United Hatters, Cap & Millinery Workers, Etc.

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By such causation and by preventing Satchell from reporting for work on or about July 27, 1957, Local 10 has restrained and coerced Satchell in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. By refusing employment to A. T. Satchell on August 27 and October 19, 1957, PMA has discriminated against Satchell in violation of Section 8(a)(3) of the Act. 6. By such discrimination PMA has interfered with, restrained, and coerced Satchell in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices violative of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. The evidence does not establish a violation of the Act on the part of the International. [Recommendations omitted from publication.] United Hatters, Cap & Millinery Workers International Union, AFL-CIO, its agents and Phillip Ross, Regional Director of the Union and E. J. Lipschutz, Samuel Rosenberg, Nathan Lipschutz, Sidney Lipschutz and Frank Lipschutz , doing busi- ness as Louisville Cap Company. Case No. 9-CB-398. April 2, 1959 DECISION AND ORDER On December 12, 1958, Trial Examiner John C. Fisher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain un- fair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondents and the General Counsel filed exceptions to the Inter- mediate Report and supporting briefs. The Board 1 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 rec- ord in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications and additions noted below. 1. The complaint alleged, and the Trial Examiner found, that the object of the Respondent Union's picketing, customer appeals, and boycott campaign was to compel the Louisville Cap Company to recognize it as the exclusive bargaining representative of its em- ployees although a majority of the employees had not designated the Union to represent them. We agree and therefore conclude, as did the Trial Examiner, that the exertion of economic pressure upon Louisville Cap Company's business in furtherance of the Union's IPursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Bean , and Fanning]. 123 NLRB No. 74. UNITED HATTERS, CAP & MILLINERY WORKERS, ETC . 573 recognition objective restrained and coerced the Company's em- ployees in the exercise of their right of free choice respecting a representative, in violation of Section 8(b) (1) (A) of the Act.2 2. The complaint also alleged that the Respondents threatened force and violence against employees of the Louisville Cap Company in violation of Section 8(b) (1) (A) of the Act. The Trial Examiner found that the Respondents had committed the unlawful acts as alleged and relied on them in determining that the Respondent Union was seeking recognition. He did not, however, include them in his conclusions of law. The General Counsel excepts to this omission. We find that the Respondents restrained and coerced employees in violation of Section 8(b) (1) (A) by the acts enumer- ated below, and we shall provide an appropriate order to remedy such violation. a. The Respondent Phillip Ross, the Union's regional director and in charge of the strike at the Company's plant, announced to employees Cooper, Corbin, Bridges, and Spalding that, if necessary in organizing, the Union would blow up the plant. b. Edwin Hale, a picket line captain and one of the Union's paid organizers, told employee drivers Hanna and Cooper that they would meet with bodily harm and said that he would throw "Molotov cocktails" in their trucks. Hale also threatened Hanna by asking him if he would like to have his leg broken. He further threatened employees Cooper and Woodson by warning that "someday you will get into the trucks and find nothing but a steering wheel in your hand." Similarly Hale, in the presence of employees, threatened to beat up Company Supervisor Gluckman. c. Victor Gottbaum, an assistant of the Respondent Ross, told employee Hanna that he had come down to Louisville to 'make trouble and that he would `like to start bumping heads together.' " d. Picket Nita Parrish threatened to assault employee Halpin if the latter were not pregnant. e. Picket Wadena O'Neal, who was accompanied by the Respond- ent Ross, pushed employee Willibaum off the sidewalk as the latter was leaving the plant after work.3 2 Drivers, Chauffeurs and Helpers Local 639 (Curtis Brothers, Inc.), 119 NLRB 232, set aside and remanded , 43 L.R .R.M. 2156 ( C.A., D.C.) : International Association of Machinists, etc. (Alloy Manufacturing Company), 119 NLRB 307 , enforcement denied in part 263 F. 2d 796 (C.A. 9). We do not acquiesce in the opinion of the court of appeals in the Curtis Brothers case respecting the legality of recognitional picketing and of that of the court of appeals in Alloy Manufacturing Company case respecting the legality of a consumer appeal and a product boycott in a like situation to that presented here. With all due respect for the opinions of the courts in those cases , we do not adopt their conclusions until the Supreme Court has had an opportunity to rule on these issues. Member Panning dissents from the majority's conclusion that the Respondent Union violated Section 8(b) (1) (A) through Its picketing and consumer appeals for the reasons stated in his dissenting opinions in Andrew Brown Company, 120 NLRB 1425, and Machinery Overhaul Company, Inc., 121 NLRB 1176, and 'for the reasons stated by the above courts of appeals in the Curtis and Alloy cases. 8 In view of the many incidents of coercive misconduct found in violation of Sec- tion 8(b) (1) (A), we deem it unnecessary to decide whether other incidents of misconduct 574 .DECISIONS OF NATIONAL LABOR RELATIONS BOARD ADDITIONAL CONCLUSIONS OF LAW By assaulting or threatening to assault or injure physically the Company's employees, the Respondents have restrained and coerced said employees in the exercise of the rights guaranteed them by Section 7 of the Act, thereby violating Section 8(b) (1) (A). 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, United Hatters, 'Cap & Millinery Workers International Union, AFL-CIO, its offi- cers, representatives, agents, successors, and assigns, and Phillip Ross, regional director and International Representative of the Union, shall: 1. Cease and desist from: (a) Picketing E. J. Lipschutz, Samuel Rosenberg, Nathan Lip- schutz, Sidney Lipschutz, and Frank Lipschutz doing business as Louisville Cap Company for the purpose of obtaining recognition and a contract as exclusive bargaining agent at a time when the Respondents do not represent a majority of the Company's em- ployees in an appropriate unit. (b) Conducting a boycott campaign against the Company's prod- ucts for the purpose of forcing the Company to recognize the Re- spondents as the exclusive representative of the Company's em- ployees or to enter into a contract with the Respondents when they do not represent a majority of the Company's employees in an ap- propriate unit. (c) Assaulting or threatening to assault or injure physically the Company's employees or engaging in any act of interference with the employees' ingress to and egress from work. (d) In any like or related manner restraining or coercing said employees in the exercise of the rights guaranteed in Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by 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) Post in conspicuous places at its business offices and meeting halls, in Louisville, Kentucky, copies of the notice attached hereto enumerated by the Trial Examiner were also coercive . Such findings would be but cumula- tive and would not alter the remedial order in this case. UNITED HATTERS, CAP & MILLINERY WORKERS , ETC. 575 marked "Appendix." 4 Copies of said notice , to be furnished by the Regional Director for the Ninth Region , shall , after being duly signed by the Respondent Union's representative and by Phillip Ross, be posted by the Respondent Union immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, de- faced, or covered by any other material. (b) Mail to the Regional Director for the Ninth Region signed copies of the notice attached hereto marked "Appendix," for posting by E. J. Lipschutz, Samuel Rosenberg, Nathan Lipschutz, Sidney Lipschutz, and Frank Lipschutz , doing business as Louisville Cap Company, the Company willing, at all places where notices to the Company's employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Ninth Region , shall, after being duly signed by the Respondents Union's representative and by Phillip Ross, be forthwith returned to said Regional Director for such posting. (c) Publish in "The Hat Worker" a notice, as approved by the Regional Director for the Ninth Region, that the Respondents have ended their boycott of the Company's products and distribute copies of said notice to all addressees to whom information on the boycott and appeals for support of the boycott campaign were sent. Such notice shall be submitted to the Regional Director for the Ninth Region for his approval before publication and distribution as herein directed. (d) Notify the Regional Director for the Ninth Region in writing, within 10 days from the date of this Order, what steps the Respond- ents have taken to comply herewith. 4In 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 MEMBERS OF UNITED HATTERS, CAP & MILLINERY WORKERS INTERNATIONAL UNION, AFL-CIO; TO ALL EMPLOYEES OF E. J. LIPSCHUTZ, SAMUEL ROSENBERG, NATHAN LIPSCHUTZ, SIDNEY LIPSCHUTZ, AND FRANK LIPSCHUTZ, DOING BUSINESS AS LOUISVILLE CAP COMPANY TO ALL ADDRESSEES TO WHOM INFORMA- TION ON THE BOYCOTT AND APPEALS FOR SUPPORT OF THE BOYCOTT CAMPAIGN WERE SENT Pursuant to a Decision and Order of the National Labor Rela- tions Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AVE WILL NOT picket Louisville Cap Company for the purpose of obtaining recognition and a contract as the exclusive bargain- ing representative of the Company's employees at a time when we do not represent a majority of the Company employees in an appropriate unit. AVE, WILL NOT conduct a boycott campaign against the Com- pany's products for the purpose of forcing the Company to recognize us as the exclusive representative of the Company's employees or to enter into a contract with us at a time when we do not represent a majority of the Company's employees in an appropriate unit. WE WILL NOT assault, threaten to assault, or injure physically the Company's employees or engage in any action of interference with the employees ingress to and egress from work. WE WILL NOT in any like or related manner restrain or coerce employees of Louisville Cap Company in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL publish in "The Hat Worker" a notice that we have ended the boycott of the products of Louisville Cap Company and distribute copies of said notice to all addressees to whom information on the boycott and appeals for support of the boy- cott campaign were sent. UNITED HATTERS, CAP & MILLINERY WORKERS INTERNATIONAL UNION, AFL-CIO, Labor Organization. Dated------------------ By------------------------------------- (Representative ) (Title) PHILLIP Ross, REGIONAL DIRECTOR, Individual. Dated---------------- By------------------------------------- (PHILLIP Ross) 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 These proceedings authorized and conducted pursuant to Section 10(b) of the National Labor Management Relations Act, 1947 (61 Stat. 136), herein called the Act, were initiated by charges and amended charges filed December 27, 1957, and January 3 and May 26, 1958, against United Hatters, Cap and Millinery Workers International Union, AFL-CIO, and its Regional Manager Philip Ross, herein called Respondent Union and Respondent Ross, respectively, by E. J. Lip- shutz, Samuel Rosenberg, Nathan Lipshutz, Sidney Lipshutz and Frank Lipshutz, copartners, doing business as Louisville Cap Company. A resume of the charges are that: Since on or about August 5, 1957, and at all times thereafter, the above-named labor organization and its agents have restrained and coerced UNITED HATTERS, CAP & MILLINERY WORKERS, ETC. 577 employees in the exercise of the rights guaranteed in Section 7 of the Act by engaging in many incidents of coercive conduct or misconduct , designed to impede the employer's operations and intimidate the employees engaging in such operations; and since on or about December 20, 1957, the above-named labor organization and its agents have restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act by picketing said employer 's premises for exclusive recognition by the employer , and by other activities designed to injure said employer's business, such as appealing to said employer 's customers not to do business with such employer; and since on or about May 5, 1958, the above-named labor organization and its agents have continued picketing said employer 's premises for exclusive recognition, and have engaged in and continued to engage in making appeals to customers of said employer to cease doing business with it , all not withstanding the Supplemental Decision and Certification of Results of Election issued by the National Labor Relations Board in E. J. Lipshutz , Sam Rosenberg, Nathan Lipshutz, Sidney Lipshutz and Frank Lipshutz, d /b/a Louisville Cap Company, 120 NLRB 769, stating inter alia, that the above -named labor organiza- tion is not the exclusive bargaining representative of said employees in the unit found appropriate in said matter . By the above acts and conduct , and other acts and conduct, the above-named labor organization and its agents have restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended, and has violated Section 8(b)(1)(A ) of the Act,' affecting commerce as defined in Section 2(6) and (7) of the Act. The Regional Director , Ninth Region, on July 2, 1958 , filed a complaint and notice of hearing against Respondents particularizing the allegations of unfair labor practices contained in the charges , and reciting the names of the union members, agents , and official personnel alleged to have committed or been respon- sible for the acts charged . Generally, the complaint alleges that in furtherance of a continuing demand for recognition without certification by the Board , the Re- spondents since August 5, 1957, have illegally picketed the premises of Louisville Cap Company at Louisville, Kentucky ; have since said date picketed retail stores and other employers because they refused to cease handling and selling the products of Louisville Cap Company ; and have induced or encouraged the employees of Railway Express Agency in Louisville , Kentucky , to refuse to trans- port, handle, or work on materials shipped to or from Louisville Cap Company or to perform services for the employer in connection with such materials; and that all of the acts done by Respondents was for the purpose of injuring and damaging the Charging Parties' business and thereby forcing them to recognize and bargain with Respondent Union as the exclusive bargaining representative of their employees , all in violation of Section 8(b)(1)(A ) of the Act. In its answer Respondents admitted the jurisdictional allegation of the complaint but denied each and every allegation of unfair labor practices . Respondents' defense was that they were engaged in organizational picketing , after having lost a Board- conducted election, and were not picketing for recognition as a minority union. Copies of the charges, complaint, answer, and all other pertinent processes were duly served upon all parties in interest . Pursuant to notice , a hearing was con- ducted at Louisville , Kentucky , between August 12 and September 29, 1958, before the Trial Examiner duly designated by the Chief Trial Examiner . All parties were present and represented by counsel . All parties were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, to introduce testimony and other evidence pertinent to the issues involved, to argue orally upon the record, and within the time fixed by the Trial Examiner to file written briefs and proposed findings of fact and conclusions of law with the Trial Examiner . There- after, written briefs were duly filed on October 24 , 1958 , by counsel for the General Counsel and the Respondents ' counsel. These briefs have been given careful consideration . Various motions were made by counsel during the hearing. Such motions are disposed of in light of the findings and rulings hereinafter. Section 8(b) (1) (A ) reads: (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 : Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein ; 508889-60-vol. 123 38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 EMPLOYER Louisville Cap Company is a partnership composed of E. J . Lipshutz, Samuel Rosenberg, Nathan Lipshutz, Sidney Lipshutz, and Frank Lipshutz, whose principal office and factory is located in Louisville , Kentucky , where it is engaged in the manufacture and distribution of caps for men and boys throughout the several States of the United States of America. During the calendar year of 1956, it sold and shipped products valued in excess of $100 ,000 in interstate commerce directly to points outside the State of Kentucky . It is found , and Respondents concede that Louisville Cap Company is engaged in commerce and operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. RESPONDENT LABOR ORGANIZATION United Hatters, Cap & Millinery Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act, and that Re- spondent Philip Ross is a regional manager and international representative of the Respondent Union, and as such is its agent as defined in Section 2(13) of the Act. III. THE UNFAIR LABOR PRACTICES The parties involved in the instant proceeding , Board Case No. 9-CB-398, have been engaged in administrative litigation on certain facets of this labor dispute for nearly a year and a half. Final briefs in this phase of the case were submitted on October 24. Since July 8, 1957 , when Union Representative Philip Ross, one of the Respondents herein, contacted E. J. Lipshutz of the Company for the purposes of the Union becoming representative of the employees as their col- lective-bargaining agent, charges and countercharges have been filed. The Com- pany, entirely within its rights , insisted upon an election under Board auspices to determine whether or not the employees desired such representation . The Union thereupon inaugurated an organizational campaign in an effort to obtain a majority of the employees . Within 3 weeks after launching its organization ,campaign , the Union on August 1, 1957, filed an unfair labor practice charge against the Company entitled Case No. 9-CA-1182, and set up a picket line around the plant-which picket line continues to date. That case was dismissed on September 24 without issuance of a complaint after Board investigation. During a pendency of that dispute , the Company filed on August 26, 1957, a representation petition with the Board , entitled Case No. 9-RM-159 in which it asked for a duly conducted Board election . The Union, however, on September 3, 1957, filed a disclaimer of interest in such election , but continued picketing the Company's retail outlets , suppliers, and neutral employers . Also, the Union has through its national newspaper urged its readers to boycott the struck Company's merchandise-alleging that the Company is unfair to the Hatter 's Union. The Union by its executive secretary, G. H. Coleman , also circularized many of the Company's valuable customers asserting the same reason . The Union lost the election 150 to 4 on December 20, 1957. The Board found and held in Case 121 NLRB 1154 on October 5, 1958, that the Union has never claimed to represent a majority of the employees and in fact .has repeatedly disclaimed such majority representation . In affirming Trial Exam- iner L. J. Best, the Board held : Notwithstanding the disclaimer of Respondent Union, the Board issued its Decision and Direction of Election, finding that the continued picketing is "tantamount to a present demand for recognition which renders ineffectual the Union 's disclaimer of interest"-citing Francis Plating Co., 109 NLRB 35 . Thus, the Board held, in effect, that this was not an unfair labor practice strike . This picketing has continued since August 1957 to end of the hearing unchanged except for a language alteration on the picket signs and .aprons which read as follows: TO THE EMPLOYEES OF LOUISVILLE CAP CO. JOIN OUR UNION AND ENJOY ITS BENEFITS. WHEN A MAJORITY OF THE EM- PLOYEES HAVE JOINED, COLLECTIVE BARGAINING WILL BE REQUESTED. UNITED HATTERS, CAP & MILLINERY WORKERS INTERNATIONAL UNION, AFL-CIO. General Counsel Sheeran contended that "the course of conduct in which the Union engaged , both before and after the election of December 20, 1957, con- UNITED HATTERS , CAP & MILLINERY WORKERS, ETC. 579 ,cededly has an object, the injuring and damaging of Louisville Cap's business. No other position could be reasonably maintained . The only issue to be resolved, therefore, in this connection is whether the Respondents' entire course of conduct was designed to force Louisville Cap to recognize and bargain with Respondent Union as the exclusive bargaining representative of their employees at a time when had they done so, they would have engaged in unfair labor practices as defined in Section 8 ( a)(1) and ( 2) of the Act." Counsel Sheeran further con- tended that it is only necessary in this case for General Counsel to prove that such conduct of the Union was designed to persuade the public and customers of Louisville Cap to boycott the products of Louisville Cap's employees' work. General Counsel also contended that Respondents by countenancing and com- mitting certain specific acts in the course and conduct of Respondent Union's strike for recognition against the Charging Parties, interfered with, restrained, and coerced employees of the Company in the exercise of their rights under Section 7 of the Act by threatening to use force and violence against said employees and by impeding or preventing and attempting to impede and prevent said employees and others from entering and leaving the plant. Curtis Brothers (Drivers Union, etc.), 119 NLRB 232, and Alloy Manufacturing Co. (Machinists Union), 119 NLRB 307, and numerous other court and Board cases were cited by Counsel Sheeran to sustain his contentions of violations by Respondents ' within the purview of Section 8 (b) (1) (A ) of the Act. Specially, he contended that the original object of the Union's picketing for recognition purposes never changed to picketing for organizational purposes. Respondents' counsel, Segal, contended that the Union has made a conscientious and pronounced effort to organize the employees of Louisville Cap Company as exemplified by the following traditional means of organizing : ( a) handing out handbills; ( b) picketing with signs containing organizational messages ; (c) holding union meetings ; and (d ) contacting employees at home, in person and by tele- phone. Counsel Segal contended that "it is the position of the Respondent that it is engaged in organizational picketing and has met the requirements of the Board under its new doctrine as set forth in the Paint Makers Union case (Andrew Brown Co.) 120 NLRB 1425." Counsel Segal relied on Member Fanning's dissent in the Curtis Brothers case and argued that in the Paint Makers Union case where the picketing was held to be violative of 8(b )( 1)(A) under the Curtis Brothers doctrine the following language is found: In these circumstances , we find, as did the Trial Examiner, that the Re- spondents have continued to picket the Company 's premises with the same object they sought to achieve when they first began picketing , namely, majority recognition , although they only represented a minority of the em- ployees. Other than two letters of disclaimers , which the Board previously found in the representation case to be insufficient proof of a change in objective in view of the Respondents' inconsistent subsequent conduct, the Respondents have offered no evidence establishing that they sought only to organize the Company's employees, as they contend . Indeed, there is nothing in the record to indicate that the Respondents made any effort to reach the employees through traditional methods utilized by unions to organize workers. Thus, no circulars were distributed to the employees ; no personal solicitations were attempted; the picket signs were not addressed to the employees of the Company nor were any measures taken to persuade them to join the Re- spondent Unions. In fact, the only overt effort made by the Respondents' pickets to call attention to their alleged cause was made only when truck- drivers approached the shipping or receiving entrances to the Company's premises . Accordingly, we find, contrary to the Respondents ' contention, that the Respondents never abandoned their original object which was to compel the Company to recognize them as the exclusive representatives of its employees. ( Emphasis supplied.) The entire record in this case divides into two parts or categories : (a) facts which bear upon the question at issue occurring up to the time of the filing of the complaint, i.e., July 2, 1958 , and (b ) facts which occurred subsequent to that date. The General Counsel objected to the admission of any evidence bearing on the case after such date . The Trial Examiner provisionally permitted the introduction of evidence subsequent to the issuance of the complaint because he concluded that, in an administrative hearing of this type, all of the accumulated facts up to the end of the hearing should be available to him, to the Board , and possibly the courts in resolving the issues and questions of public policy involved in this 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prolonged and protracted litigable dispute. If erroneously admitted, the Triaf Examiner preferred to err on the side of inclusion, rather than chance a reversal' for exclusion-necessitating reopening the case. Further, after careful study of the whole record, parts (a) and (b), the Trial Examiner is convinced that his original provisional decision to admit part (b) was sound and advisable, and he hereby affirms such ruling. One reason is that after study and analysis of part (a), the Trial Examiner concluded that the Respondent Union and Philip Ross had. engaged in the unfair labor practices alleged in the complaint, and the strike was, conducted and prolonged by Respondents, not for the purposes of organization,, but in truth and in fact, to force the Company to recognize the minority Union. at any cost, both to the Company and to its employees who had repudiated the Union by a vote of 150 to 4. The Trial Examiner concluded that the continuance of the strike after December 20, 1957, was calculated and designed to force recognition by a minority. The evidence bearing on phase (b), after July 2, 1958,. substantiates and documents the conclusion that the continued picketing was for the purpose of forcing the Company to recognize a minority union, all in violation of the rights of the majority of the employees as decided by the Board. The complaint alleged that on or about August 20, 1957, Respondent Ross as. agent for the Respondent Union, threatened in the presence of employees that if necessary to organize it, said plant would be blown up. Employees Cooper, Corbin, Spaulding, and Bridges testified that Ross made this threat to them. Ross. did not deny this threat but stated that he said it as a joke or jest. Although the threat was never put into execution, it exemplifies a pattern of conduct pursued by union organizers to forcibly organize the employees. Cf. Progressive Mine Workers etc. v. N.L.R.B., 187 F. 2d 298 (C.A. 7). Picket-Line Captain Ed Hale admitted that he followed company trucks driven by employees "to harass them."' He is credibly quoted as telling drivers Hanna and Cooper that they would meet, with bodily harm and that "Molotov cocktails" would be thrown in their trucks.. The Trial Examiner finds these facts to be unfair labor practices. The complaint alleged that during the period from on or about August 12, 1957, to on or about September 30, 1957, the Respondents, by and through their agent, Edwin D. Hale, cursed, harassed, threatened, and interfered with the work of employees because they refused to join in the strike. Picket-Line Captain Hale was one of the Union's paid organizers. Admitting that part of his job was to, follow company trucks and harass employees, Hale not only threatened employees. Hanna and Cooper with bodily injury but called them "scabs," threatened to assault Company Supervisor Gluckman for taking his picture while Hale was. talking to employees. Gluckman also accused Hale of telephoning him at his. home in the middle of the night and abusing him and his family. Hale equivocated but did not deny such conduct. Employee Cooper credibly testified that Hale- threatened him and fellow employee Woodson in September 1957 as warning that "Someday you will get into the trucks and you won't have nothing but a steering- wheel in your hand." The complaint alleges and General Counsel proved that during the period from, on or about September 2, 1957, to on or about September 20, 1957, Respondents. by and through their agent, Victor (Professor) Gottbaum, cursed, harassed, threat- ened, and interfered with the work of employees because employees refused to. join in the strike. Victor Gottbaum was an expense-paid assistant of Respondent Ross and accompanied him in connection with the Union's boycott campaign. According to accepted testimony of employee Jean Rawlins, Gottbaum insulted employees Pat Higgins, Ruth Brown, Charlene Grant, Les Bayes, and herself by saying that prostitutes were smarter than they were because prostitutes made $100- per week and they were only making $50 a week. Employee Hanna credibly quoted Gottbaum as stating that he had come down to Louisville to make trouble and that he would "like to start bumping heads together." Tactics of intimidation and ridicule present in this case, negative the free and voluntary concept of- organization for collective bargaining for which the Labor Management Relations Act was designed. The complaint alleges, and it was proved by General Counsel that on or about- August 20, 1957, the Respondents by and through their picket and Agent Nita Parrish, threatened and harassed employees because they refused to join in the strike. Employees Jean Rawlins, Patricia Higgins, and Charlene Grant credibly testified that picket Nita Parrish, in the presence of other pickets threatened' employee Irene Halpin: "If you weren't pregnant, we would really give you a working over." Obviously such threats are not indicative of a good faith and' free choice union organization campaign. The complaint further charges, and General Counsel sustained the burden of- proving that on or about September 5, 1957, picket and Respondent Agent Wanda. UNITED HATTERS, CAP & MILLINERY WORKERS, ETC. 581 O'Neal, pushed, shoved, cursed, and harassed employees because they refused to join the strike. Employee Annette Willibaum working while her husband was serving overseas in the Armed Forces credibly testified that she and her car pool companion, Ida Dugan, when leaving work and going to their automobile, were pushed off of the sidewalk by picket Wanda O'Neal who was accompanied by Respondent Ross. Picket O'Neal challenged her to get out of the car, at which time employee Willibaum's father, John Higgins, got out of his automobile, directed his daughter to go home, and admonished picket O'Neal to leave her alone. O'Neal continued to berate Willibaum. Respondent Ross' countenancing .such conduct is a hallmark of the Union's campaign of so-called organization under his guidance for which the Union is responsible. (Cf. Roadway Express, Inc., 108 NLRB 874.) After the Board-conducted election , December 20, 1957, in which the Union was repudiated by the employees 150 to 4, Respondent Ross and the union agents did not discontinue their illegal conduct. On the contrary, the picket line re- mained intact, supported financially by the International; and Director Ross belligerently telephoned Martin Lewis, owner of Consolidated Sales Co., and .complained about Consolidated's billboard (which exhibited Lewis' 10 or 12 suppliers' advertisements) permitting Louisville Cap's sign being adjacent to union made "Big Yank" overalls. (Cf. The facts are that each supplier had erected and paid for his own sign on Consolidated's wall space.) Ross, however, told Lewis that he did not like his attitude and that he would picket Lewis' store -which he did beginning April 10, 1958. This picket line consisted of a group, usually two or three men and six to eight girls. These pickets circulated handbills to Consolidated's customers reciting as follows: "This store sells Non-Union Caps made by The Louisville Cap Co. Please buy only union made caps. Look for this Union Label (Label). It marks hats and caps made by skilled craftsmen who work under decent American labor standards. United Hatters, Cap and Millinery Workers International Union, AFL-CIO." These pickets continued to picket before Lewis' store up to and including the time the complaint was issued, July 2, 1958. This constitutes a consumer boycott, 'devoid of a legitimate labor dispute either with the manufacturer, Louisville Cap Company, or with Consolidated Sales, Inc., the retailer. The Trial Examiner subscribes to the obvious conclusion of General Counsel Sheeran: "We submit that an `organizing' campaign which includes a boycott campaign of the products made by the very employees whom they [Respondents] purportedly are seeking to represent is wholly inconsistent." It is apparent to the Trial Examiner that the Union's campaign was one of forcible recognition of a minority as distinguished from a good-faith union organizational campaign for purposes of free collective bargaining. This finding is documented by the abortive picketing by the Union for 30 minutes of the Charlestown 50 to $1 Store, Charlestown, Indiana. For the adjudicated facts in these cases, see United Hatters Cap and Millinery Workers International Union (Louisville Cap Co.), 121 NLRB 1154, Cases Nos. 9-CC-126 and 9-CC-129 decided October 1, 1958. The precipitant action and failure to retract or repudiate erroneous official allegations by Union Secretary Coleman in letters to many retail customers of Louisville Cap Company, all harmful to the Company and employees, amply evidence that this was a strike for recognition by a minority union, after loss of an election and that the conduct of the picket line was not conducted by the Union in a peaceable manner, but was so condoned by the Union. Tactics of Union Agents Ross, Hale, and Gottbaum further demonstrate that the Union was not attempting to organize employees and to solicit voluntary employee memberships, but were endeavors to forcibly thrust membership upon the company employees and to compel the Company to recognize a minority union. This is found to be a violation of Section 8(b)(1)(A) of the Act. The activities of the Union after the filing of the complaint on July 2, 1958, and referred to heretofore as part (b), evidences to which General Counsel strenuously objected-and for whom exceptions were saved, constitute a great proportion of this record. Manifestly, if Respondent Counsel Segal was permitted, as he was, to adduce evidences for which he made an offer of proof contending that the Union had made a conscientious and pronounced effort to organize the employees of the Louisville Cap Co. as exemplified by the following traditional means of organizing : (a) handing out handbills; (b) picketing with signs con- taining organizational messages; (c) holding union meetings; (d) contacting employees at home, in person and by phone, certainly, then General Counsel was entitled to rebut such new matter. This, Counsel Sheeran, very effectively did by calling witnesses who offset all of the "organizational" testimony of Re- 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent witnesses. It was demonstrated that only one employee, and she, a• disgruntled one, had changed her allegiance from employees loyal to the Company and had cast her lot with the Union. Activities by the Union in the nature of handing out handbills, contacting employees at home, and importuning employees, to join the picket line convinced the Trial Examiner that this continued effort by the Union was designed to further hurt the Company and the employees who had' refused to be represented by the Union. Union Representative Al Mays, who. was in charge of circulars, house visits, and payment of pickets, appointed by Respondent Ross, contacted no employees after the election of December 20, 1957, and January 1958, and did not even start keeping a book of names of employees for purposes of personal contact until the middle of February 1958. Mays' testimony that many individual employees which he recited from a list were contacted at home or by telephone was completely discredited. Mays, by his demeanor on the stand, and the absolute contradiction by witnesses of assertions. of contacts and conversations alleged to have been had by Mays with such wit- nesses was so palpably false that the Trial Examiner is compelled to discredit his entire testimony. During mid-August to September 1958, while the hearing was. in recess a union "trainee," Robert Gillepsie, unemployed husband of picketeer Gillepsie, only contacted six employees. Union Organizer Adams, assistant to. Respondent Ross, from the beginning of the strike and in charge of the strike after September 1, 1958, and the person directly in charge of "home visits," did' not contact any employees to get them to join the Union. The Union's contention that it was engaging in an organizational campaign by distributing handbills, pamphlets, and circulars after filing of the complaint- including testimony that it was still conducting an organizational effort by soliciting. memberships and importuning employees to join the repudiated Union in the corridors of the Federal courthouse in Louisville while this hearing was in progress. is all part and parcel of the same technique. The purpose of the Union from: the inception of its campaign was to force recognition on the Company, which if successful would have laid the Company liable to a charge of an implicit unfair labor practice charge, and would have deprived the employees of rights guar- anteed them under Section 7 of the Act. Such conduct of the Union Respondents. constitutes a violation of Section 8(b)(1)(A) of the Act, and it is so found. In Conclusion Section 8 (b) (1) (A) provides, so far as here relevant, that it shall be an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of their Section 7 rights; and Section 7 (in part) guarantees to, employees the right to self-organization and to bargain collectively through repre- sentatives of their own choosing. The Board has held in a line of recent decisions 2 that picketing by a minority union for recognition as the exclusive bargaining representative of an employer's. employees is violation of Section 8(b)(1)(A) because it results in economic restraint and coercion of the employees in the exercise of their Section 7 rights- The rationale of the Board in reaching this conclusion is fully explicated in the Curtis and allay cases and need not be here repeated. Those decisions, being plainly in point, constitute precedents which are binding upon the Trial Examiner. It is therefore concluded and found, for the reasons stated in those cases, that Respondents, by picketing the Company's plant and by conducting its consumer boycott campaign, have at all times since December 20, 1957, restrained and. coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(b)(1)(A). ! Drivers Union, etc. (Curtis Brothers ), supra; Machinists Union (Alloy Manufacturing Company), supra; Local Union No. 12, international Union of Operating Engineers (Shepti- herd Machinery Company), 119 NLRB 320; International Brotherhood of Teamsters Union (Rufale's Trucking Service, Inc.), 119 NLRB 1268; Paint, Varnish & Lacquer Makers Union, etc. (Andrew Broach Company), 120 NLRB 1425; General Teamsters, etc., Union (H. A. Rider & Sons), 120 NLRB 1577; Joint Council of Sportswear, etc. Union, 120 NLRB 659; United Rubber, etc., Workers of America ( O'Sullivan Rubber Corporation),. 121 NLRB 1439 (decided October 21, 1958). On November 11, 1958, the U.S. Court of Appeals for the District of Columbia refused enforcement of the Curtis Brothers case, but the Trial Examiner is, nevertheless, bound by the Board's rule in that case, the Court of Appeals of the District of Columbia to the contrary notwithstanding. TOLEDO MARINE TERMINALS, INC. 583 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. United Hatters, Cap & Millinery Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, and Philip Ross is regional director and International Representative, United Hatters, Cap & Millinery Workers International Union, AFL-CIO. 2. E. J. Lipshutz, Samuel Rosenberg, Nathan Lipshutz, Sidney Lipshutz and Frank Lipshutz, doing business as Louisville Cap Company, is an employer within the meaning of Section 2(2) of the Act. 3. By picketing the premises of the Company for the purpose of obtaining recog- nition and a contract as the exclusive bargaining representative when they did not represent a majority of the Company's employees, Respondents restrained and coerced said employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(b)(1)(A). 4. By conducting a boycott campaign against the Company's products for the purpose of forcing the Company to recognize Respondents as exclusive representa- tive of the Company's employees and to enter into a contract with Respondents when they did not represent a majority of the Company's employees, Respondents. restrained and coerced said employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(b)(1)(A). 5. The aforesaid unfair labor practices, having occurred in connection with the Company's operations as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondents have engaged in certain unfair labor prac- tices, I shall recommend that they cease and desist therefrom and that they take certain affirmative action, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. In order to remedy the effects of Respondents nationwide boycott campaign, it will be recommended that Respondents publish in their official publication, "The Hat Worker," a notice that, pursuant to the recommended order herein, they have ended their boycott of Louisville Cap Company products and that they make= distribution of such notice to all addresses to whom boycott material was sent. [Recommendations omitted from publication.] Toledo Marine Terminals, Inc. and International Brotherhood of Longshoremen, AFL-CIO, Petitioner. Case No. 8-RC-3325.. April 2, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before John Vincek, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed., 1 The Intervenor, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, & Helpers of America, Local 293, did not appear at the hearing, but notified the Regional Director that It wished to be put on the ballot in the event of a direction of election. The hearing officer regarded this request as a motion to intervene, which he granted over the objections of the Employer and the Petitioner. As the other parties have not been prej- udiced by the Intervenor's failure to appear at the hearing or to advise the Employer of its interest in this proceeding, and as we are administratively satisfied that the Intervenor has an adequate showing of interest, the hearing officer's ruling was proper and is therefore affirmed. 123 NLRB No. 71.