Distributive Workers of America

DISTRICT 65, DISTRIBUTIVE WORKERS District 65, Distributive Workers of America and S.N.S. Distributing Service and Newburgh Dyeing Company and Pinto Service Corporation.' Cases 22-CC-549, 22-CC-561 (formerly 2-CC-1304), and 22-CC-562 (formerly 29-CC-396) June 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On February 28, 1974, Administrative Law Judge Thomas A. Ricci. issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel, S.N.S. Distributing Service, a Charging Party, and Concord Fabrics Inc., a Party in Interest, filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order, as herein modified.4 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 Administrative Law Judge, as modified below, and hereby orders that Respondent, District 65, Distributive Workers of America, New York, New York, its officers, agents, and representa- tives, shall take the action set forth in the said recommended Order as so modified: 1. Delete paragraph 1 and substitute the follow- ing: "1. Cease and desist from inducing or encourag- ing any individual employed by S.N.S. Distributing Service, Newburgh Dyeing Company, Pinto Service Corporation, or any other person engaged in com- merce or in an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or threatening, coercing, or restraining the said persons, or any other persons engaged in commerce or in an industry affecting commerce, where in either case an object thereof is forcing or requiring any of 469 the above or any other persons to cease doing business with Concord Fabrics Inc." 2. Substitute the attached notice for the notice of the Administrative Law Judge. 1 The Administrative Law Judge granted the General Counsel's motion, made at the hearing, to consolidate Cases 22-CC-561 and 562 with 22-CC-549, and to amend the complaint to allege that Respondent engaged in unlawful secondary activities with respect to Newburgh Dyeing Company and Pinto Service Corporation. The Administrative Law Judge, however, apparently by inadvertence, did not rule on the General Counsel's additional motion to amend the caption to conform to the amended complaint. We hereby grant this motion and correct the caption. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 3 In adopting the Administrative Law Judge's conclusion that S.N.S. Distributing Service was not an economic ally of Concord Fabrics Inc., the primary employer herein, we agree that Brewery Workers Union No. 8, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO (Bert P. Williams, Inc.), 148 NLRB 728, is distinguishable from the instant case . In Williams the Board concluded that an ally relationship existed, finding, inter alia, that the primary employer's subcontracting of its work was caused by the imminent failure of negotiations with the union concerning future terms and conditions of employment and represented an attempt to continue its operations notwithstanding a strike by its employees. The Board further found in that case that the secondary employer was aware that its contract with the primary employer was contingent on the outcome of the latter's negotiations with the union and that, by entering into a final contract with the primary employer only after the commencement of the strike, it knowingly performed work which but for the strike would have been performed by the employees of the primary employer. In contrast, the record in the instant case discloses that Concord's subcontracting of its work and closing of its plant were the result of legitimate business considerations in no way related to a concurrent strike by its employees. Thus, Respondent did not picket Concord's premises until almost 2 months after Concord had begun subcontracting its work to S.N.S. Distributing Service and some 3 weeks after Concord had completely abandoned its plant. In these circumstances, it cannot be said that Concord's actions were devised to avoid the consequences of a strike by its employees or that S.N.S. Distributing Service did work which otherwise would have been performed by Concord's employees. 4 In the circumstances of this case, where Respondent's unlawful conduct was directed only against those employers doing business with Concord Fabrics Inc., we do not believe the Administrative Law Judge's recommended Order prohibiting all secondary activity, regardless of the primary employer, is warranted. We shall, however, in accordance with our usual practice, prohibit such conduct against any other secondary employers where an object is to force or coerce them to cease doing business with Concord Fabrics Inc. See, e.g., Journeymen Plasterers' Protective and Benevolent Society of Chicago, Local No. 5, AFL-CIO (Royal-Rin Builders, Inc.; Imperal Carpentry, Inc., et al.), 158 NLRB 1608, 1619. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage any individ- ual employed by S.N.S. Distributing Service, Newburgh Dyeing Company, Pinto Service Cor- poration, or any other person engaged in com- merce or in an industry affecting commerce, to engage in a strike or a refusal in the course of his 211 NLRB No. 62 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services ; or threaten, coerce, or restrain the said persons, or any other persons engaged in commerce or in an industry affecting commerce, where in either case an object thereof is forcing or requiring any of the above or any other persons to cease doing business with Concord Fabrics Inc. DISTRICT 65, DISTRIBUTIVE WORKERS OF AMERICA (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 compli- ance with its provisions may be directed to the Board's Office, Federal Building, 16th Floor, 970 Broad Street, Newark, New Jersey 07102 , Telephone 201-645-2100. DECISION THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held on three hearing dates, November 26 and 27, 1973, and January 21, 1974, on complaint of the General Counsel against District 65, Distributive Workers of America, here called the Respon- dent. The initial charge was filed on September 7, 1973, by S.N.S. Distributing Service, and complaint issued on October 16, 1973. The issue presented is whether the Respondent violated section 8(bx4)(i)(B), and 8(b)(4)(ii) (B), of the statute.- Briefs were filed by the General Counsel and the original Charging Party. Upon the entire record and from my observation of the witnesses I make the following: Company itself does business in a number of locations, but the only one with which this case is concerned is an operation it ran for some years in North Bergen, New Jersey. Here, with machinery and about 70 employees, it received and finished cloth, cut it into appropriate quantities, folded it and placed it on boards, stacked it all, and shipped it to customers . Concord does more than $50,000 of business annually from out-of-state sources. S.N.S. Distributing Service has for some years been in business at Carlstadt , New Jersey. Its employees, again with the same kind of machinery used by Concord at North Bergen, do precisely the same type of work, i.e., receive finished fabrics, cut it and fold it and roll it on boards, stock it, and ship it to purchasers . S.N.S. is, and has always been, only a service company doing work for others; it does not own any of the cloth, in any form or at any time . It performs these services for about 25 companies like Concord on a strictly contract basis . As of the time of the events giving rise to this case, it had never done business with Concord. S.N.S. does more than $50,000 of business from out-of-state sources. Newburgh Dyeing Company has a plant in the City of Newburgh, New York State, where it dyes and finishes gray and raw cloth, with about 80 employees. It does not own any of the fabrics; it receives cloth belonging to the companies which utilize its services, dyes and finishes it, stores it, and then ships it as directed to the purchaser customers of the owners of the cloth . Newburgh itself has about 200 customers who do business with it ; among these for the past 2 years has been Concord. Newburgh receives over $50,000 annually from out-of-state customers in payment for its services. Pinto Service Corporation is also a service company; it folds, refolds, and bundles second quality or irregular pieces of fabric, stores it in its premises on behalf of the companies who do business with it, and then ships it to the purchaser customers of the owners of the cloth . Like S.N.S. and Newburgh, Pinto also does not own any of the material it works on . Eight years in this business, it operates with 30 or 35 employees , has about 15 customers, and has done work for Concord all this time . Pinto receives over $50,000 annually for work performed on behalf of out-of-state customers. I find that Concord Fabrics, Inc., S.N.S. Distributing Service, Newburgh Dyeing Company, and Pinto Service Corporation are engaged in commerce within the meaning of the Act. FINDINGS OF FACT 1. COMMERCE ; THE BUSINESS INVOLVED This is a secondary picketing case, in which the Respondent Union is charged with putting unlawful pressure upon neutral or secondary employers, as a roundabout method for winning its labor dispute with the primary employer. The primary company is Concord Fabrics, Inc., which both produces and buys raw and gray cloth, dyes and finishes it (called converting), cuts and puts it on rolls, and sells it to purchasing customers of all kinds. In its total operations, Concord has some portions of these various functional steps of its business performed by other companies on a regular contract payment basis. The II. THE LABOR ORGANIZATION INVOLVED I find that District 65, Distributive Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Pertinent Facts The Respondent represented the employees in Concord's North Bergen place of business for some years ; its last contract expired on June 30, 1973. In the spring of the year, Concord advised the Respondent it intended to discontin- DISTRICT 65, DISTRIBUTIVE WORKERS 471 ue entirely that operation and in its place have all that work performed by some other company. Its stated reason was economic necessity. Representatives of Concord and of District 65 discussed this matter a number of times before June 30; no agreement of any kind was reached, and the contract expired by its terms at the end of June. A few days later Concord decided with finality it would close the location; it advised District 65 of this decision by letter dated July 6. On July 9, it dismissed 55 employees and on August 17 the remainder, about 20 persons. Four or five office clerical employees were transferred to Concord's New York City main office, where they have since continued working. By August 17 also, part of the machinery at North Bergen was sold; the building has stood unoccupied ever since, Concord's lease for the property having a number of years yet to run. On about July 10, David Caplan of Concord spoke to Samuel Sales of S.N.S. and said he wished to send some of his work to him right away. Sales agreed to do it, and the material began to arrive at the S.N.S. plant in a few days. The two men, Caplan and Sales, had spoken some months earlier while Caplan was canvassing the market for prices, and the understanding in July was Concord would pay what price Sales had quoted earlier. S.N.S. has since that time continued to do precisely the kind of work previously performed by some of Concord's former employees at North Bergen-receiving all kinds of fabric, rolling, cutting and folding it, storing it, and sending it, on instruction from Concord, to the purchaser consumers, retail and wholesale, of Concord. Agents of the Union talked to Concord officers after the closing of the North Bergen operation, attempting to persuade them to reopen it, to rehire some if not all of the discharged employee members of District 65. The employ- ees of S.N.S. are represented by another union, Textile Workers of America. Unable to persuade Concord to revert to its old method of doing business and to hire its members again, District 65 decided to resort to indirect pressure to achieve its objectives, i.e., to prevail in its dispute with Concord, the primary employer. As Vice President Al Dicker, of District 65, said at the hearing: ". . . we were going to be hitting Concord all over, that would be at dye plants, finishing plants, other locations where they had any goods and in those locations the Union was going to try to stop all goods from coming out." Perhaps a week after S.N.S. had begun doing Concord's work, Dicker told Sales that District 65 would picket his place of business unless S.N.S. ceased doing business with Concord. Sales refused to do so. On September 7, the Respondent established a picket line in front of the S.N.S. plant; it remained there until late November, and was removed in compliance with a Federal district court injunction restraining picketing. A very substantial number of scheduled deliveries to S.N.S. by truck were not made during the picketing because the drivers of the trucks, employed by other companies, refused to cross the picket line. On September 7, District 65 also, for the first time, The activities of the Respondent vis-a-vis Newburgh and Pinto were added to the complaint as proposed amendments during the first stage of this hearing, on November 27, 1973, and the hearing was then adjourned to established a picket line at the now 1 month vacant Concord building in North Bergen. In late August, Dicker also went to the premises of Pinto, in Brooklyn, and told one of the partners, Arthur Pinto, District 65 would picket his shop if Pinto did not stop doing business with Concord. Pinto refused, saying such a concession meant discharging about 75 percent of his total complement of employees. Dicker then proposed a way out for Pinto: If that company would agree not to ship out from its premises any of Concord's goods-i.e., receive it, process it, completely prepare it, store it, but never send any of it to Concord's customers as it had always done-District 65 would not picket the place. After thinking about the threat of the picket line, Pinto yielded to the half measure, indirect restraint upon its business. But when Dicker proposed having a few of his men wander about inside Pinto's shop to be sure no Concord fabrics ever left the place, Pinto balked again. In the end it was agreed, still, of course, as the alternative to the pure and simple picket line threat, that District 65's representatives would stand outside the building at the loading docks and check out each and every carton of fabrics leaving the premises to be certain nothing ever went out that belonged to Concord. The agents of District 65, varying in number from two to six each day, have been picketing Pinto's premises ever since, and were still there on the last day of the hearing in this case, on January 21, 1974. And all of Concord's fabrics, on which Pinto's employees have worked throughout the entire period, were simply standing idle in that plant, with District 65 effectively enforcing its will upon the Pinto operation and its employees. On November 8, 1973, Patton, another District 65 vice president, went to the offices of the Newburgh Dyeing Company, in Newburgh, New York, and invited that company to cooperate with the Respondent by discontinu- ing the business it was doing with Concord. When James Paladino, of Newburgh, refused, Patton said he would picket the plant. On November 12, 1973, District 65 established pickets at Newburgh' s premises; they were still there on January 21, 1974. Paladino's best recollection of the legend on the picket signs was : "Concord Fabrics on strike. Newburgh Dye is doing work for Concord Fabrics. Please do not handle piece goods. District 65." The pickets effectively interfered with normal deliveries to that company, even as late as 1 week before January 21. B. Conclusions,- Purported Defenses I find, as alleged in the complaint, that by threat to .picket their premises, as voiced by Dicker to S.N.S. and Pinto, and by Patton to Newburgh, and by conduct of District 65 in picketing the premises of S.N.S. and Newburgh and in placing "observers" at the entrances of the Pinto plant, the Respondent violated Section 8(b)(4)(ii)(B) of the Act. I also find that by placing the pickets as set out above, and the "observers" at the Pinto premises, the Respondent violated Section 8(b)(4)(i)(B) of the Act.' No clearer picture of secondary, as distinguished from afford the Respondent adequate time to respond to the added unfair labor practice allegations. Thereafter Newburgh filed its own charge against the Respondent-Case 2-CC-1304 in the New York Regional Office and Pinto (Continued) 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD primary, pressure upon employees and employers could be proved than is shown on this record. The employees of all the three companies-S.N.S., Newburgh, and Pinto-are represented by unions other than District 65. However the Respondent's remaining disagreement with Concord in August and thereafter be named-even assuming there can be a "labor dispute" with an employer no longer engaged in the business whose employees were once represented by a labor organization-there simply existed no labor dispute between District 65 and the other companies. All that the Respondent wanted of them, as evidenced not only by the clear facts but indeed by Dicker's own words to them at the time of the events, was that they literally "cease doing business" with its primary opponent--Concord.2 New- burgh and Pinto were doing no more in 1973 in their business relationships with Concord than they had been doing for years. To S.N.S. Concord became just one more customer among the many it always had. These were the true innocent bystanders whom the statute was expressly intended to insulate from the labor disputes of others. The Respondent's determination to force Concord to do business in accordance with the economic concepts deemed proper by the Union, regardless of the method -lawful or unlawful-it cared to use, is beyond question, and its widespread and total disregard for the statutory proscriptions must be stopped. A number of arguments are made in defense, some based upon conclusionary assertions bearing virtually no rela- tionship to the facts. The major one seems to be that S.N.S., if not the others, was not a neutral, or secondary employer, but an ally of Concord in its dispute with District 65. The support for this "ally" theory is said to be the following facts, or asserted facts: (1) S.N.S. knew of Concord's intention to close the North Bergen plant before June 30, the expiration date of the Respondent's contract; (2) Concord once suggested S.N.S. might leave its own premises and take over the Concord lease at North Bergen, to do both its [S.N.S.'] own business plus what it might do for Concord under contract; (3) Concord and S.N.S. discussed the idea of Concord later doing business with S.N.S. while District 65 was talking the problem over with Concord during April and May; (4) District 65 was on strike against Concord while S.N.S. was doing "struck" work. These assertions, plus others only hinted at obliquely by Respondent's counsel and Dicker at the hearing, bespeak a "clean hands" theory of defense, and it is that somehow Concord defrauded the Union in closing the shop, was dishonest in claiming economic need,3 did not deal with it in good faith-honestly make a fair effort at preserving the jobs of the Union's members. At one point the Respondent disclaimed such a theory-that miscon- did the same in the Brooklyn Regional Office-Case 29-CC-396 These charges apparently were filed as prerequisites for further application by the General Counsel for injunctions under Sec . 10(1) of the statute in the United States District Court for the Southern District of New York. The two cases were then transferred by the General Counsel to the Board's Newark Regional Office and joined with Case 22-CC-549 in the proper interests of administrative regularity. 2 The pertinent language from the statute reads as follows: It shall be an unfair labor practice for a labor organization or its agents ... (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of duct, whether criminal misbehavior or statutory unfair labor practices, by the primary employer excuses secondary action-threat or inducement-by the Union against neutral and secondary companies. But I view the totality of the defense as no more than just that; in fact the Respondent filed Labor Board charges against Concord alleging it violated Section 8(a)(3) and (5) of the Act by refusing to bargain with it in good faith, and by dismissing its employees. The charge was dismissed. But the law is clear in any event. "To the extent that this defense amounts to a reliance on a `clean hands' doctrine, it is rejected; the fact that an employer may be violating the Act is no justification for proscribed conduct by a union, either in retaliation or in defense." United Mine Workers of America, 160 NLRB 913. "No matter how legally unfair the primary employer's conduct may be the union may not use the weapon, either in retaliation or defense, of a proscribed 8(b)(4XA) and (B) picket line." Superior Derrick Corp. v. N.LRB., 273 F.2d 891 (C.A. 5, 1960). And even where the primary employer is in fact engaging in conduct violative of Section 8(a)(3) and (1) of the Act, it does not excuse illegal conduct in violation of Section 8(b)(4) by a Respondent Union. "One unfair labor practice does not excuse another." Plumbers Union of Nassau County, Local 457, 131 NLRB 1243. The record does not clearly reflect the exact wording of the signs carried by the pickets at either S.N.S. or Newburgh. Sales, of S.N.S., recalled the picket legend as: "Concord on Strike. S.N.S. Doing Work Formerly Per- formed by Concord Employees. Locked Out." Dicker testified that the sign at S.N.S. read: "S.N.S. is an economic ally of Concord Fabrics, whose employees are on strike. Please do not patronize." It takes more than the words of the Respondent's vice president, whether voiced in defense at the hearing or written on his pickets' signs, to prove the fact of a strike setting or the validity of a legal argument. The ally theory of defense for secondary picketing started with Douds v. Metropolitan Federation of Architect (Ebasco), 75 F.Supp. 672 (D.C.N.Y., 1948), was clarified in the Second Circuit Court, N.L.R.B. v. Business Machines and Office Appliance Mechanics Conference Board (Royal Typewriter Co.), 228 F.2d 553 (C.A. 2, 1955), and was reaffirmed thereafter. The cardinal rule was once stated that to be deemed a neutral the secondary employer must at least appear to be "wholly unconcerned in the disagreement between an employer [the primary one] and his employees." The fact that District 65 was unable, despite a certain amount of talk, to persuade Concord to abandon its intention of closing down the North Bergen operation, certainly can be said in the end to have "concerned" S.N.S., for had the results of the talk been his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services ; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce , where in either case an object thereof is . . . (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person ... . 3 The Respondent's offer to prove that in a trade journal published during the events it was reported that Concord Fabric, Inc., was operating profitably was rejected. DISTRICT 65, DISTRIBUTIVE WORKERS otherwise it would not -have acquired another customer to work for. But this is not the "concern" of which the cases speak. All S.N,S: did was establish a business relationship with Concord as it already had with any other customers. "Since the object of every secondary boycott is really to cause a cessation of business between two independent companies, the Labor Act's prohibitions would be nullified if a union were allowed to claim that the very business relationship it seeks to end makes both parties `primary' employers," N.L.R.B. v. Milk Drivers Local 584, 341 F.2d 29 (C.A. 2, 1965), enfg. 146 NLRB 509. When canvassing the market to learn what it would cost his company to have the North Bergen work performed under contract by strangers, Caplan toyed with the idea S.N.S. might move right into the Concord leased building. This, of course, would have meant moving the S.N.S. employees into the Concord plant, using perhaps some of Concord's existing machinery, and merging with, or maybe just replacing, the old cadre of employees with a new group. Aware that this would create problems, Sales, of S.N.S., had the officers of District 65 discuss the idea with agents of TWA, the union representative of his own employees. Discussion led nowhere, and Sales washed his hands of the entire proposal; he was not going to embroil himself with the troubles of Concord. And when he did accept Caplan's offer to send him work, he simply mingled Concord's work with that of his other customers, continued to use the same employees he always had, and made no change whatever in his method of operations. As to the idea S.N.S. was working on "struck" goods and thereby made itself an ally of the primary employer, the assertion really merits no comment at all. There was no strike; all that happened is that the primary employer made an economic decision, carried it through, and discontinued a business operation where once District 65 had a representative status. To characterize some union members patrolling an abandoned building as strikers is to mouth words without meaning.4 Sometimes the collective- bargaining process works to the advantage of a union; sometimes it does pot. The resultant reality is not altered by the possibility the employer representatives may have asked the bargaining agent, during negotiations, not to strike. None of the principles of Ebasco, Royal Typewriter, et al.,!are apposite at all. And this is equally true of Brewery Workers Union, No. 8, 148 NLRB 728, the Board decision primarily cited by the Respondent. The one thing that surely cannot be said of the case at bar is that any of the secondary employers "knowingly does work which would otherwise be done by the striking employees of the primary employer." The Respondent moved for dismissal of the entire complaint on the ground that all these companies are part and parcel of the garment industry, excluded, it is argued, by statutory proviso from application of Section 8(b)(4)(B) of the Act. A considerable amount of cloth and other 4 Warehouse Union Local 6, 153 NLRB 1051, 1064 5 And shortly after Pinto filed its charge against the Respondent, an agent of Teamster Local 707 appeared at its dock while a truck belonging to Carolina Freight was unloading a shipment of fabrics being delivered to Pinto The Teamster agent told the driver to stop what he was doing, and explained to Pinto the reason was because his local was in sympathy with District 65. The truck was unloaded and the material driven away. I credit 473 fabrics produced, processed, and sold to consumers and other enterprises by these companies is eventually used in the garment industry, in the production of clothing. The proviso in question, however, is expressly limited to "persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel or clothing industry." And the legislative history clearly shows it was intended to relate only to the integrated process of production, that is, designing garments, cutting cloth to size and pattern, operating sewing machines, and the complex ownership of the clothing itself, enmeshing owner and contractor into a single ball of wax. Congres- sional provisos are to be read literally, and not to be expanded on a case-to-case basis. Were there any merit to this defense of the Respondent, it would follow any textile producing mill in the country, to say nothing of chemical producers of yarn synthetics and the cotton fields, themselves, could be picketed by a union seeking to enforce economic demands upon a clothing manufacturer in New York City. Dicker testified, at the hearing, that the Pinto Company, with no pressure at all from District 65, volunteered to cooperate by freezing all Concord's merchandise in its plant, and in that way hamstringing the business Pinto used to do work with Concord. Dicker did not in so many words say it was Pinto's idea and not his, that the business between the primary and the secondary company be cut off, but he spoke as though that fact were understood. I do not believe the hinted purport of his words, and I would not have believed him had he spoken clearly and unequivocally to that effect. Dicker even tried to make it appear it was Mr. Pinto who desired to have the "observers" of District 65 stand at his loading dock and inspect every carton leaving the place. I rather credit Arthur Pinto. He quoted Dicker as saying if the Pinto Company did not stop doing Concord's work, "he [Dicker] would put pickets around our place." It seems that in Pinto's mind, in Brooklyn, unlike the city of Newburgh, the pickets of District 65 might be very effective and as he did not want to release his employees, he agreed to the checkout system to be supervised by Dickey's agents. In November, when the Federal court injunction issued against District 65, Concord called Pinto to say it was now free to ship out the material, because District 65 could no longer legally restrain anyone. Quickly Pinto tried to do this, but as it was loading up a truck to ship out, Dicker called to say stop because as he read the injunction it gave relief to S.N.S. but not to Pinto. Again Pinto put the stuff back in the attic. It then filed its own charge against District 65. This was hardly the behavior of a secondary employer anxious to surrender its neutrality, or enthusiastic to join forces with a stranger union.5 That the Respondent threatened one neutral company Arthur Pinto's testimony that he then called Dicker to complain about interference with deliveries into the plant, and that Dicker ". . . said that the reason he's stopping the trucks from coming in, because we filed a petition for an injunction." The "petition for an injunction," of course, was reference to Pinto's charge to restrain the secondary pressure by the Respondent 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after another is so clear on this total record that of course it also appears from Dickey's testimony even where he attempted to obscure it. On cross-examination Pinto's "cooperation" was voiced as follows according to Dicker: "... Arthur Pinto said he would not ship out any Concord work, but he wanted all of Concord's work to go in there without any interference, because he said he would not have to lay off anybody." Pinto's cooperation with District 65 was surrender to pure threat. It would demean the judicial process to explain at length why there is no merit in the ultimate defense that because the victim of improper conduct bowed docilely and accepted what at the moment seemed its inevitable lot, the illegal hurt to which he was subjected must be excused . And the Respondent's "observers," also placed at the entrances of Pinto's place of business to enforce the Respondent's demand that Concord's material not leave the premises, were no more than pickets under another name. They no less induced and encouraged Pinto's employees not to work at their normal task than any pickets who ever walked a picket line. When early in December Arthur Pinto believed District 65 had been enjoined from imposing its will upon other companies, it had its employees load a truck with Concord's goods. Those same employees then had to unload the truck because the "observers" reported to the high officers of the Respondent, who saw to it that the observer's function was honored. IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of all four of the companies discussed above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent and its agents have engaged in certain unfair labor practices, the statutory scheme requires that an order be entered requiring them to cease and desist from such practices. The violations of the proscriptions of the statute revealed on this total record are so flagrant and extensive as to show a total disregard for the dictates of law. The Respondent must therefore be enjoined not only to cease and desist from hereafter 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. violating Section 8(bX4Xi) and (iiXB) with respect to S.N.S., Newburgh, and Pinto and the employees of these companies, but also with respect to any other companies and their employees which do business with Concord Fabrics, Inc., wherever and whenever they operate. The Respondent, in the circumstances, must also be ordered to cease and desist from such conduct with respect to any other employers or employees. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I recommend the following: ORDER6 Respondent, District 65, Distributive Workers of Ameri- ca, its officers, agents, and representatives, shall: 1. Cease and desist from inducing or encouraging individuals employed by S.N.S. Distributing Service, Newburgh Dyeing Company, Pinto Service Corporation, or any other individuals employed in an industry affecting commerce, to refuse in the course of their employment to perform services for their employers, and from threatening, coercing, or restraining the said employers or any other employer with an object of forcing any of the above or any other person or employer engaged in an industry affecting commerce to cease doing business with Concord Fabrics, Inc., or with any other employer engaged in an industry affecting commerce. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms to be furnished by the Regional Director for Region 22, after being duly signed by an authorized representative of District 65, Distributive Workers of America, shall be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies to the Regional Director for Region 22, for posting by S.N.S. Distributing Service, Newburgh Dyeing Company, and Pinto Service Corporation, such employers being willing, at all places where notices to their employees are customarily posted. (c) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."