District 65, Wholesale Union

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD District 65, Wholesale, Retail , Office & Processing Union and Melville Shoe Corporation. Case 2-CB-4766 January 6, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On August 10, 1970, Trial Examiner Sidney Sher- man issued his Decision in the above-entitled pro- ceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recomme ding that it cease and desist therefrom and take certin affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that Respondent had not engaged in certain other unfair labor practices.' Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, District 65, Wholesale, Retail, Office & Processing Union, its officers, agents, and repre- sentatives, shall take the action set forth in the Trial Examiner's Recommended Order.2 1 In the absence of exceptions to the Trial Examiner's failure to find these unfair labor practices , we adopt pro forma his conclusions 8 In footnote 15 of the Trial Examiner's Decision, substitute "20" for "10" days TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The charge herein was served on Respondent on September 30, 1969,1 the complaint issued on April 16, 1970, and the case was heard on May 25 and June 10, 1970. The issues litigated related to alleged violations of Section 8(b)(1)(A) and 8(b)(3) of the Act. A brief was filed by the Charging Party.2 Upon the entire record,3 including observation of the witnesses' demeanor, the following findings and recom- mendations are adopted: 1. JURISDICTION Melville Shoe Corporation, hereinafter called Melville, is a corporation under the laws of the State of New York, with a principal office in New York City, and is engaged at various locations throughout the United States in the manufacture and sale of shoes. Through its Miles Shoes Division, hereinafter referred to as Miles, Melville has maintained a warehouse and office in New York City, which services Melville's various retail outlets. The employees assigned to such division are the only ones here involved.4 Melville annually ships products valued in excess of $50,000 in interstate commerce. Melville is engaged in commerce within the meaning of the Act. District 65, Wholesale, Retail, Office & Processing Union, herein called Respondent, is a labor organization under the Act. Since it is alleged to have engaged in unfair labor practices affecting Melville and its employees, it will effectuate the policies of the Act to assert jurisdiction herein. II. THE UNFAIR LABOR PRACTICES The pleadings raise the following issues: 1. Whether on or about September 30, Respondent violated Section 8(b)(3) by calling a strike of Miles' 5 employees in support of its demand for contract modifica- tion, and without complying with the provisions of Section 8(d) of the Act? 2. Whether Respondent violated Section 8(b)(3) and 8(b)(I)(A) by soliciting two employees of Miles not to work for it because their rate of pay was less than that demanded by Respondent? A. Sequence of Events Respondent has contracts with about 2,000 employers in the New York City area. It has for many years had contractual relations with Miles, the most recent contract having been executed in February 1968 for a term of 3 years. The weekly pay rates under that contract ranged from $75 to $115. However, early in 1969, Respondent began to publicize a demand for a minimum weekly rate of $100 for all the employees represented by it, including those i All dates are in 1969 , unless otherwise indicated 2 The Charging Party's name has here been amended to conform to the facts developed at the hearing as to its legal identity 3 For corrections of the transcript and a ruling on evidence , see the order of July 21, 1970 4 For reasons of convenience, and to conform to the nomenclature used by the witnesses at the hearing , the employer of such employees will for the most part be referred to hereinafter as Miles rather than Melville. 8 See In 4, above 187 NLRB No. 107 DISTRICT 65, WHOLESALE UNION working for Miles In April, Respondent wrote Miles to request that it institute at once a minimum weekly rate of $100 In a letter of August 19, Respondent's president, Livingston, repeated this request, suggesting that before October 1 the parties meet and negotiate appropriate modifications of their contract to incorporate a $100 weekly minimum Livingston also served notice that, on and after October 1, Respondent would no longer dispatch any worker to a job paying less than $100 per week, and would "take all measures within the law to guarantee that no worker in a '65' shop is obligated to accept a wage" below $100 a week On September 24, Maddux, a shop steward at Miles' establishment, informed its personnel director, Braun, that all Respondent's members would attend a rally from 11 30 a in to 1 30 p in on September 30, to be held at Respondent's headquarters, and that the rally would pertain to the matter of amending the contract with Miles and other employers to raise the minimum weekly wage to $100 The normal lunch period for Miles' employees was from 11 45 to 12 45 On September 29, Braun handed Maddux a copy of a letter, the original of which was delivered that day to Respondent's headquar- ters, in which he advised it that the proposed 2-hour absence of the employees from work would be "unauthorized" and would be treated as a violation of the no-strike clause in the parties' contract Nevertheless, at the appointed time the next day all of the approximately 150 members of Respondent among Miles' employees simulta- neously left the premises, and most did not return until some time between 1 45 and 2 30 p in During that period, at Respondent's headquarters, its president, Livingston, flanked by Mayor Lindsey and other notables, addressed a large turnout of its members, making a vigorous plea for a $100 minimum weekly wage for its constituents, and urging resort, if necessary, to work stoppages to achieve that goal This speech was rebroadcast on television the same evening, when it was heard by Braun Under its contract with Respondent, Miles was required to hire new employees through Respondent, and, only if it was unable to furnish satisfactory applicants within 48 hours, was Miles free to hire in the "open market " The contract required further that any employee hired in the open market promptly be registered with Respondent On October 7, Braun interviewed a job applicant, Scott, and offered to hire her at the applicable contract rate of $90 a week When she accepted, Braun referred her to Respon- dent for registration pursuant to the contract At Respon- dent's office, its dispatcher, Hunter, told Scott that Miles could not hire her for less than $100 per week and called Braun to tell him that Scott could not be "dispatched" below that rate When Braun asked that Scott be sent back to his office, Hunter did not comply, telling Scott, instead, that Respondent and Miles could not agree on her rate and that Respondent would attempt to find her other work After a few unproductive telephone calls by Hunter to other employers, he asked Scott what she wished to do When she inquired whether she could work for Miles, Hunter answered, "No, not until we come to an agree- ment " Scott then went home, where, later that day, she was 6 Respondent denies that Maddux who gave Miles advance notice of the September 30 demonstration was Respondents agent citing the fact 717 reached by Braun, who summoned her to his office Although, after reporting what had happened at Respon- dent's headquarters, she indicated that she was still willing to work for Miles , Braun expressed regret that he could not retain her because of fear of a work stoppage She was paid by Miles for the 7th and has not since worked for it On October 9, Bosch applied to Miles and was hired at $90 per week She was referred to Respondent for registration When, on October 14, she returned with a "dispatch slip" prepared by Respondent, which listed her salary as $ 100 per week, Miles ignored this notation and put her to work at $90 per week Later the same day, when Shop Steward Maddux learned her actual rate, he demanded that Braun raise her pay or discharge her, and, when Braun refused, Maddux stated that he would have to tell Bosch to leave the shop Fearing this might lead to a disturbance among the employees , Braun capitulated and discharged Bosch Hunter admitted that he had been instructed by his superiors that after October 1, he was not to dispatch anyone to a job that paid less than $ 100 per week and that he was not to register any employee who had been hired below that rate, and that he complied with this instruction with respect to all employers under contract with Respon- dent, including Miles He added that this instruction was rescinded about December 1 B Discussion I Respondent's status It was agreed at the hearing, and it is found, that Respondent has been at all times the statutory bargaining agent of Miles' employees in an appropriate unit consisting of all warehouse and office clerical employees of Miles at 459 West 59th Street, New York City, excluding the comptroller, assistant comptrollers, merchandise manager, his male assistant, private secretaries, confidential employ- ees, and all supervisors as defined in the Act 2 The 8(d) violation The General Counsel contends that Respondent violated Section 8(b)(3) of the Act by causing the work stoppage of September 30, and "inducing and encouraging" Scott and Bosch not to work for Miles at less than $90 per week, without complying with the provisions of Section 8(d) of the Act The effect of those provisions is, inter a/a, that a union violates 8(b)(3), by calling a strike to compel modification of a contract, sinless it has first observed a 60- day "cooling-off" period, during which the other party has been afforded an opportunity to bargain about the proposed modification and the various Federal and state mediation services have had an opportunity to intervene It was stipulated that none of those conditions was met here It is clear also that Miles' union employees left work on September 30 without permission, 15 minutes before their regular lunch period, and did not return until about an hour after the expiration thereof, and under the circumstances there can be no doubt that they acted pursuant to instructions from Respondent 6 It is accordingly found that on September 30, Respondent caused a work stoppage by that he was not appointed by it but was elected by Miles employees However it is clear from the instant record particularly G C Exh 6 and (Continued) 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 150 of Miles' employees. While it was of relatively brief duration, Section 8(d) does not distinguish between short strikes and long ones. Although one might under other circumstances think that a stoppage of little more than an hour approached de minimis, here the impact on Miles was heightened by the threats of further stoppages contained in Livingston's well-publicized address at the "rally." It is, accordingly, found that, by causing such walkout, Respondent violated Section 8(b)(3) of the Act. In the case of Scott, it seems proper to find that, when she reported to Hunter for registration, she was already an employee of Miles, having accepted Braun's job offer, and being considered by him to be entitled to pay for that day. There is nothing in the contract which conditions her employment on approval by Respondent. On this score, the contract states only that the requirement that employees hired in the open market register with Respondent is "for the purpose of assisting the Union in administering this contract and in observing and maintaining the standards desired by the Employers in filling vacancies." While the latter purpose suggests that Respondent was reserving the right to veto the hiring of "sub-standard" employees, there was no evidence that Respondent had ever in the past refused to register an employee hired directly by Miles or any other employer, except where such hinng was in violation of the "48-hour" clause cited above. There was no evidence nor contention that the hiring of Scott (or Bosch) was in violation of that clause 7 or any other contract provision. It follows that, being already an employee of Miles, Hunter's inducement of Scott was an inducement of an employee to cease work, and, since, as the record shows, she was not told to resign her job but merely to abstain from Charging Party's Exh. 6, that such elections are conducted pursuant to authority granted by Respondent's constitution and that it has delegated to the shop stewards certain of its functions , including the enforcement of union rules , regulations and "decisions " That the summoning of the employees to the September 30 rally was such a decision is clear from the fact that the rally was announced at a union meeting, was attended by all Respondent's members, was addressed by Respondent's president, and was designed to promote its campaign to obtain a $100 minimum weekly wage See Capital Paper Co, 117 NLRB 635 (fn 1), 644, enfd 267 F 2d 879 (C A. 7), cert denied 361 U S 914, Mach Lumber Co, 126 NLRB 297, 304, enfd. 281 F 2d 952 (C.A. 3) r It is proper to infer therefore that Scott and Bosch were hired by Miles after giving Respondent due opportunity to refer applicants and that none was referred because none was available or, as is more likely, because of Respondent's announced policy of refusing to make any referrals to positions paying less than $ 100 per week, which Hunter claimed to have rigidly enforced 8 As found below, the Bosch incident did not involve a refusal to work but a discharge 9 In this respect, Scott's case is distinguishable from that of a single employee , who takes some action because of a grievance personal to him Such action is not deemed to be concerted, but only because it is solely for the benefit of the employee and not, as here, pursuant to a program designed to benefit all other employees similarly situated is While it would seem at least arguable that such discharge violated Section 8(b)(2), the General Counsel did not see fit to amend the complaint to allege such a violation nor to take any affirmative position on the issue, even after the Trial Examiner stated that, absent such affirmative position by the General Counsel, no finding would be made as to any such violation ii Broward Builders' Exchange, Inc, 122 NLRB 1008-09; Cream Top Creamery, Inc, 147 NLRB 264, 265 12 Any such finding as to Bosch would be cumulative, in any case, and would not affect the remedy work until agreement could be reached between Respon- dent and Miles about her pay rate, and since she did fail to return to work for several hours, until summoned by Braun, there are present here all the elements of a strike. While there is no evidence that any other employees of Miles absented themselves from work at the same time as Scott8 and under comparable circumstances, it suffices that Scott acted at the instance of Respondent, and in furtherance of the policy adopted by it as the representative of Miles' employees to secure modification of the contractual pay scale .9 It is therefore found that, in causing Scott to refrain from work until Miles met Respondent's pay demand, Respondent additionally violated Section 8(b)(3). However, in the case of Bosch, it is clear from Braun's own testimony that Bosch did not leave work but was discharged by him, albeit in response to pressure exerted by Maddux.iO It is nevertheless contended that a violation of 8(b)(3) may be found in her case on the basis of evidence that she was urged by Respondent not to work for less than $100 per week. On that score, Maddux testified that in the morning of the 14th, he succeeded in convincing Bosch that she should not work for less than $100 per week. While Bosch did not act on this conviction but remained at work until discharged by Braun, it is contended that Maddux's foregoing solicitation of Bosch, in itself, violated Section 8(b)(3), citing Board cases holding that the mere induce- ment of employees to strike, apart from the strike, itself, may violate Section 8(d).ii However, here, unlike the case of Scott, it is not clear whether Maddux was urging Bosch to strike or quit. Accordingly, I do not deem the evidence to preponderate in favor of a finding of an 8(b)(3) violation with respect to Bosch.12 in its brief, the Charging Party contends that Respondent should, in addition, be found to have violated Section 8(b)(3) by unilaterally modifying the terms of its contract with Miles, contrary to the prohibitions in Section 8(d) against any modification of a contract by a party thereto without complying with various conditions, which admittedly were not met here The complaint, however, does not allege any such modification of the contract by Respondent, but only that its various activities discussed above were "in furtherance of its desire to modify" the contract, and, at the hearing the General Counsel did not profess to rely on the theory advanced by the Charging Party. Moreover, this contention raises the rather novel question whether a union , as distinguished from an employer, may exercise sufficient control over the terms of employment that it can effectively change them Here, it is contended that the effect of Respondent's refusal to register or dispatch new employees for below minimum rate jobs was to establish unilaterally a $100 weekly minimum, at least for new hires However, the question of the total impact of Respondent's registration policy on Miles' hiring rates was not adequately litigated . Thus, there was no evidence that Scott and Bosch were the only new hires at less than $100 per week during the period under consideration , so that, so far as appears from the record, theirs may have been isolated cases, and Miles may have continued to hire others below that rate despite Respondent's refusal to register them at that rate In any event, what little Board authority there is in point does not seem to support the Charging Party's position The only Board authority cited is Associated Musicians, Local 802, 164 NLRB 23, 27, affd 395 F.2d 287 (C A. 2), where it was found that there was no violation of Sec 8(b)(3) by a union in refusing to furnish musicians at pay rates below those demanded by it in bargaining for a new contract. In rejecting the contention that, by refusing to supply men at rates below its new wage scale, the union unilaterally changed such rates , the Board said' the Respondent's revised wage scales . realistically could not become terms and conditions of employment in Cutler 's business until accepted or adopted by him. Nor, by the same token , did they automatically become working conditions simply because the Respondent offered its members ' services on those terms DISTRICT 65, WHOLESALE UNION 719 3. The 8(b)(1)(A) Issue III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The General Counsel contends that, by refusing to register Scott and Bosch for jobs paying $90 per week and by inducing and encouraging them not to work at that rate, Respondent violated Section 8(b)(l)(A) of the Act. It is clear that, at least in the case of Scott, the totality of Respondent's conduct exceeded permissible limits. Hunter not only refused to register her, although the contract on its face gave him no discretion in the matter, but he also told her that she "could not" work for Miles, thereby implying that there was some insuperable legal obstacle to such employment or that she would be prevented from working for Miles by force or other improper means. Thus, there was implicit in Hunter's remarks either a deliberate misrepresentation as to Scott's section I, above, have a substantial relation to commerce among the legal rights or a coercive threat. In either case, such remarks, coupled with the refusal to register Scott, must be deemed to constitute unlawful restraint of Scott from exercising her right to refuse to cooperate in Respondent's campaign to secure a $100 minimum wage. By such restraint of Scott, Respon- dent violated Section 8(b)(1)(A) of the Act. With regard to Bosch, the complaint's allegation of a violation of 8(b)(1)(A) is based on the fact (a) that, although she had been hired at $90 per week, Respondent insisted on listing her salary on her registration slip as $100 per week, and (b) that Shop Steward Maddux told her she could not work at less than $100 per week and otherwise induced her not to do so. As to (a), all that was involved here was, in effect, a demand that her rate of pay be increased, which demand, in itself, could not have exerted improper pressure on Bosch not to work for Miles or otherwise to cooperate with Respondent's minimum wage campaign. As for (b), there was no evidence that Maddux made any such statement to Bosch. On this point the record contains only Maddux' testimony that, in speaking to her on the 14th, he merely attempted to convince her of the inequity of the existing wage scale, and there is no evidence that, in so doing, he made any remarks that exceeded the limits of free speech. Accordingly, no 8(b)(1)(A) violation is found as to Bosch.13 And, as the Court of Appeals pointed out, in affirming this reasoning After all , Cutler held the purse strings , and, insofar as he was concerned, the bylaws in question were no more than demands by the union The Charging Party's main reliance appears to be on the court decision in Associated Home Builders v N L R B, 352 F 2d 745, 751-755 (C A 9), where it was held that a union violated Sec 8 (b)(3) by forbidding its members to exceed production ceilings fixed by it (The Board had there refrained from passing on that issue.) However, in dealing with an analogous question in Scofield v N LR B, 394 U S 423, 433, 436, the Court found no breach of contract or impairment of the collective- bargaining process in a union's imposing a production ceiling during the term of a contract In any event, it is clear that a stronger case may be made for finding unilateral imposition of terms of employment by a union with respect to matters within the physical control of its members , such as their production effort or their reporting and departure times , than with respect to such a matter as the price to be paid for their services (This would seem to be a sounder basis for distinguishing the court's holding in the Associated Home Builders case, supra, than the dictum of the Trial The activities of Respondent set forth in section II, above, occurring in connection with the operations of Melville described in section 1, above, have a substantial relation to commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce. IV. THE REMEDY It having been found that Respondent violated Section 8(b)(1)(A) and 8(b)(3), it will be recommended that it be required to cease and desist therefrom and take appropri- ate, affirmative action. CONCLUSIONS OF LAW 1. The Charging Party is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization under the Act. 3. The following unit has been at all material times, and still is, appropriate for purposes of collective bargaining within the meaning of Section 9(a) of the Act: All warehouse and office clerical employees of Mel- ville's Miles shoe division at 459 West 59th St., New York City, excluding the comptroller, assistant comp- troller, merchandise manager, his male assistant, private secretaries, confidential employees, and all supervisors as defined in the Act. 4. At all times here material, Respondent has been, and still is, the statutory representative of the employees in the aforedescnbed unit. 5. By coercing and restraining employees in the exercise of their right to refrain from engaging in concerted activity and from otherwise assisting it, Respondent has violated Section 8(b)(1)(A) of the Act. 6. By causing employees to engage in a concerted refusal to work in support of a demand for modification of the terms of an existing collective-bargaining contract, without complying with the requirements of Section 8(d) of the Act, Respondent has violated Section 8(b)(3) of the Act. Examiner in the Associated Musicians case, supra, that the former case was distinguishable because the union's setting of production ceilings occurred during the term of a contract, in violation of Sec 8(d) It is not clear how the fact that there is or is not a current contract can have any relevance to the crucial factor of the extent of a union's effective control over working conditions ) 13 In its brief, the Charging Party contends that an 8(b)(1)(A) violation should be found as to Bosch on the basis of the undisputed evidence that Respondent caused her to be discharged because of her failure to cooperate in its minimum wage campaign However, this particular basis for an 8(b)(1)(A) finding was not alleged in the complaint , and, for reasons already stated, the General Counsel must be deemed to have expressly waived any reliance on Respondent's role with regard to the discharge of Bosch , whether in connection with a violation of Sec 8(b)(2) or a derivative violation of Sec. 8(b)(1)(A) (The Charging Party makes a like contention as to Scott, apparently relying on Braun's refusal to take Scott back after she indicated her willingness to return This contention is subject to the same procedural infirmity as that relating to Bosch.) 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Respondent, District 65, Wholesale, Retail, Office & Processing Union, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining and coercing employees of Melville Shoe Corporation in the exercise of their right to refrain from engaging in concerted activities and from otherwise assisting said Respondent. (b) Causing employees of Melville Shoe Corporation to engage in a concerted stoppage or interruption of work in support of a demand for modification of the terms of an existing contract, without complying with the requirements of Section 8(d) of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Post at Respondent's business office and meeting places copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 2, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 2, in writing, within 20 days from the date of receipt of this Order, what steps Respondent has taken to comply herewith.is 14 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " ,s In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce employees of Melville Shoe Corporation in the exercise of their right not to engage in concerted activities and not to assist us in our program to raise wage rates. WE WILL NOT cause employees of Melville to strike or engage in other interruptions of work in support of a demand for changing existing wage rates or other terms of employment fixed by contract, without complying with the requirements of Section 8(d) of the Act. DISTRICT 65, WHOLESALE, RETAIL, OFFICE AND PROCESSING UNION (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0340.