District 65, Retail, Wholesale & Dept. Store Union

DISTRICT 65, RETAIL, WHOLESALE & DEPT. STORE UNION 991 forcing . them to cease doing business with The Cleveland Electric Illuminating Company. LOCAL 3 8, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 720 Bulkley Building; 1501 Euclid Avenue, Cleveland 15 , Ohio, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. District 65, Retail, Wholesale & Department Store Union, AFL- CIO and Eastern Camera & Photo Corp. and Subsidiary Com- panies of Eastern Camera & Photo Corp., Listed in Appen -dix A, Parties in Interest District 65, Retail, Wholesale & Department Store Union, AFL- CIO and Eastern Camera & Photo Corp. and Subsidiary Com- panies of Eastern Camera & Photo Corp., Listed in Appen- dix A, Parties in Interest District 65, Retail, Wholesale & Department Store Union, AFL- CIO and Eastern Camera & Photo Corp. Cases Nos. 2-CP 142, 2-CB-34924-, and 2-CC-709. March 29, 1963 DECISION AND ORDER On July 16, 1962, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in unfair labor practices and recommending that the consolidated complaint be dis- missed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel and the Company filed exceptions to the Intermediate Report and supporting briefs. The Respondent filed a brief in support of the Intermediate Report. 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 the briefs, and the entire record in these cases, and finds merit in the exceptions of the General Counsel and the Company. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent consistent herewith. 1. SECTION 8(b) (1) (A) CONDUCT The consolidated complaint alleged that certain incidents which occurred on or near the picket lines surrounding the Company's place 141 NLRB No. 85. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of business, or on its premises, in the New York area, during the course of Respondent's strike against the Company, violated Section 8(b) (1) (A) of the Act. Although the Trial Examiner found, for the most part, that the incidents relied on by the General Counsel in fact occurred, he concluded that the Respondent did not thereby violate the Act. We do not agree with the Trial Examiner's conclusion.' 1. The Buck incident: As Robert Buck, an advertising agency employee, entered Eastern's Hempstead store about noon on April 21, 1962,2 where picketing was taking place, he was called "scab," "jerk" and "dumb dope" by some of the pickets; and he was again called such names when he left the store. As he left, one of the pickets said, "Thanks a lot, fellah," to which Buck replied, "You are welcome." Another picket then called out, "A wise guy, eh?," to which Buck an- swered, "You are pretty brave with all these pickets around." John Giles, ,a picket, then said he would fight Buck alone. Buck replied that he would not waste his time and left. Buck, after thinking about the matter, went to a police station "to find out how much abuse and challenge" he had to take from the pickets. From the police station, Buck returned to the Hempstead store to acquaint management with the treatment customers were getting. The same comments were again made to him by the pickets. This time, as he left the store, he and Giles came face to face. Buck asked if Giles was the one who wanted to fight, and Giles answered, "Yes, what are you going to do about it?" Buck said, "Well, go ahead and hit me." Giles then said, "If you have got something to say to me, say it with your fists." More words went back and forth, and Giles told Buck to get out of his way. Buck replied that he had as much right on the sidewalk as Giles. Giles thereupon said, "Oh, yes," put down his shoulder, charged into Buck, and knocked him aside. Giles and Buck then had a fistfight. The Trial Examiner concluded that Respondent did not violate Section 8(b) (1) (A) of the Act, finding that Buck's return to the scene had precipitated the altercation. 2. The Orlando incident: On April 4, Nicholas Orlando, a driver for Fotochrome Finishers, which develops film for Eastern, drove his truck into the parking lot alongside the Hempstead store, and then went to the rear door to pick up some film. After picking up the film, Orlando returned to his truck and started to drive away. He was approached by union organizer Nattman,-together with about five or six pickets, who crowded around his truck. One of the pickets, who kept tossing a rock into the air, stated to Orlando that he "had a nice 'truck and . . . should keep it that way." Orlando testified that as he Zvttempted to leave pickets "jumped in front of the truck .... So I ' we find, as Respondent stipulated , -that It was responsible for the conduct of its pickets. A11;dstes -hereafter refer to 19G2 unless otherwise indicated. DISTRICT 65, RETAIL, WHOLESALE & DEPT. STORE UNION 993 stopped the truck. And I couldn't go out. They wouldn't let me out of the parking lot." At that point, the store manager, Tom McNamara, took the film back inside. Orlando started to drive away, and had the front wheels off the curb when Eastern's president, Aaron Knopf, came out with the bag of film and said, "here, take this and get out of here." The Trial Examiner concluded that the incident did not involve violence or threat of violence. 3. The Ellison incident: In the latter part of April, Joanne Ellison, a customer, approached Eastern's Hempstead store to pick up some film. As she attempted to enter, one of the pickets, wearing a sign, bumped her into the store window, at the same time shouting, "Don't go in there." Ellison went into the store, but left by the back entrance. Since that time, she has called the manager of the store before going there to arrange to enter through the back door and avoid the pickets. The Trial Examiner found, erroneously, that Ellison was bumped as she left the store, and concluded that the incident involved neither violence nor threat of violence. 4. The Simms incidents : About April 4, as employee Jim Simms entered the Hempstead store, he was called names by some of the pickets whom he identified. Simms testified that one of them said "that I was the guy they wanted to get." A few days later, Simms was returning to the Hempstead store when Giles "Came up to [him] and grabbed [him] from around the back, grabbed [his] shoulders and pulled [his] arms back." Giles told Simms that he was the guy they were after because he was the strikebreaker. About 1 week after the above incident, as Simms left the store a car with two pickets in it started toward him from the driveway that led across the sidewalk on which Simms was walking. The pickets yelled profanity at Simms and shouted that they were going to get him. Simms testified that : I looked towards him and then he sped up the car. And I kind of hesitated, wondering whether to jump out of the way or what to do. It was just a short distance. When he came close to me, he slammed on the brakes and the car shook violently and stopped two or three inches from me. The Trial Examiner does not discredit Simms and his testimony stands uncontroverted. No reason is given by the Trial Examiner for his failure to find that these incidents constituted violations of Section 8(b) (1) (A) of the Act. 5. The Giordano incident: On April 14, employee Frank Giordano, returning from lunch, approached the Hempstead store where Giles directed profanity at him. Giordano and Giles then exchanged insults. 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Giordano edged to the doorway where Giles grabbed Giordano by his left forearm and pushed him into the store. Giordano came back out, and then Giles clenched his first and asked Giordano to step around back and settle their dispute once and for all. Giordano refused, went inside, and about 1 hour later went to the corner for coffee. Giles, was at the corner cafeteria, and before Giordano ordered any coffee, Giles asked him to step outside and fight. They stepped outside and, after exchanging profane remarks, Giles again pushed Giordano. At this point Union Organizer Nattman grabbed Giles and pulled him away, telling him to stop. The Trial Examiner found that the occurrence was so trivial as to warrant no finding of coercion. 6. The Curcio incident: Anthony Curcio and his wife went to the Hempstead store on the evening of April 20 to purchase film. As they left, the door was opened for them by Giles who had been swinging the door open and yelling "scab." Within 2 inches of Curcio's shoulders, Giles yelled that Curcio wasn't "doing good" for Giles. Giles then pursued Curcio and his wife down the sidewalk yelling more remarks in Curcio's ear. The Trial Examiner found that the incident involved neither vio- lence nor threat of violence. 7. The Greenstein incident: Melvin Greenstein, an employee who had been engaged in the strike against Eastern, decided to go back to work. On the morning of April 11, he returned to the Flushing store where he met a group of striking employees. After they had convinced him that he should stay out with them, he suggested a plan that would "intimidate or frighten" Sonny Rosenkrantz, another em- ployee at the Flushing store. The plan was that after Greenstein had entered the store, the pickets, led by Nattman, were to enter and ask Greenstein to leave and Greenstein would leave with them. This plan was carried into effect. Greenstein entered the store and about 15 pickets followed him. The pickets told him, in the presence of Rosen- krantz, to get his coat and walk out, which Greenstein did. Rosen- krantz then followed them out of the store and locked it up. Greenstein testified that when the pickets came into the store, they told him to get his coat and leave "or else." The Trial Examiner found the "or else" threat was not made. In making this finding, he relied principally on his finding that in the earlier 10(1) court pro- ceedings Greenstein had said nothing about "or else." The Trial Ex- aminer is clearly in error, however, as the record establishes that in that court proceeding, Greenstein testified to the "or else" threat. Moreover, the Trial Examiner noted that both Nattman and Berry denied that any threat was made, but he completely ignored the testi- mony of Nattinan that the plan was designed to "intimidate or frighten" Sonny Rosenknnitz. DISTRICT 65, RETAIL, WHOLESALE & DEPT. STORE UNION 995 8. The Haack incident: Rudolph Haack, a customer, noticed seven or eight pickets, bearing signs, when he came to the Hempstead store on April 7. As he crossed the picket line, one picket said, "You better not go in, I knock your block off." The Trial Examiner found that besides being "trivial" the threat could not, with certainty, be attributed to Respondent. 9. The Locascio incident: Jack Locascio worked in Eastern's Levit- town store the weeks before and after Easter. Upon his return to that store to begin his second week, Locascio was told by one of the two pickets who were stationed, outside the store that they would keep him out of the store one way or another. The incident is uncontradicted in the record, but was not mentioned by the Trial Examiner. As indicated above the Trial Examiner concluded that the Re- spondent did not violate Section 8 (b) (1) (A), characterizing the inci- dents, for the most part, as trivial or involving neither violence nor the threat of violence. We take a different view of the matter. Em- ployees were subjected to threats, pushing accompanied by profanity, ancj plans to "intimidate or frighten" them; customers who crossed the picket line were subjected to threats, bumping, pursuit down the street, and actual assaults; and an employee of an employer doing business with Eastern was blocked from leaving Eastern's premises and re- ceived - a clearly worded threat of damage to his vehicle. These inci- dents do not appear to have been isolated or spontaneous ; rather they appear as part of a pattern of coercive misconduct toward employees and other persons doing business with Eastern. In all the incidents, it is clear, and we find, striking employees were present. Moreover, it appears, and we find, that all the acts were committed under such cir- cumstances as to eventually come to the attention of nonstriking em- ployees. In short, we find that the pattern of conduct tended to create an atmosphere of coercion among.both striking and nonstriking em- ployees, who witnessed the assaults and threats, or were likely to learn of them 3 Accordingly, we conclude that Respondent has engaged, in conduct which consists of actual and threatened physical violence toward em- ployees 4 and other individuals, and blocking ingress and egress to and from company premises.' We conclude that Respondent thereby vio- lated Section 8 (b) (1) (A) of the Act. 3 See W. T. Smith Lumber Company, at a&, 116 NLRB 507 ; Communication Workers of America, AFL-CIO ( Ohio Consolidated Telephone Company), 120 NLRB 684, enfd. 266 F. 2d 823, and. as modified 362 U.S. 479 ; Local 66, International Ladies Garment Workers Union, AFL-CIO, 134 NLRB 879. A Checker Taxi Company, 131 NLRB 611 ; Local 3887, United Steelworkers of America, AFL-CIO ( Stephenson Brick & Tile Company), 129 NLRB 6 ; United Furniture Workers of America (Smith Cabinet Manufacturing Company, Inc.), 81 NLRB 886. International Union of Electrical, Radio and Machine Workers , AFL-CIO, 134 NLRB 1713; Local 3887, United Steelworkers of America, AFL-CIO, et al., supra. 708-006-64-vol. 141-64 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. SECTION 8(b) (4) (ii) (B) CONDUCT The consolidated complaint also alleged that the Respondent vio- lated Section 8 (b) (4) of the Act by threatening to picket various dis- count retail department stores in which Eastern operated a concession. The Trial Examiner dismissed this allegation. We disagree. The material facts are as follows : Through its wholly owned sub- sidiaries, Eastern operated leased concessions on the premises of dis- count retail department stores : in the Topps store in Fairfield, Con- necticut, and in the Towers stores in Randallstown, Maryland, and Scranton and Hazleton, Pennsylvania. It is clear that the Respond- ent had no labor dispute with either the Topps or Towers stores. On April 19 the Scranton store of Towers was visited by strikers, who were acting on behalf of Respondent.' They were led by Ed Berry, a striker. Berry first went to Earl Williams, Eastern's man- ager, and told Williams "we are here to close you down," and then .asked for the Towers store manager, Joseph DiFalco. According to DiFalco's testimony the strikers told DiFalco that "they were going to form this union and if we went along with them by closing down the camera department, they wouldn't picket us but if we didn't, they were going to picket us." DiFalco wanted to keep the camera depart- ment open the rest of the day, but the strikers "didn't know what to do." After finding out that Towers had a store at Hazleton, Berry, according to DiFalco, made a deal with him : He [Berry] said if we close Hazleton without them going up to Hazleton, that they would let us stay open to finish the day's business. But if Hazleton didn't close, that either we had to rope the department off right then and there or else we were going to be picketed. DiFalco called the Hazleton store and spoke to Bernard Zweighaft, district manager for Towers. Zweighaft then talked to Berry who said that if Towers did not go along with closing down the camera departments at Scranton and Hazleton that evening, the Union would picket the Towers store at these places. Zweighaft then gave orders to close down the camera departments at Scranton and Hazleton that evening.? 9 Respondent stipulated that the strikers who visited the various discount retail depart- ment stores were acting at the instance and under the direction of the Union. 7 Similar threats to picket the stores, as distinguished from Eastern's departments, occurred at the Topps store in Fairfield, Connecticut, on April 14, and at the Towers store in Randallstown, Maryland, on April 18 . Subsequent to the threats, the camera sec- tions at both stores were closed . We note, however, that there is conflicting testimony regarding the events surrounding the closing of the camera departments at these two stores. The Trial Examiner did not resolve this conflict of testimony. We likewise find it unnecessary to resolve credibility in regard to the threats at the Topps store and the Towers Randallstown store. As we have found that the events at the Towers Scranton store clearly manifest an unlawful course of action by the Respondent , the scope of our Order will afford an appropriate remedy for any similar violations. DISTRICT 65, RETAIL, WHOLESALE & DEPT. STORE UNION 997 Based on the uncontradicted evidence regarding activity directed specifically to the Towers Scranton and Hazleton stores, we find that the Respondent solicited Towers' assistance in its primary dispute with Eastern, and threatened to place a picket line at these Towers stores, directed at the stores themselves, if the requested cooperation were not forthcoming. From this, it is clear, and we find, that al- though Respondent's ultimate purpose may have been to close Eastern down, the immediate objectives of Respondent's threats was to force Towers to cease doing business with Eastern, an object proscribed by the Act.' Accordingly, we conclude that the unqualified threat to picket Towers' Scranton and Hazleton stores, with which the Respond- ent had no labor dispute, in order to force or require a cessation of 'Towers' business with Eastern, violated Section 8(b) (4) (ii) (B) of the Act. M. SECTION 8(b) (7) (C) CONDUCT The consolidated complaint also alleged that Respondent, which is not certified as the representative of Eastern's employees, violated Section 8(b) (7) (C) of the Act by picketing Eastern's premises in order to force and require Eastern to recognize and bargain with Respondent, and in order to force and require the employees of Eastern to accept and select Respondent as their collective-bargaining representative, without filing a valid petition under Section 9 within a reasonable period of time. The Trial Examiner dismissed this alle- gation, finding that the picketing had neither recognition nor organi- zation as its objective. We disagree. In the early part of March, Respondent began organizing Eastern's employees and obtained a number of signed authorization cards. On March 29, three employees of Eastern were discharged. The next afternoon, Nattman, Respondent's organizer, accompanied by the three dischargees, met with Morton Shapiro, the attorney representing Eastern, and asked that the three men be reinstated. Nattman ad- mitted that recognition and a contract were discussed,9 explaining that "the primary thing was to get the three men back to work, then we could discuss the other matters, recognition or election or anything 8 See Amalgamated Lithographers of America (Ind.) and Local No. 17, etc ., 130 NLRB 985, 991 ; S. M. Eisner and Sons, et at., 131 NLRB 1196, 1203, 1204; Bomat Plumbing and Heating, ,131 NLRB 1243, 1248; Minneapolis House Furnishing Company, et at., 132 NLRB 40, 44; United Wholesale and Warehouse Employees, Local 261, Wholesale and Department Store Union, AFL-CIO ( Perfection Mattress cE Spring Company ), 129 NLRB 1014, afid. as amended 134 NLRB 931. 9 Regarding the first meeting with Shapiro, the record shows Nattman 's testimony on cross-examination as follows : Q. And did you also discuss recognition of the union at the meeting? A. All labor organizers do when they meet with employers. Q. Just answer the question. A. Yes. Q. Did you mention anything about a contract at that meeting? A. Just generally, we would try to get together. 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD else, or setting a date for the contract." After this meeting, employees of Eastern began to leave their jobs. Another meeting between Shapiro and Nattman, in the presence of the dischargees, took place about 6 p.m., the evening of March 30.. Nattman "reiterated the point of putting the men back to work," and,. admittedly, again asked for recognition.10 Ed Berry, one of the dis- chargees, also acknowledged that "there was a discussion about union- recognition" at this meeting. On March 31 picketing began.il The legend on the picket signs read' "Employees of Eastern Camera locked out. Please do not patronize."' On Tuesday, April 3, Cleveland Robinson, a union official, called Attorney Rains, then representing Eastern. Robinson testified that the purpose of the call was to discuss the reinstatement of the dischargees,, but he admitted that recognition was discussed during the conversation. Also on April 3, Eastern filed the present 8(b) (1) (A) and 8 (b) (7) (C) charges against the Union. On April 5, Respondent filed an 8(a) (3) charge against Eastern which was subsequently dis- missed.12 . On April 18, Respondent wrote Eastern advising Eastern that the Union was ready "to negotiate all the outstanding issues that exist between us." On April 24, Respondent filed an 8 (a) (5) charge against Eastern, which was dismissed on May 1.13 Finally, on April 26, the,27th, day of the picketing, Respondent filed a petition for an, election.'' Based upon the foregoing findings of fact, we conclude that an object of Respondent's picketing was to force the Company to recognize and bargain with Respondent as the representative of its employees, and, also to force Eastern's employees to accept Respondent as their bar- io Additionally , in the course of cross-examination , the General Counsel read into the record Nattman's testimony in the district court 10 (1) injunction proceeding in which he admitted that at the second meeting with Shapiro , lie asked "that the company recognize [his] Union as a representative of its employees." "Also on March 31, Shapiro received a call from Cleveland Robinson, a union official Robinson testified that in this conversation he sought only reinstatement of the three dis- chargees. ' He testified that' Shapiro first brought up the questidn'of recognition by stating he (Shapiro ) wanted an election . Robinson further testified that Shapiro then abandoned his desire for an election and tried to convince Robinson to forget about the discharges. and that it would be possible for them to work out a contract. Shapiro's testimony is that Robinson asked for reinstatement of the three discharged employees , recognition , and the setting of an early date for contract negotiations , explain- ing .that the only difference between Robinson 's and Nattman's demands was that Robinson offered to arbitrate the discharges. The Trial Examiner appears to credit Shapiro , but does not say to what extent. In view of this somewhat ambiguous credibility finding by the Trial Examiner , we note, but do not rely upon, Shapiro's testimony or the Robinson -Shapiro telephone conversation of March 31. '2 Case No. 2- CA-8549 ( not published in NLRB volumes ). The Union appealed the Regional Director's dismissal of the charge, and on July 10, 1962, the General Counsel sustained the dismissal of the charge and denied the appeal. 's Case No. 2-CA-8600 ( not published in NLRB volumes ). On July 10, 1962 , the Gen- eral Counsel sustained the Regional Director 's dismissal of the charge and denied Re- spondent's appeal. "Case No. 2-RC-12032, in which the Board 's Decision and Direction of Election Issued January 11, 1963, 140 NLRB 569. DISTRICT 65, RETAIL, WHOLESALE & DEPT. STORE UNION 999 :gaining agent. We find no merit in Respondent's contention that its picketing was for the sole purpose of achieving reinstatement of the three discharged employees.15 Respondent's organizer admitted that he asked for recognition and negotiations prior to the picketing, and the record fails to show that this objective was ever abandoned. We re- gard as most significant Respondent's continued interest in recogni- tion and bargaining, as evidenced by its letter of April 18 to Eastern. Moreover, when Eastern refused to bargain, the Respondent then filed an 8(a) (5) charge. This clearly demonstrates to us that an -objective of the picketing was Eastern's recognition of the Union as the representative of its employees, and the forcing of Eastern's em- ployees to accept the Union as their bargaining representative. To sustain the complaint's Section 8(b) (7) (C) allegation, it must 'be shown that Respondent picketed "without a petition under Section '9(c) being filed within a reasonable period of time not to exceed 30 days from the commencement of such picketing." It is the General -Counsel's contention that because of Respondent's picket-line mis- -conduct, 26 days of picketing without a petition being filed was, under the circumstances of this case; more than a reasonable period of time. We agree with the General Counsel. The Act does not define a reasonable period of time, but the language .of the section as well as its legislative history indicates that picketing for a period less than 30 days may be considered as unlawful. Thus, it is apparent that Congress intended that the Board should determine what constitutes a reasonable time in each case and that the 30-day limitation was merely an outside limitation. We hold here, in view of Respondent's picket-line acts, consisting, as set forth above, of threats of physical violence, use of coercive and abusive language, blocking ingress and egress to and from struck premises, that Respond- ent violated Section 8(b) (7) (C) of the Act by engaging in 26 days of recognitional and organizational picketing without filing a petition.16 Our holding in this respect is not without precedent. In Cwneo v. United Shoe Workers (Q. T. Shoe Mfg. Co.)," which involved a peti- tion for injunctive relief under Section 10(1), only 10 days elapsed between the commencement of the picketing and the filing of a petition 15 The Fanelli Ford Sales, Inc., et at., case, 133 NLRB 1468, on which the Trial Ex- aminer relies, holds that picketing directed solely at securing a discharged employee's reinstatement does not come within the proscribed objectives of Section 8(b) (7) (C) of the Act. However, as independent evidence shows that an object of Respondent's picket- ing in the instant case was to secure recognition and contract negotiations , the Fanelli ease is clearly distinguishable . Even if the Fanelli case were not thus distinguishable, Members Rodgers and Leedom still would find, in accord with Member Rodgers dissent in Fanelli and with the holding in Lewis Food, 115 NLRB 890 , that Respondent's picketing necessarily had recognition by the Employer as an object. 19'we do not pass upon the question of whether unlawful secondary acts , such as those .committed by Respondent, affect the number of permissible days of picketing under Sec- tion 8(b) (7) (C). 17181 F. Supp. 324 (D.C.N.J.). 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for an election. There, the court had squarely before it the question of whether 10 days of organizational picketing, which involved vio lence, coercion, and intimidation, before a petition was filed, consti- tuted unreasonable delay and an unfair labor practice. In granting an injunction against all forms of picketing , the court said : The unlawfully aggressive nature of the picketing and its coercive effect on the employees have combined . . . to shorten the period for which the Union may reasonably be allowed to picket before seeking the impartial intervention of the Board. Under established Board policy the representation election will not be held until the effects on the employees of unlawful conduct on the part of the respondents have been dissipated. It would be anomalous to hold that respondents may picket until such time as a free election may be held, where respondents' unlawful conduct has precipitated the delay. We adopt the court's rationale in the United Shoe case, and conclude that by picketing Eastern Camera & Photo Corp. for an object pro- scribed by Section 8(b) (7) (C) of the Act, for more than a reasonable period of time without filing a petition , Respondent has violated Section 8(b) (7) (C) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth 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 The Trial Examiner found that the Respondent did not engage in conduct violative of Section 8(b) (1) (A) of the Act. However, in view of our findings that the Respondent Union has engaged in many violations of that section, an order prohibiting the unlawful conduct is appropriate and necessary. Accordingly, we shall order that Re- spondent Union cease and desist from engaging in conduct proscribed by Section 8(b) (1) (A) of the Act. Moreover, as Respondent Union's. extensive unlawful activities indicate a purpose to defeat the processes of the Act, we are convinced of the danger of their commission in the future. Accordingly, in order to make effective the independent guarantees of Section 7 and to effectuate the policies of the Act, we shall order that the Respondent Union cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. Having found that the Respondent Union has engaged in unfair labor practices in violation of Section 8(b) (4) (ii) (B) and DISTRICT 65, RETAIL , WHOLESALE & DEPT. STORE UNION 1001 8(b) (7) (C) of the Act; we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in these cases, the Board makes the following : CONCLUSIONS OF LAW 1. Eastern Camera & Photo Corp. is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 65, Retail, Wholesale & Department Store Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By employing, or threatening to employ physical violence,. against employees and other individuals at or near the picket line,. and by blocking ingress and egress to and from Eastern's premises, Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 4. By threatening to picket at the premises of the Towers stores in Scranton and Hazleton, Pennsylvania, in furtherance of a dispute with Eastern Camera & Photo Corp., Respondent has engaged in un- fair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act. 5. By picketing Eastern Camera & Photo Corp.'for an object or objects proscribed by Section 8(b) (7) (C) of the Act for more than a reasonable period of time without filing a petition for an election, Respondent has engaged in unfair labor practices within the meaning ofSection8(b) (7) (C) of the Act. ORDER Upon the entire record in these cases and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, District 65, Retail, Wholesale & Department Store Union, AFL-CIO, New York, New York, its officers, representatives, successors, agents, and assigns shall: 1. Cease and desist from : (a) Blocking or interfering with the ingress and egress of em- ployees and other individuals, or employing, or threatening to employ, physical violence against employees and other individuals, at or near the premises of Eastern Camera & Photo Corp., located in Hempstead, New York, or at or near its subsidiaries located elsewhere. (b) In any other manner restricting or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. (c) Threatening, coercing, or restraining the Towers store in Scranton, Pennsylvania, or any other employer or person engaged in 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commerce where an object thereof is to force or require any employer or person to cease doing business with Eastern or to force or require Eastern to recognize or bargain with the Respondent Union when Respondent has not been certified as the representative of Eastern's employees under the provisions of Section 9 of the Act. (d) Picketing, or causing Eastern's premises, or those of its sub- sidiaries, to be picketed with an object of forcing or requiring Eastern to recognize or bargain with the Respondent Union as the bargaining agent of its employees, or forcing or requiring the employees of Eastern to accept or select the Respondent Union as their collective- bargaining agent, in violation of Section 8(b) (7) (C) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post copies of the attached notice marked "Appendix" 18 at its offices and meeting halls. 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 by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Rea- sonable steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Second Region copies of the aforementioned notices for posting by Eastern Camera & Photo Corp., and the Towers store in Scranton, Pennsylvania, the companies willing, at all locations where notices to Eastern's employees are cus- tomarily posted and at the discount retail store where picketing was threatened. Copies of said notice, to be furnished by said Regional Director shall, after being signed by the Respondent Union, as indi- cated, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for the Second.Region,.in writing, within 10 days from the date of this Order, as to the steps taken by Respondent to comply herewith. is in the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF EASTERN CAMERA & PHOTO CORP. AND THE TOWERS STORE, SCRANTON, PENNSYLVANIA 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 : DISTRICT 65, RETAIL , WHOLESALE & DEPT. STORE UNION 1003 WE WILL NOT black or interfere with the ingress and egress of employees and other individuals, or employ or threaten to employ, physical violence against employees and other individuals, at or near the premises of Eastern Camera & Photo Corp., located in Hempstead, New York, or at or near its subsidiaries located elsewhere. WE WILL NOT in any other manner restrain or coerce employees at those premises in the exercise of their rights guaranteed them by Section 7 of the Act. WE WILL NOT threaten to picket the Towers store in Scranton, Pennsylvania, or any other employer or person engaged in com- merce where an object thereof is to force or require any employer or person to cease doing business with Eastern Camera & Photo Corp., or with an object of forcing and requiring Eastern Camera & Photo Corp., to grant us recognition and to bargain with us re- garding its employees in violation of Section 8(b) (4) (ii) (B) of the Act. WE WILL NOT picket or cause to be picketed Eastern Camera & Photo Corp., Hempstead, New York, or its subsidiaries, where an object thereof is to force or require the aforesaid Company to recognize or bargain with us as the representative of its employees, or where an object is to force or require the employees of Eastern to'accept or select us as their collective-bargaining agent in viola- tion of Section 8 (b) (7) (C) of the Act. DISTRICT 65, RETAIL, WHOLESALE & DEPARTMENT STORE UNION, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, fifth floor, Squibb Building, 745 Fifth Avenue, New York 22, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Eastern Camera, the prime employer in the labor dispute here involved, filed separate original charges in Cases Nos. 2-CP-142 and 2-CB-3424 on April 3, 1962, against the above-named Respondent Union. On April 30, 1962, the General Counsel of the National Labor Relations Board issued and served separate complaints in said two cases . On April 16, 18, and 20, and May 7, 1962, respectively, Eastern Camera filed an original and first, second , and third amended charges in Case No. 2-CC-709 . On May 11, 1962 , General Counsel issued and served his complaint in said case. On May 23, 1962, General Counsel issued 'an order consolidating the 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three cases for purposes of hearing , the hearing being set for June 4 , 1962. Answers to the separate complaints were duly filed by the Respondent Union. The com- plaints allege and the answers deny that the Respondent Union has engaged in unfair labor practices in violation of Section 8(b)(7), 8 (b)(1)(A), and 8 (b)(4)(ii)(B) of the National Labor Relations Act, as amended . Pursuant to notice, a hearing was held in New York, New York, on June 4, 6, and 7, before Trial Examiner C. W. Whittemore. All parties were represented by counsel and were afforded full opportunity to present evidence pertinent to the issues , to argue orally, and to file briefs . General Counsel .argued on the record . Briefs have been received from all parties. Disposition of the Respondent's motion to dismiss all three complaints, upon which ruling was reserved at the hearing, is made by the following findings, conclusions, and recommendations. At the opening of the hearing General Counsel himself called the Trial Examiner's "attention" to the following administrative facts: (1) That on April 5, 1962, the Union filed 8(a)(3) charges against Eastern Camera, concerning the discharge of three employees, in Case No. 2-CA-8549. The Regional Director, Second Region, dismissed this charge on April 30, 1962. The Union appealed the ruling to General Counsel, and that appeal had not been acted upon at the time of the hearing in the instant proceedings. (2) That on April 24, 1962, the same Union filed an 8(a) (5) charge against Eastern Camera, in Case No. 2-CA-8600. The Regional Director dismissed this charge on May 1, 1962. His ruling was appealed to General Counsel, and final ruling had not been made at the time of the hearing in the instant proceedings. (3) On April 26, 1962 (within 30 days of the time a strike began, the nature of which is in issue, especially in the CP case, in these proceedings) the Union filed a petition for an election in Case No. 2-RC-12032, involving employees of Eastern Camera. "That decision," according to General Counsel, "is being held in abeyance pending the determination of these cases, in particular, the 2-CB-3424." It was also developed during the hearing in the instant proceedings that on May 21, 1962, the Respondent Union sent a long wire to the Board, among other things appeal- ing the Regional Director's failure to act, as required, on an expedited election and specifically requesting a stay in the CP, CB, and CC proceedings. On June 4, at the opening of these proceedings, 2 weeks after the wired motion for a stay had been filed with the Board, the Union had received no reply, and counsel for the Union moved that the Trial Examiner grant the stay. The Trial Examiner pointed out that he was hardly in a position to rule upon a motion which already was before the Board, but gave counsel an opportunity to communicate with the Board's Executive Secretary. If the Board acted between June 4, when the hearing opened, and June 7, when it closed, that fact was not made known by any party to the Trial Examiner. Upon the record thus made at the hearing, and upon his observation of the wit- nesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING COMPANY Eastern Camera & Photo Corp. is a Delaware corporation with main office and a 'place of business in Hempstead , New York, where it is engaged in the sale and re- pair of cameras and other photographic equipment and in providing and performing services thereon, and in the sale and processing of film. During the year preceding issuance of the complaints Eastern Camera, at the Hempstead operation , derived gross revenues of more than $500,000. And during the same period , to the same location, Eastern Camera caused to be delivered mate- rials valued at more than $50,000 directly from points outside the State of New York. Eastern Camera and its wholly owned subsidiaries , listed in Appendix A, are affil- iated businesses with common officers , ownership , directors , and operators , and con- stitute a single integrated business enterprise. In addition to the subsidiaries listed in Appendix A, Eastern Camera also wholly owns and operates similar businesses in: (1) Fairfield , Connecticut, through Eastern Camera & Photo Corp. of Connecticut; (2) Baltimore, Maryland, through Eastern Camera & Photo Corp . of Maryland ; and (3 ) Scranton and Hazleton , Pennsylvania through Eastern Camera & Photo Corp. of Pennsylvania. These subsidiaries and Eastern Camera constitute a single, integrated business enterprise. The complaints allege, the Respondent Union at the opening of the hearing in effect conceded , and it is here found that Eastern Camera is an employer engaged in commerce within the meaning of the Act. DISTRICT 65, RETAIL, WHOLESALE & DEPT. STORE UNION 1005 H. THE RESPONDENT UNION District 65, Retail, Wholesale & Department Store Union , AFL-CIO, is a labor organization admitting to membership employees of Eastern Camera. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Setting and major issues All of the conduct General Counsel would have found violative of the several -sections of the Act occurred within a period of about a month beginning immediately .after Eastern Camera had discharged three employees and most of their fellow employees had gone on strike in protest. The strike began on March 31, 1962, and picketing at Eastern Camera's stores in Queens , Long Island and Nassau, New York, -continued until a temporary restraining order was issued by a court on May 4, 1962. As to Case No. 2-CP-142, General Counsel claims, in his complaint based upon .a charge filed only 3 days after the strike began, that the Respondent Union violated Section 8(b)(7) of the Act by picketing Eastern Camera's New York stores, objects of such picketing being both recognition and organization, without a "valid petition" having been filed "within a reasonable time from the commencement of such picketing." 1 As to Case No. 2-CB-3424, it is General Counsel's contention that the Respondent Union, through its agents and pickets, "threatened to inflict and inflicted bodily harm to employees of Eastern " and other individuals, and inflicted property damage, in violation of Section 8(b) (1) (A) of the Act.2 And in Case No. 2-CC-709, General Counsel contends that the Respondent Union violated Section 8(b) (4) (ii ) (B) of the Act by threatening to picket certain discount stores in Connecticut, Pennsylvania, and Maryland, where Eastern Camera operates its stores, an object of the threats being to force such discount stores to cease doing .business with Eastern Camera.3 B. The CB case Because General Counsel concedes that unless his allegations in the CB case are sustained, his CP case must fall, consideration will initially be given to evidence pertinent to the first-mentioned case. In short it is (or was, in his complaint) Gen- eral Counsel's theory that the Union's unlawful activity on the picket line "invali- dated" the petition it filed within the prescribed 30-day period after the picketing began. It is necessary to determine first, therefore, whether there actually was any unlaw- ful conduct within the meaning of Section 8(b) (1) (A). 1. The Buck incident At about noon on April 21 Robert Buck, an advertising agency employee, came .to the Hempstead store to pick up film he had previously left there. Four employees were picketing the store. He was not physically molested, but as he entered some- one called him a "scab." (General Counsel makes no claim that name-calling is violative of the Act-he offered such, he said as "flavor"!) When he left the store he was again called names. Instead of proceeding about his business, according to his own testimony he challenged the pickets by calling out that they were "pretty 1 The relevant portion of Section 8(b) (7) thus Invoked states that It shall be an un- fair labor practice for a labor organization "to picket . . . any employer where an object is forcing -or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective-bargaining representative, unless such labor organization Is currently certified as the representative of Such em- ployees: . . . (C) where such picketing has been conducted without a petition under Sec- tion 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing. . . . 2 Section 8(b) (1) (A ) states that it shall be an unfair labor practice for a labor organi- zation or its agents: "to restrain or coerce employees In the exercise of the rights guaran- teed in Section 7 .. Section 7 of the Act, insofar as here concerned, states that -employees shall "have the right to refrain from . . . concerted activities." 8 Relevant portions of this section state that It shall be an unfair labor practice ". . . to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where . . . an object is . . . forcing or requiring any person to cease . . 11 doing business with any other person. .. . 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brave with all these pickets around ." One of the pickets, Giles, a salesman for Eastern, offered to take him on alone, if he wished . At the moment Buck did not so wish. Never having been in one, he said, he was not anxious to get into a street fight. He walked away. Apparently, however, he was unable to outdistance his own sense of inadequacy, which he described as "cowardly." Suddenly, according to account, he recalled something Woodrow Wilson had said: "To succeed in this great country, you should give evidence that you are not afraid of anything except God and His final judgment." Bolstered by Wilson, he returned to the picket line, coat off, prepared to "give evidence." He stepped in front of Giles, who was pacing the line with sandwich-signs fore and aft, and asked him if he "wanted to fight." Giles replied, he said, that if he had anything to say, to say it with his fists. At this point there is some dispute as to which of the two struck or attempted to strike the first blow. Since Buck, according to his own testimony, returned for the obvious purpose of self-vindication, the Trial Examiner is inclined to believe that he made at least the first attempt to strike a blow . His account of the "fight": I didn't realize it at the time. But the next day I turned up with a black eye and a bruise on my side . . . while we were fighting, we had been sparring around for a few-a little while, I don't know how long it was. And I think he realized that I was rather inept at this. And he said, "Oh, you sucker, you." Then the fighting stopped , because I was-it was soon evident that he was right. I was pretty much of a sucker because I was going to take a rather bad beating, I could see . So having accomplished what I felt was somewhat my goal, I said I quit. Robert Buck, advertising agency employee, had had his first street fight. In relating his story, Buck displayed neither rancor nor regret. He avoided neither the eyes of various counsel nor the almost quizzical attention of Giles, a young man of apparently about his own age and size. His manner and voice were that of a modest victor, not of a petulant victim. His demeanor throughout his examination was that of a young man calmly recounting-not the loss of a battle to another, but the winning of a war within himself. He spoke quietly but firmly, as if to his own mirrored image, in relating facts few men, more full of years than he, dare admit: that, after all, in attaining "somewhat of his goal" a man is often "pretty much of a sucker." But whether young Buck won or lost, the incident clearly does not fall within the Board's broadest concepts of an 8(b)(1)(A) violation. Buck himself made it clear that only the recollection of a former President's remark turned him back and precipitated the altercation. 2. The Orlando incident Nicholas Orlando, truckdriver for a company which has film developed by Eastern-Camera, sometime in April drove his small truck behind the Hempstead store, quite as had been his custom for an undetermined period of time. As he started away, "a half dozen men approached in front" of his truck, according to his testimony. One of them, whom he identified as Nat Nattman, a union representative, merely told him he "shouldn't cross the picket line, the place was on strike." And he heard some unidentified person , who stood nearby tossing a stone up in the air and catching it, say that he "had a nice truck and .. . should keep it that way." That's all there was to the incident. Orlando continued to make frequent visits to the store , as he had in the past, and so far as his testimony reveals he was never again even spoken to. Plainly this incident may not be held to be either violence or threat of violence. 3. The Ellison incident In the latter part of April nurse Ellison went into the Hempstead store. As she came out, a picket passing by "bumped" her, but be promptly said, according to her own testimony, "Excuse me, excuse me," a remark which she "guessed " was begging her pardon. The Trial Examiner finds neither violence nor threatened violence in this incident.. 4. The Simms incidents "Quite a while" after the strike began on March 31 , Jim Simms was hired at the Hempstead store to take the place of a striking salesman. The picketing employees, he testified, called him a few names, but he "paid very little attention" to them. "But very definitely," he said, he recalled an incident when a few teenagers unidentified, came into the store and started to "squirt" him with water pistols. That, apparently, DISTRICT 65, RETAIL, WHOLESALE & DEPT. STORE UNION 1007 made him angry, and he "shooed them outside ." "I stamped my foot," he declared emphatically, "and they ran." And once outside (of all things), "They wet the window." Simms went out, "chasing them away, and into and through the pickets." Some of the pickets inquired , as he returned, "What are you trying to do, beat up the kids?" and, "why don't you leave the poor little darlings alone?" They said "stuff like that," he added. Finally Giles, previously identified, came up and put his arms around Simms' shoulders , and said, "you are the guy we are after because you are a strike -breaker." But when Simms said "Take your hands off me," Giles "smiled and let go." A week or two later, as he left the store and started to pass across a driveway lead- ing to the street, a car driven by a picket whom he recognized was coming out of the driveway. There stood Simms, he testified , "I kind of hesitated, wondering whether to jump out of the way or what to do." The driver was less hesitant . He "slammed on the brakes" and the car stopped. A "cop," Simms said, was nearby, and he remarked to him that "It was pretty close, wasn't it?" The cop smiled at him and got back into his own car. Simms has continued to work for Eastern Camera, without further incidents, so far as the record shows. General Counsel makes no claim that the water pistol squirting was violative of the Act. And that Giles put his arm around his shoulders , with a smile, can hardly be termed to be "violence." 5. The Kay incident Allan W. Kay, an Eastern Camera salesman , was apparently one of the few, if not the only, employee who did not go on strike. He said that when another em- ployee called him to tell him they were going out , he called the "main office" of the Company. A reason for this may well have been the fact , admitted by him, that the head of Eastern Camera had in his possession a signed confession that he had stolen merchandise. In any event, he was told to open the Lynbrook store-.the next day. He followed such instructions . During the morning two of the pickets came in to see him, one of them having been , until the strike, the manager of that store. One of them, Kay said, tried "to convince him" he should help his fellow workers by closing the store. Kay said he "wouldn't say," however, that this individual "was per- sistent" in his attempt to persuade him. Later a larger number of his fellow em- ployees came in. He was "doodling" with a pencil, he testified , and Giles, previously identified, took the pencil from his hand "to get my attention" and asked him: "Are you with us or not?" He told them he was not with them . Someone, whom he. could not,identify, said "We won't do anything to you but the union plays rough , and watch out when you close up at six o'clock." Kay then closed the store, and drove back to the Hempstead store with some of the "pickets." The one item in Kay's account which might , by a great deal of straining, be inter- preted as a threat of "violence": his claim that someone said the "union plays rough," was attributed to some individual whom he did not identify, and obviously the Re- spondent Union could not produce any witness to deny having made the statement. Not only does it appear that Kay has continued to work for Eastern Camera, without further incident, since that day, but the Trial Examiner has grave doubt that anyone uttered even the implied threat to him on the one occasion . Kay was under a strong compulsion because of his signed confession still being held by the Employer, to give testimony favorable to that Employer. Doubting Kay's credibility , the Trial Examiner is unable to find that this incident was violative of the Act. It is an affront to reason to believe that anyone intimidated by a so-called threat would immediately thereafter ride home, as Kay admitted he did, with the same pickets. 6. The Giordano incident Frank Giordano was hired after the strike began . On April 9, according to his testimony, as he left the Hempstead store at 9 o'clock , someone called out to him when he was crossing the street; and "yelled" at him that he had "better not get caught in a dark corner or my arm would be broken." At the hearing he identified the individual who thus "yelled " at him as Al Goodman, one of the striking em- ployees. Yet in an affidavit to a Board agent, the next day, he stated that he did not know who made the remark, but described the individual as "about six foot one inch, 190 pounds and has curly blond hair." It developed, at the hearing, that Goodman does not have blond hair, but dark, and is about 5 feet 10 inches in height , according 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Giordano's own estimate. Furthermore, Goodman testified credibly that he was not there on April 9, and that he was always at home on Monday nights. Under these circumstances, the Trial Examiner is unable to accept Giordano's testimony regarding, this incident as credible. A week or so later, also according to Giordano, as he was coming into the store he "exchanged" profanity with Giles, a picket, and as he went through the door Giles "pushed" him. Instead of remaining inside, he came out again and "exchanged words again." Giles suggested they step around back of the store and settle it. He did not accept. He went to talk with Knopf, head of the Company, who "calmed" him down, and told him to go out for a cup of coffee. He went to a corner cafeteria, known to be the headquarters for the pickets. As he entered, Giles said "Hi, scab" to him and he replied "Hi, Windy." Words were exchanged and Giordano, Giles, Nattman, and others went outside. "Again," he testified, "profanity came about." He claimed that Giles "pushed" him, and Nattman pulled him away. They dispersed. Even if Giordano is to be believed that in heated argument Giles "pushed" him, the occurrence was so trivial as to deserve no finding of coercion. The latter incident took place away from the picket line; Giordano was prevented from neither entering. nor leaving his place of work. 7. The Curcio incident Two nights before Easter, Anthony Curcio, a husky building contractor, and his wife visited the Hempstead store. None of the four or five pickets pacing the side- walk said anything to them as they entered the store. As they came out, however, a picket whom Curcio identified as Giles, spoke to him in a "loud" tone and said he was "doing him no good"-apparently by patronizing a store on strike. Curcio bluntly told Giles to "mind his own business," and went on. Here again there was neither violence nor threat of violence, nor was anyone barred from entering or leaving the store. Clearly the incident may not be held to be violative of the Act. 8. The Margulies incident David Margulies is executive secretary of the Photographic Research Organization,, of which Knopf, head of Eastern Camera, is president. Margulies is also a stock- holder in Eastern Camera. On April 2 Knopf called Margulies, told him all his stores were closed by the strike, and asked him to help him open one of them. Margulies agreed, and went to open the Babylon, Long Island, store. According to Margulies, late that afternoon, a number of "strange" men came in, including Giles. He testified that Giles "pushed" him with his right forefinger, and- demanded, "Do you know you are a scab? You are taking a man's job away from me." Someone else added, "if you know what's good for you, you will close the store." He told them he would close the store, and did so. Both Giles and Nattman denied that any threats were made against Margulies, or- that there was any physical contact. Having observed these witnesses, the Trial Examiner cannot credit Margulies. As the record shows, Margulies was so anxious to blurt out his testimony that it was necessary for General Counsel to instruct him to permit him to finish a question. His efforts to color the incident are plainly revealed. When asked if he knew what happened to three customers who were in the store, he replied, "No. They evidently just disappeared. I don't know whether they were pushed out of the store or=." He said that after he closed the store he "went around the corner to pacify" himself, and added: "I have a very nervous tension. and my disability from the Navy is on that." Finally, Margulies on cross-examination admitted that he told the striking employees as he came out with them that he was "glad" to get out of the assignment, and that he invited them all to have coffee with him. It appeared plain to the Trial Examiner that Margulies was striving zealously to testify, not as to the truth of the matter, but to please his "friend" Knopf, who was in the hearing room. Had he actually been threatened, or coerced, it is unreasonable to believe that he would have invited the same men to have coffee with him. Under these circumstances, the Trial Examiner is unable to find anything violative of the Act in this incident. 9. The Greenstein incident Here is one of the strangest items to be claimed as "coercion" by General Counsel that this Trial Examiner has been confronted with in many cases of similar issues. DISTRICT 65, RETAIL, WHOLESALE & DEPT. STORE UNION 1009' It appears from his own testimony that Melvin Greenstein , at the time of the: hearing employed by another concern , for a number of years had been either an, employee or manager at various Eastern Camera stores. Along with others he joined the strike in protest against the discharge of his three fellow employees . He picketed for a time with the others . Some days later, according to his testimony, he arranged with Knopf to go back to work , at the same Flushing store where he had been working. On the morning of his return , he met with several of his fellow employees outside this store, and after talking with them became convinced he should stay out with them . He then suggested and it was arranged that he would go into the store, as if to work, and they would follow , tell him to get his coat and walk out, and he. would do so. The idea was, he explained as a witness , to have the other employee in. the store, one Rosenkrantz, leave with him when he obeyed these instructions. And- he also admitted that "this whole business . . . [was] . prearranged as a plan, to give "him" an "out" so he "could go back and join the picket line." As a witness at this hearing Greenstein did, in passing , claim that someone told- him to "Get your coat or else." At court proceedings earlier, however, he said. nothing about "or else," and the Trial Examiner cannot believe that even this. implied threat was uttered . Both Nattman and Berry-the union representative and a striking employee-who were present denied that any threat was made. And Rosenkrantz , who apparently is still working, was not called as witness. In short, the Trial Examiner finds nothing here to support a finding of an unfair labor practice. 10. The Haack incident Rudolph Haack, a landscaper, testified that on April 11 he came to the Hemp-. stead store as a customer. He passed by a picket line of "boys and girls" wearing signs. Someone whom he could not identify remarked, "You better not go in, I knock your block off." He replied, "I don't care what you say, I'll go in." He added, "No- body bothered me any more." He recognized no one, he said. Under such circumstances the Trial Examiner cannot find that any picket or respon-. sible union representative uttered this remark, even if it be considered a "threat." As the witness frankly said, he was not "bothered" by it, or by any other action. The remark, if made, may have come from some passerby sympathetic with but not involved in the strike, so far as the record reveals. Since the "threat" cannot be with certainty attributed to the Union, and by its very nature was trivial, the Trial Examiner does not find it to be violative of the Act. 11. Summary In summary, the Trial Examiner concludes and finds that the sum total of the. trivia offered by General Counsel falls far short of providing support for his allegation of violation of Section 8(b)(1)(A). For this area, it appears to have been an unusually peaceful strike. The single act which might be termed "violent," as noted above, was precipitated by a young man who actually was not fighting with a picket, but with his own conscience. No one was barred from entering or leaving a store. And Knopf admitted that no arrests were made throughout the strike. It will be recommended, therefore, that the complaint in Case No. 2-CB-3424 be dismissed in its entirety. C. The CP case During the course of the hearing General Counsel stated: It is the General Counsel's position that if ... the Trial Examiner determines that the activity which we claim shortened the period (for the filing of a petition), the reasonable period of the 8(b) (7) (C), did not serve to do so, at that particular time the General Counsel and his 8(b)(7)(C) charge and complaint are out. In oral argument he stated: With respect to the reasonable time, it is the position of the General Counsel that the various conduct of the union and its agents during the course of the picketing directed against employees or in the presence of employees or in such manner that the employees became aware of the picketing served to lessen the reasonable period of time within which the Union had to file its petition. It is my position and the General Counsel's that in this particular instance the various activities concerning the threats, the violence, the intimidation which occurred against customers, deliverers, employees and even possibly the super-. 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visory employees , were of such nature that the reasonable period must neces- sarily be considered to have been shortened. At this point General Counsel was asked by the Trial Examiner what he claimed would have a reasonable period, if he considered 27 days to have been an unreason- able period. After some pressing, General Counsel finally said that he "would say in this case 20 days would have been a reasonable period of time." After the hearing General Counsel, by written communication to the Trial Examiner and the parties , asked to withdraw his statement about a "reasonable" period. In his brief, apparently perceiving the lack of logic in the "timely" aspect of his case, General Counsel claims that the petition was "inoperative"-"for purposes of 8(b)(7)(C) and no defense to a charge thereunder," and again urges that the conduct on the picket line was of a nature to make the petition "inoperative." The Trial Examiner considers it unnecessary here to attempt to meet the vacillating contentions of General Counsel. Whether today he would argue that the petition was "untimely" or "inoperative," it seems that his ground for claiming either, both, or something else, is misconduct on the picket line. Since the Trial Examiner has above found that there was no restraint or coercion during the strike for which the Union was responsible, of a nature sufficient to warrant a "cease and desist" recommendation, it follows that, according to General Counsel's candid admission-quoted above-his "8(b)(7)(C) charge and com- plaint are out." Furthermore, the Trial Examiner is of the opinion that General Counsel failed to prove by a preponderance of credible evidence, that "an object" of the picketing was either recognition or organization. And such proof would be necessary in order to find a violation of Section 8(b) (7) (C) of the Act. . Credible testimony as well as picket signs establish firmly the fact that Eastern Camera employees were picketing only in an effort to gain reinstatement for their three discharged fellow employees. This conclusion rests upon the following facts: (1) At no time, so far as the record shows, did the Union ask for recognition by the Employer before the discharge of the three employees, at least one of whom was a leader in the organization move. (2) It is undisputed that the very first demand the Union made after the dis- charges was specifically and solely related to the reinstatement of the three. Union Representative Nattman's testimony is uncontradicted that when he tried to reach Knopf, the day after the dismissals, he was told to see Attorney Young, who was "pinch hitting" for the Company's regular attorney, Rains. Nattman demanded reinstatement, Young said he would have to talk with Knopf. He returned from making a telephone call and told Nattman that he could not "resolve" the matter, and that the Company was getting another attorney who would have an answer later that day. No mention of a strike was made on this occasion. (3) It is also uncontradicted that on April 3 (2 days before the Union was served with the charge in this matter) Cleveland Robinson, secretary-treasurer of the Respondent Union, called Attorney Rains, counsel for the Charging Employer in these proceedings, and told him: ... we have a bad situation here. The company-(I says), you know us, under normal circumstances, we would organize here, we would have gone in for election, but the company fired three people and the workers decided to strike for their jobs and (I said) the picket line is up now for that purpose. Rains replied that he had come into the "situation" after "this" happened and that "the company will not take these men back." Robinson urged that "All I am interested in is to get the three men back to work and if that happens . . . everything else can be resolved in the normal manner." It is also undisputed that Rains then told him, "Look, I can't do anything in this situation. This employer is not the kind of a person that I can talk to in this light and I can't do anything." (4) The picket signs throughout the strike bore this legend: Employees of Eastern Camera locked out. Please do not patronize. District 65, RWDSW, AFL-CIO (5) Many of General Counsel's own witnesses testified to the fact that they were told by the picketeers that the purpose of the strike was reinstatement-not a single witness testified that they told him of any other reason. (6) Greenstein, a witness for General Counsel who, as noted above, participated as a picket testified: DISTRICT 65, RETAIL, WHOLESALE & DEPT. STORE UNION 1011 We were trying to organize a union and the day before we were going for negotiations with Mr. Knopf, three men had been let go. We had a meeting at Hempstead at the union meeting hall, exactly where I don't remember. After the three men were let go, and everybody decided that unless the three men were put back to work, we would all walk out. We got a call the next day at approximately 3 o'clock in the afternoon that the three men were not going back to work, we should close up and report to the Hempstead meeting hall which we did. The only direct evidence that there was any other purpose for picketing than that of reinstatement was given by Attorney Shapiro, by his own admission a personal friend of Knopf, who apparently was called in to represent the Company briefly between Young and Rains. According to his testimony Nattman at two meetings and Robinson in one telephone conversation both said that the strike was being called for three purposes: reinstatement, recognition, and negotiations for a contract. His testimony is without support, either from any other witness, or from any of the sur- rounding circumstances? His claim is denied by both of the union officials. In view of the undisputed testimony of Robinson, regarding his conversation with At- torney Rains, and the testimony of many of General Counsel's witnesses as to what they were told by pickets, as well as the picket sign legends, the Trial Examiner is unable to credit Shapiro's testimony in full. Official Board documents, including a return mail receipt,5 discount to a point of vanishing any possible inference that Robinson's communication to Rains was colored by the Union's self-serving wish belatedly to limit its strike purpose to an issue outside the scope of Section 8(b)(7)(C). In short, the Trial Examiner believes that he is governed, in this case, by Fanelli Ford Sales, Inc., 133 NLRB 163, in which the Board arrived at a similar conclusion- that the picketing was directed solely at securing reinstatement, and that such conduct does not violate Section 8(b)(7) of the Act. D. The CC Case This case involves a contention by General Counsel of a secondary boycott issue. As noted in section I, above, Eastern Camera operates, through its wholly owned subsidiaries, stores in Fairfield, Connecticut; Scranton and Hazleton, Pennsylvania; and Randallstown, Maryland. Each of the stores herein concerned, however, are on the premises of various discount chain retail department stores: Topps at Fairfield, and Towers at the other locations. They are run as "concessions"; in effect merely paying rent for space leased from the discount enterprises. Eastern Camera controls and performs its business operations, including staffing of managers and employees, as it does at its other stores. ' It appears that General Counsel would have it found that in a sworn statement given to a Board agent on April 10, 1962, Union Agent Nattman made an admission against interest supporting Shapiro's testimony to the effect that at two meetings Nattman had made reinstatement, recognition, and negotiations as equal requirements to prevent a strike. While it is true that the affidavit does state that at the second meeting with Shapiro-after the strike had begun-"I asked for reinstatement of the 3 men, recognition of the Union as bargaining agent of all the employees and immediate commencement of negotiations, otherwise we would commence picketing." In the next sentence but one, however, the affidavit states: "I told him that in addition to recognition we wanted the re- instatement of these 3 employees and unless we obtained this condition we would com- mence picketing in the morning." [Emphasis supplied.] The same affidavit states, with reference,to the first meeting with Shapiro, which was before the employees, or a majority of them, walked out: "At this meeting I did not at any time demand recognition or ask for a contract." Although taking Nattman's first quoted sentence out of context gives some support to General Counsel's claim, it seems clear and two sentences later Nattman specified but a single "condition"-that of reinstatement. And Shapiro, as a witness, ad- mitted that he told Nattman, upon his initial three demands, that he "might " consent to an election as a means of disposing of recognition issue. In whatever manner this latter was to be disposed of, for the reasons noted above the Trial Examiner is convinced that bad Shapiro, or some other employer representative, satisfied the Union and the em- ployees by some disposition of the reinstatement issue, there would have been no picketing. 5 The receipt, in evidence, shows delivery on April 5. The Robinson-Rains conversation was on April 3. 708-006-64-vol. 141-65 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the record does not reveal the precise location in each of the discount stores where Eastern Camera has its leased space , it is assumed that at none of them does it have its own special or allotted entryway directly from the public street, either for employees or the public. There is small dispute in the record as to the events which General Counsel claims as constituting unlawful conduct . In brief the events are: (1) On April 14 three or four employees on strike at the New York stores visited Eastern Camera's concession in Fairfield . They went first to the camera depart- ment manager, an employee of Eastern Camera, told him of the strike and said they were going to picket there. He took them to Topps' local manager. To him they repeated their intention . This individual asked them , according to his own testi- mony, what they would do if he closed the camera department . They replied that it would be ridiculous to picket a closed department . He then consulted a superior, was instructed to do as he had suggested , and the department was closed. There was no actual picketing here. (2) On April 19 union strikers visited Eastern Camera's department at Towers' Scranton store. As at Fairfield they went first to Eastern Camera's concession, made known that their purpose was to close it down if possible , and were then taken to see Towers' Scranton manager. He was told if the camera department were to be closed they would not picket . This official called a superior , then at Towers ' Hazle- ton store and it was quickly and amicably agreed that the Eastern Camera concession would be closed both in Scranton and in Hazleton . There was no picketing at either place. (3) On April 18 , at the Towers store in Randallstown , Maryland, strikers simi- larly persuaded the local Towers manager to close down Eastern Camera 's conces- sion. There was no picketing. The foregoing are the essential facts : There is no doubt that responsible union representatives threatened to picket at these locations unless Eastern Camera's con- cessions were closed . Their purpose was no different than at other Eastern Camera operations . As General Counsel alleges in the complaint , and as has been found, all of Eastern Camera's operations , whether conducted as concessions or as indi- vidual stores "constitute a single integrated business enterprise." General Counsel cites no case where the Board has passed upon the legal propriety of threatening to picket at such discount stores, where all or most departments, although under one roof and with common entries, are in effect separate and independent operations . The Trial Examiner knows of no identical precedent. General Counsel's argument that such threats as were made here are violations of the Act lacks persuasion, in the opinion of the Trial Examiner . It would be no less logical, it seems, to contend that all picketing is barred by the Act if the prime employer happens not to own the actual premises on which his operation is located, on the ground that if such threat of picketing succeeds in closing the operation, the business relationship between landlord and tenant may be interfered with. There can be no real question but that the union representatives went to each of the discount stores here involved with the intention and hope of causing Eastern Camera's department to close down . This is made clear by the fact that upon the prompt closing of such department, no picketing took place. The Trial Examiner does not believe that the purpose-to close Eastern Camera's departments-was unlawful , nor does it appear reasonable to hold unlawful the threat to picket to achieve a lawful objective . It is unnecessary here to speculate as to the possible nature and legality of actual picketing , had it taken place; for no picketing occurred. It will therefore be recommended that the complaint in Case No . 2-CC-709 be dismissed. E. Summary conclusions On the basis of the foregoing findings and conclusions of fact , and upon the entire record in the case, the Trial Examiner concludes and finds that the preponderance of credible evidence fails to sustain the unfair labor practice allegations , in any or all of the complaints here involved, and that therefore it may not be held that the Respondent Union has engaged in any unfair labor practices within the meaning of Section 8 (b)(7), 8(b )( 1)(A), or 8 (b)(4)(ii )(B) of the National Labor Relations Act, as amended. RECOMMENDATIONS On the basis of the foregoing findings of fact and conclusions of law , the Trial Examiner recommends that the complaints in Cases Nos. 2-CP-142, 2-CB-3424, and 2-CC-709, and each of them be dismissed in their entirety. SHOP RITE FOODS , INC. 1013 APPENDIX A EASTERN CAMERA & PHOTO CORP__ 68 W. Columbia St., Hempstead, N.Y. Subsidiaries Eastern Camera Exchange Lynbrook Corp_ 6 Hempstead Ave., Lynbrook, N.Y. Eastern Camera Exchange Long Beach Corp------------------------------ 20 W. Park Ave., Long Beach, N.Y. Roosevelt Shopping Center, Garden City, N.Y. Eastern Camera Exchange Freeport Corp__ 106 S. Main St., Freeport, N.Y. Mid-Island Shopping Plaza, Hicksville, N.Y. Eastern Camera Exchange Huntington Corp------------------------------ 354 New York Ave., Huntington, N.Y. 18 Deer Park Ave., Babylon, N.Y. Eastern Camera Exchange North Shore Corp------------------------------ 933 Port Washington Blvd. Port Washington, N.Y. Eastern Camera Exchange Bayshore Corp_ 58 W. Main St., Bayshore, N.Y. Eastern Camera Exchange Levittown Corp------------------------------ 3000 Hempstead Turnpike, Hempstead, N.Y. Eastern Camera Exchange Hicksville Corp------------------------------ 5 W. Marie St., Hicksville, N.Y. Ankay Camera Corp------------------ 4046 Main St., Flushing, N.Y. Lucan Camera Corp------------------- 1980 Northern Blvd., Manhasset, N.Y. Eastern Camera Exchange Washington Corp------------------------------ 68 W. Columbia St., Hempstead, N.Y. Shop Rite Foods, Inc. and United Packinghouse , Food and Allied Workers, AFL-CIO. Case No. 16-CA-1681. March 29, 1963 DECISION AND ORDER On December 20, 1962, Trial Examiner Abraham H. Mailer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report. 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 Rodgers, Fanning, and Brown]. 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 Intermedi- ate Report and the entire record in the case,' including the exceptions,2 1 As the record and exceptions adequately present the issues and the positions of the parties, the Respondent 's request for oral argument is denied. I The Respondent's exceptions to the Intermediate Report are in large part directed to credibility resolutions of the Trial Examiner . We will not overrule the Trial Examiner's resolutions as to credibility unless a clear preponderance of all relevant evidence con- vinces us that they are incorrect. Such a conclusion is not warranted here. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). 141 NLRB No. 88.