International Ladies Garment Workers Union

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the retail and taxicab industries, and there does not appear to be a similar reason for including real estate sales under the retail standard. The contention that the activities of Respondents form part of a link in the chain of commerce, in addition to resting on the sale of homes for builders, relies on the fact that various escrow agents sent in excess of $100,000 in funds to out-of-State sellers for whom the Respondents sold homes . Inasmuch as these services and trans- mittals were not rendered to Respondents but to the buyer and seller and there is no showing in the record that these companies were in or affected commerce, it seems clear that no relevant jurisdictional standard applies to Respondents in this connec- tion. The link in commerce standard has heretofore been restricted to transporta- tion activities. H P 0 Service, Inc., 122 NLRB 394, and I do not believe the facts of this record provide a persuasive argument for extending it here, particularly in view of the fact that the escrow agents render services not to Respondents but to the buyers and sellers of real property. In conclusion, the Respondents' business activities here presented in the judgment of the Trial Examiner, are properly regarded as local activities contemplated by the Supreme Court in passing on the extent of the interstate power . N.L.R.B. v. Jones and Laughlin, 301 U.S. 1, 37. Undoubtedly the scope of this power must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distincition between what is national and what is local and create a completely centralized government. It is recognized that the substantial volume of new home sales on behalf of the builders might provide a basis for another presumptive standard akin to the retail sales standard. However, it would require proof of jurisdiction over the builders which is not in the record. The real estate business ranging from a major developer to a minor local real estate salesman listing only previously occupied homes, covers a broad spectrum of enterprise, national and local, and it is not believed, on the basis of this record, that the real estate business is properly susceptible to a blanket declination of juris- diction as the Board may do in the recently amended Act 7 unless the generic term, real estate business , is qualified as to the type of operation involved. Inasmuch as it is found that .the evidence here does not preponderate in establish- ing legal jurisdiction, it would serve no purpose to speculate as to what new dis- cretionary standard might be applied to the type of real estate business reflected by this record. CONCLUSIONS OF LAW 1. Respondents are, and at all times material herein have been, employers within the meaning of the Act. 2. The business operations of Respondents are not in or do not affect commerce within the meaning of the Act. [Recommendations omitted from publication.] 7 Section 14(c) (1) : The Board, in Its discretion may, by rule of decision . . . decline to assert jurisdic- tion over any labor dispute involving any class or category of employers , where, in the opinion of the Board, the effect of such labor dispute on commerce is not suffi- ciently substantial to warrant the exercise of its jurisdiction : Provided, That the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959. International Ladies Garment Workers Union, AFL-CIO and Twin-Kee Manufacturing Co., Inc.; Josephine Sheehan; Mary Cuilla. Case No. 1-CB-651-2-3. February 21, 1961 DECISION AND ORDER On November 17, 1960, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the 130 NLRB No. 77. INT'L LADIES GARMENT WORKERS UNION, AFL-CIO 615 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 Inter- mediate Report attached hereto. Thereafter, exceptions to the Inter- mediate Report and a supporting brief were filed by the Respondent. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only insofar as they are consistent with this Decision and Order. The complaint alleged, and the Trial Examiner found, that Re- spondent International Ladies Garment Workers Union, AFL-CIO, had violated Section 8(b) (1) (A) by certain remarks made by Re- spondent's agents to nonstrikers during the course of Respondent's strike against Twin-Kee Manufacturing Co., Inc., one of the Charging Parties herein.' One of these incidents occurred on June 9, 1960,2 im- mediately following an encounter between two of Respondent's rep- resentatives who were picketing the Twin-Kee plant, and Edward Kaslowski, an employee and relative of the owner, who was leaving the plant in his automobile. A slight scuffle ensued when the union agents and Kaslowski, in his auto, disputed who was to have the right- of-way. Tempers were understandably high, and the Trial Examiner properly found that the jostling engaged in by the union representa- tives did not constitute restraint and coercion under the Act. As they were leaving the scene, one of the union agents called Kaslowski a "screwball" and said that they had been too lenient with him and would "have to see him some night." The Trial Examiner found that these parting remarks were coercive and violated Section 8('b) (1) (A). We find merit in Respondent's exceptions to this finding. The re- marks are not clearly related to Kaslowski's action in working during the strike and in crossing the picket line, and are more likely attrib- utable to the excitement generated by the scuffle, during which Kas- lowski had brandished a long screwdriver and had taunted the union agents to go ahead and start something. Under the circumstances, we cannot predicate a violation of Section 8(b) (1) (A) on these remarks. The other two incidents occurred on May 6, 1960, the first day of the strike. One involved a comment by a union agent to an employee at her home, concerning the picket line, that "things can get pretty tough down there, like you see on `The Untouchables,' how they break people's heads. . . ." The agent also stated that there might be 200 'Several other statements alleged in the complaint to be coercive were found by the Trial Examiner not to have been unlawful. No exceptions were filed to these findings. 2 The Intermediate Report inadvertently states that this event happened May 6, 1960. ,616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strangers on the picket line the following Monday. The other incident involved a single remark during an hour-long harangue by a union representative to an employee who had recently emigrated from the Azores, to the effect that if she crossed the picket line the Union had good attorneys and might deport her. We agree with the Trial Ex- aminer that both remarks were coercive and violative of Section 8(b) (1) (A). However, we note that they were the only instances of unlawful coercion occurring during the entire course of the strike, which at the time of the hearing had already lasted for over 2 months. They were limited to but two employees, and the record contains no evidence of other unlawful activity by Respondent in connection with its strike. Under the circumstances, we think that the aforementioned incidents are too isolated to warrant a cease-and-desist order, and that no useful purpose would be served by the issuance of such an order in this case.' Accordingly, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] MEMBER RODGERS took no part in the consideration of the above Decision and Order. a See International Brotherhood of Teamsters , etc., Local 659, AFL-CIO (Ready Mixed .Concrete Company ), 117 NLRB 1266, footnote 1. Cf. The Great Atlantic & Pacific Tea Company, Inc, 129 NLRB 757, and cases cited therein INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a duly issued complaint and the answer of Respondent, a hearing was held in Boston, Massachusetts, on July 18 and 19, 1960. The complaint alleges that Respondent through named agents on specified dates in May and June 1960 engaged in described acts and statements toward employees and others that violated Section 8(b) (1) (A) of the Act. Respondent denied the commission of unfair labor prac- tices. Both the General Counsel and the Respondent filed briefs. FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Twin-Kee has its principal place of business in Stoughton, Massachusetts, where it manufacturers, sells, and distributes rainwear and related products. In 1959 Twin-Kee shipped products valued in excess of $150,000 to Mansbrooke Apparel Company, a Massachusetts corporation with its place of business in that State. In the same period Mansbrooke shipped products outside the State of a value in excess of $50,000. It is found that Twin-Kee is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Ladies Garment Workers Union , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The events with which this proceeding is concerned occurred in connection with organizational efforts by Respondent at the Twin-Kee plant in Stoughton, Massa- chusetts. A strike at the aforementioned plant took place on May 6, 1960. Armitage, an international organizer for Respondent, visited the home of Jose- phine Sheehan, an employee of Twin-Kee, on May 7. Armitage spoke to both INT'L LADIES GARMENT WORKERS UNION, AFL-CIO 617 Mrs. Sheehan and her husband, John , on this occasion. The advantages of union adherence were expounded by Armitage. About May 16 or 17 Sheehan came from his home and entered his automobile . He observed that Lyons, Respondent's New England director of organization , got out of a car parked behind Sheehan 's. Shee- han asked Lyons if he had just telephoned .' What if anything was Lyons' reply could not be remembered by Sheehan. As Sheehan drove away Lyons said, "You do it your way and we will do it our way." Sheehan drove to the Porter Street lunchroom where he had a cup of coffee. When he came out across the street Armitage was sitting in the car that Sheehan had earlier noticed in front of his home. Sheehan asked Armitage if he was following him. At this juncture, Lyons walked up the street and joined the conversation . During the conversation , Fraioli, assistant manager of Local 24 of Respondent Union, appeared and was introduced to Sheehan by Lyons. The topic of discussion was the strike and Lyons said that they did not want Mrs. Sheehan to work during the strike . Sheehan said he did not believe that the plant had struck and asked why a vote could not be taken. While the respective points of view were divergent, the conversation does not appear to have been acrimonious and ended with Fraioli making a gesture with his hand and saying, "Get the pickets out, put them up and down here ." As Sheehan testified, "and that seemed to end the conversation . The conversation broke up, and I went to my car and they left." 2 There was at no time any picketing of the Porter Street lunchroom. Sheehan was an employee of the Porter Street lunchroom aforementioned. He had no ownership interest therein. The day of the above conversation he was on his day off. The Trial Examiner is of the opinion that while it is reasonable to conclude that Armitage or Lyons or both had followed Sheehan from his home to the lunchroom , the conversation in front of the lunchroom falls short of trans- gressing Section 8(b) (1) (A) of the Act. There were no pickets , actual or poten- tial, in the vicinity of the lunchroom . Other than being a vocal gesture accom- panied by a gesture of the hand, the incident was wholly inchoate . It was and appeared to be an empty gesture. Sheehan was not even working at the lunchroom on the day in question and his departure and the departure of the union representa- tives appear to have ended the entire affair. While the fructification of a threat is not an essential ingredient of a violation , it is my opinion that the statement of Fraioli , under the circumstances, did not restrain or coerce Sheehan or his wife and therefore did not infringe upon his wife's rights under Section 7 of the Act. Rose Good was an employee of Twin -Kee. She was visited at her home by Armitage on several occasions , both before the May 6, 1960, strike, and thereafter. In substance Armitage was endeavoring to persuade Good that she should join the Union. On the day of the strike, Good had gone to work. That evening, Armitage came to Good's home and repeated his request that she join the Union Armitage told Good that she should not go to work during the strike. He said , "Things can get pretty rough down there, like you see on `The Untouchables,' how they break people's heads." Good said there were only five girls on strike and that she knew them. Armitage replied, "There wouldn't be only the girls you work with down there, there will be 200 people down there Monday morning you wouldn't even know." Rose Marie Good, the daughter of Rose Good, was present during the aforementioned conversation and corroborates her mother 's testimony. Armitage denied that he mentioned "The Untouchables" or referred to breaking heads .3 He testified that he might have said that the Union would bring in people from other shops to picket the plant but did not know if he mentioned the number "200." The Trial Examiner credits the testimony of Rose and Rose Marie Good? It is found that the reference to the possibility of physical violence on the picket line in the context of 200 stranger pickets was violative of Section 8(b)(1)(A ) of the Act. On May 6, about 4 p.m., Kaslowski, a presser at Twin-Kee and brother -in-law of of the owner, drove his car from the plant parking lot toward the intersection of Fourth and Park Streets . The distance from the parking lot to the intersection was about 75 yards . Sitting in the front seat of the car with Kaslowski were Desrosier 'Earlier that morning an unidentified telephone caller had asked for Mrs Sheehan. John Sheehan had answered the telephone 2 Testimony regarding this incident and other incidents in the case was in conflict. The Trial Examiner has credited Sheehan's testimony and it is his version that has been set forth 8 "The Untouchables" Is a television program that deals with crime and violence of various types 4 There apparently were about 30 employees at Twin-Kee including supervisors. Two hundred stranger pickets would be a relatively large number 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and White, two female employees. A group of pickets, about five or six females, plus Armitage and Lyons and one or two other union representatives, were loung- ing at the side of the street, off the street, at approximately the intersection area. About the time Kaslowski's car was coming from the parking lot, Lyons and Armitage began walking across Fourth Street.5 The Trial Examiner finds that the timing of Lyons' and Armitage's election to patrol the street was not coincidental and that the action was taken to activate the picketing with reference to the emerg- ing car. The pace of Lyons and Armitage was a slow one, Kaslowski using the word "meander" to describe it. The testimony of the witnesses is in conflict as to Kaslowski's speed and as to details of ensuing events. The Trial Examiner finds that the car was in second gear and probably going about 15 miles per hour.6 There were cars parked on both sides of the street in the area of the approach to the inter- section leaving a clear space of 15 or 20 feet. Kaslowski and Desrosier testified that he stopped the car about 3 feet from Armitage and Lyons. Lyons testified that the car was so close that he put his hand on the fender, swung to the side of the car and that it touched his side just before it came to a stop. The Trial Examiner is of the opinion that the car probably stopped very close to Lyons and that he executed the maneuver described. Lyons reached in through the car window and grabbed Kaslowski by the shoulder close to the neck. Lyons said something to the effect, "What are you trying to do, kill me?" Kaslowski turned off the ignition, pulled on the brake, grabbed a 15-inch screwdriver that was in the car, pushed open the door, emerged, and said, "Now go ahead and start something." Armitage grabbed Kaslowski's hand that held the screwdriver. Lyons and another union representative also grabbed Kaslowski's hand. Desrosier meanwhile got out of the car and ran to the group aforedescribed. She succeeded in getting her hand on the screwdriver and prevailed upon the contenders to relinquish their respective grips thereon. Lyons said "we have been a little too lenient with them"; he called Kaslowski a "screwball" and told him to get in the car and leave. Armitage said, "We will have to see him some night." Kaslowski and Desrosier reentered the car and continued on their way. It is the Trial Examiner's opinion that by walking slowly across the street at the time and under the circumstances aforedescribed, the union representatives intended to cause annoyance and harassment to the driver.? The circumstances indicate that the intention was to cause the car to slow down or to stop sooner near the inter- section than would have been the case absent the picketing of Lyons and Armitage. There is no evidence that the Respondent had in the past or on this occasion intended to place pickets in the road to block egress of cars completely. I do not believe that the ensuing events were planned by either the union representative or Kaslowski. Each party was endeavoring to maximize its position-Kaslowski to proceed as far as possible without actually running down the pickets-the pickets to impede Kaslow- ski as much as possible without being run down. Superimposed on the test of nerve between driver and pedestrian was the test between pickets and the nonstriker. From these ingredients emerged the events described. It is my view that Kaslowski did not stop until he was so close to Lyons that the latter received a scare and that his reaction and what ensued was not premeditated. The physical grabbing of Kaslowski arose out of these circumstances and as such is not to be viewed as a bare assault of a picket upon a nonstriker. Under these same circumstances Kaslowski's reaction must also be regarded as one of apprehension and defense. It is the Trial Ex- aminer's opinion that the entire incident up to this point arose out of the pickets' picketing-type interference with employee Kaslowski's rights to go to and from the plant. Under Section 8(b) (1) (A) of the Act more than such interference is required. In the circumstances described herein the incident before the Trial Ex- aminer falls short of restraint and coercion. Perhaps a different conclusion would be called for if the evidence indicated that the ensuing assault was a planned and contrived matter. Also, a different conclusion might follow if there was evidence that the Respondent regularly acted as it had done on this occasion, e.g., if Kaslow- ski's or other employees' cars were regularly impeded as here or physically blocked by massed pickets, including ensuing incidents similar to those herein. While the physical events aforedescribed fall short of restraint and coercion, it is the Trial Examiner's opinion that, taken together, the parting statements of Lyons 5 Fourth Street led from the parking lot up to the intersection of Park Street. 6 The car was an old one and there was a slight incline in the road. 7It is not clear that the car was recognized as Kaslowski's when it left the parking lot Quite possibly since Kaslowski was a relative of the plant owner and an employee who had been working during the strike, his 'car may have been known. In any event, it was apparent that the car belonged to a nonstriker, SAN ANTONIO LIGHT DIV., HEARST CONSOLIDATED PUB. 619 and Armitage, respectively, "Well, we have been a little too lenient with them"; "We will have to see him some night ," constituted a threat and were violative of Section 8(b)(1)(A) of the Act. Affonso, an International organizer of Respondent, had several conversations with employee Maria Baptista. Baptista did not speak English, being a recent arrival from the Azores Islands. Affonso spoke to her in Portuguese and sought to con- vince her of the advantages of joining the Union. On May 6, the inception of the strike, Affonso spoke to Baptista at considerable length near the entrance of the plant. The theme of Affonso's conversation was that Baptista should not go in to work. According to the credited testimony of Baptista, Affonso told her at one point that the Union was very powerful, that it had very good attorneys and that if Baptista refused to cooperate, they could deport her. It is found that the threat of deportation was violative of Section 8 (b) (1) (A) of the Act. Margaret Bevins was an International organizer of the Union. She had several conversations with employee Alice White about the advantages of joining the Union. About a week after the commencement of the strike Bevins came to the home of White. The conversation concerned itself with White's attitude toward the Union and whether or not White should work during the strike. Bevins asked White if she was going in to work the next day and White said she would think about it. As the conversation ended, Bevins said to White, according to White's testimony, "You better not go in if you know what is good for you." Bevins denied that she made such a statement . The record shows that Bevins was a persistent advocate of the union cause and there is considerable testimony regarding her efforts toward employees along such lines. However, it was the Trial Examiner's opinion that Bevins' technique fell short of threats and after a careful consideration of the witnesses and their testimony the denial of Bevins is credited .8 Dismissal of this allegation is recommended. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the business operations of Twin-Kee 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Through threats, as found in section III, above , Respondent has restrained and coerced employees 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. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 8 On cross-examination White said that Bevins made the aforedescrihed statement, " Something to that effect. . . San Antonio Light Division, Hearst Consolidated Publications, Inc. and William D. Pearson. Case No. 23-CA-992. Febru- ary 21, 1961 DECISION AND ORDER On September 26, 1960, Trial Examiner William J. Brown issued his Intermediate Report in the above-entitled proceeding, finding that 130 NLRB No. 83.