Joint Council of Sportswear

JOINT COUNCIL OF SPORTSWEAR 659 bakery, Ridge Avenue and Sedgely Street, Philadelphia, Pennsyl- vania, excluding drivers, salaried employees, confidential employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER RODGERS took no part in the consideration of the above Decision and Direction of Election. Joint Council of Sportswear, Cotton Garment, Undergarment & Accessory Workers Union, AFL-CIO and Mrs. Edwin Selvin, Labor Relations Consultant. Cage No. 21-CB-864. April 29, 1958 DECISION AND ORDER On July 16, 1957, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding finding that Respondent Joint Council of Sportswear, Cotton Garment, Under- garment & Accessory Workers Union, AFL-CIO, herein called the Joint Council, had engaged in and was engaging in certain unfair labor practices, and recommending that it and Respondent. Los Angeles Dress and Sportswear Joint Board, herein called the Joint Board,' as the successor of the Joint Council, cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents, the General Counsel, and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with modifications and additions noted below 2 1. We agree with the Trial Examiner that the Joint Council vio- lated the Act herein. In so finding, we adopt the Trial Examiner's i By way of a corrective amendment at the hearing, the Joint Board was made a Party Respondent herein. 2 The operations of Harou, Inc., and En Tour, herein called the Employer, are sufficient to warrant the assertion of jurisdiction in this case without consideration of such items as- transportation charges and trade discounts. We therefore deem it unnecessary to pass upon the Trial Examiner's treatment of those items in the Intermediate Report. 120 NLRB No. 90. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding, to which no exceptions were filed, that the Joint Council picketed the premises of the Employer, at a time when it did not represent a majority of the Employer's employees, as well as his find- ing, which, as the Intermediate Report shows, is amply supported by the record, that the picketing was for the purpose of obtaining immediate recognition as exclusive bargaining representative of the employees involved. In these circumstances, a finding of a Section 8 (b) (1) (A) violation by the Joint CouncilI is required by the Board's recent decision in the Curtis Brothers case.4 We also agree with the Trial Examiner, on the basis of the facts contained in the Intermediate Report, that the Joint Board is a suc- cessor of the Joint Council. However, we are of the further opinion that the Joint Board itself violated Section 8 (b) (1) (A) herein and that the order in this case should issue against it as a violator of the Act, rather than as merely a successor of the Joint Council as recommended by the Trial Examiner. For the Joint Board, with no more representation among the Employer's employees than was enjoyed by its predecessor, or its alter ego, however we view the rela- tionship, picketed the Employer, by admission of its business man- ager, and this picketing manifestly had the same objective as the Joint Council's, namely, recognition. Clearly, therefore, an 8 (b) (1) (A) finding against the Joint Board is also called for herein. 2. The Trial Examiner based his unfair labor practice finding upon the picketing which took place prior to May 1957, and found it un- necessary to decide whether the subsequent picketing violated the Act. The only change which has taken place in the character of the picketing since May 1957 is the change in the wording of the picket signs which, significantly, was made shortly after the issuance of the complaint herein. Signs which had charged the Employer with being unfair to organized labor were then changed to appeal to the em- ployees to join the Union for better working conditions. However, Board decisions make it abundantly clear that this new language on the picket signs cannot be regarded as having altered the original object of the picketing, which was for recognition.' A finding is therefore warranted that the current picketing in this case is unlawful 9 As indicated in the Intermediate Report, certain facts reflect that the Joint Council as the result of a merger became the Joint Board in mid-1955. However, the Council's name appeared on the picket signs until May 1957, and the answer filed herein was veri- fled by one John Ulene as manager of, and on behalf of, the Joint Council. These factors negate the nonexistence of the Joint Council or at least indicate that the Joint Board was acting in a dual capacity In any case we find the evidence sufficient to charge the Joint Council with participation in the unfair labor practices found herein 4Drivers, Chauffeurs, and Helpers Local 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Curtis Brothers, Inc.), 119 NLRB 232. 5 Wallace Stenlake and John Baldwin, d/b/a New Pacific Lumber Co., 119 NLRB 1307; Francis Plating Co., 109 NLRB 35. JOINT COUNCIL OF SPORTSWEAR 661 and, so that the Order herein may better serve to effectuate the policies of the Act, we so find. THE REMEDY Having found that the Respondents have violated Section 8 (b) (1) (A) of the Act, we shall order each of them to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. We are entering an order against the Joint Council as it has not been shown to have been completely dissolved. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Joint Council of Sportswear, Cotton Garment, Undergarment & Accessory Workers Union, AFL-CIO, and the Los Angeles Dress and Sportswear Joint Board, their officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from restraining and coercing employees of Harou, Inc., and En Tour in the exercise of the rights guaranteed in Section 7 of the Act, by picketing the Companies, or engaging in any other conduct, for the purpose of forcing the said Companies to recognize the Respondents as the exclusive bargaining representatives of their employees when the Respondents do not represent a majority of such employees in an appropriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post in conspicuous places at their office in Los Angeles, Cali- fornia, and in all other places where notices to members are custom- arily posted, copies of the notice attached hereto, marked "Appendix." 6 Copies of said notices, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by official representatives of the Respondents, be posted by the Re- spondents immediately upon receipt thereof and be maintained by them for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Respondents to insure that such notices are not altered, defaced, or covered by any other material. (b) Mail signed copies of the notice attached hereto marked "Ap- pendix" to the Regional Director for the Twenty-first Region for posting, Harou, Inc., and En Tour willing, at all locations where notices to the Companies' employees are customarily posted. Copies of said notices, to be furnished by the Regional Director for the 6 In the event that this Order is enforced by a decree of a United States Court of Ap- peals , 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." 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Twenty-first Region, shall, after being duly signed by authorized representatives of the Respondents, be forthwith returned to the Regional Director for posting. (c) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, as to the steps Respondents have taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL UNIONS COMPRISING JOINT COUNCIL OF SPORTSWEAR, COTTON GARMENT, UNDERGARMENT & ACCESSORY WORKERS UNION, AFL-CIO, OR Los ANGELES DRESS AND SPORTS- WEAR JOINT BOARD AND To ALL EMPLOYEES OF HAROU, INC., AND EN TOUR 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, we hereby notify you that: WE WILL NOT restrain or coerce the employees of Harou, Inc., or En Tour in the exercise of rights guaranteed in Section 7 of the Act, by picketing the Companies, or engaging in any other conduct, for the purpose of forcing Harou, Inc., or En Tour to recognize us as the exclusive bargaining representatives of their employees when we do not represent a majority of such employees in an appropriate unit. JOINT COUNCIL OF SPORTSWEAR, COTTON GARMENT, UNDERGARMENT & ACCESSORY WORKERS UNION7 AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative )' (Title) Los ANGELES DRESS AND SPORTSWEAR JOINT BOARD. 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 filed by Mrs. Edwin Selvin , alleging that Joint Council of Sports- wear, Cotton Garment, Undergarment & Accessory Workers Union, AFL-CIO, herein called the Joint Council, was engaged in certain unfair labor practices, the General Counsel for the National Labor Relations Board issued a complaint, dated May 1, 1957, against the Joint Council, alleging that it had engaged in and was engaging in conduct violative of Section 8 (b) (1) (A) of the National Labor Rela- JOINT COUNCIL OF SPORTSWEAR 663 tions Act, 61 Stat. 136, and that the unfair labor practices complained of affected commerce within the meaning of Section 2 (6) and (7) of the Act. In respect to unfair labor practices, the complaint, as amended at the hearing, alleges that the Joint Council and its successor have, since on or about January 15, 1957, engaged in picketing with a purpose of causing, forcing, or requiring two em- ployers, Harou, Inc., and En Tour, to recognize the Joint Council as exclusive bargaining representative of the employers' employees, although the Joint Council at no time material herein has been the majority representative of such employees. It is further alleged that by the picketing described the employees of Harou and En Tour have been restrained and coerced in the exercise of rights guaranteed in Section 7 of the Act. The Joint Council filed an answer denying the commission of unfair labor prac- tices and alleging affirmatively that the picketing at the premises of En Tour or Harou has been solely for the purpose of persuading the employees of these em- ployers to join and become members of the Joint Council. It is denied that the Joint Council at any time material herein has sought or now seeks to enter into any collective-bargaining agreement with either employer. Pursuant to notice a hearing was held upon the complaint before the duly desig- nated Trial Examiner in Los Angeles, California, on May 22 and 23 and June 7, 1957. All parties were represented by counsel and were permitted to examine and cross-examine witnesses and offer evidence pertinent to the issues. Briefs have been received from counsel for the Joint Council and from counsel for the General Counsel. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS Harou, Inc., is a California corporation engaged at Los Angeles, California, in the manufacture and sale of women's dresses. The evidence establishes and I find that Harou annually ships products valued in excess of $50,000 directly to points located outside the State of California.' Harold Solursh and Coleman Solursh are partners d/b/a En Tour. En Tour, until early 1957, has been engaged at Los Angeles, California, in the manufacture and sale of women's dresses and has shipped annually to points outside the State of California merchandise valued in excess of $50,000. The footnote comments as to transportation charges and trade discounts apply to the business of En Tour. Both Harou and En Tour occupy the same building and each is managed by Harold Solursh. I find that the business of Harou and En Tour, each separately meets the juris- dictional requirements of the Board and that it would effectuate the policies of the Act to assert jurisdiction in this case. H. THE LABOR ORGANIZATION INVOLVED The Joint Council, until mid-1955 at least, was an organization affiliated with International Ladies' Garment Workers' Union, composed of representatives of four locals, also directly affiliated with the international organization, existing for the purpose of collective bargaining in behalf of its constituent locals with employers in a segment of the garment manufacturing industry. John Ulene testified that until mid-1955 he was the manager of the Joint Council and in that capacity represented the Joint Council in collective bargaining with employers. Another and similar organization, but composed of different local unions, also affiliated with the Inter- national, in 1955 merged with the Joint Council. The name of the merged organiza- tion became and now is Los Angeles Dress and Sportswear Joint Board. Ulene at all times since its formation has been and now is the manager of the Joint Board and in that capacity has continued to deal with employers in respect to contracts earlier negotiated in the name of the Joint Council. The function of the Joint Board is the same as that of the Joint Council, but the spread of its operations is wider. Because the Joint Council for the period of its existence and the Joint Board which has taken over the function of the Joint Council existed in part at least for the purpose of collective bargaining with employers in connection with wages, hours, 'The value of these shipments, as evidenced in the record, includes transportation charges and is without reference to trade discounts. The cost of transportation is in truth a part of the value of the goods when received by the purchaser Prompt pay- ment results in the extension of an 8-percent trade discount- I-do not consider this circumstance relevant to diminish the stated value of the interstate shipments. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conditions of employment of employees, I find that the Joint Council and the Joint Board were and are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Harold and Coleman Solursh, with their father David, for a number of years antedating the occurrence of any unfair labor practice complained of here, were partners in a cloak manufacturing enterprise known as Smart Set. Until Smart Set ceased doing business in early 1957, its employees were covered by an agreement running between the owners of Smart Set and the Los Angeles Cloak Joint Board, also an affiliate of International Ladies' Garment Workers' Union, but not one named as a respondent in this proceeding. When Harou and En Tour began business, Harold Solursh left Smart Set and actively managed the two new companies. Cole- man Solursh remained as manager of Smart Set. The contention on behalf of the Joint Council was raised in this record that En Tour and Harou were merely exten- sions of Smart Set, engaging in the same business as Smart Set and that the contract between the Cloak Joint Board and Smart Set should be viewed as covering the employees of Harou and En Tour. The evidence is clear enough however, that neither Harou nor En Tour at any time of moment here have engaged in the same manufacturing operations as Smart Set. It appears that the Cloak Joint Board does not assert jurisdiction over employers engaged in dress manufacturing. I find no persuasive evidence to the effect that either Harou or En Tour has at 'any time engaged in the manufacture of garments other than dresses. In late 1955 and in early 1956 various representatives of the International Ladies' Garment Workers' Union or of one of the Joint Boards mentioned here, urged each of the members of the Solursh family who were engaged in these three manufac- turing operations to recognize -and deal with the Joint Council in respect to the employees of Harou and En Tour. These appeals, suggestions, threats, or warnings, whatever their nature, were unproductive. At no time did Harou or En Tour recog- nize or deal with any board, council, or local affiliated with the International Ladies' Garment Workers' Union. In July 1956, pickets appeared before the entrance of Harou and En Tour. Some of them carried signs saying that they were on strike and bearing the name of the Joint Council, as shown in the caption of this Report. The picketing continued and in August a petition was filed in behalf of Harou and En Tour asking that an election be conducted among their employees. Before any hearing was directed on the petition, Basil Feinberg, counsel for the Respondent here, filed a disclaimer saying, "The unions do not consent to any election inasmuch as they have made no claim for recognition." After an election had been directed but before it was conducted, Attorney Feinberg, on December 14, 1956, notified the Board that the Joint Council disclaimed any interest in the representation of the employees of Harou and En Tour and asked that no election be held. An election was conducted on January 4, 1957. The Joint Council received 10 of the 51 votes cast. This result was certified to the parties by the Regional Director on January 15, 1957. The picketing which began in July 1956 continued for the remainder of that year and for that portion of 1957 through the last date of the hearing on the com- plaint now being considered. Testimony that the name of the Joint Council on the picket placards was displayed throughout this period until sometime in May 1957 is undisputed and is credited. Sometime in May a change was made in the lettering on the picket signs so that instead of the Joint Council, the name Los Angeles Dress and Sportswear Joint Board now appears. Shortly after the picket signs first ap- peared, the word "strike" was removed, and in its place appeared "Harou, Inc., and En Tour unfair to organized labor." In May 1957 this caption was changed to an appeal to employees to join the "union" for better working conditions, wages, and hours. Until the conduct of the election in January 1957 it is possible, but perhaps improbable, that the Joint Council or one of the unions which it purported to repre- sent was at sometime a majority representative of the employees of either or both the employers. Because of this circumstance I understand the complaint not to allege any unfair labor practice in connection with the picketing prior to the election. When, however, the Joint Council received only 10 of the 51 votes cast on January 4, it became manifest that a majority of the employees did not desire such representa- tion. It is the theory of the complaint that by continuing picketing following the conduct of the election the Joint Council coerced and restrained employees by attempting to force Harou and En Tour to extend recognition to a minority union. It is clear enough that had Harou and En Tour done so their employees would have been h"rn'ccPd with a bargaining representative not of their choice and thus their rights under Section 7 of the Act would have been transgressed. JOINT COUNCIL OF SPORTSWEAR 665 As the picketing did continue after the election and as the picket signs character- izing Harou and En Tour as unfair remained unchanged until sometime in May, perhaps the first question to be decided is as to the objective of the picketing. It is argued for the Joint Council that at no time did it demand recognition and that the picketing so far as the evidence discloses may have been for some purpose other than recognition. At least this much is true, that for a period of many months the Joint Council expended funds and energy maintaining pickets at the entrance to the Employers' premises and that during most of this time Harou and En Tour were characterized by the picket signs as unfair. Just what unfair conduct on the part of the Employers was complained of is not specified. Certainly something inter- ested the Joint Council, persuaded it that in some respect the Employers were unfair, and resulted in the pressure of the picketing. Counsel for the Respondent suggests that it might have been that the Joint Council was seeking recognition as bargaining representative for its members among the employees. If so, no such request was ever made of the Employers. Coleman Solursh testified that Sam Schwartz, business agent of the Joint Council, in August 1956 told him that he should sign a contract, presumably with the Joint Council. Schwartz denied that he had made such a sug- gestion. I credit Solursh on this point and I find that Schwartz in behalf of the Joint Council asked recognition of Solursh in August 1956. Failure to recognize the Joint Council provides the only plausible reason in the circumstances of this case for the maintenance of the pickets for such an extended period of time. I find that the picketing from July 1956 until some date in May 1957 had for its purpose the gaining of recognition from Harou and En Tour of the Joint Council as bargaining representative for the employees. The Board has never passed upon the question whether picketing by a minority union for recognition amounts to coercion and restraint of employees who have demonstrated in some fashion that they do not desire to be represented by the picket- ing union. The natural and probable consequence of the posting of the employ- ers' premises as unfair, is to discourage employees from reporting for work, to persuade truckdrivers and others not to make deliveries, and generally to diminish the business being conducted at the picketed premises. It needs no argument to persuade that this is potent pressure on the employer and suggests to him the desira- bility of granting the recognition requested to end the harassment of the picket line. Thus the employees live in a climate where their employers are being persistently pressed to impose on them a bargaining representative not of their choice. If the employer gives in to the pressure of the picketing, the employees are deprived of their rights under Section 7. If the employer steadfastly refuses to accede, the threat of diminished business and lessened employment opportunities remains, and the employees' job tenure is in jeopardy. One of the prime purposes of the Act is to permit employees to exercise a choice in connection with a bargaining representa- tive free from economic coercion. I consider that such picketing as has been de- scribed here, in the circumstances given, does constitute an economic coercion on the employees through the threat to their employers' business and through the attempt to enlist the economic power of the employer to force the employees to accept an unwanted representative. I find, therefore, that by picketing after the election with signs characterizing Harou and En Tour as unfair, that the Joint Council restrained and coerced employees of Harou and En Tour in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (b) (1) (A) of the Act? As has been said, the wording of the picket signs changed on some date in May 1957 and the name of the Joint Board was then substituted for the Joint Council. Upon this record I do not feel called upon to decide whether the picketing as now being conducted is violative of the Act, and I do not do so. If the picket signs now constitute mere appeals to employees to join a union, if they no longer characterize the employers as unfair, and if they do not encourage or invite sympathizers to refuse to work and to refrain from making or accepting deliveries, another and perhaps different case is presented. 2 Counsel for the Joint Council argues that the decision in N. L. R. B. v. Local 50 etc. (Arnold Bakers, Inc ), 245 F. 2d 542 (C. A. 2), does not permit the conclusion reached here. I find that the cited case is distinguishable from the one here considered. There the picket signs carried, literally, an appeal for a consumer boycott after another union had been certified following an election. Here both before and after the election the employers were described as unfair in circumstances permitting only the inference that they were "unfair" because they withheld recognition from the Joint Council True, the Joint Council said that it made no claim to be the choice of a majority of the em- ployees and was most unwilling to undergo the test of an election but the picketing speaks more loudly and more persuasively than the disclaimers. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the testimony by John Ulene was clearly and flatly that the Joint Coun- cil had gone out of existence in 1955, Sam Schwartz, business agent for the Joint Council and for the Joint Board, testified that the picketing was being conducted for the Joint Council. Obviously, the picketing was under the direction of the Joint Council or under that of the Los Angeles Dress and Sportswear Joint Board in the name of the Joint Council. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Joint Council set forth in section III, above , occurring in connection with the operations of the employers set forth 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 obstructing com- merce and the free flow of commerce. V. THE REMEDY - Having found that the Joint Council has violated Section 8 (b) (1) (A) of the Act, and it appearing that the Joint Board is for all purposes of interest here the successor to the Joint Council , it will be recommended that the Joint Council and its successor cease and desist from the conduct found violative of the Act herein. 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. Joint Council of Sportswear, Cotton Garment , Undergarment & Accessory Workers Union, AFL-CIO, and Los Angeles Dress and Sportswear Joint Board are labor organizations within the meaning of Section 2 (5) of the Act. 2. Harou, Inc., and En Tour are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. By picketing the premises of Harou and En Tour for the purpose of obtain- ing recognition, the Joint Council has restrained and coerced employees of Harou and En Tour and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] New England Power Company (Western Division ) and Brother- hood of Utility Workers of New England, Inc., Petitioner. Case No. 1-I?C-5115. April 30, 1958 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William I. Shooer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Leedom and Members Rodgers and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 120 NLRB No. 98.