Bonnaz Embroideries Tucking, Etc., Local 66

BONNAZ EMBROIDERIES TUCKING, ETC., LOCAL 66 879 Bonnaz Embroideries Tucking and Pleating and Allied Crafts Union Local 66, International Ladies' Garment Workers' Union, AFL-CIO [William L. Davis, Joseph Valenci and Marco Valenti, d/b/a V. & D. Machine Embroidery Co.] and Aida Luz Ortiz, Ana Rodriguez, Irma Buergo Diaz, Lucila Cortiz, Ramona Gonzalez, Francisca Cintron, Carmen Escalera, Rosa Maria Santiago, Cecilia Marxuach, Maria Munoz, Ida Gorbea, Ana Luz de Jesus, and Carmen J. Marrero Bonnaz Embroideries Tucking and Pleating and Allied Crafts Union, Local 66, International Ladies' Garment Workers' Union, AFL-CIO and William L. Davis, Joseph Valenci and Marco Valenci, d/b/a V. & D. Machine Embroidery Co. Cases Nos. 2-CB-3030-1 through 2-CB-3030-13 and 2-CB-3061. De- cember 1, 1961 DECISION AND ORDER On June 29, 1961, Trial Examiner John H. Dorsey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor prac- tices but recommending that the complaints be dismissed in their en- tirety, as set forth in the Intermediate Report attached hereto, be- cause the violations were too insignificant to warrant the issuance of a cease and desist order. The General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearings 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 finds merit in certain of the General Counsel's excep- tions. Accordingly, the Board adopts the findings of the Trial Ex- aminer only to the extent that they are consistent with this Decision and Order. 1. We agree with the Trial Examiner's findings that the Respondent did not violate Section 8(b) (1) (A) of the Act with respect to the conduct designated by him as incidents 1, 4, 5, 7, and 10. However, we disagree with his conclusions or rationale concerning the other inci- dents set forth in the Intermediate Report. (a) Incident 2: The Trial Examiner found that Union Organizer Pietri's statement to two nonstriking employees that "Today we let you go to work because this is payday, but tomorrow nobody go up- stairs," was a threat, but he did not find a violation on the ground that 134 NLRB No. 91. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the threat was not effectuated. While we agree with this ultimate finding, we do not adopt the Trial Examiner's rationale. The Board has consistently held that a threat need not be effectuated to violate the Act.' However, we find that the statement is too vague to consti- tute a threat and hence is not restraint or coercion within the mean- ing of Section 8(b) (1) (A) 2 (b) Incident 3: The Trial Examiner found that the statement made by Union Organizer Elva Cepero to nonstriker Irma Buergo Diaz in Spanish, which Diaz translated as "we are going to do something that you will be sorry. It means I," was meaningless. We agree that this incident does not establish a violation of the Act, but for the reason that we find that this statement is too ambiguous to constitute re- straint or coercion within the meaning of the Act.' (c) Incident 6: In late November 1960, while in a restaurant lo- cated a block from the factory, nonstriking employee Cruz overheard Clotilde Molina, a striker, tell a group of striking employees that "when slaps started to be distributed the first that would get it would be Irma and Ida." 4 The Trial Examiner found that this statement did not violate Section 8(b) (1) (A). He reasoned that Cruz was only an eavesdropper and that since neither Molina nor the others in the group knew that she had overheard the statement, it could not be construed to support a finding that it was made "to restrain or coerce" Cruz or any other nonstriking employee. Whether or not this state- ment may be deemed violative of the Act, insofar as Cruz or other nonstrikers were concerned, we find that it constituted restraint and coercion of the other strikers to whom the statement was made. The Board has held that threats made against others in the presence of strikers coerce the strikers in violation of the Act.-' This statement by Molina was made in the presence of two of Respondent's paid organizers, Julia Pietri and Elva Cepero, who did not disavow it. In these circumstances Molina's unlawful conduct is imputed to the Union.' (d) Incident 8: The Trial Examiner found that on January 18, 1961, striker Molina, in the presence of Organizer Pietri and other strikers, asked nonstrikers Gerena and Isabel Diaz to join the strike, told them that the reason that they did not do so was that Dalila (Rodriquez) "is holding you down" and said that she (Molina) would 'Local 294, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Valetta Trucking Company ), 116 NLRB 842, 854 'International Woodworkers of America, AFL-CIO, et at. (W. T. Smith Lumber Com- pany ), 116 NLRB 507, 526 (incident k), enfd. 243 F. 2d 745 (C.A. 5). 3 See United Furniture Workers of America, Local 309, CIO, et at. (Smith Cabinet Manufacturing Company, Inc ), 81 NLRB 886, 889. 4 The Trial Examiner assumed that Irma and Ida were nonstriking employees, and no exception was taken thereto. 5International Woodworkers of America, AFL-CIO, et at. (W. T. Smith Lumber Com- pany), supra, at 508. 6 Checker Taxi Company, 131 NLRB 611 , footnote 23. BONNAZ EMBROIDERIES TUCKING,-ETC., LOCAL 66- 881 "get Dalila one of these days . . . [And] give her a punch because she is Alcahuete and Jordona" (Spanish words meaning a gossip and a storyteller). The Trial Examiner concluded that. this incident did not support a finding of. a violation of, Section 8(b) (1) (A). Con- trary.to the Trial Examiner we find that this statement was a threat against a nonstriker which constitutes restraint or coercion of non- strikers Gerena and Isabel Diaz and of the other, strikers who were present? The Union- is chargeable with responsibility for this state- ment, since Union Organizer Pietri was present and did not repudi- ate it. (e) Incident 9: The Trial Examiner found a violation of Section 8(.b) (1) (A) in the blocking of the doorway to the factory by Union Agent Mercedes. Vallad'ares and her telling a nonstriking employee that she could not go to work. The Trial Examiner made this finding despite the fact 'that he credited the testimony of Organizer Pietri that she immediately, ordered Valladares away from the door and told the nonstriker that she was free to go in if she chose to do so. In view of this credited ,testimony that Valladares' conduct was immediately repudiated by Pietri, her superior, we find that this incident is' not a violation of the Act for which the Respondent is responsible s '(f) Incident 11: The Trial Examiner found that the blocking'df the door by pickets in the presence of union organizers and their re- fusal to permit Sims, a driver for a neutral employer, to enter the plant to make a delivery was not a violation of Section 8(b) (1) (A). He reasoned that,this was a violation of Section 8(b) (4) and that the Curtis 0 and General Electric cases-10 held that Section 8(b) (1) (A) does not include conduct specifically prohibited by other parts of Section 8(b). The Trial Examiner has misinterpreted these cases. In the Curtis case the sole question was whether peaceful picketing for recognition, not within the proscription of Section 8 (b) (4), amounted to restraint or coercion which violated Section 8(b) (1) (A). The Court; by, way of dictum, noted that not every violation of Section 8(b) (4), amounts to restraint or coercion prohibited by Section 8(b) (1) (A). All discussion was, however, in the context of peaceful picketing: and no misconduct was involved. The General Electric case deals solely with the legality, under Section 8(b) (4), of peaceful picketing at a gate reserved for use of independent contractors. Though the Court, in that decision, refers to the right of primary Checker Taxi Company, supra. BLocal Union No 6281, United Minie Workers of America ( Consolidation' Coal Com- pany ), 100 NLRB 392 , 394, footnote 5. ON L R.B v. Drivers, Chauffeurs and Helpers Local No. 639, International Brotherhood of Teamsters, Chauffeurs, 'Warehousemen and Helpers of America ( Curtis Brothers), 362 U.S. 274 (1960). 1o Local 761, International Union of Electrical , Radio and Machine Workers, AFL-CIO v. N.L R.B. and General Electric Company, 366 U.S. 667 (1961). 630849-62-vol. 134-57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers to persuade neutral employees, by peaceful picketing, to respect the picket line, it has not in any way approved the use of coer- cive measures to achieve this purpose. The Board has held that pre- venting employees of another employer from entering the plant by ob- structing the entryway is coercive and violates Section 8(b) (1) (A).li Accordingly, we find that when the pickets blocked the ingress of em- ployee Sims, and the Respondent's agents failed to disavow the con- duct, the Union committed a violation of Section 8(b) (1) (A). 2. The Trial Examiner rejected certain uncontradicted testimony and made no specific findings based thereon. We disagree as to the following incidents. (a) Nonstriker Cintron testified that as she left work one evening late in November 1960, a picket, later identified as Union Agent Mer- cedes Valladares, threatened to slap her. Valladares corroborated this testimony. The Trial Examiner refused to credit Cintron's testi- mony, but gave no reason for this finding. We have held that where the Trial Examiner does not base his credibility findings on the wit- ness' demeanor and does not explain his failure to credit uncontra- dicted testimony, the normal rules with respect to the weight given the Trial Examiner's credibility rulings do not apply.'2 Moreover, in this case the testimony of the witness has been fully corroborated by the very person who made the statement about which the witness testi- fied.' In these circumstances we credit the testimony of witness Cin- tron and find. that Valladares' statement was a threat which constitutes restraint'or,coerciom in violation of Section 8(b) (1) (A). (b) Employee Lugo testified in effect that as she left work one evening in November 1960, Mercedes Valladares and Organizer Pietri stopped her and that Valladares asked her to cooperate with the Union. Valladares told her that one girl that did not obey was slapped: This incident was not denied. The witness was not cross- egainined,, and' neither Valladares nor Pietri was questioned con- cerning this. 'Nevertheless, the Trial Examiner refused to credit this testimony. Again, he failed to, give a reason for his ruling. For the reasons stated in connection with the preceding incident, we credit Lugo's .testimony and find that Valladares' statement to her was a threat in'violation of Section 8(b) (1) (A). THE REMEDY Having found that the Respondent has violated Section 8(b) (1) (A) of the Act, we shall order it to cease and-,desist therefrom "I Cf. H N. Thayer Company, 99 NLRB 1122 , 1130-1131, enfd in part and remanded in part 213 F. 2d 748 (C.A. 1), cert. denied 348 U S. 883. 'a Cecil J. Daggett, et at., d/b/a Allied Chain Link _Fence Company, 126 NLRB,608, 610, footnote 2. J BONNAZ EMBROIDERIES TUCKING, ETC., LOCAL 66 883 and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the en- tire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. William L. Davis, Joseph Valenci and Marco Valenci, d/b/a V. & D. Machine Embroidery Co., a New York partnership, is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bonnaz Embroideries Tucking and Pleating and Allied Crafts Union Local 66, International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threats intended to prevent employees from working for V. & D. Machine Embroidery Co. while a strike was in progress, and by blocking the ingress of an employee of a neutral employer, the Union has restrained and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (b) (1) (A) of the Act.. - - 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Bonnaz Em- broideries Tucking and Pleating and Allied Crafts Union Local 66, International Ladies' Garment Workers' Union, AFL-CIO, its- offi- cers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Threatening employees of William L. Davis, Joseph Valenci and Marco Valenci, d/b/a V. & D. Machine Embroidery Co., with physical violence in order to prevent them from working during a strike or to force them to join a strike; or blocking or interfering with the ingress or egress of employees at the premises of, V. & D. Machine Embroidery Co. located in in New York, New, York. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. . 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at the offices and the meeting halls of the Respondent, copies of the notice attached hereto marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by official representatives of the Respondent, be posted immediately upon receipt thereof, and be main- tained 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 labor organization to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail signed copies of the notice to the Regional Director for the Second Region for posting by William L. Davis, Joseph Valenci and Marco Valenci, d/b/a V. & D. Machine Embroidery Co., said Company willing, at all locations where notices to the Company's employees are customarily posted. (c) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of the Decision and Order, what steps it has taken to comply herewith. MEMBER BROWN dissenting: I agree with the decision of my colleagues that incidents 2, 3, and 9 do not violate Section 8(b) (1) (A) for the reasons they set forth. However, I would not make any findings on the basis of the testimony which the Trial Examiner did not credit. Nor would I find that the conduct involved in incidents 6, 8, and 11 constitute violations of the Act. Moreover, even if these last three should be found to involve threats or coercion, I think that they are too minor, isolated, and sporadic to warrant the issuance of a remedial order.14 Accordingly, I would adopt the recommendation of the Trial Examiner and dis- fniss the complaints in their entirety. 13 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 14 International Ladies Garment Workers Union , AFL-C10 ( Twin-Kee Manufacturing Co., Inc. ), 130 NLRB 614. APPENDIX NOTICE TO ALL MEMBERS OF BONNAZ EMBROIDERIES TUCKING AND PLEATING AND ALLIED CRAFTS UNION LOCAL 66, INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, AND ALL EM- PLOYEES OF WILLIAM L. DAVIS, JOSEPH VALENCI AND MARCO VALENCI, D/B/A V. & D. MACHINE EMBROIDERY Co. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : BONNAZ EMBROIDERIES TUCKING, ETC., LOCAL 66 885 WE wiLL NOT threaten employees of William L. Davis, Joseph Valenti and Marco Valenci, d/b/a V. & D. Machine Embroidery Co., with physical violence in order to prevent them from working during a strike or to force them to join a strike. WE WILL NOT block or interfere with the ingress or egress of employees at the premises of the V. & D. Machine Embroidery Co. located at New York, N.Y. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees at those premises in the exercise of the rights guaranteed them by Section 7 of the Act. BONNAZ EMBROIDERIES TUCKING AND PLEATING AND ALLIED CRAFTS UNION LOCAL 66, INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, Labor Organization. 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 charges in Cases Nos. 2-CB-3031-1 through 2-CB-3031-13, filed by indi- viduals employed by William L. Davis, Joseph Valenci and Marco Valenci, d/b/a V. & D. Machine Embroidery Co., herein called Employer, General Counsel of the National Labor Relations Board ordered consolidation of said cases and caused a complaint to be issued on December 30, 1960, which, as amended at the hearing, alleges that Bonnaz Embroideries Tucking and Pleating and Allied Crafts Union Local 66, International Ladies' Garment Workers' Union, AFL-CIO, herein called Respondent, had engaged in and was engaging in conduct in violation of Section 8(b)(1)(A) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136). The Respondent filed an answer denying that it had violated or was violating the Act as alleged in the complaint. A hearing was held before the duly designated Trial Examiner at New York, New York, on January 23 and February 16, 1961. Respondent and the General Counsel were represented by counsel. The parties were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs.' At the opening of the hearing on January 23, General Counsel moved to amend the complaint. Respondent did not object to the motion being granted provided an adjournment was granted to give it "an opportunity to investigate and properly defend with respect to the amendment." General Counsel opposed an adjournment arguing, for reasons that do not appear on the record, that time was of the essence in the proceedings. The Trial Examiner being of the opinion that the proposed amendment, if allowed, was of such a nature that Section 10(b) of the Act required that Respond- 1 In the interim between the 2 days of the hearing General Counsel filed an interlocutory appeal with the Board from certain rulings of the Trial Examiner on relevance, materiality, and admissibility of evidence sought to be introduced by the General Counsel On Febru- ary 2, 1961, the Board issued its Order reversing the Trial Examiner "on the ground that the evidence sought to be introduced may be material to the allegations made in the com- plaint." [Emphasis supplied I When the hearing reconvened on February 16, counsel for Respondent objected to the Board's Order, asked the Trial Examiner to clarify it, and contended that the Order denied it due process The Trial Examiner , in ruling, stated be was unable to clarify the Board's Order, he was bound by it; and, therefore, he had no alternative but to permit General Counsel to introduce whatever evidence that General Counsel considered "may be material" with Respondent's objections to be noted on the record 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent be granted an adjournment of "not less than five days" put the General Counsel to his election-if the General Counsel chose to press his motion it would be granted and the hearing would be adjourned for at least 5 days. General Counsel elected to withdraw his motion. Subsequent attempts by General Counsel, during the course of the hearing, to have the motion to amend granted were denied because it is an axiom of trial practice that when a party has an election and exercises it, his choice is final and binding. Case No. 2-CB-3061 was initiated by a 'charge filed by Employer, dated January 18, 1961. (Note: This was 5 days before the opening of the hearing in Cases Nos. 2-CB-3030-1 through 2-CB-3030-13.) This charge was radically amended on February 17, 1961, to conform it to the substance of the General Counsel's pro- posed amendment of the complaint in Cases Nos. 2-CB-3030-1 through 2-CB- 3030-13. Then: (1) On February 24, 1961, the General Counsel issued a complaint against the Respondent alleging violation of Section 8(b)(1) (A); and (2) there- after filed a motion with the Trial Examiner that the case be consolidated with Cases Nos. 2-CB-3030-1 through 2-CB-3030-13 and the hearing be reopened. On March 8, 1961, the Trial Examiner denied the motion? The General Counsel, on March 13, 1961, appealed to the Board. On March 15, 1961, the Board reversed the Trial Examiner. Pursuant to Board's Order the Trial Examiner ordered reopen- ing of the hearing and hearing was held before him on April 5, 1961. In this hearing as in the previous proceedings, the parties were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. The parties waived oral argument. General Counsel and Respondent filed briefs .3 Upon consideration of the entire record and the briefs submitted, and upon observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF EMPLOYER Employer is a copartnership composed of William L. Davis, Joseph Valenci and Marco Valenci, doing business under the trade name and style of V. & D. Machine Embroidery Co. At all times material, Employer has maintained its principal office and place of business at 1975 First Avenue, in the city and State of New York, where it is, and has been continuously, engaged in producing and performing embroidery services and related services to manufacturers of women's underwear and blouses and to other enterprises. During Employer's fiscal year ending March 31, 1961, which period is representa- tive of its annual operations, Employer, in the course and conduct of its business, performed services valued at in excess of $50,000, of which services were furnished to enterprises which are located in States other than the State of New York, or were furnished to various other enterprises, including, inter alia, Tailored Silk Undergar- ment Co., and Miss Youth Form, located in the State of New York, each of which other enterprises annually produces goods valued at in excess of $50,000, which it ships to its customers located outside the State wherein it is located. I find that Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits and I find that it is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES A. Cases Nos. 2-CB-3030-1 through 2-CB-3030-13 Whether, during the period from on or about November 16, 1960, to on or about November 30, 1960, Respondent by its alleged agents and representatives, Julia Pietri, Elva Cepero, and Clotilde Molina, engaged in a course of conduct toward the em- ployees of Employer "to restrain or coerce" said employees in the exercise of the rights guaranteed them by Section 7 of the Act in violation of Section 8(b) (1) (A) of the Act. 2 There is no provision in the Act or the Board's Rules and Regulations which vests authority in the Trial Examiner to grant such a motion. 3 Respondent, citing Peyton Packing Company, Inc., 129 NLRB 1358, as authority, objected to the consolidation of the cases by the Board The Trial Examiner ruled he was bound by the Board's Order BONNAZ EMBROIDERIES TUCKING, ETC., LOCAL 66 887 B. Case No. 2-CB-3061 Whether, Respondent by its agents and representatives, Julia Pietri, Clotilde Molina, "and various other pickets, agents and representatives now unknown," 4 engaged in a course of conduct toward employees of Employer on or about Novem- ber 22 and 23, 1960, and on or about January 17, 18, and 19, 1961, in violation of Section 8 (b) (I) (A) of the Act. IV. RESOLUTION OF THE ISSUES A. The strike and picket line About November 1, 1960, Respondent initiated a campaign to organize the em- ployees of Employer. On November 22, 1960, Respondent called a strike and estab- lished a picket line. Some of the employees joined in the strike and engaged in picketing; others continued to work. The picketing was continuing at the close of the hearing in this proceeding. It was conducted under the supervision of James Sonts, Respondent's business agent. Two of Respondent's paid organizers, Julia Pietri and Elva Cepero, were assigned to the organizational effort and were at most times on the picket line. Also, usually on the picket line and active in attempting to persuade the employees to join Respondent was Clotilde Molina, a striking employee 5 B. Incidents alleged to be in violation of Section 8(b) (1),(A) of the Act Throughout the record there is evidence of many conversations between the ad- herents of Respondent and the nonstrikers in which the former sought to persuade the latter to join Respondent by.,pointing out claimed economic benefits to be obtained by such association. It was stipulated that the signs carried by the pickets read: This is organizational picketing. We appeal to the workers of V. & D. Machine Embroidery Company, 1971 First Avenue, New York City, to join our union and enjoy its benefits. Collective bargaining will be requested when authorized by law. Embroideries Union, Local 66, 225 West 39th Street, ILGWU, AFL-CIO. The conversations plus wording of the signs were and are protected by Section 7 and Section 8(c) of the Act. In view of the Board's order permitting General Counsel to introduce evidence which "may be material," the Trial Examiner, at the close of the hearing, requested General Counsel to set forth in his brief, with record citations, each and every incident which he contends supports a finding of violation of Section 8(b) (1) (A) as alleged in the complaint. General Counsel complied, setting forth 18 incidents. A number of these are founded on uncredited testimony and, therefore, merit no further consideration.6 The remaining incidents are set forth below. Incident 1: 7 Maria Munoz, an employee, testified that on November 16 or 17, 1960 (before the strike), Organizer Pietri met her on the street and said to her, "If I was hungary [sic], I was going to be hit hard to free me from hunger." Munoz further testified that this is all that was said and that this was the only occasion that Pietri spoke to her. Whether the words "hit hard" refer to the use of physical force or economic consequences cannot be determined from the record. There- fore this incident has no probative value 8 Incident 2: Employees Olga Ocampo Bellino and Irma Buergo Diaz testified that on the day the picketing began Organizer Pietri told nonstriking employees, "Today 4 As alleged in the complaint 5 The complaint alleges that Molina is an agent or representative of Respondent. This issue need not be resolved in view of the findings and conclusions set forth, snfra If the issue need be settled, I find that Molina by engaging in the exercise of her rights, guar- anteed by Section 7 of the Act, did not thereby become an agent or representative of Respondent and the-receipt,of strike benefits from Respondent did not create an employer- employee or agency relationship 8I find that the testimony of the following witnesses is not credible: Francisca Cintron, Elba Lugo, Ana Rodriquez Tapia, and Mercedes Valladares 4 The numbering of the incidents Is for the purpose only of distinguishing one from the other. 8 Organizer Pietri denied ever having spoken to Munoz. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we let you go to work because this is a payday but tomorrow nobody go upstairs." 9 I find that a statement to this effect was made. Technically it can be found to be a threat to restrain. The record contains no evidence that this "threat" was effectuated. Incident 3: About a week after the picketing began, as an office employee, Irma Buergo Diaz, left the factory, Organizer Cepero made a statement to her in Spanish which Diaz translated: "We are going to do something that you will sorry. It means, I." Of the Spanish expression in question, a sworn interpreter testified: "It is usually made after a threat and it is used to say, . whatever I said before, I mean it is going to happen to you. It is going to be done to you." The record reveals no continuity between the statement and a threat. Therefore the statement as it stands on the record is meaningless. Incident 4: Olga Ocampo Bellino, an employee who did not join Respondent, testified that late in November 1960, Organizer Pietri said to her, "If I don't under- stand with the good words, I'm [Pietri] going to use the force!", to which Bellino replied, "For the delinquents, that was the law." Pietri denied ever threatening to use force. I credit Pietri. Incident 5: Irma Buergo Diaz testified that late in November 1960, a striking employee on the picket line, Clotilde Molina, threatened to pull the hair of non- striking employee Rosaura Rodriquez. Rodriquez, called as a witness by Respond- ent, testified that Molina persuaded her to join Respondent but that the incident related by Diaz never occurred. I credit the testimony of Rodriquez. Incident 6: In late November 1960, nonstriking employee Maria Teresa Cruz, while in a restaurant about one block from the factory, overheard a conversation between striking employee Clotilde Molina, union organizers, and striking em- ployees. Cruz testified that she heard Molina say to the group that "when slaps started to be distributed, the first that would get it4would be Irma and Ida." 10 There is nothing in the record to prove that Molina and the group to whom she was talking were aware of the presence of Cruz. Under the circumstances Cruz can be found to be only an eavesdropper and the statement she overheard in such status, unknown to the utterer and her conversants, cannot be construed to support a finding that it was made "to restrain or coerce" 11 Cruz, or any other nonstriking employee, in the exercise of rights guaranteed by Section 7 of the Act. Incident 7: Dalila Rodriquez, a nonstriking employee, testified that when she left the factory at 5 p.m., on January 17, 1961, when she was about 35 feet from the factory, Clotilde Molina, an employee on strike, "told me she was going to slap me in the face and get ahold of my hair." Further, that at the time Molina made the statement she was "about 30 or 35 feet" away; and Molina had never before or since talked to her. Molina denied making the threat. I credit Molina's denial. Incident 8: Olga Gerena, who went to work for Employer on January 18, 1961,12 testified that on either January 18 or 19, about 5 minutes after quitting time when she and her mother, Isabel Diaz, were on their way home, Clotilde Molina, a striking employee who was in the company of Organizer Pietri and other girls, asked Gerena's mother, Isabel Diaz, who had worked for Employer about 8 years, "Why don't she [Diaz] come down and join them in the union . . . [Respondent] was giving $50 a week if she stayed down . . . the only reason, you know, you don't want to come down is because Dalila [Rodriquez] 13 is holding you down." And, further, that Molina said, "I am going to get Dalila one of these days . . . give her a punch because she is actually . . . Alcahuete" [Spanish, meaning a gossip or storyteller] and "Jordona" [Spanish, meaning she doesn't behave well in the sense of being a gossip].14 Then Organizer Pietri "tapped" Diaz on the shoulder and asked her "Why don't you come over and help us. We need your help, all your help." General Counsel called Diaz to the stand apparently for the purpose of corrobo- rating the testimony of her daughter, Gerena, set forth in the preceding paragraph. Her testimony was confusing; her answers unsatisfactory to General Counsel. It was only after General Counsel had the witness refresh her recollection by an affidavit which she executed on January 20, 1961, that she testified, in substance, in corroboration of her daughter's testimony as to what Molina had said.15 9 The employees went "upstairs" in going into their place of employment '° The testimony creates the impression that Irma and Ida were nonstriking employees. Herein they are considered as such. "The Supreme Court's holding as to the statutory scope of this phrase is discussed, infra. 12 She had previously worked for Employer about 5 months in 1960. J. 13A nonstriking employee 14 The meanings of the Spanish terms were supplied by a sworn interpreter. 16 Molina denied telling Gerena that she was going to "get" Dalila. BONNAZ EMBROIDERIES TUCKING, ETC., LOCAL 66 889 I find this incident does not support a finding of restraint or coercion in violation of Section 8 (b) (1) (A) of the Act. Incident 9: As nonstriking employee Thelma Acevedo started to enter the factory on the morning of January 19, 1961, an employee of Respondent working on the picket line, Mercedes Valladares, stepped into the doorway, stretching her arms across the door and blocking Acevedo's ingress. According to Acevedo she was told at that time by Valladares, "You are not going to go upstairs." When Acevedo asked for a reason, "the other girls from the union told me [Acedevo] they needed my cooperation because they wanted to finish that case one way or another." Acevedo and Organizer Pietri both testified that Pietri immediately ordered Valla- dares away from the door. I credit the testimony of Pietri that she told Valladares, "Mercedes, please don't do that, you are not supposed to do that, and to get out of the door" and then told Acevedo, "You are free to do as you please, if you want to go in or you do not want to do." 16 Immediately, Valladares left the doorway but Acevedo decided to go home. While this incident, from a layman's viewpoint, is de minimus, a semanticist could find that it comes wtihin the phrase "to restrain or coerce" and therefore supports a finding of a violation of Section 8(b) (1) (A) of the Act. Incident 10: On the morning of January 19, 1961, nonstriking employee Mar- guerita Santiago, who was in a bakery about 21/z blocks from the factory, saw strik- ing employee Clotilde Molina passing the bakery. Santiago came out of the bakery to talk to Molina. During the conversation which Santiago brought about, Santiago testified that Molina said to her, "Marguerita, I want you to come into the union because things are going to get worse and you are in a family way." As they continued their•con- versation, Olga Bellino, a nonstriking employee approached them. Santiago asked Molina to excuse her as she wanted to talk to Bellino. When Santiago had taken "a couple of steps" toward Bellmo, Santiago testified that Molina "held me up by my left arm and she was holding me in the chest with the other hand." Bellino asked Santiago, "Are you coming?" Then Molina said to Bellino, "You are an un- educated person" and another striking employee, Danny (not otherwise identified in the record), said, "They would like to start with Olga [Bellino] so as to get the matter over." Bellino put her hands over her ears and continued on to work. Santiago's aid she "got awfully nervous . started crying and wanted to go home" at which time Molina removed her hands from the person of Santiago. Santiago did go home but returned to work the following day. It is to be noted that the conversation between Santiago and Molina was (a) ini- tiated by Santiago; (b) it was between a striking and a nonstriking employee, the former seeking to persuade the latter to join with the strikers; (c) it was away from the picket line and the factory; and (d) no agent of Respondent was present. There is no evidence by which Molina's conduct and statements on this occasion can be imputed to Respondent. Therefore, the incident is not evidence of a violation of Section 8(b) (1) (A) by Respondent as alleged in the complaint.17 Incident 11: In the second or third week of November 1960, Alexander Sims, a deliveryman for Soltex Thread Corporation, tried to make a delivery of thread to Employer. When the pickets told him he could not go into the factory because no one was there, he left. At the direction of his employer Sims again tried to make the delivery the following day. When he was asked by Sonts, Respondent's business agent, to be "a nice fellow" he left. The next day Sims testified he tried to make the delivery, at which time "three women [were] standing there." One of the women told Sims that "there is no one there, I couldn't go in"; and a "second lady came over with a sign, so she was waving this stick and put her hand on the door ,and told me l couldn't go in." Sims then "turned away because if I tried to force my way in I would probably push her." The complaint alleges that this incident is a violation of Section 8(b)(1)(A) of ,the Act. It cannot be held to be such since conduct of such nature falls within the prohibitions of Section 8(b) (4) of the Act. The Supreme Court has held that 'Section 8(b)(1)(A) is not inclusive of conduct specifically prohibited by other sections of Section 8(b) of the Act. N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639, et al., 362 U.S. 274, popularly referred to as the Curtis case. Cf. Local 761, IUE v. N.L.R.B. and General Electric Company, 366 U.S. 667. A Acevedo admitted that Pietri told her "it was all right for you [Acevedo] to go upstairs." TT The putting of the hands on Santiago would come within a technical definition of a battery. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, while this incident can be construed as restraint and coercion of Sims, it does not come within the purview of Section 8(b)(1)(A). There is no evidence that the incident restrained or coerced "employees in the exercise of the rights guaranteed in section 7" of the Act. Conclusions The picketing began on November 22, 1960, and was continuing at the close of the hearing on April 5, 1961. During this period of over 4 months the isolated. and negligible incidents complained of, and found to be violations , occurred in the periods from November 16 to 30, 1960 , and January 17 to 19, 1961 . The record contains no allegations or evidence of other unlawful activity by Respondent. Conduct of a much graver nature, than any here involved , has been found by the Board not to deprive strikers of the protections of the Act . Stewart Hog Ring Company, Inc., 131 NLRB 310. "Basic to the right guaranteed to employees in Section 7 [of the Wagner Act which has not been amended] to form, join or assist labor organizations, is the right to engage in concerted activities to persuade other employees to join for their mutual aid and protection . . . the Taft-Hartley Act [amending the Wagner Act] added another right of employees also guaranteed protection , namely, the right to refrain from joining a union [Section 8(b) (1) (A) ] . Thus tensions exist between the two rights of employees protected by Section 7-their right to form, join or assist labor organizations, and their right to refrain from doing so. Thus tension is necessarily quite real when a union employs economic weapons to or- ganize employees who do not want to join the union ." Curtis case 362 U.S. 274, at pages 279-280.18 Therefore, it follows that conduct of a nature and degree which does not deprive strikers of their rights to protections of the Act when Section 8 (a) (1) is at issue should not be held to be illegal when Section 8 (b) (1) (A) is at issue. Otherwise, the rights guaranteed by Section 7 of the Act would be disparately protected and enforced ; a result which the Curtis case, by dicta , holds untenable.is While some of the incidents set forth, above, have been found to be violations in a semantical sense, I find that they are too insignificant to warrant a cease-and- desist order ; and no useful purpose would be served by the issuance of such an order in this case . International Ladies Garment Workers Union, AFL-CIO (Twin- Kee Manufacturing Co., Inc.), 130 NLRB 614.20 [Recommendations omitted from publication.] "The Curtis case sets forth the legislative history of Section 8 ( b) (1) (A) and compels "caution against finding in the nonspecific , indeed vague, words `restrain and coerce.' " 19 See the Curtis case, 362 U . S. 274 , for legislative history, congressional intent, and scope of Section 8(b) (1) (A). 20 The conclusion would be the same even if General Counsel had proven every incident that he proffered. Lou Taylor, Inc. and Seymour Soskel. Case No. 13-CA-1940. December 1, 1961 DECISION AND ORDER On September 12, 1961, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a brief in support of the Intermediate Report. 134 NLRB No. 103.