver not to make the shipment because Free-Play was on strike and he (the
driver) would lose his job and his license. When Walker took the carton off the truck
and put it on his handtruck Rosa told him he could not do that because he was
breaking the picket line and pushed his hand (Walker later changed his description
from "pushed" to "shook") in Walker's face. Walker pushed the hand away and
told Rosa he would "knock him on his ass" if he did not get his hand out of his face.
Walker then took the carton into the building.
This concludes the testimony of Walker.
4. The testimony of Raymond Santana
Raymond Santana, a delivery man for Alps Paper Co., was a poor witness. He
was highly nervous on the stand and spoke English with great difficulty. His testi-
mony, as recorded, is inconsistent, contradictory, and at times incomprehensible.
On direct examination Santana testified that sometime in March 12 he was given
a delivery to make to Free-Play. The best that can be made of his testimony is
9 It is apparent from his testimony that Walker considered any union agent in the area
of the building to be a picket. The Joint Board, on the other hand, restricted the term to
the picket actually on duty and carrying the picket sign at any given time In tine view
Beckler and Saslaw never engaged in picketing and Lazarus and Rosa alternated
no Weiner was a man in late middle age of stocky build He could not, unless armed,
constitute a physical threat to Walker.
11 Walker was a young man, 6 feet 1 inch, in height, weighing 175 pounds, who had been
a track athlete and done some boxing whether amateur or professional was not disclosed
Freeman was a tall, heavy-set man who appeared to be about Beckler's age, which
was 37. Beckler was 5 feet 10 inches, weighed about 180, and had to stop work as a
presser due to pains in his leg and back resulting from a piece of shrapnel lodged in the
muscle of his spine.
12 This date cannot be fixed On direct examination and in response to a leading ques
tion Santana said it was in March. ("I don't remember the day, I know March ") In
his pretrial affidavit, dated May 17, Santana fixes the time as "about 3 weeks ago."
(Respondent's Exhibit No. 4 ) This would fix the time as late in April
JOINT BOARD, CLOAK, SUIT, SKIRT, ETC., ILGWU 1433
that he arrived at the building with two cartons of paper on a handtruck, left the car-
tons and the handtruck on the sidewalk, and went into the building to find out on
which floor Free-Play was located. He testified that he saw two unidentified men 13
outside the building and met Rosa inside . Rosa, according to Santana, told him
to go back and when Santana asked him as a favor to let him make the delivery,
Rosa pushed him back with his hands. 14 (In another part of his testimony Santana
stated Rosa pushed his handtruck.) Santana said he was sorry and would go back
to his employer. Rosa told him not to come back.
Santana returned to Alps and told his employer he could not make delivery be-
cause, "I find one guy inside and two guys in the front of the door. They no want
me to go in. I know why." The employer then called Free-Play and told Santana
to return and ". . . wait for the guy [Freeman]. The man he very fat you know, so
you go there." Santana went and waited on the opposite side of 32d Street, where
Freeman met him and told him to come with him with the truck. Santana refused
("I can't please. I nervous and three people no want I go in , don't want it") and
Freeman took the handtruck into the building while Santana waited. When Free-
man returned the truck Santana returned to Alps. He made subsequent deliveries
to Free-Play without incident.
On cross-examination Santana elaborated on this incident. He testified that while
Freeman was making the delivery into the building "a fat guy" 15 came to the middle
of 32d Street, shook his fist at him,16 and said, "I no want to see any more delivery
in front of this building." 17
I cannot credit the testimony of Santana. Not only was it too inconsistent and
unintelligible to support an affirmative finding without the corroboration of inde-
pendent evidence but, as to the pushing incident, it was in direct contradiction to his
own affidavit. As has been stated, Santana was highly nervous on the stand, it was
not certain that he understood the questions, his answers were garbled and dis-
jointed, and his recollection was obviously far from clear. His testimony as to
Lazarus, belatedly recalled, cannot be credited.18 No one aware of traffic condi-
tions on West 32d Street during working hours would believe that Lazarus, whose
mobility was severely restricted as he himself testified (in the jargon common to the
situs of the dispute Lazarus had "bum dogs"), would stand in the middle of that
street to shout threats or admonitions at Santana. Santana also gave, within a few
minutes, three different descriptions of the gesture made by Lazarus with his hand.
While I would not find that this testimony, if credited, would constitute a violation of
Section 8('b)(1)(A),19 it is rejected on the ground of credibility, even though the
pushing incident was not specifically denied by Rosa 20 (Lazarus denied ever seeing
or threatening Santana.)
11 Beckler and Lazarus were present in the courtroom during the entire hearing but
Santana stated they were not the men he saw . The complaint , with respect to threats
against employees of Alps , is restricted to threats made by Beckler , Lazarus, and Rosa.
14 In his pretrial affidavit, dated May 17, Santano relates this incident as follows •
About 3 weeks ago I was making a delivery to Free-Play Togs at 106 W 32nd St
Three men were standing in front of the building Two of them were young, one
was old . One of them asked me where I was going to. I said I was taking the eleva-
tor to the second floor He asked me where I came from I told him Alps Paper
Company, 474 10th Ave He said, "I don't want to see you in front of this building
again" I asked why He said, "Go, go I don't want to see you You have to
go back"
I got very nervous The men did not push me. They were wearing signs but I do
not know what they said [ Emphasis supplied ]
The affidavit was much closer in point of time to the incident involved than the testimony
16 Identified as Lazarus
16 Santana , on further cross-examination on this incident , changed his description to
indicate a waving, "go-away" motion of the hands and later to a finger - shaking gesture
of admonition.
lx No mention of this incident is contained in Santana 's pretrial affidavit.
'- I do not know if the General Counsel relies on this testimony to support the complaint
19To my knowledge, the Board has not yet held that oral admonitions, even voiced in
the imperative, by pickets to strikers to go away or not to enter the struck plant or not to
return unaccompanied by any threat of physical assault or any physical blocking of egrees
is in violation of the Act.
26 Rosa was not questioned as to Santana's testimony, either on direct or cross He
made a general denial that he ever stopped any delivery or threatened anyone. Ordinarily
a general denial will not serve to rebut specific affirmative testimony , but here the affirma-
tive testimony cannot be credited for the reasons stated
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Conclusions
Since the testimony of Mailas and Santana has been rejected on credibility grounds
and that of Freeman and Pendola has been found insufficient to support a prima facie
case, we have for consideration only the testimony of Walker.
It must first be noted that Walker's testimony that he saw the pickets about 9 a.m.
on March 13 and that Beckler told him at that time that the shop was on strike and
he could not go up is incorrect. Testimony which I have credited and as to which
there seems to be no doubt fixes the start of the picketing at Free-Play at no earlier
than 1 p.m. I must discredit this portion of his testimony.21
Walker then testified that at noon on that day he saw six pickets at the entrance
and that Weiner followed him into Drake's and made him the offer of a better job.
While the General Counsel does not contend, and I agree, that Weiner's offer of a
better job constituted restraint and coercion, he does suggest, and here I disagree, that
the offer contributed toward a pattern of conduct on the part of the Joint Board to
"ease" Walker out of his job. This incident, as alleged by Walker, also casts doubt
upon his credibility. Not only would it appear that Weiner (employed only as a
chauffeur) would not be in any position to offer a better job but Walker also testified
that Weiner offered him a better insurance plan and showed him a Blue Cross and
Blue Shield card. Since the Joint Board is self-insured Walker's accuracy, at least,
must again be questioned.
On March 14, Walker testified that he was carrying a package on a handtruck
and was met at the entrance to the building by Beckler, Lazarus, and Rosa Beckler
told him the place was on strike, that he could not go in , and that if the Union came
in Walker would go out. There is no evidence that the pickets (Walker's term)
made any physical effort to block his ingress into the building and, in fact, Walker
left his handtruck and went into the building and came back with Freeman Free-
man dwarfed both Lazarus and Rosa in size and had a clear advantage in weight over
Beckler. (The physical advantages of Walker over Beckler have been set forth,
supra, as have the physical deficiencies, including age, of Lazarus and Rosa.) It
is at this point that Walker, while wheeling the handtruck into the building, claimed
he was nudged by Beckler, who had both hands in his pockets. The nudge was
physically described by Walker at the hearing and the million and more New Yorkers
who ride the subways daily would gladly settle for assaults no more grievous than
that described by Walker. Yet it is this nudge which the General Counsel in his
oral argument described as "an intentional battery," "an unprivileged touching,"
and a "civil assault " Hyperbole, however, seems to be an occupational disease of
lawyers, undeterred by the normal restraints of patent absurdity. Since Freeman,
who was present at the hearing under subpena by Respondent, was not called as
a corroborative witness, and the testimony was denied by Beckler,22 I have doubt
as to the truthfulness of Walker's testimony Walker was not a disinterested wit-
ness. He was still in the employ of Free-Play at the time of hearing and from his
demeanor and his manner of testifying it was clear that he was not only anxious to
assist his employer's cause and the General Counsel's case but that he bore resent-
ment against the Joint Board and the pickets I see little reason, however, for re-
solving this issue on credibility The statement allegedly made by Beckler, that if
the Union came in Walker would go, could constitute no threat to Walker at that
time The Joint Board was not even attempting to organize Free-Play's employees
It had no contract and no means of implementing such a threat Assuming that in
the foreseeable future it obtained a contract with a union-security clause it had no
means of discharging Walker or of effecting his discharge except for reasons pro-
vided in Section 8(a) (3) of the Act 23
Assuming that Beckler nudged Walker as alleged, I would find that Beckler as-
sumed a risk far beyond the bounds of normal discretion and that Walker, far from
being coerced, could easily have carried out his threat to "knock him on his ass."
Nor can I find that Walker with Freeman present, could have been coerced by
Beckler, suffering from shrapnel lodged at his spine, Lazarus, suffering from rheu-
matics and a heart condition, and Rosa, weighing 120 pounds, acting in concert.
The next day Walker again met Beckler in the lobby of the building and Beckler,
with "a knowing shake of the head," told him, "You may get a vacation sooner than
21 Walker's testimony as to time was positive so doubt arises not only to the accuracy
of his testimony but to its truthfulness Since the General Counsel has not contended
that Beckler's statement, if made, constituted restraint or coercion no issue is posed
22 Both Rosa and Lazarus denied seeing Beckler come into physical contact with Walker.
23 Cf Arlan's Department Store of Michigan , Inc, 133 NLRB 802, where the union
threatening loss of jobs had a collective -bargaining agreement with the employer . ( Chair-
man McCulloch dissented on this point )
JOINT BOARD, CLOAK, SUIT, SKIRT, ETC., ILGWU 1435
you think." Apart from its ambiguity and Beckler's obvious lack of authority over
Walker's vacations or his job, I find this single isolated remark too trivial to warrant
discussion. Workaday rationality must sometime prevail in labor law, for no law
has such impact on the realities of livelihood.
Lastly, there are the two trucking incidents. Assuming the pickets told both
drivers they would lose their licenses and their jobs if they made their deliveries, I
find no possibility of implementation of either threat and accordingly no violation.24
I do not find restraint or coercion stemming from threats where the party threatened
is fully aware that the party making the threat lacks the power of consummation.
I reject Walker's testimony that Lazarus and Rosa attempted to keep Freeman
from unloading a 300- to 400-pound carton from the Preston truck as inherently
incredible. This testimony was not corroborated by Freeman but again I find a
sounder ground for resolving the credibility issue in the incongruity between the testi-
mony and established physical facts. As to Walker's testimony that Rosa told him
he was breaking the picket line when he unloaded the Powers' truck and either
pushed or shook his hand in Walker's face, this too is too trivial to merit discussion.
The rule of de minimis is not confined to jurisdictional issues in labor law.
The tentacles of bureaucracy have reached far to find so little. The total impact
on the free flow of commerce, were all the testimony of all the witnesses of the
General Counsel credited in full, was no more than might be occasioned by the over-
time parking of a single truck in this area 25 And were all these witnesses credited
in full the evidence of physical assault and threats of assault, taken in their sum,
would not warrant the attention of the cop on the beat 26 There is some cause
for wonder then why a Federal agency should be called upon to sit in judgment upon
such a case.27
In closing some sympathy should be expressed for the attorneys assigned to try this
case on behalf of the General Counsel since the record discloses that complaint was
issued on the basis of a unilateral investigation and that the agents of the Respondent
alleged to have committed the unfair labor practices, Beckler, Lazarus, and Rosa,
were never questioned during the investigation.28 The General Counsel's attorneys
presumably did not see Beckler, Lazarus, or Rosa before the hearing opened and
could not have foreseen the paradox confronting them in establishing that Beckler
assaulted or threatened Walker or that either Lazarus or Rosa assaulted or threatened
to assault anyone.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
24 As Pendola testified with respect to a similar threat made to him, " which any
picket I come across will tell you the same thing out of a thousand unions I know "
25 All deliveries were made and, apart from what might have been 1 hour's delay in the
delivery of Santana's package, the other delays were two in number and momentary in
time (One while Mailas made a telephone call and one while Walker went up to get
Freeman )
2e Only two instances of physical contact were alleged, one when Walker claimed he
was nudged in the chest by Beckler and one when Santana claimed Rosa either pushed
him or pushed his handtruck.
27 It has seriously been suggested, however, that one Trial Examiner is inadequate for
hearing cases such as this and that a three-member tribunal should sit en bane so that
the Board, already overworked, might enjoy, rather than one Intermediate Report, the
advantage of majority reports, concurring reports, reports concurring in part, dissenting
reports, and reports dissenting in part See Stuart Rothman, "In Search of Improving
the Administration of the National Labor Relations Act," September 20, 1962
28 Section 101.4 of the Board's Statements of Procedure provides, in part, as follows
The regional director requests the person filing the charge to submit promptly
evidence in its support As a part of the investigation hereinafter mentioned, the
person against whom the charge is filed, hereinafter called the respondent, is asked
to submit a statement in support of his position in respect to the allegations The
case is assigned to a member of the field staff for investigation, who interviews
representatives of the parties and other persons who have knowledge as to the
charges, as is deemed necessary.
Counsel for the Respondent sought to establish the character of the investigation by
testimony rather than rest on the naked allegation Robert W Leinei, attorney for the
General Counsel, was called as a witness, but was refused permission to testify The
General Counsel, as is his practice when the conduct of his office is questioned, took
refuge behind Section 102 .118 of the Board 's Rules and Regulations.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Free-Play Togs, Inc., is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Joint Board is a labor organization within the meaning of Section 2(5)
of the Act.
3. Respondent , the Joint Board , has not engaged in and is not engaging in
unfair labor practices within the meaning of Sections 8(b) (1) (A) and 2 ( 6) and (7)
of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
Truck Drivers & Helpers Local Union No. 728 , International
Brotherhood of Teamsters , and Southern Conference of Team-
sters, affiliated with the International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of America and
Brown Transport Corp . and Akers Motor Lines ; Atlanta-
Asheville Motor Express; Atlanta Motor Lines ; Atlanta-New
Orleans Motor Freight ; Benton Rapid Express ; Carolina
Freight Carriers Corporation ; Central Truck Lines ; Jack
Cole Company ; Custom Cartage Company ; Dance Freight
Lines ; Dixie Highway Express , Inc.; Dixie-Ohio Express, Inc.;
Gordons Transports , Inc.; Hennis Freight Lines, Inc.; Hoover
Motor Express ; Huber & Huber Motor Express ; Johnson
Freight Lines Company ; Johnson Motor Lines; Mason &
Dixon Lines; McLean Trucking Company ; Miller Motor Ex-
press; Murdock Freight Line ; Northern Freight Lines; Parts
Convoy Corporation ; Pike Transfer Company ; Pilot Freight
Carriers, Inc.; R .C. Motor Lines ; R.C.A. Truck Lines; Road-
way Express , Inc.; Rutherford Freight Lines , Inc.; Ryder
Truck Lines , Inc.; Ryder Truck Lines , Inc. of Tennessee; Ter-
minal Transport Company; T.I.M.E ., Inc.; Transcon Lines,
Inc. ; Wilson Truck Company, Parties to the Contract. Case
No. 10-CE-1. February 26, 1963
DECISION AND ORDER
On August 25, 1961, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondents, the General Counsel,
several parties to the contract, and the Charging Party, filed excep-
tions to the Intermediate Report and supporting briefs. On Decem-
ber 20, 1961, the Board heard oral argument in Washington, D.C.,
140 NLRB No. 137.