Morris Fishman & Sons, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1959

122 N.L.R.B. 1436 (N.L.R.B. 1959)

1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL INTERMEDIATE REPORT
On May 12, 1958 , I issued an Intermediate Report and Recommended Order in
this proceeding. Thereafter, by order dated September 10, 1958, the Board sus-
tained certain of the exceptions of the Respondent in connection with rulings made
at the hearing and directed the General Counsel forthwith to make available to the
Respondent such pretrial written statements of witnesses who testified for the General
Counsel as the Respondent might designate. Upon motion of the Respondent, the
Board, on September 30, 1958, ordered the reopening of the record and remanded
the proceeding to the Regional Director for the Twenty-first Region to arrange
further hearing.
On October 23, 1958, in San Diego, California, upon due notice, the hearing
was reopened before the duly designated Trial Examiner.
Witnesses Josephine Dobbs, Herlinda Rosas, Mercedes Gomez, and Maria Ajesus
Aguayo were recalled to the stand and subjected to further cross-examination by
counsel for the Respondent on the basis of their pretrial statements. Witness
Enrique Dominguez was present in the hearing room and available for cross-
examination but not recalled by the Respondent. Witness John Salazar was not
present. Counsel for the General Counsel explained that he had made diligent
effort to locate Salazar at his Tijuana, Mexico, address, without success. No
contention was made that Salazar wilfully or deliberately absented himself from
the reopened hearing.
Further cross-examination of Dobbs, Rosas, and Gomez developed certain slight
and unimportant inconsistencies between their pretrial statements and their testi-
mony as given in the original hearing. I find no reason on the basis of the further
cross-examination to change any finding in any respect based upon their testimony.
A motion by counsel for the Respondent to strike the testimony of John Salazar
because he was not made available for further cross-examination is before me for
ruling. Upon considerations that Salazar was cross-examined to the extent counsel
for the Respondent seemed to find desirable at the original hearing; that his pre-
trial statement although made available to counsel for the Respondent was not
offered in evidence as indicating any inconsistency existing between the contents
of the statement and the testimony given at the hearing; and that in these cir-
cumstances the interest of justice would not be served by granting the motion to
strike, the motion is denied.
In consequence, no change is here made in the findings of fact, conclusions of
law, or recommendations contained in my Intermediate Report and Recommended
Order of May 12, 1958 , in this case.
Morris Fishman & Sons, Inc. and Local 30, Philadelphia Leather
Workers' Union of the Fur and Leather Department , Amalga-
mated Meat Cutters & Butcher Workmen of North America,
AFL-CIO. Case No. 4-CA-1653. February 16, 1959
DECISION AND ORDER
On Aug ist 15, 1958, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.'
' The Respondent also requested oral argument. As the record , exceptions, and brief
adequately present the issues and the positions of the parties, the request for oral argu-
ment is denied.
122 NLRB No. 165.
MORRIS FISHMAN & SONS, INC. 1437
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed a
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, the brief, and the entire record
in the case, and finds merit in certain of the Respondent's excep-
tions.' Accordingly, the Board adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modifications set
forth below.
We agree with the Trial Examiner that the Respondent violated
Section 8(a) (3) and (1) of the Act by discharging its employees on
November 29, 1957, for participating in the strike. We also agree
with the Trial Examiner that the Respondent violated Section
8 (a) (1) of the Act (a) by Foreman Matteo's questioning of employee
Levi Rhein concerning the extent of union organization; in the
plant and his asking Rhein to report on the employees' union activi-
ties, and (b) by Foreman Worthy's threats to certain of the em=
ployees that the plant would be closed if the Union came -in.
THE REMEDY
The Trial Examiner recommended that all the discharged strikers
be reinstated with back pay. The Respondent excepted, contending
that (a) the strikers were disqualified from reinstatement by reason
of strike-connected misconduct, and (b) in any event back pay
should not be awarded as the employees were discharged while on
strike and the strike has not yet been abandoned. For the following
reasons, we find merit in certain of the Respondent's exceptions.
2 At the hearing, both the General Counsel and counsel for the Union cross -examined
Respondent 's chief witness concerning testimony given at State court proceedings relating
to incidents of alleged picket line misconduct . On redirect examination , counsel for the
Respondent sought to elicit testimony that the picketing at the Respondent 's plant had
been restrained by a State court . An objection to the introduction of this testimony was
sustained by the Trial Examiner . In its brief , Respondent contends that the ruling pre=
vented it from showing that , despite an injunction , peaceful industrial conditions prevailed
only after the imposition of sanctions by the State court . Respondent did not , however,
seek to offer in evidence the transcript of the State court proceedings . In view of the
limited nature of the offer and our findings herein relating to the strike -connected mis-
conduct , we find that the Trial Examiner did not commit prejudicial error in excluding
this testimony as the record otherwise adequately presents the facts involved.
3 The Respondent has filed a motion to reopen the record for the purpose of introducing
new evidence . The evidence consists of the transcript of a hearing before the Pennsylvania
Unemployment Compensation Board of Review containing the testimony of Robert Milliner,
one of the dischargees . Milliner there testified that, on November 26, 1957, two union
officials threatened him with death if he crossed the picket line . The Respondent alleges
that this .testimony was not available to it at the time of the Board ' s hearing in this case
because Milliner feared reprisals by the Union . The General Counsel filed a memorandum
in opposition to the motion , contending that such evidence is immaterial on the grounds
that: (1 ) It has no relevance to the legality of the discharges , and (2 ) it is immaterial
to the employees ' rights of reinstatement because the threats , as alleged by Milliner, were
made by union officials, not by employees . We find merit in the General Counsel's con-
tentions , as no misconduct by any employee is alleged . Accordingly , the Respondent's
motion to reopen the record is hereby denied. See Cranston Print Works Company,
117 NLRB 1834, 1835.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) We agree with the Trial Examiner that the incident of
December 10, 1957, where certain pickets , who had been circling in
front of the gate to the plant's parking lot, dispersed without inci-
dent as a coal truck backed into the parking lot to make a delivery,
was not so extreme as to warrant the denial of reinstatement.' We
also agree that reinstatement should not be denied because of the
incident of December 11, 1957, when undesignated strikers blocked
ingress of other employees to the plant , because the Respondent was
unable to identify the strikers who participated in this activity.5
However, on December 30 , 1957, a truck from the Lomar Trans-
portation Company arrived at the plant to pick up several loads of
wool. The pickets , composed of eight employees 6 and five nonem
ployees,' formed a chain across the street to prevent the truck from
advancing. When the truck stopped, the pickets circled it. The
driver and his helper left the truck , entered the plant office , called
their employer , and then drove the truck away from the plant with-
out picking up the loads of wool. We find, contrary to the Trial
Examiner, that the conduct here involved was such as to disqualify
the participants from reinstatement ." Accordingly, we shall deny
reinstatement to the eight employees who participated in such mis-
conduct.'
(b) We also disagree with the Trial Examiner 's recommendation
that the Respondent offer immediate reinstatement to the discharged
employees and make them whole for any loss of wages suffered since
the date of their discharge . The record shows that the dischargees
were on strike at the time of the discharge . The record does not
establish that the strikers have given up the strike and are available
for reemployment. We shall therefore order that the Respondent,
upon application , offer the dischargees 10 reinstatement to their former
or substantially equivalent positions , without prejudice to their sen-
iority or other rights and privileges , dismissing , if necessary, any
employees hired after November 29, 1957, to replace the discharged
4 See Crowley's Milk Company, 102 NLRB 996 , enfd. 208 F . 2d 444, 447 (C.A. 3).
5International Ladies ' Garment Workers Union ( B.V.D. Company, Inc.) V. N.L.R.B.,
237 F . 2d 545 (C.A., D.C.) ; N.L.R.B. v. Crowley 's Milk Company, Inc., supra. We do
not here decide whether the conduct itself , described more fully in the Intermediate
Report attached hereto, was so objectionable as to warrant the denial of reinstatement
in the event that the participants could have been identified.
8 David Bethea , Sammy Bethea , Anthony Crawford, Robert Gilmore , George McZeak,
Henry Milliner , James Sampson , and Levi Rhem.
4 Nick Lochetto, Thomas Birch, James Pasquay, Frank DiVincenzo , and William Geffner.
8 The American Tool Works Company , 116 NLRB 1681. See also Talladega Foundry &
Machine Company , 122 NLRB 125 . Cf. Puerto Rico Rayon Mills, Inc ., 117 NLRB 1355.
9 See footnote 6, supra.
10 We shall except from this order the following eight disehargees who were reinstated
to their former positions on or after December 13, 1957: Paul Brown , Philip Mouzon,
Clinton Worthy, Jr ., Tillman O 'Bryant, Otto Morgan , Reginald Payne , Dock Cottle, and
Eugene Davis , Jr. We shall also except the eight employees to whom we have denied
reinstatement for strike-connected misconduct.
MORRIS FISHMAN & SONS, INC. 1439
employees.ll If, after such dismissal, there are insufficient positions
remaining for these employees, the available positions shall be dis-
tributed among them on the basis of seniority' or such other non-
discriminatory practice as may have heretofore been applied in
connection with a reduction in force in the Respondent's business.
Those employees for whom no employment is immediately available
shall be placed on a preferential hiring list. We shall also order
that the Respondent make whole those dischargees who are entitled
to reinstatement for any loss of pay they may suffer by reason of
the Respondent's refusal, if any, to reinstate them, upon request, by
payment to each of them a sum of money equal to that which he
normally would have earned as wages during the period from. 5 'day's
after the date on which he applies for reinstatement to the date of
the Respondent's offer of reinstatement, such loss to be computed in
the manner set forth in F. W. Woolworth Co., 90 NLRB 289.12,
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Morris Fishman
& Sons, Inc., Philadelphia, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local 30, Philadelphia Leather
Workers' Union of the Fur and Leather Department, Amalgamated
Meat Cutters & Butcher Workmen of North America, AFL-CIO,
or in any other labor organization of its employees, by discharging
or in any other manner discriminating against employees in regard
to hire or tenure of employment or any term or condition of employ-
ment, except as permitted by the proviso to Section 8(a) (3) of
the Act.
(b) Interrogating employees concerning their membership in, or
activities in behalf of, Local 30, Philadelphia Leather Workers'
Union of the Fur and Leather Department, Amalgamated Meat
Cutters & Butcher Workmen of North America, AFL-CIO, or any
other labor organization, or requesting employees to report which
employees were engaging in organizational activities, in a manner
constituting interference, restraint, or coercion in violation of Sec-
tion 8(a) (1) of the Act.
U The record indicates that, on April 3, 1958, the Respondent ceased operations due to
lack of work. It is not known if the Respondent is presently in operation . Therefore, if
the Respondent is not presently in operation , our Order herein will be effective immedi-
ately upon resumption of operations.
13 See Bruns Coal Company, Inc., 106 NLRB 590, 593.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Threatening to close the plant if the employees vote in favor
of the aforementioned Union or any other labor organization.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist the aforementioned Union or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon application, offer to Clarence Brown, Silas Benjamin,
Clifton Lee Giddings, Joseph Singleton, Edward Crawford, Willie
Gillis, Robert Milliner, and Sam Hodge reinstatement to their former
or substantially equal positions without prejudice to their seniority
and other rights and privileges in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Post at its Philadelphia, Pennsylvania, place of business,
copies of the notice attached hereto marked "Appendix." 13 Copies
of such notice to be furnished by the Regional Director for the
Fourth Region shall, after being duly signed by Respondent's author-
ized representative, be posted by Respondent immediately upon re-
ceipt thereof, in conspicuous places including all places where notices
to employees are customarily posted, and maintained by it for at
least 60 consecutive days thereafter. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Fourth Region in writing,
within 10 days from the date of this Order, as to what steps it has
taken to comply herewith.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
13 In the event that this Order Is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
MORRIS FISHMAN & SONS, INC. 1441
WE WILL NOT discourage membership in Local 30, Philadelphia
Leather Workers' Union of the Fur and Leather Department,
Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, or in any other labor organization of our
employees, by discharging or in any other manner discriminating
against our employees in regard to hire or tenure of employment
or any terms or condition of employment , except as permitted
in the proviso to Section 8(a) (3) of the Act.
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities in behalf of, Local 30, Philadelphia
Leather Workers' Union of the Fur and Leather Department,
Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, or any other labor organization, nor will we
request employees to report which employees were engaging in
organizational activities , in a manner constituting interference,
restraint, or coercion in violation of Section 8(a) (1) of the Act.
WE WILL NOT threaten to close our plant if our employees vote
in favor of Local 30, Philadelphia Leathers Workers' Union of
the Fur and Leather Department, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO, or any other
labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organi-
zation, to form, join, or assist Local 30, Philadelphia Leather
Workers Union of the Fur and Leather Department, Amalga-
mated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from
any and all such activities except to the extent that such right
may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act.
WE WILL offer to the employees listed below , upon their appli-
cation , reinstatement to their former or substantially equal posi-
tions without prejudice to their seniority and other rights and
privileges, dismissing, if necessary, any employees hired after
November 29, 1957, to replace these employees, and we will make
each employee whole for any loss of pay suffered by him as a
result of our failure to reinstate him within 5 days after his
application.
Silas Benjamin Willie Gillis
Clarence Brown Sam Hodge
Edward Crawford Robert Milliner
Clifton Lee Giddings Joseph Singleton
505395-59-vol. 122-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of our employees are free to become, remain, or refrain from
becoming or remaining, members of Local 30, Philadelphia Leather
Workers' Union of the Fur and Leather Department, Amalgamated
Meat Cutters & Butcher Workmen of North America, AFL-CIO,
or any other labor organization.
MORRIS FISHMAN & SONS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the .date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed by Local 30, Philadelphia
Leather Workers' Union of the Fur and Leather Department Amalgamated Meat
Cutters & Butcher Workmen of North America, AFL-CIO, herein called the
Union, the General Counsel of the National Labor Relations Board, by the Re-
gional Director for the Fourth Region (Philadelphia, Pennsylvania), issued a com-
plaint and notice of hearing dated April 23, 1958, against Morris Fishman & Sons,
Inc., herein called the Respondent, alleging that the Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices the complaint alleged in substance,
that Respondent and its supervisors, in November 1957, by specific enumerated acts
and statements interfered with, restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act, and that Respondent on November 29, 1957, discharged
24 named employees for the reason that they engaged in concerted activities for
the purposes of collective bargaining or other mutual aid or protection in violation
of Section 8(a)(3) of the Act.
The Respondent's answer duly filed admitted that it is engaged in commerce
within the meaning of the Act, but denied the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held in Philadelphia, Pennsylvania, on May 13,
1958, before the duly designated Trial Examiner. The General Counsel, the
.Union, and the Respondent were represented by counsel. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to in-
troduce evidence bearing on the issues. The parties were given the opportunity
to file briefs and proposed findings of fact and conclusions of law. Oral argument
was waived. Briefs were received from the General Counsel and from counsel
for the Respondent and have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Morris Fishman & Sons, Inc., is a corporation duly organized under the laws
of the Commonwealth of Pennsylvania. It is engaged at its place of business
located in Philadelphia, Pennsylvania, in wool pulling and the sale of hides and
raw wool. During the calendar year 1957, Respondent made sales and shipped
goods valued in excess of $100,000, from its plant in Philadelphia, Pennsylvania,
to points located outside the Commonwealth of Pennsylvania. The Respondent's
answer admits and it is hereby found that at all times material herein it has been
and is now engaged in commerce within the meaning of the Act.
MORRIS FISHMAN & SONS, INC.
11. THE LABOR ORGANIZATION
1443
Local 30, Philadelphia Leather Workers' Union of the Fur and Leather Depart-
ment Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-
CIO, is a labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
Sequence of Events
In November 1957, Respondent had in its employ 2 foremen, Nick Matteo and
Clinton Worthy, Sr., and 24 production and maintenance employees. Organiza-
tional activity among the employees commenced on or about November 20. Henry
Milliner, a sulphite man for approximately 3 years, testified that he signed a union
authorization card at the behest of Union Representative Frank DiVincenzo on
that day. George McZeak, employed by Respondent as a skin washer for 3 years,
testified that he was solicited to join the Union by employee Clarence Brown, and
that he signed a union authorization card on November 20. Reginald Payne, a
skin sorter since September 1957, called by Respondent as its witness, testified
that Brown talked to him on November 20, about joining the Union. After
working hours on November 21, Payne met Brown and several employees on a used
car lot near the plant, where he signed an authorization card and observed three
other employees sign cards. There was also discussion and argument among the
employees about the Union coming into the Respondent's plant, including rumor
about the possibility of a strike.'
Levi Rhem, a drying machine operator in Respondent's employ for 5 years,
testified that as he was about to start work on November 22, Matteo called him
to the front of the drying machine where they engaged in conversation regarding
the Union. Rhem, who had not yet become a member of the Union,2 told Matteo
the Union was coming into the plant. Matteo, according to Rhem, told him to go
around among the employees and find out how many signed union cards. Several
hours later, Rhem reported to Matteo, "[I] don't think anybody signed too much."
Matteo then inquired if Rhem knew who started the Union in the plant. Rhem
replied "little Al and Nicky." 3
Matteo categorically denied that he ever discussed any matters involving the
Union with Rhem. He also denied that he was aware of the fact that a union
was attempting to organize Respondent's employees. He testified that the first
intimation he had that there was union activity at the plant was at 6:45 a.m.
November 26, when he reported for work and was spoken to by Union Repre-
sentative Frank Brownstone, one of several union officers and former employees
who were picketing the plant. From his demeanor on the witness stand, Matteo
did not impress me as a reliable witness. Rhem's testimony was given un-
hesitatingly, in a straightforward manner and in the main was supported by con-
vincing detail. I do not credit the denials of Matteo and find that the statements
attributed to him were made substantially as testified by Rhem.
It was stipulated by the parties that if A. Matthew Fishman, vice president and
plant manager of the Respondent, was called to testify, he would testify that the
following took place on November 25, at about 4 p.m. That he was called to the
plant's reception room where he found Union Representatives Steve Coyle, Frank
Brownstone, and Frank DiVincenzo, and ushered them into an outer office. The
union representatives did not sit down. Brownstone, pointing to the telephone,
said, "I want you to call your attorney at once."
Brownstone then said that they were going down to the lawyer's office to nego-
tiate a contract . This took Fishman completely by surprise, since he had no
knowledge that the Union was attempting to organize the employees.
Fishman then said to Brownstone, "you don't expect to come in here at 4 o'clock
and get a contract at 5 after 4?" He again stated that "I should call my lawyer
because he said he did not intend to delay, and that there would be no election,
that they represented the employees and he expected to get an immediate contract."
He said that "he had cards but would show them to somebody else but not to me.
Brownstone and the others kept insisting that I should call my lawyer immediately."
Fishman finally said, "Frank, you are not going to force me to take a position
at this moment and I am not going to call my lawyer now." Fishman told them
3 This finding Is based on the testimony of Levi Rhem, which I credit.
a Rhem, along with eight other employees signed union authorization cards at the union
ball on November 26. This will be discussed in further detail later.
3 Little Al and Nicky were identified as former employees of Respondent who worked
there until November 22.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he thought it was only reasonable to wait until noon the next day and promised
to call them before noon the following day. "They all three of them shrugged
their shoulders and left."
Fishman denied that he discussed with either Matteo or Clinton Worthy , Sr., the
conversation he had with the Union 's representatives . He testified that after the
Union's representatives left, he spoke on the telephone with his brother and there-
after left the plant for his home.
Milliner testified that about 7 p.m. on November 25, Foreman Worthy ap-
proached him in the pickle room , where he was piling the pickled skins. A num-
ber of other employees were in the room at the time. Worthy, according to
Milliner, said "the man isn 't selling any wool, he wasn 't selling no pickled skin or
nothing, and he couldn't be bothered with no union and he would shut down if
the Union came in ." Worthy then told Milliner to try to get to the plant early
the next morning because there would be two boxes at the time clock, and the
employees could vote "whether [you] want the Union or [you] do not want the
Union."
McZeak testified that he was in the employees ' dressing room 4 between 7 and
7:30 p.m. on November 25, together with employees who were changing into street
clothes, when Foreman Worthy spoke to him and the other men. McZeak cor-
roborated Milliner's testimony regarding Worthy 's request that the employees try to
get to the plant early so that they could vote on whether or not they wanted the
Union. McZeak also testified that Worthy told the employees , "if they would get
the Union in there, the plant would close down."
Worthy categorically denied the testimony of Milliner and McZeak . In fact,
Worthy denied discussing the Union at anytime with Fishman , or with any of the
employees , including his son , Clinton Worthy, Jr., a production employee. In an
effort to corroborate Worthy's testimony , the Respondent adduced evidence from
Payne who testified that he was in the employees ' dressing room on November 25,
at about 7 p.m., when the men in the laboring gang were changing into their street
clothes. Payne testified on direct examination that he saw Foreman Worthy in the
dressing room together with McZeak and other employees , and that he did not hear
Worthy discuss the Union with any of the men in the room. On cross -examination
Payne admitted that he was not changing his clothes when the other men were in
the dressing room , but had to walk through the dressing room to the shower room
in order to get to the toilet. He stated he was there for about 10 minutes and
then walked back to his work station , located on the other side of the dressing
room and as previously noted separated by a wall. The dressing room which
contained lockers for the employees ' clothes was about 8 by 10 feet in dimension.
He claimed that the doors on both sides of the dressing room were open and he
could hear clearly everything that went on there . When questioned as to what
was said , Payne replied , "there was nothing said about no union." Questioned
further if he knew what was said, he evasively replied, "yes . The regular."
Payne testified that he went to the toilet for reasons of personal convenience.
It is most unlikely that he could hear what was being discussed in the dressing
room in view of the separations above described and the distance Payne was away
from the disputants.. Based on the above and his demeanor on the witness stand,
I do not consider him a reliable witness and do not credit his testimony. Nor do
I credit the testimony of Foreman Worthy who gave me the impression that he
was not telling the truth . I find that Foreman Worthy made the statements sub-
stantially as testified by Milliner and McZeak.
The parties stipulated that picketing at the Respondent 's plant started on the
morning of November 26, by Union Representatives Frank Brownstone, Frank
DiVincenzo , and Steve Coyle and former employees Albert DiFilippo and Nichols
Lochetto. The pickets carried signs with an inscription as follows:
Workers of
Morris
Fishman and
Sons, Inc.
STRIKE
For
UNION CONDITIONS
Philadelphia Leather Workers Union Local 53
Fur & Leather ' Dept., A.M.C. & B.W. of N.A., AFL-CIO
4 The employees ' dressing room, also known as the locker room, is separate' from the
shower room which contains the,toilet : On its other side and separated by a wall,. It is
bound by the work area where skins are salted and pickled. I
MORRIS FISHMAN & SONS, INC . 1445
It was also stipulated that all of the nonsupervisory employees failed to report for
work on November 26, although they came in the vicinity of the plant.
Rhem testified that he arrived at the plant on November 26, at about 6:30 a.m.,
and saw a group of employees standing outside with some other men. Upon
inquiry of what was happening, he was told "there is a strike there." Rhem joined
the group of employees.
Milliner testified that when he got to the plant at about 6:50 a.m., he was met
by Steve Coyle who informed him that there was a strike and asked him to put
on a sign and picket. Milliner told Coyle he was going for a cup of coffee and
would be back.
Joseph Singleton and Ed Crawford, wool pullers in Respondent's employ for
16 years and 6 years respectively, drove to the plant with other employees.
Singleton testified that he came to the plant prepared to go to work and did not
know anything about a strike. He stated that Frank Brownstone walked over to
the car as they started to get out, told them there was a strike and told Crawford
to drive the car on the street in back of the lot and wait. Singleton and the other
employee occupants of the car did as requested and then joined the other employees
who congregated at a corner gas station.
When Matteo drove up to the plant gate at about 6:45 a.m., he saw the union
representatives, the two former employees and a few strangers near the building
and near the gate. Matteo testified that Brownstone came over to his car and
greeted him.5 Brownstone inquired as to the time Fishman came to the plant.
Matteo replied about 8:45 a.m. Brownstone asked Matteo to call Fishman on the
telephone and ask him to bring his lawyer to the plant and everything would be
settled within a half hour. Matteo stated he then opened the plant gate, entered
the plant, called Fishman, and related to him the details of what was taking place.
Worthy testified that when he drove his car up to the plant Brownstone met
him, inquired who he was, told him there was a strike on, that Fishman had been
notified and that in about a half hour the men would be back in the plant.
Worthy proceeded unmolested into the plant.
Payne testified that he arrived at the plant at 7:30 a.m. on November 26. He
stated he saw the employees at the back of the lot and went over to ask why they
were there since the starting hour was 7 a.m. He was told they could not go to
work because there was a strike. Payne remarked there could not be a strike
because there was no union in the plant.6 Payne walked around to the front
entrance of the plant and found the union representatives standing in front of the
door. When he walked up they inquired if he worked for Respondent. Upon his
affirmative reply, Payne stated he was told he could not go into work because of
the strike. Payne said there could not be a strike since there was no union in
the plant. Payne remonstrated that the representatives did not have the authority
to pull a strike. He was told that that was the Union's decision to make and that
he should join the other employees. He stated that when he said he wanted to go
in, two of the heavier men stepped towards him and he then went around to the
back of the lot to join the other employees.
Worthy testified that about 8:30 a.m., he was standing at an overhead door in
the building when an employee in the group on the lot yelled up that they wanted
to come in. Worthy told them to come ahead. None of the employees made any
move to enter.
At about 9 a.m. the employees who were in a group at the corner gas station
were told by DiVincenzo to get in their cars and go to the union hall. All of the
employees with the exception of Dock Cottle appeared there.? A meeting was
held and nine of the employees who previously had not signed union authorization
cards, did so at this time.8
Fishman did not go to the plant until 8 p.m. on November 26. He testified that
Respondent had work in process which was perishable in nature, of the approxi-
mate value of $15,000. In order to save the skins, he, his brother, Matteo, Worthy,
e Matteo and Brownstone were acquainted. Matteo was a member of the Union about
10 years ago when Respondent's employees were represented by the Union.
8 Payne's remark is interesting particularly in view of his subsequent testimony on
cross-examination that he joined the Union several days before.
7It should be noted that Singleton who testified regarding this incident stated he went
to the union hall voluntarily. There is no evidence in the record that any employees were
coerced into going to the union hall.
8 Respondent's witnesses who signed union cards at the meeting testified they did so
voluntarily.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and a group of men specially hired for the purpose, worked at the plant until
6 a.m. the next morning.
Picketing continued at the plant premises . On November 29 the employees
came to the plant for their pay. With their paychecks, they were handed a type-
written notice which read as follows:
This check includes your pay for all work up to and including November 25,
1957. Your failure to report for work on Tuesday, November 26, 1957, has
required us to terminate your employment as of that date.
On December 2, employees who received their discharge notices the previous
Friday, joined the picket line. Included in this group were employees Singleton,
Crawford, and Payne who testified as Respondent witnesses and who stated they
joined the picket line voluntarily and received strike benefits from the Union.
Other than the work performed by Fishman, the foremen and the group of
specially hired employees on the night of November 26, operations were discon-
tinued at the plant until December 11. From the latter date until April 3, 1958,
when operations ceased due to lack of work, Respondent employed 14 men of
whom 8 were former employees .9
Conclusions
Among other contentions raised in its brief, the Respondent contends that there
was no strike on the part of the employees on the morning of November 26, and
that "even the action of the employees in being bullied into going to the Union
Hall where nine of them signed authorization cards on behalf of the labor or-
ganization 10 cannot convert their action into a strike since there was no knowl-
edge thereof on the part of the employer."
As defined in Section 501 of the Act, the term "strike" includes any strike or
other concerted stoppage of work by employees . . . and any concerted slowdown
or other concerted interruption of operation by employees.
While it is true as Respondent asserts, that the employees reported ready to go
to work on the morning of November 26, and they were unaware of the fact that
the plant was going to be picketed or that the Union would attempt to call a strike,
nevertheless, it is clear from the record that when the employees arrived at the
plant, saw the picketing and the picket signs, they voluntarily grouped themselves
together and did not enter the plant.ll
Nor is it necessary that the employer have prior notice of a strike to bring it
within the bounds of protected concerted activity. The Board in its Decision and
Direction of Election in Liberty Cork Co., Inc., 96 NLRB 372, where it was con-
tended by an employer that no election should be directed because the action of
certain employees in going on strike without giving prior notice was illegal and un-
authorized, stated "a strike is not illegal or of a `wildcat' nature merely because it
was called without prior notice to the employer." See also J. A. Bentley Lumber
Company, 83 NLRB 803, 811, footnote 13. Moreover, as heretofore found, Respond-
ent was put on notice that the Union represented the employees when the union offi-
cers made their demands for recognition and offered to prove majority by showing
the cards to a third party.
The fact that the employees were not aware that the plant was going to be
picketed or that the Union would attempt to call a strike is of no consequence and
certainly not a defense to Respondent for its subsequent action in discharging the
employees because of their concerted work stoppage. For as the Board stated in
Wooster Division of Borg-Warner Corporation, 113 NLRB 1288, 1294
It appears self-evident that a representative system necessarily involves trust-
ing the agent with discretion not subject to review by those it represents as to
each exercise thereof, particularly at the instance of an outside party. It is the
pattern traditionally followed in the labor movement in this country and the
concept embodied in the Act. As the Supreme Court stated, the Act "has
O The eight former employees were Paul Brown, Philip Mouzon, Clinton Worthy, Jr.,
Tillman O'Bryant, Otto Morgan, Reginald Payne, Dock Cottle, and Eugene Davis, Jr.
10 Elsewhere in its brief , the Respondent in effect admits that all the other employees
were represented by the Union.
u In making this finding , I am not unmindful of Payne's testimony that he feared
physical violence if he crossed the picket line. I previously found that Payne was not a
reliable witness and I do not credit his testimony in this regard.
MORRIS FISHMAN & SONS, INC. 1447
been considered to absorb and give statutory approval to the philosophy of
bargaining as worked out in the labor movement in the United States." 10
Under the practice of collective bargaining as thus developed, it is customary
to leave the decision as to demands to be made upon the employer, the
sanction to be resorted to in support of the demands, . . . up to the majority
representative leaving to internal procedures of the union the extent to which
these may be ratified by the membership of the union or employees generally.
10N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 408, quoting with
approval from Telegraphers v. Railroad Express Agency, 321 U.S. 343, 346.
Respondent advances still another argument in its brief in defense of its position
in discharging the employees. Respondent thus asserts that by reason of their
failure to report for work on November 26, it "was thereby placed in the possible
position of sustaining serious financial loss." 12 Thus, Respondent is in effect
claiming that by engaging in the strike, the employees failed in a duty to protect
the Respondent's property, which might have been lost because of its perishable
nature, but actually was not lost.
The Board and the courts have held in situations where employees struck
without any prior notice, and intentionally timed their strike whereby a disruption
of an operation at that particular time would have caused considerable damage
to both plant and equipment and would have necessitated a plant shutdown for
consequent repairs, that such employees were not engaged in protected concerted
activities and therefore were subject to discharge. The material element in these
cases 13 is the threat of aggravated physical injury to plant premises, an element
not present in the instant case. I find no merit in this contention. Based upon
the foregoing and the entire record, I find that on November 26, Respondent's
employees engaged in a strike, a concerted activity protected by Section 7 of the
Act.
The General Counsel has not made an issue of whether or not the strike herein
was economic or unfair and I find it unnecessary to decide this issue. Even viewing
the strike as economic I conclude and find that the Respondent violated Section
8(a)(3) and (1) of the Act, by its notice to the employees discharging them as of
November 26, for participating in the strike. See United Grinding Service, Inc.,
118 NLRB 67; Commodore Watch Case Co., Inc., 114 NLRB 1590; Bruns Coal
Company, Inc., 106 NLRB 590.
I further conclude and find that Respondent violated Section 8(a)(1) of the Act
by the following conduct:
(1) Foreman Matteo's request of employee Rhem to report on the employees'
union activities, see California Textile Mills, 120 NLRB 1245.
(2) The statements of Foreman Worthy threatening that the plant would be
closed if the Union was successful.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Where, as in the instant case, it has been found that the Respondent engaged
in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it is
usual to recommend that the Respondent cease and desist therefrom and take
certain affirmative action, including the offer of reinstatement to discriminatorily
discharged employees, designed to effectuate the policies of the Act. The Re-
spondent contends, however, that because of the picket line activities of certain
12 It will be recalled that Fishman testified without contradiction that Respondent had
work in process on November 26, which was perishable In nature of the approximate
value of $15 , 000, and that a group worked all night in order to save the skins.
'5N.L.R.B. v. Marshall Car Wheel and Foundry Co., etc., 218 F. 2d 409 (C.A. 5) ;
United States Steel Company v. N.L.R.B., 196 F. 2d 459 , 465 (C.A. 7).
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, they have forfeited their right to reinstatement . We will turn, there-
fore, to a discussion of the evidence regarding the picket line incidents in order
to determine whether the employees were misconducting themselves and whether
their misconduct was so flagrant as to render them unfit for further service.14
Fishman testified that on December 10, he observed some 18 pickets, about
2 feet apart , circling in front of the parking lot gate, which is about 12 feet wide,
as a coal truck approached the gate.15 When the truck started to back into the
lot and came closer to the pickets, the men moved aside . The truck backed into
position in the lot, made the delivery of the coal , and left without further incident.
Fishman also testified that about 9:45 a .m. on December 11, about 10 or 12 men
who were to start work that morning 16 were walking down the street where the
plant is located . As the men approached the premises about 12 striking employees
who were involved in the December 10 picketing incident started to crowd in
front of the entrance door. Fishman called the police department . The police in-
quired of the men if they wanted to go into the plant to work. Upon their
affirmative reply, the police instructed the pickets to open up spaces, to enable the
men to go through . This the pickets did, the men crossed the picket line and
entered the plant. The Respondent did not adduce any evidence to show that the
pickets physically and forceably blocked entrance to the plant. Nor is there any-
thing in the record to show that there was violence connected with this incident
or that the men who were coming to work were threatened or in any way in-
timidated.
With respect to the third incident which took place on December 30, Fishman
testified that two Lomar Transportation Company trailers were scheduled to pick
up several loads of wool from the plant . As the trucks started down the street,
11 pickets formed a barrier and "made a chain " across the street , with the result
that the trucks stopped. The pickets then circled around the trucks. The drivers
left the trucks and went into the Respondent's plant to call their office. There-
after, they drove the trucks away from the vicinity of the plant without picking
up the loads of wool.
On cross-examination Fishman admitted that in a State court proceeding for
a temporary restraining order, Chick Didaro, a Lomar truckdriver , testifying re-
garding this incident , said "when we drove up , there was a safe setting on the
pavement and there were two men picketing the door, walking back and forth."
Further, when asked by counsel for Respondent what prevented him from driving
in the entrance where he would ordinarily have gone to make his pickup, Didaro
answered "the safe on the pavement ." Additionally , Fishman admitted that Wyatt,
another Lomar driver, testifying at the State court proceeding , said "I am just a
union man myself and I recognize the union and the strike ." It is also noted that
Respondent does not contend that the Lomar drivers were threatened . Nor did
it adduce any evidence that there was violence connected with the December 30
incident.
Under all the circumstances , I find that the conduct of the pickets in the in-
cidents heretofore described , although perhaps objectionable , was not so extreme
as to render them unfit for further service . In this connection the Court of Appeals
for the Third Circuit recognized that Congress was cognizant of the less than
dignified methods used during the course of a strike . 17 That court pointed out
that "some disorder is unfortunately quite usual " during strikes and that minor
disorders "must have been in the contemplation of Congress , when it provided in
Section 13 of the Act . . . that nothing therein should be construed so as to in-
terfere with or impede or diminish in any way the right to strike. If this were
not so , the rights afforded to employees by the Act would indeed be illusory."
It must be recalled that Respondent discharged all of its production and main-
tenance employees for honoring the picket line and joining the strike several weeks
before the first incident of mass picketing took place . In my opinion , the Re-
14 Puerto Rico Rayon Hills, Inc., 117 NLRB 1.355, 1357-1358; Horn Manufacturing
Company, 83 NLRB 1177, 1179-1180.
15 Payne testified that when the coal truck drove up to the parking lot gate only two
employees were picketing and the others were seated in cars. Frank DiVincenzo came over
to the cars and told the men to join the pickets in front of the gate.
.16 It will be recalled that the plant was shut down from November 26.
17 Republic Steel Corporation v. N.L.R .B., 107 F. 2d 472 , 479, cert. denied, 309
U.S. 684.
MORRIS FISHMAN & SONS, INC. 1449
spondent has resorted to the incidents of mass picketing as a l pretext to disguise
its real motive for refusing to grant reemployment to the striking employees.
Thus, having found that the Respondent interfered with, restrained, and coerced
its employees by the conduct set forth in the Section herein entitled "Conclusions,"
I will recommend that the Respondent cease and desist from this conduct.
It has been found that Respondent discriminatorily discharged 24 employees as
of November 26, 1957; because they engaged in union or concerted activities. It
will be recommended that when the Respondent resumes operations, 18 it offer the
dischargees, not yet reinstated, reinstatement to their former or substantially
equivalent position,'9 without prejudice to their seniority and other rights and
privileges, dismissing if necessary all employees hired subsequent to November 26,
1957.
It will be further recommended that Respondent make whole the dischargees for
any loss of wages they may have suffered, by payment to each of them of a sum
equal to the amount which they normally would have earned as wages from the
date of his discriminatory discharge, November 26, 1957, to the date of his rein-
statement or Respondent's offer of reinstatement, less the net earnings of each dur-
ing said period, in a manner consistent with Board policy as set out in Crosset
Lumber, 8 NLRB 440; F. W. Woolworth Co., 90 NLRB 289; and Chase National
Bank, 65 NLRB 287. The Respondent upon request, shall make available to the
Board and its agents all payroll and other records necessary to a determination of
the amounts due as back pay.
Since the violations of the Act which the Respondent committed are related to
the other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is reasonably to be anticipated from its past conduct, the
preventive purposes of the Act may be thwarted, unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act, therefore, it
will be recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Local 30, Philadelphia Leather Workers' Union of the Fur and Leather
Department Amalgamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. By discharging the following named employees, thereby discouraging member-
ship in the above-named labor organization, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act:
Silas Benjamin David Bethea Sammy Bethea
Paul Brown Clarence Brown Dock Cottle
Edward Crawford Anthony Crawford Eugene Davis, Jr.
Clifton Giddings Willie Gillis Robert Gilmore
Sam Hodge George McZeak Henry Milliner
Robert Milliner Otto Morgan Phillip Mouzon
Tillman O'Bryant Reginald Payne Levi Rhem
James Sampson Joseph Singleton Clinton Worthy, Jr.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1).
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
' The record reveals that Respondent shut down its plant because of lack of work on
April 3, 1958, and as of the date of the hearing had not yet reopened.
"The parties stipulated at the hearing that the following discharged employees were
reinstated to their former positions on or after December 13, 1957 : Reginald Payne,
Tillman O'Bryant, Eugene Davis, Jr., Philip Mouzon, Clinton Worthy, Jr., Otto Morgan,
Paul Brown, and Dock Cottle.